Courts Commons^™

Some Thoughts On The Fundamentals Of An Evidence Code From The U.S. American Perspective, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

In the U.S. American trial system proof mainly consists of live witnesses presented in open court under oath before the judge, jury, and parties, subject to perjury laws. Cross-examination of the witnesses in that setting is the principal (though not the only) form of testing their reliability. It is for these reasons that we have a rule against hearsay (second-hand reporting in court of what someone has said outside of court).

Bond V. United States: Concurring In The Judgment, Nicholas Quinn Rosenkranz

Georgetown Law Faculty Publications and Other Works

Bond v. United States presented the deep constitutional question of whether a treaty can increase the legislative power of Congress. Unfortunately, a majority of the Court managed to sidestep the constitutional issue by dodgy statutory interpretation. But the other three Justices—Scalia, Thomas, and Alito—all wrote important concurrences in the judgment, grappling with the constitutional issues presented. In particular, Justice Scalia’s opinion (joined by Justice Thomas), is a masterpiece, eloquently demonstrating that Missouri v. Holland is wrong and should be overruled: a treaty cannot increase the legislative power of Congress.

Mutual Pharmaceutical Co. V. Bartlett And Its Implications, Brian Wolfman, Anne King

Georgetown Law Faculty Publications and Other Works

The authors state that the U.S. Supreme Court’s preemption ruling in Mutual Pharmaceutical Co. v. Bartlett, which generally shields generic drug manufacturers from state-law damages liability for design-defect claims, may also have broader implications for preemption jurisprudence. In this article they describe the Supreme Court’s decision in Mutual and evaluate how it may affect future products-liability litigation.

Part I provides an overview of the case’s factual background and of federal generic drug regulation, while Part II discusses the Court’s majority opinion and the dissents. Part III analyzes the implications of the decision, offering ideas on how plaintiffs injured by …

Amicus Briefs Of The National Association Of Consumer Advocates In Day V. Persels & Associates, 729 F.3d 1309 (11th Cir. 2013), Brian Wolfman

U.S. Supreme Court Briefs

These amicus briefs are likely to interest legal academics and practitioners who write, research, and practice in the areas of (1) federal courts, (2) class actions, (3) separation of powers, (4) constitutional law more generally, and (4) federal litigation.

In Day v. Persels & Associates, 729 F.3d 1309 (11th Cir. 2013), an absent class member objected to a class-action settlement. The objector argued that the settlement was unfair because, among other reasons, it provided no monetary recovery to the class members. In the district court, prior to class certification and settlement, the defendants and the named plaintiff had consented …

Decision Theory And Babbitt V. Sweet Home: Skepticism About Norms, Discretion, And The Virtues Of Purposivism, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In this writing, the author applies a “decision theory” of statutory interpretation, elaborated recently in the Yale Law Journal, to Professor William Eskridge’s illustrative case, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. In the course of this application, she takes issue with the conventional wisdom that purposivism, as a method of statutory interpretation, is inevitably a more virtuous model of statutory interpretation. First, the author questions whether we have a clear enough jurisprudential picture both of judicial discretion and legal as opposed to political normativity. Second, she argues that, under decision theory, Sweet Home is …

Supreme Court Institute Annual Report, 2012-2013, Georgetown University Law Center, Supreme Court Institute

SCI Papers & Reports

During the 2012-2013 academic year–corresponding to the U.S. Supreme Court’s October Term (OT) 2012–the Supreme Court Institute (SCI) provided moot courts for advocates in 100% of the cases heard by the Court this Term, offered a variety of programs related to the Supreme Court, and hosted several delegations of foreign visitors. A list of all SCI moot courts held in OT 2012–arranged by argument sitting and date of moot and including the name and affiliation of each advocate and the number of student observers–follows the narrative portion of this report.

Supreme Court Of The United States, October Term 2013 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

State Law, The Westfall Act, And The Nature Of The Bivens Question, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

In a number of recent cases touching to varying degrees on national security, different courts of appeals have applied a strong presumption against recognition of a Bivens cause of action. In each of these cases, the courts’ approach was based on the belief that the creation of a cause of action is a legislative function and that the courts would be usurping Congress’s role if they recognized a Bivens action without legislative authorization. Thus, faced with a scenario where they believed that the remedial possibilities were either "Bivens or nothing," these courts of appeals chose nothing.

The concerns that …

Conditional Spending After Nfib V. Sebelius: The Example Of Federal Education Law, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

In NFIB v. Sebelius, the Supreme Court’s recent case addressing the constitutionality of the Affordable Care Act, the Court concluded that the expansion of Medicaid in that Act was unconstitutionally coercive and therefore exceeded the scope of Congress’s authority under the Spending Clause. This was the first time that the Court treated coercion as an issue of more than mere theoretical possibility under the Spending Clause. In the wake of the Court’s decision, commentators have expressed either the concern or the hope that NFIB’s coercion analysis may lead to the undoing of much of the federal regulatory state, …

The Wages Of Crying Judicial Restraint, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Five Justices voted to affirm the proposition that the Constitution creates a government of limited and enumerated powers and that the courts will enforce those limits. To understand why this victory was possible, it is important to understand that there are not just two versions of federalism, pre‐New Deal and post‐New Deal. There is also a third version. The failure to recognize the third version goes a long way to explain why most of my academic colleagues predicted that the right would have no chance to prevail in our constitutional challenge to the individual insurance mandate.

The first version of …

Confronting Criminal Law’S Violence: The Possibilities Of Unfinished Alternatives, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

Confronting criminal law’s violence calls for an openness to unfinished alternatives — a willingness to engage in partial, in process, incomplete reformist efforts that seek to displace conventional criminal law administration as a primary mechanism for social order maintenance. But despite all indications that the status quo in U.S. criminal law administration is profoundly dysfunctional — an institutional manifestation of the deepest pathologies in our society — contemporary criminal law reform efforts and scholarship focus almost exclusively on relatively limited modifications to the status quo. These modifications may well render criminal law administration more humane, but fail to substitute alternative …

“Fine Distinctions” In The Contemporary Law Of Insider Trading, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

William Cary’s opinion for the SEC in In re Cady, Roberts & Co. built the foundation on which the modern law of insider trading rests. This paper—a contribution to Columbia Law School’s recent celebration of Cary’s Cady Roberts opinion, explores some of these—particularly the emergence of a doctrine of “reckless” insider trading. Historically, the crucial question is this: how or why did the insider trading prohibition survive the retrenchment that happened to so many other elements of Rule 10b-5? It argues that the Supreme Court embraced the continuing existence of the “abstain or disclose” rule, and tolerated constructive fraud notwithstanding …

The Gravitational Force Of Originalism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In part I of this essay, prepared for the Fordham conference on “The New Originalism and Constitutional Law,” I describe four aspects of the New Originalism: (1) The New Originalism is about identifying the original public meaning of the Constitution rather than the original framers intent; (2) The interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry; (3) But there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed; (4) Distinguishing between the activities of interpretation and construction identifies …

Foreword: Academic Influence On The Court, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The months leading up to the Supreme Court’s blockbuster decision on the Affordable Care Act (ACA) were characterized by a prodigious amount of media coverage that purported to analyze how the legal challenge to Obamacare went mainstream. The nation’s major newspapers each had a prominent story describing how conservative academics, led by Professor Randy Barnett, had a long-term strategy to make the case appear credible. In the first weeks after the ACA’s passage, the storyline went, the lawsuit’s prospects of success were thought to be virtually nil. Professor (and former Solicitor General) Charles Fried stated that he would “eat a …

Supreme Court Institute Annual Report, 2011-2012, Georgetown University Law Center, Supreme Court Institute

SCI Papers & Reports

During the 2011-2012 academic year--corresponding to the U.S. Supreme Court’s October Term (OT) 2011--the Supreme Court Institute (SCI) provided moot courts for advocates in over 94% of the cases heard by the Court this Term and offered over a dozen programs related to the Supreme Court. All SCI moot courts held in OT 2011, listed by sitting and date of moot, and including the name and affiliation of each advocate and the number of student observers, follows the narrative portion of this report.

Supreme Court Of The United States, October Term 2011 Preview, Update: January 3, 2012, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

Supreme Court Of The United States, October Term 2012 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

The Distinctiveness Of Appellate Adjudication, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

This paper concerns two topics which, I hope to show, are vitally connected. One is the distinctive importance of appellate adjudication in the legal system of United States. The other is the workings of entangled concepts in the law. That appellate adjudication is important in some sense may seem obvious to everybody (to a few it will seem obvious that appellate adjudication is unimportant). My point will be that via appellate adjudication courts engineer entangled legal concepts, and it is this aspect of appellate adjudication that is both crucial and unique to it, at least in the U.S. legal system. …

Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan

Georgetown Law Faculty Publications and Other Works

A significant and growing portion of the United States population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. …

The Disdain Campaign, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

A response to Pamela S. Karlan, The Supreme Court 2011 Term Forward: Democracy and Disdain, 126 Harv. L. Rev. 1 (2012).

In her Foreword, Professor Pamela Karlan offers a quite remarkable critique of the conservative Justices on the Supreme Court. She faults them not so much for the doctrines they purport to follow, or outcomes they reach, but for the attitude they allegedly manifest toward Congress and the people. “My focus here is not so much on the content of the doctrine but on the character of the analysis.” She describes Chief Justice Roberts’s opinion of the Court as …

Judulang V. Holder And The Future Of 212(C) Relief, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

On December 12, 2011, the Supreme Court issued a unanimous decision in Judulang v. Holder, a case addressing the Board of Immigration Appeals’ use of the comparable grounds approach for determining eligibility for relief under former section 212(c) of the Immigration and Nationality Act. The Court held that this approach was arbitrary and capricious under the Administrative Procedure Act, and remanded for the agency to determine a new way for determining the eligibility of deportable aliens for 212(c) relief. The purpose of this article is to place the Court’s decision in its proper historical context and to chart the …

Decarceration Courts: Possibilities And Perils Of A Shifting Criminal Law, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

A widely decried crisis confronts U.S. criminal law. Jails and prisons are overcrowded and violence plagued. Additional causes for alarm include the rate of increase of incarcerated populations, their historically and internationally unprecedented size, their racial disproportionality, and exorbitant associated costs. Although disagreement remains over the precise degree by which incarceration ought to be reduced, there is a growing consensus that some measure of decarceration is desirable.

With hopes of reducing reliance on conventional criminal supervision and incarceration, specialized criminal courts proliferated dramatically over the past two decades. There are approximately 3,000 specialized criminal courts in the United States, including …

Could Specialized Criminal Courts Help Contain The Crises Of Overcriminalization And Overincarceration?, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

In contrast to the existing scholarly commentary on specialized criminal courts, which is largely trapped in the mode of advocacy—alternately celebratory or disparaging, and insufficiently attentive to the remarkable variation between different specialized criminal courts—this article introduces an analytic framework and critical theoretical account of four contending criminal law reformist models at work in specialized criminal courts. These four criminal law reformist models include:

(1) a therapeutic jurisprudence model,

(2) a judicial monitoring model,

(3) an order maintenance model, and

(4) a decarceration model.

Based on a multi-method approach consisting of site visits, and an analysis of archived interviews, the …

Whatever, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The author cannot say that she disagrees with any of the analytical observations made by her co-contributors to this roundtable discussion of Fisher v. University of Texas at Austin. They all agree that the Supreme Court plans to use the case as an occasion to do something noteworthy to the constitutionality of affirmative action. And they all agree that the Court’s actions are likely to provide more comfort to opponents than to proponents of racial diversity. Their views diverge only with respect to doctrinal details about what the Court could or should do. But in translating the racial tensions …

Fisher V. Grutter, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

There is no reason for the Supreme Court to have granted certiorari in Fisher v. University of Texas at Austin. Unless, of course, the Court plans to overrule Grutter v. Bollinger—the case on which the Texas affirmative action plan at issue in Fisher was based. If that is its plan, the Court can invalidate the Texas program on some narrow ground that masks the magnitude of what it is doing. Or it can explicitly overrule Grutter—a case that no longer commands majority support on a Supreme Court whose politics of affirmative action has now been refashioned by …

Judicial Engagement Through The Lens Of Lee Optical, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Keynote remarks at the symposium on "Judicial Engagement and the Role of Judges in Enforcing the Constitution", delivered on March 22, 2012 at the George Mason University School of Law.

Advisory Adjudication, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court's decision, therefore, has the paradoxical effect of both honoring …

Supreme Court Of The United States, October Term 2011 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

Pliva V. Mensing And Its Implications, Brian Wolfman, Dena Feldman

Georgetown Law Faculty Publications and Other Works

The U.S. Supreme Court ruling in PLIVA Inc. v. Mensing will immunize generic drug manufacturers facing failure-to-warn claims from state-law liability, and may also have implications for preemption jurisprudence more generally, says attorney Brian Wolfman and co-author Dena Feldman in this BNA Insight. The authors analyze the ruling, and offer their views on the questions that PLIVA raises about the ongoing vitality of the presumption against preemption, the standard for determining ‘‘impossibility’’ preemption, and the propriety of deference to an agency’s views on preemption.

Courts, Social Change, And Political Backlash, Georgetown University Law Center

Philip A. Hart Memorial Lecture

On March 31, 2011, Professor of Law, Michael Klarman of Harvard Law School delivered the Georgetown Law Center’s thirty-first annual Philip A. Hart Lecture: “Courts, Social Change, and Political Backlash.” Included here are the speaker's notes from this lecture.

Michael Klarman is the Kirkland & Ellis Professor at Harvard Law School. Formerly, he was the James Monroe Distinguished Professor of Law, Professor of History, and the Elizabeth D. and Richard A. Merrill Research Professor at the University of Virginia School of Law. Klarman specializes in the constitutional history of race.

Klarman holds a J.D. from Stanford Law School, a D.Phil. …