Law Commons^™

Whom Do Prosecutors Protect?, Vida Johnson

Georgetown Law Faculty Publications and Other Works

Prosecutors regard themselves as public servants who fight crime and increase community safety on behalf of their constituents. But prosecutors do not only seek to protect those they are supposed to serve. Instead, prosecutors often trade community safety, privacy, and even the constitutional rights of the general public to enlarge police power. Prosecutors routinely advocate for weaker public rights, shield police from public accountability, and fail to prosecute police when they break the law.

This Article will show how prosecutors often protect police at the expense of the public. This Article suggests a novel theory of evaluating the conduct of …

Mandatory Anti-Bias Cle: A Serious Problem Deserves A More Meaningful Response, Rima Sirota

Georgetown Law Faculty Publications and Other Works

This essay addresses the problematic convergence of two recent trends: (1) the expansion of jurisdictions requiring anti-bias training (ABT) as part of mandatory continuing legal education (CLE), and (2) the growing recognition among social scientists that such training, at least as currently practiced, is of limited effectiveness.

Forty-six American states require continuing legal education (CLE), and eleven of these states now require lawyer ABT as one facet of CLE requirements. I have previously criticized the mandatory CLE system because so little evidence supports the conclusion that it results in more competent lawyers. The central question tackled by this essay is …

Progressive Prosecution Or Zealous Public Defense? The Choice For Law Students Concerned About Our Flawed Criminal Legal System, Abbe Smith

Georgetown Law Faculty Publications and Other Works

This Article addresses a question asked by many law students concerned about our flawed criminal legal system: should they become a prosecutor in an office run by a progressive prosecutor, or a public defender in an office devoted to zealous, client-centered (or holistic) defense? The Article starts with an anecdote about Philadelphia District Attorney Larry Krasner’s road show to recruit law students and young lawyers, and then proceeds as follows: First, this Article makes the case for progressive prosecution; then, it makes the case for zealous indigent defense; then, it identifies the obstacles and challenges for both kinds of lawyers …

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. …

Disrupting Data Cartels By Editing Wikipedia, Eun Hee Han, Amanda Levendowski, Jonah Perlin

Georgetown Law Faculty Publications and Other Works

Legal discourse in the digital public square is driven by memoranda, motions, briefs, contracts, legislation, testimony, and judicial opinions. And as lawyers are taught from their first day of law school, the strength of these genres of legal communication is built on authority. But finding that authority often depends on a duopoly of for-profit legal research resources: Westlaw and Lexis. Although contemporary legal practice relies on these databases, they are far from ethically neutral. Not only are these “data cartels” expensive-- creating significant access to justice challenges--they also are controlled by parent companies that profit by providing information to Immigration …

Race And Entrepreneurship: Reclaiming Narratives, Priya Baskaran, Alicia E. Plerhoples

Georgetown Law Faculty Publications and Other Works

This essay makes the case for engaging in counter-narratives and inclusive storytelling within the transactional clinic curriculum. The authors leverage lessons from Critical Race Theory to amplify the voices and experiences of underrepresented entrepreneurs and marginalized communities in both clinic seminar and selected casework. In doing so, we challenge hegemonic narratives of entrepreneurship and expose our law students to the presence and impact of interlocking systems of subordination that minimize the existence and contributions of entrepreneurs of color. We challenge our law students and ourselves to become more creative and thoughtful lawyers to a more inclusive and diverse set of …

Of Sheepdogs And Ventriloquists: Government Lawyers In Two New Deal Agencies, Daniel R. Ernst

Georgetown Law Faculty Publications and Other Works

From the neo-Weberian literature on state-building and the political sociology of the legal profession, one might expect government lawyers to be sheepdogs, nipping at the heels of straying administrators, supplying their agencies with the bureaucratic autonomy so often missing in American government. In this contribution to “Serious Fun” a symposium in honor of John Henry Schlegel of the University at Buffalo School of Law, I report my preliminary findings for two agencies created during the Hundred Days of Franklin D. Roosevelt’s presidency, the Agricultural Adjustment Administration and the National Recovery Administration. I suggest that the neo-Weberian model tends to minimize …

Biglaw: Money And Meaning In The Modern Law Firm, Milton C. Regan, Lisa H. Rohrer

Georgetown Law Faculty Publications and Other Works

The Great Recession intensified large law firms’ emphasis on financial performance, leading to claims that lawyers in these firms were now guided by business rather than professional values. Based on interviews with more than 250 partners in large firms, Mitt Regan and Lisa H. Rohrer suggest that the reality is much more complex. It is true that large firm hiring, promotion, compensation, and termination policies are more influenced by business considerations than ever before and that firms actively recruit profitable partners from other firms to replace those they regard as unproductive. At the same time, law firm partners continue to …

Lighting The Fires Of Learning In Law School: Implementing Aba Standard 314 By Incorporating Effective Formative Assessment Techniques Across The Curriculum, Julie L. Ross, Diana R. Donahoe

Georgetown Law Faculty Publications and Other Works

The American Bar Association now requires law schools to incorporate formative assessment into the law school curriculum by providing feedback to students relating to course-specific learning goals before the end-of-semester exam. Peer reviews and self-evaluations are two powerful formative assessment techniques that faculty can use to meet the new ABA standards to assess the students’ learning outcomes while courses are ongoing, creating more effective learning environments within the classroom.

This article argues that peer reviews and self-evaluations can be successfully used across the law school curriculum to deepen student understanding, encourage student cooperation, and develop students’ abilities to be self-regulated …

Capitalizing On Healthy Lawyers: The Business Case For Law Firms To Promote And Prioritize Lawyer Well-Being, Jarrod F. Reich

Georgetown Law Faculty Publications and Other Works

This Article is the first to make the business case for firms to promote and prioritize lawyer well-being. For more than three decades, quantitative research has demonstrated that lawyers suffer from depression, anxiety, and addiction far in excess of the general population. Since that time, there have been many calls within and outside the profession for changes to be made to promote, prioritize, and improve lawyer well-being, particularly because many aspects of the current law school and law firm models exacerbate mental health and addiction issues, as well as overall law student and lawyer distress. These calls for change, made …

Building Bridges Across Curricular And Status Lines: Gender Inequity Throughout The Legal Academy, Kristen K. Tiscione, Melissa H. Weresh

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Gender Inequity Throughout The Legal Academy: A Quick Look At The (Surprisingly Limited) Data, Kristen K. Tiscione

Georgetown Law Faculty Publications and Other Works

The long-standing overrepresentation of female law faculty in skills teaching and service-oriented positions is well documented. In contrast, the historical underrepresentation of female law faculty in top dean and tenured or tenure-track teaching positions has been widely recognized but difficult to quantify. The American Bar Association has a link in the statistics archives of its website to a chart from Fall 2013 on the gender, ethnicity, and status of law faculty. The Association of American Law Schools (AALS) links to the same chart on its website. This chart replaced a similar chart covering 2008 to 2009 that the ABA has …

Capitalizing On Healthy Lawyers: The Business Case For Law Firms To Promote And Prioritize Lawyer Well-Being, Jarrod F. Reich

Georgetown Law Faculty Publications and Other Works

This Article is the first to make the business case for firms to promote and prioritize lawyer well-being. For more than three decades, quantitative research has demonstrated that lawyers suffer from depression, anxiety, and addiction far in excess of the general population. Since that time, there have been many calls within and outside the profession for changes to be made to promote, prioritize, and improve lawyer well-being, particularly as many aspects of the current law school and law firm models exacerbate mental health and addiction issues, as well as overall law student and lawyer distress. These calls for change, made …

The Shallow State: The Federal Communications Commission And The New Deal, Daniel R. Ernst

Georgetown Law Faculty Publications and Other Works

American lawyers and law professors commonly turn to the New Deal for insights into the law and politics of today’s administrative state. Usually, they have looked to agencies created in the 1930s that became the foundation of the postwar political order. Some have celebrated these agencies; others have deplored them as the core of an elitist, antidemocratic Deep State. This article takes a different tack by studying the Federal Communications Commission, an agency created before the New Deal. For most of Franklin D. Roosevelt’s first two presidential terms, the FCC languished within the “Shallow State,” bossed about by patronage-seeking politicians, …

Techno-Optimism & Access To The Legal System, Tanina Rostain

Georgetown Law Faculty Publications and Other Works

For legal technologists, apps raise the prospect of putting the law in the hands of disadvantaged people who feel powerless to deal with their legal problems. These aspirations are heartening, but they rest on unrealistic assumptions about how people living in poverty deal with legal problems. People who are poor very rarely resort to the law to solve their problems. In the situations when they do seek solutions, they confront educational and material impediments to finding, understanding, and using online legal tools effectively. Literacy is a significant barrier. More than 15 percent of all adults living in the United States …

Women In The Legal Academy: A Brief History Of Feminist Legal Theory, Robin West

Georgetown Law Faculty Publications and Other Works

Women’s entry into the legal academy in significant numbers—first as students, then as faculty—was a 1970s and 1980s phenomenon. During those decades, women in law schools struggled: first, for admission and inclusion as individual students on a formally equal footing with male students; then for parity in their numbers in classes and on faculties; and, eventually, for some measure of substantive equality across various parameters, including their performance and evaluation both in and in front of the classroom, as well as in the quality of their experiences as students and faculty members and in the benefits to be reaped from …

Deliberative Constitutionalism In The National Security Setting, Mary B. Derosa, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

Deliberative democracy theory maintains that authentic deliberation about matters of public concern is an essential condition for the legitimacy of political decisions. Such deliberation has two features. The first is deliberative rigor. This is deliberation guided by public-regarding reasons in a process in which persons are genuinely open to the force of the better argument. The second is transparency. This requires that requires that officials publicly explain the reasons for their decisions in terms that citizens can endorse as acceptable grounds for acting in the name of the political community.

Such requirements would seem to be especially important in the …

Creating Space For Silence In Law School Collaborations, A. Rachel Camp

Georgetown Law Faculty Publications and Other Works

Law school programs are increasingly expanding collaborative experiences for their students. In many clinical programs, collaboration -- through team pairings and group work – has been the norm, and gradually, collaborative work is being developed throughout the doctrinal law school curriculum. This trend fits within a broader societal emphasis on a collaborative model of working and learning. In both professional and educational settings, collaboration is viewed as critical to the success of ideas and products. Learning theory consistently identifies learning as being “inherently social” and best retained when engaged in with others. And, collaboration can substantially benefit the final work …

The Contested Value Of Normative Legal Scholarship, Robin West

Georgetown Law Faculty Publications and Other Works

Legal scholarship, under attack from critics both inside and outside the legal academy, is on the horns of a “normativity” dilemma. To some critics, legal scholarship isn’t scholarship, because it’s too normative; while to others, it may be scholarship, but it’s not legal because it’s not normative enough.

In this article, I address one side of this issue, what I call the anti-normativity complaint: to wit, that legal scholarship is somehow not “true scholarship” because so much of it is overtly normative. Legal scholarship, according to this strand of criticism, isn’t true scholarship because of the dominance of “ought” …

Law's Emotions, Robin West

Georgetown Law Faculty Publications and Other Works

The emerging interdisciplinary field of “Law and Emotions” brings together scholars from law, psychology, classics, economics, literature and philosophy all of whom have a defining interest in law’s various relations to our emotions and to emotional life: they share a passion for law’s passions. They also share the critical premise, or assumption, that most legal scholars of at least the last half century, with a few exceptions, have mistakenly accorded too great of a role to reason, rationality, and the cool calculations of self interest, and have accorded too small a role to emotion, to the creation, the imagining, the …

Risks, Goals, And Pictographs: Lawyering To The Social Entrepreneur, Alicia E. Plerhoples

Georgetown Law Faculty Publications and Other Works

Scholars have argued that transactional lawyers add value by mitigating the potential for post-transaction litigation, reducing transaction costs, acting as reputational intermediaries, and lowering regulatory costs. Effective transactional attorneys understand their clients’ businesses and the industries or contexts in which those businesses operate. Applied to the start-up social enterprise context, understanding the client includes understanding the founders’ values, preferences, and proclivity for risk. The novel transactions and innovative solutions pursued by emerging social entrepreneurs may not lend themselves well to risk avoidance. For example, new corporate forms such as the benefit corporation are untested, yet appeal to many social entrepreneurs …

Conceptualizing Student Practice For The 21st Century: Educational And Ethical Considerations In Modernizing The District Of Columbia Student Practice Rules, Wallace J. Mlyniec, Haley D. Etchison

Georgetown Law Faculty Publications and Other Works

This article traces the history of the amendment process. It provides a short history of student practice rules and then, using the student practice rule in effect in the District of Columbia prior to the 2014 amendments, describes the various components of those rules that courts and bars across the nation have implemented to assist courts, advance legal education, and preserve advocates’ ethical obligations to clients. It then describes some of the comments to the proposed amendments offered by the District of Columbia Bar and other D.C. lawyers during the public comment period and the modifications to the District of …

Engaging Outside Counsel In Transactional Law Clinics, Alicia E. Plerhoples, Amanda M. Spratley

Georgetown Law Faculty Publications and Other Works

This article examines the plurality of objectives and methods by which transactional law clinics collaborate with outside attorneys to competently represent their organizational clients on a wide range of legal issues. Some transactional law clinics rely on outside counsel as informal legal advisors or consultants; others collaborate with outside counsel for the development of community projects or referral of legal work; many transactional law clinics engage outside counsel as “local counsel” when assisting a client in other jurisdictions or internationally; still others engage outside counsel more formally to assist in student supervision of client work. For some, the idea of …

The Irs Under Siege, Tanina Rostain, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

This is Chapter 1 of Confidence Games (MIT, 2014).

Confidence Games provides an account of the wave of tax shelters that occurred at the turn of the twenty-first century. During this period, some of America’s most prominent law and accounting firms created and marketed products that enabled the very rich—including newly minted dot-com millionaires—to avoid paying their share of taxes by claiming benefits not recognized by law. These abusive tax shelters bore names like BOSS, BLIPS, and COBRA and were developed by such prestigious firms as KPMG, Ernst & Young, BDO Seidman, the now defunct Jenkens & Gilchrist and Brown …

Tax Advisors And Conflicted Citizens, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

Thousands of lawyers are involved every day in advising clients outside of litigation. These lawyers counsel clients on how they can benefit from or avoid violating statutes, regulations, and other sources of law. How should we think about the obligations of the lawyer in this setting? This article argues that we should eschew a single prescriptive model of the advisor in favor of a pluralistic conception that bases responsibilities on the salient factors of the context in which the advisor operates.

The model of the advocate that suggests that the lawyer take a relatively aggressive approach to interpreting the legal …

J. Skelly Wright And The Limits Of Liberalism, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

This essay, written for a symposium on the life and work of United States Court of Appeals Judge J. Skelly Wright, makes four points. First, Judge Wright was an important participant in the liberal legal tradition. The tradition sought to liberate law from arid formalism and to use it as a technique for progressive reform. However, legal liberals also believed that there were limits on what judges could do–-limits rooted in both its liberalism and its legalism. Second, Wright occupied a position on the left fringe of the liberal legal tradition, and he therefore devoted much of his career to …

Clinical Collaborations: Going Global To Advance Social Entrepreneurship, Deborah Burand, Susan R. Jones, Jonathan Ng, Alicia E. Plerhoples

Georgetown Law Faculty Publications and Other Works

In the summer of 2012, transactional law clinics from three U.S. law schools: George Washington University; Georgetown University; and the University of Michigan launched a collaboration to serve a common client—Ashoka, a global nonprofit organization that supports close to 3,000 social entrepreneurs across 76 countries. While clinic collaborations within universities happen occasionally, clinic collaborations across universities are unusual. This essay focuses on the motivations, operations, lessons, and next steps of this cross-university, clinical collaboration aimed at advancing social entrepreneurship globally. Specifically, this essay examines why the collaboration was launched, how the collaboration is structured, what the collaboration offers clients and …

The Ethics Of Lobbying Under The District Of Columbia Rules Of Professional Conduct, Michael S. Frisch

Georgetown Law Faculty Publications and Other Works

The District of Columbia is the epicenter of lobbying in the United States. With the presence of the Congress, the Executive Branch and its various Departments and independent agencies, few industries, trade associations or large businesses lack a Washington-based government relations arm. Law firms and lawyers fill in the gaps for those entities that lack a Washington presence or supplement in-house staffing with additional expertise and contacts.

Under these circumstances, it should come as no surprise that the bar authorities in the District of Columbia have examined the issue of lawyers and lobbying and implemented rules that differ from the …

Measuring Justice, Jane H. Aiken, Stephen Wizner

Georgetown Law Faculty Publications and Other Works

The research imperative of refining ways to measure justice is important and necessary. Our work as lawyers improves the more we know about our effectiveness and the more our choices are evidence based. Nevertheless, quantifying the work of a lawyer is not easy. How do we ensure that any measure of justice captures outcomes for both trial-based advocacy and non-trial-based advocacy on behalf of clients, including negotiated outcomes? How do we quantify the role lawyers play in listening to our clients, explaining the systems in which they operate, and supporting them through often very difficult times in their lives? How …

National Security Pedagogy: The Role Of Simulations, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

This article challenges the dominant pedagogical assumptions in the legal academy. It begins by briefly considering the state of the field of national security, noting the rapid expansion in employment and the breadth of related positions that have been created post-9/11. It considers, in the process, how the legal academy has, as an institutional matter, responded to the demand.

Part III examines traditional legal pedagogy, grounding the discussion in studies initiated by the American Bar Association, the Carnegie Foundation, and others. It suggests that using the law-writ-large as a starting point for those interested in national security law is a …