Law Commons^™

Becoming Respectable: A History Of Early Social Responsibility In The Las Vegas Casino Industry, Jessalynn R. Strauss

UNLV Gaming Research & Review Journal

Today’s gaming corporations actively engage with their communities by supporting nonprofit organizations and adopting environmentally friendly practices among other socially responsible actions. This research considers precursors to modern corporate social responsibility (CSR) in the gaming industry by examining the philanthropic activities of the casino owners in Las Vegas in the early days of its development. This historical look at early philanthropy in the gaming industry provides a contextual background for considering contemporary corporate social responsibility. While the gaming industry has clearly come a long way from its early ties to organized crime, an understanding of this context helps further discussion …

The Global Architecture Of Financial Regulatory Taxes, Carlo Garbarino, Giulio Allevato

Michigan Journal of International Law

This Article endeavors to broaden the analysis of available policy tools to address the problems created by financial crises and discusses how, in addition to direct regulation, certain tax measures having a regulatory nature may operate to address the so-called “negative externalities” often associated with those crises. There is a negative externality when an economic agent making a decision does not pay the full cost of the decision’s consequences. In such cases, the cost to society as a whole is greater than the cost borne by the individuals creating the economic impact. In practice, negative externalities result in market inefficiencies …

Undocumented Migrants As New (And Peaceful) American Revolutionaries, Daniel Morales

College of Law Faculty

This essay situates undocumented migrants in the history of the American revolutionary period. The lawbreaking of both groups produced constructive legal and social change. For example, the masses of American revolutionaries and many of their leading men fought to rid the colonies of hereditary aristocracy. Colonists had come to cherish the proto-meritocracy that had bloomed on colonial shores and rankled at local evidence of aristocratic privilege, like the Crown’s grant of landed estates to absentee English aristocrats.Today’s equivalent hereditary aristocracy is the citizenry of wealthy democracies like the United States. Hereditary citizens use immigration restrictions to reserve the wealth and …

“To Assemble Together For Their Common Good”: History, Ethnography, And The Original Meanings Of The Rights Of Assembly And Speech, Saul Cornell

Fordham Law Review

The Whiskey Rebellion is not generally a major focus in constitutional histories or casebooks. Given this fact, it is hardly surprising that the 1795 case Respublica v. Montgomery seldom figures as more than a minor footnote in scholarly writing about early American constitutional development, if it receives any attention at all. The case has little precedential value for modern First Amendment doctrine and only obliquely implicates larger jurisprudential questions about the rights of assembly and freedom of expression. In strictly doctrinal terms, Montgomery is primarily about the obligation of a justice of the peace to put down a riot, not …

Historians And The New Originalism: Contextualism, Historicism, And Constitutional Meaning, Martin S. Flaherty

Fordham Law Review

Toward that end, this Foreword addresses three matters. First, it considers why the use of history in constitutional interpretation is inescapable. Next, it suggests that the Essays in this forum do not go far enough in debunking the idea of “public meaning” originalism as a serious alternative to previous approaches. Finally, the balance of this Foreword reviews the also perhaps inescapable misuses of history that constitutional interpretation invites and considers the type of misuse that public meaning originalism represents.

Historicism And Holism: Failures Of Originalist Translation, Jonathan Gienapp

Fordham Law Review

For as long as the U.S. Constitution has existed, Americans have appealed to the history of its creation to interpret its meaning. But only since the advent of originalism—the well-known constitutional theory that requires interpreting the Constitution today in accordance with its original meaning—has historical study been so immediately implicated by constitutional interpretation. Despite potential, though, for meaningful exchange between originalists and historians, little has taken place. That originalism plays an ever-growing role in contemporary political culture only makes the lack of dialogue all the more unfortunate.

Outsourcing The Law: History And The Disciplinary Limits Of Constitutional Reasoning, Helen Irving

Fordham Law Review

Debates about the use of history in constitutional interpretation find their primary nourishment in the originalism debate. This has generated a vast amount of literature, but also narrowed the terms of the debate. Originalism is a normative commitment wrapped in a questionable methodological confidence. Regardless of the multiple forms originalism takes, originalists are confident that the meaning (in the sense of intention) that animated the framing of the Constitution can be ascertained and, indeed, that they can ascertain it. The debate has largely focused, then, on whether modern-day scholars and jurists can ascertain original historical meaning or, alternatively, whether they …

Tone Deaf To The Past: More Qualms About Public Meaning Originalism, Jack Rakove

Fordham Law Review

With some apologies for a vast degree of oversimplification, let us stipulate that there are two main forms of originalism. One is known as “semantic” or “public meaning” originalism. Its leading advocates include Lawrence Solum, Keith Whittington, and Randy Barnett (professional friends, all). The leading premise of semantic originalism is that the meaning of the constitutional text—or, more specifically, of its individual clauses—was fixed at the moment of its adoption. Under this view, the goal of constitutional interpretation is to recover that original meaning, and the best way to do that pivots on reconstructing how an informed reader, whether a …

Lynching And The Law In Georgia Circa 1931: A Chapter In The Legal Career Of Judge Elbert Tuttle, Anne S. Emanuel

Anne S. Emanuel

Elbert Parr Tuttle joined the federal bench in 1954, shortly after the Supreme Court decided Brown v. Board of Education. In 1960, he became the Chief Judge of the United States Court of Appeals for the Fifth Circuit, the court with jurisdiction over most of the deep south. As Chief Judge, he forged a jurisprudence that proved effective in overcoming the intransigence and outright rebellion of those who had long denied fundamental constitutional rights to African Americans. This Essay traces an episode that occurred in 1931, when Tuttle spearheaded an effort to obtain a fair trial for John Downer, a …

Boston And New York: The City Upon A Hill And Gotham (2006), Shaun O’Connell

New England Journal of Public Policy

This article is about the author's experience with visiting New York during it's rebirth after 9/11. He speaks about the history of both cities and how they have each grown into their own to become places of future enterprise and cultural cohesiveness.

Reprinted from New England Journal of Public Policy 21, no. 1 (2006), article 9.

History, Governmental Structure, And Politics: Defining The Scope Of Local Board Of Health Power, Pekham Pal

Fordham Law Review

Local boards of health often issue regulations that have broad effects that surpass the borders of the city or county to which they apply. Promulgation of such rules by board of health members appointed by the executive branch implicates separation of powers concerns; because such regulations may so extensively burden a locality’s citizens, it may be more appropriate for elected officials to adopt these regulations. Indeed, local businesses or other interested parties often bring suit challenging local board of health actions. Courts apply different analytical methodologies to review these challenges, which often leads to incongruent local health agency discretion for …

Medicine As A Public Calling, Nicholas Bagley

Michigan Law Review

The debate over how to tame private medical spending tends to pit advocates of government-provided insurance—a single-payer scheme—against those who would prefer to harness market forces to hold down costs. When it is mentioned at all, the possibility of regulating the medical industry as a public utility is brusquely dismissed as anathema to the American regulatory tradition. This dismissiveness, however, rests on a failure to appreciate just how deeply the public utility model shaped health law in the twentieth century— and how it continues to shape health law today. Closer economic regulation of the medical industry may or may not …

Mandatory Arbitration In Consumer Finance And Investor Contracts, Michael S. Barr

Articles

Mandatory pre-dispute arbitration clauses are pervasive in consumer financial and investor contracts—for credit cards, bank accounts, auto loans, broker-dealer services, and many others. These clauses often ill serve households. Consumers are typically presented with contracts on a “take it or leave it” basis, with no ability to negotiate over terms. Arbitration provisions are often not clearly disclosed, and in any event are not salient for consumers, who do not focus on the importance of the provision in the event that a dispute over the contract later arises, and who may misforecast the likelihood of being in such a dispute. The …

The Keyes To Reclaiming The Racial History Of The Roberts Court, Tom I. Romero, Ii

Michigan Journal of Race and Law

This Article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today. The racial history of the Roberts Court is centrally informed by the context and …

Taking State Constitution Seriously, Marvin Krislov, Daniel M. Katz

Daniel M Katz

No abstract provided.

On The "Poverty Of Responsibility": A Study Of The History Of Child Protection Law And Jurisprudence In Nova Scotia, Ilana Luther

PhD Dissertations

This thesis presents a history of child protection law and jurisprudence in Nova Scotia. The thesis begins by examining the development of the first child protection statute in Canada, the Nova Scotia Prevention and Punishment of Wrongs to Children Act in 1882. The Act was developed amidst a climate of reform in late-19th century Halifax, at the urging of the Society for the Prevention of Cruelty to Animals. The Act, along with a number of other pieces of “domestic relations” legislation at the time, was focused on protecting children in poverty. With the passing of the Act, the legislature not …

A Postcolonial Theory Of Spousal Rape: The Carribean And Beyond, Stacy-Ann Elvy

Stacy-Ann Elvy

Many postcolonial states in the Caribbean continue to struggle to comply with their international treaty obligations to protect women from sexual violence. Reports from various United Nations programs, including UNICEF, and the annual U.S. State Department Country Reports on Antigua and Barbuda, the Bahamas, Barbados, Dominica, Jamaica, and Saint Lucia (“Commonwealth Countries”), indicate that sexual violence against women, including spousal abuse, is a significant problem in the Caribbean. Despite ratification of various international instruments intended to eliminate sexual violence against women, such as the Convention on the Elimination of All Forms of Discrimination Against Women, Commonwealth Countries have retained the …

E-Obviousness, Glynn S. Lunney Jr.

Glynn Lunney

As patents expand into e-commerce and methods of doing business more generally, both the uncertainty and the risk of unjustified market power that the present approach generates suggest a need to rethink our approach to nonobviousness. If courts fail to enforce the nonobviousness requirement and allow an individual to obtain a patent for simply implementing existing methods of doing business through a computer, even where only trivial technical difficulties are presented, entire e-markets might be handed over to patent holders with no concomitant public benefit. If courts attempt to enforce the nonobviousness requirement, but leave undefined the extent of the …

The Future As A Concept In National Security Law, Mary L. Dudziak

Pepperdine Law Review

With their focus on the future of national security law, the essays in this issue share a common premise: that the future matters to legal policy, and that law must take the future into account. But what is this future? And what conception of the future do national security lawyers have in mind? The future is, in an absolute sense, unknowable. Absent a time machine, we cannot directly experience it. Yet human action is premised on ideas about the future, political scientist Harold Lasswell wrote in his classic work The Garrison State. The ideas about the future that guide social …

Originalism As Thin Description: An Interdisciplinary Critique, Saul Cornell

Res Gestae

My essay was intended as a critique of originalism from the perspective of intellectual history. I pointed out that originalism lacked a rigorous empirical method for analyzing what texts meant in the past. I suppose in some sense it is flattering that Solum has devoted much of his recent article to an attack on my earlier essay. Of course, flattery aside, it would have been more useful if Solum had stated my thesis correctly. For purposes of clarity, I have juxtaposed Solum’s description of my argument with what my essay actually said. Readers will be able to judge for themselves …

The History Of Veterans Benefits: From The Time Of The Colonies To World War Two, Mariano Ariel Corcilli

University of Miami National Security & Armed Conflict Law Review

No abstract provided.

The Nlrb, The Courts, The Administrative Procedures Act, And Chevron: Now And Then, Theodore J. St. Antoine

Articles

Decisions of the National Labor Relations Board (NLRB), like those of other administrative agencies, are subject to review by the federal judiciary. Standards of review have evolved over time. The Administrative Procedure Act of 1946 provides that administrative decisions must be in accord with law and required procedure, not arbitrary or capricious, not contrary to constitutional rights, within an agency's statutory jurisdiction, and supported by substantial evidence. In practice, more attention is paid to two Supreme Court decisions, Skidmore (1944) and Chevron (1984). For many years Chevron seemed the definitive test. A court must follow a clear intent of Congress, …

Putting The Plug In The Jug: The Malady Of Alcoholism And Substance Addiction In The Legal Profession And A Proposal For Reform, Alexander O. Rovzar

University of Massachusetts Law Review

To members of the legal profession, and many of those familiar with it, the high rate of chemical dependency among practitioners is not a secret. Moreover, there is a strong correlation between chemically dependent attorneys and ethical violations across the nation. Over the past thirty years, the legal profession has generally dealt with the alarming amount of professional misconduct rooted in an attorney’s alcoholism or substance addiction by imposing discipline. With the exception of some state-led movements toward rehabilitating the addicted attorney, little has been done on the national level to address chemical dependency among practicing attorneys. Drawing from the …

Property Rules And Liability Rules: The Cathedral In Another Light, James Krier, Stewart Schwab

Stewart J Schwab

Ronald Coase's essay on "The Problem of Social Cost" introduced the world to transaction costs, and the introduction laid the foundation for an ongoing cottage industry in law and economics. And of all the law-and-economics scholarship built on Coase's insights, perhaps the most widely known and influential contribution has been Calabresi and Melamed's discussion of what they called "property rules" and "liability rules."' Those rules and the methodology behind them are our subjects here. We have a number of objectives, the most basic of which is to provide a much needed primer for those students, scholars, and lawyers who are …

The Sweeping Domestic War Powers Of Congress, Saikrishna Bangalore Prakash

Michigan Law Review

With the Habeas Clause standing as a curious exception, the Constitution seems mysteriously mute regarding federal authority during invasions and rebellions. In truth, the Constitution speaks volumes about these domestic wars. The inability to perceive the contours of the domestic wartime Constitution stems, in part, from unfamiliarity with the multifarious emergency legislation enacted during the Revolutionary War. During that war, state and national legislatures authorized the seizure of property, military trial of civilians, and temporary dictatorships. Ratified against the backdrop of these fairly recent wartime measures, the Constitution, via the Necessary and Proper Clause and other provisions, rather clearly augmented …

Cooperative Mineral Interest Development In The Lone Star State: It's Time To Mess With Texas, Matthew K. Trawick

Michigan Journal of Environmental & Administrative Law

Since the early discoveries of the Spindletop, King Ranch, and East Texas oil fields, the oil and gas industry has dominated the Texas economy. The industry has also played an important role in shaping state politics and culture. The oil boom of the early 1900s created thousands of jobs for ordinary workers and immense wealth for a select few. Early Texas oil barons made headlines because of their lavish lifestyles and often extreme political beliefs. Legendary wildcatter H.L. Hunt typified this oil-fueled exuberance. Hunt became one of the eight richest individuals in the United States after securing mineral rights to …

Saving Originalism, Robert J. Delahunty, John Yoo

John C Yoo

It is sometimes said that biographers cannot help but come to admire, even love, their subjects. And that adage seems to ring true of Professor Amar, the foremost “biographer” of the Constitution. He loves it not just as a governing structure, or a political system, but as a document. He loves the Constitution in the same way that a fan of English literature might treasure Milton’s Paradise Lost or Shakespeare’s Macbeth. He loves the Constitution not just for the good: the separation of powers, federalism, and the Bill of Rights. He also loves it for its nooks and crannies, idiosyncrasies, …

May 6, 2015: Iconic Picture Of Burning Silliman Hall, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Iconic Picture of Burning Silliman Hall“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Regulating The Dead: Rights For The Corpse And The Removal Of San Francisco's Cemeteries, Lance Muckey

UNLV Theses, Dissertations, Professional Papers, and Capstones

A specialized facet of American common law developed throughout the nineteenth century; that being mortuary law or the law of the corpse. This jurisprudence transferred limited property rights to dead bodies, which was a radical departure from the treatment of the dead under the English common law tradition that the United States had adopted after the American Revolution.

The dead fit into a unique category in law. Legally they do not exist and therefore have no voice. It thus falls to the state to speak for them in the form of statutes and judicial decisions, which represents a continuation of …

The X Patents: Patents Issued Under The Patent Acts Of 1790 & 1793, Robert Berry

Librarian Publications

The earliest United States patents— sometimes called “name and date patents” because they were not numbered—are distinctive in many respects. Patent specifications were not required to include claims until the Patent Act of 1870. Moreover, while the 1790 Act required a substantive examination by a Patent Board, that requirement ended with the 1793 Act, when it was deemed too burdensome. Thereafter the evaluation of the sufficiency of patent specifications was left to the courts.