Digital Commons Network^™

The Problem Of Democracy In Contexts Of Polarization, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this paper I argue that contemporary democracies all over the world are more polarized than ever and intend to analyze not only the conditions of possibility of a democracy, in general, and in contexts of polarization, in particular, but also the relationship between democracy and polarization. My claim is that polarization, if certain conditions are met, more than a problem it is a great opportunity to democracy and a greater democratization. Hence, I bring to mind that it was Ronald Dworkin, who recently asked about the conditions of possibility of a democracy and its relationship with polarization by developing …

Afterword: The Libertarian Middle Way, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Libertarianism is sometimes portrayed as radical and even extreme. In this Afterword to a symposium on "Libertarianism and the Law" in the Chapman Law Review, I explain why, though it may be radical, libertarianism is far from extreme in comparison with its principal alternatives: the social justice of the Left or legal moralism of the Right. Social justice posits that everyone should get a certain amount of stuff; legal moralism posits that everyone should act in a certain way. But because there is no consensus about how much stuff each person should have or how exactly everyone should act, …

Rethinking Legal Conservatism, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

This is the time for us to think through whether an entity as august as the Federalist Society should embrace a move toward a constitutional conservatism. It strikes me as dangerous in terms of the underlying issues, but more importantly, as a step away from the fundamental insight that the Federalist Society had, which was that judges should be restrained because they lack the democratic pedigree of the political branches. There should be an impulse of judicial restraint, and, unless something is clearly unconstitutional, courts should not be mucking around with legislation and declaring it unconstitutional, no matter how novel …

Neo-Democracy, National Security, And Liberty, David Cole

Georgetown Law Faculty Publications and Other Works

In his new book, Liberty and Security, Conor Gearty, professor of law at the London School of Economics and one of the United Kingdom’s leading authorities on civil liberties and national security, argues that many Western nations are in effect “neo-democracies” that fail systematically to live up to the fundamental egalitarian premises of true democracy, and that this development is seen in particular in the context of counter-terrorism policy. This review assesses that claim, and maintains that while Gearty is correct that many counter-terrorism measures are predicated on double standards, that critique is insufficient to answer the many difficult questions …

The Wages Of Crying Judicial Restraint, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Five Justices voted to affirm the proposition that the Constitution creates a government of limited and enumerated powers and that the courts will enforce those limits. To understand why this victory was possible, it is important to understand that there are not just two versions of federalism, pre‐New Deal and post‐New Deal. There is also a third version. The failure to recognize the third version goes a long way to explain why most of my academic colleagues predicted that the right would have no chance to prevail in our constitutional challenge to the individual insurance mandate.

The first version of …

Stochastic Constraint, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

This essay reviews Power and Constraint: The Accountable Presidency After 9/11 by Jack Goldsmith (2012).

With The Terror Presidency, Professor Jack Goldsmith wrote, hands down, the very best analysis of the national security issues surrounding President George W. Bush's tenure. In Power and Constraint: The Accountable Presidency After 9/11, Goldsmith returns to the same set of problems, but adopts a different tack. He argues that the modern wartime Executive is constrained in new ways beyond the traditional system of checks and balances, and that these new constraints combine to create an effective system that checks executive power. Though …

Judges As Bad Reviewers: Fair Use And Epistemological Humility, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

The future of fair use depends on whether judges act like bad reviewers, or whether they behave differently in interpreting challenged works than they do in almost every other aspect of judging. Ordinarily, judges are asked to produce definitive answers about the meanings of texts. But when it comes to literary judgments, the bad reviewer is the one who insists that a work has only one meaning, and announces the bottom line as if it were an absolute. A good reviewer explains the sources of her judgment, making room for other interpretations. This is also what is necessary to a …

Make Me Walk, Make Me Talk, Do Whatever You Please: Barbie And Exceptions, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Barbie represents an aspiration to an ideal and also a never-ending mutability. Barbie is the perfect woman, and she is also grotesque, plasticized hyperreality, presenting a femininity exaggerated to the point of caricature. Barbie’s marketplace success, combined with (and likely related to) her overlapping and contradictory meanings, also allow her to embody some key exceptions to copyright and trademark law. Though Mattel’s lawsuits were not responsible for the initial recognition of those exceptions, they illuminate key principles and contrasts in American law. Mattel attempted to use both copyright and trademark to control the meaning of Barbie, reflecting a trend towards …

Originalism And The Unwritten Constitution, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In his book, America’s Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America’s founding documents, institutional practices, and ethos, all of which constitute Amar’s “unwritten Constitution.” In this article, the author argues that contemporary originalist constitutional theory is consistent with reliance on extraconstitutional sources in certain circumstances. He establishes a framework for revaluating the use of extratextual sources. That framework categorizes extratextual sources and explains their relevance to constitutional interpretation (the meaning of the text) and constitutional construction (elaboration of constitutional doctrine and …