Legal History Commons^™

Death In America Under Color Of Law: Our Long, Inglorious Experience With Capital Punishment, Rob Warden, Daniel Lennard

Northwestern Journal of Law & Social Policy

No abstract provided.

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

Georgia State University Law Review

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 …

Prisoner's Dilemma—Exhausted Without A Place Of Rest(Itution): Why The Prison Litigation Reform Act's Exhaustion Requirement Needs To Be Amended, Ryan Lefkowitz

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

The Prison Litigation Reform Act (PLRA) passed in 1996 in an effort to curb litigation from prisoners. The exhaustion requirement of the PLRA requires prisoners to fully exhaust any administrative remedies available to them before filing a lawsuit concerning any aspect of prison life. If a prisoner fails to do so, the lawsuit is subject to dismissal. The exhaustion requirement applies to all types of prisoner lawsuits, from claims filed for general prison conditions to excessive force and civil rights violations. It has been consistently and aggressively applied by the courts, blocking prisoners’ lawsuits from ever going to trial. Attempts …

Trapped In The Shackles Of America's Criminal Justice System, Shristi Devu

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

Abstract forthcoming

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 …

The Failure Of International Law In Palestine, Svetlana Sumina, Steven Gilmore

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

Abstract forthcoming

Navigating The New York Courts With The Assistance Of A Non-Lawyer, Fern Fisher

Dickinson Law Review (2017-Present)

This Article discusses a program implemented by the New York State Unified Court System in order to address the justice gap for unrepresented litigants. Part I of this Article discusses the process behind creating the New York Navigator’s Program (discussed in more detail Part II), a program designed to help non-lawyer “Navigators” to assist unrepresented litigants in a limited capacity when the litigants appear before different types of state courts. The Navigators must complete training before they are able to assist the litigants. This program has been well received, as Part IV discusses, and has helped more and more unrepresented …

Washington’S Limited License Legal Technician Rule And Pathway To Expanded Access For Consumers, Stephen R. Crossland, Paula C. Littlewood

Dickinson Law Review (2017-Present)

Washington’s 2012 adoption of a Limited License Legal Technician (LLLT) rule has been a topic of great interest throughout the United States and elsewhere. This Article is co-written by Steve Crossland, who is the Chair of the Washington Supreme Court’s Limited License Legal Technician Board, which is responsible for implementing the rule, and Paula Littlewood, who is the Executive Director of the Washington State Bar Association, which is the unified bar association charged, inter alia, with lawyer and LLLT regulation. This Article builds on the authors’ previous articles about Washington’s LLLT program by providing previously unpublished information about the …

Pro Se Appellants: Opportunities For Law Libraries, Liz Reppe

Dickinson Law Review (2017-Present)

This article is part of the 2018 Dickinson Law Review Symposium entitled “Access to Justice: Innovations and Challenges in Providing Assistance to Pro Se Litigants.” The author is the state law librarian for Minnesota who reports to the Minnesota Supreme Court. This article surveys various resources that Minnesota provides to unrepresented clients, including the website resources found here: https://perma.cc/R2DP-K9YB. The bulk of the article, however, focuses on Minnesota’s innovative in-person “Appeals Self-Help Clinics.” See https://perma.cc/Y2VN-H2L3.

The article’s discussion of Minnesota’s Appeals Self-Help Clinics begins by highlighting some of the factors that provided the impetus for the development …

Utah’S Online Dispute Resolution Program, Deno Himonas

Dickinson Law Review (2017-Present)

This article by Utah Supreme Court Justice Deno Himonas describes Utah’s Online Dispute Resolution or ODR system. Launched in September 2018, Utah’s ODR system is available to litigants who have small claims disputes that involve $11,000 or less. The ODR system has been designed to provide “simple, quick, inexpensive and easily accessible justice” that includes “individualized assistance and information that is accessible across a multitude of electronic platforms.”

This article describes the history and philosophy behind Utah’s ODR system and includes a number of screen shots that show what an ODR litigant will see. Utah is the first U.S. state …

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 …

“Pfa” Record Expungement As A Tool For Settlement: Due Process And The Pennsylvania Protection From Abuse Act, Kyle Semroc

Dickinson Law Review (2017-Present)

The Pennsylvania Protection from Abuse Act (PFAA) empowers victims of domestic violence to obtain protection orders through a hearing process. Once the Protection from Abuse (PFA) process is initiated, a statewide registry system automatically generates a civil record. Currently, no statutory language governing the expungement of a PFA record exists in Pennsylvania, and courts have decided that a right to expungement exists only in limited circumstances. The courts are silent, however, on whether a protection order by consent of the parties with no admission of abuse is available for expungement.

This Comment begins by describing the procedure by which a …

Jurisdiction, The Internet, And The Good Faith Exception: Controversy Over The Government’S Use Of Network Investigative Techniques, Maureen Weidman

Dickinson Law Review (2017-Present)

In February 2015, the FBI discovered a website dedicated to child pornography located on the Tor Network, a network designed to protect its users’ identities on the Internet. Due to the structure of the Tor Network, the FBI could not take down the website and identify users who previously accessed the website. Instead, the FBI kept the website operational for 30 days and applied for a search warrant in the Eastern District of Virginia to use a device called a Network Investigative Technique (“NIT”). This device operated similarly to malware and “attached” to computers accessing the website, allowing the government …

Be Careful What You Wish For? Reducing Inequality In The Twenty-First Century, Reuven S. Avi-Yonah, Orli K. Avi-Yonah

Michigan Law Review

A review of Walter Scheidel, The Great Leveler: Violence and the History of Inequality from the Stone Age to the Twenty-First Century.

The Communications Decency Act: Immunity For Internet-Facilitated Commercial Sexual Exploitation, Haley C. Halverson

Dignity: A Journal of Analysis of Exploitation and Violence

This paper reviews the original intent and historical application of the Communications Decency Act (CDA), most notably Section 230, with special regard to cases of Internet-facilitated commercial sexual exploitation. Although the CDA was originally created to protect children online, Section 230 of the CDA has been interpreted by the courts to grant broad immunities to websites facilitating the sexual exploitation of children and adults alike. Through analyzing the genesis and evolution of the CDA, it becomes clear that court interpretations of Section 230 are starkly inconsistent with original Congressional intent, and that the primary way to avoid de facto decriminalization …

A Painful History : Symbols Of The Confederacy: A Conversation About The Tension Between Preserving History And Declaring Contemporary Values 1-19-2018, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.

Martin Luther King, Jr. Celebration Keynote Address: Speakers: Alfred Brophy, Paul And Charlene Jones Chair In Law University Of Alabama School Of Law ; Martha S. Jones, Society Of Black Alumni Presidential Professor And Professor Of History Johns Hopkins University January 18, 2018, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Joutsing At Windmills: Cervantes And The Quixotic Fight For Authorial Control, H. Parkman Biggs

Marquette Intellectual Property Law Review

Achieving the appropriate balance between the right of first authors to control the later use of their work and freedom for follow-on authors to further develop from that text has long been challenging. Currently, under United States law in particular, fair use stands as a nebulous to buffer between the two creative camps, granting a significantly limited right to the second author to work from the first authors’ text. While that tension excites its own debate, a less considered aspect of this tension involves the degree to which the first author might be creatively and productively affected by the follow-on …

Indefinite Detention, Colonialism, And Settler Prerogative In The United States, Natsu Taylor Saito

Faculty Publications By Year

The primacy accorded individual civil and political rights is often touted as one of the United States' greatest achievements. However, mass incarcerations of indefinite duration have occurred consistently throughout U.S. history and have primarily targeted people of color. The dominant narrative insists that the United States is a political democracy and portrays each instance of indefinite detention in exceptionalist terms. This essay argues that the historical patterns of indefinite detention are better explained by recognizing the United States as a settler colonial state whose claimed prerogative to expand its territorial reach and contain/control populations over which it exercises jurisdiction inevitably …

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 …

Substantive Due Process And The Politicization Of The Supreme Court, Eric Millman

CMC Senior Theses

Substantive due process is one of the most cherished and elusive doctrines in American constitutional jurisprudence. The understanding that the Constitution of the United States protects not only specifically enumerated rights, but also broad concepts such as “liberty,” “property,” and “privacy,” forms the foundation for some of the Supreme Court’s most impactful—and controversial—decisions.

This thesis explores the constitutional merits and politicizing history of natural rights jurisprudence from its application in Dred Scott v. Sandford to its recent evocation in Obergefell v. Hodges. Indeed, from slavery to same-same sex marriage, substantive due process has played a pivotal role in shaping …

The Uneasy History Of Experiential Education In U.S. Law Schools, Peter A. Joy

Dickinson Law Review (2017-Present)

This article explores the history of legal education, particularly the rise of experiential learning and its importance. In the early years of legal education in the United States, law schools devalued the development of practical skills in students, and many legal educators viewed practical experience in prospective faculty as a “taint.” This article begins with a brief history of these early years and how legal education subsequently evolved with greater involvement of the American Bar Association (ABA). With involvement of the ABA came a call for greater uniformity in legal education and guidelines to help law schools establish criteria for …

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 …

Innovation Diffusion In The Legal Industry, William D. Henderson

Dickinson Law Review (2017-Present)

This article is adapted from a series of blog posts originally found in my recently-started blog entitled Legal Evolution. The foundational material set forth in this article (and in those blog posts) applies to the legal services market insights gained from disciplines other than law. This article begins by setting forth the well-established theory of an “innovation diffusion curve” and the research that has identified the factors that affect the rate of adoption of innovations. This article identifies why innovation in the legal services market is desirable and applies to the legal services field insights drawn from this research …

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 …

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

'A Southern College Slipped From Its Geographical Moorings': Slavery At Princeton, Lolita Buckner Inniss

Publications

While slave-owning students at Princeton rarely constituted a majority of students, they were often a large plurality of the students in the antebellum period. Because of Princeton’s historic role in educating southerners, it has sometimes been referred to as the most southern of the Ivy League schools. So many students from the United States South enrolled at Princeton during the first several decades of the college that one observer wrote that one might take Princeton for a ‘Southern college slipped from its geographical moorings.’ This article explores the extent to which and whether Princeton behaved like a southern institution in …

The Language Of Neutrality In Supreme Court Confirmation Hearings, Carolyn Shapiro

Dickinson Law Review (2017-Present)

At Justice Neil Gorsuch’s confirmation hearing, then-Judge Gorsuch repeatedly insisted that judging involves no more than examining the legal materials—like statutes and precedents— and applying them to the facts of the case. There is, he emphasized, no room for a Justice’s “personal views,” and he refused even to state his agreement (or disagreement) with such iconic cases as Loving v. Virginia and Griswold v. Connecticut. Instead, then Judge Gorsuch reiterated only that they were precedents of the Court and thus entitled to respect. Frustrating as his answers may have been to some senators, however, they differed from answers given …

Its Own Dubious Battle: The Impossible Defense Of An Effective Right To Strike, Ahmed White

Publications

One of the most important statutes ever enacted, the National Labor Relations Act envisaged the right to strike as the centerpiece of a system of labor law whose central aims included dramatically diminishing the pervasive exploitation and steep inequality that are endemic to modern capitalism. These goals have never been more relevant. But they have proved difficult to realize via the labor law, in large part because an effective right to strike has long been elusive, undermined by courts, Congress, the NLRB, and powerful elements of the business community. Recognizing this, labor scholars have made the restoration of the right …