Law Commons^™

Whether Foreigner Or Alien: A New Look At The Original Language Of The Alien Tort Statute, M. Anderson Berry

M. Anderson Berry

Until now, the word that puts the ‘A’ in ATS has been completely overlooked. No court or commentator has delved in to the 1789 meaning of “alien,” or to the drafters' understanding of and possible intentions behind that word.

In the Supreme Court’s only opinion regarding the Alien Tort Statute, Sosa v. Alvarez-Machain, the Court unanimously agreed that although the first House of Representatives modified the Senate’s draft of what eventually became the Judiciary Act of 1789, it made hardly any changes to the provisions on aliens, including what became the ATS. The Court did not point out any of …

On The Formation Of The American Corporate State: The Fuller Supreme Court, 1888-1910, George Skouras

George Skouras

This paper deals with the formation and legitimation of the American Corporate State by the Fuller Supreme Court. It argues that the Fuller Court was wrong to use the Due Process Clause of the 14th Amendment and natural law to support laissez-faire capitalism and the emergent corporate structure at the expense of labor and labor unions. It also argues that the corporatization of America has created a social and cultural environment that places business as the center of the American universe. This has led to a very asymmetrical relationship between corporations and citizens. It further argues that recent revisionist scholarship …

The Thirteenth Amendment As A Model For Revolution, Sandra L. Rierson

Sandra L Rierson

To date, the United States has experienced only a handful of successful revolutionary movements. The first was the American Revolution itself. Although the original colonies’ war of independence and the resulting creation of a democratic republic was assuredly a revolution, it was incomplete in at least one major respect: it failed to resolve the fundamental conflict between the aspiration of freedom and the reality of slavery. Moreover, the bargains made and compromises struck at the time of the Revolution and as embodied within the Constitution neither encouraged nor enabled a course of gradual abolitionism, as the Founders purportedly hoped. Instead, …

Outfoxed: Pierson V. Post And The Natural Law, Josh Blackman

Josh Blackman

Think back to first year property class. You are a bright-eyed 1L, and one of the first cases you read deals with hunting foxes on the beaches of Long Island, New York. The fact pattern seems obscure enough, but Pierson v. Post is the seminal case used to teach generations of law students about the acquisition of property. The interest in Pierson has recently been reinvigorated thanks to the uncovering of the original record of this case. Last year the Law and History Review dedicated an entire issue to this famous foxhunt. The holding in Pierson v. Post has been …

Protecting Pocahontas's World: The Mattaponi Tribe's Struggle Against Virginia's King William Reservoir Project, Allison M. Dussias

Allison M Dussias

This article examines the efforts of the Mattaponi Tribe of Virginia to combat an environmentally destructive reservoir project that threatened sacred and archaeological sites and implicated tribal treaty rights, including fishing rights. The Tribe opposed the project through both the federal and state administrative approval process and litigation. The dispute over the reservoir highlights the difficulties that tribes have faced historically, and continue to face today, as they try to protect their rights to land, water, and subsistence resources.

Voluntary Client Testimony As A Privilege Waiver: Is Ohio's Law Caught In A Time Warp?, David B. Alden, Matthew P. Silversten

David B. Alden

Ohio’s attorney-client privilege statute, Ohio Rev. Code § 2317.02(A), has been interpreted to provide for a broad waiver of the attorney-client privilege whenever the client testifies voluntarily, including when the client’s testimony does not disclose the substance of the otherwise privileged communications. Finding a privilege waiver under these circumstances is virtually unique to Ohio. This article (1) traces the origins of this rule back to Ohio’s first code of civil procedure, which was enacted in 1853, (2) identifies the long-forgotten reasons that prompted its adoption; (3) analyzes decisions that have applied it from the mid-nineteenth century through today; (4) assesses …

The Image Of The Attorney: The Character Of Attorney Randolph Mason In Three Books By Melville Davisson Post, Patricia J. Brown

Patricia J Brown

Summary In 1896 a young attorney practicing in West Virginia, Melville Davisson Post, wrote a book entitled The Strange Schemes of Randolph Mason. His stated mission in this book was to invent a new type of story to compete with the currently popular genre of the detective story. His stories would show how a criminal, even if detected, could escape punishment by using loopholes and schemes available in the law. The criminal, not always able to find these loopholes himself, would be guided by a legal misanthrope, an attorney named Randolph Mason. Post wrote two books using this motif and …

Russia & Legal Harmonization: An Historical Inquiry Into Ip Reform As Global Convergence And Resistance, Boris N. Mamlyuk

Boris Mamlyuk

This Article examines several waves of intellectual property (IP) regulation reform in Russia, starting with a specific examination into early Soviet attempts to regulate intellectual property. Historical analysis is useful to illustrate areas of theoretical convergence, divergence and tension between state ideology, positive law, and “law in action.” The relevance of these tensions for post-Soviet legal reform may appear tenuous. However, insofar as IP enforcement has been one of the largest hurdles for Russia’s prolonged accession to the WTO, these historical precedents may help to explain the apparent theoretical or political disconnect between the WTO and Russia. If Russian policymakers …

Making Sense Of State Action, Lauren E. Tribble, John Dorsett Niles, Jennifer N. Wimsatt

Lauren E. Tribble

Perhaps no question of constitutional law is more fundamental than whether the Constitution applies. The Bill of Rights, Fourteenth Amendment, and Fifteenth Amendment protect individuals’ rights from invasion by the state, but they do not protect against private action. Separating “state action” from “private action” thus poses a critical constitutional question, and it is one with which the U.S. Supreme Court has grappled more than seventy times since 1883. Unfortunately, the Court’s state-action rulings provide something less than a model of clarity. Many rulings seem inconsistent, and issues of first impression frequently have created new lines of precedent that speak …

Ending The Korematsu Era: A Modern Approach, Craig Green

Roger Craig Green

This Article seeks to transform how readers think of Korematsu v. United States, thereby offering a more accurate view of the past and stronger barriers against presidential abuse. Korematsu is conventionally listed among the worst cases in American law, but its wrongness is understood far too narrowly. If Korematsu were just a case about racist internments, it would be a truly unique blot in Supreme Court history: powerfully mistaken but almost completely irrelevant to modern legal disputes.

Despite Korematsu’s extraordinary facts, the case stands in a thematic cluster of cases from World War II that I will call the “Korematsu …

The Rise Of The Corporation, The Birth Of Public Relations, And The Foundations Of Modern Political Economy, Donald J. Smythe

Donald J. Smythe

The rise of the modern corporation was an integral part the Second Industrial Revolution. This important economic and social transformation would not have occurred if business firms had been unwilling to make the large investments necessary to implement the new technologies that drove the industrial growth and development, and business firms would have been reluctant to make the investments without the shield of limited liability and the opportunity to spread their risks across diversified portfolios of corporate stocks. Nonetheless, the rise of the modern corporation created problems. The most successful corporations grew to unprecedented proportions, and the public’s concerns about …

Self-Conscious Dicta: The Origins Of Roe V. Wade's Trimester Framework, Randy Beck

Randy Beck

One of the controversies arising from Roe v. Wade (1973) has concerned whether the conclusions undergirding the opinion's “trimester framework” should be considered part of the holding of the case, or instead classified as dicta. Different Supreme Court opinions have spoken to this question in different ways. This article reviews materials from the files of Justices who participated in Roe, seeking insight as to what the Court thought about the issue at the time.

The article concludes that Justices in the Roe majority understood the opinion’s trimester framework to consist largely of dicta, unnecessary to a ruling on the constitutionality …

The Good, The Law, And The Municipal Ideal - An Integrative Developmental View Of The Case Of The Speluncean Explorers And The Crisis Of Meaning In Western Jurisprudence, Sean S. Yang

Sean S Yang

For centuries, law had been understood as something sacred, transcendent, a set of righteous directives emanating from a divine authority. Less than three hundred years ago, something strange happened. A handful of humans began to think a new type of thought: they conceived the law as a self-contained system understandable on its own terms, its merit determined only by its consistency with "reason," the correctness and supremacy of which was self-evident. Less than one hundred years ago, something even stranger occurred: another handful of humans directed their attention to thought itself and began creating knowledge about knowledge, writing language about …

Rape On The Washington Southern: The Tragic Case Of Hines V. Garrett, Michael I. Krauss

Michael I Krauss

Virginia's most important Proximate Causation case turns out also to be a revealing case study of government regulation, of women's rights and of race relations in the Old Dominion. After considerable original research, this article presents the "rest of the story." This article will become, we think, an important contribution both to Tort theory, to American legal history and to the history of Washington, DC and of Virginia.

Dostoevsky V. The Judicial Reforms Of 1864: How And Why One Of 19th Century Russia’S Greatest Writers Mercilessly Criticized The Nation’S Most Successful Reform, Brian Sc Conlon

Brian SC Conlon

The legal reforms of 1864 marked a shift in Russian legal culture from an amorphous, corrupt, pre-modern system of procedure, structure and customary law to an independent, modern and westernized system as liberal as any nation of Europe or North America. These reforms were nearly universally lauded by legal and cultural critics, both at the time they were introduced and in historical accounts. Despite the apparent necessity and success of the new courts, one of the leading figures in 19th Century Russian literature (and indeed the history of world literature), Fyodor Mikhailovich Dostoevsky, continually criticized the new system in both …

The Lavender Letter: Applying The Law Of Adultery To Same-Sex Couples And Same-Sex Conduct, Peter Nicolas

Peter Nicolas

In this manuscript, I examine the question whether the law of adultery applies to same-sex extramarital conduct, which has divided courts nationwide. While the case law to date has been sparse—since the issue has only arisen in the context of opposite-sex marriages in which one spouse has an extramarital same-sex relationship—with the growth in the number of states recognizing same-sex marriage, the question is certain to recur with increased frequency.

In the manuscript, I examine the question in four different contexts: criminal adultery prosecutions, fault-based divorce actions, civil tort actions for interference with the marital relationship, and murder cases raising …

In The Name Of Watergate -- Returning Ferpa To Its Original Design, Meg Penrose

Meg Penrose

The attached article, entitled "In the Name of Watergate: Returning FERPA to its Original Design" details the Watergate effect on federal privacy legislation, particularly the Family Educational Rights and Privacy Act (FERPA). Senator James L. Buckley, a one-term Senator from New York, served as the architect for what remains the most important education privacy law in existence. However, Senator Buckley recently discussed the reasons that this law should be "clarified" and returned to its original design. I wholeheartedly agree. In the digital era, we must zealously protect privacy with effective legislation that guards both the collection and release of personal …

The Invading Waters: Climate Change Dispossession, State Extinction, And International Law, Jared D. Hestetune

Jared D Hestetune

The level of the sea is inevitably rising. Even the conservative estimates of the IPCC portray a dire future for low-lying island nations such as the Republic of Maldives. The future of an inundated state bodes ill for Maldives's continued participation in international relations. This essay analyzes the possibility of the persistence of a state after its territory has been submerged and destroyed, and it comes to the unfortunate conclusion that a submerged state will de facto become extinct in international law. Thus, entire nationalities will disappear, which likely consequence is strong motivation to protect the human right of national …

Are Muslims The New Catholics? Europe's Headscarf Laws In Comparative Historical Perspective, Robert Kahn

Robert Kahn

ABSTRACT: Many European opponents of the headscarf view themselves as engaged in a “struggle against totalitarianism.” This article explores an alternative framing: What if Muslims—rather than Nazis or Communists in training—are the more like nineteenth century Catholics, who were seen as a religious threat to European (and U.S.) liberalism? To explore this idea, this article looks at the headscarf debate through the lens of the German Kulturkampf (1871-1887) and nineteenth century U.S. laws that banned public school teachers from wearing clerical garb. It reaches two tentative conclusions. First, many of the claims made against European Muslims—especially about the “backward” nature …

Strategic Pragmatism Or Radical Idealism?: The Same-Sex Marriage And Civil Rights Movements Juxtaposed, Kathryn L. Marshall

Kathryn L Marshall

Within the debate over the most effective strategy for achieving social change, there remains a significant divide between those who argue in favor of pushing for immediate and full equality and those who favor a more incremental approach. Indeed, this debate is looming large over the current struggle to achieve same-sex marriage rights nationwide. In this Article, I suggest that the unique political and social landscape within which the same-sex marriage movement is unfolding has important implications for the way in which the struggle can most effectively proceed. To illuminate the importance of this individualized approach, I compare the same-sex …

The United States Are But One Country: A Short History Of Grammar And Liberty, Charles R. Gardner

Charles Gardner

This legal essay traces the conversion of “the United States” from a plural to a singular noun in United States Supreme Court decisions, in presidential proclamations and inaugural addresses, in diplomatic correspondence and in public discourse. It did not happen with a bang at the end of the Civil War, but with a whimper at the beginning of the twentieth century.

Today, at the beginning of the twenty-first, the singularity of humanity, for which that conflagration was allegedly fought, still eludes us. It is that latter singularity that inspires and organizes this essay.

Not until the digital age was it …

Who Let The Dog Out?: On The British Roots Of American Bounty Hunting, Brian K. Pinaire

Brian K. Pinaire

This Essay provides the first-ever scholarly investigation of the origins of “bounty hunting” as the practice exists in the United States. With an historical focus on British policies instituted around the turn into the eighteenth century, I argue that the scheme of regularized rewards for the arrest and prosecution of alleged criminal offenders constitutes the “roots” of American bounty hunting. This early system, whose practitioners were referred to as “thief-takers,” formalized and legitimized the notion of incentivized pursuit of “fugitives” and—while eventually phased out in Britain—provides the historical and conceptual parallel for the for-profit, private sector-level apprehension of individuals wanted …

Present At The Creation: The 1910 Big Burn And The Formative Days Of The U.S. Forest Service, Michael Blumm

Michael Blumm

This is a book review of Timothy Egan's "The Big Burn: Teddy Roosevelt and the Fire That Saved America."

Marriage And Law Reform: Lessons From The Nineteenth Century Michigan Married Women’S Property Acts, Ellen Dannin

Ellen Dannin

If law reform had the neat trajectory of a bullet from a smoking gun, life and law would be neater – but less interesting. This article began as a simple empirical study to test whether Michigan’s 1844 Married Women’s Property Act affected conveyancing.

When the results showed that it had no effect – that married women were included as grantors even before the MWPA made it legal for them to own property – the study expanded into a quest to identify the processes that led to its enactment and explained its operation on the family, a fundamental social institution. In …

The Supreme Appointment: Visionaries Need Not Apply, Charles W. Rhodes

Charles W Rhodes

The recent announcement of Justice John Paul Stevens that he would retire at the end of the October 2009 Term has instigated the typical media frenzy of shortlists and speculation regarding the identity of the next nominee to the United States Supreme Court. Will President Barack Obama make a bold nomination of a liberal judicial visionary to battle Justices Scalia and Thomas? Will he nominate a political officeholder who will bring a new perspective on the role of the Court? Or will he follow the recent tradition of nominating a sitting federal appellate court judge with a prestigious academic and …

The Vitality Of The American Sovereign, Todd E. Pettys

Todd E. Pettys

In this book review, I examine Christian Fritz's "American Sovereigns: The People and America's Constitutional Tradition Before the Civil War." I dispute Fritz's claim that Americans today have essentially ceded their sovereign prerogatives to government officials. Contrary to Fritz's suggestion, ordinary Americans do still sometimes intervene directly in day-to-day governmental affairs in ways that are unauthorized by their elected leaders, and they do alter their constitutional landscape by means other than those formally authorized by Article V. Americans have determined that their long-term interests are often best served by manifesting their sovereign desires through extended interactions with government officials and …

Legal Dimensions Of A Control Framework: Law And The Arab-Palestinian Minority In Israel's First Three Decades (1948-1978), Ilan Saban

ilan saban

The article sets out to analyze the main ways in which Israeli Law was involved in the lives of Israel's Arab-Palestinian minority in the first thirty years of Israeli statehood – from its establishment in 1948 until the period circa the first Land Day, 1976. This is a detailed and complex story, which needs a theoretical key that will explain and sort out the abundance of data by relevancy and importance. The potential theoretical contribution of the article derives from the effort to develop such a theoretical/analytical key, and from the effort to gain more understanding of the ways in …

Tolerance And Rule Of Law: Lessons From Imperial Governance, Seongjo An

SEONGJO AN

Tolerance and Rule of Law : - Lessons from Imperial Governance - What is the condition that can make an empire socially and politically integrated and thus prosper for a long time? It is not easy to answer quickly for this question. This paper analyzes the book “Day of Empire” written by Amy Chua three years ago which submitted an answer for this question. The core thesis of “Day of Empire” is that every world-dominant empire was by the standards of its time, extraordinarily pluralistic and tolerant during its rise to preeminence for all their enormous differences. According to Amy …

Tolerance And Rule Of Law: Lessons From Imperial Governance, Seongjo An

SEONGJO AN

Tolerance and Rule of Law : - Lessons from Imperial Governance - What is the condition that can make an empire socially and politically integrated and thus prosper for a long time? It is not easy to answer quickly for this question. This paper analyzes the book “Day of Empire” written by Amy Chua three years ago which submitted an answer for this question. The core thesis of “Day of Empire” is that every world-dominant empire was by the standards of its time, extraordinarily pluralistic and tolerant during its rise to preeminence for all their enormous differences. According to Amy …

Tolerance And Rule Of Law: Lessons From Imperial Governance, Seongjo An

SEONGJO AN

What is the conditon that can make an empire socially and politically integrated and thus prosper for a logn time? It is not easy to answer quickly for this question. This paper analyzes the book “Day of Empire” written by Amy Chua three years ago which submitted an answer for this question. The core thesis of “Day of Empire” is that every world-dominant empire was by the standards of its time, extraordinarily pluralistic and tolerant during its rise to preeminence for all their enormous differences. According to Amy Chua, “indeed, in every case tolerance was indispensable to the achievement of …