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Invention Of A Slave, Brian L. Frye 2018 University of Kentucky College of Law

Invention Of A Slave, Brian L. Frye

Law Faculty Scholarly Articles

On June 10, 1858, the Attorney General issued an opinion titled Invention of a Slave, concluding that a slave owner could not patent a machine invented by his slave, because neither the slave owner nor his slave could take the required patent oath. The slave owner could not swear to be the inventor, and the slave could not take an oath at all. The Patent Office denied at least two patent applications filed by slave owners, one of which was filed by Senator Jefferson Davis of Mississippi, who later became the President of the Confederate States of America. But it ...


Should Commercial Surrogacy Be Legalised?, Seow Hon TAN 2018 Singapore Management University

Should Commercial Surrogacy Be Legalised?, Seow Hon Tan

Research Collection School Of Law

Does Singapore condone commercial surrogacy? Thisquestion is in the limelight with a court judgment on a Singaporean doctor'sbid to adopt a boy he fathered through a commercial surrogacy arrangement inthe United States.


Levels Of Abstraction In Legal Thinking, Michael Evan Gold 2018 Cornell University

Levels Of Abstraction In Legal Thinking, Michael Evan Gold

Articles and Chapters

[Excerpt] This article applies the concept of levels of abstraction to legal thinking. Perhaps the most important use of the concept is to constrain judicial lawmaking in a principled way.

Level of abstraction refers to:

  • the numbers of persons and transactions that generate an issue,

  • the numbers of persons and transactions of which a piece of evidence is true,

  • the numbers of persons and transactions to which an argument applies, and

  • the numbers of persons and transactions that are affected by the resolution of an issue.

In general, the more persons and transactions to which an issue and its resolution ...


Standing Rock, The Sioux Treaties, And The Limits Of The Supremacy Clause, Carla F. Fredericks, Jesse D. Heibel 2018 University of Colorado Law School

Standing Rock, The Sioux Treaties, And The Limits Of The Supremacy Clause, Carla F. Fredericks, Jesse D. Heibel

Articles

The controversy surrounding the Dakota Access Pipeline (“DAPL”) has put the peaceful plains of North Dakota in the national and international spotlight, drawing thousands of people to the confluence of the Missouri and Cannonball Rivers outside of Standing Rock Sioux Reservation for prayer and peaceful protest in defense of the Sioux Tribes’ treaties, lands, cultural property, and waters. Spanning over 7 months, including the harsh North Dakota winter, the gathering was visited by indigenous leaders and communities from around the world and represents arguably the largest gathering of indigenous peoples in the United States in more than 100 years.

At ...


"At Bears Ears We Can Hear The Voices Of Our Ancestors In Every Canyon And On Every Mesa Top": The Creation Of The First Native National Monument, Charles Wilkinson 2018 University of Colorado Law School

"At Bears Ears We Can Hear The Voices Of Our Ancestors In Every Canyon And On Every Mesa Top": The Creation Of The First Native National Monument, Charles Wilkinson

Articles

No abstract provided.


Public Lands, Conservation, And The Possibility Of Justice, Sarah Krakoff 2018 University of Colorado Law School

Public Lands, Conservation, And The Possibility Of Justice, Sarah Krakoff

Articles

On December 28, 2016, President Obama issued a proclamation designating the Bears Ears National Monument pursuant to his authority under the Antiquities Act of 1906, which allows the President to create monuments on federal public lands. Bears Ears, which is located in the heart of Utah’s dramatic red rock country, contains a surfeit of ancient Puebloan cliff-dwellings, petroglyphs, pictographs, and archeological artifacts. The area is also famous for its paleontological finds and its desert biodiversity. Like other national monuments, Bears Ears therefore readily meets the statutory objective of preserving “historic and prehistoric structures, and other objects of historic or ...


Adaptation Nation: Three Pivotal Transitions In American Law & Society Since 1886, Mariano-Florentino Cuéllar 2018 University of Oklahoma College of Law

Adaptation Nation: Three Pivotal Transitions In American Law & Society Since 1886, Mariano-Florentino Cuéllar

Oklahoma Law Review

No abstract provided.


The Aba Rule Of Law Initiative Celebrating 25 Years Of Global Initiatives, M. Margaret McKeown 2018 United States Court of Appeals for the Ninth Circuit

The Aba Rule Of Law Initiative Celebrating 25 Years Of Global Initiatives, M. Margaret Mckeown

Michigan Journal of International Law

Relying on extensive reports, program documentation, and interviews with important actors in the rule of law movement, this article will explore how one key player in the international-development field—the ABA—has furthered rule of law values through its global programs. The first half of the article surveys the ABA’s involvement in rule of law initiatives. Part I explores the origins of the ABA’s work in this field, which date back to the organization’s founding and took shape after the demise of the former Soviet Union. Part II surveys the expansion of the ABA’s programs beyond ...


Indefinite Detention, Colonialism, And Settler Prerogative In The United States, Natsu Taylor Saito 2018 Georgia State University College of Law

Indefinite Detention, Colonialism, And Settler Prerogative In The United States, Natsu Taylor Saito

Faculty Publications By Year

The primacy accorded individual civil and political rights is often touted as one of the United States' greatest achievements. However, mass incarcerations of indefinite duration have occurred consistently throughout U.S. history and have primarily targeted people of color. The dominant narrative insists that the United States is a political democracy and portrays each instance of indefinite detention in exceptionalist terms. This essay argues that the historical patterns of indefinite detention are better explained by recognizing the United States as a settler colonial state whose claimed prerogative to expand its territorial reach and contain/control populations over which it exercises ...


Douglass’ Reply To A. C. C. Thompson’S ‘Letter From Frederick Douglass,’ As Reprinted In The Anti-Slavery Bugle: A Critical Edition Of Both Letters, With A Summary Of Maryland’S Fugitive Slave Laws, Kayla Hardy-Butler 2018 University of Akron

Douglass’ Reply To A. C. C. Thompson’S ‘Letter From Frederick Douglass,’ As Reprinted In The Anti-Slavery Bugle: A Critical Edition Of Both Letters, With A Summary Of Maryland’S Fugitive Slave Laws, Kayla Hardy-Butler

Nineteenth-Century Ohio Literature

Kayla Hardy-Butler presents a famous letter by Frederick Douglass, as it was published in Ohio, with the letter that prompted it. This edition also includes a summary of Maryland slave statutes from the time to better explain the day-to-day experience of slavery debated in this correspondence.


Substantive Due Process And The Politicization Of The Supreme Court, Eric Millman 2018 Claremont Colleges

Substantive Due Process And The Politicization Of The Supreme Court, Eric Millman

CMC Senior Theses

Substantive due process is one of the most cherished and elusive doctrines in American constitutional jurisprudence. The understanding that the Constitution of the United States protects not only specifically enumerated rights, but also broad concepts such as “liberty,” “property,” and “privacy,” forms the foundation for some of the Supreme Court’s most impactful—and controversial—decisions.

This thesis explores the constitutional merits and politicizing history of natural rights jurisprudence from its application in Dred Scott v. Sandford to its recent evocation in Obergefell v. Hodges. Indeed, from slavery to same-same sex marriage, substantive due process has played a pivotal role ...


Plata O Plomo: Effect Of Mexican Transnational Criminal Organizations On The American Criminal Justice System, Mark M. McPherson 2018 St. Mary's University School of Law

Plata O Plomo: Effect Of Mexican Transnational Criminal Organizations On The American Criminal Justice System, Mark M. Mcpherson

St. Mary's Law Journal

Abstract forthcoming


Working Time, Dinner Time, Serving Time: Labour And Law In Industrialization, Douglas Hay 2018 Osgoode Hall Law School of York University

Working Time, Dinner Time, Serving Time: Labour And Law In Industrialization, Douglas Hay

Articles & Book Chapters

Many economic historians agree that increased labour inputs contributed to Britain’s primary industrialisation. Voluntary self-exploitation by workers to purchase new consumer goods is one common explanation, but it sits uneasily with evidence of poverty, child labour, popular protest, and criminal punishments explored by social historians. A critical and neglected legal dimension may be the evolution of contracts of employment. The law of master and servant, to use the technical term, shifted markedly between 1750 and 1850 to advantage capital and disadvantage labour. Medieval in origin, it had always been adjudicated in summary hearings before lay magistrates, and provided penal ...


In Memory Of Roderick Glen Ayers, Jr. (1947–2017), Professor Of Law, St. Mary's University School Of Law, Craig A. Gargotta, William R. "Dick" Davis Jr. 2018 U.S. Bankruptcy Court, Western District of Texas

In Memory Of Roderick Glen Ayers, Jr. (1947–2017), Professor Of Law, St. Mary's University School Of Law, Craig A. Gargotta, William R. "Dick" Davis Jr.

St. Mary's Law Journal

On September 27, 2017, Glen Ayers, a former professor at St. Mary’s School of Law, passed away suddenly and unexpectedly. Two St. Mary's alumni—Bankruptcy Judge Craig A. Gargotta (1989) and William R. “Dick” Davis, Jr. (1983)—have provided this tribute to an icon of San Antonio’s bankruptcy bar.


The Perpetual "Invasion": Past As Prologue In Constitutional Immigration Law, Matthew J. Lindsay 2018 University of Baltimore School of Law

The Perpetual "Invasion": Past As Prologue In Constitutional Immigration Law, Matthew J. Lindsay

Roger Williams University Law Review

No abstract provided.


It’S All Your Fault!: Examining The Defendant’S Use Of Ineffective Assistance Of Counsel As A Means Of Getting A “Second Bite At The Apple.”, Prentice L. White 2018 Southern University Law Center

It’S All Your Fault!: Examining The Defendant’S Use Of Ineffective Assistance Of Counsel As A Means Of Getting A “Second Bite At The Apple.”, Prentice L. White

Dickinson Law Review

The United States Constitution provides individuals convicted of a crime with “a second bite at the apple.” The Sixth Amendment provides an avenue to appeal one’s conviction based on the claim of “ineffective assistance of counsel.” What were the Framers’ true intentions in using the phrase “effective assistance of counsel”? How does the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 affect habeas corpus appeals? This article answers these questions through the eyes of Thomas—a fictional character who is appealing his murder conviction.

This article first looks at the history surrounding effective assistance of counsel and discusses ...


The End Of Special Treatment For Cubans In The U.S. Immigration System: Consequences And Solutions For Cubans With Final Orders Of Removal, Lindsay Daniels 2018 Dickinson School of Law of the Pennsylvania State University

The End Of Special Treatment For Cubans In The U.S. Immigration System: Consequences And Solutions For Cubans With Final Orders Of Removal, Lindsay Daniels

Dickinson Law Review

In January 2016, former President Obama announced the end of the “Wet-Foot, Dry-Foot” Policy, which granted special immigration benefits to Cuban migrants. As part of the agreement to end this policy, the Cuban government agreed to take back its citizens with final orders of removal for criminal convictions, an action that it had refused to take for decades. This Comment will begin by exploring past and present immigration policies between the United States and Cuba, including recent developments like the normalization of relations and the impact of President Trump’s immigration policies.

This Comment will then explore possible avenues of ...


International Law And The Balfour Decision, Geoffrey R. Watson 2018 The Catholic University of America, Columbus School of Law

International Law And The Balfour Decision, Geoffrey R. Watson

Scholarly Articles and Other Contributions

The Balfour Declaration had enormous political significance, but did it have any legal force? Was it legally binding, exposing Britain to legal remedies for its breach, or was it merely an expression of policy that could be disregarded without legal consequences? These questions are of intense interest to legal historians, but they also have contemporary political relevance. The issue is not so much whether Britain might be liable to the Palestinians for failing to safeguard the “civil and religious rights” of non-Jewish residents of Palestine, though that is a theoretical possibility. Instead, the question is whether the Declaration is legally ...


Internationalizing And Historicizing Hart’S Theory Of Law, Norman P. Ho 2018 Peking University School of Transnational Law

Internationalizing And Historicizing Hart’S Theory Of Law, Norman P. Ho

Washington University Jurisprudence Review

In The Concept of Law – which continues to enjoy the central position in the field of analytical jurisprudence five decades after its initial publication – H.L.A. Hart makes two powerful claims. He argues that his theory of law is universal (in that it can apply to any legal culture) and timeless (in that it can apply to different times in history). Despite the sweeping, bold nature of these claims, neither Hart nor the large body of scholarship that has responded to, criticized, and refined Hart’s model of law over the past few decades has really tested whether Hart ...


Dworkin's Incomplete Interpretation Of Democracy, Alexander Latham 2018 Swansea University

Dworkin's Incomplete Interpretation Of Democracy, Alexander Latham

Washington University Jurisprudence Review

This essay mounts an immanent critique of Dworkin’s defense of judicial review. Taking Dworkin’s methodology of constructive interpretation as my starting point, I argue that when analyzing the role that political institutions play in democracy, Dworkin fails to take his own method far enough. In particular, he limits his constructive interpretation of democracy to the practice of voting, overlooking the distinctive democratic values implicit within the institutions and practices of legislation by representative assembly. Ironically, given his well-known critique of majoritarian democracy, this failure leads Dworkin to adopt majoritarianism as a starting point when assessing particular institutions. A ...


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