Law Commons^™

Hidden Nondefense: Partisanship In State Attorneys General Amicus Briefs And The Need For Transparency, Lisa Grumet

Articles & Chapters

In all fifty states, the State Attorney General (SAG) — as the state’s chief legal officer — is charged with defending state laws that are challenged in court. If an SAG declines to defend or challenges a state law on the ground that it is unconstitutional — an action scholars describe as “nondefense” — the SAG ordinarily will disclose this decision to the public.

This Essay discusses a hidden form of nondefense that can occur when SAGs file amicus curiae briefs on behalf of their states in matters before the U.S. Supreme Court. Surprisingly, some SAGs have joined multistate amicus …

The Pro Bono Collaborative Project Spotlight: Increasing Access To Justice Just Got A Little Easier In Rhode Island 10-05-2017, Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.

A Rhetorician’S Practical Wisdom, Linda L. Berger

Scholarly Works

For three years, I had the great good fortune to work in the office next to Jack Sammons. My good fortune extended to a coincidence of timing that allowed me to work with Jack on a co-authored article, The Law's Mystery. During the time I worked next door, I felt cursed by an inability to grasp concepts that to Jack appeared inevitable and essential, whether those inevitabilities and essences were to be found within the law, good lawyering, or good legal education. The curse persisted throughout the writing of The Law's Mystery.

For Jack, the essence of a …

Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman

Articles

The Supreme Court’s decision in AT&T Mobility v. Concepcion advanced an agenda found in neither the text nor the legislative history of the Federal Arbitration Act. Concepcion provoked a maelstrom of reactions not only from the press and the academy, but also from Congress, federal agencies and lower courts, as they struggled to interpret, apply, reverse, or cabin the Court’s blockbuster decision. These reactions raise a host of provocative questions about the relationships among the branches of government and between the Supreme Court and the lower courts. Among other questions, Concepcion and its aftermath force us to grapple with the …

The Context Of Ideology: Law, Politics, And Empirical Legal Scholarship, Carolyn Shapiro

All Faculty Scholarship

In their confirmation hearings, Chief Justice Roberts and Justice Sotomayor both articulated a vision of the neutral judge who decides cases without resort to personal perspectives or opinions, in short, without ideology. At the other extreme, the dominant model of judicial decisionmaking in political science has long been the attitudinal model, which posits that the Justices’ votes can be explained primarily as expressions of their personal policy preferences, with little or no role for law, legal reasoning, or legal doctrine.

Many traditional legal scholars have criticized such scholarship for its insistence on the primacy of ideology in judicial decisionmaking, even …

Reining In The Supreme Court: Are Term Limits The Answer?, Arthur D. Hellman

Book Chapters

Once again, life tenure for Supreme Court Justices is under attack. The most prominent proposal for reform is to adopt a system of staggered non-renewable terms of 18 years, designed so that each President would have the opportunity to fill two vacancies during a four-year term. This book chapter, based on a presentation at a conference at Duke Law School, addresses the criticisms of life tenure and analyzes the likely consequences of moving to a system of 18-year staggered terms for Supreme Court Justices.

One of the main arguments for term limits is, in essence, that the Supreme Court should …

The Story Of Upjohn Co. V. United States: One Man's Journey To Extend Lawyer-Client Confidentiality, And The Social Forces That Affected It, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The attorney-client privilege protects information a client provides an attorney in confidence for the purpose of securing legal advice. But suppose the client is not a person but a corporation and can only speak through its agents and employees. What then are the contours of the privilege? If the corporation's attorney asks an employee for information relating to pending litigation or other legal matters, is the conversation privileged? Some courts said that no communications to a corporate attorney were privileged unless they came from members of the corporate control group, loosely those people who had authority to direct the attorney's …

Putting The Supreme Court Back In Place: Ideology, Yes; Agenda, No, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

This essay is about the permanent damage to the Supreme Court and to the country that may occur if the current approach to judicial appointments continues, and offers an approach to the nomination and confirmation of Supreme Court justices that will help put the Court back in its proper place - out of the eye of the elective political storm.

Unpatriotic Acts: An Introduction, Sadiq Reza

Faculty Scholarship

John Walker Lindh. Zacarias Moussaoui. Jose Padilla. Richard Reid. Who reading these lines does not instantly recognize the names of these men? Or at least their assigned noms de guerre: American Taliban, 20th hijacker, dirty bomber, shoe bomber. For two and a half years these names and others have flitted through our daily copies of The New York Times like shadow characters in a play, along with black-and-white photographs underneath which black-and-white text tells us of their alleged (and sometimes proven) wrongdoing and the latest developments in their tribulations (and sometimes trials) with our government. But the men themselves are …

Reconstructing The Rule Of Law, Robin West

Georgetown Law Faculty Publications and Other Works

The action taken in Bush v. Gore by the five conservative Justices on the United States Supreme Court, Bugliosi argued, was not just wrong as a matter of law, but criminal: It was a malem in se, fully intended, premeditated theft of a national election for the Presidency of the United States. Now, as Balkan and Levinson would argue, this seventh, "prosecutorial" response -- that the Court's action was not just wrong but criminal -- is also not available to a devotee of either radical or moderate indeterminacy. Even assuming both criminal intent and severe harm-a wrongful, specific intent to …

Cleaning Up The Legal Debris Left In The Wake Of Whitewater, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

We have learned a lot in the twenty-five years since Watergate. During the scandal itself, we confirmed that the President is not above the law. We learned that executive privilege is constitutionally protected, but that it is not absolute. And, we learned that a need exists for an independent counsel, but that we don't necessarily need a statute to establish such an office.

Watergate and the Nixon era spawned several so-called "reforms": the establishment of the independent counsel statute, presidential immunity from civil damage suits for official action, and public ownership of the President's official papers. It is interesting and …

Abdication Can Be Fun, Join The Orgy, Everyone: A Simpleton’S Perspective On Abdication Of Federal Land Management Responsibilities, George Cameron Coggins

Challenging Federal Ownership and Management: Public Lands and Public Benefits (October 11-13)

14 pages.

The "Gag Rule" Revisited: Physicians As Abortion Gatekeepers, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

To the surprise of many and the dismay of some, the U.S. Supreme Court took it upon itself last term to proclaim a national compromise on the question of abortion. The Court's announced truce, an elaboration on Justice O'Connor's "undue burden" idea, is pragmatic in design but unlikely to prove stable in practice. The three justices who spoke for the Court disparaged Roe with reluctant praise, then upheld its outer shell on the ground that social expectations and the need to sustain the appearance of the rule of law made it impolitic to do otherwise. This awkward doctrinal invention seems …

Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann

Faculty Scholarship

This Essay is an effort to construct a normative basis for a constitutional theory to resist the Supreme Court's recent decision in DeShaney v. Winnebago County Department of Social Services.¹ In DeShaney, the Court decided that a local social service worker's failure to prevent child abuse did not violate the due process clause of the fourteenth amendment even though the social worker "had reason to believe" the abuse was occurring. ² Chief Justice Rehnquist's opinion for the Court held that government inaction cannot violate due process unless the state has custody of the victim, ³ thus settling a controversial …

Presuming Lawyers Competent To Protect Fundamental Rights: Is It An Affordable Fiction?, Robert G. Lawson

Law Faculty Scholarly Articles

This article explores the ramifications of Wainwright v. Sykes, a case decided before the Supreme Court of the United States in 1977. The broad question before the Court in Sykes concerned the extent to which state prisoners should have access to federal court by use of the writ of habeas corpus. The narrow issue before the Court concerned the impact on a prisoner's claim for habeas relief of procedural defaults (such as a failure to object to evidence, a failure to perfect an appeal, etc.) that occur in the state proceeding under attack. In considering these important issues Justice …

Federal Habeas Corpus And Ineffective Representation Of Counsel: The Supreme Court Has Work To Do, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

The availability of federal habeas corpus relief for state criminal defendants has always borne a complex relationship to state rules barring defendants from litigating constitutional claims in state court because of procedural defaults in raising those claims. The Warren Court's landmark attempt to resolve this relationship was the 1963 decision in Fay v. Noia, which asserted that a state procedural forfeiture rule could not bar federal habeas review of a constitutional claim unless the defendant had "deliberately bypassed" the procedural opportunity to raise the claim; the Court defined "deliberate bypass" in terms of a defendant's intentional and voluntary relinquishment of …