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.

Treaties and the Eleventh Amendment

Abstract: The Supreme Court's recent invigoration of federalism doctrine has revived a question that had long lain dormant in constitutional law: whether and to what extent federalism limits apply to exercises of the Treaty Power. In the days before the famous switch in time that saved nine, the Court in Missouri v. Holland upheld a statute passed by Congress to implement a treaty even though it assumed that the statute would exceed Congress's legislative power under Article I in the absence of the treaty. The significance of this holding abated considerably when the Court embraced a broader interpretation of the Commerce Power. The Court's recent decisions striking down federal statutes as exceeding the Commerce Power for the first time since the New Deal have revived the question of Congress's power to implement treaties by enacting statutes that cannot be made in the absence of a treaty. Scholars have argued that Missouri v. Holland should be rethought in the light of such decisions as United States v. Lopez, while others have defended Missouri v. Holland. One important branch of the Court's recent federalism jurisprudence is that relating to state sovereign immunity. In Seminole Tribe of Florida v. Florida, the Court held that Congress may not abrogate the states' Eleventh Amendment immunity pursuant to its Commerce Power, reversing Pennsylvania v. Union Gas Co. Although the Supreme Court has reaffirmed the holding of Fitzpatrick v. Bitzer that Congress may abrogate Eleventh Amendment immunity pursuant to the Fourteenth Amendment, its decisions make it clear that the window left open by Fitzpatrick is narrow. These decisions have led some scholars to consider whether the Treaty Power provides an alternative basis for abrogating the states' sovereign immunity. This paper focuses on the latter question. It considers whether state sovereign immunity constrains Congress's power to authorize remedies against states pursuant to the Treaty Power. The author is among those who have defended the holding of Missouri v. Holland that Congress may pass laws necessary to implement treaties even if the laws would exceed Congress's legislative power in the absence of a treaty, he concludes here that Congress's power to implement treaties is not exempt from the federalism limitations reflected in the doctrine of state sovereign immunity.

Cloning Matters: How Lawrence V. Texas Protects Therapeutic Research

Abstract: Several states have banned therapeutic cloning and the federal government is considering legislation that would do the same. Some of these laws, including the proposed federal law, make it a crime for a patient to use any product derived from therapeutic cloning. Government action restricting a patient's freedom in this way must at least have a rational basis. Opponents of therapeutic cloning argue not that the medicines derived from it are unsafe or ineffective, but rather that the embryonic stem cells used in therapeutic cloning represent potential life that must be protected. Yet some spare embryos produced as a byproduct of fertility treatments are destroyed while others are used for research. This disparate treatment reveals that the real basis for the ban on therapeutic cloning is a repugnance at cloning, a sense that it is unnatural. The Supreme Court's recent decision in Lawrence v. Texas, as well as earlier precedent, casts serious doubt on the idea that repugnance can be an adequate basis for a criminal statute.

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

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 thankyou 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.1 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,2 second, that multiculturalism renders inadequate, for different reasons, both Weberian and non-positivist or non-instrumental accounts of law’s liberal aspirations,3 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 fulfilment 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,4 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.5

Preserving Privacy in a Digital Age: Lessons of Comparative Constitutionalism

Abstract: Like so much else, privacy these days is not what it used to be. In November 2012, Central Intelligence Agency (CIA) Director, David Petraeus, a muchdecorated four-star general, resigned when a Federal Bureau of Investigation (FBI) inquiry into anonymous email threats to a woman in Tampa, Florida, disclosed, in the “Drafts” folder of a joint Gmail account, that Petraeus was having an affair with his biographer. The latter had sent the threatening emails to the Tampa woman in a jealous pique. The FBI investigation included examination of some 30,000 pages of emails, and also revealed potentially inappropriate emails between the recipient of the threats and General John Allen, the United States’ (US) top commander in Afghanistan. The military launched a public investigation of Allen’s allegedly “fl irtatious” emails, which ultimately cleared him of any wrongdoing – but not before he and his correspondent’s names were dragged through the media mud. In the “old days”, such affairs and fl irtations would have left no such electronic trail, in all likelihood would never have been discovered, and would have been deniable if they were. No longer.

Toward an Abolitionist Interpretation of the Fourteenth Amendment

Abstract: It is by now an open secret that current interpretations of the meaning of the equal protection clause of the Fourteenth Amendment, and of its relevance and mandate for contemporary problems of racial, gender, and economic justice, are deeply and, in a sense, hopelessly conflicted. The conflict, simply stated, is this: to the current Supreme Court, and to a sizeable and influential number of constitutional theorists, the equal protection of the laws guaranteed by the Constitution is essentially a guarantee that the categories delineated by legal rules will be rational and will be rationally related to legitimate state ends. To this group of jurists, the relevance of the equal protection clause to issues of racial justice rests on the important complementary minor premise to this guarantee of rationality: the claim, both descriptive and normative, that legislative distinctions based upon race can simply never be rational because there are no differences between the races that can in any way be relevant to state purposes, and, consequently, racial differentiation in any context cannot be a legitimate state goal. This view will be referred to as the colorblind view. For a second group of jurists, including the liberal dissenters on the Court and a sizeable number of constitutional theorists in law schools, the equal protection clause of the Fourteenth Amendment requires not rationality in legislation but, rather, substantive justice. For this group the guarantee of equal protection is a constitutional imperative for the states and Congress to take substantive steps toward the eradication of the unjust subordination of one group of citizens by another, including African-Americans and other peoples of color by whites, women by men, and gays and lesbians by heterosexuals. On this view, the equal protection mandate and the Fourteenth Amendment is historically grounded not in the pernicious idea of racial difference but, rather, in the pernicious practice of racial subordination: the willful and continuing attempt of white people, with the willing acquiescence of state governments, to subordinate, deny, oppress, and use black people for their own ends. The equal protection mandate for these theorists is a guarantee that either the states or, in the breach, Congress will act to reverse these patterns of subordination. This view will be referred to as the substantive anti-subordination view. One purpose of this paper is to argue against both of these understandings of equal protection and to introduce a quite different interpretation - a view grounded in human nature and governmental obligation held by the abolitionists of the early and mid-nineteenth century. These abolitionists, at least according to a number of historians, - propagated and popularized the phrase equal protection of the law in the decades immediately preceding the Civil War and the Reconstruction amendments. I will ultimately argue that this abolitionist understanding of equal protection, and of the Fourteenth Amendment, is truer to both the plain language and the history of the Amendment than either the formal colorblind view or the substantive anti-subordination view briefly outlined above. Before doing so, however, I want to discuss in a little more detail the nature of the conflict between the two conceptions that dominate current case law and scholarship, why I think that conflict is quite distinctive in our constitutional jurisprudence, and suggest why it seems to me to be imperative that we somehow find a way to break the deadlock. In the first section that follows, I will therefore discuss the schism in our current understanding of equal protection, and I will then introduce, by way of metaphor, the rather different abolitionist understanding of the phrase equal protection. In the next two sections, I will discuss modern applications of the abolitionist understanding and structural and intellectual barriers to its modern implementation.