Georgetown Law Journal最新文献

{"title":"Enforcing the Rights of Due Process: The Original Relationship between the Fourteenth Amendment and the 1866 Civil Rights Act","authors":"Kurt T. Lash","doi":"10.2139/SSRN.2801688","DOIUrl":"https://doi.org/10.2139/SSRN.2801688","url":null,"abstract":"Legal scholars have long assumed that the 1866 Civil Rights Act protected rights uniquely associated with national citizenship. Accordingly, most scholars assume that the Fourteenth Amendment’s citizenship-based Privileges or Immunities Clause provided after-the-fact authority for the 1866 Civil Rights Act. A close look at the original sources, however, reveals that key players in the Thirty-Ninth Congress viewed the Civil Rights Act as protecting rights associated with the Fifth Amendment’s Due Process Clause. The man who drafted Section One of the Fourteenth Amendment, John Bingham, expressly viewed the Civil Rights Act as protecting the natural and equal right to due process in matters relating to life, liberty and property. Bingham opposed the Civil Rights Act, however, because he believed an amendment must first be adopted granting Congress power to enforce the equal rights of due process. Following the ratification of the Fourteenth Amendment, Congress (now with Bingham’s support) repassed the Civil Rights Act and extended the majority of its protections to “all persons” — an extension authorized by the “all persons” Due Process Clause but not by the “citizens only” Privileges or Immunities Clause. Understanding the original link between the 1866 Civil Rights Act and the 1868 Due Process Clause requires rethinking a number of commonly accepted assumptions about the original Fourteenth Amendment. Much of the current Supreme Court’s “equal laws” doctrine may be supported by the original meaning of the Due Process Clause, while the Equal Protection Clause itself may communicate an altogether different principle of “equal protection.” Disentangling the Privileges or Immunities Clause from the Civil Rights Act also supports reading the Privileges or Immunities Clause as protecting the nationally enumerated rights of citizenship and not the unenumerated subjects of state-level civil rights now covered by the Due Process and Equal Protection Clauses.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"120 1","pages":"1389"},"PeriodicalIF":2.0,"publicationDate":"2016-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72612604","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Paper Dragon Thieves","authors":"J. Nelson","doi":"10.2139/SSRN.2739013","DOIUrl":"https://doi.org/10.2139/SSRN.2739013","url":null,"abstract":"Developments in the law are making the corporate form more opaque and allowing the agents who animate it to escape individual accountability for their actions. The law now provides protection for agents to engage in widespread frauds that inflict massive harm on the public. This article challenges the academic orthodoxy that shareholder and director liability are enough to control agent behavior by developing a paper dragon analogy to focus on the importance of agents in corporate animation. Lack of agent accountability encourages the patterns of fraud that caused the financial crisis in which forty-five percent of the world’s wealth disappeared, and which continue to be repeated. The article reveals how making the corporate form more opaque has led to the destruction of corporate conspiracy charges for individuals and now the implosion of securities law as a method of disciplining agents. The article concludes with a call for both watching the paper dragon and the need to track the dancers who move its feet.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"64 1","pages":""},"PeriodicalIF":2.0,"publicationDate":"2016-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76351847","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Are Trademarks Ever Fanciful","authors":"J. Linford","doi":"10.2139/SSRN.2732582","DOIUrl":"https://doi.org/10.2139/SSRN.2732582","url":null,"abstract":"A fanciful trademark – a made-up word like SWIFFER for mops, or XEROX for photocopiers – is presumed neither to describe nor suggest any qualities of the product associated with the mark. This presumption is consistent with the theory of linguistic arbitrariness: there exists no connection between a given word (‘tree’) and the thing signified by the word (‘a large woody plant’). Because a fanciful mark is assumed to be an empty vessel, meaningless until used as a trademark, it qualifies for protection from first use, and receives broader protection against infringement than other categories of trademarks. Research into sound symbolism challenges the theory of linguistic arbitrariness and thus the accepted gap between fanciful mark and product. Multiple studies demonstrate the existence of sound symbolism – connections between the individual sounds that constitute a given word and the meanings that a reader or listener ascribes to that word. Marketers often consider sound symbolism when coining a fanciful mark. Consumers are more likely to favor a new trademark when trademark meaning links to product type, even if they are not conscious of the link. Courts often assume that adopting a mark similar to a fanciful mark is evidence of bad faith, but a new entrant might reasonably desire to use sounds that convey product information. Overprotecting fanciful trademarks could thus impose unjustified costs on competitors, at least when sound symbolism connects the mark to the product offered for sale. Broad protection for fanciful marks that benefit from sound symbolism may therefore be misguided. Courts should instead engage in a more nuanced inquiry, accounting for sound symbolism when assessing the validity and scope of a fanciful mark.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"40 1","pages":"731"},"PeriodicalIF":2.0,"publicationDate":"2016-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85851985","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Votes of Other Judges","authors":"E. Posner, Adrian Vermeule","doi":"10.2139/SSRN.2723957","DOIUrl":"https://doi.org/10.2139/SSRN.2723957","url":null,"abstract":"Judges on a multimember court might vote in two different ways. In the first, judges behave solipsistically, imagining themselves to be the sole judge on the court, in the style of Ronald Dworkin’s mythical Judge Hercules. On this model, judges base their votes solely on the information contained in the legal sources before them – statutes, regulations, precedents and the like – and the arguments of advocates. In the second model, judges vote interdependently; they take into account not only the legal sources and arguments, but also the information contained in the votes of other judges, based on the same sources and arguments. What does the law say about these two models? May judges take into account the votes of colleagues when deciding how to vote themselves? Should they do so? Are there even conditions under which judges must do so? To date, the law has no general theory about how to approach interdependent voting. Each setting is taken on its own terms, and judges muddle through. The problem is that some judges muddle in one direction, some in another, without any consistent approach, either across judges, or across settings.We argue for a presumption that judges not only may but should consider the votes of other judges as relevant evidence or information, unless special circumstances obtain that make the systemic costs of doing so clearly greater than the benefits. Our view is not absolutist; we do not say that judges should always and everywhere consider the votes of other judges. Under certain conditions, it may be better for decisionmakers not to attempt to consider all available information, and we will attempt to indicate what those conditions might be, in this domain. But we will argue that such conditions should not casually be assumed to exist. Interdependence should be the norm, and solipsism the exception, so that unless judges have good reason to do otherwise they should take into account the information contained in other judges’ votes. Our central case is an extended fugue on Chevron-related examples and variants, but we also consider qualified immunity, new rules in habeas corpus, mandamus, and the rule of lenity.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"63 1","pages":"159"},"PeriodicalIF":2.0,"publicationDate":"2016-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83233901","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers","authors":"C. Bradley, Neil S. Siegel","doi":"10.2139/SSRN.2721346","DOIUrl":"https://doi.org/10.2139/SSRN.2721346","url":null,"abstract":"Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary—what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal to “historical gloss”—a claim that the practice informs the content of constitutional law. Second, historical practice might be invoked to support non-legal but obligatory norms of proper governmental behavior, something that Commonwealth theorists refer to as “constitutional conventions.” To illustrate how both gloss and conventions enrich our understanding of the judicial separation of powers, the Article considers the authority of Congress to “pack” the Supreme Court, and the authority of Congress to “strip” the Court’s appellate jurisdiction. This Article shows that, although the defeat of Franklin Roosevelt’s Court-packing plan in 1937 has been studied almost exclusively from a political perspective, many criticisms of the plan involved claims about historical gloss; other criticisms involved appeals to constitutional conventions; and still others blurred the line between those two categories or shifted back and forth between them. Strikingly similar themes emerge in debates in Congress in 1957-58, and within the Justice Department in the early 1980s, over the authority of Congress to prevent the Court from deciding constitutional issues by restricting its appellate jurisdiction. The Article also shows, based on internal executive branch documents that have not previously been discovered or discussed in the literature, how Chief Justice John Roberts, while working in the Justice Department and debating Office of Legal Counsel head Theodore Olson, failed to persuade Attorney General William French Smith that Congress has broad authority to strip the Court’s appellate jurisdiction. The Article then reflects on the implications of gloss and conventions for the judicial separation of powers more generally.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"17 1","pages":"255"},"PeriodicalIF":2.0,"publicationDate":"2016-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80295339","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Public Interest Class Action","authors":"D. Marcus","doi":"10.2139/SSRN.2565988","DOIUrl":"https://doi.org/10.2139/SSRN.2565988","url":null,"abstract":"Public interest lawyers often bring large-scale cases against government defendants for injunctive relief as class actions. Until recently, their class certification motions routinely succeeded, enabling plaintiffs to obtain sweeping remedies that have required fundamental reforms to government policies and practices. In recent years, however, the law regulating the public interest class action has changed dramatically, with recurring doctrinal problems splitting the federal courts. Should a nascent trend against class certification continue, class action doctrine will soon present a formidable obstacle – possibly a barrier – to the successful prosecution of a sort of litigation that has produced innumerable changes to prisons, foster care systems, and other government agencies and services over the last fifty years. Any path out of the present confusion must address a basic but neglected question. Why do large-scale public interest cases so regularly proceed as class actions? The answer involves an under-appreciated interaction between the law of class actions and other doctrines devised to limit standing and the scope of remedies. Class action procedure enables public interest plaintiffs to vindicate policies in the substantive law consistent with broad, systemic remedies without asking courts to usurp power from other branches or adjudicate ineptly Without class certification, these policies would lie dormant, as the other doctrines would unnecessarily derail litigation. This “counterweight” function can generate responses to the doctrinal problems that courts have struggled to answer in this new era for the public interest class action. If class action procedure evolves in a manner consistent with its function, large-scale public interest litigation will remain a viable means for the achievement of structural reform.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"48 1","pages":"777-833"},"PeriodicalIF":2.0,"publicationDate":"2015-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76636438","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Raising the Stakes in Patent Cases","authors":"A. Malani, J. Masur","doi":"10.2139/SSRN.2216948","DOIUrl":"https://doi.org/10.2139/SSRN.2216948","url":null,"abstract":"Defendants in patent infringement cases are permitted to defend on the grounds that the infringed upon patent is invalid. This defense, which we call a patent challenge, is intended to correct for the fact that the Patent and Trademark Office may grant patents that are invalid, and invalid patents impose significant economic costs without the offsetting benefit of spurring innovation. Patent challenges are intended to weed out these invalid patents. Unfortunately, patent challenges have flaws. Defendants sometimes succeed in convincing a court to invalidate a truly valid patent. In these cases, challenges reduce the returns to valid patents and discourage valuable innovation. Other times, a court upholds an invalid patent against a challenge. This imposes a tax on genuine innovation and shifts resources toward rent-seeking and away from productive activities. In this paper we ask whether it is possible to reduce the costs patent challenges impose on valid patents without hampering the utility of patent challenges in weeding out invalid patents. If patent trials are inaccurate, it would appear that the most sensible course of action would be to reduce the stakes of those trials. Counter-intuitively, we propose raising the stakes of patent litigation by providing enhanced rewards to victorious patent holders and imposing enhanced penalties on owners of patents that are invalidated at trial. Such measures would actually create greater separation between holders of valid and invalid patents, incentivizing innovation by the former while dissuading the latter from litigating or even asserting their socially worthless property rights.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"41 1","pages":"637"},"PeriodicalIF":2.0,"publicationDate":"2013-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75274782","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Upside-Down Judicial Review","authors":"C. Lain","doi":"10.2139/SSRN.1984060","DOIUrl":"https://doi.org/10.2139/SSRN.1984060","url":null,"abstract":"The countermajoritarian difficulty assumes that the democratically elected branches are majoritarian and the unelected Supreme Court is not. But sometimes just the opposite is true. Sometimes it is the democratically elected branches that are out of sync with majority will, and the Supreme Court that bridges the gap-turning the conventional understanding of the Court’s function on its head. Instead of a countermajoritarian Court checking the majoritarian branches, we see a majoritarian Court checking the not-so-majoritarian branches, enforcing prevailing norms when the representative branches do not. The result is a distinctly majoritarian, upside-down understanding of judicial review. This Article illustrates, explains, and explores the contours of this phenomenon, using three classic cases of the countermajoritarian difficulty — Brown v. Board of Education, Furman v. Georgia, and Roe v. Wade — to anchor the discussion. Democracy never looked so undemocratic, nor (in an upside-down way) has it ever worked so well.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"7 1","pages":"113"},"PeriodicalIF":2.0,"publicationDate":"2012-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78924475","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"‘Let ‘em Play’: A Study in the Jurisprudence of Sports","authors":"Mitchell N. Berman","doi":"10.2139/SSRN.1667140","DOIUrl":"https://doi.org/10.2139/SSRN.1667140","url":null,"abstract":"Serena Williams was eliminated in the semifinals of last year’s U.S. Open when, having lost the first set and down 5-6 in the second, she was called for a second-serve foot fault that made it match point for Belgium’s Kim Clijsters. Williams’s explosive and profanity-laced protest of the call incurred a mandatory one-point penalty that gave Clijsters the match. Although nobody defended Williams’s outburst, professional commentators and ordinary fans did debate whether a foot fault should have been called, with many maintaining that the sport’s rules should be enforced less strictly given the critical juncture in the match, and others objecting that such a practice would violate what might fairly be described as basic rule of law principles.Although the ending to the Williams-Clijsters match was unusually dramatic, the question it raises arises frequently in the world of sports. Many fans of basketball, football and hockey, for example, routinely urge the officials to “let ‘em play” or to “swallow the whistles” in crunch time, while other observers wonder how such a practice could possibly be justified.This essay explores whether it can be. In doing so, it draws on a wealth of popular, legal, and philosophical materials – the common sayings “no harm, no foul” and “it cost us the game”; the material breach doctrine from contract law and tort law’s “lost chance” doctrine; the mystery of objective singular probabilities and the Hartian distinction between duty-imposing and power-conferring rules; and much more. Its ambition is not merely to resolve this single – surprisingly deep and rich puzzle – but to birth a new field of sustained jurisprudential and legal-comparative study: the field of sports and law.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"99 1","pages":"1325-1369"},"PeriodicalIF":2.0,"publicationDate":"2010-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87706498","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Origins of the Privileges or Immunities Clause, Part II: John Bingham and the Second Draft of the Fourteenth Amendment","authors":"Kurt T. Lash","doi":"10.2139/SSRN.1561183","DOIUrl":"https://doi.org/10.2139/SSRN.1561183","url":null,"abstract":"Historical accounts of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment generally assume that John Bingham based the text on Article IV of the original Constitution and that Bingham, like other Reconstruction Republicans, viewed Justice Washington’s opinion in Corfield v. Coryell as the definitive interpretation of Article IV. According to this view, Justice Miller in the Slaughterhouse Cases failed to follow both framers’ intent and obvious textual meaning when he sharply distinguished Section One’s privileges or immunities from Article IV’s privileges and immunities.This article, the second in an extended investigation of the origins of the Privileges or Immunities Clause, presents historical evidence which strongly suggests that none of these assumptions are correct. Although John Bingham’s first draft of the Fourteenth Amendment used the language of Article IV, mid-way through the Reconstruction debates Bingham realized he had made a mistake. Withdrawing his initial proposal, Bingham abandoned the language of Article IV and drafted a second version of the Amendment. This second version protected the “privileges or immunities of citizens of the United States ” - a phrase which mirrored antebellum language regarding the rights of national citizenship. Bingham insisted that his second and final version of Section One did not refer to the common law state-conferred rights of Corfield and Article IV, but instead nationalized a different and limited set of constitutionally recognized privileges and immunities, in particular the first eight amendments to the Constitution. Understanding the difference between Bingham’s first and second drafts not only explains what otherwise appear to be inconsistencies in Bingham’s speeches, it also calls into question contemporary efforts to read the Privileges or Immunities Clause as a source of un-enumerated natural rights. Like other moderates in the Thirty-Ninth Congress, Bingham wished to expand the protection of individual rights in the states, but not at the expense of the retained right of the people in the states to regulate the content of most civil rights, subject only to the requirements of due process and equal protection.","PeriodicalId":47702,"journal":{"name":"Georgetown Law Journal","volume":"7 1 1","pages":"329-433"},"PeriodicalIF":2.0,"publicationDate":"2010-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82559008","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}