Law Commons^™

Dred Scott, John San(D)Ford, And The Case For Collusion, David T. Hardy

David T. Hardy

Dred Scott v. John F. A. Sandford was one of the most critical cases in Supreme Court history, “an astonisher,” as Lincoln phrased it. In the “Opinion of the Court,” which was not actually the opinion of the Court (parts of it mustered only three votes), Chief Justice Taney stretched to insulate slavery in every way manageable. The ruling became instead an application of the “law of unintended consequences.” It led to the rise of Abraham Lincoln (who devoted much of his “House Undivided” speech to it), the destruction of Stephen Douglas’ presidential campaign (since it held his core position …

The Thirteenth Amendment Won't Help Free Willy., Sheri Flannery

The Scholar: St. Mary's Law Review on Race and Social Justice

Orcas are not afforded any relief under the Thirteenth Amendment. Animal rights advocates, namely People for the Ethical Treatment of Animals (PETA), alleged animals have the right to be free from slavery and involuntary servitude as guaranteed by the Thirteenth Amendment. Although the Thirteenth Amendment has been extended beyond African slavery, its protections have never been granted to anything other than human beings. The United States Supreme Court’s examination and interpretation of the Thirteenth Amendment concluded that animals are not afforded such protections under this amendment. The Court reasoned that the Thirteenth Amendment only applied to humans and not animals. …

Submission To The Australian Parliamentary Inquiry Into Slavery, Slavery-Like Conditions And People Trafficking, Anne T. Gallagher Ao

Anne T Gallagher

Coming To Terms With Dred Scott: A Response To Daniel A. Farber, Paul Finkelman

Pepperdine Law Review

When thinking about Dred Scott, the issue is not how do we “rehabilitate” the opinion. The goal of scholarship here is to understand the opinion, place it in the context of its own time, and explain its enduring significance. After that, we may praise or damn it, and rehabilitate it or condemn it. No one today likes the Dred Scott opinion or the result. But, this article argues that Professor Daniel A. Farber is so incensed by the opinion that he vastly overstates its historical significance including incorrectly blaming Chief Justice Taney for causing the Civil War. This article rejects …

A Fatal Loss Of Balance: Dred Scott Revisited , Daniel A. Farber

Pepperdine Law Review

This essay focuses on three aspects of the Dred Scott opinion: its effort to ensure that blacks could never be citizens, let alone equal ones; its deployment of a "limited government" argument for a narrow interpretation of Congress's enumerated power over the territories; and its path-breaking defense of property rights against government regulation. These constitutional tropes of racism, narrowing of federal power, and protection of property were to remain dominant for another seventy-five years. Apart from the failings of the opinion itself, Dred Scott also represents an extraordinary case of presidential tampering with the judicial process and a breakdown in …

Livingstone And The Law: Africa’S Greatest Explorer And The Abolition Of The Slave Trade, Jay Milbrandt

Jay Milbrandt

Few historical events have had such tragic, widespread, and lingering consequences as the exportation of slaves from Africa. While the abolition of western Africa’s transatlantic slave trade is well documented, the events and legal framework that led to the abolition of the slave trade in East Africa remain practically untold. There, an unlikely hero championed abolition: Missionary and explorer Dr. David Livingstone. His method: an ambitious publicity stunt to dramatically change international law.

This article will illustrate how explorer David Livingstone’s advocacy profoundly affected the legal landscape to restrict the slave trade in East Africa, and eventually dealt the deathblow …

Would Jesus Kill Hitler? Bonhoeffer, Church, And State, Kenneth K. Ching

Kenneth K Ching

“Would Jesus kill Hitler?” is a symbolic question about the relationship between church and state. Jesus did not have occasion to answer. But Dietrich Bonhoeffer did. Bonhoeffer was a pastor, theologian, and philosopher who tried to “live the life of Jesus” while conspiring to assassinate Hitler.

This will be the first law journal article to take Bonhoeffer as its primary subject. The article summarizes a long tradition of Christian political theory, the natural law/two kingdoms (“NL2K”) theory, running through St. Augustine, William of Ockham, Martin Luther, John Calvin and many others. Some argue that Bonhoeffer rejected NL2K thought. This article’s …

Slaves In The Family: Testamentary Freedom And Interracial Deviance, Kevin Noble Maillard

College of Law - Faculty Scholarship

This Article addresses the deviance of interracial sexuality acknowledged in testamentary documents. The language of wills calls into question the authority of probate and family law by forcing issues of deviance into the public realm. Will dramas, settled in or out of court, publicly unearth insecurities about family. Many objections to the stated intent of the testator generate from social prejudices toward certain kinds of interpersonal relationships: nonmarital, homosexual, and/or interracial. When pitted against an issue of a moral or social transgression, testamentary intent often fails. In order for these attacks on testamentary validity to succeed, they must be situated …

Would Jesus Kill Hitler? Bonhoeffer, Church, And State, Kenneth K. Ching

Kenneth K Ching

“Would Jesus kill Hitler?” is a symbolic question about the relationship between church and state. Jesus did not have occasion to answer. But Dietrich Bonhoeffer did. Bonhoeffer was a pastor, theologian, and philosopher who tried to “live the life of Jesus” while conspiring to assassinate Hitler.

This will be the first law journal article to take Bonhoeffer as its primary subject. The article summarizes a long tradition of Christian political theory, the natural law/two kingdoms (“NL2K”) theory, running through St. Augustine, William of Ockham, Martin Luther, John Calvin and many others. Some argue that Bonhoeffer rejected NL2K thought. This article’s …

Lessons About Reform From “A Very Dangerous Woman”, Sherry Penney, James Livingston

Sherry Penney

We discuss reform in antebellum America through the life of Martha Coffin Wright, an activist in the abolition and early women’s rights movements. Consideration of her motivations for reform; the obstacles faced by these movements; their methods, successes, and failures, may offer guidelines for reformers of today.

Dancing On The Borders Of Article 4. Human Trafficking And The European Court Of Human Rights In The Rantsev Case., Vladislava Stoyanova

Vladislava Stoyanova

This article points to four worrisome aspects of the Court’s reasoning in Rantsev v. Cyprus and Russia. First, the Court takes on board the concept of ‘human trafficking’ without offering any meaningful legal analysis as to the elements of the human trafficking definition. Second, the adoption of the human trafficking framework implicates the ECtHR in anti-immigration and anti-prostitution agenda. The heart of this article is the argument that the human trafficking framework should be discarded and the Court should focus and develop the prohibitions on slavery, servitude and forced labor. To advance this argument I explain the relation between, on …

Redeeming And Living With Evil, Mark A. Graber

Mark Graber

Jack Balkin’s Constitutional Redemption and Sandy Levinson’s Constitutional Faith understand the problem of constitutional evil quite differently than Dred Scott and the Problem of Constitutional Evil. Balkin and Levinson regard constitutional redemption and faith as rooted in the possibility that Americans will eventually defeat evil. Constitutional Evil takes the far more pessimistic view that evil will never be defeated. Constitutional faith and redemption in our permanently fallen state is rooted in the possibility that Americans will find ways of living with each other peaceably knowing that the price of union is the continual obligation to make what the abolitionist William …

Race And Constitutional Law Casebooks: Recognizing The Proslavery Constitution, Juan F. Perea

Michigan Law Review

Federalist No. 54 shows that part of Madison's public defense of the Constitution included the defense of some of its proslavery provisions. Madison and his reading public were well aware that aspects of the Constitution protected slavery. These aspects of the Constitution were publicly debated in the press and in state ratification conventions. Just as the Constitution's protections for slavery were debated at the time of its framing and ratification, the relationship between slavery and the Constitution remains a subject of debate. Historians continue to debate the centrality of slavery to the Constitution. The majority position among historians today appears …

Lessons From Lincoln: A Comment On Levinson, Steven D. Smith

Pepperdine Law Review

No abstract provided.

Compromise And Constitutionalism, Sanford Levinson

Pepperdine Law Review

Professor Levinson explores compromises (1) that went into the making of the United States Constitution, and (2) that have occurred in the Supreme Court's constitutional interpretation. He explores these compromises in light of Israeli philosopher Avishai Margalit's distinction between bad compromises and rotten compromises. "Rotten compromises" are indefensible except, perhaps, in the most exceptional of conditions. A "rotten political compromise" is one that agrees "to establish or maintain an inhuman regime, a regime of cruelty and humiliation, that is, a regime that does not treat humans as humans." Under this standard, Levinson identifies as rotten compromises the Constitution's protection of …

The Cost Of Compromise And The Covenant With Death, Paul Finkelman

Pepperdine Law Review

This article is a rebuttal to the writings of those advocating the view that America was formed through compromise and that compromise in modern constitutional law is, therefore, necessary and beneficial. A recount of the “compromises” at the Constitutional Conventional that eventually led to the approval and protection of slavery begins the analysis establishing the danger of Americans compromising over constitutional protections. The article continues on, discussing the Compromise of 1850 and its drafters whom others have considered “passionately devoted to the Union”, like John Calhoun, who would later assert that the Constitution was expendable. The Compromise of 1850 did …

Submission On Exposure Draft New Offences Criminal Code (Forced Labour, Servitude, Forced Marriage, Deceptive Recruiting), Fiona M. David Ms, Anne T. Gallagher Dr

Fiona David

Submission made in response to proposed amendments to Australian Criminal Code to include, amongst other things, offences of forced labour, servitude, forced marriage, deceptive recruitment.

An Essay On Slavery's Hidden Legacy: Social Hysteria And Structural Condonation Of Incest, Zanita E. Fenton

Articles

No abstract provided.

Execution In Virginia, 1859: The Trials Of Green And Copeland, Steven Lubet

Faculty Working Papers

This essay tells the story of Shields Green and John Copeland, two black men who joined John Brown's raid on Harper's Ferry. Along with Brown and several others, Green and Copeland were taken prisoner in the aftermath of the failed insurrection, and they were brought to trial in nearby Charlestown on charges of murder and treason. Unlike Brown, who was treated respectfully by his captors, Green and Copeland were handled roughly. Copeland in particular was subjected to a harsh interrogation that was criticized even by pro-slavery Democrats in the North. The black prisoners did, however, have the benefit of a …

Martin Welker: Ohio's Unsung Hero, Aaron Boothby

The 39th Congress Project

No abstract provided.

Defining The Badges And Incidents Of Slavery, Jennifer Mason Mcaward

Journal Articles

Most agree that Section Two of the Thirteenth Amendment empowers Congress to legislate regarding the “badges and incidents of slavery.” Few, however, have explored in depth the precise meaning of this concept. The goal of this Article is to provide a historical and conceptual framework for interpreting and identifying the badges and incidents of slavery. It examines the original public meaning of the terms “badge of slavery” and “incident of slavery” as well as how the “badges and incidents” concept has been incorporated into and used in Thirteenth Amendment jurisprudence. It considers several analytical variables from historical, jurisprudential, and policy …

When Federal And State Systems Converge: Foreign National Human Trafficking Victims Within Juvenile And Family Courts, Bridgette A. Carr

Articles

This article highlights the concerns facing foreign national children who are both victims of human trafficking and under the jurisdiction of juvenile and family courts. Human trafficking is modern day slavery in which individuals, including children, are compelled into service and exploited. Foreign national human trafficking victims in juvenile and family court systems must navigate both the state system and a complex federal immigration system. This article explains the federal benefits available to these children and identifies the best practice approaches for juvenile and family court systems to increase identification of and support for foreign national child trafficking victims.jfcj_1073

Redeeming And Living With Evil, Mark A. Graber

Faculty Scholarship

Jack Balkin’s Constitutional Redemption and Sandy Levinson’s Constitutional Faith understand the problem of constitutional evil quite differently than Dred Scott and the Problem of Constitutional Evil. Balkin and Levinson regard constitutional redemption and faith as rooted in the possibility that Americans will eventually defeat evil. Constitutional Evil takes the far more pessimistic view that evil will never be defeated. Constitutional faith and redemption in our permanently fallen state is rooted in the possibility that Americans will find ways of living with each other peaceably knowing that the price of union is the continual obligation to make what the abolitionist …

Baptiste V. De Volunbrun 5 H. & J. 86 (Md 1820): The Events Surrounding An Early Nineteenth-Century Freedom Petition Before The Maryland Court Of Appeals, Kurt Ellerbe

Legal History Publications

BAPTISTE V. DE VOLUNBRUN 5 H. & J. 86 (Md. 1820): In Jean Baptiste’s 1820 freedom petition we have not only a slavery case typical of the region and period, but also a compelling and informative narrative from the beginning of the end of North America’s nearly two hundred and fifty year era of slavery. This epic has its roots in the some of the earliest African arrivals to the new world and was significantly influenced by the major trends in philosophy that immediately preceded its commencement, as well as a concurrent and burgeoning American abolitionist movement. It features questionable …

Victoria's Little Secret, Joe Lawless

MICCSR Case Studies

This mini-case outlines a series of articles that ran in Bloomberg outlining the use of child slave labor in the fair trade cotton fields of Burkina Faso that had been used exclusively in Victoria’s Secret products. Giving students and opportunity to develop strategies and tactics that respond to a real-world public relations issue, this case also lets students explore the CSR issues inherent in a firm’s supply chain. Although trying to do the “right thing” Victoria’s Secret got caught up in the certification dilemma that many firms face.

The Constitution Of Cádiz In Florida, M C. Mirow

Faculty Publications

The article explores the vibrant constitutional community that existed in St. Augustine and the province of East Florida in the final decade of Spanish control of the area. Based on relatively unexplored primary sources, it reveals a great deal of unknown information about the importance of the Constitution in Florida immediately before the territory was transferred to the United States. The article provides full description of the Constitution's promulgation in 1812 and a second promulgation of the Constitution in 1820 (something unknown in the general literature). It also addresses the construction of the St. Augustine monument to the Constitution erected …

Under Color Of Law: Siliadin V. France And The Dynamics Of Enslavement In Historical Perspective, Rebecca J. Scott

Book Chapters

When is it appropriate to apply the term ‘slavery’—a concept that appears to rest on a property right—to patterns of exploitation in contemporary society, when no state extends formal recognition to the possibility of the ownership of property in a human being? Historians, who generally position themselves as enemies of anachronism, may be particularly resistant to the use of an ancient term to describe a twenty-first century reality. And jurists have often been understandably reluctant to employ a word whose historical meaning was so closely tied to a specific property relationship that has long since been abolished in Europe and …

The Thirteenth Amendment And Pro-Equality Speech, William M. Carter Jr.

Articles

The Thirteenth Amendment’s Framers envisioned the Amendment as providing federal authority to eliminate the “badges and incidents of slavery.” The freemen and their descendants are the most likely to be burdened with the effects of stigma, stereotypes, and structural discrimination arising from the slave system. Because African Americans are therefore the most obvious beneficiaries of the Amendment’s promise to eliminate the legacy of slavery, it is often mistakenly assumed that federal power to eradicate the badges and incidents of slavery only permits remedies aimed at redressing the subordination of African Americans. While African Americans were the primary victims of slavery …