Law Commons^™

Modern Disparities In Legal Education: Emancipation From Racial Neutrality, David Mears

David Mears

Wealth, leadership and political power within any democratic society requires the highest caliber of a quality legal education. The Black experience is not necessarily a unique one within legal education but rather an excellent example of either poor to substandard quality disseminated unequally among racial and socioeconomic stereotypes based upon expected outcomes of probable success or failure. It is often said, “Speak and so it will happen” – many within the halls of academia work hard to openly predict failure yet seemingly do very little to foster success internally within the academic procedures and processes based on the customer service …

The Original Understandings Of The Capture Clause, Aaron D. Simowitz

Aaron D. Simowitz

The Congress shall have power to . . . To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. US Const Art I, § 8, cl 11.

Although the Capture Clause may seem obscure today, the power it embodies was crucially important to the early republic. General Washington declared, even during the Revolutionary War, that a centralized and standardized system for the handling of prizes was vital to the war effort. The first court established by the fledging federal government was the federal appellate court of prize. This court heard over a …

How The Cleveland Bar Became Segregated: 1870-1930, Robert N. Strassfeld

Robert N. Strassfeld

Abstract

Paper Title: How the Cleveland Bar Became Segregated: 1900-1930

This article examines the changing perimeters of professional opportunity and the professional choices made by Cleveland’s African American lawyers in the early twentieth century. At the turn of the century, the Cleveland bar could fairly be described as racially integrated. The openness of the bar and the response of African American lawyers shaped the day-to-day professional lives of those lawyers. This openness manifested itself in a number of interracial law practices, in a client base for black lawyers that was predominantly white, in the court appointment practices of white judges, …

Letters Of Marque And Reprisal: The Constitutional Law And Practice Of Privateering, Theodore M. Cooperstein

Theodore M Cooperstein

The United States Constitution grants to the Congress the power, among others, to issue “Letters of Marque and Reprisal.” Although the practice seems to have fallen into disuse in this century, it was an important tool of national power for the federal government created by the Framers, who placed great import on the federal government’s role in protecting international commerce and in enforcing international law.

Privateering played a significant role before and during the Revolutionary War, and it persisted in American history as an economical way to augment naval forces against an enemy in wartime. A significant outgrowth of the …

Legal Subjectivity And The Basis Of Citizenship In Aristotle's Philosophy Of Law, Dr Burns

Dr Burns

This paper considers Aristotle’s views on the nature of the legal subject and the basis of citizenship, specifically in relation to the doctrine of corrective justice outlined in Book V of the Nicomachean Ethics. It may be seen as a contribution to a debate over the issue between Ernest J. Weinrib and Steven J. Heyman which took place in a special issue of Iowa Law Review devoted to corrective justice in 1991-92: Corrective Justice and Formalism: The Care One Owes One's Neighbor, Iowa L. Rev. 77 (1991-92), 403-864. The paper argues that the interpretations of Aristotle which are offered by …

Ernest J. Weinrib’S Legal Formalism And The Philosophies Of Aristotle, Kant And Hegel, Dr Burns

Dr Burns

This paper may be seen as a contribution to a symposium on the legal theory of Hegel which was first published in Cardozo Law Review in 1988-89: 10 Cardozo L. Rev. (1988-89). (Hegel and Legal Theory Symposium, I). It presents a critique of the doctrine of ‘legal formalism,’ as this is presented in the writings of Ernest J. Weinrib. Weinrib associates legal formalism with the legal philosophies of Aristotle, Kant and Hegel. So far as Aristotle is concerned, the paper argues that Weinrib is wrong to argue that Aristotle is a forerunner of the legal philosophy of Kant or of …

Rethinking The Foreign Direct Investment Process In Post Conflict Transition Couuntries, Kojo Yelpaala

Kojo Yelpaala

ABSTRACT Burdened by the remnants of conflict, continuing threats of security lapses, significant market failures and weak institutions, post conflict transition countries can hardly be described as normal economies. The task of transforming them into vibrant, productive and self-sustaining economies is no simple assignment. Constructing the blueprint for reconstruction and economic development requires creativity of the first order. Conventional theories or pure neo-liberal market driven policy levers preached by the Washington Consensus group are not likely to be productive. The design of the investment regime for development should therefore focus on non conventional policy constructs. Contrary to the received theories, …

The Historical Origins Of The Patterns Of Taxpayer Standing, Charlotte Crane

Charlotte Crane

In this article, I explore the pattern, sometimes described as puzzling, according to which the federal courts have sometimes considered the claims of a local taxpayer sufficient to allow a challenge the activities of the taxpaying entity, while rarely finding the claims of a state or federal taxpayer sufficient. I trace this pattern to the doctrines according to which local governments were seen as having taxing powers conditioned upon the ways in which the funds raised are to be spent. Since such doctrines never applied to impose judiciable limits on the taxing powers of either states or the federal government, …

Monstrous By Law: Gothic Technology In Four Slavery Texts, Theodore A.B. Mccombs

Theodore A.B. McCombs

Monstrous by Law explores two famous legal texts of antebellum American slavery—THE CONFESSIONS OF NAT TURNER, regarding the 1831 slave rebellion; and the notorious trial of Margaret Garner, the fugitive slave who murdered her children to prevent them from being taken back into slavery. Using theories developed by Toni Morrison and Judith Halberstam, the essay examines how these two texts make use of a particular “Gothic technology,” by which the black defendants are portrayed as monstrous figures that help define and reinforce white identity by contrast. The essay then turns to Herman Melville’s novella Benito Cereno, which was inspired in …

The Color Of Testamentary Freedom, Kevin Noble Maillard

Kevin Noble Maillard

Wills that prioritize the interests of nontraditional families over collateral heirs test courts’ dedication to observing the posthumous wishes of testators. Collateral heirs who object to will provisions that redraw the contours of “family” are likely to profit from the incompatibility of testamentary freedom and social deviance. Thus, the interests of married, white adults may claim priority over nonwhite, unmarried others. Wills that acknowledge the existence of moral or social transgressions—namely, interracial sex and reproduction—incite will contests by collateral heirs who leverage their status as white and legitimate in order to defeat testamentary intent.

This Article turns to antebellum and …

Trust Law And The Title-Split: A Beneficial Perspective, Kent D. Schenkel

Kent D Schenkel

Recent functional analyses of the trust tend to emphasize its effect on the parties to the trust deal and give less attention to the nature of the beneficiary’s interest, especially in relation to persons outside the trust transaction. In contrast, this article takes a critical approach to the trust from the primary perspective of the benefits it provides to beneficiaries. From this perspective, it finds that while the trust maintains the flexibility of a contract it also restricts legal interests of third parties who are strangers to the trust bargain; a feat that contracts are unable to accomplish. Third parties …

The Bush Theory Of The War Power: Authoritarianism, Torture And The So-Called “War On Terror”- A Critique, Christopher L. Blakesley, Judy Meyerson

Christopher L. Blakesley

The Bush Theory of the War Power:

Authoritarianism, Torture and the

So-Called “War on Terror”- A Critique

Christopher L. Blakesley & Thomas B. McAffee

Abstract

Our article addresses the Bush administration’s arrogation of power to the President and its manifestation in the disappearance, imprisonment, and torture of detainees in prisons, including Guantánamo, Bagram, Abu Ghraib, and so-called “black sites,” or prisons in countries that engage in torture. These shameful practices were authorized in the infamous September 25, 2001 Torture Memo and other controversial legal memoranda by John Yoo and other Bush administration attorneys. The memos, which claimed authoritarian executive power …

The Law Of Vertical Integration And The Business Firm, 1880-1960, Herbert Hovenkamp

Herbert Hovenkamp

ABSTRACT

Vertical integration occurs when a firm does something for itself that it could otherwise procure on the market. For example, a manufacturer that opens its own stores is said to be vertically integrated into distribution. Both classical political economy and marginalist economics saw vertical integration and vertical contractual arrangements as much less threatening to competition than cartels or other horizontal arrangements. Nevertheless, vertical integration produced by far the greater amount of legislation at both federal and state levels and motivated many more political action groups. Two things explain this phenomenon. First, while economists prior to the 1930s rarely saw …

Keepers Of The New Covenant: The Puritan Legacy In American Constitutional Law, Daniel F. Piar

Daniel F. Piar

No abstract provided.

Deliberative Democracy On Air: Reinvigorate Localism-Resuscitate Radio's Subversive Past, Akilah N. Folami

Akilah N Folami

Radio, once the vibrant center of deliberative democracy, is now widely regarded as a commercialized wasteland. As the FCC, Congress, and the courts reconsider current media policy in light of the public outcry over the lack of diverse content on the nation’s radio airwaves, many scholars and media reformists attribute the commercial marginalization of radio to deregulation, and the resulting consolidation in radio ownership and homogenization of radio content. They argue for more local news and public affairs programming as a remedy to this problem. This article builds on such arguments but further posits that local music and popular cultural …

Taking History Seriously: Textulism,Originalim, And The Ninh Amndment, Thomas B. Mcaffee

Thomas B. McAffee

Dean William Trenor critques constitutional txtualism,contending that it pays too much attention to the words,gramma, and placement of clauses in the Constitution, and too litte to the history leding to the adoption of the interpreted language. An illusration is Amar's treatment of the Ninth Amendment in his book on the Bill of Rights. This treatment agrees that history sheds light on meaning,butcontends that the Ninth Amendent was drafted to secure right retained by granting limied power. The modern debate, moreover, is over how to intepret a postvist Constitution.

“I Am A Bit Sickened”: Examining Archetypes Of Congressional War Crimes Oversight After My Lai And Abu Ghraib, Samuel L. Brenner

Samuel L Brenner

Following both the My Lai massacre during the Vietnam conflict and the Abu Ghraib prisoner abuse scandal during the Iraq War, many senators and representatives reacted in certain predictable ways by condemning atrocities and expressing horror or disgust at the evidence they had seen. At the same time, some of those same legislators denied that American forces had been involved with atrocities, attempted to foist blame on the victims or on a “small number” of bad soldiers, or suggested that examining American atrocities would be dangerous for American servicemen and for the United States generally. What is most startling about …

Behavioral Economic Issues In American And Islamic Marriage & Divorce Law, Ryan M. Riegg

Ryan M. Riegg

Secular Natural Law And The Normative Justification Of The State, Jeffery L. Johnson

Jeffery L Johnson

The article argues that a plausible normative justification of law and government can be constructed along the lines of the ancient natural law tradition. Rather than assuming the God of western theism, however, the article endorses a biologically based, and thoroughly secular, metaphysical basis for natural law.

The Quiet National Security Revolution: Suing For Citizenship, Jeffrey A. Breinholt

Jeffrey A Breinholt

The article looks at an alarming trend of aliens suing for naturalization or adjustment of status where they feel that the post-9/11 terrorist screening mechanisms are too onerous. The article looks at current controversies over the No-Fly list, as well as the Cold War efforts to maintain the security of U.S. seaports, and, based on this history, concludes that it is just a matter of time before the judiciary begins to manage U.S. immigration policy and anti-terrorism measures.

Keepers Of The New Covenant: The Puritan Legacy In American Constitutional Law, Daniel F. Piar

Daniel F. Piar

No abstract provided.

Race And American Indian Tribal Nationhood, Matthew L.M. Fletcher

Matthew L.M. Fletcher

American Indian tribes and nations are at a crossroads. One on hand, many tribes like the Cherokee Nation – mired in the politics and law of disenfranchising the Cherokee Freedmen – continue to hold to a citizenry based in race and ancestry. Federal Indian law tends to protect, and encourage, even the worst abuses of this regime. The United States long has adopted Indian blood quantum as a proxy for tribal citizenship, creating unfortunate paradoxes for Indian tribes and their citizens. For example, the Supreme Court just a few days ago in Carcieri v. Salazar held against an Indian tribe …

Webster Plus One: Solving The "Impossible" Apportionment Debate, Mark M. Bell

Mark M Bell

Apportionment issues inevitably arise decennially. Consistent with historical trends, the debates concerning the upcoming 2010 apportionment have already begun to intensify. Deciding which apportionment method to use has generated intense debates among some of the most prominent figures in the Nation’s history. Most scholars believe that there is constitutional tension between two fundamental apportionment constraints: apportioning proportionally and representatively. It has been universally accepted that it is “impossible to satisfy both criteria.” In order to satisfy both criteria, an apportionment method must both, maintain quota, and avoid paradoxes. I postulate a new method, the “Webster Plus One” approach, that stands …

Keepers Of The New Covenant: The Puritan Legacy In American Constitutional Law, Daniel F. Piar

Daniel F. Piar

No abstract provided.

Keepers Of The New Covenant: The Puritan Legacy In American Constitutional Law, Daniel F. Piar

Daniel F. Piar

The thesis of the article is that the modern Supreme Court has come to use law just as the American Puritans did: as a tool for regulating and safeguarding the internal, spiritual needs of the populace. Through close readings of landmark civil rights cases, and of primary Puritan texts, I demonstrate that just as the Puritans were concerned with using civil authority to safeguard the soul’s progress to salvation, so does the modern Supreme Court use law to ensure what it sees as the proper conditions for spiritual development. I then remark on several implications of this parallel, including the …

The Puzzle Of Judicial Education: The Case Of Chief Justice William De Grey, Emily Kadens

EMILY KADENS

Unlike civil law systems in which young lawyers choose between an attorney career track and a judicial one, Anglo-American legal systems mostly select their judges from the whole pool of bar members, regardless of the fact that the appointees may have had no experience with the court on which they are placed. Such a method of selection ensures that many judges come to the bench still needing to prepare themselves for their new positions. This problem is not a new one. At least by the seventeenth century, the specialization of legal practice in England meant that many neophyte judges had …

Beyond The Model Rules: Aristotle, Lincoln, And The Lawyer's Aspirational Drive To An Ethical Practice, Billie J. Ellis, William T. Ellis

Billie J. Ellis Jr.

Many scholars have criticized the Model Rules for omitting the aspirational ethic of earlier ABA codes, leaving only the minimum, mandatory regulations for conduct. Our article BEYOND THE MODEL RULES: ARISTOTLE, LINCOLN, AND THE LAWYER’S ASPIRATIONAL DRIVE TO AN ETHICAL PRACTICE, offers a new approach to dealing with this "aspirational void" created by the Model Rules, yet it does not engage in the useful yet typical debates regarding this problem, including the need for greater emphasis on ethics in law schools, reform of the ABA, reform of the Model Rules, or the need for a so called professional movement. Rather, …

A House Divided: Earl Caldwell, The New York Times, And The Quest For A Testimonial Privilege, Eric B. Easton

Eric B Easton

In the 1972 case of Branzburg v. Hayes, the Supreme Court held that the First Amendment does not protect journalists who refuse to reveal their confidential sources or newsgathering product in response to a federal grand jury subpoena. That decision has remained vital for 35 years and has reverberated through a number of recent high-profile cases. Despite some form of protection in nearly every state court, reporters haled before a federal judge may have no recourse save prison. Devastating as Branzburg has been for the so-called “journalist’s privilege,” its negative impact has been far broader. Branzburg is one of Supreme …

Race And American Indian Tribal Nationhood, Matthew L.M. Fletcher

Matthew L.M. Fletcher

As American Indian tribal nations develop the capacity to govern their own citizens, and engage in substantial economic and political activities with non-citizens, they are heading toward major roadblocks. Tribal nations, like other nations, seek to regulate the activities of all persons within their territorial jurisdictions, including the power to tax and prosecute those persons, citizen or not. The United States Supreme Court has expressed strong skepticism about the possibility of tribal nations asserting this authority and has placed tight controls on the authority of tribal nations to regulate the activities of non-tribal citizens.

Tribal governments are nations and should …

The Idea Of Pollution, John Copeland Nagle

John Copeland Nagle

Pollution is the primary target of environmental law. During the past forty years, hundreds of federal and state statutes, administrative regulations, and international treaties have established multiple approaches to addressing pollution of the air, water, and land. Yet the law still struggles to identify precisely what constitutes pollution, how much of it is tolerable, and what we should do about it.

But environmental pollution is hardly the only type of pollution. Historically, the idea of pollution referred to a host of effects upon human environments. This remains evident in contemporary anthropological literature, which studies the pollution beliefs of cultures throughout …