Judges Commons^™

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 …

The Bad Man And The Good Lawyer: A Centennial Essay On Holmes's The Path Of The Law, David Luban

Georgetown Law Faculty Publications and Other Works

Although Justice Holmes did not much enjoy listening to speeches (he once wondered "what makes the world throng to hear loose-fibred and coarse-grained men drool"), he had a remarkable gift for writing them. Holmes's 1920 Collected Legal Papers includes a dozen speeches and addresses, all delivered to student audiences or lawyers' associations, and there are unexpected pleasures to be found in every one. He had published all but four in a previous book of speeches, where he described them as "chance utterances of faith and doubt.., for a few friends who will care to keep them."' Among the four he …

Integrity And Universality: A Comment On Dworkin's Freedom's Law, Robin West

Georgetown Law Faculty Publications and Other Works

Ronald Dworkin has done more than any other constitutional lawyer, past or present, to impress upon us the importance of  integrity to constitutional law, and hence to our shared public life. Far from being merely a private virtue, Dworkin has shown that integrity imposes constraints upon and provides guidance to the work of judges in constitutional cases: Every constitutional case that comes before a court must be decided by recourse to the same moral principles that have dictated results in relevant similar cases in the past. Any group or individual challenging the constitutionality of legislation which adversely affects his or …

The Armstrong Principle, The Narratives Of Takings, And Compensation Statutes, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

The Takings Clause of the Fifth Amendment is famous for inspiring disagreement. More than one hundred years have passed since the Supreme Court departed from the original understanding of the clause and interpreted regulations as potentially falling within its ambit. Although the passage of time has established the principle that regulations can run afoul of the Takings Clause, the Court has been unable to offer a coherent vision of when compensation is required. Academic commentators also have failed to reach agreement on the issue, offering an enormous range of solutions to the takings question. The newest field of controversy involves …

Foreword: "Do What You Can...", Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

"Do what you can with what you have." That's what Thurgood Marshall preached. That is how he lived. He used what he had to change the world forever.

The Case Of The Prisoners And The Origins Of Judicial Review, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

For over one hundred years, scholars have closely studied the handful of cases in which state courts, in the years before the Federal Constitutional Convention, confronted the question whether they had the power to declare laws invalid. Interest in these early cases began in the late nineteenth century as one aspect of the larger debate about the legitimacy of judicial review, a debate triggered by the increasing frequency with which the Supreme Court and state courts were invalidating economic and social legislation. The lawyers, political scientists, and historians who initially unearthed the case law from the 1770s and 1780s used …

Natural Law Ambiguities, Robin West

Georgetown Law Faculty Publications and Other Works

I share with Fred Schauer the relatively unpopular belief that the positivist insistence that we keep separate the legal "is" from the legal "ought" is a logical prerequisite to meaningful legal criticism, and therefore, in the constitutional context, is a logical prerequisite to meaningful criticism of the Constitution. As Schauer argues, despite the modern inclination to associate positivism with conservatism, the positivist "separation thesis," properly understood, facilitates legal criticism and legal reform, not reactionary acquiescence. If we want to improve law, we must resist the urge to see it through the proverbial rose-colored glasses; we must be clear that a …

Prospective Overruling And The Revival Of ‘Unconstitutional' Statutes, William Michael Treanor, Gene B. Sperling

Georgetown Law Faculty Publications and Other Works

The Supreme Court's decision in Planned Parenthood v. Casey reshaped the law of abortion in this country. The Court overturned two of its previous decisions invalidating state restrictions on abortions, Thornburgh v. American College of Obstetricians and Gynecologists and Akron v. Akron Center for Reproductive Health, and it abandoned the trimester analytic framework established in Roe v. Wade. At the time Casey was handed down, twenty states had restrictive abortion statutes on the books that were in conflict with Akron or Thornburgh and which were unenforced. In six of these states, courts had held the statutes unconstitutional. Almost …

Thurgood Marshall: Tax Lawyer, Stephen B. Cohen

Georgetown Law Faculty Publications and Other Works

During his twenty-four years on the Supreme Court, Justice Thurgood Marshall wrote better opinions on the law of federal income taxation than any of his fellow Justices. This is, of course, a subjective appraisal which others may dispute. Nevertheless, from two decades of teaching federal income taxation, I am convinced of the quality of Marshall's work.

Introductory Remarks: Brown V. Board Of Education And Its Legacy: A Tribute To Justice Thurgood Marshall, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This issue of the Fordham Law Review presents Fordham Law School's tribute to one of the giants of American law and American history on the occasion of his retirement from the Supreme Court, Justice Thurgood Marshall. Because he decided to make the law his career and because of the way in which he pursued that career, the United States today is a remarkably different place than it was in 1933 when he began practice, and ours is a far more just society.

Justice Marshall made history repeatedly--as Chief Counsel of the NAACP Legal Defense Fund, as Judge of the United …

Thurgood Marshall: Courageous Advocate, Compassionate Judge, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Thurgood Marshall's life has spanned virtually the entire twentieth century, allowing him to witness its worst and its best. When he was born in 1908, segregation was legal and pervasive, and racial hatred extreme; in the year of his birth alone, eighty-nine black men were lynched. A grandson of slaves on both sides of his family, Marshall knew, from an early age, both the ugliness and the tenacity of racism. Determined to fight it, Marshall disregarded the difficulties and the dangers, and spent his life battling discrimination, earning the nickname "Mr. Civil Rights." His efforts, coupled with those of others …

Judge (A Tribute To Judge Frank M. Coffin), J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Becoming Judge Coffin's law clerk must be the most fortunate of conclusions to a legal education. His judicial craftsmanship sets a standard for thoughtful professionalism that a young lawyer can never outgrow. In those salt-scented and book-lined chambers, briefs were painstakingly and critically read, precedents and statutes honestly interpreted and challenged to yield just results, opinions written and rewritten to convey the significance of a small distinction or the applicability of a large principle.

Progressive And Conservative Constitutionalism, Robin West

Georgetown Law Faculty Publications and Other Works

American constitutional law in general, and fourteenth amendment jurisprudence in particular, is in a state of profound transformation. The "liberal-legalist" and purportedly politically neutral understanding of constitutional guarantees that dominated constitutional law and theory during the fifties, sixties, and seventies, is waning, both in the courts and in the academy. What is beginning to replace liberal legalism in the academy, and what has clearly replaced it on the Supreme Court, is a very different conception - a new paradigm - of the role of constitutionalism, constitutional adjudication, and constitutional guarantees in a democratic state. Unlike the liberal-legal paradigm it is …

The Meaning Of Equality And The Interpretive Turn, Robin West

Georgetown Law Faculty Publications and Other Works

The turn to hermeneutics and interpretation in contemporary legal theory has contributed at least two central ideas to modern jurisprudential thought: first, that the "meaning" of a text is invariably indeterminate -- what might be called the indeterminacy claim -- and second, that the unavoidably malleable essence of texts -- their essential inessentiality -- entails that interpreting a text is a necessary part of the process of creating the text's meaning. These insights have generated both considerable angst, and considerable excitement among traditional constitutional scholars, primarily because at least on first blush these two claims seem to inescapably imply a …

Taking The Framers Seriously, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This article reviews Taking the Constitution Seriously by Walter Berns (1987).

This review focuses on three of the key historical points that Walter Berns makes: his arguments that the Declaration of Independence is a Lockean document; that the Constitution encapsulates the political philosophy of the Declaration; and that the framers viewed the commercialization of society as a salutary development and were unambivalent champions of the right to property. Examination of these issues suggests that the ideological universe of the framers was far more complex than Berns indicates. While the revolutionary era witnessed a new concern with individual rights and a …

The Virtues And Vices Of A Judge: An Aristotelian Guide To Judicial Selection, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

A core insight of the legal realists was that many disputes are indeterminate. For example, in many appellate adjudications, respectable legal arguments can be made for both sides of the dispute. A contemporary reaction to the realist insight by critical legal scholars is expressed in the slogan "Law is politics." This critical slogan might be elaborated as follows: in openly political activities, such as the legislative process or partisan elections, debate centers on issues of value and social vision that are outside the scope of "legal reasoning." Judicial opinions merely dress up political decisions in the garb of legal reasoning. …

Judicial Conservatism V. A Principled Judicial Activism: Foreword To The "Symposium On Law And Philosophy", Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In the wake of the Reagan administration's numerous judicial appointments, it is the rare observer of the American legal scene who has not thought seriously about the proper role of the judge in enforcing the law. Editorialists, columnists, and academicians are all debating in one form or another the classic jurisprudential question: "What is law?" While such questions have never completely dropped from sight, we are now in a period of constructive intellectual turmoil much like those surrounding the Nuremburg trials and the civil rights movement. Such periods are usually characterized by, and perhaps caused by, a perception among an …

Nativity Scenes And Judicial Responsibility, Norman Dorsen, Charles Sims, Georgetown University Law Center

Philip A. Hart Memorial Lecture

On March 22, 1985, Professor of Law, Norman Dorsen of New York University School of Law, delivered the Georgetown Law Center’s fifth Annual Philip A. Hart Memorial Lecture: "Nativity Scenes and Judicial Responsibility."

Norman Dorsen is Counselor to the President of New York University and Stokes Professor of Law, NYU School of Law, where he has taught since 1961. He is co-director of the Arthur Garfield Hays Civil Liberties Program and was the founding director of NYU's Hauser Global Law School Program in 1994.

Dorsen performed military service in the office of the Secretary of the Army, where he assisted …

In Memoriam: Charles Fahy, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

Charles Fahy received a Bachelor of Laws degree from Georgetown in 1914. He attended school in the evenings while working in the day as legal secretary to Joseph J. Darlington, then a leader of the local bar.