Law Commons^™

American Balancing And German Proportionality: The Historical Origins, Iddo Porat, Moshe Cohen-Eliya

Iddo Porat

American Balancing and German proportionality: The Historical Origins Iddo Porat and Moshe Cohen-Eliya Abstract American and European constitutional systems have two similar doctrines: balancing and proportionality. Both resemble each other in important aspects and are often discussed in tandem. However, balancing has never attained the status of an established doctrine in American constitutional law in the same way that proportionality has in European constitutional law. Moreover, balancing has always been the subject of fierce criticism and is very much a controversial concept in American constitutional law. European proponents of proportionality are perplexed by this American resistance which is sometimes viewed …

An Intellectual History Of Judicial Activism, Craig Green

Roger Craig Green

This Article seeks to transform how readers view judicial activism. From newsrooms to confirmation hearings, judicial activism is a uniquely potent and popular epithet condemning judicial misconduct. By contrast, most legal scholars either eschew activism-talk as too vague, or they adopt unsound definitions of the term as (i) any exercise of judicial review or (ii) any unfavorable result. These trends have segregated normative debates over judicial activity, with solidly unfortunate results.

This Article reclaims the term judicial activism by exploring the concept of judicial activism that underlies it. One goal of this Article is to dispel widespread misperceptions about judicial …

John Mccain's Citizenship: A Tentative Defense, Stephen E. Sachs

Stephen E. Sachs

Sen. John McCain was born a U.S. citizen and is eligible to be president. The most serious challenge to his status, recently posed by Prof. Gabriel Chin, contends that the statute granting citizenship to Americans born abroad did not include the Panama Canal Zone, where McCain was born in 1936. When Congress amended the law in 1937, he concludes, it was too late for McCain to be "natural born." Even assuming, however, that McCain's citizenship depended on this statute - and ignoring his claim to citizenship at common law - Chin's argument may be based on a misreading. When the …

The Appropriations Power And Sovereign Immunity, Jay Tidmarsh, Paul F. Figley

Jay Tidmarsh

Historical discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence — or non-existence — of sovereign immunity begin with the English and American common-law doctrines of sovereign immunity, and ask whether the founding period altered that doctrine. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers’ Case (1690-1700), which is often regarded as the first …

Patents As Property: Conceptualizing The Exclusive Right(S) In Patent Law, Adam Mossoff

Adam Mossoff

The conventional wisdom is that the definition of patents as property has been long settled-—patents secure only a right to exclude. In exploring the intellectual history of American patent law, this Article reveals that this claim is profoundly mistaken. For much of its history, Congress and courts defined a patent in the same conceptual terms as property in land and chattels, as securing the exclusive rights of possession, use and disposition. Nineteenth-century courts explicitly used this substantive conception of patents to create many longstanding doctrines in the American patent system, such as the conveyance default rules now known as patent …

The Congressional Chaplaincies, Christopher C. Lund

Christopher C Lund

Twenty five years ago, in Marsh v. Chambers, the Supreme Court considered the congressional chaplaincies, and concluded that they were not “an ‘establishment’ of religion or a step toward establishment,” but instead were “simply a tolerable acknowledgment of beliefs widely held among the people of this country.” That latter phrase has been repeated hundreds of times in cases and law review articles; it suggests that the chaplaincies are uninteresting and uncontroversial and that they have been so throughout our history.

The Court in Marsh looked only briefly at the history of the chaplaincies. But a deeper look at that history …

Common Sense: Treating Statutory Non-Obviousness As A Novelty Issue, N. Scott Pierce

N. Scott Pierce

Title 35 of United States Code, at Section 103, limits patent protection to subject matter that would not be “obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” The requirement was introduced as a statute by the Patent Act of 1952, but, according to the legislative history, was a codification of judicial precedent. The origin of that precedent is widely attributed to the 1851 Supreme Court decision of Hotchkiss v. Greenwood, 52 U.S. 248 (1851). However, declaration of Hotchkiss as a watershed moment in legal history …

Members Of Parliament’S Privileges And Subjects’ Protection From Libel, Noel Cox

Noel Cox

In Buchanan v Jennings [2002] 3 NZLR 145 (CA); [2004] UKPC 36; [2005] 2 All ER 273 (New Zealand PC) the Judicial Committee of the Privy Council, on appeal from the Court of Appeal of New Zealand (unanimously) held that a Member of Parliament may be held liable in defamation if the member makes a defamatory statement in the House of Representatives and later affirmed the statement (without repeating it) on an occasion which was not protected by parliamentary privilege. The statement in the House was covered by absolute privilege in the Defamation Act 1992 (N.Z.) and the Bill of …

Peerage Privileges Since The House Of Lords Act 1999, Noel Cox

Noel Cox

The recent and ongoing reform of the House of Lords in the United Kingdom, which has thus far seen the passage of the House of Lords Act 1999, which excluded almost all hereditary peers and peeresses from the House, has focused attention upon the appointment process for membership of the upper house, whether hereditary, appointed, or elected. Less attention has been paid to the role of the peerage. Though officially it is said that any proposals for substantial reform of the composition of the Lords will have to look at the Lords’ role, powers and procedures and its relationship with …

Independent And Adequate, Carrie Leonetti

Carrie Leonetti

No abstract provided.

The Application Of Tudor Sumptuary Laws To Academic Dress: Doctors In Scarlet?, Noel Cox

Noel Cox

Sumptuary legislation played an important social role in Tudor society, as it did in earlier generations. It applied to ordinary attire, but also, where appropriate, to what we might call uniforms. Specifically, it applied to clerical and academical dress. An Act of 1533 (24 Henry VIII c 13) was the most comprehensive on this point. It includes provisions that have since commonly been read to allow holders of a doctors degree to wear scarlet gowns, whatever their universities might otherwise provide. The purpose of this paper is to analyse the relevant sections of this Act and one of 1509, in …

Belonging And Empowerment: A New "Civil Rights" Paradigm Based On Lessons Of The Past, Rebecca E. Zietlow

Rebecca E Zietlow

ABSTRACT: Despite the advances that African Americans have made in our country as a result of the Civil Rights movement of the 1960s, poverty stubbornly persists in communities of color throughout our country. Our current civil rights paradigm, which is rooted in the Equal Protection Clause, and prohibits intentional state discrimination on the basis of immutable characteristics, simply is not working. This article suggests an alternative approach, one based not solely in equality norms but in facilitating the belonging of outsiders in our society. The subordination of people of color in our society has never been just about race. Rather, …

Leaving The Chisholm Trail: The Eleventh Amendment And The Background Principle Of Strict Construction, Kurt T. Lash

Kurt T. Lash

Although most scholars and courts assume that the Eleventh Amendment emerged from a sudden “shocked” public reaction to the Supreme Court’s decision in Chisholm v. Georgia, this article contends that the modern emphasis on Chisholm as the generative source of the Eleventh Amendment is historically incorrect. Public debate regarding the key issues behind the Eleventh Amendment had been underway long before the Court handed down its decision in Chisholm and the actual opinions had little impact on public discussion due to their being generally unavailable until months after the decision was handed down. The critical issue involved the concept of …

From Pedagogical Sociology To Constitutional Adjudication: The Meaning Of Desegregation In Social Science Research And Law, Anne Richardson Oakes

Anne Richardson Oakes

In the United States following the case of Brown v. Board of Education (1954) federal judges with responsibility for public school desegregation but no expertise in education or schools management appointed experts from the social sciences to act as court advisors. In Boston, MA, educational sociologists helped Judge W. Arthur Garrity design a plan with educational enhancement at its heart, but the educational outcomes were marginalized by a desegregation jurisprudence conceptualized in terms of race rather than education. This paper explores the frustration of outcomes in Boston by reference to the differing conceptualizations of desegregation in law and social science. …

Voices On The Run: What The Slave Narratives Can Tell Us About The Immigration Debate, Hadley Ajana

Hadley Ajana

This paper compares three accounts of runaway slaves from the eighteenth and nineteenth centuries with three twentieth and twenty-first century accounts of Spanish speaking immigrants to the United States. The works examined are Interesting Narrative of the Life of Olaudah Equiano, or Gustavus Vassa, the African, Written by Himself; Narrative of the Life of Frederick Douglass; Harriet Jacob's Incidents in the Life of a Slave Girl; Barbara Kingsolver's Bean Trees; Victor Villasenor's Rain of Gold; and Sonia Nozaria's Enrique's Journey. Examining the rhetorical strategies used in the earlier works by the abolitions and the devices used in the modern writing, …

"The Servant Of Two Masters": The Influence Of Church/State Paradigms On The Rise And Fall Of Clergy Disqualification Clauses In The United Kingdom And United States, Hunter M. Abell

Hunter M Abell

The role of clergy in American politics grows more hotly debated with each passing election cycle. This submission examines the competing loyalties a politically active member of the clergy experiences as he or she attempts to simultaneously serve their faith and the body politic. In doing so, it reviews the practice of clergy disqualification which prohibited clergy from serving in a representative body. It examines the rich and intriguing history the practice enjoyed in both the United States and United Kingdom and offers the theory that the use of clergy disqualification in both countries arose out of each country’s unique, …

Hotspots In A Cold War: The Naacp's Postwar Workplace Constitutionalism, 1948-1964, Sophia Z. Lee

All Faculty Scholarship

No abstract provided.

The Demise Of The Law-Finding Jury In America And The Birth Of American Legal Science: History And Its Challenge For Contemporary Society, Jonathan R. Lahn

Jonathan R Lahn

Today we take for granted the division of labor in the courtroom whereby judges have the exclusive authority to determine the law applicable to a given case, while juries decide questions of fact. Yet this strict separation of powers did not become a fact of American legal life until the mid-19th Century, and was not recognized by the United States Supreme Court as a constitutional principle until the 1890s. Legal historians, while certainly aware of the tradition of the law-finding jury in early American legal practice, have thus far failed to fully explore its significance as a reflection of early …

In The Name Of Efficiency, Scott Shackelford

Scott Shackelford

India, the most populous and diverse democracy in the world, has a legal system to match. This system, a composition of ancient Hindi panchayats (village assemblies), Islamic law, and a formal British judiciary, has long been under immense strain, stifling economic competiveness and the pursuit of justice alike. As Lord Delvin famously quipped “If our business methods were as antiquated as our legal methods we should be a bankrupt country.” There are currently nearly 25 million cases pending in Indian courts, some of which have been appealed and argued for more than 20 years. Meanwhile, India spends only .2 percent …

Dangerous Woman: Elizabeth Key's Freedom Suit - Subjecthood And Racialized Identity In Seventheenth Century Colonial Virginia, Taunya Lovell Banks

Taunya Lovell Banks

Elizabeth Key, an African-Anglo woman living in seventeenth century colonial Virginia sued for her freedom after being classified as a negro by the overseers of her late master’s estate. Her lawsuit is one of the earliest freedom suits in the English colonies filed by a person with some African ancestry. Elizabeth’s case also highlights those factors that distinguished indenture from life servitude—slavery in the mid-seventeenth century. She succeeds in securing her freedom by crafting three interlinking legal arguments to demonstrate that she was a member of the colonial society in which she lived. Her evidence was her asserted ancestry—English; her …

Billy Budd, Joseph Story, And Racial Liberals Frying Fish--A Polemical Essay, Peter Linzer

Peter Linzer

Please see cover letter.

How The Separation Of Powers Doctrine Shaped The Executive, Louis J. Sirico Jr.

Working Paper Series

This Article examines the debates of the Founders over the separation of powers doctrine as it relates to the executive branch. After surveying the experience in the colonies and under the post-Revolutionary state constitutions, it analyzes the relevant issues at the Constitutional Convention. Rather than focusing on abstract discussions of political theory, the article examines specific decisions and controversies in which separation of powers was a concern. The Article offers a detailed recounting of those debates. At the Convention, separation of powers arose most prominently in the arguments over nine issues: choosing the Executive, permitting the Executive to stand for …

“Militant Judgement?: Judicial Ontology, Constitutional Poetics, And ‘The Long War’”, Penelope J. Pether

Working Paper Series

This Article, a contribution to the Cardozo Law Review symposium in honor of Alain Badiou’s Being and Event, uses Badiou’s theorizing of the event and of the militant in Being and Event as a basis for an exploration of problems of judicial ontology and constitutional hermeneutics raised in recent decisions by common law courts dealing with the legislative and executive confinement of “Islamic” asylum seekers, “enemy combatants” and “terrorism suspects,” and certain classes of criminal offenders in spaces beyond the doctrines, paradigms and institutions of the criminal law. The Article proposes an ontology and a poetics of judging equal to …

Unchaste And Incredible: The Use Of Gendered Conceptions Of Honor In Impeachment, Julia Simon-Kerr

Julia Simon-Kerr

The American rules for impeaching witnesses developed against a cultural background that equated a woman's "honor," and thus her credibility, with her sexual virtue. The idea that a woman's chastity informs her credibility did not originate in rape trials and the confusing interplay between questions of consent and sexual history. Rather, gendered notions of honor so permeated American legal culture that attorneys routinely attempted to impeach female witnesses by invoking their sexual histories in cases involving such diverse claims as title to land, assault, arson, and wrongful death. But while many courts initially accepted the notion that an unchaste woman …

Theoretical Perspectives On Public Law, Administration And Public Health History, Lydia C. Stewart Ferreira

Lydia C. Stewart Ferreira

The struggle between authority and liberty, the tyranny of the majority, the prevention of harm, unlimited state control, the necessary rights belonging to citizens, and the establishment of contritutional checks by a consenting community - is the theory and practice of public health. This paper seeks to explore the interaction of epidemics on public and administrative legal theory. It is proposed that the legal theories of Locke in the 1600s and Mills in the 1800s regarding state and individual legal rights were shaped by public health disease epidemics of their day.

The Cause Of Racial Inequality In America Today: Innocent Victims Or Guilty Victimizers, Leigh E. Dalton

Leigh E Dalton

Abstract: Inspired by public debate over Bill Cosby’s address at the 50th Anniversary of Commemoration of the Brown v. Board of Education Supreme Court decision, this article focuses on the cause of racial inequality today. Many race theorists, including Derrick Bell and Patricia Williams, assert that racism is a structural reality within America’s institutions, perpetuating oppression and lack of opportunity for African Americans. Other race theorists, such as Shelby Steele and John McWhorter, claim racism is no longer institutionalized in America, but instead used as a crutch to create black power and hold whites responsible for slavery and segregation. To …

Civil Society And Its Discontents: The Two Pillars Of Edmund Burke's Legal Philosophy, James A. Todd

James A. Todd

Author’s Abstract: This article will undertake a complete survey of the jurisprudential thought of Edmund Burke. In doing so, it will attempt to place civil society as the focus of all jurisprudential elements of Burke’s thought. Burke put forward the components of a legal order that tended toward the establishment of a fundamentally liberal society, with spontaneity as the engine of both law and social growth. The positive pillar of Burke’s thought refers to the maxims of jurisprudence that foster social harmony, allowing this growth to proceed apace. The complementing, negative pillar of Burke’s legal thought focuses on protecting these …

“We Are At War And You Should Not Bother The President”: The Suffrage Pickets And Freedom Of Speech During World War I, Catherine J. Lanctot

Working Paper Series

The story of Alice Paul’s National Woman’s Party and its 1917 picketing campaign onbehalf of woman suffrage is almost unknown in legal circles. Yet the suffrage pickets were among the earliest victims of the suppression of dissent that accompanied the entry of the United States into World War I. Nearly forty years before the modern civil rights movement brought the concept of nonviolent civil disobedience to the forefront of American political discourse, the NWP conducted a direct action campaign at the very doorstep of the President of the United States, and they did so during a time of war.

In …

The Political Use Of Private Benevolence: The Statute Of Charitable Uses, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

This article examines the circumstances that led to the passage of the Statute of Charitable Uses of 1601, whose preamble unintentionally created a definition charity that resonates in the law today. The Statute was part of a legislative package of poor laws passed by Parliament to deal with an economic and political crisis that threatened the Tudor regime. The Statute’s primary purpose was to provide a mechanism to make trustees accountable for the appropriate administration of charitable assets, which in turn would encourage increased private charity for the relief of poverty, lessoning the tax burden of poor relief. Certain charitable …

The National Masturbators Task Force, William B. Turner

William B Turner

This paper describes political participation by lesbian, gay, bisexual, and transgender (LGBT) persons as an indication of why all legislative classifications involving sexual orientation and/or gender identity should receive careful attention from the courts. We usually think of the courts as using equal protection analysis to protect powerless minorities, but the Court in Cleburne v. Cleburne Living Center noted how most legislators showed great solicitude for the mentally retarded even as it struck down the municipal ordinance that imposed extra burdens on them. Indeed, the courts should reward active participation in the political process by minority groups by ensuring that …