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Articles 91 - 109 of 109
Full-Text Articles in Legal History
Death By A Thousand Signatures: The Rise Of Restrictive Ballot Access Laws And The Decline Of Electoral Competition In The United States, Oliver Hall
Seattle University Law Review
This Article explores one instance of the countermajoritarian problem in American democracy: how to protect the rights of minor parties and independent candidates participating in an electoral system dominated by two major parties. In particular, this Article focuses on the effect of modern ballot access laws on candidates' rights, arguing that courts ought to treat these laws as a presumptively impermissible form of "collusion in restraint of democracy." Although the article borrows the language of antitrust law, this argument is rooted in core constitutional principles and rights guaranteed under the First and Fourteenth Amendments. Nevertheless, the analogy to antitrust law …
Beyond The Conventional Establishment Clause Narrative, Richard Albert
Beyond The Conventional Establishment Clause Narrative, Richard Albert
Seattle University Law Review
The article reviews of jurisprudence offers a systematic look at every Establishment Clause case to have reached the docket of the United States Supreme Court since 1947. That year is of particular significance, for it marks the incorporation of the Establishment Clause, which the Court articulated in its influential establishment case, Everson v. Board of Education. Through the intervening years there have been a total of forty-six other cases-forty-seven in total-in which establishment issues constituted the core legal quandary. The article poses two questions as it reviews the Court's opinion in each suit: (1) In contemplating the meaning of …
Negotiating The Jurisprudential Terrain: A Model Theoretic Approach To Legal Theory, Christopher Roederer
Negotiating The Jurisprudential Terrain: A Model Theoretic Approach To Legal Theory, Christopher Roederer
Seattle University Law Review
This paper explores borrowing a meta-theoretical approach to theory from the natural and social sciences in order to provide a framework within which to situate and evaluate the various theories one encounters in the field of law and jurisprudence. Often it is the case that students of jurisprudence go from one school or theory to another with one of three responses: (1) this makes no sense to me; (2) this makes some sense, but what is the point or relevance; or (3) this makes sense and seems true, but so do many of the schools, theories, and theorists we have …
Cyberspace And The "Devil's Hatband", Jonathan J. Rusch
Cyberspace And The "Devil's Hatband", Jonathan J. Rusch
Seattle University Law Review
In this Article, I maintain that while there is an ongoing conflict of legal traditions over the desirability of fences in cyberspace, there are definite virtues in the creation of such fences, so long as we understand the physical, psychological, and moral dimensions of that process. Part I will present a brief survey of the history of barbed wire in the Old West, paying particular attention to the contending legal traditions that affected the manner and extent of that growth in the West. These contending legal traditions, which related to "fencing in" versus "fencing out" cattle, played a key role …
Psychological Consequences Of Adopting A Therapeutic Lawyering Approach: Pitfalls And Protective Strategies, Lynda L. Murdoch
Psychological Consequences Of Adopting A Therapeutic Lawyering Approach: Pitfalls And Protective Strategies, Lynda L. Murdoch
Seattle University Law Review
The integration of preventive law and therapeutic jurisprudence holds promise for enriching the careers of many practicing lawyers. However, the process of becoming more therapeutic in orientation also involves risk. This Article discusses four potential pitfalls: (1) the process of becoming psychologically-minded and its inherent hazards, including overidentification; (2) the difficulty of balancing neutrality and involvement; (3) the need to identify and manage transference and countertransference; and (4) the risk of secondary trauma. Protective strategies, drawn from the psychotherapeutic and burnout literature, are outlined. This Article stresses the need for lawyers to recognize potential hazards and draw on the experience …
Silencing The Appellant's Voice: The Antitherapeutic Per Curiam Affirmance, Amy D. Ronner, Bruce J. Winick
Silencing The Appellant's Voice: The Antitherapeutic Per Curiam Affirmance, Amy D. Ronner, Bruce J. Winick
Seattle University Law Review
This Article will analyze the antitherapeutic impact of the per curium affirmance (PCA) in two steps. First, delving into the psychology of procedural justice, this Article will explain how litigants value "voice," or the ability to tell their stories, as well as "validation," or the sense that the decisionmaker has heard their words and taken them seriously. Second, this Article, through the use of narrative, will show how a PCA had a negative psychological impact on an actual appellant in a criminal case. The Article will conclude by proposing an alternative to the antitherapeutic PCA.
Therapeutic Jurisprudence In The Appellate Arena: Judicial Notice And The Potential Of The Legislative Fact Remand, A.J. Stephani
Therapeutic Jurisprudence In The Appellate Arena: Judicial Notice And The Potential Of The Legislative Fact Remand, A.J. Stephani
Seattle University Law Review
This Article begins with a modest objective and ends with an ambitious one. First, it asserts that appellate courts are an appropriate forum for considering the therapeutic impact of the law strand of therapeutic jurisprudence (TJ) scholarship. TJ's character as a "field of social inquiry" is especially suited to the appellate courts' task of formulating new rules of law and choosing among competing policy objectives when resolving opposing normative principles.
Understanding The Limits Of Power: Judicial Restraint In General Jurisdiction Court Systems, Justice Philip A. Talmadge
Understanding The Limits Of Power: Judicial Restraint In General Jurisdiction Court Systems, Justice Philip A. Talmadge
Seattle University Law Review
This Article draws on my legislative and judicial background to focus both on the tendency of the courts to exceed their core constitutional role and the implications of such judicial activism. This article contend that modern courts of general jurisdiction are too often embroiled in sociopolitical controversies best left to the political branches of government. Part I addresses the concept of judicial restraint in our constitutional system and the need to define the core powers of the judicial branch of government. Part II discusses principles of judicial restraint in the federal courts. Part III, using the example of Washington State …
Doubting Thomas: Confirmation Veracity Meets Performance Reality, Joyce A. Baugh, Christopher E. Smith
Doubting Thomas: Confirmation Veracity Meets Performance Reality, Joyce A. Baugh, Christopher E. Smith
Seattle University Law Review
At the close of the United States Supreme Court's 1994 term, Justice Clarence Thomas became the center of news media attention for his important role as a prominent member of the Court's resurgent conservative bloc. More frequently than in past terms, Thomas's opinions articulated the conservative position for his fellow Justices. According to one report, "The newly energized Thomas has shown little hesitancy this term in leading the conservative charge. Another article referred to Thomas's "full-throated emergence as a distinctive and articulate judicial voice." Thomas's new prominence, assertiveness, and visibility have been attributed to his emergence from the shadows of …
The Denial Of A State Constitutional Right To Bail In Juvenile Proceedings: The Need For Reassessment In Washington State, Kathleen A. Baldi
The Denial Of A State Constitutional Right To Bail In Juvenile Proceedings: The Need For Reassessment In Washington State, Kathleen A. Baldi
Seattle University Law Review
Article I, section 20 of the Washington Constitution states that "[a]ll persons charged with crimes shall be bailable by sufficient sureties, except for capital offenses when the proof is evident, or the presumption great." Despite seemingly unequivocal language that this constitutional provision is applicable to "all persons," the Washington Supreme Court, in Estes v. Hopp, declared that juveniles do not have a constitutional right to bail. The Estes court engaged in little constitutional analysis, but instead, reasoned that juvenile proceedings are civil in nature and that article 1, section 20 applies only in criminal proceedings. Central to the Estes …
In The Beginning: The Washington Supreme Court A Century Ago, Charles H. Sheldon, Michael Stohr-Gillmore
In The Beginning: The Washington Supreme Court A Century Ago, Charles H. Sheldon, Michael Stohr-Gillmore
Seattle University Law Review
This Article will discuss (1) the politics that influenced the drafting of the judicial article (article IV) in the constitutional convention; (2) the election of the first five members of the bench and the backgrounds of those inaugural judges; (3) the particular approach toward judicial review adopted by these five jurists (activism-restraint); and (4) the personal relations among these members of the supreme court. This Article will provide a personal perspective of the first five judges and their court.
Sanctuary: The Legal Institution In England, Steven Pope
Sanctuary: The Legal Institution In England, Steven Pope
Seattle University Law Review
This Article discusses the institution of sanctuary that was recognized under the Common Law of England from at least the early Middle Ages until the Jacobean period, that is, from about the seventh to the seventeenth centuries A.D. This Article does not include a specific discussion of the modern American idea of sanctuary as the term is applied to the act of aiding an alien to remain illegally in the United States to escape political persecution in the alien’s own country. However, a consideration of the historical institution of sanctuary may shed light on the contemporary issue in two ways. …
Judicial Conscience And Natural Rights: A Reply To Professor Jaffa, Bruce Ledewitz
Judicial Conscience And Natural Rights: A Reply To Professor Jaffa, Bruce Ledewitz
Seattle University Law Review
This Article replies to Professor Harry V. Jaffa’s article “What Were the ‘Original Intentions’ of the Framers of the Constitution of the United States?” The Article focuses on the gap the author argues Professor Jaffa left between the consciousness of the Framers and the practice of judicial review today. The author argues that the understanding that Professor Jaffa brings to the intent of the Framers is one that opens up the Constitution to the call of justice, but the author critiques the utility of Professor Jaffa’s work in resolving the contentious constitutional issues of today, including abortion and capital punishment.
Foreword: On Jaffa, Lincoln, Marshall, And Original Intent, Lewis E. Lehrman
Foreword: On Jaffa, Lincoln, Marshall, And Original Intent, Lewis E. Lehrman
Seattle University Law Review
This Foreword introduces the article to follow written by Harry V. Jaffa, scholar of Abraham Lincoln’s political philosophy. The Foreward provides background material necessary to contextualize the ongoing debate surrounding constitutional interpretation emphasizing original intent addressed in Jaffa's article.
Professor Harry V. Jaffa Divides The House: A Respectful Protest And A Defense Brief, Robert L. Stone
Professor Harry V. Jaffa Divides The House: A Respectful Protest And A Defense Brief, Robert L. Stone
Seattle University Law Review
This Article replies to Professor’ Jaffa’s article, “What Were the ‘Original Intentions’ of the Framers of the Constitution of the United States?,” and book, The Crisis of the House Divided. The Article argues that Professor Jaffa’s method throughout his indictment of legal scholars has three flaws. First, the Article argues that Professor Jaffa takes statements of sensible political compromises-such as support for judicial restraint, British traditions, and local self-government-and treats them as if they were philosophical statements. Second, the author contends that Professor Jaffa assembles a composite indictment, which in law is appropriately applied only to an indictment against …
What Were The "Original Intentions" Of The Framers Of The Constitution Of The United States?, Harry V. Jaffa
What Were The "Original Intentions" Of The Framers Of The Constitution Of The United States?, Harry V. Jaffa
Seattle University Law Review
This Article explains how the doctrine of original intent might be defended as the basis for interpreting the Constitution. The deepest political differences in American history have always been differences concerning the meaning of the Constitution, whether as originally intended, or as amended. Since the Civil War, the debate has often taken the form of a dispute over whether or not the Civil War amendments, notably the fourteenth, have changed the way in which the whole Constitution, and not only the amended parts, is read or interpreted. It is not possible to even discuss how or whether the Civil War …
Seven Questions For Professor Jaffa, George Anastaplo
Seven Questions For Professor Jaffa, George Anastaplo
Seattle University Law Review
This Article poses questions inspired by the four essays collected in Professor Harry V. Jaffa’s article “What Were the ‘Original Intentions’ of the Framers of the Constitution of the United States?” The Article offers, in addition to fresh reflections upon these questions, three appendices, which bear upon various matters touched upon by Professor Jaffa. These appendices include, “The Founders of Our Founders: Jerusalem, Athens, and the American Constitution,” “The Ambiguity of Justice in Plato’s Republic,” and “Private Rights and Public Law: The Founders’ Perspective.” The Epilogue provides informed observations of a scholar who comments on the differences between Professor …
The Emergence Of Critical Social Theory In American Jurisprudence: An Introduction To Professor Rosenberg's Perspective, Harlan S. Abrahams
The Emergence Of Critical Social Theory In American Jurisprudence: An Introduction To Professor Rosenberg's Perspective, Harlan S. Abrahams
Seattle University Law Review
Norman Rosenberg's treatment of Thomas Cooley, liberal jurisprudence, and the law of libel exemplifies both a difficulty with and an opportunity for traditional law review scholarship. The difficulty arises from the failure of many legal writers to identify and explain the jurisprudential perspectives that define their substantive approach. This problem is particularly acute when, as in Professor Rosenberg's article, the jurisprudential perspective deviates from the mainstream. The opportunity lies in bringing the problem of perspective out of the closet and legitimating its critical treatment as an integral element of all legal scholarship.
Thomas M. Cooley, Liberal Jurisprudence, And The Law Of Libel, 1868-1884, Norman L. Rosenberg
Thomas M. Cooley, Liberal Jurisprudence, And The Law Of Libel, 1868-1884, Norman L. Rosenberg
Seattle University Law Review
During the past two decades, and especially since 1970, there has been a steadily growing interest in American legal history, including the work of nineteenth-century legal figures, including Thomas M.Cooley. Most scholars once dismissed Cooley as a simplistic apologist for laissez faire economics and late nineteenth-century capitalism. Recently, however, legal and constitutional historians have realized that his legal thought was much more complex. In part, this article seeks to extend recent work on Cooley and to examine his ideas and judicial opinions on freedom of expression and the law of libel. Cooley's views about free expression, defamation law, and American …