Law Commons^™

In The Shadow Of Daniel Webster: Arguing Appeals In The Twenty-First Century, Seth P. Waxman

Georgetown Law Faculty Publications and Other Works

It is natural - I suppose it is expected - for every Solicitor General to hold forth at some point during his tenure with pearls of wisdom on the Twelve Secrets, or Ten Commandments, or Five Essential Rules of effective oral advocacy. I have always been reluctant to do that . . . reluctantly, after years of resistance, I too will unburden myself of a few principles. First, though, I would like to reach back in history for some inspiration by reflecting a bit on Daniel Webster.

What Courts Can Do In The Face Of The Never-Ending Asbestos Crisis, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The purpose of this article is not to argue that claimants suffering from serious asbestos-related diseases should not be compensated. To the contrary, one of the points of this article is that absent some change in the way asbestos claims are resolved, claimants who become truly sick in the future may not receive adequate compensation. Changing the current asbestos compensation system would be pro-claimant. Also, the purpose of this article is not to ascribe blame. Rather, it is to fix a problem. The judges cannot be blamed for their good intentions. Neither can the plaintiffs' attorneys be blamed for zealously …

When Winning Isn’T Everything: The Lawyer As Problem Solver, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Today I want to address the question of what the modern lawyer needs to know and what the modern lawyer must know how to do to be good at what he or she does, to be helpful to clients, to lead a fulfilling life, and hopefully, to leave the world a better place than he or she first found it. I went to law school to work on that illusive jurisprudential concept - justice. On the outside walls of the Edward Bennett Williams Library where I work in Washington, DC, is a quote, which we attribute to a former Georgetown …

Do The Haves Come Out Ahead In Alternative Justice Systems? Repeat Players In Adr, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Marc Galanter's essay, Why the "Haves" Come out Ahead: Speculations on the Limits of Legal Change (Why the "Haves" Come out Ahead), published twenty-five years ago, set an important agenda for those who care about the distributive effects of legal processes, including those of us who have been engaged in jurisprudential, intellectual, and empirical debates about the relative advantages and disadvantages of alternative and conventional legal procedures. As a document of legal intellectual history, this Article was formed in the crucible of the Legal Mobilization and Modernization program at Yale Law School that spawned so many "law and . …

Taking Fiction Seriously: The Strange Results Of Public Officials' Individual Liability Under Bivens, Cornelia T. Pillard

Georgetown Law Faculty Publications and Other Works

This article argues that the Supreme Court's decision to place liability on federal officials in their personal capacity--what Professors Fallon and Meltzer call Bivens's "genius"--is in fact its Achilles' heel. Individual liability under Bivens has become fictional because it is the government, and not the individual personally, that is in fact liable in Bivens cases. The individual liability fiction has ended up helping the federal government more than the Bivens plaintiff in various ways, and has contributed to the low rate of recovery under Bivens.

It may seem odd to attribute the low rate of Bivens recoveries to the individual …

Independent Counsel And Vigorous Investigation And Prosecution, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This essay draws on the examples of Watergate and Iran-Contra to offer a new perspective on Independent Counsel and their ability to investigate and prosecute high-level wrongdoing. The current consensus is that an Independent Counsel, appointed by judges of the special court pursuant to the Ethics in Government Act, will invariably investigate and prosecute crimes more vigorously than a Special Prosecutor appointed by the President or the Attorney General. Watergate and Iran-Contra suggest, however, that there are institutional and political factors that make analysis of the comparative tendencies of the two types of prosecutors more complex and dependent on circumstance. …

Night And Day: Coeur D’Alene, Breard, And The Unraveling Of The Prospective-Retrospective Distinction In Eleventh Amendment Doctrine, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The Supreme Court's decision in Edelman v. Jordan has been read to establish a distinction between suits seeking prospective relief from a state official's violation of federal law (which are not barred by the Eleventh Amendment under Ex parte Young) and suits seeking retrospective relief from the state (which are barred by the Eleventh Amendment, even if the officer is the defendant). Commentators and the lower courts have long had difficulty understanding and applying the distinction. Until recently, the principal effect of the Edelman line of cases has been to bar suits seeking damages and similar monetary relief from …

Taking The Mass Out Of Mass Torts: Reflections Of A Dalkon Shield Arbitrator On Alternative Dispute Resolution, Judging, Neutrality, Gender, And Process, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Life in the modem and post-modem world has changed our understanding of many traditional legal matters. Although many died from plagues, wars, and some shipping and agricultural accidents in the years which preceded the Industrial Revolution and modem breakthroughs in medicine, the twentieth century has given rise to "group" injury and death -it unprecedented levels, all as we march toward growth, progress, and greater goods for greater numbers. Mass progress has resulted in mass injury, which in turn has transformed individualized justice into mass justice. Whether structured as large class actions or as thousands of individual cases dealing with the …

What Is Eleventh Amendment Immunity?, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The Supreme Court's Eleventh Amendment decisions give conflicting signals about what the Amendment does. On one view, the Amendment functions as a forum-allocation principle--immunizing states from liability in suits filed in federal court, but leaving open the possibility that states may be compelled to entertain suits against themselves in their own courts. A separate line of cases, however, implies that state courts enjoy an immunity from suit in their own courts and that nothing in the Constitution withdraws such immunity; on this view, the Eleventh Amendment, by protecting the states from suit in the federal courts, effectively immunizes the states …

Representing The Unrepresented In Class Action Settlements, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

Class actions are important and useful both to deter wrongful conduct and to provide compensation for injured plaintiffs. In complex cases, however, the existing class action structure falters. In this article, Messrs. Wolfman and Morrison argue that in "settlement class actions" the current class action rules do not adequately protect class members whose interests do not coincide with those of the class representatives and the class attorneys. Through a survey of recent, prominent settlement class actions, the authors show that the current system does not fairly treat subgroups in a class with respect to matters as diverse as future injury, …

Intellectual Coherence In An Evidence Code, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The Federal Rules of Evidence (Federal Rules or Rules) were created in large part to promote uniformity and predictability in federal trials by providing a relatively instructive guide for judges and lawyers concerning the admissibility of evidence. As with any codification, success in this respect requires, among other things, that there be a considerable degree of intellectual coherence among the code's various provisions. The Federal Rules fall short of intellectual coherence in a number of areas. They contain contradictory and inconsistent mandates that do not make theoretical sense and therefore accord the trial judge almost unlimited discretion in these areas. …

Presidential Power: Should Bill Clinton Be Immune From Lawsuits On Allegations Of Past Acts?, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

When former Arkansas state employee Paula Jones filed her complaint against Bill Clinton she joined a small group of women who have publicly accused men in high-profile positions of sexual harassment.

A classic "he said, she said" story? We may never know, if the president is able to argue successfully that his office shields him from liability for actions occurring prior to assuming it. On June 27, his lawyer, Robert Bennett, asked a federal court to delay action, and said he would be filing a separate motion in August on the issue.

The defense is based on the 1982 case …

The Collision Between New Discovery Amendments And Expert Testimony Rules, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The young litigator's nightmare was always the same. He was in medieval Europe, ready to engage in a sword fight with the expert swordsman representing his arch rival. After countless hours of preparation, he felt confident that he would be able to hold his own against the swordsman. But when the swordsman drew his lengthy rapier from its sheath, the young attorney pulled only a short dagger from his scabbard. Realizing that he was doomed to defeat, he tossed his dagger into the air and ran from the scene with the laughter of the onlookers ringing in his ears.

The …

Terry White: A Two-Front Negotiation Exercise, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

In the 1980s, teaching the theory and art of negotiation has become more important than ever in the curricula of law schools. As the cost of full-scale litigation has risen, the pressure on litigants to settle short of trial has increased, and the development of alternative dispute resolution mechanisms has become a priority of the bar. The literature on negotiation has multiplied, and law school texts have been published to support an increasing number of courses in negotiation.

After a brief overview of the Terry White problem, this article becomes an instructor's manual. It offers suggestions for those desiring to …

Review Of The New Deal Lawyers, By Peter H. Irons, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This article reviews The New Deal Lawyers by Peter H. Irons (1982).

The government lawyers who helped shape and defend New Deal agencies have received little attention from scholars. Any oversight has now, however, been redressed. The New Deal Lawyers provides a detailed and careful study of the litigation process that preceded the New Deal's 1937 court triumphs. Peter Irons' book focuses on the activities of three key agencies and their general counsels: the National Recovery Administration (NRA) and Donald Richberg; the Agricultural Adjustment Administration (AAA) and Jerome Frank; and the National Labor Relations Board (NLRB) and Charles Fahy. Each …

Bleak House 1968: A Report On Consumer Test Litigation, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

The author presents the practical problems of consumer test-case litigation. Writing in an informal, anecdotal style, he addresses himself to law students, telling them of the many obstacles they will face in this type of practice. The author relates the innumerable and exasperating delaying tactics employed by his adversaries in several cases now being litigated. Looking beyond the theoretical efficacy of test-case litigation as a solution to the morass of consumers' grievances, the author's experiences suggest the need for basic reform of state procedure in order to permit more speedy resolution of the issues raised by such litigation.

Causation In Common Sense: A Reply To Messrs. Hart And Honore, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

No abstract provided.