Law Commons^™

Selection Biases, Mark A. Graber, Sanford Levinson

Mark Graber

No abstract provided.

Dred Scott, John San(D)Ford, And The Case For Collusion, David T. Hardy

David T. Hardy

Dred Scott v. John F. A. Sandford was one of the most critical cases in Supreme Court history, “an astonisher,” as Lincoln phrased it. In the “Opinion of the Court,” which was not actually the opinion of the Court (parts of it mustered only three votes), Chief Justice Taney stretched to insulate slavery in every way manageable. The ruling became instead an application of the “law of unintended consequences.” It led to the rise of Abraham Lincoln (who devoted much of his “House Undivided” speech to it), the destruction of Stephen Douglas’ presidential campaign (since it held his core position …

Circumspect Agatis Revisted, David K. Millon

David K. Millon

None available.

Objectivity And Democracy, David K. Millon

David K. Millon

As a response to skepticism about the possibility of objectivity in legal decisionmaking conventionalism posits the shared understandings of the legal profession (about method and the implications of doctrine) as the source of constraint in legal interpretation. In this Article, Professor Millon argues that conventionalism's proponents have failed to offer an adequate account of interpretive constraint, but that conventionalism properly understood can nevertheless provide a useful perspective on the possibility of objectivity in legal interpretation. This account locates interpretive constraint in the practices of the legal profession as a whole, acting as an "interpretive community" or constituting a distinctive "language-game" …

Book Review, (Reviewing Norman Doe, Fundamental Authority In Late Medieval English Law (1990)), David K. Millon

David K. Millon

None available.

The First Antistrust Statute, David K. Millon

David K. Millon

None available.

Roger Groot, Legal Historian, David K. Millon

David K. Millon

No abstract provided.

Faith In The Republic: A Frances Lewis Law Center Conversation, Ann Maclean Massie, David K. Millon

David K. Millon

None available.

Property And Republicanism In The Northwest Ordinance, Matthew J. Festa

Matthew J. Festa

This Article shows that individual property rights held a central place in the republican ideology of the founding era by examining the Northwest Ordinance of 1787. Between the two predominant strains of founding-era political ideology—liberalism and republicanism—the conventional view holds that individual property rights were central to Lockean liberalism, but not to the republican political tradition, where property is thought to have played more of a communitarian role as part of promoting civic virtue and the common good. Republicanism has been invoked in modern debates, and its emphases are present in current ideas such as the important new theory of …

The Phantom Fleet Of Porto Principe: Piracy And Admiralty Jurisdiction In The Atlantic Colonies, 1666-1698, Douglas R. Burgess Dr.

Douglas R Burgess Dr.

No abstract provided.

Proxy Sovereignty And The Problem Of Immunity, Sarah L. Brinton

Sarah L Brinton

The U.S. Constitution creates a three-branch federal government that acts on behalf of the sovereign people. Each constitutional branch—Congress, the executive, and the judiciary—is constrained to exercise only the powers and act only in the roles assigned it by the sovereign people via the Constitution. Despite this tripartite, proxy-sovereign nature of the U.S. national government, current federal sovereign immunity jurisprudence affords Congress the exclusive right to act as sovereign to waive immunity. This Article argues that the Constitution more faithfully supports another configuration of the waiver power. To do so, this Article introduces the proxy-sovereign framework, which assumes that (1) …

The Constitutional Procedural Principle: A Normative Morphology For Gauging Threats To Judicial Independence, Tara Price

Tara Price

For more than two hundred years, judicial review has served as the foundation of the American judicial branch. And yet, more than two centuries later, scholars and political figures continue to debate its proper place in American government. Recently, Presidential candidate Newt Gingrich waded into this debate, calling for members of Congress and the President to take stronger actions to check and balance what he termed “judicial supremacy.” Cries for a weakened judicial branch and insistence on the importance of reining in activist judges are becoming commonplace throughout American history.

As Gingrich and many before him have realized, the President …

Changing The Paradigm Of International Criminal Law: Considering The Work Of The United Nations War Crimes Commission Of 1943-1948, Daniel T. Plesch, Shanti Sattler

Daniel T Plesch

Changing the Paradigm of International Criminal Law: Considering the Work of the United Nations War Crimes Commission of 1943-1948 by Dr Dan Plesch and Shanti Sattler This article discusses the precedents of the largely forgotten United Nations War Crimes Commission (U.N.W.C.C.) of 1943-1948. The work of this multinational body should be regarded as a source of customary international law. We seek to introduce the U.N.W.C.C. and the thousands of national trials it supported into modern discourse about the development of international criminal justice and argue why they are relevant to current deliberations. The article concludes that the U.N.W.C.C. has been …

Brazil Begins To Investigate Its Dark Past, But Is It Too Little Too Late?, Thomas Thompson-Flores

Thomas L Thompson-Flores

This article analyzes the history of Brazil, the current legal battle over its Amnesty Law, and finally compares the transitional justice process chosen in Brazil versus other South American countries. An historical background of Brazil from 1964 to the present is given to illustrate the reasons behind the methods chosen by Brazil to implement transitional justice in the country. This historical summary begins with the military’s rise to power in 1964; then discusses the harsh policies implemented by the military in order to maintain its power; the process of democratic transition; and finally the steps taken by Brazil in recent …

Substantive Due Process In Exile: The Supreme Court's Original Interpretation Of The Due Process Clause Of The Fourteenth Amendment, Natalie M. Banta

Natalie M Banta

In Substantive Due Process in Exile: The Supreme Court’s Original Interpretation of the Due Process Clause of the Fourteenth Amendment, the author proposes an interpretation of the Supreme Court’s substantive due process jurisprudence, focusing on an often overlooked period between 1873 and 1897. Recently, a flurry of scholarship has addressed the origins of substantive due process. Scholars have focused on how natural law principles were transported to the colonies from the common law of England and how the concept of substantive due process developed before the ratification of the Fourteenth Amendment. Scholars then jump to the discussion of substantive due …

Livingstone And The Law: Africa’S Greatest Explorer And The Abolition Of The Slave Trade, Jay Milbrandt

Jay Milbrandt

Few historical events have had such tragic, widespread, and lingering consequences as the exportation of slaves from Africa. While the abolition of western Africa’s transatlantic slave trade is well documented, the events and legal framework that led to the abolition of the slave trade in East Africa remain practically untold. There, an unlikely hero championed abolition: Missionary and explorer Dr. David Livingstone. His method: an ambitious publicity stunt to dramatically change international law.

This article will illustrate how explorer David Livingstone’s advocacy profoundly affected the legal landscape to restrict the slave trade in East Africa, and eventually dealt the deathblow …

Juries, The Law, And The Original Function Of The Full Faith And Credit Clause, Hugo D. Leith

Hugo D Leith

No abstract provided.

Religion And The Equal Protection Clause, Steven G. Calabresi, Abe Salander

Steven G Calabresi

This article argues that state action that discriminates on the basis of religion is unconstitutional under the Equal Protection Doctrine even if it does not violate the Establishment Clause or the Free Exercise Clause as incorporated by the Fourteenth Amendment. State action that discriminates on the basis of religion should be subject to strict scrutiny and should almost always be held unconstitutional. We thus challenge the Supreme Court’s recent decision in Christian Legal Society v. Martinez in which a 5 to 4 majority of the Court wrongly allowed a California state school to discriminate against a Christian Legal Society chapter …

Prometheus And The Natural Phenomenon Doctrine: Let’S Not Lose Sight Of The Forest For The Trees, Samantak Ghosh

Samantak Ghosh

The Supreme Court’s recent decision on patentable subject matter, Mayo Collaborative Services. v. Prometheus Laboratories, has come in for a lot of criticism from the biotechnology industry. Whenever the Supreme Court renders a judgment that is a significant departure from the past and arguably gets it wrong, the voices questioning the underlying principle behind the decision become stronger. Unfortunately, Prometheus was a poor vehicle for recalibrating a doctrine that has been untouched for the past three decades. However, it is important to dissociate the specific opinion from the principle animating the opinion, the natural phenomenon doctrine. If the natural phenomenon …

Death And Rehabilitation, Meghan J. Ryan

Meghan J. Ryan

While rehabilitation is reemerging as an important penological goal, the Supreme Court is eroding the long-revered divide between capital and non-capital sentences. This raises the question of whether and how rehabilitation applies in the capital context. Courts and scholars have long concluded that it does not—that death is completely irrelevant to rehabilitation. Yet, historically, the death penalty in this country has been imposed in large part to induce the rehabilitation of offenders’ characters. Additionally, there are tales of the worst offenders transforming their characters when they are facing death, and several legal doctrines are based on the idea that death …

Young Again, Larry Yackle

Larry Yackle

This essay revisits an old problem in the law of federal courts: the source of the right of action in Ex parte Young. The Supreme Court’s 1908 decision in Young is primarily remembered for its treatment of state sovereign immunity. Yet the plaintiffs’ right of action (their entitlement to sue) presented an independent issue that has long been debated in academic circles. That question is again on the agenda inasmuch as Young figures in the current controversy about whether private litigants may routinely press preemption claims in federal court without explicit authorization from Congress. Proponents contend that preemption suits are …

Predisposition And Positivism: The Forgotten Foundations Of The Entrapment Doctrine", T. Ward Frampton

T. Ward Frampton

For the past eighty years, the entrapment doctrine has provided a legal defense for those facing federal prosecution, but only for those defendants lacking criminal “predisposition” prior to the government’s inducement. The peculiar contours of this doctrine have generated significant academic debate, yet this scholarship has failed to explain why the entrapment doctrine developed as it did in the first instance. This Article addresses this gap by examining competing views on criminality and punishment in America during the doctrine’s emergence, highlighting the significant (though largely forgotten) impact of positivist criminology on the early twentieth-century legal imagination. Though positivism has long …

The Unity Thesis: How Positivism Distorts Constitutional Argument, John Lunstroth

John Lunstroth

The scientific revolution (or radical Enlightenment) distorted the way we understand the law by causing legal concepts, such as the idea of state, to be split into a scientific (positivist) part and a prudential (moral) part. The Unity Thesis gives us tools for understanding the mechanisms by which that happened and for mapping routes to the future that may be better for everyone. I illustrate using the US Constitution. The idea of the constitution we receive is already a scientific concept, originating in the ideas of state and common good that prevailed well into the 17th century. On the one …

News Value, Islamophobia, Or The First Amendment, Why And How The Philadelphia Inquirer Published The Danish Cartoons, Robert Kahn

Robert Kahn

The typical framing of the United States in the Danish cartoon controversy is driven by the refusal of most papers to republish the cartoons. On this view, American journalists, unlike their European counterparts, focused narrowly on the cartoons' "news value" which--even at the papers that published the cartoons--ruled out the anti-Muslim stereotypes that accompanied the running of the cartoons in Denmark and Europe.

This paper puts this frame to the test by looking at the debate that unfolded after the Philadelphia Inquirer ran the turban cartoon. While editor Amanda Bennett defended her decision as "what newspapers do," a detailed review …

Getting Clear On The Originalism Debate: Is Originalism A Theory Of Constitutional Interpretation Or A Normative Rule Of Law?, Judy Hensley

Judy Hensley

The accompanying Article argues that proponents of Constitutional originalism have conflated conceptually distinct terms "meaning," "understanding" and intent, and that this blurring has permitted originalist theory to ignore a tension in its dual justifications rooted in democratic theory, on the one hand, and rooted in a standard semantic theory of intentionalism, on the other by showing that the demands of originalism’s underlying legal theoretical justification conflict with the those of its underlying semantic theoretical justifications. The conflict arises because the normatively significant agent in democratic theory is the Constitutional ratifiers whereas in the standard intentionalist semantic theory it is the …

Constitutional Discourse In The Dyer Anti-Lynching Bill Debate, Alexander F. A. Rabanal

Alexander F. A. Rabanal

No abstract provided.

A Line In The Sand: The Affair Between Henry Ii And Thomas Becket, Deana Perry

Deana Perry

No abstract provided.

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. This article examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. As an Associate …

Bush V. Gore: The Worst (Or At Least Second-To-The-Worst) Supreme Court Decision Ever, Mark S. Brodin

Mark S. Brodin

In the stiff competition for worst Supreme Court decision ever, two candidates stand heads above the others for the simple reason that they precipitated actual fighting wars in their times. By holding that slaves, as mere chattels, could not sue in court and could never be American citizens, and further invalidating the Missouri Compromise, which had prohibited slavery in new territories, Dred Scott v. Sanford charted the course to secession and Civil War four years later. By disenfranchising Florida voters and thereby appointing popular-vote loser George W. Bush as President, Bush v. Gore set in motion events which would lead …

Punishment's Justification, Jeffrey T. Renz

Jeffrey T Renz

Kant’s late 18th Century articulation of retribution and Bentham and Mill’s 19th Century theory of deterrence have survived as the chief justifications for punishing criminals. The two have always been in competition, despite some attempts (chiefly by John Rawls and H.L.A. Hart) to have one serve the other.

The debate between retributivists and utilitarians has recently taken on new life. See C. Flanders, Retribution and Reform, 70 Md. L. Rev. 8 (2010); D. Gray & J. Huber, Retributivism for Progressives: A Reply to Professor Flanders, 70 Md. L. Rev. 141 (2010); D. Markel, Bentham on Stilts: The Bare Relevance of …