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 Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution

Abstract: At the end of the Constitutional Convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the Convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the Committee, and, with few revisions and little debate, the Convention adopted Morris’s draft. For more than two hundred years, questions have been raised as to whether Morris covertly altered the text in order to advance his constitutional vision, but modern legal scholars and historians studying the Convention have either ignored the issue or concluded that Morris was an honest scrivener. No prior article has systematically compared the Committee’s draft to the previously adopted resolutions or discussed the implications of those changes for constitutional law. This Article undertakes that comparison. It shows that Morris made fifteen significant changes to the Constitution and that many of the Constitution’s central elements were wholly or in critical part Morris’s work. Morris’s changes strengthened the national executive and judiciary, provided the textual basis for judicial review, increased presidential accountability through an expansive conception of impeachment, protected private property, mandated that the census report reflect “actual enumeration,” removed the constitutional text suggesting that slavery was just, and fought slavery’s spread. This Article also shows that Morris created the basis for the Federalist reading of the Constitution. Federalists—notably including fellow Committee member Alexander Hamilton—repeatedly drew on language crafted by Morris as they fought for their vision of the Constitution. Because the changes Morris made to the Convention’s agreed language were subtle, both Republicans and Federalists were able to appeal to text in the great constitutional battles of the early republic. Modern originalists claim that the Republican reading reflects the original understanding of the Constitution, but this Article argues that the largely dismissed Federalist reading explains words, phrases, and punctuation that the Republican reading ignores or renders unintelligible. By contrast, the Federalist reading of the Preamble (which they saw as a grant of substantive power), the Article I and Article II Vesting Clauses (which were contrasted to argue for expansive executive power), the Article III Vesting Clause (which they read to mandate the creation of lower federal courts), the Contracts Clause (which they read to cover public as well as private contracts), the Impeachment Clause (which they read to cover both nonofficial and official acts), and the “law of the land” provision (which they construed as a basis for judicial review) gives effect to Morris’s—and the Constitution’s—words.

Federalism Hedging, Entrenchment, and the Climate Challenge

Abstract: The virtues and effects of federalism continue to generate political, judicial and scholarly ferment. While some federalism partisans champion exclusivity and separation, others praise the more common political choice to retain federal and state regulatory overlap and interaction. Much of this work, however, focuses on government learning or rule clarity, giving little or no attention to how different federalism choices can heighten or hedge risks of regulatory failure and policy reversal. These debates play out with unusual fervor and with high stakes in battles over climate change regulation. Despite broad agreement that any effective climate policy intervention must include national action, disagreement reigns regarding the retention of state authority. Prominent policymakers, industry voices, and scholars have championed a single regulator and clean authority delineation as the answer to the challenges of climate change. They characterize state climate policies as a weak or even harmful alternative, especially if overlapping or intertwined with a federal role. A global challenge like climate change does intuitively seem to be a quintessential setting for a single, comprehensive regulator, especially if addressed through marketutilizing regulation. This intuition, however, only makes sense under an idealized view of politics and regulatory efficacy. This Article introduces the concept of federalism hedging—namely retention of concurrent federal and state authority due to its benefits and especially protective effects, even in an area ideally regulated by a single national regulator— then disaggregates sometimes blurred but related strains in federalism analysis. It illuminates federalism hedging dynamics through a theoretical and historical case study of climate regulation and federalism choice. This Article argues that where effective regulation is dependent on innovations and applies in areas characterized by rapid change in regulatory design, markets, and technology, such regulatory design choices—especially regarding federalism allocations of authority—should not be based on optimistic assumptions of steady progress and easy implementation. Effective regulatory structures should hedge risks, with special attention to linked political and economic dynamics. Regulation that retains room for both federal and state involvement and overlap can provide room for regulatory learning and adjustment, catalyze commitment and corrective efforts, while still fostering beneficial regulatory and market entrenchment and resulting stability through a web of similarly directed regulation.

Varieties of Constitutional Experience: Direct Democracy and the Marriage Equality Campaign

Abstract: Beginning in the 1970s, the overwhelming success of anti-gay ballot questions made direct democracy the most powerful bete noire of the LGBT rights movement. It is thus deeply ironic that, more than any other factor, an electoral politics-style campaign led to the national mandate for marriage equality announced by the Supreme Court in Obergefell v. Hodges. This occurred because marriage equality advocates set out to change social and constitutional meanings not primarily through courts or legislatures, but with a strategy designed to win over moveable middle voters in ballot question elections. Successful pro-gay litigation arguments, followed by supportive reasoning in judicial victories, grew directly out of the messaging frames that tested best with voters. A new variation on popular constitutionalism was born. The lawyers who led the marriage equality campaign succeeded by decentering litigation until after opinion polls registered majority support for allowing same-sex marriage. In developing and implementing this strategy, they were assisted by professionals skilled in communications research and enabled by large-scale, coordinated funding. These dimensions of the marriage equality effort both validate and contradict much of the law and society scholarship predicting that court-centered rights discourse will inevitably dominate law reform campaigns. In this Article, I argue that the same-sex marriage campaign is likely to foreshadow sophisticated social change efforts in the future that look less like traditional impact litigation strategies and more like social marketing campaigns, one component of which may be constitutional interpretation. Whether this model has major potential for significantly progressive change will turn on its effectiveness for issues that involve claims for redistribution of material resources or greater openness in governance, challenges with which the marriage equality effort was not forced to engage. In the marriage campaign, voter-tested messaging led to two major discursive innovations. The first was the jettisoning of rights arguments in favor of storytelling models that were grounded in emotions rather than rights. Advocates stopped enumerating the legal benefits of marriage and talked more about the bonds of commitment exemplified by same-sex couples. Second, ballot question campaign ads increasingly featured the construction of a storytelling arc centered on how opposition to same-sex marriage of older or more conservative voters could morph into acceptance (even if not endorsement) of it. These narratives guided conflicted, moveable middle voters (and others) along a path toward a different sense of moral awareness about homosexuality and same-sex marriage than the manichean version of morality arguments used by conservatives. The new approaches were calibrated, tested, and refined for particular audiences, producing empirical evidence to support a new addition to the language of law: data-driven arguments. The most significant limitations of this approach operated at the level of social and constitutional meanings. Several discursive pivot points that emerged from the messaging strategy led to the shrinkage of what might have been greater emphasis on the pluralism of family forms as the foundation for equality and liberty in the realm of personal relationships. The shift from an equality frame based on analogies to other social minorities to a universalized sameness approach; The shift from an emphasis on the material consequences of being denied access to the legal incidents of marriage to an emphasis on commitment, child raising, and the relational and emotional motivations for wanting to marry; and The avoidance of arguments for “expanding” or “changing” marriage and the stress of the desire for “joining” marriage. This new frame reassured moderate voters and judges that the traditional norms and practices associated with marriage were not being threatened, producing a kind of cultural interest conversion. This was brought about through a discourse that was mined from the rhetoric of popular constitutionalism but suffused with the resonance of respectability.

Having Your Day in Robot Court

Abstract: Should machines be judges? Some balk at this possibility, holding that ordinary citizens would see a robot-led legal proceeding as procedurally unfair: To have your “day in court” is to have a human hear and adjudicate your claims. Two original experiments assess whether laypeople share this intuition. We discover that laypeople do, in fact, see human judges as fairer than artificially intelligent (“AI”) robot judges: All else equal, there is a perceived human-AI “fairness gap.” However, it is also possible to eliminate the fairness gap. The perceived advantage of human judges over AI judges is related to perceptions of accuracy and comprehensiveness of the decision, rather than “softer” and more distinctively human factors. Moreover, the study reveals that laypeople are amenable to “algorithm offsetting.” Adding an AI hearing and increasing the AI interpretability reduces the perceived human-AI fairness gap. Ultimately, the results support a common challenge to robot judges: there is a concerning human-AI fairness gap. Yet, the results also indicate that the strongest version of this challenge — human judges have inimitable procedural fairness advantages — is not reflected in the views of laypeople. In some circumstances, people see a day in robot court as no less fair than day in human court.

'Critical Issues in Nigerian Property Law' by Amos Agbe Utuama. Subject Matter Analysis and Commentary.

Abstract: One of the challenging issues in sub-Saharan Africa is land title and land management. Several countries have attempted reforms moving from the colonial legal regime to the post-colonial as the need for land by individuals and government for infrastructure development continues to increase. Much of these land reform initiatives have led to significant social tensions and problems because of existing interests particularly where such reforms has led to actual acts of expropriation and redistribution of land.The Nigerian example at reform offers a less disturbing initiative and has been comparatively more successful, by making land the property of government, specifically the Governor of the state. The Land Use Act, enacted in 1978 is an expropriation law placing all lands within a state in the management and control of the Governor of the state with the powers to grant a right of occupancy for a specific period in the manner of a leasehold, compulsorily acquire for overriding public interest, invalidate alienation of interest where consent to the transaction was not obtained, etc.Nonetheless, several legal issues have arisen since the coming into being of the law: the place of customary law in traditional landholding, duality of legal regime, compensation, the loss of land as a resource by traditional owners, the abuse in the process of acquisition due to existing political interest. These are the concerns of that have made the Nigerian reform far from wholly successful but a continuing subject for academic and scholarly examination.