Law Commons^™

Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes

Richard L. Aynes

This article examines the meaning of the terms privileges and immunities as used in Article IV of the U.S. Constitution and the Fourteenth Amendment. It begins by tracing the American use of the terms to April 10, 1606 in the first Charter of Virginia. Building upon the work of other scholars and citing original documents, it concludes that these words has a well-established meaning as “rights” well before the Fourteenth Amendment was adopted. The article notes that in Justice Miller’s decision in the Slaughter-House Cases he refers to the privileges and immunities of Corfield v. Coryell as “those rights which …

Empathy And Pragmatism In The Choice Of Constitutional Norms For Religious Land Use Disputes, Elizabeth Reilly

Elizabeth Reilly

From the perspective of both religious entities and local governments, religious land use requests are best resolved quickly, locally and cooperatively. The traditional framework for addressing religious land use disputes, which the Religious Land Use and Institutionalized Persons Act (RLUIPA)1 adopted, is ill-suited to those goals. Legally, disputes have long been framed as denials of the free exercise of religion – the broadest of all claims and the one requiring the most intrusive and subjective determinations about a particular religious group and its proposed use (what religion is, what a particular sect requires and how religion qua religion is affected …

39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes

Richard L. Aynes

The 39th Congress (1865-1867) was one of the important Congresses in our history. It passed more legislation than any other Congress up to that time. This preliminary examination of the 39th Congress begins with a look it composition. One of the critical factors was that while the 38th Congress contained a majority of unionists, the 39th Congress contained a super-majority which meant not only that they could override a Presidential veto, but also that they did not need to take the Democratic opposition seriously. This article also identifies the leadership of the 39th Congress. The 38th Congress was composed of …

Bailouts, Bonuses, And The Return Of Unjust Gain, Tracy A. Thomas

Tracy A. Thomas

In March 2009, ailing insurance giant triggered a national outcry when it paid out $165 million in government bailout funds for employee bonus incentives. President Obama called the bonus payments an “outrage” and promised that his administration would “pursue every single legal avenue to block these bonuses and make the taxpayers whole.” One possible answer lies with the remedy of restitution. Restitution, based on unjust enrichment, provides a common law solution that just might work. Unjust enrichment is a remedy directed at the defendant that requires the wrongdoer to return all ill-gotten gains. The goal is to return the defendant …

Infinite Hope-- Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly

Elizabeth Reilly

The Fourteenth Amendment embodies hope. This article introduces the Symposium celebrating the 140th anniversary of its ratification, held at the University of Akron. The symposium was a fruitful occasion to reflect upon the meaning of the Amendment to its Framers in Congress and as it was initially interpreted by the United States Supreme Court and the public, and to examine the lasting impacts of both conceptions. Our participants especially examined three of the Supreme Court's earliest forays into applying the Fourteenth Amendment: The Slaughter House Cases, Bradwell v. Illinois, and Cruikshank v. United States. Those forays succeeded in cramping the …

Reforming Eyewitness Identification Law And Practices To Protect The Innocent, Margery Koosed

Margery Koosed

This article discusses varying eyewitness identification reform proposals that may help to finally achieve a greater level of reliability in this critical phase of the criminal justice process. The author concludes a comprehensive reform that includes tightening exclusionary rules, along with (minimally) corroboration requirements for death-sentencing, and more appropriately, for convictions in capital and non-capital cases, with a concomitant loosening of standards for relief on appeal, hold the most promise.

The article addresses adopting best practices; assuring compliance by means of exclusion; admitting expert testimony and educating juries; instructing on the vagaries of eyewitness identification; requiring corroboration with independent and …

Chevron And Hearing Rights: An Unintended Combination, William S. Jordan

William S Jordan III

Section 554(a) of the Administrative Procedure Act provides that if a statute requires an agency an adjudicatory decision “to be determined on the record after opportunity for agency hearing,” that hearing will be subject to various requirements, including the use of an independent Administrative Law Judge, separation of the functions of investigation/prosecution and decision, and a prohibition on ex parte contacts. The courts of appeals have reached three distinct positions with respect to the question of when a statutory hearing requirement triggers § 554(a) of the APA. First, the First Circuit articulated a presumption that, for adjudications, a statutory hearing …

Palsgraf, Principles Of Tort Law, And The Persistent Need For Common-Law Judgment In Ip Infringement Cases, Jay Dratler Jr.

Jay Dratler

As lawyers, judges and law professors reach retirement age, there is little that we remember of our first-year course in torts. The cases we studied, our professors’ personalities—even the psychological trauma of the first pointed Socratic question directed at us—all are lost in the mists of time. Yet some things remain. Among them are the name and facts of Palsgraf v. Long Island Railroad Co., one of the most memorable cases in all of American common law. A great judge, Benjamin Cardozo, penned the majority opinion. The facts of Palsgraf stick in our minds because Judge Cardozo helpfully outlined them …

Ohio Trust Code Update: Recent Developments, Alan Newman

Alan Newman

This article is based on the author’s presentations at the 20th Annual Estate Planning Conference on Wealth Transfer in Columbus on June 26, 2009.

Since its enactment in 2006, effective January 1, 2007, the Ohio Trust Code (“OTC”) has been amended, a number of cases have been decided under it, and a variety of issues related to or raised by it have been identified. This article will review those developments.

Copyright Acknowledgment: This material is reprinted from the Probate Law Journal of Ohio with permission of Thomson Reuters. Copyright permission is on file.

Flying Above The Law And Under The Radar: Instilling A Taxpaying Ethos In Those Playing By Their Own Rules, Richard L. Lavoie

Richard L. Lavoie

No abstract provided.

The Union As It Wasn't And The Constitution As It Isn't: Section Five And Altering The Balance Of Power, Elizabeth Reilly

Elizabeth Reilly

The original prototype of Section One of the Fourteenth Amendment, as introduced by its primary Framer, John Bingham of Ohio, read: The Congress shall have the power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.

Bingham went on to note expressly that “save the words conferring the express grant of power to the Congress,” the principles of the rights were already in …