Law Commons^™

Section 1983 And Constitutional Torts, Charles F. Abernathy

Georgetown Law Faculty Publications and Other Works

We have long recognized that the resurrection of section 1983 converted the fourteenth amendment from a shield into a sword by providing a civil action for vindication of constitutional rights and, to the extent that damages have gradually become the authorized remedy for section 1983 violations, we have easily come to think of such actions as constitutional torts-civil damage remedies for violations of constitutionally defined rights. There is, however, a subtler and greater reality to what has transpired, for the mere procedural vehicle of constitutional enforcement has, in retrospect, changed the substance of constitutional law itself. Section 1983 has not …

Faith And Justice, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

What is the relationship between faith and justice? In particular, this Article will address the question of what a Justice of the United States Supreme Court should do, when her religious faith suggests that a case should be resolved in a way that is either inconsistent with the law or not justified by nonreligious, public reasons. May she rely on her religious beliefs to resolve a hard case? May she write an opinion that uses religious grounds to justify her decision?

In this Article, I will undertake to elaborate and defend a distinctively liberal position concerning faith and justice. My …

The Fifth Amendment: If An Aid To The Guilty Defendant, An Impediment To The Innocent One, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

The fifth amendment's privilege not to answer, critics carp, insulates the guilty defendant from revealing his complicity. While this is true, ironically it also can shackle the innocent defendant from attempting to prove that another person committed the crime. If that other person asserts the fifth amendment in response to questions designed to substitute him for the defendant, the innocent defendant can neither surmount that person's assertion nor benefit therefrom.

Consider this set of facts. A murder is committed. Defendant, charged with the crime, has evidence that Witness killed the victim. The prosecution believes only one person committed the crime. …

Is Law Politics?, Philip Chase Bobbitt

Faculty Scholarship

Red, White, and Blue addresses the pervasive presence of five general theories of American constitutional law. These theories reflect particular jurisprudential ideologies governing, among other things, the legitimacy of certain arguments, the appropriateness of certain occasions for judicial intervention and the constitutional basis for judicial review. What makes this book interesting and important is that it provides an unwitting or at least unself-conscious example of the general theorizing it wishes to explain. For this reason, its descriptions of the particular family of theories that characterize American constitutional jurisprudence are distorted, while it disclaims any account of the particular set of …

The Early Role Of The Attorney General In Our Constitutional Scheme: In The Beginning There Was Pragmatism, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

This article attempts to accomplish two distinct but related objectives. First, it initiates the proposed systematic study of the Office of the Attorney General by examining its early role. Second, it explores how these early experiences help to answer today's questions. To those ends, part I examines the establishment of the Office of the Attorney General. Studying the genesis of the office and contrasting it to the other significant offices created by the First Congress, such as the Secretaries of Foreign Affairs, War, and Treasury, reveals the priorities and concerns of these early legislators, many of whom had been instrumental …

The Future And The First Amendment, Lee C. Bollinger

Faculty Scholarship

It is my honor and pleasure to deliver this year's Sullivan Lecture. I have an especially warm feeling toward this Law School. Two years ago, at the invitation of your Professor Distelhorst, I participated in the Capital Law School program for teaching American law to Japanese lawyers. For five stimulating weeks I enjoyed the intellectual and social company· of Japanese attorneys, while teaching them the outlines of American constitutional law. Twice a week, in the evening, for three continuous hours, and after a full work day, these dedicated lawyers would willingly become students again and suffer patiently through my highly …

Are Constitutional Cases Political?, Brian Slattery

Articles & Book Chapters

To argue that constitutional adjudication is political does not carry us very far unless we go on to specify what the pursuit of politics entails, the goals it seeks to attain, and the basic principles informing its practice. The word political has no clearly defined meaning in modern usage. Rather, it has the chameleon-like capacity to change colours so as to blend with a variety of different conceptual backgrounds. Of course, if we adopt an Aristotelian notion of politics as the pursuit of the common good of a community and the individual goods of its members, we can agree that …