Law Commons^™

Queer Sacrifice In Masterpiece Cakeshop, Jeremiah A. Ho

Faculty Publications

This Article interprets the Supreme Court’s 2018 decision, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission , as a critical extension of Derrick Bell’s interest convergence thesis into the LGBTQ movement. Chiefly, Masterpiece reveals how the Court has been more willing to accommodate gay individuals who appear more assimilated and respectable—such as those who participated in the marriage equality decisions—than LGBTQ individuals who are less “mainstream” and whose exhibited queerness appear threatening to the heteronormative status quo. When assimilated same-sex couples sought marriage in Obergefell v. Hodges, their respectable personas facilitated the alignment between their interests to marry and …

Truth Seeking: The Lenahan Case And The Search For A Human Rights Remedy, Margaret B. Drew

Faculty Publications

Part I of this essay addresses the role of determining truth as part of human rights remedies. Truth is essential so that all involved may provide appropriate remedies to those harmed, as well as to open a gateway to whatever level of healing and change is possible under the circumstances. Part II discusses the procedural history of Town of Castle Rock v. Gonzales and explores the comparative findings and goals of the U.S. legal system within the human rights framework. The U.S. and IACHR Gonzales-Lenahan cases are used as comparative exemplars. The application of truth seeking principles to the Lenahan …

Law As Instrumentality, Jeremiah A. Ho

Faculty Publications

Our conceptions of law affect how we objectify the law and ultimately how we study it. Despite a century’s worth of theoretical progress in American law—from legal realism to critical legal studies movements and postmodernism—the formalist conception of “law as science,” as promulgated by Christopher Langdell at Harvard Law School in the late-nineteenth century, still influences methodologies in American legal education. Subsequent movements of legal thought, however, have revealed that the law is neither scientific nor “objective” in the way the Langdellian formalists once envisioned. After all, the Langdellian scientific objectivity of law itself reflected the dominant class, gender, power, …

Reforming High School American History Curricula: What Publicized Student Intolerance Can Teach Policymakers, Douglas E. Abrams

Faculty Publications

This article concerns the way public high schools teach American history under curricula and standards mandated by state law. “We’re raising young people who are, by and large, historically illiterate,” says David McCullough, the dean of American historians.

The article describes three recent nationally publicized incidents in which high school students belittled lynching and the Trail of Tears, evidently without appreciating the episodes’ legal and historical significance to African Americans and Native Americans respectively. Standards and textbooks typically recognize diversity and multiculturalism, but research and surveys indicate that classroom teachers frequently sanitize or avoid discomforting topics that might trigger complaints, …

Magna Carta’S Freedom For The English Church, Dwight G. Duncan

Faculty Publications

Even after, eight centuries, this provision of Magna Carta is one of the few that remains in effect. A statement of principle that the Church in England should be free from outside domination, it is an ancestor of our American belief in separation of Church and State and the guarantee of free exercise of religion contained in the First Amendment. In English history, people died for this principle, on various sides of the denominational divides. It was not always vindicated in practice. But, since at least the end of the thirteenth century, it has ever been on the statute books …

Zoning For Apartments: A Study Of The Role Of Law In The Control Of Apartment Houses In New Haven, Connecticut 1912–1932, Marie C. Boyd

Faculty Publications

This article seeks to contribute to the legal and policy debates over zoning by providing a more detailed examination of the impact of apartments on both pre-zoning land use patterns and the zoning process during the formative initial stages of zoning in the United States than has been provided in the literature to date. Specifically, this Article analyzes the impact of apartments on both pre-zoning land use patterns and the zoning process in New Haven, Connecticut. It focuses on the period beginning with the selection of New Haven’s first Zoning Commission in 1922, and concluding with the passage of New …

Mass Murderers Discover Mass Murder: The Germans And Katyn, 1943, Kenneth F. Ledford

Faculty Publications

After the German army in 1943 discovered the graves of murdered Polish army officers in the Katyn Forest, Joseph Goebbels embarked upon a cynical publicity campaign to spread before the world the perils of Bolshevik success. But the Nazi discovery of Soviet crimes against leaders of Polish state and society elided the reality that from the very beginning of the German invasion of Poland, the SS had carried out identical mass murders of Polish intellectuals and other social leaders. Goebbels's campaign amounted to mass murderers ““uncovering” mass murders on the part of their adversaries and seeking cynically to use that …

From Rapists To Superpredators: What The Practice Of Capital Punishment Says About Race, Rights And The American Child, Robyn Linde

Faculty Publications

At the turn of the 20^th century, the United States was widely considered to be a world leader in matters of child protection and welfare, a reputation lost by the century’s end. This paper suggests that the United States’ loss of international esteem concerning child welfare was directly related to its practice of executing juvenile offenders. The paper analyzes why the United States continued to carry out the juvenile death penalty after the establishment of juvenile courts and other protections for child criminals. Two factors allowed the United States to continue the juvenile death penalty after most states in …

Natural Law And The Rhetoric Of Empire: Reynolds V. United States, Polygamy, And Imperialism, Nathan B. Oman

Faculty Publications

In 1879, the U.S. Supreme Court construed the Free Exercise Clause for the first time, holding in Reynolds v. United States that Congress could punish Mormon polygamy. Historians have interpreted Reynolds, and the anti-polygamy legislation and litigation that it midwifed, as an extension of Reconstruction into the American West. This Article offers a new historical interpretation, one that places the birth of Free Exercise jurisprudence in Reynolds within an international context of Great Power imperialism and American international expansion at the end of the nineteenth century. It does this by recovering the lost theory of religious freedom that the Mormons …

Denying Choice Of Forum: An Interference By The Massachusetts Trial Court With Domestic Violence Victims’ Rights And Safety, Margaret B. Drew, Marilu E. Gresens

Faculty Publications

On May 4, 2009, the Chief Justice of Administration and Management of the Massachusetts Trial Court launched a pilot program in the Norfolk Division of the Probate and Family Court Department through an Administrative Order entitled, in pertient part, “for the Interdepartmental Transfer of Certain Abuse Prevention Proceedings”. This pilot program authorizes a judge of the Norfolk Division of the Probate and Family Court to initiate interdepartmental transfers of civil protection order petitions pending in other court departments where the parties have related domestic relations matters pending in the Probate and Family Court.

This article discusses how the pilot program …

Preaching To The Court House And Judging In The Temple, Nathan B. Oman

Faculty Publications

No abstract provided.

Screening Historical Sexualities: A Roundtable On Sodomy, South Africa, And Proteus, Noa Ben-Asher, R. Bruce Brasell, Daniel Garrett, John Greyson, Jack Lewis, Susan Newton-King

Faculty Publications

(Excerpt)

Proteus (2003; 100 min., Canada and South Africa) is a low-budget feature film, directed by John Greyson (Toronto) and Jack Lewis (Cape Town), that made the international rounds of “art cinema” and queer festivals in 2003 and 2004, with limited theatrical release in New York, Toronto, and other cities. The film advances Greyson’s and Lewis’s experiments with political essay-narrative forms both in their respective documentary, experimental, and dramatic videos dating back to the early 1980s (including Lewis’s Apostles of Civilized Vice [1999]) and in Greyson’s theatrical feature films beginning with Urinal in 1988. Based on an early-eighteenth-century court record, …

What Law Schools Can Learn From Billy Beane And The Oakland Athletics , Rafael Gely, Paul L. Caron

Faculty Publications

In Moneyball, Michael Lewis writes about a story with which he fell in love, a story about professional baseball and the people that play it. A surprising number of books and articles have been written by law professors who have had long love affairs with baseball. These books and articles are a two-way street, with baseball and law each informing and enriching the other. For example, law professors versed in antitrust, labor, property, tax, and tort law have brought their legal training to bear on particular aspects of baseball. Law professors also have mined their passion for baseball in extracting …

Book Review Of Mental Disability In Victorian England: The Earlswood Asylum 1847-1901, Michael Ashley Stein

Faculty Publications

No abstract provided.

Hardball, Politics, And The Nlrb, Michael Ashley Stein

Faculty Publications

No abstract provided.

Looseleafing The Flow: An Anecdotal History Of One Technology For Updating, Howard T. Senzel

Faculty Publications

This work will show that there is a great gulf between the culture of lawmakers and the culture of those who comply. Lawmakers - legislators, administrators, and especially judges - function by producing primary authorities in law. The texts of these authorities are the law itself. Because they were created in the course of deciding actual cases - cases which produced insights to a truth of lasting value, these texts have an authority equal to all the other insights produced down through the ages. The excitement that accompanies such insights tends to blind lawmakers to the chore of compliance. Those …

Banking Regulation: Its History And Future, Jerry W. Markham

Faculty Publications

This article traces the history of the growth and regulation of banking services in the United States. That history will show how the existing regulatory structure was developed in response to demands of the Civil War and a populist crusade against the “money trust.” That effort reached its zenith with the New Deal legislation of the 1930s, but began to fall apart as financial services consolidated. The article will then show how the financial services industries (banking, insurance, securities and derivatives) began to merge in their product base while at the same time separating on a fault line between institutional …

Interest Balancing And Other Limits To Judicially Managed Equal Educational Opportunity, Neal Devins

Faculty Publications

No abstract provided.

Academic Freedom And The First Amendment In The Supreme Court Of The United States: An Unhurried Historical Review, William W. Van Alstyne

Faculty Publications

No abstract provided.

The Proposed Twenty-Seventh Amendment: A Brief, Supportive Comment, William W. Van Alstyne

Faculty Publications

No abstract provided.