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Full-Text Articles in Law
December 14, 2014: The Tough Guys Who Favor Torture, Bruce Ledewitz
December 14, 2014: The Tough Guys Who Favor Torture, Bruce Ledewitz
Hallowed Secularism
Blog post, “The Tough Guys Who Favor Torture“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
August 28, 2014: Constitutional Passivity, Bruce Ledewitz
August 28, 2014: Constitutional Passivity, Bruce Ledewitz
Hallowed Secularism
Blog post, “Constitutional Passivity“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
The Commerce Power And Congressional Mandates, Dan T. Coenen
The Commerce Power And Congressional Mandates, Dan T. Coenen
Scholarly Works
In National Federation of Independent Business v. Sebelius, a five-Justice majority concluded that the commerce power did not support enactment of the so-called “individual mandate,” which imposes a penalty on many persons who fail to buy health insurance. That ruling is sure to spark challenges to other federal laws on the theory that they likewise mandate individuals or entities to take certain actions. Federal laws founded on the commerce power, for example, require mine operators to provide workers with safety helmets and (at least as a practical matter) require mine workers to wear them. Some analysts will say that laws …
July 4, 2014: Hobby Lobby, Next Stop, Bruce Ledewitz
July 4, 2014: Hobby Lobby, Next Stop, Bruce Ledewitz
Hallowed Secularism
Blog post, “ Hobby Lobby, Next Stop“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
Keynote Speech: A Letter From The Original Cause Lawyer, F. Michael Higginbotham
Keynote Speech: A Letter From The Original Cause Lawyer, F. Michael Higginbotham
All Faculty Scholarship
This symposium speech is a short piece which talks about why there is a need for law students to become cause lawyers, the symposium being: cause lawyers and cause lawyering in the sixty years after Brown v. Board of Education. The writer creates an allegorical scene where he's snowed in in his home during a snowstorm, lightning strikes his computer, and the computer comes to life in the form a message being typed, and "channeled" to him by Thurgood Marshall. The former Justice of the Supreme Court proceeds to state the many reasons why there is still a need for …
Federalism And Phantom Economic Rights In Nfib V. Sibelius, Matthew Lindsay
Federalism And Phantom Economic Rights In Nfib V. Sibelius, Matthew Lindsay
All Faculty Scholarship
Few predicted that the constitutional fate of the Patient Protection and Affordable Care Act would turn on Congress’ power to lay and collect taxes. Yet in NFIB v. Sebelius, the Supreme Court upheld the centerpiece of the Act — the minimum coverage provision (MCP), commonly known as the “individual mandate” — as a tax. The unexpected basis of the Court’s holding has deflected attention from what may prove to be the decision’s more constitutionally consequential feature: that a majority of the Court agreed that Congress lacked authority under the Commerce Clause to penalize people who decline to purchase health insurance. …
March 25, 2014: What’S Going To Happen In The Hobby Lobby Case?, Bruce Ledewitz
March 25, 2014: What’S Going To Happen In The Hobby Lobby Case?, Bruce Ledewitz
Hallowed Secularism
Blog post, “What’s Going to Happen in the Hobby Lobby Case?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
Transparent Adjudication: Promoting Democratic Dialogue On Judicial Conceptions Of Politics, Bertrall L. Ross Ii
Transparent Adjudication: Promoting Democratic Dialogue On Judicial Conceptions Of Politics, Bertrall L. Ross Ii
Schmooze 'tickets'
No abstract provided.
Citizens Derided: Corporate Politics And Religion In The Roberts Court, Jamin Raskin
Citizens Derided: Corporate Politics And Religion In The Roberts Court, Jamin Raskin
Schmooze 'tickets'
No abstract provided.
The Supreme Court Chipping Away At Title Vii: Strengthening It Or Killing It?, Henry L. Chambers, Jr.
The Supreme Court Chipping Away At Title Vii: Strengthening It Or Killing It?, Henry L. Chambers, Jr.
Law Faculty Publications
Whether the Court's chipping away at Title VII is an attempt to make Title VII into a 21st century diamond, or an attempt to make it a 21st century pile of diamond dust, or merely an attempt to interpret Title VII consistent with its text is a matter of opinion. This Article explores how the Court is interpreting and reinterpreting Title VII and necessarily considers whether the Court's reinterpretation will likely reinvigorate or damage Title VII' s broad goal of workplace equality. This Article tentatively considers what may be next for Title VII. Part I briefly discusses Title VII's scope. …
Overrides: The Super-Study, Victoria Nourse
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 …
Bond V. United States: Concurring In The Judgment, Nicholas Quinn Rosenkranz
Bond V. United States: Concurring In The Judgment, Nicholas Quinn Rosenkranz
Georgetown Law Faculty Publications and Other Works
Bond v. United States presented the deep constitutional question of whether a treaty can increase the legislative power of Congress. Unfortunately, a majority of the Court managed to sidestep the constitutional issue by dodgy statutory interpretation. But the other three Justices—Scalia, Thomas, and Alito—all wrote important concurrences in the judgment, grappling with the constitutional issues presented. In particular, Justice Scalia’s opinion (joined by Justice Thomas), is a masterpiece, eloquently demonstrating that Missouri v. Holland is wrong and should be overruled: a treaty cannot increase the legislative power of Congress.
The Supreme Court As A Constitutional Court, Jamal Greene
The Supreme Court As A Constitutional Court, Jamal Greene
Faculty Scholarship
Political institutions are always works in progress. Their practical duties and aims as instruments of governance may not always match their constitutional blueprints or historical roles. Political offices might not always have the power to do what their constituent officers either need or want to do. A polity's assessment of whether the desired power is a need or a want may indeed mark a boundary between law and politics in the domain of institutional structure. The law gives, or is interpreted to give, political organs the tools they need to function effectively. They must fight for the rest.
The Puzzling Persistence Of Dual Federalism, Ernest A. Young
The Puzzling Persistence Of Dual Federalism, Ernest A. Young
Faculty Scholarship
This essay began life as a response to Sotirios Barber’s essay (soon to be a book) entitled “Defending Dual Federalism: A Self-Defeating Act.” Professor Barber’s essay reflects a widespread tendency to associate any judicially-enforceable principle of federalism with the “dual federalism” regime that dominated our jurisprudence from the Founding down to the New Deal. That regime divided the world into separate and exclusive spheres of federal and state regulatory authority, and it tasked courts with defining and policing the boundary between them. “Dual federalism” largely died, however, in the judicial revolution of 1937, and it generally has not been revived …
Pursuing Justice For The Child: The Forgotten Women Of In Re Gault, David S. Tanenhaus
Pursuing Justice For The Child: The Forgotten Women Of In Re Gault, David S. Tanenhaus
Scholarly Works
In this article, I first draw on my recent book The Constitutional Rights of Children to introduce the facts of the case and place the case in the larger context of the history of American juvenile justice. I then focus specifically on the role of four remarkable women in the history of this landmark decision: Marjorie Gault, Gerald's mother; Amelia Lewis, Gerald's lawyer; Lorna Lockwood, an Arizona lawyer who became the first woman to serve as the Chief Justice of a State Supreme Court; and Getrude "Traute" Mainzer, who assisted in the litigation of Gerald's case before the U.S. Supreme …
(Anti)Canonizing Courts, Jamal Greene
(Anti)Canonizing Courts, Jamal Greene
Faculty Scholarship
Within U.S. constitutional culture, courts stand curiously apart from the society in which they sit. Among the many purposes this process of alienation serves is to “neutralize” the cognitive dissonance produced by Americans’ current self-conception and the role our forebears’ social and political culture played in producing historic injustice. The legal culture establishes such dissonance in part by structuring American constitutional argument around anticanonical cases: most especially “Dred Scott v. Sandford,” “Plessy v. Ferguson,” and “Lochner v. New York.” The widely held view that these decisions were “wrong the day they were decided” emphasizes the role of independent courts in …
The Diversity Feedback Loop, Patrick Shin, Devon Carbado, Mitu Gulati
The Diversity Feedback Loop, Patrick Shin, Devon Carbado, Mitu Gulati
Faculty Scholarship
At some point in the near future, the Supreme Court will weigh in on the permissible scope of affirmative action to increase workplace diversity. Undoubtedly, many scholars will argue that if affirmative action is good for colleges and universities, it is good for workplaces as well. One cannot assess whether this “transplant” argument is right without understanding the complex ways in which diversity initiatives at colleges and universities interact with diversity initiatives at work. The university and the workplace are not separate and distinct institutional settings in which diversity is or is not achieved. They are part of an interconnected …
Universities As Constitutional Law Makers (And Other Hidden Actors In Our Constitutional Orders), Adam J. Macleod
Universities As Constitutional Law Makers (And Other Hidden Actors In Our Constitutional Orders), Adam J. Macleod
Faculty Articles
In the stories told by opinion makers and many law professors, American constitutional law is concerned with two things-individual rights and the powers of government-and it is settled by the Court, which was established by Article III of our national Constitution. In those now-familiar tales, the United States Supreme Court creates constitutional law when heroic individuals assert their fundamental rights against an overreaching state and when Congress, state legislatures, and executive agencies are called upon to justify their expert enactments to an overreaching judiciary. To settle these constitutional disputes the Court looks either to the text of the written Constitution …
Constitutional Venue, Peter L. Markowitz, Lindsay C. Nash
Constitutional Venue, Peter L. Markowitz, Lindsay C. Nash
Faculty Articles
A foundational concept of American jurisprudence is the principle that it is unfair to allow litigants to be haled into far away tribunals when the litigants and the litigation have little or nothing to do with the location of such courts. Historically, both personal jurisdiction and venue each served this purpose in related, but distinct ways. Personal jurisdiction is, at base, a limit on the authority of the sovereign. Venue, in contrast, aims to protect parties from being forced to litigate in a location where they would be unfairly disadvantaged. The constitutional boundaries of these early principles came to be …