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Full-Text Articles in Law
A Complete Property Right Amendment, John H. Ryskamp
A Complete Property Right Amendment, John H. Ryskamp
ExpressO
The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.
Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila
Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila
ExpressO
This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.
The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …
Criminal Law Beyond The State: Popular Trials On The Frontier, Andrea Mcdowell
Criminal Law Beyond The State: Popular Trials On The Frontier, Andrea Mcdowell
ExpressO
Before the civil war, “lynching” signified all forms of group-inflicted punishments, including vigilantism and mob killings. By this definition, lynchings happen in every country. Only in America, however, was lynching widespread and socially accepted. Scholars say this shows that the American commitment to due process often succumbed to “vigilante values,” that is, the desire for speedy, certain and severe penalties. They contend that vigilante values triumphed on the frontier, where courts were weak and vigilance committees strong. This article demonstrates that this view must be substantially qualified because due process was of great concern to Americans on the frontier, especially …
The Crimmigration Crisis: Immigrants, Crime, & Sovereign Power, Juliet P. Stumpf
The Crimmigration Crisis: Immigrants, Crime, & Sovereign Power, Juliet P. Stumpf
ExpressO
This article provides a fresh theoretical perspective on the most important development in immigration law today: the convergence of immigration and criminal law. Although the connection between immigration and criminal law, or “crimmigration law,” is now the subject of national debate, scholarship in this area is in a fledgling state. This article begins to fill that void. It proposes a unifying theory – membership theory – for why these two areas of law recently have become so connected, and why that convergence is troubling. Membership theory restricts individual rights and privileges to those who are members of a social contract …
Searches And The Misunderstood History Of Suspicion And Probable Cause: Part One, Fabio Arcila
Searches And The Misunderstood History Of Suspicion And Probable Cause: Part One, Fabio Arcila
ExpressO
This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.
The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …
Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp
Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp
ExpressO
This brief comment suggests where the anti-eminent domain movement might be heading next.
The “Csi Effect”: Better Jurors Through Television And Science?, Michael D. Mann
The “Csi Effect”: Better Jurors Through Television And Science?, Michael D. Mann
ExpressO
This Comment discusses how television shows such as CSI and Law & Order create heightened juror expectations. This will be published in the Buffalo Public Interest Law Journal's 2005-2006 issue.
Review Essay: Using All Available Information, Max Huffman
Review Essay: Using All Available Information, Max Huffman
ExpressO
This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting …
Poor Whites, Benevolent Masters, And The Ideologies Of Slavery: A Slave Accused Of Rape In The Antebellum South, Jason A. Gillmer
Poor Whites, Benevolent Masters, And The Ideologies Of Slavery: A Slave Accused Of Rape In The Antebellum South, Jason A. Gillmer
ExpressO
This Article analyzes in detail a case involving a slave accused of raping a white woman in the 1850s to offer a fresh perspective on our basic assumptions about sex and race in the slave South. Joining a new group of “cultural-legal historians,” the author looks beyond the legal language of Southern legislatures and high courts, and focuses instead on the trial record of one case: State v. Pleasant. In doing so, the author uncovers the stories of ordinary men and women – the slave, his master, his accuser, his attorney, the jurors, and others – to see how the …
Justice Story Cuts The Gordian Knot Of Hung Jury Instructions, George C. Thomas Iii, Mark Greenbaum
Justice Story Cuts The Gordian Knot Of Hung Jury Instructions, George C. Thomas Iii, Mark Greenbaum
Rutgers Law School (Newark) Faculty Papers
Constitutional law grows more complex over time. The complexity is due, in large part, to the rule of stare decisis. When faced with precedents that it does not wish to follow, the Court usually distinguishes the case before it. Thus, the constitutional landscape is littered with cases that do not fit well together. Navigating past these shoals is often difficult for courts following the Supreme Court’s lead. One example is the law governing instructions that a trial judge can give a deadlocked jury in a criminal case. The right to a jury trial entails the right to have the jury …