Law Commons^™

The Common Sense Of A Wealth Tax: Thomas Paine & Taxation As Freedom From Aristocracy, Jeremy Bearer-Friend, Vanessa Williamson

GW Law Faculty Publications & Other Works

Thomas Paine’s writing helped spur the American colonies to independence and ensure that the new nation would be a republic, not a monarchy. In light of the renewed interest in wealth taxes, this article provides a close examination of Thomas Paine’s wealth tax proposal in the second volume of The Rights of Man. Unlike Paine’s proposal to tax inheritances, his 1792 proposal to tax wealth on an annual basis is often overlooked. The article identifies Paine’s various design specifications, provides original estimates of the impact of Paine’s wealth tax proposal within his own time period and as applied to billionaires …

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 …

The Rise Of Directed Verdict: Jury Power In Civil Cases Before The Federal Rules Of 1938, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

Jury practice in the state and federal courts evolved dramatically in the nineteenth and early twentieth century. Around the time of the ratification of the Bill of Rights in 1791, important legal thinkers praised the civil jury as a bulwark against judicial tyranny. By the advent of the Federal Rules of Civil Procedure in 1938, many commentators regarded the civil jury as an antiquated nuisance. Diminishment of the jury and open exercise of judicial power, encouraged in the Federal Rules by procedures such as summary judgment, would not have been possible without earlier changes in jury practice. Two major changes …

Thomas Nast's Crusading Legal Cartoons, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

The cartoonist Thomas Nast (1840-1902) was in his heyday a political institution, with each of his pictures helping to form public opinion. His influence reached its height in the late 1860s and early 1870s with his relentless caricatures of Boss Tweed and the Tammany Hall Ring in New York City. One part of Nast’s work not often highlighted but as brilliant as the rest is his legal cartoons. Nast’s best work was done with high moral zeal, and his satire of lawyers and the legal system was no exception. His attacks grew out of frustration with the ineffectiveness of legal …

Dignity In Race Jurisprudence, Christopher A. Bracey

GW Law Faculty Publications & Other Works

Racial justice demands dignity; the acknowledgment and affirmation of the equal humanity of people of color. Denying dignity on the basis of color creates racial subordination, which triggers dignitary harms such as individual acts of racism and communal exclusion leading to diminished health, wealth, income, employment and social status. The legal recognition of dignity is therefore a prerequisite to political and social equality. For Americans of African descent, dignity was long denied by the legal endorsement of slavery and the degrading policies of segregation. The struggle to be treated equally human eventually found success in landmark cases such as Brown …

From Pluralism To Individualism: Berle And Means And 20th-Century American Legal Thought, Dalia Tsuk Mitchell

GW Law Faculty Publications & Other Works

This article is an intellectual history of Adolf A. Berle, Jr. and Gardiner C. Means, The Modern Corporation and Private Property (1932). I argue that Berle and Means's concern was not the separation of ownership from control in large pubic corporations, as many scholars have suggested, but rather the allocation of power between the state and a wide range of institutions. As I demonstrate, Berle and Means shared a legal pluralist vision of the modern state. Legal pluralism treated organizations as centers of power that had to be accommodated within the political and legal structure. Berle and Means viewed collective …

Elusive Foundation: John Marshall, James Wilson, And The Problem Of Reconciling Popular Sovereignty And Natural Law Jurisprudence In The New Federal Republic, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

Chief Justice John Marshall's opinion in Marbury v. Madison is generally regarded as the cornerstone of American judicial review. Marshall's opinion in Marbury skillfully invoked the distinctive American concept of popular sovereignty and linked that concept to the written Constitution. Marshall argued that judicial review provided the best means for enforcing the people's will, as declared in the written Constitution, without resort to the drastic remedy of revolution. Marshall warned that, without judicial review, the legislative branch would enjoy a practical and real omnipotence and would reduce to nothing what we have deemed the greatest improvement on political institutions - …

Thinking Race, Making Nation (Reviewing Glenn C. Loury, The Anatomy Of Racial Inequality), Christopher A. Bracey

GW Law Faculty Publications & Other Works

We live in a race-conscious culture. As Americans, we are a nation of people who self-consciously chose to adopt a vision of society that embraced lofty ideals of individual freedom and democracy for all along with powerful mechanisms for devastating racial oppression. Our history is replete with instances of differential treatment on account of race - slavery being only the most egregious example - that achieved the desired effect of generating remarkable disparities in socioeconomic well-being among individuals and between different racial groups. Such disparities are not simply historical artifacts. They are facts of the contemporary American racial landscape as …

Louis Brandeis And The Race Question, Christopher A. Bracey

GW Law Faculty Publications & Other Works

We live in a culture enamored by our heroes. They are celebrated for their extraordinary accomplishments, and canonized by histories that rarely reflect the true texture of their lives. Legal academics share in these tendencies and, as a result, heroes in the law are often viewed with the same rose-colored glasses accorded to their counterparts in popular culture. The late Louis Brandeis was an Associate Justice on the Supreme Court of the United States from 1916 to 1939. Born to Jewish immigrant parents, he graduated from Harvard Law School, and gained a reputation as America’s “People’s Attorney.” He pioneered an …

An Anthropological Approach To Modern Forfeiture Law: The Symbolic Function Of Legal Actions Against Objects, Paul Schiff Berman

GW Law Faculty Publications & Other Works

In 1996, the Supreme Court issued two opinions, Bennis v. Michigan and United States v. Ursery, emphasizing the constitutionality of civil forfeiture schemes under both the Due Process and Double Jeopardy Clauses of the Fifth Amendment. These decisions, and civil forfeiture schemes generally, have faced strong criticism from scholars and civil libertarians. Among the arguments advanced against civil forfeiture has been one based on its origins. The so-called "legal fiction" underlying forfeiture is that the government is acting against the property itself, rather than against the owner. Commentators have traced this fiction to the Middle Ages. Under the law of …

Rats, Pigs, And Statues On Trial: The Creation Of Cultural Narratives In The Prosecution Of Animals And Inanimate Objects, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Records indicate that trials of animals - usually for killing human beings - took place throughout Europe and elsewhere from the ninth through the nineteenth centuries. The historical evidence indicates that communities viewed these trials seriously. If we can understand what social benefits the trials brought to the people of these towns, we may begin to see that trials even in our own time fulfill cultural needs that extend far beyond dispute resolution and adjudication.

This Note explores how an understanding of the social function of trials may allow us to rethink their value in contemporary society. This Note describes …

Rats, Pigs, And Statues On Trial: The Creation Of Cultural Narratives In The Prosecution Of Animals And Inanimate Objects, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Records indicate that trials of animals - usually for killing human beings - took place throughout Europe and elsewhere from the ninth through the nineteenth centuries. The historical evidence indicates that communities viewed these trials seriously. If we can understand what social benefits the trials brought to the people of these towns, we may begin to see that trials even in our own time fulfill cultural needs that extend far beyond dispute resolution and adjudication.

This Note explores how an understanding of the social function of trials may allow us to rethink their value in contemporary society. This Note describes …