Volume 100 - Issue 1 Georgetown Law Journal

Religion as a Conversation Starter: What Liberal Religious Political Advocates Add to the Debate About Religion’s Place in Legal and Political Discourse

Should a religious institution cite the biblical prohibition from Leviticus that “a man shall not lie with a man as he lies with a woman” in an amicus brief to the United States Supreme Court? Should a politician stand on the floor of the United States Senate and articulate religious justifications for passing climate change [...]

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Comparing Apples to Apples: A Federalism-Based Theory for the Use of Founding-Era State Constitutions to Interpret the Constitution

Defining the relationship between the national government and the individual states formed one of the major debates among the delegates of the Constitutional Convention of 1787. All agreed that the relationship as it existed under the Articles of Confederation required revision. Notwithstanding the problems created under the Articles’ decentralized power structure, the Framers—with the stench [...]

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Not in My Atlantic Yards: Examining Netroots’ Role in Eminent Domain Reform

Since the Supreme Court’s decision in Kelo v. City of New London, which expanded the state’s power to condemn private property and transfer it to other private owners under the Fifth Amendment, there have been significant calls to curb the power of eminent domain through statutory reform. Scholars and jurists in favor of eminent domain [...]

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Response: The Case for Reforming Presidential Elections by Subconstitutional Means: The Electoral College, the National Popular Vote Compact, and Congressional Power

It is particularly fitting that my exchange with Professor Norman Williams, concerning national popular election of Presidents, should take place in the 100th Anniversary Volume of The Georgetown Law Journal.  The Journal published its first pages precisely at a time when federal legislators across town on Capitol Hill—and reformers throughout the rest of the nation—were [...]

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Reforming the Electoral College: Federalism, Majoritarianism, and the Perils of Subconstitutional Change

Frustrated by their inability to secure passage of a federal constitutional amendment abolishing the Electoral College, some of its opponents have sought to establish the direct, popular election of the President by having individual states agree to appoint their presidential electors in accordance with the nationwide popular vote. Ostensibly designed to prevent elections, such as [...]

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A Foundation Theory of Evidence

This Article argues that foundation, not relevance, embodies our fundamental understanding of admissible evidence. The foundation principle—only partially and somewhat obliquely stated in the Federal Rules of Evidence—is a requirement that evidence be case-specific, assertive, and probably true. As such, it is a logical precondition for relevance. A foundation-based theory of evidence explains, in a [...]

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Minimalism and Experimentalism in the Administrative State

This Article identifies and appraises the two most promising alternatives to the “command-and-control” style of public administration that was dominant from the New Deal to the 1980s but is now in disfavor. The first—minimalism—emphasizes public interventions that incorporate market concepts and practices while also centralizing and minimizing administrative discretion. The second—experimentalism—emphasizes interventions in which the [...]

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Are All Contractual Obligations Created Equal?

At the core of the economic analysis of contract law lies the concept of options. According to this concept, parties are expected to perform their contractual duties if, and only if, the legal price of breach (that is, damages) is higher than the cost of performance. This Article challenges this concept and shows that people’s [...]

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Celebrating 100 Years of The Georgetown Law Journal

It was 1911. Georgetown Law was then forty-one years old. It was an undergraduate program, as a college degree was unnecessary. Indeed, it was only a dozen years or less since Georgetown had begun to require a high school diploma for admission and had expanded to a three-year program. The degree granted was an LL.B., [...]

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