Law and Society Commons^™

Not A Pretty Picture: Race, Gender, And Inequality In The Legal Profession And Legal Education, Tanina Rostain

Georgetown Law Faculty Publications and Other Works

Responding to renewed interest in law school as a path to a career “to do well and do good,” this essay examines Nelson, Dinovitzer, Garth, Sterling, Wilkins, Dawe, and Michelson’s The Making of Lawyers’ Careers and its account of inequality and opportunity in the American legal profession. Based on a 20-year study of more than 2,000 lawyers, the book traces how credentials, race, gender, class, and law school selectivity profoundly shape career trajectories. The essay situates those findings within the divide in private practice between corporate practice and people law and interrogates the professional ideology—rooted in the lawyer’s traditional role …

(Mis)Judging Suspicion, Sherri Lee Keene

Georgetown Law Faculty Publications and Other Works

Twenty-five years ago, the Supreme Court decided Illinois v. Wardlow, a Fourth Amendment case that allowed the high-crime nature of a location to be considered in determinations of whether there was reasonable suspicion to support a police stop. In making these determinations, courts rarely acknowledge the role that race can play in decisions that factor in the nature of a location as context. Yet even when the race of a defendant is not mentioned, high-crime area designations can act as a proxy for race inviting racial bias into courts’ analyses. Reasonable suspicion analysis involves the interpretation of a suspect’s …

Misjudging A Reasonable Jury: Evidence That Courts Dismiss Meritorious Harassment Claims, Elizabeth C. Tippett, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

Courts assessing summary judgment motions in Title VII harassment claims commonly grant the motion on the basis that the alleged harassment is insufficiently “severe or pervasive” to meet the legal standard. This mixed-methods study empirically tests whether there is a gap between how judges and potential jurors assess the same set of facts on the severe or pervasive element of a Title VII harassment claim. We presented study participants with facts from 80 federal harassment cases. In each case, the defendant employer moved to dismiss the case, arguing that no reasonable jury would find the alleged harassment sufficiently severe or …

Creation And The Republican Revival, William M. Treanor

Georgetown Law Faculty Publications and Other Works

Gordon Wood's classic book Creation of the American Republic has long influenced legal thought and originalist scholarship in particular. It played a central role in the Republican Revival movement, an effort by leading scholars such as Cass Sunstein and Frank Michelman to recover a progressive originalism at the same time as conservative originalism was starting to shape constitutional jurisprudence. But, while the Republican Revival nominally relied on Wood, it misread central elements of his book - his concept of virtue and his belief that republicanism had largely been displaced at the time of the drafting of the Constitution.

The time …

Voluntary Legal Obligations: From Contract To Cohabitation, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Although cohabitants often live together in ways indistinguishable from those who are married, the law treats them differently than it does spouses. In Toward a Private Law of Intimates’ Obligations, Emily Stolzenberg asks why, identifies the need for reform, and brings the law of cohabitation into conversation with recent work in private law theory. This Response builds on Stolzenberg’s excellent article to think more about the different types of obligations involved in contract, marriage and cohabitation. Although the moral and legal obligations attaching to these relationships are all voluntary, they exhibit different degrees of choice-dependence, and choice figures into …

Holding The Line On Academic Freedom In Law School Clinics, Ty Alper, Praveen Kosuri, Beth Lyon, Alicia E. Plerhoples, Laura Riley, Robin Walker Sterling

Georgetown Law Faculty Publications and Other Works

Since the emergence of modern clinical legal education, law school clinics have periodically faced political interference in their selection of clients and cases, interference that threatens clinics’ essential dual missions of training practice-ready lawyers and providing legal services to marginalized clients who would otherwise lack representation. While such pressure is not new, contemporary threats differ in scale and institutional form. Today, funding, oversight, and enforcement mechanisms are weaponized in an attempt to discipline universities, heightening institutional anxiety and prompting some universities to contemplate preemptive constraints on clinic autonomy in the name of risk management and reputational protection. This shift to …

A Trusteeship Theory Of Pro Bono: Versions And Perversions, David Luban

Georgetown Law Faculty Publications and Other Works

This chapter develops a trusteeship justification of pro bono, arguing that lawyers, as trustees of a public legal system created through democratic self-authorship, have a moral obligation to help address the persistent justice gap affecting persons of limited means. It evaluates multiple forms of pro bono — including voluntary, mandatory, low bono, and state-compelled service — evaluating how well each aligns with the trusteeship model. The chapter contrasts the trusteeship theory with, and criticizes, two alternative justifications for pro bono: presumed lawyer consent rooted in professional tradition and a quid pro quo based on state-authorized privileges. It concludes by distinguishing …

Fairer Public Benefit In Copyright Law, Amanda Levendowski Tepski

Georgetown Law Faculty Publications and Other Works

In 1966, a court considered expressly whether a secondary use of copyrighted works served a public benefit. While public benefit has become a subfactor of the fair use doctrine, it remains undefined, uncodified, and undertheorized. Courts often invoked public benefit in pivotal cases involving novel technologies, from home video recorders to digital libraries to algorithms--but they did not need to. After the recent Supreme Court decision in Google v. Oracle, however, public benefit is unavoidable: The Court stated that “we must take into account the public benefits the copying will likely produce.” A qualitative analysis of key public benefit cases …

Beyond The Ivy League: Stopping The Spread Of Antisemitism On American Campuses: Hearing Before The H. Comm. On Educ. & The Workforce, 119th Cong., May 7, 2025 (Statement Of David D. Cole), David Cole

Testimony Before Congress

In this testimony, submitted to the House Committee on Education and the Workforce for a hearing on antisemitism on campus, I sought to offer a legal framework for considering antisemitic speech on campus. The testimony cautions against equating criticism of Israel with antisemitism. But more importantly, it notes that even where speech is actually antisemitic, it is generally protected by the First Amendment (and therefore also protected by private university policies that protect free speech on campus). Title VI of the Civil Rights Act does not prohibit antisemitic speech, even virulently antisemitic speech. It prohibits discrimination on the basis of …

Legal Issues And Outcomes Of A Medical-Legal Partnership For Cancer Patients, Allison B. Dowling, Abigail Sweeney, Megan E. Gordon, Lisa Kessler, Deborah Perry, Vicki W. Girard, Shreya Kalra

Georgetown Law Faculty Publications and Other Works

The medical-legal partnership (MLP) model is a multidisciplinary intervention with demonstrated success in addressing health-harming legal needs. We analyzed initial data from the Georgetown University Health Justice Alliance’s Cancer Legal Assistance and Well-being Project (Cancer LAW), an MLP between Georgetown University and MedStar Health serving cancer patients receiving care at an urban, safety-net hospital in Washington, D.C. The sample included 81 patients, who had an average of two legal issues, most commonly in the areas of Social Security, estate planning, housing, and health insurance. Data collected during legal representation captured both financial and non-financial benefits to patients. Patients who responded …

De/Reconstructing Delinquency, Eduardo R. Ferrer

Georgetown Law Faculty Publications and Other Works

Hundreds of thousands of children are brought under the jurisdiction of delinquency courts every year in the United States. Despite the reality that most children engage in delinquent behavior during their adolescence, poor children, children of color, children with disabilities, and children who identify as LGBTQIA+ comprise a disproportionate number of those who become delinquency system-involved. These disparities exist by design. Their origins can be traced back to the flawed first principles upon which the juvenile court was built and, specifically, to the unduly expansive legal definition of delinquency that has undergirded the jurisdiction and power of the juvenile court …

I Hate Self-Care: A Criminal Defense Lawyer’S Lament, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Don’t get me wrong—I think people should take care of themselves. They should eat well, exercise regularly, and get a good night’s sleep. They should spend time with friends and family. They should have hobbies and interests. With any luck, they should find true love. But in the past decade or two, and especially since the COVID pandemic, there has been a disturbing turn inward. I’m talking about the “self-care” craze, which has become its own pandemic, or at least epidemic.

…

In this Essay, I share my concerns about what I regard to be an excessive focus on self-care …

Mind The Gap(S): Mitigating Harassment In A Post-#Metoo Workplace, Jamillah Bowman Williams, Elizabeth C. Tippett, Anu Ramdin

Georgetown Law Faculty Publications and Other Works

In a post-#MeToo workplace, harassment remains pervasive, and harassment law still fails to provide protection for the harms experienced by many workers—particularly those in the most vulnerable jobs. Even when reform efforts are introduced through legislation, courts, and agency guidance, it often does not provide greater power, autonomy, and dignity to women in ways that would more meaningfully protect them from workplace abuse. We are the first to create a database of state legislation, including over three thousand bills, that allows us to empirically analyze the extent to which lawmakers comprehensively address harassment following the rise of the #MeToo movement. …

Promoting Public Health And Public Safety By Ending The Exclusion Of Incarcerated Children From Access To Medicaid, Eduardo R. Ferrer

Georgetown Law Faculty Publications and Other Works

This essay is a response to Professor Den Houter's article entitled Children are Not Inmates in which she effectively calls eliminating the exclusion of indigent incarcerated children from Medicaid coverage pursuant to the Medicaid Inmate Exclusion Policy (MIEP). This essay affirms and builds upon Professor Den Houter's recommendation. Part I of this response provides additional support for why ensuring system-involved youth receive timely, uninterrupted, high-quality behavioral health services is critical to improving both public health and public safety. Part II analyzes the benefits and risks attendant to excluding indigent incarcerated children from the MIEP. Part III proposes the implementation of …

Pave Outer Space And Put Up A Parking Lot: Lagrange Points Should Be The Common Heritage Of Mankind, David A. Koplow

Georgetown Law Faculty Publications and Other Works

Outer space offers a vast array of opportunities, with different locations or regions available for exploitation by diverse users for a growing variety of satellite functions. But not all sectors of space are equally valuable for all applications, and the most desirable venues can become crowded, affording a premium for those who gain access first and impeding the development of a fair and efficient all-inclusive international legal regime.

This article focuses on Lagrange points, a finite series of special locations in space where the gravitational forces from a pair of large celestial bodies interact in unusual ways. These points afford …

Just Research And Citation, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

Contemporary research and citation practices are often unjust. Data cartels like Westlaw and Lexis have parent companies that prioritize profits in ways that threaten immigrants. Even before the Dobbs decision, search engines could be deployed to weaponize data against pregnant people seeking reproductive care. Women and people of color have been legal scholars for more than a century but, as many scholars have observed, colleagues consistently under-cite, mis-cite or appropriate those scholars’ work with minimal recourse. Citation materials are often inaccessible to disabled people, poor people, or the public due to poor design, paywalls, or unpreserved content that falls prey …

Formulating Public Pharma, Shweta Kumar

IPIPC Papers & Reports

In 2022, prices for both brand-name and generic drugs in the U.S. were nearly three times as high as prices in comparably industrialized nations, with the cost of insulin products in particular being nearly ten times as high. As a result, 3 out of 10 American adults cannot afford to take their medication as prescribed. Furthermore, in 2024 the U.S. experienced its worst drug shortage in over a decade, with more than 300 drugs in short supply. Generic drugs are particularly vulnerable to shortage, as manufacturers have poor economic incentives to produce drugs with slim profit margins. While the Biden …

Measures Of Justice: Researching And Evaluating Lay Legal Assistance Programs, Tanina Rostain, James Teufel

Georgetown Law Faculty Publications and Other Works

In recent years a national movement to train lay advocates and advisors to assist people with their common justice problems has emerged in the United States. A host of new programs have launched that allow trained navigators and justice workers to provide legal assistance. These programs – developed in Alaska, Delaware, South Carolina, Arizona, and Utah, among other places – vary in their substantive focus, the skills they impart, and their approaches to reaching the people and communities they seek to help. The proliferation of lay legal assistance programs creates research imperatives and opportunities. These programs need to be assessed …

How Should We Measure Effectiveness Of Medical-Legal Partnerships?, Prashasti Bhatnagar, Deborah F. Perry, Margaret E. Greer

HJA Scholarship

Medical-legal partnerships (MLPs) try to mitigate health inequity by uniting legal and health professionals to respond to legal determinants of patients’ health. While there is a long tradition of “patients-to-policy” work in MLPs, the current empirical evidence base has evaluated MLP effectiveness by assessing benefits to individual patients, clinicians, and hospital and legal systems. This article calls for future research to measure how community power, which includes shifting power to impacted communities to develop and lead equity-focused agendas, is built as both a process and an outcome of MLPs.

Designing And Developing A Medical-Legal Partnership To Address Cancer Patients' Health-Harming Legal Needs, Allison B. Dowling, Vicki W. Girard, Megan E. Gordon, Abigail Sweeney, Christopher M. Gallagher, Amy D. Ly, Lisa Kessler, Deborah F. Perry

Georgetown Law Faculty Publications and Other Works

The Georgetown University's Cancer Legal Assistance and Well-being Project launched in 2020 as a medical-legal partnership that works with health care providers at a Washington, D.C. safety-net hospital to treat the health-harming legal needs of historically and intentionally marginalized patients with cancer.

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 …

Open Source Perfume, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

ABRIDGED ABSTRACT: Perfume is a powerful art and technology, but its secrets are closely held by a privileged few - by some counts, there are more astronauts than there are perfumers. As critics have noted increasingly since 2020, those select few perfumers often share similar backgrounds. As interviews with American, British, and French perfumemakers reveal, intellectual property (IP) also plays a gatekeeping role in perfumery. Drawing on work by perfumer and educator Saskia Wilson-Brown, this Article suggests that perfumery is overdue for a transformation. One is emerging: open source perfume. For those seeking ways to share scents and signal commitment …

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 harmful consequences, or that some acts or harmful consequences are even possible, but later become aware. Following Karni and Vierø (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.

“We Do No Such Thing”: 303 Creative V. Elenis And The Future Of First Amendment Challenges To Public Accommodations Laws, David Cole

Georgetown Law Faculty Publications and Other Works

In 303 Creative v. Elenis, the Supreme Court ruled that a business had a right to refuse to design a wedding website for a same-sex couple. But properly understood, the decision’s parameters are narrow, and the decision should have minimal effect on public accommodations laws.

Cultural Property: “Progressive Property In Action”, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Cultural property law fulfills many of the normative and jurisprudential goals of progressive property theory. Cultural property limits the normal prerogatives of owners in order to give legal substance to the interests of the public or of specially protected non-owners. It recognizes that preservation of and access to heritage resources advance public values such as cultural enrichment and community identity. The proliferation of cultural property laws and their acceptance by courts has occurred despite a resurgent property fundamentalism embraced by the Supreme Court. Thus, this Article seeks to explicate the category of cultural property, its fulfillment of progressive theory, and …

Fears, Faith, And Facts In Environmental Law, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices.

But the news is far from good. Despite the ambitious …

The Future Scope Of The Character Evidence Prohibition: The Contextual Statutory Construction Argument That Could Finally Force The Policy Discussion, Paul F. Rothstein, Edward J. Imwinkelried

Georgetown Law Faculty Publications and Other Works

The general prohibition of character evidence is one of the most important doctrines in American Evidence law. Since the Supreme Court has held that the Eighth Amendment forbids status offenses in adult prosecutions, the doctrine has constitutional overtones. Federal Rule of Evidence 404(b) applies the prohibition to evidence of an accused’s other crimes and wrongs. Since such evidence can be inflammatory and the Rule’s limits sometimes confusing, Rule 404(b) generates more published opinions than any other provision of the Federal Rules of Evidence. Although the prohibition extends beyond other crimes, most of the controversy swirls around the Rule’s application to …

Western Feminism Before And After October 7, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

In this interview, I provide my view on the state of Western feminism before and after the assault on Gaza. The interview includes discussion of the various strands of emergent feminisms in the West and some of their offshoots as they appear in Palestine in the context of Israeli colonialism and resistance to it.

Integrating Lawyers Into Perinatal Care Teams To Address Unmet, Health-Harming Legal Needs, Loral Patchen, Roxana Richardson, Asli Mccullers, Vicki W. Girard

Georgetown Law Faculty Publications and Other Works

Across the United States, historically imposed structural, social, and environmental variables are intimately connected to poor obstetric outcomes and high maternal and infant mortality rates among Black pregnancy-capable people. Efforts to diminish the effect of these variables include integrating screening for social determinants of health during the perinatal period and treating them with social services, mental health support, and other referrals, including connections to community-based resources. Although helpful, some of these social determinants cannot be overcome without legal advocacy. Medical–legal partnerships, which integrate lawyers into health care, fill this gap. This commentary by an interprofessional team of authors relies on …

Abolition And Environmental Justice, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

During the coronavirus pandemic, movements for penal abolition and racial justice achieved dramatic growth and increased visibility. While much public discussion of abolition has centered on the call to divest from criminal law enforcement, contemporary abolitionists also understand public safety in terms of building new life-sustaining institutions and collective structures that improve human well-being, linking penal divestment to environmental justice. In urging a reimagination of public safety, abolitionists envision much more than decriminalization or a reallocation of police functions to social service agencies or other alternatives to imprisonment and policing. Instead, for abolitionists, meaningful public safety requires, among other things, …