The Scholarly Commons
The Faculty Working Papers series features current scholarship produced by faculty of the Georgetown Law Center. Prepublication drafts of articles are made available to advance new ideas and encourage professional dialogue relating to a range of contemporary legal and law-related topics.
Submissions from 2009
Out of the Shadows: Preventive Detention, Suspected Terrorists, and War, David Cole
Lawyers, Bureaucratic Autonomy, and Securities Regulation During the New Deal, Daniel R. Ernst
Pierson v. Post: The New Learning, Daniel R. Ernst
Exporting Harshness: How the War on Crime Helped Make the War on Terror Possible, James Forman, Jr.
Why Care About Mass Incarceration?, James Forman, Jr.
Does the Wall Still Stand? The Implications of Transhumanism for the Separation of Church and State, Steven Goldberg
The Book of Job and the Role of Uncertainty in Religion and Law, Steven Goldberg
A Conditional Intent to Perform, Gregory Klass
ASAT-isfaction: Customary International Law and the Regulation of Anti-Satellite Weapons, David A. Koplow
Reading Stoneridge Carefully: A Duty-Based Approach to Third-Party Liability Under Rule 10b-5, Donald C. Langevoort
The SEC and the Madoff Scandal: Three Narratives in Search of a Story, Donald C. Langevoort
Empirical Health Law Scholarship: The State of the Field, Michelle M. Mello and Kathryn Zeiler
Global Governance: The World Trade Organization's Contribution, Andrew D. Mitchell and Elizabeth Sheargold
The Consistency of the EU Renewable Energy Directive with the WTO Agreements, Andrew Mitchell and Christopher Tran
Is Law? Constitutional Crisis and Existential Anxiety, Alice G. Ristroph
Coercive State Discourse and the Rise of Self-Regulation, Jodi Short
Making Sense of the Establishment Clause, Jeffrey Shulman
Less than Zero?, Carlos Manuel Vázquez
Missouri v. Holland’s Second Holding, Carlos Manuel Vázquez
The Federal “Claim” in the District Courts: Osborn, Verlinden, and Protective Jurisdiction, Carlos Manuel Vázquez
The Separation of Powers as a Safeguard of Nationalism, Carlos Manuel Vázquez
Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, Carlos Manuel Vázquez
Eliminating Trade Remedies from the WTO: Lessons from Regional Trade Agreements, Tania Voon
Preparedness for the Health Consequences of Climate Change as a Potential Influence on Public Health Law and Policy, Lindsay F. Wiley
The Stigma of Conviction: Coram Nobis, Civil Disabilities, and the Right to Clear One’s Name, David Wolitz
Submissions from 2008
Government as Educator: A New Understanding of First Amendment Protection of Academic Freedom and Governance, Judith Areen
The Misconceived Assumption about Constitutional Assumptions, Randy E. Barnett
The Commander In Chief At The Lowest Ebb — A Constitutional History, David Jeremiah Barron and Martin S. Lederman
Hallowed Ground: The Gettysburg Battlefield in Historic Preservation Law, J. Peter Byrne
No Reason to Believe: Radical Skepticism, Emergency Power, and Constitutional Constraint, David Cole
Rights Over Borders: Transnational Constitutionalism and Guantanamo Bay, David Cole
Terror Financing, Guilt by Association and the Paradigm of Prevention in the ‘War on Terror’, David Cole
The Ideal and the Actual in the State: Willard Hurst at the Board of Economic Warfare, Daniel R. Ernst
Punishing Pharmaceutical Companies for Unlawful Promotion of Approved Drugs: Why the False Claims Act is the Wrong Rx, Vicki W. Girard
Bleached Faith: The Tragic Cost When Religion is Forced Into the Public Square (Stanford University Press 2008), Steven Goldberg
Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, Jill Elaine Hasday
Climate Change in the Supreme Court, Lisa Heinzerling
What’s Wrong With Victims’ Rights in Juvenile Court?: Retributive v. Rehabilitative Systems of Justice, Kristin N. Henning
Risk Governance and Deliberative Democracy in Health Care, Nan D. Hunter
The Surprisingly Stronger Case for the Legality of the NSA Surveillance Program: The FDR Precedent, Neal K. Katyal and Richard Caplan
Regulating Information in Contractual Relationships, Gregory Klass
Three Pictures of Contract: Short Version, Gregory Klass
The SEC, Retail Investors, and the Institutionalization of the Securities Markets, Donald C. Langevoort
U.S. Securities Regulation and Global Competition, Donald C. Langevoort
The Commander In Chief At The Lowest Ebb — Framing The Problem, Doctrine, And Original Understanding, Martin S. Lederman and David Jeremiah Barron
Resolving the Foreclosure Crisis: Modification of Mortgages in Bankruptcy, Adam Levitin
The Effect of Bankruptcy Strip-Down on Mortgage Interest Rates: Summary of Initial Findings, Adam Levitin and Joshua Goodman
Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law, David Luban
Lawfare and Legal Ethics in Guantánamo, David Luban
Torture and the Professions, David Luban
Unthinking the Ticking Bomb, David Luban
The DOJ Risks Killing the Golden Goose Through Computer Associates/Singleton Theories of Obstruction, Julie Rose O'Sullivan
Moral Intuitions and Organizational Culture, Mitt Regan
An Overview of the “Tax Gap”, Dave Rifkin
Paradigm Lost: Recapturing Classical Rhetoric to Validate Legal Reasoning, Kristen K. Robbins Tiscione
The Inside Scoop: What Federal Judges Really Think about the Way Lawyers Write, Kristen K. Robbins Tiscione
Causation in Torts, Crimes, and Moral Philosophy: A Reply to Professor Thomson, Paul Rothstein
Comments on Swift and Slobogin: Mental State Evidence, Paul Rothstein
Glimpses of the Priest as Dean, Legislator, and Friend, Paul Rothstein
Teaching Evidence, Paul Rothstein
Entrapment and the “Free Market” for Crime, Louis Michael Seidman
Powell’s Choice: The Law and Morality of Speech, Silence, and Resignation by High Government Officials, Louis Michael Seidman
The Dale Problem: Property and Speech Under the Regulatory State, Louis Michael Seidman
Spiritual Custody: Relational Rights and Constitutional Commitments, Jeffrey Shulman
The Outrageous God: Emotional Distress, Tort Liability, and the Limits of Religious Advocacy, Jeffrey Shulman
What Yoder Wrought: Religious Disparagement, Parental Alienation and the Best Interests of the Child, Jeffrey Shulman
Power Without Responsibility: Intermediaries and the First Amendment, Rebecca Tushnet
User-Generated Discontent: Transformation in Practice, Rebecca Tushnet
Ennobling Politics, Robin West
Literature, Culture, and Law -- at Duke University, Robin West
Sex, Law and Consent, Robin West
Unenumerated Duties, Robin West
Submissions from 2007
The People or the State?: Chisholm V. Georgia and Popular Sovereignty, Randy E. Barnett
Three Federalisms , Randy E. Barnett
Reviving the Nixon Doctrine: NSA Spying, the Commander-In-Chief, and Excutive Power in the War on Terror, David Cole
The Poverty of Posner's Pragmatism: Balancing Away Liberty After 9/11, David Cole
Affordable Housing, Land Tenure, and Urban Policy: The Matrix Revealed, Michael Diamond and J. Peter Byrne
Why Prison Instead of Preschool?, James Forman, Jr.
MRIs and the Perception of Risk, Steven Goldberg
Technology Unbound: Will Funded Libertarianism Dominate the Future?, Steven Goldberg
Biomedical Research Involving Prisoners: Ethical Values and Legal Regulation , Lawrence O. Gostin
Global Regulatory Strategies for Tobacco Control, Lawrence O. Gostin
Law as a Tool to Facilitate Healthier Lifestyles and Prevent Obesity, Lawrence O. Gostin
Pandemic Influenza: Ethics, Law, and the Public's Health, Lawrence O. Gostin and Benjamin E. Berkman
Why Care About the Polar Bear? Economic Analysis of Natural Resources Law and Policy , Lisa Heinzerling
Student Services in the 21st Century: Evolution and Innovation in Discovering Student Needs, Teaching Information Literacy, and Designing Library 2.0-Based Services, Kumar Percy Jayasuriya
Equality in the War on Terror, Neal K. Katyal
Contracting for Cooperation in Recovery , Gregory Klass
Three Pictures of Contract: Duty, Power and Compound Rule, Gregory Klass
Basic at Twenty : Rethinking Fraud-on-the-Market, Donald C. Langevoort
On Leaving Corporate Executives "Naked, Homeless and Without Wheels": Corporate Fraud, Equitable Remedies, and the Debate Over Entity Versus Individual Liability, Donald C. Langevoort
Priceless? The Competitive Costs of Credit Card Merchant Restraints, Adam Levitin
ON THE COMMANDER-IN-CHIEF POWER, David Luban
Moral Cognition and Computational Theory , John Mikhail
‘Plucking the Mask of Mystery from its Face’: Jurisprudence and H.L.A. Hart,, John Mikhail
The Free Exercise of Religion: An American Perspective, John Mikhail
Risky Business, Mitt Regan
Federal Student Loan Repayment Assistance for Public Interest Lawyers and other Employees of Governments and Nonprofit Organizations, Philip G. Schrag
Can Constitutionalism be Leftist?, Louis Michael Seidman