Law Commons^™

Preconstitutional Federal Power, Matthew L.M. Fletcher

Matthew L.M. Fletcher

In two fields of constitutional law, the Supreme Court has acknowledged that the federal government may possess preconstitutional power, or national authority derived not from the Constitution but from the very fact of sovereignty. This Article analyzes the two areas of law – the Foreign Affairs Power and the Indian Affairs Power – and assesses their viability in future cases. The case recognizing a preconstitutional Foreign Affairs Power resting with the Executive branch, United States v. Curtiss-Wright Export Corp., suffers from poor historical reasoning and has little precedential weight in modern foreign affairs cases, but has never been overruled. The …

State Habeas Relief For Federal Extrajudicial Detainees, Todd E. Pettys

Todd E. Pettys

I argue that the Court’s nineteenth-century rulings in Ableman v. Booth and Tarble’s Case marked a little-known but sharp break with state courts’ decades-long practice of granting habeas relief to federal extrajudicial detainees. I contend that the Court’s reasoning in those cases is unpersuasive, and that modern efforts to rationalize those cases’ outcomes fare no better. I also argue that the Suspension Clause bars Congress from stripping state courts of their power to grant habeas relief to persons being extrajudicially detained by federal authorities.

Mississippi River Stories: Lessons From A Century Of Floods And Hurricanes, Sandra Zellmer, Christine Klein

Sandi Zellmer

n the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a “manmade” disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood …

The All-Woman Texas Supreme Court: The History Behind A Very Brief Moment On The Bench, Alice G. Mcafee

Alice G. McAfee

On the surface, there is nothing particularly noteworthy about the case of Johnson v. Darr, and, in fact it was not the merits of the case that made the headlines. It was the makeup of the tribunal. Long before women in Texas were even granted the right to serve on juries and before any woman ever served as a judge on any of the lower Texas courts, the judges appointed to hear the case of Johnson v. Darr were all women. This was the first time a woman was appointed in any capacity to serve on the Texas judiciary and …

Crawford’S Aftershock: Aligning The Regulation Of Non-Testimonial Hearsay With The History And Purposes Of The Confrontation Clause, Fred O. Smith

Fred O. Smith Jr.

This Article explores what the purposes, history and text of the Confrontation Clause have to say about the admission of non-testimonial hearsay statements. Part I examines historical sources such as the common law near the Founding, as well as the text of the clause, and concludes that non-testimonial hearsay was one of the ills that the Confrontation Clause was designed to protect. Part I additionally proposes a two-tiered approach to interpreting the Confrontation Clause, in which testimonial statements receive the most vigorous form of constitutional scrutiny, but non-testimonial statements receive meaningful scrutiny as well. The United States Constitution is no …

Preventive Tax Policy: Chief Justice Roger J. Traynor's Tax Philosophy, Mirit Eyal-Cohen

Mirit Eyal-Cohen

Justice Roger J. Traynor is best known for his judicial innovations in the fields of conflict of laws, product liability, and civil procedure. However, few would trace Traynor’s roots to the field of tax law. In the late 1930’s Traynor collaborated with Stanley S. Surrey, our nation's foremost authorities on federal tax law, and together they called for a substantial transformation of existing mechanisms for settling tax disputes. At that crucial time in history, high marginal tax rates intensified the friction between taxpayers and the government, boosted litigation and multiplied the number of tax controversies. Traynor and Surrey developed the …

Base Wretches And Black Wenches: A Story Of Sex And Race, Violence And Compassion, During Slavery Times, Jason A. Gillmer

Jason A Gillmer

This Article examines in detail the local and trial records of a nineteenth-century Texas case to tell the story of a white slave master who had a thirty-year relationship with a female slave. This is a story of complexities and contradictions, and it is a story designed to add depth and detail to our current assumptions about the content of sex between the races during slavery times. Indeed, through these local records—a source traditionally underused by legal historians—the Article provides us with a pathway into the consciousness of ordinary people, and suggests a world with much more flexibility and fluidity …

The Debate Over An Economic Interpretation Of The Constitution: Where Has Beard Taken Us And Where Are We After Mcguire’S “New” Interpretation?, Joseph Silvia

Joseph Silvia

The Debate over an Economic Interpretation of the Constitution: Where has Beard taken us and where are we after McGuire’s “New” Interpretation? Since 1913, developing a complete analysis on the creation of the American Constitution necessarily requires a thorough consideration of economics. Until Charles A. Beard published his An Economic Interpretation of the Constitution of the United States (1913), the standard account of the Founding Era was that the Framers acted out of idealism – a disinterested, public-regarding impulse to promote democratic ideals for which the Revolution was fought and the American Republic was founded. Beard challenged this idealistic view …

"A Bulwark Against Anarchy": Affirmative Action, Emory Law School, And Southern Self-Help, William B. Turner

William B Turner

This article presents archival evidence about Pre-Start, Emory Law School’s affirmative action program from 1966 to 1972. It places that evidence into the context of current legal and scholarly debates about affirmative action in law school admissions and demonstrates that Pre-Start is an extremely important case study for anyone who wishes to think carefully about this important topic. I perform post-hoc strict scrutiny on Pre-Start, showing that it meets, not only the standard of the majority in Grutter v. Bollinger (539 U.S. 306 (2003)), but even the much more exacting standard of dissenting Justice Clarence Thomas. Because white supremacists are …

The Colonel's Finest Campaign: Robert R. Mccormick And Near V. Minnesota, Eric B. Easton

Eric B Easton

This paper documents the collaboration between The Chicago Tribune’s Robert McCormick and attorney Weymouth Kirkland to mobilize the press to carry Near v. Minnesota to the Supreme Court. In an earlier paper, I demonstrated how the press acts as “strategic litigator” to shape the legal environment in which reporters and editors practice their craft. The collaboration discussed in this article established the precedent for monitoring litigation that implicates First Amendment values and deciding whether, when, and how to intervene.

Presidential Power In Comparative Perspective: The Puzzling Persistence Of Imperial Presidency In Post-Authoritarian Africa, Kwasi H. Prempeh

H. Kwasi Prempeh

One of the paradoxes of modern democratic government is the phenomenon of the chief executive who rules without regard to formal checks and balances. As democratic institutions and constitutional government have spread to regions of the world once dominated by authoritarian regimes, a longstanding feature of the ancien régime—the imperial presidency—has persisted. While constitutional scholars have shown a great deal of interest in new constitutional courts in the world’s newest democracies, the contemporaneous phenomenon of persistent imperial presidency has been largely ignored. Although relatively little attention has been paid to it in comparative constitutional discourse, Africa, too, has witnessed, since …

"A Bulwark Against Anarchy": Affirmative Action, Emory Law School, And Southern Self-Help, William B. Turner

William B Turner

This article presents archival evidence about Pre-Start, Emory Law School’s affirmative action program from 1966 to 1972. It places that evidence into the context of current legal and scholarly debates about affirmative action in law school admissions and demonstrates that Pre-Start is an extremely important case study for anyone who wishes to think carefully about this important topic. I perform post-hoc strict scrutiny on Pre-Start, showing that it meets, not only the standard of the majority in Grutter v. Bollinger (539 U.S. 306 (2003)), but even the much more exacting standard of dissenting Justice Clarence Thomas. Because white supremacists are …

Background Principles And The Rule Of Law: Fifteen Years After Lucas, James L. Huffman

James L. Huffman

Abstract

The Supreme Court’s 1992 decision in Lucas v. South Carolina Coastal Council was welcomed by property right advocates. Justice Scalia’s opinion for the Court established a categorical taking where all economic value is lost as a result of regulation. Not surprisingly, advocates of unconstrained environmental and land use regulation were dismayed, although many were quick to suggest (hopefully) that Lucas’s impacts would be minimal since most regulations do not destroy all economic value.

Fifteen years later some who saw only dark clouds on the regulatory horizon as a consequence of Lucas now see a rainbow with a pot of …

Domesticity And The Texas Community Property System, Lauren F. Redman

Lauren F Redman

This paper addresses whether the Texas community property system, which was designed to be in direct opposition to the common law coverture system, insulates women from the problems inherent in domesticity.

Putting The Corporation In Its Place, Ron Harris, Timothy Guinnane, Naomi R. Lamoreaux, Jean-Laurent Rosenthal

Ron Harris

This article challenges the idea that the corporation is a globally superior form of business organization and that the Anglo-American common-law is more conducive to economic development than the code-based legal systems characteristic of continental Europe. Although the corporation had important advantages over the main alternative form of organization (partnerships), it also had disadvantages that limited its appeal to small- and medium-sized enterprises (SMEs). As a result, when businesses were provided with an intermediate choice, the private limited liability company (PLLC) that combined the advantages of legal personhood and joint stock with a flexible internal organizational structure, most chose not …

Originalism And The Problem Of Fundament Fairness, R. George Wright

R. George Wright Professor

Originalism is perhaps the most prominent theory of how to interpret the Constitution. Originalism, however, rests upon a process of constitutional drafting and ratification that systematically excluded important demographic groups. Originalism thus rests on a fundamental injustice. Crucially, this fundamental injustice is not confined to the past once the various excluded groups gain the franchise. Originalist theories remain crucially tainted and skewed, particularly with respect to constitutional questions on which originally excluded groups had interests diverging from those of non-excluded groups. The continuing effects of the fundamental unfairness of the constitutional drafting and ratifying process are explored through considering the …

Large-Scale Disasters Attacking The American Dream: How To Protect And Empower Homeowners And Lenders, Matthew D. Ekins

Matthew D Ekins

The 2005 hurricane season reminded the world that such catastrophes can and do occur anywhere at anytime. Recovery efforts continue long after tides recede and after-shocks cease. In the context of Hurricane Katrina, this article examines the homeowner-lender relationship to determine risks natural disasters pose to the mortgage industry, likely repercussions a fallout in the mortgage industry may have on the health of the general economy, and what preventative steps have been and may be taken to prevent further economic suffering in a post-catastrophe environment.

Misguided Fairness? Regulating Arbitration By Statute: Empirical Evidence Of Declining Award Finality, Michael H. Leroy

Michael H LeRoy

The Federal Arbitration Act (FAA) created a national policy that promotes arbitration. Congress passed this law to end judicial hostility to arbitration. So far, no one has questioned this premise. My Article shows, however, that nineteenth century courts enforced arbitrator awards, even those that failed to conform to “technicalities and niceties.” Acting on the mistaken advice that judges excessively interfere with arbitration, Congress enacted a law that transfers oversight of arbitration from the judiciary to legislatures.

This change is affecting how court reviews arbitrator awards. I collected data in 426 federal and state court rulings in employment disputes from June …

Letters Of "His Excellency": Constructing Washington's Road To The Constitutional Convention, Geoffrey C. Dietrich

Geoffrey C Dietrich

No abstract provided.

Successful Stories And Stories Of Success: Reflections On The History Of The Law And Economics Movement, Nimrod H. Aviad

Nimrod Haim Aviad

This paper joins a handful of attempts to understand the Law & Economics movement’s success in American legal academia. Adopting an historical perspective, the paper analyzes for the first time the movement’s own stories of success, developed and maintained by the movement’s own members, and considers them as a possible blue-print for success in contemporary legal academia. By following these stories of success, one comes to understand the keen ability of the movement’s economists and lawyer-economists to identify those patterns of academic practice which would eventually grant them the paramount academic capital that they have enjoyed over the last thirty …

The Twilight Of The Opera Pirates: A Prehistory Of The Exclusive Right Of Public Performance For Musical Compositions, Zvi S. Rosen

Zvi S Rosen

The exclusive right of public performance of a musical composition now brings to composers and songwriters revenue of approximately one billion dollars a year in the US alone. However, this right was not firmly established until a century after America’s first copyright statute, relying until then on the common-law principles that protected unpublished works. The first effort to create this right by statute was the Ingersoll Copyright Bill, an omnibus revision in 1844 which died quickly in committee. After that 50 years passed, and in the final quarter of the nineteenth century the need for statutory protection for public performance …

Forgetting Lochner In The Journey From Plan To Market: The Framing Effect Of The Market Rhetoric In Market-Oriented Reforms, Joel M. Ngugi

Joel M Ngugi

Since the 1980s the developing world has been undergoing a transition styled by the World Bank as a journey from “Plan” to “Market.” This article argues, first, that rhetorically, this transition parallels a transition described by Legal Anthropologist, Henry Sumner Maine more than a century ago, as a progressive movement from “Status” to “Contract.” Second, the article demonstrates that this transition has been accompanied by a Lochnerian vision of management of the relationship between the state and the market. This vision obscures settled “lessons” about the role of and interaction between the state and the market in the service of …

Litigating The Meaning Of Emancipation: Reconstruction And Post Reconstruction Era Dilemmas Of Freed People And Property, Julie Novkov

Julie Novkov

This article explores how the southern courts managed the policy question of transferring property by bequest in the wake of the Civil War and emancipation. In the years when the infrastructure for Jim Crow was being assembled, many freedmen and freedwomen were able to gain access to property by bequest despite the system’s refusal to endorse broad based land reform. I argue, nonetheless, that these cases carried through a tradition of white patriarchal control of property, rather than heralding the uncertain dawn of a new era of racially egalitarian property rights.

Where Lies The Emperor's Robe? An Inquiry Into The Problem Of Judicial Legitimacy, Gregory C. Pingree

Gregory C. Pingree

Gregory C. Pingree Article Abstract

Where Lies the Emperor’s Robe?

An Inquiry Into The Problem of Judicial Legitimacy

Today the American judiciary is, by any reasonable assessment, under attack. In politicians’ pious calls for religious retribution in response to controversial judicial decisions (e.g., in the Terri Schiavo case); in recent state ballot initiatives calling for “Jail-4 Judges” who don’t render decisions ideologically satisfactory to some groups; in the embattled and nearly intractable confirmation process for federal judges; and certainly in the wake of Bush v. Gore, which left many Americans convinced that the judiciary is not the impartial branch it …

The Art Of Malice, Bruce A. Antkowiak

Bruce A Antkowiak

Synopsis: The Art of Malice The Art of Malice seeks to synthesize history, poetry, psychology and the law of murder to expose a serious and fundamental error in the criminal justice system. This error occurs in the most serious kind of case (criminal homicide) and at the critical moment of that case when the jury looks to the judge to advise them on the law they must apply. At that moment, they are misled into believing that they may infer the wonderfully complex concept of malice from the mere fact that the killer used a deadly weapon to commit the …

Explaining The Spread Of At-Will Employment As An Inter-Jurisdictional Race-To-The-Bottom In Employment Standards, Richard A. Bales

Richard A. Bales

The at-will employment rule often is attributed to Horace Gay Wood, who described the rule in an 1877 treatise. Over the next forty years, the rule was judicially adopted in most American states. How and why the rule spread, however, has been the subject of considerable academic debate.

This essay argues that the underindustrialized states first adopting the at-will rule likely did so as a means of attracting capital. In any event, and more importantly, this essay argues that once the first underindustrialized states adopted the rule, other underindustrialized states would have been compelled to adopt the rule to remain …

No Right To Respect: Dred Scott And The Southern Honor Culture, Cecil J. Hunt

Cecil J. Hunt II

Article Abstract: No Right to Respect: Dred Scott and the Southern Honor Culture; by Professor Cecil J. Hunt, II This article reflects on the 150th anniversary of the infamous decision in Dred Scott v. Sanford, 19 How. (60 U.S.) 393 (1857) in which the Supreme Court of the United States upheld the constitutionality of slavery. This essay is part of the considerable national effort by all of the constituencies in the American legal community to reflect on this infamous case and consider the distance the nation has come since it was decided as well as its continuing legacy on the …

The Art Of Malice, Bruce A. Antkowiak

Bruce A Antkowiak

The Art of Malice seeks to synthesize history, poetry, psychology and the law of murder to expose a serious and fundamental error in the criminal justice system. This error occurs in the most serious kind of case (criminal homicide) and at the critical moment of that case when the jury looks to the judge to advise them on the law they must apply. At that moment, they are misled into believing that they may infer the wonderfully complex concept of malice from the mere fact that the killer used a deadly weapon to commit the crime. This instruction betrays the …

The Art Of Malice, Bruce A. Antkowiak

Bruce A Antkowiak

The Art of Malice seeks to synthesize history, poetry, psychology and the law of murder to expose a serious and fundamental error in the criminal justice system. This error occurs in the most serious kind of case (criminal homicide) and at the critical moment of that case when the jury looks to the judge to advise them on the law they must apply. At that moment, they are misled into believing that they may infer the wonderfully complex concept of malice from the mere fact that the killer used a deadly weapon to commit the crime. This instruction betrays the …

Explaining The Spread Of At-Will Employment As An Inter-Jurisdictional Race-To-The-Bottom Of Employment Standards, Richard A. Bales

Richard A. Bales

The at-will employment rule is often attributed to Horace Gay Wood, who described the rule in an 1877 treatise. Over the next forty years, the rule was judicially adopted in most American states. How and why the rule spread, however, has been the subject of considerable academic debate.

This essay argues that the underindustrialized states first adopting the at-will rule likely did so as a means of attracting capital. In any event, and more importantly, this essay argues that once the first underindustrialized states adopted the rule, other underindustrialized states would have been compelled to adopt the rule to remain …