Law Commons^™

The Trial Of Sacco And Vanzetti, Douglas O. Linder

Faculty Works

Sacco and Vanzetti: for a generation of Americans, the names of the two Italian anarchists are forever linked. Questions surrounding their 1921 trial for the murders of a paymaster and his guard bitterly divided a nation. As the two convicted men and their supporters struggled on through appellate courts and clemency petitions to avoid the electric chair, public interest in their case continued to grow. As the end drew near, in August 1927, hundreds of thousands of people - from Boston and New York to London and Buenos Aires - took to the streets in protest of what they perceived …

The Trials Of Alger Hiss: A Commentary, Douglas O. Linder

Faculty Works

No criminal case had a more far-reaching effects on modern American politics than the Alger Hiss-Whittaker Chambers spy case which held Americans spellbound in the middle of the twentieth-century. The case catapulted an obscure California congressman named Richard Nixon to national fame, set the stage for Senator Joseph McCarthy's notorious Communist-hunting, and marked the beginning of a conservative intellectual and political movement that would one day put Ronald Reagan in the White House. Even without its important influence on American political debate, the trials of Alger Hiss for perjury have the makings of a great drama. They featured two men …

The Trials Of Los Angeles Police Officers' In Connection With The Beating Of Rodney King, Douglas O. Linder

Faculty Works

It seemed like an open-and-shut case. The video, played on television so often that an executive at CNN called it wallpaper, showed Los Angeles police officers - as their supervisor watched - kicking, stomping on, and beating with metal batons a seemingly defenseless African-American named Rodney King. Polls taken shortly after the incident showed that over 90% of Los Angeles residents who saw the videotape believed that the police used excessive force in arresting King. Despite the videotape, a jury in Simi Valley concluded a year later that the evidence was not sufficient to convict the officers. Within hours of …

The Judicial Treatment Of Noneconomic Compensatory Damages In The 19th Century, Ronald J. Allen, Alexia Brunet

Publications

Do high verdicts for tort cases containing noneconomic damages have historical precedent? We present the results of our empirical inquiry into the treatment of noneconomic compensatory damages by the courts from 1800-1900. Using 1,175 tort cases from this era, we show that, notwithstanding constant reiteration of jury discretion over damages, courts tightly controlled awards. In fact, no case prior to 1900 permitted a noneconomic compensatory damages award exceeding $450,000 in current dollars. Logistic regression results reveal that an increase in total monetary damages is positively and significantly related to the probability of reversal when noneconomic damages were claimed, and that …

The Massie (Honor Killing) Trials 1931-32, Douglas O. Linder

Faculty Works

Two dramatic criminal trials, one for rape and one for murder and both involving multiple defendants, forever changed the nature of Hawaiian race relations and politics. Filled with twists and turns and unanswered questions, the trials have all the elements of a good mystery. The second of the so-called Massie Affair trials also closes out the courtroom career of America's greatest defense attorney, Clarence Darrow. No trials ever had a more significant effect on a state's history than those that shocked and shook Hawaii in 1931 and 1932.

The Trial Of Lizzie Borden, Douglas O. Linder

Faculty Works

"Lizzie Borden took an axe, and gave her mother forty whacks. When she saw what she had done, she gave her father forty-one." Actually the Bordens received only 29 whacks, not the 81 suggested by the famous ditty, but the popularity of the poem is a testament to the public's fascination with the 1893 murder trial of Lizzie Borden. The source of that fascination might lie in the almost unimaginably brutal nature of the crime - given the sex, background, and age of the defendant - or in the jury's acquittal of Lizzie in the face of prosecution evidence that …

The Sad, Sad Story Of Lula Viers, Richard H. Underwood, Sharon Ray

Law Faculty Scholarly Articles

In this article, Professor Richard H. Underwood explores the murder ballad entitled Lula Viers. Lula Viers was from the Appalachia region of Kentucky.

Taxing Consumption And Other Sins, James R. Hines Jr.

Articles

Federal and state governments in the United States use income and payroll taxes as their primary tools to collect revenue. In the rest of the world, governments also use income and payroll taxes, but rely much more heavily than does the United States on taxing consumption. Consumption taxes take many forms, including general sales taxes, value-added taxes, and excise taxes on the consumption of specific items including gasoline, alcohol, tobacco products, firearms, air travel, telephone communication, and others. The U.S. government does not use a value-added tax, making the United States unique among high-income countries and a rarity in the …

Criminal Justice And The 1967 Detroit 'Riot', Yale Kamisar

Articles

Forty years ago the kindling of segregation, racism, and poverty burst into the flame of urban rioting in Detroit, Los Angeles, Newark, and other U.S. cities. The following essay is excerpted from a report by Professor Emeritus Yale Kamisar filed with the National Advisory Commission on Civil Disorders (the Kerner Commission) regarding the disorders that took place in Detroit July 23-28, 1967. The report provided significant material and was the subject of one article in the series of pieces on the anniversary of the disturbances that appeared last summer in The Michigan Citizen of Detroit. Immediately after the disturbances ended, …

William W. Cook And Detroit Street Railways, 1891-1894, Margaret A. Leary

Articles

In 1890, much of Detroit's street railway system used outmoded technology, had severe labor and public relations problems, and faced uncertainty over the remaining length of the 30-year franchise granted by the city in 1863, but extended in 1879, perhaps illegally. An apparent solution came in 1891, when William W. Cook-later to earn a fortune that he would give to the University of Michigan Law School-and other "Eastern capitalists" purchased Detroit's street rail system. They were unable to solve the existing problems, and the new outside ownership itself added difficulties. Cook's group sold out in 1894, and over the next …

Lawful Personal Use, Jessica D. Litman

Articles

Despite having sued more than 20,000 of its customers,2 the recording industry wants the world to know that it has no complaint with personal use. Copyright lawyers of all stripes agree that copyright includes a free zone in which individuals may make personal use of copyrighted works without legal liability.3 Unlike other nations, though, the United States hasn't drawn the borders of its lawful personal use zone by statute.4 Determining the circumstances under which personal use of copyrighted works will be deemed lawful is essentially a matter of inference and analogy, and differently striped copyright lawyers will differ vehemently on …

Public Rights And Private Commerce: A Nineteenth-Century Atlantic Creole Itinerary, Rebecca J. Scott

Articles

Tracing the history of a family across three generations, from enslavement in eighteenth-century West Africa through emancipation during the Haitian Revolution and subsequent resettlement in New Orleans, then France, then Belgium, can shed light on phenomena that are Atlantic in scope. A business letter written in 1899 by the cigar merchant Edouard Tinchant to General Máximo Gómez in Cuba frames an inquiry that opens out onto a family itinerary that spanned the long nineteenth century. Rosalie Vincent’s achievement of freedom in the shadow of slavery in Saint-Domingue in 1793–1803 can be seen as linked to her grandson Edouard Tinchant’s participation …

Why Not A Justice School? On The Role Of Justice In Legal Education And The Construction Of A Pedagogy Of Justice, Peter L. Davis

Scholarly Works

Why are law schools not named schools of justice, or, at least, schools of law and justice? Of course, virtually every law school will reply that this is nit-picking; all claim to be devoted to the study of justice. But our concern is not so easily dismissed. The names of institutions carry great significance; they deliver a political, social, or economic message. . . This Article contends that not only do law schools virtually ignore justice – a concept that is supposed to be the goal of all legal systems – they go so far as to denigrate it and …

The Historical Race Competition For Corporate Charters And The Rise And Decline Of New Jersey: 1880-1910, Charles M. Yablon

Articles

No abstract provided.

Taking Text Too Seriously: Modern Textualism, Original Meaning, And The Case Of Amar's Bill Of Rights, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Championed on the Supreme Court by Justices Scalia and Thomas and championed in academia most prominently by Professor Akhil Amar, textualism has in the past twenty years emerged as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning and, in seeking that meaning, they closely parse the Constitution's words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This article uses Professor …

The Trial Of John W. Hinckley, Jr., Douglas O. Linder

Faculty Works

The verdict of not guilty for reason of insanity in the 1982 trial of John Hinckley, Jr. for his attempted assassination of President Ronald Reagan stunned and outraged many Americans. An ABC News poll taken the day after the verdict showed 83% of those polled thought justice was not done in the Hinckley case. Some people - without much evidence - attributed the verdict to an anti-Reagan bias on the part the Washington, D. C. jury of eleven blacks and one white. Many more people, however, blamed a legal system that they claimed made it too easy for juries to …

The Boston Massacre Trials: An Account, Douglas O. Linder

Faculty Works

Although it has been over two centuries since the moonlit March night in 1770 when British soldiers killed five Bostonians on King Street, people still debate responsibility for the Boston Massacre. Does the blame rest with the crowd of Bostonians who hurled insults, snowballs, oysters shells, and other objects at the soldiers, or does the blame rest with an overreacting military that violated laws of the colony that prohibited firing at civilians? Whatever side one takes in the debate, all can agree that the Boston Massacre stands as a significant landmark on the road to the American Revolution.

The Story Of The Court-Martial Of The Bounty Mutineers, Douglas O. Linder

Faculty Works

The true story of the 1789 mutiny on the Bounty is far more complicated than suggested by film versions of the event, which have emphasized the gratuitous cruelty of the ship's captain, William Bligh. The psychological drama that played out in the South Seas starring Bligh, the efficient disciplinarian, and his mate, the sensitive and proud Fletcher Christian, led to, among other things: one of the most amazing navigational feats in maritime history, the founding of a British settlement that continues to exist today, and a court-martial in England that answered the question of which of ten captured mutineers should …

The Trial Of Lindy And Michael Chamberlain ('The Dingo Trial'), Douglas O. Linder

Faculty Works

On August 17, 1980, at a campsite near Australia's famous Ayer's Rock, a mother's cry came out of the dark: My God, my God, the dingo's got my baby! Soon the people of an entire continent would be choosing sides in a debate over whether the cry heard that night marked an astonishing and rare human fatality caused by Australia's wild dogs or was, rather, in the words of the man who would eventually prosecute her for murder, a calculated, fanciful lie. A jury of nine men and three women came to believe the latter story and convicted Lindy Chamberlain …

John Locke And The Meaning Of The Takings Clause, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

ohn Locke, political philosopher and all around polymath, stands as a central figure in the development of Western conceptions of property rights and democratic institutions. If not the sole voice that is echoed in the American revolution and the Constitutional Convention, he clearly influenced the founders, particularly James Madison, and he thus represents an intellectual force that is a legitimate part of the current debate over the relationship between government power and individual property rights.

The purpose of this article is to provide both a detailed analysis of Locke to aid the Takings debate and a particular reading of the …

Gambling, Commodity Speculation, And The 'Victorian Compromise', Joshua C. Tate

Faculty Journal Articles and Book Chapters

This Essay examines two major strands of nineteenth-century jurisprudence related to gambling: Southern cases defining public and private space for the purpose of state gambling statutes, and Northern cases applying the intent to deliver test to speculative contracts. The Essay argues that both lines of cases reflect what Lawrence Friedman has termed the Victorian compromise: A strong official stance against immoral behavior is conjoined with de facto acceptance of many questionable practices, provided that they are conducted in a manner acceptable to the elite. The Essay concludes that nineteenth-century judges sought to preserve the semblance of a strict prohibition against …

Responding To Nietzsche: The Constructive Power Of Destruktion, Francis J. Mootz Iii

Scholarly Works

As a student of Hans-Georg Gadamer, and later a translator and important commentator on Gadamer’s philosophy, P. Christopher Smith is widely acknowledged to be a leading hermeneutical philosopher. In a series of works, Smith has argued that Gadamer provides an important corrective to Nietzsche’s caustic critical challenges, but that Gadamer’s hermeneutics has no relevance for legal theory because law is just the manifestation of will to power. In this paper I argue that Smith misunderstands the nature of legal practice. Starting with a re-reading of the debate between Gadamer and Jacques Derrida about the legacy of Nietzsche’s philosophy, I argue …

Originalism And The Natural Born Citizen Clause, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The enigmatic phrase "natural born citizen" poses a series of problems for contemporary originalism. New originalists, like Justice Scalia, focus on the public meaning of the constitutional text, but the notion of a "natural born citizen" was likely a term of art, derived from the idea of a "natural born subject" in English law--a category that most likely did not extend to persons, like John McCain, who were born outside sovereign territory. But the constitution speaks of "citizens" and not "subjects," introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.

What was the original …

The (Futile) Search For A Common Law Right Of Confrontation: Beyond Brasier's Irrelevance To (Perhaps) Relevant American Cases, Randolph N. Jonakait

Articles & Chapters

After Crawford v. Washington asserted that the Confrontation Clause constitutionalized the common law right of confrontation, cases have been suggested that illustrate that right. This short essay considers whether the 1779 English case Rex v. Brasier is such a decision, as some contend. The essay concludes that Brasier says nothing about the right of confrontation and points to a comparable framing-era, American case that indicates that general rules about hearsay and confrontation were not at issue. The essay maintains that if the historical understandings of the right of confrontation and hearsay are to control the Confrontation Clause, then framing-era, American …

A Brief History Of American Telecommunications Regulation, Tim Wu

Faculty Scholarship

While the history of governmental regulation of communication is at least as long as the history of censorship, the modern regulation of long-distance, or "tele," communications is relatively short and can be dated to the rise of the telegraph in the mid-19th century. The United States left the telegraph in private hands, unlike countries and as opposed to the U.S. postal system, and has done the same with most of the significant telecommunications facilities that have been developed since. The decision to allow private ownership of telecommunications infrastructure has led to a rather particularized regulation of these private owners of …

Learning To Love After Learning To Harm: Post-Conflict Reconstruction, Gender Equality And Cultural Values, Penelope Andrews

Articles & Chapters

The question that the Jacob Zuma rape trial and its aftermath raised was how a country like South Africa, with such a wonderful Constitution and expansive Bill of Rights, could generate such negative and retrogressive attitudes towards women. In line with this inquiry, this article raises three issues: The first focuses on the legacy of apartheid violence and specifically the cultures of masculinity, the underbelly of apartheid violence. Second, the article explores the findings of the Truth and Reconciliation Commission (TRC), a vital part of the post-apartheid transformation agenda, to examine how the TRC pursued violations of women's human rights. …

Tax Reform Unraveling, Michael J. Graetz

Faculty Scholarship

The Tax Reform Act of 1986 was widely heralded as the most significant change in our nation’s tax law since the income tax was extended to the masses during World War II. It was the crowning domestic policy achievement of President Ronald Reagan, who proclaimed it “the best antipoverty measure, the best pro-family measure and the best job-creation measure ever to come out of the Congress of the United States” (Reagan, 1986). This journal published a symposium on the Tax Reform Act in its first issue. The law’s rate reductions and base broadening reforms were mimicked throughout the countries belonging …