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Articles 121 - 129 of 129
Full-Text Articles in Entire DC Network
On The Formation Of The American Corporate State: The Fuller Supreme Court, 1888-1910, George Skouras
On The Formation Of The American Corporate State: The Fuller Supreme Court, 1888-1910, George Skouras
George Skouras
This paper deals with the formation and legitimation of the American Corporate State by the Fuller Supreme Court. It argues that the Fuller Court was wrong to use the Due Process Clause of the 14th Amendment and natural law to support laissez-faire capitalism and the emergent corporate structure at the expense of labor and labor unions. It also argues that the corporatization of America has created a social and cultural environment that places business as the center of the American universe. This has led to a very asymmetrical relationship between corporations and citizens. It further argues that recent revisionist scholarship …
"A Bulwark Against Anarchy": Affirmative Action, Emory Law School, And Southern Self-Help, William B. Turner
"A Bulwark Against Anarchy": Affirmative Action, Emory Law School, And Southern Self-Help, William B. Turner
William B Turner
This article presents archival evidence about Pre-Start, Emory Law School’s affirmative action program from 1966 to 1972. It places that evidence into the context of current legal and scholarly debates about affirmative action in law school admissions and demonstrates that Pre-Start is an extremely important case study for anyone who wishes to think carefully about this important topic. I perform post-hoc strict scrutiny on Pre-Start, showing that it meets, not only the standard of the majority in Grutter v. Bollinger (539 U.S. 306 (2003)), but even the much more exacting standard of dissenting Justice Clarence Thomas. Because white supremacists are …
The Rehnquist Court And The Pollution Control Cases: Anti-Environmental And Pro-Business?, Mark A. Latham
The Rehnquist Court And The Pollution Control Cases: Anti-Environmental And Pro-Business?, Mark A. Latham
Mark A. Latham
In this Article I address whether the assertions made by a number of commentators criticizing the Rehnquist Court as a pro-business and anti-environmental Court are accurate. To answer this question, I specifically focus on the cases arising under the so-called “pollution control” statutes during the tenure of William H. Rehnquist as Chief Justice. The pollution control statutes collectively regulate a wide spectrum of businesses and industries, and an analysis of the cases arising under these statutes should, consequently, reflect the bias that is claimed to have existed in the Court’s environmental jurisprudence under the leadership of Chief Justice Rehnquist. Contrary …
Some Challenges For Legal Pragmatism: A Closer Look At Pragmatic Legal Reasoning, Andrew J. Morris
Some Challenges For Legal Pragmatism: A Closer Look At Pragmatic Legal Reasoning, Andrew J. Morris
Andrew J Morris
Some Challenges For Legal Pragmatism: A Closer Look At Pragmatic Legal Reasoning
Although scholars have discussed legal pragmatism for several decades, the literature does not contain a systematic analysis of the characteristic elements of pragmatic decisionmaking. This article tries to add that analytical perspective. It attempts to make sense of the extensive literature by identifying specific characteristics of pragmatic reasoning, then conducting a methodical comparison of distinctively pragmatic reasoning to more principled reasoning. I identify principled reasoning with legal form: as reasoning that gives some normative force to formal legal reasons. The criteria on which I compare the two modes …
Of Marriage And Monarchy: Why John Locke Would Support Same-Sex Marriage, William B. Turner
Of Marriage And Monarchy: Why John Locke Would Support Same-Sex Marriage, William B. Turner
William B Turner
Arguments about discrimination based on sexual orientation generally rest on interpretations of the equal protection clause of the Fourteenth Amendment or about rights to autonomy rooted in modern substantive due process doctrine. Such theories typically presuppose a government that remains neutral among competing moral claims. This Article, by contrast, develops an account of rights against sexual orientation discrimination—including recognition of same-sex marriage—that does not depend on a thin moral conception of the liberal state. Instead, I situate lesbian/gay rights within a Lockean political theory of consent. John Locke’s theory of government, which was highly influential for the Founders of the …
From Interests-Based Balancing To Rights-Based Balancing: Two Models Of Balancing In The Early Days Of American Constitutional Balancing, Iddo Porat
Iddo Porat
Balancing tests are ubiquitous in current constitutional law. This Article reviews the development of constitutional balancing over the first five decades of the 20th century and identifies the formation of two types of balancing during these years: interests-based and rights-based balancing. Since these two types of balancing are still present within current constitutional law, this review may also help to better understand balancing today. The Article attempts to show how the early development of balancing in the early 20th century by legal Progressives such as Holmes, Pound and Cardozo, was related to their criticism on the jurisprudence of rights, and …
The De-Evolution Of American Legal Ethics, Jennifer Schultz Reed
The De-Evolution Of American Legal Ethics, Jennifer Schultz Reed
Jennifer Schultz Reed
That since Legal Ethics became a mandatory course in all ABA accredited law schools in 1974, there has been little, if any, perceptible change in the ethics of the legal profession. The absence of significant discernable impact is due to several factors: the failure to define what the profession means and intends by the concept of legal ethics; the inability of law schools to find coherent and successful ways to teach this subject; and the fact that the public generally continues to regard lawyers with little respect and to equate the misdeeds of some with the conduct of most. In …
The De-Evolution Of American Legal Ethics, Jennifer Schultz Reed
The De-Evolution Of American Legal Ethics, Jennifer Schultz Reed
Jennifer Schultz Reed
That since Legal Ethics became a mandatory course in all ABA accredited law schools in 1974, there has been little, if any, perceptible change in the ethics of the legal profession. The absence of significant discernable impact is due to several factors: the failure to define what the profession means and intends by the concept of legal ethics; the inability of law schools to find coherent and successful ways to teach this subject; and the fact that the public generally continues to regard lawyers with little respect and to equate the misdeeds of some with the conduct of most. In …
A Concise Guide To The Federalist Papers As A Source Of The Original Meaning Of The United States Constitution, Gregory E. Maggs
A Concise Guide To The Federalist Papers As A Source Of The Original Meaning Of The United States Constitution, Gregory E. Maggs
Gregory E. Maggs
Many lawyers, judges, law clerks, and legal scholars feel unprepared to make or evaluate claims about the original meaning of the Constitution based on the Federalist Papers. The typical law school curriculum acknowledges the importance of the Federalist Papers—usually by assigning Supreme Court cases which cite them—but does not treat the essays in depth. As a result, many law students and graduates still need accessible information about the creation, content, and distribution of the essays, manageable summaries of the theories under which the Federalist Papers might provide evidence of the original meaning, and instruction on possible grounds for impeaching claims …