Jurisprudence Commons^™

Disparate Impact, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

There has been a lot of talk about post-racialism since the 2008 election of Barack Obama as the first black President of the United States. Some have argued that the Obama election illustrates the evolution of the United States from its unfortunate racist past to a more admirable post-racial present in which the problem of invidious racial discrimination has largely been overcome. Others have argued that the Obama election illustrates only that an extraordinarily gifted, mixed-race, multiple Ivy League graduate, Harvard Law Review President was able to overcome the persistent discriminatory racial practices that continue to disadvantage the bulk of …

Rights, Harms, And Duties: A Response To Justice For Hedgehogs, Robin West

Georgetown Law Faculty Publications and Other Works

The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his book--albeit briefly--so as to integrate them into his hedgehoggian program. The first is that we should think of rights as political trumps, such that the individual liberty protected by the right, and hence the behavior protected by the right, trumps in importance and in effect, both in law and in popular imaginings, the various collective goals with which the right might be in conflict. Second, we should think about our collective life, and the principles that should guide it, through the lens of the rights of …

The Unity Of Interpretation, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

What is interpretation? One can imagine a range of answers to this question. One answer might begin with the observation that the English word “interpretation” is used to refer to a variety of human activities. Translators at the United Nations interpret remarks made in French when they offer an English translation. Literary critics interpret novels when they investigate the deep and sometimes unconscious motivations of the author. Conductors interpret a score when they make decisions about meter, tempo, and dynamic range. Actors interpret a screenplay when they improvise new lines based on their understanding of the characters. Judges interpret statutes …

Empirical Desert And The Moral Economy Of Punishment, Zachary R. Calo

Scholarly Works

This paper considers Paul Robinson's theory of empirical desert as an argument for moving beyond the debate between utilitarian and retributivist accounts of punishment. It is argued that empirical desert, in its attempt to replace philosophy with the insights of the social and biological sciences, fails to ground the foundational act of punishment in an adequate theoretical warrant. A particular problem confronting empirical desert is that while Robinson shifts the locus of punishment from theory to the intuitions of the relevant community, he does not adequately account for the dynamic process by which communities shape and structure their internal moral …

Retribution And The Experience Of Punishment, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur

Faculty Scholarship

No abstract provided.

International Soft Law, Andrew T. Guzman, Timothy L. Meyer

Faculty Scholarship

Although the concept of soft law has existed for years, scholars have not reached consensus on why states use soft law or even whether “soft law” is a coherent analytic category. In part, this confusion reflects a deep diversity in both the types of international agreements and the strategic situations that produce them. In this paper, we advance four complementary explanations for why states use soft law that describe a much broader range of state behavior than has been previously explained.

First, and least significantly, states may use soft law to solve straightforward coordination games in which the existence of …

The Federal Rules Of Civil Procedure And Legal Realism As A Jurisprudence Of Law Reform, David Marcus

Georgia Law Review

Since the 1930s, legal realism has weathered claims that its adherents had no use for legal rules and lacked a positive program of law reform. This Article uses the Federal Rules of Civil Procedure, the major procedural reform of the twentieth century, to illuminate more accurately the treatment of rules in realism as well as its constructive potential. It draws upon the published and unpublished writings of Charles Clark, the primary author of the Federal Rules and a leading realist, to describe a realist procedural jurisprudence and to explain why the Federal Rules neatly illustrate this jurisprudence in practice. Part …

When And How (If At All) Does Law Constrain Official Action?, Frederick Schauer

Georgia Law Review

Debates about the obligation to obey the law have been around for literally thousands of years, but the empirical side has received much less attention. Moreover, most of the existing empirical work has focused on citizens and not officials, and consequently we know little about the extent to which law qua law motivates official action. This Article seeks to encourage empirical inquiry into the particular question of whether officials obey the law as law, independent of the content of the law and independent of the possibility of sanctions for non-compliance. It offers the hypothesis that although there is much talk …

"Undead" Wartime Cases: Stare Decisis And The Lessons Of History, Harlan G. Cohen

Faculty Scholarship

References to the “lessons of history” are ubiquitous in law. Nowhere has this been more apparent than in recent debates over U.S. counterterrorism policy. In response to the Bush Administration’s reliance on World War II-era decisions - Johnson v. Eisentrager, Ex Parte Quirin, Hirota v. MacArthur, and In re Yamashita - opponents have argued that these decisions have been rejected by the “lessons of history.” They argue that the history of wartime cases is one marked by executive aggrandizement, panic-driven attacks on civil liberties, and overly quiescent courts - none of which should be repeated.

But what does it really …

The Vanity Of Dogmatizing, Marc O. Degirolami

Scholarly Articles

The year 1661 saw the publication of Joseph Glanvill's The Vanity of Dogmatizing, a polemic advocating an intellectual break from Aristotle and the Schoolmen in favor of the sort of empiricism that eventually came to fruition in the philosophy of David Hume. Glanvill was deeply irritated by what he perceived as the encrusted academic orthodoxies of his age: "The Disease of our Intellectuals," he railed, "is too great, not to be its own [evidence]: And they that feel it not, are not less sick, but stupidly so.' What was needed was a skeptical cast of mind- thinkers who would shatter …

Reason And Reasonableness In Review Of Agency Decisions, Jeffrey Pojanowski

Journal Articles

A company markets computer software that provides day traders with real-time data and recommendations for buying and selling futures on commodities markets. In a late night infomercial, the firm touts the spectacular "certified" profits that purchasers would have earned had they been using this one-of-a-kind system over the past seven years. What the suntanned host does not tell viewers at home is that these "certified" results are not based on actual trades, but simulations of what the system would have produced based on historical data. A regulator initiates administrative proceedings against the firm, charging that this omission "defrauded" customers under …

The False Promise Of Retributive Proportionality, Aya Gruber

Publications

No abstract provided.

The Last Indian Raid In Kansas: Context, Colonialism, And Philip P. Frickey's Contributions To American Indian Law, Sarah Krakoff

Publications

To many, American Indian law is a remote and anomalous area of the law. To others, including Professor Phil Frickey, themes in American Indian law are central to our identity as a nation, and lessons from the field inform broader understandings of the competencies and limitations of the federal judiciary. One of Professor Frickey’s recurring scholarly arguments is that the federal courts are most within their areas of institutional competence when they approach contemporary Indian law questions as structural disputes between sovereigns, rather than as individual conflicts amenable to the application of mainstream public law values. An event described as …

Energy Justice And Sustainable Development, Lakshman Guruswamy

Publications

Sustainable Development ("SD")--an expression of distributive justice--is the foundational premise of international energy and environmental law. It posits that international answers to environmental and energy problems cannot be pursued as independent and autonomous objectives but must be addressed within the framework of economic and social development. SD has been politically institutionalized in the Millennium Development Goals and a plethora of significant international instruments. Perhaps more importantly from a legal standpoint, SD is unequivocally codified, in the most widely accepted international energy and environmental treaties. This Article affirms the importance and continuing applicability of SD to the "other" third of the …

It's The Hard Luck Life: Women's Moral Luck And Eucatastrophe In Child Custody Allocation, Lolita Buckner Inniss

Publications

No abstract provided.

Prudentialism In Mcdonald V. City Of Chicago, Neil S. Siegel

Faculty Scholarship

At least two kinds of prudential argument have been identified in the literature on constitutional interpretation: court-centered prudentialism and system-centered prudentialism. Commentators often characterize court-centered prudentialism as animated by concern over the Supreme Court’s preservation of its public legitimacy, which can be undermined when the Justices decide controversial questions in ways that cause backlash. By contrast, system-centered prudentialism asks not only what judicial decision is best for the Court’s effectiveness, but also what response is best for the constitutional system as a whole when the Court’s legitimacy is not at stake.

The Court’s recent decision in McDonald v. City of …

Interring The Rhetoric Of Judicial Activism, Neil S. Siegel

Faculty Scholarship

For decades, leaders of the Republican Party have decried “judicial activism” and championed “judicial restraint.” For much of that time, Republican politicians have equated judicial restraint with a commitment to judicial deference, asserting that “activist” judges disrespect the will of popular majorities. More recently, as the Republican Party has solidified its control of the federal courts and made its own claims on the Constitution, Republican politicians have tended to define judicial activism in potentially conflicting ways, mixing deference frames with claims about the autonomy of law from mere politics or personal beliefs.

In this Article, I examine these two ways …

A Coase Theorem For Constitutional Theory, Neil S. Siegel

Faculty Scholarship

There is much to admire about Barry Friedman’s new book, The Will of the People. Explaining how the institution of judicial review was made safe for democracy in America, Friedman’s story is extensively researched, beautifully written, scrupulously nonpartisan about the modern Court, and frequently humorous. What is more, his primary claim - that the Supreme Court of the United States is very much a democratic institution because judicial review always has been responsive to public opinion - is, to a large extent, convincing. I have taught The Will of the People in my first-year constitutional law course, and I plan …