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.

Fiduciary Legal Ethics, Zeal, and Moral Activism

Abstract: The recent turn to fiduciary theory among private lawyer scholars suggests that "lawyer as fiduciary" may provide a fresh justification for legal ethics distinct from moral and political accounts propounded by theorists in recent decades. This Article examines the justification and limits of fiduciary legal ethics. In the course of the investigation, it argues that the fiduciary relation of lawyer to client as defined in the ethics codes does not align perfectly with fiduciary principles in other legal domains, such as agency, trust, or corporate law. Lawyers are fiduciaries of their clients. Does that mean lawyers can never throttle back on partisan zeal for moral reasons? So it might seem, and so some scholars have argued. Ethics rules permit lawyers to withdraw from representations they find morally repugnant, but not to represent clients with diminished zeal. And yet there are cases, such as peeking at metadata inadvertently transmitted in documents sent by an adversary, or exploiting scrivener's errors, where many lawyers understandably back off from the sternest implications of partisan zeal. Such cases call into question whether "lawyer as fiduciary" tells the whole story. An adequate theory of the lawyer-client fiduciary relationship must define the limits to fiduciary zeal as well as justify the fiduciary relationship itself. Otherwise, invoking the word "fiduciary" merely relabels the moral problem of partisan zeal rather than resolving it.

The Constitutional Duty of a National Security Lawyer in a Time of Terror

Abstract: National security lawyers are probably not in the forefront of the public’s mind when one refers to government lawyers, but they serve a vital mission within the public sector. This article explores the duties and responsibilities inherent in that mission, and discusses the continuing role of the national security lawyer after the terrorist attacks of September 11th, 2001.

Janet Halley and the Art of Status Quo Maintenance

Abstract: Over the past few years, Janet Halley emerged as one of the most avid critics of campus rape feminist activists, activists who push for the reformulation of university investigative rules to shift the burden of proof from the accuser to the accused. Halley contends that Title IX policies, embedded with affirmative consent, are not only procedurally unsound, but bad for boys, bad for sex, and bad for feminism, charging its agenda with “radical feminism” influences. Halley’s stance on campus rape is consistent with her long-held “queer theory” and its anti-feminist deregulatory drive. In this article, I argue that Halley’s “queer theory,” which she developed by polemically critiquing Catharine Mackinnon’s work, in an attempt to extol “sex positivism” in legal academia with the dignity of “fancy” theory, in effect stands Mackinnon on her head. By inverting Mackinnon’s gender/ sex constructions, Halley’s theory fronts as an idealist proposition indicting feminism with the invention of sexual injury and inspiring women to manipulate innocuous facts into scandalous protest. Flipping Mackinnon’s equality approach when it comes to legal rules takes Halley to the right of “consent” where Mackinnon had gone to its “left.” By mirroring Mackinnon’s critique of “consent,” except from the right, Halley’s theorizing echoes a sexual libertarian agenda without/before feminism. It defends male sexual entitlement avant liberal feminism. Ideologically, such theoretic formulations, along with the bundle of rules they advocate for, are designed to keep pressure on ruling liberal feminism from departing in its understanding of sex from the “pathology” model whereby all men are good except for those who are “pathologically” violent (classical liberalism) in the direction of understanding sexual entitlement as part of the social construction of maleness. By clamoring from the right of liberal feminism, mainstream liberal feminism is kept in check. In order to explain the various elements of Halley’s theories on gender/sex and expose their underlying pre-feminist “classical liberal” orientation, I position her comparatively within the gender/sex theories of the non-liberal academic left: Mackinnon (her antagonist), Duncan Kennedy (her ally), and Judith Butler (her theoretical homebody). I analyze the way these theorists used the theoretical traditions of Marxism, post-modernism, and post-structuralism to posit a relationship between gender and sex: sex is gender simpliciter (Mackinnon), gender is sex simpliciter (Halley), and the split difference between gender and sex (Kennedy). This exercise illuminates the doctrinal approaches of each theory, be it to the left or right of consent. I conclude the article with a succinct critique of Halley’s theoretic excursions and argue Halley is guilty of five themes of “misrecognition:” (A) theoretical, oscillating between an antagonism to the very idea of sexual injury and proposing a neutral proceduralist approach to identifying it; (B) political, targeting radical feminism with her critique while smashing liberal feminism on the way; (C) sociological, reading women’s sexual injury through the eyes of an “uninjurable” promiscuous gay man advocating a radical sexual ideology; (D) ideological, attempting to ally her sexual libertarianism with the left when the ideological universe it travels is “classical liberalism,” definitively, the left’s most pronounced critic; and (E )historical, advocating a “sex positive” agenda in radically sex positivist times.

The Outrageous God: Emotional Distress, Tort Liability, and the Limits of Religious Advocacy

Abstract: When Matthew Snyder died fighting for his country, his memory was celebrated, and his loss mourned. The Westboro Baptist Church conducted a celebration of a different kind by picketing near Matthew's funeral service. The church held signs that read, "You are going to hell," "God hates you," "Thank God for dead soldiers," and "Semper fi fags." In the weeks following the funeral, the church posted on its website, godhatesfags.com, an "epic" entitled "The Burden of Marine Lance Cpl. Matthew Snyder." Matthew's burden, as the church saw it, was that he had been "raised for the devil" and "taught to defy God." Matthew's father, Albert Snyder, brought a civil action against the Westboro Baptist Church in federal district court, asserting a claim for intentional infliction of mental and emotional distress (among other causes of action). He was awarded $10.9 million in compensatory and punitive damages. That judgment, as such judgments against religious entities are wont to do, occasioned protest from First Amendment advocates concerned that, under the open-ended standard of outrageousness, "[l]iability easily ends up turning on how much juries condemn the speaker's viewpoint." Cautioned by the Supreme Court that "'[o]utrageousness' in the area of political and social discourse has an inherent subjectiveness about it," courts hearing outrage suits are on guard against breaches of objectivity that would disadvantage minority religions. However, to avoid the appearance of religious viewpoint discrimination, judges often resort to fine, almost scholastic, distinctions between what is secular and what is religious; between what is central to a religion's belief and practices and what is theologically insignificant; and, even more tenuously, between what is belief and what is conduct. This is caution to a fault. These distinctions have produced a results-oriented jurisprudence that, paradoxically, involves the courts in precisely the kind of entanglement with religious affairs they seek to avoid, and does so while leaving ill defined the threshold that separates protected religious advocacy from religiously motivated conduct subject to tort liability. This essay argues that emotional distress claims are well suited to suggest the outer limits of civil tolerance for religious advocacy. Such tort suits serve socially valuable punitive and prophylactic functions, providing vulnerable individuals with a remedy against the most offensive and intrusive forms of religious conduct. That protection need not come at the cost of constitutional privilege for religious entities. Where no intra-church dispute is involved, the only question a court is obligated, and entitled, to consider is whether the religious entity's conduct was of a type that no decent society should tolerate. Tort liability is not premised on the judgment that a religious belief is somehow "fundamentally flawed" or not worthy of constitutional protection. To the contrary, whether religious advocacy was meant to and did inflict severe emotional distress is a question that can be adjudicated by the neutral and generally applicable principles of tort law.