Legal History Commons^™

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

ExpressO

This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

The Common Law And The Constitution: John Locke And The Missing Link In Law, Steve Sheppard

Steve Sheppard

Locke's concept of rights influenced the Framers of the Constitution, which has increased the stakes in later interpretation of what Locke’s model of rights entailed. “Lockean rights” now suggests a perfect right unlimitable by the state in the public interest. Such a right is theoretically interesting, but it is not what Locke had in mind, and it was not the model of rights Madison, Jefferson, Hamilton, and other inherited from Locke's Second Treatise.

This paper was an initial reconstruction of Locke's model of a right, locating it within the legal culture of his time and place. His model of what …

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.

The Historical Amendability Of The American Constitution: Speculations On An Empirical Problematic, Darren R. Latham

American University Law Review

No abstract provided.

Towards A Basal Tenth Amendment: A Riposte To National Bank Preemption Of State Consumer Protection Laws, Keith R. Fisher

ExpressO

Recent regulations promulgated by the Office of the Comptroller of the Currency assert a sweeping authority to preempt a broad array of state laws, including consumer protection laws, applicable not only to national banks but to their state-chartered operating subsidiaries. These regulations threaten to disrupt state efforts to combat predatory lending and other abusive practices and to interfere with a state’s sovereign authority over corporations chartered under its laws. Yet federal courts faced with challenges to these initiatives have failed to devote any substantial analysis to claims based on the Tenth Amendment. The problem with such claims is the absence …

Petitioner's Observations On Canada's Additional Information, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Petitioner's Observations On Canada's Additional Information, Jeffrey C. Tuomala

Jeffrey C. Tuomala

No abstract provided.

Unconstitutional Constitution Day, Kent Greenfield

Kent Greenfield

No abstract provided.

Adjusting The Rear-View Mirror: Rethinking The Use Of History In Supreme Court Jurisprudence, Mitchell Gordon

ExpressO

No abstract provided.

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

ExpressO

No abstract provided.

Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree

ExpressO

The article explores the rhetorical strategies deployed in both legal and cultural narratives of Mormon polygamy in nineteenth-century America. It demonstrates how an understanding of that unique communal experience, and the narratives by which it was represented, informs the classic paradox of community and autonomy – the tension between the collective and the individual. The article concludes by using the Mormon polygamy analysis to illuminate a contemporary social situation that underscores the paradox of community and autonomy – homosexuality and the so-called culture wars over family values and the meaning of marriage.

Copyright Law, The Production Of Creative Works And Cultural Growth In Cyberspace , Alina Ng

ExpressO

The Internet has affected information flow in copyrighted content in a profound manner. Authors and artists are enabled through the Internet to assert greater control over the flow of information in their works as these new technologies offer new and different distribution channels for content. These new technologies also allow consumers to use content in ways, which had not been anticipated by the copyright industries. This paper presents that copyright law was developed for a specific purpose, which was to encourage learning and growth. As new technologies emerge and as content industries experience changes in information flow in copyrighted works, …

Copyright Law, The Production Of Creative Works And Cultural Growth In Cyberspace , Alina Ng

ExpressO

The Internet has affected information flow in copyrighted content in a profound manner. Authors and artists are enabled through the Internet to assert greater control over the flow of information in their works as these new technologies offer new and different distribution channels for content. These new technologies also allow consumers to use content in ways, which had not been anticipated by the copyright industries. This paper presents that copyright law was developed for a specific purpose, which was to encourage learning and growth. As new technologies emerge and as content industries experience changes in information flow in copyrighted works, …

Roger Williams On Liberty Of Conscience, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Cleaning Up The Eighth Amendment Mess, Tom Stacy

ExpressO

This article criticizes the Court’s interpretation of the Eighth Amendment’s Cruel and Unusual Punishment Clause and proposes its own understanding. The Court’s jurisprudence is plagued by deep inconsistencies concerning the text, the Court’s own role, and a constitutional requirement of proportionate punishment.

In search of ways to redress these fundamental shortcomings, the article explores three alternative interpretations: 1) A textualist approach; 2) Justice Scalia’s understanding that the Clause forbids only punishments unacceptable for all offenses; and 3) a majoritarian approach that would consistently define cruel and unusual punishment in terms of legislative judgments and penal custom. As evidenced by the …

A Right To No Meaningful Review: The Aftermath Of Shalala V. Illinois Council On Long Term Care, Inc., Ruqaiijah Ayanna Yearby

ExpressO

A RIGHT TO NO MEANINGFUL REVIEW: THE AFTERMATH OF SHALALA v. ILLINOIS COUNCIL ON LONG TERM CARE, INC. Ruqaiijah A. Yearby

The Due Process Clause of the Fifth Amendment has been perverted in the federal administrative system. Federal agencies, such as the U.S. Department of Health and Human Services (HHS), regularly deprive individuals of liberty and property with little to no review. In its regulation of the health care industry through the Medicare program, HHS often turns a blind eye to procedural Due Process protections, such as providing individuals an opportunity to challenge the deprivation of property at a hearing, …

Book Review: Forensic Linguistics, Dru Stevenson

ExpressO

Review of John Gibbons' text "Forensic Linguistics"

Federal-State Negotiations Over Federal Enclaves In The Early Republic, Adam S. Grace

ExpressO

This article examines practical solutions arrived at by the federal and state governments in resolving early interpretive issues that arose under Article I's "Enclave Clause." Focusing on the federal government's creation of federal "enclaves" for use in a national lighthouse system, the article compares these politically-based solutions with the later development of Supreme Court "Enclave Clause" jurisprudence.

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 …

Bork Was The Beginning: Constitutional Moralism And The Politics Of Federal Judicial Selection, Gary L. Mcdowell

University of Richmond Law Review

No abstract provided.

The Lost Jurisprudence Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

It is widely assumed that the Ninth Amendment languished in constitutional obscurity until it was resurrected in Griswold v. Connecticut by Justice Arthur Goldberg. In fact, the Ninth Amendment played a significant role in some of the most important constitutional disputes in our nation's history, including the scope of exclusive versus concurrent federal power, the authority of the federal government to regulate slavery, the constitutionality of the New Deal, and the legitimacy and scope of incorporation of the Bill of Rights into the Fourteenth Amendment. The second of two articles addressing the Lost History of the Ninth Amendment, The Lost …

Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski

Faculty Scholarship

Professor Robert Kaczorowski argues for an expansive originalist interpretation of Congressional power under the Fourteenth Amendment. Before the Civil War Congress actually exercised, and the Supreme Court repeatedly upheld plenary Congressional power to enforce the constitutional rights of slaveholders. After the Civil War, the framers of the Fourteenth Amendment copied the antebellum statutes and exercised plenary power to enforce the constitutional rights of all American citizens when they enacted the Civil Rights Act of 1866 and then incorporated the Act into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the plenary power the Rehnquist Court claims the …

Running In Place: The Paradox Of Expanding Rights And Restricted Remedies, David Rudovsky

All Faculty Scholarship

No abstract provided.

The Little Word "Due", Andrew T. Hyman

Andrew T. Hyman

The meaning of the Due Process Clause is investigated, with special emphasis on the little word "due." The author concludes that the text and structure of the Constitution --- as well as the intentions of the framers --- strongly support the view of the late Justice Hugo Black regarding the meaning of this Clause in the Fifth and Fourteenth Amendments. In the Constitution, due process means process due according to the law of the land, and a statute is part of the law of the land if it does not violate or undermine any other provision of the Constitution. Thus, …

Whose Europe? After The Constitution: A Goal Based Citizenship, Gianluigi Palombella

Gianluigi Palombella

This article designed the scenario of a constitutional Europe after 2004 and the work of the Convention on a (proposed) Constitution. In particular it elaborated on the philosophical background and legal categorizations of a European citizenship, and exposed its added value and the innovative perspective that it should have prompted.

Federal Land Retention And The Constitution's Property Clause: The Original Understanding, Robert G. Natelson

Robert G. Natelson

This article examines the original meaning of the Constitution's clauses authorizing federal land ownership. It finds that the power granted to Congress was broad enough to include land ownership for enumerated purposes, even without complying the procedures necessary for the creation of federal enclaves. But it finds that the power was not broad enough to include indefinite landholding for unenumerated purposes.

The Scottish And English Religious Roots Of The American Right To Arms: Buchanan, Rutherford, Locke, Sidney, And The Duty To Overthrow Tyranny, David B. Kopel

David B Kopel

Many twenty-first century Americans believe that they have a God-given right to possess arms as a last resort against tyranny. One of the most important sources of that belief is the struggle for freedom of conscience in the United Kingdom during the reigns of Elizabeth I and the Stuarts. A moral right and duty to use force against tyranny was explicated by the Scottish Presbyterians George Buchanan and Samuel Rutherford. The free-thinking English Christians John Locke and Algernon Sidney broadened and deepened the ideas of Buchanan and Rutherford. The result was a sophisticated defense of religious freedom, which was to …

The Religious Roots Of The American Revolution And The Right To Keep And Bear Arms, David B. Kopel

David B Kopel

This article examines the religious background of the American Revolution. The article details how the particular religious beliefs of the American colonists developed so that the American people eventually came to believe that overthrowing King George and Parliament was a sacred obligation. The religious attitudes which impelled the Americans to armed revolution are an essential component of the American ideology of the right to keep and bear arms.

Bork Was The Beginning: Constitutional Moralism And The Politics Of Judicial Selection, Gary L. Mcdowell

Law Faculty Publications

On October 23, 1987, the United States Senate committed what many considered then-and what many still consider today-to be an unforgivable political and constitutional sin. Wielding its power to advise and consent on nominations to the Supreme Court of the United States, the upper house voted 58-42 not to confirm Judge Robert H. Bork. The vote, which was the largest margin of defeat in history for a nominee to the Supreme Court, concluded one of the most tumultuous political battles in the history of the republic, a battle that would transform the process of judicial selection for years to come.

Constitutional Calcification: How The Law Becomes What The Court Does, Kermit Roosevelt Iii

All Faculty Scholarship

No abstract provided.