Law Commons^™

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 …

Duality In Contract And Tort, Tim Friehe, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

We study situations in which a single investment serves the dual role of increasing the expected value of a contract (a reliance investment) and reducing the expected harm of a post-performance accident (a care investment). We show that failing to account for the duality of the investment leads to inefficient damages for breach of contract and inefficient standards for due care in tort. Conversely, we show that accounting for the duality yields contract damage measures and tort liability rules that provide correct incentives for efficient breach and reliance in contract and for efficient care in tort.

Some Thoughts On Reply Briefs, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

This essay provides suggestions for writing reply briefs. It begins with a quick review of the well-understood ways in which an appellate advocate should acquire and review the information needed to write a comprehensive and powerful reply brief.

The essay then turns to the more difficult challenges of crafting the brief, making three key points:

First, don't just go tit-for-tat in responding to one point after another advanced by the appellee. That can be boring and ponderous and often requires you to argue the case on your opponent's terms. Rather, re-frame the case on your client's terms, taking the case …

Due Process Discontents In Mass-Tort Bankruptcy, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

No abstract provided.

The Constitution As A Source Of Remedial Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Equity’s Constitutional Source, Owen W. Gallogly argues that Article III is the source of a constitutional default rule for equitable remedies—specifically, that Article III’s vesting of the “judicial Power” “in Equity” empowers federal courts to afford the remedies traditionally afforded by the English Court of Chancery at the time of the Founding, and to develop such remedies in an incremental fashion. This Response questions the current plausibility of locating such a default rule in Article III, since remedies having their source in Article III would be available in federal but not state courts and would apply to state-law …

Hachette, Controlled Digital Lending, And The Consequences Of Divorcing Law From Context, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

This article will look at the recent Hachette decision against the Internet Archive, analyzing how the court’s reliance on past authorities with insufficient context distorted their meanings. It will focus only on the controlled digital lending (CDL) aspect, not discussing the other claims in the suit or exploring the specific implementation of CDL by the Internet Archive (IA). Since CDL programs can vary widely, IA is better situated than others to identify missing context related to the analysis of the unique components of their efforts. And other libraries engaging in CDL should be able to easily see where their programs …

Non-Extraterritoriality, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The extraterritorial application of statutes has received a great deal of scholarly attention in recent years, but very little attention has been paid the non-extraterritoriality of statutes, by which I mean their effect on cases beyond their specified territorial reach. The question matters when a choice-of-law rule or a contractual choice-of-law clause directs application of a state’s law and the state has a statute that, because of a provision limiting its external reach, does not reach the case. On one view, the state has no law for cases beyond the reach of the statute. The territorial limitation is a choice-of-law …

Confrontation, The Legacy Of Crawford, And Important Unanswered Questions, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

This is a short piece for the University of Michigan Journal of Law Reform as part of its 2024 Symposium on “Crawford at 20: Reforming the Confrontation Clause.” The piece's purpose is to highlight certain important questions left unanswered by Crawford v. Washington and subsequent confrontation cases.

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 …

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 …

Mass Arbitration, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

For decades, the class action has been in the crosshairs of defense-side procedural warfare. Repeated attacks on the class action by the defense bar, the U.S. Chamber of Commerce, and other defense-side interest groups have been overwhelmingly successful. None proved more successful than the “arbitration revolution”—a forty- year campaign to eliminate class actions through forced arbitration provisions in private contracts. The effects for civil justice have been profound. Scores of claims vanished from the civil justice landscape—claims concerning civil rights, wage theft, sexual harassment, and consumer fraud. The effects for social justice, racial justice, gender justice, and economic justice were …

How To Conclude A Brief, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

This essay discusses the "conclusion" section of an appellate brief and its relationship to problems of argument ordering in multi-issue appeals. The essay first reviews the relevant federal appellate rules--Federal Rule of Appellate Procedure 28(a)(9) and Supreme Court Rule 24.1(j)--and explains the author's preference for short, precise, remedy-oriented conclusions, shorn of repetitive argument. It illustrates these points with examples from recently filed appellate briefs. The essay then turns to problems of argument ordering in multi-issue appellate briefs, with an emphasis on ending with a bang not a whimper, while sticking with the short, non-argumentative conclusion. The argument-ordering discussion is also …

Some Thoughts On Supplemental Authorities Under Federal Rule Of Appellate Procedure 28(J) And Related Musings, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

This essay--prompted by my work directing Georgetown Law's Appellate Courts Immersion Clinic--discusses letters filed under Federal Rule of Appellate Procedure 28(j). A "Rule 28(j) letter" is the federal appellate rules' principal mechanism for bringing supplemental authorities to an appellate court’s attention after the briefs have been filed. This essay covers (1) the Rule's basic attributes; (2) whether a 28(j) letter may be adversarial; (3) the types of authorities that may be--and should be--cited in a 28(j) letter; (4) proper timing for the filing of a 28(j) letter; (5) when and how to respond to a 28(j) letter; and (6) what …

Confrontation's Multi-Analyst Problem, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The Confrontation Clause in the Sixth Amendment affords the “accused” in “criminal prosecutions” the right “to be confronted with the witnesses against” them. A particular challenge for courts over at least the last decade-plus has been the degree to which the Confrontation Clause applies to forensic reports, such as those presenting the results of a DNA, toxicology, or other CSI-type analysis. Should use of forensic reports entitle criminal defendants to confront purportedly “objective” analysts from the lab producing the report? If so, which analyst or analysts? For forensic processes that require multiple analysts, should the prosecution be required to produce …

Bivens And The Ancien Régime, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In its most recent decision narrowly construing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court derided Bivens as the product of an “‘ancien regime,’ ... [in which] the Court assumed it to be a proper judicial function to ‘provide such remedies as are necessary to make effective’ a statute’s purpose.” This Essay considers the relevance for Bivens claims of the Court’s shift to a nouveau régime to address the implication of private rights of action under statutes. It first describes and assesses the Court’s reasons for shifting to the nouveau r …

Extraterritoriality As Choice Of Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The proper treatment of provisions that specify the extraterritorial scope of statutes has long been a matter of controversy in Conflict of Laws scholarship. This issue is a matter of considerable contemporary interest because the Third Restatement of Conflict of Laws proposes to address such provisions in a way that diverges from how they were treated in the Second Restatement. The Second Restatement treats such provisions—which I call geographic scope limitations—as choice-of-law rules, meaning, inter alia, that the courts will ordinarily disregard them when the forum’s choice-of-law rules or a contractual choice-of-law clause selects the law of a state as …

Pay To Play? Campaign Finance And The Incentive Gap In The Sixth Amendment's Right To Counsel, Neel U. Sukhatme, Jay Jenkins

Georgetown Law Faculty Publications and Other Works

For nearly 60 years, the U.S. Supreme Court has affirmed that the Sixth Amendment to the U.S. Constitution guarantees felony defendants the right to counsel, regardless of their ability to pay. Yet nearly all criminal procedure scholars agree that indigent defense as practiced today falls far short of its initial promise. These scholars frequently cite a lack of political support, insufficient public funding, and a failure to address instances of inadequate legal representation, among other things, as causes for the underlying systemic dysfunction.

We contend that these conventional critiques are incomplete. Rather, indigent defense systems often fail due to poor …

Asymmetric Stakes In Antitrust Litigation, Erik Hovenkamp, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

Private antitrust litigation often involves a dominant firm being accused of exclusionary conduct by a smaller rival or entrant. Importantly, the firms in such cases generally have asymmetric stakes: the defendant typically has a much larger financial interest on the line. We explore the broad policy implications of this fact using a novel model of litigation with endogenous effort. Asymmetric stakes lead dominant defendants to invest systematically more resources into litigation, causing the plaintiff's success probability to fall below the efficient level--a distortion that carries over to ex ante settlements. We explain that enhanced damages may reduce the problem, but …

Choice Of Law As Extraterritoriality, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This contribution to Resolving Conflicts on the Law: Essays in Honour of Lea Brilmayer (published under the title Choice of Law as Geographic Scope Limitation) argues that the choice-of-law question commonly addressed by state and foreign courts is conceptually identical to the question addressed by federal courts in determining whether a federal statute applies to a dispute having foreign elements. The latter question is clearly understood today to relate to the statute’s territorial scope. State courts have long conceptualized the choice-of-law question in the same way. Faced with a state statute addressing the issue before it and phrased in …

Will Delaware Be Different? An Empirical Study Of Tc Heartland And The Shift To Defendant Choice Of Venue, Ofer Eldar, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

Why do some venues evolve into litigation havens while others do not? Venues might compete for litigation for various reasons, like enhancing their judges’ prestige and increasing revenues for the local bar. This competition is framed by the party that chooses the venue. Whether plaintiffs or defendants primarily choose venue is crucial because, we argue, the two scenarios are not symmetrical.

The Supreme Court’s recent decision in TC Heartland LLC v. Kraft Foods LLC illustrates this dynamic. There, the Court effectively shifted venue choice in many patent infringement cases from plaintiffs to corporate defendants. We use TC Heartland to empirically …

Allocation Rules And The Stability Of Mass Tort Class Actions, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

This paper studies the effects of allocation rules on the stability of mass tort class actions. I analyze a two-stage model in which a defendant faces multiple plaintiffs with heterogeneous damage claims. In stage 1, the plaintiffs play a noncooperative coalition formation game. In stage 2, the class action and any individual actions by opt-out plaintiffs are litigated or settled. I examine how the method for allocating the class recovery interacts with other factors---the shape of the damage claims distribution, the scale benefits of the class action, and the plaintiffs' probability of prevailing at trial and bargaining power in settlement …

A Regulatory Theory Of Legal Claims, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Procedural law in the United States seeks to achieve three interrelated goals in our system of litigation: efficient processes that achieve “substantive justice” and deter wrongdoing, accurate outcomes, and meaningful access to the courts. For years, however, procedural debate, particularly in the context of due process rights in class actions, has been redirected toward more conceptual questions about the nature of legal claims—are they more appropriately conceptualized as individual property or as collective goods? At stake is the extent to which relevant procedures will protect the right of individual claimants to exercise control over their claims. Those with individualistic conceptions …

Alternative Litigation Finance And The Limits Of The Work-Product Doctrine, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

As third-party funding of litigation begins to take hold in the United States, debates about the normative value of such arrangements have heated up among scholars, practitioners, and policymakers. Meanwhile, such arrangements are up and running-providing capital for parties in various cases. As a result, while higher-level debates remain ongoing, courts have had to grapple with on-the-ground issues at the intersection of such funding arrangements and the operation of the Federal Rules of Civil Procedure. In particular, as this essay addresses, courts have begun to deal with the question of whether and to what extent materials created in the course …

Disappearing Claims And The Erosion Of Substantive Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s arbitration jurisprudence from the last five years represents the culmination of a three-decade-long expansion of the use of private arbitration as an alternative to court adjudication in the resolution of disputes of virtually every type of justiciable claim. Because privatizing disputes that would otherwise be public may well erode public confidence in public institutions and the judicial process, many observers have linked this decades-long privatization of dispute resolution to an erosion of the public realm. Here, I argue that the Court’s recent arbitration jurisprudence undermines the substantive law itself.

While this shift from dispute resolution in courts—the …

Market Intermediation, Publicness, And Securities Class Actions, Hillary A. Sale, Robert B. Thompson

Georgetown Law Faculty Publications and Other Works

Securities class actions play a crucial, if contested, role in the policing of securities fraud and the protection of securities markets. The theoretical understanding of these private enforcement claims needs to evolve to encompass the broader set of goals that underlie the securities regulatory impulse and the publicness of those goals. Further, a clear grasp of the modern securities class action also requires an updated understanding of how the role of market intermediation in securities transactions has reshaped the realities of securities litigation in public companies and the evolution of the fraud cause of action in the context of open-market …

Representation In Context: Party Power And Lawyer Expertise, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Georgetown Law Faculty Publications and Other Works

The questions when, why, and how legal representation makes a difference for parties in civil litigation remain largely unanswered, although recent scholarship raises compelling new questions and suggests new explanations and theoretical approaches. Understanding how legal representation operates, we argue, requires an appreciation for the context in which the representation actually takes place. This article examines two previously unexplored elements of the context of legal representation through empirical and theoretical analysis: the balance of power between the parties to a dispute and the professional, specifically strategic, expertise that a legal representative contributes. The results of a study of 1,700 unemployment …

Judgment Day For Fraud-On-The-Market: Reflections On Amgen And The Second Coming Of Halliburton, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

The Supreme Court has reaffirmed the "fraud on the market" presumption of reliance, facilitating large scale class actions for this kind of securities fraud. This essay traces the road from its decision last year in Amgen to this year's reaffirmation in Halliburton II, and considers some of the issues that will emerge as lower courts struggle with Halliburton II's secondary holding--that the issue of "price impact" is crucial to class certification, even if the burden of proof is on the defendants.

Mass Litigation Governance In The Post-Class Action Era: The Problems And Promise Of Non-Removable State Actions In Multi-District Litigation, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Given a string of decisions restricting the use and availability of the class action device, the world of mass litigation may well be moving into a post-class action era. In this era, newer devices of aggregation—perhaps principally among them multi-district litigation (“MDL”)—increasingly will be called upon to meet the age-old mass litigation goal of achieving global peace of numerous claims arising out of a related, widespread harm. Indeed, coordination of pretrial proceedings in the MDL frequently facilitates the achievement of this peace, given the reality that cases, once consolidated in the MDL, often settle en masse.

However, one clear obstacle …

Things We Do With Presumptions: Reflections On Kiobel V. Royal Dutch Petroleum, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The author argues in part I that the presumption should be regarded as categorically inapplicable to statutes conferring jurisdiction on the federal courts. He argues further that the majority opinion in Kiobel supports the conclusion that the presumption is inapplicable to such statutes. It is clear from the Court’s opinion that it was not applying the presumption to determine the geographical scope of the ATS qua jurisdictional statute. It was instead applying the presumption to determine the geographical scope of the federal common law cause of action it had recognized in Sosa v. Alvarez-Machain.

Even when the presumption against …

The Rise And Fall Of Unconscionability As The 'Law Of The Poor', Anne Fleming

Georgetown Law Faculty Publications and Other Works

What happened to unconscionability? Here’s one version of the story: The doctrine of unconscionability experienced a brief resurgence in the mid-1960s at the hands of naive, left-liberal, activist judges, who used it to rewrite private consumer contracts according to their own sense of justice. These folks meant well, no doubt, much like present-day consumer protection crusaders who seek to ensure the “fairness” of financial products and services. But courts’ refusal to enforce terms they deemed "unconscionable” served only to increase the cost of doing business with low-income households. Judges ended up hurting the very people they were trying to help. …