Legal History Commons^™

Celebrating The 200th Anniversary Of The Federal Courts Of The District Of Columbia, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

February 27, 2001 marked the 200th anniversary of the Federal Courts of the District of Columbia, the courts we know today as the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia. The history of these courts is interesting, albeit somewhat confusing; their names changed no fewer than six times since their creation. Indeed, from 1863 until 1893, the two courts were joined and called the Supreme Court of the District of Columbia. Because of their location in the nation's capital and their unusual dual jurisdiction as both …

The Right To Liberty In A Good Society, Randy E. Barnett, Douglas B. Rasmussen

Georgetown Law Faculty Publications and Other Works

We have been asked to consider how a "Constitution of Civic Virtue" might contribute to a "good society." To answer this question, we need to have some idea of what a good society might be, and we need to be able to articulate that idea. Certainly, we think we know a good movie when we see it, a good book when we read it, a good argument when we hear it, and a good idea when we have one, but we are not sure we have a handle on what a good society is. Even what we think we know …

In The Shadow Of Daniel Webster: Arguing Appeals In The Twenty-First Century, Seth P. Waxman

Georgetown Law Faculty Publications and Other Works

It is natural - I suppose it is expected - for every Solicitor General to hold forth at some point during his tenure with pearls of wisdom on the Twelve Secrets, or Ten Commandments, or Five Essential Rules of effective oral advocacy. I have always been reluctant to do that . . . reluctantly, after years of resistance, I too will unburden myself of a few principles. First, though, I would like to reach back in history for some inspiration by reflecting a bit on Daniel Webster.

Berle And Means Reconsidered At The Century's Turn, William W. Bratton

Georgetown Law Faculty Publications and Other Works

Part I places Berle and Means in the context of the legal theory of its day by comparing the work of Dewey on the theory of the firm and Douglas on corporate reorganization. This discussion highlights two progressive assumptions Berle and Means shared with these business law contemporaries-a confidence in the efficacy of judicial intervention to vindicate distributive policies and a distrust of the institution of contract. These assumptions would, in the long run, cause the book's prescription to land wide of the mark. After 1980, Berle and Means lost their paradigmatic status due to a combination of skepticism respecting …

Rights, Capabilities, And The Good Society, Robin West

Georgetown Law Faculty Publications and Other Works

In Part I this essay explores and then criticizes the two major arguments behind the conventional wisdom that rights undermine efforts to secure a state role in ensuring the material preconditions for a good society, and therefore, the material preconditions for the development of those human capabilities essential to a fully human life. I conclude in this part that this understanding of rights is mistaken. In Part II, I urge that the pragmatic argument put forward by rights critics and some welfare advocates for forgoing rights-talk and rights-rhetoric also fails: there are very real costs, both in theory and in …

The Marbury Mystery: Why Did William Marbury Sue In The Supreme Court?, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

In 1801, when William Marbury petitioned the Supreme Court to issue a writ of mandamus ordering Secretary of State James Madison to deliver his commission as justice of the peace, he initiated one of the most important cases in the Court's history. But why did Marbury choose the Supreme Court? Was there a lower federal court that could have granted the writ at the time? The short answer is "yes." Rather than making an unsuccessful attempt to invoke the original jurisdiction of the United States Supreme Court, I have learned that he could have brought his suit in the then …

Foreword: Is Reliance Still Dead?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

One thing I found out when I was a prosecutor is that you should never tell a police officer he cannot do something, for that just serves as an open invitation for him to do it. In recent years, I have learned a similar lesson about legal scholarship which I should probably keep to myself but won't. If you proclaim the existence of a scholarly "consensus," this is an open invitation for academics to try to demolish such a claim.

And Now A Word About Secular Humanism, Spirituality, And The Practice Of Justice And Conflict Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The papers presented in this Dialogue raise very important and moving questions about the relationship of spirituality, moral values, and religion to the practice of law generally, and the practice of conflict resolution specifically. In this Commentary, I want to focus on two related questions: First, where do our moral values, spirituality, and sense of communion or connection come from? And second, how do values derived from various sources of secular humanism inform our practices? For some of us, organized religion is not the primary source of our commitment to the "moral" values that inform our legal and conflict resolution …

Is The Rule Of Law Cosmopolitan?, Robin West

Georgetown Law Faculty Publications and Other Works

What I will argue in the bulk of the paper is that whether or not the rule of law implies ethical cosmopolitanism depends: it depends on how we understand or interpret the legalistic sense of justice that law and the rule of law seemingly require. The virtue that we sometimes call legal justice, and the correlative meaning of the rule of law to which it is yoked, can plausibly be subjected to a range of different interpretations, each resting on quite different understandings of the point of law and of what the individual law is meant to protect. Some of …

Twins At Birth: Civil Rights And The Role Of The Solicitor General, Seth P. Waxman

Georgetown Law Faculty Publications and Other Works

It is painful even today to contemplate the awful devastation wreaked upon this nation by the War Between the States. But like most cataclysms, the Civil War also gave birth to some important positive developments. I would like to talk with you today about two such offspring of that war, and the extent to which, like many sibling pairs, they have influenced each other's development. The first child - the most well-known progeny of the Civil War - was this country's commitment to civil rights. The war, of course, ended slavery. But it did not - and could not - …

Prudence, Benevolence, And Negligence: Virtue Ethics And Tort Law, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

Tort law assesses negligence according to the conduct of a reasonable person of ordinary prudence who acts with due care for the safety of others. This standard assigns three traits to the person whose conduct sets the bar for measuring negligence: reasonableness, ordinary prudence, and due care for the safety of others. Yet contemporary tort scholars have almost exclusively examined only one of these attributes, reasonableness, and have wholly neglected to carefully examine the other elements key to the negligence standard: prudence and due care for the safety of others. It is mistaken to reduce negligence to reasonableness or to …

Willard Hurst And The Administrative State: From Williams To Wisconsin, Daniel R. Ernst

Georgetown Law Faculty Publications and Other Works

This article follows Willard Hurst from his undergraduate days at Williams College through the start of his teaching career at Wisconsin in the fall of 1937. During these years Hurst acquired an abiding interest in the rise of the administrative state as well as some of the insights he would use to account for it in his mature work. For the most part, the article proceeds chronologically through four episodes in Hurst's training: (1) his year-long study of Charles and Mary Beard's "Rise of American Civilization" undertaken as an undergraduate at Williams College; (2) his three years as a student …

Foreword: Law, Psychology, And The Emotions, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

Given that law is made by and for people, the relatively little attention lawyers, judges, and legal scholars have paid to human psychology is surprising. Too often, legal writers have either presupposed or borrowed impoverished conceptions of human nature, erecting legal theories for people presumptively possessed of the requisite nature, regardless of the psychology of the actual persons who make and live under the law. Even when they do attend to human nature, legal scholars tend to ignore the centrality of emotions, dispositions, fantasies, and wishes to human psychology. The articles in this Symposium are united by their authors' resistance …

Are There Nothing But Texts In This Class? Interpreting The Interpretive Turns In Legal Thought, Robin West

Georgetown Law Faculty Publications and Other Works

Allan Hutchinson remarks at the beginning of his interesting article that Gadamer's writings have had only a peripheral influence on legal scholarship -- only occasionally cited, and then begrudgingly so, and never given the serious attention they deserve or require. Nevertheless, Hutchinson acknowledges, Gadamerian influences can be noted -- particularly in the now widely shared understanding that adjudication is, fundamentally, an interpretive exercise. Even with this qualification, though, I think Hutchinson understates Gadamer's impact. Whatever may be true of Gadamer's influence in other disciplines, his influence in law has been unambiguously both broad and deep -- although it has come …

Three Positivisms, Robin West

Georgetown Law Faculty Publications and Other Works

In this article, I accept and hope to expand upon the conventional consensus view that The Path of the Law is a brief for an Americanized version of Austinian legal positivism and for the "separation" of law and morality that is at its core. I also want to show, however, that the distinctive accomplishment of this Essay is its literary ambiguity: Both its explicit arguments for the positivist separation of law and morality, and the three enduring metaphors Holmes uses to make the case -- (1) the "bad man" from whose perspective we can clearly view the law; (2) the …

Coping With Partiality: Justice, The Rule Of Law, And The Role Of Lawyers, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Lawyers help ameliorate a particular instance of what the author calls the problem of interest--the partiality problem. For he believes that it falls to law professors to imbue in their students an understanding of the important role that lawyers play in society, if for no other reason than they will need some emotional armament from the slings and arrows of incessant lawyer jokes and worse. In explaining how the existence of lawyers helps address the problem of partiality, the author also explains how adherence to property rights, freedom of contract, and the rule of law--concepts long disparaged by law professors--help …

Necessary And Proper, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this article, the author maintains that, if the courts are to hold Congress to the exercise of its enumerated powers, then they must come to grips with the congressional power: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." While the Necessary and Proper Clause has long been used to greatly expand congressional power, he argues that, to the contrary, it provides a two-part standard against which all national …

Toward A "Due Foundation" For The Separation Of Powers: The Federalist Papers As Political Narrative, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

During the past quarter century, lawyers have become strangely comfortable with descriptions of our government's structure that would, to an untutored ear, speak contradiction. We are quite satisfied to say that governmental powers are separate and shared, departments distinct and overlapping, functions autonomous and interdependent. We have settled into these contradictions as we would a roomy chair: talking this way is no longer controversial but taken for granted, uttered with a knowing wink, perceived as the starting point of sophisticated analysis. A not "entirely separate," but "entirely free," set of departments is the only way we can think about the …

The Relevance Of The Framers’ Intent, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Ever since the revival of interest in originalism that occurred in the 1980s, critics have 'charged that for a variety of reasons it is impractical, if not impossible, to determine the Framers' intentions. In addition, they argue that we today should not be bound by the intentions of a few men who lived and died over two-hundred years ago. In sum, adherence to original intent is rejected as being impractical, unjust, or both.

In this article, the author argues that we cannot assess either the practicality or the justice of discerning original intent without first asking why it is we …

Constitutional Fictions And Meritocratic Success Stories, Robin West

Georgetown Law Faculty Publications and Other Works

L.H. LaRue demonstrates in his book, Constitutional Law as Fiction, that, at least in the realm of constitutional law, there is no simple correspondence between fiction and falsehood, or fact and truth. Partial or fictive accounts of our constitutional history, even when they are riddled with inaccuracies, may state deep truths about our world, and accurate recitations of historical events may be either intentionally or unintentionally misleading in the extreme. According to LaRue, the Supreme Court engages in a form of storytelling or myth-making that goes beyond the inevitably partial narratives of fact and precedent. The Supreme Court also tells …

The Constitution Of Reasons, Robin West

Georgetown Law Faculty Publications and Other Works

Cass Sunstein's book, The Partial Constitution, brings together a number of his constitutional law essays from the last ten years. During that time, Sunstein has argued, powerfully, for the unconstitutionality of regulatory constraints on access to abortion; for the constitutionality of and the need for regulation of violent pornography; for the constitutionality of limits on both campaign spending and congressional control over public broadcasting; for the deep consistency, conventional wisdom to the contrary notwithstanding, of the Court's repudiation of Lochner in 1937 with its 1974 decision in Roe v. Wade; for the view that we should accord far less deference …

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 …

The Aspirational Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

Firmly embedded in every theory of judicial decisionmaking lies an important set of assumptions about the way government is supposed to work. Sometimes these theories about government are made explicit. More often they are not. Moreover, deeply embedded in every theory of government is a theory of human nature. Although these assumptions about human nature generally remain latent within the larger theory, because they provide the underpinnings for our ideas about the way government is supposed to work, they drive our notions about judicial decisionmaking. For example, the theory of government reflected in the United States Constitution reveals what one …

Reconstructing Liberty, Robin West

Georgetown Law Faculty Publications and Other Works

It is commonly and rightly understood in this country that our constitutional system ensures, or seeks to ensure, that individuals are accorded the greatest degree of personal, political, social, and economic liberty possible, consistent with a like amount of liberty given to others, the duty and right of the community to establish the conditions for a moral and secure collective life, and the responsibility of the state to provide for the common defense of the community against outside aggression. Our distinctive cultural and constitutional commitment to individual liberty places very real restraints on what our elected representatives can do, even …

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 …

Jurisprudence And Gender, Robin West

Georgetown Law Faculty Publications and Other Works

What is a human being? Legal theorists must, perforce, answer this question: jurisprudence, after all, is about human beings. The task has not proven to be divisive. In fact, virtually all modern American legal theorists, like most modern moral and political philosophers, either explicitly or implicitly embrace what I will call the "separation thesis" about what it means to be a human being: a "human being," whatever else he is, is physically separate from all other human beings. I am one human being and you are another, and that distinction between you and me is central to the meaning of …

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 …