Law Commons^™

On Three Arguments Against Metaphysical Libertarianism, Ken Levy

Journal Articles

No abstract provided.

Nonobvious Design, Mark Bartholomew

Journal Articles

To earn patent protection, a claimed product design must be “nonobvious.” Yet while nonobviousness has been described as “the heart” and “cornerstone” of the utility patent system, in the design patent context, the term has become next to useless. Instead of actually policing nonobviousness in design, modern courts grant patent rights to any work that is not an exact replica of another. The problem, judges maintain, is that comparing one visual design against another demands the use of aesthetic judgment and aesthetic judgment is an instinctual, subjective process incapable of legal definition. Recent neuroscientific studies of aesthetic judgment dispel some …

Title Ix In Historical Context: 50 Years Of Progress And Political Gamesmanship, Helen A. Drew, Marissa Egloff, Josie Middione

Journal Articles

On the fiftieth anniversary of Title IX, it is important to recognize both its historic nature and how it has evolved in political and social context. This Article will begin by examining the history of women’s athletics pre–Title IX, focusing on what activities women participated in, why, and how societal norms shaped their ability to do so. Next, the Article will examine the status of women’s athletic opportunities as Title IX was first proposed, with an emphasis upon its nexus to the women’s rights movement and the Equal Rights Amendment initiative. The Article will then provide historical background for key …

Let's Not Do Responsibility Skepticism, Ken M. Levy

Journal Articles

I argue for three conclusions. First, responsibility skeptics are committed to the position that the criminal justice system should adopt a universal nonresponsibility excuse. Second, a universal nonresponsibility excuse would diminish some of our most deeply held values, further dehumanize criminal, exacerbate mass incarcerations, and cause an even greater number of innocent people (nonwrongdoers) to be punished. Third, while Saul Smilansky's 'illusionist' response to responsibility skeptics - that even if responsibility skepticism is correct, society should maintain a responsibility-realist/retributivist criminal justice system - is generally compelling, it would not work if a majority of society were to convert, theoretically and …

Introduction To The Bremer-Kovacs Collection: Historic Documents Related To The Administrative Procedure Act Of 1946 (Heinonline 2021), Emily S. Bremer, Kathryn E. Kovacs

Journal Articles

Few statutes have a legislative history as rich, varied, and sprawling as the Administrative Procedure Act of 1946 (APA). In recent years, courts and scholars have shown increased interest in understanding this history. This is no mean feat. The APA’s history spans nearly two decades, and it includes numerous failed bills, a presidential veto, and a full panoply of congressional documents. In addition, much of the most crucial documentation underlying the APA was produced outside of Congress—by the executive branch—and even outside of government—by the American Bar Association. Identifying and locating all the relevant documents is difficult. Understanding each piece …

Moonlight: A Photo Essay, David A. Westbrook

Journal Articles

No abstract provided.

The Josiah Philips Attainder And The Institutional Structure Of The American Revolution, Matthew J. Steilen

Journal Articles

This Article is a historical study of the Case of Josiah Philips. Philips led a gang of militant loyalists and escaped slaves in the Great Dismal Swamp of southeastern Virginia during the American Revolution. He was attainted of treason in 1778 by an act of the Virginia General Assembly, tried for robbery before a jury, convicted and executed. For many years, the Philips case was thought to be an early example of judicial review, based on a claim by St. George Tucker that judges had refused to enforce the act of attainder. Modern research has cast serious doubt on Tucker’s …

What Is Buddhist Law?, Rebecca Redwood French

Journal Articles

No abstract provided.

Lords And Order: Credible Rulers And State Failure, Matthew Dimick

Journal Articles

Why do states fail? Why do failed states persist without collapsing into complete anarchy? This paper argues that given insurgency or weakened state capacity, rulers may find it best, paradoxically, to reduce the amount of political good it provides as a means of sustaining some amount of their rule. Moreover, although the consequence is political fragmentation and increasing levels of violence, this is not inconsistent with the continuation of attenuated central governance. To evaluate this argument, I select the case of King Stephen’s reign in medieval England. Although far removed historically from contemporary cases of state failure, the reign of …

The Clerks Of The Four Horsemen, Barry Cushman

Journal Articles

The names of Holmes clerks such as Tommy Corcoran and Francis Biddle, of Brandeis clerks such as Dean Acheson and Henry Friendly, and of Stone clerks such as Harold Leventhal and Herbert Wechsler ring down the pages of history. But how much do we really know about Carlyle Baer, Tench Marye, or Milton Musser? This article follows the interesting and often surprising lives and careers of the men who clerked for the Four Horsemen - Justices Van Devanter, McReynolds, Sutherland, and Butler. These biographical sketches confound easy stereotypes, and prove the adage that law, like politics, can make for strange …

Our Illegal Founders, Victor C. Romero

Journal Articles

This Essay briefly mines America’s history to argue that the law setting forth where our national borders are and how strictly we patrol them has always been subject to the vagaries of politics, economics, and perception. Illegal (im)migration has long been part of our migration history, engaged in not just by Latin American border crossers, but also by prominent colonists, giving the lie to the claim that upholding border laws should always be sacrosanct. In many school districts today, the usual summary of American history from our childhood civics classes no longer bypasses the uncomfortable truths of conquest and westward …

Punishing Without Free Will, Luis E. Chiesa

Journal Articles

Most observers agree that free will is central to our practices of blaming and punishment. Yet the conventional conception of free will is under sustained attack by the so-called determinists. Determinists claim that all of the events that take place in the universe – including human acts – are the product of causally determined forces over which we have no control. If human conduct is really determined by factors that we cannot control, how can our acts be the product of our own unfettered free will and what would that mean for the criminal law? The overwhelming majority of legal …

Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject To Criminal Punishment And To Preventive Detention, Ken M. Levy

Journal Articles

How should we judge psychopaths, both morally and in the criminal justice system? This Article will argue that psychopaths are generally not morally responsible for their bad acts simply because they cannot understand, and therefore be guided by, moral reasons.

Scholars and lawyers who endorse the same conclusion automatically tend to infer from this premise that psychopaths should not be held criminally punishable for their criminal acts. These scholars and lawyers are making this assumption (that just criminal punishment requires moral responsibility) on the basis of one of two deeper assumptions: that either criminal punishment directly requires moral responsibility or …

Killing, Letting Die, And The Case For Mildly Punishing Bad Samaritanism, Ken M. Levy

Journal Articles

For over a century now, American scholars (among others) have been debating the merits of “bad-samaritan” laws – laws punishing people for failing to attempt “easy rescues.” Unfortunately, the opponents of bad-samaritan laws have mostly prevailed. In the United States, the “no-duty-to-rescue” rule dominates. Only four states even have bad-samaritan laws, and these laws impose only the most minimal punishment – either sub-$500 fines or short-term imprisonment.

This Article argues that this situation needs to be remedied. Every state should criminalize bad samaritanism. For, first, criminalization is required by the supreme value that we place on protecting human life, a …

Christian Realism And Immigration Reform, Victor C. Romero

Journal Articles

Drawing upon President Barack Obama’s admiration of Reinhold Niebuhr’s work, this Essay outlines a Protestant, Christian realist approach toward immigration policy, with specific focus on the role of the executive in providing providential leadership. Embracing realism in its political, moral, and theological dimensions, Christian realism offers a pragmatic, yet optimistic, alternative to secular liberalism’s faith in reason by striving instead to adhere to God’s guidance on matters, taking into account the fundamentally flawed nature of man. The specific policy prescriptions described here mirror the twin virtues of Christian realism by promoting the hope in pursuit of the peaceable kingdom and …

Dorothy Kenyon And The Making Of Modern Legal Feminism, Samantha Barbas

Journal Articles

No abstract provided.

The Structure Of Classical Public Law, Barry Cushman

Journal Articles

Duncan Kennedy's The Rise and Fall of Classical Legal Thought circulated in manuscript for three decades before it was formally published in 2006. This essay reviews the book's treatment of Classical public law, focusing on its two principal contributions to the historiography of the subject: the concept of legal consciousness, and the structural analysis of constitutional doctrine.

The Nobel Effect: Nobel Peace Prize Laureates As International Norm Entrepreneurs, Roger P. Alford

Journal Articles

For the first time in scholarly literature, this article traces the history of modern international law from the perspective of the constructivist theory of international relations. Constructivism is one of the leadings schools of thought in international relations today. This theory posits that state preferences emerge from social construction and that state interests are evolving rather than fixed. Constructivism further argues that international norms have a life cycle composed of three stages: norm emergence, norm acceptance (or norm cascades), and norm internalization. As such, constructivism treats international law as a dynamic process in which norm entrepreneurs interact with state actors …

Sacrifice, The Common Good, And The Catholic Lawyer, John J. Coughlin

Journal Articles

For some two decades since I entered law school, the connection between the philosophy of the human person and law has been of comparative interest to me. My interest was stimulated in no small part by the late Pope John Paul II, who urged that canon law reflect the essential elements of what it means to be human. Comparative legal study of the canon law of the Catholic Church with the law of the liberal state has convinced me of the importance of the understanding of the human person that underpins the law. Canon law and the Catholic intellectual tradition …

Some Varieties And Vicissitudes Of Lochnerism, Barry Cushman

Journal Articles

This article is a contribution to the Lochner Centennial Symposium at Boston University School of Law. Until recently, a consensus appeared to be emerging among constitutional historians concerning how best to interpret Lochner-era decisions involving Fifth and Fourteenth Amendment challenges to state and federal economic regulation. After decades during which the Court's jurisprudence had been characterized as the product of a reactionary judiciary's commitments to Social Darwinism and laissez-faire economics, more recent scholars had come to see the Court's police powers decisions as animated by what Professor Howard Gillman has called the principle of neutrality. On this view, the Court's …

The Case Of The Missing Discipline: Finding Buddhist Legal Studies, Rebecca Redwood French

Journal Articles

No abstract provided.

Assimilation, Toleration, And The State's Interest In The Development Of Religious Doctrine, Richard Garnett

Journal Articles

Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable, because when civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents hazards of its own, and its premises - if …

Final Justice, Richard W. Garnett

Journal Articles

Richard Garnett reviews Stuart Banner, The Death Penalty: An American History (2002) & Franklin E. Zimring, The Contradictions of American Capital Punishment (2003).

Legal Separation: The Relationship Between Law School And The Central University In The Late Nineteenth Century, Mark Bartholomew

Journal Articles

Using Yale Law School as an example, this Article describes the interaction between university-affiliated law schools and the larger university during a crucial period in the development of legal education: the last third of the nineteenth century. At the same time, the Article contrasts Yale with other law schools of the day to show what made Yale unique and how Yale’s nineteenth-century idiosyncrasies would come to shape legal education at other schools in the twentieth century. Part I examines the university administration’s attitude toward the law school and how it typified law school-university relations in the late nineteenth century. Part …

Development Of Catholic Moral Doctrine: Probing The Subtext, M. Cathleen Kaveny

Journal Articles

A discussion on the contribution of Judge John T. Noonan’s works on moral doctrine to the study of Catholic moral theology. Professor Kaveny argues that Noonan’s writings have aided the development of Catholic moral doctrine by examining its rich living history and tradition. She notes that Noonan views the subject as a social historian who is interested in how Catholics have interpreted moral theology over time, tracing continuities and changes in their positions, and as a lawyer who is interested in learning how they have tried to find a balance between human dignity and the common good. Professor Kaveny addresses …

Framed: Utilitarianism And Punishment Of The Innocent, Guyora Binder, Nicholas J. Smith

Journal Articles

This paper is a defense of utilitarian penology, against the familiar retributivist charge that it promotes framing the innocent, and other charges similarly depending on the notion that utilitarianism encourages officials to deceive the public. Our defense proceeds from the striking fact that utilitarianism's critics do not cite textual evidence that the originators of utilitarian penology in fact endorsed punishing the innocent or deceiving the public. Instead, critics claim that these unsavory policies follow logically from the premises of utilitarianism. Our argument, in brief, is that the charge of framing the innocent rests on a misunderstanding of utilitarian penology. We …

More's Skill, Thomas L. Shaffer

Journal Articles

Robert Bolt chose a phrase from a sixteenth century poet named Robert Whittinton for the title of his modem play about Thomas More: "[A] man of an angel's wit and singular learning; I know not his fellow. For where is the man of that gentleness, lowliness, and affability? And as time requireth a man of marvellous mirth and pastimes; and sometimes of as sad gravity: a man for all seasons."

Bolt's title suggests that he took a gamble on the possibility that More would have modern, universal appeal. I have been interested in how that gamble worked out. If you …

States' Rights In The Twenty-First Century, Jay Tidmarsh, Mark Racicot, Robert Miller, Michael Greve

Journal Articles

My name is Jim Schueller and I'm the Symposium Editor of the Law School Journal of Legislation and every two years we organize a symposium to discuss relevant issue of public policy and the topic this year is States Rights in the 21st Century.

Well, way back in the 18th century when the framers drafted the Constitution they created a unique system of governing where power was shared between the states which already existed and the newly created federal government. The framers in their day debated the proper allocation of power between these two governments and today, two hundred eleven …

Should A Christian Lawyer Sign Up For Simon's Practice Of Justice?, Thomas L. Shaffer

Journal Articles

In The Practice of Justice, Professor William H. Simon describes justice in a way that differs from the way the Bible describes justice. The big difference is not so much what justice requires (although there is some difference there) as (i) how people decide what justice requires, and (ii) who the "people" are who decide what justice requires. Some of us Christians claim to understand "justice" as the Bible understands it. It may make a difference that, for biblical people, "justice" is righteousness, and righteousness, the Torah teaches, and Rabbi Hillel teaches, and Rabbi Jesus teaches, is practice following upon …

No Lever And No Place To Stand (A Response To Christopher Shannon), John Henry Schlegel

Journal Articles

No abstract provided.