Law Commons^™

Three Milestones In The History Of Privacy In The United States, Vernon Valentine Palmer

Vernon Palmer

Over the course of more than 120 years the right of privacy has somehow acquired, absorbed and incorporated various tangential interests such as the right to control use of one’s name, one’s image, one’s writings, one’s life story, and even the right to exploit one’s own publicity value. Obviously those who seek to capitalize upon the publicity value of their name or talent are not in fact seeking privacy in the usual sense of the word, and yet American tort law protects the publicity right either in the name of privacy or describes it as a related offshoot. Somewhat more …

Whether Foreigner Or Alien: A New Look At The Original Language Of The Alien Tort Statute, M. Anderson Berry

M. Anderson Berry

Until now, the word that puts the ‘A’ in ATS has been completely overlooked. No court or commentator has delved in to the 1789 meaning of “alien,” or to the drafters' understanding of and possible intentions behind that word.

In the Supreme Court’s only opinion regarding the Alien Tort Statute, Sosa v. Alvarez-Machain, the Court unanimously agreed that although the first House of Representatives modified the Senate’s draft of what eventually became the Judiciary Act of 1789, it made hardly any changes to the provisions on aliens, including what became the ATS. The Court did not point out any of …

Executing Foster V. Neilson: Enforcing Treaties Against The States, David Sloss

David Sloss

In Medellin v. Texas, the Supreme Court held that Article 94 of the United Nations Charter is non-self-executing. In so holding, the Court applied the “intent-based” doctrine of self-execution. Conventional wisdom traces that doctrine to an 1829 opinion by Chief Justice Marshall in Foster v. Neilson. The conventional wisdom is wrong. Marshall applied the “two-step” approach to self-execution, not the modern intent-based doctrine. The two-step approach distinguishes clearly between questions of international and domestic law. International law governs the content and scope of the United States’ treaty obligations. Domestic law determines which government officers are responsible for domestic treaty implementation. …

The Thirteenth Amendment As A Model For Revolution, Sandra L. Rierson

Sandra L Rierson

To date, the United States has experienced only a handful of successful revolutionary movements. The first was the American Revolution itself. Although the original colonies’ war of independence and the resulting creation of a democratic republic was assuredly a revolution, it was incomplete in at least one major respect: it failed to resolve the fundamental conflict between the aspiration of freedom and the reality of slavery. Moreover, the bargains made and compromises struck at the time of the Revolution and as embodied within the Constitution neither encouraged nor enabled a course of gradual abolitionism, as the Founders purportedly hoped. Instead, …

Outfoxed: Pierson V. Post And The Natural Law, Josh Blackman

Josh Blackman

Think back to first year property class. You are a bright-eyed 1L, and one of the first cases you read deals with hunting foxes on the beaches of Long Island, New York. The fact pattern seems obscure enough, but Pierson v. Post is the seminal case used to teach generations of law students about the acquisition of property. The interest in Pierson has recently been reinvigorated thanks to the uncovering of the original record of this case. Last year the Law and History Review dedicated an entire issue to this famous foxhunt. The holding in Pierson v. Post has been …

Protecting Pocahontas's World: The Mattaponi Tribe's Struggle Against Virginia's King William Reservoir Project, Allison M. Dussias

Allison M Dussias

This article examines the efforts of the Mattaponi Tribe of Virginia to combat an environmentally destructive reservoir project that threatened sacred and archaeological sites and implicated tribal treaty rights, including fishing rights. The Tribe opposed the project through both the federal and state administrative approval process and litigation. The dispute over the reservoir highlights the difficulties that tribes have faced historically, and continue to face today, as they try to protect their rights to land, water, and subsistence resources.

Voluntary Client Testimony As A Privilege Waiver: Is Ohio's Law Caught In A Time Warp?, David B. Alden, Matthew P. Silversten

David B. Alden

Ohio’s attorney-client privilege statute, Ohio Rev. Code § 2317.02(A), has been interpreted to provide for a broad waiver of the attorney-client privilege whenever the client testifies voluntarily, including when the client’s testimony does not disclose the substance of the otherwise privileged communications. Finding a privilege waiver under these circumstances is virtually unique to Ohio. This article (1) traces the origins of this rule back to Ohio’s first code of civil procedure, which was enacted in 1853, (2) identifies the long-forgotten reasons that prompted its adoption; (3) analyzes decisions that have applied it from the mid-nineteenth century through today; (4) assesses …

The Image Of The Attorney: The Character Of Attorney Randolph Mason In Three Books By Melville Davisson Post, Patricia J. Brown

Patricia J Brown

Summary In 1896 a young attorney practicing in West Virginia, Melville Davisson Post, wrote a book entitled The Strange Schemes of Randolph Mason. His stated mission in this book was to invent a new type of story to compete with the currently popular genre of the detective story. His stories would show how a criminal, even if detected, could escape punishment by using loopholes and schemes available in the law. The criminal, not always able to find these loopholes himself, would be guided by a legal misanthrope, an attorney named Randolph Mason. Post wrote two books using this motif and …

Religious Rules: The Judeo-Christian Nature Of The Aba Model Rules And What It Means For The Legal Profession, Sarah Montana Hart

Sarah Montana Hart

This article argues that the American Bar Association Model Rules of Professional Conduct are not only biased in favor of Judeo-Christian biblical values, but actually are religious rules based in the Bible. The religious nature of the Model Rules affects lawyers in several different ways. There must be awareness of and a conscious choice about the nature and effects that these rules have on law students, bar applicants, and practicing lawyers.

Russia & Legal Harmonization: An Historical Inquiry Into Ip Reform As Global Convergence And Resistance, Boris N. Mamlyuk

Boris Mamlyuk

This Article examines several waves of intellectual property (IP) regulation reform in Russia, starting with a specific examination into early Soviet attempts to regulate intellectual property. Historical analysis is useful to illustrate areas of theoretical convergence, divergence and tension between state ideology, positive law, and “law in action.” The relevance of these tensions for post-Soviet legal reform may appear tenuous. However, insofar as IP enforcement has been one of the largest hurdles for Russia’s prolonged accession to the WTO, these historical precedents may help to explain the apparent theoretical or political disconnect between the WTO and Russia. If Russian policymakers …

Making Sense Of State Action, Lauren E. Tribble, John Dorsett Niles, Jennifer N. Wimsatt

Lauren E. Tribble

Perhaps no question of constitutional law is more fundamental than whether the Constitution applies. The Bill of Rights, Fourteenth Amendment, and Fifteenth Amendment protect individuals’ rights from invasion by the state, but they do not protect against private action. Separating “state action” from “private action” thus poses a critical constitutional question, and it is one with which the U.S. Supreme Court has grappled more than seventy times since 1883. Unfortunately, the Court’s state-action rulings provide something less than a model of clarity. Many rulings seem inconsistent, and issues of first impression frequently have created new lines of precedent that speak …

Is It Greek Or Déjà Vu All Over Again?: Neoliberalism, And Winners And Losers Of International Debt Crises, Tayyab Mahmud

Tayyab Mahmud

The global financial meltdown and the Great Recession of 2007-09 have brought into sharp relief the uneven distribution of gain and pain in economic crises. The 2009-10 debt crisis of Greece has resulted in a windfall for financial institutions at the expense of tax-payers, a rollback of welfare systems, and impoverishment of the working classes. This result is in tune with a pattern evidenced by the ubiquitous international debt crises of the last three decades, including the Latin American crisis of the 1980s, and the Asian crisis of 1990s. The recurrent international debt crises of the last three decades and …

Kate Chase, The "Sphere Of Women's Work," And Her Influence Upon Her Father's Dissent In Bradwell V. Illinois, Richard Aynes

Richard L. Aynes

Kate Chase was said to be the most beautiful and the most intelligent woman of her age. Her father, Salmon P. Chase, is remembered today as Lincoln’s secretary of the treasury and as a chief judge of the U. S. Supreme Court. In his own time, Chase was considered one of the nation’s political giants; Abraham Lincoln described him as “one and a half times bigger than any other man” he had ever known. Carl Schurz’s summary still echoes today: “More than anyone else he looked the great man. Tall, broad-shouldered, and proudly erect, . . . he was a …

Ending The Korematsu Era: A Modern Approach, Craig Green

Roger Craig Green

This Article seeks to transform how readers think of Korematsu v. United States, thereby offering a more accurate view of the past and stronger barriers against presidential abuse. Korematsu is conventionally listed among the worst cases in American law, but its wrongness is understood far too narrowly. If Korematsu were just a case about racist internments, it would be a truly unique blot in Supreme Court history: powerfully mistaken but almost completely irrelevant to modern legal disputes.

Despite Korematsu’s extraordinary facts, the case stands in a thematic cluster of cases from World War II that I will call the “Korematsu …

The Rise Of The Corporation, The Birth Of Public Relations, And The Foundations Of Modern Political Economy, Donald J. Smythe

Donald J. Smythe

The rise of the modern corporation was an integral part the Second Industrial Revolution. This important economic and social transformation would not have occurred if business firms had been unwilling to make the large investments necessary to implement the new technologies that drove the industrial growth and development, and business firms would have been reluctant to make the investments without the shield of limited liability and the opportunity to spread their risks across diversified portfolios of corporate stocks. Nonetheless, the rise of the modern corporation created problems. The most successful corporations grew to unprecedented proportions, and the public’s concerns about …

Self-Conscious Dicta: The Origins Of Roe V. Wade's Trimester Framework, Randy Beck

Randy Beck

One of the controversies arising from Roe v. Wade (1973) has concerned whether the conclusions undergirding the opinion's “trimester framework” should be considered part of the holding of the case, or instead classified as dicta. Different Supreme Court opinions have spoken to this question in different ways. This article reviews materials from the files of Justices who participated in Roe, seeking insight as to what the Court thought about the issue at the time.

The article concludes that Justices in the Roe majority understood the opinion’s trimester framework to consist largely of dicta, unnecessary to a ruling on the constitutionality …

Originalism As Popular Constitutionalism?: It Depends, Lee J. Strang

Lee J Strang

In this Article, I accomplish two goals: first, I describe the rise of popular constitutionalism as a movement in the legal academy along with its basic tenets; and second, I demonstrate that, given the diversity of originalist scholarship, originalism’s relationship to popular constitutionalism depends on the version of originalism one adopts. In the heart of Originalism as Popular Constitutionalism?, I describe five axes upon which originalism pivots toward or away from popular constitutionalism. My claim is that the nuances of contemporary originalist scholarship—characterized by these five axes—make it impossible to definitively describe the relationship between originalism and popular constitutionalism.

The Good, The Law, And The Municipal Ideal - An Integrative Developmental View Of The Case Of The Speluncean Explorers And The Crisis Of Meaning In Western Jurisprudence, Sean S. Yang

Sean S Yang

For centuries, law had been understood as something sacred, transcendent, a set of righteous directives emanating from a divine authority. Less than three hundred years ago, something strange happened. A handful of humans began to think a new type of thought: they conceived the law as a self-contained system understandable on its own terms, its merit determined only by its consistency with "reason," the correctness and supremacy of which was self-evident. Less than one hundred years ago, something even stranger occurred: another handful of humans directed their attention to thought itself and began creating knowledge about knowledge, writing language about …

Rape On The Washington Southern: The Tragic Case Of Hines V. Garrett, Michael I. Krauss

Michael I Krauss

Virginia's most important Proximate Causation case turns out also to be a revealing case study of government regulation, of women's rights and of race relations in the Old Dominion. After considerable original research, this article presents the "rest of the story." This article will become, we think, an important contribution both to Tort theory, to American legal history and to the history of Washington, DC and of Virginia.

Dostoevsky V. The Judicial Reforms Of 1864: How And Why One Of 19th Century Russia’S Greatest Writers Mercilessly Criticized The Nation’S Most Successful Reform, Brian Sc Conlon

Brian SC Conlon

The legal reforms of 1864 marked a shift in Russian legal culture from an amorphous, corrupt, pre-modern system of procedure, structure and customary law to an independent, modern and westernized system as liberal as any nation of Europe or North America. These reforms were nearly universally lauded by legal and cultural critics, both at the time they were introduced and in historical accounts. Despite the apparent necessity and success of the new courts, one of the leading figures in 19th Century Russian literature (and indeed the history of world literature), Fyodor Mikhailovich Dostoevsky, continually criticized the new system in both …

Are Arbitrators Above The Law? The "Manifest Disregard Of The Law" Standard, Michael Leroy

Michael H LeRoy

Arbitration is supposed to be final and binding. But federal and state laws, and judicial doctrines, allow courts to vacate arbitrator awards. This study contemplates the role of courts when they review awards that “manifestly disregard the law”— a term that means the arbitrator knew the law but chose to ignore it. Given the norm of arbitral finality, should courts vacate these rulings?

Hall Street Associates v. Mattel, Inc., 552 U.S. 576 (2008), failed to answer this question. The parties asked a court to review their award for errors of law. This standard is not in the Federal Arbitration Act …

The Lavender Letter: Applying The Law Of Adultery To Same-Sex Couples And Same-Sex Conduct, Peter Nicolas

Peter Nicolas

In this manuscript, I examine the question whether the law of adultery applies to same-sex extramarital conduct, which has divided courts nationwide. While the case law to date has been sparse—since the issue has only arisen in the context of opposite-sex marriages in which one spouse has an extramarital same-sex relationship—with the growth in the number of states recognizing same-sex marriage, the question is certain to recur with increased frequency.

In the manuscript, I examine the question in four different contexts: criminal adultery prosecutions, fault-based divorce actions, civil tort actions for interference with the marital relationship, and murder cases raising …

Sex V. Race, Again, Tracy A. Thomas

Tracy A. Thomas

In this book, feminists speak out on race and gender in the 2008 presidential campaign. Who should be first? With Barack Obama and Hillary Clinton as frontrunners, the 2008 Democratic primary campaign was a watershed moment in U.S. history. Offering the choice of an African American man or a white woman as the next Democratic candidate for president, the primary marked an unprecedented moment—but one that painfully echoed previous struggles for progressive change that pitted race and gender against each other. Who Should Be First? collects key feminist voices that challenge the instances of racism and sexism during the presidential …

In The Name Of Watergate -- Returning Ferpa To Its Original Design, Meg Penrose

Meg Penrose

The attached article, entitled "In the Name of Watergate: Returning FERPA to its Original Design" details the Watergate effect on federal privacy legislation, particularly the Family Educational Rights and Privacy Act (FERPA). Senator James L. Buckley, a one-term Senator from New York, served as the architect for what remains the most important education privacy law in existence. However, Senator Buckley recently discussed the reasons that this law should be "clarified" and returned to its original design. I wholeheartedly agree. In the digital era, we must zealously protect privacy with effective legislation that guards both the collection and release of personal …

Book Review: Supreme Power By Jeff Shesol. New York: W.W. Norton Press, 2009., Craig Jackson

Craig L. Jackson

Abstract

Jeff Shesol’s latest book, SUPREME POWER, is a detailed account of the Roosevelt Administration’s efforts to forge fundamental change in government policy during the Depression, and the obstacles to that change coming from the Supreme Court. Many readers have noticed similarities between the Roosevelt story as portrayed by Shesol and the current administration leading many to consider whether the experiences of the 1930s can be instructive for the current political/economic climate. Underlying policy, whatever the era, is law and a concurrent inquiry to the policy lessons is whether or not the Roberts Court is likely to be as critical …

Law As Referent, Craig G. Bateman

C. G. Bateman

In this article I suggest that “the Law,” (hereinafter the LAW) can be most functionally understood as a conglomeration of referent ideals which emanate from the minds of law creators, and are the source of what we regularly understand as laws. I separate from the concept of the LAW the usual suspects of constitutions, codes, acts, and charters, etc. I separate these from their inceptional ideals and suggest we ascribe a label to these familiar kinds of categories such as “lower order laws,” being careful to confine our discussions of them with the exclusive use of a small “l” (law), …

The Invading Waters: Climate Change Dispossession, State Extinction, And International Law, Jared D. Hestetune

Jared D Hestetune

The level of the sea is inevitably rising. Even the conservative estimates of the IPCC portray a dire future for low-lying island nations such as the Republic of Maldives. The future of an inundated state bodes ill for Maldives's continued participation in international relations. This essay analyzes the possibility of the persistence of a state after its territory has been submerged and destroyed, and it comes to the unfortunate conclusion that a submerged state will de facto become extinct in international law. Thus, entire nationalities will disappear, which likely consequence is strong motivation to protect the human right of national …

Are Muslims The New Catholics? Europe's Headscarf Laws In Comparative Historical Perspective, Robert Kahn

Robert Kahn

ABSTRACT: Many European opponents of the headscarf view themselves as engaged in a “struggle against totalitarianism.” This article explores an alternative framing: What if Muslims—rather than Nazis or Communists in training—are the more like nineteenth century Catholics, who were seen as a religious threat to European (and U.S.) liberalism? To explore this idea, this article looks at the headscarf debate through the lens of the German Kulturkampf (1871-1887) and nineteenth century U.S. laws that banned public school teachers from wearing clerical garb. It reaches two tentative conclusions. First, many of the claims made against European Muslims—especially about the “backward” nature …

Strategic Pragmatism Or Radical Idealism?: The Same-Sex Marriage And Civil Rights Movements Juxtaposed, Kathryn L. Marshall

Kathryn L Marshall

Within the debate over the most effective strategy for achieving social change, there remains a significant divide between those who argue in favor of pushing for immediate and full equality and those who favor a more incremental approach. Indeed, this debate is looming large over the current struggle to achieve same-sex marriage rights nationwide. In this Article, I suggest that the unique political and social landscape within which the same-sex marriage movement is unfolding has important implications for the way in which the struggle can most effectively proceed. To illuminate the importance of this individualized approach, I compare the same-sex …

The United States Are But One Country: A Short History Of Grammar And Liberty, Charles R. Gardner

Charles Gardner

This legal essay traces the conversion of “the United States” from a plural to a singular noun in United States Supreme Court decisions, in presidential proclamations and inaugural addresses, in diplomatic correspondence and in public discourse. It did not happen with a bang at the end of the Civil War, but with a whimper at the beginning of the twentieth century.

Today, at the beginning of the twenty-first, the singularity of humanity, for which that conflagration was allegedly fought, still eludes us. It is that latter singularity that inspires and organizes this essay.

Not until the digital age was it …