Judges Commons^™

Fears, Faith, And Facts In Environmental Law, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices.

But the news is far from good. Despite the ambitious …

Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …

Statutory Interpretation From The Outside, Kevin Tobia, Brian G. Slocum, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

How should judges decide which linguistic canons to apply in inter­preting statutes? One important answer looks to the inside of the legisla­tive process: Follow the canons that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the canons that guide an ordinary person’s understanding of the legal text. We offer a novel framework for empirically testing linguistic canons “from the outside,” recruiting 4,500 people from the United States and a sample of law students to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. The empirical findings provide evidence about which traditional …

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 …

Reconstructing The Rule Of Law, Robin West

Georgetown Law Faculty Publications and Other Works

The action taken in Bush v. Gore by the five conservative Justices on the United States Supreme Court, Bugliosi argued, was not just wrong as a matter of law, but criminal: It was a malem in se, fully intended, premeditated theft of a national election for the Presidency of the United States. Now, as Balkan and Levinson would argue, this seventh, "prosecutorial" response -- that the Court's action was not just wrong but criminal -- is also not available to a devotee of either radical or moderate indeterminacy. Even assuming both criminal intent and severe harm-a wrongful, specific intent to …

Imagining Justice, Robin West

Georgetown Law Faculty Publications and Other Works

As we approach the new century and the new millennium, those of us who are legal professionals in liberal capitalist democracies need to drastically improve our practices of law if we are to bring those practices in line with our professed ideals. The commodification and marketing of legal services, for example, combined with a nearly blind commitment to overly combative advocacy, puts legal assistance beyond the means of large segments of the public, severely undercutting our commitment to equality before the law. A different and perhaps harder question, however, is whether the ideals against which we judge our practices are …

Toward Humanistic Theories Of Legal Justice, Robin West

Georgetown Law Faculty Publications and Other Works

In an oft-quoted aside, Justice Holmes once remarked that when lawyers in his courtroom make appeal to justice, he stops listening: such appeals do nothing but signal that the lawyer has neither the facts nor law on his side, or worse, that he is ignorant of whatever law might be relevant.' Holmes's remark has not gone unheeded. Holmes's legacy, in part, is precisely this lapse: we don't have, or teach, a guiding theory of legal justice, nor do we have, or teach, a family of competing theories of legal justice, that might inform our work in law, at least as …

Integrity And Universality: A Comment On Dworkin's Freedom's Law, Robin West

Georgetown Law Faculty Publications and Other Works

Ronald Dworkin has done more than any other constitutional lawyer, past or present, to impress upon us the importance of integrity to constitutional law, and hence to our shared public life. Far from being merely a private virtue, Dworkin has shown that integrity imposes constraints upon and provides guidance to the work of judges in constitutional cases: Every constitutional case that comes before a court must be decided by recourse to the same moral principles that have dictated results in relevant similar cases in the past. Any group or individual challenging the constitutionality of legislation which adversely affects his or …