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The Gravitational Force of Originalism
Get PDFIn part I of this essay, prepared for the Fordham conference on “The New Originalism and Constitutional Law,” I describe four aspects of the New Originalism: (1) The New Originalism is about identifying the original public meaning of the Constitution rather than the original framers intent; (2) The interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry; (3) But there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed; (4) Distinguishing between the activities of interpretation and construction identifies the limit of the New Originalism, which is only a theory of interpretation. In part II, I then discuss how originalism can influence the outcome of such cases as D.C. v. Heller, McDonald v. Chicago, and NFIB v. Sebelius. I suggest that, so long as there are justices who accept the relevance of original meaning, originalism can exert a kind of “gravitational force” on legal doctrine even when, as in McDonald and NFIB, the original meaning of the Constitution appears not to be the basis of a judicial decision
Contract Hope and Sovereign Redemption
Get PDFSovereign immunity has served as a partial substitute for bankruptcy protection, but it has encouraged a minority of creditors to pursue unorthodox legal remedies with spillover effects far beyond the debtor-creditor relationship. The attempt to enforce Argentina’s pari passu clause in New York is an example of such a remedy, which relies primarily on collateral damage to other creditors and market infrastructure to obtain settlement from a debtor that would not pay. The District Court decision, now on appeal before the Second Circuit, may not make holding out more attractive in future restructurings – but it would make participation less attractive for creditors, and create uncertainty for trustees, clearing and payments systems. Contractual innovations that support debt restructuring, such as collective action clauses (CACs), will not diminish the impact of the remedy for the foreseeable future, among other reasons because they are not designed to work across the debt stock. The Greek debt restructuring, where over half of the foreign-law issues with CACs failed to clear the voting threshold, is a case in point. The latest pari passu episode illustrates the challenge of a purely contractual framework for debt restructuring: interpretation uncertainty, institutional barriers to contract change, and a well-resourced constituency with every incentive to take advantage of the combination, make for an irreducible risk. Options going forward range from contract reform to reviving treaty-based sovereign bankruptcy. The former will be slow and incomplete; the latter has dim political prospects. If the District Court decision stands, it strengthens the hand of sovereign bankruptcy proponents. This article suggests a mix of contractual and institutional reform focusing on financial markt infrastructure, as an interim fix for what remains a deeply dysfunctional regime
Construction and Constraint: Discussion of Living Originalism
Get PDFJack Balkin\u27s Living Originalism raises many important questions about contemporary constitutional theory. Can and should liberals and progressives embrace originalism? Can the New Deal expansion of national legislative power be given originalist foundations? Is there a plausible originalist case for a right to reproductive autonomy and hence for the Court\u27s decision in Roe v. Wade? Is the fact of theoretical disagreement among originalists evidence for the thesis that the originalist project is in disarray
The Risk of International Justice: A Tribute to Aryeh Neier
Get PDFAryeh Neier has a talent for risk and a talent for trust.
The first time I met Aryeh I was a bored child, glumly tagging along with my mother to a workshop at the New York Institute for the Humanities, where she was a fellow. I don’t think I was older than ten or eleven, but Aryeh introduced himself to me as gravely as if I were a visiting dignitary–an emissary from the far-off planet of childhood.
The second time I met Aryeh, I was twenty-five or so, and only a little bit wiser than I had been at ten. Gara LaMarche had just been lured away from Human Rights Watch, where I had been a law school intern, to run OSI’s new U.S. Programs Office. Gara hired me as a consultant, asking me to identify and interview experts who might suggest interesting new directions for the US Programs Office. I did so, then wrote several lengthy and enthusiastic memos, outlining numerous potential initiatives new OSI initiatives. Gara took me in to see Aryeh, who received me as gravely as he had fifteen years earlier. I babbled away. Aryeh nodded solemnly, and said little. I left convinced he thought I was young, foolish, and possibly insane.
But within a few weeks, I was meeting once again with Aryeh, this time at George Soros’s house in New Bedford. I felt as out of place as my battered little Toyota Tercel looked in George Soros’s driveway. I was so dazed by my surroundings–I was at a billionaire’s house! My dented little car was parked in a billionaire’s driveway! There were horses somewhere close by! There was a butler!–that I almost missed Aryeh’s suggestion that we go speak to George. (George! We were calling a billionaire “George”!
Measuring Justice
Get PDFThe research imperative of refining ways to measure justice is important and necessary. Our work as lawyers improves the more we know about our effectiveness and the more our choices are evidence based. Nevertheless, quantifying the work of a lawyer is not easy. How do we ensure that any measure of justice captures outcomes for both trial-based advocacy and non-trial-based advocacy on behalf of clients, including negotiated outcomes? How do we quantify the role lawyers play in listening to our clients, explaining the systems in which they operate, and supporting them through often very difficult times in their lives? How do we ensure that any measure of justice includes a client’s sense of the process as well as the outcome? How do we make sure that what we measure does not suggest the limits of what is possible or desired
Putting a Price on Whales To Save Them: What Do Morals Have To Do with It?
Get PDFThe author explores the moral implication of a proposal to create an international market in whale shares as an alternative to the dysfunctional International Whaling Commission. She finds the proposal amoral because whales, like humans, have an intrinsic right to life. Since this leaves whales vulnerable to whale hunting nations, she suggests that international environmental organizations might help a whale preservation norm emerge in whaling nations by using education and interventionist activities that focus on whaling’s cruelty to ultimately encourage the citizens and governments of those nations to change their self-image as whale eating cultures
The Developmental Path of the Lawyer
Get PDFMy mother does not drive, and I own a towel that I cannot use-these are my reasons for studying law.
I am an integrated tapestry of elation and disappointment, risk and reward, ambiguity and conviction .. .. I discovered [through adversity] that transitional challenges were not permanent impediments to my progress, but were instead emboldening catalysts to my personal evolution and professional development.
These two stories come from admissions essays submitted by members of Georgetown University Law Center\u27s class of 2014, recently published in the Law Center\u27s alumni magazine. The published essays provide fascinating views into the personal experiences and deep reflection that lead people to pursue legal studies
Senses of Sen: Reflections on Amartya Sen’s Ideas of Justice
Get PDFThis review essay explores how Amartya Sen’s recent book, The Idea of Justice, is relevant and important for the development and assessment of transnational theories and applications to transnational justice and legal education programs. The essay captures a trans-jural dialogue of multinational scholars and teachers, discussing Sen’s contributions to moral justice theory (criticizing programs for “transcendental institutionalism” (like Rawlsian theory) and instead focusing on “comparative broadening” including empirical, relative, and comparative assessments of programs to ameliorate injustice in the world in its comparative concreteness (as in Indian social justice theory and Adam Smith’s Theory of Moral Sentiments and related work). The authors are professors in the transnational legal education program, the Center for Transnational Legal Studies, sponsored by over 25 different law schools, located in London. They teach courses in a wide variety of subjects, including comparative legal theory, constitutional law, business and legal ethics, moral and legal philosophy, international and comparative law, capital markets and business law, emergency powers, international dispute resolution and a variety of other common and civil law subjects
Does the Constitution Protect Economic Liberty?
Get PDFThe author defends the proposition that the Court in Lochner v. New York was right to protect the liberty of contract under the Fourteenth Amendment. He does not defend its use of the Due Process Clause to reach its result. As he explains, the Court should have been applying the Privileges or Immunities Clause. Nor does he contend that the Court was correct in its conclusion that the maximum‐hours law under consideration was an unconstitutional restriction on the liberty of contract. Although the statute may well have been unconstitutional, the author does not take the time to evaluate that claim.
Instead, this article focuses on whether the Constitution of the United States protects economic liberty. To clarify the issue, the author begins by defining “economic liberty” as the right to acquire, use, and possess private property and the right to enter into private contracts of one’s choosing. If the Constitution protects these rights, then the Constitution does protect economic liberty. The evidence that the Constitution protects rights of private property and contract is overwhelming
Military Lawyers and the Two Cultures Problem
Get PDFMilitary and humanitarian lawyers approach the laws of war—labeled “law of armed conflict” by the former and “international humanitarian law” by the latter—in very different ways. For military lawyers, the starting point is military necessity, and the reigning assumption is that legal regulation of war must accommodate military necessity. For humanitarian lawyers, the starting point is human dignity and human rights. This article argues that from these radically different axioms legal consequences systematically follow regarding treaty interpretation, the sources and reach of customary international law, the nature of international law, deference and discretion to military commanders, and the connection between humanitarian law and human rights law. The result is two interpretive communities that systematically disagree not only over the meaning of particular law-of-war norms, but also over the sources and methods of law that could be used to resolve the disagreements. In recent years the differences between these interpretive communities have grown to outright antagonism—the “two cultures problem” in my title. That raises the question of whether military lawyers’ advice should acknowledge any validity to the contrary views of the “humanitarian” community. (The parallel question arises for humanitarian lawyers, but this article focuses on the military side.) The article argues that the decisive accomplishment of the humanitarian approach is the “civilianization” of the laws of war—the recognition that civilian interests matter just as much as military interests. The article then offers a systematic analysis of the concept of military necessity showing that civilian interests must figure in assessing military necessity itself. Even on its own terms, the military version of the law of war should seek to accommodate the civilian perspectives featured in the humanitarian version. The conclusion explores the possibilities of convergence between the military and humanitarian viewpoints