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Toward Humanistic Theories Of Legal Justice, Robin West
Toward Humanistic Theories Of Legal Justice, Robin West
Georgetown Law Faculty Publications and Other Works
In an oft-quoted aside, Justice Holmes once remarked that when lawyers in his courtroom make appeal to justice, he stops listening: such appeals do nothing but signal that the lawyer has neither the facts nor law on his side, or worse, that he is ignorant of whatever law might be relevant.' Holmes's remark has not gone unheeded. Holmes's legacy, in part, is precisely this lapse: we don't have, or teach, a guiding theory of legal justice, nor do we have, or teach, a family of competing theories of legal justice, that might inform our work in law, at least as …
Judges As Advicegivers, Neal K. Katyal
Judges As Advicegivers, Neal K. Katyal
Georgetown Law Faculty Publications and Other Works
Since Alexander Bickel, scholars have understood the Supreme Court to have a threefold power: striking down acts for unconstitutionality, legitimating them, or employing the passive virtues. Professor Katyal contends that the Court wields a fourth power: advicegiving. Advicegiving occurs when judges recommend, but do not mandate, a particular course of action based on a concern for rule or principle. Courts have been giving advice, consciously at times, unconsciously at others, and this article seeks to provide a normative justification for the practice. Professor Katyal breaks down advicegiving into several categories and explains how advice, when given to the political branches, …