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If George Washington Did It, Does That Make It Constitutional? : History's Lessons For Wartime Military Tribunals, Martin S. Lederman 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 ...


My Turn: 'We The People' And The Garland Nomination, John M. Greabe 2016 Franklin Pierce Law Center

My Turn: 'We The People' And The Garland Nomination, John M. Greabe

Legal Scholarship

[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, Stephanos Bibas 2016 University of Pennsylvania Law School

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

Faculty Scholarship

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, Bradford R. Clark, Anthony J. Bellia 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, Randy J. Kozel 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, Jill E. Fisch 2016 University of Pennsylvania Law School

The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch

Jill Fisch

No abstract provided.


Class Action Reform: Lessons From Securities Litigation, Jill E. Fisch 2016 University of Pennsylvania Law School

Class Action Reform: Lessons From Securities Litigation, Jill E. Fisch

Jill Fisch

No abstract provided.


Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang 2016 University of Pennsylvania Law School

Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang

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, Charles E. Colman 2016 NYU School of Law

Fashion, Sexism, And The United States Federal Judiciary, Charles E. Colman

Charles 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), Charles E. Colman 2016 NYU School of Law

Design And Deviance: Patent As Symbol, Rhetoric As Metric (Parts 1 And 2), Charles E. Colman

Charles 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, Christopher G. Bradley 2016 University of Kentucky

The Letter Of Richard Wyche: An Interrogation Narrative, Christopher G. Bradley

Christopher 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, Robert C. Berring 2016 Selected Works

Legal Research And The World Of Thinkable Thoughts, Robert C. Berring

Robert 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, Aziz Rana 2016 Cornell Law School

Colonialism And Constitutional Memory, Aziz Rana

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 ...


The Supreme Court’S Regulation Of Civil Procedure: Lessons From Administrative Law, Lumen N. Mulligan, Glen Staszewski 2016 University of Kansas Law School

The Supreme Court’S Regulation Of Civil Procedure: Lessons From Administrative Law, Lumen N. Mulligan, Glen Staszewski

Lumen N. Mulligan

In this Article, we argue that the U.S. Supreme Court should route most Federal Rules of Civil Procedure issues through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications, unless the Court can resolve the case solely through the deployment of traditional tools of statutory interpretation. While we are not the first to express a preference for rulemaking on civil procedure issues, we advance the position in four significant ways. First, we argue that the Supreme Court in the civil procedure arena is vested with powers analogous to most administrative agencies. Second ...


The Mixed Courts Of Egypt: A Study On The Use Of Natural Law And Equity, Gabriel M. Wilner 2016 University of Georgia

The Mixed Courts Of Egypt: A Study On The Use Of Natural Law And Equity, Gabriel M. Wilner

Georgia Journal of International & Comparative Law

No abstract provided.


Jurisprudence Between Science And The Humanities, Dan Priel 2016 York University

Jurisprudence Between Science And The Humanities, Dan Priel

Dan Priel

For a long time philosophy has been unique among the humanities for seeking closer alliance with the sciences. In this Article I examine the place of science in relation to legal positivism. I argue that, historically, legal positivism has been advanced by theorists who were also positivists in the sense the term is used in the philosophy of social science: they were committed to the idea that the explanation of social phenomena should be conducted using similar methods to those used in the natural sciences. I then argue that since around 1960 jurisprudence, and legal positivism in particular, has undergone ...


Forum Selling, Daniel M. Klerman, Greg Reilly 2016 USC Law School

Forum Selling, Daniel M. Klerman, Greg Reilly

University of Southern California Legal Studies Working Paper Series

Forum shopping is problematic because it may lead to forum selling. For diverse motives, including prestige, local benefits, or re-election, some judges want to hear more cases. When plaintiffs have wide choice of forum, such judges have incentives to make the law more pro-plaintiff, because plaintiffs choose the court. While only a few judges may be motivated to attract more cases, their actions can have large effects, because their courts will attract a disproportionate share of cases. For example, judges in the Eastern District of Texas have distorted the rules and practices relating to case assignment, joinder, discovery, transfer, and ...


The Death Penalty In Traditional China, Chin Kim, Theodore R. LeBlang 2016 University of Illinois

The Death Penalty In Traditional China, Chin Kim, Theodore R. Leblang

Georgia Journal of International & Comparative Law

No abstract provided.


Newsroom: From Hate To Hope 7/20/2016, Jill Rodriguez, Roger Williams University School of Law 2016 RWU Law Magazine

Newsroom: From Hate To Hope 7/20/2016, Jill Rodriguez, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


The Mythical Beginnings Of Intellectual Property, Jessica M. Silbey 2016 Suffolk University

The Mythical Beginnings Of Intellectual Property, Jessica M. Silbey

Jessica Silbey

It has become commonplace to justify intellectual property protection with homage to utilitarianism (maximizing the incentive to create, invent or produce quality goods) or natural rights (people should own the product of their creative, inventive or commercial labor). Despite the on-going dominance of these theories, there remains a dissatisfying lack of a comprehensive explanation for the value of intellectual property protection. This is in part because the economic analysis of law tends to undervalue the humanistic element of intellectual property. This Article aims to fill that void. It offers a new explanation for intellectual property rooted in narrative theory. Whereas ...


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