Legal History Commons^™

Inseparable: Perspective Of Senator Daniel Webster, Ernest M. Oleksy

The Downtown Review

Considering the hypersensitivity that their nation has towards race relations, it is often ineffable to contemporary Americans as to how anyone could have argued against abolition in the 19th century. However, by taking the perspective of Senator Daniel Webster speaking to an audience of disunionist-abolitionists, proslaveryites, and various shades of moderates, numerous points of contention will be brought to light as to why chattel slavery persisted so long in the U.S. Focal points of dialogue will include the Narrative of Frederick Douglass, the "positive good" claims of Senator John C. Calhoun, the disunionism of William Lloyd Garrison, and the defense …

Promesa And The Bankruptcy Clause: A Reminder About Uniformity, Stephen J. Lubben

Brooklyn Journal of Corporate, Financial & Commercial Law

The Bankruptcy Clause—Article I, Section 8, Clause 4—provides that “The Congress shall have power . . . [t]o establish . . . uniform Laws on the subject of Bankruptcies throughout the United States . . . .”[1] But Congress has just enacted a bankruptcy law that applies to a single American territory. In early May 2017, Puerto Rico and one affiliated entity filed a petition under this new law. In late May, the Employees Retirement System commenced a case, along with the Puerto Rico Highway and Transportation Authority. Other Puerto Rican sub-entities are expected to follow. I use this short …

Decision-Making And The Shaky Property Foundations Of Municipal Bankruptcy Law, Juliet M. Moringiello

Brooklyn Journal of Corporate, Financial & Commercial Law

Municipal bankruptcies are unpredictable. There are several reasons for this statement— municipal bankruptcies are rare, involvement of the state itself in the process varies according to the governing state law, and chapter 9, the Bankruptcy Code chapter governing the municipal bankruptcy process, has many gaps. Congress constructed the modern chapter 9 on a foundation of corporate bankruptcy law, a foundation whose roots—corporate finance—are significantly different from the rules governing municipal finance. In this Article, Professor Moringiello aims a spotlight on the property roots of private bankruptcy law and compares them to the promissory and statutory roots of municipal finance law …

Ideal Theory And The Limits Of Historical Narrative, Anthony O'Rourke

Anthony O'Rourke

Some intellectual concepts that once played a central role in America’s constitutional history are, for both better and worse, no longer part of our political language.[1] These concepts may be so alien to us that they would remain invisible without carefully reexamining the past in order to challenge the received narratives of America’s constitutional development.[2] Should constitutional theorists undertake this kind of historical reexamination? If so, to what extent should they be willing to stray from the disciplinary norms that govern intellectual history? And what normative aims can they reasonably expect to achieve by exploring ideas in our …

The Progressives: Racism And Public Law, Herbert J. Hovenkamp

All Faculty Scholarship

American Progressivism inaugurated the beginning of the end of American scientific racism. Its critics have been vocal, however. Progressives have been charged with promotion of eugenics, and thus with mainstreaming practices such as compulsory housing segregation, sterilization of those deemed unfit, and exclusion of immigrants on racial grounds. But if the Progressives were such racists, why is it that since the 1930s Afro-Americans and other people of color have consistently supported self-proclaimed progressive political candidates, and typically by very wide margins?

When examining the Progressives on race, it is critical to distinguish the views that they inherited from those that …

Gangs And The Culture Of Violence In El Salvador (What Role Did The Us Play?), Norma Roumie

The Great Lakes Journal of Undergraduate History

Gang violence in El Salvador has resulted in conditions that have perpetuated an environment of terror and culture of violence. This paper aims to understand the emergence of transnational gangs in El Salvador and the US involvement in this process. The article is divided into the following subtitles; 1980s civil war and the repercussions of US involvement, Salvadorans migration to the US and reverse migration (with a focus on Los Angeles and San Salvador), and US exportation of heavy-handed policies to El Salvador’s institutionalized use of political violence. The paper concludes that US involvement in El Salvador created a foundation …

Justice Blackmun And Individual Rights, Diane P. Wood

Dickinson Law Review (2017-Present)

Of the many contributions Justice Blackmun has made to American jurisprudence, surely his record in the area of individual rights stands out for its importance. Throughout his career on the Supreme Court, he has displayed concern for a wide variety of individual and civil rights. He has rendered decisions on matters ranging from the most personal interests in autonomy and freedom from interference from government in life’s private realms, to the increasingly complex problems posed by discrimination based upon race, sex, national origin, alienage, illegitimacy, sexual orientation, and other characteristics. As his views have become well known to the public, …

“The Lost Lawyer” Regained: The Abiding Values Of The Legal Profession, Robert Maccrate

Dickinson Law Review (2017-Present)

No abstract provided.

Introduction To Section Vi: Understanding And Improving Our Judicial System, Hanna Borsilli

Dickinson Law Review (2017-Present)

No abstract provided.

Conclusion: Trigger Crimes & Social Progress, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. It is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of everyday existence but some crimes make people stop and take notice – because they are so outrageous or so heart-wrenching.

This brief essay explores the dynamic of tragedy, outrage, and reform, illustrating how certain kinds of crimes can trigger real social progress. Several dozen such “trigger crimes” are identified but four in particular are …

No Justice Without Narratives:Transition, Justice And The Khmer Rouge Trials, Tallyn Gray Dr

Transitional Justice Review

The article addresses the relationship between the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the supposed constituents of that transitional justice institution. The article sets out to offer a sociological methodology that TJ mechanism could contemplate in the process of enabling victims/witnesses to narrate justice and transition in their own terms and using Cambodia as a case study. It offers a theoretical and methodological approach to be reflected upon by transitional justice scholars and practitioners, which may enable a more victim-centered attitude in practical interactions with atrocity survivors ( not a cure-all policy solution ). My own research …

It Can't Wait: Exposing The Connections Between Forms Of Sexual Exploitation, Dawn Hawkins

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Today's Porn: Not A Constitutional Right; Not A Human Right, Patrick Trueman

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

An American Oddity: The Law, History, And Toll Of The School District, Nadav Shoked

Northwestern University Law Review

The school district is a staple of American law. As the local government tasked with controlling our public schools, the school district is so well-entrenched that lawmakers and commentators ignore its uniqueness as a legal institution. The school district is peculiar to American law, and it is a peculiarity within American law. General purpose governments—cities and counties—are the local governments controlling schools outside the United States. In the United States itself, these governments control almost all other major local functions. But they do not control education here. Why? Why does American law rely on a separate local government for the …

The Vice Presidency In Five (Sometimes) Easy Pieces, Vikram David Amar

Pepperdine Law Review

The public perception of the Vice President is that of an individual with little actual authority, but who has the potential to be thrust into the most powerful office in the world. But the modern Vice President has additional responsibilities that many often forget. Contrary to public perception, the Vice President’s role as President of the Senate carries important Constitutional responsibilities, such as the ability to weigh-in with tie-breaking votes in the Senate or preside over impeachment trials. Though overlooked, these are important and powerful responsibilities. Additionally, the Vice President has assumed the role of Presidential “running mate” and with …

Oh, Vpotus, Where Art Thou? The Constitutional Situs Of The Vice Presidency As Surveyed By A Former Vice Presidential Lawyer, Shannen W. Coffin

Pepperdine Law Review

A dispute between a federal oversight authority and the Office of the Vice President (OVP) prompted an unprecedented public discussion regarding the proper location and role of the vice presidency when Dick Cheney’s Chief of Staff challenged an audit of classified information on the grounds that the OVP was not an entity within the Executive Branch. The modern role of the Vice President is generally viewed as advisor and supporter of the President, with all executive authority vested in the President. Conversely, the Vice President presides as President of the Senate, casting tie-breaking votes when necessary. This dual role invokes …

The Vice Presidency In The Twenty-First Century, Jody C. Baumgartner

Pepperdine Law Review

The vice presidency has undergone almost revolutionary change since its inception 227 years ago. Conceived as a convenient solution to a problem created by the Electoral College, the Vice President has only two constitutional functions—to serve as a successor to the President and as the President of the Senate. However, over the past sixty years, vice presidents have become increasingly part of and integral to American governance, and the last three (Al Gore, Dick Cheney, and Joe Biden) have been exceptionally active executive actors. What was once an all-but forgotten office is now an essential part of a president’s administration. …

The Vice President-More Than An Afterthought?, Richard B. Cheney, Edwin Meese Iii, Douglas W. Kmiec

Pepperdine Law Review

A round-table discussion among former U.S. Vice President Richard B. Cheney, Caruso Family Professor of Law and retired U.S. Ambassador Douglas Kmiec, and former U.S. Attorney General Edwin Meese III considered the practical implications of conceiving the Vice President as a legislative officer, an executive officer, or both. It was noted that until the second half of the twentieth century, the Office of the Vice President was conceived as legislative. Funding for the Office appeared in budget lines relating to Congress and physically, the Vice President’s office was in the Capitol. Beginning with Walter Mondale’s service as Vice President, presidents …

A Constitutional Afterthought: The Origins Of The Vice Presidency, 1787 To 1804, Edward J. Larson

Pepperdine Law Review

At the origins of the office, even though the Vice President was, as its first occupant John Adams declared, “only one breath” away from the presidency, the Office of the Vice President was an afterthought of the Constitutional Convention. Never discussed during the first three months of the four-month long Convention, the Committee of Eleven introduced the vice presidency as a byproduct of how it resolved to fix the presidential selection process. Under this process, the Electoral College emerged, with each state assigned the same number of electors as its members in the House of Representatives and Senate. Each elector …

Failure To Act And The Separation Of Powers-The Vice Presidency And The Need To Surmount Divided Power In Pursuit Of A Workable Government, Douglas W. Kmiec

Pepperdine Law Review

Is the Vice President an executive officer, a legislative officer, or both? This query has existed since the time of the founding. The question poses more difficulty than one might suppose, and it remains unsettled. It can be convenient to ignore questions that one cannot answer, and thus, the Vice President has been the object of political humor and treated as an appendage without present function. Yet, because we attribute great genius to those who drafted the Constitution, what is the effect of leaving this high-ranking officer without adequate definition or purpose? For the first century and a half of …

Collaborative Divorce: What Louis Brandeis Might Say About The Promise And Problems?, Susan Saab Fortney

Faculty Scholarship

If you ask legal ethics scholars what they remember about Louis D. Brandeis's judicial confirmation hearings, most would point to the manner in which he responded to questions about his representation of persons with perceived conflicts of interest. Louis Brandeis responded to challenges by stating that he was "counsel for the situation. Some use this comment when examining problems associated with a single lawyer representing multiple clients in the same transaction. Others believe that Brandeis may have been referring to a type of intermediary role in which lawyers attempt to adjust the rights and interests of multiple clients with potentially …

Capitalism And Unfreedom: Louis D. Brandeis And A Liberty Of The Left, Eric L. Apar

Dissertations, Theses, and Capstone Projects

The American Right features a well-developed—and well-heeled—infrastructure for promoting a conception of freedom as inextricable from capitalism. The American Left, by contrast, has seemed content to cede the territory, abandoning the ground of freedom for the terrain of “equality,” “justice,” “fairness,” and “prosperity.” This paper is an effort to address this asymmetry in the public discourse over the meaning of freedom. Its principal objective is to capture the vision of freedom embodied in the political and economic thought of Louis D. Brandeis, one of the American Left’s ablest expositors of freedom.

In addition, the paper has three subsidiary objectives. The …

Poverty, The Great Unequalizer: Improving The Delivery System For Civil Legal Aid, Latonia Haney Keith

Catholic University Law Review

When individuals in the United States face civil justice issues, they are not entitled to legal counsel and therefore must secure paid counsel, proceed pro se or qualify for free legal assistance. As a result of the economic downturn, the number of Americans who are unable to afford legal counsel is now at an all-time high. In response to this ever-widening justice gap, the public interest community has launched multiple initiatives to supplement the underfunded legal aid system. Though valiant, this article argues that this approach has unfortunately created a complex, fragmented and overlapping delivery system for legal aid. This …

The Italian Enlightenment And The American Revolution: Cesare Beccaria's Forgotten Influence On American Law, John Bessler

All Faculty Scholarship

The influence of the Italian Enlightenment—the Illuminismo—on the American Revolution has long been neglected. While historians regularly acknowledge the influence of European thinkers such as William Blackstone, John Locke and Montesquieu, Cesare Beccaria’s contributions to the origins and development of American law have largely been forgotten by twenty-first century Americans. In fact, Beccaria’s book, Dei delitti e delle pene (1764), translated into English as On Crimes and Punishments (1767), significantly shaped the views of American revolutionaries and lawmakers. The first four U.S. Presidents—George Washington, John Adams, Thomas Jefferson and James Madison—were inspired by Beccaria’s treatise and, in some cases, read …

Apple Of Gold And Picture Of Silver: How Abraham Lincoln Would Analyze The Fourteenth Amendment's Equal Protection Clause, Frank J. Williams, William D. Bader, Andrew Blais

Roger Williams University Law Review

No abstract provided.

Render Unto Caesar: How Misunderstanding A Century Of Free Exercise Jurisprudence Forged And Then Fractured The Rfra Coalition, John S. Blattner

CMC Senior Theses

This thesis provides a comprehensive history of Supreme Court Free Exercise Clause jurisprudence from 1879 until the present day. It describes how a jurisdictional approach to free exercise dominated the Court’s rulings from its first Free Exercise Clause case in 1879 until Sherbert v. Verner in 1963, and how Sherbert introduced an accommodationist precedent which was ineffectively, incompletely, and inconsistently defined by the Court. This thesis shows how proponents of accommodationism furthered a false narrative overstating the scope and consistency of Sherbert’s precedent following the Court’s repudiation of accommodationism and return to full jurisdictionalism with Employment Division v. Smith …

Navigating The Post-Shelby Landscape: Using Universalism To Augment The Remaining Power Of The Voting Rights Act, Jesús N. Joslin

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

¡Que Viva The Scholar!, Bill Piatt

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Blue Lives Have Always Mattered: The Usurping Of Hate Crime Laws For An Unintended And Unnecessary Purpose, Lisa M. Olson

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Book Review, Ahmed White

Publications

No abstract provided.