Georgetown University Law Center

About: Georgetown University Law Center is a based out in . It is known for research contribution in the topics: Supreme court & Public health. The organization has 585 authors who have published 2488 publications receiving 36650 citations. The organization is also known as: Georgetown Law & GULC.

Pedagogy in Translation: Teaching Animal Law in China

Abstract: This essay reflects on the didactic process of teaching a course on Animal Law in Mainland China and surveys the opportunity for Chinese and other Asian legal students and scholars to contribute to this emerging academic field. The author first clarifies his pedagogical ambitions in crafting a curriculum centred on a comparative approach to animal law. He notes the variable successes of his teaching strategies, offering techniques to better contextualize this at times foreign material for international students. The author then considers the unique "structural" characteristics of animal law that make it an empowering vehicle in legal education. For example, its signature ability to connect trans-legal theoretical frameworks to new, unanswered questions and its inherent practical connection to the individual’s development as an actualized citizen. In the final section of his essay, the author highlights areas of substantive animal law that could benefit from revision by non-Western thinkers. Areas particularly rich in content include cultural patterns in the discourse and rhetoric of animal law, definitional problems pre-conditional to animal legal theory and issues in transnational animal law. This essay functions at the intersection of international education, legal pedagogy and animal law but also considers trans-legal issues of wider import.

Ex Post Modernism: How the First Amendment Framed Nonrepresentational Art

Abstract: Nonrepresentational art repeatedly surfaces in legal discourse as an example of highly valued First Amendment speech. It is also systematically described in constitutionally valueless terms: nonlinguistic, noncognitive, and apolitical. Why does law talk about nonrepresentational art at all, much less treat it as a constitutional precept? What are the implications for conceptualizing artistic expression as free speech? This article contends that the source of nonrepresentational art’s presumptive First Amendment value is the same source of its utter lack thereof: modernism. Specifically, a symbolic alliance between abstraction and freedom of expression was forged in the mid-twentieth century, informed by social and political influences that have now disappeared. What remains in its wake is a vague artifactual referent, historically untethered and conceptually reduced. This article reveals modernism’s invisible yet surprisingly tenacious hold on the relevant legal discourse, demonstrating how an embrace that appears both expansive and central to artistic expression is actually narrow and anachronistic. It obscures the big picture. To realign First Amendment theory and jurisprudence with artistic expression, the law should acknowledge the changes wrought by postmodernism.

The Transposition of Power: Law, Lawyers and Social Movements

Abstract: Various groups of people have been the victims of oppression throughout time and across national borders and cultures. Many forms of oppression continue to exist all over the world today, including in the United States. I have been particularly concerned with oppression on the basis of race. The responses to oppression have taken many forms, ranging from passivity and acquiescence to rebellion. Much of the response, however, takes place between these extremes, often in the form of ongoing collective action by more or less organized groups. Broadly speaking, these actions have come to be known as social movements, and they have been the subject of a great deal of scholarly examination. Through this scholarship, we have learned much about the nature of social movements, who joins them, and how they have been able to succeed. We have not learned as much about how the law and lawyers affect such movements and how, if at all, law and lawyers contribute to their success. I would like to examine these issues in an effort to elucidate the relationship between law, lawyers, and social movements and to better understand how lawyers can be helpful (or detrimental) to such movements. My own interest in this field is somewhat more narrowly confined. For example, I have been skeptical of movements and lawyers who set as their goal the establishment of new or expansion of existing legal rights. New rights do not seem to have much social or political impact on subordinated groups, unless the holders of those rights have the power to enforce them. As an alternative to the rights discourse, I have been interested in the acquisition and utilization of power by marginalized and oppressed groups in the United States. Even more narrowly, my research has focused primarily on issues affecting the urban poor. Historically, there has been a significant intersection connecting social movements to urban poverty. The Civil Rights Movement, the Welfare Rights Movement, the Affordable and Fair Housing Movements, the Affordable Health Care Movement and the Black Lives Matter Movement among others, have had significant impetus from and impact on the urban poor. Many of these movements succeeded in creating new rights for various groups. Many were successful in changing, to some extent individual lives and social environments. Nevertheless, we see today a society where wealth and well-being are even more polarized, often on the basis of race, and groups of people who remain subject to the same forms of intergenerational oppression as those faced by their long departed ancestors. These groups continue to exist on the wrong side of what I have previously called the “power deficit.” If this assertion is correct the dedicated and well-intentioned efforts of lawyers have had only marginal results. Thus, I take the position, as do several others, that lawyers who work with oppressed groups must assist them in gaining and using power rather than pursuing rights as an end in themselves. That being said, there is little consensus among social scientists, philosophers, and lawyers on the meaning of power and virtually no legal literature on how it can be obtained and used (although a fair amount exists on the need to obtain and utilize it). “Of all the concepts used by sociologists, few are the source of more confusion or misunderstanding than power.” My intention in this paper is to dispel some of that confusion and to attempt to illuminate some issues concerning power in relation and as a response to oppression.

Redesigning Education Finance: How Student Loans Outgrew the “Debt” Paradigm

Abstract: This Article argues that the student loan crisis is due not to the scale of student loan debt, but to the federal education finance system’s failure to utilize its existing mechanisms for progressive, income-based payments and debt cancellation. These mechanisms can make investment in higher education affordable to both individuals and the government, but they have not been fully utilized because of the mismatch between the current system’s economic reality and its legal, financial, and institutional apparatus. The current economic structure of federal student loans does not resemble a true credit product, but a government grant program coupled with a progressive, income-based tax on recipients. For example, federal direct loans do not require the full repayment of all principal and accrued interest. Instead, borrowers have the contractual right to satisfy their obligations by paying only a percentage of their income for a fixed period of time. Debt forgiveness is contractually baked into the federal student loan product. The education finance system, however, still relies on a legal, financial, and institutional apparatus based on “debt,” developed under the pre-2010 system, which was based on private loans backed by federal government guarantees, rather than the post-2010 system of direct federal lending with income-driven repayment. The frictions between the legacy legal, financial, and institutional “debt” apparatus and the economic reality of subsidized finance; progressive, income-driven repayment; and debt forgiveness are the source of nearly all of the problems in education finance, including high levels of default, abusive servicing, and even the very idea of a student debt crisis. It’s time to call federal student loans what they really are—a tuition grant plus an income surtax on students. To this end, this Article proposes a set of targeted reforms: automatic income-based payments using a graduated rate schedule; collection through tax withholding and return filing; and replacement of interest accrual with an inflation adjustment. Moving toward a grant-and-tax framework would facilitate substantial reforms to the financing of higher education and help ensure that instead of being a debt trap, federal financing facilitates affordable higher education.

Sacred Trust or Sacred Right

Abstract: It is commonly assumed that parents have long enjoyed a fundamental legal right to control the upbringing of their children, but this reading of the law is sorely incomplete. What is deeply rooted in our legal traditions is the idea that the state entrusts parents with custody of the child, and the concomitant rule that the state does so only as long as parents meet their legal duty to take proper care of the child. This book looks at four related areas of the law: parental custody, state regulation of education, religion and parental rights, and nonparental third party rights. In each, it is argued that, historically, the authority of the parent has been treated as a sacred trust, a delegation of state power made on the presumption that it will be employed to promote the eventual enfranchisement of the child; that the emergence of a rights orientation has threatened to uncouple the traditional linkage of rights and responsibilities, subordinating the best interests of the child and the legitimate needs of the state to parental preferences; and that a renewed reliance on the trust model of parent-child relations would better serve both the developing personhood of the child and the civil society to which he or she belongs. In each area of the law, we face the same historical reality. It is the rights orientation that breaks with deeply rooted legal traditions and cultural values, rejecting time-honored trust principles of family law meant to protect both private and public interests.The law of parent-child relations has long embodied a belief that education (a “leading away from”) is the path away from childhood and toward intellectual and moral enfranchisement. Unless children are to live under “a perpetual childhood of prescription,” unless we are to deny them the pursuit of happiness, they must be exposed to the dust and heat of the race, intellectually, morally, spiritually. It is no wonder then that we would want to transform the sacred trust of parenthood into a sacred right. But our legal traditions teach that parenthood is first and foremost not a sacred right but a sacred responsibility, a fiduciary duty owed equally to the child and the state. The Constitution’s guarantee of personal freedoms is meaningful only if we, as parents, accept the responsibilities from which parental authority arises, and the constitutional strength of parenting privileges should depend on our willingness to do so.If by “fundamental” we designate rights with a deep historical pedigree, the right to parent free from state interference cannot be numbered among them. The American legal tradition is one that treated paternal absolutism and its rights foundation as barbaric. This is nowhere better seen than in child custody cases, where courts challenged, first, paternal authority and, then, parental control of the child generally. Custodial authority, it was maintained by jurists and legal theoreticians alike, “is not the natural right of the parents; it emanates from the State, and is an exercise of police power.” Far from being absolute, the right to parent was not even the courts’ primary consideration. “The true view,” stated one court, “is that the rights of the child are alone to be considered.” The prevailing legal currents, driven by the equitable force of trust principles, swept away claims of right advanced to support parental power. The right to parent as a matter of constitutional law is especially tenuous. The Supreme Court has on occasion echoed the popular assumption that the right of parents to make decisions concerning the care, custody, and nurture of their children is a fundamental one, deeply rooted in legal tradition and honored by the work of the Court. But no Supreme Court holding — including those of the seminal parenting cases Meyer and Pierce, and modern variants like Yoder and Troxel — supports this claim. If the rigor of the Court with regard to the regulation of parental authority has varied, its scrutiny has never been strict. In fact, more than once the Court has declined the opportunity to adopt this position. As Justice Antonin Scalia has observed, there is little decisional support for the notion that the right to parent is a “substantive constitutional right” at all, let alone a fundamental one. To say that a parental rights orientation is not deeply rooted in our traditions is not to declare that a particular policy decision is right or wrong. It is simply to say that it is a question of policy whether and how the state should regulate parent-child relations. If we understand that, as a descriptive matter, the right to parent is at odds with a tradition of shared responsibility for the welfare of the child, we might be more willing to consider how old equitable principles can lead to new ways of accommodating the interests of parent, child, and state. By giving parents the right to bring up their children as they see fit, we forestall debate on such contentious questions as educational regulation, religious mentoring, and third-party visitation. We ought not to take these questions out of the public domain by keeping the home under constitutional lock and key.