Georgetown University Law Center Research Articles

Targeted Killing in U.S. Counterterrorism Strategy and Law

Targeted killing, particularly through the use of missiles fired from Predator drone aircraft, has become an important, and internationally controversial, part of the US war against al Qaeda in Pakistan and other places. The Obama administration, both during the campaign and in its first months in office, has publicly embraced the strategy as a form of counterterrorism. This paper argues, however, that unless the Obama administration takes careful and assertive legal steps to protect it, targeted killing using remote platforms such as drone aircraft will take on greater strategic salience precisely as the Obama administration allows the legal space for it in international law to shrink. Moreover, the paper argues that non-state enemies of the United States will not always be al Qaeda or groups covered by Security Council resolutions or the US Authorization for the Use of Military Force. Eventually there will emerge other threats that do not fall within the existing armed conflicts, and the United States is likely to seek to address at least some of those threats using its inherent rights of self-defense, whether or not a conflict within the meaning of international humanitarian law (IHL) and its thresholds is underway, and using domestic law authority under the statutes establishing the CIA. In that case, a US administration seeking to offer a legal rationale justifying its use of targeted killing might discover that reliance upon a state of IHL-armed conflict does not provide it the robust authority to use force that the US has traditionally asserted under its rights of inherent self-defense. This is a policy paper, not a law review or scholarly article, and it offers blunt advice to the Obama administration and the US Congress with a particular normative goal in mind - to preserve the legal rationales for the use of self-defense in targeted killing, whether or not an IHL armed conflict is underway, consistent with the positions taken by the United States in the 1980s, and culminating with a statement of the US position on self-defense against terrorism and targeting terrorists in third-state safe havens by then-State Department legal advisor Abraham Sofaer in 1989. The point of the paper is to urge the Obama administration, and offer it advice, on how to preserve the legal category of targeted killing as an aspect of inherent rights of self-defense and US domestic law. As such, this paper runs sharply counter to the dominant trend in international law scholarship, which is overwhelmingly hostile to the practice. It urges the Obama administration to consider carefully ways in which apparently unrelated, broadly admirable human rights goals, such as accepting extraterritorial application of the International Covenant on Civil and Political Rights, or accepting its standards as a complement to the lex specialis of IHL, or accepting recent soft-law standards offered by some influential NGOs such as the International Committee of the Red Cross to define direct participation in hostilities, have the effect of making legally difficult, if not legally impossible, a counterterrorism strategy of targeted killing using standoff platforms that the Obama administration has correctly embraced as both more effective and more discriminating from a humanitarian stance. It is frank, practical advice to the Obama administration that it must assert the legality of its practices in the face of a hostile and influential international soft-law community or risk losing the legal rationale for a signature strategy.The draft policy paper runs 20,000 words and is a Working Paper of the Series on Counterterrorism and American Statutory Law, a project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution, none of whom are responsible for the contents of individual papers. A finalized version of the paper will appear in Benjamin Wittes, Legislating the War on Terror: An Agenda for Reform (Brookings Institution Press 2009).

A Modest Experiment in Pedagogy: Lessons on Comparative Constitutional Law

This article was written for and submitted to the International Association of Law Schools Conference on Comparative Constitutional Law, Washington, DC (Sept. 11-12, 2009), hosted by the American University Washington College of Law and the Georgetown University Law Center. It generally describes the curriculum commitment of the Florida International University College of Law to inculcate perspectives from international law and comparative law into all domestic law courses. It offers some brief and tentative advice to instructors. The focus is on the basic, first-year survey course in U.S. constitutional law. An Appendix provides a set of sample Lessons on comparative constitutional law developed by the author.

The Track Record on Takings Legislation: The Results From Florida and Oregon

Abstract The Georgetown Environmental Law & Policy Institute (GELPI) at Georgetown University Law Center recently published a report entitled "The Track Record on Takings Legislation: Lessons from Democracy's Labora tories." The report examines in detail the experiences of two states, Florida and Oregon, with so-called takings "compensation" measures. The primary goal of this research effort was to identify the lessons from these states that might be useful to citizens and policy makers in other jurisdictions considering similar measures in the future.

Faith, the State, and the Humility of International Law

Father Robert Drinan, long a leading advocate of human rights, has had a distinguished career serving as a U.S. congressman from Massachusetts, as Dean of the Boston College Law School, and now as Professor of Law at Georgetown University Law Center. Father Drinan's new book, Can and Caesar Coexist?: Balancing Religious Freedom and International Law, sensitively and persuasively sets out the often tortuous relations among religion (the God of his title), national governments (Caesar), and international law (the new and possibly helpful partner in this relationship). My essay employs the facts and arguments in Father Drinan's Can and Caesar Coexist? as a sounding board for a single, central observation. In the oftentimes dysfunctional family of faith, the state, and international law, it is international law that is very much the weak sister, doomed to play a humble and subservient role vis-A-vis the much more powerful figures of religion and the sovereign state. I think Father Drinan and I agree that it will be extraordinarily difficult for international law, the Cinderella of the tale, to rise up to engage either faith or the state on anything like an even playing field.

Introduction

Introduction Melvin I. Urofsky Beforetalking aboutthis issue, letme con­ gratulate Elizabeth Brand Monroe, who was awarded the 2008 Hughes-Gossett Award for the best article in the Journal in the preced­ ing year. Professor Monroe’s “The Influence ofthe Dartmouth College Case on the Ameri­ can Law ofEducational Charities” appeared in early 2007 (vol. 32, no. 1), and the judges be­ lieved its importance lay in shedding light on how a case normally associated with contract law actually had great impact in other areas as well. This issue, like many of its predecessors, covers a wide area of Supreme Court history. Some ofthe material will be familiar to many of our readers, while other material will intro­ duce them to relatively new ideas about the Court’s history. While we all know that the Court consisted solely of white men until the appointment ofThurgoodMarshallby Lyn­ don Johnson and of Sandra Day O’Connor by Ronald Reagan, Todd Peppers reminds us that during the first several decades that the Court employed clerks, nearly all ofthem were white males as well. William O. Douglas hired the first woman clerk, Lucille Lomen (OT 1944) and did so reluctantly: During World War II, the men joined the armed forces, so Douglas hadto take eitherMs. Lomen or no one. Butthe first African-American clerk, William Cole­ man, was welcomed by Felix Frankfurter, and went on after his year with the Court to have a distinguished career as a lawyer. One of the joys of editing the Journal is that not only can I badger my friends into writ­ ing for it, but also, when I come across some­ thingunexpected, we can move quicklyand get it for our readers. I was down in Louisville do­ ing research when one ofthe law librarians told me about some relatively unknown materials in the John Marshall Harlan Papers there. We talked about them for a while, and last year we published Harlan’s Civil War memoirs, edited by Peter Scott Campbell. In this issue, Peter has edited another of Harlan’s reminiscences, which seemed to have been written late in his life at the request ofhis children. Edward Carter, ofBrighamYoungUniver­ sity, and his collaborator James Phillips pro­ vide us with some new research on the for­ mative years of George Sutherland, one ofthe most important Justices of the early twentieth v vi JOURNAL OF SUPREME COURT HISTORY century, who grew up as a non-Mormon in Utah. Galen Thorp’s piece focuses on William Wirt, a man who, although he is relatively un­ known today, argued literally dozens of cases before the Supreme Court as Attorney General as well as in private practice, including the Burr treason trial, Gibbons v. Ogden (1824), and CherokeeNation v. Georgia (1831). Thorp wrote this exhaustive study while a student of Professor Richard J. Lazarus at Georgetown University Law Center. With younger histori­ ans turning out such good work, the profession can look to the future with optimism. Bruce Altschuler takes a new look at a classic case, Youngstown Sheet & Tube Co. v. Sawyer (1952), the famous Steel Seizure Case. This decision is often cited as evidence that thejudiciary—“the least dangerous branch”— can, when necessary, rein in the efforts of a President to overreach his constitutional au­ thority. In his article, Altschuler asks whether, after more than a half-century, the case still retains the vitality attributed to it. Normally we do not publish the type of long articles that frequently appear in law re­ views. But when Theodore Vestal sent us his piece on how the Warren Court got caught up in Cold War diplomacy, we knew we should have it, and with Vestal’s agreement, we de­ cided to run it in two issues. Part One appears here, and Part Two will appear in the first issue of 2009. This is not a side ofthe Court that is often seen, but a great deal of recent scholar­ ship points to the influence that the Cold War had on the Warren Court in the 1950s and early 1960s. As always, enjoy! ...

Contracting for Cooperation in Recovery

There is a longstanding debate about whether courts should enforce contract terms purporting to limit the parties’ liability for fraud. It is less-often noticed that many contracts are designed to incorporate fraud liability by requiring one party to make representations about her performance that, if false, can satisfy the elements of deceit. Such contractual representations are best understood as members of a broader, hitherto underappreciated category of contract terms: duties designed to increase the other party’s chances of recovering for breach. Examples include the duty to keep records, to share information about performance, to permit audits, and not to hide breach. This Article shows that the logic of proving proximate harm from the breach of such terms entails that legal liability for such breach often makes a practical difference only when it includes penalties, punitive damages, or other extracompensatory measures. The Article also demonstrates that most of the costs of extracompensatory remedies (such as deterring efficient breach) do not apply when those remedies are attached to duties to cooperate in recovery, and that, in many cases, adopting such duties is a better solution to underenforcement than damages multipliers. Parties now contract for liability in fraud, where punitive damages are available, because they cannot get these remedies in contract. The practical upshot is a new argument against rulings, most recently via a broad reading of the economic loss doctrine, that there can be no liability in fraud for lies that are also breaches. Rather than serving the oft-stated goal of protecting the parties’ contractually chosen allocation of risk, these rules defeat party choice. Even better, however, would be exceptions to the rules against penalties and punitive damages when those remedies are attached to the breach of a duty to cooperate in recovery. author. Associate Professor, Georgetown University Law Center. I want to thank Jennifer Arlen, Guido Calabresi, Richard Craswell, Kevin Davis, Chris Elmendorf, John Mikhail, Jed Purdy, Chris Sanchirico, Christian Turner, Bill Vukowich, Ethan Yale, and Kathy Zeiler, each of whom added to the ideas in this Article through discussion or comment. I owe special thanks to Ian Ayres, who suggested that I write down these thoughts during a walk in the Arizona desert. The Article also benefited from faculty workshops at the University of Virginia Law School and Georgetown University Law Center, and from discussion at the Stanford/Yale Junior Faculty Forum. Jason Daniels provided excellent research assistance. Finally, I thank Sanjukta Misra, who not only provided input along the way, but is the work’s sine qua non. 0002.KLASS 10/25/2007 11:02 AM contracting for cooperation in recovery

Defiled and De-Sexed: Dickens's Portrayal of a Woman Waging Law in Victorian England

Journal Article Defiled and De-Sexed: Dickens's Portrayal of a Woman Waging Law in Victorian England Get access Sara Deutch Schotland, J.D., M.A., B.A. Sara Deutch Schotland, J.D., M.A., B.A. 1Georgetown University Law Center; Georgetown University; Harvard University. Mrs. Schotland is an Adjunct Professor of Law and Literature at Georgetown University Law Center and an Adjunct Professor of Law and Literature at Georgetown University's B.A. Liberal Studies program. She is currently pursuing a PhD. at the University of Maryland. Mrs. Schotland dedicates this article to the memory of her parents, Michael J. Deutch and Rachel F. Deutch. A life-long admirer of Dickens, Rachel Deutch was reading Pickwick Papers in her final days. Mrs. Schotland gratefully acknowledges the contributions of Professor Leona Fischer of Georgetown University who commented on an earlier version of this article, as well as the assistance of her husband, Roy Schotland and her assistant Alfredo Lancellotti. Search for other works by this author on: Oxford Academic Google Scholar American Journal of Legal History, Volume 49, Issue 4, October 2007, Pages 438–455, https://doi.org/10.1093/ajlh/49.4.438 Published: 01 October 2007

Corporate Officer Wrongdoing and the Fiduciary Duties of Corporate Officers under Delaware Law

American Business Law JournalVolume 44, Issue 3 p. 475-520 Corporate Officer Wrongdoing and the Fiduciary Duties of Corporate Officers under Delaware Law Aaron D. Jones, Aaron D. Jones Associate with Latham & Watkins, LLP, San Francisco. I thank Professor Donald C. Langevoort at the Georgetown University Law Center for his invaluable assistance and insights throughout the process of drafting this article.Search for more papers by this author Aaron D. Jones, Aaron D. Jones Associate with Latham & Watkins, LLP, San Francisco. I thank Professor Donald C. Langevoort at the Georgetown University Law Center for his invaluable assistance and insights throughout the process of drafting this article.Search for more papers by this author First published: 03 August 2007 https://doi.org/10.1111/j.1744-1714.2007.00044.xCitations: 2Read the full textAboutPDF ToolsExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Citing Literature Volume44, Issue3Fall 2007Pages 475-520 RelatedInformation

The Unilateral Creation of International Law During the "War on Terror:" Murder by an Unprivileged Belligerent Is Not a War Crime

On July 4, 2006, just five days after the Supreme Court ruled in Hamdan v. Rumsfeld,' prosecuting attorneys Professor Neal Katyal of Georgetown University Law Center and Lieutenant Commander Charles Swift flew to Guantanamo Bay, Cuba (Guantanamo) to meet their client, Salim Hamdan, and tell him the Supreme Court declared the military commissions he was to be tried under unconstitutional.2 While explaining their seminal victory to Hamdan, they said that [i] n 50 to 100 years, law students will be reading this case and reading your name.3 Hamdan responded that [m] aybe I'll change my name. I just want to go home.' While Hamdan's resignation is understandable considering his five-year confinement at Guantanamo, the legal community believed Katyal and Swift did the impossible.' They won a case striking down a judicial system that deprived its participants of constitutional rights.6 In eight Military Commissions Instructions (MCI No. 1-8), the Department of Defense (DOD) delineated procedures to guide the

A Changing Climate of Litigation

Frustrated by perceived federal reticence to act on the growing scientific evidence of climate change, state governments and environmentalists are increasingly turning their attention to the courts. Broad consensus has developed about the reality and seriousness of global warming, but neither the Bush administration nor Congress has yet responded with meaningful action. The result is a situation that is ripe for litigation. Plaintiffs have emerged, suing corporations on the grounds that their greenhouse gas emissions are causing undue harm and suing governments for failing to regulate the corporations. In addition, industry has responded with countersuits of its own.

Evidence Issues in Employment Cases

This paper was used as a guide for a continuing legal education program hosted by ALI-ABA and the Georgetown University Law Center. The author outlines the various evidence issues involved in employment cases, and draws on case law and the various rules of evidence as the basis for the presentation. This work should serve as a good review for attorneys practicing employment law.

Members’ Reception and Plenary Panel, Georgetown University Law Center

Members’ Reception and Plenary Panel, Georgetown University Law Center

Disregarding Foreign Relations Law

What deference is due the executive in foreign relations? Given the considerable constitutional authority and institutional virtues of the executive in this realm, some judicial deference is almost certainly appropriate. Indeed, courts currently defer to the executive in a large number of cases. Eric Posner and Cass Sunstein nevertheless call for a dramatic expansion in the deference that courts accord executive interpretations of law in the foreign affairs context. They maintain that courts should presumptively give Chevron-style deference to executive interpretations of foreign relations law—even if the executive interpretation is articulated only as a litigation position, and even if it violates international law. In our view, substantial deference to the executive is singularly inappropriate in a large swath of cases eligible for Chevron deference under their proposal—namely, those involving foreign relations law that operates in what we call the “executive-constraining zone.” Courts have scrutinized, and should continue to scrutinize, executive interpretations of international law that has the status of supreme federal law, that is made at least in part outside the executive, and that conditions the exercise of executive power. Failure to do so would undermine the rule of law in the foreign relations context. It would also dramatically increase the power of the President in ways that would subvert the nation’s interests, discourage the executive from developing important internal checks on presidential power, and lead to less congressional regulation of the executive. In short, we maintain that deference at some point invites disregard and that lawinterpreting authority at some point effectively constitutes lawbreaking authority. authors. Derek Jinks is Assistant Professor of Law, University of Texas School of Law. Neal Kumar Katyal is Professor of Law, Georgetown University Law Center. For helpful comments, the authors wish to thank Judy Coleman, Ryan Goodman, Larry Sager, David Sloss, Scott Sullivan, and Carlos Vazquez. Thanks also to Eric Posner and Cass Sunstein for what has proven to be a spirited and thought-provoking exchange. JINKS-KATYAL DRAFT 2_REVISED 11-16-06 4/16/2007 2:59:55 PM disregarding foreign relations law 1231 article contents

Creating Conflicts of Interest: Litigation as Interference with the Attorney–Client Relationship

American Business Law JournalVolume 43, Issue 2 p. 173-244 Creating Conflicts of Interest: Litigation as Interference with the Attorney–Client Relationship T. Leigh Anenson, T. Leigh Anenson University of Akron School of Law *LL.M., Georgetown University Law Center; J.D., University of Akron School of Law. Ms. Anenson is an Assistant Professor of Business Law at the University of Nevada, Las Vegas College of Business and is Of Counsel at the law firm of Reminger & Reminger Co., L.P.A. This article was a Holmes-Cardozo Award finalist for the best paper submitted at the Annual Conference of the Academy of Legal Studies in Business in August 2005. Thanks to Dave Redle for his comments on an earlier draft of this manuscript and to Stephanie Greene for her editorial assistance. I am also grateful to Yulia Chandrahalim for her skillful research and unfailing good humor.Search for more papers by this author T. Leigh Anenson, T. Leigh Anenson University of Akron School of Law *LL.M., Georgetown University Law Center; J.D., University of Akron School of Law. Ms. Anenson is an Assistant Professor of Business Law at the University of Nevada, Las Vegas College of Business and is Of Counsel at the law firm of Reminger & Reminger Co., L.P.A. This article was a Holmes-Cardozo Award finalist for the best paper submitted at the Annual Conference of the Academy of Legal Studies in Business in August 2005. Thanks to Dave Redle for his comments on an earlier draft of this manuscript and to Stephanie Greene for her editorial assistance. I am also grateful to Yulia Chandrahalim for her skillful research and unfailing good humor.Search for more papers by this author First published: 23 May 2006 https://doi.org/10.1111/j.1744-1714.2006.00017.xCitations: 3 Read the full textAboutPDF ToolsExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Citing Literature Volume43, Issue2June 2006Pages 173-244 RelatedInformation

Restricting the Legislative Power to Tax in the United States

Journal Article Restricting the Legislative Power to Tax in the United States Get access Stephen W. Mazza, Stephen W. Mazza *Stephen W. Mazza, Professor of Law, University of Kansas School of Law. B.S., Samford University; J.D., University of Alabama; LL.M. Taxation, New York University. He would like to thank Kelli Wikoff (K.U. 2006) for valuable research assistance Search for other works by this author on: Oxford Academic Google Scholar Tracy A. Kaye Tracy A. Kaye **Tracy A. Kaye, Professor of Law, Seton Hall University School of Law. B.S., University of Illinois; M.S.T., DePaul University; J.D., Georgetown University Law Center. She gratefully acknowledges the research assistance of Carolyn Conway and Andrew Farrelly Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, Volume 54, Issue suppl_1, Fall 2006, Pages 641–670, https://doi.org/10.1093/ajcl/54.suppl1.641 Published: 01 October 2006

The Alien Tort Claims Act of 1789: Globalization of Business Requires Globalization of Law and Ethics

Global corporations, operating in foreign host countries with dissimilar cultures and laws, political institutions and ideologies, commercial practices and customs and levels of economic development, are confronted with different ethical standards with which they gauge their conduct and ascertain their moral responsibilities.2 It is tempting in such cir cumstances to adopt the theory of ethical relativism ? under which something can be judged to be morally good if, in one particular society, it complies with the prevailing moral standards, but wrong if it does not and to declare that the proposed practice or activity is moraUy acceptable, because is conforms with the moral standards or practices ofthe particular society. It may be equaUy tempting to insulate or disassociate the company from questionable conduct of its host country partner, so that repercussions are muted or avoided. A decision of a three-judge panel of the Ninth Circuit Court of Appeals vitiates both tactics and potentiaUy exposes U.S. multinational corporations to liability for human rights violations committed by foreign governments in the course of under taking economic development projects. In Doe I v. Unocal Corp., the panel ruled that the residents of Myanmar, aUeging human rights violations forced labor, murder, rape and torture ? perpe trated by the Myanmar miUtary in developing a gas pipeline, were permitted to proceed with their action against Unocal Corporation, the Myanmar government's commercial partner in the pipeline development project, under the AUen Tort Claims Act. The Alien Tort Claims Act permits aliens to pursue a course of action in tort in the federal court for specific and egregious violations of human rights. Indeed, the Unocal decision by the panel of the Ninth Circuit Court of Appeals has caught the attention of major corporations, such as ExxonMo bil, Drummond, Occidental Petroleum, IBM, Citi bank and Coca-Cola that may face liability for the misconduct of third-world governments, and should be examined closely by aU multinational corporations that undertake economic development projects for repressive foreign governments in third world countries if they do not want "to face torture survivors in court a pubUcity nightmare."8 Hafled as a landmark case marking "The first time any court Edward f. Schoen is Dean of the Rohrer College of Business of Rowan University in New Jersey. He earned his B.S. degree in Accounting from La Salle University and his f.D. degree from Georgetown University Law Center. Dean Schoen's principal research interests are in the areas of First Amend ment protection of commercial speech, business ethics, and assessment of learning outcomes. Margaret M. Hogan holds the McNemey-Hanson Chair in Ethics at the University of Portland in Oregon. She is the Executive Director of the Garaventa Center for Catholic Intellectual Life and American Culture. She received her doctorate from Marquette University. Professor Hogan's principal research interests are in applied ethics, especially medical ethics and business ethics, and in natural law theory. Joseph S. Falchek is chair of the Department of Business and Management at King's College in Pennsylvania. He received his Masters Degree form Lehigh University and his f.D. degree from Temple University. Professor Falchek's principal interests are the intersection of law and management, business ethics, and constitutional law.

Restoring Trust in America's Business Institutions

These are the edited proceedings of a conference convened in November 2003 by the Sloan Project on Business Institutions at the Georgetown University Law Center to discuss the post-Enron crisis of confidence in the corporate governance system. The participants discuss a number of topics, including changes in the role of the board of directors, accounting system reform, recent amendments of the federal securities laws, executive compensation, and the governance functions of market intermediaries, institutional investors, and corporate counsel. Academic participants include Dean Joel Seligman and Professors John C. Coffee, James Cox, Lynne Dallas, Charles Elson, Stuart Gillan, Robert Haft, Steven Kaplan, Neal Katyal, Lynn Stout, and Shyam Sunder. Participants from the accounting profession include G. Michael Crooch, George Diacont, and Dennis Nally. Participants from the business world include John Bogle, Ed Kwalwasser, Claudine B. Malone, Roger Raber, Robert Rosenberg, Charles Rossotti, and Thomas Selman. Participants from the legal profession and the judiciary include Charles Davidow, Eric Dinallo, Damon Silvers, Paul Saunders, Vice-Chancellor Leo Strine, John Villa, and Peter J. Wallison.

Altmann v. Austria and the Retroactivity of the Foreign Sovereign Immunities Act

1Professor of Law, Georgetown University Law Center. I am grateful to Marc Marinnacio and Mohsen Manesh for research assistance.

In memory of Robert Emil Hudec (1934–2003)

Professor Robert Emil Hudec (Fletcher School, Tufts University) passed away last week. He belonged, together with Professor John H. Jackson of Georgetown University Law Center and Professor Ernst-Ulrich Petersmann of University of Geneva, Faculty of Law, to the first generation of legal scholars who founded and developed the branch of international law known as international economic law, centering on the study of world trade rules negotiated in the World Trade Organization.

Website Survey 2004

1Assistant International ∧ Foreign Law Librarian at the John Wolff International ∧ Comparative Law Library at Georgetown University Law Center