Legal History Commons^™

The Rise Of The American Adversary System: America Before England, Randolph N. Jonakait

Articles & Chapters

The standard versions of the adversary system's development show that as more lawyers participated in English criminal trials in eighteenth century England criminal procedure became increasingly adversary. Those versions largely ignore American history which shows that the colonies and early America did not simply adopt the English adversary system but moved to an adversary system in advance of England. This article discusses data and developments indicating America's early adoption of an adversary system, including the American guarantee of a right of counsel, the routine presence of counsel in criminal cases in the colonies and the new United States, the American …

The Framers' Search Power: The Misunderstood Statutory History Of Suspicion & Probable Cause, Fabio Arcila, Jr.

Scholarly Works

Originalist analyses of the Framers’ views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated for regulatory purposes. What attention has been paid concludes that the Framers were divided about how accessible search remedies should be. This Article explains why this conventional account is mostly wrong and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law. In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the patterns of preceding British civil search statutes. The …

An Imperfect Vocabulary Of Religious Liberty, Marci A. Hamilton

Articles

No abstract provided.

A Convenient Constitution? Extraterritoriality After Boumediene, Christina Duffy Ponsa-Kraus

Faculty Scholarship

Questions concerning the extraterritorial applicability of the Constitution have come to the fore during the "war on terror." In Boumediene v. Bush, the Supreme Court held that noncitizens detained in Guantánamo have the right to challenge their detention in federal court. To reach this conclusion, the Court used the "impracticable and anomalous" test, also known as the 'functional" approach because of its reliance on pragmatic or consequentialist considerations. The test first appeared in a concurring opinion over fifty years ago; in Boumediene, it garnered the votes of a majority.

This Article argues that the Boumediene Court was right …

Originalism's Expiration Date, Adam M. Samaha

Cardozo Law Review

The Constitution of the United States declares itself supreme law, but even the amended document is ancient. By 2008, the predicted age of a randomly selected word in this text reached 178 years. The judiciary, for its part, might not interpret the text until decades after ratification. For Article V amendments, the average lag between ratification and Supreme Court interpretation has been about 40 years. The question is how these features of our supreme law might influence the choice of interpretive method and, ultimately, constitutional decision-making. In particular, some scholars indicate that originalism may be a strong force in adjudication …

Daniel Defoe And The Written Constitution, Bernadette Meyler

Cornell Law Faculty Publications

Today, as constitutionalism spreads around the globe, it is embodied de rigueur in written documents. Even places that sustained polities for centuries without a written constitution have begun to succumb to the lure of writtenness. America, we think, spawned this worldwide force, inaugurating a radically new form of political organization when it adopted the U.S. Constitution as its foundational text. Yet the notion of the written constitution had, in fact, received an earlier imprimatur from the pen of Daniel Defoe, English novelist, political pamphleteer, and secret agent. Plying his trades in the early eighteenth century, Defoe, now known largely as …

Leaving The House: The Constitutional Status Of Resignation From The House Of Representatives, Josh Chafetz

Cornell Law Faculty Publications

Do members of the House of Representatives have a constitutional right to resign their seats? This Article uses that question as a window onto broader issues about the relationship between legislators and citizens and the respective roles of liberalism and republicanism in the American constitutional order. The Constitution explicitly provides for the resignation of senators, presidents, and vice presidents, but, curiously, it does not say anything about resigning from the House of Representatives. Should we allow the expressio unius interpretive canon to govern and conclude that the inclusion of some resignation provisions implies the impermissibility of resignation when there is …

Justice Kennedy's Short-Lived Libertarian Revolution: A Brief History Of Supreme Court Libertarian Ideology, Stephen O'Hanlon

Cardozo Public Law, Policy & Ethics Journal

This paper contends that Justice Anthony Kennedy did not initiate a libertarian jurisprudential revolution following Lawrence v. Texas. The article begins with an overview of constitutional fundamental rights jurisprudence and examines similarities with libertarian theory.

The paper then assesses the legal decisions of Justice Kennedy but concludes that Justice Kennedy is not a libertarian. This provides the basis for critiquing Professor Randy Barnett's assertion that Justice Kennedy was the instigator of a libertarian revolution in U.S. Supreme Court jurisprudence. The fact that Justice Kennedy is not a libertarian is apparent from his reasoning in the recent partial birth abortion …

An Originalism For Foreign Affairs, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

Legal scholarship on foreign affairs frequently focuses on the Constitution's text and original meaning, but generally does not fully engage debates about originalism as a method of modern constitutional interpretation. For its part, much of the scholarship defending originalism as a methodology has said little explicitly about foreign affairs. This short symposium contribution describes three contemporary normative arguments in favor of originalism - those advanced by Randy Barnett, Keith Whittington, and John McGinnis and Michael Rappaport - and then considers their application to foreign affairs. It concludes that these arguments are at best underdeveloped and at worst weak when it …

How The Separation Of Powers Doctrine Shaped The Executive, Louis J. Sirico Jr.

Working Paper Series

This Article examines the debates of the Founders over the separation of powers doctrine as it relates to the executive branch. After surveying the experience in the colonies and under the post-Revolutionary state constitutions, it analyzes the relevant issues at the Constitutional Convention. Rather than focusing on abstract discussions of political theory, the article examines specific decisions and controversies in which separation of powers was a concern. The Article offers a detailed recounting of those debates. At the Convention, separation of powers arose most prominently in the arguments over nine issues: choosing the Executive, permitting the Executive to stand for …

“Militant Judgement?: Judicial Ontology, Constitutional Poetics, And ‘The Long War’”, Penelope J. Pether

Working Paper Series

This Article, a contribution to the Cardozo Law Review symposium in honor of Alain Badiou’s Being and Event, uses Badiou’s theorizing of the event and of the militant in Being and Event as a basis for an exploration of problems of judicial ontology and constitutional hermeneutics raised in recent decisions by common law courts dealing with the legislative and executive confinement of “Islamic” asylum seekers, “enemy combatants” and “terrorism suspects,” and certain classes of criminal offenders in spaces beyond the doctrines, paradigms and institutions of the criminal law. The Article proposes an ontology and a poetics of judging equal to …

“We Are At War And You Should Not Bother The President”: The Suffrage Pickets And Freedom Of Speech During World War I, Catherine J. Lanctot

Working Paper Series

The story of Alice Paul’s National Woman’s Party and its 1917 picketing campaign onbehalf of woman suffrage is almost unknown in legal circles. Yet the suffrage pickets were among the earliest victims of the suppression of dissent that accompanied the entry of the United States into World War I. Nearly forty years before the modern civil rights movement brought the concept of nonviolent civil disobedience to the forefront of American political discourse, the NWP conducted a direct action campaign at the very doorstep of the President of the United States, and they did so during a time of war.

In …

The Monumental Ally: Chief Justice John Marshall And The Protection Of The United States Constitution, Mattea C. Carver

Mahurin Honors College Capstone Experience/Thesis Projects

The culmination of this particular research intends to analyze U.S. Supreme Court Chief Justice John Marshall's judicial opinions with historical perspectives. Special emphasis is placed upon Marshall's motives for promoting the interests of the national government over the interests of the individual states and their respective governments and the interests ofthe federal judiciary over its fellow branches. Overall, it can be successfully argued that Marshall's influence was not to promote the individual branch of the federal judiciary, but rather promote the necessity of a strong national government. The research utilizes primary and secondary sources including Marshall's judicial opinions, his personal …

An "Unintended Consequence": Dred Scott Reinterpreted, Sam Erman

Michigan Law Review

Austin Allen's monograph marks the 150th anniversary of the decision in Dred Scott v. Sandford with a revisionist interpretation of that oft-examined case. Many scholars have portrayed the case as a proslavery decision that fanned sectional fires. After all, the Court held that blacks were not U.S. citizens and that Congress was impotent to bar slavery in U.S. territories. Allen, by contrast, understands the case primarily as a judicial attempt to rationalize federal commerce and slavery jurisprudences. Part I argues that this ambitious reinterpretation enriches, but does not topple, existing Dred Scott historiography. In the case of the Court's citizenship …

From The Editors, Mark Tushnet, Carrie Menkel Meadow

Journal of Legal Education

No abstract provided.

Chinese And Western Worldviews: Implications For Law, Policy,, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

The Bible And American Law: A Response To Dean Herbert W. Titus, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Watergate And The Resignation Of Richard Nixon: Impact Of A Constitutional Crisis (Book Review), Robert J. Weiner Jr.

College of Law - Law Library Staff Scholarship

No abstract provided.

The Empirical Judiciary, A. Christopher Bryant

Faculty Articles and Other Publications

This essay reviews David L. Faigman’s Constitutional Fictions: A Unified Theory of Constitutional Facts (Oxford U.P. 2008). Constitutional Fictions is a highly original book that promises to (and should) have an enormous impact on both constitutional law scholarship and practice. The book focuses on the methods, or lack thereof, that the Court employs in receiving evidence and resolving disagreements about questions of fact in constitutional cases. In doing so, the book does the legal profession an invaluable service by identifying and articulating the many frequently unspoken questions that arise in the context of judicial consideration and resolution of legislative facts …

Implementing A New City Charter: Thoughts On My Tenure As Corporation Counsel In A Time Of Transition, O. Peter Sherwood

NYLS Law Review

No abstract provided.

Roth At Fifty: Reconsidering The Common Law Antecedents Of American Obscenity Doctrine, 41 J. Marshall L. Rev. 393 (2008), James R. Alexander

UIC Law Review

No abstract provided.

The Calling Forth Clause And The Domestic Commander In Chief, Stephen I. Vladeck

Cardozo Law Review

No abstract provided.

International Delegations And The Values Of Federalism, Neil S. Siegel

Faculty Scholarship

Among U.S. legal scholars who specialize in foreign relations law, there is a growing debate about the constitutional implications of international delegations. Almost all of this debate has focused on separation-of-powers issues (especially the non-delegation doctrine and the Appointments Clause), as well as on Article III concerns. A prominent exception is Edward Swaine's provocative argument that international delegations diffuse political power and thereby vindicate the values of federalism. Federalism, Swaine submits, superficially looks like a reason to dislike international delegations (and [it] plays that role in national discourse about international engagements), but [it] in fact provides a strong warrant in …

Dole’S Future: A Strategic Analysis, Neil S. Siegel

Faculty Scholarship

As the U.S. Supreme Court imposes federalism-based limits on congressional power under the Commerce Clause and Section Five of the Fourteenth Amendment, Congress may be tempted to turn to the conditional spending power in order to achieve goals that it may not accomplish directly. In this article, I address whether a danger exists, as some suggest, that such use of the Spending Clause would render the Court more likely to cut back on its scope, narrowing or overruling South Dakota v. Dole, 483 U.S. 203 (1987). Using doctrinal analysis and game theory, I conclude that Congress should proceed with …

Heller And Insurrectionism, Carl Bogus

Law Faculty Scholarship

No abstract provided.

“Equality, I Spoke Th At Word/As If A Wedding Vow”: Mental Disability Law And How We Treat Marginalized Persons, Michael J. Perlin, John Douard

NYLS Law Review

No abstract provided.

Sex Offender As Scapegoat: The Monstrous Other Within, John Douard

NYLS Law Review

No abstract provided.

Reflections On My Years As Corporation Counsel, Peter L. Zimroth

NYLS Law Review

No abstract provided.

The New York City Corporation Counsel: The Best Legal Job In America, Michael A. Cardozo

NYLS Law Review

No abstract provided.

Chi Iota Colony Of Alpha Epsilon Pi Fraternity V. City University Of New York, Clinton N. Daggan

NYLS Law Review

No abstract provided.