Law Commons^™

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.

Williams V. Illinois And The Confrontation Clause: Does Testimony By A Surrogate Witness Violate The Confrontation Clause?, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

This article comprises a four-part debate between Paul Rothstein, Professor of Law at Georgetown Law Center, and Ronald J. Coleman, who works in the litigation practice group at Cleary Gottlieb Steen & Hamilton LLP, on Williams v. Illinois, a Supreme Court case that involves the Confrontation Clause, which entitles a criminal defendant to confront an accusing witness in court. The issue at hand is whether said clause is infringed when a report not introduced into evidence at trial is used by an expert to testify about the results of testing that has been conducted by a non-testifying third party. …

The Case For The Repeal Amendment, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Today, a political movement has arisen to oppose what seems to be a highly discretionary and legally unconstrained federal government. Beginning in the Bush Administration during the Panic of 2008 and accelerating during the Obama Administration, the federal government has bailed out or taken over banks, car companies, and student loans. It is now preparing to vastly expand the Internal Revenue Service to help it take charge of the practice of medicine for the first time in American history. This marked and rapid increase of power has shaken many Americans who are now looking to the United States Constitution with …

Interpretation And Construction, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In recent years, it has become apparent that there is a difference between (a) discovering the semantic meaning of the words in the text of the Constitution, and (b) putting that meaning into effect by applying it in particular cases and controversies. To capture this difference, following the lead of political science professor Keith Whittington, legal scholars are increasingly distinguishing between the activities of “interpretation” and “construction.” Although the Supreme Court unavoidably engages in both activities, it is useful to keep these categories separate. For one thing, if originalism is a theory of interpretation, then it may be of limited …

Against Flexibility, David A. Super

Georgetown Law Faculty Publications and Other Works

Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding decisions without all possible relevant information while ignoring the costs of postponing decisions until that information becomes available. We valorize procrastination and condemn investments of decisional resources in early decisions.

Both public and private law should be understood as a productive activity converting information, norms, and decisional and enforcement capacity into outputs of social value. Optimal timing depends on changes in these inputs’ scarcity and in the value of the decision they produce. Our legal culture tends to overestmate the value of information that …

Is Health Care Reform Unconstitutional?, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Law's Visual Afterlife: Violence, Popular Culture, And Translation Theory, Naomi Mezey

Georgetown Law Faculty Publications and Other Works

In Walter Benjamin’s essay, “The Task of the Translator,” Benjamin argues that translations enable a work’s afterlife. Afterlife is not what happens after death but what allows a work (or event or idea) to go on living and to evolve over time and place and iteration. In its afterlife, the original is transformed and renewed. In this piece I explore film’s visual translation of law and the role film plays in law’s afterlife. Film translates law not by translating from one language to another, but by translating between media and discourses. The cultural-critical lens of translation highlights the discursive similarities …

The Fourth Amendment Rights Of Children At Home: When Parental Authority Goes Too Far, Kristin N. Henning

Georgetown Law Faculty Publications and Other Works

Although it is virtually undisputed that children have some Fourth Amendment rights independent of their parents, it is equally clear that youth generally receive less constitutional protection than adults. In a search for continuity and coherence in Fourth Amendment jurisprudence involving minors, Professor Henning identifies three guiding principles—context, parental authority, and the minor’s capacity—that weave together children’s rights cases. She argues that parental authority too often prevails over children’s rights, even when context and demonstrated capacity would support affirmation of those rights. Context involves both the physical setting in which Fourth Amendment protections are sought and the nature of the …

Risk Taking And Force Protection, David Luban

Georgetown Law Faculty Publications and Other Works

This paper addresses two questions about the morality of warfare: (1) how much risk must soldiers take to minimize unintended civilian casualties caused by their own actions (“collateral damage”), and (2) whether it is the same for the enemy's civilians as for one's own.

The questions take on special importance in warfare where one side is able to attack the other side from a safe distance, but at the cost of civilian lives, while safeguarding civilians may require soldiers to take precautions that expose them to greater risk. In a well-known article, Asa Kasher and Amos Yadlin argue that while …

The Post-Citizens United Fantasy-Land, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

First, a bouquet for the illuminating facts presented by Professors Wert, Gaddie, and Bullock. They make dramatically clear how minuscule independent spending by corporate PACs has been (that is, those PACs’ direct spending as distinct from support by those PACs or their corporate sponsors for spending by intermediaries like the Chamber of Commerce). Their showing is borne out by experience this year: corporate support for campaigns is almost all hidden, flowing through intermediaries, which is why getting effective disclosure is more important than ever, as the Court clearly recognizes (We probably owe much to Justice Kennedy for the fact that …

The Advance Democracy Act And The Future Of United States Democracy Promotion Efforts, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

This article addresses whether and to what extent the Obama administration should continue the Bush administration policies relating to democracy promotion. The focus of the article is on the ADVANCE Act of 2007, a legislative enactment that institutionalized democracy promotion in the State Department. After explicating the key provisions of this Act, as well as their implementation status, the article addresses key critiques leveled at democracy promotion, as well as areas where the Obama administration can expand on what has been accomplished thus far in this field. In the end, democracy promotion should continue to be an integral component of …

Two Kinds Of Plain Meaning, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Is plain meaning so plain? This is not meant to be a philosophical question, but one deserving serious legal analysis. The plain-meaning rule claims to provide certainty and narrow statutes' domains. The author agrees with, as a relative claim, comparing plain meaning with purposivism. She does not agree that plain-meaning analysis is as easy as its proponents suggest. In this piece, the author teases out two very different ideas of plain meaning--ordinary/popular meaning and expansive/legalist meaning--suggesting that doctrinal analysis requires more than plain-meaning simpliciter. Perhaps more importantly, she argues that plain meaning, as legalist meaning, can quite …

International Law In A Kaleidoscopic World, Edith Brown Weiss

Georgetown Law Faculty Publications and Other Works

International law is developed and implemented today in a complicated, diverse, and changing context. Globalization and integration, fragmentation and decentralization, and bottom-up empowerment are arising simultaneously among highly diverse peoples and civilizations. Most importantly, this period is characterized by rapid and often unforeseen changes with widespread effects. Advances in information technology make possible ever shifting ad hoc coalitions and informal groups and a myriad of individual initiatives.

Celebrating 100 Years Of The Georgetown Law Journal, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

It was 1911. Georgetown Law was then forty-one years old. It was an undergraduate program, as a college degree was unnecessary. Indeed, it was only a dozen years or less since Georgetown had begun to require a high school diploma for admission and had expanded to a three-year program. The degree granted was an LL.B., a bachelor of law, usually the first academic degree the student received. The school had recently grown to over 900 students. It was time to move forward.

That year, three dynamic young men enrolled at Georgetown: Eugene Quay, Horace H. Hagan, and John Cosgrove. They …

The Unsettled Nature Of The Union, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article is a response to Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817 (2010).

In his article, The Eleventh Amendment and the Nature of the Union, Professor Bradford Clark offeres an explanation for the puzzling text of the Eleventh Amendment, which appears to preclude federal jurisdiction over suits against a state by citizens of other states but not by its own citizens. Professor Clark argues that the Amendment's text made sense to the Founders because they did not envision any suits against the states arising under federal law. …

Withdrawing From International Custom: Terrible Food, Small Portions, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Curtis A. Bradley and Mitu Gulati’s Withdrawing from International Custom brings to mind the old joke recounted by Woody Allen in Annie Hall: “Two elderly women are at a Catskill mountain resort, and one of ’em says, ‘Boy, the food at this place is really terrible.’ The other one says, ‘Yeah, I know; and such small portions.’” Similarly, while Bradley and Gulati attack international law’s current prohibition of unilateral withdrawal from custom, they propose an alternative that differs only modestly from it (small portions). At the same time, the doctrinal change they propose would take customary international law in the …

So Much For The Commerce Clause Challenge To Individual Mandate Being "Frivolous", Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Remember when the Commerce Clause challenge to the individual insurance mandate was dismissed by all serious and knowledgeable constitutional law professors and Nancy Pelosi as "frivolous"? Well, as Jonathan notes, the administration is now apparently telling the New York Times that the individual insurance "requirement" and "penalty" is really an exercise of the Tax Power of Congress.

Customary International Law As U.S. Law: A Critique Of The Revisionist And Intermediate Positions And A Defense Of The Modern Position, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In a recent referendum, the citizens of Oklahoma overwhelmingly approved a State constitutional amendment providing that the courts of the State "shall not consider international law or Sharia law" in rendering their decisions. The amendment's exclusion of Sharia law has garnered most of the media attention, but more consequential by far is the measure's directive to the State courts to disregard international law. Similar measures have been proposed in other States, some of them merely barring consideration of Sharia law or foreign law, but others barring consideration of international law as well. These measures are clearly unconstitutional insofar as they …

The Evolution Of International Environmental Law, Edith Brown Weiss

Georgetown Law Faculty Publications and Other Works

In the last forty years, international environmental law has evolved rapidly, as environmental risks have become more apparent and their assessment and management more complex. In 1972, there were only a few dozen multilateral agreements, and most countries lacked environmental legislation. In 2011, there are hundreds of multilateral and bilateral environmental agreements and all countries have one or more environmental statutes and/or regulations. Many actors in addition to States shape the development, implementation of, and compliance with international environmental law. Moreover, environment is increasingly integrated with economic development, human rights, trade, and national security. Analyzing the evolution of international environmental …

What Is Originalism? The Evolution Of Contemporary Originalist Theory, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Debates over “originalism” have been a central focus of contemporary constitutional theory for three decades. One of the features of this debate has been disagreement about what “originalism” is. More worrisome is the possibility that the arguments between contemporary originalists and their opponents, the “living constitutionalists”, are confused–-with each side of the debate making erroneous assumptions about the content of their opponent’s theories.

The aim of this chapter is to clarify these debates by providing a history of contemporary originalism and then developing an account of the core or focal content of originalist theory. The history reveals that contemporary originalist …

Skilling: More Blind Monks Examining The Elephant, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

Most academics and practitioners with whom the author has discussed the result in Skilling v. United States believe that it is a sensible decision. That is, the Supreme Court did the best it could to limit the reach of 18 U.S.C. § 1346, which all nine justices apparently believed—correctly—was, on its face, unconstitutionally vague. Congress responded quickly and with little consideration with the supremely under-defined § 1346. In the over twenty years since the statute's enactment, the Courts of Appeals have been unable to come up with any unified limiting principles to contain its reach. The Skilling Court, evidently reluctant …

The Limits Of National Security, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The United States’ National Security Strategy, issued in May 2010, articulates an expansion in U.S. interests that stems from the end of the Cold War. Departing from a policy of industrial growth and military containment in response to geopolitical threats, U.S. national security is now defined in terms of a wide range of potential risks that the country faces. The NSS is not alone in its rather expansive view—one that significantly departs from the perspective adopted at any point in U.S. history. It represents the fourth (and most concerning) epoch in the country’s evolution, and it is beginning to find …

Turning Citizens Into Subjects: Why The Health Insurance Mandate Is Unconstitutional, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In 2010 something happened in this country that has never happened before: Congress required that every person enter into a contractual relationship with a private company. While the author realizes that writers make lots of factual claims that readers are wise to be skeptical about, he proves that an economic mandate like this one is unprecedented. If this mandate had ever happened before, everyone reading this passage would know all the contracts the federal government requires them to make, upon pain of a penalty enforced by the Internal Revenue Service (IRS). No reader, however, can recite any such mandate and …

Legislative Organization And Administrative Redundancy, Michael Doran

Georgetown Law Faculty Publications and Other Works

Congress regularly enacts legislation providing for redundant administrative programs. For example, there are more than 100 federal programs for surface transportation, 82 programs to ensure teacher quality, 80 programs to promote domestic economic development, and 47 programs to provide employment and job-training services. Recent high-profile legislation–-such as the financial-industry reform measure and the health-care reform measure–-add new programs without repealing existing ones directed at the same policy goals. Prior academic analyses generally have not considered why Congress pursues redundancy. This article addresses that question through both theoretical and institutional analysis.

The article first constructs an organizational theory that attributes redundancy …

The Limits Of Process, Robin West

Georgetown Law Faculty Publications and Other Works

This article presents four major objections to Jeremy Waldron’s claim that for “Rule of Law” to exist it we must move beyond basic formal requirements that laws be general and knowable rules we can all comply with, towards substantive requirements that when the law imposes its censorial and punitive will upon us, it is applied in a way that acknowledges our intelligence and respects our individual dignity. After challenging Waldron’s claim, the author suggests that if Rule of Law theorizing is intended to capture our ideals of law, then the three paradigms of Rule of Law scholarship that Waldron has …

The Who Global Code Of Practice On The International Recruitment Of Health Personnel: The Evolution Of Global Health Diplomacy, Allyn L. Taylor, Ibadat S. Dhillon

Georgetown Law Faculty Publications and Other Works

The May 2010 adoption of the World Health Organization Global Code of Practice on the International Recruitment of Health Personnel created a global architecture, including ethical norms and institutional and legal arrangements, to guide international cooperation and serve as a platform for continuing dialogue on the critical problem of health worker migration. Highlighting the contribution of non-binding instruments to global health governance, this article describes the Code negotiation process from its early stages to the formal adoption of the final text of the Code. Detailed are the vigorous negotiations amongst key stakeholders, including the active role of non-governmental organizations. The …

Toward The Study Of The Legislated Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

Law schools, both innovative and traditional, cutting edge and hidebound, demand and therefore teach tolerance, civil respect for those whose views and dreams differ from our own, a commitment to the equal dignity of all persons, an awareness of the individuality of each of us, and the challenges that those differences and that equality pose to the generalizing impulse in law. Likewise, law schools, virtually everywhere, convey or should convey a sensitivity to bare or naked human vulnerability, mortality, weakness, and need, and therefore a sense in students of the moral need of all of us for law’s protection, as …

Franz Kafka, Lawrence Joseph, And The Possibilities Of Jurisprudential Literature, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

The purpose of this article is twofold. First, it offers a complementary reading of Franz Kafka’s writings on the law and Lawrence Joseph’s novel Lawyerland. This reading focuses on the distinct perspectives offered by these authors. Whereas Kafka approaches the law from the perspective of the litigant or accused, Joseph’s perspective, through the eyes of his lawyers and judges, is that of the consummate insider. The importance of perspective rests with the fact that although law might constitute an objective system, its experience is inevitably subjective. The absurd malevolence of law in Kafka can thus be rationalized by the system …

Mediating Multiculturally: Culture And The Ethical Mediator, Carrie Menkel-Meadow, Harold I. Abramson

Georgetown Law Faculty Publications and Other Works

This commentary on mediating multiculturally in a chapter of Mediation Ethics (edited by Ellen Waldman) suggests there are times when mediators should not mediate, because of their own ethical commitments. Commenting on a hypothetical divorce scenario (of Ziba, a 17 year old from her 44 year old husband, with two children aged 3 and 2, where the parties claim to want Shari’a principles to apply), the author (Carrie Menkel-Meadow) suggests that she would not mediate a case which might violate formal laws (American marriage and divorce laws) or infringe on rights that one of the parties might not be fully …

Misunderstanding Congress: Statutory Interpretation, The Supermajoritarian Difficulty, And The Separation Of Powers, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Every lawyer's theory of statutory interpretation carries with it an idea of Congress, and every idea of Congress, in turn, carries with it an idea of the separation of powers. In this article, the author critiques three dominant academic theories of statutory interpretation--textualism, purposivism, and game theory--for their assumptions about Congress and the separation of powers. She argues that each academic theory fails to account for Congress's dominant institutional features: "the electoral connection," the "supermajoritarian difficulty," and the "principle of structure-induced ambiguity." This critique yields surprising conclusions, rejecting both standard liberal and conservative views on statutory interpretation.

"Plain" meaning, it …