Litigating Liberty introduces students to the practice of public interest litigation under 42 U.S.C. § 1983. The class will examine cases from the perspective of the lawyers who fight constitutional battles and explore topics like how to select the right client, identify the right claims, and file in the right jurisdiction. The class will also discuss how to choose the right moment in history to bring suit and how to effectively utilize the media. There will be particular emphasis on teaching real-world litigation skills, such as how to approach motions to dismiss and discovery. Students will then act as the practitioners themselves and fight for their cases on summary judgment, giving students practical experience in the day-to-day life of a constitutional litigator.

This seminar will cover the history and present of abolitionist movements in the United States and the role of law in resisting or hastening abolition, mainly of slavery, but also of prisons and policing today. The first half of the course will present a legal history of abolitionism. Students will learn about the founding constitutional accommodations to slavery and the role of the Supreme Court in enforcing those constitutional protections of enslavers prior to the Civil War. They will also learn about the modes of abolitionist resistance to slavery, including freedom suits by enslaved persons and legal challenges on behalf of fugitives as well as abolitionists’ petitions to state and federal legislatures to end slavery. They will read and engage with iconic primary abolitionists texts from the colonial, revolutionary and pre-Civil War eras to understand the moral, constitutional, and political arguments levelled against slavery. They will also read and understand the original intentions of the drafters of the Reconstruction Amendments and engage with their conception of “abolition democracy,” that is, the democratic society they hoped to create to ensure freedom and equality for the formerly enslaved. The second half of the course will engage with abolition now, particularly the legal and social movements for abolition of modern slavery, prisons, and endemically violent policing. Students will read excerpts from signature works on contemporary abolitionism, including key law review articles on prison and policing abolition and on “abolitionist constitutionalism.” They will grapple with the relevance of abolitionist thought to modern aspirations concerning individual freedom, equality, and democracy.

Learning Outcomes: (1) Students will learn about the role of abolitionists and abolitionist thought in shaping American law and guarantees of freedom and equality. (2) Students will demonstrate an ability to produce an original, high quality research paper. (3) Students will demonstrate an ability to give constructive feedback on the work of their peers. (4) Students will engage in critical analysis of the gap between our professed founding ideals of freedom and the reality for historically and presently subordinated persons and develop concrete ideas in their papers on what to do about it.

This seminar examines the challenges to constitutional democracies from illiberalism, i.e. the concentration of power that relies on elections, limits judicial independence, and abuses the rule of law in the name of the people. Many so-called democracies have serious flaws in their election systems, limited judicial independence, and elected leaders who are not held in check by functioning rule of law processes/checks and balances. 

In the United States, efforts have been made to change rules for voting, draw electoral districts to give extreme partisan advantage, and use federal government agencies as weapons to thwart checks and balances.  In this seminar we apply a multidisciplinary approach to the American situation, putting legal (in particular constitutional) transformation in the center. Specific topics include constitutional amendment, limitations on judicial independence, control over the media, takings and other restrictions of the free market, voter suppression and gerrymandering, plebiscites (e.g., Brexit), and threats to fundamental rights.  

In addition to considering Turkey and the countries of East Central Europe, where voters have chosen autocratic leaders, we will also examine the Russian approach which has served as a model for many emerging illiberal regimes as well as a financial and intellectual support for illiberal movements from France to Italy and elsewhere, to better understand developments in the U.S.  In addition, the course will consider how crises, such as public health issues or civil unrest, are used as justification for limiting true democracy.

In addition to examining the legal structures that permit this abuse of the democratic form, this course will also address the critical question of whether a democracy is sustainable in the face of ethno- or religious populism.  Are there sources of constitutional resilience to save the remaining constitutional regimes?

This course will take an in-depth look at issues involving the law of evidence.  The topics discussed will likely fall into three categories. This first category concerns constitutional limitations on evidence rules such as the Confrontation Clause, a criminal defendant’s constitutional right to present a defense, and the impeachment of jury verdicts.  The second category concerns advanced problems involving character, hearsay, experts, and privileges.  The third category concerns the process of proof in civil and criminal cases and will focus on topics such as burdens and standards of proof, evidentiary presumptions, and judicial notice.    

This course will take an in-depth look at issues involving the law of evidence.  The topics discussed will likely fall into three categories. This first category concerns constitutional limitations on evidence rules such as the Confrontation Clause, a criminal defendant’s constitutional right to present a defense, and the impeachment of jury verdicts.  The second category concerns advanced problems involving character, hearsay, experts, and privileges.  The third category concerns the process of proof in civil and criminal cases and will focus on topics such as burdens and standards of proof, evidentiary presumptions, and judicial notice.    

This seminar examines advanced subjects in evidence that were not treated or not treated in depth in the basic Evidence course but are important to trial practice.

This seminar explores, through lecture, discussion, role playing, and problem solving, the range of legal challenges and public policy issues affecting older adults. Subject areas include health care benefits (Medicare, Medicaid); long-term services and supports (nursing homes, home and community-based services, long-term care insurance, state-based programs); income security programs (Social Security, SSI); aging and autonomy, including elder abuse, neglect and exploitation and advance planning related to incapacity (powers of attorney, guardianship and its alternatives, choices regarding life-sustaining medical treatment); housing and consumer issues affecting older adults; and ethical issues in representing older adults. Coursework will address systemic inequities faced by older adults of color, older women, LGBTQ older adults, older adults with disabilities, and older adults who are immigrants or have limited English proficiency. The seminar is both practice- and policy-oriented and integrative with respect to other coursework and related disciplines.

This course will explore cutting-edge issues in First Amendment doctrine, policy, and scholarship, through a pedagogical method that emphasizes structured debate and moot court oral arguments.  Among the substantive issues we will address include:  the effect of social media on free speech; campaign finance reform; compelled speech; data as speech and data privacy; hate speech; student online speech; commercial speech; and speech on campus.  The class will feature a mixture of traditional seminar conversation and moot courts or structured debates.  Each student will have the opportunity to be an oralist and to be a questioner or judge.  Writing requirements will include the preparation of questions for the moot courts/structured debates, and an in-depth analysis of one of the issues we have discussed in class.  

This seminar focuses on the substantive law of capital punishment and on the procedural aspects of post-conviction proceedings. The course will include an examination of the history of death penalty jurisprudence, habeas corpus, recent U.S. Supreme Court cases, public policy issues, and state and federal death penalty statutes. The writing requirement offers students an opportunity to write on a topic of their choice pertaining to the death penalty.

This seminar will focus on the major shifts in church-state law over the past decades and key issues the Supreme Court will face in the next several terms. It will analyze and evaluate the various theories proposed by the sitting Justices on both free exercise and establishment clause jurisprudence and place those theories in the historical context of church-state law in America. The seminar will deal with such issues as tensions between the free exercise and establishment clauses, public aid to religious institutions, religion and public education, accommodating religious minorities, and church autonomy. It will also examine tension between demands for religious accommodation and demands for gender and sexual equality, protection of public health, and other social norms. Throughout, current litigation strategies related to these issues will be explored.

This practicum aims to finalize and publish research on civil remedies for sexual assault, harassment and battering.  The issue has become more timely given recent Supreme Court opinions suggesting that state tort law (the subject of two of our memos) may be the only viable remedy for survivors. Three prior practicums have produced three memos, with important empirical findings on the limited availability of civil remedies, in the federal and state systems, for our partner organization, Legal Momentum (formerly NOW Legal Defense and Education Fund). This evidence was cited in testimony before the House of Representatives in favor of the Equal Rights Amendment, but has yet to be finalized or published.       Students seeking to learn how to publish academic work may find this practicum course particularly useful, as we will seek to  publish our end product. Advance approval of the instructor is required:  please send the instructor a resume, a transcript, and a paragraph explaining why the student seeks to take this class. Students should not take this practicum if they do not want to do significant research, writing, and blue-booking. 

Please see the Civil Rights Clinic website for more detailed information about the program.

For registration-specific supplemental materials, please see the Civil Rights PDF.

For information about clinic registration generally, please see the Clinic Registration Handbook.

This seminar will examine recent litigation in the Supreme Court involving the modern civil rights statutes: Title VII, Title IX, RFRA, the ADEA, the ADA, the Fair Housing Act, and Sections 2 and 5 of the Voting Rights Act. Toward that end, we will read recent cases decided by the Court interpreting theses statutes, and the cases that form the backdrop for those decisions. We will also examine briefs and oral arguments in some of these cases. Finally, we will examine civil rights cases that are scheduled to be heard in the upcoming term, or that may make their way to the Court in the near future. There will be one writing assignment, a paper of approximately 25 pages in length. Two-thirds of the grade will be based on the paper, and one-third will be based on class participation.

This course will provide an overview of remedies (including damages and injunctive relief), and key civil rights doctrines (including municipal liability, qualified immunity, and supervisory liability). The course will focus heavily on 42 U.S.C. § 1983 (The Civil Rights Act of 1871).  Required readings will include state and federal court opinions, academic and media articles, and a recent book about civil rights lawsuits against law enforcement: Shielded, How the Police Became Untouchable, by Joanna Schwartz. The materials covered are applicable to a wide range of civil rights litigation, but the focus of the course is on civil litigation against law enforcement officers and agencies. In addition to classroom discussion of assigned readings, the course will include visits from practitioners with experience in the topics covered by this course.  Throughout the course, students will be challenged to think critically about the law’s claim to neutrality and its differential effects on subordinated groups. This approach is essential to understanding why Section 1983 has been interpreted as it has over time, and how this impacts the legal arguments and strategic decisions lawyers practicing in this area should make.

Learning Objectives:

• an understanding of doctrines critical to the litigation of civil rights cases brought against law enforcement agencies and officers; both the ways in which the doctrines have been broadly defined by the Supreme Court and some examples of lower court applications of the doctrine;
• an understanding of the policy goals that animate civil rights doctrines, and the ways in which those doctrines further and inhibit those goals;
• an understanding of how facially neutral doctrines shield law enforcement and agencies from accountability in ways that disproportionately disadvantage subordinated groups, including those identified by race, gender, indigeneity, and class;
• an understanding of the ways in which lawyers deploy procedural rules as part of their litigation strategy, and the consequences of various strategic choices;
• the ability to think strategically about how to frame and pursue a police misconduct civil rights action;
• hone ability to read, analyze, and explain your understanding of a court opinion;
• improve ability to apply black letter law and case holdings to novel factual scenarios;
• the ability to constructively participate in and lead discussions of complex issues related to policing, including issues regarding structural racism and state violence; and,
• the ability to work collaboratively with classmates on exercises exploring various aspects of civil litigation.

By providing a rich historical introduction to the histories of various groups of color in the United States and their encounters with white Europeans and their descendants, we will explore the themes of race and racism in a variety of doctrinal contexts. We will examine federal and state cases and legislation, which have defined the scope and limitations historically faced by minorities over time from the point of slavery to modern day. We will also examine how early social and economic realities have shaped society’s and thus the court’s view of the role of minorities in America.  Finally, we will study major cases leading to systemic change and the advancement of equal justice and at times retrenchment.
The overall themes and reading assignments for this course are directly related to Georgetown’s Institutional Learning Outcomes (ILO). Specifically, this course provides students the ability to think critically about the connections between race, history, and legal doctrine or law, and the differential effects that has on minority groups. 

Learning Objectives:

This course will enable students to enhance their critical thinking skills, examine and analyze legal precedents, and develop or improve their advocacy skills and legal writing.

We will examine throughout the semester why and how the law uses racial identifications in theory and in practice, which will require students to think critically about the powerful and ingrained modes of thinking about race and the impact that has on the law’s claim to neutrality. We will begin with a discussion on implicit bias and how it provides a background for understanding the twists and turns over the years of the notions of race in America. Students will then use this understanding throughout the remainder of the course to think critically about the role of implicit bias in the law as it pertains to race, ethnicity, and culture.

Please see the Communications and Technology Law Clinic (IPR) website for more detailed information about the program.

For registration-specific supplemental materials, please see the Communications and Technology Law Clinic (IPR) PDF.

For information about clinic registration generally, please see the Clinic Registration Handbook.

How do we lose and save a constitutional democracy? How can democratic backsliding be prevented? What should we consider in designing a constitution? Can constitutions exist without constitutionalism? What is an authoritarian constitution? How do constitutions transitions and change occur? What forms of judicial review do courts employ? Is it possible to have an unconstitutional constitutional amendment? How do courts across the world interpret constitutions? Can constitutions be employed abusively?

Comparative constitutional law has exploded in contemporary constitutional practice and as a field of study. Events around the world—from Asia and the Middle East to Europe and Latin America—underscore the importance of understanding how constitutional democracies are born and how they can collapse. In this course, we will explore constitutions in global perspective, examining issues of constitutional structure and rights across comparative constitutional systems. We will cover topics like constitution-making, constitutional change, constitutional amendment, judicial review, and constitutional adjudication. Drawing on examples across the world, we will also examine individual rights issues, such as freedom of religion and freedom of expression, as well as constitutionalism in times of emergency and during the COVID-19 pandemic. We will also consider how constitutions can be abused and the question of whether and how constitutionalism might be able to endure in fragile democracies.

This course will explore the legal issues that judges, legislators, prosecutors, and defense attorneys confront as they respond to the recent dramatic increase in computer-related crime.  In particular, we will consider how crimes online challenge traditional approaches to the investigation, prosecution, and defense of crime that have evolved from our experience with crimes in physical space.  Topics will include: the Fourth Amendment online, the law of electronic surveillance, computer hacking and other computer crimes, cyberterrorism, the First Amendment and the Internet, and civil liberties online.

Although much of this class involves computer and internet technology, no prior technical background or knowledge is required.

Any technology that needs to be understood will be explained in class, and students should not hesitate to ask for other technical explanations.

This seminar deals with Congress’ powers to conduct oversight and investigations of the Executive branch. This seminar will cover the scope of Congressional inquiries and investigations, Congress’ subpoena powers, grant of immunity powers as well as hearing and rulemaking powers, the use of select committees, the GAO, and other special investigative techniques. The course will examine the use of prehearing depositions, rights of witnesses, preparation of witnesses, the role of the press and the interaction between Congress and prosecutorial functions including investigations conducted by special and independent counsel statute. In addition to the traditional use of lectures, class discussions and outside speakers, the course will be built around mastering the subject matter and surfacing ethical issues by working on complex problems. Students will be expected to work in small groups on contemporary issues to simulate the work of Committee members, Committee Staff, White House Counsel Staff and members of the news media.

This seminar explores the range of issues involved in congressional investigations, with special attention paid to the differing perspectives of the major players, both inside and outside of Congress, in a congressional investigation. Congressional investigations involve a unique interplay of legal and political issues. Legal issues -- involving such matters as the rights of private institutions and private citizens who may be implicated in a congressional investigation, the legal and political ability of the Executive Branch to resist congressional probes, the authority of the Judicial Branch to interfere with or limit the conduct of congressional investigations, and the relationship of congressional investigations to related criminal and civil inquiries conducted by other governmental entities -- must be factored into the political calculus of the contending political forces involved in a congressional investigation. Political determinations -- which underpin such issues as the scope and duration of an investigation or whether witnesses should be interviewed, deposed or called to testify live at a hearing -- may have significant legal ramifications. This seminar will address these issues at both the practical and the theoretical levels. As part of the course, class members will be asked to participate in mock problems concerning different aspects of the process.

This seminar deals with the distribution of powers between the president and Congress in the areas of war, diplomacy, international organizations, foreign assistance, commerce, money, etc. as well as the distribution of powers between the national and state governments. Such related matters as the impact on individual rights and the political question doctrine in this context are also discussed.

This project-based practicum course will give students the unique opportunity to be part of the constitutional litigation work of Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP). Led by attorneys with deep experience in trial and appellate advocacy, national security law, and federal prosecution, ICAP pursues strategic litigation in federal and state courts at all levels to defend constitutional rights and values while working to restore confidence in the integrity of our governmental institutions.  Recent work includes safeguarding rights to free expression, assembly, and democratic participation; combating threats from unlawful private militias and political violence; fighting the criminalization of poverty and other forms of criminal legal system overreach; defending the rights of young people and marginalized communities; and preserving fundamental separation-of-powers principles. ICAP often works in close partnership with non-profit organizations, pro bono teams of law firms, and law school clinics. Students will participate in a two-hour weekly seminar and carry out an average of 15 hours per week of work with ICAP and its partners on strategic litigation and litigation-adjacent policy development.

SEMINAR: Drawing on experience from ICAP’s cases as well as prominent historical and current examples of impact litigation, the seminar will focus on the history of public and social justice litigation and its uses, criticisms, and obstacles. Seminar participants will discuss with the practicum’s Professors and other lawyers on the ICAP team strategies for bringing impact litigation, including identifying and selecting plaintiffs, test cases, venues, and legal theories, as well as engaging the public. Students will receive specific instruction on how to prepare research memoranda useful to litigators exploring which cases to take and which arguments to make; on what makes for successful, persuasive briefing of constitutional arguments; and on how to explain to the public, in forms such as short op-eds, the crux of key legal challenges and the stakes associated with them.

PROJECT WORK: Students will work an average of 15 hours per week on constitutional litigation and related projects handled by ICAP.  Work flow will depend on litigation deadlines and demands.  Students should not expect the workload to be even from week to week, and some weeks may require a significantly greater number of hours while others may require very few. Students’ roles may include providing litigators with memoranda conveying research on relevant legal issues; drafting portions of briefing materials; mooting oral advocates for argument; drafting press releases and/or op-eds relevant to ICAP’s litigation; and assisting with litigation-adjacent policy development. Students also may be involved in fact gathering related to ICAP’s litigation, including reviewing and analyzing publicly available data. 

Prospective students should review ICAP’s website for examples of previous work.  Examples include obtaining injunctions against unlawful private paramilitary activity by far-right extremists and militias; challenging bail practices and fines and fees that unconstitutionally discriminate against indigent defendants; representing “sanctuary cities” against challenges to their policies; obtaining an injunction against anti-protest legislation designed to chill First Amendment rights; and representing the U.S. House of Representatives Select Committee to Investigate the January 6 Attack on the United States Capitol in obtaining presidential records relevant to its investigation.  Students will undertake multiple projects over the course of the semester, engaging with not only the Professors, but also with ICAP’s other litigators. Students will be expected to work both independently and in teams, just as they would on an impact litigation team.

Analyzing text is a deeply important part of legal practice in public law, whether statutory or constitutional law.  It cuts across a wide variety of subject matter areas, from very basic aspects of the Constitution to any statutory topic imaginable. Whatever the subject matter, whether health care law, presidential emoluments, or internet privacy, certain problems of legal analysis recur.  How should courts analyze legal texts?  Where should judges go to look for meaning when the text is vague or ambiguous?  Should texts be updated to reflect current norms?   What does it mean to look for the drafter’s intent?   Should approaches toward statutory and constitutional text be symmetrical or not?  This seminar will introduce students to these problems and provide essential skills for reading both constitutional and statutory text.   Materials will be provided by the instructor or invited guests. Students will be graded on short reaction papers due every two weeks.   Given the theoretical nature of the topic, law review students are especially encouraged.

This course will explore constitutional limits on legislative and prosecutive efforts to prohibit corrupt conduct involving payments to public officials, excessive or prohibited campaign contributions and independent expenditures, fraudulent fundraising by SuperPACs, and false statements by government employees. Students will review the historical evolution of relevant statutes, applicable constitutional principles, and Supreme Court and lower court decisions addressing constitutional limits on legislative and enforcement efforts.

The course will be organized chronologically within specified topics. The primary topics will include: Constitutional Principles; Bribery & Extortion; Fraud & Misapplication; Election Crimes; and Constitutional Privileges. The topics will span several consecutive classes with relevant case law assigned as the primary reading material.

This course addresses questions concerning the role of the Supreme Court in resolving legal problems that arise under our fundamental law, as well as issues concerning the Constitution's distribution of power between the national and state governments and among the branches of the national government.

This course is the basic course on United States constitutional law. The course explores the architecture of the United States Constitution and focuses on topics illustrating three core structural aspects of American constitutionalism: (1) the tradition of constitutional review by the judicial branch; (2) the configuration, interaction, and powers of the three branches of the national government; and (3) the Constitution’s distribution of power between the federal and state governments.

This course focuses primarily on the First, Fifth, and Fourteenth Amendments (free speech, due process, and equal protection) and the role of the Supreme Court as ultimate interpreter and guardian of the Bill of Rights.

Note for Professor Barnett's Fall section: As a way to understand the structure of current doctrines, Professor Barnett’s course will stress how and why the doctrines evolved from the Founding through the Civil War, Reconstruction, the Progressive Era, the New Deal, the Warren and Rehnquist Courts to the Roberts Court today. The course will also stress the effect that slavery had on the original Constitution and the Reconstruction Amendments. Coverage will include the Second and Ninth Amendments. Professor Barnett's section will consist of a 3-hour unit consisting of two 85 minute class sessions and a 1-hour unit consisting of video presentations on the theory and practice of originalism that students can view at their convenience at any time before or during the semester.  Internet access on any device is not allowed during class; all laptop use is disallowed in Professor Barnett's course (unless necessary to conduct Zoom instruction).  

Learning goals for Professor Spann's section

The primary goal of the course is to teach students how to manipulate the doctri­nal rules and underlying policy consid­era­tions that govern the topics in the course, and to get students to confront the norma­tive implications raised by such vast amounts of doctrinal indetermi­nacy, especially for the law’s claim of neutrality toward subordinated groups. 

For more than a century, court decisions have lagged advances in technology. The advent of the Internet and developments in artificial intelligence, particularly generative artificial intelligence, have accelerated this gap. This course explores how federal courts are tackling disruptive technologies and digital challenges. The focus will be on a few select areas, including speech, Section 230 of the Communications in Decency Act, privacy, and artificial intelligence, though in reality the lines are blurred between these topics. We will look at cases that serve as the analytical foundation for these issues and consider contemporary judicial efforts to address the shifting legal and digital landscape in an ambiguous environment. Students will have an opportunity to engage in structured, in-class debates and exercises to highlight conflicting views in this arena. The course will also address how judges are engaging with technology in their chambers and courtrooms and how this engagement may impact the decision-making process.

This course will provide students the opportunity for intense and detailed study of cutting-edge issues arising under the Free Speech Clause of the First Amendment and the right to keep and bear arms under the Second Amendment. Students will be required to read foundational Supreme Court cases in full (including concurrences and dissents) to enable them to discuss and debate the decisions and the analytical approaches used to reach them.

Learning Objectives:

By the end of the week, I hope you will have learned to:

1. Understand more deeply First and Second Amendment jurisprudence;
2. Appreciate how difficult it is for the Supreme Court to decide close cases;
3. Express your thoughts clearly and concisely and to disagree with colleagues without being disagreeable;
4. See virtue in reading cases in their entirety, rather than in excerpt form;
5. Recognize different judicial philosophies in Supreme Court opinions;
6. Identify premises justices use as starting points for their analyses; and
7. Write an exam that reflects command of First and Second Amendment cases.

This seminar will explore the practice and strategy of constitutional litigation through a close study of recent constitutional challenges to Executive Branch action.

We will begin with a brief overview of major trends in constitutional litigation against the Executive Branch. We will then address specific cases, examining the course of each litigation and exploring key strategic judgments made by parties, amici, and judges. Students will leave the course familiar with every stage of a constitutional case, from the initial announcement of an Executive Branch policy, to the decision to file suit and the drafting of a complaint, to litigation at every level of the Judiciary and in the court of public opinion, to the varied challenges that may follow a successful lawsuit. Along the way, we will consider the strategy and incentives of different litigants—including civil rights groups, private parties, cities, states, and legislators. We will also study the goals and strategies of lawyers charged with defending Executive Branch action.

Although this list is subject to change in light of ongoing developments, we likely will cover many of the following topics:

• President Trump’s "travel ban"
• The exclusion of transgender persons from military service
• Don't Ask, Don't Tell
• The Defense of Marriage Act (DOMA)
• DACA and DAPA
• Threats to revoke federal funds from sanctuary cities
• The (unsuccessful) addition of a citizenship question on the 2020 Census
• Requests by juvenile undocumented migrants to exercise abortion rights
• The challenge to President Trump’s policy of blocking critics on Twitter
• President Trump's compliance (or lack thereof) with the Emoluments Clauses
• Efforts by the House of Representatives to compel testimony by former officials
• Efforts by cities, states, and the House to obtain President Trump’s tax returns
• The impeachments of President Trump

Each week, students will study relevant court filings and opinions (from district courts all the way to the Supreme Court), complemented by contemporaneous legal commentary. We will expect all students to prepare for—and participate in—classroom discussion.

Congress shall make no law . . . abridging the freedom of speech,” commands the First Amendment. This course explores how that charge has played out in practice by analyzing some of the most challenging free speech issues of our day. Topics include: incitement, threats, hate speech, protests, boycotts, aiding and abetting, suppression and retaliation by public officials, anonymous speech, compelled speech, the speech rights of social media platforms, algorithms, facial recognition, artificial intelligence, and speech about abortion post-Dobbs. Students will delve into the relevant legal doctrine, as well as its theoretical and analytical underpinnings, while also developing skills as advocates by applying that doctrine to actual cases. Students will be expected to make meaningful contributions to class discussion.

Learning Outcomes:

(1) Students will develop a deep understanding of the core First Amendment/free speech case law relevant to the problems we study as well as the theory undergirding the protections for free speech.

(2) Students will develop skills as advocates in applying that body of case law and underlying theoretical principles to current complex problems, including actual cases I have handled as a practitioner.

This course examines the relationship between the federal judiciary and the Congress, and its role in shaping the administration of justice.  How do lawmakers exercise effective and appropriate oversight while fostering a system of federal courts that discharges the judicial power of the United States?  How does the Judiciary maintain independence within a system in which Congress has so many controls over the Third Branch?  How can the two branches work together to sustain and strengthen the federal courts as an essential part of our government?

Anticipated session topics include: the Judicial Conference of the United States, legislative cooperation, appropriations, judgeships, confirmations, and oversight.  Most seminar meetings will include discussion with practitioner guests.

Grading will be based on: (1) class attendance and appropriate contributions to seminar discussions, including written questions for guests submitted in advance of each class meeting; (2) two short memo assignments; and (3) a capstone exercise of proposing a congressional action and responding to a classmate’s proposal.

Please see the Criminal Defense & Prisoner Advocacy Clinic website for more detailed information about the program.

For registration-specific supplemental materials, please see the Criminal Defense and Prisoner Advocacy Clinic PDF.

For information about clinic registration generally, please see the Clinic Registration Handbook.

Please see the Criminal Justice Clinic website for more detailed information about the program.

For registration-specific supplemental materials, please see the Criminal Justice Clinic PDF.

For information about clinic registration generally, please see the Clinic Registration Handbook.

An examination of the basic Fourth, Fifth, and Sixth Amendment principles that govern the interaction of the police and suspects in the investigation of crime. From stop and frisks to coerced confessions, the course will examine the constitutional doctrines developed to regulate police behavior and the admissibility of evidence. The core concepts will include the definition of a "search," the meaning of probable cause and reasonable suspicion, the requirement of a search warrant and the many exceptions to the warrant requirement, Miranda and related limits on interrogation, and the pre-trial right to counsel. The course will also focus on the role of the courts in enforcing the constitutional guarantees, particularly through the exclusionary rule.

Learning Objectives:

1. Thorough Understanding of the Primary “Substantive” Fourth Amendment Issues in Criminal Cases and Certain Civil Cases
2. Thorough Understanding of Primary “Remedial” Fourth Amendment Issues in Criminal Cases
3. Thorough Understanding of the Primary “Substantive” Fifth Amendment Issues Related to Interrogations and Confessions
4. Thorough Understanding of the Primary “Remedial” Fifth Amendment Issues Related to Interrogations and Confessions
5. Thorough Understanding of the Sixth Amendment Issues Related to Uncounseled Confessions and Pretrial Line-ups
6. Thorough Understanding of Sixth Amendment Issues Related to the Effective Assistance of Counsel

Critical Race Theory places race and racism at the center of American law. This course will describe the origin story of Critical Race Theory along with the current anti-Critical Race Theory backlash. It will examine the role that race plays in creating legal doctrine. The course will examine racial biases in judicial decision making in many courses covered in the first year of law school, but not exclusively those courses. Legal doctrines covered in the following subjects will be analyzed: Civil Procedure; Torts; Contracts; Criminal Procedure; Criminal Law; and Property. The course will also consider whether Critical Race Theory has influenced judicial precedent and what Critical Race Theory judicial opinions might look like.

COURSE GOALS

By the end of the semester, students will:

1. Understand the role that racism has played in shaping American Legal doctrine in first year subjects.
2. Be equipped to critically evaluate the role of racism in shaping other areas of law.
3. Enhance their critical reading skills.
4. Enhance their critical thinking skills.
5. Enhance their ability to have difficult conversations about racism in a productive manner. Self-reflection is a key ingredient here.

This is a project-based practicum that will involve students in ongoing death penalty cases and teach them the legal framework for death penalty litigation. Professor Sloan has been active in death penalty litigation and representation, including two recent Supreme Court victories on behalf of a death row inmate in Texas: Moore v. Texas, 137 S. Ct. 1039 (2017) and Moore v. Texas, 139 S. Ct. 666 (2019).

In their project work, students will work on legal research related to ongoing death penalty litigation on behalf of death penalty defendants and inmates. Students also may have the opportunity to draft, or contribute to, briefs and motions related to ongoing death penalty litigation. Students will work with organizations and practitioners litigating death penalty cases. Among the organizations and individuals that have partnered with this practicum are the Southern Center for Human Rights, the Miami-Dade Public Defender, the Federal Public Defender, and individual death penalty litigation practitioners. Other organizations and individuals are likely partners as well.

In the seminar, students will develop an understanding and appreciation of the ongoing debates on death penalty issues – both broad jurisprudential issues (such as the meaning of the Eighth Amendment and relevant state constitutional provisions) and specific doctrinal topics (such as intellectual disability, insanity, and mitigating evidence in the death penalty litigation context). It also will be helpful to students to understand the experiences of death penalty litigators. Readings on these subjects will be woven into the seminar.

This course covers the Americans with Disabilities Act, its amendments, regulations, and interpretive guidance as they relate to discrimination against people with disabilities in employment, the programs, services, or activities provided by government entities, and public accommodations. The course will take a pragmatic approach to exploring the rights and responsibilities arising from this law and will focus on such issues as defining disability, the concept of qualified persons with a disability, reasonable accommodations, medical exams and disability-related inquiries, program access, and public accommodations.

This course will address domestic violent extremism (DVE), an increasingly urgent matter of public concern that raises complex legal and policy issues.  The violence at the U.S. Capitol on January 6, 2021, was an unprecedented event.  It was, however, the culmination of several years during which domestic violent extremists increasingly organized themselves into paramilitary units, committed racially and politically motivated violence, intimidated people seeking to exercise their constitutional rights, and threatened government officials fulfilling their responsibilities.  In March 2021 the Office of the Director of National Intelligence reported that the intelligence community:

assesses that domestic violent extremists (DVEs) who are motivated by a range of ideologies and galvanized by recent political and societal events in the United States pose an elevated threat to the Homeland in 2021. Enduring DVE motivations pertaining to biases against minority populations and perceived government overreach will almost certainly continue to drive DVE radicalization and mobilization to violence.

In June 2021 the White House issued its Strategy for Countering Domestic Terrorism, recognizing the significance of the threat and the need for a comprehensive approach focused on information sharing, prevention, disruption and deterrence, and resilience.  In January 2022 the head of the Justice Department’s National Security Division declared that “attacks in recent years underscore the threat that domestic terrorism continues to pose to our citizens, to law enforcement officers and elected officials, and to our democratic institutions,” and announced the creation of a domestic terrorism unit at the Department.

Addressing domestic violent extremism raises a host of complex questions relating to law enforcement, national security, freedom of speech, freedom of assembly, the right to petition regarding grievances, the right to bear arms, voting rights, and the appropriate scope of counterterrorism operations.  This course will introduce students to these issues, enhance their ability to engage in rigorous analysis of them, and enable them to formulate responses consistent with the rule of law and in respect of civil rights and civil liberties.  This analysis will be informed by an understanding of the history, nature, and sources of DVE, as well as the organizational and associational structures that it may take.

Assessment will be based on a paper of 3,000 words analyzing a legal or policy issue related to domestic violent extremism and proposing options for addressing it.

The learning objectives for this course are for students to:

(1) Become familiar with the history, nature, sources, and structure of DVE in the United States;

(2) Understand and be able to analyze the wide range of constitutional issues that policymakers and lawyers must assess in attempting to address such extremism;

(3) Understand and be able to analyze the statutory and common law legal considerations that are relevant in addressing DVE;

(4) Appreciate the policy considerations that should inform analysis of DVE; and

(5)  Formulate potential responses to DVE on the federal, state, and local level that appropriately weigh competing considerations based on rigorous analysis of the issues described above.

This course examines federal and state law regulating the conduct of elections and the financing of campaigns. Included are aspects of federal and state constitutional law on speech, association, and equal protection; and particularly problems of apportionment, gerrymandering, race-conscious districting under the Voting Rights Act, and barriers to voting. With respect to campaign finance, we consider how much and what kinds of legal regulation are constitutionally appropriate regarding parties, candidates, independents, political action committees, corporations, unions, and individuals.

This course explores the legal mandate for equal employment opportunity in relation to race, color, religion, sex, national origin, age, disability and other traits. The focus is principally upon Title VII of the Civil Rights Act of 1964 and also includes the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Post Civil War Civil Rights Acts, and state analogues to Title VII, such as the District of Columbia Human Rights Act. The course also discusses the evolution of employment discrimination law to address such traits as sexual orientation and transgender status. The course examines the doctrinal and theoretical aspects of employment discrimination law through a rigorous analysis of court decisions, statutes and regulations; explores the public policy issues underlying the law of employment discrimination; and discusses the strategic and tactical approaches a practicing attorney will consider in actually utilizing these laws to represent clients.

This course explores the legal mandate for equal employment opportunity in relation to race, color, religion, sex, national origin, age, disability, and other traits. The focus is principally upon Title VII of the Civil Rights Act of 1964 and also includes the Age Discrimination in Employment Act, the Americans with Disabilities Act, and related state analogues. The course examines the doctrinal and theoretical aspects of employment discrimination law through a rigorous analysis of court decisions, statutes and regulations. Legal readings will be supplemented with perspectives from psychology, sociology, and economics. We will also discuss the strategic and tactical approaches a practicing attorney will consider in actually utilizing these laws to represent clients.

The goal of this (constitutional law and lit) seminar is to see what we can learn from those who, by choice or otherwise, find themselves placed outside the law—literally in some cases, metaphorically in all.  These are not figures who are merely challenging the constitutionality of a law or laws; rather, they are demanding a radical overhaul of our very idea of law.  For them, law as it exists has been a means to injustice. In each unit below (other than the Conclusion), I have paired background “lit” readings with constitutional readings.   The units are: 1)  A Covenant with Death?:  Our Founding Documents and Original Meaning (paired with Dred Scott); 2) Slavery by Another Name:  Prison Lit, Race, and Law (paired with case law interpreting the Thirteenth Amendment); 3) Fighting Faiths:  Archetypes of the Religious Outlaw (paired with case law interpreting the Free Exercise Clause); and 4) Outlaw Pedagogy (paired with case law on parental rights).  We’ll conclude the semester by looking at two very different presentations of the trial as a forum for justice:  “The Trial of Socrates” (Plato) and “The Trial of the Chicago 7.”  The first is a tribute to law even when the law is manifestly unjust; the second is a bold (and often hilarious) mockery of the entire process. 

For their seminar papers, students will write about one figure or one work not covered in class.  For example, a student could write on Camus’ The Stranger as a portrait of the existential outlaw and provide an existentialist critique of a classically liberal constitutionalism.  Or, a student might focus on an author/work to consider whether the Constitution’s notion of equal protection can accommodate a genderqueer assault on the “naturalness” of binary gender categories.  Obviously, there are many, many worthwhile candidates.   Student work will meet all the upper-level writing requirements.

Cautionary note:  This course deals with sensitive, even volatile, subject matter.  Some subjects will be difficult, perhaps even painful, to discuss.  Some texts contain offensive language.  I expect all discussion to be conducted with courtesy, respect, sensitivity, and compassion.  Like all seminars, this one ought to be a forum for hard-earned learning:  a place where we can consider new ideas and reconsider old ones.  I make no claim to expertise in our “lit” subjects.  I will be learning along with you.  I hope that students will be full participants in suggesting additions to our reading list, in proposing new topical units for consideration, and in thinking boldly about how this seminar may evolve. 

This course addresses the role of the federal courts in our system of government, focusing on relevant constitutional and statutory provisions and jurisdictional doctrines and concepts. Representative topics include justiciability, congressional power to regulate the jurisdiction of the Supreme Court and lower federal courts, Supreme Court review of state court judgments, sovereign immunity, abstention, and habeas corpus.

This course addresses the constitutional and statutory provisions, as well as the jurisdictional doctrines and concepts, that shape and limit the role played by the federal courts in our governmental system. Representative topics include Congressional power to curtail federal jurisdiction, limitations on the ability of the federal courts to enjoin state court proceedings, federal common law, the Eleventh Amendment/state sovereign immunity, federal habeas corpus, and the prerequisites for Supreme Court review of state court judgments. The primary emphasis of the course is on a critical analysis of these jurisdictional doctrines, although some time is spent on litigation aspects.  

This course examines the body of law dealing with the status of the Indian tribes, their special relationship to the federal government, and the governmental policies underlying it. It will also focus on the legal interrelationships among tribal, state, and federal governments, tribal gaming and economic development, and tribal rights to natural resources.

Please see the Federal Legislation Clinic website for more detailed information about the program.

For registration-specific supplemental materials, please see the Federal Legislation Clinic PDF.

For information about clinic registration, please see the Clinic Registration Handbook.

As an instrument of federalism, the U.S. Constitution plays a vital role in defining state and local governments’ taxing powers. In some instances this is accomplished by express Constitutional provisions; in others, by express or implied grants of authority to the legislative, executive or judicial branches of government. This advanced state and local tax course will explore and analyze Constitutional provisions that limit (and sometimes expand) state and local taxing powers. It will include a historical review of Supreme Court jurisprudence that underscores the inherent complexities and tensions precipitated by the intersection of federalism and the underlying goals embodied within the Commerce Clause, Equal Protection Clause, Import-Export Clause, Privileges and Immunities Clause, and Supremacy Clause, among others. The course also will explore how issues of federalism have shaped various Federal statutory enactments, as well as pending pieces of federal legislation. For example, it will analyze how federalist tensions and statutory dynamics were balanced in a proposed congressional bill concerning state and local tax incentives. Additionally, the course will explore the impact of Treaties and international trade laws, as well as their related enforcement mechanisms, which continue to spawn new issues implicating the States’ powers to tax.

The federal budget is where the nation’s priorities are expressed.  It allows the federal government to operate and shapes what the government will do.  It is also an important source of revenue for state and local governments and thus affects their own policy choices.  This course provides an introduction to the laws, rules, and practices that govern how the federal budget is put together and how the budget is executed.  We will study both traditional “regular order” and contemporary realities.  We will pay particular attention to sites of contestation and control with respect to the key institutional players of the legislative branch (including different committees within both the House and Senate, party leadership, the Congressional Budget Office, and the Government Accountability Office) and the executive branch (including the President, the Office of Management and Budget, agencies, and inspectors general).  We will also study the role of the courts in appropriations law. 

This seminar will explore selected topics in Civil Procedure, Federal Courts, and Administrative Law in depth.  The seminar will focus on topics that have recently gained attention in the Supreme Court or that may arrive in the Supreme Court in the near future.  Each class will relate to only one or two such topics.  Examples of possible topics include nondelegation, federal preemption, arbitration clauses and the Federal Arbitration Act, personal jurisdiction, Chevron or other doctrines of deference to agencies, congressional power over Tribes and/or States, Dormant Commerce Clause limits on congressional power, class action scope and limits, and the major questions doctrine.  Depending on the topic, we may read Supreme Court decisions, scholarly literature, or Supreme Court briefs.  There will be one major writing assignment: a paper of approximately 20-25 pages in length that addresses a topic in civil procedure, federal courts, or administrative law.  The grade in the course will be based substantially on the final paper, but may be adjusted upward or downward one-half grade based on class participation.  We recommend but do not require completion of or simultaneous enrollment in Administrative Law or Federal Courts.  (NB: This two-credit course does not fulfill the J.D. Writing Requirement.) 

The so-called “federalism revolution” of the past 30 years, reflected in a series of controversial Supreme Court decisions, has engendered reams of commentary and provoked widespread litigation challenging a range of federal statutes under constitutional provisions including the Commerce Clause, the Spending Clause, and the Tenth and Eleventh Amendments, as well as nondelegation principles and other related doctrines.

Rarely has so complex a body of interrelated law developed so quickly. The seminar will trace the development of the Court’s recent federalism jurisprudence both from a doctrinal perspective and as a study in the dynamics of judicial decision-making. A critical aim of the course will be to understand the values underlying the federalism debate, and to observe judges and justices of all persuasions seeking to reconcile those values with other priorities and with the institutional limitations of the courts. We also will consider the extent to which the Court’s recent jurisprudence, including new limitations on the federal administrative state, has altered the dynamics of federal-state relations and whether future decisions are likely to do so.

We will use the developing nature of the federalism jurisprudence as an opportunity to develop advocacy skills. Students will satisfy the writing requirement by writing a 25-page appellate brief in one of the cutting-edge cases designated on the syllabus or comparable academic paper. We will work closely with each student in developing the structure and argument of the brief or paper, and in moving from draft to final product. To develop oral advocacy skills and liven our discussions, the seminar will include a number of informal moot courts and debates.

This is an advanced course on constitutional principles bearing on U.S. foreign relations: primarily, separation of powers, federalism and judicial review of Executive acts and congressional legislation. It focuses on some of the most challenging issues that have divided the American polity from the inception of the Republic and continue to do so today, e.g., the allocation of foreign affairs power between the Executive and Congress; the scope of Presidential power to protect the nation in times of danger; and the proper role of the courts in deciding legal issues relating to national security.  We will study historical materials that inform the legal arguments on both sides of current controversies over Presidential and Congressional power and discuss foreign relations issues under judicial review in 2020. We also study the power to make treaties and executive agreements, the Supremacy clause and application of customary international law by U.S. courts.

This seminar is designed to encourage students to think critically and creatively about the appropriate constitutional role for the principles of equality and liberty and, more broadly, about the manner in which Supreme Court functions as an institution. These goals will be accomplished by "reinventing" fourteenth amendment jurisprudence, free from the constraints imposed by the actual decisions of the Court. At the beginning of the semester, students will be assigned to individual "courts," which will meet to decide cases assigned every other week throughout the semester. The "courts" will be expected to vote on how the cases should be decided and to prepare written majority, dissenting, and concurring opinions as appropriate. Each student will be graded in part on the basis of the quality of any opinion that the student agrees to sign. By citing as authority only those cases previously decided by that court, each court will develop a body of hypothetical case law over the semester that must be distinguished, amplified, or, if necessary, overruled in dealing with the next set of cases. Students will be encouraged to remain in role and to attempt to develop a consistent judicial philosophy. Every two weeks, two of the “courts” will become “law firms,” which will analyze the case law developed by a third court, write briefs, and conduct an oral argument before the third court. Although little reading will be required for this seminar, students will be expected to produce a substantial amount of written work and to devote a substantial amount of time to meeting with other members of their court.

"Congress shall make no law . . .," the First Amendment commands, "abridging the freedom . . . of the press." But Congress, the Executive Branch, and the courts have promulgated a host of laws governing both print and electronic media. This survey of mass media law explores such current topics as prior restraints on publication, defamation, privacy, newsgathering liability, media liability for unlawful conduct of third parties, compelled disclosure of sources, and access to information. Practical aspects of representing media clients are examined along with public policy implications of existing legal doctrines and proposals for change. Much of the course is discussion-based, and students will be expected to make meaningful contributions to that discussion, with class participation forming the basis for one-fourth of the grade for the semester.

Our society’s intense polarization has had serious consequences for our campuses, in no arena more significant than freedom of expression. In today’s toxic environment, how can students and faculty, and the numerous other stakeholders, pursue liberal, rational, open learning? How can they speak up without fear? How can campus administrators ensure safety and maintain civility? What speech is protected and what speech is deemed to be hateful? What legal redress can there be for threatening speech? What are the effects on all of us of a lack of free inquiry and civility on campus?

This course seeks to answer those questions as it considers the contours of free expression on campus. We will cover the distinctions between public and private colleges and universities, religion and free expression, and the relationship among free expression, academic freedom, shared governance, and freedom of association. We will consider the limits on expression, and where behavior crosses over the line from being protected to become the proper subject of disciplinary action or removal from the institution. We will also address the way in which the boundaries of free expression are foundational to institutions of higher learning. To say that expression is protected is a threshold issue, not the end of the discussion, bringing us to a compelling topic for the nation generally, and academia particularly: the relationship between free expression and civility in the public square.

Learning Objectives:

Our goal throughout the course will be to understand the breadth of issues faced by higher education institutions in their mission to further free and open debate and discussion, and also maintain a safe and appropriate learning environment for all members of the community. We will focus on applicable legal doctrines as well as the philosophical underpinning of free inquiry and academic freedom. Whether or not students seek to serve as a University Counsel, all need to understand the laws underpinning the fundamental freedom of expression. Our campuses are the places where knowledge is created and transmitted, and therefore what happens on campus matters beyond its confines.

There is also a skill-oriented aim of this course. Students will often be in the position of the college or university’s general counsel, or other members of the administration, having to articulate the standards that apply to the institution, making or recommending decisions in particular cases, or formulate campus policy. Students taking the course for 3 credits, who will write a significant research paper, will have the opportunity to develop their skills in legal research and writing as applied to a particular issue and will present their papers at the final class meeting.

This course will provide an introduction to the legal contexts and theoretical debates surrounding sex, gender, sexuality, and their intersections.  We will explore the way gender and sexuality have been debated, defined, and redefined in the contexts of gender identity and performance, sexual pleasure, reproductive rights, sexual violence, marriage, family organization, work, and education.  In these contexts we will consider the evolution of the law, the discursive effects of law, and the ways feminist and queer theorists have challenged and reimagined prevailing legal rules and cultural norms. In short, the class will probe the ways that law is gendered, sexualized, and raced, and with what overall effects on social institutions and practices.

Key topics will include:

• The Mutual Influence of Identitarian Politics and Law 
• Constitutional Law of Sex Equality, Liberty, and Religious Objection
• Regulation of Sexual Conduct
• Regulation of Reproduction
• The Evolving Meanings of Marriage & Family
• Sexual Harm & Consent
• Gender & Sexuality at Work, School and other Institutions

This course analyzes the basic considerations in contracting with the federal government, including the sovereign's power to contract, the applicable statutes, regulations and executive orders, and sovereign immunity. Material covers methods of acquisition: sealed bidding or negotiation (competitive proposals); requests for quotations; Multiple Award Schedule (MAS) contracting; as well as the authority of government agents to contract. The materials also focus on the problems of contract performance, including changes; delays and suspensions of work; contract termination either for contractor default or for government convenience; and equitable adjustments and allowable costs. There is emphasis throughout the course on the practical as well as the substantive problems, including the dispute procedures before the boards of contract appeals and appeals to the U.S. Court of Federal Claims, as statutorily mandated by the Contract Disputes Act of 1978; extraordinary rights and remedies, including recovery for defective pricing and fraud; and bid protest proceedings before the agencies, Government Accountability Office (GAO), and the U.S. Court of Federal Claims. The course also includes a discussion of the changes to the government contracting process, to allow for "commercial item" contracting, as a result of the Federal Acquisition Streamlining Act of 1994 and the Federal Acquisition Reform Act of 1996.

Please see the Health Justice Alliance Law Clinic website for more detailed information about the program.

For registration-specific supplemental materials, please see the Health Justice Alliance Law Clinic PDF.

For information about clinic registration generally, please see the Clinic Registration Handbook.

Higher education plays a singular role in our society. Colleges and universities are complex organizations and institutions with unique missions to discover, create and transmit knowledge, and to further social mobility. Higher education intersects with the law in a myriad of ways. This course examines the legal issues that shape higher education, particularly in the United States. The course covers the distinctions between public and private colleges and universities, religion and higher education, accessibility to and financing of higher education, academic freedom, shared governance, admissions, free expression, privacy and freedom of association, campus safety with a particular focus on sexual assault, and issues of race, disability, gender and sexual orientation. We will consider student rights and responsibilities, faculty issues concerning research ethics and the classroom, and the roles of presidents, governing boards, and university general counsels. Materials include relevant statutes and cases as well as readings from related fields. Our goal throughout the course will be to understand the breadth of issues faced by higher education in the United States in pursuing its mission, and the ways in which legal rules and norms relate to these issues.

This course will examine the U.S. immigration system through legal and policy perspectives. We will explore the source, scope and constitutional limits of congressional power to regulate immigration; the executive branch implementation of immigration legislation, particularly procedures for entry and removal, and the extent of, as well as constitutional constraints on, Presidential power; and the administrative and judicial review of executive branch action. Close attention will be paid to how membership laws and policies are established and implemented: What laws and policies govern U.S. citizenship? Who is eligible to become a legal immigrant? How are annual admissions numbers set? How and why are family and employment priorities created? How does the U.S. protect refugees? With respect to the arrival of unaccompanied children from abroad, we will consider the laws and policies that govern how the U.S. government treats them. Unauthorized migration will also be examined to understand why some migrants do not use the legal route into the U.S. and what laws and policies the U.S. has in place to deter such unlawful movements at the border and control unlawful presence in the interior. We will analyze the impact of the major 1996 immigration control legislation and its implementation, with particular attention to detention and removal. We will closely examine the role of the Justice Department’s Immigration Courts, with special attention to access to justice issues. We will explore the extraordinary need for, and challenges of, immigration law reform, as well as the particular situation of the Dreamers, children without lawful immigration status brought to and raised in the United States by their parents. Finally, we will assess the various changes implemented by the Trump and Biden Administrations, particularly in connection with the treatment of asylum seekers at the U.S.-Mexico border, the resettlement of refugees from abroad, and the removal of unauthorized immigrants.

This class will cover the constitutional and political framework for the U.S. Immigration System, enforcement and adjudication agencies, immigrants, nonimmigrants, removals and deportations, detention and bond, immigration hearings, judicial review, grounds for removal and inadmissibility, “crimmigration,” immigration reform, “Chevron” deference, refugee and asylum status and other international protections. It will also include reading and analyzing major immigration cases like INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (well-founded fear) and Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996) (female genital mutilation).

Who can enter the United States as a visitor or an immigrant? Who will get asylum? Who will wait in a detention center? And when, according to immigration laws passed by Congress, over ten million migrants in the United States are unauthorized, who will actually be deported? American immigration law is the product of presidential policy, Congressional command, and various discretionary decisions made by executive officials including immigration judges and Border Patrol officers. This course will examine the relationships between these various decision-makers. We draw on examples from immigration policy throughout the years--from the Chinese Exclusion Act to former president Trump’s travel ban--to illustrate these issues. We also use case law from the Supreme Court, the Board of Immigration Appeals, and various federal circuits to understand how courts have evaluated these issues. Finally, secondary sources from historians and legal scholars help illustrate how various players the immigration system interact in practice. We will use this information to assess critiques of the immigration system and proposals for reform. These readings also introduce students to immigration related legal concepts including asylum, mandatory detention, and the use of the categorical approach to determining the significance of a migrant’s criminal history. Students will develop a familiarity with immigration practice as well as a more nuanced understanding of the legal and political issues that vex immigration law scholars.

Learning Objectives:

• Develop a better understanding of the historic development of immigration law and policy.

• Become familiar with legal concepts concerning asylum, immigration detention, and executive power over admissions and removal.

• Understand different policy-making options and the tension between discretionary decision-making and compulsory enforcement.

• Appreciate the choices and limitations facing various decision-makers in the immigration context, as well as the experience of migrants and asylum seekers in the immigration system.

• Assess separation of powers concerns using examples from the immigration field.

• Make a nuanced assessment of popular news stories and debates about immigration law, paying special attention to the role of various decision-makers at play.

• Summarize and critically analyze various proposals for reform of the immigration adjudications, deportation proceedings, and the asylum process.

• Master a substantive legal issue related immigration by producing a paper and/or presentation on a legal debate in the area. Develop writing and presentation skills by participating in this exercise.

• Practice critical reading of law review articles and cases.

This course provides an introduction to information privacy law both on the books and on the ground. Topics covered include the common law, constitutional, and statutory foundations of U.S. information privacy law; philosophical bases for privacy protection; first amendment constraints on privacy law; information privacy compliance, enforcement, and regulatory practice; the European approach to privacy and data protection; privacy constraints on law enforcement activities; cybersecurity; and cross-border data flows. Special attention will be paid to issues raised by the information economy.

Learning goals for this course: Critical mastery of the existing doctrinal, statutory, regulatory, and policy landscapes and the complex interrelationships among them; critical mastery of the privacy compliance considerations that confront both private- and public-sector organizations; introduction to European information privacy and data protection law and the relationship between privacy and global information flows.

Everything we do, we do at least some aspect of it online. From commerce to speech, internet companies intermediate our daily activities. In the process, internet companies are changing how we live. Is the internet a free speech zone protected by the U.S. Constitution’s First Amendment, or does it heed hate speech or political speech regulations from abroad? Can copyright law survive the worldwide copying machine of the internet? Is privacy dead when corporations know where you are and what you are doing nearly 24/7? Focusing on U.S. case law and statutes, this course examines the evolving law regulating internet enterprises. 

This course provides an overview of the major constitutional cases over the last 200 years. A portion of the course focuses on how the Constitution affects the fundamental structure of American government. Particular attention will be paid to the critical balances of power between the Federal and state governments (federalism) and among the three branches of the Federal government. The rest of the course will focus on individual rights, with particular emphasis on individual rights in the areas of equal protection, and substantive due process.

Federal judges wield enormous power in our democracy, influencing nearly every aspect of American life.  Recent years have seen increasing numbers of decisions on some of the most salient issues of our time, including civil rights, abortion, guns, economic regulation, and religious liberty. As a result, the political parties, progressive and conservative organizations, and business groups, devote substantial resources and energy for control over the judicial selection process.  Debates over the confirmation of judicial nominees are often highly visible and contentious and are used as platforms to articulate views about what the law should be. Sometimes, the hearings serve to elevate issues such as sexual harassment and racial justice into the public domain for the nation to consider and debate.

This seminar will provide an overview of presidential nominations to the lower federal courts and Supreme Court since George Washington, with an emphasis on the years since the early 1980’s when the Reagan Administration dramatically altered the selection of judges.  It will compare and contrast the processes used by different presidents in picking judges, explore the role of outside groups and the parties, and examine the ways in which failed nominations set the stage for bitter partisanship. Reliance by the Biden Administration on demographic and experiential diversity will be highlighted as well as recent discussions related to structural reform of the Supreme Court. The seminar will conclude with an assessment of the impact that politicization of the federal judiciary has had on American life and society. During the semester, a number of outside speakers from the Senate, White House, and organizations will share their experiences and insights.

Learning Objectives:  Students will gain an understanding of the reasons why, and consequences of, increasing polarization of the process of selecting federal judges.  They will learn about the process used by past administrations, the changes that have occurred over the years, and the impact of those changes on the process. Students will also be exposed to the different eras in American politics as seen through public debates around judicial nominations.  They will have the opportunity to review and debate several aspects of the process as well as proposals to reform the Supreme Court.

This seminar will address the relationship between courts-martial and civilian judicial proceedings, focusing on the allocation of responsibilities in the military justice system to commanders, judges, and lawyers. Specific topics will include the contemporary debates regarding sexual misconduct and combat-related offenses. The assigned readings will utilize materials available on the internet, including judicial decisions, legislative and regulatory materials, and law review articles. The seminar paper will take the form of a draft judicial opinion based upon topics covered in the course. The seminar is designed for students interested in national security, judicial review, and the constitutional allocation of legislative, executive, and judicial powers.

Learning Objectives:

• Identify the key features of military legal practice, the distinctions between military and civilian jurisprudence, and the primary factors considered by Article III courts in reviewing cases arising in the military justice system.
• Assess the impact of congressional legislation and oversight, as well as the role of the President in the military justice system.
• Enhance research skills through analysis of briefs and source materials.
• Enhance writing skills by preparing a judicial opinion.

Please see the Juvenile Justice Clinic website for more detailed information about the program.

For registration-specific supplemental materials, please see the Juvenile Justice Clinic PDF.

For information about clinic registration generally, please see the Clinic Registration Handbook.

This course will explore the role and responsibilities of inspectors general and other government oversight entities in promoting accountability and effectiveness in government operations.  Students will first examine the history of inspectors general, their mission, their legal authorities, and their relationships with their agencies and other branches of government.  Students will also explore the role of other government oversight entities, such as the Office of Special Counsel, the Government Accountability Office, and congressional committees, in pursuing government accountability.  Students will examine the relationship between inspectors general and these other entities, and the challenges in providing independent oversight of government operations.  Students will hear from current and former inspectors general and leaders of oversight organizations, who will come to the second hour of the class to talk about the challenges they face, as well as the satisfaction and benefits of public service.

Three decades after the end of the Cold War, authoritarianism remains a major political force across the world.  This seminar considers the relationship between authoritarianism and law.  It mixes theoretical works with historical and contemporary case studies, drawing on insights from social science, political philosophy, and law.  The course will address: the roles of constitutions, courts, lawyers, and legal activists in authoritarian societies; the growing use of digital technologies by autocratic governments; authoritarianism’s challenges to American and international law; and the relationship between law and democratic erosion.  This course is intended to be inviting to all students, and does not assume any specific knowledge of foreign legal systems.   

The aim of this course is to introduce the students to the ways in which liberal constitutionalism deals with the fact of difference (religious, ethnic, or national). After general theoretical introduction to various issues (such as law, culture and difference, politics of recognition and politics of redistribution, the risks of politics of identity, the liberal and feminist critiques of multicultural politics, the analytical problem of group rights), the course will survey the ways that liberal democracies deal with the claims of several groups within society to be different. We will read cases and materials from the United States, Canada, France, Israel, India, and Germany.

In fieldwork practicum courses, students participate in weekly seminars and conduct related fieldwork at outside organizations. This fieldwork practicum course is designed to give students familiarity with the field of law and religion. Students will participate in a two hour/week seminar and undertake 10 hours/week of fieldwork with organizations that work on issues related to religious freedom.

SEMINAR: President Obama called religious freedom "central to the ability of peoples to live together." Professor Martha Nussbaum observes, "America now contains a religious diversity unparalleled in its history."

This seminar will examine society's ability to enable those with the deepest of differences to live in community peaceably. Substantively, it will promote an understanding of the law that governs the relationship between religion and government, defines protections for the free exercise of religion, and provides the framework for civic life among people of all religions and none. Although law and religion will be the uniting theme of our work, there is a broad range of modalities that we can pursue in this field—litigation in workplace disputes, amicus briefings for the Supreme Court, researching the effect of public policy initiatives—providing a myriad of opportunities to hone professional legal skills.

Seminar participants will gain doctrinal competency in current religious freedom law, engage in a principled examination of religious freedom as an essential Constitutional and basic international human right, and gain experience interacting on a “hot topic” issue in a professional manner by focusing on common ground and building principled consensus.

Interested students who have any questions or would like more information about the seminar or field placements should feel welcomed emailing Professor Inks directly at sci2@law.georgetown.edu.

FIELDWORK: Students will perform legal work under the supervision of an attorney mentor for 10 hours/week with organizations that focus on issues related to religious freedom. Some examples include: the ACLU, the ADL, DOJ, The Interfaith Alliance, Americans United for the Separation of Church and State, Congress, The Christian Legal Society, The Native American Rights Fund, and Alliance Defending Freedom.

This course will examine the way in which U.S. law--principally the Establishment and Free Exercise Clauses of the First Amendment, as well as the Religious Freedom Restoration Act (RFRA)--treats religious belief, religious exercise, and religious institutions.  Topics will include:  defining "religion" for purposes of constitutional law; governmental burdens on, and discrimination against, religious exercise; state aid for religious activities and to religious organizations, including pursuant to school voucher and "charitable choice" programs; the constitutionality of statutory exemptions for religiously motivated conduct, including in the context of laws prohibiting discrimination on the basis of sexual orientation; the role of religion in public education and in the public square; and religious institutions' claims to legal autonomy.

This course will focus on theories of legal interpretation. Our primary focus will be on theories concerning the interpretation of statutes (e.g. textualism, purposivism) and the Constitution (e.g. originalism, living constitutionalism). But we will also consider perspectives on contract interpretation and treaty interpretation.

Learning Objectives: Students should become familiar with historical and modern debates about legal interpretation. This is a highly interdisciplinary course, introducing students to concepts and skill from analytic philosophy, linguistics, and empirical social science (e.g. competence in reading and evaluating empirical work related to legal interpretation). The course will also raise questions, particularly in our discussion of constitutional interpretation, about law’s claim to neutrality and its impact on different populations, especially as concerns race, gender, native language, and class.

In the first-year curriculum, you are taught to “think like a lawyer.” Because of the predominance of common-law subjects in your first year, this means you are generally taught to think like a “common-law lawyer.” Moreover, you are taught to think this way at the same time that you are also trying to learn the doctrine in those particular areas.

In upper-level courses, however, you will likely turn from common law to law based in statutes and regulations. From tax law to the criminal code, virtually all of modern American law is based on materials produced by legislatures and agencies. Reading and interpreting these materials also requires you to “think like a lawyer,” but like a different lawyer—a “statutory lawyer.”

This course is about the method of statutory interpretation generally. You will not learn the doctrine of any specific type of law in this class. You will learn the process of how to approach a piece of statutory text, how to diagnose the interpretive problem in the text, and how to answer that problem. You will practice the observant reading of text; you will get a framework for breaking down and thinking about a legal question in any statutory case; and you will practice deploying interpretive tools to answer a question in the way that best “zealously advocates” for your client. This course will prepare you for summer legal work, as well as for upper-level courses that rely extensively on statutory law (such as tax, securities, environmental law, labor law, health law, copyright law, etc.)

The course has three overall goals:

1) To provide you with an understanding of the relationships among legislatures, courts, and agencies. The course will include some basic information on how legislation and regulations get created and on the ways in which power is shared in the “making of law.”

2) To teach you the full toolkit of statutory interpretation so that you can diagnose any interpretation question and bring the right tools to bear on answering that question. This toolkit includes elements of the plain text, canons of interpretation, analysis of intent and purpose, and deference to agencies. By unpacking and analyzing these tools used by courts in various decisions, you will learn how to wield them yourself in order to reach different results.

3) To expose you to the theoretical debates around statutory interpretation. The tools that a judge chooses to use often depend on the judge’s theoretical position on statutory interpretation. Starting with materials that will frame the theoretical debate early in the semester, you will return periodically to questions about theory as you become more proficient in the toolkit.

Much of the “law” that lawyers work with is statutory.  This course will examine both how legislatures go about doing their work (that is, legislative process) and how courts and others utilize legislative output (that is, statutory interpretation).  We will begin with legislative process, focusing both on how laws are enacted and on the rules structuring legislative debate and behavior, including campaign finance regulation, lobbying regulation, the conduct of legislative oversight, and issues of “due process of lawmaking.”  We will then devote substantial attention to theoretical and practical issues in statutory interpretation, including theories of interpretation generally, the canons of construction, and the use of legislative history.

Lawyers spend a lot of their time analyzing – and sometimes drafting -- statutes. In this class, we will focus on the actual process of how a bill becomes a law (e.g., legislative process) but also how those laws are reviewed by courts and other actors (e.g., statutory interpretation). Starting with legislative process, we will take a deep dive into how legislatures go about their work, including the procedural rules that govern debate, with an eye to how laws are enacted and the rules structuring legislative debate and conduct.  In addition, the course will examine campaign finance and lobbying rules as well as the “due process of lawmaking.” Later in the course, we will turn to both theory and practice in statutory interpretation, including theories of interpretation generally, canons of construction, and the debate over legislative history. I plan to interweave some of my empirical observations from a career on Capitol Hill, on campaigns, as a lobbyist, and commentator on politics and policy.

This course is foundational to almost every upper-level class—from tax to securities to environmental law.   Not only will you learn about the basic institutions of our government, but you will learn a very important skill.   Reading statutes is the lifeblood of every American lawyer’s living—for a criminal lawyer, a bankruptcy lawyer, a public interest lawyer or an appellate lawyer, any lawyer.  It is little known, but true, that the Supreme Court’s docket is full of cases about statutes and regulations, and these far, far outnumber constitutional cases.

Most of your law school career, up until now, has been spent learning how to read cases to find the “common law” rule.  This tends to focus you on courts.   But democracy is made up of two other important institutions that are the primary lawmakers:  Congress and the President.   This course focuses you on those entities as authors of statutes and regulations.   We will learn key ways in which courts are different from the elected branches.   And we will also learn an important skill every lawyer needs:  reading statutes.  Shifting from cases to statutes is not as easy as it looks, but it is essential to any practicing lawyer.

Today, statutes enacted by legislatures form an important part of nearly every area of law—from health law, to consumer law, to tax law, to criminal law—and much legal work involves closely reading and interpreting statutes. This course provides an introduction to the production and interpretation of statutes, with the overarching goal of improving students’ ability to work with statutes in law school and their careers. 

The course introduces the federal legislative process, the administrative state, and historical developments in American interpretive theory and practice. It also devotes significant attention to current developments in statutory interpretation—including the new textualism, originalism in statutory interpretation, the uses of linguistics in legal interpretation, and the major questions doctrine—and we will study several Supreme Court cases from 2017-2023. The course’s main text is Manning & Stephenson eds., Legislation and Regulation, 4th Edition (Foundation Press 2021). Supplementary materials will be uploaded to Canvas.

This colloquium provides an exciting opportunity for students to engage with the theoretical debates and methodology underlying the judicial interpretation of statutes.  As students in the survey Legislation course learn, the tools that a judge chooses to use when construing a statute often depend on the judge’s theoretical position on statutory interpretation.  In this colloquium, we will explore in depth different scholarly takes on how courts should interpret statutes, including but not limited to critiques of the U.S. Supreme Court's current approach to statutory interpretation and suggestions for how that approach could be improved.

Alongside newer demands to end our over-reliance on policing to keep us safe, are renewed calls for more effective mechanisms for police accountability.  This course will focus on the nuts-and-bolts of police accountability, from exploring the efficacy and costs of the exclusionary rule, prosecutions of individual police officers, and Section 1983 cases, to USDOJ’s reinvigorated pattern-or-practice investigations, civilian oversight, and “front-end” oversight in the form of state and federal regulation of police. Along the way we will consider subsidiary topics like qualified immunity, the Monell doctrine, and even the role of insurance companies in holding police accountable. We will consider how new or pending legislation at the federal, state, and local levels can be expected to improve (or undermine) police accountability, and discuss how this all fits in with efforts to reform, remake, or abolish policing.

Students may take this course to fulfill Georgetown’s Upperclass Legal Writing Requirement. If you take this class to fulfill your Writing Requirement, you should be prepared to devote a considerable amount of time in the course developing a paper proposal about a particular aspect or type of police accountability; researching your idea in depth; and both drafting and revising a substantial paper of at least six thousand words (exclusive of footnotes) that meets the elements of the Writing Requirement as set out in the Georgetown Law Student Handbook of Academic Policies.

Students in the Policy Clinic provide services to make democracy work several policy themes. Recent projects include:

• Community equity – Combat gentrification and displacement in low-income communities of color, develop a community support fund, develop a community resilience hub.
• Health and food – Organize a consortium to improve working conditions in university food supply chains, expand access to oral health services, reinvent a better food chain for institutions (universities, hospitals, schools, and shelters), analyze social determinants of health (housing, food security, etc.) for state health officials.
• Labor and human rights – Organize a consortium to improve working conditions in university food supply chains (same as health above), protect worker rights in global supply chains for the FIFA World Cup and other mega-sporting events.
• Trade and climate – Develop mutually supporting climate and trade policies, develop options for international cooperation on climate policies through “climate clubs,” recommend strategies to decarbonize steel production without violating WTO rules, and identify strategies for reducing greenhouse gas emissions while preserving manufacturing jobs.

Please see the Policy Clinic website for more detailed information about the program.

For registration-specific supplemental materials, please see the Policy Clinic PDF.

For information about clinic registration generally, please see the Clinic Registration Handbook.

Learning outcomes for this clinic: Students are supervised, evaluated and graded on three skill sets, each of which has specific evaluation criteria in the Policy Clinic Operations Guide.

1. Management and professionalism – includes “managing up” with supervision meetings, initiating self-evaluation, managing effort and deadlines, collaborating, and expectations in a professional culture.
2. Analysis and strategy – covers legal, policy and strategic analysis.  It includes identifying issues that require analysis, learning the context efficiently, using diverse sources to avoid bias, explaining analytic methods, using a logical framework, and drawing conclusions that meet client needs.
3. Communication, writing and speaking – includes organizing documents and presentations, meeting audience needs for context and decision-making, relating analysis through stories and examples, presenting visual information, and editing for plain language, clarity, and English style.

Many of the most important and intense political disputes in American history have come before the federal courts. From the controversy about the midnight judges reflected in Marbury v. Madison, to the conflict about slavery at the core of Dred Scott, to the rise of interest group litigation by civil rights, religious, environmental, and other organizations, those opposed to prevailing laws and policies have taken their grievances to court. In recent years, a new breed of political litigation has proliferated. Increasingly, the losers in legislative and electoral battles have leapt immediately into the judicial arena, challenging the constitutionality of the laws enacted over their objection or the way elections are run. Increasingly, politicians and the entities they control have deployed litigation as another tool in the partisan arsenal. And increasingly, federal courts have become the arbiters of political disputes between the other two branches of the Federal Government, and between the Federal Government and the States, and between political candidates.

This course will use the legal challenges to the Affordable Care Act as an initial case study of how political disputes play out in litigation, from the trial courts to the Supreme Court. We will follow the pattern of political litigation into the Trump and Biden Administrations, and assess the lessons from the partisan shift in the litigation. We will consider how and why partisan disputes generate litigation and discuss the issues this litigation raises regarding the appropriate role of courts in our democratic system. In large part, the perspective will be practical, as we explore the legal, strategic, and tactical choices advocates make in bringing high profile political cases, in framing the legal issues, in harnessing the rules of procedure, and in managing the political features of the case -- both offensively and defensively, and both inside and outside the courtroom. We will discuss the hurdles litigants face in seeking to strike down federal laws, the particular challenges of representing the U.S. Government in defending those laws, and the conflicting pressures that bedevil advocates on both sides of the cases. In some of our sessions, students may be asked to strategize or to argue from the perspective of the plaintiffs or the defendant in the cases.

As a society, we strongly believe in certain myths about the adequacy and fairness of our legal system.  Among those beliefs are that our laws and policies make the American dream available to everyone and provide an adequate safety net to prevent people from falling into the type of destitution we associate with less developed nations.  We take pride in having a legal system that we believe is fair and treats people equally, regardless of income, race, and other characteristics.   

The reality is that our legal system makes promises it does not keep. We do not have the laws and policies we need to protect the poor and other vulnerable groups, and the laws and policies we do have are often inadequate at best and pernicious at worst.  The result is a system where the poor and other subordinated groups are too often left unprotected and routinely feel victimized by the government agencies charged with assisting them.  

A key goal of this course is for students to examine poverty-related laws, policies, and programs and understand how and why our system so routinely fails to protect the most vulnerable members of our society.  As part of this analysis, students will think critically about how and why those laws, policies, and programs have such detrimental impacts on vulnerable groups including people of color, women, children, individuals with disabilities, immigrants, and others. The class will explore the history of poverty policy and the evolution of safety net programs, both of which are inextricably intertwined with racism, gender discrimination, and bias toward certain groups.  It will also examine key Supreme Court cases that shaped poverty law and policy, looking in particular at how the evolution of jurisprudence in the 1960s and 1970s dashed the hopes of anti-poverty advocates that the Court would establish the legal foundation required to truly protect the indigent.  Throughout the course, we will also discuss the politics, the key leaders and thinkers, the noteworthy state and local innovations, and the data with an eye to understanding why our legal system repeatedly fails to live up to its promise, what innovations have been successful, and where we go from here.    

FIELDWORK: In the four, five, or six-credit, mandatory pass-fail, fieldwork portion of the practicum, students will work with a public interest law organization that deals with issues connected to poverty. Students may work for either 10 or 15 hours in both the fall and spring, 10 hours in the fall and 15 hours in the spring or vice versa, or 30 hours/week in one semester only. If students complete their fieldwork hours for this practicum entirely in one semester, they may be eligible to enroll in a clinic for the other semester.  The host organization may work from either a national or a local perspective on issues connected to poverty. Placements might involve a focus on poverty per se or “poverty and…” e.g., civil rights, women, education, housing, health, juvenile and criminal justice, child welfare or immigration. Depending on the organization, activities at placements could include assisting lawyers with litigation and/or policy advocacy, including governments on all levels and in either the executive branch or the legislative. Students may propose and arrange their own placements; these must be approved by Professor Edelman. Alternatively, Professor Edelman is available to assist in finding and setting up the placements. Depending on the number of hours worked, students will earn four, five, or six pass/fail credits for the fieldwork; one grade will be provided at the end of the year.

This course focuses on the back end of the criminal justice system. In this class, we will be focusing on the law and policy of incarceration. We will study why the United States is so punitive, how government officials manage prisons, and what protections are in place to prevent harm to prisoners while incarcerated. We will also study whether our current penal system is successful in reducing the recidivism rate of those coming out of prison. These topics are particularly urgent given that the United States leads the world in the rate it imprisons its citizens. Topics to be covered include: the history of prisoners’ rights litigation; the scope of prisoners’ constitutional rights; inmate access to the courts; First Amendment protections for prisoners; the prison disciplinary process; conditions of confinement; medical care; the problems of prison rape and overcrowding. There will also be a focus on legal practice—how lawyers litigate prisoners’ rights suits. There will be a take-home final examination.

With such watershed events in the civil rights movement as Brown v. Board of Education (1954) and the civil rights acts of the 1960s, the eradication of racial subordination in America seemed an achievable goal. Yet, in America today, racial minorities continue to experience social and economic disadvantages, and race relations remain strained in many respects. Whether law has aided or impeded the cause of civil rights in the past and the extent to which law can help to resolve racial issues in the present and future are questions of considerable controversy. This course will examine the response of law to racial issues in a variety of legal contexts. Topics will likely include the meaning of race and racial discrimination, intimate relationships, child placement, employment, education and integration, policing and criminal punishment, free expression, and political participation. Classes will center on candid discussion and participatory exercises about the issues raised by the assigned material. The course will cover most of the seminal "race" cases decided by the U.S. Supreme Court.

Emblematic of the ongoing tensions between America's expansive democratic promises and its enduring racial realities, Washington often has served as a national battleground for contentious issues, including slavery, segregation, civil rights, the drug war, and gentrification. But D.C. is more than just a seat of government. The city has a rich history of local activism as Washingtonians of all races have struggled to make their voices heard in an undemocratic city where residents lack full political rights.

Tracing D.C.'s massive transformations—from a sparsely inhabited plantation society into a diverse metropolis, from a center of the slave trade to the nation's first black-majority city, from "Chocolate City" to "Latte City"—the course offers students an opportunity to experience the city in which they have decided to attend law school at a deep and meaningful level. The historical narrative explored during the course is peppered with unforgettable characters, a history of deep racial division, but also hope, resilience, and interracial cooperation.

Students will develop a critical legal framework for understanding the role of law in shaping the racialized democracy of America. They will do so by engaging law cases touching on  segregation, disenfranchisement, urban renewal, and the drug war—all ways in which the law was weaponized to disproportionately impact Black people in Washington, D.C. Students will write a final paper of at least 4,000 words on a topic related to the reading, themes, and learning objectives of the class.

Learning Objectives:

• Gain familiarity with the geography, history, and current issues defining city politics, economy, and culture
• Acquire analytical tools to frame and understand the dynamics of race, politics, and power in the nation’s capital

Race and Democracy: Voting Rights in America assesses the impact of white supremacy ideology on American Democracy. The course uses the struggle for Black voting rights as the primary framework for exploring this relationship.

Over the course of the term, students 1) develop a working knowledge of how the ideology of white supremacy has impacted voter registration, participation, and representation 2) acquire critical tools to identify, analyze, and dismantle narratives, policies, and practices rooted in the history of white supremacy and 3) develop an appreciation for the role social movements have played in both reenforcing and disrupting the structural and systemic barriers to a multiracial and multicultural democracy.

Course Organization and Overview

This course explores the law’s response to the problem of economic inequality. By 2015, the political and economic conversations have recognized the stark and unacceptable wealth and economic differences that underlie growing political and social instability. We will approach the subject from an interdisciplinary perspective that includes sociology, psychology, history and cultural studies. The course offers an introduction to the work of classic economic thinkers such as Adam Smith, and contemporary economists and legal scholars including Milton Friedman, Gary Becker, Richard Posner and Ian Ayres. The primary focus of the course however will be an exploration of the limits and failures of conventional rational choice approaches to explaining the questions arising from economic inequality for members of groups who have experienced pervasive race, gender and other forms of cultural subordination.

We will explore the conceptual framework of marketplace distribution of commodities, the cultural determinants of market value, and the claims of subordinated communities for economic equality. We will develop an understanding of the silence of the Constitution on questions of economic inequality. We will draw upon the insights of a wide range of social science research to map the consequences of the lack of a coherent legal framework to govern questions of distributive justice.

This course does not require a technical background in quantitative economics. The primary material will be drawn from sociology, history, psychology, narrative economics, and critical race theory.

Theme

The case study for this seminar this year will be the economic and social conditions of the city of Baltimore, Maryland. We will explore the impact of the cumulative economic and social deficits of that city. We will take advantage of our course discussion and research to investigate this dramatic example of economic and social inequality in America. This recent example of the explosive combination of police abuse and the underlying condition of wealth and income inequality is just the most recent example of long term neglect. We will try to figure out what factors surround the anger at the criminal justice process of stop and frisk and the implementation of the “broken windows theory” of police enforcement practices that have created police estrangement from many low wealth communities of color. The Freddy Grey Riots and the long-term political, economic and sociological dynamics of Baltimore provide an important to delve more deeply into the connection between police practices and the economic death of cities such as Baltimore.

We will ask are there important counter examples to Baltimore and Ferguson.

During this seminar our class will read six books about policing in the United States.  We will spend two weeks on each book.  The first week we will discuss the book with each other. The second week the author will visit the class to discuss the book. Some author visits will be in person; others will visit via video conference.

Through studying these books and speaking with their authors we will learn how theories of policing have changed over time; how policing is influenced by, and in turn influences, law, politics and culture; the role that factors like race, gender, sexual-orientation, disability, indigeneity, age and class, have played in shaping how policing happens; the connection of policing to mass incarceration and its attendant  harms; and we will probe some of the biggest challenges facing policing currently.

The six books we will read include:

• Unreasonable: Black Lives, Police Power, and the Fourth Amendment, by Devon Carbado
• We Own This city: A True Story of Crime, Cops, and Corruption, by Justin Fenton
• Becoming Abolitionists: Police, Protests, and the Pursuit of Freedom, by Derecka Purnell
• Shielded: How the Police Became Untouchable, by Joanna Schwartz
• Policing the Open Road: How Cars Transformed American Freedom, by Sarah A. Seo
• Punished: Policing the Lives of Black and Latino Boys, Victor M. Rios

Reflection and Summaries: All students are required to submit a 750 word reflection paper on each book after we have read the book and before we have discussed it with the author. Reflection papers will be graded and late papers will be penalized. In addition, all students will submit at least two discussion questions on Canvas before the first week’s discussion of each book. Discussion questions will be graded pass/fail. 

Grading:

Your grade for the class will be based upon: 1) attendance and the quality of your participation; 2) reflection papers for each book; and 3) discussion questions for each book.

Crisis often brings change. The stock market crash of 1929 prompted Congressional hearings that eventually produced revolutionary legislation: the Securities Act of 1933, which regulated U.S. securities offerings; and the Securities Exchange Act of 1934, which regulated securities markets and established the SEC. Like the financial meltdown 80 years ago, the recent financial crisis has sparked a critique of the U.S. financial regulatory system. Having witnessed a Ponzi scheme of unprecedented magnitude and the near decimation of venerable Wall Street firms, scholars, lawmakers, regulators, and investors have questioned the appropriateness of our current regulatory framework and the role of the SEC.

The first part of the course will focus on understanding the events that prompted the 1933 Act, the 1934 Act, the Investment Company of 1940, the Investment Advisers Act of 1940, and the establishment and growth of the SEC. Perhaps not surprisingly, many of those same policy considerations are driving current discussions within the Commission, in Congress, and in the Administration. The second part of the course will examine particular aspects of securities regulation from both substantive and organizational viewpoints, including the regulation of public companies, investment companies, and investment advisors, with an emphasis on the inner workings of the SEC. We will study the current functions played by the Commission’s various divisions and offices as we explore the pros and cons of the existing regulatory architecture and the initiatives under consideration at the SEC and within Congress. The final segment of the course will focus on the future of the SEC and financial regulation in the U.S. We will review reform proposals and other ideas for reorganizing the system. We will have speakers including present and former senior officials from the SEC and the financial industry.

This course is open to both JD and LLM students and is recommended for students who wish to gain a deeper understanding of the SEC or may be considering an externship with the Commission.

The course will cover segregation in public accommodations, residences and education, historically and currently. Although the workforce, marriage, and access to citizenship and voting were segregated for centuries in the U.S., employment discrimination, anti-miscegenation, immigration and election law are beyond the scope of this course. Students will learn that the US is racially segregated in housing and education and that segregation is discriminatory. They will grapple with the fundamental question of why segregation exists and the role of law in creating and responding to segregation. Students will gain a historical perspective on the ideology of white supremacy that animates segregation. They will learn that the chief consequence of segregation is inequality, for everyone, people of color and whites. Among those consequences are mass incarceration, health and wealth disparities, wasted human capital due to lack of opportunity, racial hostility, militarized policing in certain neighborhoods (Ferguson & all its antecedents and successors), environmental degradation, and suburban sprawl. Students will also learn strategies for dismantling segregation and, hopefully, help develop innovative solutions in their research papers.

This seminar addresses advanced issues raised by the interaction of the three branches of the federal government. In particular, the seminar will build on the separation of powers issues covered in the Constitutional Law I course by addressing some of those issues in greater depth and dealing with other separation of powers issues that tend to receive less attention because they do not result in justiciable controversies. Specific areas of study will include the political question doctrine, the invocation of executive privilege in Congress and the courts, executive immunity from the criminal and civil process, congressional subpoena power over executive branch documents, the effect of impeachment on the separation of powers, the issues raised by the executive branch's refusal to defend the constitutionality of acts of Congress, and judicial review of executive branch efforts to address foreign terrorism.

Students will be expected to prepare an outline, draft, and final version of a 25-page paper on a topic covered in the seminar and chosen in consultation with the instructor. Participation in class discussions will factor into final grades. Photocopied sets of reading materials for the seminar will include cases, statutes, legislative hearings, interbranch correspondence and other materials.

The nature and consequences of our constitutional separation of powers are topics of substantial debate, with significant implications for our system of government.  This seminar examines recent scholarly discussions of various aspects of the separation of powers.  Topics will include deep dives into each of the three branches, discussions of the interactions between those branches and other institutions, and selected thematic topics.

This fieldwork practicum course focuses on issues of sexual orientation, gender identity, gender expression and sex characteristics from an international and national human rights law perspective. The course will provide an overview of the main human rights issues in these fields, while affording students an opportunity to work with organizations that are addressing human rights violations of people based on sexuality, gender and sex characteristics, in various ways.

As such, students participate in a two-hour weekly seminar and work for 10 hours/week for at least 11 weeks during the semester at an outside organization.

Background: Every day, lesbian, gay, bisexual, transgender and queer (LGBTQI) people are victims of multiple human rights violations, which are directly linked to the lack of acceptance (by society and the State) of their non-normative sexualities, gender identities or gender expressions. Some of the most common human rights violations of LGBTQI people include killings, torture, ill-treatment, “corrective” or punishing rape, "conversion therapy," discrimination in schools, in the workplace and in accessing health services, among many others. Intersex persons face human rights violations because of the general lack of acceptance of their bodies that differ from the socially accepted standards of “female” and “male” bodies. Because of their sex characteristics, intersex people often face human rights violations including irreversible non-consented and non-medically necessary genital surgery at the early stages of infancy and throughout childhood, as well as forced sterilization, among others.

SEMINAR: The course will take a close look at some of the human rights violations faced by lesbian, gay, bisexual, trans, queer and intersex (LGBTQI) people, or other people perceived as such, as well as the corresponding States’ obligations under international human rights law. The students will analyze landmark and recent decisions emerging from regional and international human rights monitoring bodies, which have developed standards around these categories. This analysis will provide a solid legal foundation for students to develop their projects for external partners.

FIELDWORK: Students will be placed with organizations working in the area of sexual and reproductive rights. Most likely, the work will be conducted remotely, as several of these organizations are not based in the Washington D.C. area. The work conducted for this portion of the course will be supervised by the external organization.

In the past, the work with external partners specific human rights issues faced by LGBTQI people, included collaborating on several policy and legal projects, including preparing shadow reports to present before international human rights bodies, conducting analysis of legislation or a related case, among others. External partners vary every year, and include international and domestic leading human rights organizations working on the promotion and protection of the rights of LGBTQI people at the international and domestic level.

States are the “laboratories of democracy” Supreme Court Justice Louis Brandeis said, and contemporary theories of localism argue that policy change can be driven by innovation at the municipal level.  Each state has its own Constitution, its own court system, and its own legislative process. States and local governments enjoy substantial law-making and regulatory authority; bear significant responsibility for the financing and provision of most domestic public goods and services; and are key sites for political participation.  This course surveys the legal environment, political values and policy debates that shape state and local governments in the United States. After completing the course, students will be able to identify many of the key doctrinal principals and analyze how they apply to the socio-economic context of federalism today. Some of the topics for discussion include (1) the allocation of power between states and their local governments and the role of state and local governments in the federal system; (2) distinctions between state constitutions and the US Constitution in form and powers including elected judiciaries, legislative procedure, line item vetoes, direct democracy and fundamental rights; (3) the Tenth Amendment, cooperative and coercive federalism, and the role of states as a counterweight to federal power; (4) the pivotal role of local government in the regulation of private land use; (5) state and local sources of revenue, balanced budget provisions, and limits on borrowing; (6) recent trends in blight, suburbanization, sprawl and redevelopment; (7) federal pre-emption of state authorities, and the conflict between plenary state power and local autonomy; and (8) inter-local cooperation and regional governments. The course will examine the role of governors and mayors as policymakers, and how horizontal federalism serves as a driver of national policy in areas including civil rights, immigration and climate change. The course also will challenge students to explore the tension between the historical movement toward greater local home rule and the modern trend to regional solutions. Finally, the course will enable students to exercise and develop skills of particular relevance to state and local decision-making: statutory interpretation, working effectively in groups, and understanding the dynamics and procedural context of state and local government proceedings.

Learning Objectives:

This course aspires to empower its students to:

• Recognize and apply several core legal doctrines that enable and constrain state governments and various local government entities.
• Describe how several prominent threads of American political theory have guided the historical development of state and local government law.
• Apply several constitutional principles and legal standards that regulate state and local government
• Explain the predominant funding mechanisms for state and local governments, and analyze how state and local policies can affect the viability of local government.
• Identify several state and federal policies that can impair the sustainability of local government; and federal policies that constrain the autonomy of states in performing their core functions.
• Develop and deliver principled arguments about how socio-economic policy issues relate to legal doctrine, intra-regional wealth, housing and land use policy and alternatives to local government.

description forthcoming. 

This seminar will introduce students to the deeper theoretical questions and debates surrounding statutory interpretation:  How should courts analyze statutory text?  What interpretive tools should judges use to determine statutory meaning?  Should those tools change when the text is vague or ambiguous?  What role, if any, should legislative process materials or realities play in the interpretation of statutes?  What is textualism and how has it changed over time?  What are the most salient interpretive trends on the modern Supreme Court?

Students taking the two-unit version of the class will be graded on seven short reaction papers.  Students taking the three-credit version must provide three reaction papers and satisfy the Law Center’s writing requirement.  Given the theoretical nature of the topic, law review students are especially encouraged.  

Learning Objectives:  By the end of the semester, students in the course should understand and be able to evaluate the advantages and disadvantages of different interpretive methodologies and tools, such as corpus linguistics, legislative history, semantic canons, etc.  They should also be able to describe and critique the U.S. Supreme Court’s current interpretive methodology.  Last, students should have a strong understanding of how to use the different interpretive tools and canons to argue in favor of or against a particular statutory reading.

In a project-based practicum course, students participate in a weekly seminar and work on a project under the supervision of their professor. This project-based practicum course will operate in conjunction with Georgetown Law’s Supreme Court Institute (SCI), which provides moot courts to Supreme Court advocates in virtually every case the Court hears each Term. Each moot court panel is composed of five “Justices,” professors or practitioners with experience in Supreme Court and appellate advocacy. This practicum will enable eight J.D. students to function as “law clerks” who will help prepare “Justices” to serve on SCI moot court panels. Students will participate in a two hour/week seminar and carry out five hours/week of project work under the direction of the course professor.

SEMINAR: The seminar component of the practicum will explore the role and function of law clerks; the mechanics of writing a useful bench memo and draft opinion; and ethical dimensions of judicial clerkships, including confidentiality and influence. Seminar sessions will also feature guest speakers, including appellate judges and former judicial law clerks.

PROJECT WORK: Each student will be assigned a case scheduled for argument in the February or March sitting, for which he or she will prepare a “bench memorandum.” Prior to the moot court, the student will submit the memorandum to the student's assigned moot “Justice” – a Georgetown Law professor or local practitioner who has volunteered to serve on the moot panel – and will meet with the Justice for a “case conference” to discuss the case in preparation for the moot. After attending the moot court, the student will attend the oral argument, read the argument transcript, or listen to the audio recording, and write a postmortem review describing the ways in which the moot resembled and differed from the argument.

Learning Objectives:

Writing, legal analysis, oral presentation, and other skills required to serve as an effective appellate law clerk; sensitivity to ethical issues such as confidentiality and influence on judicial decision-making.

This is a three credit course, and class meets for two hours and forty-five minutes each Thursday between 2:45 and 5:30 p.m. The course has five primary aspects:

• First, we will focus on the Supreme Court as an institution and how it differs from other American courts.  This will include readings and discussion of topics of longstanding importance, including the certiorari process, merits briefing, the role of amicus briefs, and the Solicitor General’s Office.
• Second, we will study in depth several cases being decided this Spring.
• Third, through two short (10-12 pages, double spaced) writing assignments and opportunities for extensive one-on-one discussion and comment, there will be a heavy emphasis on effective legal writing.
• Fourth, we will focus on effective oral advocacy, as practiced in the U.S. Supreme Court, including multiple opportunities to observe and participate in such practice arguments yourself.   We will have three extra two hour sessions on Friday afternoons during the term to observe actual moot courts in pending cases conducted by the Supreme Court Institute.
• Finally, we will also spend substantial portions of many classes considering materials addressing events which have occurred over the last half century relating to the Court’s role in constitutional interpretation, including how that role has changed greatly within the recent past as a result of changes in the make-up of the Court.

Because that Court itself plays a unique role in our legal system—to identify and resolve important disputed and recurring issues of federal law—the role of counsel in that Court is markedly different in many respects than it is in other appellate courts.  These differences are most obvious in the certiorari process, by which the Court identifies the cases it will hear on the merits.  That process demands that counsel on both sides persuade the Court that the case at hand either does or does not clearly present a legal issue of such moment and controversy as to demand the Court’s attention.  We will study the certiorari process, consider at some length the features of a case that enhance or detract from its chances for certiorari, and focus specifically on the tasks of drafting certiorari petitions, oppositions to certiorari, and reply briefs.

After the Court grants review of a case and it forward for decision on the merits, the selective nature of the Court’s jurisdiction, and its focus on resolving recurring legal issues rather than simply deciding cases, shapes the lawyer’s approach to the case in many important respects.  These peculiar aspects of advocacy in the Supreme Court will be discussed in several class sessions dealing with the tasks of drafting merits briefs, including briefs of petitioners, respondents and reply briefs.  We will also discuss the role of the amicus briefs and the ways in which they can contribute to the Court’s decision.

The unique nature of the Supreme Court’s decision making role is substantially reflected in the nature of oral advocacy as it is now practiced at the Court.  We will deal with the nature and challenges of oral argument in the Supreme Court beginning with the first class, and then again more intensely in a number of class sessions.  In addition to reading secondary sources addressing oral argument in the Court from a variety of perspectives, all students will participate as both advocates and judges in several moot courts of cases being decided by the Court this Spring.

We will also observe and discuss moot court arguments by advocates in upcoming cases in the Court. We will be attending three such arguments in sessions lasting two hours, each to be held on a Friday afternoon.  Given uncertainties in the moot court schedule prior to issuance of the Court’s monthly calendars, all enrolled students are required to keep their schedules clear for six dates listed in the syllabus, though we will only be using three of those dates for the two hour sessions. 

We will have as guest lecturers a number of experienced Supreme Court advocates.  These occasions will afford you a unique opportunity to talk first hand with Supreme Court experts about their roles and choices in handling historic and important Supreme Court cases.  I hope you will make the most of these opportunities.

Finally, beginning in 2023, as a result of major changes in the Court’s make-up and approach to its work, the curriculum now includes substantial attention to materials addressing these changes.  This study will take a predominantly historical approach, focusing on how developments that began in the 1970s and 1980s are directly related to changes that have occurred much more recently.  We will also focus substantial attention on more recent developments, including the dominant role today of original meaning jurisprudence, the increasing rate of reversals and the declining respect for precedent, some radical changes in broadly important legal rules that have stood for many decades, and the recent decline in reported public trust in the Court.  These issues will be approached primarily through  discussion in which active participation will be encouraged and to which all viewpoints will be welcomed and respected.  The professor, while actively inviting all viewpoints to the discussion, will not hide his own perspective, which is substantially critical of many recent developments.  

This seminar examines the Supreme Court as an institution with emphasis on the ways in which the institutional forms and structures of the Court influence the law the Court makes. Topics studied include: appointments to the Court; the Court's jurisdiction and procedures for determining cases it will adjudicate; the internal deliberative process employed by the Justices; and the role of the advocates before the Court. Cases currently pending in the Supreme Court will be studied for illustrative purposes.

This course explores high-profile cases on the Supreme Court’s current docket and approaches to advocacy before it.  The current term presents an array of significant issues that have the potential to transform myriad areas of law.  We will examine the briefing and arguments in selected cases and break down the different tools that sophisticated advocates use to persuade the Court.  In addition to learning about the substance of cutting-edge issues, students will learn about and practice oral and written appellate advocacy — skills that translate well to any type of practice.  Our analysis of specific cases also provides a springboard to consider broader questions about the Court’s role in our system of government and how the Court manages the content and pace of its own docket.  To gain additional perspectives on the Court and the appellate bar, we will hear from guests with varied experiences and roles in appellate advocacy.  Past guests have included federal appellate judges, government officials, Supreme Court reporters, and experienced practitioners.  The course is ideally suited to students interested in clerking after graduation or who seek to deepen their understanding of the Court’s role in our legal system.  

In this course students will learn about the role of dissenting opinions in U.S. appellate courts generally, and the United States Supreme Court in particular, with a special focus on the writings and jurisprudence of the late Justice Ruth Bader Ginsburg. We will also briefly discuss the role dissents play in select foreign jurisdictions. Students will be evaluated based on their active and informed class participation, including a mini-moot during the final class session, and on the quality of their final written product, which will be a 5-10 page paper.

This seminar explores the rise of the unique legal and constitutional condition of the nearly four million residents of Puerto Rico and other United States territories—approximately 98% of whom are racial or ethnic minorities and none of whom have voting representation in the federal government. The course will introduce students to contemporary legal debates and social movements in U.S. territories as well as the underappreciated ways in which overseas expansionism has shaped U.S. constitutional theory and doctrine over time.

The course begins with today’s emergent debate about whether and how to overturn the Insular Cases, a series of early-twentieth-century Supreme Court precedents holding that the Constitution does not fully apply to Puerto Rico and other “unincorporated” possessions on the theory that they were populated by “savages” and persons of “uncivilized race.”  After more than 120 years in a supposedly “temporary” limbo status, these communities’ uncertain relationship to the U.S. Constitution is an issue of surging importance in American law.  As the Yale Law Journal recently summarized it: “In the last five years, the Law of the Territories has experienced a resurgence of activity before the Supreme Court not seen since the Insular Cases,” particularly as “the people of the territories have pressed with increasing urgency for self-determination and decolonization through both domestic and international processes.” 

Ultimately, this course will unearth the ways in which the constitutional condition of U.S. territories suggests more than a niche legal issue, but a prism for thinking about broader contestations over borders, race, indigeneity, and citizenship that run throughout American law. Students will be asked to contextualize the contemporary debate over discrimination and disenfranchisement in the territories within larger themes of American constitutionalism’s encounter with indigenous peoples, racial justice, and the role of overseas empire in constitutional development. Observing that the law of the territories is a significantly undertheorized and emerging topic in contemporary legal scholarship, this seminar is structured around encouraging students to develop seminar papers that will eventually become publishable academic works.

This seminar will consider the past, present, and future of the death penalty in the U.S.  Topics will include the Eighth Amendment framework; capital-eligible offenses and limitations; the role of race; intellectual disability, insanity, and mental status; juvenile offenders; procedural requirements in capital cases; actual innocence claims; methods of execution; juror qualification; and the allocation of issues between judge and jury.  The course also will cover current abolition initiatives under state constitutional, legislative, and clemency initiatives.

Student learning goals: Students will gain both a jurisprudential understanding and practical insight into the death penalty and its administration.  Students will intensively explore this challenging constitutional and legal area, and will write on an important selected issue.

This course investigates the federal courts’ role in United States foreign affairs. It is a commonplace that the courts take a backseat to the political branches on issues relating to foreign affairs. But that truism, though generally accurate, obscures more than it reveals, for the federal courts routinely adjudicate cases with significant implications for the United States’ relations with the world—as they have since 1789. In this course, we will explore several fundamental questions: What kinds of foreign affair issues have the courts historically addressed? How has the courts’ jurisdiction over cases implicating foreign affairs changed over time? How have the courts handled foreign and international law? What impact have separation of powers principles had on the courts’ decision-making?

The course is organized thematically; in each two- or three-week unit we will focus on a particular issue, including the foreign affairs background to the establishment of federal courts under Article III of the Constitution; the status of international and foreign law in federal court; foreign states as litigants in federal court; and the reach of the courts’ jurisdiction beyond U.S. territory. Each unit will be framed in historical perspective, exploring both the courts’ past practice and their modern approach.

This is not a survey course on the law of U.S. foreign affairs; we will not address directly many of the topics that would be covered in such a course—including the allocation of foreign affairs responsibility between the Executive and Congress; the scope of Presidential war power; and treaty-making and executive agreements. Instead, the focus here is squarely on the courts and their interactions with the world.

By the end of the semester, students should be able to do the following:
• Demonstrate a general understanding of the various ways in which the federal courts address issues that have implications for the United States’ relations with foreign nations.
• Recognize how the courts’ role in foreign affairs has changed over time, and understand what has driven those changes.
• Draw connections between different doctrinal areas and historical periods to develop a broader understanding of the court’s role in foreign affairs.
• Critically assess legal and historical scholarship on the courts’ role in foreign affairs.
• Respond constructively to classmates’ questions, comments, and ideas.

It is commonly assumed that law imposes virtually no constraints on the President when he or she decides whether and when to use military force overseas.  In fact, however, nothing could be further from the truth.  There is an enormously detailed and complex corpus of laws, foreign and domestic, that constrains and guides (and sometimes authorizes) the use of force.  Therefore, the legal decision-making process within the Executive branch on such matters is as difficult and challenging as in virtually any other area of federal action.  The purpose of this seminar is to introduce students to the most important of the myriad legal questions that confront decisionmakers and their attorneys whenever the Executive branch contemplates a possible use of force.  The U.S. domestic laws we will examine include, among other things, the constitutional allocation of “war” and other military-related powers between Congress and the President; statutory authorizations and limitations; presidentially-imposed constraints; and covert action authorities and limitations.  We will then examine the principal international-law limits on the use of force, with particular attention to the jus ad bellum (the prerequisites for the decision to use force in the first instance, particularly as prescribed by the United Nations Charter), and the jus in bello (a/k/a the “laws of war,” or international humanitarian law) that governs the conduct of fighting—that is, how force may be used.  In light of the recent conflicts in Ukraine and in Israel and Gaza, we will almost certainly discuss the most pressing and vexing legal questions associated with those ongoing actions.  We will also study “test” cases, such as the Cuban Missile Crisis, the 2000 NATO campaign in Kosovo, strikes by the United States in Syria in recent years, and the 2011 Libya campaign, to illustrate the complexity of the issues.     

Learning Objectives:

Students should become familiar with the vast array of domestic- and international-law questions involving the use of force.  They should also develop a rich understanding of the legal issues that government decision-makers and legal advisors must consider in the course of deciding whether and how the United States (and other nations) can and should use force abroad (and in the United States).  Students will be expected to learn how to assess the reading materials critically, to identify unresolved questions, and to constructively respond to and critique views of their colleagues.  Students who enroll for three credits will demonstrate an ability to produce an original research paper of high quality.

The office and work of state attorneys general both sit at the intersection of law, politics, and policy. No other legal actor has the same power and responsibility to identify and act in the public interest. Unlike private and other government lawyers, who work subject to ethical rules that defer decision making to agency “clients,” state attorneys general answer directly to the public interest. The course examines decisions by attorneys general that reflect their independent status, which is most often revealed when legislatures, other elected officials, state agencies or the federal government exceed their constitutional or statutory authority. In service to the people of their respective states, today’s state AGs are leading the way on issues from federalism to civil rights to workers and consumers rights to environmental protection to gun violence and more. The state attorneys general work within their respective states, across states in multistate coalitions, and both in cooperation and conflict with the federal government. 

Since colonial times, three forces have molded the office of the Attorney General: state constitutions and state government codes, which specify the duties and responsibilities of the attorney general; legislative decrees altering the duties of the attorney general in response to specific state needs; and the personalities and ambitions of those who have served as attorney general. Attorneys general today deal with everything from common law and statutory authority; conflicting legal and policy demands; resource restriction; relationships with outside counsel; and hard-core partisan politics.

The Role of the State Attorney General has these overarching objectives:

• To examine the unique junction of law, policy, and politics at which the state attorney general operates and to consider whether and when each of these does or should feature in a state attorney general’s deliberations and decisions
• To explore issues of law and governance, especially to consider the role of the executive branch in tripartite democratic republics 
• To consider how the state attorneys general figure in the current iteration of American federalism 
• To showcase in concrete terms the actual workings and work of state attorneys general

The course will cover the day to day challenges faced by attorneys general and their staffs in delivering legal advice to guide state government in a constitutional and ethical manner. The course will also cover the relationship of attorneys general with the federal government, the private bar, and  a range of advocacy organizations. It will focus on some of the prominent substantive areas in which state attorneys general work, such as consumer protection, criminal justice, and environmental law.  Although each state is unique, the course will demonstrate the congruence that exists among state attorneys general when addressing similar challenges and issues.

The course materials include case materials and court documents, scholarly articles from a variety of sources, and some journalistic coverage. There is no separate text for this course. All materials will be available via a web portal to be designated by the professor.

Students will be evaluated on class participation (15%); the quality of a short writing assignment  (20%), due approximately mid-way through the course; and a compact in-class exam (65%). The exam will be closed book. In addition to substantive content, the exam will be assessed according to the quality of the prose and organization of the discussion.

Constitutional law has changed quite abruptly in the past three years.  This course should be of interest to those trying to understand how the Justices justify these changes.   This seminar will use current Supreme Court cases to consider questions about constitutional interpretation.   Students will learn about the kinds of tools used in constitutional interpretation: “originalism” in practice.  We will see the focus on text and history, and consider what is left out by those modes of interpretation once thought quite legitimate legal reasoning.  This is a course in reading Supreme Court opinions, although we will also learn “critical” skills to assess the strengths and weaknesses of originalist tools of analysis.   Some of these opinions are quite long, but that is a lawyer’s job.   The professor will not provide edited versions, except in rare cases.

In the first 5 weeks of the semester, students will be taught a background in constitutional interpretation and the modern evolution of originalism, using some law review articles, but primarily Supreme Court cases. For the next 8 classes, students will debate cases now pending in the courts that involve questions of constitutional interpretation.  The professor will introduce the background law in the first class, raise critical questions about method, and the students will debate in the second class.  The three-credit writing requirement section is limited to 5 students and students must have their topic approved by the Professor in the first week of class. 

Learning Objectives:  Advanced knowledge in constitutional interpretation not taught in the average constitutional law course, but keenly important today.

This course will study the respective temporal reaches of, and restrictions on, the legislative, judicial, and executive powers of American governments.

It is almost universally now thought that “retrospective laws are . . . generally unjust . . . and . . . neither accord with sound legislation nor with the fundamental principles of the social compact.” Joseph Story, Commentaries on the Constitution, §1398 (3d ed. 1858). But legislatures nonetheless do sometimes enact retroactive laws, and sometimes for quite benign and legitimate reasons. Furthermore, judicial and executive adjudicatory actions have retroactive effects; and, as with retroactive legislation, some of those adjudicatory actions may establish the legal basis for retroactive restrictions on conduct about which the regulated persons did not have prior notice – such as when the adjudicators construct manifestly new, yet binding, interpretations of ambiguous laws (i.e., when they “make” or “declare” law that will serve as “precedent”). Concomitantly, although often thought of as necessarily being retroactive, judicial and executive adjudicatory powers are sometimes exercised with only future effects – such as when courts or agencies have declined to apply their new interpretations of law retroactively, or have awarded relief that has only prospective effects (e.g., an injunction, a writ of mandamus, a declaratory judgment).

This course will explore these temporal issues. We will examine what legally differentiates “prospective” from “retroactive” governmental actions. We will study the presumption that legislation looks forward, not backward, as well as several of the constitutional constraints on retroactive legislative actions. From there, we will explore both the content of and rationale for the contrasting presumption that judicial action is retroactive in perspective and effect; and we will study the controversy about whether and when a judicial decision announcing a new principle of law – such as a judicial decision overruling an interpretation of law announced in a prior decision – may properly be applied only to conduct or events occurring after the date of that judicial decision. Finally, we will examine whether and how temporal limitations apply in the context of the exercise of executive powers (state and federal) and, concomitantly, how the discretion of the executive and its agents is often temporally insulated – through limits on the writ powers, the doctrine of qualified immunity, etc. – when there is not yet “clearly established” law on an issue.

Our goal is to better understand how the temporal reaches of, and limitations on, the separate powers of government inform the Rule of Law and American constitutional democracy. Such an understanding is relevant and important not only to those who want to study the operation of government and the constitutional limitations on government, but also to those who on behalf of clients – private, public interest, or governmental – seek to influence the temporal application or imposition of new legal restraints.

This course focuses on the Reconstruction Amendments, directing the core of its readings and class engagement to the Thirteenth Amendment. Students will study the amendment, the legislative history and debates leading to it, including early Colonial and American laws. Students will read cases as well as the writings of scholars, abolitionists, and persons most affected by American slavery, including people who were enslaved as well as those who enslaved. As well, we will examine the social climate during the Antebellum period, reading passages from diaries, news articles, and advertisements central to slavery and ultimately the ratification of the Thirteenth Amendment. The course will conclude with an examination of post-Thirteenth Amendment lawmaking in the United States.

Institutional Learning Outcomes and Goals:

Georgetown University Law Center is committed to providing all students an intellectually rich education that combines theory and practice, and embraces the values of cultural competence, social justice, serving the public good, and educating the whole person.  This course provides knowledge of substantive and procedural law, including the influence of the administrative state, political institutions, and other academic discipline in the building of constitutional law and principles.  A key value of the ILO is preparing students for an evolving legal landscape. As such, this course seeks to build upon those principles and establishes the following goals:  

The goals of this course:

• Introduce students to the Reconstruction and Amendments, name the Thirteenth Amendment. 
• Introduce students to the study of the constitution and courts. 
• Familiarize students with the social and legal literature on the Reconstruction. 
• Engage students with practical as well as theoretical ideas in Thirteenth Amendment jurisprudence and history. 
• Stimulate intellectual curiosity about the subject matter.  
• Inspire thoughtful analysis.  
• Encourage and facilitate discussions.

Outcomes:

• Students will gain the ability to engage in legal analysis, including the analysis of case law, constitutions, statutes and regulations, legal instruments, and other academic disciplines. 
• Ability to engage in critical and strategic thinking. 
• Ability to think critically about the law’s claim to neutrality and its differential effects on subordinated groups, including those identified by race, gender, indigeneity, and class. 
• Ability to use problem-solving and collaborative techniques in the legal context.  
• Ability to communicate effectively in the legal context, orally and in writing.

This seminar will address aspects of the long and ongoing work to win LGBT freedom, equality, and inclusion. Topics likely will include the freedom to marry, challenges to so-called “sodomy” laws, the efforts to establish the rights of transgender individuals, LGBT parenting, and employment discrimination, as well as such matters as how the movement is structured, how political and legal groups and strategies interact, etc. The approach will be to talk not only about the development of the legal doctrine but also about the cultural and political context in which the struggle has taken place, and how that context contributed to the willingness or unwillingness of courts and politicians to embrace the cause. Readings will include briefs, case law, and selections from secondary sources. Students should finish the course with an understanding of how the law in this area has evolved, where it is going, and how the LGBT movement illustrates some more general aspects of how successful civil rights movements in this country operate.

More than fifty years since Chief Justice Earl Warren’s retirement, the Warren Court continues to dominate our legal and historical discourse. Liberals, especially ones who came of age during the 1960s, idealize it. Conservatives elected presidents who ran against it and who made a more conservative Supreme Court their number one priority. For years, lawyers and historians have debated whether the Warren Court went too far or whether it did not go far enough. Historians have identified three different Warren Courts: 1954–1962, 1963–1965, and 1966–1969. The Court featured dynamic justices: Hugo Black, William Brennan, William O. Douglas, Felix Frankfurter, Robert H. Jackson, John Marshall Harlan II, Thurgood Marshall, and Earl Warren. It decided landmark cases: Brown v. Board of Education (1954), Cooper v. Aaron (1958), Mapp v. Ohio (1961), Baker v. Carr (1962), Gideon v. Wainwright (1963), New York Times v. Sullivan (1964), Reynolds v. Sims (1964), Griswold v. Connecticut (1965), Miranda v. Arizona (1966), and Loving v. Virginia (1967). People have responded to the Warren Court’s legacy in different ways. Some have defended it as the embodiment of the political philosophy heralded by footnote four of Carolene Products (1938) and a living Constitution. Devotees of legal process and originalism have attacked it. Its real legacy may be legal liberalism – the idea of the Supreme Court as an engine for social and political change. This class explores the Warren Court’s jurisprudential triumphs and failings to understand its contributions to our current discourse and to the future direction of the Supreme Court.

This seminar looks at the Warren Court from a historical perspective. Guided by readings from legal historians and the decisions themselves, we will explore the Court’s major cases and issues in their historical and political context: school desegregation, suspected Communists, denaturalization, the Little Rock school crisis, redistricting, freedom of the press, right to privacy/access to contraception, criminal justice, interracial marriage, and free speech. We will also discuss the strong personalities and jurisprudential philosophies of the justices and how alliances, conflicts, and new justices affected the Court’s decisionmaking. During the semester, students will complete all the required reading, participate in all class discussions, and write an original research paper that which fulfills the Upper Class Writing Requirement.

Location, location, location. Writing original research papers will be easier for you than any other law students in the country. Many Warren Court justices – Black, Frankfurter, Douglas, Jackson, Burton (with diaries!), Warren, Brennan, White, Goldberg, and Marshall – donated their papers to the Library of Congress. The papers are open to the public (with a library card) and are rich sources of material. You’ll receive an expert-led tutorial on how to do archival research, discover how much fun it is to read other people’s mail, and learn how the justices’ papers add to our understanding of the Court’s decisionmaking process.

Win $500 & get published. What other class can you win $500 and get published? Each year, the Journal of Supreme Court History awards the Hughes-Gossett Prize for the best student paper. The prize comes with a $500 award and a publication in the Journal of Supreme Court History. Think you can’t win? One of my former law students at the University of Wisconsin, Jesse Bair, won the award for his article, “The Silent Man: From Lochner to Hammer v. Dagenhart, A Reevaluation of Justice William R. Day.”

Student Learning Outcomes

By the end of the semester, all students should be able to (1) discuss major topics in the constitutional and legal history of the Warren Court; (2) make a historical argument; and (3) write an original research paper. All students are required to complete the Paper Proposal, Progress Report, first draft, and final drafts of the Research Paper. All research papers must draw upon substantial original research in primary historical sources.

The District of Columbia has a unique position as the seat of the United States government.  Because it is not a state, it does not have a voting representative in the U.S. Congress. It has limited powers of home rule, and did not even receive its current form of home rule until a 1973 Act of Congress. Its power remains limited even as to matters affecting entirely local interests. Indeed, Article1, Section 8 of the U.S. Constitution vests Congress with the power to exercise exclusive legislation in all cases over the District, and it has done so for matters ranging from budget control to marijuana sales. DC has  non-voting representatives in each Chamber of Congress who did not have a staff, offices on Capitol Hill, or budgets, and a Delegate to the House of Representative who can participate in hearings, but does not have a vote.  In some respects, DC is like a U.S. territory, and yet, unlike territories, it does not have a clearly designated path to statehood. For many reasons, the residents of the District of Columbia have repeatedly sought statehood primarily in order to have representation and to have autonomy over its own laws, budget, and constituency, and each time the effort has failed. 

At the same time, within the narrow ambit of its home rule power, DC is a vibrant, thriving city. It has overall high income levels, with DC taxes paying the highest per capita income taxes in the nation. It has a population of over 700,000 residents, most of them full-time, larger than the population of two American states, and larger than the population of at least one state when it was admitted to the Union. That DC is a “transient city” is a myth. In fact, until recently, DC had a majority-Black population, and has for over a hundred years been a center of culture and education for Black residents, nurturing institutions like Howard University and the U Street corridor.

DC has a unitary school district, its own metropolitan transit system, and its own Mayor, an elected Attorney General, a city Council, and its own court system. The DC Council is the legislative body in DC made up of 13 members – 8 Councilmembers each of whom represent one of the eight wards in the District, 4 of whom represent the city “at large”, and one Chairman. It has a unique system of sublocal governance through its Advisory Neighborhood Commissions (ANCs). It has a police department, and a National Guard, but, as we saw on January 6, the Mayor cannot call up the Guard in the same way other Governors can on their own accord. We have also seen how the police powers of DC are constrained by the relationship with federal property and federal law enforcement agencies in the district.

DC also faces challenges in developing housing and infrastructure. Because of deep disparities in income, it has been subject, in some areas, to rapid gentrification. At the same time, through its Master Plan, and by dint of the efforts of Councilmembers, the construction of affordable housing and limiting the exodus of longtime residents is a policy priority.

DC has also distinguished itself as a best practice model in two areas: its pursuit of local climate policy, including a commitment to net-zero carbon use; and its efforts to distinguish itself as a world-class city, with subnational diplomacy and networks with mayors both in the US and globally. 

In this class, we will look at the unique structure of DC government within the contexts of our our federalist system its governance structure and institutions, and some of the policy challenges it faces. We will discuss the movement for DC statehood, including its historical and justice-related underpinnings. The class is taught by Professor Chertoff, who studies state and local government. Several guest speakers are expected.   

The assessment for the class will offer students the opportunity to participate in one of two exercises: a mock hearing in the DC Council on a contemporary bill; or a mock negotiation of a Community Benefit Agreement, an agreement designed to incorporate stakeholder input in the development that is occurring so rapidly in many formerly underserved parts of the District.