Law Commons^™

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 …

The Justice Of Restitution, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

A restitutive theory of justice is a rights-based approach to criminal sanctions that views a crime as an offense by one individual against the rights of another calling for forced reparations by the criminal to the victim. This is a sharp departure from the two predominant sanctioning theories-retribution and crime prevention. Rights-based analysts have criticized this approach for failing to include mens rea, or criminal intent into the calculation of sanctions, thereby ignoring the traditional distinction between crime and tort. Such a distinction is problematic, however, since punishment for an evil mind cannot be made compatible with a coherent individual …

Resolving The Dilemma Of The Exclusionary Rule: An Application Of Restitutive Principles Of Justice, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Discussions of the merits of the exclusionary rule usually begin and end with a dilemma not unlike the classic "prisoner's dilemma." Suppression of illegally obtained, but reliable, evidence that leads to the release of a guilty defendant may constitute an injustice and a threat to the safety of innocent citizens. Admitting illegally obtained evidence, however, may encourage police officers to engage in illegal conduct to the detriment of countless numbers of citizens. The premise of the prisoner's dilemma is that the prisoner's choices have been limited by his captor to two, each of which is morally objectionable. The debate over …

Amendments To The Federal Rules Of Criminal Procedure, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Numerous changes in the rules governing criminal trials in federal court have been in effect for four months. Some are major and some are minor, but they should be studied carefully by lawyers handling criminal cases. Amendments have been made to:

Contemporary Social Historical Perspectives On Mental Health Reform, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The argument presented in this article is that a new role has been developing in law which can and should be used as a strategy in the provision of services. It will be further argued that there is an important place for the law in setting limits on established psychiatric measures relating, for example, to compulsory admission and treatment, and even to particularly hazardous measures taken with the consent of the patient. The final role of law is to ensure the civil status of those who are the consumers of psychiatric services. One must accept the fact that pernicious legal …

Generic Product Risks: The Case Against Comment K And For Strict Tort Liability, Joseph A. Page

Georgetown Law Faculty Publications and Other Works

The author considers whether strict liability should be imposed for injuries caused by products that pose generic risks--risks that do not derive from flaws in the manufacturing process but from product design or from the very nature of the product. He reviews the American Law Institute (ALI) debate that preceded adoption of section 402A of the Restatement (Second) of Torts and finds the ambiguous meaning of comment k, which deals with "unavoidably unsafe" products, of little use in determining whether section 402A applies to generic product risks. After examining the policy justifications for imposing strict liability in cases involving design …

Differentiating Sex From Sex: The Male Irresistible Impulse, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

The courts have not wholeheartedly embraced the idea of equality of the sexes, and therefore do not attack sex discrimination with the same vigor as they attack racism. Rather, the courts are equivocal about sexual equality and weigh equality less carefully for sex than for race. Color is thought an arbitrary distinction; gender, however, is assumed to be something of substance.

When courts sustain sex discrimination, they generally do not characterize it as such. Rather, differences between the sexes, both real and imagined, are used to justify the gender distinction. It is easy to be hypnotized by the purported differences …

Functional Analysis Of The Plain-Error Rule, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

In this article, I attempt to do two things at once. First, I attempt to analyze the Supreme Court's jurisdiction to conduct "plain-error" review of state court decisions. The plain-error issue merits consideration not only because of its intrinsic interest and arguable complexity, but also because the question whether the Supreme Court is authorized to engage in plain-error review is an open one that I would like to help resolve. My second objective, however, is the more important of the two. In the context of analyzing plain-error review, what I really want to do is analyze legal analysis itself. There …

Child Support Law And Policy: The Systematic Imposition Of Costs On Women, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

From 1970 to 1981, the number of divorces in the United States more than doubled, and the number of children living with one parent increased by fifty-four percent, to a total of 12.6 million children, or one child in five. The great majority of these children have a living noncustodial parent from whom they are entitled to receive support payrents. Thus, approximately twenty percent of the nation's children are involved- at least potentially-in the child support system. Yet, despite its growing reach, the child support system remains in many ways primitive and inchoate. Award amounts are inadequate to pay for …

Expository Justice, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The task of the federal judiciary is seriously complicated by the fact that it has to play one role while pretending to play another. We ask the courts to pretend that they are resolving disputes between parties, but what we really want them to do is tell us how to conform our behavior to our fundamental values. Society needs a branch of government to implement its fundamental values, and the federal judiciary is well suited to that task because it possesses the precise balance of autonomy and public accountability needed to perform the function properly.

However, the dispute resolution charade …

Compulsory Treatment In Psychiatry: Some Reflections On Self-Determination, Patient Competency And Professional Expertise, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In this article the author examines the rationale, in legal and policy terms, of the inextricable association traditionally formed between certification and incompetency. He argues that forming categories of people in which the law automatically dispenses with the requirement of seeking consent is fraught with conceptual inconsistencies and practical difficulties. He further argues that clinical judgments made without the consent of the patient should be made subject to an independent statutory review. Such a review procedure could also be adopted for treatments which are unusually hazardous, irreversible or not fully established even if the doctor purports to proceed with the …

Conditioning U.S. Security Assistance On Human Rights Practices, Stephen B. Cohen

Georgetown Law Faculty Publications and Other Works

In the United States, with its government of separated powers and functions, it is the executive branch, and in particular the Department of State, that bears responsibility for implementing legislation on foreign relations. The success of implementation will depend on political decisions, involving competing national interests, as well as on institutional and personal considerations of I he officials concerned. Inevitably, there is a gap between legislation and execution, especially when the Executive is not wholly sympathetic to the law. The gap may even devour legislated policies as the Executive refuses "to take Care that the Laws be faithfully executed," and …

Mason Ladd--In Memoriam, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

I shall always have fond thoughts of my dear friends, Dean and Mrs. Ladd. I got to know them only recently--in the last six or seven years before his death. I was sorry I did not know them sooner. Of course, I always knew of the Dean's enormous contributions to the law of evidence. But I did not know, until I met him, that this was accompanied by an equally remarkable warmth and genuineness, a deep caring, and a charismatic presence (particularly on the podium). Nor did I know of the loving support and charm of Mrs. Ladd, an equal …

Title Vi And The Constitution: A Regulatory Model For Defining ‘Discrimination’, Charles F. Abernathy

Georgetown Law Faculty Publications and Other Works

In recent years confusion has surrounded the proper interpretation of title V1 of the Civil Rights Act of 1964, which prohibits discrimination in programs receiving federal financial assistance. Some courts have held that the title prohibits only intentional discrimination. Others have held that it proscribes actions having discriminatory effects as well, an interpretation that imposes a great burden on federal grantees. The Supreme Court heightened the confusion when five individual justices in Regents of the University of California v. Bakke questioned the propriety of the Court's earlier adoption of an "effects" test for title VI. Professor Abernathy argues that this …

Perils Of The Rulemaking Process: The Development, Application, And Unconstitutionality Of Rule 804(B)(3)'S Penal Interest Exception, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

As the culmination of a decade of rulemaking, in 1975 Congress enacted the Federal Rules of Evidence, which include in rule 804(b)(3) an exception to the hearsay rule that allows federal courts to admit statements against penal interest. Having reviewed previously unpublished memoranda and nonpublic tape recordings of the deliberations of the Advisory and Standing Committees to the Judicial Conference and the Special Subcommittee on Reform of Federal Criminal Laws of the House Judiciary Committee, Professor Tague explores the development of rule 804(b)(3), one of the more controversial rules that emerged from that rulemaking process. After analyzing rule 804(b)(3) and …

The Federal Rules Of Evidence: Six Years After, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The Federal Rules of Evidence have been in effect since 1975. Six years of experience is not much time in which to assess such a complex and important body of law. Nevertheless, there is now some "evidence" of the impact of the Federal Rules on the various states and circuits.

The Rules do seem to have proved successful enough to stimulate widespread imitation. Approximately half the states in the United States have or will very shortly have evidence codes patterned substantially on the Rules, even down to their numbers. Many of the remaining states (e.g., Iowa, Illinois, and Pennsylvania) have …

Multiple Representation Of Targets And Witnesses During A Grand Jury Investigation, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

The propriety of one attorney representing several clients whose conduct is under investigation by a grand jury has been explored only superficially by the courts and the American Bar Association's Code of Professional Responsibility. Prosecutors nonetheless have often moved to disqualify counsel representing multiple clients in recent years, basing their motions both on the client's interest in loyal and competent representation and on the government's interest in the unimpeded progress of the grand jury investigation. Professor Tague discusses the factors that counsel should consider in deciding whether to undertake multiple representation at the grand jury stage, including strategy, ethics, and …

International Year Of Disabled Persons: The Institution In England And Wales, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

A notable characteristic of American federalism is that domestic policy has been substantially determined by the courts. The judiciary has introduced its own social morality to ensure reasonable access to services for minority groups.

The concept of judicial policy making has found no greater expression than in the field of mental retardation where the service provided has been largely mandated by judges.

On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit, Brief Of The Federal Bar Association As Amicus Curiae, The Upjohn Company, Et Al. V. United States Of America, Et Al., Thomas G. Lilly, Alfred F. Belcuore, Paul F. Rothstein, Ronald L. Carlson

U.S. Supreme Court Briefs

This case presents the question of whether communications between employees of a corporation and an attorney representing that corporation are entitled to the full protections of the attorney-client privilege only when the employees are those responsible for deciding and directing the corporation's response to the attorney's legal advice.

Rule 10b-5 And The Corporation’S Affirmative Duty To Disclose, Jeffrey D. Bauman

Georgetown Law Faculty Publications and Other Works

In order to make responsible investment decisions investors must be adequately informed. In this article Professor Bauman argues that the existing disclosure requirements of the federal securities laws do not meet the informational needs of investors because there is no affirmative duty to disclose all material information. In order to fill this substantial gap in the existing disclosure scheme, Professor Bauman argues that rule lob-5 should be read to require prompt disclosure of all material information subject only to limited exceptions and should be applicable even in the absence of trading or prior inaccurate disclosure.

Multiple Representation And Conflicts Of Interest In Criminal Cases, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Conflicts of interest resulting from multiple representation in criminal cases impose heavy burdens on all the participants in the criminal justice system. Although the Supreme Court in Holloway v. Arkansas refused to hold that joint representation is unconstitutional per se, it recently approved Proposed Rule of Criminal Procedure 44(c), which would require trial courts to protect a defendant's right to counsel in this situation. After discussing the current approaches of the courts to the problems presented by joint representation, Professor Tague analyzes the proposed rule. He criticizes the proposed rule for its failure to define the role of the trial …

In Memoriam: Charles Fahy, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

Charles Fahy received a Bachelor of Laws degree from Georgetown in 1914. He attended school in the evenings while working in the day as legal secretary to Joseph J. Darlington, then a leader of the local bar.

Federal Discovery: A Survey Of Local Rules And Practices In View Of Proposed Changes To The Federal Rules, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

Traditionally, except for the limited role played by pleadings and bills of particulars, the attorney in a law court did not disclose evidentiary matters until trial. "A judicial proceeding was a battle of wits rather than a search for the truth,"' and thus, each side was protected to a large extent against disclosure of his case until counsel chose to disclose it at trial. This philosophy changed some forty years ago with the introduction of discovery in the Federal Rules of Civil Procedure. In the words of Mr. Justice Murphy, the discovery rules meant that "civil trials in the federal …

Special Report - Federal Criminal Code Revision: Some Problems With Culpability Provisions, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The age of federal codification is upon us. The Federal Rules of Evidence and the new bankruptcy and copyright revisions are but examples. By far the most ambitious undertaking in this regard is the effort to recodify federal criminal law.

The federal criminal code project, spanning more than a decade was most recently embodied in the last Congress in S. 1437, which passed the Senate, and H.R. 13959, which competed in the House with S. 1437. Neither bill passed the House. Thus, the Congress closed without a new Code. But both the bills will be back with us, introduced with …

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 …

Restitution: A New Paradigm For Criminal Justice, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

This paper will analyze the breakdown of our system of criminal justice in terms of what Thomas Kuhn would describe as a crisis of an old paradigm- punishment. I propose that this crisis could be solved by the adoption of a new paradigm of criminal justice-restitution. The approach will be mainly theoretical, though at various points in the discussion the practical implications of the rival paradigms will also be considered. A fundamental contention will be that many, if not most, of our system's ills stem from errors in the underlying paradigm. Any attempt to correct these symptomatic debilities without a …

Workers' Health And Safety: Whose Costs, Whose Benefits?, Joseph A. Page

Georgetown Law Faculty Publications and Other Works

Health and safety on the job remain sources of bitter controversy in the public forums. Businessmen rail against the Occupational Safety and Health Administration (OSHA) for its "dictatorial" enforcement of "oppressive" regulations, leading President Ford in early 1976 to demonstrate sympathy for their concerns. Labor leaders deplore the failure of industry and government to stem the toll of death and disablement from work-related disease. Members of' Congress, responsive to pressures from constituents, fill pages of the Congressional Record with reports of both employer vexations and employee tragedies.

Like ships passing in the night, advocates on both sides tend to regard …

The Attempt To Improve Criminal Defense Representation, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Improvement of criminal defense representation is one of the most critical problems that faces the criminal justice system. The problem is extensive; some attorneys are frequently ineffective and probably all attorneys are occasionally inadequate because of error, overwork, personal problems or ethical conflicts.

The defendant's only remedy against his attorney's ineffectiveness is through direct appeal or collateral post-conviction attack. This article discusses the reasons why courts cannot improve defense representation through these avenues of review. Deep disagreement among judges about the purpose of post-conviction review has crippled any attempt at improvement. The key unresolved question is whether the standard for …

The Second Circuit Review--1975-76 Term: Courts-- Evidence & Procedure: Commentary: The Second Circuit And The Federal Rules Of Evidence, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The most significant development in federal trial procedure in recent years has been the enactment of the Federal Rules of Evidence, effective July 1, 1975. In the intervening two years since the Rules became effective, the courts of the Second Circuit have bad occasion to make several illuminating applications of and references to them.

An examination of some of these decisions provides insight into the kinds of questions that are coming up not only in the Second Circuit, but around the country, and the kinds of answers that are being given. It is not the bizarre or unusual case that …

Courts: Evidence And Procedure, Commentary: The Second Circuit And The Federal Rules Of Evidence, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The most significant development in federal trial procedure in recent years has been the enactment of the Federal Rules of Evidence, effective July 1, 1975. In the intervening two years since the Rules became effective, the courts of the Second Circuit have bad occasion to make several illuminating applications of and references to them.