Law Commons^™

Interpretation And Construction In Altering Rules, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This essay is a response to Ian Ayres's, "Regulating Opt-Out: An Economic Theory of Altering Rules," 121 Yale L.J. 2032 (2012). Ayres identifies an important question: How does the law decide when parties have opted-out of a contractual default? Unfortunately, his article tells only half of the story about such altering rules. Ayres cares about rules designed to instruct parties on how to get the terms that they want. By focusing on such rules he ignores altering rules designed instead to interpret the nonlegal meaning of the parties' acts or agreement. This limited vision is characteristic of economic approaches to …

Foreword: Academic Influence On The Court, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The months leading up to the Supreme Court’s blockbuster decision on the Affordable Care Act (ACA) were characterized by a prodigious amount of media coverage that purported to analyze how the legal challenge to Obamacare went mainstream. The nation’s major newspapers each had a prominent story describing how conservative academics, led by Professor Randy Barnett, had a long-term strategy to make the case appear credible. In the first weeks after the ACA’s passage, the storyline went, the lawsuit’s prospects of success were thought to be virtually nil. Professor (and former Solicitor General) Charles Fried stated that he would “eat a …

Chief Justices Marshall And Roberts And The Non-Self-Execution Of Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article is a response to David L. Sloss, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties, 53 Harv. Int'l L L.J. 135 (2012).

David Sloss’s article, Executing Foster v. Neilson, is an important contribution to the literature on the judicial enforcement of treaties. The author agrees with much of it, as he agrees with much of Professor Sloss’ other writing on treaties. In particular, the author agrees that the two-step approach to treaty enforcement that Professor Sloss proposes is generally the right approach, and he agrees that the “intent-based” approach to the self-execution issue …

The First Amendment’S Borders: The Place Of Holder V. Humanitarian Law Project In First Amendment Doctrine, David Cole

Georgetown Law Faculty Publications and Other Works

In Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian Law Project …