Legal History Commons^™

Angela Harris: The Person, The Teacher, The Scholar, Rachel F. Moran

Faculty Scholarship

Angela Harris has written eloquently about the creative tensions that define her as a person, a teacher, and a scholar. She has explored the challenges of maintaining a private identity when called upon to share her life experience with a public audience, whether in the classroom, at a conference, or in an essay. She has reflected on the ways in which legal teaching privileges reason over emotion, wondering whether this dynamic impoverishes the exchange of ideas and undervalues the joy that can motivate a caring advocate. And, she has explored the dialectic between identity politics and the structural forces that …

A Revolution At War With Itself? Preserving Employment Preferences From Weber To Ricci, Sophia Z. Lee

All Faculty Scholarship

Two aspects of the constitutional transformation Bruce Ackerman describes in The Civil Rights Revolution were on a collision course, one whose trajectory has implications for Ackerman’s account and for his broader theory of constitutional change. Ackerman makes a compelling case that what he terms “reverse state action” (the targeting of private actors) and “government by numbers” (the use of statistics to identify and remedy violations of civil rights laws) defined the civil rights revolution. Together they “requir[ed] private actors, as well as state officials, to . . . realize the principles of constitutional equality” and allowed the federal government to …

Beyond Backlash: Legal History, Polarization, And Roe V. Wade, Mary Ziegler

Scholarly Publications

On its fortieth anniversary, Roe v. Wade serves as the most prominent example of the damage judicial review can do to the larger society. Scholars from across the ideological spectrum have related how Roe helped to entrench the ideological positions held by those on either side of the abortion issue, precluding any form of productive compromise. This criticism, which the Article calls the “beyond backlash” argument, has profound legal consequences, serving as both a justification for overruling Roe and as a case study of the benefits of varying interpretive methods.

This Article reevaluates the beyond backlash claim through a careful …

Some Reflections On The Past, Present And State-Dependent Future Of Lotteries In American Gaming Law, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Law And Artifice In Blackstone's Commentaries, Jessie Allen

Articles

William Blackstone is often identified as a natural law thinker for whom property rights were preeminent, but reading the Commentaries complicates that description. I propose that Blackstone’s concept of law is more concerned with human invention and artifice than with human nature. At the start of his treatise, Blackstone identifies security, liberty and property as “absolute” rights that form the foundation of English law. But while security and liberty are “inherent by nature in every individual” and “strictly natural,” Blackstone is only willing to say that “private property is probably founded in nature.” Moreover, Blackstone is clear that there is …

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 …

Treaty Termination As Foreign Affairs Exceptionalism, Jean Galbraith

All Faculty Scholarship

No abstract provided.

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

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 from. In …

Soft Law As Foreign Relations Law, Jean Galbraith, David Zaring

All Faculty Scholarship

The United States increasingly relies on “soft law” and, in particular, on cooperation with foreign regulators to make domestic policy. The implementation of soft law at home is typically understood to depend on administrative law, as it is American agencies that implement the deals they conclude with their foreign counterparts. But that understanding has led courts and scholars to raise questions about whether soft law made abroad can possibly meet the doctrinal requirements of the domestic discipline. This Article proposes a new doctrinal understanding of soft law implementation. It argues that, properly understood, soft law implementation lies at the intersection …