What is the Purpose? Affirmative Action, DOMA, and the Untenable Tiered Framework for Equal Protection Review
This paper argues that the Court’s current approach to equal protection, which treats the tiered framework as a rigid taxonomy rather than a set of guiding principles, is untenable. As this paper seeks to illustrate, the Court’s current approach has skewed the Court’s analysis, rendering the substantive nature of the equal protection guarantee unclear, and [...]
Address: Twenty-First-Century International Lawmaking
The last time I spoke at Georgetown University Law Center was on the occasion of the eightieth anniversary of the Legal Adviser’s Office, known affectionately at the State Department as “L.” I have now been the Legal Adviser at the State Department for more than three and a half years. During that time, at nearly [...]
Pluralism on Appeal
In a thoughtful response to my article, Rethinking Federal Circuit Jurisdiction, Ori Aronson notes that judges “work in context, be it social, cultural, or . . . institutional,” and that “context matters” to their decisions. Indeed, the primary aim of my article was to spur a conversation about the context in which the judges of the [...]
Response Comment: Innovation, Aggregation, and Specialization
In his fascinating critique of Federal Circuit jurisdiction, Professor Gugliuzza employs multiple tools of institutional analysis in order to explore the “dark matter” that comprises most of that Court’s docket—its unsung caseload of the nonpatent variety—and to stimulate our institutional imagination in search of a better jurisdictional structure. Through a combined analysis of its theoretical [...]
Response Essay: Rethinking Federal Circuit Jurisdiction—A Short Comment
Professor Gugliuzza’s article, Rethinking Federal Circuit Jurisdiction, is a massive piece of scholarship inquiring into the jurisdiction of the United States Court of Appeals for the Federal Circuit and proposing jurisdictional remedies in the hope of curing the Federal Circuit’s problem with patent law. Specifically, Professor Gugliuzza proposes to transfer much of the subject-matter jurisdiction [...]
Reply to Professor Rothstein
In response to: Response Essay: Some Observations on Professor Schwartz’s “Foundation” Theory of Evidence by Paul Rothstein It is an honor and a privilege, both to have garnered Professor Rothstein’s careful and sympathetic reading of my article A Foundation Theory of Evidence (hereinafter “Foundation Theory”) and to have the opportunity to respond to his thought-provoking comments [...]
Response Essay: Some Observations on Professor Schwartz’s “Foundation” Theory of Evidence
Professor David Schwartz’s A Foundation Theory of Evidence posits an intriguing new way to look at Evidence. It asserts that offered evidence must meet a tripartite requirement before it can be relevant. The tripartite requirement is that the evidence must be “case-specific, assertive, and probably true.” His shorthand for the tripartite requirement is that evidence [...]
Another Bite at the Graham Cracker: The Supreme Court’s Surprise Revisiting of Juvenile Life Without Parole in Miller v. Alabama and Jackson v. Hobbs
The Supreme Court’s decision this week to review the constitutionality of life-without-parole sentences imposed upon individuals convicted of homicide crimes committed at age fourteen and younger in Miller v. Alabama and Jackson v. Hobbs stunned sentencing law advocates and Court watchers, myself included. This commentary will contextualize these two grants of certiorari within the Court’s [...]
Response Essay: Temporal Variance, Hockey, and the Wartime Constitution
In “Let ‘Em Play”: A Study in the Jurisprudence of Sport, Professor Mitchell Berman offers a thoughtful and engaging defense of the concept of temporal variance, the notion that “some rules of some sports should be enforced less strictly toward the end of close matches.” In support of his position, Professor Berman draws on various [...]
Welcome to Ipsa Loquitur
Welcome to Ipsa Loquitur, the blog and online companion to The Georgetown Law Journal. We believe the name speaks for itself. Ipsa Loquitur, like the Journal, is a general legal publication that will contain more informal blog posts as well as formal responses to in-print scholarship, scholarly debates, and case comments. The launch of Ipsa Loquitur coincides with a significant [...]