Law Commons^™

Us Trade Policy, China And The Wto (Foreword), Paolo Davide Farah

Book Chapters

In ‘U.S. Trade Policy, China and the WTO’, Nerina Boschiero addresses a key topic in contemporary international economic law and global governance. By focusing on a turning point in global politics and the shaping/framing of trade policy in the U.S.– the election of President Donald Trump sheds light on the tumultuous process of reshaping of global governance. The crisis of multilateralism has been discussed at length in academia and mainstream media. However, little attention has been paid to how the U.S. is reacting to the rise of China in the global order, in practical terms. In particular, focus …

Liberalism Triumphant? Ideology And The En Banc Process In The Ninth Circuit Court Of Appeals, Arthur D. Hellman

Articles

There are two things that everyone knows about the Ninth Circuit Court of Appeals: it is very large, and it is very liberal. But common knowledge is sometimes wrong. Is that the case here?

About the first point – the Ninth Circuit’s size – there can be no dispute. The Ninth Circuit Court of Appeals has 29 authorized judgeships, almost twice as many as the second-largest court. But what about the second point – the liberalism? Knowledgeable commentators, including Professor (now Dean) Erwin Chemerinsky, have disputed the characterization, calling it a “myth.”

Until now, no one has empirically tested whether …

Environmental Governance At The Edge Of Democracy, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Private environmental governance describes the affirmative efforts of private organizations to deliver public environmental goals, such as climate change mitigation, without government leadership or control. The scholarship on private environmental governance has grown quickly over its short life, but has largely described, catalogued, and quantified private environmental governance. This article begins the project of more fully theorizing private environmental governance. It is the first to explore and critique its political and democratic roles and responsibilities.

This article argues that despite the promise that private environmental governance is private and therefore “beyond politics,” it in fact calls loudly for democratic consideration. …

Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton

Publications

Left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s eighteenth-century writers but also to its twentieth-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited — by both government and powerful private actors alike — as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes.

The Court’s longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites …

The Supreme Court’S Two Constitutions: A First Look At The “Reverse Polarity” Cases, Arthur D. Hellman

Articles

In the traditional approach to ideological classification, “liberal” judicial decisions are those that support civil liberties claims; “conservative” decisions are those that reject them. That view – particularly associated with the Warren Court era – is reflected in numerous academic writings and even an article by a prominent liberal judge. Today, however, there is mounting evidence that the traditional assumptions about the liberal-conservative divide are incorrect or at best incomplete. In at least some areas of constitutional law, the traditional characterizations have been reversed. Across a wide variety of constitutional issues, support for claims under the Bill of Rights or …

Progressive And Populist Strands In American 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 of …

Pragmatic Liberalism: The Outlook Of The Dead, Justin Desautels-Stein

Publications

At the turn of the twentieth century, the legal profession was rocked in a storm of reform. Among the sparks of change was the view that "law in the books" had drifted too far from the "law in action." This popular slogan reflected the broader postwar suspicion that the legal profession needed to be more realistic, more effective, and more in touch with the social needs of the time. A hundred years later, we face a similarly urgent demand for change. Across the blogs and journals stretches a thread of anxieties about the lack of fit between legal education and …

Liberalism And Postliberalism In Bolivarian Venezuela, Tony Petros Spanakos

Department of Political Science and Law Faculty Scholarship and Creative Works

In the last half-decade, the “rise of the left” in Latin America has been studied extensively by many scholars. Whether framed as one, two, or many lefts, its various party leaders have been vocal in opposition to neoliberalism, although the orientation of their policies and governments toward neoliberalism has been mixed (Panizza 2009). The most influential and visible case of an anti-neoliberal government is that of Venezuelan president Hugo Chávez Frías.

The five books reviewed here, drawing on research on Venezuela, share a common scholarly interest in liberalism, pluralism, and account- ability, although some defend liberalism (Brewer-Carías, Corrales and Penfold), …

Renegotiating The Social Contract, Jennifer S. Hendricks

Publications

This review of The Supportive State: Families, Government and America’s Political Ideals highlights Maxine Eichner’s important theoretical contributions to both liberal political theory and feminist theory, applauding her success in reforming liberalism to account for dependency, vulnerability, and families. The review then considers some implications of Eichner’s proposals and their likely reception among feminists. It concludes that The Supportive State is a sound and inspiring response to recent calls that feminist theory move from being strictly a school of criticism to developing a theory of governance.

Between Liberalism And Theocracy, John D. Inazu

Faculty Scholarship

Our symposium conveners have focused us on “the relationship between liberalism and Christianity and their influence on American constitutionalism.” My objective is to complicate the relationship and reorient the influence. The focus of my inquiry is the liberty of conscience and its implications for the relationship between church and state. By approaching these issues through the lens of political theology (as distinct from either political or constitutional theory), hope to show that some of the most significant embodiments of conscience in the American colonies can neither be squared with an individualistic liberalism (as some on the left are prone to …

Should We Have A Liberal Constitution?, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In this brief essay, I attempt to accomplish two things. In Part I, I defend my proposed constitution against its putative liberal critics. In Part II, I argue that given contingent but highly plausible empirical assumptions, the differences between my constitution and a liberal constitution are less dramatic than one might suppose. There are often sound, nonliberal grounds for supporting institutional arrangements that appear liberal. It turns out, then, that liberalism is both less attractive (Part I) and less necessary (Part II) than its defenders suppose.

Did A Switch In Time Save Nine?, Daniel E. Ho, Kevin M. Quinn

Faculty Articles

Franklin Delano Roosevelt’s court-packing plan of 1937 and the “switch in time that saved nine” animate central questions of law, politics, and history. Did Supreme Court Justice Roberts abruptly switch votes in 1937 to avert a showdown with Roosevelt? Scholars disagree vigorously about whether Roberts’s transformation was gradual and anticipated or abrupt and unexpected. Using newly collected data of votes from the 1931–1940 terms, we contribute to the historical understanding of this episode by providing the first quantitative evidence of Roberts’s transformation. Applying modern measurement methods, we show that Roberts shifted sharply to the left in the 1936 term. The …

Political Reason, Leslie C. Griffin

Scholarly Works

No abstract provided.

National Identity And Liberalism In International Law: Three Models, Justin Desautels-Stein

Publications

No abstract provided.

Rites And Rights In Afghanistan: The Hazara And The 2004 Constitution, Justin Desautels-Stein

Publications

No abstract provided.

Fundamentalism From The Perspective Of Liberal Tolerance, Leslie C. Griffin

Scholarly Works

No abstract provided.

The Force Of Ancient Manners: Federalist Politics And The Unitarian Controversy, Marc Arkin

Faculty Scholarship

No abstract provided.

Review Of The Dark Side Of The Left: Illiberal Egalitarianism In America, Donald J. Herzog

Reviews

In this elegantly written, provocative, and sometimes just plain provoking book, punctuated by bits of anguish and rather more pique, Richard Ellis worries that the American Left has been so passionate about equality that it has run roughshod over liberty. So put, the thesis is not exactly news. It has been the recurrent lament of conservative indictments- Tocqueville's is the canonical statement, but he has plenty of precursors and followers. And it has its scholarly variations, too, such as Arthur Lipow, Authoritarian Socialism in America: Edward Bellamy and the Nationalist Movement (1982). No profound surprises are on offer here.

On Difference And Equality, Cynthia V. Ward

Faculty Publications

No abstract provided.

Secular Fundamentalism, Paul F. Campos

Publications

No abstract provided.

A Skeptical Look At Contemporary Republicanism, Terrance Sandalow

Articles

A growing number of scholars have been led by that impulse to an interest in 'the republican tradition," arguing that it offers resources for correcting the deformities they perceive in contemporary life and for which they hold liberalism responsible. Republicanism is a mansion with many rooms, and its modem interpreters emphasize varying possibilities within it, but common to all is the vision of a politics that recognizes and seeks to strengthen the social bonds within a political community. Within the limits set by that vision differences abound, just as differences exist among liberals concerning appropriate political foundations for individual freedom. …

Review Essay: Liberalism And The Supreme Court, Donald P. Kommers

Journal Articles

In Liberalism and American Constitutional Law, Rogers M. Smith of Yale University takes stock of the American liberal tradition and its impact on the Supreme Court's constitutional jurisprudence. It argues that the tradition's political vision lacks philosophical coherence and that our constitutional law, by reflecting this incoherence, has failed to provide the legal community with a public philosophy suited to the needs of American society in the late twentieth century.His goal is to demonstrate the superiority of "rational liberty," both as a philosophical theory and practical guide to constitutional policymaking, over three major competing versions of liberal constitutionalism. To wit: …

Some Questions For Republicans, Don Herzog

Articles

Even a sleepy historiographer of political theory of some future day will notice the most dramatic revision of the last 25 years or so. I refer of course to the discovery-and celebration-of civic humanism. The devilish Machiavelli of Elizabethan times has been gently set aside for "the divine Machiavel," the one who writes, "I love my native city more than my soul." And historians of political thought have lovingly traced the transmission of civic humanism from Florence to England and America, giving us a brand new past. America, we now know, was not the unthinkingly Lockean land served up by …

Book Review, Arthur R. Landever

Law Faculty Articles and Essays

A book review of Knowledge and Politics, Roberto Mangabeira Unger. New York: Free Press. 1975.

Two Aspects Of Law And Liberalism In The United States, Ralph F. Fuchs

Articles by Maurer Faculty

No abstract provided.