Open Access. Powered by Scholars. Published by Universities.®
- Discipline
Articles 1 - 5 of 5
Full-Text Articles in Law
Internet Utopianism And The Practical Inevitability Of Law, Julie E. Cohen
Internet Utopianism And The Practical Inevitability Of Law, Julie E. Cohen
Georgetown Law Faculty Publications and Other Works
"Writing at the dawn of the digital era, John Perry Barlow proclaimed cyberspace to be a new domain of pure freedom. Addressing the nations of the world, he cautioned that their laws, which were “based on matter,” simply did not speak to conduct in the new virtual realm. As both Barlow and the cyberlaw scholars who took up his call recognized, that was not so much a statement of fact as it was an exercise in deliberate utopianism. But it has proved prescient in a way that they certainly did not intend. The “laws” that increasingly have no meaning in …
Judicial Engagement Through The Lens Of Lee Optical, Randy E. Barnett
Judicial Engagement Through The Lens Of Lee Optical, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
Keynote remarks at the symposium on "Judicial Engagement and the Role of Judges in Enforcing the Constitution", delivered on March 22, 2012 at the George Mason University School of Law.
A Tale Of Two Lochners: The Untold History Of Substantive Due Process And The Idea Of Fundamental Rights, Victoria Nourse
A Tale Of Two Lochners: The Untold History Of Substantive Due Process And The Idea Of Fundamental Rights, Victoria Nourse
Georgetown Law Faculty Publications and Other Works
To say that the Supreme Court's decision in Lochner v. New York is infamous is an understatement. Scholars remember Lochner for its strong right to contract and laissez-faire ideals--at least that is the conventional account of the case. Whether one concludes that Lochner leads to the judicial activism of Roe v. Wade, or foreshadows strong property rights, the standard account depends upon an important assumption: that the Lochner era's conception of fundamental rights parallels that of today. From that assumption, it appears to follow that Lochner symbolizes the grave political dangers of substantive due process, with its "repulsive connotation …
Scrutiny Land, Randy E. Barnett
Scrutiny Land, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
Scrutiny Land is the place where government needs to justify to a court its restrictions on the liberties of the people. In the 1930s, the Supreme Court began limiting access to Scrutiny Land. While the New Deal Court merely shifted the burden to those challenging a law to show that a restriction of liberty is irrational, the Warren Court made the presumption of constitutionality effectively irrebuttable. After this, only one road to Scrutiny Land remained: showing that the liberty being restricted was a fundamental right. The Glucksberg Two-Step, however, limited the doctrine of fundamental rights to those (1) narrowly defined …
Justice Kennedy's Libertarian Revolution: Lawrence V. Texas, Randy E. Barnett
Justice Kennedy's Libertarian Revolution: Lawrence V. Texas, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
This brief article explains why Lawrence v. Texas could be a revolutionary case if the Supreme Court follows Justice Kennedy's reasoning in the future. As in Planned Parenthood v. Casey, Justice Kennedy finds a statute to be unconstitutional, not because it infringes a right to privacy (which is mentioned but once), but because it infringes "liberty" (a word he uses at least twenty-five times). In addition, Justice Kennedy's opinion protects liberty without any finding that the liberty being restricted is a "fundamental right." Instead, having identified the conduct prohibited as liberty, he turns to the purported justification for the …