The Law (?) Of The Lincoln Assassination, 2016 Georgetown University Law Center
The Law (?) Of The Lincoln Assassination, Martin S. Lederman
Georgetown Law Faculty Publications and Other Works
Shortly after John Wilkes Booth killed Abraham Lincoln, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theater. Johnson’s decision implicated a fundamental constitutional question that had been a source of heated debate throughout the Civil War: When, if ever, may the federal government circumvent Article III’s requirements of a criminal trial by jury, with an independent, tenure-protected judge presiding, by trying individuals other than members of the armed forces in a ...
On The Incoherence Of Legal Positivism, 2016 Notre Dame Law School
On The Incoherence Of Legal Positivism, John M. Finnis
John M. Finnis
No abstract provided.
The Environmentalist Attack On Environmental Law, 2016 Notre Dame Law School
The Environmentalist Attack On Environmental Law, John Copeland Nagle
John Copeland Nagle
This essay reviews two books written by leading scholars that express profound dissatisfaction with the ability of environmental law to actually protect the environment. Mary Wood’s “Nature’s Trust: Environmental Law for a New Ecological Age” calls for “deep change in environmental law,” emphasizing the roles that agency issuance of permits to modify the environment and excessive deference to agency decisions play in ongoing environmental destruction. Wood proposes a “Nature’s Trust” built on the public trust doctrine to empower courts to play a much more aggressive role in overseeing environmental decisionmaking. In “Green Governance: Ecological Survival, Human Rights ...
Auctioning Class Settlements, 2016 Notre Dame Law School
Auctioning Class Settlements, Jay Tidmarsh
Although they promise better deterrence at a lower cost, class actions are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class (the class representative and class counsel) advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class-action reform proposals. This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea ...
A Process Theory Of Torts, 2016 Notre Dame Law School
A Process Theory Of Torts, Jay Tidmarsh
No abstract provided.
Lost Fidelities, 2016 Notre Dame Law School
Lost Fidelities, Barry Cushman
Owen Roberts was accused of a variety of things in 1937, but “fidelity” was not among them. Justice Harlan Fiske Stone and Professor Felix Frankfurter were among many who accused Roberts of performing, as Frankfurter put it, a jurisprudential “somersault” “incapable of being attributed to a single factor relevant to the professed judicial process.” To Frankfurter, it was “all painful beyond words,” and gave him “a sickening feeling which is aroused when moral standards are adulterated in a convent.” Yet when Roberts announced his retirement from the Court eight years later, Chief Justice Stone, along with now-Justices Frankfurter and Robert ...
If George Washington Did It, Does That Make It Constitutional? : History's Lessons For Wartime Military Tribunals, 2016 Georgetown University Law Center
If George Washington Did It, Does That Make It Constitutional? : History's Lessons For Wartime Military Tribunals, Martin S. Lederman
Georgetown Law Faculty Publications and Other Works
Congress has recently authorized military commissions to try individuals for domestic-law offenses—such as providing material support to terrorism, and conspiring to commit law-of-war offenses—in addition to offenses against the international laws of war. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution guarantees. The constitutionality of such an abrogation of Article III’s criminal-trial guarantees has been debated in many of the Nation’s wars, without clear resolution. The Article III question is now the subject of a potentially landmark case, al Bahlul v. United States, that the Supreme Court may ...
A “Second Magna Carta”: The English Habeas Corpus Act And The Statutory Origins Of The Habeas Privilege, 2016 University of California Berkeley Law School
A “Second Magna Carta”: The English Habeas Corpus Act And The Statutory Origins Of The Habeas Privilege, Amanda L. Tyler
Notre Dame Law Review
In my own scholarship, Fallon and Meltzer’s work on habeas models prompted me to dig deeper into the historical backdrop that informed ratification of the Suspension Clause and think harder about the relevance of that history for questions of constitutional interpretation. This, in turn, has spurred work that has occupied me for many years since. In the spirit of engaging with my federal courts professor one more time, this Article tells the story of the statutory origins of the habeas privilege—what Blackstone called a “second magna carta”—and argues that any explication of the constitutional privilege and discussion ...
My Turn: 'We The People' And The Garland Nomination, 2016 Franklin Pierce Law Center
My Turn: 'We The People' And The Garland Nomination, John M. Greabe
[Excerpt] "Because I teach constitutional law, a friend recently asked me whether Judge Merrick Garland or President Obama might successfully sue to compel the Senate to take action on the nomination of Judge Garland to fill the vacancy on the United States Supreme Court.
Almost certainly not, I told him. Under settled precedent, a judge would dismiss such a case as raising a non-legal ''political" question. It would be very difficult to develop acceptable decisional standards for such a claim. Moreover, courts are reluctant to entertain lawsuits challenging mechanisms that the Senate uses to oversee the judiciary."
Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, 2016 University of Pennsylvania Law School
Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas
Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to ...
The Alien Tort Statute And The Law Of Nations, 2016 Notre Dame Law School
The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia
Anthony J. Bellia
Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts...shall...have cognizance...of all causes where an alien sues for tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004 ...
Precedent And Reliance, 2016 Notre Dame Law School
Precedent And Reliance, Randy J. Kozel
Randy J Kozel
Among the most prevalent justifications for deference to judicial precedent is the protection of reliance interests. The theory is that when judicial pronouncements have engendered significant reliance, there should be a meaningful presumption against adjudicative change. Yet there remains a fundamental question as to why reliance on precedent warrants judicial protection in the first place.
This Article explores the dynamics and implications of precedential reliance. It contends that the case for protecting reliance on precedent is uncertain. There are several reasons why reliance might potentially be worth protecting, but all are subject to serious limitations or challenges. To bolster the ...
The Implications Of Transition Theory For Stare Decisis, 2016 University of Pennsylvania Law School
The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch
No abstract provided.
Class Action Reform: Lessons From Securities Litigation, 2016 University of Pennsylvania Law School
Class Action Reform: Lessons From Securities Litigation, Jill E. Fisch
No abstract provided.
Class Actions And The Counterrevolution Against Federal Litigation, 2016 University of Pennsylvania Law School
Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang
In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for ...
Fashion, Sexism, And The United States Federal Judiciary, 2016 NYU School of Law
Fashion, Sexism, And The United States Federal Judiciary, Charles E. Colman
The U.S. federal judiciary has frequently displayed a dismissive attitude toward "fashion," while simultaneously recognizing the great economic importance of clothing. As fashion was, from the formation of the United States until at least the late 1960s, associated primarily with the female sex, while judges during this time period were almost exclusively male, one naturally wonders whether the power dynamics of gender shaped the development of the law pertaining to fashion. There is good reason to believe that this has indeed been the case.
Design And Deviance: Patent As Symbol, Rhetoric As Metric (Parts 1 And 2), 2016 NYU School of Law
Design And Deviance: Patent As Symbol, Rhetoric As Metric (Parts 1 And 2), Charles E. Colman
This project, initially published as a two-part series of articles entitled 'Design and Deviance: Patent as Symbol, Rhetoric as Metric,' reveals the unrecognized power of gender and sexuality norms in the deep discourse of pivotal American case law on design patents.
In Part 1, I argue that late nineteenth-century cultural developments in the urban Northeast gave rise to a stigma surrounding the "ornamental" and "decorative" works under the then-exclusive purview of design-patent protection. Among the politically dominant segments of American society, the creation, appreciation, and consumption of design "for its own sake" grew increasingly intertwined with notions of decadence, effeminacy ...
The Letter Of Richard Wyche: An Interrogation Narrative, 2016 University of Kentucky
The Letter Of Richard Wyche: An Interrogation Narrative, Christopher G. Bradley
This is a translation, with introduction, of the Letter of Richard Wyche—one of only two heresy interrogation narratives from medieval England written from the perspective of the accused heretic. The Letter is an autobiographical account of Richard Wyche’s interrogation, in 1402-1403, at the hands of church officials. Wyche originally composed the Letter in (Middle) English but it survives only in a Latin translation, alongside other forbidden texts in a manuscript now in Prague. Wyche wrote and covertly sent away this Letter to an audience of intimates sympathetic to the cause (the so-called Wycliffite or Lollard heresy) before his ...
Legal Research And The World Of Thinkable Thoughts, 2016 Selected Works
Legal Research And The World Of Thinkable Thoughts, Robert C. Berring
It is difficult to properly describe technology’s impact on legal information. The impact created a generational gap between those who learned their research skills before the change and current students. The habits of the new generation of legal researchers point toward a change in the way that we can think about the law.
Colonialism And Constitutional Memory, 2016 Cornell Law School
Colonialism And Constitutional Memory, Aziz Rana
The United States shares a number of basic traits with various British settler societies in the nonwhite world. These include longstanding histories in which colonists and their descendants divided legal, political, and economic rights between insiders and subordinated outsiders, be they expropriated indigenous groups or racial minorities. But Americans rarely think of themselves as part of an imperial family of settler polities and instead generally conceive of the country as quintessentially anti-imperial and inclusive. What explains this fact and what are its political consequences?
This Article offers an initial response, arguing that a significant reason is the symbolic power of ...