Law Commons^™

Tom Paine's Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

In Common Sense, our brief for the American Revolution, the pamphleteer Tom Paine famously declared that “in America the law is king.” What, precisely, is the “law” that Paine declared to have dethroned the king? Does the phrase, penned by the advocate not only of our revolution but also of the rights of man everywhere, presage our modern practice of rights-based constitutionalism? This reading – in America, constitutional law is king – might also make Paine an early friend of judicial review, as he was unquestionably also a friend of United States constitutionalism, both federal and state. Paine’s manifesto can …

Rex E. Lee Conference On The Office Of The Solicitor General Of The United States: Panel For Former Solicitors General, Seth P. Waxman, Walter E. Dellinger Iii, Kenneth W. Starr, Charles Fried, Drew S. Days Iii

Georgetown Law Faculty Publications and Other Works

I agree entirely that the chain of command is clear and that the Framers managed to make it all the way through all the articles of the Constitution without even conceiving of a solicitor general, let alone bothering to mention an attorney general. It is important nonetheless to distinguish between those things the solicitor general does pursuant to the longstanding notice-and-comment regulation, and the other things a solicitor general may do pursuant to his (and, someday, her!) statutory obligation to be of general assistance to the attorney general.

Re-Imagining Justice, Robin West

Georgetown Law Faculty Publications and Other Works

What do we mean by legal justice, as opposed to distributive, or social, or political justice; what is the justice, that is, we hope law promotes? What is the justice that lawyers and judges, peculiarly, are professionally committed to pursue? What is the virtue around which, arguably, this profession, and the individuals within it, have defined their public lives?

Justice -- and more particularly legal justice -- is a badly under-theorized topic in jurisprudence; perhaps surprisingly, there is little written on it. The paucity of writing of course has a history. It can be traced to the turn of the …

Re-Imagining Justice: Progressive Interpretations Of Formal Equality, Rights, And The Rule Of Law, Robin West

Georgetown Law Faculty Publications and Other Works

Resurrecting the neglected question of what we mean by legal justice, this book seeks to re-imagine rather than simply critique contemporary notions of the rule of law, rights and legal equality. A work of reconstruction, it offers a progressive and egalitarian approach to concepts that have become overly associated with the idea of limited government and social conservatism. Focusing on the necessary conditions of cooperative community life, the book presents a vision of law that facilitates rather than frustrates politics, an analysis of rights that boosts our capacities for caring, and an idea of equality that captures a cosmopolitan vision …

Reconceptualizing Criminal Law Defenses, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In 1933, one of the leading theorists of the criminal law, Jerome Michael, wrote openly of the criminal law "as an instrument of the state." Today, criminal law is largely allergic to claims of political theory; commentators obsess about theories of deterrence and retribution, and the technical details of model codes and sentencing grids, but rarely speak of institutional effects or political commitments. In this article, the author aims to change that emphasis and to examine the criminal law as a tool for governance. Her approach is explicitly constructive: it accepts the criminal law that we have, places it in …

Reconsidering Legalism, Robin West

Georgetown Law Faculty Publications and Other Works

This essay is in the spirit of a friendly amendment. I have found Shklar's central arguments to be more compelling every time I have reread this book over the last twenty years. Nevertheless, I want to argue in this essay that in spite of Legalism's strengths, Shklar's core anthropological claim about the profession - more often asserted, rather than argued, throughout the book - that legalism, the attitudinal glue that binds lawyers professionally, consists of a commitment to the morality of rule abidance - is flawed, not because it is wrong, but because it is underinclusive. While legalism consists of …

Rex E. Lee Conference On The Office Of The Solicitor General Of The United States: Clinton Ii Panel, Seth P. Waxman, Walter E. Dellinger Iii, Barbara D. Underwood, Michael R. Dreeben

Georgetown Law Faculty Publications and Other Works

I will say a few words about Dickerson, both because Michael has made it impossible not to and also because in some ways it represents the very best about how all of the wonderful, tried-and-true processes of the SG's Office ought to work. Dickerson was very much like the other case that Michael talked about (which is one of, I think, two significant privilege controversies which the Independent Counsel laid on our doorstep). These cases may have appeared to the outside world as paradigmatically cases in which we would be hearing from the White House, or talking to the White …