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Full-Text Articles in Legal History

On Being Old Codgers: A Conversation About A Half Century In Legal Education, Mark Tushnet, Louis Michael Seidman Jan 2019

On Being Old Codgers: A Conversation About A Half Century In Legal Education, Mark Tushnet, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

This conversation, conducted over three evenings, captures some of our thoughts about the last half century of legal education as both of us near retirement. We have edited the conversations so as to eliminate verbal stumbles and present our ideas more coherently, slightly reorganized a small part of the conversation, and added a few explanatory footnotes. However, we have attempted to keep the informal tone of our discussions.


Why Bernie Is Confused: Populist And Progressive Strands In Liberal Constitutionalism, Louis Michael Seidman Jan 2019

Why Bernie Is Confused: Populist And Progressive Strands In Liberal Constitutionalism, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Many modern liberals believe that the federal government is captured by a “billionaire party” determined to wield public power for private gain. But many of them also believe in giving the federal government greatly enhanced powers, like administering “Medicare for all.”

There is a history to this contradiction. Modern liberalism is an amalgam of older populist and progressive impulses with deep roots in the country’s past. The populist impulse locates the source of economic oppression in government corruption. The solution to this problem is direct, popular democracy. Progressives tend to locate the source of economic oppression in the malfunction ...


The Declaration Of Independence And The American Theory Of Government: “First Come Rights, And Then Comes Government”, Randy E. Barnett Jan 2019

The Declaration Of Independence And The American Theory Of Government: “First Come Rights, And Then Comes Government”, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The topic of this panel is the Declaration of Independence, to which I devoted a chapter of my recent book, Our Republican Constitution. I want to draw on that book to make five points.


Framer’S Intent: Gouverneur Morris, The Committee Of Style, And The Creation Of The Federalist Constitution, William M. Treanor Jan 2019

Framer’S Intent: Gouverneur Morris, The Committee Of Style, And The Creation Of The Federalist Constitution, William M. Treanor

Georgetown Law Faculty Publications and Other Works

At the end of the proceedings of the federal constitutional convention, the delegates appointed the Committee on Style and Arrangement to bring together the textual provisions that the convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris was assigned to draft the document for the committee, and, with few revisions and little debate, the convention subsequently adopted the Committee’s proposed constitution. For more than two hundred years, questions have been raised as to whether Morris as drafter covertly made changes in the text in order to advance his constitutional vision, but the legal ...


The Canon Wars, Anita S. Krishnakumar, Victoria Nourse Nov 2018

The Canon Wars, Anita S. Krishnakumar, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Canons are taking their turn down the academic runway in ways that no one would have foretold just a decade ago. Affection for canons of construction has taken center stage in recent Supreme Court cases and in constitutional theory. Harvard Dean John Manning and originalists Will Baude and Stephen Sachs have all suggested that principles of “ordinary interpretation” including canons should inform constitutional interpretation. Given this newfound enthusiasm for canons, and their convergence in both constitutional and statutory law, it is not surprising that we now have two competing book-length treatments of the canons—one by Justice Scalia and Bryan ...


State Action And The Constitution's Middle Band, Louis Michael Seidman Oct 2018

State Action And The Constitution's Middle Band, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.

It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there ...


The Law (?) Of The Lincoln Assassination, Martin S. Lederman Mar 2018

The Law (?) Of The Lincoln Assassination, Martin S. Lederman

Georgetown Law Faculty Publications and Other Works

Shortly after John Wilkes Booth killed Abraham Lincoln on April 14, 1865, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theater. Johnson’s decision implicated a fundamental constitutional question that was a subject of heated debate throughout the Civil War: When, if ever, may the federal government circumvent Article III’s requirements of a criminal trial by jury, with an independent, tenure-protected presiding judge, by trying individuals other than members of the armed ...


Of Spies, Saboteurs, And Enemy Accomplices: History’S Lessons For The Constitutionality Of Wartime Military Tribunals, Martin S. Lederman Mar 2017

Of Spies, Saboteurs, And Enemy Accomplices: History’S Lessons For The Constitutionality Of Wartime Military Tribunals, Martin S. Lederman

Georgetown Law Faculty Publications and Other Works

Congress has recently authorized military commissions to try enemies not only for violations of the international law of war, but also for domestic-law offenses, such as providing material support to terrorism and conspiring to commit law-of-war offenses. Moreover, President Trump has indicated support for further military trials, including trials against U.S. citizens. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution prescribes. The constitutionality of such an abrogation of Article III’s criminal trial guarantees has been debated during many of the nation’s wars without clear resolution, and the constitutional question ...


The Genius Of Hamilton And The Birth Of The Modern Theory Of The Judiciary, William M. Treanor Jan 2017

The Genius Of Hamilton And The Birth Of The Modern Theory Of The Judiciary, William M. Treanor

Georgetown Law Faculty Publications and Other Works

In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern scholars have made Madison ...


Habeas As Forum Allocation: A New Synthesis, Carlos Manuel Vázquez Jun 2016

Habeas As Forum Allocation: A New Synthesis, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The scope of habeas relief for state prisoners, especially during the decades before the Supreme Court’s 1953 decision in Brown v. Allen, is a famously disputed question – one of recognized significance for contemporary debates about the proper scope of habeas review. This Essay provides a new answer. It argues that, until the enactment of AEDPA in 1996, state prisoners were always entitled to de novo review of the legal and mixed law/fact questions decided against them by the state courts. Until 1916, such review was provided by the Supreme Court; after 1953, such review was provided by the ...


The Triumph Of Gay Marriage And The Failure Of Constitutional Law, Louis Michael Seidman Jan 2015

The Triumph Of Gay Marriage And The Failure Of Constitutional Law, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The Supreme Court's much anticipated invalidation of gay marriage bans improved the personal lives of millions of ordinary Americans. It made the country a more decent place. Even Chief Justice Roberts, at the conclusion of his otherwise scathing dissent, acknowledged that the decision was a cause for many Americans to celebrate.

But although the Chief Justice thought that advocates of gay marriage should "by all means celebrate today's decision," he admonished them "not [to] celebrate the Constitution." The Constitution, he said, "had nothing to do with it".

Part I of this article quarrels with the Chief Justice's ...


Conceptualizing Student Practice For The 21st Century: Educational And Ethical Considerations In Modernizing The District Of Columbia Student Practice Rules, Wallace J. Mlyniec, Haley D. Etchison Jan 2015

Conceptualizing Student Practice For The 21st Century: Educational And Ethical Considerations In Modernizing The District Of Columbia Student Practice Rules, Wallace J. Mlyniec, Haley D. Etchison

Georgetown Law Faculty Publications and Other Works

This article traces the history of the amendment process. It provides a short history of student practice rules and then, using the student practice rule in effect in the District of Columbia prior to the 2014 amendments, describes the various components of those rules that courts and bars across the nation have implemented to assist courts, advance legal education, and preserve advocates’ ethical obligations to clients. It then describes some of the comments to the proposed amendments offered by the District of Columbia Bar and other D.C. lawyers during the public comment period and the modifications to the District ...


Representation In Context: Party Power And Lawyer Expertise, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark Aug 2014

Representation In Context: Party Power And Lawyer Expertise, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Georgetown Law Faculty Publications and Other Works

The questions when, why, and how legal representation makes a difference for parties in civil litigation remain largely unanswered, although recent scholarship raises compelling new questions and suggests new explanations and theoretical approaches. Understanding how legal representation operates, we argue, requires an appreciation for the context in which the representation actually takes place. This article examines two previously unexplored elements of the context of legal representation through empirical and theoretical analysis: the balance of power between the parties to a dispute and the professional, specifically strategic, expertise that a legal representative contributes. The results of a study of 1,700 ...


The Difference Prevention Makes: Regulating Preventive Justice, David Cole Mar 2014

The Difference Prevention Makes: Regulating Preventive Justice, David Cole

Georgetown Law Faculty Publications and Other Works

Since the terrorist attacks of September 11, 2001, the United States and many other countries have adopted a ‘‘paradigm of prevention,’’ employing a range of measures in an attempt to prevent future terrorist attacks. This includes the use of pre textual charges for preventive detention, the expansion of criminal liability to prohibit conduct that precedes terrorism, and expansion of surveillance at home and abroad. Politicians and government officials often speak of prevention as if it is an unqualified good. Everyone wants to prevent the next terrorist attack, after all. And many preventive initiatives, especially where they are not coercive and ...


Overrides: The Super-Study, Victoria Nourse Jan 2014

Overrides: The Super-Study, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Overrides should be of interest to a far larger group of scholars than statutory interpretation enthusiasts. We have, in overrides, open inter branch encounters between Congress and the Courts far more typically found in the shadows of everyday Washington politics. Interestingly, Christiansen and Eskridge posit the court-congress relationship as more triadic than dyadic given the role played by agencies. One of their more interesting conclusions is that agencie are the big winners in the override game: agencies were present in seventy percent of the override cases and the agency view prevailed with Congress and against the Supreme Court in three-quarters ...


Elementary Statutory Interpretation: Rethinking Legislative Intent And History, Victoria Nourse Jan 2014

Elementary Statutory Interpretation: Rethinking Legislative Intent And History, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

This article argues that theorists and practitioners of statutory interpretation should rethink two very basic concepts—legislative intent and legislative history. Textualists urge that to look to legislative history is to seek an intent that does not exist. This article argues we should put this objection to bed because, even if groups do not have minds, they have the functional equivalent of intent: they plan by using internal sequential procedures allowing them to project their collective actions forward in time. What we should mean by legislative “intent” is legislative “context.” For a group, context includes how groups act—their procedures ...


The Constitution And Legislative History, Victoria Nourse Jan 2014

The Constitution And Legislative History, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In this article, the author provides an extended analysis of the constitutional claims against legislative history, arguing that, under textualists’ own preference for constitutional text, the use of legislative history should be constitutional to the extent it is supported by Congress’s rulemaking power, a constitutionally enumerated power.

This article has five parts. In part I, the author explains the importance of this question, considering the vast range of cases to which this claim of unconstitutionality could possibly apply—after all, statutory interpretation cases are the vast bulk of the work of the federal courts. She also explains why these ...


Constitutional Skepticism: A Recovery And Preliminary Evaluation, Louis Michael Seidman Jan 2014

Constitutional Skepticism: A Recovery And Preliminary Evaluation, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The aim of this article is to recover and reevaluate the American tradition of constitutional skepticism. Part I consists of a brief history of skepticism running from before the founding to the modern period. My aim here is not to provide anything like a complete description of the historical actors, texts, and events that I discuss. Instead, I link together familiar episodes and arguments that stretch across our history so as to demonstrate that they are part of a common narrative that has been crucial to our self-identity. Part II disentangles the various strands of skeptical argument. I argue that ...


Toward An Ethics Of Being Lobbied: Affirmative Obligations To Listen, Heidi Li Feldman Jan 2014

Toward An Ethics Of Being Lobbied: Affirmative Obligations To Listen, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

Lobbying in the U.S. today grows out of a historical legal and, eventually, Constitutional right to petition the government for redress of grievances. English kings, the English Parliament, and American colonial legislatures had incentives for not only recognizing the right but treating it fulsomely, as a means for communicating extensively with the widest possible range of those over whom kings, Parliament, and legislatures had or sought to have power. Because of drastic changes in circumstance, today's officials do not have this incentive. Financial and structural forces tend to narrow the range of people legislators and elected executives hear ...


J. Skelly Wright And The Limits Of Liberalism, Louis Michael Seidman Jan 2014

J. Skelly Wright And The Limits Of Liberalism, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

This essay, written for a symposium on the life and work of United States Court of Appeals Judge J. Skelly Wright, makes four points. First, Judge Wright was an important participant in the liberal legal tradition. The tradition sought to liberate law from arid formalism and to use it as a technique for progressive reform. However, legal liberals also believed that there were limits on what judges could do–-limits rooted in both its liberalism and its legalism. Second, Wright occupied a position on the left fringe of the liberal legal tradition, and he therefore devoted much of his career ...


How Nfib V. Sebelius Affects The Constitutional Gestalt, Lawrence B. Solum Jun 2013

How Nfib V. Sebelius Affects The Constitutional Gestalt, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The thesis of this essay is that the most important legal effects of the Supreme Court's decision in NFIB v. Sebelius are likely to be indirect. Sebelius marks a possible shift in what we can call the “constitutional gestalt” regarding the meaning and implications of the so-called “New Deal Settlement.” Before Sebelius, the consensus understanding was that New Deal and Warren Court cases had established a constitutional regime of plenary and virtually unlimited national legislative power under the Commerce Clause (which might be subject to narrow and limited carve outs protective of the core of state sovereignty).

After Sebelius ...


Decision Theory And Babbitt V. Sweet Home: Skepticism About Norms, Discretion, And The Virtues Of Purposivism, Victoria Nourse May 2013

Decision Theory And Babbitt V. Sweet Home: Skepticism About Norms, Discretion, And The Virtues Of Purposivism, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In this writing, the author applies a “decision theory” of statutory interpretation, elaborated recently in the Yale Law Journal, to Professor William Eskridge’s illustrative case, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. In the course of this application, she takes issue with the conventional wisdom that purposivism, as a method of statutory interpretation, is inevitably a more virtuous model of statutory interpretation. First, the author questions whether we have a clear enough jurisprudential picture both of judicial discretion and legal as opposed to political normativity. Second, she argues that, under decision theory, Sweet Home is ...


Construction And Constraint: Discussion Of Living Originalism, Lawrence B. Solum Mar 2013

Construction And Constraint: Discussion Of Living Originalism, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Jack Balkin's Living Originalism raises many important questions about contemporary constitutional theory. Can and should liberals and progressives embrace originalism? Can the New Deal expansion of national legislative power be given originalist foundations? Is there a plausible originalist case for a right to reproductive autonomy and hence for the Court's decision in Roe v. Wade? Is the fact of theoretical disagreement among originalists evidence for the thesis that the originalist project is in disarray?


A Thought Experiment, Louis Michael Seidman Jan 2013

A Thought Experiment, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Herewith, Justice Antonin Scalia's long lost dissenting opinion in Brown v. Board of Education.


State Law, The Westfall Act, And The Nature Of The Bivens Question, Carlos Manuel Vázquez, Stephen I. Vladeck Jan 2013

State Law, The Westfall Act, And The Nature Of The Bivens Question, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

In a number of recent cases touching to varying degrees on national security, different courts of appeals have applied a strong presumption against recognition of a Bivens cause of action. In each of these cases, the courts’ approach was based on the belief that the creation of a cause of action is a legislative function and that the courts would be usurping Congress’s role if they recognized a Bivens action without legislative authorization. Thus, faced with a scenario where they believed that the remedial possibilities were either "Bivens or nothing," these courts of appeals chose nothing.

The concerns that ...


Originalism And The Unwritten Constitution, Lawrence B. Solum Jan 2013

Originalism And The Unwritten Constitution, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In his book, America’s Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America’s founding documents, institutional practices, and ethos, all of which constitute Amar’s “unwritten Constitution.” In this article, the author argues that contemporary originalist constitutional theory is consistent with reliance on extraconstitutional sources in certain circumstances. He establishes a framework for revaluating the use of extratextual sources. That framework categorizes extratextual sources and explains their relevance to constitutional interpretation (the meaning of the text) and constitutional construction (elaboration of constitutional ...


Originalism And Constitutional Construction, Lawrence B. Solum Jan 2013

Originalism And Constitutional Construction, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation-construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities.

This article advances two central claims about constitutional construction. First, constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual ...


Communicative Content And Legal Content, Lawrence B. Solum Jan 2013

Communicative Content And Legal Content, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and mandates). Is the original meaning of the constitutional text binding on the Supreme Court when it develops doctrines of constitutional law? Should statutes be given their plain meaning or should judges devise statutory constructions that depart from the text to serve a purpose? What role should default rules play in the interpretation and construction of contracts? This essay makes two moves that can help lawyers ...


Chief Justices Marshall And Roberts And The Non-Self-Execution Of Treaties, Carlos Manuel Vázquez May 2012

Chief Justices Marshall And Roberts And The Non-Self-Execution Of Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article is a response to David L. Sloss, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties, 53 Harv. Int'l L L.J. 135 (2012).

David Sloss’s article, Executing Foster v. Neilson, is an important contribution to the literature on the judicial enforcement of treaties. The author agrees with much of it, as he agrees with much of Professor Sloss’ other writing on treaties. In particular, the author agrees that the two-step approach to treaty enforcement that Professor Sloss proposes is generally the right approach, and he agrees that the “intent-based” approach to the self-execution ...


A Decision Theory Of Statutory Interpretation: Legislative History By The Rules, Victoria Nourse Jan 2012

A Decision Theory Of Statutory Interpretation: Legislative History By The Rules, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

We have a law of civil procedure, criminal procedure, and administrative procedure, but we have no law of legislative procedure. This failure has serious consequences in the field of statutory interpretation. Using simple rules garnered from Congress itself, this Article argues that those rules are capable of transforming the field of statutory interpretation. Addressing canonical cases in the field, from Holy Trinity to Bock Laundry, from Weber to Public Citizen, this article shows how cases studied by vast numbers of law students are made substantially more manageable, and in some cases quite simple, through knowledge of congressional procedure. No longer ...