Law Commons^™

What Bush Wants To Hear, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Examination Of The Constitutional Amendment On Marriage: Hearing Before The Subcomm. On The Constitution, Civil Rights, And Property Rights Of The S. Comm. On The Judiciary, 109th Cong., Oct. 20, 2005 (Statement Of Professor Louis Michael Seidman, Geo. U. L. Center), Louis Michael Seidman

Testimony Before Congress

No abstract provided.

House Resolution On The Appropriate Role Of Foreign Judgments In The Interpretation Of The Constitution Of The United States: Hearing Before The Subcommittee On The Constitution, House Committee On The Judiciary, 109th Cong., July 19, 2005 (Statement Of Viet D. Dinh, Prof. Of Law, Geo. U. L. Center), Viet D. Dinh

Testimony Before Congress

No abstract provided.

House Resolution On The Appropriate Role Of Foreign Judgements In The Interpretation Of The Constitution Of The United States: Hearing Before The Subcomm. On The Constitution, H. Comm. On The Judiciary, 109th Cong., July 19, 2005 (Statement Of Nicholas Quinn Rosenkranz, Prof. Of Law, Geo. U. L. Center), Nicholas Quinn Rosenkranz

Testimony Before Congress

No abstract provided.

Human Nature, The Laws Of Nature, And The Nature Of Environmental Law, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

The essay is divided into three parts. Part I considers the ways in which the need for environmental law derives from the tendency of human nature to cause adverse environmental consequences and the ways in which the laws of nature make it more difficult to prevent those consequences absent the imposition of external legal rules. Part II describes how our nation's lawmaking institutions are similarly challenged by the laws of nature. This includes a discussion of how the kinds of laws necessary to bridge the gap between human nature and the laws of nature are systematically difficult for our lawmaking …

Terrorist Speech And The Future Of Free Expression, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The crucial point is this: Both liberal, democratic states, and non-state terrorist organizations need free speech. Prominent scholars have written elegantly and at length on the role of this liberty for the former. While their arguments surface at times in the text, the author does not dwell on them. Instead, she wrestles with the question: Under what circumstances are the interests of the state secured and the opportunism of terrorist organizations avoided? Here, the experiences of the United States and United Kingdom prove instructive. On both sides of the Atlantic, where the state acts as sovereign, efforts to restrict persuasive …

Constitutionalization, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Students of constitutional law tend to suspect pretty early on that the Constitution simply means whatever the Supreme Court says that it means. Rather than fight that intuition, I think it is best to treat the student insight as one of the basic starting assumptions when teaching a course in Constitutional Law. The goal then becomes to help students figure out how best to maneuver and feel comfortable in a legal universe where the Constitution has only contingent meaning.

What the Supreme Court does when it clothes its political policy preferences in the garb of constitutional law can be described …

Judicial Selection: Ideology Versus Character, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Part I of Judicial Selection: Ideology versus Character sets the stage for an argument that character and not political ideology should be the primary factor in the selection of judges. Political ideology has played an important role in judicial selection, from John Adams's entrenchment of federalists as judges after the election of 1800 to the Roosevelt's selection of progressives, liberals, and New Dealers, the contemporary era, from the failed nominations of Fortas, Haynsworth, Carswell to the defeat of Robert Bork, the narrow confirmation of Clarence Thomas. But until recently, political ideology has played its role behind the scenes--mostly off the …

Judicial Review Before Marbury, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

While scholars have long probed the original understanding of judicial review and the early judicial review case law, this article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the Founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), …

The Politics Of The Geneva Conventions: Avoiding Formalist Traps, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The Geneva Conventions were drafted in 1949, in another world. The world of the Geneva Conventions' "framers" is still familiar to all of us, though increasingly it is familiar from movies and books rather from the evening news or, still less, our own lived experience. The world in which the Conventions were drafted was a world of states: powerful states, weak states, predatory states, law-abiding states, but states all the same. Soldiers wore uniforms designed by their states, carried weapons issued by their states, obeyed orders given by their commanders, and fought against the armies of other states.

Well--most of …

The Justice Of Administration: Judicial Responses To Executive Claims Of Independent Authority To Interpret The Constitution, Brian Galle

Georgetown Law Faculty Publications and Other Works

There is a growing trend in federal agencies towards explicit consideration of the Constitution, and the principles of justice that it suggests. In controversies ranging from the Justice Department's challenge to the Oregon Death With Dignity Act to IRS regulation of the political activities of non-profits, agencies have come more and more to rely on their own view of what the Constitution requires or implies.

Academic commentary almost universally lauds this move toward interpretive autonomy, if not the specific interpretations that the current administration has offered. Advocates of republicanism and cooperative regulation welcome the opportunities for wider public deliberation on …

The Very Idea Of A First Amendment Right Against Compelled Subsidization, Gregory Klass

Georgetown Law Faculty Publications and Other Works

At present, it is difficult to discern what rules govern compelled subsidization and where the constitutional limits lie. The root cause of the current confusion is the Supreme Court's failure to provide a coherent account of the First Amendment harm of compelled subsidization. Part I of this Article describes the present state of the doctrine. It identifies a number of practical problems, especially the imprecisions in and conflicts between the Court's holdings that leave it unclear how lower courts should decide novel cases. Part II is a critical discussion of the two most common arguments for a First Amendment right …

Constitutive Commitments And Roosevelt's Second Bill Of Rights: A Dialogue, Randy E. Barnett, Cass R. Sunstein

Georgetown Law Faculty Publications and Other Works

What made the Second Bill of Rights possible? Part of the answer lies in a simple idea, one pervasive in the American legal culture during Roosevelt's time: No one really opposes government intervention. Markets and wealth depend on government. Without government creating and protecting property rights, property itself cannot exist. Even the people who most loudly denounce government interference depend on it every day. Their own rights do not come from minimizing government but are a product of government. Political scientist Lester Ward vividly captured the point: "[T]hose who denounce state intervention are the ones who most frequently and successfully …

Grading Justice Kennedy: A Reply To Professor Carpenter, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

I want to thank the editors of the Minnesota Law Review for soliciting this Reply to Professor Dale Carpenter's provocative analysis of my assessment of Justice Kennedy's opinion in Lawrence v. Texas. As it turns out, though we do disagree about Lawrence, Professor Carpenter and I have fewer disagreements than he thinks. To begin to see why, let us imagine that, like many other professors, he had used the facts and lower opinion in Lawrence as the basis for his final examination in his course on Constitutional Law. On the exam, he asked his students to write an opinion for …

Terror And Race, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The United States is now engaged in an internationally prominent war on terror. That war, however, is being waged in a way that threatens to cause the same types of harm to the democratic values of the United States that the Nation's terrorist enemies are hoping to inflict. Foreign terrorists are attempting to undermine the fundamental liberties that United States culture claims to hold dear. But those are the same liberties that our own government has asked us to forego in its effort to win the war on terror. The paradoxical irony entailed in the United States government's demand that …

Trumping Precedent With Original Meaning: Not As Radical As It Sounds, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Originalism was thought to be buried in the 1980s with critiques such as those by Paul Brest and Jeff Powell. Brest charged that originalism was unworkable, while Powell maintained that originalism was inconsistent with the original intentions of the Founders. Others raised the moral challenge of why we should be ruled by the "dead hand" of the past. Yet an originalist approach to interpretation has-like a phoenix from the ashes or Dracula from his grave, depending on your point of view-survived into the Twenty-first Century as an intellectual contender. Indeed, it has thrived like no other approach to interpretation.

Foreword: What's So Wicked About Lochner?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this brief Foreword to a forthcoming symposium on Lochner v. New York, Professor Randy Barnett asks the question, What's So Wicked About Lochner? Modern Progressives cannot complain about its protection of so-called substantive due process, since they favor just that. Nor can they claim that Lochner violates the original meaning of the Fourteenth Amendment, since these legal analysts by and large reject originalism altogether. This leaves only today's judicial conservatives to adhere to a purified Roosevelt New Deal jurisprudence of disdain for Lochner.

The author answers that Lochner is objectionable precisely because its reliance on the Due …

Why You Should Read My Book Anyhow: A Reply To Trevor Morrison, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Authors rarely have the opportunity to respond to their reviewers in the same issue in which the review is published, so I am grateful to the Cornell Law Review for inviting me to do so and to Trevor Morrison for graciously agreeing. I am also appreciative of the respectful tone that Professor Morrison employs in his comments on a book with which he so obviously disagrees. Coming from a critic, the positive qualities he attributes to Restoring the Lost Constitution: The Presumption of Liberty are especially significant. Yet he does disagree with me, which means that I disagree with him, …

Controlling Executive Power In The War On Terrorism, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

How does - or should - the U.S. Constitution regulate the exercise of power in response to threats to national security, to ensure that power is used wisely? s Broadly speaking, two mechanisms of control are available: a separation-of-powers mechanism and a judicial-review mechanism. Both mechanisms aim to ensure that the national government exercises its power responsibly - with sufficient vigor to meet the nation's challenges, but without intruding on protected liberties. Under the separation-of-powers mechanism, nearly all of the work of regulating power is done by the principle that the President can do only what Congress authorizes. Its primary …

Limiting Raich, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

On Monday, November 29th, 2004, at 10:30 a.m., I rose to argue the case of Gonzales v. Raich in the Supreme Court on behalf of Angel Raich and Diane Monson. On Monday, June 6th, 2005, at 10:00 a.m., the Court announced its decision. Even today it is painful to read the opinions in the case. I am saddened for my clients, and the thousands like them, whose suffering is alleviated by the use of cannabis for medical purposes, as recommended by their physicians and permitted by the laws of their states, but who are nevertheless considered criminals by the federal …

The Unfulfilled Promise Of The Constitution In Executive Hands, Cornelia T. Pillard

Georgetown Law Faculty Publications and Other Works

Many leading constitutional scholars now argue for greater reliance on the political branches to supplement or even supplant judicial enforcement of the Constitution. Responding to our national preoccupation with the judiciary as the mechanism of constitutional enforcement, these scholars stress that the executive and legislature, too, bear responsibility to think about the Constitution for themselves and to take steps to fulfill the Constitution's promise. Joining a debate that goes back at least as far as Marbury v. Madison, current scholars seek to reawaken the political branches to their constitutional potential, and urge the Supreme Court to leave the other branches …

"Meet The New Boss": The New Judicial Center, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

A document entitled ‘Guidelines on Constitutional Litigation’ published in 1988 by the Reagan era Department of Justice is the springboard for Professor Tushnet's discussion of the Supreme Court's "new center. " The Guidelines urged Department of Justice litigators to foster a nearly exclusive reliance on original understanding in constitutional interpretation and to resort to legislative history only as a last resort. The Guidelines also advised Department of Justice litigators to seek substantive legal changes including more restrictive standing requirements, an end to the creation of unenumerated individual rights, greater constitutional protection of property rights, and greater limits on congressional power. …

Spiritual Custody: Relational Rights And Constitutional Commitments, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

Patricia and David Zummo were married on December 17, 1978. When they divorced ten years later, the Zummos were unable to come to agreement about the religious upbringing of their three children. Prior to their marriage, Patricia and David had agreed that they would raise their children in the Jewish faith, and while they were married, "the Zummo family participated fully in the life of the Jewish faith and community." But after the divorce David wanted to take the children to Roman Catholic services as he saw fit, and he refused to arrange for the children's attendance at Hebrew School …

A Civic-Republican Vision Of "Domestic Dependent Nations" In The Twenty-First Century: Tribal Sovereignty Re-Envisioned, Reinvigorated, And Re-Empowered, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

As a cure for what ails democracy in a pluralistic modem society, such as ours, Michael Sandel recommends "dispersing" sovereignty to a "multiplicity of [civic republican] communities--some more, some less extensive than nations." He intimates that doing this "may entail according greater cultural and political autonomy to subnational communities," which, in turn might "ease the strife that arises when state sovereignty is an all-or-nothing affair, absolute and indivisible, the only meaningful form of self-determination." He sees in federalism not just a "theory of intergovernmental relations," but a "political vision" that "self-government works best when sovereignty is dispersed and citizenship formed …