Law Commons^™

The Constitution And Legislative History, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In this article, the author provides an extended analysis of the constitutional claims against legislative history, arguing that, under textualists’ own preference for constitutional text, the use of legislative history should be constitutional to the extent it is supported by Congress’s rulemaking power, a constitutionally enumerated power.

This article has five parts. In part I, the author explains the importance of this question, considering the vast range of cases to which this claim of unconstitutionality could possibly apply—after all, statutory interpretation cases are the vast bulk of the work of the federal courts. She also explains why these claims should …

Proportionality In Constitutional And Human Rights Interpretation, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this article the author, in a context in which principles and the principle of proportionality are at the heart not only of jurisprudence but also of constitutional and human rights interpretation, claims that when there were those ready to raise the hand to declare a unanimous winner, some critics and skeptics appeared. In addition, to the traditional objections, they worry that proportionality invites to doing unnecessary balancing between existing rights, inventing new rights out of nothing at all (in detriment of those already well-established ones), and even worse in doing so balancing some rights away. In order to answer …

H. L. A. Hart’S Moderate Indeterminacy Thesis Reconsidered: In Between Scylla And Charybdis?, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this article, in the context of the fiftieth anniversary of H. L. A. Hart’s The Concept of Law, The author reconsiders the moderate indeterminacy of law thesis, which derives from the open texture of language. For that purpose, the author intends: first, to analyze Hart’s moderate indeterminacy thesis, i.e. determinacy in “easy cases” and indeterminacy in “hard cases,” which resembles Aristotle’s “doctrine of the mean”; second, to criticize his thesis as failing to embody the virtues of a center in between the vices of the extremes, by insisting that the exercise of discretion required constitutes an “interstitial” legislation; …