Law Commons^™

Testing Privilege: Coaching Bar Takers Towards “Minimum Competency” During The 2020 Pandemic, Benjamin Afton Cavanaugh

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

The Ballad Of Hicks Carmichael: Law, Music, And Popular Justice In Urban Appalachia, William Davenport Mercer

Scholarly Works

This article examines a rare folk ballad to revisit an 1888 Tennessee trial that newspapers referred to as the fastest in the country in which the death penalty was involved. If we look at this event using court records and newspapers, it tells a regrettably common story of a court under pressure from the populace skirting the protections of law. However, if we consider the trial as a performative endeavor, we can rightly consider other performative events, like folk songs, not as reflective of official events but as equivalents that help provide insight into the larger motives behind the court’s …

City Of Los Angeles V. Lyons: How Supreme Court Jurisprudence Of The Past Puts A Chokehold On Constitutional Rights In The Present, Peter C. Douglas

Northwestern Journal of Law & Social Policy

The United States today has refocused its attention on its continuing struggles with civil rights and police violence—struggles that have always been present but which come to the forefront of the collective consciousness at inflection points like the current one. George Floyd—and uncounted others—die at the hands of the police, and there is, justifiably, outrage and a search for answers. Although the reasons why Black and Brown people are disproportionally subject to unconstitutional police violence are manifold, one reason lies in the Supreme Court’s 1983 decision in City of Los Angeles v. Lyons. While many scholars have criticized the Burger …

Swords Into Plowshares: A Pilgrimage For The Css Alabama, William W. Park

Faculty Scholarship

During the American Civil War, Britain sold ships to the Southern Confederacy in breach of neutrality obligations, triggering a dispute with the United States carrying threats of armed conflict. Some American politicians saw the dispute as an opportunity to annex Canada, then a weak assemblage of British colonies. Ultimately, arbitration in Geneva averted war, opening an era of long Anglo-American cooperation. The historical consequence of this landmark 1872 arbitration remains difficult to overstate. In addition to its diplomatic importance, the case introduced significant procedural precedents for international arbitration, including dissenting options, reasoned awards, party-appointed arbitrators, collegial deliberations, and arbitrators’ declarations …

Put A Cork In It: The Use Of H.R. 161 To End Direct Wine Shipping Throughout The States Once And For All, Victoria H. Jones

Journal of Food Law & Policy

Due to Congress' recent agenda, oenophiles throughout the country are up in arms about the possible threat to their beloved wine. Wine lovers and other alcohol enthusiasts face the very real fear that access to their favorite products may soon be heavily restricted. This is in large part attributed to the fact that House Resolution 1161 would effectively change the ways in which states regulate alcohol shipment. The possible implications of this bill range from the forced shutdown of many wineries and distilleries due to lack of funding, to the smaller effects of regulation such as the inability of customers …

A History Of Elector Discretion – Part Two, Michael L. Rosin

Northern Illinois University Law Review

In its opinion in Chiafalo v. Washington, the Supreme Court disposes of the actual history of elector discretion as too inconsequential to merit its serious analysis. A history of elector discretion not only includes a history of the electors who exercised discretion when casting electoral votes, it also includes a history of commentary on the role of electors as the Constitution was created and, more importantly, as Congress was attempting to amend it. The Court almost completely ignores this history. When Congress crafted the Twelfth Amendment in 1803 it recognized that “the right of choice [of president] […] devolve[s] upon” …

Contested Places, Utility Pole Spaces: A Competition And Safety Framework For Analyzing Utility Pole Association Rules, Roles, And Risks, Catherine J.K. Sandoval

Catholic University Law Review

As climate change augurs longer wildfire seasons, safe, reliable, and competitive energy and communications markets depend on sound infrastructure and well-calibrated regulation. The humble wooden utility pole, first deployed in America in 1844 to extend telegraph service, forms the twenty-first century’s technological scaffold. Utility poles are increasingly contested places where competition, safety, and reliability meet. Yet, regulators and academics have largely overlooked the risks posed by century-old private utility pole associations in California, composed of private and public utility pole owners and some entities who attach facilities to utility poles. No academic articles have examined the rules, roles, and risks …

Reconsidering The Evolutionary Erosion Account Of Corporate Fiduciary Law, William W. Bratton

All Faculty Scholarship

This Article reconsiders the dominant account of corporate law’s duty of loyalty, which asserts that the courts have steadily relaxed standards of fiduciary scrutiny applied to self-dealing by corporate managers across more than a century of history—to the great detriment of the shareholder interest. The account originated in Harold Marsh, Jr.’s foundational article, Are Directors Trustees? Conflicts of Interest and Corporate Morality, published in The Business Lawyer in 1966. Marsh’s showing of historical lassitude has been successfully challenged in a recent book by Professor David Kershaw. This Article takes Professor Kershaw’s critique a step further, asking whether the evolutionary …

Law, Labor, And The Hard Edge Of Progressivism: The Legal Repression Of Radical Unionism And The American Labor Movement's Long Decline, Ahmed White

Publications

No abstract provided.

Monopolizers Of The Soil: The Commons As A Source Of Public Trust Responsibilities, Connor B. Mcdermott

Natural Resources Journal

In the seventeenth century, public resources were essential to the survival of the English poor. The common law, stretching back to Magna Carta and the Forest Charter, provided them with usufructuary rights to the commons. Those rights were violated by the enclosure movement, which received royal assent beginning with Charles I’s absolutist reign in 1625. As a result, the common people joined with Parliament to overthrow Charles I. After the Interregnum, Matthew Hale wrote De Jure Maris, a treatise foundational to the public trust doctrine in America and the doctrine’s expansion abroad. Hale lived through the Civil War which resulted …

A Reign Of Error: Property Rights And Stare Decisis, Michael Allan Wolf

UF Law Faculty Publications

Mistakes matter in law, even the smallest ones. What would happen if a small but substantively meaningful typographical error appeared in the earliest published version of a U.S. Supreme Court opinion and remained uncorrected for several decades in versions of the decision published by the two leading commercial companies and in several online databases? And what would happen if judges, legal commentators, and practitioners wrote opinions, articles, and other legal materials that incorporated and built on that mistake? In answering these questions, this Article traces the widespread, exponential replication of an error (first appearing in 1928) in numerous subsequent cases …

The Racial Reckoning Of Public Interest Law, Atinuke O. Adediran, Shaun Ossei-Owusu

Faculty Scholarship

No abstract provided.

Reports Of Cases By Lord Hardwicke, William Hamilton Bryson

Law Faculty Publications

Philip Yorke, earl of Hardwicke (1690-1764) was the Lord Chancellor of Great Britain from 1737 to 1756. He had a brilliant legal mind, and his memory is still celebrated today.

These reports are taken from Lord Hardwicke's opinions in other cases. Thus, being statements by Lord Hardwicke of these cases, in that sense, they are his reports of these cases. The text published here has been massaged into the standard format for law reports. However, originally, it was Lord Hardwicke's treatment of these reports as legal precedents for other cases that were before him for decision, which precedents he followed …

Advisory Opinions And The Problem Of Legal Authority, Christian R. Burset

Journal Articles

The prohibition against advisory opinions is fundamental to our understanding of federal judicial power, but we’ve misunderstood its origins. Discussions of the doctrine begin not with a constitutional text or even a court case, but a letter in which the Jay Court rejected President Washington’s request for legal advice. Courts and scholars have offered a variety of explanations for the Jay Court’s behavior. But they all depict the earliest Justices as responding to uniquely American concerns about advisory opinions.

This Article offers a different explanation. Drawing on previously untapped archival sources, it shows that judges throughout the anglophone world—not only …

Civil Vs. Criminal Legal Aid, Shaun Ossei-Owusu

All Faculty Scholarship

The past few decades have highlighted the insidious effects of poverty, particularly for poor people who lack access to legal representation. Accordingly, there have been longstanding calls for “Civil Gideon,” which refers to a right to counsel in civil cases that would address issues tied to housing, public benefits, family issues, and various areas of law that poor people are often disadvantaged by due to their lack of attorneys. This civil right to counsel would complement the analogous criminal right that has been constitutionalized. Notwithstanding the persuasive arguments made for and against Civil Gideon, it is less clear …

Compensation, Commodification, And Disablement: How Law Has Dehumanized Laboring Bodies And Excluded Nonlaboring Humans, Karen M. Tani

All Faculty Scholarship

This essay reviews Nate Holdren's Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge University Press, 2020), which explores the changes in legal imagination that accompanied the rise of workers' compensation programs. The essay foregrounds Holdren’s insights about disability. Injury Impoverished illustrates the meaning and material consequences that the law has given to work-related impairments over time and documents the naturalization of disability-based exclusion from the formal labor market. In the present day, with so many social benefits tied to employment, this exclusion is particularly troubling.

The Resilience Of Substantive Rights And The False Hope Of Procedural Rights: The Case Of The Second Amendment And The Seventh Amendment, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

At first glance, there seem to be strong affinities between the Second Amendment and the Seventh Amendment. Both the right to keep and bear arms and the right to civil jury trial potentially empower ordinary citizens. Both could check elites.

But there are crucial differences between these rights. I focus on two of them here. The first is relatively straightforward; it concerns individual accountability—or the lack thereof—and the ability to understand responsibilities. Gun owners and users generally have individual responsibility for their actions, and the ability to understand their responsibilities. In contrast, by design civil jurors lack individual responsibility. And …

Introduction: Situating, Researching, And Writing Comparative Legal History, John G. H. Hudson, William Eves

Other Publications

This volume is a selection of essays taken from the excellent range of papers presented at the British Legal History Conference hosted by the Institute for Legal and Constitutional Research at the University of St Andrews, 10–13 July 2019. The theme of the conference gives this book its title: ‘comparative legal history’. The topic came easily to the organisers because of their association with the St Andrews-based European Research Council Advanced grant project ‘Civil law, common law, customary law: consonance, divergence and transformation in Western Europe from the late eleventh to the thirteenth centuries’. But the chosen topic was also …

Of Sheepdogs And Ventriloquists: Government Lawyers In Two New Deal Agencies, Daniel R. Ernst

Georgetown Law Faculty Publications and Other Works

From the neo-Weberian literature on state-building and the political sociology of the legal profession, one might expect government lawyers to be sheepdogs, nipping at the heels of straying administrators, supplying their agencies with the bureaucratic autonomy so often missing in American government. In this contribution to “Serious Fun” a symposium in honor of John Henry Schlegel of the University at Buffalo School of Law, I report my preliminary findings for two agencies created during the Hundred Days of Franklin D. Roosevelt’s presidency, the Agricultural Adjustment Administration and the National Recovery Administration. I suggest that the neo-Weberian model tends to minimize …

Economic Regulation And Rural America, Ann M. Eisenberg

Faculty Publications

Rural America today is at a crossroads. Widespread socioeconomic decline outside cities has fueled the idea that rural communities have been “left behind.” The question is whether these “left behind” localities should be allowed to dwindle out of existence, or whether intervention to attempt rural revitalization is warranted. Many advocate non-intervention because rural lifestyles are inefficient to sustain. Others argue that, even if the nation wanted to help, it lacks the law and policy tools to redirect rural America’s course effectively.

This Article argues that we do have the law and policy tools necessary to address rural socioeconomic marginalization, and …

The Case Of The Dishonest Scrivener: Gouverneur Morris And The Creation Of The Federalist Constitution, William M. Treanor

Georgetown Law Faculty Publications and Other Works

At the end of the Constitutional Convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the Convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the Committee, and, with few revisions and little debate, the Convention adopted Morris’s draft. For more than two hundred years, questions have been raised as to whether Morris covertly altered the text in order to advance his constitutional vision, but modern legal scholars and historians studying the Convention have either ignored the issue or concluded that Morris …