Law Commons^™

Pa. Gay Marriage With An Exemption, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …

The Federal Government’S History In Public Education: Massive Reform Efforts For Political And Corporate Enhancement, Brett A. Geier

Brett A Geier

The role of the federal government in public education was purposefully absent in the formation of the United States Constitution. The Tenth Amendment delegated the power of educating the citizenry to each individual state. Therefore, each state in the nation has its own distinctive clause governing public education. The federal government's role was periphery at best. In 1965, President Johnson sought to mitigate poverty with an infusion of federal dollars for the nation's neediest students. As more funds were allocated by the federal government, the more restrictions and requirements were placed on schools. This accountability paradigm opened the door for …

Gideon V. Wainwright A Half Century Later, Yale Kamisar

Reviews

When he was nearing the end of his distinguished career, one of my former law professors observed that a dramatic story of a specific case "has the same advantages that a play or a novel has over a general discussion of ethics or political theory." Ms. Houppert illustrates this point in her very first chapter.

From Commonwealth To Constitutional Limitations: Thomas Cooley's Michigan, 1805-1886, Robert Allan Olender

SJD Dissertations

In response to what he perceived as the challenges associated with republican governance in the later portions of the nineteenth century, Michigan’s Thomas McIntyre Cooley penned his treatise concerning constitutional limitations on legislative power. In it, Cooley offered a vision of government where courts would check government power and would raise constitutional barriers against the impact of improper influences on legislators. As a student of history, Cooley grounded his beliefs and doctrines in experience, not philosophical reflections. Believing that “the fruits of speculative genius in government are of little value,” Cooley submitted that governing structures and law “must be the …

Parallel Justice: Creating Causes Of Action For Mandatory Mediation, Marie A. Failinger

University of Michigan Journal of Law Reform

The American common law system should adopt court-connected mandatory mediation as a parallel system of justice for some cases that are currently not justiciable, such as wrongs caused by constitutionally protected behavior. As evidence that such a system is practical, this Article describes systemic and ethical parallels between court-connected mediation and the rise of the equity courts in medieval England, demonstrating that there are no insurmountable practical objections to the creation of “mediation-only” causes of action. The Article then explores the constitutional concerns surrounding the idea of “mandatory mediation-only” causes of action, using constitutional hate speech and invasion of privacy …

Solitary Confinement, Public Safety, And Recdivism, Shira E. Gordon

University of Michigan Journal of Law Reform

As of 2005, about 80,000 prisoners were housed in solitary confinement in jails and in state and federal prisons in the United States. Prisoners in solitary confinement are generally housed in a cell for twenty-two to twenty-four hours a day with little human contact or interaction. The number of prisoners held in solitary confinement increased 40 percent between 1995 and 2000, in comparison to the growth in the total prison population of 28 percent. Concurrently, the duration of time that prisoners spend in solitary confinement also increased: nationally, most prisoners in solitary confinement spend more than five years there. The …

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 …

The Vietnam Draft Cases And The Pro-Religion Equality Project, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Experimenting With Religious Liberty: The Quasi-Constitutional Status Of Religious Exemptions, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Legal Writing: A History From The Colonial Era To The End Of The Civil War, David R. Cleveland

Law Faculty Publications

No abstract provided.

Corporate Taxation And Corporate Social Responsibility, Reuven S. Avi-Yonah

Articles

This Article will address the question of whether publicly traded U.S. corporations owe a duty to their shareholders to minimize their corporate tax burden through any legal means, or if instead, strategic behaviors like aggressive tax-motivated transactions are inconsistent with corporate social responsibility (“CSR”). I believe the latter holds true, regardless of one’s view of the corporation. Under the “artificial entity” view, such behavior undermines the constitutive relationship between the corporation and the state. Under the “real view,” such behavior runs contrary to the normal obligation of citizens to comply with the law (even absent effective enforcement). And under the …

Peer Pressure: Why America Should Succumb To The Territorial Tax Temptation, Paul Petrick

Global Business Law Review

This Note argues that the United States should adopt a territorial tax system. Currently, the United States is one of a small group of nations that employs a worldwide system of taxation. Under a worldwide system, income is taxed both in the country where it is earned and in the country where the taxpayer resides. Alternatively, under a territorial system, income is taxed only in the country where it is earned. By adopting a territorial system, the United States would jettison the duplicative taxation inherent in the worldwide system. Additionally, the presence of anti-inversion rules, controlled foreign corporation rules, and …

The Trouble With Categories: What Theory Can Teach Us About The Doctrine-Skills Divide, Linda H. Edwards

Scholarly Works

We might not need another article decrying the doctrine/skills dichotomy. That conversation seems increasingly old and tired. But like it or not, in conversations about the urgent need to reform legal education, the dichotomy’s entailments confront us at every turn. Is there something more to be said? Perhaps surprisingly, yes. We teach our students to examine language carefully, to question received categories, and to understand legal questions in light of their history and theory. Yet when we talk about the doctrine/skills divide, we seem to forget our own instruction.

This article does not exactly take sides in the typical skills …

Feeling Another's Pain: Sympathy And Psychology Saga Style, William I. Miller

Articles

Progress is hardly a given in the humanities or the suspect sciences. In many ways we are not quite as astute as our grandparents, and they not as much as theirs, and so forth in an infinite entropic regress. Would I trade Montaigne or Stendhal’s psychological acumen for even the best work that comes from social psychology departments? In this short essay I want to show just how good some medieval people, medieval Icelanders to be exact, were at understanding the mental and emotional states of others, and if of others then presumably, though not necessarily, also of themselves. And …

Segregation In United States Healthcare: From Reconstruction To Deluxe Jim Crow, Kerri L. Hunkele

Honors Theses and Capstones

During the time period between Reconstruction and the Deluxe Jim Crow era, African Americans were legally oppressed, which hindered their ability to live fully and equally in society with whites. This was especially true in terms of healthcare. Segregation laws were implemented to separate blacks from the rest of society in everyday life; the worst of these laws affected the ability of African Americans to gain access to medical care that was equal to whites. This inequality prevented blacks from being accepted into society and from living quality lives that stem from adequate healthcare. Although the federal and state governments …

Anti-Radicalism And History From Below, Rowan Cahill

Faculty of Law, Humanities and the Arts - Papers (Archive)

In 1969, American historian Jesse Lemisch was in his early thirties. His politics and approach to history were shaped by the Cold War, as well as his involvements in the civil rights and anti-war movements and other struggles against the power structures of the day. That year, his paper ‘Present-Mindedness Revisited: Anti-Radicalism as a Goal of American Historical Writing Since World War 11’ was the centrepiece of a controversial session of the American Historical Association in Washington, D.C.

Passionate, strident, scholarly and forensic, the Lemisch paper detailed the ways leading American historians variously claimed political neutrality even as they were …

Vinyl: A History Of The Analogue Record, Andrew Whelan

Faculty of Law, Humanities and the Arts - Papers (Archive)

This article presents a review of the book "Vinyl: A History of the Analogue Record" by Richard Osborne.

'Once Upon A Time There Was A Wonderful Country': Representations Of History In Rwanda, Deborah Mayersen

Faculty of Law, Humanities and the Arts - Papers (Archive)

In April 1994, genocide erupted in Rwanda with an unprecedented ferocity. Over the course of 100 days, more than 800,000 Tutsi and moderate Hutu were killed. A major contributor to the violence was an intense propaganda campaign that dehumanised and demonised the Tutsi minority prior to and during the genocide. This propaganda presented the Tutsi as foreign and feudal oppressors, who would again oppress the Hutu majority as they had in the past if they were not targeted for extermination. Such dubious representations of history have deep roots in Rwanda, which can be traced to the early colonial period. This …

History Foundation To Year 12 (In Review Of The Australian Curriculum - Supplementary Material), Gregory Melleuish

Faculty of Law, Humanities and the Arts - Papers (Archive)

The Australian history curriculum is compulsory for Years Foundation through to Year 10. It states that its rationale is as follows: ‘The curriculum generally takes a world history approach within which the history of Australia is taught.’ The curriculum is also defined, and limited, by its three cross-curriculum priorities:

* Aboriginal and Torres Strait Islander histories and cultures

* Asia and Australia’s engagement with Asia

* Sustainability.

The Future Of History, Rowan Cahill

Faculty of Law, Humanities and the Arts - Papers (Archive)

war in Iraq (2003) in the bloody search-and-destroy mission against non-existent Weapons of Mass Destruction (WMD) recently confessed to being a little embarrassed.

On the September 2014 eve of the release of The Menzies Era, his book of hero worship about conservative Australian PM Sir Robert Menzies, Howard told an interviewer that, when it became public knowledge, the US intelligence reports he based his decision on regarding WMD were faulty, well, he was embarrassed. Not ashamed, mind you, not distraught … which might be expected, since he has a huge amount of civilian blood on his hands … no, just …

Economics Hijackers Could Do With A History Lesson, Simon Ville

Faculty of Law, Humanities and the Arts - Papers (Archive)

Behind every economic policy initiative lies a narrative justifying that course of action: immigration increases unemployment; public debt is unsustainable; manufacturing is interminably declining; city growth is out of control.

We have many “narrators” driving these discussions of economics – the media, political parties, public sector bodies, business and indeed universities – each with their own set of interests and values.

Unfortunately, among these claimants, the voice of economic history has remained largely silent or selectively galvanised to prosecute a triumphalist or doomsayer interpretation: “the clever country’s many successes in policy and business”; or “the lucky country’s history has been …

'Fictional' History Opens New Front In War On Workers, Rowan Cahill

Faculty of Law, Humanities and the Arts - Papers (Archive)

At the Prime Minister’s Literary Awards on 8 December 2014, the joint winner of the Australian History Award was Hal G. P. Colebatch for his book Australia’s Secret War: How Unionists Sabotaged our Troops in World War II. The judging panel was chaired by right-wing think tanker Gerard Henderson of the Sydney Institute, a diehard fan of ‘Pig Iron’ Bob Menzies, and included Peter Coleman, variously author, journalist, former Liberal Party politician, and veteran Cold War warrior.

Colebatch’s book was published in October 2013 by the conservative Australian cultural journal Quadrant, founded during the Cold War as part of the …

History In Law, Mythmaking, And Constitutional Legitimacy - Symposium: History And Meaning Of The Constitution, Patrick J. Charles

Cleveland State Law Review

What truly separates an historical inquiry, however, from an originalist inquiry is the degree by which myth consumes fact. Certainly, regardless of whether one is performing an historical or originalist inquiry, the methodological process takes part in generating myth. In terms of where the respective inquiries are to be placed on the spectrum of constitutional mythmaking, however, the standard historical inquiry is far less likely to engage in the process than its originalist counterpart. This is mainly because originalism is not so much about reasoning from known historical truths, but instead about recreating a hypothetical expected legal application of how …

Constitutional Skepticism: A Recovery And Preliminary Evaluation, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The aim of this article is to recover and reevaluate the American tradition of constitutional skepticism. Part I consists of a brief history of skepticism running from before the founding to the modern period. My aim here is not to provide anything like a complete description of the historical actors, texts, and events that I discuss. Instead, I link together familiar episodes and arguments that stretch across our history so as to demonstrate that they are part of a common narrative that has been crucial to our self-identity. Part II disentangles the various strands of skeptical argument. I argue that …

The Unrelenting Libertarian Challenge To Public Accommodations Law, Samuel R. Bagenstos

Articles

There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in “place[s] of public accommodation,” was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Article begins by discussing the controversy in the Reconstruction and Civil Rights Eras over the penetration of antidiscrimination principles into the realm of private businesses’ choice of customers. Although the …

The Life And Times Of Targeted Killing, Markus Gunneflo

Markus Gunneflo

Against the background of the ongoing shift in the perception of the legality and legitimacy of extraterritorial lethal force in counterterrorism, my doctoral thesis analyses the emergence of so-called “targeted killing” in the history of Israel and the US, as well as in international law. It finds that the relationship between targeted killing and law, particularly international law, is not a straightforward case of more or less determinate and legally binding norms being applied to state measures adopted in situations of insecurity (in this case, those of the second Intifada and 9/11) but rather one of a much longer and …