Volume 101 - Issue 3 Georgetown Law Journal

Solemn School Boards: Limiting Marsh v. Chambers To Make School Board Prayer Unconstitutional

In the brief, conclusory opinion of Marsh v. Chambers, the Supreme Court upheld the Nebraska state legislature’s policy, which dated back over 100 years, of opening its meetings with a prayer. The prayer did not advance the tenets of any single faith. In deciding the case, the Court relied on the fact that prayer by [...]

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Behavioral Credit Scoring

In 2011, Kevin Rose, the influential founder of the website Digg, caused a stir when he took to his video blog to share a “random idea.” “This might be potentially the dumbest . . . least vetted idea that I’ve ever thrown out there,” Rose said, “But…what if we could make credit cards a little [...]

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Monetizing Infringement: A New Legal Regime for Hosts of User-Generated Content

This Note argues for a new, opt-in legal regime that would provide clear legal safeguards for hosts of user-generated content, while simultaneously providing financial incentives for copyright-content creators. This new regime would be based partially on the principles behind ex ante regulation and self-regulation, rather than the ex post enforcement that typically governs in United [...]

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Remarks: The 32nd Annual Philip A. Hart Memorial Lecture: A Journey from the Heart of Apartheid Darkness Towards a Just Society: Salient Features of the Budding Constitutionalism and Jurisprudence of South Africa

I have been assured that it was open to me to speak on a topic of my choice on this memorable evening. However, it quickly became plain to me that the annual Memorial Lecture has been set up to interrogate topics that were of special interest to Senator Hart. I venture the proposition that had [...]

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The Perils of Social Reading

Our law currently treats records of our reading habits under two contradictory rules: rules mandating confidentiality and rules permitting disclosure. Recently, the rise of the social Internet has created more of these records and more pressures on when and how they should be shared. Companies like Facebook, in collaboration with many newspapers, have ushered in [...]

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Remarks: Twenty-First-Century International Lawmaking

The last time I spoke at Georgetown University Law Center was on the occasion of the eightieth anniversary of the Legal Adviser’s Office, known affectionately at the State Department as “L.” I have now been the Legal Adviser at the State Department for more than three and a half years. During that time, at nearly [...]

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Raising the Stakes in Patent Cases

In this Article, we suggest that it might be possible to improve the value of patent challenges even without increasing their accuracy. Put simply, we propose raising the stakes involved in patent litigation. A patent owner who prevails at trial should collect enhanced rewards, above and beyond the damages the owner would normally be paid [...]

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Is Texas Hold ‘Em a Game of Chance? A Legal and Economic Analysis

In 2006, Congress passed the Unlawful Internet Gambling Enforcement Act (UIGEA), prohibiting the knowing receipt of funds for the purpose of unlawful gambling. The principal consequence of the UIGEA was the shutdown of the burgeoning online poker industry in the United States. Courts determine whether a game is prohibited gambling by asking whether skill or [...]

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Bedside Bureaucrats: Why Medicare Reform Hasn’t Worked

Notwithstanding its obvious importance, Medicare is almost invisible in the legal literature. Part of the reason is that administrative law scholars typically train their attention on the sources of external control over agencies’ exercise of the vast discretion that Congress so often delegates to them. Medicare’s administrators, however, wield considerably less policy discretion than the [...]

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