Law Commons^™

Judging China: The Chinese Legal System In U.S. Courts, Donald C. Clarke

GW Law Faculty Publications & Other Works

How should American courts understand China’s legal system? How do they understand it, and are they doing a good job? These questions have become important as economic and social ties between China and the United States have mushroomed since China’s days of Maoist isolation. The answers have implications not just for China-related cases, but for the way U.S. courts treat authoritarian and illiberal legal systems more generally.

This Article presents the first attempt to answer these questions empirically through an intensive study of all cases in which parties either sought dismissal to China on forum non conveniens grounds or sought …

The Democratic (Il)Legitimacy Of Assembly-Line Litigation, Jessica Steinberg, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

GW Law Faculty Publications & Other Works

In response to Daniel Wilf-Townsend’s Assembly-Line Plaintiffs we take a panoramic picture of state civil courts, and debt cases in particular, and name specific features of the courts that must be taken into account in crafting reform prescriptions. In doing so, we question both the democratic legitimacy of debt collection courts and the adequacy of incremental reform that targets the structure of litigation. Part I contributes two critical components to Wilf-Townsend’s rich description of consumer debt cases: pervasive intersectional inequality among pro se defendants and a record of fraud among top filers. We add a sharper focus on the racial, …

The Institutional Mismatch Of State Civil Courts, Colleen F. Shanahan, Jessica Steinberg, Alyx Mark, Anna E. Carpenter

GW Law Faculty Publications & Other Works

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts …

How Should The Court Respond To The Combination Of Political Polarity, Legislative Impotence, And Executive Branch Overreach?, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay, Professor Pierce discusses two related problems that the Supreme Court must address—the large increase in nationwide preliminary injunctions issued by district judges to prohibit the executive branch from implementing major federal actions and the large increase in the number of cases in which the Supreme Court either stays or refuses to stay preliminary injunctions without providing an adequate explanation for its action. He begins by describing the sources of the two problems and the many ways in which they threaten our system of justice. He then urges the Court to issue an opinion in which it provides …

Review Of Shucheng Wang, Law As An Instrument: Sources Of Chinese Law For Authoritarian Legality (Cambridge University Press 2022), Donald C. Clarke

GW Law Faculty Publications & Other Works

This brief note reviews Shucheng Wang’s Law as an Instrument: Sources of Chinese Law for Authoritarian Legality. It finds that the author provides a well-informed, in-depth exploration of the sources of Chinese law and offers rich food for thought on these and other questions in the world of Chinese legal studies. The author brings a good sense of the political realities of the Chinese legal system to his study.

Judges And The Deregulation Of The Lawyer's Monopoly, Jessica Steinberg, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark

GW Law Faculty Publications & Other Works

In a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as …

Judges In Lawyerless Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica Steinberg, Alyx Mark

GW Law Faculty Publications & Other Works

The typical American civil trial court is lawyerless. In response to the challenge of pro se litigation, scholars, advocates, judges, and courts have embraced a key solution: reforming the judge’s traditional role. The prevailing vision calls on trial judges to set aside traditional judicial passivity, simplify court procedures, and offer a range of assistance and accommodation to people without counsel.

Despite widespread support for judicial role reform, we know little of whether and how judges are implementing pro se assistance recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the power …

Covid, Crisis And Courts, Colleen F. Shanahan, Alyx Mark, Jessica K. Steinberg, Anna E. Carpenter

GW Law Faculty Publications & Other Works

Our country is in crisis. The inequality and oppression that lies deep in the roots and is woven in the branches of our lives has been laid bare by a virus. Relentless state violence against black people has pushed protestors to the streets. We hope that the legislative and executive branches will respond with policy change for those who struggle the most among us: rental assistance, affordable housing, quality public education, comprehensive health and mental health care. We fear that the crisis will fade and we will return to more of the same. Whatever lies on the other side of …

Informal, Inquisitorial, And Accurate: An Empirical Look At A Problem-Solving Housing Court, Jessica K. Steinberg

GW Law Faculty Publications & Other Works

Substantive justice is often seen as elusive in courts dominated by low-income individuals. Complex court rules, coupled with pervasive lack of counsel, can make it difficult for the traditional adversary process to identify and redress legitimate grievances. This Article takes on the social problem of substandard housing and examines whether inquisitorial procedure has the potential to produce accurate outcomes in a tribunal dominated by the unrepresented.

Relying on in-court observations of nearly 300 hearings, and a longitudinal review of nearly 75 cases, this Article surfaces the regularized procedures utilized by a purported “problem-solving” housing court, and theorizes that the inquisitorial …

Demand Side Reform In The Poor People’S Court, Jessica K. Steinberg

GW Law Faculty Publications & Other Works

A crisis in civil justice has seized the lowest rungs of state court where the great majority of American justice is meted out. Nineteen million civil cases are filed each year in the so-called “poor people’s court,” and seventy to ninety-eight percent of those matters involve an unrepresented litigant who is typically low-income and often a member of a vulnerable population. This Article challenges the predominant scholarly view in favor of “supply side” remedies for improving access to justice—that is, remedies focused exclusively on supplying counsel to litigants, either through adoption of “civil Gideon,” a universal civil right to counsel, …

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

GW Law Faculty Publications & Other Works

This article discusses the ramifications of the U.S. Supreme Court's decision in Phillips Petrolem 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 their ideas about …