Law Commons^™

Converse-Osborn: State Sovereign Immunity, Standing, And The Dog-Wagging Effect Of Article Iii, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

“[T]he legislative, executive, and judicial powers, of every well-constructed government, are co-extensive with each other . . . [T]he judicial department may receive from the Legislature the power of construing any . . . law [which the Legislature may constitutionally make].” Chief Justice Marshall relied on this axiom in Osborn v. Bank of the United States to stress the breadth of the federal judicial power: The federal courts must have the potential power to adjudicate any claim based on any law Congress has the power to enact. In recent years, however, the axiom has sometimes operated in the opposite direction: …

Duality In Contract And Tort, Tim Friehe, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

We study situations in which a single investment serves the dual role of increasing the expected value of a contract (a reliance investment) and reducing the expected harm of a post-performance accident (a care investment). We show that failing to account for the duality of the investment leads to inefficient damages for breach of contract and inefficient standards for due care in tort. Conversely, we show that accounting for the duality yields contract damage measures and tort liability rules that provide correct incentives for efficient breach and reliance in contract and for efficient care in tort.

Some Thoughts On Reply Briefs, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

This essay provides suggestions for writing reply briefs. It begins with a quick review of the well-understood ways in which an appellate advocate should acquire and review the information needed to write a comprehensive and powerful reply brief.

The essay then turns to the more difficult challenges of crafting the brief, making three key points:

First, don't just go tit-for-tat in responding to one point after another advanced by the appellee. That can be boring and ponderous and often requires you to argue the case on your opponent's terms. Rather, re-frame the case on your client's terms, taking the case …

Differentiating Strict Products Liability’S Cost-Benefit Analysis From Negligence, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

Dangerous products may give rise to colossal liability for commercial actors. Indeed, in 2021, the U.S. Supreme Court denied certiorari in Johnson & Johnson v. Ingham, permitting a more than two billion dollar products liability damages award to stand. In his dissenting opinion in another recent products liability case, Air and Liquid Systems Corp. v. DeVries, Justice Gorsuch declared that “[t]ort law is supposed to be about aligning liability with responsibility.” However, in the products liability context, there have been ongoing debates concerning how best to set legal rules and standards on tort liability. Are general principles of …

The Constitution As A Source Of Remedial Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Equity’s Constitutional Source, Owen W. Gallogly argues that Article III is the source of a constitutional default rule for equitable remedies—specifically, that Article III’s vesting of the “judicial Power” “in Equity” empowers federal courts to afford the remedies traditionally afforded by the English Court of Chancery at the time of the Founding, and to develop such remedies in an incremental fashion. This Response questions the current plausibility of locating such a default rule in Article III, since remedies having their source in Article III would be available in federal but not state courts and would apply to state-law …

The Shape Of Citizenship: Extraordinary Common Meaning And Constitutional Legitimacy, David N. Mcneill, Emily Tucker

CPT Papers & Reports

The United States, it is widely believed, is at a moment of constitutional crisis. At no time since the Civil War era has it seemed more likely that what James Madison called the “experiment entrusted to the hands of the American people”—the experiment in democratic constitutional self-governance—will fail. This article argues that one reason for this state of affairs is that the ‘people’ sense that they are no longer active participants in the experiment. While the historical etiology of this crisis is complex, and the forces involved not confined to the US, this article focuses on the crisis in the …

Problems With Authority, Amy J. Griffin

Georgetown Law Faculty Publications and Other Works

Judicial decisionmaking rests on a foundation of unwritten rules—those that govern the weight of authority. Such rules, including the cornerstone principle of stare decisis, are created informally through the internal social practices of the judiciary. Despite the central role of such rules in judicial decisionmaking, we lack a good account of how they are created, revised, and enforced. There is something paradoxical and troubling about the notion that the rules of the game are determined by the players as they play the game according to those rules. Because weight-of-authority rules are largely informal and almost entirely unwritten, we don’t even …

Judges For Sale: The Effect Of Campaign Contributions On State Criminal Courts, Arturo Romero Yáñez, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

Do campaign contributions impact democratic processes? Using donation data from Texas, we show that criminal defense attorneys who contribute to a district judge’s electoral campaign are preferentially assigned by that judge to indigent defense cases, i.e., public contracts in which the state pays private attorneys to represent poor defendants.

We estimate that attorney donors receive twice as many cases as non-donors during the month of their campaign contribution. Nearly two-thirds of this increase is explained by the contribution itself, with the remainder attributable to shared preferences within attorney-judge pairs, such as those based on professional, ideological, political, or personal ties. …

The Paradoxes Of A Unified Judicial Philosophy: An Empirical Study Of The New Supreme Court, 2020-2022, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

The 2021 Supreme Court Term ended with a bang, yielding blockbuster cases making headlines. But what of the rest of the cases? This is the first major paper to examine the “Trump effect,” meaning the influence of three Justices appointed by President Trump who all share a “unified” judicial philosophy. In a two-year project, starting from 2020, when Justice Barrett ascended to the Court, to the end of June 2022, this article reviews 124 cases and over 300 opinions. There is both good and bad news for the court’s new “unified” judicial philosophy. History and text are both upwardly mobile …

Fixing "Litigating The Fix", Steven C. Salop, Jennifer E. Sturiale

Georgetown Law Faculty Publications and Other Works

Merging firms have increasingly been asking trial courts to adjudicate their merger “as remedied” by a voluntary “fix.” These are remedies that have been rejected by (or never proposed to) the agency. This procedure is known as Litigating-the-Fix” (“LTF”). This article proposes a judicial procedure for managing cases in which the merging parties attempt to LTF. Our recommendations flow from a decision theory approach informed by the relevant LTF case law, the merger enforcement record, the language and goals of Section 7, and an economic analysis of the incentives of the parties and agencies created by LTF. Our recommendation addresses …

The Common Law As Statutory Backdrop, Anita S. Krishnakumar

Georgetown Law Faculty Publications and Other Works

Amidst the whirl of commentary about how the U.S. Supreme Court has become increasingly textualist and what precise shape modern textualism should take, the Court’s continued reliance on one decidedly atextual interpretive tool has gone largely unnoticed — the common law. Indeed, the common law has played an underappreciated, often dispositive, gap-filling role in statutory interpretation for decades, even as the textualist revolution has sidelined other non-text-focused interpretive tools. But despite the persistent role that the common law has played in statutory interpretation cases, the use of common law rules and definitions as an interpretive resource is surprisingly understudied and …

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 …

How To Conclude A Brief, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

This essay discusses the "conclusion" section of an appellate brief and its relationship to problems of argument ordering in multi-issue appeals. The essay first reviews the relevant federal appellate rules--Federal Rule of Appellate Procedure 28(a)(9) and Supreme Court Rule 24.1(j)--and explains the author's preference for short, precise, remedy-oriented conclusions, shorn of repetitive argument. It illustrates these points with examples from recently filed appellate briefs. The essay then turns to problems of argument ordering in multi-issue appellate briefs, with an emphasis on ending with a bang not a whimper, while sticking with the short, non-argumentative conclusion. The argument-ordering discussion is also …

Supreme Court Institute Annual Report, 2020-2021, Georgetown University Law Center, Supreme Court Institute

SCI Papers & Reports

During the U.S. Supreme Court’s October Term (OT) 2020—corresponding to the 2020-2021 academic year— the Supreme Court Institute (SCI) provided moot courts for advocates in 57 of the 58 cases argued at the Supreme Court, offered our annual press and student term preview programs, and continued to integrate the moot court program into the Law Center curriculum. As in past Terms, the varied affiliations of advocates mooted reflect SCI’s commitment to assist advocates without regard to the party represented or the position advanced.

Responding to the COVID-19 pandemic, the Supreme Court took the unprecedented step of hosting all OT 2020 …

Department Of Homeland Security V. Regents Of The University Of California And Its Implications, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The Trump Administration's effort to get rid of Deferred Action for Childhood Arrivals, or DACA, failed before the Supreme Court in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 1896 (2020). In this essay -- based on a presentation given to an American Bar Association section in September 2020 -- I review DACA, the Supreme Court's decision, and its potential legal implications.

The failure of the Trump Administration to eliminate DACA may have had significant political consequences, and it surely had immediate and momentous consequences for many of DACA’s hundreds of thousands …

Some Thoughts On Supplemental Authorities Under Federal Rule Of Appellate Procedure 28(J) And Related Musings, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

This essay--prompted by my work directing Georgetown Law's Appellate Courts Immersion Clinic--discusses letters filed under Federal Rule of Appellate Procedure 28(j). A "Rule 28(j) letter" is the federal appellate rules' principal mechanism for bringing supplemental authorities to an appellate court’s attention after the briefs have been filed. This essay covers (1) the Rule's basic attributes; (2) whether a 28(j) letter may be adversarial; (3) the types of authorities that may be--and should be--cited in a 28(j) letter; (4) proper timing for the filing of a 28(j) letter; (5) when and how to respond to a 28(j) letter; and (6) what …

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 …

Federal Courts: Art. Iii(1), Art. I(8), Art. Iv(3)(2), Art. Ii(2)/I(8)(3), And Art. Ii(1) Adjudication, Laura K. Donohue, Jeremy M. Mccabe

Georgetown Law Faculty Publications and Other Works

The distinction among the several types of federal courts in the United States has gone almost unremarked in the academic literature. Instead, attention focuses on Article III “constitutional” courts with occasional discussion of how they differ from what are referred to as “non-constitutional” or “legislative” courts. At best, these labels are misleading: all federal courts have a constitutional locus, and most, but not all, federal courts are brought into being via legislation. The binary approach further ignores the full range of federal courts, which are rooted in different constitutional provisions: Art. III(1), Art. I(8); Art. IV(3); Art. II(2)/I(8)(3); and Art. …

Testa, Crain, And The Constitutional Right To Collateral Relief, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

In Montgomery v. Louisiana, the U.S. Supreme Court held that state prisoners have a constitutional right to relief from continued imprisonment if the prisoner’s conviction or sentence contravenes a new substantive rule of constitutional law. Specifically, the Court held that prisoners with such claims are constitutionally entitled to collateral relief in state court—at least if the state courts are open to other claims for collateral relief on the ground that their continued imprisonment is unlawful. In our article, The Constitutional Right to Collateral Post-Conviction Relief, we argued that, under two lines of Supreme Court decisions interpreting the Supremacy …

The Evolution And Jurisprudence Of The Foreign Intelligence Surveillance Court And Foreign Intelligence Surveillance Court Of Review, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The past eight years have witnessed an explosion in the number of publicly-available opinions and orders issued by the Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review. From only six opinions in the public domain 1978–2012, by early 2021, eighty-eight opinions had been released. The sharp departure is even more pronounced in relation to orders: from only one order declassified during 1978–2012, since 2013, 288 have been formally released. These documents highlight how the courts’s roles have evolved since 2004 and reveal four key areas that dominate the courts’ jurisprudence: its position as a specialized, Article III …

Supreme Court Institute Annual Report, 2019-2020, Georgetown University Law Center, Supreme Court Institute

SCI Papers & Reports

During the U.S. Supreme Court’s October Term (OT) 2019—corresponding to the 2019-2020 academic year—the Supreme Court Institute (SCI) provided moot courts for advocates in 100% of the cases heard by the Supreme Court, offered a variety of programs related to the Court, and continued to integrate the moot court program into the Law Center curriculum. As in past Terms, the varied affiliations of advocates mooted this Term reflect the SCI’s commitment to assist advocates without regard to the party represented or the position advanced.

The OT 2019 Term was significantly impacted by the COVID-19 Pandemic. The Supreme Court cancelled its …

Confronting Memory Loss, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The Confrontation Clause of the Sixth Amendment grants “the accused” in “all criminal prosecutions” a right “to be confronted with the witnesses against him.” A particular problem occurs when there is a gap in time between the testimony that is offered, and the cross-examination of it, as where, pursuant to a hearsay exception or exemption, evidence of a current witness’s prior statement is offered and for some intervening reason her current memory is impaired. Does this fatally affect the opportunity to “confront” the witness? The Supreme Court has, to date, left unclear the extent to which a memory-impaired witness can …

Interring The Immigration Rule Of Lenity, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

The immigration rule of lenity has haunted immigration jurisprudence since its initial iteration in 1947. But as with any spectral entity, its existence is more ephemeral than real. The rule was meant to be a tie-breaker of sorts, a canon that where a provision of the immigration laws was ambiguous, the courts should impose the more lenient construction. It has never, however, been the dispositive basis for a holding of the Supreme Court. Rather, to the extent it has been referenced, it has been trotted out only as a rhetorical device to sanction a decision reached on other grounds. Even …

Supreme Court Of The United States, October Term 2020 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

The Genius Of Hamilton And The Birth Of The Modern Theory Of The Judiciary, William M. Treanor

Georgetown Law Faculty Publications and Other Works

In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern …

Supreme Silence And Precedential Pragmatism: King V. Burwell And Statutory Interpretation In The Federal Courts Of Appeals, Michael J. Cedrone

Georgetown Law Faculty Publications and Other Works

This Article studies statutory interpretation as it is practiced in the federal courts of appeal. Much of the academic commentary in this field focuses on the Supreme Court, which skews the debate and unduly polarizes the field. This Article investigates more broadly by looking at the seventy-two federal appellate cases that cite King v. Burwell in the two years after the Court issued its decision. In deciding that the words “established by the State” encompass a federal program, the Court in King reached a pragmatic and practical result based on statutory scheme and purpose at a fairly high level of …

Supreme Court Institute Annual Report, 2018-2019, Georgetown University Law Center, Supreme Court Institute

SCI Papers & Reports

During the U.S. Supreme Court’s October Term (OT) 2018 – corresponding to the 2018-2019 academic year –the Supreme Court Institute (SCI) provided moot courts for advocates in 99% of the cases heard by the Supreme Court, offered a variety of programs related to the Supreme Court, and continued to integrate the moot court program into the education of Georgetown Law students. The varied affiliations of advocates mooted this Term reflect SCI’s firm commitment to provide assistance to advocates without regard to the party represented or the position advanced.

A list of all SCI moot courts held in OT 2018 – …

Substantial Shifts In Supreme Court Health Law Jurisprudence, Lawrence O. Gostin, James G. Hodge

Georgetown Law Faculty Publications and Other Works

President Trump’s nomination of jurist Brett Kavanaugh to the U.S. Supreme Court presents significant, potential changes on health law and policy issues. If confirmed by the U.S. Senate, Kavanaugh’s approaches as a federal appellate court judge and scholar could literally shift the Court’s balance on consequential health policies. Judge Kavanaugh has disavowed broad discretion for federal agency authorities, cast significant doubts on the constitutionality of the Affordable Care Act, and narrowly interpreted reproductive rights (most notably abortion services). He has supported gun rights pursuant to the Second Amendment beyond U.S. Supreme Court recent interpretations. His varying positions related to consumer …

Brief Of Amicus Curiae, In Re Opinions & Orders Of This Court Addressing Bulk Collection Of Data Under The Foreign Intelligence Surveillance Act, No. Misc. 13-08 (Fisa Ct. June 13, 2018), Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Supreme Court Institute Annual Report, 2017-2018, Georgetown University Law Center, Supreme Court Institute

SCI Papers & Reports

During the U.S. Supreme Court’s October Term (OT) 2017 – corresponding to the 2017-2018 academic year –the Supreme Court Institute (SCI) provided moot courts for advocates in 98% of the cases heard by the Supreme Court, offered a variety of programs related to the Supreme Court, and continued to integrate the moot court program into the education of Georgetown Law students.

A list of all SCI moot courts held in OT 2017 – arranged by argument sitting and date of Moot, and including the name and affiliation of each advocate and the number of observers – follows the narrative portion …