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Articles 61 - 77 of 77
Full-Text Articles in Law
The Limits Of Being "Present At The Creation", Roy A. Schotland
The Limits Of Being "Present At The Creation", Roy A. Schotland
Georgetown Law Faculty Publications and Other Works
Having been invited late to this Symposium and having read fewer than all essays, I offer, (with deep appreciation for the invitation), only mini-comments on three of the many valuable contributions: the essays by Professors Persily, Hasen, and Gerken. But first, at risk of pedantry, may I suggest changing the Symposium's title to something like "Baker and its Progeny .... (or "Baker, doughnuts, and holes"?). Most of the treatment seems to be about the progeny, as surely it should be. While of course everyone knows how far Baker went, what Reynolds did, and what was not done until after Reynolds, …
The Original Meaning Of The Commerce Clause, Randy E. Barnett
The Original Meaning Of The Commerce Clause, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
The U& Supreme Court, in recent cases; has attempted to define limits on the Congress's power to regulate commerce among the several states. While Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose, some have argued that he is mistaken and that "commerce" originally included any "gainful activity." Having examined every appearance of the word "commerce"in the records of the Constitutional Convention, the ratification debates and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In …
Constitution-Talk And Justice-Talk, Mark V. Tushnet
Constitution-Talk And Justice-Talk, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
Inside the courts, one might distinguish between constitution-talk and justice-talk on the ground that the former, but not the latter, results in enforceable legal judgments. So, inside the courts, we might interpret the Constitution with justice in mind, but what we do is produce legally enforceable judgments. Outside the courts, however, it might seem that all we do is interpret and talk. It is not immediately obvious that cloaking justice-talk as constitution-talk outside the courts has much rhetorical force. As I will argue, the fact that invoking the Constitution outside the courts, in the course of discussing justice, does have …
Subconstitutional Constitutional Law: Supplement, Sham, Or Substitute?, Mark V. Tushnet
Subconstitutional Constitutional Law: Supplement, Sham, Or Substitute?, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
In this brief Comment I make two points. First, the subconstitutional doctrines appear to have the advantage of allowing elected lawmakers to pursue whatever course they wish, as long as they satisfy the requirements of these subconstitutional doctrines. In practice, however, what appears to be a provisional invalidation based on subconstitutional law turns out to be - and, indeed, might be expected at the moment of decision to be - a final, unrevisable decision. Further, courts might strategically deploy these sub constitutional doctrines to avoid the sting of the charge that they are foreclosing legislative choice while effectively doing so. …
Defending Congress, Seth P. Waxman
Defending Congress, Seth P. Waxman
Georgetown Law Faculty Publications and Other Works
Every year the Solicitor General must decide, one case at a time, what the interests of the United States are with respect to several thousand different cases in the federal and state courts. Should the United States appeal, or seek rehearing, or petition for certiorari, or file a brief amicus curiae, or intervene? What issues should the United States raise, and what arguments should it make? How should the law be interpreted or the doctrine applied? The goal is for the United States to speak with one voice - a voice that reflects the interests of all three branches of …
"Shut Up He Explained", Mark V. Tushnet
"Shut Up He Explained", Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
Part I of this Commentary examines the conversational model of politics. I argue that the virtues Bennett finds in the conversational model exist only when, and to the extent that, participants in civil and political society can engage in undominated conversation. The requirement that conversation be undominated generates a substantial set of social prerequisites, mostly dealing with equality. And yet, determining what social arrangements actually satisfy those prerequisites is itself a matter of constitutional controversy. Resolving such controversies through politics is no solution, because the political arena is where we seek to ensure that nondomination prevails in civil society, and, …
The Marbury Mystery: Why Did William Marbury Sue In The Supreme Court?, Susan Low Bloch
The Marbury Mystery: Why Did William Marbury Sue In The Supreme Court?, Susan Low Bloch
Georgetown Law Faculty Publications and Other Works
In 1801, when William Marbury petitioned the Supreme Court to issue a writ of mandamus ordering Secretary of State James Madison to deliver his commission as justice of the peace, he initiated one of the most important cases in the Court's history. But why did Marbury choose the Supreme Court? Was there a lower federal court that could have granted the writ at the time? The short answer is "yes." Rather than making an unsuccessful attempt to invoke the original jurisdiction of the United States Supreme Court, I have learned that he could have brought his suit in the then …
Willard Hurst And The Administrative State: From Williams To Wisconsin, Daniel R. Ernst
Willard Hurst And The Administrative State: From Williams To Wisconsin, Daniel R. Ernst
Georgetown Law Faculty Publications and Other Works
This article follows Willard Hurst from his undergraduate days at Williams College through the start of his teaching career at Wisconsin in the fall of 1937. During these years Hurst acquired an abiding interest in the rise of the administrative state as well as some of the insights he would use to account for it in his mature work. For the most part, the article proceeds chronologically through four episodes in Hurst's training: (1) his year-long study of Charles and Mary Beard's "Rise of American Civilization" undertaken as an undergraduate at Williams College; (2) his three years as a student …
Eleventh Amendment Schizophrenia, Carlos Manuel Vázquez
Eleventh Amendment Schizophrenia, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
This article argues that conflicting analytical strains run through the Supreme Court's recent majority opinions in the area of state sovereign immunity. The "supremacy" strain stresses that, despite the Eleventh Amendment, the states remain obligated to comply with federal law, and that the Constitution envisions the "necessary judicial means" to enforce these obligations against the state. These means include suits by the federal government, private suits for injunctive relief, and suits seeking damages from state officials in their individual capacities. Thus, according to the supremacy strain, state sovereign immunity is unimportant because it merely bars unnecessary means of enforcing the …
Writing Off Race, Girardeau A. Spann
Writing Off Race, Girardeau A. Spann
Georgetown Law Faculty Publications and Other Works
The constitutionality of affirmative action has now become one of the central topics in the politics of race. Ironically, the United States Constitution says absolutely nothing about affirmative action. The text never mentions the term, and the equal protection language in the Fourteenth Amendment simply begs the question of whether equality requires or precludes the use of affirmative action. The intent of the Framers is similarly unhelpful. We know that the drafters of the Fifth Amendment owned slaves, and the drafters of the Fourteenth Amendment envisioned a racially stratified society. But the Fourteenth Amendment was itself an affirmative action measure, …
Restoring What’S Environmental About Environmental Law In The Supreme Court, Richard J. Lazarus
Restoring What’S Environmental About Environmental Law In The Supreme Court, Richard J. Lazarus
Georgetown Law Faculty Publications and Other Works
In this Article, Professor Richard Lazarus examines the votes of the individual Justices who have decided environmental law cases before the United States Supreme Court during the past three decades. The Article reports on a number of interesting statistics regarding the identity of those Justices who have most influenced the Court's environmental law jurisprudence and the sometimes curious patterns in voting exhibited by individual Justices. Lazarus's thesis is that the Supreme Court's apparent apathy or even antipathy towards environmental law during that time results from the Justices' failure to appreciate environmental law as a distinct area of law. The Justices …
Regulatory Takings And "Judicial Supremacy", J. Peter Byrne
Regulatory Takings And "Judicial Supremacy", J. Peter Byrne
Georgetown Law Faculty Publications and Other Works
The thesis of this Article is that the Court of Federal Claims and the Court of Appeals for the Federal Circuit have become exposed to this classic critique of constitutional decision-making through the recent expansions of the regulatory takings doctrine. Though the chief agent for this expansion has been the Supreme Court, these lower courts have made their own prominent contributions to broadening regulatory takings, and they are far more vulnerable to political reprisals. Like the Due Process Clause in the gilded age, the Takings Clause today can easily be and has been seen as an avenue for inappropriate judicial …
Thinking About The Constitution At The Cusp, Mark V. Tushnet
Thinking About The Constitution At The Cusp, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
What do I mean in saying that we need to think about the Constitution "at the cusp?" I have in mind an image in which we have one way of thinking about the Constitution on one side of a line, and another way of thinking about the Constitution on the other. My sense is that we may have crossed such a line quite recently. I believe that we may be in a new constitutional order, different from the New Deal-Great Society constitutional order that existed from 1937 to sometime in the 1980s. If so, those of us who have been …
The Case Of The Prisoners And The Origins Of Judicial Review, William Michael Treanor
The Case Of The Prisoners And The Origins Of Judicial Review, William Michael Treanor
Georgetown Law Faculty Publications and Other Works
For over one hundred years, scholars have closely studied the handful of cases in which state courts, in the years before the Federal Constitutional Convention, confronted the question whether they had the power to declare laws invalid. Interest in these early cases began in the late nineteenth century as one aspect of the larger debate about the legitimacy of judicial review, a debate triggered by the increasing frequency with which the Supreme Court and state courts were invalidating economic and social legislation. The lawyers, political scientists, and historians who initially unearthed the case law from the 1770s and 1780s used …
Putting The Correct "Spin" On Lucas, Richard J. Lazarus
Putting The Correct "Spin" On Lucas, Richard J. Lazarus
Georgetown Law Faculty Publications and Other Works
Part I describes and discusses the significance of the Lucas majority's desire to draft an opinion making environmental regulations more susceptible to takings challenges. Part II identifies the majority's antiquated notions of the physical and social function of real property as the source of the majority's misguided efforts. Finally, Part III describes how the majority's analytical framework may ultimately make it easier, rather than harder, for environmental protection measures to survive takings challenges.
The Aspirational Constitution, Robin West
The Aspirational Constitution, Robin West
Georgetown Law Faculty Publications and Other Works
Firmly embedded in every theory of judicial decisionmaking lies an important set of assumptions about the way government is supposed to work. Sometimes these theories about government are made explicit. More often they are not. Moreover, deeply embedded in every theory of government is a theory of human nature. Although these assumptions about human nature generally remain latent within the larger theory, because they provide the underpinnings for our ideas about the way government is supposed to work, they drive our notions about judicial decisionmaking. For example, the theory of government reflected in the United States Constitution reveals what one …
Constitutional Scepticism, Robin West
Constitutional Scepticism, Robin West
Georgetown Law Faculty Publications and Other Works
Interpretive constitutional debate over the last few decades has centered on two apparently linked questions: whether the Constitution can be given a determinate meaning, and whether the institution of judicial review can be justified within the basic assumptions of liberalism. Two groups of scholars have generated answers to these questions. The "constitutional faithful" argue that meaning can indeed be determinately affixed to constitutional clauses, by reference to the plain meaning of the document, the original intent of the drafters, evolving political and moral norms of the community, or the best political or moral philosophical theory available and that, because of …