Law Commons^™

Amicus Briefs Of The National Association Of Consumer Advocates In Day V. Persels & Associates, 729 F.3d 1309 (11th Cir. 2013), Brian Wolfman

U.S. Supreme Court Briefs

These amicus briefs are likely to interest legal academics and practitioners who write, research, and practice in the areas of (1) federal courts, (2) class actions, (3) separation of powers, (4) constitutional law more generally, and (4) federal litigation.

In Day v. Persels & Associates, 729 F.3d 1309 (11th Cir. 2013), an absent class member objected to a class-action settlement. The objector argued that the settlement was unfair because, among other reasons, it provided no monetary recovery to the class members. In the district court, prior to class certification and settlement, the defendants and the named plaintiff had consented …

How Nfib V. Sebelius Affects The Constitutional Gestalt, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The thesis of this essay is that the most important legal effects of the Supreme Court's decision in NFIB v. Sebelius are likely to be indirect. Sebelius marks a possible shift in what we can call the “constitutional gestalt” regarding the meaning and implications of the so-called “New Deal Settlement.” Before Sebelius, the consensus understanding was that New Deal and Warren Court cases had established a constitutional regime of plenary and virtually unlimited national legislative power under the Commerce Clause (which might be subject to narrow and limited carve outs protective of the core of state sovereignty).

After Sebelius …

Decision Theory And Babbitt V. Sweet Home: Skepticism About Norms, Discretion, And The Virtues Of Purposivism, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In this writing, the author applies a “decision theory” of statutory interpretation, elaborated recently in the Yale Law Journal, to Professor William Eskridge’s illustrative case, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. In the course of this application, she takes issue with the conventional wisdom that purposivism, as a method of statutory interpretation, is inevitably a more virtuous model of statutory interpretation. First, the author questions whether we have a clear enough jurisprudential picture both of judicial discretion and legal as opposed to political normativity. Second, she argues that, under decision theory, Sweet Home is …

Legal Affairs: Dreyfus, Guantánamo, And The Foundation Of The Rule Of Law, David Cole

Georgetown Law Faculty Publications and Other Works

The Dreyfus affair reminds us that the rule of law and basic human rights are not self-executing. In a democracy, individual rights and the rule of law are designed to check popular power and protect the individual from the majority. Yet paradoxically, they cannot do so without substantial popular support. Alfred Dreyfus received two trials—or at least the trappings thereof—and was twice wrongly convicted. The rule of law was initially unable to stand between an innocent man and the powerful men who sought to frame him. But the issue of Dreyfus's guilt or innocence was not …

Brief Of Amicus Curiae Academic Authors And Legal Scholars In Support Of Defendants Appellees And Affirmance, Nos. 12-14676-Ff, 12-15147-Ff (April 25, 2013), David R. Hansen, Peter A. Jazsi, Pamela Samuelson, Jason Schultz, Rebecca Tushnet

U.S. Supreme Court Briefs

No abstract provided.

The Constitutional And Counterterrorism Implications Of Targeted Killing : Hearing Before The S. Judiciary Subcomm. On The Constitution, Civil Rights, And Human Rights, 113th Cong., April 23, 2013 (Statement By Professor Rosa Brooks, Geo. U. L. Center), Rosa Brooks

Testimony Before Congress

Mr. Chairman, the mere mention of drones tends to arouse strong emotional reactions on both sides of the political spectrum, and last week's tragic events in Boston have raised the temperature still further. Some demonize drones, denouncing them for causing civilian deaths or enabling long-distance, "video game-like" killing, even as they ignore the fact that the same (or worse) could equally be said of many other weapons delivery systems. Others glorify drones, viewing them as a low- or no-cost way to "take out terrorists" wherever they may be found, with little regard for broader questions of strategy or the rule …

Tackling The Global Ncd Crisis: Innovations In Law And Governance, Bryan P. Thomas, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

35 million people die annually of non-communicable diseases (NCDs), 80% of them in low- and middle-income countries—representing a marked epidemiological transition from infectious to chronic diseases and from richer to poorer countries. The total number of NCDs is projected to rise by 17% over the coming decade, absent significant interventions. The NCD epidemic poses unique governance challenges: the causes are multifactorial, the affected populations diffuse, and effective responses require sustained multi-sectorial cooperation. The authors propose a range of regulatory options available at the domestic level, including stricter food labeling laws, regulation of food advertisements, tax incentives for healthy lifestyle choices, …

Construction And Constraint: Discussion Of Living Originalism, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Jack Balkin's Living Originalism raises many important questions about contemporary constitutional theory. Can and should liberals and progressives embrace originalism? Can the New Deal expansion of national legislative power be given originalist foundations? Is there a plausible originalist case for a right to reproductive autonomy and hence for the Court's decision in Roe v. Wade? Is the fact of theoretical disagreement among originalists evidence for the thesis that the originalist project is in disarray?

Tobacco Endgame Strategies: Challenges In Ethics And Law, Bryan P. Thomas, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

There are complex legal and ethical tradeoffs involved in using intensified regulation to bring smoking prevalence to near-zero levels. The authors explore these tradeoffs through a lens of health justice, paying particular attention to the potential impact on vulnerable populations. The ethical tradeoffs explored include the charge that heavy regulation is paternalistic; the potentially regressive impact of heavily taxing a product consumed disproportionately by the poor; the simple loss of enjoyment to heavily addicted smokers; the health risks posed by, for example, regulating nicotine content in cigarettes—where doing so leads to increased consumption. Turning to legalistic concerns, the authors explore …

Brief Of Amici Curiae Professors Nan D. Hunter, Et Al., Addressing The Merits In Support Of Respondents, Nan D. Hunter, Suzanne B. Goldberg

U.S. Supreme Court Briefs

In this amicus brief filed in United States v. Windsor, pending before the Supreme Court, amici constitutional law professors argue that all classifications that carry the indicia of invidiousness should trigger a more searching inquiry than the traditional rational basis test under the Equal Protection Clause would suggest. Classifications that already receive heightened scrutiny, such as race or sex, fit easily into this approach. But the Court’s equal protection jurisprudence has become muddied in a series of cases in which it says rational basis review, but appears to do a more rigorous review. Sexual orientation classifications seemingly were analyzed …

Why Jeremy Waldron Really Agrees With Me, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Herewith a response to Jeremy Waldron's review of my book, On Constitutional Disobedience. I conclude that Waldron actually agrees with all of my key claims.

From Antislavery Lawyer To Chief Justice: The Remarkable But Forgotten Career Of Salmon P. Chase, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The name Salmon P. Chase is barely known and his career is largely forgotten. In this paper, the author seeks to revive his memory by tracing the arc of his career from antislavery lawyer, to antislavery politician, to Chief Justice of the United States. In addition to explaining why this is a career worth both remembering and honoring, the author offers some possible reasons why his remarkable achievements have largely been forgotten.

Military Commissions And The Paradigm Of Prevention, David Cole

Georgetown Law Faculty Publications and Other Works

Why military commissions? Given the United States’s track record of success in trying terrorists in civilian criminal courts, and the availability of courts-martial to try war crimes, why has the United States government, under both the George W. Bush and Barack Obama administrations alike, insisted on proceeding through untested military commissions instead? In May 2009, President Obama defended military commissions with the following claims:

Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for …

Conditional Spending After Nfib V. Sebelius: The Example Of Federal Education Law, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

In NFIB v. Sebelius, the Supreme Court’s recent case addressing the constitutionality of the Affordable Care Act, the Court concluded that the expansion of Medicaid in that Act was unconstitutionally coercive and therefore exceeded the scope of Congress’s authority under the Spending Clause. This was the first time that the Court treated coercion as an issue of more than mere theoretical possibility under the Spending Clause. In the wake of the Court’s decision, commentators have expressed either the concern or the hope that NFIB’s coercion analysis may lead to the undoing of much of the federal regulatory state, …

Law, Liberty And The Rule Of Law (In A Constitutional Democracy), Imer Flores

Georgetown Law Faculty Publications and Other Works

In the hunt for a better--and more substantial--awareness of the “law,” The author intends to analyze the different notions related to the “rule of law” and to criticize the conceptions that equate it either to the sum of “law” and “rule” or to the formal assertion that “law rules,” regardless of its relationship to certain principles, including both “negative” and “positive” liberties. Instead, he pretends to scrutinize the principles of the “rule of law,” in general, and in a “constitutional democracy,” in particular, to conclude that the tendency to reduce the “democratic principle” to the “majority rule” (or “majority principle”), …

The Gravitational Force Of Originalism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In part I of this essay, prepared for the Fordham conference on “The New Originalism and Constitutional Law,” I describe four aspects of the New Originalism: (1) The New Originalism is about identifying the original public meaning of the Constitution rather than the original framers intent; (2) The interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry; (3) But there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed; (4) Distinguishing between the activities of interpretation and construction identifies …

Afterword: The Libertarian Middle Way, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Libertarianism is sometimes portrayed as radical and even extreme. In this Afterword to a symposium on "Libertarianism and the Law" in the Chapman Law Review, I explain why, though it may be radical, libertarianism is far from extreme in comparison with its principal alternatives: the social justice of the Left or legal moralism of the Right. Social justice posits that everyone should get a certain amount of stuff; legal moralism posits that everyone should act in a certain way. But because there is no consensus about how much stuff each person should have or how exactly everyone should act, …

The Problem Of Democracy In Contexts Of Polarization, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this paper I argue that contemporary democracies all over the world are more polarized than ever and intend to analyze not only the conditions of possibility of a democracy, in general, and in contexts of polarization, in particular, but also the relationship between democracy and polarization. My claim is that polarization, if certain conditions are met, more than a problem it is a great opportunity to democracy and a greater democratization. Hence, I bring to mind that it was Ronald Dworkin, who recently asked about the conditions of possibility of a democracy and its relationship with polarization by developing …

Judges As Bad Reviewers: Fair Use And Epistemological Humility, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

The future of fair use depends on whether judges act like bad reviewers, or whether they behave differently in interpreting challenged works than they do in almost every other aspect of judging. Ordinarily, judges are asked to produce definitive answers about the meanings of texts. But when it comes to literary judgments, the bad reviewer is the one who insists that a work has only one meaning, and announces the bottom line as if it were an absolute. A good reviewer explains the sources of her judgment, making room for other interpretations. This is also what is necessary to a …

The Interpretation-Construction Distinction In Patent Law, Tun-Jen Chiang, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The ambiguity of claim language is generally considered to be the most important problem in patent law today. Linguistic ambiguity is believed to cause tremendous uncertainty about patent rights. Scholars and judges have accordingly devoted enormous attention to developing better linguistic tools to help courts understand patent claims.

In this article, we explain why this diagnosis is fundamentally wrong. Claims are not often ambiguous, and linguistic ambiguity is not a major cause of the uncertainty in patent law today. We shall explain what really causes the uncertainty in patent rights, how the erroneous diagnosis of linguistic ambiguity has led the …

Political And Constitutional Obligation, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In his provocative, courageous, and original new book, "Against Obligation: The Multiple Sources of Authority in a Liberal Democracy," Abner Greene argues that there is “no successful general case for a presumptive (or ‘prima facie’) moral duty to obey the law.” In my own book, "On Constitutional Disobedience," I argue that there is no moral duty to obey our foundational law–the Constitution of the United States. This brief article, prepared for a symposium on the two books to be published by the Boston University Law Review, I address three issues related to these claims. First, I discuss what seem to …

Performance Anxiety: Copyright Embodied And Disembodied, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

The primary economic and cultural significance of copyright today comes from works and rights that weren’t contemplated by the Framers of the Constitution’s Copyright Clause. Performance—both as protected work and as right—is where much of copyright’s expansion has had its greatest impact, as new technologies have made it possible to fix performances in records and films and as cultural change has propelled recorded music and audiovisual works to the forefront of the copyright industries. Yet copyright has never fully conceptualized performance, and this has led to persistent confusion about what copyright protects.

One key problem of performance from copyright’s perspective …

Originalism And The Unwritten Constitution, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In his book, America’s Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America’s founding documents, institutional practices, and ethos, all of which constitute Amar’s “unwritten Constitution.” In this article, the author argues that contemporary originalist constitutional theory is consistent with reliance on extraconstitutional sources in certain circumstances. He establishes a framework for revaluating the use of extratextual sources. That framework categorizes extratextual sources and explains their relevance to constitutional interpretation (the meaning of the text) and constitutional construction (elaboration of constitutional doctrine and …

Originalism And Constitutional Construction, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation-construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities.

This article advances two central claims about constitutional construction. First, constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: …

Preserving Privacy In A Digital Age: Lessons Of Comparative Constitutionalism, David Cole

Georgetown Law Faculty Publications and Other Works

In the modern age, we increasingly live our lives through, and accompanied by, digital media. Virtually every transaction or communication that uses such media, as well as every move of mobile phone owners, is recorded. Computers are able to store, transmit, and analyze the data as never before, drawing on multiple sources to construct an intimate picture of our interests, contacts, travels and desires. Private data-mining services, most often used for commercial advertising purposes, can determine: what we read, listen to, and look at; where we travel to, shop, and dine; and with whom we speak or associate. Meanwhile, social …

Communicative Content And Legal Content, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and mandates). Is the original meaning of the constitutional text binding on the Supreme Court when it develops doctrines of constitutional law? Should statutes be given their plain meaning or should judges devise statutory constructions that depart from the text to serve a purpose? What role should default rules play in the interpretation and construction of contracts? This essay makes two moves that can help lawyers and legal …

Gideon At Guantánamo, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The right to counsel maintains an uneasy relationship with the demands of trials for war crimes. Drawing on the author’s personal experiences from defending a Guantánamo detainee, the Author explains how Gideon set a baseline for the right to counsel at Guantánamo. Whether constitutionally required or not, Gideon ultimately framed the way defense lawyers represented their clients. Against the expectations of political and military leaders, both civilian and military lawyers vigorously challenged the legality of the military trial system. At the same time, tensions arose because lawyers devoted to a particular cause (such as attacking the Guantánamo trial system) were …

Rethinking Legal Conservatism, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

This is the time for us to think through whether an entity as august as the Federalist Society should embrace a move toward a constitutional conservatism. It strikes me as dangerous in terms of the underlying issues, but more importantly, as a step away from the fundamental insight that the Federalist Society had, which was that judges should be restrained because they lack the democratic pedigree of the political branches. There should be an impulse of judicial restraint, and, unless something is clearly unconstitutional, courts should not be mucking around with legislation and declaring it unconstitutional, no matter how novel …

State Law, The Westfall Act, And The Nature Of The Bivens Question, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

In a number of recent cases touching to varying degrees on national security, different courts of appeals have applied a strong presumption against recognition of a Bivens cause of action. In each of these cases, the courts’ approach was based on the belief that the creation of a cause of action is a legislative function and that the courts would be usurping Congress’s role if they recognized a Bivens action without legislative authorization. Thus, faced with a scenario where they believed that the remedial possibilities were either "Bivens or nothing," these courts of appeals chose nothing.

The concerns that …

Welcome To The New Originalism: A Comment On Jack Balkin’S Living Originalism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this short piece for a symposium on Jack Balkin's new book, Living Originalism, I welcome Jack Balkin into the originalist camp. I discuss how and why a nonoriginalist can become an originalist. By discussing how I eventually became an originalist at the end of the last century, I hope to shed some light on what exactly is so remarkable about Jack Balkin’s move. After discussing the appeal of the New Originalism that account for Balkin's originalist move, I conclude by offering a cautionary note about the use of "underlying principles in Balkin's "text and principle" approach, which in certain …