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Full-Text Articles in Jurisprudence
The Roberts Court Vs. Free Speech, David Cole
The Roberts Court Vs. Free Speech, David Cole
Georgetown Law Faculty Publications and Other Works
No abstract provided.
Climate Change In The Supreme Court, Lisa Heinzerling
Climate Change In The Supreme Court, Lisa Heinzerling
Georgetown Law Faculty Publications and Other Works
In Massachusetts v. Environmental Protection Agency, the Supreme Court confronted the issue of climate change for the first time. The Court held that the Clean Air Act gives the Environmental Protection Agency the authority to regulate greenhouse gases and that the agency may not decline to exercise this authority based either on factors not present in the statute or inconclusive gestures toward uncertainty in the science of climate change. I had the privilege of serving as the lead author of the winning briefs in this case. This Article provides an insider's perspective on the choices that went into bringing and …
Constitutional Culture Or Ordinary Politics: A Reply To Reva Siegel, Robin West
Constitutional Culture Or Ordinary Politics: A Reply To Reva Siegel, Robin West
Georgetown Law Faculty Publications and Other Works
Reva Siegel's lecture, ‘Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de Facto ERA,’ explores the interaction between the courts and social movements in creating constitutional meaning. In the primary part of this response I focus my comments on Siegel's three major contributions: First, the historical explanation of the source of the Court's authority in the development of the so-called de facto ERA; second, the articulation of a general, jurisprudential thesis regarding social contestation as a source of constitutional authority apart from text, history, and principle; and third, the quasi-sociological descriptive account of the form social …
"Meet The New Boss": The New Judicial Center, Mark V. Tushnet
"Meet The New Boss": The New Judicial Center, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
A document entitled ‘Guidelines on Constitutional Litigation’ published in 1988 by the Reagan era Department of Justice is the springboard for Professor Tushnet's discussion of the Supreme Court's "new center. " The Guidelines urged Department of Justice litigators to foster a nearly exclusive reliance on original understanding in constitutional interpretation and to resort to legislative history only as a last resort. The Guidelines also advised Department of Justice litigators to seek substantive legal changes including more restrictive standing requirements, an end to the creation of unenumerated individual rights, greater constitutional protection of property rights, and greater limits on congressional power. …
Pragmatism And Judgment: A Comment On Lund, Mark V. Tushnet
Pragmatism And Judgment: A Comment On Lund, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
Nelson Lund's article is entitled The Rehnquist Court's Pragmatic Approach to Civil Rights.' I raise three questions about his analysis, two of which take off from the phrasing of his title. First, calling the present Court the Rehnquist Court is obviously easy, and I do it myself in the subtitle of my forthcoming book. Professor Lund has of course taken his charge from the conveners of this Symposium, and I do not mean to criticize him for doing so. Still, it may be worth pointing out that convening a symposium that encourages people to think in terms of "the Rehnquist …
Environmental Law And The Supreme Court: Three Years Later, Richard J. Lazarus
Environmental Law And The Supreme Court: Three Years Later, Richard J. Lazarus
Georgetown Law Faculty Publications and Other Works
In my Garrison Lecture three years ago, I surveyed the environmental law decisions of the Supreme Court between 1970 and 1999. I commented on which Justices had been more or less influential in shaping the Court's decisions and, even more provocatively (if not foolishly), sought to "score" the individual Justices on their responsiveness to environmental protection concerns based on their votes cast in a subset of those cases. The broader thesis of the lecture, however, was that there is something distinctively "environmental" about environmental law and that the Court's increasing inability to appreciate that dimension was leading to more poorly-reasoned …
"Shut Up He Explained", Mark V. Tushnet
"Shut Up He Explained", Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
Part I of this Commentary examines the conversational model of politics. I argue that the virtues Bennett finds in the conversational model exist only when, and to the extent that, participants in civil and political society can engage in undominated conversation. The requirement that conversation be undominated generates a substantial set of social prerequisites, mostly dealing with equality. And yet, determining what social arrangements actually satisfy those prerequisites is itself a matter of constitutional controversy. Resolving such controversies through politics is no solution, because the political arena is where we seek to ensure that nondomination prevails in civil society, and, …
Counting Votes And Discounting Holdings In The Supreme Court's Takings Cases, Richard J. Lazarus
Counting Votes And Discounting Holdings In The Supreme Court's Takings Cases, Richard J. Lazarus
Georgetown Law Faculty Publications and Other Works
This Essay focuses on a dimension of the regulatory takings issue that has received relatively little attention in what is otherwise a vast amount of literature on the topic: Why the Court is so persistently splintered and its precedent so seemingly schizophrenic. Most academic discussion has focused on the sheer difficulty of reconciling the public's firmly held conception of sacrosanct private property rights with the public's increasing demand for restrictions on the exercise of those same rights when they affect others adversely. This Essay's thesis is that reasons for this phenomenon exist beyond those that have dominated the ongoing academic …