Georgetown University Law Center

About: Georgetown University Law Center is a based out in . It is known for research contribution in the topics: Supreme court & Global health. The organization has 585 authors who have published 2488 publications receiving 36650 citations. The organization is also known as: Georgetown Law & GULC.

Comments on Roger Cotterrell's Essay, 'The Struggle for Law: Some Dilemmas of Cultural

Abstract: First, many thanks to Carrie Menkel-Meadow, the editors of The International Journal of Law In Context and the sponsors of this series for facilitating this lecture, and for inviting my participation. And a special thank you to Professor Roger Cotterrell for sharing with us such a generous, humanistic and hopeful account of law’s moral possibilities, when faced with multicultural conflict within a society governed by a liberal rule of law. I very much appreciate the opportunity to reflect on this set of claims, although I feel somewhat an outsider to the task, as I’ll explain below. I understand Professor Cotterrell as arguing, first, that traditional Anglo-American jurisprudence has not sufficiently theorised the role of culture and cultures, second, that multiculturalism renders inadequate, for different reasons, both Weberian and non-positivist or non-instrumental accounts of law’s liberal aspirations, and third, that one possible way for law to contribute constructively to a moral and peaceful multicultural society would be to conceive of itself not just as an instrument for the fulfillment of private and conflicting individual purposes, not just as the target of passions from a more-or-less unified culture, but rather, as a means of respectful communication between cultures, albeit one that imposes individualist and liberal side-constraints on the conversation so fostered: to wit, that the law itself, and its parts, must be rigorously respectful of the autonomy and decency of all individuals, and must demand as much from citizens. I am sympathetic to all three prongs of this project. I agree entirely that jurisprudence has not well theorised the cultural; I agree that some of the strains in the general facade of liberal legalism are a result of multicultural forces and aspirations; and I am happy to share in the call for legal doctrine that is civil and respectful. So in these comments, I will just voice some worries about the overall thrust of the project, and offer some friendly amendments. The worries are threefold: the first is jurisprudential, the second is political and the third might best be called aspirational.

Federal Fairness to State Taxpayers: Irrationality, Unfunded Mandates, and the 'Salt' Deduction

Abstract: By sheer dollars alone, the largest impact of the Alternative Minimum Tax is to deny many taxpayers the deduction for the taxes they paid to their state and local governments under § 164 of the Internal Revenue Code. This Article provides a fine-grained analysis of the overall fairness of the state- and local-tax deduction ? and, by implication, the fairness of its partial repeal through the Alternative Minimum Tax. I offer for the first time a close examination of how newly understood limits on taxpayer mobility and rationality might affect individuals' choices of bundles of local taxes and local government services, which in turn informs our assessment of the "fairness" of those exchanges. Many of these lessons can be generalized to consumer choices more generally. In addition, I track the reciprocal benefits and burdens that flow between the national government and local governments ? again, although the influx or outgo of billions of dollars surely affects how the federal tax system should account for the outputs of local government, scholars have neglected that question. Finally, I note that § 164, and therefore the Alternative Minimum Tax, can have serious effects on federal-state relations, such that the debate over both provisions is in many ways a debate not only over fairness but also about federalism.

Toward the Study of the Legislated Constitution

Abstract: Law schools, both innovative and traditional, cutting edge and hidebound, demand and therefore teach tolerance, civil respect for those whose views and dreams differ from our own, a commitment to the equal dignity of all persons, an awareness of the individuality of each of us, and the challenges that those differences and that equality pose to the generalizing impulse in law. Likewise, law schools, virtually everywhere, convey or should convey a sensitivity to bare or naked human vulnerability, mortality, weakness, and need, and therefore a sense in students of the moral need of all of us for law’s protection, as well as the challenge of creating it justly and in a way that is not overly intrusive of our privacy or liberty. All of these legal values are deeply embedded in law schools’ curriculum, pedagogy and faculty scholarship, and all of them have helped to forge a profession that for its known flaws has structured a morally sound body of rules for all of us to live within. That legal education so well reflects these values is very much to the credit of legal educators. They are values in which we should take pride, when we impart them successfully. They are central to the way we enculturate as well as educate: when we impart them successfully they become a part of the fabric of what it means to be a lawyer, a professional, and a member of the Bar or the Bench. They constitute the culture of lawyering, and specifically the moral culture of lawyering, that we pass on in law schools from one generation of lawyers to the next. There is much in this tradition of which legal educators should be proud.In this article the author focuses on one aspect of that acculturation that she believes is deeply problematic, and that is the century-long, near-exclusive orientation of legal education, and legal scholarship, around a judicial — rather than a legislative — perspective.The author first looks at juriscentricity in three central poles, or gravitational foci, of legal education: jurisprudential scholarship, constitutional scholarship, and what she calls legal culture. The author looks at these three corners of the legal academy by focusing exclusively on the pathologies to which they give rise, without denying that they also reflect moments of great insight and even some measure of moral courage. Then in the concluding part she proposes a thought experiment: that we re-examine the questions and assumptions of jurisprudence, of constitutional law, and of legal culture, by imagining the legislator — rather than the judge — as the hero, villain, or protagonist of our collectively shared “law stories” — the narratives by which we teach law and acculturate our students into the profession. She proposes that we assume the existence of and the worthiness of study of a legisprudence, rather than a jurisprudence, a legislative and legislated, rather than adjudicative and adjudicated Constitution, and a legis-legal rather than a juris-legal culture. The author concludes with some practical proposals for reform of the legal academy’s practices, and their potential impact on our current political stalemates.

Confrontation After Scalia and Kennedy

Abstract: This symposium essay discusses the recent history and current state of the Confrontation Clause and then explores its possible futures. Justice Scalia’s 2004 opinion in Crawford v. Washington transformed confrontation doctrine and consequently rendered many types of hearsay statements potentially inadmissible in criminal cases. Although Crawford strengthened the right to confrontation in several respects, the subsequent decade produced significant backlash and disagreements—including dissenting opinions from Justice Kennedy—as the Court attempted to implement and develop confrontation doctrine. The fault lines that emerged among the Justices have left the current state of confrontation doctrine in disarray, particularly in cases involving expert witnesses. The replacement of Justices Scalia and Kennedy (Crawford’s champion and one of the principal dissenters in subsequent cases, respectively) with Justices Gorsuch and Kavanaugh has added to the uncertainty surrounding the doctrine’s future. This essay examines the possible pathways by which the doctrine on the Confrontation Clause may develop, distinguishing between cases involving experts and non-expert witnesses.

Beyond Balancing the Interests of Creditors and Developing States

Abstract: The traditional view of sovereign debt as a relationship between a developing country government and and its foreign private creditors is increasingly out of date. Financial institutions and individuals inside the borrowing countries are are becoming more and more important as creditors to their governments. At the same time, as countries remove restrictions on cross-border capital flows, foreign creditors are participating more actively in domestic law, local-currency debt markets. These developments imply fundamental changes in lending decisions and, where the loan goes bad, in the sovereign debt workout process.