Law Commons^™

Is Progressive Constitutionalism Possible?, Robin West

Georgetown Law Faculty Publications and Other Works

Progressivism is in part a particular moral and political response to the sadness of lesser lives, lives unnecessarily diminished by economic, psychic and physical insecurity in the midst of a society or world that offers plenty. This insecurity is unjust and should end; the suffering should be alleviated, and those lives should be enriched. To do so must be one of the goals of a morally just or justifiable state. Not all suffering and not all lesser lives, of course, give rise to such a response. The suffering attendant to accident, disease, war and happenstance is neither entirely chargeable to …

The Warren Court And The Concept Of A Right, David Luban

Georgetown Law Faculty Publications and Other Works

The Warren Court is dead. None of its Justices remain on the benchindeed, only Justice White survives-and the recent history of the Supreme Court has been in large part a history of repudiating controversial Warren Court doctrines. Public opinion likewise repudiates Warren-style judicial activism, and constitutional scholarship-which as recently as the mid- 1980s consisted in considerable measure of theoretical defenses for Warren Court-inspired methods of interpreting the Bill of Rights-has grown increasingly skeptical of expansive interpretive strategies. It is quite possible that future constitutional historians will regard the Warren era as an aberration. The Warren Court, after all, was not …

Laughing At Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article responds to two articles by Professor John Yoo appearing in the same volume. Professor Yoo maintains that treaties, either categorically or presumptively, have the same status in the United States as in the United Kingdom, where they lack the force of domestic law, and hence are not judicially enforceable, until implemented by statute. This response argues that Yoo's thesis contradicts the text of the Constitution, which declares treaties to be the 'law of the land.' The response notes, further, that Professor Yoo's reliance on the ratification debates to read the Supremacy Clause's reference to treaties out of the …

An Originalism For Nonoriginalists, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The received wisdom among law professors is that originalism is dead, having been defeated in intellectual combat sometime in the eighties. According to this story, Edwin Meese and Robert Bork proposed that the Constitution be interpreted according to the original intentions of its framers. Their view was trounced by many academic critics, perhaps most notably by Paul Brest in his widely-cited 1980 Boston University Law Review article, The Misconceived Quest for Original Understanding, and by H. Jefferson Powell in his 1985 Harvard Law Review article, The Original Understanding of Original Intent. Taken together, these and other articles represent …

The Richness Of Contract Theory, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

This essay is a review of The Richness of Contract Law: An Analysis and Critique of Conemporary Theories of Contract Law by Robert A. Hillman (1997).

Throughout the book, Hillman offers a number of useful insights about various issues of contract law and theory--as he has in his numerous law review articles--but in this review the author is concerned with his overall theme: a general skepticism about "unifying" or "highly abstract" contract theories that fail to mirror the richness of contract law. In this regard, Hillman stands in the "realist" tradition of the previous generation of contracts scholars. Hillman attempts …

Taking Fiction Seriously: The Strange Results Of Public Officials' Individual Liability Under Bivens, Cornelia T. Pillard

Georgetown Law Faculty Publications and Other Works

This article argues that the Supreme Court's decision to place liability on federal officials in their personal capacity--what Professors Fallon and Meltzer call Bivens's "genius"--is in fact its Achilles' heel. Individual liability under Bivens has become fictional because it is the government, and not the individual personally, that is in fact liable in Bivens cases. The individual liability fiction has ended up helping the federal government more than the Bivens plaintiff in various ways, and has contributed to the low rate of recovery under Bivens.

It may seem odd to attribute the low rate of Bivens recoveries to the individual …

Breard, Printz, And The Treaty Power, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article considers whether the anti-commandeering principle of New York v. United States and Printz v. United States applies to exercises of the Treaty Power. It illustrates the problem with an analysis of the treaty provision involved in Breard v. Greene, 118 S. Ct. 1352 (1998), which requires state officials to notify certain aliens they arrest that they have a right to consult with their consul. Whether exercises of the treaty power are subject to the commandeering prohibition depends on the resolution of two ambiguities in the Supreme Court's anti-commandeering doctrine. The first concerns the distinction between commandeering and …

Cleaning Up The Legal Debris Left In The Wake Of Whitewater, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

We have learned a lot in the twenty-five years since Watergate. During the scandal itself, we confirmed that the President is not above the law. We learned that executive privilege is constitutionally protected, but that it is not absolute. And, we learned that a need exists for an independent counsel, but that we don't necessarily need a statute to establish such an office.

Watergate and the Nixon era spawned several so-called "reforms": the establishment of the independent counsel statute, presidential immunity from civil damage suits for official action, and public ownership of the President's official papers. It is interesting and …

Gideon's Muted Trumpet, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Once the darling of the legal academy, criminal procedure has fallen into disrepute. Thirty-five years ago, when Gideon was decided, criminal procedure was the flagship of constitutional law, criminal defense attorneys were heroes, and courts and lawyers were perceived as themselves agents of social justice. Today, there are still heroes. But the conventional wisdom, within the academy and the country at large, no longer associates criminal law or procedure with heroism. Indeed, in some quarters, criminal procedure has become the enemy. Increasingly, scholars urge revisionism, popular pundits brand procedural innovations as a loss of "common sense," and philosophers warn that …

The Vertical Separation Of Powers, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Standard understandings of the separation of powers begin with the concept of function. The author argues that function alone cannot predict important changes in structural incentives and thus serves as a poor proxy for assessing real risks to governmental structure. To illustrate this point, the article returns to proposals considered at the Constitutional Convention and considers difficult contemporary cases such as Morrison v. Olson, Clinton v. Jones, and the Supreme Court's more recent federalism decisions. In each instance, function appears to steer us wrong because it fails to understand separation of powers questions as ones of structural incentive …

Liberalism And Abortion, Robin West

Georgetown Law Faculty Publications and Other Works

First in a groundbreaking book, Breaking the Abortion Deadlock: From Choice to Consent, published in 1996, then in various public fora, from academic conference panels to Christian radio call-in shows, and now in a major law review article entitled My Body, My Consent: Securing the Constitutional Right to Abortion Funding, Eileen McDonagh has sought to redefine drastically our understanding of the still deeply contested right to an abortion, and hence, of the nature of the constitutional protections which in her view this embattled right deserves. Her argument is complicated and subtle, but its basic thrust can be readily …

Hanging With The Wrong Crowd: Of Gangs, Terrorists, And The Right Of Association, David Cole

Georgetown Law Faculty Publications and Other Works

Part I will sketch the current contours of the right of association, a right limited to "expressive" and "intimate" association, and will describe the government's attempts to extend this categorical approach by limiting associational protection still further to membership per se. Part II will argue that the Court's limitation of associational rights to expressive and intimate associations and the government's attempt to distinguish association from conduct are unworkable, inconsistent with the Court's own precedents, and fail to reflect the normative reasons for protecting the right of association. Part III will offer an alternative framework for addressing the right of association, …