Law Commons^™

Surveillance, State Secrets, And The Future Of Constitutional Rights, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s 2022 decision in Federal Bureau of Investigation v. Fazaga heralds a worrying trend. Over the past 15 years, as more information about how the government wields its foreign intelligence collection authorities on U.S. soil has become available, it has become clear that the government has repeatedly acted outside its constitutional and statutory limits, and at times, in flagrant disregard for judicial orders. As a result, dozens of cases challenging surveillance have been making their way through the courts. Unlike in prior eras, in certain cases it has become easier for litigants to establish an injury-in-fact in light …

Prior Racist Acts And The Character Evidence Ban In Hate Crime Prosecutions, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The killing of unarmed African-American Ahmaud Arbery and others ignited a wave of public outrage and re-focused attention on race and the criminal justice system. During the recent federal hate crimes proceedings for Arbery’s death, the prosecution introduced evidence relating to the alleged past racist acts of the defendants. This type of evidence may be seen as highly probative and desperately needed to do justice in hate crimes cases. On its face, however, such type of evidence appears to be inadmissible owing to the well-known—but little understood— evidentiary ban on character evidence prescribed in Federal Rule of Evidence 404(b) and …

Gender And Deception: Moral Perceptions And Legal Responses, Gregory Klass, Tess Wilkinson-Ryan

Georgetown Law Faculty Publications and Other Works

Decades of social science research has shown that the identity of criminal defendants and alleged victims often affects case outcomes. Parties’ race, gender, class, and age affect decisions of prosecutors, judges, juries, and other actors in the criminal system. Less studied has been how identity might affect other forms of legal regulation. This essay begins to explore how parties’ gender might figure into legal decisionmakers’ responses to deceptive behavior. More specifically, we explore the hypothesis that ordinary people tend to perceive deception of women as more wrongful than deception of men, and that such perceptions can affect both case outcomes …

Resetting The Rules On Trade And Gender? A Comparative Assessment Of Gender Approaches In Regional Trade Agreements In The Context Of A Possible Gender Protocol Under The African Continental Free Trade Area, Katrin Kuhlmann

Georgetown Law Faculty Publications and Other Works

At long last, gender and trade are together on the international agenda, with significant implications for women entrepreneurs and traders around the world. Alongside the landmark 2017 Joint Declaration on Trade and Women’s Empowerment, regional trade agreements (RTAs) have taken the lead on more tangible gender commitments. One such RTA is the African Continental Free Trade Area (AfCFTA), in which gender appears as an express priority alongside sustainable and inclusive socio-economic development. Yet, this is only a starting point. A gender-focused protocol has been proposed under the AfCFTA framework, representing a significant opportunity to reassess RTA provisions on gender and …

Property And Sovereignty In America: A History Of Title Registries & Jurisdictional Power, K-Sue Park

Georgetown Law Faculty Publications and Other Works

This Article tells an untold history of the American title registry—a colonial bureaucratic innovation that, though overlooked and understudied, constitutes one of the most fundamental elements of the U.S. property system today. Prior scholars have focused exclusively on its role in catalyzing property markets, while mostly ignoring their main sources in the colonies -- expropriated lands and enslaved people. This analysis centers the institution’s work of organizing and “proving” claims that were not only individual but collective, to affirm encroachments on tribal nations’ lands and scaffold colonies’ tenuous but growing political, jurisdictional power. In other words, American property and property …

The Paradoxes Of A Unified Judicial Philosophy: An Empirical Study Of The New Supreme Court, 2020-2022, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

The 2021 Supreme Court Term ended with a bang, yielding blockbuster cases making headlines. But what of the rest of the cases? This is the first major paper to examine the “Trump effect,” meaning the influence of three Justices appointed by President Trump who all share a “unified” judicial philosophy. In a two-year project, starting from 2020, when Justice Barrett ascended to the Court, to the end of June 2022, this article reviews 124 cases and over 300 opinions. There is both good and bad news for the court’s new “unified” judicial philosophy. History and text are both upwardly mobile …

Ordinary Meaning And Ordinary People, Kevin Tobia, Brian G. Slocum, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

Perhaps the most fundamental principle of legal interpretation is the presumption that terms should be given their “ordinary” (i.e., general, non- technical) meanings. This principle is a central tenet of modern textualism. Textualists believe a universal presumption of ordinary meaning follows from their theory’s core commitment: A law should be interpreted consistently with what its text communicates to the ordinary public. This Article begins from this textualist premise, empirically examining what legal texts communicate to the public. Five original empirical studies (N = 4,365) reveal a surprising finding: Ordinary people consider genre carefully and regularly take terms in law to …

Fixing "Litigating The Fix", Steven C. Salop, Jennifer E. Sturiale

Georgetown Law Faculty Publications and Other Works

Merging firms have increasingly been asking trial courts to adjudicate their merger “as remedied” by a voluntary “fix.” These are remedies that have been rejected by (or never proposed to) the agency. This procedure is known as Litigating-the-Fix” (“LTF”). This article proposes a judicial procedure for managing cases in which the merging parties attempt to LTF. Our recommendations flow from a decision theory approach informed by the relevant LTF case law, the merger enforcement record, the language and goals of Section 7, and an economic analysis of the incentives of the parties and agencies created by LTF. Our recommendation addresses …

The Antiregulatory Arsenal, Antidemocratic Can(N)Ons, And The Waters Wars, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

The Clean Water Act (CWA) has become a centerpiece in an enduring multifront battle against both environmental regulation and federal regulatory power in all of its settings. This article focuses on the emergence, elements, and linked uses of an antiregulatory arsenal now central to battles over what are federally protected “waters of the United States.” This is the key jurisdictional hook for CWA jurisdiction, and hence, logically, has become the heart of CWA contestation. The multi-decade battle over Waters protections has both drawn on emergent antiregulatory moves and generated new weapons in this increasingly prevalent and powerful antiregulatory arsenal. This …

Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …

The Common Law As Statutory Backdrop, Anita S. Krishnakumar

Georgetown Law Faculty Publications and Other Works

Amidst the whirl of commentary about how the U.S. Supreme Court has become increasingly textualist and what precise shape modern textualism should take, the Court’s continued reliance on one decidedly atextual interpretive tool has gone largely unnoticed — the common law. Indeed, the common law has played an underappreciated, often dispositive, gap-filling role in statutory interpretation for decades, even as the textualist revolution has sidelined other non-text-focused interpretive tools. But despite the persistent role that the common law has played in statutory interpretation cases, the use of common law rules and definitions as an interpretive resource is surprisingly understudied and …

From Experiencing Abuse To Seeking Protection: Examining The Shame Of Intimate Partner Violence, A. Rachel Camp

Georgetown Law Faculty Publications and Other Works

Shame permeates the experience of intimate partner violence (IPV). People who perpetrate IPV commonly use tactics designed to cause shame in their partners, including denigrating their dignity, undermining their autonomy, or harming their reputation. Many IPV survivors report an abiding sense of shame as a result of their victimization—from a lost sense of self, to self-blame, to fear of (or actual) social judgment. When seeking help for abuse, many survivors are directed to, or otherwise encounter, persons or institutions that reinforce rather than mitigate their shame. Survivors with marginalized social identities often must contend not only with the shame of …

Merger Enforcement Statistics: 2001-2020, Logan Billman, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This article summarizes merger enforcement data for the period between 2001 and 2020, using a database created by the authors. The database lists the identity and outcome of every transaction that received a second request during this 20-year period. The database also lists the identity and outcome of every challenge to an already-consummated merger during the period. To our knowledge, it is the only complete database for the listing and outcomes of all such transactions. The goal of creating the database is to provide further information on merger enforcement, which hopefully can inform policy and spur additional analysis. We describe …

The Academic Medical-Legal Partnership: Training The Next Generation Of Health & Legal Professionals To Work Together To Advance Health Justice, Vicki W. Girard, Deborah F. Perry, Lisa P. Kessler, Yael Cannon, Prashasti Bhatnagar, Jessica Roth

Georgetown Law Faculty Publications and Other Works

As the national medical-legal partnership (MLP) movement grows, the need for doctors, nurses, social workers, other health professionals, and lawyers who have the knowledge, skills, and experience to collaborate effectively in this holistic healthcare approach is increasing. Given the unique role that institutions of higher education play in training students as they develop their professional identities, members of the Georgetown University Health Justice Alliance sought to build on prior efforts to define the MLP model by focusing on MLPs that exist in academic settings as a specific type of MLP. This report is based on the results of an environmental …

Can Micropolitan Areas Bridge The Urban/Rural Divide?, Sheila Foster, Clayton P. Gillette

Georgetown Law Faculty Publications and Other Works

There exists a well-known and significant divide between urban and rural areas in the United States. The divide has been documented along multiple dimensions – social, economic, and political – and is seen as a detrimental characteristic of our national identity and capacity for both economic development and civil political discourse. In this Article, we explore a subset of the urban/rural divide and propose a mechanism for reducing its economic and political effects within that limited realm. Specifically, we focus on the subset of rural areas that lie within what the Office of Management and Budget defines as micropolitan areas. …

Misrepresentation And Contract, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Contract theorists naturally focus on the duty to perform. This chapter argues they should also pay attention to duties of candor in the contracting context. The most obvious example of such duties can be found in the misrepresentation defenses, which aim to ensure that contractual undertakings are sufficiently voluntary and to allocate the costs of defective consent. But other laws of deception, such as the torts of negligent misrepresentation and deceit, are also integral to the law of contracts. Separate liability in tort for both pre- and post-formation misrepresentations helps parties who mistrust one another determine whether an exchange is …

Some Thoughts On Reply Briefs, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Does The 1l Curriculum Make A Difference?, David A. Hyman, Jing Liu, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

Georgetown Law’s Curriculum B (also known as Section 3) offers a unique opportunity to study an alternative 1L curriculum. The standard 1L curriculum has been around for decades and is still offered at the vast majority of U.S. law schools. Leaders in the legal academy often talk about experimenting with the 1L curriculum, but hardly anyone does it. Georgetown Law has. We study whether Georgetown’s Curriculum B yields measurable differences in student outcomes. Our empirical design leverages the fact that enrollment in Curriculum B is done by lottery when it is oversubscribed—meaning our study is effectively a randomized controlled trial. …

Tort Liability And Unawareness, Surajeet Chakravarty, David Kelsey, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

We explore the implications of unawareness for tort law. We study cases where injurers and victims initially are unaware that some acts can yield some consequences, or alternatively that some acts or consequences are even possible, but later become aware. Following Karni and Viero (2013) we model unawareness by Reverse Bayesianism. We compare the two basic liability rules of Anglo-American tort law, negligence and strict liability, and argue that negligence has an important advantage over strict liability in a world with unawareness—negligence, through the stipulation of due care standards, spreads awareness about the updated probability of harm.

What Nations Owe Each Other Before The Next Pandemic, Lawrence O. Gostin, Kevin A. Klock, Sam F. Halabi, Katie Gottschalk, Katherine Ginsbach, Kashish Aneja

Georgetown Law Faculty Publications and Other Works

On December 1, 2021, the World Health Assembly adopted a resolution establishing an Intergovernmental Negotiating Body (INB) to determine the content and form of a new pandemic agreement. A portion of the public has advocated for a non-binding agreement while others stress that nationalism should be prevented, with steps taken to monitor and enforce national compliance. The INB has needed to grapple with how the principle of national sovereignty, and the accompanying principle of non-interference, will be addressed with respect to the agreement’s content and form, including obligations to share data, resources, and personnel, and to relinquish control over certain …

The End Of Roe V Wade And New Legal Frontiers On The Constitutional Right To Abortion, I. Glenn Cohen, Melissa Murray, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

On June 24, 2002, the US Supreme Court ended the constitutional right to abortion in Dobbs v Jackson Women’s Health Organization. The Court’s majority decision authored by Justice Samuel Alito was substantially the same as a draft opinion leaked a month earlier. The regulation of abortion will now be decided by the states, with about half currently or will soon ban or severely restrict abortion access. In this Viewpoint, we explain the Dobbs ruling and what it means for physicians, public health, and society.

We focus on new legal frontiers in the constitutional right to abortion, including medication abortion …

The Constitutional (And Political) Safeguards Against Impeachment, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

Will the Trump impeachments inspire a flurry of future presidential impeachments? Will the second Trump impeachment, which occurred after the President left office, spur impeachments of lesser, former government officials? These and other questions emerged during the 2022 Missouri Law Review Symposium and on the Senate floor during the Trump impeachment trials. I have argued that we can make an educated prognosis about these possibilities based on constitutional structure. I called this argument the “political safeguards” of impeachment in my recent book, The Impeachments of Donald Trump: An Introduction to Constitutional Argument. What I called political safeguards, invoking the …

The Federal Global Migration And Quarantine Network: A Report From The National Academies Of Sciences, Engineering, And Medicine, Lawrence O. Gostin, Georges C. Benjamin, Tequam Worku

Georgetown Law Faculty Publications and Other Works

The COVID-19 pandemic thrust the US Centers for Disease Control and Prevention (CDC) Division of Global Migration and Quarantine (DGMQ) into the epicenter of the national response. DGMQ is charged with preventing the importation of infectious diseases at land and sea borders and the spread of those diseases within the US. For more than 50 years, the agency’s comprehensive quarantine system, its regulatory powers, and scientific guidance has placed DGMQ at the forefront of emergency response. CDC requested the National Academies of Sciences, Engineering, and Medicine (NASEM) to assess the performance of the DGMQ during the COVID-19 pandemic, covering 5 …

A New Architecture For Global Health Emergency Preparedness And Response—The Imperative Of Equity, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Even before COVID-19 emerged in Wuhan, China, in December 2019, the prevailing global narrative was inequity—in health, income, race, and socioeconomic status. COVID-19 amplified all these inequities. Early in the pandemic, low-income countries were left without key medical resources, such as diagnostic tests, personal protective equipment, and ventilators. By 2021, inequitable vaccine distribution captured global attention and outrage. This year, high-income countries have bought the lion’s share of Paxlovid, a highly effective antiviral treatment. Vaccine inequities remain with only 16% of people in low-income countries having received at least 1 vaccine dose vs 80% of people across high-income countries. This …

At Long Last, Who Member States Agree To Fix Its Financing Problem, Alexandra Finch, Kevin A. Klock, Eric A. Friedman, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Those who deeply care about improving the health and well-being of all people no matter their personal circumstances have long argued that sustainably financing the World Health Organization is a cornerstone imperative—and for good reason. WHO is the only institution with the mandate and legitimacy to sit at the center of the global health architecture and bring together all stakeholders to coordinate and execute all-of-humanity approaches. Now after decades of inaction, WHO's member states have agreed to substantially improve the agency’s financing model, giving it greater flexibility and enhanced capacity to fulfill its mandate as the world’s health champion. What …

Unmet Legal Needs As Health Injustice, Yael Cannon

Georgetown Law Faculty Publications and Other Works

In a seminal report in 2006, the American Bar Association recognized that millions of low-income Americans have civil legal issues that go unaddressed, jeopardizing their fundamental and basic human needs for shelter, sustenance, safety, family stability, and access to health care. The pandemic has only exacerbated this crisis. When rights in these areas go unenforced for Americans marginalized by poverty and race, their health can suffer, compounding health inequities. The fundamental civil legal needs of low-income Americans must be addressed in order to ensure health equity. This Article argues that unmet fundamental legal needs serve as determinants of health and …

Resisting Face Surveillance With Copyright Law, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

Face surveillance is animated by deep-rooted demographic and deployment biases that endanger marginalized communities and threaten the privacy of all. But current approaches have not prevented its adoption by law enforcement. Some companies have offered voluntary moratoria on selling the technology, leaving many others to fill in the gaps. Legislators have enacted regulatory oversight at the state and city levels, but a federal ban remains elusive. Both approaches require vast shifts in practical and political will, each with drawbacks. While we wait, face surveillance persists. This Article suggests a new possibility: face surveillance is fueled by unauthorized copies and reproductions …

Rebuilding Platform Antitrust: Moving On From Ohio V. American Express, Steven C. Salop, Daniel Francis, Lauren Sillman, Michaela Spero

Georgetown Law Faculty Publications and Other Works

Now that the immediate fallout from the Supreme Court’s blockbuster Amex decision has cooled, this Article aims to give a first draft of its place in antitrust history and to offer a roadmap for the next stage of the evolution of platform antitrust analysis. We focus on several issues that have not been fully analyzed in the literature. First, we argue that, rather than mangling the law of market definition, the Court should have explicitly permitted multi-market balancing of effects across the separate markets in which the platform was active. Second, we propose standards to implement such balancing in cases …

Deep-State Constitutionalism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this review, I explain how "Common Good Constitutionalism" taps into a deficiency of the conservative legal movement: namely, its exclusive focus on the law "as it is" at the expense of the underlying abstract normative principles that justify the positive law of our written Constitution. Due to this deficiency, the conservative legal movement gives short shrift to the Declaration of Independence and the Ninth Amendment and the natural rights to which both refer. This deficiency is in need of correction. But any such correction does not justify the jettisoning of originalism as Vermeule proposes. Nor does Vermeule defend his …

Random Justice, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

As recent Senate confirmation practices suggest, the Supreme Court is best understood as the head of a political branch of government, whose Justices are chosen in a process that makes their ideological views dispositive. Throughout the nation’s history, the Supreme Court has exercised its governing political ideology in ways that sacrifice the interests of nonwhites in order to advance the interests of Whites. In the present moment of heightened cultural sensitivity to structural discrimination and implicit bias, it would make sense to use affirmative action to help remedy the racially disparate distribution of societal resources that has been produced by …