Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 30 of 66
Full-Text Articles in Law
Anti-Press Bias: A Response To Andersen Jones And West's Presuming Trustworthiness, Erin C. Carroll
Anti-Press Bias: A Response To Andersen Jones And West's Presuming Trustworthiness, Erin C. Carroll
Georgetown Law Faculty Publications and Other Works
Professors RonNell Andersen Jones and Sonja R. West’s Presuming Trustworthiness is a deeply depressing read. That is what makes it so good. The article is a clear-eyed, data-driven approach to assessing just how endangered the legal status of the free press is. Given the universality of the agreement that a free press is central to democracy, Andersen Jones and West’s message is vital. Presuming Trustworthiness should raise alarms.
In response, I hope this essay can serve as a bullhorn. I want to amplify what Andersen Jones and West’s research and data bear out. Not only has the Supreme Court ceased …
The Common Law And First Amendment Qualified Right Of Public Access To Foreign Intelligence Law, Laura K. Donohue
The Common Law And First Amendment Qualified Right Of Public Access To Foreign Intelligence Law, Laura K. Donohue
Georgetown Law Faculty Publications and Other Works
For millennia, public access to the law has been the hallmark of rule of law. To be legally and morally binding, rules must be promulgated. Citizens’ knowledge of the law, in turn, serves as the lynchpin for democratic governance. In common law countries, it is more than just the statutory provisions and their execution that matters: how courts rule, and the reasoning behind their determination, proves central. Accordingly, in the United States, both common law and the right to petition incorporated in the First Amendment have long enshrined a presumed right of public right of access to Article III opinions …
Confrontation, The Legacy Of Crawford, And Important Unanswered Questions, Paul F. Rothstein, Ronald J. Coleman
Confrontation, The Legacy Of Crawford, And Important Unanswered Questions, Paul F. Rothstein, Ronald J. Coleman
Georgetown Law Faculty Publications and Other Works
This is a short piece for the University of Michigan Journal of Law Reform as part of its 2024 Symposium on “Crawford at 20: Reforming the Confrontation Clause.” The piece's purpose is to highlight certain important questions left unanswered by Crawford v. Washington and subsequent confrontation cases.
House Rules: Congress And The Attorney-Client Privilege, David Rapallo
House Rules: Congress And The Attorney-Client Privilege, David Rapallo
Georgetown Law Faculty Publications and Other Works
In 2020, the Supreme Court rendered a landmark decision in Trump v. Mazars establishing four factors for determining the validity of congressional subpoenas for a sitting president’s personal papers. In an unanticipated move, Chief Justice John Roberts added that recipients of congressional subpoenas have “long been understood” to retain not only constitutional privileges, but common law privileges developed by judges, including the attorney-client privilege. This was particularly surprising since Trump was not relying on the attorney-client privilege and the Court had never treated this common law privilege as overriding Congress’s Article I power to set its own procedures for conducting …
Confrontation's Multi-Analyst Problem, Paul F. Rothstein, Ronald J. Coleman
Confrontation's Multi-Analyst Problem, Paul F. Rothstein, Ronald J. Coleman
Georgetown Law Faculty Publications and Other Works
The Confrontation Clause in the Sixth Amendment affords the “accused” in “criminal prosecutions” the right “to be confronted with the witnesses against” them. A particular challenge for courts over at least the last decade-plus has been the degree to which the Confrontation Clause applies to forensic reports, such as those presenting the results of a DNA, toxicology, or other CSI-type analysis. Should use of forensic reports entitle criminal defendants to confront purportedly “objective” analysts from the lab producing the report? If so, which analyst or analysts? For forensic processes that require multiple analysts, should the prosecution be required to produce …
Unwrapping The Box The Supreme Court Justices Have Gotten Themselves Into: Internal Confrontations Over Confronting The Confrontation Clause, Paul F. Rothstein
Unwrapping The Box The Supreme Court Justices Have Gotten Themselves Into: Internal Confrontations Over Confronting The Confrontation Clause, Paul F. Rothstein
Georgetown Law Faculty Publications and Other Works
Williams v. Illinois, handed down in 2012, is the latest in a new and revolutionary line of U.S. Supreme Court cases beginning with the 2004 decision of Crawford v. Washington which radically altered the Court's former approach to the Constitutional Confrontation Clause. That clause generally requires persons who make written or oral statements outside the trial, that may constitute evidence against a criminal defendant, to take the witness stand for cross-examination rather than those statements being presented at the trial only by the writing or by another person who heard the statement.
Previous to Crawford, under Ohio v. …
Disappearing Claims And The Erosion Of Substantive Law, J. Maria Glover
Disappearing Claims And The Erosion Of Substantive Law, J. Maria Glover
Georgetown Law Faculty Publications and Other Works
The Supreme Court’s arbitration jurisprudence from the last five years represents the culmination of a three-decade-long expansion of the use of private arbitration as an alternative to court adjudication in the resolution of disputes of virtually every type of justiciable claim. Because privatizing disputes that would otherwise be public may well erode public confidence in public institutions and the judicial process, many observers have linked this decades-long privatization of dispute resolution to an erosion of the public realm. Here, I argue that the Court’s recent arbitration jurisprudence undermines the substantive law itself.
While this shift from dispute resolution in courts—the …
A Deer In Headlights: The Supreme Court, Lgbt Rights, And Equal Protection, Nan D. Hunter
A Deer In Headlights: The Supreme Court, Lgbt Rights, And Equal Protection, Nan D. Hunter
Georgetown Law Faculty Publications and Other Works
In this essay, I argue that the problems with how courts apply Equal Protection principles to classifications not already recognized as suspect reach beyond the most immediate example of sexual orientation. Three structural weaknesses drive the juridical reluctance to bring coherence to this body of law: two doctrinal and one theoretical. The first doctrinal problem is that the socio-political assumptions that the 1938 Supreme Court relied on in United States v. Carolene Products, Inc. to justify strict scrutiny for “discrete and insular minorities” have lost their validity. In part because of Roe v. Wade-induced PTSD, the courts have …
The Abiding Exceptionalism Of Foreign Relations Doctrine, Carlos Manuel Vázquez
The Abiding Exceptionalism Of Foreign Relations Doctrine, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
In their article The Normalization of Foreign Relations Law, Professors Ganesh Sitaraman and Ingrid Wuerth argue that “[foreign affairs] exceptionalism . . . is now exceptional,” and that this is a good thing. I agree with much of the authors’ normative argument for “normalization” of foreign affairs doctrine (as they define the term). But the authors overstate the extent to which such normalization has already occurred. There have indeed been some recent Supreme Court decisions that seem to lack the exceptional deference to the Executive that had characterized judicial decisionmaking in the foreign affairs area in previous years. But foreign …
Two Excursions Into Current U.S. Supreme Court Opinion-Writing, Paul F. Rothstein
Two Excursions Into Current U.S. Supreme Court Opinion-Writing, Paul F. Rothstein
Georgetown Law Faculty Publications and Other Works
In the last weeks in June, 2015, as the present term of the U.S. Supreme Court drew to a close, many controversial and important decisions were handed down by the Court. The substance of the decisions has been written about extensively. Two of the decisions in particular, though, caught my eye as a teacher of legal techniques, not for the importance of the subject of the particular decision, but for what they may illustrate in a teachable fashion about at least some opinion writing. The two cases are Ohio v. Clark (June 18, 2015) interpreting the Confrontation Clause of the …
Overrides: The Super-Study, Victoria Nourse
Overrides: The Super-Study, Victoria Nourse
Georgetown Law Faculty Publications and Other Works
Overrides should be of interest to a far larger group of scholars than statutory interpretation enthusiasts. We have, in overrides, open inter branch encounters between Congress and the Courts far more typically found in the shadows of everyday Washington politics. Interestingly, Christiansen and Eskridge posit the court-congress relationship as more triadic than dyadic given the role played by agencies. One of their more interesting conclusions is that agencie are the big winners in the override game: agencies were present in seventy percent of the override cases and the agency view prevailed with Congress and against the Supreme Court in three-quarters …
Bond V. United States: Concurring In The Judgment, Nicholas Quinn Rosenkranz
Bond V. United States: Concurring In The Judgment, Nicholas Quinn Rosenkranz
Georgetown Law Faculty Publications and Other Works
Bond v. United States presented the deep constitutional question of whether a treaty can increase the legislative power of Congress. Unfortunately, a majority of the Court managed to sidestep the constitutional issue by dodgy statutory interpretation. But the other three Justices—Scalia, Thomas, and Alito—all wrote important concurrences in the judgment, grappling with the constitutional issues presented. In particular, Justice Scalia’s opinion (joined by Justice Thomas), is a masterpiece, eloquently demonstrating that Missouri v. Holland is wrong and should be overruled: a treaty cannot increase the legislative power of Congress.
Decision Theory And Babbitt V. Sweet Home: Skepticism About Norms, Discretion, And The Virtues Of Purposivism, Victoria Nourse
Decision Theory And Babbitt V. Sweet Home: Skepticism About Norms, Discretion, And The Virtues Of Purposivism, Victoria Nourse
Georgetown Law Faculty Publications and Other Works
In this writing, the author applies a “decision theory” of statutory interpretation, elaborated recently in the Yale Law Journal, to Professor William Eskridge’s illustrative case, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. In the course of this application, she takes issue with the conventional wisdom that purposivism, as a method of statutory interpretation, is inevitably a more virtuous model of statutory interpretation. First, the author questions whether we have a clear enough jurisprudential picture both of judicial discretion and legal as opposed to political normativity. Second, she argues that, under decision theory, Sweet Home is …
State Law, The Westfall Act, And The Nature Of The Bivens Question, Carlos Manuel Vázquez, Stephen I. Vladeck
State Law, The Westfall Act, And The Nature Of The Bivens Question, Carlos Manuel Vázquez, Stephen I. Vladeck
Georgetown Law Faculty Publications and Other Works
In a number of recent cases touching to varying degrees on national security, different courts of appeals have applied a strong presumption against recognition of a Bivens cause of action. In each of these cases, the courts’ approach was based on the belief that the creation of a cause of action is a legislative function and that the courts would be usurping Congress’s role if they recognized a Bivens action without legislative authorization. Thus, faced with a scenario where they believed that the remedial possibilities were either "Bivens or nothing," these courts of appeals chose nothing.
The concerns that …
Bond V. United States: Can The President Increase Congress's Legislative Power By Entering Into A Treaty?, Nicholas Quinn Rosenkranz
Bond V. United States: Can The President Increase Congress's Legislative Power By Entering Into A Treaty?, Nicholas Quinn Rosenkranz
Georgetown Law Faculty Publications and Other Works
The proposition that treaties can increase the power of Congress is inconsistent with the text of the Treaty Clause, the Necessary and Proper Clause, and the Tenth Amendment. It is inconsistent with the fundamental structural principle that "[t]he powers of the legislature are defined, and limited."S It implies, insidiously, that that the President and the Senate can increase their own power by treaty. And it implies, bizarrely, that the President alone--or a foreign government alone--can decrease Congress's power and render federal statutes unconstitutional. Finally, it creates a doubly perverse incentive: an incentive to enter into foreign entanglements simply to increase …
The Gravitational Force Of Originalism, Randy E. Barnett
The Gravitational Force Of Originalism, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
In part I of this essay, prepared for the Fordham conference on “The New Originalism and Constitutional Law,” I describe four aspects of the New Originalism: (1) The New Originalism is about identifying the original public meaning of the Constitution rather than the original framers intent; (2) The interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry; (3) But there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed; (4) Distinguishing between the activities of interpretation and construction identifies …
Foreword: Academic Influence On The Court, Neal K. Katyal
Foreword: Academic Influence On The Court, Neal K. Katyal
Georgetown Law Faculty Publications and Other Works
The months leading up to the Supreme Court’s blockbuster decision on the Affordable Care Act (ACA) were characterized by a prodigious amount of media coverage that purported to analyze how the legal challenge to Obamacare went mainstream. The nation’s major newspapers each had a prominent story describing how conservative academics, led by Professor Randy Barnett, had a long-term strategy to make the case appear credible. In the first weeks after the ACA’s passage, the storyline went, the lawsuit’s prospects of success were thought to be virtually nil. Professor (and former Solicitor General) Charles Fried stated that he would “eat a …
Justice Roberts’ America, Robin West
Justice Roberts’ America, Robin West
Georgetown Law Faculty Publications and Other Works
Less than a week after the Roberts Court issued its decision in National Federation of Independent Business v Sebelius, Jeffrey Toobin, writing in The New Yorker, compared the first part of Chief Justice John Roberts's opinion, in which he found that the Commerce Clause did not authorize Congress to enact the "individual mandate" section of the Affordable Care Act (ACA) that requires all individuals to buy health insurance, with an Ayn Rand screed, noting that the pivotal sections of the argument were long on libertarian rhetoric but short on citations of authority. Roberts held (although "held" might be …
Advisory Adjudication, Girardeau A. Spann
Advisory Adjudication, Girardeau A. Spann
Georgetown Law Faculty Publications and Other Works
The Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court's decision, therefore, has the paradoxical effect of both honoring …
Fisher V. Grutter, Girardeau A. Spann
Fisher V. Grutter, Girardeau A. Spann
Georgetown Law Faculty Publications and Other Works
There is no reason for the Supreme Court to have granted certiorari in Fisher v. University of Texas at Austin. Unless, of course, the Court plans to overrule Grutter v. Bollinger—the case on which the Texas affirmative action plan at issue in Fisher was based. If that is its plan, the Court can invalidate the Texas program on some narrow ground that masks the magnitude of what it is doing. Or it can explicitly overrule Grutter—a case that no longer commands majority support on a Supreme Court whose politics of affirmative action has now been refashioned by …
The Disdain Campaign, Randy E. Barnett
The Disdain Campaign, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
A response to Pamela S. Karlan, The Supreme Court 2011 Term Forward: Democracy and Disdain, 126 Harv. L. Rev. 1 (2012).
In her Foreword, Professor Pamela Karlan offers a quite remarkable critique of the conservative Justices on the Supreme Court. She faults them not so much for the doctrines they purport to follow, or outcomes they reach, but for the attitude they allegedly manifest toward Congress and the people. “My focus here is not so much on the content of the doctrine but on the character of the analysis.” She describes Chief Justice Roberts’s opinion of the Court as …
Whatever, Girardeau A. Spann
Whatever, Girardeau A. Spann
Georgetown Law Faculty Publications and Other Works
The author cannot say that she disagrees with any of the analytical observations made by her co-contributors to this roundtable discussion of Fisher v. University of Texas at Austin. They all agree that the Supreme Court plans to use the case as an occasion to do something noteworthy to the constitutionality of affirmative action. And they all agree that the Court’s actions are likely to provide more comfort to opponents than to proponents of racial diversity. Their views diverge only with respect to doctrinal details about what the Court could or should do. But in translating the racial tensions …
Affordable Care Act Litigation: The Supreme Court And The Future Of Health Care Reform, Lawrence O. Gostin, Kelli K. Garcia
Affordable Care Act Litigation: The Supreme Court And The Future Of Health Care Reform, Lawrence O. Gostin, Kelli K. Garcia
Georgetown Law Faculty Publications and Other Works
In Florida v. HHS, a lawsuit brought on behalf of 26 states challenging the constitutionality of the Patient Protection and Affordable Care Act (ACA), the Supreme Court will determine the future direction of health care reform in the United States. During the unprecedented 5-1/2 hours of oral arguments, the Court will hear 4 issues: the individual purchase mandate, severability, the Medicaid expansion and the Anti-Injunction Act.
The states challenging the ACA maintain that the purchase mandate uniquely penalizes individuals for failing to purchase insurance. Uninsured individuals, however, rarely do nothing. Instead, they self-insure, rely on family, and cost-shift to …
The First Amendment’S Borders: The Place Of Holder V. Humanitarian Law Project In First Amendment Doctrine, David Cole
The First Amendment’S Borders: The Place Of Holder V. Humanitarian Law Project In First Amendment Doctrine, David Cole
Georgetown Law Faculty Publications and Other Works
In Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian Law Project …
Buck V. Bell: A Constitutional Tragedy From A Lost World, Victoria Nourse
Buck V. Bell: A Constitutional Tragedy From A Lost World, Victoria Nourse
Georgetown Law Faculty Publications and Other Works
Some constitutional tragedies are well known: Plessy v. Ferguson and Korematsu v. United States are taught to every first-year law student. Buck v. Bell is not. Decided in 1927 by the Taft Court, the case is known for its shocking remedy--sterilization--and Justice Holmes's dramatic rhetoric: "Three generations of imbeciles are enough." A mere five paragraphs long, Buck v. Bell could represent the highest ratio of injustice per word ever signed on to by eight Supreme Court Justices, progressive and conservative alike.
Buck v. Bell is not a tragedy as some others might define tragedy: it is not a well-known opinion, …
Skilling: More Blind Monks Examining The Elephant, Julie R. O'Sullivan
Skilling: More Blind Monks Examining The Elephant, Julie R. O'Sullivan
Georgetown Law Faculty Publications and Other Works
Most academics and practitioners with whom the author has discussed the result in Skilling v. United States believe that it is a sensible decision. That is, the Supreme Court did the best it could to limit the reach of 18 U.S.C. § 1346, which all nine justices apparently believed—correctly—was, on its face, unconstitutionally vague. Congress responded quickly and with little consideration with the supremely under-defined § 1346. In the over twenty years since the statute's enactment, the Courts of Appeals have been unable to come up with any unified limiting principles to contain its reach. The Skilling Court, evidently reluctant …
Grabbing The Bullcoming By The Horns: How The Supreme Court Could Have Used Bullcoming V. New Mexico To Clarify Confrontation Clause Requirements For Csi-Type Reports, Paul F. Rothstein, Ronald J. Coleman
Grabbing The Bullcoming By The Horns: How The Supreme Court Could Have Used Bullcoming V. New Mexico To Clarify Confrontation Clause Requirements For Csi-Type Reports, Paul F. Rothstein, Ronald J. Coleman
Georgetown Law Faculty Publications and Other Works
In the pilot episode of the hit television show CSI, Grissom says to Warrick: "Concentrate on what cannot lie. The evidence." Although Grissom is a beloved figure in U.S. popular culture, the U.S. is currently unwilling to accept that evidence never lies. In stark contrast to Grissom's statement, the common law has a long history of allowing criminal defendants to cross-examine and question witnesses providing evidence against them. The right to confront an accusatory witness is reflected in the historical legal documents of Great Britain, in Shakespearean writing, and even in the Bible. In the United States, the right to …
So Much For The Commerce Clause Challenge To Individual Mandate Being "Frivolous", Randy E. Barnett
So Much For The Commerce Clause Challenge To Individual Mandate Being "Frivolous", Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
Remember when the Commerce Clause challenge to the individual insurance mandate was dismissed by all serious and knowledgeable constitutional law professors and Nancy Pelosi as "frivolous"? Well, as Jonathan notes, the administration is now apparently telling the New York Times that the individual insurance "requirement" and "penalty" is really an exercise of the Tax Power of Congress.
Disparate Impact, Girardeau A. Spann
Disparate Impact, Girardeau A. Spann
Georgetown Law Faculty Publications and Other Works
There has been a lot of talk about post-racialism since the 2008 election of Barack Obama as the first black President of the United States. Some have argued that the Obama election illustrates the evolution of the United States from its unfortunate racist past to a more admirable post-racial present in which the problem of invidious racial discrimination has largely been overcome. Others have argued that the Obama election illustrates only that an extraordinarily gifted, mixed-race, multiple Ivy League graduate, Harvard Law Review President was able to overcome the persistent discriminatory racial practices that continue to disadvantage the bulk of …
Postracial Discrimination, Girardeau A. Spann
Postracial Discrimination, Girardeau A. Spann
Georgetown Law Faculty Publications and Other Works
Claims of racial injustice can be challenged by arguing that the culture makes it possible for minorities to compete with whites on a level playing field. Under this reasoning, racial disparities that continue to inhere in the allocation of societal benefits and burdens must be caused by the attributes of individual minority group members themselves, rather than by any invidious consideration of their race. The election of President Obama now gives this argument more apparent plausibility than it has had in the past. Indeed, if one were inclined to preserve the nation’s tradition of privileging white interests over the interests …