Law Commons^™

Reversing The Reversal Rate: Using Real Property Principles To Guide Federal Circuit Patent Jurisprudence, Paul M. Schoenhard

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Recent Trends Underscoring International Trade Commission Review Of Initial Determinations And Federal Circuit Appeals From Final Commission Determinations Under Section 337 Of The Tariff Act Of 1930, Robert A. Caplen

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The First Amendment Versus Operational Security: Where Should The Milblogging Balance Lie?, Katherine C. Den Bleyker

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Economics Of Cultural Misrepresentation: How Should The Indian Arts And Crafts Act Of 1990 Be Marketed?, Jennie D. Woltz

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Hoods Who Move The Goods: An Examination Of The Booming International Trade In Counterfeit Luxury Goods And An Assessment Of The American Efforts To Curtail Its Proliferation, Sam Cocks

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Table Of Contents - Issue 1, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

Scott V. Sandford: The Court's Most Dreadful Case And How It Changed History, Paul Finkelman

Chicago-Kent Law Review

Dred Scott, without doubt, is the most controversial case in the history of the United States Supreme Court. Unlike the controversies that surround other decisions of the Court, the controversy surrounding Dred Scott does not turn on if the outcome or Chief Justice Taney's analysis was wrong, but rather on why the outcome and Chief Justice Taney's analysis were wrong. This article focuses on the political goals Taney attempted to accomplish through his decision in Dred Scott. Though there existed reasons for Taney's belief that his decision in Dred Scott would once and for all end the political …

Thirteen Ways Of Looking At Dred Scott, Jack M. Balkin, Sanford Levinson

Chicago-Kent Law Review

Dred Scott v. Sandford is a classic case that is relevant to almost every important question of contemporary constitutional theory.

Dred Scott connected race to social status, to citizenship, and to being a part of the American people. One hundred fifty years later these connections still haunt us; and the twin questions of who is truly American and who America belongs to still roil our national debates.

Dred Scott is a case about threats to national security and whether the Constitution is a suicide pact. It concerns whether the Constitution follows the flag and whether constitutional rights obtain in federally …

Rethinking Dred Scott: New Context For An Old Case, Austin Allen

Chicago-Kent Law Review

Scholars have misunderstood the context in which Dred Scott emerged. Leading historical interpretations of the decision have relied too heavily on accounts developed by antebellum Republicans and on mid-twentieth-century legal theory. This article offers an alternative account of Dred Scott's origins and argues that the decision emerged from a series of unintended consequences resulting from the Taney Court's efforts to incorporate a Jacksonian vision of governance into constitutional law. By 1857, this effort had generated tensions that made a sweeping decision like Dred Scott nearly unavoidable. The inescapable nature of Dred Scott carries implications for constitutional theorists, especially those …

The New Fiction: Dred Scott And The Language Of Judicial Authority, Mark A. Graber

Chicago-Kent Law Review

Claims that the Justices in Dred Scott abandoned a tradition of judicial restraint rely on an anachronistic measure for judicial activism. Antebellum Justices asserted that laws were unconstitutional only when restraining state officials. Judicial etiquette, in their opinion, required more circumspection when imposing constitutional limits on a coordinate branch of the national government. Contrary to accepted wisdom, the Justices before the Civil War imposed constitutional limitations on federal power in approximately twenty cases. They did so, however, without explicitly declaring federal legislation unconstitutional. The Justices in some federal cases ignored the plain meaning of federal statutes on the ground that …

Dred Scott: Tiered Citizenship And Tiered Personhood, Henry L. Chambers Jr.

Chicago-Kent Law Review

The Dred Scott Court accepted and perpetuated the notion that our Constitution afforded multiple tiers of citizenship and multiple tiers of personhood through which different groups of citizens and different groups of persons would receive varying sets of rights. Through their language and interpretation, the Reconstruction Amendments largely resolved this issue by providing a formal equality that created a single tier of citizenship and a single tier of personhood. Though, as a formal matter, tiered citizenship and tiered personhood are unacceptable, the issue is not fully resolved as a practical matter. Tiered citizenship and tiered personhood may exist when the …

Emergence Of Equality As A Constitutional Value: The First Century, William M. Wiecek

Chicago-Kent Law Review

Equality as a constitutional value was unprecedented when it made its appearance in 1868 in the Equal Protection Clause of the Fourteenth Amendment. It reflected antebellum abolitionist ideals adopted hesitantly by Northern Republicans during Reconstruction, but these were incompatible with the expectations of most white Americans of the era, as well as with all previous American experiences. In this sense, equality was a revolutionary constitutional value. The framers of the Fourteenth Amendment intended the Equal Protection Clause and its embedded ideal of interracial equality to reverse the racist dicta of the Dred Scott opinion, to validate the Civil Rights Act …

The Last Angry Man: Benjamin Robbins Curtis And The Dred Scott Case, Earl M. Maltz

Chicago-Kent Law Review

The dissenting opinion of Justice Benjamin Robbins Curtis in Dred Scott has generally received lavish praise from commentators. Curtis is typically praised not only for his substantive conclusions, but also for his seemingly dispassionate analysis of the legal issues presented by the case. In many respects, this praise is well-deserved; Curtis's discussions of the issues of slavery in the territories and citizenship for free blacks are models of legal reasoning. However, a close analysis of other aspects of his opinion reveals that Curtis's analysis was at times distorted by his anger with the actions of Chief Justice Taney and other …

Legality And Legitimacy In Dred Scott: The Crisis Of The Incomplete Constitution, Michael P. Zuckert

Chicago-Kent Law Review

The original Constitution was incomplete in that it contained a disparity between the principles of legitimacy of the system and the legality of the institution of slavery. Political communities marked by such disharmony are beset with pressures to make the system consistent in one way or another. Such indeed was the fate of the U.S. during the antebellum era. Three typical responses arose: to make legality correspond to legality (by redefining the principles of legitimacy of the system), to make legality conform to legitimacy (by doing away with slavery), or to maintain the tension in ever more creative ways. The …

Benjamin Curtis: Top Of The List, R. Owen Williams

Chicago-Kent Law Review

Among the many brave and brilliant dissents from the Supreme Court, few are more historically significant than that of Benjamin Curtis in Dred Scott v. Sandford. Earl Maltz insists that the traditional view of Curtis as a dispassionate Justice is incorrect; Curtis is better seen as the "Last Angry Man." This paper considers the famous dissent, the man who wrote it, and the technical analysis Maltz claims as sine qua non to a proper understanding of the opinion.

Foreign Authority, American Exceptionalism, And The Dred Scott Case, Sarah H. Cleveland

Chicago-Kent Law Review

One distinctive feature of the Dred Scott decision for modern readers is the extent to which the Supreme Court Justices looked to foreign and international law in support of their decisions. The legal status of a slave who entered a free jurisdiction was a question that had been confronted by many courts at home and abroad, and international law had played an important role in American and European adjudication of slavery questions. The Justices therefore were confronted with the strikingly modern question of the extent to which U.S. law embraced, or distinguished itself from, foreign practice. Arguments from foreign and …

Searching For A Needle In A Haystack: The Constitutionality Of Police Dna Dragnets, Sepideh Esmaili

Chicago-Kent Law Review

DNA dragnets—the mass warrantless DNA testing of individuals whom authorities have neither probable cause nor reasonable suspicion to believe perpetrated a crime, but who merely live or work near a crime scene—have increasingly been used by police departments in a desperate attempt to solve puzzling crimes. The lack of success and the Fourth Amendment constitutional concerns raised by DNA dragnets, however, lead this practice to be suspect. Under the Fourth Amendment, all searches of an individual must be reasonable. The reasonableness of any search typically depends on the government obtaining a warrant prior to the search. While there are well-established …

Signed General Releases May Be Worth Less Than Employers Expected: Circuits Split On Whether Former Employee Can Sign Release, Reap Its Benefit, And Sue For Fmla Claim Anyway, Muniza Bawaney

Chicago-Kent Law Review

A circuit split has recently developed regarding the correct interpretation of 29 C.F.R. § 825.220(d), a regulation issued pursuant to the Family and Medical Leave Act of 1993, which states in pertinent part, "Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA." The Fifth Circuit correctly concluded that 29 C.F.R. § 825.220(d) bars only the prospective waiver of substantive rights under the FMLA and does not reach the post-dispute release or settlement of FMLA claims. Subsequently, the Fourth Circuit alternatively concluded that § 825.220(d) prohibits the prospective and retrospective waiver or release of both the …

On The Edge: Facing A Challenging And Uncertain Future. Elder Economic Security Standard™ For The Boston Area, Laura Henze Russell, Ellen A. Bruce, Judith M. Conahan

Gerontology Institute Publications

What is an adequate income for older adults in the Boston area to age in place? How does it vary according to their life circumstances: whether they are living alone or with a spouse, rent or own their home, drive a car or use other transportation? How do Boston area elders’ living costs change as their health status and life circumstances change? What happens if they need long-term care to keep living at home?

This report will address these questions through the development of a measure of income adequacy for older adults, the Elder Economic Security Standard (Elder Standard). The …

Data Note: The Relationship Between Supported Employment Status And Minimum Wage For Vocational Rehabilitation Integrated Employment Closures In 2004, Frank A. Smith, Dana Scott Gilmore

Data Note Series, Institute for Community Inclusion

Some VR customers earn less than minimum wage despite being closed successfully, i.e., exiting Vocational Rehabilitation (VR) services into an integrated employment setting. Section 14(c) of the Fair Labor Standards Act allows employers to pay less than the minimum wage to a person whose disability impairs their capacity to be productive at a particular job. People in supported employment are more likely to have a disability that makes them eligible for Section 14(c) minimum wage exemption. How do wages for customers in supported employment compare to those earned by other customers?

Are Credit Card Late Fees Unconstitutional?, Seana Valentine Shiffrin

William & Mary Bill of Rights Journal

State Farm Mutual Automobile Insurance Co. v. Campbell articulated serious and specific constitutional constraints upon the imposition of punitive damages. Justice Kennedy's majority opinion announced that, apart from exceptional cases, punitive damages should not exceed nine times the amount of the actual losses sustained by the plaintiff and should usually be far lower. Indeed, the opinion observed, they typically should be much lower, citing double, treble, and quadruple multipliers as "instructive" examples. Some commentators have worried that the decision could adversely affect consumer interests by offering insulation for tortious behavior that is difficult to detect or litigate. This Article will …

Embracing Chance: Post-Modern Meditations On Punishment, Bernard E. Harcourt

Public Law and Legal Theory Working Papers

No abstract provided.

Reefer Madness: Broken Windows Policing And Misdemeanor Marijuana Arrests In New York, Bernard E. Harcourt, Jens Ludwig

Public Law and Legal Theory Working Papers

No abstract provided.

Second-Order Perfectionsim, Cass R. Sunstein

Public Law and Legal Theory Working Papers

In constitutional law, first-order perfectionism represents an effort to cast the Constitution’s ideals in the best constructive light. Ronald Dworkin’s conception of law as “integrity” can be seen as a form of firstorder perfectionism. By contrast, second-order perfectionism attempts to set out an account of constitutional adjudication that is sensitive to the fallibility of federal judges. Originalism is best defended as a form of second-order perfectionism; the same can be said of Thayerism, captured in the view that judges should uphold statutes unless they are unquestionably violative of the Constitution. Minimalism, which calls for narrow, incompletely theorized judgments, is another …

Innocent Of A Capital Crime: Parallels Between Innocence Of A Crime And Innocence Of The Death Penalty, Ellen Kreitzberg, Linda Carter

Tulsa Law Review

No abstract provided.

Impact Of Richard A. Epstein, James W. Ely

William & Mary Bill of Rights Journal

Presented at the 2005 Brigham-Kanner Property Rights Conference.

Conflicting Commerce Clauses: How Raich And American Trucking Dishonor Their Doctrines, John W. Moorman

William & Mary Bill of Rights Journal

No abstract provided.

Michelman As Doctrinalist, Gregory S. Alexander

William & Mary Bill of Rights Journal

Presented at the 2004 Brigham-Kanner Property Rights Conference.

The Contradiction Between Equal Protection's Meaning And Its Legal Substance: How Deliberate Indifference Can Cure It, Derek W. Black

William & Mary Bill of Rights Journal

This Article highlights the inherent ambiguities of racial antidiscrimination's core legal language: "equal protection under the law" and "discrimination based on race." It then analyzes how and why the Court has never answered fundamental questions regarding the meaning of these terms. Thus, this Article answers these fundamental questions itself by exploring the original intent behind the Equal Protection Clause. Against this backdrop, this Article reveals how the Court's standard for assessing discrimination claims, the intent doctrine, assumes a meaning for equal protection that is inconsistent with its original meaning. Rather than reflecting equal protection's meaning, the standard lacks any basis …

E-Lawyering, The Aba's Current Choice Of Ethics Law Rule & The Dormant Commerce Clause Invalidates Model Rule 8.5(B)(2) When Applied To Attorney Internet Representations Of Clients, Michael W. Loudenslager

William & Mary Bill of Rights Journal

The Internet is becoming the primary manner in which some attorneys serve clients. States have already taken differing views on whether it is acceptable for an attorney to engage in electronic representations of clients. Thus, determining what jurisdiction's law applies to such attorney conduct can be very important in deciding whether this activity constitutes the unauthorized practice of law and, if not, determining the exact duties of an attorney in such representations. This Article argues that the current version of Model Rule of Professional Responsibility 8.5(b), which governs choice of ethics law, can be interpreted to apply the legal ethics …