Law Commons^™

The Sound Of Silence: Eligibility Qualifications And Article Iii, James F. Ianelli

James Ianelli

The Constitution’s eligibility qualifications in Articles I and II have drawn increased scrutiny in recent national elections. No scholarship to date, however, has examined why the Framers omitted any comparable qualifications from Article III. This paper presents the question of what made the judiciary unique relative to the other branches such that any nominated and confirmed candidate could sit on the federal bench.

The answer to this question sheds new light on the wisdom of eligibility qualifications in Articles I and II. Although no direct historical record details the basis for the omission, a number of factors appear relevant. Without …

How The Courts, Along With Public Dissatisfaction With The Status Quo, Ironically Aided In The Creation Of New Hollywood, Which Promoted Films Of Lawlessness, Disorder And Instability, Sam A. Blaustein

Sam A Blaustein

The period known as New Hollywood in American film was brought about by several seminal American legal decisions coupled with a growing dissatisfaction with the status quo. A series of First Amendment cases, along with the 1948 Paramount decision, forced Hollywood to produce graphic and existential films that showcased in unprecedented style the issues faced by the emerging disaffected youth generation.

Nicaea And Sovereignty, Craig G. Bateman

C. G. Bateman

This research is concerned with the development of international law in so far as it relates to the historical background for the Peace of Westphalia, which itself is understood as a seminal event in the history of the growth of both the theoretical notion of sovereignty and, in its present milieu, as an attribute of states. This research gets behind Westphalia, to suggest a plausible nexus of ideology and events which led to these treaties, and to focus specifically on the event which I suggest was the sin qua non development which led to the Westphalian concord. I suggest that …

Vietnam's Eligibility To Receive Trade Benefits Under The U.S. Generalized System Of Preferences, Alexander H. Tuzin

Alexander H. Tuzin

Last year, Vietnam officially requested to receive trade benefits under the U.S. Generalized System of Preferences (GSP) as a beneficiary developing country. The accompanying article initially examines the role of GSP programs within the WTO system, and then provides a comprehensive analysis of Vietnam’s prospects for receiving trade benefits under the U.S. GSP system. Vietnam remains a very poor country, and it could benefit considerably from preferential treatment under the U.S. GSP program. However, Vietnam’s compliance with the GSP eligibility criteria is problematic. In particular, Vietnam’s protections for both intellectual property rights and worker rights are inadequate. Ultimately, this article …

An Overview Of Tolls To Statutes Of Limitations On Account Of War: Are They Current And Relevant In The Post-September 11th Era?, Hon. Mark Dillon

Hon. Mark C. Dillon

The devastation of the attacks that occurred at the World Trade Center on September 11, 2001 included costly disruption to the operation of courts in the City and State of New York. A court facility at Five World Trade Center was destroyed. Attorneys were among the 2,752 persons killed in the event. Law offices were destroyed. Key litigation witnesses and documents were lost forever. Thousands of attorneys were unable to access their work for days. State courts in Manhattan did not reopen for business until September 17, 2001. Amidst the turmoil and confusion, there was a defined set of potential …

Refashioning Legal Pedagogy After The Carnegie Report: Something Borrowed, Something New, Debra M. Schneider

Debra M Schneider

The Carnegie Foundation published in 2007 its ground-breaking book titled Educating Lawyers: Preparation for the Profession of Law, in which it pointed out significant pedagogical imbalance in legal education. In particular, the Carnegie report said that law schools should infuse their curricula with more practical and ethical training. How a law school ought to accomplish the Carnegie aim is another challenge, one that this paper squarely addresses.

Traditional legal education is sorely imbalanced. A law student receives rigorous training in legal doctrine and analytical skills—he learns to “think like a lawyer”—but is left with little training in practical skills or …

The Bahd Of New England: Citing Shakespeare In The First Circuit, Eugene L. Morgulis

Eugene L. Morgulis

This paper explores the ways in which judges in federal and state courts within the geographical region of the First Circuit have used the works and words of William Shakespeare to enhance their opinions. It not only exhaustively catalogs the plays and quotations that judges have cited since the 19th century, but it also analyzes the ways in they are used, discusses how they add or detract from opinions, and compares the use of Shakespeare to other authors commonly cited.

Structure And Precedent, Jeffrey C. Dobbins

Jeffrey C. Dobbins

The standard model of vertical precedent is part of the deep structure of our legal system. The rules governing that model are largely intuitive, often taught only in passing at law school, and rarely addressed by positive law. While the application of these rules of precedent can be difficult in practice, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. A Ninth Circuit opinion, for instance, is binding on district courts within the Ninth Circuit and on subsequent Ninth Circuit panels; it is not binding on Second Circuit panels. …

Shades Of Gray: The Life And Times Of An Antebellum Free Family Of Color, Jason A. Gillmer

Jason A Gillmer

The history of race and slavery is often told from the perspective of either the oppressors or the oppressed. This Article takes a different tact, unpacking the rich and textured story of the Ashworths, an obscure yet prosperous free family of color who moved from Louisiana to Texas in the early 1830s, where they owned land, raised cattle, and bought and sold slaves. It is undoubtedly an unusual story; indeed in the history of the time there are surely more prominent names and more famous events. Yet their story reveals a tantalizing world in which—despite legal rules and conventional thinking—life …

Copyright After Death, Deven R. Desai

Deven R. Desai

Should copyright extend after death? In the United States, the duration of copyright is the author’s life plus seventy years. Discussions of copyright often treat pre and post death copyright as equal, holding that the entire length of the term faces uniform problems and fulfills uniform goals. Copyright law operates with a hidden assumption: that copyright after death is the same as copyright during life. Numerous debates over copyright’s duration rely on this post-mortem assumption. In this article, Professor Deven Desai argues that this assumption is false and that copyright’s extension after the author’s death is unjustifiable. He explores the …

Bentham & Ballots: Tradeoffs Between Secrecy And Accountability In How We Vote, Allison Hayward

Allison Hayward

The way a group, jurisdiction, or nation votes, and makes decisions binding on their members and citizens, is fundamental and deceptively prosaic. Why do some groups (faculties, Congress, caucuses, HOAs) take public votes in most contexts, accompanied by debate, sometimes heated. Why do others (electorates, labor unions) take private votes (often by ballot cast in a secure setting where “heated debate” is not allowed) in most contexts? Moreover, what should we make of the exceptions to these general forms? This Article will demonstrate that the hybrid mode of voting – non-debated yet non-secret voting such as in contemporary absentee balloting, …

The History Of Wisconsin’S Alcohol Laws: A Drunk Culture Or Lobbyists Drunk With Power?, Mark Gaber

Mark Gaber

Wisconsin leads the nation in a bevy of alcohol consumption statistics—from binge drinking to admitted drunk drivers to liquor licenses—and has among the most lenient alcohol laws in the nation as well. It is the only state that does not criminalize the first offense of drunk driving, one of a handful that does not permit drunk driving checkpoints, and the only state where children can be served alcohol at bars with the consent of their parents. Many point to the state’s German heritage to explain its affinity for alcohol. While this might explain the genesis of the state’s drinking culture, …

Abuse Of Rights: The Continental Drug And The Common Law, Anna Di Robilant

anna di robilant

This article deploys a comparative approach to question a widely-shared understanding of the impact and significance of abuse of rights. First, it challenges the idea that abuse of rights is a peculiarly civilian “invention”, absent in the common law. Drawing on an influential strand of functionalist comparative law, the article identifies the “functional equivalents” of the doctrine in the variety of malice rules and reasonableness tests deployed by American courts in the late 19th and early 20th century in fields as diverse as water law, nuisance, tortious interference with contractual relations and labor law. The article investigates the reasons why …

Looking Back, Moving Forward: The History And Future Of Refugee Protection, Shauna E. Labman

Shauna E. Labman

The origins of refugee protection are commonly associated with the aftermath of the Second World War and the huge outpouring of refugees that it sparked. The 1951 Refugee Convention, however, was in fact a revision and consolidation of previous international agreements relating to the status of refugees. In their own ways, all of the Convention’s predecessors responded to the refugee crises by facilitating the movement of refugees to safe states. With the 1951 Convention, in contrast, non-refoulement – the promise not to send people back to persecution – has come to be considered the core of refugee protection. While resettlement …

From Lily Bart To The Boom Boom Room: How Wall Street’S Social And Cultural Response To Women Has Shaped Securities Regulation, Christine Sgarlata Chung

Christine Sgarlata Chung

In Edith Wharton’s 1905 novel House of Mirth, Lily Bart learns in one brutal moment what happens to women who get tangled up with the stock market. Though she is beautiful and well-born, Lily is vulnerable when she seeks salvation in the stock market – she has no family to support her, no fortune of her own, no training in business matters, and no socially acceptable means of acquiring money, save marriage. When the husband of a friend (Gus Treanor) offers to help Lily by speculating in the stock market, Lily agrees. And when Treanor begins presenting Lily with money, …

From Lily Bart To The Boom Boom Room: How Wall Street’S Social And Cultural Response To Women Has Shaped Securities Regulation, Christine Sgarlata Chung

Christine Sgarlata Chung

In Edith Wharton’s 1905 novel House of Mirth, Lily Bart learns in one brutal moment what happens to women who get tangled up with the stock market. Though she is beautiful and well-born, Lily is vulnerable when she seeks salvation in the stock market – she has no family to support her, no fortune of her own, no training in business matters, and no socially acceptable means of acquiring money, save marriage. When the husband of a friend (Gus Treanor) offers to help Lily by speculating in the stock market, Lily agrees. And when Treanor begins presenting Lily with money, …

Pacifica Reconsidered: Implications For The Current Controversy Over Broadcast Indecency, Angela J. Campbell

Angela J. Campbell

This article tells the story of how and why a single letter complaining about “dirty words” in a comedy routine broadcast by a radio station ended up in the Supreme Court and how a closely divided Court found that it was constitutional for the Federal Communications Commission to admonish the station for the broadcast even though the speech was protected by the First Amendment and its distribution by other means could not be could not be prohibited. This case, FCC v. Pacifica Foundation, was controversial when it was decided in 1978, and it has become more controversial because of the …

From Lily Bart To The Boom Boom Room: How Wall Street’S Social And Cultural Response To Women Has Shaped Securities Regulation, Christine Sgarlata Chung

Christine Sgarlata Chung

In Edith Wharton’s 1905 novel House of Mirth, Lily Bart learns in one brutal moment what happens to women who get tangled up with the stock market. Though she is beautiful and well-born, Lily is vulnerable when she seeks salvation in the stock market – she has no family to support her, no fortune of her own, no training in business matters, and no socially acceptable means of acquiring money, save marriage. When the husband of a friend (Gus Treanor) offers to help Lily by speculating in the stock market, Lily agrees. And when Treanor begins presenting Lily with money, …

“I’M Dying To Tell You What Happened”: The Admissibility Of Testimonial Dying Declarations Post-Crawford, Peter Nicolas

Peter Nicolas

In Crawford v. Washington and its progeny, the U.S. Supreme Court has re-theorized the relationship between hearsay evidence and the Confrontation Clause. Post-Crawford, hearsay statements that are “testimonial” in nature are, as a general rule, inadmissible when offered against the accused in a criminal case. Yet in footnote 6 of Crawford, the Supreme Court suggested that an exception to the general rule may exist for dying declarations. This manuscript builds on the dictum set forth in footnote 6 of Crawford, the meaning of which the lower courts are just beginning to explore. In the manuscript, I first demonstrate that the …

Modern Disparities In Legal Education: Emancipation From Racial Neutrality, David Mears

David Mears

Wealth, leadership and political power within any democratic society requires the highest caliber of a quality legal education. The Black experience is not necessarily a unique one within legal education but rather an excellent example of either poor to substandard quality disseminated unequally among racial and socioeconomic stereotypes based upon expected outcomes of probable success or failure. It is often said, “Speak and so it will happen” – many within the halls of academia work hard to openly predict failure yet seemingly do very little to foster success internally within the academic procedures and processes based on the customer service …

The Original Understandings Of The Capture Clause, Aaron D. Simowitz

Aaron D. Simowitz

The Congress shall have power to . . . To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. US Const Art I, § 8, cl 11.

Although the Capture Clause may seem obscure today, the power it embodies was crucially important to the early republic. General Washington declared, even during the Revolutionary War, that a centralized and standardized system for the handling of prizes was vital to the war effort. The first court established by the fledging federal government was the federal appellate court of prize. This court heard over a …

Letters Of Marque And Reprisal: The Constitutional Law And Practice Of Privateering, Theodore M. Cooperstein

Theodore M Cooperstein

The United States Constitution grants to the Congress the power, among others, to issue “Letters of Marque and Reprisal.” Although the practice seems to have fallen into disuse in this century, it was an important tool of national power for the federal government created by the Framers, who placed great import on the federal government’s role in protecting international commerce and in enforcing international law.

Privateering played a significant role before and during the Revolutionary War, and it persisted in American history as an economical way to augment naval forces against an enemy in wartime. A significant outgrowth of the …

Legal Subjectivity And The Basis Of Citizenship In Aristotle's Philosophy Of Law, Dr Burns

Dr Burns

This paper considers Aristotle’s views on the nature of the legal subject and the basis of citizenship, specifically in relation to the doctrine of corrective justice outlined in Book V of the Nicomachean Ethics. It may be seen as a contribution to a debate over the issue between Ernest J. Weinrib and Steven J. Heyman which took place in a special issue of Iowa Law Review devoted to corrective justice in 1991-92: Corrective Justice and Formalism: The Care One Owes One's Neighbor, Iowa L. Rev. 77 (1991-92), 403-864. The paper argues that the interpretations of Aristotle which are offered by …

Ernest J. Weinrib’S Legal Formalism And The Philosophies Of Aristotle, Kant And Hegel, Dr Burns

Dr Burns

This paper may be seen as a contribution to a symposium on the legal theory of Hegel which was first published in Cardozo Law Review in 1988-89: 10 Cardozo L. Rev. (1988-89). (Hegel and Legal Theory Symposium, I). It presents a critique of the doctrine of ‘legal formalism,’ as this is presented in the writings of Ernest J. Weinrib. Weinrib associates legal formalism with the legal philosophies of Aristotle, Kant and Hegel. So far as Aristotle is concerned, the paper argues that Weinrib is wrong to argue that Aristotle is a forerunner of the legal philosophy of Kant or of …

Rethinking The Foreign Direct Investment Process In Post Conflict Transition Couuntries, Kojo Yelpaala

Kojo Yelpaala

ABSTRACT Burdened by the remnants of conflict, continuing threats of security lapses, significant market failures and weak institutions, post conflict transition countries can hardly be described as normal economies. The task of transforming them into vibrant, productive and self-sustaining economies is no simple assignment. Constructing the blueprint for reconstruction and economic development requires creativity of the first order. Conventional theories or pure neo-liberal market driven policy levers preached by the Washington Consensus group are not likely to be productive. The design of the investment regime for development should therefore focus on non conventional policy constructs. Contrary to the received theories, …

The Historical Origins Of The Patterns Of Taxpayer Standing, Charlotte Crane

Charlotte Crane

In this article, I explore the pattern, sometimes described as puzzling, according to which the federal courts have sometimes considered the claims of a local taxpayer sufficient to allow a challenge the activities of the taxpaying entity, while rarely finding the claims of a state or federal taxpayer sufficient. I trace this pattern to the doctrines according to which local governments were seen as having taxing powers conditioned upon the ways in which the funds raised are to be spent. Since such doctrines never applied to impose judiciable limits on the taxing powers of either states or the federal government, …

Monstrous By Law: Gothic Technology In Four Slavery Texts, Theodore A.B. Mccombs

Theodore A.B. McCombs

Monstrous by Law explores two famous legal texts of antebellum American slavery—THE CONFESSIONS OF NAT TURNER, regarding the 1831 slave rebellion; and the notorious trial of Margaret Garner, the fugitive slave who murdered her children to prevent them from being taken back into slavery. Using theories developed by Toni Morrison and Judith Halberstam, the essay examines how these two texts make use of a particular “Gothic technology,” by which the black defendants are portrayed as monstrous figures that help define and reinforce white identity by contrast. The essay then turns to Herman Melville’s novella Benito Cereno, which was inspired in …

The Color Of Testamentary Freedom, Kevin Noble Maillard

Kevin Noble Maillard

Wills that prioritize the interests of nontraditional families over collateral heirs test courts’ dedication to observing the posthumous wishes of testators. Collateral heirs who object to will provisions that redraw the contours of “family” are likely to profit from the incompatibility of testamentary freedom and social deviance. Thus, the interests of married, white adults may claim priority over nonwhite, unmarried others. Wills that acknowledge the existence of moral or social transgressions—namely, interracial sex and reproduction—incite will contests by collateral heirs who leverage their status as white and legitimate in order to defeat testamentary intent.

This Article turns to antebellum and …

Trust Law And The Title-Split: A Beneficial Perspective, Kent D. Schenkel

Kent D Schenkel

Recent functional analyses of the trust tend to emphasize its effect on the parties to the trust deal and give less attention to the nature of the beneficiary’s interest, especially in relation to persons outside the trust transaction. In contrast, this article takes a critical approach to the trust from the primary perspective of the benefits it provides to beneficiaries. From this perspective, it finds that while the trust maintains the flexibility of a contract it also restricts legal interests of third parties who are strangers to the trust bargain; a feat that contracts are unable to accomplish. Third parties …

The Bush Theory Of The War Power: Authoritarianism, Torture And The So-Called “War On Terror”- A Critique, Christopher L. Blakesley, Judy Meyerson

Christopher L. Blakesley

The Bush Theory of the War Power:

Authoritarianism, Torture and the

So-Called “War on Terror”- A Critique

Christopher L. Blakesley & Thomas B. McAffee

Abstract

Our article addresses the Bush administration’s arrogation of power to the President and its manifestation in the disappearance, imprisonment, and torture of detainees in prisons, including Guantánamo, Bagram, Abu Ghraib, and so-called “black sites,” or prisons in countries that engage in torture. These shameful practices were authorized in the infamous September 25, 2001 Torture Memo and other controversial legal memoranda by John Yoo and other Bush administration attorneys. The memos, which claimed authoritarian executive power …