Jurisprudence Commons^™

Paying Eliza: Comity, Contracts, And Critical Race Theory, Or 19th Century Choice Of Law Doctrine And The Validation Of Antebellum Contracts For The Purchase And Sale Of Human Beings, Diane J. Klein

ExpressO

During the period before the Civil War, courts in non-slave-holding states were sometimes called upon to enforce contracts for the purchase and sale of human beings (or contracts whose consideration otherwise consisted of human beings), and sometimes did so, for reasons arguably having more to do with inter-state contract law than with the “peculiar institution” itself. What may be more surprising, and more difficult to understand, is that some “Union” courts went on doing so even after the Civil War ended, when substantive changes of law, together with well-established exceptions to general principles favoring out-of-state contract enforcement, made the contrary …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Parents Involved & Meredith: A Prediction Regarding The (Un)Constitutionality Of Race-Conscious Student Assignment Plans, Eboni S. Nelson

ExpressO

During the October 2006 Term, the United States Supreme Court will consider the constitutionality of voluntary race-conscious student assignment plans as employed in Parents Involved in Community Schools v. Seattle School District No.1 and Meredith v. Jefferson County Board of Education. These cases will mark the Court’s first inquiry regarding the use of race to combat de facto segregation in public education. This article examines the constitutionality of such plans and provides a prediction regarding the Court’s decisions.

The article begins with an analysis of the resegregation trend currently plaguing American educational institutions and identifies two causes for the occurrence: …

Radicals In Robes: A Review, Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book about conservative activists in the federal judiciary. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an …

Tough Talk From The Supreme Court On Free Speech: The Illusory Per Se Rule In Garcetti As Further Evidence Of Connick’S Unworkable Employee/Citizen Speech Partition, Sonya K. Bice

ExpressO

Garcetti v. Ceballos was intended to clear up an area of First Amendment law so murky that it was the source not only of circuit splits but also of intra-circuit splits—panels from within the same circuit had arrived at opposite results in nearly identical cases. As it turned out, the Supreme Court itself was as splintered as the circuits. Of all the previously argued cases that remained undecided during the Court’s transition involving Justice O’Connor’s retirement and Justice Alito’s confirmation, Garcetti was the only one for which the Court ordered a second argument. This suggested to some that without a …

A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch

ExpressO

This Article argues that the use of structural injunction remedies by South African courts is appropriate, and, in light of demonstrated government inaction, often necessary in order to give meaning to the protection of socio-economic rights, which is mandated by their Constitution. The Article draws upon numerous United States judicial decisions where structural injunctions have been successfully implemented to address systemic institutional inaction and violations of the equal protection and due process clauses of the United States Constitution. In numerous instances, the South African government has not acted to effectively give meaning to the socio-economic rights which were broadly declared …

Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

The Roberts Court: Year 1, Lori A. Ringhand

ExpressO

This paper is an empirical examination of the recently ended 2005 Supreme Court term. The paper, in addition to reviewing the work of the Court as a whole, also examines the jurisprudence of new justices Roberts and Alito. In doing so, it proposes the intriguing possibility that these two justices may share a jurisprudential approach different from the Court's more established conservatives. If correct, this raises numerous and interesting possibilities for the future of conservativism on the Supreme Court.

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Mixed Messages: The Supreme Court’S Conflicting Decisions On Juries In Death Penalty Cases, Ken Miller, David Niven

ExpressO

The right to a jury determination of a capital defendant's fate has expanded recently. The era of judges making factual determinations then determining whether to apply a death sentence or judges having the power to overrule a jury's life sentence to impose death is over. The expanded right to access a jury and have it hold determinative power over a defendant's life has not, however, been accompanied by commensurate attention to the instructions that guide those jurors through the applicable law toward their verdict. Nor have adequate procedures been designed to produce a truly representative jury panel. In brief, the …

Review Essay: Radicals In Robes , Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book entitled Radicals in Robes. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an alternative rationale for …

Any Place For Ethnicity? The Liberal State And Immigration, David Abraham

ExpressO

When it comes to immigration, almost all liberal states are faced with the contradiction between their universalist principles and the real affinities they feel for ethnic kinsmen. This review essay (4000 words) addresses the different ways a number of liberal democracies have handled this dilemma.

An Analysis Of The Contemporary Role Of Social Science In The Law: The Case Of Race Conscious Admissions, Crystal R. Gafford Muhammad

ExpressO

The present inquiry focuses on the role of social science evidence contemporarily, using observations from judicial opinions in race conscious admissions cases. Using a set of judicial opinions from K-12 voluntary desegregation and higher education affirmative action in admissions, I use legal and statistical analysis to argue that social science data presented into evidence does not affect the outcomes of court cases involving normative subject matters, such as those involving race. I find judicial political affiliation to be the greatest predictor of opinions in this area of law. However, the question is not whether social science evidence is influential or …

Winning Wirzburger And Defeating The Blaine Amendments: Arguing Present Efficacy Instead Of Past Intent, Brendan Michael Groves

ExpressO

The case of Wirzburger v. Galvin, currently on a writ of certiorari to the Supreme Court, may set the tone for all religious discrimination cases in the future. Massachusetts’ constitutional amendments that proscribe any citizen initiatives from either dealing with religion in general or attempting to repeal the states Blaine Amendment are at issue in the case. Petitioner’s counsel, the Becket Fund, rightly views this case as paramount in the long-march to victory over the anti-Catholic Blaine Amendments still codified in 37 state constitutions. However, they have lost almost every stage of the case.

This article argues that Wirzburger and …

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

ExpressO

This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

The Constitutional Rhetoric Of White Innocence, Cecil J. Hunt

ExpressO

This article discusses the Supreme Court’s use of the rhetoric of white innocence in deciding racially inflected claims of constitutional shelter. It argues that the Court’s use of this rhetoric reveals that it has adopted a distinctly white-centered-perspective which reveals only a one-sided view of racial reality and thus distorts its ability to accurately appreciate the true nature of racial reality in contemporary America. This article examines the Court’s habit of consistently choosing a white-centered-perspective in constitutional race cases by looking at the Court’s use of the rhetoric of white innocence first in the context of the Court’s concern with …

Role-Based Policing: Restraining Police Conduct “Outside The Legitimate Investigative Sphere”, Eric J. Miller

ExpressO

The last quarter of a century has produced a growing legitimacy crisis in the criminal justice system arising from profound and familiar differences in race and class. The same tactics used to win the War on Crime also harassed and intimidated the very people policing was supposed to protect, sending disproportionate numbers of young minority men and women to prison as part of War On Drugs.

In this article, I take up challenge of social norms theorists who advocate empowering police and local communities through a variety of traditional and newly minted public order offenses. My claim is that the …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Lost In The Shuffle: State-Recognized Tribes And The Tribal Gaming Industry, Alexa Koenig, Jonathan Stein

ExpressO

This article presents the emerging argument that Native American tribes that have received state but not federal recognition have a legal right to engage in gaming under state law. This argument is based on five points: that 1) the regulation of gaming is generally a state right; 2) state tribes are sovereign governments with the right to game, except as preempted by the federal government; 3) federal law does not preempt gaming by state tribes; 4) state tribal gaming does not violate Equal Protection guarantees; and 5) significant policy arguments weigh in favor of gaming by state tribes under state …

Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree

ExpressO

The article explores the rhetorical strategies deployed in both legal and cultural narratives of Mormon polygamy in nineteenth-century America. It demonstrates how an understanding of that unique communal experience, and the narratives by which it was represented, informs the classic paradox of community and autonomy – the tension between the collective and the individual. The article concludes by using the Mormon polygamy analysis to illuminate a contemporary social situation that underscores the paradox of community and autonomy – homosexuality and the so-called culture wars over family values and the meaning of marriage.

Counter-Majoritarian Power And Judges' Political Speech, Michael R. Dimino

ExpressO

Canons of ethics restrict judicial campaigning and prohibit sitting judges from engaging in political activity. Only recently, in Republican Party v. White, 536 U.S. 765 (2002), has the Supreme Court addressed the constitutionality of these restrictions, concluding that judicial candidates must be allowed some opportunity to discuss legal and political issues in their campaigns. But White left many questions unanswered about the permissible scope of restrictions on judges’ political activity.

This Article suggests that those questions will be answered not by applying principles of free speech, but by analyzing the opportunities the restrictions provide for independent judicial policy-making. Restrictions on …

It's Not The Thought That Counts, Deborah S. Hellman

ExpressO

The article considers a central question about discrimination – are an actor’s intentions relevant to whether an action wrongfully discriminates – and takes issue with a familiar answer to this question. If one thinks of “discrimination” in its literal sense, as simply drawing distinctions among people on the basis of possessing or lacking some trait, it becomes clear that discrimination is ubiquitous and often benign. The challenge is to distinguish when discrimination is permissible and when it is not. One common answer to this question is that it is the intentions of the actor who adopts or enacts a law, …

Reviving A Natural Right: The Freedom Of Autonomy, Michael Anthony Lawrence

ExpressO

America in the early twenty-first century is a place where oppressive state constitutional amendments discriminate against millions of gay Americans; where compassionate end-of-life choice is illegal in 49 states and where the one state where it is legal is being sued by the U.S. government; where hundreds of thousands are arrested yearly and tens of thousands are in prison for private possession or use of marijuana; where a woman’s right to maintain control over her own reproductive decisions hangs by a thread; and where religious freedom is under relentless attack.

Whatever became of the ideal that represented the very foundation …

Reports Of Batson's Death Have Been Greatly Exaggerated: How The Batson Doctrine Enforces A Normative Framework Of Legal Ethics, Laura I. Appleman

ExpressO

In this article, I aim to explain how the Batson procedure enforces a normative framework of legal ethics, a theory which I hope will be of use to both criminal law professors and scholars of legal ethics. Despite many recent prudential attacks against the Batson procedure and the peremptory challenge, I contend that Batson has a largely unarticulated ethical component, one that invokes a lawyer’s professional responsibility. Accordingly, using legal ethics as a lens through which to interpret Batson sheds new light on the doctrine. Batson’s ethical imperative affects the norms of the legal profession itself. By fostering a non-discrimination …

Book Review: Forensic Linguistics, Dru Stevenson

ExpressO

Review of John Gibbons' text "Forensic Linguistics"

A Brief Look At Broward County Lawyers’ And Judges’ Attitudes Toward Plea Bargaining As A Tool Of Courtroom Efficiency, Mohammad A. Faruqui

ExpressO

Even the most rigidly ideological prosecutors acknowledge that they need to plea out most of the less serious criminal charges to ensure justice without incurring an unmanageable backlog of cases. But what do most criminal lawyers and judges think about the plea arrangment system? Is it fair to defendants? Do lawyers use plea bargains to better serve their clients by finding the best deal, or do they use plea bargains to cut their case load for what some call "garbage cases?" This paper surveys a small sample to see how 21st century Broward County criminal lawyers feel about the plea …

Towards An Establishment Clause Theory Of Race-Based Allocation After Grutter: Administering Race-Conscious Financial Aid, Maurice R. Dyson

ExpressO

The novel application of the Establishment Clause doctrine by way of analogy to race0based financial aid after Grutter and Grats, while not identical, speaks to real issue of neutrality that is implicit in the debate of administering race-based scholarships that should be truthfully acknowledged. There is no concern about improper university indoctrination of race as the Grutter court has already established race-based diversity as worthy of a compelling state interest. Moreover, there is no concern that a college or university would establish an imprimatur on race-based scholarships merely or solely because it identifies potential candidates meeting specified eligibility criteria which …

What's Really Wrong With Compelled Association?, Seana V. Shiffrin

ExpressO

What's Really Wrong With Compelled Association?

The article presents an original account of the value of freedom of association, one more intimately tied to freedom of speech values than the models of association implicit in much commentary and in such U.S. Supreme Court cases as Boy Scouts v. Dale and Roberts v. U.S. Jaycees. Standard models view the relationship between associations and free speech as instrumental. On these accounts, voluntary associations serve as sites for individuals with a defined point of view to congregate together and make their communication louder and more effective. While voluntary associations may sometimes serve this …

Citizens Of An Enemy Land: Enemy Combatants, Aliens, And The Constitutional Rights Of The Pseudo-Citizen, Juliet P. Stumpf

ExpressO

No abstract provided.