Welcome to The Georgetown Law Journal Online

The Georgetown Law Journal Online, like the Journal, is a general legal publication that contains more informal blog posts as well as formal responses to in-print scholarship, scholarly... Read More

Upending a Global Debate: An Empirical Analysis of the U.S. Supreme Court’s Use of Transnational Law to Interpret Domestic Doctrine

Over the last ten years, judges, scholars, and policy makers have argued— quite vehemently at times—about whether U.S. courts should use transnational sources of law to interpret domestic legal doctrine... Read More

Monopolization Through Patent Theft

This Article explores how courts have created antitrust immunity for patent theft and why this rule is mistaken. Part I introduces basic antitrust concepts, including the antitrust cause of action for... Read More

On the Problem of Legal Change

Identifying legal change is an ordinary part of legal decisionmaking, but participants in those decisions regularly focus on different measures. A version of the problem arises when one observer points... Read More

The Law of “Not Now”: When Agencies Defer Decisions

Administrative agencies frequently say “not now.” They defer decisions about rulemaking or adjudication, or decide not to decide, potentially jeopardiz- ing public health, national security, or other... Read More

A Sentencing Commission for the Administrative State?

Since the 1980s, oversight of punishment in the federal criminal system has been centralized. A single body, the Sentencing Commission, regulates criminal punishment through the Sentencing Guidelines.... Read More

The Eagle and the Hare: U.S.–Chinese Relations, the Wolf Amendment, and the Future of International Cooperation in Space

On July 20, 1969, the Apollo 11 lunar module, Eagle, landed on the moon, definitively ending the space race with the Soviet Union and signaling what was hoped to be a bright new dawn for humanity. In... Read More

Educational Empowerment: A Child’s Right to Attend Public School

Josh Powell was fourteen years old when he realized he was falling behind academically. Homeschooled under Virginia’s religious exemption statute, Powell had never seen the inside of a classroom,... Read More

Skin in the Game: The Promise of Contingency-Based M&A Fees

In February 2000, The American Lawyer reported that the venerable law firm of Cravath, Swaine & Moore (Cravath) entered into an agreement to help its client, Time Warner Inc. (Time Warner), merge... Read More

Rulemaking as Legislating

The central premise of the nondelegation doctrine prohibits Congress from delegating its Article I legislative powers. Yet Congress routinely delegates to agencies the power to promulgate legislative... Read More

Military Courts and Article III

Few areas of the Supreme Court’s federal courts jurisprudence raise as many questions—and provide as few coherent answers—as the permissible scope of Congress’s power to invest the “judicial... Read More

Testing Tribe’s Triangle: Juries, Hearsay, and Psychological Distance

Since its inception, evidence policymakers have vacillated with respect to whether the rule barring hearsay evidence at trial is a doctrine designed to promote decisional accuracy or a doctrine designed... Read More

Law and the Art of Modeling: Are Models Facts?

In 2013, the Supreme Court made the offhand comment that empirical models and their estimations or predictions are not “findings of fact” deserving of deference on appeal. The four Justices writing... Read More

A Military Justice Solution in Search of a Problem: A Response to Vladeck

In “Military Courts and Article III,” our colleague and fellow law professor Steve Vladeck has made an original and important contribution to the literature on the interaction of military tribunals... Read More

The Antitrust Division’s Devaluation of Standard-Essential Patents

The Institute of Electrical and Electronics Engineers (IEEE) is a standard-setting organization (SSO) whose standards incorporate technologies owned by many different holders of standard-essential patents... Read More

Measuring How Stock Ownership Affects Which Judges and Justices Hear Cases

Under the federal judicial recusal rules, judges and justices who directly own stock in companies must recuse themselves in cases involving those companies. However, there has been little effort to measure... Read More

Death Penalty Drugs and the International Moral Marketplace

Across the country, executions have become increasingly problematic as states have found it more and more difficult to procure the drugs they need for lethal injection. At first blush, the drug shortage... Read More

Offensive Disclosure: How Voluntary Disclosure Can Increase Returns from Insider Trading

Can voluntary disclosure be used to enhance insiders’ insider-trading profits while providing legal cover? We investigate this question in the context of Rule 10b5-1 trading plans. Prior literature... Read More

A Statute by Any Other Name Might Smell Less Like S.P.A.M., or, The Congress of the United States Grows Increasingly D.U.M.B.

To wit, it appears to have occurred to a number of lobbyists, Hill staffers, Members, and other drafters of legislation that there is something to be gained rhetorically in our American institution of... Read More

Investing in Detroit: Automobiles, Bankruptcy, and the Future of Municipal Bonds

On July 18, 2013, Detroit, Michigan became the largest municipality in United States history to file for bankruptcy. Since the days of Henry Ford, Americans have been investing in Detroit by buying its... Read More

Lessons from the Alien Tort Statute: Jus Cogens as the Law of Nations

This Note considers a judicial practice that identifies jus cogens as the law of nations by evaluating Alien Tort Statute jurisprudence. While it is generally accepted that a norm belonging to jus cogens... Read More

At Least Somewhat Exaggerated: How Reports of the Death of Delaware’s Duty of Care Don’t Tell the Whole Story

In 1985, corporate law underwent a sea-change as the Delaware Supreme Court in Smith v. Van Gorkom found that the directors of Trans Union violated their duty of care when they sold the company... Read More

Criminal Law 2.0 – Preface to the 44th Annual Review of Criminal Procedure

Although we pretend otherwise, much of what we do in the law is guesswork. For example, we like to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’... Read More

The Legality of Invisibility Technology in Modern Warfare

Imagine having the ability to become invisible by blending perfectly into your surroundings and to move before someone’s eyes completely unseen. No longer is this capability limited to the worlds of... Read More

Patent Conflicts

Patent policy is typically thought to be the product of the Patent and Trademark Office, the Court of Appeals for the Federal Circuit, and, in some instances, the Supreme Court. This simple topography... Read More

Hide Your Health: Addressing the New Privacy Problem of Consumer Wearables

Is your heart rate an intentional communication? The answer may not be clear, but what is certain is that the era of consumer wearable devices is upon us. For the first time in history, consumer devices... Read More

The Third Way 2.0: Evaluating the Title II Reclassification and Forbearance Approach to Net Neutrality

As a Los Angeles Times editor put it, “In essence, the [net neutrality] debate boils down to a question of what freedom online is most worth preserving: the freedom from regulation, or the freedom... Read More

Admin

This Article concerns a relatively unseen form of labor that affects us all, but that disproportionately burdens women: admin. Admin is the office type work—both managerial and secretarial—that... Read More

Cognitive Cleansing: Experimental Psychology and the Exclusionary Rule

The exclusionary rule generally bars the use of illegally obtained evidence in a criminal case, regardless of the defendant’s crime. However, using a combination of doctrinal analysis, social psychology... Read More

Facing the Firing Squad

The recent Supreme Court decision in Glossip v. Gross affirmed the legality of midazolam for use in lethal injection. The 5–4 majority opinion reads the Constitution to require an available... Read More

Cutting Cops Too Much Slack

Police officers can make mistakes, which, for better or worse, the U.S. Supreme Court has often seen fit to forgive. Police, for instance, can make mistakes of fact when assessing whether circumstances... Read More

Claiming While Complaining on the Federal Public Lands: A Problem for Public Property or a Special Case?

Bruce Huber's thoughtful article, “The Durability of Private Claims to Public Property,” is an excellent demonstration of the ways that older uses of the federal public lands continue long past the... Read More

The Law’s Clock

Time is everywhere in law. It shapes doctrines as disparate as ripeness and retroactivity, and it impacts litigants of every status and type—the eager plaintiff who brings her case too early, the death... Read More

After the Revolution: An Empirical Study of Consumer Arbitration

For decades, mandatory consumer arbitration has been ground zero in the war between the business community and the plaintiffs’ bar. Some courts, scholars, and interest groups argue that the speed, informality... Read More

Immigration Law’s Looming Fourth Amendment Problem

Among the many executive actions to reform immigration enforcement taken by President Obama on November 20, 2014, one measure was not like the others. Homeland Security Secretary Jeh Johnson directed... Read More

Sustaining the Sustainable Corporation: Benefit Corporations and the Viability of Going Public

The Delaware public benefit corporation is a relatively new for-profit legal entity that allows for the explicit pursuit of a corporate social or environmental mission. The public benefit corporation... Read More

When the Regulators Refuse to Regulate: Pervasive USDA Underenforcement of the Humane Slaughter Act

We are in a small slaughterhouse seventy-five miles from Minneapolis. A United States Department of Agriculture (USDA) inspector’s report captures the scene: A slaughter plant manager slit a cow’s... Read More

The Justice Department’s Response to “Criminal Law 2.0”

Read the Justice Department's response to Judge Alex Kozinski's "Criminal Law... Read More

Rejecting Criminalisation and Externalisation: Moving from Enforced Closure to Regulated Mobility

I thank the organisers for inviting me to share with you a number of ideas coming from my experience as U.N. Special Rapporteur on the Human Rights of Migrants, especially from the two reports I’ve... Read More

A Union Unlike Any Other: Obergefell and the Doctrine of Marital Superiority

Obergefell v. Hodges is a historic decision that accomplishes the important task of requiring marriage equality across the nation. To many, the opinion’s romantic language gives particular... Read More

Out of Sight, Out of Mind in Guantanamo Bay

First-time visitors might be surprised to learn that the Guantanamo Bay Naval Base offers a full complement of recreational activities. One can rent a kayak, visit a bowling alley, or stop by the arts... Read More

The Perils of a Middle Road to Regulating Systemic Risk: The Volcker Rule’s Risk Backstop Provisions

The Dodd-Frank Act, enacted after the global financial crisis, requires U.S. financial regulators to define and regulate systemically risky firms and activities—a truly Sisyphean task. In this Essay... Read More

Income-Driven Repayment and the Public Financing of Higher Education

The cost of higher education has been rising faster than inflation for decades and is likely to continue to do so despite reform efforts. This has negative distributional consequences given that higher... Read More

Obey All Laws and Be Good: Probation and the Meaning of Recidivism

Probation plays a dominant role in the operation of the U.S. criminal justice system. Approximately four million adults in the United States are now on probation, a court-ordered sentence that provides... Read More

Parentage Disputes in the Age of Mitochondrial Replacement Therapy

Mitochondrial replacement therapy (MRT) is an experimental assisted reproductive technology (ART) for women with mitochondrial disease who want to avoid passing that disease on to their children and for... Read More

Raw Materials and the Creative Process

Visitors to the Whitney Museum in Manhattan during the summer of 2014 encountered a tremendous range of iconic pop-culture imagery: a granite statue of Popeye, an Incredible Hulk piano organ, Jayne Mansfield... Read More

Children Who Should Not Be Heard: Protecting Mature Minors from Parental Wiretaps

As surveillance technology becomes more sophisticated, the power of private citizens to spy on one another increases. Parents, in particular, may make use of formidable new tools in monitoring their children... Read More

Why Smart Sanctions Need a Smarter Enforcement Mechanism: Evaluating Recent Settlements Imposed on Sanction-Skirting Banks

Broadly, this Note considers the efficacy of targeted banking sanctions and asset freezes in inhibiting terrorism and proliferation financing. Specifically, it asks whether recent settlements paid by... Read More

Manufactured Consent: The Problem of Arbitration Clauses in Corporate Charters and Bylaws

CommonWealth was a publicly traded real-estate investment trust (REIT) organized under the laws of Maryland. It was founded by Barry Portnoy and a partner in 1986. By 2006, Portnoy and his son, Adam Portnoy... Read More

Popularizing Hearsay

In the spring of 1554, the English Crown charged Nicholas Throckmorton, a member of the Warwickshire gentry, with high treason for his alleged role in the Wyatt Rebellion. Several months earlier Queen... Read More

Privatizing Public Litigation

Public litigation is being privatized as public entities turn to private actors to perform, and sometimes to pay for, litigation on behalf of the state and federal governments. Consider the following... Read More

Interpretive Modesty

“New originalism” presents a profound challenge to originalist determinacy—that is, to the notion that original constitutional meanings alone can resolve most constitutional controversies. Although... Read More

The United Nations Immunity Regime: Seeking a Balance Between Unfettered Protection and Accountability

Considered one of the western hemisphere’s worst natural disasters in recorded history, the January 2010 earthquake in Haiti caused massive destruction, killing hundreds of thousands and leaving the... Read More

Corporate Social Responsibility in the Arctic

The Arctic is a homeland to many diverse indigenous communities with distinct histories, cultures, and livelihoods. Yet the communities all share a unique relationship with the Arctic, and they closely... Read More

How We Prosecute the Police

Police brutality is at the center of a growing national conversation on state power, race, and our problematic law enforcement culture. Focus on police conduct, in particular when and whether it should... Read More

The Public Interest Class Action

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... Read More

In Praise of All or Nothing Dichotomous Categories: Why Antitrust Law Should Reject the Quick Look

All contracts “restrain trade” in some sense, but section 1 of the Sherman Act bans only those that restrain trade “unreasonably.” Restraints are unreasonable, in turn, if they create or maintain... Read More

Privilege

In this Article, I describe how Holmes, Hohfeld, and other legal realists deployed the jural character of the privilege status to debunk the libertarian narratives of “classical legal thought.” I... Read More

Narrowing Supreme Court Precedent from Below

Lower courts supposedly follow Supreme Court precedent—but they often don’t. Instead of adhering to the most persuasive interpretations of the Court’s opinions, lower courts often adopt narrower... Read More

The Political Question Doctrines: Zivotofsky v. Clinton and Getting Beyond the Textual–Prudential Paradigm

Since the Supreme Court’s opinion in Baker v. Carr, the political question doctrine has been viewed as consisting of textual and prudential factors. How these interrelate, and which type... Read More

Concocting the Most Insignificant Office Ever Contrived: The Vice Presidency During the Early Republic

John Adams was exasperated. The United States was caught in the middle of escalating tensions between Great Britain and France, and Adams believed himself powerless to help. In a letter to his wife, Abigail... Read More

How We Prosecute the Police

Police brutality is at the center of a growing national conversation on state power, race, and our problematic law enforcement culture. Focus on police conduct, in particular when and whether it should be criminal, is on the minds of scholars and political actors like never before. Yet this new focus has brought up a host […]

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The Public Interest Class Action

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 procedural law regulating the public interest class action has changed […]

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In Praise of All or Nothing Dichotomous Categories: Why Antitrust Law Should Reject the Quick Look

All contracts “restrain trade” in some sense, but section 1 of the Sherman Act bans only those that restrain trade “unreasonably.” Restraints are unreasonable, in turn, if they create or maintain market power without producing offsetting efficiencies. Such agreements divert resources to less valuable uses and thus reduce society’s wealth. […]

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Privilege

In this Article, I describe how Holmes, Hohfeld, and other legal realists deployed the jural character of the privilege status to debunk the libertarian narratives of “classical legal thought.” I then present three doctrinal areas in which contemporary American legal discourse seems to ignore these realist analytics by mistaking the privilege status for a private […]

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Narrowing Supreme Court Precedent from Below

Lower courts supposedly follow Supreme Court precedent—but they often don’t. Instead of adhering to the most persuasive interpretations of the Court’s opinions, lower courts often adopt narrower readings. For example, recent courts of appeals’ decisions have narrowly interpreted the Court’s rulings on police searches, gun control, and campaign finance. This practice—which I call “narrowing from […]

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Corporate Social Responsibility in the Arctic

The Arctic is a homeland to many diverse indigenous communities with distinct histories, cultures, and livelihoods. Yet the communities all share a unique relationship with the Arctic, and they closely depend on the Arctic environment and their ability to reside on their traditional lands for cultural and economic survival. According to the Arctic Human Development […]

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The Political Question Doctrines: Zivotofsky v. Clinton and Getting Beyond the Textual–Prudential Paradigm

Since the Supreme Court’s opinion in Baker v. Carr, the political question doctrine has been viewed as consisting of textual and prudential factors. How these interrelate, and which type of factors to favor if these clash, has led to considerable confusion. In the recent case of Zivotofsky ex rel. Zivotofsky v. Clinton, Chief Justice Roberts […]

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Concocting the Most Insignificant Office Ever Contrived: The Vice Presidency During the Early Republic

John Adams was exasperated. The United States was caught in the middle of escalating tensions between Great Britain and France, and Adams believed himself powerless to help. In a letter to his wife, Abigail, Adams blamed his sense of impotence on his position as the nation’s first vice president—a role he castigated as “the most […]

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