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Articles 1 - 30 of 40
Full-Text Articles in Legal
Magna Carta Then And Now: A Symbol Of Freedom And Equal Rights For All, Eugene K B Tan, Jack Tsen-Ta Lee
Magna Carta Then And Now: A Symbol Of Freedom And Equal Rights For All, Eugene K B Tan, Jack Tsen-Ta Lee
Jack Tsen-Ta LEE
Magna Carta became applicable to Singapore in 1826 when a court system administering English law was established in the Straits Settlements. This remained the case through Singapore’s evolution from Crown colony to independent republic. The Great Charter only ceased to apply in 1993, when Parliament enacted the Application of English Law Act to clarify which colonial laws were still part of Singapore law. Nonetheless, Magna Carta’s legacy in Singapore continues in a number of ways. Principles such as due process of law and the supremacy of law are cornerstones of the rule of law, vital to the success, stability and …
Administrative Equal Protection: Federalism, The Fourteenth Amendment, And The Rights Of The Poor, Karen M. Tani
Administrative Equal Protection: Federalism, The Fourteenth Amendment, And The Rights Of The Poor, Karen M. Tani
Karen M. Tani
The Secret Lives Of The Four Horsemen, Barry Cushman
The Secret Lives Of The Four Horsemen, Barry Cushman
Barry Cushman
"Outlined against red velvet drapery on the first Monday of October, the Four Horsemen rode again. In dramatic lore they are known as Famine, Pestilence, Destruction, and Death. These are only aliases. Their real names are Van Devanter, McReynolds, Sutherland, and Butler. They formed the crest of the reactionary cyclone before which yet another progressive statute was swept over the precipice yesterday morning as a packed courtroom of spectators peered up at the bewildering panorama spread across the mahogany bench above." Or so Grantland Rice might have written, had he been a legal realist. For more than two generations scholars …
Founding-Era Conventions And The Meaning Of The Constitution’S “Convention For Proposing Amendments”, Robert G. Natelson
Founding-Era Conventions And The Meaning Of The Constitution’S “Convention For Proposing Amendments”, Robert G. Natelson
Robert G. Natelson
Under Article V of the U.S. Constitution, two thirds of state legislatures may require Congress to call a “Convention for proposing Amendments.” Because this procedure has never been used, commentators frequently debate the composition of the convention and the rules governing the application and convention process. However, the debate has proceeded almost entirely without knowledge of the many multi-colony and multi-state conventions held during the eighteenth century, of which the Constitutional Convention was only one. These conventions were governed by universally-accepted convention practices and protocols. This Article surveys those conventions and shows how their practices and protocols shaped the meaning …
Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn
Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn
Wilson R. Huhn
People have a fundamental need to think of themselves as “good people.” To achieve this we tell each other stories – we create myths – about ourselves and our society. These myths may be true or they may be false. The more discordant a myth is with reality, the more difficult it is to convince people to embrace it. In such cases to sustain the illusion of truth it may be necessary to develop an entire mythology – an integrated web of mutually supporting stories. This paper explores the system of myths that sustained the institution of slavery in the …
Founding Era Conventions And The Constitution's "Convention For Proposing Amendments", Robert G. Natelson
Founding Era Conventions And The Constitution's "Convention For Proposing Amendments", Robert G. Natelson
Robert G. Natelson
Under Article V of the U.S. Constitution, two thirds of state legislatures may require Congress to call a “Convention for proposing Amendments.” Because this procedure has never been used, commentators frequently debate the composition of the convention and the rules governing the application and convention process. However, the debate has proceeded almost entirely without knowledge of the many multi-colony and multi-state conventions held during the eighteenth century, of which the Constitutional Convention was only one. These conventions were governed by universally-accepted convention practices and protocols. This Article surveys those conventions and shows how their practices and protocols shaped the meaning …
The Reactionary Road To Free Love: How Doma, State Marriage Amendments And Social Conservatives Undermine Traditional Marriage, Scott Titshaw
The Reactionary Road To Free Love: How Doma, State Marriage Amendments And Social Conservatives Undermine Traditional Marriage, Scott Titshaw
Scott Titshaw
Much has been written about the possible effects on different-sex marriage of legally recognizing same-sex marriage. This article looks at the defense of marriage from a different angle: It shows how rejecting same-sex marriage results in political compromise and the proliferation of “marriage light” alternatives (e.g., civil unions, domestic partnerships, or reciprocal beneficiaries) that undermine the unique status of marriage for everyone. In the process, it examines several aspects of the marriage debate in detail. After describing the flexibility of marriage as it has evolved over time, the article focuses on recent state constitutional amendments attempting to stop further development. …
The Effects Of Mass Consumption On American Society, Jon Foster
The Effects Of Mass Consumption On American Society, Jon Foster
Jon Foster
For a generation that doesn’t relate to the ‘eighties’, fondly remembers the ‘nineties’, and came of age in the two thousands, we often think of the sixties with a bit of nostalgia; reminiscing about Woodstock, and hippies, the nuclear family or maybe the Beatles. Unfortunately, much of this understanding is isolated within a bubble; wherein the sincere socioeconomic issues of the time, often become detached from their idealistic counterpart. To clarify, the causal relations that gave rise to what my generation remembers and typifies as the ‘sixties’, becomes distorted within the context of the rapidly changing times.
Analysis: Williams V Scott, Jon Foster
Analysis: Williams V Scott, Jon Foster
Jon Foster
In the case of Williams v Scott, the Court has been asked to determine the constitutionality of Senate Bill 2100 in relation to the rights of public sector employees to collectively bargain.
Dispelling The Fog About Direct Taxation, James Campbell
Dispelling The Fog About Direct Taxation, James Campbell
James Campbell
A full interpretation of capitation taxes in their historical context is here used as the key to a fresh understanding of the nature and practice of apportioned direct taxation under the Constitution. Contrary to common misconceptions, it appears that none of the key elements of the Federal powers of direct taxation – capitations, other direct taxes, and apportionment – are of uncertain meaning, or no longer of any relevance because of the abolition of slavery. Evidence for these conclusions is drawn from historical studies of taxation, records of the Constitutional Convention, Federal and state tax statutes of the period, contemporaneous …
Reducing The Drug War's Damage To Government Budgets, David B. Kopel, Trevor Burrus
Reducing The Drug War's Damage To Government Budgets, David B. Kopel, Trevor Burrus
David B Kopel
This Article examines ways that governments can mitigate the economic damage caused by the drug war. Part I details four specific legal reforms enacted in Colorado, which aim to reduce the problems of over-criminalization: Requiring a fiscal note for the creation of new statutory crimes; reducing drug possession from a felony to a misdemeanor; narrowing the scope of 'three strikes' laws, and; adjusting old sentences in light of new laws.
Part II explores the fiscal benefits of ending prohibition, such as reduced law enforcement costs and substantially increased tax revenues.
Part III analyzes the conflict between congressionally-imposed prohibition, and state …
How The British Gun Control Program Precipitated The American Revolution, David B. Kopel
How The British Gun Control Program Precipitated The American Revolution, David B. Kopel
David B Kopel
Abstract: This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.
From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least …
Bad News For John Marshall, David B. Kopel, Gary Lawson
Bad News For John Marshall, David B. Kopel, Gary Lawson
David B Kopel
In Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, we demonstrated that the individual mandate’s forced participation in commercial transactions cannot be justified under the Necessary and Proper Clause as the Clause was interpreted in McCulloch v. Maryland. Professor Andrew Koppelman’s response, Bad News for Everybody, wrongly conflates that argument with a wide range of interpretative and substantive positions that are not logically entailed by taking seriously the requirement that laws enacted under the Necessary and Proper Clause must be incidental to an enumerated power. His response is thus largely unresponsive to our actual arguments.
The Israeli Welfare State, Jon Foster
The Israeli Welfare State, Jon Foster
Jon Foster
An analysis of the modern welfare state that exists within Israel. Identifying where the Israeli model falls in relation to the European and American model; differences, similarities, and unique aspects of the Israeli system in comparative perspective.
Tripartism In Ireland, Jon Foster
Tripartism In Ireland, Jon Foster
Jon Foster
Over the past few years, the term “PIIGS” has become synonymous with economic concerns and fears of collapse. The acronym, which currently refers to the European countries of Portugal, Italy, Ireland, Greece, and Spain: was originally just ‘PIGS’ , used to group the similar economies of Southern Europe when considering them for acceptance into the European Monetary Union. Nevertheless, as a result of the global financial crisis, this term soon came to identify economically weak and overly indebted nations. However, unlike Italy, Greece, and Portugal, who had before the crisis demonstrated relatively slow growth, modest unemployment, and a propensity to …
Labor Unions And Climate Change, Jon Foster
Labor Unions And Climate Change, Jon Foster
Jon Foster
The challenge of climate change and the need for a shift to more ecologically sustainable methods of production and innovation can dramatically redefine the strategy and objectives of the labor movement as a whole. Furthermore, within the specific sectors of: Agriculture, Construction, Utilities, and Automobiles, the reality of a changing environment, and social views, has already begun redefining what the future of these industries will mean in relation to labor unions.
“Health Laws Of Every Description”: John Marshall’S Ruling On A Federal Health Care Law, David B. Kopel, Robert G. Natelson
“Health Laws Of Every Description”: John Marshall’S Ruling On A Federal Health Care Law, David B. Kopel, Robert G. Natelson
David B Kopel
If John Marshall, the greatest of Chief Justices, were to hear a challenge to the constitutionality of the Patient Protection and Affordable Care Act of 2010, how would he rule? Would the nationalist justice who, according to the New Deal Supreme Court, “described the Federal commerce power with a breadth never yet exceeded,” agree that federal control of health care was within that power?
In the fictional opinion below, Marshall rules on the constitutionality of a bill similar to the Patient Protection and Affordable Care Act.
We constructed this opinion chiefly from direct quotation and paraphrases of Marshall’s own words, …
Law, History, And Feminism, Tracy A. Thomas
Law, History, And Feminism, Tracy A. Thomas
Tracy A. Thomas
This is the introduction to the book, Feminist Legal History. This edited collection offers new visions of American legal history that reveal women’s engagement with the law over the past two centuries. It integrates the stories of women into the dominant history of the law in what has been called “engendering legal history,” (Batlan 2005) and then seeks to reconstruct the assumed contours of history. The introduction provides the context necessary to appreciate the diverse essays in the book. It starts with an overview of the existing state of women’s legal history, tracing the core events over the past two …
Elizabeth Cady Stanton And The Notion Of A Legal Class Of Gender, Tracy A. Thomas
Elizabeth Cady Stanton And The Notion Of A Legal Class Of Gender, Tracy A. Thomas
Tracy A. Thomas
In the mid-nineteenth century, Elizabeth Cady Stanton used narratives of women and their involvement with the law of domestic relations to collectivize women. This recognition of a gender class was the first step towards women’s transformation of the law. Stanton’s stories of working-class women, immigrants, Mormon polygamist wives, and privileged white women revealed common realities among women in an effort to form a collective conscious. The parable-like stories were designed to inspire a collective consciousness among women, one capable of arousing them to social and political action. For to Stanton’s consternation, women showed a lack of appreciation of their own …
Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, David B. Kopel, Gary Lawson
Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, David B. Kopel, Gary Lawson
David B Kopel
In "Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform," Professor Andrew Koppelman concludes that the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is constitutionally authorized as a law "necessary and proper for carrying into Execution" other aspects of the PPACA. However, the Necessary and Proper Clause rather plainly does not authorize the individual mandate. The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must …
The Right To Arms In The Living Constitution, David B. Kopel
The Right To Arms In The Living Constitution, David B. Kopel
David B Kopel
This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.
"Living constitutionalism" should be distinguished from "dead constitutionalism." Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect …
State Court Standards Of Review For The Right To Keep And Bear Arms, David B. Kopel, Clayton Cramer
State Court Standards Of Review For The Right To Keep And Bear Arms, David B. Kopel, Clayton Cramer
David B Kopel
Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means. Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms). Even when formally applying "reasonableness," many courts have used reasonableness as a …
Commerce In The Commerce Clause: A Response To Jack Balkin, David B. Kopel, Robert G. Natelson
Commerce In The Commerce Clause: A Response To Jack Balkin, David B. Kopel, Robert G. Natelson
David B Kopel
The Constitution’s original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island’s ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin’s article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution’s Commerce Clause a scope that virtually no one in the Founding Era believed it had.
Dhimmitude And Disarmament, David B. Kopel
Dhimmitude And Disarmament, David B. Kopel
David B Kopel
Under shari'a law, non-Muslims, known as dhimmi, have been forbidden to possess arms, and to defend themselves from attacks by Muslims. The disarmament is one aspect of the pervasive civil inferiority of non-Muslims, a status known as dhimmitude. This Essay examines the historical effects of the shari'a disarmament, based on three books by Bat Ye'or, the world's leading scholar of dhimmitude. As Ye'or details, the disarmament had catastrophic consequences, extending far beyond the direct loss of the dhimmi's ability to defend themselves. The essay concludes by observing how pretend gun-free zones on college campuses turn the adults there into 21st …
The Natural Right Of Self-Defense: Heller's Lesson For The World, David B. Kopel
The Natural Right Of Self-Defense: Heller's Lesson For The World, David B. Kopel
David B Kopel
The U.S. Supreme Court's decision in District of Columbia v. Heller constitutionalized the right of self-defense, and described self-defense as a natural, inherent right. Analysis of natural law in Heller shows why Justice Stevens' dissent is clearly incorrect, and illuminates a crucial weakness in Justice Breyer's dissent. The constitutional recognition of the natural law right of self-defense has important implications for American law, and for foreign and international law.
Self-Defense In Asian Religions, David B. Kopel
Self-Defense In Asian Religions, David B. Kopel
David B Kopel
This Article investigates the attitudes of six Far Eastern religions - Confucianism, Taoism, Hinduism, Sikhism, Jainism, and Buddhism - towards the legitimacy of the use of force in individual and collective contexts. Self-defense is strongly legitimated in the theory and practice of the major Far Eastern religions. The finding is consistent with natural law theory that some aspects of the human personality, including the self-defense instinct, are inherent in human nature, rather than being entirely determined by culture.
The Catholic Second Amendment, David B. Kopel
The Catholic Second Amendment, David B. Kopel
David B Kopel
At the beginning of the second millennium, there was no separation of church and state, and kings ruled the church. Tyrannicide was considered sinful. By the end of the thirteenth century, however, everything had changed. The Little Renaissance that began in the eleventh century led to a revolution in political and moral philosophy, so that using force to overthrow a tyrannical government became a positive moral duty. The intellectual revolution was an essential step in the evolution of Western political philosophy that eventually led to the American Revolution.
The Gold Standard Of Gun Control - Book Review Of Joyce Malcolm, Guns And Violence: The English Experience, David B. Kopel, Joanne D. Eisen, Paul Gallant
The Gold Standard Of Gun Control - Book Review Of Joyce Malcolm, Guns And Violence: The English Experience, David B. Kopel, Joanne D. Eisen, Paul Gallant
David B Kopel
Guns and Violence tells a remarkable story of a society's self-destruction, of how a government in a few decades managed to reverse six hundred years of social progress in violence reduction. The book is also a testament to the amazing self-confidence of British governments; Labour and Conservative alike have proceeded with an extreme anti-self-defense agenda, although the agenda has never had much supporting evidence beyond the government's own platitudes.
The Scottish And English Religious Roots Of The American Right To Arms: Buchanan, Rutherford, Locke, Sidney, And The Duty To Overthrow Tyranny, David B. Kopel
The Scottish And English Religious Roots Of The American Right To Arms: Buchanan, Rutherford, Locke, Sidney, And The Duty To Overthrow Tyranny, David B. Kopel
David B Kopel
Many twenty-first century Americans believe that they have a God-given right to possess arms as a last resort against tyranny. One of the most important sources of that belief is the struggle for freedom of conscience in the United Kingdom during the reigns of Elizabeth I and the Stuarts. A moral right and duty to use force against tyranny was explicated by the Scottish Presbyterians George Buchanan and Samuel Rutherford. The free-thinking English Christians John Locke and Algernon Sidney broadened and deepened the ideas of Buchanan and Rutherford. The result was a sophisticated defense of religious freedom, which was to …
The Religious Roots Of The American Revolution And The Right To Keep And Bear Arms, David B. Kopel
The Religious Roots Of The American Revolution And The Right To Keep And Bear Arms, David B. Kopel
David B Kopel
This article examines the religious background of the American Revolution. The article details how the particular religious beliefs of the American colonists developed so that the American people eventually came to believe that overthrowing King George and Parliament was a sacred obligation. The religious attitudes which impelled the Americans to armed revolution are an essential component of the American ideology of the right to keep and bear arms.