Law Commons^™

What Was Taney Thinking? American Indian Citizenship In The Era Of Dred Scott, Frederick E. Hoxie

Chicago-Kent Law Review

Historians have often noted that Chief Justice Taney's decision in Dred Scott juxtaposed a denial of African American rights to citizenship with an assertion that Native Americans could obtain that status. Explaining this apparently inconsistent description of two racial minority groups requires an examination of the history of Native American classification in the law prior to 1857. This article argues that political leaders and judges of Taney's generation were committed to the removal of Indian tribes from eastern states and commonly proposed this removal as a choice between migrating west or dissolving tribal governments in order to remain in the …

Dred Scott And The Crisis Of 1860, Louise Weinberg

Chicago-Kent Law Review

Recent suggestions to the contrary notwithstanding, the Dred Scott decision and the controversy over the extension of slavery into the territories were at the very center of the crisis of 1860. This paper fills in the social, political, economic, and legal backgrounds of that crisis in order to clarify the centrality of Dred Scott in the election of Abraham Lincoln and to the ensuing destruction of the Union.

Stay East, Young Man? Market Repercussions Of The Dred Scott Decision, Jenny B. Wahl

Chicago-Kent Law Review

The Dred Scott decision definitively opened U.S. territories to slavery. This reduced the probability of westward migration for free-soilers, in part because of expected effects on land markets. Although land was an important part of a slaveholder's portfolio, his ability to hold wealth in mobile assets—slaves—meant that he had a different outlook on internal improvements than his Northern brethren, as well as a production process that emphasized relatively abundant labor inputs. Letting slaves into the territories thus led to uncertainty about future land values. This slowed the flow of Northerners west, dragging present land prices downward. In turn, uncertainty about …

Divine Intervention: Re-Examining The "Act Of God" Defense In A Post-Katrina World, Joel Eagle

Chicago-Kent Law Review

From the moment of landfall, Hurricane Katrina instantly became synonymous with unprecedented damage, destruction, and loss. The exceptionally intense storm and subsequent flooding in New Orleans and much of the Gulf Coast was quickly deemed one of the worst disasters in United States history. A particularly destructive consequence of Hurricane Katrina has been the environmental effects, in part caused by oil spills and chemical releases from many of the industrial sources concentrated in the Gulf Coast region.

A question that will likely remain in contention for years or even decades to come is who should be liable for the cleanup …

Table Of Contents - Issue 1, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

Scott V. Sandford: The Court's Most Dreadful Case And How It Changed History, Paul Finkelman

Chicago-Kent Law Review

Dred Scott, without doubt, is the most controversial case in the history of the United States Supreme Court. Unlike the controversies that surround other decisions of the Court, the controversy surrounding Dred Scott does not turn on if the outcome or Chief Justice Taney's analysis was wrong, but rather on why the outcome and Chief Justice Taney's analysis were wrong. This article focuses on the political goals Taney attempted to accomplish through his decision in Dred Scott. Though there existed reasons for Taney's belief that his decision in Dred Scott would once and for all end the political …

Thirteen Ways Of Looking At Dred Scott, Jack M. Balkin, Sanford Levinson

Chicago-Kent Law Review

Dred Scott v. Sandford is a classic case that is relevant to almost every important question of contemporary constitutional theory.

Dred Scott connected race to social status, to citizenship, and to being a part of the American people. One hundred fifty years later these connections still haunt us; and the twin questions of who is truly American and who America belongs to still roil our national debates.

Dred Scott is a case about threats to national security and whether the Constitution is a suicide pact. It concerns whether the Constitution follows the flag and whether constitutional rights obtain in federally …

Rethinking Dred Scott: New Context For An Old Case, Austin Allen

Chicago-Kent Law Review

Scholars have misunderstood the context in which Dred Scott emerged. Leading historical interpretations of the decision have relied too heavily on accounts developed by antebellum Republicans and on mid-twentieth-century legal theory. This article offers an alternative account of Dred Scott's origins and argues that the decision emerged from a series of unintended consequences resulting from the Taney Court's efforts to incorporate a Jacksonian vision of governance into constitutional law. By 1857, this effort had generated tensions that made a sweeping decision like Dred Scott nearly unavoidable. The inescapable nature of Dred Scott carries implications for constitutional theorists, especially those …

The New Fiction: Dred Scott And The Language Of Judicial Authority, Mark A. Graber

Chicago-Kent Law Review

Claims that the Justices in Dred Scott abandoned a tradition of judicial restraint rely on an anachronistic measure for judicial activism. Antebellum Justices asserted that laws were unconstitutional only when restraining state officials. Judicial etiquette, in their opinion, required more circumspection when imposing constitutional limits on a coordinate branch of the national government. Contrary to accepted wisdom, the Justices before the Civil War imposed constitutional limitations on federal power in approximately twenty cases. They did so, however, without explicitly declaring federal legislation unconstitutional. The Justices in some federal cases ignored the plain meaning of federal statutes on the ground that …

Dred Scott: Tiered Citizenship And Tiered Personhood, Henry L. Chambers Jr.

Chicago-Kent Law Review

The Dred Scott Court accepted and perpetuated the notion that our Constitution afforded multiple tiers of citizenship and multiple tiers of personhood through which different groups of citizens and different groups of persons would receive varying sets of rights. Through their language and interpretation, the Reconstruction Amendments largely resolved this issue by providing a formal equality that created a single tier of citizenship and a single tier of personhood. Though, as a formal matter, tiered citizenship and tiered personhood are unacceptable, the issue is not fully resolved as a practical matter. Tiered citizenship and tiered personhood may exist when the …

Emergence Of Equality As A Constitutional Value: The First Century, William M. Wiecek

Chicago-Kent Law Review

Equality as a constitutional value was unprecedented when it made its appearance in 1868 in the Equal Protection Clause of the Fourteenth Amendment. It reflected antebellum abolitionist ideals adopted hesitantly by Northern Republicans during Reconstruction, but these were incompatible with the expectations of most white Americans of the era, as well as with all previous American experiences. In this sense, equality was a revolutionary constitutional value. The framers of the Fourteenth Amendment intended the Equal Protection Clause and its embedded ideal of interracial equality to reverse the racist dicta of the Dred Scott opinion, to validate the Civil Rights Act …

The Last Angry Man: Benjamin Robbins Curtis And The Dred Scott Case, Earl M. Maltz

Chicago-Kent Law Review

The dissenting opinion of Justice Benjamin Robbins Curtis in Dred Scott has generally received lavish praise from commentators. Curtis is typically praised not only for his substantive conclusions, but also for his seemingly dispassionate analysis of the legal issues presented by the case. In many respects, this praise is well-deserved; Curtis's discussions of the issues of slavery in the territories and citizenship for free blacks are models of legal reasoning. However, a close analysis of other aspects of his opinion reveals that Curtis's analysis was at times distorted by his anger with the actions of Chief Justice Taney and other …

Legality And Legitimacy In Dred Scott: The Crisis Of The Incomplete Constitution, Michael P. Zuckert

Chicago-Kent Law Review

The original Constitution was incomplete in that it contained a disparity between the principles of legitimacy of the system and the legality of the institution of slavery. Political communities marked by such disharmony are beset with pressures to make the system consistent in one way or another. Such indeed was the fate of the U.S. during the antebellum era. Three typical responses arose: to make legality correspond to legality (by redefining the principles of legitimacy of the system), to make legality conform to legitimacy (by doing away with slavery), or to maintain the tension in ever more creative ways. The …

Benjamin Curtis: Top Of The List, R. Owen Williams

Chicago-Kent Law Review

Among the many brave and brilliant dissents from the Supreme Court, few are more historically significant than that of Benjamin Curtis in Dred Scott v. Sandford. Earl Maltz insists that the traditional view of Curtis as a dispassionate Justice is incorrect; Curtis is better seen as the "Last Angry Man." This paper considers the famous dissent, the man who wrote it, and the technical analysis Maltz claims as sine qua non to a proper understanding of the opinion.

Foreign Authority, American Exceptionalism, And The Dred Scott Case, Sarah H. Cleveland

Chicago-Kent Law Review

One distinctive feature of the Dred Scott decision for modern readers is the extent to which the Supreme Court Justices looked to foreign and international law in support of their decisions. The legal status of a slave who entered a free jurisdiction was a question that had been confronted by many courts at home and abroad, and international law had played an important role in American and European adjudication of slavery questions. The Justices therefore were confronted with the strikingly modern question of the extent to which U.S. law embraced, or distinguished itself from, foreign practice. Arguments from foreign and …

Searching For A Needle In A Haystack: The Constitutionality Of Police Dna Dragnets, Sepideh Esmaili

Chicago-Kent Law Review

DNA dragnets—the mass warrantless DNA testing of individuals whom authorities have neither probable cause nor reasonable suspicion to believe perpetrated a crime, but who merely live or work near a crime scene—have increasingly been used by police departments in a desperate attempt to solve puzzling crimes. The lack of success and the Fourth Amendment constitutional concerns raised by DNA dragnets, however, lead this practice to be suspect. Under the Fourth Amendment, all searches of an individual must be reasonable. The reasonableness of any search typically depends on the government obtaining a warrant prior to the search. While there are well-established …

Signed General Releases May Be Worth Less Than Employers Expected: Circuits Split On Whether Former Employee Can Sign Release, Reap Its Benefit, And Sue For Fmla Claim Anyway, Muniza Bawaney

Chicago-Kent Law Review

A circuit split has recently developed regarding the correct interpretation of 29 C.F.R. § 825.220(d), a regulation issued pursuant to the Family and Medical Leave Act of 1993, which states in pertinent part, "Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA." The Fifth Circuit correctly concluded that 29 C.F.R. § 825.220(d) bars only the prospective waiver of substantive rights under the FMLA and does not reach the post-dispute release or settlement of FMLA claims. Subsequently, the Fourth Circuit alternatively concluded that § 825.220(d) prohibits the prospective and retrospective waiver or release of both the …

Vol. 23, No. 4, Arnold G. Rubin

The Illinois Public Employee Relations Report

Contents:

The Injured Public Employee: Accidental Injuries in the Public Sector Workplace, by Arnold G. Rubin

Recent Developments

Further References, compiled by Yoo-Seong Song

Contributory And Vicarious Copyright Infringement In Computer Software: Harming One Form Of Intellectual Property By Protecting Another, Robert M. Hirning

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Book Review (Reviewing Petros C. Mavroidis & Alan O. Sykes, The Wto And International Trade Law: Dispute Settlement (2005)), Sungjoon Cho

All Faculty Scholarship

Professors Petros Mavroidis and Alan Sykes have produced a dependable compendium on the WTO dispute settlement system. The book consists of six parts corresponding to six critical issues in the field; namely: (1) the function of the WTO dispute settlement system, (2) the standard of review, (3) remedies, (4) participation, (5) unilateral enforcement, and (6) governance. In each part, they carefully selected representative and informative articles which offer readers perspectives that are essential to comprehend this salient and discrete disciplinary area in the study of the WTO. Notwithstanding a few weaknesses, such as limited descriptions of the “dynamic” development of …

The Seventh Circuit Turns A Blind Eye To The Playmate: The Application Of The Probate Exception After Marshall V. Marshall, Gillian Nagler

Seventh Circuit Review

The probate exception to federal jurisdiction prohibits federal courts from hearing cases involving matters related to the probate of wills or administration of estates. Though it has traditionally been applied in the context of diversity, the courts are split on its applicability in federal question cases. The decision of the United States Supreme Court in Marshall v. Marshall clarifies the scope of the exception in the context of bankruptcy proceedings, but what about its application in other federal question cases? In Jones v. Brennan, which involved a claim under 42 U.S.C. § 1983 arising out probate proceedings, the Seventh …

Table Of Contents, Seventh Circuit Review

Seventh Circuit Review

No abstract provided.

Post-Verdict Motion Practice After Fuesting V. Zimmer, Christopher Proesel

Seventh Circuit Review

After Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., a court of appeals has no power to order either the entry of judgment for an appellant or a new trial based on the legal sufficiency of the evidence where that appellant failed to move for such an order pursuant to the Federal Rules of Civil Procedure after the civil jury returned a verdict for the appellee. According to the Seventh Circuit in Fuesting v. Zimmer, this rule does not affect its ability to order a new trial where it finds prejudicial error in the trial court’s erroneous admission of …

The Monopoly Game: Has The Seventh Circuit Given Patent Holders A Get Out Of Jail Free Card?, Erin Conway

Seventh Circuit Review

In a day when companies invest millions of dollars in research and development and the United States Patent and Trademark Office grants upwards of 140,000 utility patents per year, intellectual property rights are more powerful than ever before. Yet, protecting competition and consumer welfare through the antitrust laws is equally important to our country’s economy. Unfortunately, in Schor v. Abbott Laboratories, the Seventh Circuit let antitrust considerations fall by the wayside at the expense of upholding patent rights. In order for the antitrust and patent laws to achieve this mutual goal of protecting consumers by promoting competition, they must …

Who’S The Boss? Seventh Circuit Limits Executive Branch, Roy Chamcharas

Seventh Circuit Review

Taxpayer standing has generally been prohibited by a line of Supreme Court cases with one narrow exception – if it involves a congressional statute that violates the Establishment Clause. This Note examines whether the Seventh Circuit correctly interpreted Supreme Court precedent as permitting taxpayer standing when the executive branch allegedly violated the Establishment Clause with unearmarked funds appropriated from Congress. Furthermore, this Note examines whether the Seventh Circuit’s denial of rehearing en banc was proper even though the three judge panel expanded a long standing Supreme Court exception. Both the majority and dissenting opinions agreed that the controversy warranted Supreme …

Got Rights? Not If You’Re A Sex Offender In The Seventh Circuit, Sheila T. Caplis

Seventh Circuit Review

Sex offender legislation has grown exponentially over the past decade and in conjunction the courts have demonstrated an unwillingness to find such legislation unconstitutional. Civil commitment, public registration, and residency restrictions have uniformly been upheld. However, how far can the courts continue this trend without stripping away the fundamental rights and interests of sex offenders. This issue is explored in light of a piece of legislation directed at banning a specific sex offender from the city parks.

The Sobering Truth: The Seventh Circuit Categorizes Drunk Driving As A Violent Felony, Jennifer Chow

Seventh Circuit Review

The Armed Career Criminal Act ("ACCA") supplements states’ law enforcement efforts against chronic violent offenders by substantially raising the penalty for armed criminals with past “violent felony” convictions. The ACCA defines the term “violent felony” by giving several specific examples and then adding a catch-all clause. One question that has continued to face courts since the ACCA’s enactment is what constitutes a violent felony under the catch-all clause. The Seventh Circuit recently categorized the offense of drunk driving as a “violent felony” under the catch-all clause and qualified drunk driving as a predicate act subject to recidivist sentence enhancement under …

Hooking The Crook: The Seventh Circuit Justifies The Suspicionless Search Of A Probationer, Meira Greenberg

Seventh Circuit Review

A plea bargain allows an individual, accused of a crime, an opportunity to reduce their sentence by bargaining with the prosecution. Although such agreements often stipulate that the accused waive certain constitutional rights, the conditions attached to a bargained-for-probation sentence are not beyond judicial review. Normally, courts examine the constitutionality of the probationary condition, but in United States v. Barnett, the Seventh Circuit summarily upheld the suspicionless search of a probationer upon the consent/contract theory. This Comment contends that the consent/contract theory employed by the Seventh Circuit improperly hooks the crook by upholding unreasonable probationary conditions that violate the …

A Presumption Of Reasonableness: The Seventh Circuit’S Unreasonable Approach To The Federal Sentencing Guidelines, Zachary A. Jacobs

Seventh Circuit Review

When the United States Supreme Court instructed federal appellate courts to use a "reasonableness" standard of review following U.S. vs. Booker, a significant question remained: what role do the Federal Sentencing Guidelines play when determining whether a sentence is “reasonable”? While the Supreme Court has recently granted certiorari for this very question, the Seventh Circuit has chosen to grant sentences falling within the range provided by the Guidelines a presumption of reasonableness. In doing so, however, the court has neither provided convincing justification nor remained consistent in its application. This Comment will first trace the development of the presumption within …

Stuck In Unfriendly Skies: How The Seventh Circuit’S Decision In Summers V. State Street Bank & Trust Company Left United Airlines Employees With Nothing But Hot Air, Jeffrey P. Swatzell

Seventh Circuit Review

In Summers v. State Street Bank & Trust Company, the United States Court of Appeals for the Seventh Circuit was asked whether State Street Bank & Trust Company, a directed trustee of United Airlines’ employee stock ownership plan, acted imprudently by failing to cause the plan to sell its United stock after the company suffered massive financial losses in the aftermath of the September 11, 2001 terrorist attacks. Ultimately, the court found that although State Street, as a directed trustee, was bound by certain fiduciary duties under ERISA, it did not act imprudently by continuing to follow the named …