Law Commons^™

The Art Of Malice, Bruce A. Antkowiak

Bruce A Antkowiak

The Art of Malice seeks to synthesize history, poetry, psychology and the law of murder to expose a serious and fundamental error in the criminal justice system. This error occurs in the most serious kind of case (criminal homicide) and at the critical moment of that case when the jury looks to the judge to advise them on the law they must apply. At that moment, they are misled into believing that they may infer the wonderfully complex concept of malice from the mere fact that the killer used a deadly weapon to commit the crime. This instruction betrays the …

Explaining The Spread Of At-Will Employment As An Inter-Jurisdictional Race-To-The-Bottom Of Employment Standards, Richard A. Bales

Richard A. Bales

The at-will employment rule is often attributed to Horace Gay Wood, who described the rule in an 1877 treatise. Over the next forty years, the rule was judicially adopted in most American states. How and why the rule spread, however, has been the subject of considerable academic debate.

This essay argues that the underindustrialized states first adopting the at-will rule likely did so as a means of attracting capital. In any event, and more importantly, this essay argues that once the first underindustrialized states adopted the rule, other underindustrialized states would have been compelled to adopt the rule to remain …

The Intersection Of Gender And Early American Historic Preservation: A Case Study Of Ann Pamela Cunningham And Her Mount Vernon Preservation Effort, Jill Teehan

Georgetown Law Historic Preservation Papers Series

American historic preservationists universally credit Ann Pamela Cunningham, the woman who saved George Washington's Mount Vernon home, as the chief architect of the historic preservation movement in the United States. However, little scholarship has considered how Cunningham's social position as a woman significantly contributed to her ability to save Mount Vernon, and thus jumpstart a national movement to save historically significant places. Using Cunningham and the organization she formed, the Mount Vernon Ladies' Association of the Union (MVLA), widely regarded as the nation's first historic preservation society, this paper considers the intersection of gender and early historic preservation in the …

Beware Of Greens In Praise Of The Common Law, James L. Huffman

James L. Huffman

Beware of Greens in Praise of the Common Law

James L. Huffman

ABSTRACT

After several decades of general agreement among environmental law scholars and environmentalists that the common law is inadequate to meet the challenges of environmental protection, a few scholars have taken a second look at common law remedies in recent years. Simple pragmatism explains some of this newborn interest in the common law, while for others there has been at least some acceptance of the efficiency arguments made by free market environmentalists since the 1970s. But for the most part the fledgling environmentalist case for revival of common …

Adaptation, Evolution And Symbiosis In Water Law, Sandi Zellmer

Sandi Zellmer

: This article traces the evolution of the laws governing the use of water for consumption, waste disposal, public purposes and environmental protection. It provides a unique integration of water resources law and environmental law, two fields that are otherwise highly fragmented in the United States. Both the historic tensions and the emerging collaborations among federal, state, tribal and private interests in managing water resources are assessed in an effort to illuminate future pathways for conservation and the restoration of degraded waterways. The article begins with colonial America and proceeds through five significant eras in U.S. history: the Gilded Age …

Extralegal Crimes, Extralegal Punishments: Justice On The Antebellum Plantation, Gerald J. Pierson

Gerald J Pierson

Most plantation slaves in the American South prior to the Civil War never encountered the ordinary, legally established criminal justice system in their communities. Instead, an ad hoc justice system, unique to each plantation and controlled by the slaves’ master and enforced by the master, overseer, and driver, constituted the mechanism of control. Each plantation was, in effect, a common law jurisdiction within the larger “federal” system composed of the ordinary Southern state legal systems. This justice system, extralegal and profoundly authoritarian, possessed the accouterments of any criminal justice system: rule-making authority, the establishment and “publishing” of statutory crimes, gradation …

"Honor Thy Father And Mother": Children’S Obligations To Honor & Support Parents - A Comparative Analysis Of Jewish And American Secular Law, Samuel Asher Blaustein

Sam A Blaustein

This article will contrast and compare the duties of children to their parents under traditional Jewish and modern secular American law. The focus is on the adult child’s duty to support parents. Whereas the mandates proscribed by Jewish law increase with age, American law focuses on emancipation and personal autonomy. That said, recent American law encourages children to provide care to elderly parents. The history and reasoning behind both sources will be addressed.

Harmonizing Plural Societies: The Cases Of Lasallians, Families, Schools – And The Poor, Patrick Mckinley Brennan

Working Paper Series

The modern state characteristically assumes or asserts a monopoly over “group persons” and their right to exist; group persons are said to exist at the pleasure or concession of the state. According to Catholic social teaching, by contrast, these unities of order -- such as church and family, as well as corporations and schools and the like -- are, at least in potency, ontologically prior to the state. Such group persons both constitute conditions of the possibility of human flourishing and, correlatively, impose limitations on the “sovereign” state. Such group persons are not mere concessions of an unbounded state: They …

A Quandary In Law? A (Qualified) Catholic Denial, Patrick Mckinley Brennan

Working Paper Series

A contribution to the second law review symposium dedicated to Steven Smith’s Law’s Quandary (Harvard 2004), this paper asks whether the “quandary” in which Smith finds modern law and jurisprudence is not, at least in part, the consequence of misunderstanding the classical natural law jurisprudence. The paper advances an interpretation of natural law according to which the natural law is the human person’s “participation” in the eternal law itself, with literally cosmic consequences for how we understand the ends and measures of human lawmaking. Mounting an argument against Justice Scalia’s thesis that “God applies the natural law,” the paper goes …

The Suburb As A Legal Concept: The Problem Of Organization And The Fate Of Municipalities In American Law, Kenneth Stahl

Kenneth Stahl

This article argues that suburban municipalities obtained a privileged status vis-à-vis cities in American law – a reversal of the historical pattern – because the suburbs, as conceived by legislators and the judiciary, were more readily integrated as organs of the modern administrative state. In particular, where the city represented a mode of organization that emphasized autonomy from the sovereign and the rights of the collectivity as against those of the individual, the suburb was constructed as a conduit for the State to exert authority on and distribute goods to isolated single-family homeowners. This article traces the evolution of the …

The Rehnquist Court And The Pollution Control Cases: Anti-Environmental And Pro-Business?, Mark A. Latham

Mark A. Latham

In this Article I address whether the assertions made by a number of commentators criticizing the Rehnquist Court as a pro-business and anti-environmental Court are accurate. To answer this question, I specifically focus on the cases arising under the so-called “pollution control” statutes during the tenure of William H. Rehnquist as Chief Justice. The pollution control statutes collectively regulate a wide spectrum of businesses and industries, and an analysis of the cases arising under these statutes should, consequently, reflect the bias that is claimed to have existed in the Court’s environmental jurisprudence under the leadership of Chief Justice Rehnquist. Contrary …

Some Challenges For Legal Pragmatism: A Closer Look At Pragmatic Legal Reasoning, Andrew J. Morris

Andrew J Morris

Some Challenges For Legal Pragmatism: A Closer Look At Pragmatic Legal Reasoning

Although scholars have discussed legal pragmatism for several decades, the literature does not contain a systematic analysis of the characteristic elements of pragmatic decisionmaking. This article tries to add that analytical perspective. It attempts to make sense of the extensive literature by identifying specific characteristics of pragmatic reasoning, then conducting a methodical comparison of distinctively pragmatic reasoning to more principled reasoning. I identify principled reasoning with legal form: as reasoning that gives some normative force to formal legal reasons. The criteria on which I compare the two modes …

Of Marriage And Monarchy: Why John Locke Would Support Same-Sex Marriage, William B. Turner

William B Turner

Arguments about discrimination based on sexual orientation generally rest on interpretations of the equal protection clause of the Fourteenth Amendment or about rights to autonomy rooted in modern substantive due process doctrine. Such theories typically presuppose a government that remains neutral among competing moral claims. This Article, by contrast, develops an account of rights against sexual orientation discrimination—including recognition of same-sex marriage—that does not depend on a thin moral conception of the liberal state. Instead, I situate lesbian/gay rights within a Lockean political theory of consent. John Locke’s theory of government, which was highly influential for the Founders of the …

Speaking Of Inconvenient Truths -- A History Of The Public Trust Doctrine , James L. Huffman

James L. Huffman

In the nearly four decades since Professor Joe Sax published an article in the Michigan Law Review, there has been a flood of academic writing and court decisions on the public trust doctrine. The vast majority of these articles and judicial opinions give a brief synopsis of the doctrine’s Roman, English and early American roots. In a nutshell, the generally accepted history is that from Justinian’s Institutes through Magna Charta and Bracton, Hale and Blackstone reporting on English law and Chancellor Kent acknowledging the reception of English and Roman law in America, the public has deeply rooted rights in access …

From Interests-Based Balancing To Rights-Based Balancing: Two Models Of Balancing In The Early Days Of American Constitutional Balancing, Iddo Porat

Iddo Porat

Balancing tests are ubiquitous in current constitutional law. This Article reviews the development of constitutional balancing over the first five decades of the 20th century and identifies the formation of two types of balancing during these years: interests-based and rights-based balancing. Since these two types of balancing are still present within current constitutional law, this review may also help to better understand balancing today. The Article attempts to show how the early development of balancing in the early 20th century by legal Progressives such as Holmes, Pound and Cardozo, was related to their criticism on the jurisprudence of rights, and …

The De-Evolution Of American Legal Ethics, Jennifer Schultz Reed

Jennifer Schultz Reed

That since Legal Ethics became a mandatory course in all ABA accredited law schools in 1974, there has been little, if any, perceptible change in the ethics of the legal profession. The absence of significant discernable impact is due to several factors: the failure to define what the profession means and intends by the concept of legal ethics; the inability of law schools to find coherent and successful ways to teach this subject; and the fact that the public generally continues to regard lawyers with little respect and to equate the misdeeds of some with the conduct of most. In …

The De-Evolution Of American Legal Ethics, Jennifer Schultz Reed

Jennifer Schultz Reed

That since Legal Ethics became a mandatory course in all ABA accredited law schools in 1974, there has been little, if any, perceptible change in the ethics of the legal profession. The absence of significant discernable impact is due to several factors: the failure to define what the profession means and intends by the concept of legal ethics; the inability of law schools to find coherent and successful ways to teach this subject; and the fact that the public generally continues to regard lawyers with little respect and to equate the misdeeds of some with the conduct of most. In …

A Concise Guide To The Federalist Papers As A Source Of The Original Meaning Of The United States Constitution, Gregory E. Maggs

Gregory E. Maggs

Many lawyers, judges, law clerks, and legal scholars feel unprepared to make or evaluate claims about the original meaning of the Constitution based on the Federalist Papers. The typical law school curriculum acknowledges the importance of the Federalist Papers—usually by assigning Supreme Court cases which cite them—but does not treat the essays in depth. As a result, many law students and graduates still need accessible information about the creation, content, and distribution of the essays, manageable summaries of the theories under which the Federalist Papers might provide evidence of the original meaning, and instruction on possible grounds for impeaching claims …

The Antitrust Legacy Of Justice William O. Douglas And The Curse Of The Curse Of Bigness, C. Paul Rogers

C. Paul Rogers III

Justice William O. Douglas’s position as our leading antitrust hawk cannot be denied. He is also, of course, our longest sitting Supreme Court Justice. During his long tenure on the Court, he wrote more antitrust opinions than anyone in our history. Surprisingly, however, with all the scholarship on Douglas, including two full-length biographies, there exists no thorough or complete treatment of his lengthy and controversial antitrust record. This article seeks to fill that gap by critiquing Douglas’s antitrust opinions in the context of contemporary antitrust doctrine. It considers Douglas’s deep distrust of economic power, fueled in part by his legal …

Unlocking The Secrets Of Highly Successful Legal Writing Students, Anne Enquist

Anne M Enquist

Abstract Unlocking the Secrets of Highly Successful Legal Writing Students Anne M. Enquist Seattle University School of Law Why are some law students successful in their legal writing classes and others are not? To identify the secrets to success, I did a case study of six second-year law students as they wrote a motion brief and an appellate brief for their 2L legal writing course. Based on their 1L legal writing course, two of these students were predicted to be highly successful, two were predicted to be moderately successfully, and two were predicted to be only marginally successful. Through daily …

Black, White, Brown, Green, And Fordice: The Flavor Of Higher Education In Louisiana And Mississippi, Alfreda S. Diamond

ExpressO

"Black, White, Brown, Green, and Fordice: The Flavor of Higher Education in Louisiana and Mississippi" chronicles the higher education desegregation sagas in Louisiana and Mississippi. The Article specifically compares the histories of the higher education desegregation lawsuits in the two states and their subsequent experiences and progress under Settlement Agreements. The statistical populations of many universities in both states are still largely identifiable as “white” or “black,” and so the Article will pose questions not only respecting the implementation of United States v. Fordice in both states, but also respecting the value, desirability, or possibility of the “integrative ideal” converting …

Paying Eliza: Comity, Contracts, And Critical Race Theory, Or 19th Century Choice Of Law Doctrine And The Validation Of Antebellum Contracts For The Purchase And Sale Of Human Beings, Diane J. Klein

ExpressO

During the period before the Civil War, courts in non-slave-holding states were sometimes called upon to enforce contracts for the purchase and sale of human beings (or contracts whose consideration otherwise consisted of human beings), and sometimes did so, for reasons arguably having more to do with inter-state contract law than with the “peculiar institution” itself. What may be more surprising, and more difficult to understand, is that some “Union” courts went on doing so even after the Civil War ended, when substantive changes of law, together with well-established exceptions to general principles favoring out-of-state contract enforcement, made the contrary …

The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash

ExpressO

For the past several decades, the majority of courts and commentators have viewed the Ninth Amendment as a provision justifying judicial enforcement of unenumerated individual rights against state and federal abridgment. The most influential advocate of this libertarian reading of the Ninth has been Professor Randy Barnett who has argued in a number of articles and books that the Ninth was originally understood as guarding unenumerated natural rights. Recently uncovered historical evidence, however, suggests that those who framed and ratified the Ninth Amendment understood the Clause as a guardian of the retained right to local self-government. Recognizing the challenge this …

A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash

ExpressO

Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment’s actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. No matter how narrowly one construes the Fourteenth, the Ninth merely demands that such enumerated rights not be construed to deny or disparage other rights retained by the people. The standard …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

The American Tradition Of Racial Profiling, Jean Phan

ExpressO

The enemy has always been easily recognizable in American life: He has been the savage Native American known for scalping people; the black slave bent on ravaging white women; the Asian worker unfairly competing against the white man; the Mexican immigrant who does nothing but leech off the system; the Arab who dreams up terrorist plots, and carries them out. These enemies have always been visible in American society, and yet, they don’t exist in reality. They exist only in the minds of those too afraid to consider that these strange individuals who seem so different, could be just like …

At War With The Eclectics: Mapping Pragmatism In Contemporary Legal Analysis, Justin Desautels-Stein

ExpressO

This article has two primary goals. The first is descriptive, and seeks to respond to what appears to be an increasing degree of confusion over the word “pragmatism,” especially as it is used in a good deal of legal literature. This descriptive aim begins by separating out three general categories of pragmatism: (1) the so-called “everyday” pragmatism familiar to the American vernacular, (2) the classical philosophy of the early pragmatist authors like William James and John Dewey, and (3) pragmatism as understood in the context of law. The majority of the article is subsequently concerned with exploring this last category, …

Law In The Time Of Cholera: Disease, State Power, And Quarantine Past And Future, Felice J. Batlan

All Faculty Scholarship

No abstract provided.

Interpreting The Fourteenth Amendment: Two Don’Ts And Three Dos, Garrett Epps

Garrett Epps

A sophisticated reading of the legislative record of the framing of the Fourteenth Amendment can provide courts and scholars with some general interpretive principles to guide their application of the Amendment to current legal problems. The author argues that two common legal conceptions about the Amendment are in fact, misconceptions. The first is that the Amendment was chiefly concerned with the immediate situation of freed slaves in the former slave states. Instead, he argues, the legislative record suggests that the framers were broadly concerned with the rights not only of freed slaves but of foreign-born immigrants in the North and …

Law In The Time Of Cholera: Disease, State Power, And Quarantine Past And Future, Felice J. Batlan

Felice J Batlan