Legal History Commons^™

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

The Commons, Capitalism, And The Constitution, George Skouras

George Skouras

Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock

Charles W. Murdock

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension, …

Collective Choice, Justin Schwartz

Justin Schwartz

This short nontechnical article reviews the Arrow Impossibility Theorem and its implications for rational democratic decisionmaking. In the 1950s, economist Kenneth J. Arrow proved that no method for producing a unique social choice involving at least three choices and three actors could satisfy four seemingly obvious constraints that are practically constitutive of democratic decisionmaking. Any such method must violate such a constraint and risks leading to disturbingly irrational results such and Condorcet cycling. I explain the theorem in plain, nonmathematical language, and discuss the history, range, and prospects of avoiding what seems like a fundamental theoretical challenge to the possibility …

Pearson, Iqbal, And Procedural Judicial Activism, Goutam U. Jois

Goutam U Jois

In its most recent term, the Supreme Court decided Pearson v. Callahan and Ashcroft v. Iqbal, two cases that, even at this early date, can safely be called “game-changers.” What is fairly well known is that Iqbal and Pearson, on their own terms, will hurt civil rights plaintiffs. A point that has not been explored is how the interaction between Iqbal and Pearson will also hurt civil rights plaintiffs. First, the cases threaten to catch plaintiffs on the horns of a dilemma: Iqbal says, in effect, that greater detail is required to get allegations past the motion to dismiss stage. …

Race, Sex, And Rulemaking: Administrative Constitutionalism And The Workplace, 1960 To The Present, Sophia Z. Lee

All Faculty Scholarship

This Article uses the history of equal employment rulemaking at the Federal Communications Commission (FCC) and the Federal Power Commission (FPC) to document and analyze, for the first time, how administrative agencies interpret the Constitution. Although it is widely recognized that administrators must implement policy with an eye on the Constitution, neither constitutional nor administrative law scholarship has examined how administrators approach constitutional interpretation. Indeed, there is limited understanding of agencies’ core task of interpreting statutes, let alone of their constitutional practice. During the 1960s and 1970s, officials at the FCC relied on a strikingly broad and affirmative interpretation of …

The “Institutional Turn” In Jurisprudence: Critique And Reconstruction., Andres Palacios Lleras

Andrés Palacios Lleras

This paper engages in a inquiry into the roles that courts play within the legal system, given that judges are interdependent interpreters of legal rules that are boundedly rational and, arguably, politically biased. Contemporary authors claim that, although these two conditions play an important role in interpretation, contemporary theories in jurisprudence have not addressed them properly. Their assessments raise legal issues that are very significant; given the fact that judges are boundedly rational and tend to display political biases, how should they interpret legal rules? Is it best for them to interpret these rules in a formalist fashion, without resorting …

The Indeterminate Side Of Constitutions As Precommitment Strategies, Andres Palacios Lleras

Andrés Palacios Lleras

This paper engages in a time-honored inquiry in American jurisprudence, an inquiry which continues to be invigorated by contemporary studies in Constitutional Law. It is an inquiry into the determinacy of the American Constitution as a legal text, taking into account that it was drafted and approved more than two hundred years ago with the purpose, arguably, to organize present and future political decision-making. Some contemporary authors claim that the discussion about the role of the Constitution is muddled, and that to acknowledge its authority does not necessarily entail a theory of constitutional interpretation. Furthermore, other authors have claimed that …

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.

Commercial Law In The Cracks Of Judicial Federalism, Donald J. Smythe

ExpressO

Almost seventy years after the Supreme Court sought to rationalize the American system of judicial federalism in Erie, sales law remains trapped in a pattern more reminiscent of the Swift v. Tyson era. The extraordinarily wide separation of powers in the NCCUSL-ALI uniform law-making process has entrenched Article 2 of the UCC in the status quo. Concurrently, an imbalance between the federal and state courts in the American system of judicial federalism has conferred an unusually wide range of discretion over state commercial law on the federal courts. Ironically, therefore, state sales statutes are being reinterpreted and revised by the …

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.

Before Competition: Origins Of The Internal Affairs Doctrine, Frederick Tung

ExpressO

To the modern corporate scholar and lawyer, the internal affairs doctrine seems in the natural order of things. Corporate law is state law. Each corporation is formed under the law of its chosen state of incorporation. To ensure consistency and predictability, that law must govern the corporation’s internal affairs. Yet the origin of such a doctrine is puzzling. Respecting the firm’s choice of corporate law, the doctrine forces state legislatures into competition to attract incorporations. But how did legislatures come to concede their traditional territorial regulatory authority, and instead agree to compete? This Article solves this puzzle, offering the first …

Regulatory Reform: The New Lochnerism?, David M. Driesen

ExpressO

This article explores the question of whether contemporary regulatory reformers’ attitudes toward government regulation have anything in common with those of the Lochner-era Court. It finds that both groups tend to favor value neutral law guided by cost-benefit analysis over legislative value choices. Their skepticism toward redistributive legislation reflects shared beliefs that regulation often proves counterproductive in terms of its own objectives, fails demanding tests for rationality, and violates the natural order. This parallelism raises fresh questions about claims of neutrality and heightened rationality that serve as important justifications modern regulatory reform.

Las Paradojas De La Democracia Deliberativa / The Paradoxes Of Deliberative Democracy, Andres Palacios Lleras

Andrés Palacios Lleras

Este artículo argumenta por qué la teoría de la democracia deliberativa es problemática y paradójica, y por lo tanto inadecuada para desarrollar las instituciones democráticas contemporáneas, o para reemplazarlas por otras. Es una teoría problemática porque parte de una postura epistemológica difícilmente sostenible. Es paradójica porque a pesar de ser presentada como incluyente a nivel social, la idea de deliberación que presenta y considera como deseable, es demasiado exigente como para ser realizada por toda clase de personas; y es de hecho, elitista en este aspecto. Pero también porque señala que las instancias que están mejor diseñadas para tomar decisiones …

Boyakasha, Fist To Fist: Respect And The Philosophical Link With Reciprocity In International Law And Human Rights, Donald J. Kochan

Donald J. Kochan

Unconstitutional Constitution Day, Kent Greenfield

Kent Greenfield

No abstract provided.

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

ExpressO

No abstract provided.

The Supreme Court And The Trusts: Antitrust And The Foundations Of Modern American Business Regulation From Knight To Swift, Donald J. Smythe

ExpressO

The period from 1870-1920 was a turning point in modern history. It was during this time that the contours of the modern industrial state were formed. A “Great Merger Movement” occurred right in the middle of this period across most of the industrialized nations of the world. The trend toward industrial concentration, which was known at the time as the “trust problem,” generated considerable public alarm. Some have argued that it was caused by antitrust policy and the Supreme Court’s early antitrust decisions. Indeed, the idea has become the conventional wisdom among some antitrust scholars, especially those connected with the …

Judicial Power & Civil Rights Reconsidered, David E. Bernstein, Ilya Somin

George Mason University School of Law Working Papers Series

Michael Klarman's "From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality" is an important contribution to the scholarly literature on both the history of the civil rights struggle and judicial power more generally. Klarman argues that for much of the twentieth century, the Supreme Court was very reluctant to rule in favor of African American civil rights claimants, and had little impact when it did.

Klarman is right to reject traditional accounts that greatly exaggerated the Supreme Court's willingness and ability to protect minorities. However, he overstates his case. The Court's views on the …

A Culturally Correct Proposal To Privatize The British Columbia Salmon Fishery, D. Bruce Johnsen

George Mason University School of Law Working Papers Series

Canada now faces two looming policy crises that have come to a head in British Columbia. The first is long-term depletion of the Pacific salmon fishery by mobile commercial ocean fishermen racing to intercept salmon under the rule of capture. The second results from Canadian Supreme Court case law recognizing and affirming “the existing aboriginal and treaty rights of the aboriginal peoples of Canada” under Section 35(1) of the Constitution Act, 1982. This essay shows that the economics of property rights provides a joint solution to these crises that would promote the Canadian commonwealth by way of a privatization auction …

Relativism, Reflective Equilibrium, And Justice, Justin Schwartz

Justin Schwartz

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS.

The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into …