Law Commons^™

Book Review: The Strange Case Of Dr. Paul Schoeppe, Robert E. Rains

Dickinson Law Review (2017-Present)

Book Review of The Strange Case of Dr. Paul Schoeppe, by Mark W. Podvia, with a foreword by William E. Butler.

The Failed Idea Of Judicial Restraint: A Brief Intellectual History, Susan D. Carle

Articles in Law Reviews & Other Academic Journals

This essay examines the intellectual history of the idea of judicial restraint, starting with the early debates among the US Constitution’s founding generation. In the late nineteenth century, law professor James Bradley Thayer championed the concept and passed it on to his students and others, including Oliver Wendell Holmes Jr., Learned Hand, Louis Brandeis, and Felix Frankfurter, who modified and applied it based on the jurisprudential preoccupations of a different era. In a masterful account, Brad Snyder examines Justice Frankfurter’s attempt to put the idea into practice. Although Frankfurter arguably made a mess of it, he passed the idea of …

The Apostrophic Impasse: Diacritical Remarks On The Stories Of International Law, Legal Decolonial Genealogy And Antony Anghie’S Historiography, Britt L.A.Q. (Haadiya) Hendrix

Theses and Dissertations

The (hi)stories of international law have strengthened the tentacles of coloniality in the legal regime as they continue to taunt the precarious lifeworlds of people, our planet and social imaginaries of an otherwise. The flow of coloniality has similarly rematerialized in decolonial legal theories and the postcolonial historiographical accounts of international law. I intend to demonstrate this colonial revival in the groundbreaking text of Antony Anghie Imperialism, Sovereignty and the Creation of International Law (2005) which challenged the (hi)stories of traditional jurisprudence. The latter was not necessarily a rejection nor negation of Western thought, because I argue that postcolonial historiography …

The Uneasy History Of Experiential Education In U.S. Law Schools, Peter A. Joy

Dickinson Law Review (2017-Present)

This article explores the history of legal education, particularly the rise of experiential learning and its importance. In the early years of legal education in the United States, law schools devalued the development of practical skills in students, and many legal educators viewed practical experience in prospective faculty as a “taint.” This article begins with a brief history of these early years and how legal education subsequently evolved with greater involvement of the American Bar Association (ABA). With involvement of the ABA came a call for greater uniformity in legal education and guidelines to help law schools establish criteria for …

The Language Of Neutrality In Supreme Court Confirmation Hearings, Carolyn Shapiro

Dickinson Law Review (2017-Present)

At Justice Neil Gorsuch’s confirmation hearing, then-Judge Gorsuch repeatedly insisted that judging involves no more than examining the legal materials—like statutes and precedents— and applying them to the facts of the case. There is, he emphasized, no room for a Justice’s “personal views,” and he refused even to state his agreement (or disagreement) with such iconic cases as Loving v. Virginia and Griswold v. Connecticut. Instead, then Judge Gorsuch reiterated only that they were precedents of the Court and thus entitled to respect. Frustrating as his answers may have been to some senators, however, they differed from answers given …

It’S All Your Fault!: Examining The Defendant’S Use Of Ineffective Assistance Of Counsel As A Means Of Getting A “Second Bite At The Apple.”, Prentice L. White

Dickinson Law Review (2017-Present)

The United States Constitution provides individuals convicted of a crime with “a second bite at the apple.” The Sixth Amendment provides an avenue to appeal one’s conviction based on the claim of “ineffective assistance of counsel.” What were the Framers’ true intentions in using the phrase “effective assistance of counsel”? How does the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 affect habeas corpus appeals? This article answers these questions through the eyes of Thomas—a fictional character who is appealing his murder conviction.

This article first looks at the history surrounding effective assistance of counsel and discusses the difficulties …

Introduction To Section I: In The Beginning . . . Volume 1 And What It Means To Be A Lawyer, Kristina J. Kim

Dickinson Law Review (2017-Present)

No abstract provided.

“The Lost Lawyer” Regained: The Abiding Values Of The Legal Profession, Robert Maccrate

Dickinson Law Review (2017-Present)

No abstract provided.

The Power Of The Public Defender Experience: Learning By Fighting For The Incarcerated And Poor, Patrick C. Brayer

Faculty Works

This Essay discusses how public defender apprenticeships impact law students and help mold their future careers. Brayer discusses the tangible advantages that the apprenticeship imparts on students as well as the transferable skills that students gain. Brayer then analyzes the internal and professional growth of students that participate in this apprenticeship. Brayer situates this growth within the context of Chief Justice John Marshall’s own similar experience, arguing how the public defender experience focuses and matures aspiring lawyers.

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

The Hypocrisy Of "Equal But Separate" In The Courtroom: A Lens For The Civil Rights Era, Jaimie K. Mcfarlin

Jaimie K. McFarlin

This article serves to examine the role of the courthouse during the Jim Crow Era and the early stages of the Civil Rights Movement, as courthouses fulfilled their dual function of minstreling Plessy’s call for “equality under the law” and orchestrating overt segregation.

Redefining Professionalism, Rebecca Roiphe

Rebecca Roiphe

REdefining PRofessionalism

Abstract

Rebecca Roiphe*

Most scholars condemn professionalism as self-serving, anti-competitive rhetoric. This Article argues that professionalism can be a positive and productive way of thinking about lawyers’ work. While it is undoubtedly true that the Bar has used the ideology of the professional role to support self-interested and bigoted causes, professionalism has also served as an important way of developing and marshalling group identity to promote useful ends. The critics of professionalism tend to view it as an ideology, according to which professionals, unlike businessmen, are concerned not with their own financial gain but with the good …

The New-Breed, “Die-Hard” Chinese Lawyer: A Comparison With American Civil Rights Cause Lawyers, James E. Moliterno

James E. Moliterno

No abstract provided.

A Government Of Laws Not Of Precedents 1776-1876: The Google Challenge To Common Law Myth, James Maxeiner

James R Maxeiner

Conventional wisdom holds that the United States is a common law country of precedents where, until the 20th century (the “Age of Statutes”), statutes had little role. Digitization by Google and others of previously hard to find legal works of the 19th century challenges this common law myth. At the Centennial in 1876 Americans celebrated that “The great fact in the progress of American jurisprudence … is its tendency towards organic statute law and towards the systematizing of law; in other words, towards written constitutions and codification.” This article tests the claim of the Centennial Writers of 1876 and finds …

Professionalism For The 21st Century: Independence In Context, Rebecca Roiphe

Rebecca Roiphe

Most scholars condemn professionalism as self-serving, anti-competitive rhetoric. This Article argues that professionalism can be a positive and productive way of thinking about lawyers’ work. While it is undoubtedly true that the Bar has used the ideology of the professional role to support self-interested and bigoted causes, professionalism has also served as an important way of developing and marshalling group identity to promote useful ends. The critics of professionalism tend to view it as an ideology, according to which professionals, unlike businessmen, are concerned not with their own financial gain but with the good of their clients and the community …

Remembering George Michaely, Lawrence J. Trautman, Stanley Sporkin, John A. Dudley

Lawrence J. Trautman Sr.

This short essay is a memorial tribute about George P. Michaely, Jr. (1926 to 2014). After graduating from both the University of Notre Dame and its law school, he began his legal career, serving for approximately seven years as attorney in the Office of General Counsel. He was then appointed Chief Counsel of the Commission’s Division of Corporation Finance, where he served for approximately the next four years and was responsible for advising the Commission and the public concerning the interpretation of the statutory provisions and rules relating to the registration provisions of the Securities Act of 1933 and the …

Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page

Cathren Page

Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Conceptions Of Agency In Social Movement Scholarship: Mack On African American Civil Rights Lawyers [Comments], Susan Carle

Articles in Law Reviews & Other Academic Journals

This essay examines the theory of individual agency that propels the central thesis in Kenneth Mack's Representing the Race: The Creation of the Civil Rights Lawyer (2012)-namely, that an important yet understudied means by which African American civil rights lawyers changed conceptions of race through their work was through their very performance of the professional role of lawyer. Mack shows that this performance was inevitably fraught with tension and contradiction because African American lawyers were called upon to act both as exemplary representatives of their race and as performers of a professional role that traditionally had been reserved for whites …

The Law Comes To Campus: The Evolution And Current Role Of The Office Of The General Counsel On College And University Campuses, Jason A. Block

Theses and Dissertations--Educational Policy Studies and Evaluation

Much has been written in the literature of higher education on the history and current role of presidents, provosts, and deans. However, higher education scholars have, for the most part ignored the role of institutional in-house attorneys on college and university campuses. Those who have written on the subject of institutional counsel have proffered the idea that in-house general counsel offices were established as a result of the increased regulation of higher education by state and federal governments, and litigation resulting from the faculty and student rights movements of the 1960s and 1970s. This project seeks to provide a detailed …

Conceptions Of Agency In Social Movement Scholarship: Mack On African American Civil Rights Lawyers [Comments], Susan D. Carle

Susan D. Carle

The United States Constitution And Its History Through The Barristers And Political, Allen E. Shoenberger

Allen E Shoenberger

No abstract provided.

A Short Road To Statehood, A Long Road To Washington, Rachel J. Anderson

Scholarly Works

This article documents the election in 2012 of the first African-American to represent Nevada in the U.S. Congress, Steven Horsford. It is part of "A Special Series on African Americans in Nevada Politics - Past and Present" on pages 16-21 of the issue." Sources are on page 21 of the issue.

In Memorium: Bernard Wolfman, Michael A. Fitts

All Faculty Scholarship

No abstract provided.

The Tenuous Case For Conscience, Steven D. Smith

Steven D. Smith

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …

Advocacy Revalued, Geoffrey C. Hazard Jr., Dana A. Remus

All Faculty Scholarship

A central and ongoing debate among legal ethics scholars addresses the moral positioning of adversarial advocacy. Most participants in this debate focus on the structure of our legal system and the constituent role of the lawyer-advocate. Many are highly critical, arguing that the core structure of adversarial advocacy is the root cause of many instances of lawyer misconduct. In this Article, we argue that these scholars’ focuses are misguided. Through reflection on Aristotle’s treatise, Rhetoric, we defend advocacy in our legal system’s litigation process as ethically positive and as pivotal to fair and effective dispute resolution. We recognize that advocacy …

Rereading Rauscher Is It Time For The United States To Abandon The Rule Of Specialty, Mark A. Summers

Faculty Scholarship

No abstract provided.

Langdell Upside-Down: James Coolidge Carter And The Anticlassical Jurisprudence Of Anticodification, Lewis Grossman

Articles in Law Reviews & Other Academic Journals

No abstract provided.

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.

The Case For American History In The Law-School Curriculum, Harold P. Southerland

ExpressO

This article argues for the teaching of American History throughout the first year of law school. I do not believe that students can fully understand the cases they are reading in other courses without a knowledge of environing context. Understanding American History -- which is many respects doesn't paint a flattering picture -- may also help students in making fundamental choices about what role they wish to play in their careers as lawyers. I believe it is time to recognize that too much of the profession is run as a business and not as a noble calling dedicated to helping …