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Reconceptualizing The Eighth Amendment: Slaves, Prisoners, And Cruel And Unusual Punishment, Alexander A. Reinert

Articles

The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application. This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination.

In particular, I …

Creating A Literature For The King’S Courts In The Later Thirteenth Century: Hengham Magna, Fet Asaver, And Bracton, Thomas J. Mcsweeney

Faculty Publications

The early common law produced a rich literature. This article examines two of the most popular legal treatises of the second half of the thirteenth century, Hengham Magna and Fet Asaver. It has long been recognized that these two treatises bear some relationship to each other. This article will attempt to establish that relationship, arguing that Hengham Magna and Fet Asaver were written by different people; that Fet Asaver borrows from Hengham Magna; and that the authors of both texts had independent access to the Bracton treatise. The article concludes by suggesting a new way to think about the legal …

Vol. 50, No. 06 (February 22, 2016)

Indiana Law Annotated

No abstract provided.

The Lawyer's Obligation To Correct Social Injustice!, James F. Gill

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 …

Law Reform In The Ancient World: Did The Emperor Augustus Succeed Or Fail In His Morals Legislation?, Charles J. Reid Jr.

William & Mary Journal of Race, Gender, and Social Justice

This is an Article with a dual purpose. First, it is concerned with the process of law reform: how do we judge a given reform’s success or failure? Do we adopt strictly linear metrics? Or do we look at nonlinear impacts? For example, in the campaign against tobacco, do we judge it a success because it has reduced cigarette smoking? Or because it reduced the political power of the tobacco companies?

Secondly, in this Article, I apply this complex means of analyzing law reform to the Emperor Augustus’s morals legislation. Legal historians have typically regarded Augustus’s morals legislation as having …

The First Patent Litigation Explosion, Christopher Beauchamp

Faculty Scholarship

No abstract provided.

Book Review Of The Oxford History Of The Laws Of England, Volume Ii, Thomas J. Mcsweeney

Faculty Publications

No abstract provided.

South African Marriage In Policy And Practice: A Dynamic Story, Michael W. Yarbrough

Publications and Research

Law forms one of the major structural contexts within which family lives play out, yet the precise dynamics connecting these two foundational institutions are still poorly understood. This article attempts to help bridge this gap by applying sociolegal concepts to empirical findings about state law's role in family, and especially in marriage, drawn from across several decades and disciplines of South Africanist scholarly research. I sketch the broad outlines of a nuanced theoretical approach for analysing the law-family relationship, which insists that the relationship entails a contingent and dynamic interplay between relatively powerful regulating institutions and relatively powerless regulated populations. …

The "Rabbi's Daughter" And The "Jewish Jane Addams": Jewish Women, Legal Aid, And The Fluidity Of Identity, 1890-1930, Felice Batlan

All Faculty Scholarship

No abstract provided.

The "Rabbi's Daughter" And The "Jewish Jane Addams": Jewish Women, Legal Aid, And The Fluidity Of Identity, 1890-1930, Felice Batlan

All Faculty Scholarship

This symposium article discusses an unexamined area of legal aid and legal history—the role that late nineteenth and early twentieth century Jewish women played in the delivery of legal aid as social workers, lawyers, and, importantly, as cultural and legal brokers. It presents two such women who represented different types and models of legal aid—Minnie Low of the Chicago Bureau of Personal Service, a Jewish social welfare organization, and Rosalie Loew of the Legal Aid Society of New York. I interrogate how these women negotiated their identities as Jewish professional women, what role being Jewish and female played in shaping …

United States V. Hodges: Treason, Jury Trials, And The War Of 1812, Jennifer Elisa Smith

Legal History Publications

In August 1814 a number of British soldiers were arrested as stragglers or deserters in the town of Upper Marlboro, Maryland. Upon learning of the soldiers’ absences the British military took local physician, Dr. William Beanes, and two other residents into custody and threatened to burn Upper Marlboro if the British soldiers were not returned. John Hodges, a local attorney, arranged the soldiers’ return to the British military. For this, Hodges was charged with high treason for “adhering to [the] enemies, giving them aid and comfort.” The resulting jury trial was presided over by Justice Gabriel Duvall, a Supreme Court …

The Bellona Company's Case, Casey Conrad

Legal History Publications

The Bellona Gunpowder Company of Maryland was one of Maryland’s most prominent gunpowder manufactories during the early nineteenth century. Founded in 1801, the gunpowder company become the second leading gunpowder producer for the American government, and supplied almost one-fifth of American domestic gunpowder. In 1828, the Baltimore and Susquehanna Railroad Company was incorporated by the State of Maryland to construct a railroad that would connect the City of Baltimore to the Susquehanna River. The legislature authorized the railroad company to initiate condemnation proceedings against private property owners, if it was unable to negotiate for the sale of such land. In …

Shreve V. Baltimore: A Municipal Misstep Leads To A City Forever Beautiful, Laura Tallerico

Legal History Publications

This paper explores municipal decision making in condemnation proceedings and whether or not the public use requirement protects individual property owners from poor municipal decision-making. When condemners are allowed to take in fee simple absolute, their decisions have lasting effects on property. The decisions of the Baltimore City government in its creation of a water system illustrate why some may be queasy about this. However, this may actually be desirable because it allows for municipalities, in particular, to both achieve the public purpose necessary at the time of condemnation and to improve in the future rather than go through the …

United States V. Gooding: The Imperfect Indictment That Created The Perfect Defense For The Illegal Slave Trade, Fernando D. Kirkman

Legal History Publications

In United States v. Gooding, the Supreme Court quashed an indictment against John Gooding for engaging in international slave trading, a violation of the Slave Trade Act of 1818. The Slave Trade Act of 1818 modified the penalties for engaging the in slave trading, and switched the burden of proof to the defendant, to disprove the presumption that the defendant had engaged in the slave trade. This article looks at how United States v. Gooding stands as a step backwards toward condoning and legitimizing the international slave trade. This paper also examines the moral relativism expressed in the United States’ …

Two Comparative Perspectives On Copyright's Past And Future In The Digital Age, Timothy K. Armstrong

Faculty Articles and Other Publications

A review of two recent scholarly books on digital copyright law: The Copyright Wars: Three Centuries of Trans-Atlantic Battle by Peter Baldwin (Princeton, 2014), and Copyfight: The Global Politics of Digital Copyright Reform by Blayne Haggart (Univ. of Toronto, 2014). Both books are meticulously researched and carefully written, and each makes an excellent addition to the literature on copyright. Contrasting both titles in this joint review, however, helps to reveal a few respects in which each work is incomplete; indeed, at times each book reads as a critique of the other.

Baldwin's The Copyright Wars argues that modern debates over …

Residency And Democracy: Durational Residency Requirements From The Framers To The Present, Eugene D. Mazo

Florida State University Law Review

After years of struggle, we no longer require property ownership, employ poll taxes, or force citizens to take literary tests to vote. The franchise is now also open to women, African Americans, and other groups that were previously disenfranchised. However, our states still prevent citizens from voting if they fail to meet a durational residency requirement. The states also impose lengthy durational residency requirements on candidates seeking public office. This Article examines the history of America’s durational residency requirements. It looks at the debates of the framers at the Constitutional Convention, at how state durational residency requirements were broadened in …

The Sweeney Legacy: A Tribute To The District Court Of Maryland's First Chief Judge, John P. Morrissey, Lauren Kitzmiller

University of Baltimore Law Forum

Many changes have been made during my first eighteen months as the Chief Judge of the District Court of Maryland. For example, we have added a brand new program to provide all indigent defendants with representation at initial appearances before Commissioners. We have also converted the judiciary from paper filing to an electronic filing and case management system and moved the location of the district court headquarters.

All of these endeavors have been challenging, but something special came when packing up the old office and moving next door. In the accumulation of folders, documents, and other miscellaneous office supplies, I …

Choice At Work: Young V. United Parcel Service, Pregnancy Discrimination, And Reproductive Liberty, Mary Ziegler

Scholarly Publications

In deciding Young v. United Parcel Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 (PDA) requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion.

A line of Supreme Court decisions completely rejected this understanding …

A Legal History Of The Civil War And Reconstruction: A Nation Of Rights By Laura F. Edwards, Jennifer Laws

Faculty Scholarship

This is a review of A Legal History of the Civil War and Reconstruction: A Nation of Rights by Laura F. Edwards

Whose Bright Idea Was This Anyway? The Origins Of Judicial Elections In Maryland, Yosef Kuperman

University of Baltimore Law Forum

This paper describes how Maryland switched from the life-tenured appointed judiciary under its original Constitution to an elected judiciary. It traces the history of judicial selection from the appointments after 1776 through the Ripper Bills of the early nineteenth century to the eventual adoption of judicial elections in 1850. It finds that the supporters of judicial elections had numerous complex motives that boiled down to trying to make the Judiciary less political but more publically accountable. At the end of the day, Marylanders trusted elections more than politicians.

Bills Of Attainder, Matthew J. Steilen

Journal Articles

What are bills of attainder? The traditional view is that bills of attainder are legislation that punishes an individual without judicial process. The Bill of Attainder Clause in Article I, Section 9 prohibits the Congress from passing such bills. But what about the President? The traditional view would seem to rule out application of the Clause to the President (acting without Congress) and to executive agencies, since neither passes bills.

This Article aims to bring historical evidence to bear on the question of the scope of the Bill of Attainder Clause. The argument of the Article is that bills of …

On The Effects And History Of Stand-Your-Ground Laws, E. Dimitri Hasandras

Criminal Law Practitioner

No abstract provided.

William Marshal, Great Knight And Protector Of Magna Carta: The Unknown Founder Of The Right Of Englishmen And Americans!, 50 J. Marshall L. Rev. 1 (2016), Allen Shoenberger

UIC Law Review

No abstract provided.

Protestant Ecclesiastical Law And The Ius Commune, Kenneth Pennington

Scholarly Articles

Protestants almost never called their ecclesiastical norms ‘canons.’ When Protestant jurists or theologians wrote ‘canon law’ (Ius canonicum) in their works, it was clear to their readers that they meant Roman canon law. Surprisingly, Protestant jurists often cited Roman canon law and its jurisprudence long after Martin Luther burned books of Roman canon law at the Elster gate in Wittenberg. These jurists also continued to teach courses at the universities that treated the Ius canonicum. Consequently, an essay on Protestant canon law must confront the question: how much Roman canon law and the jurisprudence of the medieval …

Seventeenth Annual Grotius Lecture Series - Some Thoughts About Grotius 400 Years On, Sir Kenneth J. Keith

American University International Law Review

No abstract provided.

Governed By Marriage Law, Deirdre Mcgowan

Books/Book Chapters

Marriage law links the private and the political, connecting the aspirations of individuals to the regulatory ambitions of the state. Marriage has significant social and cultural importance, but the assumptions of stability and care it entails are also useful to government. As a result, marriage law has, both historically and in the present, been offered as the solution to a range of social problems. Using Ireland as a case study example, this essay focuses on the problems which marriage law reform has attempted to address and the political frameworks within which reform took place. It suggests that marriage law is …

How International Law Can Eradicate Torture: A Response To Cynics, Juan E. Mendez

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Law Enforcement Access To Data Across Borders: The Evolving Security And Rights Issues, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

No abstract provided.

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.