Legal History Commons^™

“Militant Judgement?: Judicial Ontology, Constitutional Poetics, And ‘The Long War’”, Penelope J. Pether

Working Paper Series

This Article, a contribution to the Cardozo Law Review symposium in honor of Alain Badiou’s Being and Event, uses Badiou’s theorizing of the event and of the militant in Being and Event as a basis for an exploration of problems of judicial ontology and constitutional hermeneutics raised in recent decisions by common law courts dealing with the legislative and executive confinement of “Islamic” asylum seekers, “enemy combatants” and “terrorism suspects,” and certain classes of criminal offenders in spaces beyond the doctrines, paradigms and institutions of the criminal law. The Article proposes an ontology and a poetics of judging equal to …

Fractured Bonds: Policing Whiteness And Womanhood Through Race-Based Marriage Annulments, Bela August Walker

Bela August Walker

In the hundred years before the United States Supreme Court declared miscegenation statutes unconstitutional in Loving v. Virginia, state courts decided thirteen recorded race-based annulment cases. This article presents a unified analysis of all race based annulment cases for the first time. Simultaneously public and private affairs, these dramas impacted far more than the individual couples or courtrooms, sending out shockwaves that reverberated beyond their points of origin. The results of the cases are startling and contrary to previous work on the subject. Using this unique set of cases, this article argues that while declaring these women “white” appears like …

Tax As Urban Legend, Anthony C. Infanti

Articles

In this essay, I review UC-Berkeley history professor Robin Einhorn's book, American Taxation, American Slavery. In this provocatively-titled book, Einhorn traces the relationship between democracy, taxation, and slavery from colonial times through the antebellum period. By re-telling some of the most familiar set piece stories of American history through the lens of slavery, Einhorn reveals how the stories that we tell ourselves over and over again about taxation and politics in America are little more than the stuff of urban legend.

In the review, I provide a brief summary of Einhorn's discussion of the relationship between slavery and colonial taxation, …

Longing For Loving, Katherine M. Franke

Faculty Scholarship

Our task in this Symposium is to place Loving v. Virginia in a contemporary context: to interpret, if not reinterpret, its meaning in light of the settings in which race, sexuality, and intimacy are being negotiated and renegotiated today. So we might ask, in what way are Mildred and Richard Loving role models for us today? How, if at all, does the legal movement for marriage equality for interracial couples help us think through our arguments and strategies as we struggle today for marriage equality for same-sex couples?

One way to frame these questions is to ask whether there is …