Law Commons^™

The Changing Face Of Liberalism In Workplace Democracy: The Shift From Collective To Individual Rights, Emily Eschenbach Barker

Emily Eschenbach Barker

The 1960s and 1970s saw a drastic change in the liberal conception of workplace equality. Post-war liberals defined equality in terms of collective rights, with labor law and unions epitomizing this conception. The civil rights generation, on the other hand, thought equality to be based in the rights of the individual. As new laws upholding individual civil rights proliferated, employers found themselves increasingly bound by incompatible legal duties under the two parallel systems governing labor rights.

Through their union agreements, employers were bound to treat all employees identically; administering vacations, bonuses, and promotions according to seniority as outlined in the …

Restoring The Presumption Of Innocence, Shima Baradaran

Shima Baradaran

The most commonly repeated adage in U.S. criminal justice is the presumption of innocence: defendants are deemed innocent until proven guilty. Historically, this presumption carried important meaning both before and during trial. However, in light of state and federal changes in pretrial practice, as well as Supreme Court precedent restricting the presumption’s application to trial, the presumption of innocence no longer protects defendants before trial. These limitations on the presumption are fundamentally inconsistent with its constitutional roots. The results of the presumption’s diminution are also troubling as the number of defendants held pretrial has steadily increased such that the majority …

Marshall And O'Connor: Categorical First Justices And Their Impact On Federal Indian Law, Richard L. Barnes

richard l barnes

Thurgood Marshall was the first African-American appointed to the United States Supreme Court. Sandra Day O’Connor was the first woman appointed. As firsts in their category their historical role is assured, but their legacy is broader. This Article examines one piece of their legacies: Is it plausible to find some of their character as ‘Firsts’ in their opinions for the Court in Indian cases? Specifically can we find a legacy of categorical pioneering in the Justices’ treatment of American Indians as another category of people underrepresented on the Court?

My working hypothesis was that the sympathy some might expect from …

Strengthening The Rule Of Virtue And Finding Chinese Law In "Other" Places: Gods, Kin, Guilds And Gifts, Mary Szto

Mary Szto

Discussions about the rule of law in China today often do not consider the role of virtue or ritual. At the same time, many bemoan slow or no legal reform. Before the tumultuous events of the 20th century, traditional Chinese law (TCL) was remarkably continuous and stable for centuries. It was a blend of ritual and law focused on flourishing and virtue formation. Ritual was communion with, and law accountability to, the invisible spirit world. This inseparable blend spanned multiple jurisdictions, from state codes and courts to divine petitions and courts, to ancestral rites and family codes, to merchant codes …

The Fortas Film Festival, Brian L. Frye

Brian L Frye

The story of Jack Smith’s film Flaming Creatures and the “Fortas Film Festival” illustrates the dialectic of obscenity. The obscenity doctrine expresses the conventional wisdom that the First Amendment actually protects art, and protects pornography only by extension. But Flaming Creatures and the Fortas Film Festival suggest that obscenity is dialectical. The obscenity doctrine provides the thesis: art protects pornography, by justifying the protection of sexual expression. Flaming Creatures and the Fortas Film Festival provide the antithesis: pornography protects art, by normalizing sexual expression. The history of obscenity law provides the synthesis: art and pornography protect each other. In other …

Law, Economics, And Politics: The Untold History Of The Due Process Limitation On Punitive Damages, Daniel W. Morton-Bentley

Daniel W Morton-Bentley

Where did the idea that the Due Process clause limits the size of punitive damage awards come from? This question remains unanswered despite a large body of legal scholarship on the Supreme Court’s punitive damage jurisprudence. I contend that the argument won acceptance due to a cultural shift which began in the 1970s: the move towards evaluating social policies based solely on their adherence to free-market ideology. In the face of the economic disruptions of the 1970s, conservative and Republican policymakers relied heavily on free-market economic arguments. According to these arguments, any policies that reduce corporate profits – including punitive …

Museum And Royalties: A Proposal To Facilitate Loans, Daniella Fischetti

Daniella Fischetti

This paper will consider the ways in which the principles of copyright may be extended to otherwise unprotected works thereby allowing for a system of royalties, similar to that used by ASCAP or BMI in the music industry, applicable to cultural property located outside its source county and of disputed provenance and legal controversy. While a system of royalties is predicated on the ownership of a copyright of a work in a fixed, tangible form, antiquities and other types of cultural property predate copyright, placing them in the public domain. By comparing the underlying ideas of copyright and intellectual property …

Helping Ideas Have Consequences: Political And Intellectual Investment In The Unitary Executive Theory, 1981-2000, Amanda L. Hollis-Brusky

Amanda Hollis-Brusky

This article explains the remarkable frequency with which the Unitary Executive Theory (UET) was used in the George W. Bush Justice Department (2001-2008) as legal justification for Executive branch action. It shows how this seemingly sudden turn in Executive branch interpretation was actually the result of a series of long-term political investments by key conservative and libertarian actors who worked to develop the intellectual underpinnings of the UET first within the Reagan and George H. W. Bush Justice Departments and then within the Federalist Society for Law and Public Policy. Specifically, it draws on interview data and other ethnographic evidence …

Marshall And O'Connor: Categorical First Justices And Their Impact On Federal Indian Law, Richard L. Barnes

richard l barnes

Thurgood Marshall was the first African-American appointed to the United States Supreme Court. Sandra Day O’Connor was the first woman appointed. As firsts in their category their historical role is assured, but their legacy is broader. This Article examines one piece of their legacies: Is it plausible to find some of their character as ‘Firsts’ in their opinions for the Court in Indian cases? Specifically can we find a legacy of categorical pioneering in the Justices’ treatment of American Indians as another category of people underrepresented on the Court?

My working hypothesis was that the sympathy some might expect from …

Violent Video Games & "Constitutionalized" Negligence, Deana Ann Pollard Sacks

Deana A Pollard

Violent video games create serious risks of harm to children’s brain functioning, health, and safety. Extremely wealthy game producers’ demonstrated disregard for children’s safety raises questions about lower courts’ negligent speech liability rules that effectively bar tort liability for unreasonably dangerous speech, including violent video games. Violent Video Games & “Constitutionalized” Negligence reviews the latest scientific data on the effects of violent video games on children and challenges the prevailing negligent speech liability rules generally, and specifically relative to violent video game producers’ relationship with children. Most courts have adopted the Brandenburg incitement test to prove fault and causation in …

Sacrifice And Sacred Honor: Why The Constitution Is A Suicide Pact, Peter B. Bayer

Peter B Bayer

Most legal scholars and elected officials embrace the popular cliché that “the Constitution is not a suicide pact.” Typically, those commentators extol the “Constitution of necessity,” the supposition that Government, essentially the Executive, may take any action -- may abridge or deny any fundamental right -- to alleviate a serious national security threat. The Constitution of necessity is wrong. This article explains that strict devotion to the “fundamental fairness” principles of the Constitution’s Due Process Clauses is America’s utmost legal and moral duty, surpassing all other considerations, even safety, security and survival. Analysis begins with the most basic premises: the …

Returning To First Principles Of Privilege Law: Focusing On The Facts In Internal Corporate Investigations, Christopher T. Hines

Christopher T Hines

In the aftermath of the worst economic downturn since the Great Depression, it is necessary and appropriate to ask some fundamental questions on the economic laws and regulations that, for better or worse, played a contributing role in the recent financial crisis. Although the ongoing financial reform efforts have already resulted in significant changes in applicable laws, a further discussion regarding the principles and practices that existed within the enforcement of law is worthy of consideration. Specifically stated, are there any improvements that can be made to the current federal securities enforcement regime that would work to the benefit of …

Unanimity: History, Empirics, & Mcdonald, Zachary C. Smallwood

Zachary C. Smallwood

In light of the recent McDonald decision, which abandoned the concept of State experimentation and mandates States to mirror Constitutional standards of federal interpretations, unanimity once again becomes a relevant question to American jurisprudence. Given data, history, and policy considerations, McDonald dictates that Oregon’s failure to echo the federal Sixth Amendment standards is inconsistent. Accordingly, to allow Oregon to apply a watered-down Sixth Amendment standard as compared to its federal counterpart is to apply the two-track approach that defies the Court’s recent ruling in McDonald. Thus, unanimity ought to be preserved as a right essential to the Sixth Amendment and …

Stoney Road Out Of Eden: The Struggle To Recover Insurance For Armenian Genocide Deaths And Its Implications For The Future Of State Authority, Contract Rights, And Human Rights, Jeffrey W. Stempel

Jeffrey W Stempel

The Armenian Genocide during the waning days of the Ottoman Empire continues to represent one of history’s underappreciated atrocities. Comparatively few people even know about the 1.5 million deaths or the government-sponsored extermination attempt that provided Hitler with a blueprint for the Nazi Holocaust. Unlike the Holocaust, however, there was never any accounting demanded of those responsible for the Armenian Genocide. In the aftermath of both tragedies, insurers seized upon the resulting disarray and victimization to deny life insurance benefits owed as a result of the killings. American-based litigation to vindicate rights under the Armenian polices faced substantial legal and …

Trifling Violence: The U.S. Supreme Court, Domestic Violence And The Golden Rule, Jeffrey R. Baker

Jeffrey R Baker

Domestic violence is ubiquitous across eras, cultures, religions and political systems. Feminist responses to domestic violence seek to free women from gender subjugation, but such movement inevitably challenges moral and natural claims about marriage and family in traditional society. These traditions often claim religious and moral authority, while reformers often have overreacted by abandoning established moral thought in favor of relativistic, individual moral discernment. This tension is manifest in the struggle at common law to adjust moral language to the gradual, radical evolution of gender status and marriage. The plight of women and girls in the developing world is the …

The Vanishing Indian Returns, Kathryn Fort

Kathryn Fort

As the nation faces cultural divides over the meaning of the “Founding,” the Constitution, and who owns these meanings, the Court’s embrace of originalism is one strand that feeds the divide. The Court’s valuing of the original interpretation of the Constitution has reinforced the Founder fetishism also found in popular culture, specifically within the politics of those identified as the Tea Party. As addressed elsewhere, their strict worship of the Founders has historical implications for both women and African Americans, groups both marginalized and viewed as property in the Constitution. No one, however, has written about how the Court's cobbled …

Why Is Small Business The Chief Business Of Congress?, Mirit Eyal-Cohen

Mirit Eyal-Cohen

Small business is a sacred cow in America. In 1958, Congress created the Small Business Investment Company ("SBIC"), a unique public-private program that provides long-term capital to small entrepreneurs. From its inception, however, the SBIC has been plagued by inefficiency and failure. Yet, Congress continues to pour millions of dollars into the SBIC program, with no end in sight. What explains this failed policy course?

This article argues that the SBIC program exemplifies the pitfalls of legal and political institutional path dependency and should be replaced by private institutional lending system. Pursuant to this account, past decisions can influence future …

What's Wrong With "Torts As Wrongs" (Or Redirecting Civil Recourse Theory), Alan Calnan

Alan Calnan

In Torts as Wrongs, Professors John C.P. Goldberg and Benjamin C. Zipursky offer their most complete and accessible explanation of the civil recourse theory of tort law. A purely descriptive account, civil recourse theory has both positive and negative components. The positive side holds that tort law is a scheme of private rights for the redress of legal wrongs, while the negative side says the law eschews strict liability and forbids instrumentalism. The present paper challenges both prongs of this theory, identifying three problems which undermine its credibility. First, Goldberg and Zipursky do not objectively observe tort law and uncritically …

"Reputation, Reputation, Reputation": Fred Rodell, Felix Frankfurter, And The Reproduction Of Hierarchy In The Unlikeliest Of Places, Andrew Yaphe

Andrew Yaphe

If he is remembered at all, Fred Rodell is thought of as a marginal legal realist who spent his time irreverently mocking legal academia and the legal profession. Save for the “marginal” part, this description would be accepted even by Rodell’s admirers. But, as this Article shows, there is more to Rodell than witticisms. Rodell’s humor conceals a radical critique of elite legal education that prefigures the better-known critique put forth decades later by Duncan Kennedy. For Rodell, the institutions of elite legal education work to inculcate careerism and servility. And, for Rodell, the prime exemplar of the baleful influence …

Weak Loyalties: How The Rule Of Law Prevents Coups D'Etat And Generates Long-Term Political Stability, Ivan Perkins

Ivan Perkins

The “rule of law” is lauded for producing a variety of positive governance characteristics, including minimal corruption, human rights, and economic prosperity. What has been overlooked, however, is that rule-of-law institutions are also responsible for another phenomenon: the fact that certain states experience long-term political stability, without any coups or coup attempts (defined as internal efforts to seize central state authority through force). The prevailing theory of stability holds that “professional” military officers refrain from coups because they have internalized norms of civilian authority and constitutional procedure. However, this theory requires a system of socialization capable of counteracting self-interest, throughout …

Fragile Merchandise: A Comparative Analysis Of The Privacy Rights For Public Figures, Scott Shackelford

Scott Shackelford

Over a century after Warren and Brandeis first presented the right to U.S. jurists for their consideration, privacy has become a central player in U.S. law. But nations around the world, in particular the common and civil law nations of Europe that share similar legal cultures with the United States, are grappling with how best to strike a balance between the competing rights of privacy and freedom of expression—both of which are critical to the functioning of democratic society. Existing literature has not fully drawn from this reservoir of international experience to inform the debate about U.S. privacy rights. This …

The Constitutional Right To Refuse: Roe, Casey, And The Fourteenth Amendment Rights Of Healthcare Providers, Mark L. Rienzi

Mark L Rienzi

The Fourteenth Amendment rights of various parties in the abortion context—the pregnant woman, the fetus, the fetus’ father, the state—have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman’s Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor’s right to decide whether to participate in abortion procedures?

The Court’s substantive due process analysis typically looks for rights that are “deeply rooted” in our history and traditions. …

The Federal Trade Commission And Privacy: Defining Enforcement And Encouraging The Adoption Of Best Practices., Andrew B. Serwin

Andrew B. Serwin

This article examines the history of privacy enforcement by the Federal Trade Commission, including the FTC’s jurisdiction under Section 5, and its privacy enforcement matters, as well as the FTC's recently issued report, "Protecting Consumer Privacy in an Era of Rapid Change: A proposed Framework for Businesses and Policymakers", in which the FTC examines past enforcement models, noting their failings. In light of the FTC’s examination of past enforcement models, this article then analyzes these models, including the accountability-centric model that has previously been utilized in the United States, as well as the FTC’s proposed solution to the privacy problems …

Race And Place In Post-Reconstruction America: How The Cleveland Bar Became Segregated, 1870-1930, Robert N. Strassfeld

Robert N. Strassfeld

At the beginning of the twentieth century, the Cleveland bar could fairly be described as racially integrated. The openness of the bar and the response of African American lawyers shaped the day-to-day professional lives of those lawyers. This openness manifested itself in a number of interracial law practices, in a client base for black lawyers that was predominantly white, in the court appointment practices of white judges, and in the general openness of the institutions of the Cleveland legal community to black participation. The bar was also geographically integrated. African American lawyers opened their offices in the same downtown office …

Interpreting Judicial Interpretations Of The Criminal Statutes Of The Trafficking Victims Protection Act: Ten Years Later, Mohamed Mattar

Mohammad Mattar

The Trafficking Victims Protection Act (TVPA) established for the first time the crime of trafficking in persons. This article will analyze court cases that have been decided under the TVPA. The article will show that American courts, relying upon the text of the criminal statutes of the TVPA, as well as the findings of Congress, have broadened the interpretation of the offenses recognized under the Act to expand criminal liability, whether in cases of sex trafficking or labor trafficking. The article will also address cases in which the TVPA was challenged on constitutional grounds and whether it may apply on …

The Ancient And Honorable Court Of Dover: Mock Trials, Fraternal Orders, And Solemn Foolery In Nineteenth-Century New York State, Angela Fernandez

Angela Fernandez

This article is about a fraternal order operating in the first half of the Nineteenth Century in New York called “The Ancient and Honorable Court of Dover.” This group organized a mock trial, probably in 1834, to prosecute one of its members. A prosecutor was appointed and the President of the group gave a long speech. At issue was whether or not non-members could participate in the trial. After a description of these records and an account of their discovery, this article explains who the individuals involved in the trial were, Jacksonian politicians and lawyers with connections to the Custom …

The Rule Of Law At The Crossroads: Consequences Of Targeted Killing Of Citizens, Ryan P. Alford

Ryan P Alford

In December 2010 (in Al-Aulaqi v. Obama) the District Court held that the President's decision to authorize the targeted killing of American citizen could not be reviewed in any court. The article discusses whether this decision is compatible with the vision of the rule of law embodied in the Constitution and the Bill of Rights, which is illuminated with an explanation of the historical analysis of the key influences on the Framers. It concludes that the Al-Aulaqi decision is a more significant threat to our constitutional order than the indefinite detention enjoined by Hamdi v. Rumsfeld, and accordingly this warrants …

A Slice Of History Underlying The Current Financial Pandemic, Florise R. Neville-Ewell

Florise R. Neville-Ewell

Recognizing the significance of the current economic crisis, this article looks backward to help the country prepare to move forward. The first in a series, this article and its progeny will trace the evolution of laws that have impacted the property rights of Black women from the nineteenth until the twenty-first centuries.

When The Wise (Latina) Judge Meets A Living Constitution - Why It Is A Matter Of Perception, Laura A. Hernandez

Laura A Hernandez

At the time of Justice Sonia Sotomayor’s confirmation hearings, much was made of a statement she made in a 2001 lecture at the University of California, Berkeley, School of Law concerning a judge’s approach to the cases that come before her. “. . . . I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.” The resulting backlash and condemnation caused Justice Sotomayor to apologize for her endorsement of the idea that a wise Latina would, and should, …

Taking War Seriously: A Model For Constitutional Constraints On The Use Of Force, In Compliance With International Law, Craig Martin

Craig Martin

This article develops an argument for increased constitutional control over the decision to use armed force or engage in armed conflict, as a means of reducing the incidence of illegitimate armed conflict. In particular, the Model would involve three elements: a process-based constitutional incorporation of the principles of international law relating to the use of force (the jus ad bellum regime); a constitutional requirement that the legislature approve any use of force rising above a de minimus level; and an explicit provision for limited judicial review of the decision-making process. The Model is not designed with any one country in …