Law Commons^™

Justice Breyer And The Rise Of Globalization: An Analysis Of The Jurisprudence Of Justice Breyer As A Pragmatic Visionary, Timothy Sajal Klee

Upper Level Writing Requirement Research Papers

No abstract provided.

Righting The Ship: What Courts Are Still Getting Wrong About Electronic Discovery, Tanya Pierce

Faculty Scholarship

What happens when law changes but courts and lawyers ignore the changes? On December 1, 2015, amendments to the Federal Rules of Civil Procedure went into effect. One of those amendments includes a sweeping change to Rule 37(e), dealing with the availability of sanctions in federal courts for lost or destroyed electronically stored information (ESI). In the last few years, however, a number of courts have interpreted the amended rule in ways at odds with its plain language and underlying policies, and a surprising number of courts continue to ignore the amended rule altogether. This article examines those trends and …

Learning From Feminist Judgments: Lessons In Language And Advocacy, Bridget J. Crawford, Linda L. Berger, Kathryn M. Stanchi

Elisabeth Haub School of Law Faculty Publications

This essay offers a perspective-shifting approach to meeting some of our pedagogical goals in law school: the study of re-imagined judicial decisions. Our thesis is that exposing students to “alternative judgments”—opinions that have been rewritten by authors who look at the law and the facts differently—will help students develop a more realistic and nuanced view of judicial decision-making: one that is aspirational and based in the real world, and one that allows them to envision their futures as successful advocates. The “alternative judgments” of the feminist judgments projects can enrich the law-school experience in multiple ways. First, seeing a written …

Statutory Realism: The Jurisprudential Ambivalence Of Interpretive Theory, Abigail R. Moncrieff

Law Faculty Articles and Essays

In the renaissance of statutory interpretation theory, a division has emerged between "new purposivists," who argue that statutes should be interpreted dynamically, and "new textualists," who argue that statutes should be interpreted according to their ordinary semantic meanings. Both camps, however, rest their theories on jurisprudentially ambivalent commitments. Purposivists are jurisprudential realists when they make arguments about statutory meaning, but they are jurisprudential formalists in their views of the judicial power to engage in dynamic interpretation. Textualists are the inverse; they are formalistic in their understandings of statutory meaning but realistic in their arguments about judicial power. The relative triumph …

Supreme Silence And Precedential Pragmatism: King V. Burwell And Statutory Interpretation In The Federal Courts Of Appeals, Michael J. Cedrone

Georgetown Law Faculty Publications and Other Works

This Article studies statutory interpretation as it is practiced in the federal courts of appeal. Much of the academic commentary in this field focuses on the Supreme Court, which skews the debate and unduly polarizes the field. This Article investigates more broadly by looking at the seventy-two federal appellate cases that cite King v. Burwell in the two years after the Court issued its decision. In deciding that the words “established by the State” encompass a federal program, the Court in King reached a pragmatic and practical result based on statutory scheme and purpose at a fairly high level of …

Overwriting And Under-Deciding: Addressing The Roberts Court's Shrinking Docket, Meg Penrose

Faculty Scholarship

How do we evaluate a Supreme Court that writes more than it decides? Despite having the lowest decisional output in the modern era, the Roberts Court is the most verbose Supreme Court in history. The current Justices are more likely than past Justices to have their individual say in cases, writing more concurring and dissenting opinions than prior Courts. These opinions are longer, often strongly worded, and rarely add clarity to the underlying decision. The Roberts Court has shifted from being a decisional body to becoming an institution that comments on more cases than it decides.

This article critiques the …

Mashups And Fair Use: The Bold Misadventures Of The Seussian Starship Enterprise, Peter Menell, Shyamkrishna Balganesh, David Nimmer

All Faculty Scholarship

This amicus brief filed in the Ninth Circuit appeal of Dr. Seuss Enterprises v. ComicMix seeks to rectify and restore the balances underlying the Copyright Act of 1976 — particularly the interplay of the Section 106(2) right to prepare derivative works and the fair use doctrine. The District Court granted the defendants’ motion for summary judgment on the ground that OH THE PLACES YOU’LL BOLDLY GO! — the defendants’ illustrated book combining Dr. Seuss’s OH THE PLACES YOU’LL GO! and other Dr. Seuss books with Star Trek characters and themes — made fair use of the Dr. Seuss works.

Based …

The Claims And Limits Of Justice Scalia's Textualism: Lessons From His Statutory Standing Decisions, Michael P. Healy

Law Faculty Scholarly Articles

Two decisions written by Justice Scalia near the end of his life, Lexmark International Inc. v. Static Control Components, Inc., 572 U.S. 479 (2014), and Thompson v. North American Stainless, LP, 562 U.S. 170 (2011), reshaped the law of statutory standing and provide important insights into the claims and limits of textualism. These decisions have reshaped the law of statutory standing in three ways. They have changed the legal terminology; expanded the range of cases to which the zone-of-interests test applies; and changed the application of the zone-of-interests test when it applies to determine statutory standing. This Article …

Gandhis Of The Deep State, Michael E. Herz

Online Publications

It is a truism that agency organizational charts are at least in part aspirational or idealized. The political appointees at the top lack perfect control over the career employees beneath them in the hierarchy. When all are rowing in the same direction, such agency costs matter little and may go unnoticed. But suppose they are not. What if they barely perceive themselves as in the same boat?

Derecho Penal Sustantivo, Luis E. Chiesa

Journal Articles

No abstract provided.

Autonomy, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

Personal autonomy is a constitutive element of all rights. It confers upon a rightholder the power to decide whether, and under what circumstances, to exercise her right. Every right infringement thus invariably involves a violation of its holder’s autonomy. The autonomy violation consists of the deprivation of a rightholder of a choice that was rightfully hers — the choice as to how to go about her life.

Harms resulting from the right’s infringement and from the autonomy violation are often readily distinguishable, as is the case when someone uses the property of a rightholder without securing her permission or, worse, …

Self-Deportation Nation, K-Sue Park

Georgetown Law Faculty Publications and Other Works

“Self-deportation” is a concept to explain the removal strategy of making life so unbearable for a group that its members will leave a place. The term is strongly associated with recent state and municipal attempts to “attack every aspect of an illegal alien’s life,” including the ability to find employment and housing, drive a vehicle, make contracts, and attend school. However, self-deportation has a longer history, one that predates and made possible the establishment of the United States. As this Article shows, American colonists pursued this indirect approach to remove native peoples as a prerequisite for establishing and growing their …

Legal Dilemmas Facing White House Counsel Int He Trump Administration: The Costs Of Public Disclosure Of Fisa Requests, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Criminalizing The Other: Exploring The Impact Of The Netherlands' Adaptation Of Prosecutorial Guidelines On Sentencing Disparities, Alia Nahra

Independent Study Project (ISP) Collection

This research explores the impact of the 2015 institution of prosecution guidelines in the Netherlands. Prior to this switch, the Openbaar Ministerie operated using a punishment point system, which provided a mathematical formula with which to decide sanctions. Though the motivation of this change was to make the overall system more efficient and enable individual prosecutors to consider each case in a customizable and more equitable form, this research demonstrates that the change has served instead as a perpetuator (and in some cases, facilitator) of the persistent ethnic and gender biases already at work in the Netherlands. The social and …

Reshaping American Jurisprudence In The Trump Era - The Rise Of Originalist Judges, Jeffrey F. Addicott

Faculty Articles

One of the factors that is often cited as a key reason why President Donald J. Trump was elected as the forty-fifth president, was his pledge to the American people to "make America great again" by appointing "conservative judges" to the bench, particularly when it came to filling any vacancies that might open on the United States Supreme Court. Since the never ending fight for securing an ideological majority on the Supreme Court is always viewed with great concern by both political parties, many wondered whether then candidate Trump was simply telling potential voters what they wanted to hear, or …

Public Interest Litigation & Women’S Rights: Cases From Nepal & India, Jordan E. Stevenson

2019 Symposium

As a complex, diverse and dynamic region with diverging, constantly changing constitutional and jurisprudential contexts as well as lasting legacies of patriarchy, South Asia’s traditions of public interest litigation are one of the most well-studied institutions by Western audiences due to their contradictory progressive and innovative nature. Particularly in India, where public interest litigation gives ordinary citizens extraordinary access to the highest courts of justice, questions have been raised as to the effectiveness of public interest litigation as a tool to address gender disparities across the region. Although Supreme Court justices have been a key ally in eliminating legal barriers …

Catch Me If You Can: Claiming Jurisdiction Over An Overseas Defendant: Shanghai Turbo Enterprises Ltd V Liu Ming [2019] Sgca 11, Aaron Yoong, Nguyen Sinh Vuong

Research Collection Yong Pung How School Of Law

The appellant, Shanghai Turbo Enterprises Ltd (“Shanghai Turbo”), is a Singapore-listed company that owns Hong Kong-incorporated Best Success (Hong Kong) Ltd, which in turn owns China-incorporated Changzhou 3D Technological Complete Set Equipment Ltd (“CZ3D”). The respondent, Liu Ming (“Liu”), owned approximately 30% of the shares in Shanghai Turbo. He was also a director of all three companies, and held other management positions there. In April 2017, Shanghai Turbo fired Liu from all his positions in the companies, allegedly because of declining levels of profit under his management. Subsequently, Shanghai Turbo filed a suit against Liu for breaching his service agreement …

Legal Realism: Unfinished Business, Ramsi A. Woodcock

Law Faculty Scholarly Articles

No abstract provided.

The Bp Mdl And Its Aftermath: Whither Opa's Displacement Jurisprudence?, John Costonis

Journal Articles

No abstract provided.

Going "Clear", Ryan D. Doerfler

All Faculty Scholarship

This Article proposes a new framework for evaluating doctrines that assign significance to whether a statutory text is “clear.” As previous scholarship has failed to recognize, such doctrines come in two distinct types. The first, which this Article call evidence-management doctrines, instruct a court to “start with the text,” and to proceed to other sources of statutory meaning only if absolutely necessary. Because they structure a court’s search for what a statute means, the question with each of these doctrines is whether adhering to it aids or impairs that search — the character of the evaluation is, in other words, …

Does The Evolving Concept Of Due Process In Obergefell Justify Judicial Regulation Of Greenhouse Gases And Climate Change?: Juliana V. United States, Bradford Mank

Faculty Articles and Other Publications

Justice Kennedy’s Obergefell opinion, which held that same sex marriage is a fundamental right under the Constitution’s due process clause, reasoned that the principles of substantive due process may evolve because of changing societal views of what constitutes “liberty” under the clause, and that judges may recognize new liberty rights in light of their “reasoned judgement.” In Juliana v. United States, Judge Aiken used her “reasoned judgement” to conclude that evolving principles of substantive due process in the Obergefell decision allowed the court to find that the plaintiffs were entitled to a liberty right to a stable climate system capable …

Punishment Without Process: Victim Impact Proceedings For Dead Defendants, Bruce Green, Rebecca Roiphe

Articles & Chapters

After Jeffrey Epstein committed suicide in jail, two judges allowed his accusers to speak in court. This article argues that the proceedings were inappropriate because the criminal case ends when the defendant dies. If the conviction and appeal are not final, there is no finding of guilt, and the defendant is still presumed innocent. Allowing accusers to speak at this time violates the principle of due process and threatens to undermine faith in judges and the criminal justice system in general. While courts are at times legally required to hear from victims of crimes, they were not allowed to do …

Second-Best Criminal Case, William Ortman

Law Faculty Research Publications

No abstract provided.

Rescuing Maryland Tort Law: A Tribute To Judge Sally Adkins, Donald G. Gifford

Faculty Scholarship

No abstract provided.

Data-Informed Duties In Ai Development, Frank A. Pasquale

Faculty Scholarship

Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards are particularly important given the potential for inaccurate and inappropriate data to contaminate machine learning. Firms relying on faulty data can be required to compensate those harmed by that data use—and should be subject to punitive damages when such use is repeated or willful. Regulatory standards for data collection, analysis, use, and stewardship can inform and complement generalist judges. Such regulation will not only provide guidance to …

The Influence Of The Warren Court And Natural Rights On Substantive Due Process, James Marmaduke

Calvert Undergraduate Research Awards

Advanced Research Winner 2019:

While the concept of substantive due process has guided judicial decision making even prior to the Civil War, it has become a lightning rod among the juristic community especially since the 1960s. This controversy includes issues ranging from the applicability and reliability to the cogency and legitimacy of the doctrine of substantive due process Many scholars attribute the skepticism toward the concept of substantive due process to be the result of a paradigm shift in the middle of the 20^th century when this concept transitioned from an economic and property rights based approach to one …

Sex Wars As Proxy Wars, Aya Gruber

Publications

The clash between feminists and queer theorists over the meaning of sex—danger versus pleasure—is well- trodden academic territory. Less discussed is what the theories have in common. There is an important presumption uniting many feminist and queer accounts of sexuality: sex, relative to all other human activities, is something of great, or grave, importance. The theories reflect Gayle Rubin’s postulation that "everything pertaining to sex has been a ‘special case’ in our culture.” In the #MeToo era, we can see all too clearly how sex has an outsized influence in public debate. Raging against sexual harm has become the preferred …

Certainty Versus Flexibility In The Conflict Of Laws, Kermit Roosevelt Iii

All Faculty Scholarship

Traditional choice of law theory conceives of certainty and flexibility as opposed values: increase one, and you inevitably decrease the other. This article challenges the received wisdom by reconceptualizing the distinction. Rather than caring about certainty or flexibility for their own sake, it suggests, we care about them because each makes it easier to promote a certain cluster of values. And while there may be a necessary tradeoff between certainty and flexibility, there is no necessary tradeoff between the clusters of values. It is possible to improve a choice of law system with regard to both of them. The article …

Manufactured Emergencies, Robert Tsai

Articles in Law Reviews & Other Academic Journals

Emergencies are presumed to be unusual affairs, but the United States has been in one state of emergency or another for the last forty years. That is a problem. The erosion of democratic norms has led to not simply the collapse of the traditional conceptual boundary between ordinary rule and emergency governance, but also the emergence of an even graver problem: the manufactured crisis. In an age characterized by extreme partisanship, institutional gridlock, and technological manipulation of information, it has become exceedingly easy and far more tempting for a President to invoke extraordinary power by ginning up exigencies. To reduce …

Ripensare La Razionalità: La Crescita Di Significato E I Limiti Del Formalismo, Susan Haack

Articles

Man mano che la nostra conoscenza e la nostra esperienza crescono, i concetti assumono un significato nuovo e più ricco. La filosofia del linguaggio recente (post-Fregeana) hanno prestato poca attenzione a questo fenomeno; e filosofi radicali come Feyerabend e Rorty diedero per scontato che il cambiamento di significato fosse una minaccia alla razionalità. Ma i pensatori nella tradizione pragmatica classica – Peirce nella filosofia della scienza e, più implicitamente, Holmes nella teoria giuridica – riconobbero l’importanza della crescita di significato e capirono come questa potesse contribuire al progresso della scienza e all’adattamento di un sistema giuridico al cambiare delle circostanze. …