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Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn Jan 2013

Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn

Akron Law Publications

People have a fundamental need to think of themselves as “good people.” To achieve this we tell each other stories – we create myths – about ourselves and our society. These myths may be true or they may be false. The more discordant a myth is with reality, the more difficult it is to convince people to embrace it. In such cases to sustain the illusion of truth it may be necessary to develop an entire mythology – an integrated web of mutually supporting stories. This paper explores the system of myths that sustained the institution of slavery in the antebellum United States.


First Amendment Privacy And The Battle For Progressively Liberal Social Change, Anita L. Allen Mar 2012

First Amendment Privacy And The Battle For Progressively Liberal Social Change, Anita L. Allen

Faculty Scholarship at Penn Law

No abstract provided.


Elizabeth Cady Stanton And The Notion Of A Legal Class Of Gender, Tracy A. Thomas Mar 2011

Elizabeth Cady Stanton And The Notion Of A Legal Class Of Gender, Tracy A. Thomas

Akron Law Publications

In the mid-nineteenth century, Elizabeth Cady Stanton used narratives of women and their involvement with the law of domestic relations to collectivize women. This recognition of a gender class was the first step towards women’s transformation of the law. Stanton’s stories of working-class women, immigrants, Mormon polygamist wives, and privileged white women revealed common realities among women in an effort to form a collective conscious. The parable-like stories were designed to inspire a collective consciousness among women, one capable of arousing them to social and political action. For to Stanton’s consternation, women showed a lack of appreciation ...


Law, History, And Feminism, Tracy A. Thomas Mar 2011

Law, History, And Feminism, Tracy A. Thomas

Akron Law Publications

This is the introduction to the book, Feminist Legal History. This edited collection offers new visions of American legal history that reveal women’s engagement with the law over the past two centuries. It integrates the stories of women into the dominant history of the law in what has been called “engendering legal history,” (Batlan 2005) and then seeks to reconstruct the assumed contours of history.

The introduction provides the context necessary to appreciate the diverse essays in the book. It starts with an overview of the existing state of women’s legal history, tracing the core events over the ...


Race, Sex, And Rulemaking: Administrative Constitutionalism And The Workplace, 1960 To The Present, Sophia Z. Lee Jan 2010

Race, Sex, And Rulemaking: Administrative Constitutionalism And The Workplace, 1960 To The Present, Sophia Z. Lee

Faculty Scholarship at Penn Law

No abstract provided.


Should Bush Administration Lawyers Be Prosecuted For Authorizing Torture?, Claire Oakes Finkelstein, Michael Lewis Jan 2010

Should Bush Administration Lawyers Be Prosecuted For Authorizing Torture?, Claire Oakes Finkelstein, Michael Lewis

Faculty Scholarship at Penn Law

No abstract provided.


Getting The Framers Wrong: A Response To Professor Geoffrey Stone, Samuel W. Calhoun Jan 2009

Getting The Framers Wrong: A Response To Professor Geoffrey Stone, Samuel W. Calhoun

Faculty Scholarship

Professor Geoffrey Stone’s Essay, The World of the Framers: A Christian Nation?, seeks to state “the truth about . . . what [the Framers] believed, and about what they aspired to when they created this nation.” Doing so will accomplish Professor Stone’s main objective, helping us to understand what “the Constitution allows” on a host of controversial public policy issues.3 Regrettably, Professor Stone’s effort is unsuccessful. Although he clearly tried to be fair in his historical account,4 the Essay ultimately presents a misleading view of the Framers’ perspective on the proper relationship between religion and the state.


James Wilson And The Drafting Of The Constitution, William Ewald Jun 2008

James Wilson And The Drafting Of The Constitution, William Ewald

Faculty Scholarship at Penn Law

No abstract provided.


Accommodating Discrimination, Ashlie Warnick Apr 2008

Accommodating Discrimination, Ashlie Warnick

Faculty Scholarship Series

The Supreme Court's jurisprudence on church-state issues is unsettled. With respect to the Establishment Clause, the three-pronged test from Lemon v. Kurtzman is often used to hold government benefits to religious organizations unconstitutional. But, in cases where the majority of the Court finds the governmental benefit permissible, Lemon is generally unmentioned. This problem is confounded when the Court considers accommodations for religious organizations. Lemon, without refinement, is ill-suited to application to such accommodations. Does allowing religious organizations an exemption from generally applicable laws benefit a religious organization in violation of the Establishment Clause or does failing to provide the ...


Civil Procedure And The Establishment Clause: Exploring The Ministerial Exception, Subject Matter Jurisdiction, And The Freedom Of The Church, Gregory A. Kalscheur S.J. Mar 2008

Civil Procedure And The Establishment Clause: Exploring The Ministerial Exception, Subject Matter Jurisdiction, And The Freedom Of The Church, Gregory A. Kalscheur S.J.

Boston College Law School Faculty Papers

What sort of defense is provided by the ministerial exception to employment discrimination claims? The ministerial exception bars civil courts from reviewing the decisions of religious organizations regarding the employment of their ministerial employees. While the exception itself is widely recognized by courts, there is confusion with respect to the proper characterization of the defense provided by the exception: should it seen as a subject matter jurisdiction defense, or as a challenge to the legal sufficiency of the plaintiff's claim? This Article argues that articulating the right answer to this question of civil procedure is crucial to a proper ...


Catholics In Public Life: Judges, Legislators, And Voters, Gregory A. Kalscheur S.J. Jun 2007

Catholics In Public Life: Judges, Legislators, And Voters, Gregory A. Kalscheur S.J.

Boston College Law School Faculty Papers

Does the desire to avoid culpable cooperation in moral evil make the conscientious Catholic judge unfit for judicial service in a constitutional system that will inevitably bring before the judge cases that implicate a host of issues as to which the Church offers moral teaching? Confused answers to this question reflect a larger confusion which often accompanies contemporary discussion of questions related to Catholic participation in public life. The confusion stems in large part from a failure to recognize that Catholics participate in public life in different ways that give them different sorts of public roles. This Essay tries to ...


If They Can Raze It, Why Can't I? A Constitutional Analysis Of Statutory And Judicial Religious Exemptions To Historic Preservation Ordinances, Erin Guiffre Apr 2007

If They Can Raze It, Why Can't I? A Constitutional Analysis Of Statutory And Judicial Religious Exemptions To Historic Preservation Ordinances, Erin Guiffre

Georgetown Law Historic Preservation Papers Series

In 1996, America almost lost a great piece of its history. The Cathedral of Saint Vibiana, located in Los Angeles, was in danger of being destroyed. The "Baroque-inspired Italianate structure" was completed in 1876 by architect Ezra F. Kysor. The cathedral is one of only a few structures from Los Angeles' early history remaining. As an important part of history and a beautiful piece of architecture, the cathedral was listed on California's register of historic places. In 1994, an earthquake damaged part of the building. After an inspection by the building and safety department in 1996, the only portion ...


Slicing The American Pie: Federalism And Personal Law, Jeffrey A. Redding Apr 2007

Slicing The American Pie: Federalism And Personal Law, Jeffrey A. Redding

Faculty Scholarship Series

In this piece, I draw upon Indian and other comparative legal experience to argue that the present U.S. system of territorial federalism resonates deeply with those systems of “personal law” that are commonly found around the world. Under a personal law system, a state enforces different laws for each of the state’s different religious or ethnic communities - which is one reason such systems have been so heavily interrogated by U.N. and other international organisations for their human rights implications. Similarly, as well, U.S. First Amendment jurisprudence has frowned upon the carving out of religious-group exceptions to ...


Christian Scripture And American Scripture: An Instructive Analogy?, Gregory A. Kalscheur S.J. May 2006

Christian Scripture And American Scripture: An Instructive Analogy?, Gregory A. Kalscheur S.J.

Boston College Law School Faculty Papers

This Review Essay examines the analogy between biblical interpretation and constitutional interpretation drawn by the eminent Yale church historian Jaroslav Pelikan in his provocative book, Interpreting the Bible and the Constitution. Part I of the Essay focuses on Pelikan’s discussion of the differences and analogies between the Bible and the Constitution that provide the foundation for methodological comparison. Part II of the Essay examines Pelikan’s effort to draw on the work of 19th-century theologian John Henry Newman in order to explore the fundamental problem of the relation between the authority of the original text and the authority of ...


The Rise And Fall Of The Centrality Concern In Free Exercise Jurisprudence, Sean J. Young May 2006

The Rise And Fall Of The Centrality Concern In Free Exercise Jurisprudence, Sean J. Young

Student Scholarship Papers

In 1990, Smith changed the landscape of free exercise jurisprudence and introduced what this Article describes as the “centrality concern”: the principle that judges are in no place to determine the centrality of various activities to a particular religion. However, no legal scholar has recognized the extent to which the centrality concern has been undermined. This Article explains how Lukumi, Locke and most Circuits have undermined the centrality concern. Implications of this doctrinal anomaly will be illustrated with the example of the less often discussed religion of conservative Christianity, and the Article concludes with some brief recommendations.


Alternative Career Resolution Ii: Changing The Tenure Of Supreme Court Justices, Stephen B. Burbank Jan 2006

Alternative Career Resolution Ii: Changing The Tenure Of Supreme Court Justices, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.


Torture Lite, Full-Bodied Torture, And The Insulation Of Legal Conscience, Seth F. Kreimer Jan 2005

Torture Lite, Full-Bodied Torture, And The Insulation Of Legal Conscience, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


Watching The Watchers: Surveillance, Transparency, And Political Freedom In The War On Terror, Seth F. Kreimer Sep 2004

Watching The Watchers: Surveillance, Transparency, And Political Freedom In The War On Terror, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


Too Close To The Rack And The Screw: Constitutional Constraints On Torture In The War On Terror, Seth F. Kreimer Nov 2003

Too Close To The Rack And The Screw: Constitutional Constraints On Torture In The War On Terror, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch Jan 2003

The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch

Faculty Scholarship at Penn Law

No abstract provided.


The Pennsylvania Constitution's Protection Of Free Expression, Seth F. Kreimer Oct 2002

The Pennsylvania Constitution's Protection Of Free Expression, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


Technologies Of Protest: Insurgent Social Movements And The First Amendment In The Era Of The Internet, Seth F. Kreimer Jan 2001

Technologies Of Protest: Insurgent Social Movements And The First Amendment In The Era Of The Internet, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


What's So Special About American Law?, William Ewald Jan 2001

What's So Special About American Law?, William Ewald

Faculty Scholarship at Penn Law

No abstract provided.


The New Etiquette Of Federalism: New York, Printz, And Yeskey, Matthew D. Adler, Seth F. Kreimer Jan 1999

The New Etiquette Of Federalism: New York, Printz, And Yeskey, Matthew D. Adler, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


The Legalization Of The Presidencey: A Twenty-Five Year Watergate Retrospective, Michael A. Fitts Jan 1999

The Legalization Of The Presidencey: A Twenty-Five Year Watergate Retrospective, Michael A. Fitts

Faculty Scholarship at Penn Law

No abstract provided.


The Second Time As Tragedy: The Assisted Suicide Cases And The Heritage Of Roe V. Wade, Seth F. Kreimer Jul 1997

The Second Time As Tragedy: The Assisted Suicide Cases And The Heritage Of Roe V. Wade, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


From Black And White To High Definition Equal Protection, Seth F. Kreimer Jan 1997

From Black And White To High Definition Equal Protection, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


Exploring The Dark Matter Of Judicial Review: A Constitutional Census Of The 1990s, Seth F. Kreimer Jan 1997

Exploring The Dark Matter Of Judicial Review: A Constitutional Census Of The 1990s, Seth F. Kreimer

Faculty Scholarship at Penn Law

Most debate about the power of judicial review proceeds as if courts primarily invoke the Constitution against the considered judgment of elected legislatures; most constitutional commentary focuses on confrontations between the United States Supreme Court and state or federal legislatures. In fact, the federal courts most often enforce constitutional norms against administrative agencies and street-level bureaucrats, and the norms are enforced not by the Supreme Court but by the federal trial courts. In this Article, Professor Kreimer surveys this "dark matter" of our constitutional universe.

The Article compares the 292 cases involving constitutional claims decided by the Supreme Court during ...


The Unitary Executive During The First Half-Century, Steven G. Calabresi, Christopher S. Yoo Jan 1997

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

Faculty Scholarship at Penn Law

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 ...


The Proposed Equal Protection Fix For Abortion Law: Reflections On Citizenship, Gender, And The Constitution, Anita L. Allen Jan 1995

The Proposed Equal Protection Fix For Abortion Law: Reflections On Citizenship, Gender, And The Constitution, Anita L. Allen

Faculty Scholarship at Penn Law

No abstract provided.