Law Commons^™

The Myth Of Personal Liability: Who Pays When Bivens Claims Succeed, James E. Pfander, Alexander A. Reinert, Joanna C. Schwartz

Articles

In Bivens v. Six Unknown Named Agents, the Supreme Court held that federal law creates a right to sue federal officials for Fourth Amendment violations. For the last three decades, however, the Court has cited the threat of individual liability and the burden of government indemnification on agency budgets as twin bases for narrowing the right of victims to secure redress under Bivens. In its most recent decisions, Ziglar v. Abbasi and Hernandez v. Mesa, the Court said much to confirm that it now views personal liability less as a feature of the Bivens liability rule than …

A Knock On Knick'S Revival Of Federal Takings Litigation, Stewart Sterk, Michael C. Pollack

Articles

In Knick v. Township of Scott, the United States Supreme Court held that a landowner who claimed to have suffered a taking at the hands of state or local officials could seek redress in federal court without the need to first seek compensation through state proceedings. This holding raises serious theoretical and practical concerns. On the theoretical side, Knick rests on the implicit assumption that states separate powers among branches of government in the same way the federal government does. It also relies on a second assumption: that relegating taking claims to state court makes them unique. Neither is …

The Dynamism Of Health Law: Expanded Insurance Coverage As The Engine Of Regulatory Reform, Gabriel Scheffler

Articles

Can law improve the delivery of health care? The predominant view is that law serves as a barrier to reforming the health care delivery system. Health law scholars of all stripes blame regulations for impeding innovation, limiting competition, and exacerbating fragmentation in health care.

I argue that this view neglects an important-but overlooked-feature of health law: the dynamic relationship between laws that expand health insurance coverage and laws that regulate the delivery of health care. By expanding health insurance coverage and increasing the demand for health care, laws such as Medicare, Medicaid and the Affordable Care Act catalyze policymakers to …

The Hidden Disability Consensus In The 2020 Campaign, Harold A. Pollack, Samuel R. Bagenstos

Articles

At this writing, the final results of the Iowa caucuses remain unreported. No one yet knows which candidates did well and which did poorly. We do know that health policy is a defining cleavage between left and liberal Democrats this primary season. Much of the press coverage will naturally focus on the implications of this vote for Democrats’ commitment to an incremental public option or a full-throated single-payer plan.

Artificial Intelligence & Machine Learning: A Model For A New Judicial System?, Paula C. Arias

Articles

Artificial Intelligence and Machine Learning are a result not only of technological advances but also of the exploitation of information or data, which has led to its expansion into almost all aspects of modern life, including law and its practice. Due to the benefits of these technologies, such as efficiency, objectivity, and transparency, the trend is towards the integration of Artificial Intelligence and Machine Learning in the judicial system. Integration that is advocated at all levels and, today, has been achieved mostly under the implementation of tools to assist the exercise of the judiciary. The «success» of this integration has …

Using Transactional Practice Competitions To Introduce Students To Key Deal-Making Skills, Ted Becker, Eric Zacks

Articles

Law school moot court competitions are everywhere. That is a bit of an exaggeration, to be sure, but not by much. At last count, students with an interest in litigation had more than 60 interschool appellate advocacy competitions to choose from, ranging in topics from admiralty to space law to veterans law. Toss in trial advocacy competitions, and the number of opportunities to hone litigation skills increases significantly. And seemingly every law school has its own intraschool litigation competitions, ranging from part of a 1L legal writing program to school-wide appellate advocacy competitions whose final rounds attract prominent judges or …

Olmstead V. L.C.: The Supreme Court Case, Samuel R. Bagenstos, Irv Gornstein, Michael Gottesman, Jennifer Mathis

Articles

You have an incredible luxury here at Georgetown Law. You have faculty who are engaged in the world like two of my colleagues on this panel. To my immediate left is Professor Michael Gottesman (Georgetown University Law Center) who argued the case on behalf of Lois and Elaine, and to my next far left, Professor Irv Gornstein (Georgetown University Law Center) who argued the case on behalf of the United States. Between them is Jennifer Mathis (The Bazelon Center for Mental Health Law) who has spent, I think, most of her career at the Bazelon Center litigating, and organizing, and …

Designing And Enforcing Preliminary Agreements, Albert H. Choi, George Triantis

Articles

Preliminary agreements—variously labeled as memoranda of understanding, letters of intent, term sheets, commitment letters, or agreements in principle—are common in complex business transactions. They document an incomplete set of terms that the parties have agreed upon, while anticipating further negotiation of the remaining provisions. They often create legal obligations, particularly a duty to negotiate in good faith. This duty has been the subject of a substantial number of judicial opinions over the past few decades and yet continues to be regarded as a confusing and unpredictable issue in contract law. Legal scholarship is hamstrung in its analysis of the case …

The New Qui Tam: A Model For The Enforcement Of Group Rights In A Hostile Era, Myriam E. Gilles, Gary Friedman

Articles

The present Administration has made clear it has no interest in enforcing statutes designed to protect workers, consumers, voters, and others. And, as we have chronicled in prior work, the ability of private litigants to enforce these laws has been undercut by developments in the case law concerning class actions—particularly class-banning arbitration clauses. As these critical enforcement methods recede, will alternative methods of prosecuting claims arise? How might they work? Are they politically and fiscally sustainable? We focus here on a promising approach just now coming into view: qui tam legislation authorizing private citizens to bring representative claims on behalf …

Is Obamacare Really Unconstitutional?, Nicholas Bagley

Articles

On December 18, 2019, just 3 days after the close of open enrollment on the exchanges and on the same day the House of Representatives impeached President Donald Trump, a conservative appeals court handed the President a major victory in his crusade against the Affordable Care Act (ACA). Over a stern dissent, the U.S. Court of Appeals for the Fifth Circuit declared that the law’s individual mandate is unconstitutional and that the entire rest of the law might therefore be invalid.

Madison V. Alabama: An Analysis And Future Considerations, Kaleb Byars

Articles

In 1985, Vernon Madison killed a police officer in Alabama. At trial, an Alabama jury convicted Madison of capital murder, and the trial court sentenced him to death. While awaiting his execution, Madison suffered strokes and was diagnosed with several mental disorders, including vascular dementia. Madison averred these disorders, particularly vascular dementia, rendered him unable to remember committing his crime. Accordingly, Madison petitioned to stay his execution, arguing his disorders rendered him mentally incompetent. Particularly, Madison argued the inability to remember committing the murder prevented him from understanding his conviction. ...

Part I of this Article has introduced the facts …

Cultural Linguistics And Treaty Language: A Modernized Approach To Interpreting Treaty Language To Capture The Tribe's Understanding, Barbara Cosens

Articles

Language is a reflection of a thought world. A worldview that has been shaped by place to describe one's identity in space and time does not equate to species relatedness as a default to know one another. In the legal system of the United States, there is acknowledgement of treaties in colonized lands that there are rights granted from the tribes and not to them, and those rights are land-based. Yet, the Indigenous voice is dead before arrival, before it enters the room of science, justice, academe, or otherwise. The exclusion of Indigenous peoples at the table of knowledge and …

Leading Through Collaboration: A Tribute To Distinguished Professor Barbara Cosens, Donald L. Burnett Jr.

Articles

No abstract provided.

A Tribute To Professor Monique Lillard, John E. Rumel

Articles

No abstract provided.

The Historical Evolution Of The Methodology For Quantifying Federal Reserved Instream Water Rights For American Indian Tribes, Dylan R. Hedden-Nicely

Articles

From the earliest days of their relationship with the United States, the tribes from the region today referred to as the Northwestern United States have been steadfast in their effort to protect the land, waters, plants, and animals of their traditional homelands. That effort is not coincidental; North America's indigenous people have a singular relationship to the environment they have been a part of for millennia. In particular, they have relied on the streams of their territory for food, fiber, transportation, recreation, cultural, and spiritual sustenance. As a result, through litigation, restoration, and conservation management, tribes have focused on maintaining …

Indigenous Rights And Climate Change: The Influence Of Climate Change On The Quantification Of Reserved Instream Water Rights For American Indian Tribes, Dylan R. Hedden-Nicely

Articles

The people indigenous to the Western portion of the lands now referred to as North America have relied on aquatic species for physical, cultural, and spiritual sustenance for millennia. Such indigenous peoples, referred to in the American legal system as Indian tribes, are entitled to water rights for fish habitat pursuant to the Winters Doctrine, which holds that the federal government impliedly reserved water rights for tribes when reservations were created. Recently, the methodology for quantifying these rights has been the Instream Flow Incremental Methodology (IFIM) and/or one of its major components, the Physical Habitat Simulation Model (PHABSIM). These models …

Leading Through Collaboration: A Tribute To Distinguished Professor Barbara Cosens, Dylan R. Hedden-Nicely

Articles

No abstract provided.

Kidnapping Reconsidered: Courts Merger Tests Inadequately Remedy The Inequities Which Developed From Kidnapping's Sensationalized And Racialized History, Samuel P. Newton

Articles

No abstract provided.

Innovation In A Legal Vacuum: The Uncertain Legal Landscape For Shared Micro-Mobility, David Pimentel

Articles

The last few years have seen an explosion in the number and size shared of micro-mobility systems (“SMMS”) across the United States. Some of these systems have seen extraordinary success and the potential benefit of these systems to communities is considerable. However, SMMS have repeatedly ran into legal barriers that either prevent their implementation entirely, confuse and dissuade potential users, or otherwise limit SMMS’s potential positive impact. This paper reflects a detailed study of state laws relating to SMMS and the platforms commonly used in these systems. The study uncovered many inconsistencies with micro-mobility laws across the country. Currently, many …

Distancing Refugees, Geoffrey Heeren

Articles

Today, two systems exist for addressing the humanitarian claims of persons fleeing persecution. One system consists of refugees living in host countries, often in large camps, who ideally are then resettled in other countries or repatriated when it is safe to do so. The other system involves refugees arriving in a country and seeking asylum-a right with ancient religious roots. The first "encampment model" is fundamentally broken, as most refugees are housed in the developing or least developed world in terrible conditions for extended periods of time, with little or no realistic hope of resettlement elsewhere or repatriation. The developed …

A Tribute To Maureen Laflin, Elizabeth Brandt

Articles

No abstract provided.

Identity: Obstacles And Openings, Osamudia R. James

Articles

Progress regarding equality and social identities has moved in a bipolar fashion: popular engagement with the concept of social identities has increased even as courts have signaled decreasing interest in engaging identity. Maintaining and deepening the liberatory potential of identity, particularly in legal and policymaking spheres, will require understanding trends in judicial hostility toward "identity politics," the impact of status hierarchy even within minoritized identity groups, and the threat that white racial grievance poses to identitarian claims.

A Tale Of Two Markets: Regulation And Innovation In Post-Crisis Mortgage And Structured Finance Markets, William Wilson Bratton, Adam J. Levitin

Articles

This Article takes stock of post-financial crisis regulatory developments to tell a tale of two markets within a political economy of financial regulation. The financial crisis stemmed from excessive risk-taking and dodgy practices in the subprime home mortgage market, a market that owed its existence to private-label securitization. The pre-crisis boom in private label mortgage-backed securities could never have happened, however, without financing from an array of structured products and vehicles created in the capital markets-CDOs, CDO2 s, and SIVs. It was these capital markets products that magnified mortgage credit risk and transmitted it into the financial system's vulnerable nodes. …

The Contemporary Methodology For Quantifying Reserved Instream Flow Water Rights To Support Aquatic Habitat, Dylan R. Hedden-Nicely

Articles

Since time immemorial, indigenous people have relied on the streams of their territory for food, fiber, transportation, recreation, cultural, and spiritual needs. Accordingly, tribal people-particularly those in the region now called the Northwestern United States-placed singular emphasis on preserving their traditional subsistence culture when negotiating with the United States during the reservation era. Although rarely expressed in these treaties, the tribes are nonetheless entitled to water rights sufficient to fulfill these traditional subsistence treaty rights. Of the suite of water rights to maintain traditional uses of water, likely the most commonly claimed is for water to maintain fish habitat. A …

Zealous Administration: The Deportation Bureaucracy, Geoffrey Heeren

Articles

An agency's culture shapes its lawmaking. Under certain conditions, agency culture dominates decision-making so strongly that it mutes the influence of those factors that administrative law scholars have traditionally focused on including presidential will, judicial oversight, internal resistance, and public opinion. We call this undertheorized phenomenon "zealous administration." The immigration enforcement bureaucracy has vast discretion to remove unauthorized immigrants from the United States. Current immigration policies-such as indiscriminate deportation, family separation, and harsh detention-represent the most prominent example of zealous administration in the federal government. This Article focuses on that bureaucracy to plumb the causes and effects of zealous administration …

A Critical Evaluation Of The Effectiveness And Legitimacy Of Webblocking Injunctions, Mark Hyland

Articles

Relative to the dual criteria of effectiveness and legitimacy, this article evaluates webblocking injunctions in the context of intellectual property law and with a particular focus on the vanguard role played by the English Courts. With regard to the first criterion, it is argued that there is reason to think that webblocking injunctions are viewed by IP owners as well as by legislators and courts as a relatively effective instrument in the protection of IP assets. Moreover, the extension of webblocking orders to trade marks together with their adoption in a number of legal systems, is further evidence that these …

D. Benjamin Beard: A Law Professor For All Seasons, Richard Henry Seamon

Articles

No abstract provided.

Precedent And Discretion, William Baude

Articles

Supreme Court precedent is a topic of perennial prominence. The Court overruled or severely limited multiple precedents last year, just as it did the year before that. Because of our widely-repeated norm of stare decisis, every overruling is criticized. Scholars have then debated whether the Court needs a stronger norm of stare decisis, so that it overrules fewer cases.

The Chicago School's Limited Influence On International Antitrust, Adam Chilton, Anu Bradford, Filippo Lancieri

Articles

No abstract provided.

The Machinery Of International Law And Democratic Backsliding: The Problem Of Term Limits, Tom Ginsburg

Articles

Utilizing a comprehensive panel dataset spanning from 1900 to 2020, this study introduces an innovative methodology for the analysis and categorization of legal documents, specifically national constitutions. Contrary to the predominant reliance on unsupervised methods within the field, this research incorporates a supervised machine-learning approach, notably the SEMMS method, alongside traditional unsupervised algorithms. This dual approach facilitates a nuanced analysis of the human rights provisions contained within national constitutions, resulting in the identification of both traditional and novel constitutional groupings. Broadly speaking, the more traditional common law-civil law divide does not seem particularly relevant in this context. Furthermore, our methodology …