Legal History Commons^™

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

All Faculty Scholarship

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …

Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee

All Faculty Scholarship

Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …

The Promises Of Freedom: The Contemporary Relevance Of The Thirteenth Amendment, William M. Carter Jr.

Articles

This article, an expanded version of the author's remarks at the 2013 Honorable Clifford Scott Green Lecture at the Temple University Beasley School of Law, illuminates the history and the context of the Thirteenth Amendment. This article contends that the full scope of the Thirteenth Amendment has yet to be realized and offers reflections on why it remains an underenforced constitutional norm. Finally, this article demonstrates the relevance of the Thirteenth Amendment to addressing contemporary forms of racial inequality and subordination.

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 …

The Effect Of Legal Theories On Judicial Decisions, Anthony D'Amato

Faculty Working Papers

I draw a distinction in the beginning of this essay between judicial decision-making and a judge's decision-making. To persuade a judge, we should try to discover what her theories are. Across a range of theories, I offered well-known case examples typically cited as examples of each theory. Then I showed that the exact same theory used to justify or explain those case results could be used to justify or explain the opposite result in each of those cases.

Legal Realism Explains Nothing, Anthony D'Amato

Faculty Working Papers

I argue that American legal realism as derived from Oliver Wendell Holmes's prediction theory of law was misinterpreted, and that a deeper examination of law-as-prediction might help to reduce the pathology of judicial lawmaking that has been the unfortunate consequence of legal realism.

The Speluncean Explorers--Further Proceedings, Anthony D'Amato

Faculty Working Papers

Lon L. Fuller's The Case of the Speluncean Explorers is a classic in jurisprudence. The case presents five judicial opinions which clash with each other and produce for the reader an exhilarating excursion into fundamental theories of law and the state and the role of courts vis-i-vis legislatures and executives. Though the issues articulated by Fuller are timeless, the past thirty years in jurisprudential scholarship have produced at least one major new vantage point—the "rights thesis".

The Tenuous Case For Conscience, Steven D. Smith

University of San Diego Public Law and Legal Theory Research Paper Series

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …

Montesquieu's Mistakes And The True Meaning Of Separation, Laurence Claus

University of San Diego Public Law and Legal Theory Research Paper Series

“The political liberty of the subject,” said Montesquieu, “is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man needs not be afraid of another.” The liberty of which Montesquieu spoke is directly promoted by apportioning power among political actors in a way that minimizes opportunities for those actors to determine conclusively the reach of their own powers. Montesquieu’s constitution of liberty is the constitution that most plausibly establishes the rule of law. Montesquieu concluded that this constitution could …

Politicizing The Crime Against Humanity: The French Example, Vivian Grosswald Curran

Articles

The advantages of world adherence to universally acceptable standards of law and fundamental rights seemed apparent after the Second World War, as they had after the First. Their appeal seems ever greater and their advocates ever more persuasive today. The history of law provides evidence that caution may be in order, however, and that the human propensity to ignore what transpires under the surface of law threatens to dull and silence the ongoing self-examination and self-criticism required in perpetuity by the law if it is to be correlated with justice.

This Essay presents one side, the dark side, of the …

Jurisprudence And Gender, Robin West

Georgetown Law Faculty Publications and Other Works

What is a human being? Legal theorists must, perforce, answer this question: jurisprudence, after all, is about human beings. The task has not proven to be divisive. In fact, virtually all modern American legal theorists, like most modern moral and political philosophers, either explicitly or implicitly embrace what I will call the "separation thesis" about what it means to be a human being: a "human being," whatever else he is, is physically separate from all other human beings. I am one human being and you are another, and that distinction between you and me is central to the meaning of …

The Moral Dilemma Of Positivism, Anthony D'Amato

Faculty Working Papers

I think there has been an advance in positivist thinking, and that advance consists of the recognition by MacCormick, a positivist, that positivism needs to be justified morally (and not just as an apparent scientific and objective fact about legal systems). But the justification that is required cannot consist in labelling "sovereignty of conscience" as a moral principle, nor in compounding the confusion by claiming that positivism minimally and hence necessarily promotes sovereignty of conscience. We need, from the positivists, a more logical and coherent argument than that. Until one comes along, I continue to believe that positivists inherently have …

Evolutionary Models In Jurisprudence, Herbert J. Hovenkamp

All Faculty Scholarship

Few ideas in intellectual history have been so captivating that they have overflowed the discipline from which they came and spilled over into everything else. The theory of evolution is unquestionably one of these. Evolution was an idea so powerful that it seemed obvious when Charles Darwin offered it. After all, there were prominent evolutionists a century before Darwin. Charles Darwin merely presented a model that made the theory plausible. It was a model, though, that infected everything, and one that appeared to answer every question worth asking, no matter what the subject. The model had the potential to lead …