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 & Public health. The organization has 585 authors who have published 2488 publications receiving 36650 citations. The organization is also known as: Georgetown Law & GULC.

The Meaning of Equality and the Interpretive Turn

Abstract: The turn to hermeneutics and interpretation in contemporary legal theory has contributed at least two central ideas to modern jurisprudential thought: first, that the "meaning" of a text is invariably indeterminate – what might be called the indeterminacy claim – and second, that the unavoidably malleable essence of texts – their essential inessentiality – entails that interpreting a text is a necessary part of the process of creating the text's meaning. These insights have generated both considerable angst, and considerable excitement among traditional constitutional scholars, primarily because at least on first blush these two claims seem to inescapably imply a third: that the interpreter of a text creates rather than discovers the text's meaning. A text's meaning cannot constrain an interpreter, for the simple reason that there is no single meaning embedded in a text to do the constraining; at best an interpreter must therefore choose from a range of possible meanings, and at worst the interpreter creates the meaning in the name of discovery or interpretation. In the constitutional context, the insistence that an uninterpreted, pure, or original legal text (like any text) cannot constrain in any way its subsequent interpretation seems to imply that the judge operates not in the realm of law but in the realm of arbitrary power. This suggests that judges interpreting the Constitution are essentially creating its meaning, and are therefore freed of any "textual" – and hence legal – constraints on their power. The judicial interpreter becomes the constitution-maker; each case potentially occasions a rewriting. If the judge is not constrained by the singular meaning of the constitutional text, he must be free to basically do as he pleases. Constitutional adjudication thereby becomes, for better or for worse, an exercise of power rather than an exercise in law. As widespread as this belief is, however, the reaction of constitutional scholars to the two fundamental insights of the "interpretive turn" in modern philosophy may be misguided. Constitutional scholars who are alarmed by the interpretive turn in jurisprudence assume that judicial freedom from the constraints of the univocal, imperative meaning of "the" constitutional text implies judicial lawlessness. But the conclusion of lawlessness from hermeneutic insights simply does not follow. That judges may be free of the constraining influence of an illusion – the illusion that a text has a singular meaning, either original or "plain," awaiting proper discovery – by no means implies that they are therefore free; it only means that the text does not operate as a constraint, at least to the degree or in the manner traditionally thought. But it does not follow that the judge is unconstrained. He may well be constrained, even if not by the singular, original, or plain meaning of the text. Thus, even the judge who is free (and feels free) of the illusion that the text has a single, imperative meaning may nevertheless be "bound" by-and feel bound by-any number of other constraints, stemming from his professional role, his sense of ethics, his class interests, the expectations of a range of various "communities," or, as I shall discuss in greater detail in the bulk of this paper, his jurisprudential identity, and the social and moral role in society that identity entails.

A Response to Goodwin Liu

Abstract: Professor Liu's article convincingly shows that the Fourteenth Amendment can be read, and has been read in the past, to confer a positive right on all citizens to a high-quality public education and to place a correlative duty on the legislative branches of both state and federal government to provide for that education. Specifically, the United States Congress has an obligation under the Fourteenth Amendment's Citizenship Clause, Liu argues, to ensure that the public education provided by states meets minimal standards so that citizens possess the competencies requisite to meaningful participation in civic life. Liu's argument is not simply that Congress may, within the grant of power of the Fourteenth Amendment, address educational inequality, if it sees fit to do so (thus withstanding federalism challenges). Rather, Liu's claim is that the states, and Congress, jointly must do so. The Constitution imposes a duty on government to educate, and confers a positive right to an education upon the citizenry. A decent education, Liu argues, is part of what it means to be a citizen under the United States Constitution.I applaud the constitutional and the moral ambition of this piece. Liu's paper is a stellar example of what I hope will prove to be an emerging genre: an exploration of the possible meaning of constitutional phrases in our constitutional text and history, as viewed through the lens of legislative purposes and legislative ends. The article is a study of constitutional politics rather than constitutional law; it is a study of the effect of constitutionalism on legislative decision-making rather than the effect of constitutionalism on adjudicated constitutional law. I hope that this article proves fecund – that it inspires not only criticism but also like-minded efforts to improve other aspects of our public life through a capacious view of our representative branch's constitutional obligations. Liu's argument has two somewhat undeveloped implications that I believe are worth exploring, one jurisprudential and one practical.

What Would Zero Look Like? A Treaty for the Abolition of Nuclear Weapons

Abstract: Nuclear disarmament – the comprehensive, universal, and permanent abolition of all nuclear weapons, pursuant to a verifiable, legally binding international agreement – has long been one of the most ambitious, controversial, and urgent items on the agenda for arms control. To date, however, most of the discussion of “Getting to Zero” has highlighted the political, military, technical and diplomatic dimensions of this complex problem, and there has been relatively little attention to the legal requirements for drafting such a novel treaty.This article addresses that gap, by offering two proposed agreements. The first, a non-legally-binding framework accord, would be designed for signature relatively soon (e.g., in 2015) to re-commit states to the goal of nuclear elimination and to energize their concerted individual and collective action on a set of prescribed steps in pursuit of it. The second, a legally-binding document, would be concluded at some point in the more distant future, when states had accomplished great reductions in their current nuclear arsenals and were ready, at last, to plunge forward to true abolition.The article describes the conditions necessary for the further articulation of these two novel agreements, and the text of each instrument carries numerous annotations that identify competing options, describe the negotiating range, and illuminate the drafter’s choices. The hope is that something novel can be gained – fresh insights can be suggested, and new questions can be raised (even if answering them remains elusive) – by advancing the dialog about nuclear disarmament to the concrete stage of treaty drafting.

Why Care About the Polar Bear? Economic Analysis of Natural Resources Law and Policy

Abstract: Cost-benefit analysis has not yet steamed through natural resources policy the way it has through the policy of pollution control. Given its popularity in the latter context, however, it is worthwhile to consider whether it would be a good idea to extend the use of cost-benefit analysis to natural resources law and policy. In this book chapter, I argue that this would not be a good idea. Using the polar bear as my example, I show that the conventional economic value of a species the public appears to regard as extremely valuable is probably quite low. Moreover, even if the value derived from economic analysis were high, economic analysis would miss many of the reasons why we might care about the polar bear and thus would provide a poor reflection of true value. Public goods, the future, natural interconnectedness, irreversible and discontinuous events, and the moral dimension are all poorly captured, if at all, by economic analysis. Yet these characteristics and consequences lie at the heart of the resource protection mission. Cost-benefit analysis captures the small things tolerably well but misses the large ones. The picture it gives of value is distorted, and we are better off - and have better information - without it.