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Articles 1 - 30 of 45
Full-Text Articles in Law
That Elusive Consensus: The Historiographic Significance Of William E. Nelson's Works On Judicial Review, Mark Mcgarvie
That Elusive Consensus: The Historiographic Significance Of William E. Nelson's Works On Judicial Review, Mark Mcgarvie
Chicago-Kent Law Review
This essay provides a historiographical context for Nelson’s work on judicial review. It argues that Nelson’s integration of intellectual and legal history not only rebutted the instrumentalist historiography that prevailed when he undertook his work on Marshall and judicial review, but also fostered an appreciation of the need to place legal actors in the intellectual context in which they acted. Highlighting the influence of Bernard Bailyn’s pathfinding work on popular sovereignty upon Nelson’s development of his consensus theory, the essay contends that Nelson’s work changed the course of academic readings of Marshall’s jurisprudence to be consistent with a broader acceptance …
Assessing The Board Of Immigration Appeals' Social Visibility Doctrine In The Context Of Human Trafficking, Kathleen M. Mallon
Assessing The Board Of Immigration Appeals' Social Visibility Doctrine In The Context Of Human Trafficking, Kathleen M. Mallon
Chicago-Kent Law Review
United States asylum law provides individuals who have been persecuted in their country of origin with residency in the United States. Membership in a “particular social group” (PSG) confers refugee status on individuals applying for asylum in the United States. The Board of Immigration Appeals (BIA) initially defined a PSG as a group composed of members who all share an immutable characteristic, that is, an unchangeable characteristic or one so fundamental to an individual’s identity that they should not be required to change it. This test functioned well for over a decade; however, the BIA added an additional requirement to …
Table Of Contents, Chicago-Kent Law Review
Table Of Contents, Chicago-Kent Law Review
Chicago-Kent Law Review
No abstract provided.
Introduction: The Making Of A Canonical Legal Historian, Felice Batlan, R. B. Bernstein
Introduction: The Making Of A Canonical Legal Historian, Felice Batlan, R. B. Bernstein
Chicago-Kent Law Review
No abstract provided.
Americanization Of The Common Law: The Intellectual Migration Meets The Great Migration, David Thomas Konig
Americanization Of The Common Law: The Intellectual Migration Meets The Great Migration, David Thomas Konig
Chicago-Kent Law Review
This essay is an appreciation of William E. Nelson’s Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (1975) and the complementary study published six years later as Dispute and Conflict Resolution in Plymouth County, Massachusetts, 1725–1825 (1981). The essay places Nelson’s research project in the immediate context of historical writing on colonial New England at the time of their publication but steps back from that narrow context to identify the significance of the book in the long trajectory of great legal historical writing on the Anglo-American legal tradition.
Law For The Empire: The Common Law In Colonial America And The Problem Of Legal Diversity, Lauren Benton, Kathryn Walker
Law For The Empire: The Common Law In Colonial America And The Problem Of Legal Diversity, Lauren Benton, Kathryn Walker
Chicago-Kent Law Review
In laboring to uncover the legal origins of the American Revolution, historians of law in early America often separated the field from the comparative legal history of empires. William E. Nelson does not explicitly set out to place American colonial legal history in a global context in The Common Law in Colonial America. But in analyzing legal diversity and identifying elements of early legal convergence, Nelson does address key questions within the comparative history of empire and law. This article surveys Nelson’s contributions and places them alongside two other approaches to the study of colonial legal diversity and the constitution …
William E. Nelson's The Roots Of American Bureaucracy And The Resuscitation Of The Early American State, Gautham Rao
William E. Nelson's The Roots Of American Bureaucracy And The Resuscitation Of The Early American State, Gautham Rao
Chicago-Kent Law Review
In 1983, William E. Nelson published The Roots of American Bureaucracy, 1830–1900. Nelson traced the somewhat unlikely emergence and victory of the bureaucratic model in American political and legal thought. This article summarizes the book’s argument and describes its reception. It also seeks to assess the scholarly legacy of The Roots of American Bureaucracy. I argue that the book was ahead of its time because it contradicted prevailing scholarly trends in identifying a significant federal state in nineteenth-century America. In particular, during the past two decades, historians and political scientists have built on Nelson’s insights to develop a consensus about …
Original Intent And The Fourteenth Amendment: Into The Black Hole Of Constitutional Law, Paul Finkelman
Original Intent And The Fourteenth Amendment: Into The Black Hole Of Constitutional Law, Paul Finkelman
Chicago-Kent Law Review
This article explores and examines William E. Nelson’s masterful study of the origins and adoption of the Fourteenth Amendment, The Fourteenth Amendment: From Political Principal to Judicial Doctrine (1988). The article explains that a quarter of a century after he wrote this book, Nelson’s study of the origins and adoption of the Amendment remains the best exploration of these issues. His book illustrates the difficulties of determining the “original intent” of the framers of this complicated and complex Amendment. At the same time, however, Nelson demonstrates that for many issues we can come to a strong understanding of the goals …
Rejecting The Legal Process Theory Joker: Bill Nelson's Scholarship On Judge Edward Weinfeld And Justice Byron White, Brad Snyder
Rejecting The Legal Process Theory Joker: Bill Nelson's Scholarship On Judge Edward Weinfeld And Justice Byron White, Brad Snyder
Chicago-Kent Law Review
My contribution to this tribute places Bill Nelson’s scholarship about Judge Edward Weinfeld and Justice Byron White within several contexts. It is a personal history of Nelson the law student, law clerk, and young scholar; an intellectual history of legal theory since the 1960s; an examination of the influence of legal theory on Nelson’s scholarship based on his writings about Weinfeld and White; and an example of how legal historians contend with the subject of judicial reputation. Nelson was one of many former Warren Court and Burger Court clerks who joined the professoriate and rejected the legal process theory that …
Semi-Wonderful Town, Semi-Wonderful State: Bill Nelson's New York, Edward A. Purcell Jr.
Semi-Wonderful Town, Semi-Wonderful State: Bill Nelson's New York, Edward A. Purcell Jr.
Chicago-Kent Law Review
This article examines Bill Nelson’s two major books on the history of New York law and politics, The Legalist Reformation (2001) and Fighting for the City (2008). The former deals with developments in New York State from the late nineteenth to the late twentieth century; the latter with New York City starting somewhat earlier but concentrating on the same later period. The Legalist Reformation argues that the election of Alfred E. Smith as Governor of New York in 1922 began a transformation of the state’s legal and political culture that brought new and more egalitarian social policies to the state …
A Response: The Impact Of War On Justice In The History Of American Law, William E. Nelson
A Response: The Impact Of War On Justice In The History Of American Law, William E. Nelson
Chicago-Kent Law Review
The foundational claim of this essay is that judges at most points in time should act with restraint and should not attempt to resolve contested issues of policy. They should incorporate new policies into the law only when the polity as a whole has already adopted a particular policy or when it is in the process of adopting one. The essay then maintains that there have been three periods in American history—the Revolution and the subsequent decades of constitution-making, the Civil War and Reconstruction, and World War II and its aftermath—when the American public as an entity did adopt policies …
The "Moral Hazards" Of Title Vii's Religious Accomodation Doctrine, Stephen Gee
The "Moral Hazards" Of Title Vii's Religious Accomodation Doctrine, Stephen Gee
Chicago-Kent Law Review
Freedom of religion in the workplace has recently become a hot topic with regards to whether U.S. or state laws (mainly contraceptive care and treatment of same-sex, married employees’ spouses) must accommodate certain employer’s religious beliefs or else violate the employer’s constitutional right. However, before this recent employer-centric topic came to light, the main focus was on employees and to what extent employers must accommodate an employee’s religion via Title VII. Most, if not all, academic literature has argued an employer’s duty to accommodate employee’s religion is too weak under Title VII and should thus be increased to the significant …
Abstention Doctrine And The Fair Debt Collection Practices Act, Michael J. Wood
Abstention Doctrine And The Fair Debt Collection Practices Act, Michael J. Wood
Chicago-Kent Law Review
A survey of cases where federal courts abstain from hearing cases related to existing state court cases under the Fair Debt Collection Practices Act (FDCPA) reveals varying approaches and theories underlying those courts’ abstentions. This article attempts to distinguish FDCPA claims related to the validity of the underlying debt from claims arising out of debt collectors’ conduct in collecting a debt, and recommends that federal courts avoid abstaining from the latter. When Congress passed the FDCPA, it intended to provide access to a forum of the consumer’s choice to enforce their rights under the Act by serving as “private attorneys …
An Introduction To Intragroup Dissent And Its Legal Implications, Holning Lau
An Introduction To Intragroup Dissent And Its Legal Implications, Holning Lau
Chicago-Kent Law Review
No abstract provided.
Intragroup Discourse On Intragroup Protections In Muslim-Majority Countries, Asma T. Uddin
Intragroup Discourse On Intragroup Protections In Muslim-Majority Countries, Asma T. Uddin
Chicago-Kent Law Review
Many Muslim-majority countries do not provide adequate protection for dissent of any sorts—religious, social, or political. In the realm of religious dissent, these countries persecute not just non-Muslims, but in fact, the persecution is harshest and most frequent against Muslim dissenters. This paper explores how protection for intragroup dissent in these countries is the first and most crucial step in protecting dissent more broadly and lays out both the current state of affairs and several avenues for reform.
The European Court Of Human Rights And Intragroup Religious Diversity: A Critical Review, Lourdes Peroni
The European Court Of Human Rights And Intragroup Religious Diversity: A Critical Review, Lourdes Peroni
Chicago-Kent Law Review
This Article examines the ways in which one of the most established human rights courts—the European Court of Human Rights—encourages or discourages intragroup religious diversity when dealing with religious freedom claims. In particular, it critically assesses the Court’s attentiveness to internal group diversity by scrutinizing the objective filters that the Court employs to determine whether certain practices “count” as a manifestation of claimants’ religion for legal purposes. The Article argues that, at times, these filters are based on assumptions about religion and religious groups that impede recognition of more lived experiences of religion and internal group diversity. The Article further …
Participatory Democracy And The Entrepreneurial Government: Addressing Process Efficiencies In The Creation Of Land Use Development Agreements, Ramsin G. Canon
Participatory Democracy And The Entrepreneurial Government: Addressing Process Efficiencies In The Creation Of Land Use Development Agreements, Ramsin G. Canon
Chicago-Kent Law Review
Can the development agreement become a tool for community-based planning? Development agreements and related land use planning instruments have steadily increased in popularity over the last few decades. Standard zoning regimes have proven to be too rigid and inflexible to accommodate the evolving nature of large-scale, and particularly mixed-use, developments. The bilateral nature of development agreements also allows cities and counties to effectively compete for development dollars by crafting incentives. However, this type of ad-hoc planning can run afoul of the reserved powers doctrine and its progeny, and can face vehement political and social opposition. This type of opposition results …
Expanding The After-Acquired Evidence Defense To Include Post-Termination Misconduct, Holly G. Eubanks
Expanding The After-Acquired Evidence Defense To Include Post-Termination Misconduct, Holly G. Eubanks
Chicago-Kent Law Review
In 1995, the United States Supreme Court formulated the after-acquired evidence defense in employment discrimination litigation. The defense, if successfully established, allows the defendant to limit the damages available to the plaintiff. In order to assert the defense, a defendant must establish that it would have terminated the plaintiff based on after-acquired evidence of wrongdoing if the defendant had known of the wrongdoing prior to the termination. The defense, as generally accepted, applies to misconduct that occurs during employment and misconduct that occurs prior to employment in the application process. This note considers the potential expansion of the defense to …
Hidden Home Videos: Surreptitious Video Surveillance In Divorce, Rebecca V. Lyon
Hidden Home Videos: Surreptitious Video Surveillance In Divorce, Rebecca V. Lyon
Chicago-Kent Law Review
In divorce court, often a very contentious and emotional court, parties frequently use what they can to gain the upper hand. The invention of new technology gives them an even wider arsenal. While tracking each other on the computer or checking phone records has become common, courts are now encountering instances where one spouse has placed hidden video cameras around the house to catch the other spouse doing something wrong. Under many state laws, courts have been forced to conclude that the surreptitious video recordings are not illegal. Perhaps more surprisingly, a few courts have concluded that the law either …
Table Of Contents - Issue 2, Chicago-Kent Law Review
Table Of Contents - Issue 2, Chicago-Kent Law Review
Chicago-Kent Law Review
No abstract provided.
How Lawyers Manage Intragroup Dissent, Scott L. Cummings
How Lawyers Manage Intragroup Dissent, Scott L. Cummings
Chicago-Kent Law Review
This essay, adapted from the keynote speech for the conference, reflects upon how lawyers respond to dissent within social movements—over the goals of social change efforts and the means of pursuing them. Drawing upon case studies from the LGBT rights and labor contexts, it describes specific challenges to managing dissent within “top-down” and “bottom-up” lawyering models. From the top-down, it explores how lawyers in the California marriage equality movement addressed repeated legal challenges over litigation tactics. From the bottom-up, it describes how lawyers for a community-labor coalition dealt with competing conceptions of the public good in a campaign to stop …
Capital Defenders As Outsider Lawyers, Kathryn A. Sabbeth
Capital Defenders As Outsider Lawyers, Kathryn A. Sabbeth
Chicago-Kent Law Review
What role can lawyers play in the internal disputes of a community to which they are outsiders? This essay highlights two core rationales for outsider intervention in support of internal dissent. It examines these rationales in the case of capital defenders from the U.S. North in the U.S. South. The position as an outsider can provide the will and freedom to launch direct attacks on injustice. Frequently, outsiders also bring superior resources for the fight. When outsiders engage in direct social critique, however, they can be accused of cultural imperialism. As an alternative, outsider lawyers can marshal indirect challenges, using …
Immutability And Innateness Arguments About Lesbian, Gay, And Bisexual Rights, Edward Stein
Immutability And Innateness Arguments About Lesbian, Gay, And Bisexual Rights, Edward Stein
Chicago-Kent Law Review
A popular and intuitively plausible type of argument for the rights of lesbians, gay men, and bisexuals is based on claims that sexual orientations are inborn and/or unchangeable. Many advocates of such rights view expressing doubts about the immutability and innateness of sexual orientation as tantamount to opposing gay rights. Legally, claims that sexual orientations are innate and/or immutable intersect with the so-called immutability factor in equal protection jurisprudence. This article considers the legal, ethical, and empirical support for arguments for LGB rights based on immutability and innateness. I raise a variety of problems for such arguments in various contexts, …
The Art Of Racial Dissent: African American Political Discourse In The Age Of Obama, Kareem U. Crayton
The Art Of Racial Dissent: African American Political Discourse In The Age Of Obama, Kareem U. Crayton
Chicago-Kent Law Review
What does the art of dissent from a group look like in the context of race and politics? How does this element of political discourse resemble dissent in the more typical settings, such as the courts? And how might this brand of dissent be distinguished from the more common forms of the enterprise? In this piece, I develop a thesis of “racial dissent,” defined here as the act of speaking against a prevailing norm or principle within a given racial group. I outline a general argument for how racial dissent operates, including the review of structural pressures that racial dissenters …
Dissenting In And Dissenting Out, Nancy Leong
Dissenting In And Dissenting Out, Nancy Leong
Chicago-Kent Law Review
The intense legal and social preoccupation with the appearance of diversity and nondiscrimination both reflects and reinforces a process I call “identity capitalism.” Through that process, ingroup individuals and ingroup-dominated institutions derive value from outgroup identity. This process results in the commodification of outgroup identity, with negative consequences for both outgroup members and society. Outgroup members actively participate in the process of identity capitalism in various ways. In particular, they leverage their outgroup membership to derive social and economic value for themselves. I call such outgroup participants “identity entrepreneurs.” In this essay, I apply the framework of identity entrepreneurship to …
Employers As Risks, Amy B. Monahan
Employers As Risks, Amy B. Monahan
Chicago-Kent Law Review
In evaluating health and retirement security in the United States, much recent work has focused on shortcomings in individual decision making. For example, in explaining why 401(k) plans are suboptimal for achieving retirement security, a significant volume of literature has catalogued the mistakes individuals make when attempting to save for retirement through such plans. This article seeks to move the discussion of suboptimal decision making in a new direction, by focusing on the impact that employer decision making has on the ability of employees to achieve health and retirement security. The article argues that employer decision making regarding whether to …
Rethinking Traditional Conceptions Of Child Pornography: An Analysis Of How The U.S. Supreme Court Decision In Stevens Impacts The Illinois Supreme Court's Decision In People V. Hollins, James D. Konstantopoulos
Rethinking Traditional Conceptions Of Child Pornography: An Analysis Of How The U.S. Supreme Court Decision In Stevens Impacts The Illinois Supreme Court's Decision In People V. Hollins, James D. Konstantopoulos
Chicago-Kent Law Review
In 2010, the U.S. Supreme Court, in deciding United States v. Stevens, held that rational basis review was no longer sufficient to criminalize depictions of acts if the acts depicted are themselves legal. In 2009, Marshall Hollins entered into a consensual sexual relationship with his seventeen-year old girlfriend. As is becoming common in our technological era, where every phone can record video and photographs and send those files to other devices, Mr. Hollins and his girlfriend used the technology available to them to document one of their excursions. Following his conviction for child pornography, Mr. Hollins challenged the Constitutionality of …
Third Party Funding Of Personal Injury Tort Claims: Keep The Baby And Change The Bathwater, Terrence Cain
Third Party Funding Of Personal Injury Tort Claims: Keep The Baby And Change The Bathwater, Terrence Cain
Chicago-Kent Law Review
In the early 1990s, a period of high-risk lending at high interest rates, a new entrant emerged in civil litigation: the Litigation Finance Company (“LFC”). LFCs advance money to plaintiffs involved in contingency fee litigation. The money is provided on a non-recourse basis, meaning the plaintiff repays the LFC only if she obtains money from the lawsuit through a settlement, judgment, or verdict. If the plaintiff recovers nothing, she will not owe the LFC anything. When she does repay the LFC, however, she could end up paying as much as 280% of the amount advanced by the LFC. As one …
An Economic Perspective On Subprime Lending, Michael H. Anderson
An Economic Perspective On Subprime Lending, Michael H. Anderson
Chicago-Kent Law Review
This article aims to provide a concise economic overview of several interesting subprime financing mechanisms, which are becoming increasingly common on the U.S. financial landscape. In particular, rent-to-own, payday lending, pawn broking, and (vehicle) title loans are considered. Generally speaking, a common thread with these loans is their relatively small size and short duration as well as the absence of a credit check or any of the traditional processes for determining credit-worthiness. Due to the ready availability of these loans, they appeal to low-income consumers, including the “working poor,” and to those who have suffered financial setbacks. Because the natural …
Legal Uncertainty And Aberrant Contracts: The Choice Of Law Clause, William J. Woodward Jr.
Legal Uncertainty And Aberrant Contracts: The Choice Of Law Clause, William J. Woodward Jr.
Chicago-Kent Law Review
Legal uncertainty about the applicability of local consumer protection can destroy a consumer’s claim or defense within the consumer arbitration environment. What is worse, because the consumer arbitration system cannot accommodate either legal complexity or legal uncertainty, the tendency will be to resolve cases in the way the consumer’s form contract dictates, that is, in favor of the drafter. To demonstrate this effect and advocate statutory change, this article focuses on fee-shifting statutes in California and several other states. These statutes convert very common one-way fee-shifting terms (consumer pays business’s attorneys fees if business wins but not the other way …