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.

Waiting for the Big One: The Economics of Plaintiff-Side Personal Injury Litigation

Abstract: Contingency fees are a matter of intense public concern, but little is known about the economics of plaintiff-side personal injury litigation. We obtained data on payouts, fees, and expenses for all cases settled over an extended period by three plaintiff-side personal injury firms, one in Texas, one in Illinois, and one in a state we cannot disclose. We study the economics of plaintiff-side personal injury litigation, and estimate the effects of statutory caps on contingency fees. Fees vary from 0% to 34%, but the modal fee is one-third of the recovery. A one-third fee is not uniformly collected ex post even when it is explicitly contracted for ex ante: when recoveries are low, plaintiffs’ attorneys often reduce or waive their fee. Mean per-case litigation-related expenses were 5.1% (Il firm) and 5.6% (Tx firm). In prior work with Texas data, we found that defense-side fees and expenses increased over time. Although expenses increased at all three firms over time, fees as a percentage of recoveries decreased modestly at the Texas firm, and were stable at the Illinois firm. Analysis continues on the expenses and fees at the 3rd firm. At all three firms, an overwhelming percentage of total fees comes from a small number of cases. The top 10% (1%) of cases are responsible for 67% (23%) of total fees for the Illinois firm; 82% (55%) of total fees for the Texas firm; 43.5% (15%) for 3rd firm cases handled internally, and 67% (30%) of 3rd firm cases referred elsewhere. Cases with modest fees may help to keep the lights on, but the blockbuster cases are what keep plaintiffs’ attorneys in this line of work. Statutory restrictions on contingency fees vary in severity, but have the potential to significantly change the economics of plaintiff-side representation.

Who's Afraid of Unenumerated Rights?

Abstract: Unenumerated rights are expressly protected against federal infringement by the original meaning of the Ninth Amendment and against state infringement by the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Despite this textual recognition, unenumerated rights have received inconsistent and hesitant protection ever since these provisions were enacted, and what protection they do receive is subject to intense criticism. In this essay, I examine why some are afraid to enforce unenumerated rights. While this reluctance seems most obviously to stem from the uncertainty of ascertaining the content of unenumerated rights, I contend that underlying this concern are more basic assumptions about legislative sovereignty and the proper role of judges. I explain why a proper conception of constitutional legitimacy requires that unenumerated rights be protected somehow, that judicial protection is not as problematic as commonly thought once it is acknowledged that all liberty may be reasonably regulated (as opposed to prohibited), and that we need to ascertain the scope of unenumerated rights only to identify wrongful behavior that may be prohibited altogether because it invariably violates the rights of others.

Trademark Law as Commercial Speech Regulation

Abstract: False advertising law has largely escaped constitutional scrutiny because courts consider false or misleading commercial speech outside the protection of the First Amendment. Even moderate First Amendment protection for truthful commercial speech, however, requires some constitutional policing of the line between truth and falsity. Current enforcement of false advertising law, whether administrative, as with the FDA's regulation of drug-related speech, or judicial, as with Lanham Act suits brought by private parties, is ill-equipped to deal with First Amendment doctrine's very different concerns, rules, and presumptions. This essay explores some of the ways in which the First Amendment and trademark law - a type of false advertising law - differ in approach. Unlike most treatments of the subject through a First Amendment lens, this one does not begin with the presumption that the standard First Amendment approach is superior.

Making Constitutional Doctrine in a Realistic Age

Abstract: In this article the author considers three examples of modern constitutional doctrine that show how judges have stolen bits and pieces from popularized skepticisms about the job of judging and have molded this stolen rhetoric into doctrine. In the first example, she asks whether constitutional law's recent penchant for doctrinal rules based on "clear law" could have existed without the modern age's obsession with legal uncertainty. In the second, the author considers whether our contemporary rhetoric of constitutional "interests" and "expectations" reflects modern critiques of doctrine as failing to address social needs. In the third, she asks how an offhand reference to the term "fundamental" could come to describe a legal category defined by courts' own fears of illegitimacy except in an age self-conscious of the judiciary's institutional weaknesses. If the author is right about these examples, it may be that what was once said of modern painting's abstraction -- that whatever else it was about, it was "about painting" --i s true of modern doctrine's abstraction as well: that it is about doctrine and doctrine's struggle in an age self-conscious of the possibility of doctrinal failure.

Courts and Sovereigns in the Pari Passu Goldmines

Abstract: The pari passu clause in sovereign bond contracts has spawned an improbably huge academic literature and a fast-growing jurisprudence, culminating in recent U.S. federal court decisions, which used the clause to block payments on nearly $30 billion in Argentinian debt. The academic literature, judicial opinions, briefs and expert reports going back to the mid-1990s all assume that no court had interpreted the pari passu clause in sovereign debt before the year 2000. It turns out that there were at least four instances of such interpretation in the twentieth century.This essay discusses litigation in Switzerland in the 1930s and a decade-long international arbitration in the 1970s, in which four different panels considered the meaning of pari passu clauses in German Young Loan bonds. All four panels interpreted the clause in ways that might well be consistent with those of the U.S. federal courts; however, the bondholders still lost.Documents from the League of Nations archives suggest that the 1930s lawsuit against the Bank for International Settlements as trustee for the German bonds influenced proposals for contract and institutional change in sovereign debt management, notably with respect to the role of the bond trustee. To the extent such reforms might have had a chance, World War II and its aftermath put them on hold until the turn of the 21st century. As the dust from Argentina's debt saga begins to settle, the old disputes over the meaning of pari passu offer unexpected lessons for debt enforcement and contract reform.