Showing papers by "Georgetown University Law Center published in 1995"

A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937

Abstract: For half a century before 1937, populists, progressives, and labour leaders complained bitterly that a \"judicialy oligarchy\" impeded social and economic reform by imposing crippling restraints on trade unions and nullifying legislation that regulated business corporations. \"A Muted Fury\", the first study of this neglected chapter in American political and legal history, explains the origins of hostility toward the courts during the Progressive Era, examines in detail the many measures that antagonists of the judiciary proposed for the curtailment of judicial power, and evaluates the successes and failures of the anti-court movements. Tapping a broad array of sources, including popular literature and unpublished manuscripts, William Ross demonstrates that this widespread fury against the judiciary was muted by many factors, including respect for judicial power, internal divisions among the judiciary's critics, institutional obstacles to reform, and the judiciary's own willingness to mitigate its hostility toward progressive legislation and labour. Ross argues that persistent criticism of the courts influenced judicial behavour, even though the antagonists of the courts failed in their many efforts to curb judicial power. The book's interdisciplinary exploration of the complex interactions among politics, public opinion, judicial decision-making, the legislative process, and the activities of organized interest groups provides fresh insights into the perennial controversy over the scope of judicial power in America.

The Four Doctrines of Self-Executing Treaties

Abstract: A distinction has become entrenched in United States law between treaties that are "self-executing" and those that are not. The precise nature of this distinction -- indeed, its very existence -- is a matter of some controversy and much confusion. More than one lower federal court has pronounced the distinction to be the "most confounding" in the United States law of treaties. A tremendous amount of scholarship has sought to clarify this distinction, but the honest observer cannot but agree with John Jackson's observation that "[t]he substantial volume of scholarly writing on this issue has not yet resolved the confusion" surrounding it. The continuing, and remarkably candid, judicial confusion over this issue will, in the hopes of the author, excuse yet another attempt to bring some coherence to the doctrine. In this article, he argues that much of the doctrinal disarray and judicial confusion is attributable to the failure of courts and commentators to recognize that for some time four distinct "doctrines" of self-executing treaties have been masquerading as one. With a view to furthering the development of doctrine in conformity with constitutional allocations of power, the author identifies these four "doctrines," as reflected in the self-execution decisions of the Supreme Court and the lower federal courts, and he examines the very different types of analysis that they call for. At a general level, a self-executing treaty may be defined as a treaty that may be enforced in the courts without prior legislation by Congress, and a non-self-executing treaty, conversely, as a treaty that may not be enforced in the courts without prior legislative "implementation." This definition helps us understand the domestic allocation-of-powers function of the distinction: it allocates between the judiciary and the legislature the responsibility for enforcing compliance with treaties by everyone else (private individuals, state and federal executive officials, state legislatures). But the doctrine allocates this responsibility only provisionally. Because of the last-in-time rule, under which a statute is to be enforced by the courts even if it conflicts with an earlier treaty, the legislature ultimately has the power to control the judiciary's role in enforcing even self-executing treaties. The doctrine of self-executing treaties thus serves to distinguish those treaties that require an act of the legislature to authorize judicial enforcement from those that require an act of the legislature to remove or modify the courts' enforcement power (and duty).

Deciding Who Decides Who Dies: Capital Punishment as a Social Choice Problem

Abstract: This article is about decision making by juries in capital cases. A jury is a collection of individuals who may possess differing views about factors relevant to the task before them, but who must, nonetheless, arrive collectively at a decision. As such, the members of the jury face a classic social choice problem. We investigate how this problem is likely to be resolved under various institutional regimes, differentiated by the set of individuals who are allowed to participate and the decision rule controlling their activities. As in our previous paper analyzing decision making by juries, we focus here on an aspect of the process that has been neglected in judicial opinions and academic scholarship: namely to what extent, and how, persistent disagreement among jurors can and will be resolved.

Insurance Recovery of Litigation Costs: A Primer for Policyholders

Abstract: Comprehensive review of the "duty to defend" by insurance companies and what expenses and costs are reimbursed under standard insurance policies in the US.

Fighting Domestic Violence in the Nation’s Capital

Abstract: Every year, in the District of Columbia alone, the Metropolitan Police Department receives more than 18,000 calls for help from victims of domestic violence, and more than 2,500 battered women bring legal actions requesting protection from their abusers. Thousands of other cases go unreported, either because the victims are too afraid of their batterers to report the violence, or because they do not know how to obtain relief to which they are entitled.