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Full-Text Articles in Legal History

Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz Jul 2019

Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz

Arkansas Law Review

On July 10, 1832, President Andrew Jackson issued the most famous and controversial veto in United States history. The bill in question was “to modify and continue” the 1816 “act to incorporate the subscribers to the Bank of the United States. This was to recharter of the Second Bank of the United States whose constitutionality was famously upheld in McCulloch v. Maryland. The bill was passed by Congress and presented to Jackson on July 4. Six days later, Jackson vetoed the bill. Jackson’s veto mortally wounded the Second Bank, which would forever close its doors four years later at ...


The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis Jun 2019

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Alexander Tsesis

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court ...


The Declaration Of Independence As Introduction To The Constitution, Alexander Tsesis Jun 2019

The Declaration Of Independence As Introduction To The Constitution, Alexander Tsesis

Alexander Tsesis

No abstract provided.


The "Guarantee" Clause, Ryan C. Williams Apr 2019

The "Guarantee" Clause, Ryan C. Williams

Ryan Williams

Article IV’s command that “the United States shall guarantee to every State in this Union a Republican Form of Government” stands as one of the few remaining lacunae in the judicially enforced Constitution. For well over a century, federal courts have viewed the provision — traditionally known as the Guarantee Clause but now referred to by some as the “Republican Form of Government” Clause — as a paradigmatic example of a nonjusticiable political question. In recent years, however, both the Supreme Court and lower federal courts have signaled a new willingness to reconsider this much-criticized jurisdictional barrier in an appropriate case ...


Table Of Contents, Seattle University Law Review Feb 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Censorial Copyright, Shyamkrishna Balganesh Feb 2019

Censorial Copyright, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

Censorial copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of the author’s personal identity. Driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, these claims are almost as old as Anglo-American copyright law itself. Yet, modern thinking has attempted to undermine their place within copyright law, and sought to move them into the domain of privacy law. This Article challenges the dominant view and argues that censorial copyright claims form a legitimate part of the copyright landscape. It shows how censorial copyright ...


Judging Well, Francis J. Mootz Iii Jan 2019

Judging Well, Francis J. Mootz Iii

Washington University Jurisprudence Review

Can judges interpret the law in a manner that is objectively verifiable, or do judges necessarily – even if unconsciously – inject their own predispositions and biases into their decisions? It is difficult to decide whether such a question is frivolous in the post-Realist age, or whether it is the is the single most important question that we can ask about our legal system. I endorse both responses. The question, as phrased, is both vitally important and unanswerable on its own terms. Rather than seeking an elusive objective standard by which to measure the correctness of “a judgment,” I argue that we ...


Against Life Without Parole, Judith Lichtenberg Jan 2019

Against Life Without Parole, Judith Lichtenberg

Washington University Jurisprudence Review

We have many good reasons to abolish life without parole sentences (LWOP, known in some countries as whole life sentences) and no good reasons not to. After reviewing the current state of LWOP sentences in the United States, I argue that the only rationale for punishment that can hope to justify them is retributivism. But even if retributivism is a sound principle, it in no way entails life without parole. One reason is that unless one believes, like Kant, that appropriate punishments must be carried out whatever the circumstances, we must acknowledge that other considerations are relevant to determining punishments ...


Reconciling The Rule Of Law: Rights And Punishment, Benjamin L. Apt Jan 2019

Reconciling The Rule Of Law: Rights And Punishment, Benjamin L. Apt

Washington University Jurisprudence Review

There is an intractable paradox in the relation between rights and criminal punishment. Criminal punishment frequently conflicts with rights; people typically have identical rights within a legal system, yet the punished are unable to exercise the rights to the same extent as other people. But criminal punishment, in conjunction with criminal laws, also operates to protect rights. To clarify the tension between rights and punishment, I start by analyzing the content and purpose of rights. Next I discuss the nature of rules and the particular types of rules that make up a typical “systems of rules.” I then argue that ...


A Clash Of Principles: Personal Jurisdiction And Two-Level Utilitarianism In The Information Age, Wesley M. Bernhardt Jan 2019

A Clash Of Principles: Personal Jurisdiction And Two-Level Utilitarianism In The Information Age, Wesley M. Bernhardt

Washington University Jurisprudence Review

Utilitarianism provides the best analytic framework for “minimum contacts” analyses in multi-state mass tort litigation. Utilitarianism is a consequentialist ethical philosophy contending that one should act in a way that maximizes utility; that is, act in a way that maximizes pleasure and minimizes pain. This is often referred to as the “felicific calculus.”1 To maintain a civil lawsuit against a defendant, a court must have “personal jurisdiction” over that defendant, meaning that the defendant must have minimum contacts related to the suit such that maintenance of the suit does not offend traditional notions of fair play and substantial justice ...


Political Speech In The Armed Forces: Shouting Fire In A Crowded Cyberspace, Elliott Hughes Jan 2019

Political Speech In The Armed Forces: Shouting Fire In A Crowded Cyberspace, Elliott Hughes

Washington University Jurisprudence Review

A staple of the American version of democracy is civilian control of the military: we are uncomfortable with politicization of the Armed Forces, and military and other federal laws restrict the political expression of servicemembers (“SMs”) in the Armed Forces, whether they are active- duty members or National Guard or Reserves serving on active duty. These restrictions, while well-intentioned to prevent actual or apparent political partisanship or bias within the military, have the undesired effect of deterring SMs from otherwise healthy political expression. With the advent of the internet and proliferation of social media use, questions regarding SM status and ...


Ethnic Studies As Antisubordination Education: A Critical Race Theory Approach To Employment Discrimination Remedies, Theanne Liu Jan 2019

Ethnic Studies As Antisubordination Education: A Critical Race Theory Approach To Employment Discrimination Remedies, Theanne Liu

Washington University Jurisprudence Review

This Note will use a critical race theory lens to argue that most trainings on equal employment opportunity (“EEO”), diversity, or implicit bias operate as a restrictive remedy to Title VII race discrimination violations, and that incorporating an ethnic studies framework into these trainings can further an expansive view of antidiscrimination law. A restrictive view of antidiscrimination law treats discrimination as an individual instead of structural or societal wrong and looks to addressing future acts of discrimination instead of redressing past and present injustices. An expansive view of antidiscrimination law sees its objective as eradicating conditions of racial subordination. Ethnic ...


Global Judicial Transparency Norms: A Peek Behind The Robes In A Whole New World — A Look At Global “Democratizing” Trends In Judicial Opinion-Issuing Practices, J. Lyn Entrikin Jan 2019

Global Judicial Transparency Norms: A Peek Behind The Robes In A Whole New World — A Look At Global “Democratizing” Trends In Judicial Opinion-Issuing Practices, J. Lyn Entrikin

Washington University Global Studies Law Review

Global developments over the last two decades have debunked the traditional understanding that separate opinions are idiosyncratic of courts in nations following the common law tradition. History reflects that judicial opinion-issuing practices have evolved around the world, adapting to the increasing globalization of legal systems. And recent research confirms that most international and supranational tribunals, even those headquartered in continental Europe, expressly permit individual judges to issue separate opinions, although in some courts various internal norms and customs operate to discourage the practice. In addition, the majority of European national constitutional courts now permit individual judges to publish separate opinions ...


Neuroscience, Justice, And The "Mental Causation" Fallacy, John A. Humbach Jan 2019

Neuroscience, Justice, And The "Mental Causation" Fallacy, John A. Humbach

Washington University Jurisprudence Review

Mental causation is a foundational assumption of modern criminal

justice. The law takes it for granted that wrongdoers “deserve”

punishment because their acts are caused by intentions, reasons and other

mental states. A growing body of neuroscience evidence shows, however,

that human behavior is produced by observable physiological activity in

the brain and central nervous system—all in accordance with ordinary

physical laws. Beyond these ordinary physiological interactions and

processes, no hypothesis of mental causation is required to causally

explain behavior.

Despite the evidence, neuroskeptics insist that intentions, reasons and

other mental states can play a causal role in producing ...


Polarization At The Supreme Court? Substantive Due Process Through The Prism Of Legal Theory, Miriam Galston Jan 2019

Polarization At The Supreme Court? Substantive Due Process Through The Prism Of Legal Theory, Miriam Galston

Washington University Jurisprudence Review

Much has been written about Obergefell v. Hodges, holding that

same-sex marriage is protected by the Fourteenth Amendment. Virtually

all commentators view the decision as an example of an increasingly

polarized Supreme Court.

This article challenges that characterization by analyzing Kennedy’s

majority opinion and Roberts’ dissent in Obergefell in light of the legal

theories of H. L. A. Hart and Lon Fuller. The article argues that, from a

legal theory perspective, Kennedy and Roberts exhibit numerous, often

surprising commonalities. In addition, Kennedy’s arguments seem to

accurately reflect the methodology he explicitly endorses. Roberts, in

contrast, seems to exaggerate ...


Privacy And The Internet Of Things: Why Changing Expectations Demand Heightened Standards, Graham Johnson Jan 2019

Privacy And The Internet Of Things: Why Changing Expectations Demand Heightened Standards, Graham Johnson

Washington University Jurisprudence Review

Entertainment consoles, wearable monitors, and security systems. For

better or worse, internet-connected devices are revolutionizing the

consumer products industry. Referred to broadly as the Internet of Things

(IoT), this ‘smart’ technology is drastically increasing the means, scope,

and frequency by which individuals communicate their personal

information. This Note explores the disruptive impact of IoT consumer

devices on the U.S.’s patchwork system of privacy protections. After

presenting a high-level survey of several key regulatory issues, this Note

argues that the proliferation of IoT devices exposes a fundamental flaw in

the Katz “reasonable expectation of privacy” standard. As individual

expectations ...


Covering And Identity Performance In Employment Discrimination Law, Megan Von Borstel Jan 2019

Covering And Identity Performance In Employment Discrimination Law, Megan Von Borstel

Washington University Jurisprudence Review

At a time when the law is transforming gay rights, the LGBTQ

community finds itself at the climax of its latest civil rights challenge:

federal employment non-discrimination protections. This Note addresses

the federal circuit split regarding whether Title VII’s prohibition against

sex discrimination includes a prohibition on the basis of sexual

orientation. By integrating the Seventh Circuit’s analysis in Hively v. Ivy

Tech Community College within the frameworks of intersectionality,

identity performance, and queer theory, this Note evaluates how an

evolving understanding of Title VII’s protections affect members of the

LGBTQ communities.


Examining The Legality Of Employee Microchipping Under The Lens Of The Transhumanistic Proactionary Principle, Joshua Z. Wasbin Jan 2019

Examining The Legality Of Employee Microchipping Under The Lens Of The Transhumanistic Proactionary Principle, Joshua Z. Wasbin

Washington University Jurisprudence Review

Modern workplaces are beginning to look to implanting their

employees with RFID microchips as a replacement for badges and

keycards. While both employers and employees stand to benefit from the

convenience of this innovation, states have begun to look to legislative

options for restricting employers from requiring that their employees get

microchipped. This Note will examine some of the state legislation and

will argue that Congress must institute a federal law that will provide

similar, if not stronger, levels of protection for employees who seek to

avoid being microchipped, an argument premised upon the

Transhumanistic Proactionary Principle.


The Influence Of The Warren Court And Natural Rights On Substantive Due Process, James Marmaduke Jan 2019

The Influence Of The Warren Court And Natural Rights On Substantive Due Process, James Marmaduke

Calvert Undergraduate Research Awards

Advanced Research Winner 2019:

While the concept of substantive due process has guided judicial decision making even prior to the Civil War, it has become a lightning rod among the juristic community especially since the 1960s. This controversy includes issues ranging from the applicability and reliability to the cogency and legitimacy of the doctrine of substantive due process Many scholars attribute the skepticism toward the concept of substantive due process to be the result of a paradigm shift in the middle of the 20th century when this concept transitioned from an economic and property rights based approach to one ...


Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank Jan 2019

Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank

Faculty Scholarship at Penn Law

Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as ...


Argument And The "Moral Impact" Theory Of The Law, Alani Golanski Jan 2019

Argument And The "Moral Impact" Theory Of The Law, Alani Golanski

Washington University Jurisprudence Review

The innovative Moral Impact Theory (“MIT”) of law claims that the

moral impacts of legal institutional actions, rather than the linguistic

content of “rules” or judicial or legislative pronouncements, determine

law’s content. MIT’s corollary is that legal interpretation consists in the

inquiry into what is morally required as a consequence of the lawmaking

actions.

This paper challenges MIT by critiquing its attendant view of the

nature of legal interpretation and argument. Points include the following:

(1) it is not practicable to predicate law’s content on the ability of legal

officials to resolve moral controversies; (2) it would ...


Finding Law, Stephen E. Sachs Jan 2019

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and ...


Whose Market Is It Anyway? A Philosophy And Law Critique Of The Supreme Court’S Free-Speech Absolutism, Spencer Bradley Jan 2019

Whose Market Is It Anyway? A Philosophy And Law Critique Of The Supreme Court’S Free-Speech Absolutism, Spencer Bradley

Dickinson Law Review

In the wake of Charlottesville, the rise of the alt-right, and campus controversies, the First Amendment has fallen into public scrutiny. Historically, the First Amendment’s “marketplace of ideas” has been a driving source of American political identity; since Brandenburg v. Ohio, the First Amendment protects all speech from government interference unless it causes incitement. The marketplace of ideas allows for the good and the bad ideas to enter American society and ultimately allows the people to decide their own course.

Yet, is the First Amendment truly a tool of social progress? Initially, the First Amendment curtailed war-time dissidents and ...


Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis Jan 2019

Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis

Dickinson Law Review

A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate. Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by ...


The Declaration Of Independence And The American Theory Of Government: “First Come Rights, And Then Comes Government”, Randy E. Barnett Jan 2019

The Declaration Of Independence And The American Theory Of Government: “First Come Rights, And Then Comes Government”, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The topic of this panel is the Declaration of Independence, to which I devoted a chapter of my recent book, Our Republican Constitution. I want to draw on that book to make five points.


Originalism And Second-Order Ipse Dixit Reasoning In Chisholm V. Georgia, D. A. Jeremy Telman Dec 2018

Originalism And Second-Order Ipse Dixit Reasoning In Chisholm V. Georgia, D. A. Jeremy Telman

D. A. Jeremy Telman


This Article presents a new perspective on the Supreme Court’s constitutional jurisprudence during the Early Republic.  It focuses on what I am calling second-order ipse dixit reasoning, which occurs when Justices have to decide between two incommensurable interpretive modalities.  If first-order ipse dixit is unreasoned decision-making, second-order ipse dixit involves an unreasoned choice between or among two or more equally valid interpretive options.  The early Court often had recourse to second-order ipse dixit because methodological eclecticism characterized its constitutional jurisprudence, and the early Court established no fixed hierarchy among interpretive modalities.
Chisholm, the pre-Marshall Court’s most important constitutional ...


All That Is Liquidated Melts Into Air: Five Meta-Interpretive Issues, D. A. Jeremy Telman Dec 2018

All That Is Liquidated Melts Into Air: Five Meta-Interpretive Issues, D. A. Jeremy Telman

D. A. Jeremy Telman


The promise of originalism is that it helps us to fix constitutional meaning and constrain constitutional decision-makers.  There are significant constitutional questions that originalism can help resolve, at least to the extent that constitutional decision-makers buy in to originalism. However, even assuming that originalism is normatively desirable, there are certain issues that are fundamental to constitutional decision-making but that originalism cannot help us resolve. The Framers were hopelessly divided on them, and they may not be susceptible to Madisonian “liquidation.”  That is, at least some of these issues still generate live controversies even though they some of them seem to ...


Originalism As Fable, D. A. Jeremy Telman Dec 2018

Originalism As Fable, D. A. Jeremy Telman

D. A. Jeremy Telman


Eric Segall’s Originalism as Faith provides both a history of the originalist movement in constitutional interpretation and a critique of that movement from the perspective of legal realism.This Review Essay summarizes Segall’s main argument: as originalism has abandoned deference to the political branches, it has become indistinguishable from its nemesis, living constitutionalism. Emptied of substance, originalism becomes nothing more than an expression of faith. Segall makes his argument very convincingly, evidencing both his knowledge of originalism, in all its variants and his mastery of constitutional doctrine.
This Essay offers two ways in which Segall’s exemplary work ...


Rethinking The Federal Indian Status Test: A Look At The Supreme Court's Classification Of The Freedmen Of The Five Civilized Tribe Of Oklahoma, Clint Summers Dec 2018

Rethinking The Federal Indian Status Test: A Look At The Supreme Court's Classification Of The Freedmen Of The Five Civilized Tribe Of Oklahoma, Clint Summers

American Indian Law Journal

No abstract provided.


The "Guarantee" Clause, Ryan C. Williams Dec 2018

The "Guarantee" Clause, Ryan C. Williams

Boston College Law School Faculty Papers

Article IV’s command that “the United States shall guarantee to every State in this Union a Republican Form of Government” stands as one of the few remaining lacunae in the judicially enforced Constitution. For well over a century, federal courts have viewed the provision — traditionally known as the Guarantee Clause but now referred to by some as the “Republican Form of Government” Clause — as a paradigmatic example of a nonjusticiable political question. In recent years, however, both the Supreme Court and lower federal courts have signaled a new willingness to reconsider this much-criticized jurisdictional barrier in an appropriate case ...