Legal History Commons^™

A Call To Combine Rhetorical Theory And Practice In The Legal Writing Classroom, Kristen Konrad Robbins-Tiscione

Georgetown Law Faculty Publications and Other Works

The theory and practice of law have been separated in legal education to their detriment since the turn of the twentieth century. As history teaches us and even the 2007 Carnegie Report perhaps suggests, teaching practice without theory is as inadequate as teaching theory without practice. Just as law students should learn how to draft a simple contract from taking Contracts, they should learn the theory of persuasion from taking a legal writing course. In an economy where law apprenticeship has reverted from employer to educator, legal writing courses should do more than teach analysis, conventional documents, and the social …

Carl Schmitt And The Critique Of Lawfare, David Luban

Georgetown Law Faculty Publications and Other Works

“Lawfare” is the use of law as a weapon of war against a military adversary. Lawfare critics complain that self-proclaimed “humanitarians” are really engaged in the partisan and political abuse of law—lawfare. This paper turns the mirror on lawfare critics themselves, and argues that the critique of lawfare is no less abusive and political than the alleged lawfare it attacks. Radical lawfare critics view humanitarian law with suspicion, as nothing more than an instrument used by weak adversaries against strong military powers. Casting suspicion on humanitarian law by attacking the motives of humanitarian lawyers, they undermine disinterested argument, and ultimately …

Law's Visual Afterlife: Violence, Popular Culture, And Translation Theory, Naomi Mezey

Georgetown Law Faculty Publications and Other Works

In Walter Benjamin’s essay, “The Task of the Translator,” Benjamin argues that translations enable a work’s afterlife. Afterlife is not what happens after death but what allows a work (or event or idea) to go on living and to evolve over time and place and iteration. In its afterlife, the original is transformed and renewed. In this piece I explore film’s visual translation of law and the role film plays in law’s afterlife. Film translates law not by translating from one language to another, but by translating between media and discourses. The cultural-critical lens of translation highlights the discursive similarities …

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 judges …

Misunderstanding Congress: Statutory Interpretation, The Supermajoritarian Difficulty, And The Separation Of Powers, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Every lawyer's theory of statutory interpretation carries with it an idea of Congress, and every idea of Congress, in turn, carries with it an idea of the separation of powers. In this article, the author critiques three dominant academic theories of statutory interpretation--textualism, purposivism, and game theory--for their assumptions about Congress and the separation of powers. She argues that each academic theory fails to account for Congress's dominant institutional features: "the electoral connection," the "supermajoritarian difficulty," and the "principle of structure-induced ambiguity." This critique yields surprising conclusions, rejecting both standard liberal and conservative views on statutory interpretation.

"Plain" meaning, it …

The Limits Of Process, Robin West

Georgetown Law Faculty Publications and Other Works

This article presents four major objections to Jeremy Waldron’s claim that for “Rule of Law” to exist it we must move beyond basic formal requirements that laws be general and knowable rules we can all comply with, towards substantive requirements that when the law imposes its censorial and punitive will upon us, it is applied in a way that acknowledges our intelligence and respects our individual dignity. After challenging Waldron’s claim, the author suggests that if Rule of Law theorizing is intended to capture our ideals of law, then the three paradigms of Rule of Law scholarship that Waldron has …

Informal Law-Making In England By The Twelve Judges In The Late 18th And Early 19th Centuries, James Oldham

Georgetown Law Faculty Publications and Other Works

In 1848, Parliament created the Court for Crown Cases Reserved, in which all of the common law judges heard and decided questions reserved by trial judges in criminal cases. As Sir John Baker explains, this was “a court of record, which would now sit in public and give reasons for its decisions,” even though “the reservation of cases was still at the discretion of the trial judge and the court did not have the powers of the court en banc in civil cases.” The Court for Crown Cases Reserved formalized an off-the-record procedure that had been followed for centuries. When …

What Is Originalism? The Evolution Of Contemporary Originalist Theory, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Debates over “originalism” have been a central focus of contemporary constitutional theory for three decades. One of the features of this debate has been disagreement about what “originalism” is. More worrisome is the possibility that the arguments between contemporary originalists and their opponents, the “living constitutionalists”, are confused–-with each side of the debate making erroneous assumptions about the content of their opponent’s theories.

The aim of this chapter is to clarify these debates by providing a history of contemporary originalism and then developing an account of the core or focal content of originalist theory. The history reveals that contemporary originalist …