Legal History Commons^™

Blue Lives Have Always Mattered: The Usurping Of Hate Crime Laws For An Unintended And Unnecessary Purpose, Lisa M. Olson

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

Abstract forthcoming.

Unlawful Assembly As Social Control, John D. Inazu

Scholarship@WashULaw

Recent public protests from Occupy to Ferguson have highlighted anew the offense of unlawful assembly. This Article advances the simple but important thesis that contemporary approaches to unlawful assembly cede too much discretion to law enforcement. Too many unlawful assembly provisions neglect important elements of earlier statutory formulations. They also ignore constitutional principles meant to constrain the scope and extent of discretionary enforcement of social control by public authorities. In doing so, they fall short of the aspirations of the First Amendment — stifling dissent, muting expression, and ultimately weakening the democratic experiment. We can do better. We can start …

Toward A History Of The Democratic State, William J. Novak, Stephen W. Sawyer, James T. Sparrow

Articles

Over the past generation, the history of the state has been experiencing a much-noted renaissance, especially in France and the United States. In the United States as late as 1986, Morton Keller complained to William Leuchtenburg in the Journal of American History: “To say that ‘there is much still to be learned about the nature of the State in America’ is … a major understatement. There is close to everything to be learned about the State.” In France as late as 1990, Pierre Rosanvallon’s powerful introduction to L’État en France suggested that an ambitious history of the state could not …

Fear And Firearms, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Book Review, Ahmed White

Publications

No abstract provided.

Navigating The Post-Shelby Landscape: Using Universalism To Augment The Remaining Power Of The Voting Rights Act, Jesús N. Joslin

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

Abstract forthcoming.

¡Que Viva The Scholar!, Bill Piatt

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

Abstract forthcoming.

The Italian Enlightenment And The American Revolution: Cesare Beccaria's Forgotten Influence On American Law, John Bessler

All Faculty Scholarship

The influence of the Italian Enlightenment—the Illuminismo—on the American Revolution has long been neglected. While historians regularly acknowledge the influence of European thinkers such as William Blackstone, John Locke and Montesquieu, Cesare Beccaria’s contributions to the origins and development of American law have largely been forgotten by twenty-first century Americans. In fact, Beccaria’s book, Dei delitti e delle pene (1764), translated into English as On Crimes and Punishments (1767), significantly shaped the views of American revolutionaries and lawmakers. The first four U.S. Presidents—George Washington, John Adams, Thomas Jefferson and James Madison—were inspired by Beccaria’s treatise and, in some cases, read …

The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah S. Purdy

Faculty Scholarship

The conflict between various versions of “originalism” and “living constitutionalism” has defined the landscape of constitutional theory and practice for more than a generation, and it shows no sign of abating. Although each camp has developed a variety of methodological approaches and substantive distinctions, each one also returns to a core concern: the democratic authority of constitutional review. The late Justice Scalia crystallized the originalist concern in his dissent in Obergefell v. Hodges: “It is of overwhelming importance … who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, …

Where's The Fire?, Burt Neuborne

Journal of Law and Policy

Freedom of speech is priceless, but distressingly fragile. Life, and law, would be much simpler if we could react to free speech's importance and fragility by granting it absolute legal protection. Since, however, absolute protection of speech is not—and should not be—a serious option, we face the legal realist challenge of erecting a First Amendment legal structure capable of providing real-world protection to highly controversial speech, often by weak speakers, without closing the door to government regulation. Given the uncertainty inherent in applying fact-dependent complex rules in protean factual settings, many potential speakers would avoid being drawn into unpredictable and …

Protecting Hatred Preserves Freedom: Why Offensive Expressions Command Constitutional Protection, Andrew P. Napolitano

Journal of Law and Policy

The First Amendment is not the guardian of taste. Instead, the U.S. Constitution wholeheartedly protects freedom of thought and expression, even if generated and defined by hatred, as long as that expression does not produce immediate lawless violence. Although free speech may lead to tenuous relationships or uncomfortable debates, it must be defended unconditionally. Too many politicians and lawmakers believe that the freedom of speech protected by the First Amendment attaches only to those ideas and expressions that they approve of; this is not so. This article argues that the Founders intended the First Amendment's free speech principle as a …

Freedom Of Speech And Equality: Do We Have To Choose?, Nadine Strossen

Journal of Law and Policy

As a lifelong activist on behalf of both equality and free speech, I am convinced, based on actual experience, that these core values are mutually reinforcing, and not, as some have argued, in tension with each other. Moreover, I am convinced that this is true even for offensive or hateful speech that affronts our most cherished beliefs. However, defining hateful or offensive speech is inherently arbitrary and subjective, which raises concerns about what speech should be restricted, and how. Empowering government to punish hateful or offensive expresson necessarily vests officials with enormous discretionary power, which will inevitably lead to arbitrary …

The Academy, Campaign Finance, And Free Speech Under Fire, Bradley A. Smith

Journal of Law and Policy

This article discusses the issue of campaign finance and the impact money has on the political process in the country. The author suggests campaign finance regulations that curb the current threat it poses to the system, as well as the First Amendment itself. Lastly, the author discusses the impact academics have had on the debate and this decline in support of free speech that has resulted from the debate.

Producing Democratic Vibrancy, K. Sabeel Rahman

Journal of Law and Policy

Professor Rahman gives his thoughts and opinions on the impact of Citizens' United v. FEC and the growth of the First Amendment debate since. The comment analyzes the normative udnerstanding of democracy and the ongoing debate campaifgn finance have. Professor Rahman concludes by suggesting that the debate is wrongly focused on the indivudals being consumers of politcal speech rather than the producers of it.

A Balancing Act For American Universities: Anti-Harassment Policy V. Freedom Of Speech, Bridget Hart

Journal of Law and Policy

Legal scholars, educational administrators, journalists, and students have all witnessed a rise in students being disciplined by university officials for speech and conduct deemed inappropriate for college campuses. In endeavoring to explain this trend, some academics point to the disconnect between the Department of Education and university administrators regarding the legal standards for campus anti-harassment policies. The lack of clarity regarding what constitutes harassment on college campuses has resulted in the punishment of students by universities for speech and conduct that is normally considered to be protected speech under the First Amendment. This note first provides an overview of the …

Law And Modernization In China: The Juridical Behavior Of The Chinese Communists, Daniel J. Hoffheimer

Georgia Journal of International & Comparative Law

No abstract provided.

My Turn: 'We The People' And The Garland Nomination, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Because I teach constitutional law, a friend recently asked me whether Judge Merrick Garland or President Obama might successfully sue to compel the Senate to take action on the nomination of Judge Garland to fill the vacancy on the United States Supreme Court.

Almost certainly not, I told him. Under settled precedent, a judge would dismiss such a case as raising a non-legal ''political" question. It would be very difficult to develop acceptable decisional standards for such a claim. Moreover, courts are reluctant to entertain lawsuits challenging mechanisms that the Senate uses to oversee the judiciary."

The One Exhibition The Roots Of The Lgbt Equality Movement One Magazine & The First Gay Supreme Court Case In U.S. History 1943-1958, Joshua R. Edmundson

Electronic Theses, Projects, and Dissertations

The ONE Exhibition explores an era in American history marked by intense government sponsored anti-gay persecution and the genesis of the LGBT equality movement. The study begins during World War II, continues through the McCarthy era and the founding of the nation’s first gay magazine, and ends in 1958 with the first gay Supreme Court case in U.S. history.

Central to the story is ONE The Homosexual Magazine, and its founders, as they embarked on a quest for LGBT equality by establishing the first ongoing nationwide forum for gay people in the U.S., and challenged the government’s right to engage …

The Voting Rights Act And The "New And Improved" Intent Test: Old Wine In New Bottles, Randolph M. Scott-Mclaughlin

Touro Law Review

No abstract provided.

Crimea And The Right To Self-Determination: Questioning The Legality Of Crimea's Secession From Ukraine, Alisa Gdalina

Cardozo Journal of International and Comparative Law

The note argues that Crimea's unilateral secession from Ukraine in 2014 was illegal under both domestic Ukrainian law and international law. It contends that Crimea failed to meet the legal criteria for remedial secession, as it did not suffer the requisite severe and persistent human rights violations or exhaustion of alternatives, and that the secession violated Ukraine's constitutional provisions on territorial integrity.

A National Model Faces New Challenges: The New York City Campaign Finance System And The 2013 Elections, Janos Marton

Fordham Urban Law Journal

No abstract provided.

The Great Gun Control War Of The Twentieth Century—And Its Lessons For Gun Laws Today, David B. Kopel

Fordham Urban Law Journal

No abstract provided.

The Curious Case Of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up, Monu Bedi

Northwestern University Law Review

Police surveillance ability and information gathering capacity have a dynamic relationship with technology. Greater advancements in technology make it easier for the police to surveil individuals and collect information. This state of affairs leads to heightened concerns over Fourth Amendment protection. This issue has most recently played out in the context of police collecting cell phone location data. Courts disagree on whether and to what extent this data garners Fourth Amendment protection. Underlying this disagreement rests a hitherto overlooked tension between two interrelated Fourth Amendment doctrines—the third-party and the public disclosure doctrines. While both vitiate privacy protection and are commonly …

Judge Judith Kaye At Skadden, Arps, Barry H. Garfinkel

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

The Making Of A Judge's Judge: Judith S. Kaye's 1987 Cardozo Lecture, Henry M. Greenberg

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

For Judith S. Kaye, Susan N. Herman

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

Reflections On Opportunity In Life And Law, Judith S. Kaye

Brooklyn Law Review

This essay was written by Judge Kaye in the fall of 2015 for the Brooklyn Law Review. She reflects on her life, her time on the bench, and the significance of New York’s Constitutional Convention. Through the lens of dual constitutionalism and her own life story, Judge Kaye opines on the opportunities in life and law that are not to be missed.

A Tribute To Chief Judge Judith S. Kaye, Hon. Janet Difiore

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

Book Review (Reviewing Louis Fisher's Congress: Protecting Individual Rights), Adeen Postar

All Faculty Scholarship

Fisher is currently the Scholar in Residence at the Constitution Project, and is well known for his many years as Senior Specialist on Separation of Powers at the Congressional Research Service and as Specialist in Constitutional Law at the Law Library of Congress. He has extensive experience testifying before Congress on topics that include Congress and the constitution, war powers, executive power and privilege, and several aspects of the federal budget and its processes. He has written numerous books on these topics, including (to name only a few) The President and Congress: Power and Policy (1972); Defending Congress and the …

Continuity And The Declaration Of Independence, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.