Jurisprudence Commons^™

Toward The Study Of The Legislated Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

Law schools, both innovative and traditional, cutting edge and hidebound, demand and therefore teach tolerance, civil respect for those whose views and dreams differ from our own, a commitment to the equal dignity of all persons, an awareness of the individuality of each of us, and the challenges that those differences and that equality pose to the generalizing impulse in law. Likewise, law schools, virtually everywhere, convey or should convey a sensitivity to bare or naked human vulnerability, mortality, weakness, and need, and therefore a sense in students of the moral need of all of us for law’s protection, as …

The Roberts Court Vs. Free Speech, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

“To Remand, Or Not To Remand”: Ventura’S Ordinary Remand Rule And The Evolving Jurisprudence Of Futility, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

It is a foundational principle of administrative law that a reviewing court should not dispose of a petition for review or appeal on grounds not relied upon by the agency, and should not reach issues in the first instance not addressed administratively. In such circumstances, there is a strong presumption that the reviewing court should remand the case to the agency for further proceedings rather than reach out to decide the disputed issues. The United States Supreme Court explicitly extended operation of the “ordinary remand rule” to the immigration context in its 2002 decision in INS v. Ventura. Notwithstanding subsequent …

The Unity Of Interpretation, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

What is interpretation? One can imagine a range of answers to this question. One answer might begin with the observation that the English word “interpretation” is used to refer to a variety of human activities. Translators at the United Nations interpret remarks made in French when they offer an English translation. Literary critics interpret novels when they investigate the deep and sometimes unconscious motivations of the author. Conductors interpret a score when they make decisions about meter, tempo, and dynamic range. Actors interpret a screenplay when they improvise new lines based on their understanding of the characters. Judges interpret statutes …

Disparate Impact, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

There has been a lot of talk about post-racialism since the 2008 election of Barack Obama as the first black President of the United States. Some have argued that the Obama election illustrates the evolution of the United States from its unfortunate racist past to a more admirable post-racial present in which the problem of invidious racial discrimination has largely been overcome. Others have argued that the Obama election illustrates only that an extraordinarily gifted, mixed-race, multiple Ivy League graduate, Harvard Law Review President was able to overcome the persistent discriminatory racial practices that continue to disadvantage the bulk of …

Ronald Dworkin’S Justice For Hedgehogs And Partnership Conception Of Democracy (With A Comment To Jeremy Waldron’S 'A Majority In The Lifeboat'), Imer Flores

Georgetown Law Faculty Publications and Other Works

In this article the author focuses mainly in the last part of Ronald Dworkin´s Justice for Hedgehogs and in his argument for a partnership conception of democracy. For that purpose, first, he recalls some of the main features that Dworkin had advanced in previous but intrinsically related works, about political morality, equality and democracy; second, he reassess the arguments for a partnership conception of democracy; third, he reconsiders the resistance produced by Jeremy Waldron in his “A Majority in the Lifeboat” and the response provided by Dworkin, but since it may appear insufficient, he intends to present an alternative—or complementary—riposte …

Rights, Harms, And Duties: A Response To Justice For Hedgehogs, Robin West

Georgetown Law Faculty Publications and Other Works

The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his book--albeit briefly--so as to integrate them into his hedgehoggian program. The first is that we should think of rights as political trumps, such that the individual liberty protected by the right, and hence the behavior protected by the right, trumps in importance and in effect, both in law and in popular imaginings, the various collective goals with which the right might be in conflict. Second, we should think about our collective life, and the principles that should guide it, through the lens of the rights of …

The Stories We Tell, And Have Told, About Tribal Sovereignty: Legal Fictions At Their Most Pernicious, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Starting with Chief Justice John Marshall and continuing through to the present Supreme Court, the story of Indian sovereignty has been consistent—it exists only in the most diminished form. Some reasons for this have been premised on the incapacity of Indians to self-govern; others on theories of federalism; while still others on the ambitions of non-Indians. However, the factual premises behind the concept of diminished sovereignty are baseless—legal fictions about the conquest of Indians and their nature. These fictions originated in Chief Justice Marshall’s Indian Law Trilogy and should have vanished long ago when their original purposes were fulfilled, like …

Roscoe Pound, Melvin Belli, And The Personal-Injury Bar: The Tale Of An Odd Coupling, Joseph A. Page

Georgetown Law Faculty Publications and Other Works

In the fourth chapter of Patriots and Cosmopolitans: Hidden Histories of American Law, legal historian John Fabian Witt tells the story of a collaboration between storied scholar Roscoe Pound and trial virtuoso Melvin M. Belli, which he calls "among the most startling and yet unremarked-upon relationships in the annals of American law." Witt argues that it both shaped and energized the efforts of personal-injury lawyers to oppose proposals that would shift to the administrative branch of government responsibility for compensating auto-accident victims. Entitled "The King and the Dean," in reference to the media's coronation of Belli as the "King of …

Comments On Roger Cotterrell's Essay, 'The Struggle For Law: Some Dilemmas Of Cultural Legality', Robin West

Georgetown Law Faculty Publications and Other Works

First, many thanks to Carrie Menkel-Meadow, the editors of The International Journal of Law In Context and the sponsors of this series for facilitating this lecture, and for inviting my participation. And a special thank you to Professor Roger Cotterrell for sharing with us such a generous, humanistic and hopeful account of law’s moral possibilities, when faced with multicultural conflict within a society governed by a liberal rule of law. I very much appreciate the opportunity to reflect on this set of claims, although I feel somewhat an outsider to the task, as I’ll explain below. I understand Professor Cotterrell …

The Problem With Particularized Injury: The Disjuncture Between Broad-Based Environmental Harm And Standing Jurisprudence, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Several recent events harmonically converged into the topic for this article. The first was a posting on Georgetown Law’s environmental law professors’ listserv by Professor John Bonine, which raised a number of questions about whether and how standing doctrine might be rethought in light of the Supreme Court’s opinion in Massachusetts v. EPA. That opinion relaxed the states’ standing burden because of the unique sovereign interests, finding that federalism bargaining earned states “special solicitude” when it came to meeting the Court’s standing requirements.

The second was a complaint filed by a consortium of regional environmental organizations, Chesapeake Bay Foundation, …

District Of Columbia V. Heller And Originalism, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

On June 26, 2008, the United States Supreme Court handed down its 5-4 decision in District of Columbia v. Heller, striking a District of Columbia statute that prohibits the possession of useable handguns in the home on the ground that it violated the Second Amendment to the United States Constitution. Justice Scalia's majority opinion drew dissents from Justice Stevens and Justice Breyer. Collectively, the opinions in Heller represent the most important and extensive debate on the role of original meaning in constitutional interpretation among the members of the contemporary Supreme Court.

This article investigates the relationship between originalist constitutional …

The Missing Jurisprudence Of The Legislated Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

Does the fourteenth Amendment and its Equal Protection Clause — the promise that "no state shall deny equal protection of the laws" — have any relevance to the progressive project of reducing economic inequality in various spheres of life or, more modestly, of ameliorating the multiple vulnerabilities of this country's poor people? The short answer, I believe, is, it depends. It will depend, in 2020, just as it depends now, on what we mean by the Constitution we are expounding: the Constitution as read and interpreted by courts — the adjudicated Constitution — or what I propose to call the …

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 …

Process Theory, Majoritarianism, And The Original Understanding, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

In Radicals in Robes, Cass Sunstein posits that there are four primary approaches to constitutional interpretation: perfectionism, majoritarianism, minimalism, and fundamentalism.' The purpose of his eloquent and compelling book is twofold: Sunstein argues for minimalism, an approach that he contends makes most sense for America today; and with even greater force, Sunstein argues against fundamentalism, which he finds "wrong, dangerous, radical, and occasionally hypocritical."' The "Radicals in Robes" who are the targets of Sunstein's book are judges who embrace fundamentalism, which, in his view, embodies "the views of the extreme wing of [the] Republican Party."'

In Securing Constitutional Democracy: The …

Natural Justice, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Justice is a natural virtue. Well-functioning humans are just, as are well-ordered human societies. Roughly, this means that in a well-ordered society, just humans internalize the laws and social norms (the nomoi)--they internalize lawfulness as a disposition that guides the way they relate to other humans. In societies that are mostly well-ordered, with isolated zones of substantial dysfunction, the nomoi are limited to those norms that are not clearly inconsistent with the function of law--to create the conditions for human flourishing. In a radically dysfunctional society, humans are thrown back on their own resources--doing the best they can in …

Desperately Seeking A Moralist, Robin West

Georgetown Law Faculty Publications and Other Works

In a recent issue of “Unbound”, Janet Halley reviews my book “Caring for Justice”, criticizing it for exhibiting a broad range of the problems she sees in all forms of "identitarian" legal writing, and therefore worthy of detailed critique. Halley begins her review by listing the representative missteps she finds in both my book and in identitarian politics generally, including, although certainly not limited to, an identification of the site of the subordinated group's injuries-for women, reproduction and sexuality with the site of its ethical lives and insights; a tendency to differentiate and present the interests of subordinate and dominant …

Someplace Between Philosophy And Economics: Legitimacy And Good Corporate Lawyering, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

This essay deals with the demands of responsible lawyering when one's client is a corporate or other business entity. I suspect that to most business clients, many of the laws they encounter are mundane and, worse, suspicious in their origins. We would be naive to think that laws always do more good than harm, or even that they are intended to do so. Too often, law in economic and commercial settings is the product of special interest haggling, political grandstanding, or bureaucratic sloth. In its totality, the bulk of commercial and regulatory law probably is mediocre at best. If this …

The Measure Of A Justice: Justice Scalia And The Faltering Of The Property Rights Movement Within The U.S. Supreme Court, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

The purpose of this Article is to take the measure of Justice Scalia's ability to produce significant opinions for the Court, rather than just for himself, by focusing on the Court's property rights cases during the past several decades. Much of the analysis will rely on the Blackmun Papers, because they provide a virtual treasure trove of information revealing the Court's deliberative process while Blackmun was on the Court from 1971 to 1994. Almost all of this information, including Justice Blackmun's handwritten notes on what each Justice said at the Court's private deliberations and initial voting on the cases at …

The "Constitution Restoration Act" And Judicial Independence: Some Observations, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Essay uses the proposed Constitution Restoration Act of 2005 as the vehicle for exploring some aspects of contemporary concerns about judicial independence and the mechanisms available to control what might be perceived as abuses of judicial authority . . . I doubt that the Act has a serious chance of enactment, but its introduction provides an opportunity to examine some difficulties associated with congressional control of judicial decision-making. I begin by treating the Constitution Restoration Act as a real statute, asking what its substantive terms mean. I argue that there is substantial tension between what the Act says and …

Weak-Form Judicial Review And "Core" Civil Liberties, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

In this Essay, I want to unearth some subordinated strands in the Rehnquist Court's free speech jurisprudence. For example, the Rehnquist Court allowed Congress to regulate campaign finance in ways subject to credible First Amendment objections, and to impose obligations on cable television systems that would almost certainly be unconstitutional were they imposed on newspapers. These decisions, I suggest, do not rest simply on the kind of deference to legislative judgment that fits comfortably into a system of strong-form review. Rather, they represent what I call a managerial model of the First Amendment, which accords legislatures a large role in …

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 …

Public Legal Reason, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay develops an ideal of public legal reason--a normative theory of legal reasons that is appropriate for a society characterized by religious and moral pluralism. One of the implications of this theory is that normative theorizing about public and private law should eschew reliance on the deep premises of deontology or consequentialism and should instead rely on what the author calls public values--values that can be affirmed without relying on the deep and controversial premises of particular comprehensive moral doctrines.

The ideal of public legal reason is then applied to a particular question--whether welfarism (a particular form of normative …

Introduction: The Jurisprudence Of Justice Stevens Symposium, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Fordham Law School opened its doors on September 28, 1905, a school with ten students and six faculty members. That day marked a great beginning, and on September 28, 2005, we began a year-long celebration of Fordham Law's history and the law school community's remarkable achievements over 100 years. The heart of any great academic institution is, of course, academics, and, as part of the centennial celebration, we are hosting an extraordinary series of conferences. This issue of the Fordham Law Review presents the papers produced by the first of the year's conferences, the Symposium on the jurisprudence of Justice …

The Supreme Court In Bondage: Constitutional Stare Decisis, Legal Formalism, And The Future Of Unenumerated Rights, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay advances a formalist conception of constitutional stare decisis. The author argues that instrumentalist accounts of precedent are inherently unsatisfying and that the Supreme Court should abandon adherence to the doctrine that it is free to overrule its own prior decisions. These moves are embedded in a larger theoretical framework--a revival of formalist ideas in legal theory that he calls "neoformalism" to distinguish his view from the so-called "formalism" caricatured by the legal realists (and from some other views that are called "formalist").

In Part II, The Critique of Unenumerated Constitutional Rights, the author sets the stage by …

Pluralism And Public Legal Reason, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

What role does and should religion play in the legal sphere of a modern liberal democracy? Does religion threaten to create divisions that would undermine the stability of the constitutional order? Or is religious disagreement itself a force that works to create consensus on some of the core commitments of constitutionalism--liberty of conscience, toleration, limited government, and the rule of law? This essay explores these questions from the perspectives of contemporary political philosophy and constitutional theory. The thesis of the essay is that pluralism--the diversity of religious and secular conceptions of the good--can and should work as a force for …

"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. …

The Lawless Adjudicator, Robin West

Georgetown Law Faculty Publications and Other Works

First, on the "lawless adjudicator." The question I want to pose is this: Why is it so hard for the legal academy - and the legal profession - to come to grips with the bare logic of the charge, much less the case, that Vere acted lawlessly, and therefore criminally, and indeed murderously, when he willfully distorted the governing law, so as to execute Billy? Why has this quite specific legal claim not received more of a hearing? Is it because Weisberg was not sufficiently considerate in his communication of this idea? On first blush that seems implausible: It is …

Constitutionalization, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Students of constitutional law tend to suspect pretty early on that the Constitution simply means whatever the Supreme Court says that it means. Rather than fight that intuition, I think it is best to treat the student insight as one of the basic starting assumptions when teaching a course in Constitutional Law. The goal then becomes to help students figure out how best to maneuver and feel comfortable in a legal universe where the Constitution has only contingent meaning.

What the Supreme Court does when it clothes its political policy preferences in the garb of constitutional law can be described …

Neutralizing Grutter, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Part I of this article argues that the Supreme Court lacks the institutional competence to formulate racial policy for the nation, and highlights the tension that exists between the Court's abstract preference for race neutrality and the concrete reality of contemporary race relations, in which dedicated efforts to promote racial balance offer the only meaningful hope of eliminating systemic discrimination. Part II discusses moderate strategies that can be used to deflect the impact of Grutter’s prohibition on racial balance, suggesting that racial balancing can be restructured in ways that the Supreme Court may view as constitutional. Part III discusses …