Legal Theory Commons^™

Legal Uncertainty, Anthony D'Amato

Faculty Working Papers

Legal certainty decreases over time. Rules and principles of law become more and more uncertain in content and in application because legal systems are biased in favor of unravelling those rules and principles. In this article I attempt to show what these biases are, and why commentators who have argued that the law tends toward certainty are wrong, then describe various attempts which have been made at restoring certainty, and why these attempts have generally not worked. My conclusion is that these proposals are at best holding actions, and that the tendency toward increasing uncertainty in the law is inexorable.

Is Equality A Totally Empty Idea?, Anthony D'Amato

Faculty Working Papers

Comments on Westen article The Empty Idea of Equality. The only way we know what direction to move in making reductions and increases in burdens is to have a concept of equality in mind. The only way we can know that one burden is 'great' and another burden is 'considerably lesser,' to use the words in Westen's standard, is to compare the burdens. But comparison presupposes a measure of equality, for we cannot know that one burden is greater than another unless we first have a concept of when the two burdens are equal. Westen's standard, therefore, is logically posterior …

Legal Transitions And The Problem Of Reliance, David M. Hasen

Faculty Publications

This Article analyzes the literature on legal transitions. The principal focus is taxation, but the analysis generalizes to other areas. I argue that the theoretical apparatus developed by scholars active in the legal transitions area suffers from significant conceptual shortcomings. These shortcomings include the unwarranted assimilation of legal to factual change, the naturalization of conventional arrangements, and the disregard of the distinction between making law and finding it. As a consequence, the recent literature offers an analysis that is unable either to explain actual transitions or to provide an adequate theory of how legal change should take place. In the …

Constitutional Constructions And Constitutional Decision Rules: Thoughts On The Carving Of Implementation Space, Mitchell N. Berman

All Faculty Scholarship

No abstract provided.

The Interpretation-Construction Distinction, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The interpretation-construction distinction, which marks the difference between linguistic meaning and legal effect, is much discussed these days. I shall argue that the distinction is both real and fundamental – that it marks a deep difference in two different stages (or moments) in the way that legal and political actors process legal texts. My account of the distinction will not be precisely the same as some others, but I shall argue that it is the correct account and captures the essential insights of its rivals. This Essay aims to mark the distinction clearly!

The basic idea can be explained by …

Exporting U.S. Criminal Justice, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

This article explores how and why, in the Cold War’s wake, the U.S. government began to export U.S.-style criminal law and procedure models to developing and politically transitioning states. U.S. criminal law and development consultants now work in countries across the globe. This article reveals how U.S. initiatives have shaped state and non-state actors’ responses to a range of global challenges, even as this approach suffers from a deep democratic deficit. Further, this article argues that U.S. programs perpetuate U.S.-style legal institutional idolatry (which is often tied to systemic dysfunction both in the United States and abroad), and in so …

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 …

Honest-Services Fraud: A (Vague) Threat To Millions Of Blissfully Unaware (And Non-Culpable) American Workers, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

The author believes that statute 18 U.S.C. § 1346 is unconstitutionally vague, at least as applied to cases in which employees of private entities are prosecuted for depriving their employers of a right to their honest services (so-called “private cases”). Objections to vagueness rest on due process. “Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.” The Supreme Court’s vagueness precedents do not provide much …

“Fraude Académico: Comparaciones Entre Dos Universidades Colombianas”, Andrés Henao Castro, Mauricio García Villegas, José Mejía, Claudia Ordóñez

Andrés Fabián Henao-Castro

No abstract provided.

Gay And Lesbian Elders: History, Law, And Identity Politics In The United States, Nancy J. Knauer

Nancy J. Knauer

The approximately two million gay and lesbian elders in the United States are an underserved and understudied population. At a time when gay men and lesbians enjoy an unprecedented degree of social acceptance and legal protection, many elders face the daily challenges of aging isolated from family, detached from the larger gay and lesbian community, and ignored by mainstream aging initiatives. Drawing on materials from law, history, and social theory, this book integrates practical proposals for reform with larger issues of sexuality and identity. Beginning with a summary of existing demographic data and offering a historical overview of pre-Stonewall views …

Ockham's Theory Of Natural Rights, Siegfried Van Duffel, Jonathan Robinson

Siegfried Van Duffel

Ockham's theory may well be the most influential medieval predecessor of contemporary theories of human rights. We suggest that it was also in a better condition than its descendants.

Black Tuesday And Graying The Legitimacy Line For Governmental Intervention: When Tomorrow Is Just A Future Yesterday, Donald J. Kochan

Donald J. Kochan

Black Tuesday in October 1929 marked a major crisis in American history. As we face current economic woes, it is appropriate to recall not only the event but also reflect on how it altered the legal landscape and the change it precipitated in the acceptance of governmental intervention into the marketplace. Perceived or real crises can cause us to dance between free markets and regulatory power. Much like the events of 1929, current financial concerns have led to new, unprecedented governmental intervention into the private sector. This Article seeks caution, on the basis of history, arguing that fear and crisis …

Normative Dynamics Of Competition Laws, Piyabutr Bunaramrueang

piyabutr bunaramrueang

This article aims at providing a review on normative dynamics of competition laws. Although legal norms seem to be very stable, those norms governing economic activities are changing relatively fast. It is therefore an attempt to illustrate dynamic quality of laws by using competition laws as a major example of laws governing economic activities. I would like to discuss mainly over U.S. antitrust laws as the major model of competition laws, perhaps, for all other countries pursuing economic growth of free market. The dynamic quality of U.S. antitrust laws is essentially derived from its legal tradition that invites legal reasoning …