Law Commons^™

The Poverty Law Education Of Charles Reich, Felicia Kornbluh, Karen Tani

All Faculty Scholarship

This essay, written for a symposium on the life and legacy of Charles Reich, explores how Reich came to be interested in the field of poverty law and, specifically, the constitutional rights of welfare recipients. The essay emphasizes the influence of two older women in Reich’s life: Justine Wise Polier, the famous New York City family court judge and the mother of one of Reich’s childhood friends, and Elizabeth Wickenden, a contemporary of Polier’s who was a prominent voice in social welfare policymaking and a confidante of high-level federal social welfare administrators. Together, Polier and Wickenden helped educate Reich about …

The Supreme Court’S Two Constitutions: A First Look At The “Reverse Polarity” Cases, Arthur D. Hellman

Articles

In the traditional approach to ideological classification, “liberal” judicial decisions are those that support civil liberties claims; “conservative” decisions are those that reject them. That view – particularly associated with the Warren Court era – is reflected in numerous academic writings and even an article by a prominent liberal judge. Today, however, there is mounting evidence that the traditional assumptions about the liberal-conservative divide are incorrect or at best incomplete. In at least some areas of constitutional law, the traditional characterizations have been reversed. Across a wide variety of constitutional issues, support for claims under the Bill of Rights or …

Progressive And Populist Strands In American Constitutionalism, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Many modern liberals believe that the federal government is captured by a “billionaire party” determined to wield public power for private gain. But many of them also believe in giving the federal government greatly enhanced powers, like administering “Medicare for all.”

There is a history to this contradiction. Modern liberalism is an amalgam of older populist and progressive impulses with deep roots in the country’s past. The populist impulse locates the source of economic oppression in government corruption. The solution to this problem is direct, popular democracy. Progressives tend to locate the source of economic oppression in the malfunction of …

Philosophical Legal Ethics: An Affectionate History, David Luban, W. Bradley Wendel

Georgetown Law Faculty Publications and Other Works

The modern subject of theoretical legal ethics began in the 1970s. This brief history distinguishes two waves of theoretical writing on legal ethics. The “First Wave” connects the subject to moral philosophy and focuses on conflicts between ordinary morality and lawyers’ role morality, while the “Second Wave” focuses instead on the role legal representation plays in maintaining and fostering a pluralist democracy. We trace the emergence of the First Wave to the larger social movements of the 1960s and 1970s; in the conclusion, we speculate about possible directions for a Third Wave of theoretical legal ethics, based in behavioral ethics, …

The Constitution Of Cádiz In Florida, M C. Mirow

Faculty Publications

The article explores the vibrant constitutional community that existed in St. Augustine and the province of East Florida in the final decade of Spanish control of the area. Based on relatively unexplored primary sources, it reveals a great deal of unknown information about the importance of the Constitution in Florida immediately before the territory was transferred to the United States. The article provides full description of the Constitution's promulgation in 1812 and a second promulgation of the Constitution in 1820 (something unknown in the general literature). It also addresses the construction of the St. Augustine monument to the Constitution erected …

Race As A Legal Concept, Justin Desautels-Stein

Publications

Race is a legal concept, and like all legal concepts, it is a matrix of rules. Although the legal conception of race has shifted over time, up from slavery and to the present, one element in the matrix has remained the same: the background rules of race have always taken a view of racial identity as a natural aspect of human biology. To be sure, characterizations of the rule have oftentimes kept pace with developments in race science, and the original invention of race as a rationale for the subordination of certain human populations is now a rationale with little …

Dilemmas Of Modernity: Bolivian Encounters With Law And Liberalism (Book Review), Jan Hoffman French

Sociology and Anthropology Faculty Publications

Recent scholarship on Bolivia has focused primarily on indigenous rights, multiculturalism, political and cultural issues surrounding the growing of coca, and the election of Evo Morales. Mark Goodale's project is different. By taking a "telescopic" view, Goodale steps away from ethnographic detail in a remote district of Bolivia to examine the sweep of "liberal legality" since independence in 1825. Setting the stage, Goodale takes the position that neither neoliberal economic policies of the 1980s nor the election of Morales are breaks with the past. Rather, the "patterns of intention" initiated with the early constitutions of the new republic, the ethos …

Feminism As Liberalism: A Tribute To The Work Of Martha Nussbaum Symposium: Honoring The Contributions Of Professor Martha Nussbaum To The Scholarship And Practice Of Gender And Sexuality Law: Feminism And Liberalism, Tracy E. Higgins

Faculty Scholarship

In this essay, I revisit and expand an argument I have made with respect to the limited usefulness of liberalism in defining an agenda for guaranteeing women's rights and improving women's conditions. After laying out this case, I discuss Martha Nussbaum's capabilities approach to fundamental rights and human development and acknowledge that her approach addresses to a significant degree many of the objections I and other feminist scholars have raised. I then turn to fieldwork that I have done in South Africa on the issue of custom and women's choices with regard to marriage and divorce. Applying Professor Nussbaum's capabilities …

Book Review, Matthew D. Adler

Faculty Scholarship

Reviewing, N. Scott Arnold, Imposing Values: An Essay on Liberalism and Regulation (2009)

National Identity And Liberalism In International Law: Three Models, Justin Desautels-Stein

Publications

No abstract provided.

The Force Of Ancient Manners: Federalist Politics And The Unitarian Controversy, Marc Arkin

Faculty Scholarship

No abstract provided.

Victims' Rights, Rule Of Law, And The Threat To Liberal Jurisprudence, Ahmed A. White

Publications

No abstract provided.

The View From The International Plane: Perspective And Scale In The Architecture Of Colonial International Law, Annelise Riles

Cornell Law Faculty Publications

No abstract provided.

Liberalism And Natural Law Theory, John M. Finnis

Journal Articles

I shall argue, in the course of this lecture, that the title I gave myself is a bad one, one that sets a bad example. "Liberalism," like "conservatism" and "socialism," is too local, contingent and shifting a term to deserve a place in a general theory of society, politics, government and law. So I had better say at once which proposition or set of propositions I, on this occasion, was gesturing towards with the word "liberalism," out of all the many propositions, often conflicting, which have been called "liberal." What I had in mind was the thesis that government and …

Chapter 4 - Self-Ownership And The Political Theory Of Elizabeth Cady Stanton (Previously Published Article), Elizabeth B. Clark

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

The emphasis on freedom or enslavement of the body, and the issues that sprang from that focus, were feminists' contribution to nineteenth-century American liberalism, as well as their link to radical thought. Elizabeth Cady Stanton drew arguments from the realm of political liberty and religious tolerance to make the case for choice in private life. But the vision of individual autonomy in sexual and domestic matters served also as the basis for her definition of citizenship and as a paradigm for relations among citizens and between citizens and the state. Self-ownership was the unifying theme that ran through Stanton's political …

Self-Ownership And The Political Theory Of Elizabeth Cady Stanton, Elizabeth B. Clark

Publications

The emphasis on freedom or enslavement of the body, and the issues that sprang from that focus, were feminists' contribution to nineteenth-century American liberalism, as well as their link to radical thought. Elizabeth Cady Stanton drew arguments from the realm of political liberty and religious tolerance to make the case for choice in private life. But the vision of individual autonomy in sexual and domestic matters served also as the basis for her definition of citizenship and as a paradigm for relations among citizens and between citizens and the state. Self-ownership was the unifying theme that ran through Stanton's political …

Jurisprudence As Narrative: An Aesthetic Analysis Of Modern Legal Theory, Robin West

Georgetown Law Faculty Publications and Other Works

Recent legal scholarship has engaged in a growing dialogue tying literary criticism to jurisprudence. In this article, Professor Robin West adds her voice by advocating the reading of legal theory as a form of narrative. Drawing from Northrop Frye's “Anatomy of Criticism,” Professor West first details four literary myths that combine contrasting world visions and narrative methods. She then applies Frye's categories to Anglo-American jurisprudential traditions and employs aesthetic principles to analyze influential legal theorists within these traditions. Finally, Professor West argues that recognizing the aesthetic dimension of legal debate frees us to realize our moral ideals.

Liberalism, Radicalism, And Legal Scholarship, Steven H. Shiffrin

Cornell Law Faculty Publications