Law Commons^™

The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash

ExpressO

For the past several decades, the majority of courts and commentators have viewed the Ninth Amendment as a provision justifying judicial enforcement of unenumerated individual rights against state and federal abridgment. The most influential advocate of this libertarian reading of the Ninth has been Professor Randy Barnett who has argued in a number of articles and books that the Ninth was originally understood as guarding unenumerated natural rights. Recently uncovered historical evidence, however, suggests that those who framed and ratified the Ninth Amendment understood the Clause as a guardian of the retained right to local self-government. Recognizing the challenge this …

A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash

ExpressO

Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment’s actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. No matter how narrowly one construes the Fourteenth, the Ninth merely demands that such enumerated rights not be construed to deny or disparage other rights retained by the people. The standard …

The American Tradition Of Racial Profiling, Jean Phan

ExpressO

The enemy has always been easily recognizable in American life: He has been the savage Native American known for scalping people; the black slave bent on ravaging white women; the Asian worker unfairly competing against the white man; the Mexican immigrant who does nothing but leech off the system; the Arab who dreams up terrorist plots, and carries them out. These enemies have always been visible in American society, and yet, they don’t exist in reality. They exist only in the minds of those too afraid to consider that these strange individuals who seem so different, could be just like …

At War With The Eclectics: Mapping Pragmatism In Contemporary Legal Analysis, Justin Desautels-Stein

ExpressO

This article has two primary goals. The first is descriptive, and seeks to respond to what appears to be an increasing degree of confusion over the word “pragmatism,” especially as it is used in a good deal of legal literature. This descriptive aim begins by separating out three general categories of pragmatism: (1) the so-called “everyday” pragmatism familiar to the American vernacular, (2) the classical philosophy of the early pragmatist authors like William James and John Dewey, and (3) pragmatism as understood in the context of law. The majority of the article is subsequently concerned with exploring this last category, …

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.

Radicals In Robes: A Review, Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book about conservative activists in the federal judiciary. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an …

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 …

A Race Or A Nation? Cherokee National Identity And The Status Of Freedmen's Descendents, S. Alan Ray

ExpressO

The Cherokee Nation today faces the challenge of determining its citizenship criteria in the context of race. The article focuses on the Cherokee Freedmen. As former slaves of Cherokee citizens, the Freedmen were adopted into the Cherokee Nation after the Civil War pursuant to a treaty with the United States, and given unqualified rights of citizenship. The incorporation of the Freedmen into the tribe was resisted from the start, and now, faced with a decision of the Cherokee Nation’s highest court affirming the descendents’ citizenship rights, the Nation prepares to vote on a constitutional amendment which would impose an Indian …

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 Foundations Of Federalism: An Exchange, Randall P. Bezanson

ExpressO

Our manuscript entitled "The Foundations of Federalism: An Exchange" is occasioned by the Supreme Court's federalism jurisprudence which, in our judgment, calls for a broad ranging exploration of the constitutional concept of federalism itself. That exploration takes place in the form of a dialog between us which, while rewritten from its original form, nevertheless reflects our actual exchanges over an 18 month period. Our conclusion is that such terms as "sovereignty" generally have no place in American constitutional federalism, that the Supreme Court's efforts to enforce federalism limitations have been ineffective and, in some instances, counterproductive, and most basically that …

People As Property: On Being A Resource And A Person, Jedediah S. Purdy

ExpressO

Property law facilitates the efficient use and allocation of scarce resources and recognizes and protects aspects of personhood – the bases of dignity and self-respect. Human beings, who are both resources for one another and the persons whose moral importance the legal system seeks to protect. This article explores how property law has addressed this paradox in the past and how might in the future.

I analyze two bodies of nineteenth-century law where the paradox was highlighted: the legal regimes of labor discipline for slaves in the antebellum South and for free workers in the laissez-faire Lochner era. The law …

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

ExpressO

This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree

ExpressO

The article explores the rhetorical strategies deployed in both legal and cultural narratives of Mormon polygamy in nineteenth-century America. It demonstrates how an understanding of that unique communal experience, and the narratives by which it was represented, informs the classic paradox of community and autonomy – the tension between the collective and the individual. The article concludes by using the Mormon polygamy analysis to illuminate a contemporary social situation that underscores the paradox of community and autonomy – homosexuality and the so-called culture wars over family values and the meaning of marriage.

Book Review: Forensic Linguistics, Dru Stevenson

ExpressO

Review of John Gibbons' text "Forensic Linguistics"

Foreseeing Greatness? Measurable Performance Criteria And The Selection Of Supreme Court Justices, James J. Brudney

The Ohio State University Moritz College of Law Working Paper Series

This article contributes to an ongoing debate about the feasibility and desireability of measuring the "merit" of appellate judges--and their consequent Supreme Court potential--by using objective performance variables. Relying on the provocative and controversial "tournament criteria" proposed by Professors Stephen Choi and Mitu Gulati in two recent articles, Brudney assesses the "Supreme Court potential" of Warren Burger and Harry Blackmun based on their appellate court records. He finds that Burger's appellate performance appears more promising under the Choi and Gulati criteria, but then demonstrates how little guidance these quantitative assessments actually provide when reviewing the two men's careers on the …

The New Neurobiology Of Severe Psychiatric Disorders And Its Implications For Laws Governing Involuntary Commitment And Treatment, E Fuller Torrey, Kenneth Kress

ExpressO

Medical advances have led to statutory changes and common law overrulings. This paper argues that such changes are now needed for laws governing the involuntary commitment and treatment of individuals with severe psychiatric disorders. Recent advances in the understanding of the neurobiology of these disorders have rendered obsolete many assumptions underlying past statutes and legal decisions. This is illustrated by using schizophrenia as an example and examining two influential cases: California’s Lanterman-Petris-Short Act (1969) and Wisconsin’s Lessard decision (1972). It is concluded that laws governing involuntary commitment and treatment need to be updated to incorporate the current neurobiological understanding of …

The Tenuous Case For Conscience, Steven D. Smith

University of San Diego Public Law and Legal Theory Research Paper Series

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 …

Montesquieu's Mistakes And The True Meaning Of Separation, Laurence Claus

University of San Diego Public Law and Legal Theory Research Paper Series

“The political liberty of the subject,” said Montesquieu, “is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man needs not be afraid of another.” The liberty of which Montesquieu spoke is directly promoted by apportioning power among political actors in a way that minimizes opportunities for those actors to determine conclusively the reach of their own powers. Montesquieu’s constitution of liberty is the constitution that most plausibly establishes the rule of law. Montesquieu concluded that this constitution could …

The Unitary Executive During The Third Half-Century, 1889-1945, Christopher S. Yoo, Steven G. Calabresi, Laurence D. Nee

All Faculty Scholarship

Recent Supreme Court decisions and the impeachment of President Clinton has reinvigorated the debate over Congress's authority to employ devices such as special counsels and independent agencies to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitution rejected the executive by committee employed by the Articles of the Confederation in favor of a unitary executive, in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features …

The Unitary Executive During The Second Half-Century, Steven G. Calabresi, Christopher S. Yoo

All Faculty Scholarship

Recent Supreme Court decisions and political events have reinvigorated the debate over Congress's authority to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitutional Convention rejected the executive by committee employed by the Articles of the Confederation in favor of a unitary executive in which all administrative authority is centralized in the President. More recently, the debate has turned towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features of the constitutional landscape as to preempt arguments in favor of the unitary executive. …

The Little Rock Crisis And Foreign Affairs: Race, Resistance, And The Image Of American Democracy, Mary L. Dudziak

Mary L. Dudziak

When President Dwight D. Eisenhower sent federal troops to Little Rock, Arkansas to enforce a school desegregation order at Central High School in the fall of 1957, more than racial equality was at issue. The image of American democracy was at stake. The Little Rock crisis played out on a world stage, as news media around the world covered the crisis. During the weeks of impasse leading up to Eisenhower's dramatic intervention, foreign critics questioned how the United States could argue that its democratic system of government was a model for others to follow when racial segregation was tolerated in …

Evolutionary Models In Jurisprudence, Herbert J. Hovenkamp

All Faculty Scholarship

Few ideas in intellectual history have been so captivating that they have overflowed the discipline from which they came and spilled over into everything else. The theory of evolution is unquestionably one of these. Evolution was an idea so powerful that it seemed obvious when Charles Darwin offered it. After all, there were prominent evolutionists a century before Darwin. Charles Darwin merely presented a model that made the theory plausible. It was a model, though, that infected everything, and one that appeared to answer every question worth asking, no matter what the subject. The model had the potential to lead …