Law Commons^™

Chief Justice Melville Weston Fuller And The Great Mustache Debate Of 1888, Todd C. Peppers

Scholarly Articles

Over the long history of the Supreme Court, nominees to the highest court in the land have been opposed for a variety of reasons. Often opponents are concerned about the nominee’s political ideology or competency. Occasionally, allegations are raised about political cronyism. And candidates have come under fire for their religion. But nominee Melville Weston Fuller’s selection launched a national debate that went to the very heart of what makes one qualified to sit on the Supreme Court: whether a judge should have a mustache.

On March 23, 1888, Morrison R. Waite died of pneumonia after sitting for fourteen years …

Abolishing Racist Policing With The Thirteenth Amendment, Brandon Hasbrouck

Scholarly Articles

This Essay was also published online at 67 UCLA L. Rev. Disc. 200 (2020).

Policing in America has always been about controlling the Black body. Indeed, modern policing was birthed and nurtured by white supremacy; its roots are found in slavery. Policing today continues to protect and serve the racial hierarchy blessed by the Constitution itself. But a string of U.S. Supreme Court rulings involving the Thirteenth Amendment offers Congress a tool with which to target institutions that have preserved social, political, and official norms associated with slavery. In those cases, the Supreme Court held that Congress has broad enforcement …

The Many Harms Of Forced Marriage: Insights For Law From Ethnography In Northern Uganda, Myriam S. Denov, Mark A. Drumbl

Scholarly Articles

Harnessing an interdisciplinary framework that merges elements of law and social science, this article aims to recast the crime of forced marriage, and thereby enhance accountability, in light of knowledge acquired through ethnographic fieldwork in northern Uganda. More specifically, we draw upon the perspectives and experiences of 20 men who were "bush husbands" in the Lord’s Resistance Army (LRA). These men were abducted by the LRA between the ages of 10 and 38 and spent between 6 and 24 years in captivity. During their time in the LRA, these men became ‘bush husbands’ with each man fathering between 1 and …

Protecting Stateless Refugees In The United States, David Baluarte

Scholarly Articles

This article proposes a more complete and nuanced consideration of statelessness in asylum adjudication procedures in the United States and the possibility of reopening previously denied asylum claims for this purpose. The article proceeds in four parts, beginning with a discussion of statelessness in the United States. Next, the article describes the international protection frameworks for both refugees and stateless persons and identifies important points of intersection between these frameworks. Then the article argues that discriminatory denationalization that renders a person stateless triggers refugee protection, thereby making victims of such deprivation eligible for asylum in the United States. The article …

Practical Truth: The Value Of Apparent Honesty In Supreme Court Opinions, Timothy C. Macdonnell

Scholarly Articles

Judicial honesty or judicial candor is the subject of significant scholarly attention, but it is not the focus of this Essay. Rather, the author's focus is on the importance that appearing honest has on the persuasive force of an opinion and the dangers associated with failing to achieve that goal. This distinction is not intended to suggest Justices should seek apparent honesty while not being actually honest. Rather, this Essay emphasizes that actually honest opinions must also be apparently honest. Thus, judicial candor is necessary to apparent honesty, but it is not always sufficient on its own.

To support the …

Family In The Balance: Barton V. Barr And The Systematic Violation Of The Right To Family Life In U.S. Immigration Enforcement, David Baluarte

Scholarly Articles

The United States systematically violates the international human right to family life in its system of removal of noncitizens. Cancellation of removal provides a means for noncitizens to challenge their removal based on family ties in the United States, but Congress has placed draconian limits on the discretion of immigration courts to cancel removal where noncitizens have committed certain crimes. The recently issued U.S. Supreme Court decision in Barton v. Barr illustrates the troubling trend of affording less discretion for immigration courts to balance family life in removal decisions that involve underlying criminal conduct. At issue was the “stop-time rule” …

Gamesmanship And Criminal Process, John D. King

Scholarly Articles

We first learn formal structures of rules, procedures, and norms of conduct through games and sports. These lessons illuminate and inform human behavior in other contexts, including the adversarial world of criminal litigation. As critiques of the legitimacy and fairness of the criminal justice system increase, the philosophy and jurisprudence of sport offer a comparative legal system to examine criminal litigation. Allegations of gamesmanship—the aggressive and strategic use of rules that violate some sense of decorum or culture yet remain within the formal rules of engagement—cut across both contexts. This Article examines what sports can teach us about gamesmanship in …

Hard And Soft Law Preferences In Business And Human Rights, Kishanthi Parella

Scholarly Articles

States and non-state actors, such as business organizations and NGOs, have varying preferences among regulatory options in business and human rights. Some actors prefer soft law governance while others advocate for legally binding solutions at the national and international levels. In this essay, I explore some of the factors that may explain why state and non-state actors hold these diverse preferences. I conclude that while some of these preferences may be attributable to the unique advantages of soft lawor hard law, other preferences likely depend on the effects produced by the interaction of both types of law within the broader …

Nondelegating Death, Alexandra L. Klein

Scholarly Articles

Most states’ method of execution statutes afford broad discretion to executive agencies to create execution protocols. Inmates have challenged this discretion, arguing that these statutes unconstitutionally delegate legislative power to executive agencies, violating the state’s nondelegation and separation of powers doctrines. State courts routinely use the nondelegation doctrine, in contrast to the doctrine’s historic disfavor in federal courts. Despite its uncertain status, the nondelegation doctrine is a useful analytical tool to examine decision-making in capital punishment.

This Article critically evaluates responsibility for administering capital punishment through the lens of nondelegation. It analyzes state court decisions upholding broad legislative delegations to …

Making Open Access Viable Economically, Andrew Hyde, Russell A. Miller, Emanuel V. Towfigh

Scholarly Articles

The Editors-in-Chief have decided that we will provide our much-cherished readers with an editorial every so often as a way of sharing insights from the “machine room” where so much of the thinking and work is done to publish the German Law Journal. We want to let you in on the ideas that are on our minds, share with you our observations, and include you in the conversations we are having that might be of interest to you. We begin this tradition with this issue, Volume 21 – Number 6. Andrew Hyde, a member of the editorial team with which …

Bad Actors: Authenticity, Inauthenticity, Speech, And Capitalism, Sarah C. Haan

Scholarly Articles

“Authenticity” has evolved into an important value that guides social media companies’ regulation of online speech. It is enforced through rules and practices that include real-name policies, Terms of Service requiring users to present only accurate information about themselves, community guidelines that prohibit “coordinated inauthentic behavior,” verification practices, product features, and more.

This Article critically examines authenticity regulation by the social media industry, including companies’ claims that authenticity is a moral virtue, an expressive value, and a pragmatic necessity for online communication. It explains how authenticity regulation provides economic value to companies engaged in “information capitalism,” “data capitalism,” and “surveillance …

Deborah Gelin: Supreme Court Pioneer, Todd C. Peppers

Scholarly Articles

Monday, October 2, 1972 was a momentous day at the United States Supreme Court. At approximately 10:00 a.m., the Justices processed into the com1room to start October Term 1972. For the first time in the Court's history, a young woman took a seat on the raised rostrum. She was not Sandra Day O'Connor, who would become the first female Justice approximately nine years later. Her name was Deborah Gelin, and she was a fourteen-year-old high school student from Rockville, Maryland. Hired by the Court in September of 1972, Gelin was the first young woman to serve as a Supreme Court …

Boards In Information Governance, Faith Stevelman, Sarah C. Haan

Scholarly Articles

This Article focuses on the evolving role of boards of directors. It charts the decline of the two leading, twentieth-century conceptual frameworks shaping corporate boards’ roles: agency cost theory, which produced the limited “monitoring board,” and “separate realms” theory, which ceded board responsibility for matters other than profit maximization to government regulation. Hedge fund activism and wild stock market swings have exposed the limits of the board’s role in agency cost theory. The 2020 pandemic, economic crises, investors’ demands for socially responsible stewardship, and corporations’ own political activism have rendered separate realms thinking untenable.

Although much theorizing in corporate law …

A Secretary's Absence For A Law School Examination, Todd C. Peppers

Scholarly Articles

The May 5, 1893 letter from Justice Horace Gray to Chief Justice Melville Weston Fuller touches upon several different strands of Supreme Court history. To place the letter in context, we need to briefly discuss the creation of the law clerk position as well as the different functions of this first generation of law clerks. And we need to talk about the untimely death of a young Harvard Law School graduate named Moses Day Kimball.

Climate Change, Sustainability, And The Failure Of Modern Property Theory, Jill M. Fraley

Scholarly Articles

Property rights are, I argue, the single largest legal limitation on our ability to respond effectively to the climate change crisis. This is because our understanding of the scope of property rights shapes and limits legal concepts such as regulatory takings, land use law, common law tort and property claims, and statutory environmental regulation. Property sets our cultural norms about how much the government can or should control the uses of land. The goals of this Article are to (1) historically demonstrate the failures of sociallyoriented property theory as they are represented in the analytical framework of doctrines such as …

Is It Time For Global Justice? International Human Rights And Wrongs In The 21st Century, Christopher J. Whelan

Scholarly Articles

Human rights are controversial, yet the question posed in this Article – “is it time for Global Justice?” – begs several, critical, questions which must be addressed first. If humans disagree on which rights should be universal; if human rights are “little more than thistledown, springing up at random and blowing away as time’s whirligig spins,” then how on earth can there be international human rights?

Fetal Equality, Shaakirrah R. Sanders

Washington and Lee Law Review Online

I join Carliss Chatman’s call to fully consider the equal protection implications of the conception theory and raise an additional right to which a fetus may be entitled as a matter of equal protection: health care, which implicates state laws that provide civil and criminal exemptions to parents who choose religious healing instead of medical care for their children and minor dependents. The evidence of harm to children from religious healing is well documented. Yet, currently, approximately forty-three U.S. states and the District of Columbia have some type of exemption to protect religious healing parents in civil and criminal cases. …