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A Hobbesian Bundle Of Lockean Sticks: The Property Rights Legacy Of Justice Scalia, J. Peter Byrne Jan 2017

A Hobbesian Bundle Of Lockean Sticks: The Property Rights Legacy Of Justice Scalia, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

No modern United States Supreme Court Justice has stimulated more thought and debate about the constitutional meaning of property than Antonin Scalia. This essay evaluates his efforts to change the prevailing interpretation of the Takings Clause. Scalia sought to ground it in clear rules embodying a reactionary defense of private owners’ prerogatives against environmental and land use regulation. Ultimately, Scalia aimed to authorize federal judicial oversight of state property law developments, whether through legislative or judicial innovation. In hindsight, he stands in a long tradition of conservative judges using property law as a constitutional baseline by which to restrain regulation.


A Brook With Legal Rights: The Rights Of Nature In Court, Hope M. Babcock Jan 2016

A Brook With Legal Rights: The Rights Of Nature In Court, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Over two decades ago, Professor Christopher Stone asked what turned out to be a question of enduring interest: should trees have standing? His question was recently answered in the affirmative by a creek in Pennsylvania, which successfully intervened in a lawsuit between an energy company and a local township to prevent the lifting of a ban against drilling oil and gas wastewater wells. Using that intervention, this Article examines whether such an initiative might succeed on a broader scale. The Article parses the structure, language, and punctuation of Article III, as well as various theories of nonhuman personhood to see ...


"Seg Academies," Taxes, And Judge Ginsburg, Stephen B. Cohen Jan 2015

"Seg Academies," Taxes, And Judge Ginsburg, Stephen B. Cohen

Georgetown Law Faculty Publications and Other Works

This essay recounts the historical, political, and legal context in which Judge Ginsburg’s ruling in the Wright case arose. This context explains the importance of her decision to the battle against segregated education and highlights as well the repeated efforts of powerful political forces, including the Reagan administration and congressional conservatives, to cripple efforts to prohibit racially discriminatory private schools from receiving federal subsidies through the tax system. This essay also aims to highlight Wright’s place in the modern doctrine of educational discrimination.


Two Excursions Into Current U.S. Supreme Court Opinion-Writing, Paul F. Rothstein Jan 2015

Two Excursions Into Current U.S. Supreme Court Opinion-Writing, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

In the last weeks in June, 2015, as the present term of the U.S. Supreme Court drew to a close, many controversial and important decisions were handed down by the Court. The substance of the decisions has been written about extensively. Two of the decisions in particular, though, caught my eye as a teacher of legal techniques, not for the importance of the subject of the particular decision, but for what they may illustrate in a teachable fashion about at least some opinion writing. The two cases are Ohio v. Clark (June 18, 2015) interpreting the Confrontation Clause of ...


The Abiding Exceptionalism Of Foreign Relations Doctrine, Carlos Manuel Vázquez Jan 2015

The Abiding Exceptionalism Of Foreign Relations Doctrine, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In their article The Normalization of Foreign Relations Law, Professors Ganesh Sitaraman and Ingrid Wuerth argue that “[foreign affairs] exceptionalism . . . is now exceptional,” and that this is a good thing. I agree with much of the authors’ normative argument for “normalization” of foreign affairs doctrine (as they define the term). But the authors overstate the extent to which such normalization has already occurred. There have indeed been some recent Supreme Court decisions that seem to lack the exceptional deference to the Executive that had characterized judicial decisionmaking in the foreign affairs area in previous years. But foreign affairs doctrine remains ...


The Triumph Of Gay Marriage And The Failure Of Constitutional Law, Louis Michael Seidman Jan 2015

The Triumph Of Gay Marriage And The Failure Of Constitutional Law, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The Supreme Court's much anticipated invalidation of gay marriage bans improved the personal lives of millions of ordinary Americans. It made the country a more decent place. Even Chief Justice Roberts, at the conclusion of his otherwise scathing dissent, acknowledged that the decision was a cause for many Americans to celebrate.

But although the Chief Justice thought that advocates of gay marriage should "by all means celebrate today's decision," he admonished them "not [to] celebrate the Constitution." The Constitution, he said, "had nothing to do with it".

Part I of this article quarrels with the Chief Justice's ...


Unwrapping The Box The Supreme Court Justices Have Gotten Themselves Into: Internal Confrontations Over Confronting The Confrontation Clause, Paul F. Rothstein Jan 2015

Unwrapping The Box The Supreme Court Justices Have Gotten Themselves Into: Internal Confrontations Over Confronting The Confrontation Clause, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Williams v. Illinois, handed down in 2012, is the latest in a new and revolutionary line of U.S. Supreme Court cases beginning with the 2004 decision of Crawford v. Washington which radically altered the Court's former approach to the Constitutional Confrontation Clause. That clause generally requires persons who make written or oral statements outside the trial, that may constitute evidence against a criminal defendant, to take the witness stand for cross-examination rather than those statements being presented at the trial only by the writing or by another person who heard the statement.

Previous to Crawford, under Ohio v ...


Analogical Legal Reasoning: Theory And Evidence, Joshua C. Teitelbaum Mar 2014

Analogical Legal Reasoning: Theory And Evidence, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

The paper offers a formal model of analogical legal reasoning and takes the model to data. Under the model, the outcome of a new case is a weighted average of the outcomes of prior cases. The weights capture precedential influence and depend on fact similarity (distance in fact space) and precedential authority (position in the judicial hierarchy). The empirical analysis suggests that the model is a plausible model for the time series of U.S. maritime salvage cases. Moreover, the results evince that prior cases decided by inferior courts have less influence than prior cases decided by superior courts.


J. Skelly Wright And The Limits Of Liberalism, Louis Michael Seidman Jan 2014

J. Skelly Wright And The Limits Of Liberalism, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

This essay, written for a symposium on the life and work of United States Court of Appeals Judge J. Skelly Wright, makes four points. First, Judge Wright was an important participant in the liberal legal tradition. The tradition sought to liberate law from arid formalism and to use it as a technique for progressive reform. However, legal liberals also believed that there were limits on what judges could do–-limits rooted in both its liberalism and its legalism. Second, Wright occupied a position on the left fringe of the liberal legal tradition, and he therefore devoted much of his career ...


Bond V. United States: Concurring In The Judgment, Nicholas Quinn Rosenkranz Jan 2014

Bond V. United States: Concurring In The Judgment, Nicholas Quinn Rosenkranz

Georgetown Law Faculty Publications and Other Works

Bond v. United States presented the deep constitutional question of whether a treaty can increase the legislative power of Congress. Unfortunately, a majority of the Court managed to sidestep the constitutional issue by dodgy statutory interpretation. But the other three Justices—Scalia, Thomas, and Alito—all wrote important concurrences in the judgment, grappling with the constitutional issues presented. In particular, Justice Scalia’s opinion (joined by Justice Thomas), is a masterpiece, eloquently demonstrating that Missouri v. Holland is wrong and should be overruled: a treaty cannot increase the legislative power of Congress.


Civil Rights For The Twenty-First Century: Lessons From Justice Thurgood Marshall's Race-Transcending Jurisprudence, Sheryll Cashin Jan 2013

Civil Rights For The Twenty-First Century: Lessons From Justice Thurgood Marshall's Race-Transcending Jurisprudence, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

This Essay pays tribute to justice Thurgood Marshall's race-transcending vision of universal human dignity, and explores the importance of building cross-racial alliances to modern civil rights advocacy. justice Marshall's role as a "Race Man" is evident in much of his jurisprudence, where he fought for years to promote equal opportunity and equal justice. As an advocate for all marginalized people, justice Marshall viewed equal justice as transcending race, and this Essay suggests that the multi-racial coalition that supported President Obama aligns with Marshall's vision. The Essay evaluates the civil rights movement through the lens of Justice Marshall ...


The Wages Of Crying Judicial Restraint, Randy E. Barnett Jan 2013

The Wages Of Crying Judicial Restraint, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Five Justices voted to affirm the proposition that the Constitution creates a government of limited and enumerated powers and that the courts will enforce those limits. To understand why this victory was possible, it is important to understand that there are not just two versions of federalism, pre‐New Deal and post‐New Deal. There is also a third version. The failure to recognize the third version goes a long way to explain why most of my academic colleagues predicted that the right would have no chance to prevail in our constitutional challenge to the individual insurance mandate.

The first ...


Of Law And The Revolution, Lama Abu-Odeh Jan 2013

Of Law And The Revolution, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

The Egyptian revolution is proving to be a very legal one. That is not to say that the revolution’s demands have been legalized, nor that Egypt’s law has been revolutionized, rather, the forces that have come to the fore since the toppling of Mubarak in Feb 2011 have chosen law as the privileged form through which to bargain with each other. The density of the legal back and fro has been overwhelming: constitutional amendments, constitutional supplementary declarations, parliamentary laws, legislative amendments, military decrees, court trials, constitutional court decisions overturning laws passed, conflicting decisions from various courts, presidential decrees ...


Interpretation And Construction In Altering Rules, Gregory Klass Oct 2012

Interpretation And Construction In Altering Rules, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This essay is a response to Ian Ayres's, "Regulating Opt-Out: An Economic Theory of Altering Rules," 121 Yale L.J. 2032 (2012). Ayres identifies an important question: How does the law decide when parties have opted-out of a contractual default? Unfortunately, his article tells only half of the story about such altering rules. Ayres cares about rules designed to instruct parties on how to get the terms that they want. By focusing on such rules he ignores altering rules designed instead to interpret the nonlegal meaning of the parties' acts or agreement. This limited vision is characteristic of economic ...


Check One And The Accountability Is Done: The Harmful Impact Of Straight-Ticket Voting On Judicial Elections, Meryl Chertoff, Dustin F. Robinson Jul 2012

Check One And The Accountability Is Done: The Harmful Impact Of Straight-Ticket Voting On Judicial Elections, Meryl Chertoff, Dustin F. Robinson

Georgetown Law Faculty Publications and Other Works

States that elect judges are heir to a populist tradition dating back to the Jacksonian era. In the spectrum between independence and accountability, these states emphasize accountability. Systems vary from state to state, and even within states there may be geographic diversity or different selection systems for different levels of courts. Elections can be partisan or non-partisan, contested, or, as in merit-selection states, retention. Some states have dabbled in public financing of judicial elections. Reformers are most critical of contested partisan elections. Those are the elections where the most money is spent, the nastiest ads aired, and the dignity of ...


Chief Justices Marshall And Roberts And The Non-Self-Execution Of Treaties, Carlos Manuel Vázquez May 2012

Chief Justices Marshall And Roberts And The Non-Self-Execution Of Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article is a response to David L. Sloss, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties, 53 Harv. Int'l L L.J. 135 (2012).

David Sloss’s article, Executing Foster v. Neilson, is an important contribution to the literature on the judicial enforcement of treaties. The author agrees with much of it, as he agrees with much of Professor Sloss’ other writing on treaties. In particular, the author agrees that the two-step approach to treaty enforcement that Professor Sloss proposes is generally the right approach, and he agrees that the “intent-based” approach to the self-execution ...


Law Review Scholarship In The Eyes Of The Twenty-First Century Supreme Court Justices: An Empirical Analysis, Brent Newton Jan 2012

Law Review Scholarship In The Eyes Of The Twenty-First Century Supreme Court Justices: An Empirical Analysis, Brent Newton

Georgetown Law Faculty Publications and Other Works

An analysis of the twenty-first century Justices’ citations of law review scholarship—how often they cite articles, the professional identities of authors of the cited articles, and the rankings of the law reviews in which the cited articles appear—provides an excellent prism through which to assess today’s law reviews. In addition to having had varied and rich legal careers as practitioners, policy-makers, and lower court judges, the majority of the current Justices were, at earlier points in their careers, full-time law professors. Presumably, the Justices are able to separate the wheat from the chaff in the law reviews ...


The Disdain Campaign, Randy E. Barnett Jan 2012

The Disdain Campaign, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

A response to Pamela S. Karlan, The Supreme Court 2011 Term Forward: Democracy and Disdain, 126 Harv. L. Rev. 1 (2012).

In her Foreword, Professor Pamela Karlan offers a quite remarkable critique of the conservative Justices on the Supreme Court. She faults them not so much for the doctrines they purport to follow, or outcomes they reach, but for the attitude they allegedly manifest toward Congress and the people. “My focus here is not so much on the content of the doctrine but on the character of the analysis.” She describes Chief Justice Roberts’s opinion of the Court as ...


Judicial Engagement Through The Lens Of Lee Optical, Randy E. Barnett Jan 2012

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.


Decarceration Courts: Possibilities And Perils Of A Shifting Criminal Law, Allegra M. Mcleod Jan 2012

Decarceration Courts: Possibilities And Perils Of A Shifting Criminal Law, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

A widely decried crisis confronts U.S. criminal law. Jails and prisons are overcrowded and violence plagued. Additional causes for alarm include the rate of increase of incarcerated populations, their historically and internationally unprecedented size, their racial disproportionality, and exorbitant associated costs. Although disagreement remains over the precise degree by which incarceration ought to be reduced, there is a growing consensus that some measure of decarceration is desirable.

With hopes of reducing reliance on conventional criminal supervision and incarceration, specialized criminal courts proliferated dramatically over the past two decades. There are approximately 3,000 specialized criminal courts in the United ...


Pliva V. Mensing And Its Implications, Brian Wolfman, Dena Feldman Sep 2011

Pliva V. Mensing And Its Implications, Brian Wolfman, Dena Feldman

Georgetown Law Faculty Publications and Other Works

The U.S. Supreme Court ruling in PLIVA Inc. v. Mensing will immunize generic drug manufacturers facing failure-to-warn claims from state-law liability, and may also have implications for preemption jurisprudence more generally, says attorney Brian Wolfman and co-author Dena Feldman in this BNA Insight. The authors analyze the ruling, and offer their views on the questions that PLIVA raises about the ongoing vitality of the presumption against preemption, the standard for determining ‘‘impossibility’’ preemption, and the propriety of deference to an agency’s views on preemption.


Remarks By Dean William M. Treanor, William Michael Treanor Jan 2011

Remarks By Dean William M. Treanor, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Attorney General Levy produced a list of candidates for President Ford and it seems clear he particularly highlighted then-Judge Stevens. President Ford took the list, he read some of then-Judge Stevens’s opinions which he pronounced concise, persuasive, and legally sound. He slept on his decision and the following day he nominated Justice Stevens, who was confirmed within three weeks ninety-eight to nothing. So it was a very different world, but it’s also a testament to Justice Stevens and the respect that he held in the bench and the bar at that time.

Justice Stevens’s legacy on the ...


Iowa’S 2010 Judicial Election: Appropriate Accountability Or Rampant Passion?, Roy A. Schotland Jan 2011

Iowa’S 2010 Judicial Election: Appropriate Accountability Or Rampant Passion?, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

Although 89% of state judges (appellate and general-jurisdiction trial judges) face some type of election, judicial elections are rarely thought of even by academics interested in elections. Iowa’s 2010 election, in which three Justices were defeated, is one of the most significant judicial elections ever. The Justices lost their seats because they participated in a unanimous 2009 decision upholding gay marriage. That decision stirred intense opposition among “social conservatives”, in Iowa a substantial proportion of the population and actively led by more than 100 ministers.

That active opposition was one of eight elements that created a perfect storm against ...


The Anti-Empathic Turn, Robin West Jan 2011

The Anti-Empathic Turn, Robin West

Georgetown Law Faculty Publications and Other Works

Justice, according to a broad consensus of our greatest twentieth century judges, requires a particular kind of moral judgment, and that moral judgment requires, among much else, empathy–the ability to understand not just the situation but also the perspective of litigants on warring sides of a lawsuit.

Excellent judging requires empathic excellence. Empathic understanding is, in some measure, an acquired skill as well as, in part, a natural ability. Some people do it well; some, not so well. Again, this has long been understood, and has been long argued, particularly, although not exclusively, by some of our most admired ...


Remarks By Acting Solicitor General Neal Katyal, Neal K. Katyal Jan 2011

Remarks By Acting Solicitor General Neal Katyal, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Few have served the public with greater distinction than Justice John Paul Stevens. That service began with Justice Stevens's work as a naval intelligence officer during World War II, continued through his five years of service as a judge on the Seventh Circuit, and culminated with thirty-four and a half years on the United States Supreme Court. It also included a twenty-six-day stint in September 2005, during which Justice Stevens served as the Acting Chief Justice of the United States.


Harvard And Yale Ascendant: The Legal Education Of The Justices From Holmes To Kagan, Patrick J. Glen Jan 2010

Harvard And Yale Ascendant: The Legal Education Of The Justices From Holmes To Kagan, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

With the nomination of Elena Kagan to be a justice of the United States Supreme Court, it is quite possible that eight of the nine justices will have graduated from only two law schools—Harvard and Yale. This article frames this development in the historical context of the legal education of those justices confirmed between 1902 and 2010. What this historical review makes clear is that the Ivy League dominance of the Supreme Court is a relatively recent occurrence whose beginnings can be traced to Antonin Scalia’s 1986 confirmation. Prior to that time, although Harvard and Yale were consistently ...


The Subjects Of The Constitution, Nicholas Quinn Rosenkranz Jan 2010

The Subjects Of The Constitution, Nicholas Quinn Rosenkranz

Georgetown Law Faculty Publications and Other Works

Two centuries after Marbury v. Madison, there remains a deep confusion about quite what a court is reviewing when it engages in judicial review. Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations. But strictly speaking, this is not quite right. The Constitution prohibits not objects but actions. Judicial review is the review of such actions. And actions require actors: verbs require subjects. So before judicial review focuses on verbs, let alone objects, it should begin at the beginning, with subjects. Every constitutional inquiry should begin with a basic question that has been ...


A Plea For Reality, Roy A. Schotland Jan 2009

A Plea For Reality, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

Legend has it that a long-ago Chief Justice of Texas said, “No judicial selection system is worth a damn.” This view has been all but proven by American experience; nothing else in American law matches this subject in terms of the volume of written debate and endless sweat spent working for change. The selection system for federal judges is unchanged but far from untroubled, and

the States have never used a common method . . . . [O]ne can identify almost as many different methods . . . as there are States in the Union . . . . Moreover, most States have changed the way they choose judges at ...


Against Textualism, William Michael Treanor Jan 2009

Against Textualism, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Modern textualists have assumed that careful attention to constitutional text is the key to the recovery of the Constitution's original public meaning. This article challenges that assumption by showing the importance of nontextual factors in early constitutional interpretation. The Founding generation consistently relied on structural concerns, policy, ratifiers' and drafters' intent, and broad principles of government. To exclude such nontextual factors from constitutional interpretation is to depart from original public meaning because the Founders gave these factors great weight in ascertaining meaning. Moreover, for a modern judge seeking to apply original public meaning, the threshold question is not simply ...


Celebrating Thurgood Marshall: The Prophetic Dissenter, Susan Low Bloch Jan 2009

Celebrating Thurgood Marshall: The Prophetic Dissenter, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Thurgood Marshall was born 100 years ago into a country substantially divided along color lines. Marshall could not attend the University of Maryland School of Law because he was a Negro; he had trouble locating bathrooms that were not for “whites only.” Today, by contrast, we celebrate his life and accomplishments. Broadway has a play called Thurgood devoted to him; Baltimore/Washington International Airport is now BWI Thurgood Marshall Airport; even the University of Maryland renamed its law library in his honor. How did we come this far? How far do we still have to go? This article will consider ...