Legal History Commons^™

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and …

Getting Past The Imperial Presidency, Deborah Pearlstein

Articles

In an age in which the “imperial presidency” seems to have reached its apex, perhaps most alarmingly surrounding the use of military force, conventional wisdom remains fixed that constitutional and international law play a negligible role in constraining executive branch decision-making in this realm. Yet as this Article explains, the factual case that supports the conventional view, based largely on highly selected incidents of presidential behavior, is meaningless in any standard empirical sense. Indeed, the canonical listing of presidential decisions to use force without prior authorization feeds a compliance-centered focus on the study of legal constraint rooted in long-since abandoned …

Rethinking The Federal Indian Status Test: A Look At The Supreme Court's Classification Of The Freedmen Of The Five Civilized Tribe Of Oklahoma, Clint Summers

American Indian Law Journal

No abstract provided.

The Canon Wars, Anita S. Krishnakumar, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Canons are taking their turn down the academic runway in ways that no one would have foretold just a decade ago. Affection for canons of construction has taken center stage in recent Supreme Court cases and in constitutional theory. Harvard Dean John Manning and originalists Will Baude and Stephen Sachs have all suggested that principles of “ordinary interpretation” including canons should inform constitutional interpretation. Given this newfound enthusiasm for canons, and their convergence in both constitutional and statutory law, it is not surprising that we now have two competing book-length treatments of the canons—one by Justice Scalia and Bryan Garner, …

Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher W. Schmidt

Washington and Lee Law Review Online

In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial …

Originalist Theory And Precedent: A Public Meaning Approach, Lawrence B. Solum

Faculty Scholarship

This Article provides some introductory thoughts about the relationship between originalist constitutional theory and the proper role of precedent in the American judicial system. The development of these thoughts begins in Part I, which provides a brief introduction to originalism and its principle rival, which is sometimes called “living constitutionalism.” Part II describes the problem of precedent for originalism, emphasizing that the nature of the problem depends in part on our understanding of precedent. Part III offers some reflections on the question as to the constitutional status of the doctrine of horizontal stare decisis in the United States Supreme Court. …

The Uncertain Status Of The Manifest Disregard Standard One Decade After Hall Street, Stuart M. Boyarsky

Dickinson Law Review (2017-Present)

The Federal Arbitration Act (FAA) enables parties to obtain quick and final resolution to disputes without incurring the costs, delays, and occasional publicity of litigation. Indeed, section 10 of the FAA enumerates four specific grounds on which courts may vacate arbitral awards: corruption, fraud, impartiality, and misconduct or incompetence. Yet over the past 60 years, a debate has raged over the existence of an additional ground: the arbitrator’s manifest disregard of the law.

The Supreme Court first enounced this standard in dicta in its 1953 decision in Wilko v. Swan. Over next four decades, every federal circuit court slowly …

State Action And The Constitution's Middle Band, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.

It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there …

Is Natural Law A Public Good?, Eliot T. Tracz

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

The Lost & Found Game Series: Teaching Medieval Religious Law In Context, Owen Gottlieb, Ian Schreiber

Presentations and other scholarship

Lost & Found is a strategy card-to-mobile game series that teaches medieval religious legal systems with attention to period accuracy and cultural and historical context. The Lost & Found project seeks to expand the discourse around religious legal systems, to enrich public conversations in a variety of communities, and to promote greater understanding of the religious traditions that build the fabric of the United States. Comparative religious literacy can build bridges between and within communities and prepare learners to be responsible citizens in our pluralist democracy. The first game in the series is a strategy game called Lost & Found …

Whistleblowers—A Case Study In The Regulatory Cycle For Financial Services, Ronald H. Filler, Jerry W. Markham

Brooklyn Journal of Corporate, Financial & Commercial Law

The Securities and Exchange Commission and the Commodity Futures Trading Commission were directed by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) to create whistleblower protection programs that reward informants with massive bounty payments. At the time of its passage, the Dodd-Frank Act was a highly controversial statute that was passed on partisan lines. Its whistleblowing authority was one of its “most contentious provisions.” As the result of the 2016 elections, the Dodd-Frank Act has come under renewed attack in Congress and by the new Trump administration. The stage is being set for possible repeal of …

When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner

Texas A&M Law Review

In Unequal: How America’s Courts Undermine Discrimination Law (“Unequal”), law professors Sandra F. Sperino and Suja A. Thomas provide a point-by-point analysis of how the federal courts’ interpretations of federal anti-discrimination laws have undermined their efficacy to provide relief to workers whose employers have allegedly engaged in discrimination. The cases’ results are consistently pro-employer, even while the Supreme Court of the United States—a court not known for being particularly pro-plaintiff—has occasionally ruled in favor of plaintiff employees. The authors suggest some reasons for this apparent anti-plaintiff bias among the federal courts, although they do not settle on a particular reason …

Reclaiming A Great Judge's Legacy, Frank M. Coffin

Maine Law Review

In the legal profession a deep sigh of relief is heard over the land. After roughly two decades of incubation, the long-awaited biography of the great judge has arrived, Learned Hand: The Man and the Judge, by Stanford Law Professor Gerald Gunther. The book, in my opinion, is well worth the wait. Nearly 700 pages, plus a hundred more for footnotes, it nevertheless represents a heroic condensation of some 100,000 different items on file at Harvard Law School, including no fewer than 50,000 items of correspondence, 1,000 district court opinions, and nearly 3,000 circuit court opinions. The inventory alone requires …

Why The Burger Court Mattered, David A. Strauss

Michigan Law Review

A review of Michael J. Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right.

It’S Not The Thought That Counts: Pennsylvania Quietly Made Rape And Idsi Strict Liability Crimes, Jordan E. Yatsko

Dickinson Law Review (2017-Present)

In 1982, the Pennsylvania Superior Court decided Commonwealth v. Williams, wherein the court held that a defendant charged with rape or involuntary deviate sexual intercourse (IDSI) cannot use a mistake of fact defense as to the victim’s consent. The court relied on the reasoning that a defendant’s mens rea is not an element of either rape or IDSI. Section 302 of the Pennsylvania Crimes Code, however, requires that where the legislature has failed to expressly require a finding of mens rea in the text of the statute, at least recklessness must be imputed to each material element.

This Comment …

The Limits Of Pro Se Assistance In Immigration Proceedings: Discussion Of Nwirp V. Sessions, Ryan D. Brunsink, Christina L. Powers

Dickinson Law Review (2017-Present)

This Article discusses issues regarding assistance of pro se litigants in the context of immigration law. In particular, Part II of this Article highlights programs such as the Legal Orientation Program (LOP) and Immigration Court Helpdesk (ICH) that attempt to alleviate some of the inherent difficulties non-citizen detainees face in immigration proceedings. Part III of this Article focuses on a 2008 Regulation by the Executive Office of Immigration Review (EOIR), which calls for discipline against attorneys that engage in a pattern or practice of failing to enter a Notice of Appearance when engaged in practice or preparation. Lastly, Part IV …

Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney

Faculty Publications

One of the major branches of the field of law and literature is often described as "law as literature." Scholars of law as literature examine the law using the tools of literary analysis. The scholarship in this subfield is dominated by the discussion of narrative texts: confessions, victim-impact statements, and, above all, the judicial opinion. This article will argue that we can use some of the same tools to help us understand non-narrative texts, such as law codes and statutes. Genres create expectations. We do not expect a law code to be literary. Indeed, we tend to dissociate the law …

The Canon Of Rational Basis Review, Katie R. Eyer

Notre Dame Law Review

The modern constitutional law canon fundamentally misdescribes rational basis review. Through a series of errors—of omission, simplification, and recharacterization—we have largely erased a robust history of the use of rational basis review by social movements to generate constitutional change. Instead, the story the canon tells is one of dismal prospects for challengers of government action—in which rational basis review is an empty, almost meaningless form of review.

This Article suggests that far from the weak and ineffectual mechanism that most contemporary accounts suggest, rational basis review has, in the modern era, served as one of the primary equal protection entry …

Echoes Of The Past: The 1975 Eec Referendum Forty Years On, Warren Swain

Cardozo Law Review

The article examines the 1975 referendum on Britain's continued membership in the European Economic Community (EEC), highlighting the political, economic, and social dynamics that shaped the campaign and its outcome. It draws parallels with the 2016 Brexit referendum, emphasizing the role of the political establishment, public opinion, and sovereignty concerns. The 1975 referendum resulted in a decisive vote to remain in the EEC, but the article suggests that the underlying issues, such as concerns over sovereignty and economic impact, persisted and ultimately contributed to the 2016 decision to leave the EU.

Judicial Appointments In The United States And Australia -- A Comparison, Murray Tobias Qc

The University of Notre Dame Australia Law Review

No abstract provided.

Community Dignity Takings: Dehumanization And Infantilization Of Communities Resulting From The War On Drugs, Jamila Jefferson-Jones

Law Faculty Research Publications

No abstract provided.

Surprising Originalism, Lawrence B. Solum

Faculty Scholarship

This article takes the reader on a guided tour of contemporary originalist constitutional theory. Most Americans believe that they already know everything they need to know about constitutional originalism. But in many cases, they are mistaken. Contemporary originalists do not believe that we should ask, "What would James Madison do?" Instead, the mainstream of contemporary originalism aims to recover the original public meaning of the constitutional text. Conservatives and libertarians are sure that originalism is a necessary corrective to the liberal excesses of the Warren Court. Progressives have an almost unshakeable belief that originalism is a right-wing ideology that seeks …

Text Over Intent And The Demise Of Legislative History, Thomas W. Merrill, Michael S. Paulsen, Saikrishna Prakash, Lawrence B. Solum, Sandra Segal Ikuta

Faculty Scholarship

The following is the transcript of a 2016 Federalist Society panel entitled: Text Over Intent and the Demise of Legislative History. The panel originally occurred on November 17, 2016 during the National Lawyers Convention in Washington, D.C. The participants were: Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School; Prof. Michael S. Paulsen, Distinguished University Chair and Professor, University of St. Thomas School of Law; Prof. Saikrishna Prakash, James Monroe Distinguished Professor of Law, University of Virginia School of Law; Prof. Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center. The moderator was …

Spousal Support In Quebec: Resisting The Spousal Support Advisory Guidelines, Jodi Lazare

Articles, Book Chapters, & Popular Press

Since 2005, the Spousal Support Advisory Guidelines have become an essential part of the practice of family law throughout Canada. Aimed at structuring discretionary spousal support determinations under the Divorce Act and increasing the fairness of awards, the Advisory Guidelines have been embraced by appellate courts across jurisdictions. Quebec is the exception to that trend. Despite that marriage and divorce fall under federal jurisdiction, Quebec courts resist the application of these non-binding rules, written by two family law scholars. This article responds to Quebec's resistance to the Advisory Guidelines and suggests that concerns about them may be misplaced. By reviewing …

It’S All Your Fault!: Examining The Defendant’S Use Of Ineffective Assistance Of Counsel As A Means Of Getting A “Second Bite At The Apple.”, Prentice L. White

Dickinson Law Review (2017-Present)

The United States Constitution provides individuals convicted of a crime with “a second bite at the apple.” The Sixth Amendment provides an avenue to appeal one’s conviction based on the claim of “ineffective assistance of counsel.” What were the Framers’ true intentions in using the phrase “effective assistance of counsel”? How does the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 affect habeas corpus appeals? This article answers these questions through the eyes of Thomas—a fictional character who is appealing his murder conviction.

This article first looks at the history surrounding effective assistance of counsel and discusses the difficulties …

The End Of Special Treatment For Cubans In The U.S. Immigration System: Consequences And Solutions For Cubans With Final Orders Of Removal, Lindsay Daniels

Dickinson Law Review (2017-Present)

In January 2016, former President Obama announced the end of the “Wet-Foot, Dry-Foot” Policy, which granted special immigration benefits to Cuban migrants. As part of the agreement to end this policy, the Cuban government agreed to take back its citizens with final orders of removal for criminal convictions, an action that it had refused to take for decades. This Comment will begin by exploring past and present immigration policies between the United States and Cuba, including recent developments like the normalization of relations and the impact of President Trump’s immigration policies.

This Comment will then explore possible avenues of relief …

Keeping Up With Your Sister Court: Unpublished Memorandums, No-Citation Rules, And The Superior Court Of Pennsylvania, Logan Hetherington

Dickinson Law Review (2017-Present)

As Pennsylvania’s intermediate appellate court of general jurisdiction, the Pennsylvania Superior Court decides thousands of cases each year. The vast majority of those cases are disposed of via unpublished memorandums. These unpublished memorandums are designated as non-precedential and may not be cited by parties before the Superior Court. As a result, litigants and their counsel may not even persuasively cite an unpublished memorandum in briefs or other papers submitted to the Court. Thus, if counsel finds an unpublished memorandum deciding the identical issue of the case at hand and counsel is before the Superior Court judge who authored that opinion, …

Plata O Plomo: Effect Of Mexican Transnational Criminal Organizations On The American Criminal Justice System, Mark M. Mcpherson

St. Mary's Law Journal

Abstract forthcoming

Adaptation Nation: Three Pivotal Transitions In American Law & Society Since 1886, Mariano-Florentino Cuéllar

Oklahoma Law Review

No abstract provided.

The Canon Wars, Anita S. Krishnakumar, Victoria F. Nourse

Faculty Publications

Canons are taking their turn down the academic runway in ways that no one would have foretold just a decade ago. Affection for canons of construction has taken center stage in recent Supreme Court cases and in constitutional theory. Harvard Dean John Manning and originalists Will Baude and Stephen Sachs have all suggested that principles of “ordinary interpretation” including canons should inform constitutional interpretation. Given this newfound enthusiasm for canons, and their convergence in both constitutional and statutory law, it is not surprising that we now have two competing book-length treatments of the canons—one by Justice Scalia and Bryan Garner, …