Civil Law Commons^™

Advancing Racial Justice Through Civil And Criminal Academic Medical-Legal Partnerships, Yael Cannon, Vida Johnson

Georgetown Law Faculty Publications and Other Works

The medical-legal partnership (MLP) model, which brings attorneys and healthcare partners together to remove legal barriers to health, is a growing approach to addressing unmet civil legal needs. But MLPs are less prevalent in criminal defense settings, where they also have the potential to advance both health and legal justice. In fact, grave racial health inequities are deeply intertwined with both civil and criminal injustice. In both spheres, health justice is racial justice. Building on the experiences of the authors in their respective civil and criminal law school clinics at Georgetown University in Washington, D.C., this Article argues that academic …

Section 702 And The Collection Of International Telephone And Internet Content, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Section 702 of the Foreign Intelligence Surveillance Act (FISA) authorizes the NSA to collect the electronic communications of non-U.S. targets located overseas. Recent media reports and declassified documents reveal a more extensive program than publicly understood. The article begins by considering the origins of the current programs and the relevant authorities, particularly the transfer of part of the post-9/11 President’s Surveillance Program to FISA. It outlines the contours of the 2007 Protect America Act, before its replacement in 2008 by the FISA Amendments Act (FAA). The section ends with a brief discussion of the current state of foreign intelligence collection …

Representation In Context: Party Power And Lawyer Expertise, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Georgetown Law Faculty Publications and Other Works

The questions when, why, and how legal representation makes a difference for parties in civil litigation remain largely unanswered, although recent scholarship raises compelling new questions and suggests new explanations and theoretical approaches. Understanding how legal representation operates, we argue, requires an appreciation for the context in which the representation actually takes place. This article examines two previously unexplored elements of the context of legal representation through empirical and theoretical analysis: the balance of power between the parties to a dispute and the professional, specifically strategic, expertise that a legal representative contributes. The results of a study of 1,700 unemployment …

Fisa Reform, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Congress and the Executive Branch are poised to take up the issue of FISA reform in 2014. What has been missing from the discussion is a comprehensive view of ways in which reform could be given effect—i.e., a taxonomy of potential options. This article seeks to fill the gap. The aim is to deepen the conversation about abeyant approaches to foreign intelligence gathering, to allow fuller discussion of what a comprehensive package could contain, and to place initiatives that are currently under consideration within a broader, over-arching framework. The article begins by considering the legal underpinnings and challenges to the …

The Trickle-Down War, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The history of the European nation-state, wrote political sociologist Charles Tilly, is inextricably bound up with the history of warfare. To oversimplify Tilly’s nuanced and complex arguments, the story goes something like this: As power-holders (originally bandits and local strongmen) sought to expand their power, they needed capital to pay for weapons, soldiers and supplies. The need for capital and new recruits drove the creation of taxation systems and census mechanisms, and the need for more effective systems of taxation and recruitment necessitated better roads, better communications and better record keeping. This in turn enabled the creation of larger and …

Liberal Responsibilities, Robin West

Georgetown Law Faculty Publications and Other Works

This essay is a review of When the State Speaks, What Should it Say?: How Democracies can Protect Expression and Promote Equality by Corey Brettschneider (2012) and Ordered Liberty: Rights, Responsibilities, and Virtues by James E. Fleming & Linda C. McClain (2013).

In a parallel fashion, Fleming and McClain articulate and then defend a general conception of “constitutional liberalism” and its core individual rights against various critics, including communitarians such as Mary Ann Glendon and Michael Sandel, and “minimalists” such as Cass Sunstein and Jeremy Waldron, who argue that for various reasons those individual rights have undermined either civic society …

Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan

Georgetown Law Faculty Publications and Other Works

A significant and growing portion of the United States population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. …

The Moral Complexity Of Cause Lawyers Within The State, David Luban

Georgetown Law Faculty Publications and Other Works

Douglas NeJaime's Cause Lawyers Inside the State is a significant contribution to our understanding of cause lawyers. Most basically, NeJaime calls attention to a remarkably neglected topic: cause lawyers who work in the state rather than in public interest firms, law school clinics, or other non-governmental organizations (NGOs). His analysis undermines a narrative that students of cause lawyering too often presuppose: that to be a cause lawyer means standing outside the state, and usually in opposition to it. Almost by definition, a "cause" exists because the dominant institutions of society have failed to represent the interests and ideas of some …

The Shadow Of State Secrets, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The shadow of state secrets casts itself longer than previously acknowledged. Between 2001 and 2009 the government asserted state secrets in more than 100 cases, while in scores more litigants appealed to the doctrine in anticipation of government intervention. Contractor cases ranged from breach of contract, patent disputes, and trade secrets, to fraud and employment termination. Wrongful death, personal injury, and negligence suits kept pace, extending beyond product liability to include infrastructure and services, as well as conduct of war. In excess of fifty telecommunications suits linked to the NSA warrantless wiretapping program emerged 2006-2009, with the government acting, variously, …

What The Shutts Opt-Out Right Is And What It Ought To Be, Brian Wolfman, Alan B. Morrison

Georgetown Law Faculty Publications and Other Works

This article discusses the ramifications of the U.S. Supreme Court's decision in Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985), regarding the right of an absent class member to opt out of a class action. The article addresses both the current prevailing understanding of Shutts, which is based on the personal jurisdiction strain of due process jurisprudence, and what the authors believe is a more useful understanding, based on the property rights strain of due process jurisprudence. As an addendum to the article, the authors propose a new civil procedure rule governing class actions that would implement …

Beyond Unconscionability: Class Action Waivers And Mandatory Arbitration Agreements, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

We live in an age of convenience. From financial transactions to electronic correspondence, we frequently deal with large corporations that provide services in our daily lives. One of the prices we pay for the convenience of these transactions, however, is that our commercial relationships increasingly are based on standard form contracts written by large corporations. While these standard form contracts are necessary to an economically efficient society, the growing use of mandatory arbitration provisions and clauses that prohibit class actions in these contracts raises the spectre of corporate abuse.

Protecting Plaintiffs' Sexual Pasts: Coping With Preconceptions Through Discretion, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

Part I of this Article traces the development of the civil application of Rule 412, the so-called “Rape Shield Rule”. Part II analyzes the inconsistencies within the cases decided under the new civil rule and links those inconsistencies to the language of the rule. It identifies the trends within the cases about what constitutes probative value for purposes of the rule and how courts assess prejudice. The Article concludes that rules of evidence designed to remedy bias of fact finders should not be cast as discretionary. Many of the problems that arise in the interpretation of Rule 412 could be …

Sexual Character Evidence In Civil Actions: Refining The Propensity Rule, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

When claims of sexual misconduct are made, two threads are often seen in the kinds of questions raised: Did she "invite it," and has he ever done it before? The way these questions are handled can determine the outcome of a sexual misconduct case. In 1995, Congress weighed in on whether these questions could be asked in civil cases in federal court and adopted two significant changes to the rules of evidence. One, revised Rule 412,4 extends "rape shield" protection to civil actions that claim sexual misconduct, including sexual harassment. The other, new Rule 415,5 allows plaintiffs to offer evidence …

Under Fire: The New Consensus On The Second Amendment, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Until the early 1980s the Second Amendment had received little attention or interest from legal scholars. In 1981 Northwestern University law professor Daniel D. Polsby ridiculed the individual rights view of the Amendment as "a lot of horsedung."

Research conducted through the 1980s has led legal scholars and historians to conclude, sometimes reluctantly, but with virtual unanimity, that there is no tenable textual or historical argument against a broad individual right view of the Second Amendment.

According to the broad individual right view, the right of the people to keep and bear arms is to be treated the same as …

Ex Post Facto In The Civil Context: Unbridled Punishment, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

This Article outlines the historical background of the Ex Post Facto Clause, focusing on the intent of the framers and the Supreme Court's narrowing of the Clause to apply only to criminal statutes and any civil statutes that are unmistakably punitive in nature. The focus then shifts to the problem of mixed motives in legislative acts.

How The Uniform Crime Victims Reparations Act Works, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The Uniform Crime Victims Reparations Act, approved by the American Bar Association's House of Delegates, has been submitted to state legislatures. This timely act seeks recompense for the victims of crimes, but also incorporates numerous safeguards to prevent abuse.

The American Bar Association's House of Delegates, meeting in Houston on February 5, 1974, approved an idea whose time is rapidly approaching the Uniform Crime Victims Reparations Act. The act is the product of a committee of the National Conference of Commissioners on Uniform State Laws for which I served as consultant and reporter over its three years of deliberations. The …