Digital Commons Network^™

Response To State Action And A New Birth Of Freedom, Robin West

Georgetown Law Faculty Publications and Other Works

I have just a few comments. The first comment is a contribution to the ''analytic" question posed by Professor Black's work and made explicit by Professors Peller and Tushnet's paper. To make the case for the constitutional status of welfare rights, I do not think it is sufficient-although it may well be necessary-to show that the "state action" problem is merely a pseudo-problem, whatever the reason for finding it not to be a problem. I do not agree with one of the claims put forward by Peller and Tushnet,' that Black's perceptive analysis of the state action problem in his …

The Politics Of (Mis)Recognition: Islamic Law Pedagogy In American Academia, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

The combination of presence (of Islamic law) and absence (of legal transplant) in the course materials assigned by Islamic law instructors, the scholarship on law in the Islamic world by Islamic law scholars as well as by Comparatists, betrays an ideological project. I would describe it as an identitarian one with an underlying teleological notion of history. By identitarian I mean the positing of a common identity shared by all "Muslims" based on their religio/legal beliefs, a project that to my mind recalls what I called earlier the "fantasy effect." "[F]antasy is the means by which real relations of identity …

The Effect Of The United States Supreme Court's Eleventh Amendment Jurisprudence On Clean Water Act Citizen Suits: Muddied Waters, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This Article focuses on the impact of the Court's Eleventh Amendment jurisprudence on citizen suits authorized under the Clean Water Act (CWA), because that law's cooperative federalism structure is typical of many other environmental laws, and because citizen suits have historically played a critical role in its implementation. The CWA's citizen suit provision (section 505), which specifically incorporates the Eleventh Amendment, has brought on citizen suits the full force and effect of the Court's current state sovereign immunity jurisprudence. The prevailing wisdom is that the Court's state sovereign immunity jurisprudence will not bar CWA citizen suits brought to enforce federal …

Rethinking Crime Legislation: History And Harshness, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

There is a truth about the criminal law that scholars evade as much as they criticize: the criminal law is produced by legislators (rather than the experts). The author states she does not know of any way to make law in a democracy other than through the voters' representatives. And, yet, it is the standard pose of the criminal law scholar to denigrate legislatures and politicians as vindictive, hysterical, or stupid. All of these things may be true but name-calling is a poor substitute for analysis. As in constitutional law, so too in criminal law, it is time to put …

War Everywhere: Rights, National Security Law, And The Law Of Armed Conflict In The Age Of Terror, Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

Both international and domestic law take as a basic premise the notion that it is possible, important, and usually fairly straightforward to distinguish between war and peace, emergencies and normality, the foreign and the domestic, the external and the internal. From an international law perspective, the law of armed conflict is triggered only when a armed conflict actually exists; the rest of the time, other bodies of law are applicable. Domestically, U.S. courts have developed a constitutional and statutory jurisprudence that distinguishes between national security issues and domestic questions, with the courts subjecting government actions to far less scrutiny when …

Copy This Essay: How Fair Use Doctrine Harms Free Speech And How Copying Serves It, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Defenders of transformative uses have invoked the First Amendment to bolster claims that such uses should not be subject to the copyright owner’s permission. But this focus on transformation is critically incomplete, leaving unchallenged much of copyright’s scope, despite the large number of nontransformative copying activities that are also instances of free speech. The current debate leaves the way open for expansions of copyright that, while not targeted at dissenting viewpoints, nonetheless may have a profoundly negative effect on freedom of speech. In other words, transformation has limited our thinking about the free speech interests implicated by copying. This essay …

The Original Meaning Of The Judicial Power, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this paper, the author refutes any claim that judicial review was invented in Marbury v. Madison, or that, because it is contrary to the original meaning of the Constitution, it must be justified by some nonoriginalist interpretive methodology. He will do so, not by discerning the shadowy and often counterfactual "intentions" of the founding generation, but by presenting as comprehensively as he can what the founders actually said during the constitutional convention, in state ratification conventions, and immediately after ratification. These statements, taken cumulatively, leave no doubt that the founders contemplated judicial nullification of legislation enacted by the …

The Moral Foundations Of Modern Libertarianism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Libertarians no longer argue, as they once did in the 1970s, about whether libertarianism must be grounded on moral rights or on consequences; they no longer act as though they must choose between these two moral views. In this paper, the author contends that libertarians need not choose between moral rights and consequences because theirs is a political, not a moral, philosophy, one that can be shown to be compatible with various moral theories, which is one source of its appeal.

Moral theories based on either moral rights or on consequentialism purport to be comprehensive, insofar as they apply to …

Was The Right To Keep And Bear Arms Conditioned On Service In An Organized Militia?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

This essay is a review of The Militia and the Right to Arms, or, How the Second Amendment Fell Silent by H. Richard Uviller & William G. Merkel (2002).

Those who deny that the original meaning of the Second Amendment protected an individual right to keep and bear arms on a par with the rights of freedom of speech, press and assembly no longer claim that the amendment refers only to a collective right of states to maintain their militias. Instead, they now claim that the right, although belonging to individuals, was conditioned on service in an organized militia. With …

The Aretaic Turn In Constitutional Theory, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The author argues that the aretaic turn in constitutional theory is an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions on particular issues and the fervor of their ideological passions.

Part II, Institutionalism and Constitutional …

Procedural Justice, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This article begins in part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits?

The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question--what is procedure?--is the most difficult and requires an extensive …

Michelangelo And Leonardo| The Frescoes For The Palazzo Vecchio, Paula Rae Duncan

Graduate Student Theses, Dissertations, & Professional Papers

No abstract provided.

The Priority Of Morality: The Emergency Constitution's Blind Spot, David Cole

Georgetown Law Faculty Publications and Other Works

Three aspects of Bruce Ackerman’s thesis, which is a proposal to legitimate the practice of suspicionless preventive detention during emergencies, are discussed in this essay—its premises, its efficacy, and its morality. Part I critiques three of Ackerman’s premises—his underestimation of courts and overestimation of legislatures as guardians of liberty, his misguided belief that the supermajoritarian escalator provides a one-size-fits-all solution to the conundrum of emergency powers, and his contention that the short-lived character of emergencies makes it sensible to cede to a minority of our popular representatives control over critically important and largely unpredictable decisions concerning the appropriate duration of …

The Threat To Constitutional Academic Freedom, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Since the late 1980s, the academic authority of colleges and universities has been subjected to continuing blasts of criticism. Culture warriors portray decayed institutions where sixties radicals have seized control and terrorize students and the few remaining honest faculty with demands for political conformity or bewilder them with incomprehensible theorizing. Some valid criticisms by these writers can be gleaned among their towering hyperbole and tendentious accusations. But the overall effect has been to paint for the broader public an alarming, misleading picture of intolerance and cant. The prevalence of this picture, however false it may be, imperils the constitutional autonomy …

Introduction: Rawls And The Law, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Professor John Rawls of Harvard University, who died in November of 2002, is widely regarded as the most important political philosopher of the twentieth century, and his influence on legal thought was particularly profound. There have been a number of conferences or symposia on Rawls's individual books, such as A Theory of Justice and Political Liberalism, but, astonishingly, until the symposium presented in this issue of the Fordham Law Review was held in November 2003, no symposium or conference had focused on the implications of his work for the law. Simply because of its subject, then, this symposium was of …

Regulatory Takings Challenges To Historic Preservation Laws After Penn Central, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The Penn Central decision, in its most immediate concern, provided a legal framework within which local governments could enforce historic landmark restrictions without a regular constitutional requirement to pay "just compensation." The decision amalgamated regulatory takings analysis of historic landmark restrictions to the familiar and tolerant federal standards for reviewing zoning. Affirming the importance of the public interest goals of historic preservation, the Court directed inquiry to whether sufficient economic potential remained in the control of the property owner, given reasonable expectations at the time of her investment in the property. While the broader jurisprudential merits of Penn Central's approach …

Deliberate Extinction: Whether To Destroy The Last Smallpox Virus, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The target problem to be examined is smallpox. Specifically, what should we (the United States and the entire world) now do with the last known residual samples of the virus that causes this uniquely horrific disease? The illness itself has virtually disappeared from the catalogue of human afflictions: due to a stunningly imaginative, concerted, and resolute campaign of the World Health Organization (WHO) through the 1970s, no one has contracted this deadly impairment for twenty-five years. Yet the causative element, an insidious scourge known as the variola virus, still remains, housed for now in high-security freezers at the U.S. Centers …

Overcoming Resistance To Diversity In The Executive Suite: Grease, Grit, And The Corporate Tournament, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

Once we open the corporate governance/human resources nexus to deeper inquiry, mutual scholarly interest in diversity and discrimination follows naturally. Firms have complex motives to take nondiscrimination and the promotion of diversity seriously. First, at least certain forms of discrimination are both unlawful and socially illegitimate and hence present threats of potential liability and injury to reputation. Second, human resources demands are such that attracting and motivating a diverse workforce is a competitive imperative. At the same time, however, offsetting economic forces may exist that favor subtle forms of discrimination and hostility to diversity, even if intentional and overt racial …

The Coiled Serpent Of Argument: Reason, Authority, And Law In A Talmudic Tale, David Luban

Georgetown Law Faculty Publications and Other Works

One of the most celebrated Talmudic parables begins with a remarkably dry legal issue debated among a group of rabbis. A modern reader should think of the rabbis as a collegial court, very much like a secular appellate court, because the purpose of their debate is to generate edicts that will bind the community. The issue under debate concerns the ritual cleanliness of a baked earthenware stove, sliced horizontally into rings and cemented back together with unbaked mortar. Do the laws of purity that apply to uncut stoves apply to this one as well? This stove is the so-called "oven …

A Theory Of Crimes Against Humanity, David Luban

Georgetown Law Faculty Publications and Other Works

The answer I offer in this Article is that crimes against humanity assault one particular aspect of human being, namely our character as political animals. We are creatures whose nature compels us to live socially, but who cannot do so without artificial political organization that inevitably poses threats to our well-being, and, at the limit, to our very survival. Crimes against humanity represent the worst of those threats; they are the limiting case of politics gone cancerous. Precisely because we cannot live without politics, we exist under the permanent threat that politics will turn cancerous and the indispensable institutions of …

Judging Environmental Law, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

The title of this Essay, "Judging Environmental Law," evokes several different themes. On the one hand, the title presents an occasion to discuss the role of judges in environmental law. On the other hand, it offers an opportunity to judge environmental law itself: whether environmental law is guilty, as charged by some in industry, of overreaching in its regulatory requirements; or, whether environmental law is instead guilty, as charged by some environmentalists, of underreaching, by failing to address pressing pollution control and natural resource management concerns. Finally, the title of the Essay possibly presents an occasion for a more theoretical …

The Lawyer's Role(S) In Deliberative Democracy, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In this paper I will explore the idea of a "neutral" lawyer who may have neither "client" (in the conventional sense of client) to represent nor advocacy to perform, yet still be functioning fully as a lawyer or "learned professional" schooled in the law. Indeed, in this paper I will suggest that lawyers may be especially useful in performing a variety of "new" functions that depart from traditional conceptions of the lawyer's role, but which lawyers may be especially well suited to perform. It may be counter-cultural to think of lawyers as "consensus builders," rather than as advocates or makers …

Remembrance Of Things Past? The Relationship Of Past To Future In Pursuing Justice In Mediation, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In this Article I seek to explore, not resolve, some of the issues and tensions in the role of temporality in achieving justice through mediative processes and to suggest some correctives at the practice level, as well as encourage some deeper thinking at the theoretical level. I focus here on issues of expression of temporality ("the past") in the "justice and mediation" question, not on issues of how the past should be judged - by the rule of law, culture, or universal human rights principles, or even how it can be "managed" when understandings of the past conflict or cannot …

Analyzing The Bipartisan Campaign Reform Act Of 2002, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

The Bipartisan Campaign Reform Act of 2002 ("BCRA") is the laboratory in campaign finance law. When analyzing BCRA, it is important to look at the Missouri state law that led to the Supreme Court case, Nixon v. Shrink Missouri Government PAC. In Shrink Missouri, five justices upheld Missouri's relatively low simple limit on contributions to candidates. The law in Missouri limited contributions by anyone to candidates, but there was no limit as to how much a person or entity could give to a political party committee or to a political action committee (PAC). Further, there was no limit on how …

Defense-Oriented Judges, Abbe Smith

Georgetown Law Faculty Publications and Other Works

In this essay, I argue in favor of so-called "defense-oriented judges." Instead of the increasingly prosecution-oriented judicial aspirants who ascend to the bench, we need more judges who care about protecting the rights of the accused, who will put the government to the test, and who have some compassion for those who come before them. Instead of judges who are nothing more than rubber-stamps for prosecutors, deferring to prosecutors at every step because they believe most defendants are in fact guilty, or because they dislike defense lawyers, we need judges who are truly neutral and disinterested. Instead of judges who …

Too Much Heart And Not Enough Heat: The Short Life And Fractured Ego Of The Empathic, Heroic Public Defender, Abbe Smith

Georgetown Law Faculty Publications and Other Works

In this Article I will examine Professor Ogletree's paradigm for motivating and sustaining public defenders ten years after he proposed it. I will discuss whether Professor Ogletree's paradigm works for defenders in the predominantly high-volume, urban settings in which they practice, and if so, for how long. If the paradigm works for short-term defenders only - or those with smaller caseloads - then perhaps it is a temporary, not a sustaining, motivation. I will examine whether the paradigm is helpful- on an aspirational level if nothing else – or whether it emphasizes motivations that are ultimately self-defeating. After discussing Professor …

Left Out, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

My thesis is that the left's problem regarding criminal justice is at least partially of its own making. Specifically, the problem stems from deep contradictions in the left's positions. Progressives have not one position on crime, but at least seven different ones, and these positions cannot be reconciled. Most of this essay consists of a taxonomy of conflicting progressive views on criminal justice. Before I begin, however, I need to qualify my thesis in three important ways. First, as will become obvious, what I present below amounts to no more than brief descriptions - really evocations - of attitudes, arguments, …

Out Of Bounds, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Lawrence v. Texas creates a crisis for inclusive constitutionalism. Too often, advocates of inclusion and tolerance wish to include only those ideas and groups with which they agree. The test for true inclusion and tolerance, however, is whether we are willing to protect groups when they engage in conduct of which we disapprove. It follows that the boundaries of inclusion cannot be established simply by moral argument; yet, any plausible version of constitutional law must use some method to bound the people and activity that it protects. Defenders of inclusive constitutionalism have not been successful in identifying a method, independent …

Interpreting Constitutions Comparatively: Some Cautionary Notes, With Reference To Affirmative Action, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

It has now become the conventional wisdom that many justices on the United States Supreme Court are thinking about the relevance of comparative constitutional law to the interpretation of the United States Constitution. An emerging conservative critique of doing so questions the democratic legitimacy of the practice. I believe that those questions are badly formed, but that other questions are worth raising about the (perhaps) emerging practice. In this comment I identify some reasons for caution about the use of transnational comparative law in interpreting domestic constitutions. Some reasons are institutional, others arise from the doctrinal context within which particular …

Litigation Campaigns And The Search For Constitutional Rules, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Journal's focus on appellate practice and procedure suggests that it might be appropriate and productive to take a somewhat unusual approach to Brown and its significance. Brown was most important, of course, for its role in the transformation of American race relations. From the point of view of the appellate courts, Brown is significant in another way. Brown was the culmination of a sustained campaign of strategically designed litigation-or so it came to be thought. Lawyers subsequently took the strategic litigation campaign they saw ending in the triumph of Brown as a model for their own causes, and developed …