Georgetown University Law Center

About: Georgetown University Law Center is a based out in . It is known for research contribution in the topics: Supreme court & Global health. The organization has 585 authors who have published 2488 publications receiving 36650 citations. The organization is also known as: Georgetown Law & GULC.

Libertarian Corporatism is Not an Oxymoron

Abstract: This paper, for a symposium on constitutional law and inequality, proposes a new model of labor law termed "libertarian corporatism." Under this model, the state would strongly encourage or even mandate collective bargaining at the occupational or sectoral level (as corporatism requires), while leaving workers near-unfettered choice as to bargaining representatives, and removing certain core legal constraints on workers’ concerted action (as a principled libertarianism requires). This model may ensure both equality and employee choice better than our existing "Wagner Model." Libertarian corporatism may also be a promising power-dispersion strategy in other fields -- for example, it could help resolve conflicts over the use of user data by tech firms.

Charities in Politics: A Reappraisal

Abstract: Federal law significantly limits the political activities of charities, but no one really knows why. In the wake of Citizens United, the absence of any strong normative grounding for the limits may leave the rules vulnerable to constitutional challenge. This Article steps into that breach, offering a set of policy reasons to separate politics from charity. I also sketch ways in which my more-precise exposition of the rationale for the limits helps guide interpretation of the complex legal rules implementing them. Any defense of the political limits begins with significant challenges because of a long tradition of scholarly criticism of them. Critics of the limits suggest that the “market failures” that justify tax subsidies for charity also afflict group efforts to monitor politicians and organize politically, so that the subsidy should extend to cover those activities. These claims, though, overlook a series of additional issues suggested by transaction cost economics and other aspects of economic theory. Most significantly, even if lobbying and electioneering should be subsidized, it does not follow that these functions should be carried out by charities. I argue that combining politics with charity produces a set of diseconomies of scope, including higher agency costs, diminished “warm glow” from giving, and greater inframarginality of deduction recipients. In addition, I argue that the economically ideal tools for reaching the socially optimal levels of charity and lobbying are incompatible with one another. While there are also off-setting gains from the combination, many of these gains further exacerbate the diseconomies.

How Changes in the Legal Profession Reflect Changes in Civil Procedure

Abstract: Scholarship criticizing the legal profession generally blames partisanship for attorney excesses on behalf of clients. Moral philosophers argue that attorney partisanship on behalf of clients is inherently unethical, as it leads attorneys often to ignore the interests of third parties and to advance whatever outcomes benefit their clients, without pausing to consider whether a desired outcome is best for the law or society. Other scholars concede that partisan attorneys might, in theory, serve the law at the same time they serve their clients, but argue that changes in law practice have intensified partisanship and thereby have led attorneys to stray from this ideal role. These scholars attribute a perceived decline in the ethical stature and social utility of the legal profession to social changes that provide attorneys with ever greater incentives to put aside their scruples and do their clients' bidding. Neither set of scholarship provides a complete account of attorney excesses on behalf of clients because both overlook the constraining force of the judicial perspective. To succeed in a partisan role -- i.e., to be an effective adviser or advocate -- an attorney must consider his client's case not simply from the client's selfish perspective, but also from the perspective of the neutral judge who will decide the case after taking into account the interests of all concerned and trying to do what is best under the law. The prospect of a judge applying law to the client's factual scenario should (at least in theory) constrain attorney partisanship in transactional practice and litigation, ensuring that attorneys do not ignore the interests of third parties or stray too far from what is best for the law. If critics are correct that there has been a decline in the social utility of the legal profession, this decline is attributable not only to attorneys' partisan incentives, but also to a decline in the constraining force of the judicial perspective brought about by changes in civil procedure. The Federal Rules of Civil Procedure, as amended over the years, have diminished the importance of judicial evaluation of the merits of lawsuits in two related ways. First, liberal pleading and discovery under the Federal Rules have altered litigation dynamics by making lawsuits more expensive and inducing settlements based on this expense. Second, the expansion of issues associated with liberal pleading and discovery has increased litigation uncertainty, making it difficult for attorneys to factor judicial application of law to fact into the value of a case. Because changes in civil procedure and in the nature and force of the judicial perspective help to explain a perceived decline in the legal profession's social value, scholars concerned about the profession's decline should give serious consideration to procedural solutions. If the goal is to lead attorneys to pursue justice, procedural reform aimed at elevating judicial application of law would be more effective than merely revising ethical standards, and yet less daunting than revamping the social institutions that today appropriately lead attorneys to favor their clients' interests over others. Procedural reform could lead attorneys to consider the interests of justice not because it is the right thing to do, but rather because it is what a judge will do before deciding their clients' fates. Further consideration should be given to procedural reforms that would standardize judicial influence over the resolution of lawsuits and elevate the importance of judicial application of law to fact. Of the many avenues available toward achieving this goal, the Article offers three possibilities that may be worthy of further attention. First, in order to encourage judges consistently to utilize partial summary judgment as an issue-narrowing mechanism, Rule 56 could be amended to require judges to provide reasons whenever they deny summary judgment. A second reform might discourage weak claims and defenses by empowering judges to shift attorneys fees for positions that survive summary judgment but are contradicted by the weight of evidence disclosed during discovery. Finally, in order to ensure that excessive discovery expenses do not induce cost-based settlements prior to a judicial narrowing of issues, a third reform could require judges to identify at the outset issues that are candidates for summary judgment or fee shifting and to limit early discovery to those issues only. These three reforms would aim to eliminate, or at least mitigate, some of the tactical advantages that litigants today may gain from maintaining weak or meritless positions during pretrial.

Annotated bibliography on participatory consultations to help aid the inclusion of marginalized perspectives in setting policy agendas.

Abstract: The purpose of this bibliography is to present studies from peer-reviewed and grey literature that used consultations and other participatory strategies to capture a community’s perspective of their health priorities, and of techniques used to elevate participation from the implementation phase to a more upstream phase of prioritization, policymaking and agenda setting. The focus here is of those studies that worked with marginalized populations or sub-populations. This bibliography contains four areas of research. It begins by first offering some philosophical and conceptual frameworks that link participatory interventions with inclusive policy making or agenda setting, and a rationale for prioritizing marginalized populations in such an undertaking. After situating ourselves in this manner, the second section looks at various participatory instruments for participatory consultations, for reaching out to marginalized populations, and for communicating the results to policymakers. Two sets of distinctions are made here: one between external (non-invitation) and internal (stifling of opinions) exclusion, and between mere participation and from active inclusion within consultations and within the policies. In the third section, examples of consultations that created or changed policy in various jurisdictions are shared, followed by a final section on a reflective and evaluative look at the recruitment, instruments and examples. An earlier iteration of this bibliography was created to assist a multi-country research project by the author to inform the UN Post-2015 development framework of the views of several diverse and highly marginalized populations around the world on their health-related priorities.

Can a 'Dumb Ass Woman' Achieve Equality in the Workplace? Running the Gauntlet of Hostile Environment Harassing Speech

Abstract: Sandra Bundy may have guessed that her new job with the District of Columbia Department of Corrections would be a challenge. What she may not have expected was that she would have to meet the challenge under very different conditions than those faced by her male coworkers. Ms. Bundy's work was continually interrupted by one of her supervisors, who kept calling her into his office and forcing her to listen to his theories about how women ride horses to obtain sexual gratification. He repeatedly asked Ms. Bundy to come home with him in order to view his collection of pictures and books on this topic. Another supervisor repeatedly propositioned her, asking her to come with him to a motel or on a trip to the Bahamas.None of Ms. Bundy's male counterparts, in contrast, had to listen to their boss's sexual fantasies and proposals. When Ms. Bundy tried to remove this gender-based obstacle to her job performance by reporting it to a third supervisor and pleading for help, he only exacerbated the problem, telling her that "any man in his right mind would want to rape you," and asking her to have sex with him.Ms. Bundy successfully sued the Department of Corrections for sexual harassment in violation of Title VII, the federal statute outlawing workplace discrimination.The implicit holding of the Bundy case ― that speech alone can create a discriminatory hostile work environment ― went unquestioned for many years. Recently, however, defense attorneys have challenged the constitutionality of this principle, arguing that a prohibition on discriminatory workplace expression violates harassers' First Amendment rights.