The Georgetown Law Journal

Latest print issue: Vol. 106 Issue 3

Should your past mistakes—embarrassing photos, off-colored jokes, or mishaps with the law—live on the Internet forever? In this Note, I make the argument that the right to be forgotten is an American solution to the permanency of the Internet. I explain that the right does not limit free speech; rather, it diminishes the accessibility of information by raising the cost to obtain it. Critics often argue that such a right is un-American; however, the right is quintessentially American because it offers individuals an opportunity to be free from their past mistakes and avoid harm to their reputation. Just as declaring bankruptcy can act as a reputational albatross, so too can certain mistakes made during one’s life that are posted online—especially for adolescents and teenagers. Further, there are clear parallels between the value of one’s copyright-able work and one’s reputation—both are used to further opportunities and make a living. As the demand increases for an ability to remove information from the Internet, these perspectives on the right to be forgotten are descriptively helpful. They provide an analytical context to view the right within the scope of the First Amendment and facilitate fresh insights about modeling the right in America.

The law cannot be a secret hidden from the public. This proposition strikes most of us as uncontroversial—a basic premise of any legal order committed to democratic accountability and the rule of law. Yet in this country secret law not only exists, but has become an entrenched feature of contemporary national security governance. From NSA surveillance to terrorist watch lists to targeted killings, the most controversial national security programs of our time have all been governed by secret rules, secret directives, and secret legal interpretations. This Article sheds new light on this deeply unsettling state of affairs. It pushes beyond a reflexive aversion to secret law to unpack the underlying normative principles that both militate against secret law and motivate its widespread use. Secret law poses grave threats to basic values of democratic accountability, individual liberty, and separation of powers, but it also serves pragmatic national security purposes. By clarifying these competing values, it is possible to identify a number of distinct characteristics that make a given example of secret law especially odious—or essentially benign. This Article thus offers a systematic rubric for evaluating particular instances of secret law. This Article also provides the first systematic review of the legal ecosystem that governs secret law in the Executive Branch—what I call the “law of secret law.” The picture that emerges is startling: existing law gives the Executive Branch enormous discretion to keep law secret. Indeed, the courts have effectively endorsed the practice of secret law, and Congress has been almost entirely quiescent in its face. This Article proposes a novel reform agenda to transform this permissive legal ecosystem into one that more adequately protects transparency values. It offers core principles for a new framework statute limiting the practice of secret law. In addition, it argues that courts can and should prompt democratic deliberation over secret law (and legislative reconsideration of the status quo) by adopting a constitutional clear statement rule against secret law that is grounded in the text and structure of the Constitution.

Patent litigation is notoriously expensive and time consuming. In the past decade, however, patent law has changed in many ways that expedite resolution of infringement disputes. This Article identifies and evaluates this trend toward quick decisions in patent cases. Balancing the savings in litigation costs against the potential for error, the Article defends many recent and controversial developments, including the Supreme Court’s invigoration of the patent eligible subject matter requirement, the new administrative proceedings created by the America Invents Act, and changes in the requirements for pleading patent infringement. These developments permit defendants to obtain rulings of invalidity or noninfringement before discovery begins, which was previously impossible. Prediscovery rulings cost relatively little and can discourage low-merit litigation. But resolving complex questions of validity or infringement on a thin factual record may increase the risk of error, so the Article suggests additional reforms to help ensure that quick decisions are also accurate decisions.

Nonprecedent decisions are the norm in federal appellate courts and are seen by judges as a practical necessity given the size of their dockets. Yet this system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn from a study of immigration appeals showing that many—and in a few circuits, most—decisions by the federal courts of appeals are in fact unavailable and essentially invisible to the public. This Article reviews the reasons why nonpublication is a practical, constitutional, and philosophical challenge for judges. It argues that the existence of widespread invisible adjudication calls for a rethinking of the way courts operate, the way practitioners advise clients, and the way scholars study the legal system.

This Note uses an originalist lens to view Nathan Dunlap’s story as a particularly egregious example of the cruelty inherent in our capital punishment scheme. It acknowledges that much of the cruel uncertainty surrounding the death penalty may be due to constitutional and legal safeguards imposed to ensure the state does not execute an innocent person, yet it considers whether the modern death penalty violates the original meaning of the Eighth Amendment as interpreted by Stinneford. Finally, this Note argues that we may have to choose between this quest for perfection in the administration of capital punishment and avoiding the imposition of cruel and unusual uncertainty.

Maternity care in the United States is in a state of crisis, characterized by high cesarean rates, poor performance on various mortality and morbidity measures, and a steep price tag. There are many factors that impede access to high-quality, evidence-based maternity care for certain women. Grassroots organizers have raised awareness about the extent to which giving birth in the United States has become overly medicalized. Perhaps less widely known, however, is the extent to which women experience abuse, coercion, and disrespect while giving birth. Inspired by activists in Latin America, advocates in the United States have begun to adopt the language of “obstetric violence” to describe and condemn such mistreatment. However, the existing research on obstetric violence is limited, which complicates the task of defining the problem and identifying solutions. To that end, this Article explores the profound mistreatment that some women experience during childbirth at the hands of their health care providers. It identifies various types of provider behavior that qualify as obstetric violence and paints a broad picture of how childbirth can be a damaging experience for some women, even when they leave the hospital with a healthy baby. Having developed a nuanced view of provider mistreatment and its implications, this Article then examines the current failure of law and regulation to provide meaningful prevention or recourse. It concludes by suggesting forms of advocacy within the legal and health care systems that offer promising approaches to shifting maternity care culture and, ultimately, to securing necessary changes in the tort system for women harmed by provider mistreatment during childbirth.

This Article discusses how the requirement of justifiable reliance in the law of deceit came to be turned into a requirement of reasonable reliance. Courts can and do use the reasonable reliance requirement to dismiss on the pleadings deceit claims involving what the court considers to be unreasonable reliance by a plaintiff. This was the fate of most of the claims against lower-tier law schools for publishing misleading employment statistics. I argue that the equation of justifiable reliance with reasonable reliance was an unintended consequence of a loosening of the tort’s scienter rule in the middle of the twentieth century to eliminate a requirement of intended reliance. The goal of the change was to make the law tougher on fraudsters by making a fraudster liable to a predictable but unintended victim of a fraud. The proponents of the change did not realize that the rules of justifiable reliance flowed from the old intended reliance rule. A later generation of judges and legal scholars made sense of the rules of justifiable reliance by equating justifiable reliance with reasonable reliance, creating a worse injustice than that which was created by the old intended reliance rule. The reasonable reliance rule allows a fraudster to escape liability if he can persuade a court that a reasonable person would not have fallen for his fraud. Under the old rule, a claim involving unreasonable reliance ordinarily could not be dismissed on the pleadings, affording the plaintiff an opportunity to establish culpable intent by proving that the defendant purposefully exploited the plaintiff’s unreasonable disposition and beliefs. I identify the functions served by the rules of justifiable reliance and argue that the intended reliance rule serves these functions as well as the reasonable reliance rule, while allowing fewer frauds to escape punishment. I conclude that courts should restore the intended reliance rule and eliminate the reasonable reliance rule in the law of deceit. The rules of justifiable reliance can be kept as they are, but they will return to being presumptions that a plaintiff can overcome by showing that a defendant had culpable intent.

Web-exclusive content: GLJ Online Vol. 106

The number of amicus briefs filed in the United States Supreme Court has been growing. Cases with thirty or more amicus briefs are no longer particularly rare, and the highest-profile cases attract more than one hundred amicus submissions. Amicus briefs can provide valuable information to the Court, but the large and growing volume of amicus filings threatens the Court with a form of information overload in which the most valuable contributions get lost in an avalanche of largely overlapping submissions. The Court, and people who follow the Court’s activities, would benefit from having a way to identify and prioritize the briefs that are most likely to deserve careful attention. In this Essay, we use plagiarism-detection software as a tool to identify the amicus briefs that contribute the greatest amount of non-duplicative information. We illustrate this technique by applying it to a dataset of several hundred briefs filed in the highest-profile cases of the most recent Supreme Court terms. Our method of ranking briefs according to their distinctive content is not meant to replace other ways of quickly assessing a brief’s likely value (such as relying on the reputation of the filing entity and its attorney), but our ranking provides helpful, objective information that can be used by judges, law clerks, and anyone else who wants to make the best use of their limited reading time.

In popular and political culture, many observers credit nearly twenty-five years of declining crime rates to the “New Policing.” Breaking with a past tradition of “reactive policing,” the New Policing emphasizes advanced statistical metrics, new forms of organizational accountability, and aggressive tactical enforcement of minor crimes. The existing research and scholarship on these developments have focused mostly on the nation’s major cities, where concentrated populations and elevated crime rates provide pressurized laboratories for police experimentation, often in the spotlight of political scrutiny. An additional line of scholarship has looked more closely at how the tactics of the New Policing have become institutionalized in police–citizen interactions in the everyday lives of residents of poorer, often minority, and higher-crime areas of the nation’s cities.

Supreme Court confirmation hearings are vapid. Supreme Court confirmation hearings are pointless. Supreme Court confirmation hearings are harmful to a citizenry already cynical about government. Sentiments like these have been around for decades and are bound to resurface each time a new nomination is made. This essay, however, takes a different view. It argues that Supreme Court confirmation hearings are a valuable form of cultural expression, one that provides a unique record of, as the theater critic Martin Esslin might say, a nation thinking about itself in public.

A gun wielded by a marching white supremacist leads a complicated double life, for it is at once deadly and expressive. Displayed in the context of the August 2017 marches in Charlottesville, the protesters’ firearms expressed something—something too diffuse to call a proposition but still recognizable as a cluster of themes and ideologies: anger, suspicion of the government, white supremacy, a fear of being replaced, admiration of the Confederacy, “sic semper tyrannis,” nativism, and other associated emotions and ideas. In Charlottesville, these and other strands of meaning came together in the glint of muzzles in the mid-morning sun.

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