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 & Public health. The organization has 585 authors who have published 2488 publications receiving 36650 citations. The organization is also known as: Georgetown Law & GULC.

Free Speech at What Cost?: Snyder v. Phelps and Speech-Based Tort Liability

Abstract: It is always a hard case when fundamental interests collide, but the Fourth Circuit’s decision in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), cert. granted, 130 S. Ct. 1737 (2010), tilts doctrine too far in the direction of free speech, upsetting the Supreme Court’s careful weighing of interests that takes into account both the need for robust political debate and the need to protect private individuals from personal abuse. Where speech is directed at a private individual, especially one unwilling to hear but unable to escape the speaker’s message, the elements of the emotional distress claim more than satisfy the appropriate constitutional standard. Indeed, such a standard can help create a civil space where both robust advocacy and the freedom to avoid robust advocacy can flourish. This article makes four points about the Fourth Circuit’s decision in Snyder v. Phelps, each of which addresses the need to secure what is purely private from injurious speech. 1. The Fourth Circuit decided that the issues animating the protest of the Westboro Baptist Church (WBC) were matters of public concern. Of course, the “issue[s] of homosexuals in the military, the sex-abuse scandal within the Catholic Church, and the political and moral conduct of the United States and its citizens” are matters of public concern. But none of these is the issue whose publicness the Fourth Circuit was called upon to consider. That issue is whatever connection Matthew Snyder had to these matters. In the world of speech-based torts, whether a matter is one of legitimate public concern depends on the content, effect, and significance of the plaintiff’s conduct, not the subjective and unilateral assertions of the defendant. WBC must show that that connection is of public concern. Otherwise, every soldier, every Catholic, etc. (no matter how assiduously he or she has avoided the public fray) would be subject to targeted personal assault as long as WBC speaks under the mantle of some public concern (no matter how tenuously connected to the conduct of its target). 2. The Fourth Circuit’s decision turned on the court’s determination that WBC’s speech, even if it was not a matter of public concern, was mere rhetorical hyperbole (and, thus, not provably false; and thus protected opinion). Whatever sense this reasoning makes in the area of public debate, it creates a perverse incentive for WBC to be especially abusive and inflammatory: the more hyperbolically hateful the speech, the more it is constitutionally protected. This doctrinal borrowing from defamation makes little sense where the plaintiff brings an emotional distress claim. First, when the plaintiff’s claim is based on emotional injury caused by non-provable speech, the state’s interest in the protection of private personality is greater. The defamation plaintiff is injured by false statements of fact: where there is no provable factual assertion, there is little chance of reputational injury. No one will believe what is clearly hyperbolic rhetoric. But those same words can heighten a plaintiff’s emotional distress (and the more hyperbolic, the more the harm), whether or not the defendant’s message is verifiable. Second, the value of the speech at issue, and thus the need to offer it constitutional protection, is lesser. Statements meant merely to cause emotional injury to private plaintiffs bear only the most superficial resemblance to protected forms of speech. 3. There is no justification for applying the actual malice standard to emotional distress claims outside the public arena (and little enough inside). The literal application of the actual malice standard offers no protection to the plaintiff claiming emotional injury from rhetorically hyperbolic speech. The victim of a libel can show that the statement was false. The victim of rhetorical hyperbole can prove or disprove nothing that will bring judicial redress. This may be the cost of doing business in the public arena, but there is no reason why a private plaintiff should be left defenseless against emotionally injurious speech that serves no valid communicative purpose. 4. The availability of tort remedies for injurious speech is critical if private individuals are to peacefully exercise their own constitutional rights. The state has a substantial interest in protecting families’ “personal stake in honoring and mourning their dead” and in keeping the most intimate of moments from “unwarranted public exploitation.” Mr. Snyder should have the opportunity to show that WBC’s targeted picketing “was intended to cause him and his family substantial psychological distress,” not to disseminate a public message. Matthew Snyder died in service to his country, but the injuries that took his life left a legacy of trauma for his family. It is now the Supreme Court’s opportunity to decide whether our nation’s profound commitment to the contentious discussion of public issues is also a license for egregiously intrusive and injurious speech.

Whither Stakeholder Theory?: A Guide for the Perplexed Revisited

Abstract: The nature of stakeholder theory and its fundamental normative prescriptions are the subject of much confusion and academic debate. This article attempts to provide an account of both the fundamental normative implications of stakeholder theory and the theory’s range of application that both stakeholder advocates and critics can agree upon. Using exclusively the language of leading stakeholder theorists, the article identifies the essential prescriptions of the theory and the type of organizations to which stakeholder theory applies in the hope of facilitating effective discussion and evaluation of the normative dimension of stakeholder theory.

Credit, Classification and Cognition: Credit Raters in 19th-Century America

Abstract: In the U.S. economy, investors and lenders often depend on third-party sources of information to help resolve information asymmetries about the creditworthiness of borrowers. Rating agencies now play a central role in U.S. capital markets. Both the rating agencies, and their 19th-c. predecessors the mercantile agencies, produce assessments of creditworthiness that conform to a specific format: Ordinally-ranked categories. These category systems are cognitive devices used by investors and lenders to simplify and make sense of inherently ambiguous situations. This paper examines the early evolution of credit rating systems, from the 1850s until the 1880s, with a particular focus on their categorical features. It traces both divergence and convergence in rating conventions and shows that raters were not simply interested in being “accurate” but were also particularly concerned to protect intellectual property and reduce legal liability.

Doing Too Much: The Standard Deduction and the Conflict Between Progressivity and Simplification

Abstract: In U.S. federal income tax, the standard deduction, along with the personal exemptions, provides taxpayers with a minimum amount of untaxed income, effectively creating a “zero bracket amount.” For historical and political reasons, however, the standard deduction also operates as a simplified substitute for the itemized deductions, such as the deductions for extraordinary medical expenses, charitable contributions, and home mortgage interest. This seemingly reasonable compromise in fact leads to substantial, and surprising, conceptual complexity. In particular, close analysis of each of the two roles shows that their effects, and related criticisms, are often contradictory, which in turn makes it difficult to have coherent debates regarding the proper roles of the standard deduction and the personal deductions. This article argues that, while the standard deduction is worse than we think it is, it is also easier to fix than we think it is. We can replace the standard deduction with a true, independent zero bracket amount and a floor under the itemized deductions while staying revenue-and distribution-neutral. This would effectively divorce the two roles of the standard deduction – zero bracket amount and simplification of the itemized deductions – leading to more coherence in individual income taxation and giving more flexibility to policymakers. This article proposes further to disaggregate the single floor under the itemized deductions into multiple, independent floors under each itemized deduction. This also would lead to greater coherence and flexibility in tax system design. While creating multiple floors would marginally increase complexity for some taxpayers, the costs of such complexity are overstated relative to the benefits of more accuracy and coherence.

The New Asylum Rule: Improved but Still Unfair

Abstract: In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) This article discusses how two specific provisions of the IIRIRA - the one-year deadline on asylum applications and the expedited removal provisions - unnecessarily cause hardship and injustice to asylum-seekers It also assesses the response of the Immigration and Naturalization Service (INS) and suggests needed regulatory and statutory reform Recognizing that even regulatory reforms will not eliminate many of the injustices caused by the IIRIRA, the article recommends enactment of the Refugee Protection Act, currently pending in Congress First, the article discussed the one year filing deadline and some of the changes that have been made to it since its introduction in the IIRIRA in 1996 The one-year deadline for asylum seekers requires asylum seekers to apply for asylum within one year from their time of entry into the United States The authors recommend that if the deadline is not repealed, the existing exceptions for "extraordinary" and "changed" circumstances should be augmented to include delayed awareness of changed country conditions, threats to an applicant's family living abroad, and genuine belated discovery of the law They also recommend changes in the regulatory definition of the exception for ineffective assistance of counsel Second, the article discusses the IIRIRA's grant of authority to the INS to engage in expedited removal Under the expedited removal provisions, an individual who is detained at the United States border because he or she does not have the proper documentation to enter, may be immediately deported at the discretion of the INS inspector back to his or her home country without an administrative or judicial hearing The article preliminary states that expedited removal should be limited to extraordinary migrantion situations It then discusses specifically what can be done at each stage of interrogation of the asylum-seeker by INS inspectors to make the system fairer for asylum-seekers For example, the authors recommend numerous changes to the secondary-inspection stage of the removal process, where airport-based inspectors determine if a refugee is afraid of returning home The authors also point out the need for numerous improvements to be made at the stage of the process during which INS determines whether aliens have a "credible fear" of persecution, permitting them to apply for asylum before an Immigration Judge The article concludes with strong support for the pending Refugee Protection Act