Law and Society Commons^™

Toward An Abolitionist Interpretation Of The Fourteenth Amendment, Robin West

Georgetown Law Faculty Publications and Other Works

It is by now an open secret that current interpretations of the meaning of the equal protection clause of the Fourteenth Amendment, and of its relevance and mandate for contemporary problems of racial, gender, and economic justice, are deeply and, in a sense, hopelessly conflicted. The conflict, simply stated, is this: to the current Supreme Court, and to a sizeable and influential number of constitutional theorists, the "equal protection of the laws" guaranteed by the Constitution is essentially a guarantee that the categories delineated by legal rules will be "rational" and will be rationally related to legitimate state ends. To …

Freedom Of Communicative Action: A Theory Of The First Amendment Freedom Of Speech, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

We are still searching for an adequate theory of the first amendment freedom of speech. Despite a plethora of judicial opinions and scholarly articles, there are fundamental conflicts over the meaning of the words "Congress shall make no law ... abridging the freedom of speech." This Article examines the possibility that recent developments in social theory can aid our understanding of the freedom of speech. My thesis is that Jiirgen Habermas' theory of communicative action can serve as the basis for an interpretation of the first amendment that fits the general contours of existing first amendment doctrine and provides a …

Law, Literature, And The Celebration Of Authority, Robin West

Georgetown Law Faculty Publications and Other Works

Richard Posner's new book, Law and Literature: A Misunderstood Relation, is a defense of “liberal legalism” against a group of modern critics who have only one thing in common: their use of either particular pieces of literature or literary theory to mount legal critiques. Perhaps for that reason, it is very hard to discern a unified thesis within Posner's book regarding the relationship between law and literature. In part, Posner is complaining about a pollution of literature by its use and abuse in political and legal argument; thus, the “misunderstood relation” to which the title refers. At times, Posner suggests …

The Authoritarian Impulse In Constitutional Law, Robin West

Georgetown Law Faculty Publications and Other Works

Should there be greater participation by legislators and citizens in constitutional debate, theory, and decision-making? An increasing number of legal theorists from otherwise divergent perspectives have recently argued against what Paul Brest calls the "principle of judicial exclusivity" in our constitutional processes. These theorists contend that because issues of public morality in our culture either are, or tend to become, constitutional issues, all political actors, and most notably legislators and citizens, should consider the constitutional implications of the moral issues of the day. Because constitutional questions are essentially moral questions about how active and responsible citizens should constitute themselves, we …

Communities, Texts, And Law: Reflections On The Law And Literature Movement, Robin West

Georgetown Law Faculty Publications and Other Works

How do we form communities? How might we form better ones? What is the role of law in that process? In a recent series of books and articles, James Boyd White, arguably the modern law and literature movement's founder, has put forward distinctively literary answers to these questions. Perhaps because of the fluidity of the humanities, White's account of the nature of community is not nearly as axiomatic to the law and literature movement as is Posner's depiction of the "individual" to legal economists. Nevertheless, White's conception is increasingly representative of the literary-legalist's world view. Furthermore, with the exception of …

Economic Man And Literary Woman: One Contrast, Robin West

Georgetown Law Faculty Publications and Other Works

The law and literature movement has been with us long enough that it is now possible to speak seriously of a "literary analysis of law," just as it has become possible, and even standard, to speak of an "economic analysis of law." It is also standard, of course, to speak of that abstract character who has emerged from the economic analysis of law: "economic man." In these brief comments, I want to offer one contrast of the "economic man" that emerges from economic legal analysis with the "literary person" that is beginning to emerge from literary legal analysis. I will …

Causation In Torts, Crimes, And Moral Philosophy: A Reply To Professor Thomson, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Professor Judith Jarvis Thomson's provocative article, 'The Decline of Cause,' focuses on the diminishing importance of causation in law and moral philosophy. In this reply, I suggest answers to some of the questions Professor Thomson raises.

Professor Thomson's article revolves around various forms of a classic dilemma: two persons take equal care but, through chance, their actions produce different results. Does the outcome of their actions matter in a moral assessment of those actions? Professor Thomson first sets out what the styles as the Kantian and 'moral sophisticates" position that the outcome of an act does not and should not …

On The Indeterminacy Crisis: Critiquing Critical Dogma, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Critical legal scholarship challenges the liberal claim that modern western societies are characterized by "the rule of law." The liberal conception of the rule of law, critical scholars contend, serves to mystify and legitimate the legal system and thereby obscure the real issues behind individual cases as well as the real nature of the legal system. Frequently, the claim that legal rules are indeterminate is the starting point for such a critique of the rule of law. What I call the indeterminacy thesis goes roughly like this: the existing body of legal doctrines-statutes, administrative regulations, and court decisions-permits a judge …

Adjudication Is Not Interpretation: Some Reservations About The Law-As-Literature Movement, Robin West

Georgetown Law Faculty Publications and Other Works

Among other achievements, the modern law-as-literature movement has prompted increasing numbers of legal scholars to embrace the claim that adjudication is interpretation, and more specifically, that constitutional adjudication is interpretation of the Constitution. That adjudication is interpretation -- that an adjudicative act is an interpretive act -- more than any other central commitment, unifies the otherwise diverse strands of the legal and constitutional theory of the late twentieth century.

In this article, I will argue in this article against both modern forms of interpretivism. The analogue of law to literature, on which much of modern interpretivism is based, although fruitful, …

Authority, Autonomy, And Choice: The Role Of Consent In The Moral And Political Visions Of Franz Kafka And Richard Posner, Robin West

Georgetown Law Faculty Publications and Other Works

In "The Ethical and Political Basis of Wealth Maximization" and two related articles, Professor (now Judge) Richard Posner argues that widely shared pro-autonomy moral values are furthered by wealth-maximizing market transfers, judicial decisions, and legal institutions advocated by members of the "law and economics" school of legal theory. Such transactions, decisions, and institutions are morally attractive, Posner argues, because they support autonomy; wealth-maximizing transfers are those to which all affected parties have given their consent. This Article argues that Posner's attempt to defend wealth-maximization on principles of consent rests on a simplistic and false psychological theory of human motivation. Posner's …

The Planetary Trust: Conservation And Intergenerational Equity, Edith Brown Weiss

Georgetown Law Faculty Publications and Other Works

This article suggests a normative framework which, if adopted and internalized by our political, economic, and social institutions, might enable them to serve as vehicles for ensuring that future generations will inherit their just share of our global heritage. Its thesis is that the human species holds the natural and cultural resources of the planet in trust for all generations of the human species. The article focuses on our duty towards the human species, for it is on this fiduciary duty that law and political institutions can be brought most readily to bear. This planetary trust obligates each generation to …