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Articles 31 - 44 of 44
Full-Text Articles in Law
A Fiduciary Theory Of Judging, Ethan J. Leib, David L. Ponet, Michael Serota
A Fiduciary Theory Of Judging, Ethan J. Leib, David L. Ponet, Michael Serota
Faculty Scholarship
For centuries, legal theorists and political philosophers have unsuccessfully sought a unified theory of judging able to account for the diverse, and oftentimes conflicting, responsibilities judges possess. This paper reveals how the law governing fiduciary relationships sheds new light on this age-old pursuit, and therefore, on the very nature of the judicial office itself. The paper first explores the routinely overlooked, yet deeply embedded historical provenance of our judges-as-fiduciaries framework in American political thought and in the framing of the U.S. Constitution. It then explains why a fiduciary theory of judging offers important insights into what it means to be …
Ip Injury And The Institutions Of Patent Law, Paul Gugliuzza
Ip Injury And The Institutions Of Patent Law, Paul Gugliuzza
Faculty Scholarship
This paper reviews Creation Without Restraint: Promoting Liberty and Rivalry in Innovation, the pathbreaking book by Christina Bohannan and Herbert Hovenkamp (Oxford Univ. Press 2012). The Review begins by summarizing the book’s descriptive insights and analyzing one of its important normative proposals: the adoption of an IP injury requirement. This requirement would demand that infringement plaintiffs prove -- before obtaining damages or an injunction -- an injury to the incentive to innovate. After explaining how this requirement is easy to justify under governing law and is largely consistent with recent Supreme Court decisions in the field of patent law, the …
General Law In Federal Court, Bradford R. Clark, Anthony J. Bellia Jr.
General Law In Federal Court, Bradford R. Clark, Anthony J. Bellia Jr.
GW Law Faculty Publications & Other Works
Conventional wisdom maintains that the Supreme Court banished general law from federal courts in 1938 in Erie Railroad Co. v. Tompkins when the Court overruled Swift v. Tyson. The narrative asserts that Swift viewed the common law as a “brooding omnipresence,” and authorized federal courts to disregard state common law in favor of general common law of their own choosing. The narrative continues that Erie constrained such judicial lawmaking by banishing general law from federal courts. Contrary to this account, Swift and Erie represent compatible conceptions of federal judicial power when each decision is understood in historical context. At the …
The 'Federal Law Of Marriage': Deference, Deviation, And Doma, W. Burlette Carter
The 'Federal Law Of Marriage': Deference, Deviation, And Doma, W. Burlette Carter
GW Law Faculty Publications & Other Works
The article discusses the history of federal inroads into marriage by examining federal interventions during the nineteenth and early twentieth century, argues that, in some cases but not all, marriages' federal benefits are indeed intended to support natural procreation, argues that DOMA's underlying statutes are key to ascertaining the purposes of federal marriage benefits and burdens, distinguishes sexual orientation discrimination from race discrimination and offers a proposal for dealing with equal protection challenges to denials of marriage rights to same sex couples. The proposal, which depends upon dual standards of review, recognizes the historical denial of family rights to same …
Intellectual Seriousness And The First Amendment's Protection Of Free Speech For Students, Allen K. Rostron
Intellectual Seriousness And The First Amendment's Protection Of Free Speech For Students, Allen K. Rostron
Faculty Works
Constitutional protection of student speech has been a mixed blessing. There is still something quite inspiring about the notion that young people have worthwhile thoughts to share, and that the Constitution guarantees their right to do so. At the same time, courts have struggled to figure out what limits on student expression should be permitted, and much of the litigation has involved student speech that is disappointingly mindless. The Supreme Court’s seminal ruling in Tinker v. Des Moines Independent Community School District concerned students who wore armbands to express a serious message about an important national issue. Judges and school …
Internal Legitimacy And Europe's Piecemeal Constitution: Reflections On Van Gend At 50, Daniel H. Halberstam
Internal Legitimacy And Europe's Piecemeal Constitution: Reflections On Van Gend At 50, Daniel H. Halberstam
Book Chapters
Europe is often said to lack a proper constitution of the radical American kind. That may be so, but there is a different, more promising sense in which Europe might be following the very best of the constitutional tradition.
The Missing Due Process Argument, Jamal Greene
The Missing Due Process Argument, Jamal Greene
Faculty Scholarship
The argument that eventually persuaded five members of the Supreme Court to conclude that the individual mandate exceeded Congress’s power to regulate interstate commerce is one most observers originally considered frivolous. In that respect, it is similar to another potential argument against the mandate — that forcing someone to pay for insurance violates the liberty interests guaranteed by the Constitution’s Due Process Clause. The Commerce Clause argument was the centerpiece of the challenge to the mandate; the due process argument was not meaningfully advanced at all. This chapter suggests reasons why.
Designing Islamic Constitutions: Past Trends And Options For A Democratic Future, Clark B. Lombardi
Designing Islamic Constitutions: Past Trends And Options For A Democratic Future, Clark B. Lombardi
Articles
In recent years a growing number of countries have adopted constitutional provisions requiring that state law respect Islamic law (sharia). Muslims today are deeply divided, however, about what types of state action are consistent with sharia. Thus, the impact of a "Sharia Guarantee Clause" depends to a large degree on questions of constitutional design -- on who is given the power to interpret and apply the provision and on what procedures that they follow when making their decisions. This article explores the trends that gave rise to SGCs and provides a history of their incorporation into national constitutions. It then …
Jury Instructions As Constitutional Education, Andrew Ferguson
Jury Instructions As Constitutional Education, Andrew Ferguson
Articles in Law Reviews & Other Academic Journals
Juries are central to the constitutional structure of America. This article articulates a theory of the jury as a “constitutional teaching moment,” establishing a historical and theoretical basis for reclaiming the educative value of jury service. Its proposal is straightforward and easy to implement – use jury instructions to educate jurors about the Constitution.This article addresses the fundamental question of why, despite an unquestioned acceptance of a constitutional role of the jury, our criminal justice system does not explain this role to jurors on jury duty. The article seeks to answer the question of how we can educate jurors about …
The Jury As Constitutional Identity, Andrew Ferguson
The Jury As Constitutional Identity, Andrew Ferguson
Articles in Law Reviews & Other Academic Journals
This article seeks to reframe how citizens see jury service in America.Juries once existed at the core of American constitutional identity. At the founding of the country, jury service and voting were twin political rights, equal in stature and importance. Some founders even considered the jury more important than the right to vote as a means to ensure a robust democratic system. During the battles for racial equality (before and after the Reconstruction Amendments) and gender equality (before and after the Nineteenth Amendment), advocates explicitly linked demands for voting and jury service as symbols of political equality. Americans fought, protested, …
Political And Constitutional Obligation, Louis Michael Seidman
Political And Constitutional Obligation, Louis Michael Seidman
Georgetown Law Faculty Publications and Other Works
In his provocative, courageous, and original new book, "Against Obligation: The Multiple Sources of Authority in a Liberal Democracy," Abner Greene argues that there is “no successful general case for a presumptive (or ‘prima facie’) moral duty to obey the law.” In my own book, "On Constitutional Disobedience," I argue that there is no moral duty to obey our foundational law–the Constitution of the United States. This brief article, prepared for a symposium on the two books to be published by the Boston University Law Review, I address three issues related to these claims. First, I discuss what seem to …
Originalism And Constitutional Construction, Lawrence B. Solum
Originalism And Constitutional Construction, Lawrence B. Solum
Georgetown Law Faculty Publications and Other Works
Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation-construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities.
This article advances two central claims about constitutional construction. First, constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: …
Why Jeremy Waldron Really Agrees With Me, Louis Michael Seidman
Why Jeremy Waldron Really Agrees With Me, Louis Michael Seidman
Georgetown Law Faculty Publications and Other Works
Herewith a response to Jeremy Waldron's review of my book, On Constitutional Disobedience. I conclude that Waldron actually agrees with all of my key claims.
Constitutional Uncertainty And The Design Of Social Insurance: Reflections On The Aca Case, Michael J. Graetz, Jerry L. Mashaw
Constitutional Uncertainty And The Design Of Social Insurance: Reflections On The Aca Case, Michael J. Graetz, Jerry L. Mashaw
Faculty Scholarship
The Health Care Case is best understood as a legal attack on the means but not the goals of the health care legislation. This emphasis on means rather than ends and on state over federal powers potentially poses significant risks for the complex institutional arrangements for social insurance that now exist and may imply harmful constraints on how Congress can restructure these programs to better meet the needs of the American people in the twenty-first-century economy. Not coincidentally, the new constitutional framework announced in the ACA decision favors those who want to dismantle rather than strengthen the nation’s social insurance …