Law Commons^™

The Declaration Of Independence And The American Theory Of Government: “First Come Rights, And Then Comes Government”, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The topic of this panel is the Declaration of Independence, to which I devoted a chapter of my recent book, Our Republican Constitution. I want to draw on that book to make five points.

The Brandeis Thought Experiment: Reflection On The Elimination Of Racial Bias In The Legal System, Patrick C. Brayer

Faculty Works

This essay prompts the reader to engage in a thought experiment and consider their own limits in advancing the cause of; a legal system free from racism and bias, and lawyers are encouraged to use the experience of a young Louis Brandeis as a guide in this self-reflection. Specifically, this essay calls attention to the fact that Louis Brandeis started his legal career, at the same time when, and in the same place where thousands of African Americans were escaping persecution and traveling in search of economic and political freedom, yet he was publicly absent on issues of race. As …

Trump’S Angry White Women: Motherhood, Nationalism, And Abortion, Yvonne F. Lindgren

Faculty Works

A majority of white women — fifty-two percent — voted for Donald Trump in the 2016 presidential election. White working-class women supported Trump in even greater numbers: sixty-one percent of white women without college degrees voted for Trump. This result seems remarkable considering Trump’s derogatory statements about women and his staunch opposition to legal access to abortion. Why did white women, especially those most likely to need access to reproductive healthcare—poor and working-class women — vote heavily against their own interests to embrace a candidate who called for punishing women who access abortion? Much recent commentary has considered this question …

Law As Strategy: Thinking Below The State In Afghanistan, Charles H. Norchi

Faculty Publications

U.S.engagement in Afghanistan is inevitable, but there will be choices about strategy. In 1952, the U.S.Naval War College convened a lecture series devoted to strategy. On March 20, the lecturer was Harold D.Lasswell, an architect of the New Haven School of Jurisprudence. Lasswell observed, “The aim of strategy is to maximize the realization of the goal values of the body politic.” This article proposes that law is among the available strategic instruments to advance goal values common to the United States, Afghanistan,and the world community.

A Constitution For The Age Of Demagogues: Using The Twenty-Fifth Amendment To Remove An Unfit President, Paul F. Campos

Publications

This Article argues that, properly understood, the 25th Amendment is designed to allow the executive and legislative branches, working together, to remove a president from office when it becomes evident that the person elevated to that office by the electoral process is manifestly unsuited for what can, without exaggeration, be described as the most important job in the world.

It argues further that the first two years of Donald Trump’s presidency have provided a great deal of evidence for the proposition that President Trump has in fact demonstrated the requisite level of fundamental unfitness for the office that would justify …

After Suffrage: The Unfinished Business Of Feminist Legal Advocacy, Serena Mayeri

All Faculty Scholarship

This Essay considers post-suffrage women’s citizenship through the eyes of Pauli Murray, a key figure at the intersection of the twentieth-century movements for racial justice and feminism. Murray drew critical lessons from the woman suffrage movement and the Reconstruction-era disintegration of an abolitionist-feminist alliance to craft legal and constitutional strategies that continue to shape equality law and advocacy today. Murray placed African American women at the center of a vision of universal human rights that relied upon interracial and intergenerational alliances and anticipated what scholars later named intersectionality. As Murray foresaw, women of color formed a feminist vanguard in the …

Mcculloch V. Marbury, Kermit Roosevelt Iii, Heath Khan

All Faculty Scholarship

This article builds on recent scholarship about the origins and creation of “our Marbury”—the contemporary understanding of the case and its significance—to argue that Marbury is in fact wholly unsuited for the role it plays in Supreme Court rhetoric and academic instruction. While Marbury is generally understood to support aggressive judicial review, or actual invalidation of a government act, it offers no guidance at all for how judicial review should be employed in particular cases—in particular, whether review should be aggressive or deferential. The actual opinion in Marbury makes no effort to justify its lack of deference to the …

James Wilson As The Architect Of The American Presidency, Christopher S. Yoo

All Faculty Scholarship

For decades, James Wilson has been something of a “forgotten founder.” The area where commentators generally recognize Wilson’s influence at the Convention is with respect to Article II, which establishes the executive and defines its powers. Most scholars characterize him as a resolute advocate of an independent, energetic, and unitary presidency, and a particularly successful one at that. In this regard, some scholars have generally characterized Wilson’s thinking as overly rigid. Yet a close examination of the Convention reveals Wilson to be more flexible than sometimes characterized. With respect to many aspects of the presidency, including the appointment power, the …

Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank

All Faculty Scholarship

Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as …

Roger Nash Baldwin And The St. Louis Civil Liberties Trail: Celebrating 100 Years Of The Aclu With Search For The Organization's Conceptual Founding, Patrick C. Brayer

Faculty Works

This article traces the role of Roger Nash Baldwin as a leading figure in the American civil liberties movement in the early twentieth century. In particular, the article highlights the central role of St. Louis in this history. At the advice of family friend Louis Brandeis, Baldwin moved to St. Louis to become a sociology professor at Washington University. At the time, St. Louis was a center of migration for African Americans escaping oppression in the South. The article traces a variety of geographical locations throughout St. Louis that were important to Baldwin’s development as a leader in the civil …

Negotiating The Lender Of Last Resort: The 1913 Federal Reserve Act As A Debate Over Credit Distribution, Nadav Orian Peer

Publications

“Lending of last resort” is one of the key powers of central banks. As a lender of last resort, the Federal Reserve (the “Fed”) famously supports commercial banks facing distressed liquidity conditions, thereby mitigating destabilizing bank runs. Less famously, lender-of-last-resort powers also influence the distribution of credit among different groups in society and therefore have high stakes for economic inequality. The Fed’s role as a lender of last resort witnessed an unprecedented expansion during the 2007–2009 Crisis when the Fed invoked emergency powers to lend to a new set of borrowers known as “shadow banks”. The decision proved controversial and …

Human Rights Racism, Anna Spain Bradley

Publications

International human rights law seeks to eliminate racial discrimination in the world through treaties that bind and norms that transform. Yet law’s impact on eradicating racism has not matched its intent. Racism, in all of its forms, remains a massive cause of discrimination, indignity, and lack of equality for millions of people in the world today. This Article investigates why. Applying a critical race theory analysis of the legal history and doctrinal development of race and racism in international law, Professor Spain Bradley identifies law’s historical preference for framing legal protections around the concept of racial discrimination. She further exposes …

The Football As Intellectual Property Object, Michael J. Madison

Book Chapters

The histories of technology and culture are filled with innovations that emerged and took root by being shared widely, only to be succeeded by eras of growth framed by intellectual property. The Internet is a modern example. The football, also known as the pelota, ballon, bola, balón, and soccer ball, is another, older, and broader one. The football lies at the core of football. Intersections between the football and intellectual property law are relatively few in number, but the football supplies a focal object through which the great themes of intellectual property have shaped the game: origins; innovation and …

The Progressive Idea Of Democratic Administration, William J. Novak

Articles

The first thing to acknowledge about administration is that administration is coincident with governance. Far from being a modern invention or some kind of radical departure from an original political or legal tradition, administration is among the oldest practices of governments. Indeed, it is impossible to conceive of government without administration. Laws need to be enforced, legislation needs to be implemented, and collective goods need to be secured. Governance is mostly a matter of actions and practices, making administration perhaps the most truly reflective aspect of legal and political culture.

Federally Funded Slaving, Rafael I. Pardo

Scholarship@WashULaw

This Article presents a new frame of reference for thinking about the federal government’s complicity in supporting the domestic slave trade in the antebellum United States. While scholars have accounted for several methods of such support, they have failed to consider how federal bankruptcy legislation during the 1840s functionally created a system of direct financial grants to slave traders in the form of debt discharges. Relying on a variety of primary sources, including manuscript court records that have not been systematically analyzed by any published scholarship, this Article shows how the Bankruptcy Act of 1841 enabled severely indebted slave traders …

Reading Terminology In The Sources For The Early Common Law: Seisin, Simple And Not So Simple, John G. H. Hudson

Book Chapters

According to F. W. Maitland, ‘the treatment of seisin in our oldest common law must be understood if ever we are to use the vast store of valuable knowledge that lies buried in the plea rolls and the Year Books’. In The History of English Law, Maitland stated firmly that ‘Seisin is possession’, and that ‘When we say that seisin is possession, we use the latter term in the sense in which lawyers use it, a sense in which possession is quite distinct from, and may be sharply opposed to, proprietary right.’ He added that ‘The idea of seisin …

The Operational And Administrative Militaries, Mark P. Nevitt

All Faculty Scholarship

This Article offers a new way of thinking about the military. The U.S. military’s existing legal architecture arose from tragedy: in response to operational military failures in Vietnam, the 1980 failed Iranian hostage rescue attempt and other military misadventures, Congress revamped the Department of Defense (DoD)’s organization. The resulting law, the Goldwater-Nichols Act, formed two militaries within the DoD that endure to this day. These two militaries – the operational military and the administrative military – were once opaque to the outside observer but have emerged from the shadows in light of recent conflicts. The operational military remains the focus …

Whiteness As Innocence, David Simson

Articles & Chapters

Current antidiscrimination law is exceedingly hostile to the project of race-conscious remediation—the conscious use of race to mitigate America’s persistent racial hierarchy. This Article argues that this broad hostility can be traced in significant part to what I call “Whiteness as Innocence” ideology. This ideology is a system of legal reasoning by which the formal principle of equality is filled with the substantive principle of white racial dominance via invocations of white innocence. That is, under this ideology, ideas about white innocence influence legal decisions on who is “alike” and “unalike” and what constitutes “alike” and “unalike” treatment in race-conscious …

Constructing The Original Scope Of Constitutional Rights, Nathan Chapman

Scholarly Works

In this solicited response to Ingrid Wuerth's "The Due Process and Other Constitutional Rights of Foreign Nations," I explain and justify Wuerth's methodology for constructing the original scope of constitutional rights. The original understanding of the Constitution, based on text and historical context, is a universally acknowledged part of constitutional law today. The original scope of constitutional rights — who was entitled to them, where they extended, and so on — is a particularly difficult question that requires a measure of construction based on the entire historical context. Wuerth rightly proceeds one right at a time with a careful consideration …

We Still Have Not Learned From Anita Hill's Testimony, Kimberlé W. Crenshaw

Faculty Scholarship

Twenty-seven years after Anita Hill testified in front of the Senate Judiciary Committee that Clarence Thomas sexually harassed her, and as Christine Blasey Ford prepares to testify that Brett Kavanaugh sexually assaulted her when they were teenagers, we still have not learned our mistakes from that mess in 1991.

Most people recognized that it looked bad, a black woman fending for herself in front of a group of white men. Yet we can’t acknowledge the central tragedy of 1991 – the false tension between feminist and antiracist movements.

We are still ignoring the unique vulnerability of black women.

Who Owns The Rules Of War In Today's Post-Post-Cold War?, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

Professor Gabriella Blum's The Paradox of Power observes that international humanitarian law (IHL) has been in a long. term evolution toward putting the principle of "humanitarianism" and civilian protection at its normative and legal center. The Lecture (on which this essay is a commentary) identifies several reasons for this, in particular (within and across liberal democratic societies) social acceptance of IHL as law but also as socially internalized norms that give IHL broad moral legitimacy. Accepting The Paradox of Power's main propositions as cor rect, this Commentary extends its account in several ways. First, The Paradox of Power's combination of …

Life, Liberty, [And The Pursuit Of Happiness]: Medical Marijuana Regulation In Historical Context, Lewis Grossman

Articles in Law Reviews & Other Academic Journals

The struggle for access to medical marijuana differs from most other battles for therapeutic freedom in American history because marijuana also has a popular, though controversial, nontherapeutic use—delivery of a recreational high. After considering struggles over the medical use of alcohol during prohibition as a precedent, this chapter relates the history of medical marijuana use and regulation in the United States. The bulk of the chapter focuses on the medical marijuana movement from the 1970s to present. This campaign has been one of the prime examples of a successful extrajudicial social movement for freedom of therapeutic choice. With the exception …

Privacy And Security Across Borders, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

Three recent initiatives -by the United States, European Union, and Australiaare opening salvos in what will likely be an ongoing and critically important debate about law enforcement access to data, the jurisdictional limits to such access, and the rules that apply. Each of these developments addresses a common set of challenges posed by the increased digitalization of information, the rising power of private companies delimiting access to that information, and the cross-border nature of investigations that involve digital evidence. And each has profound implications for privacy, security, and the possibility of meaningful democratic accountability and control. This Essay analyzes the …

Accommodating Competition: Harmonizing National Economic Commitments, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

This article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.

The Union Of Law And Equity: The United States, 1800-1938, Kellen R. Funk

Faculty Scholarship

David Dudley Field was the architect of the union – or fusion or merger – of equity and law in New York state, and the Field Code was widely adopted in other states. Field’s vision of the union of law and equity has prevailed in the United States, including at the federal level, at least in theory. However, the practise of law and acts of the courts indicate that the reality is rather different. Equity was not sundered by the Field Code or its federal counterpart, the Federal Code of Civil Procedure 1938. Equity continues to operate distinctly in various …

An American Approach To Social Democracy: The Forgotten Promise Of The Fair Labor Standards Act, Kate Andrias

Faculty Scholarship

There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American – in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor …

New Look Constitutionalism: The Cold War Critique Of Military Manpower Administration, Jeremy K. Kessler

Faculty Scholarship

By reconstructing the anxious, constitutional dialogue that shaped the administration of military manpower under President Eisenhower’s New Look, this Article explores the role that administrative constitutionalism played in the development of the American national-security state, a state that became both more powerful and more legalistic during the pivotal years of the Cold War. The Article also questions the frequent identification of administrative constitutionalism with the relative autonomy and opacity of the federal bureaucracy. The back-and-forth of administrative constitutionalism continually recalibrated the degree of autonomy and opacity that characterized the draft apparatus. This evidence suggests that bureaucratic autonomy and opacity may …

Speech And Exercise By Private Individuals And Organizations, Kent Greenawalt

Faculty Scholarship

A central issue about redundancy concerns how far the exercise of religion is simply a form of speech that is, and should be, constitutionally protected only to the extent that reaches speech generally. Insofar as a constitutional analysis leaves flexibility, we have questions about wise legislative choices. To consider these issues carefully, we need to have a sense of what counts as relevant speech and the exercise of religion. That is the focus of this article.

It addresses the basic categorization of what counts as “speech” for freedom of speech and what counts as religious exercise when each is engaged …

On Being Old Codgers: A Conversation About A Half Century In Legal Education, Mark Tushnet, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

This conversation, conducted over three evenings, captures some of our thoughts about the last half century of legal education as both of us near retirement. We have edited the conversations so as to eliminate verbal stumbles and present our ideas more coherently, slightly reorganized a small part of the conversation, and added a few explanatory footnotes. However, we have attempted to keep the informal tone of our discussions.