Legal History Commons^™

Brief In Support Of Respondents As Amici Curiae, Donald J. Trump, President Of The United States, Et Al. V. Rebecca Kelly Slaughter, Et. Al, No. 25-332, Andrea Scoseria Katz, Jonathan Gienapp

Scholarship@WashULaw

In the years since this Court’s decision in Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020), legal historians—including originalists—have unearthed a rich body of evidence challenging the conventional wisdom concerning the scope of the President’s removal powers at the Founding. Revisiting not only the Framers’ intellectual influences, but also their driving philosophical concerns and political incentives, this scholarship explains that removal authority was not understood to be vested exclusively in the President as a matter of settled constitutional law, but rather was permissibly exercised by various actors in various ways, intentionally not settled by the …

Disagreement And Historical Argument Or How Not To Think About Removal, Andrea Scoseria Katz, Noah A. Rosenblum, Jane Manners

Scholarship@WashULaw

Scholars have debated the reach of the President’s power to remove government officers for over one hundred years. This old fight is now suddenly urgent as President Trump asserts far-reaching powers to control the federal bureaucracy and the Supreme Court transforms Unitary Executive Theory into caselaw. Yet the scholarly case for an indefeasible presidential removal power has never been weaker.

This Essay continues an ongoing conversation about how to read some critical early republic evidence about removal. It briefly recapitulates the stakes of the disagreement before offering in-depth analyses of developments in Pennsylvania removal practice, including a reading of the …

Historical Tradition, The Second Amendment, And Marrying Gun Rights And Regulation: Examining The Proposals In Gavin Newsom's Twenty-Eighth Amendment And Their Place In Second Amendment Jurisprudence, Guy Cheatham

American University Journal of Gender, Social Policy & the Law

In September 2017, Stephen Paddock checked into rooms 32-134 and 32- 135 at the Mandalay Bay Hotel in Las Vegas. Both rooms looked over the Route 91 Festival in Las Vegas Village. Over the course of five days, Paddock brought twenty-two suitcases into his room: five on September 25th, seven on the 26th, two on the 28th, six on the 30th, and two on October 1st. On September 30th, Paddock placed “Do Not Disturb” signs on the doors of rooms 32-134 and 32-135. Paddock considered booking the high level suites for weeks; Google searches from May to September 2017 reveal …

Measuring Location-Specific Rents, David Elkins

Cardozo International & Comparative Law Review

No abstract provided.

Was The Niit A Treaty Override?, Reuven S. Avi-Yonah

Articles

Three court decisions have recently addressed the interaction of the NetInvestment Income Tax (NIIT) and U.S. tax treaties. The issue waswhether the treaty provided an independent basis for crediting a foreigntax against the NIIT, because no such credit is available under the Code.First,in Toulouse, the Tax Court held that there was no treaty-based credit.Second,in Christensen, the Court of Federal Claims held that a treaty-based credit wasavailable, distinguishing Toulouse.Third, in Bruyea, the Court of Federal Claimsissued a broader opinion that allowed the credit.

Inventing Birthright: The Nineteenth-Century Fabrication Of Jus Soli And Jus Sanguinis, Sam Erman, Nathan Perl-Rosenthal

Articles

Formal membership in a state has been an essential political status for well over a century. It is typically gained at birth, either jus soli or jus sanguinis. Jus soli assigns nationality by birth in a nation's territory; jus sanguinis assigns children their parents’ nationality. This article provides an alternative intellectual history of the modern dominance of these principles for attributing nationality. Contrary to prior scholarship, soli and sanguinis were not restatements of existing principles. The soli/sanguinis binary was a nineteenth-century invention. Old-regime European empires attributed membership in the community under one or another single natural law principle. Parentage and …

Reframing Puerto Rican Advocacy: How The Emerging U.S.-China Rift Can Help Puerto Rico Realize Greater Autonomy, Michael Angelo Tabrizi

Cardozo International & Comparative Law Review

The note advocates for reframing Puerto Rican decolonization efforts as a foreign policy issue rather than solely a domestic matter, leveraging the U.S.-China rivalry to gain international support and alignment with the United Nations' principles on self-governance.

A New Satanic Panic, Jonathon J. Booth

Publications

A broad backlash to LGBTQ visibility and equality has emerged in recent years. Its conservative proponents have asserted that queer people are Satanic, called gender affirming healthcare child abuse, and labeled adults who teach about gender and sexuality "groomers." This rhetorical shift, combined with an explosion of anti-transgender legislation, may presage a revival of the 1980s Satanic Panic, when fears of brutal crimes allegedly committed by Satanic cults swept the nation. These accusations spurred the longest trial in American history, commanded tabloid news, and led dozens of people to be convicted of lurid crimes, nearly all of whom were later …

Patenting The Taboo: Sex, Drugs, And Abortion, Andrew Gilden, Sarah R. Wasserman Rajec

Faculty Publications

The patent system provides a surprisingly rich archive of the interplay between social norms and technological change. Patent law requires applicants to publicly disclose the novelty and usefulness of their inventions, thereby bringing to light areas of innovation that may have previously lived in the shadows. In other words, patent law encourages public disclosure of technologies that are taboo—developed and practiced in secret, for reasons such as social approbation, illegality, or religious sanctity. To obtain a patent for a taboo technology, patentees must establish their legitimacy as innovators while navigating cultural norms that are hostile to their fields of innovation. …

Creating U.S. Catholicism, Gerard V. Bradley

Journal Articles

Reviewing, The World and Work of Father John J. Burke: A Mystic in Action by Douglas J. Slawson, St. Augustine's, 600 p, $36.

Jurisprudence Of Problem-Solving Courts: A Study Of Structure, Success, And Sociological Theory, Lauren M. Boos

Graduate Student Theses, Dissertations, & Professional Papers

In response to the failures of mass incarceration and its disproportionate impact on marginalized communities, Problem-Solving Courts (PSCs) have emerged as alternatives to traditional prosecution. These courts employ therapeutic-informed and rehabilitative practices aimed at addressing the root causes of criminal behavior. While widely regarded as more effective than traditional courts, PSCs have developed largely without a formal theoretical foundation. This is notable given their alignment with Sociological Jurisprudence (SJ) and Therapeutic Jurisprudence (TJ), which view the legal system as a vehicle for promoting individual and community well-being.

Despite being celebrated as therapeutic innovations, PSCs often embody these principles unevenly. Using …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Perfecting Our Submission? Mann And Trump, Ruffin And Roberts, Joseph Scott Miller

Lewis & Clark Law Review

Presidential power is vast, both under law and in practice. Who holds presidents accountable, and by what means? Courts wrestle with these intertwined questions of power and accountability. The majority opinion in the 2024 presidential immunity case, Trump v. United States, is eerily resonant, rhetorically, with a notorious judgment enhancing one person’s power over others by shielding that power utterly from criminal-law accountability. That judgment, from 1829, is Judge Thomas Ruffin’s infamous slavery-law opinion for the North Carolina Supreme Court in State v. Mann. I juxtapose the two opinions, which share jarringly similar claims about the nature of power, rule, …

Foundations Of The Right Of Charitable Uses, Adam J. Macleod, Mark David Hall

Scholarly Articles

In recent years, municipalities around the United States have enacted ordinances that prohibit or restrict food-sharing in public places. These ordinances make it difficult for charitable souls to share food with those most in need. In one case, a town in Arizona arrested a woman under an ordinance that prohibits sharing food in public for charitable purposes.
The closest analogs to these laws are the English anti-almsgiving acts of the fourteenth and sixteenth centuries. One must look that far back in history because infringements of the right of charitable uses of property are exceedingly rare. Indeed, throughout the history of …

Trust Law And The Tides Of Colonialism, Allison Anna Tait

Law Faculty Publications

Tethered to and inextricably linked with the absence or decline of democratic governance, there has always been empire. Empires rise and fall, as they say, but the imperial impulse is perennial and new iterations of old empires emerge with dismal regularity, showing us that imperial formations are hard to erase...

From The Kkk To The Modern Day: How An Accurate Understanding Of History Can Inform The Proper Standard For Punishing Civil Rights Conspiracies Under 42 U.S.C. § 1985(3), Bair Srivastav

American University Journal of Gender, Social Policy & the Law

Following the Civil War, Congress passed the Reconstruction Amendments, which secured political rights for newly freed slaves and ushered in a new era for the United States. The Union defeated white Southerners on the battlefield and removed former Confederates from the halls of political power. But white Southerners were still Confederates in spirit. Full of racial hatred, they did not perceive a new era of freedom, but a world twisted into an unnatural order where African Americans walked freely amongst white people and participated in the political process of Southern society. In response to the extension of basic freedoms to …

Concrete And Particularized Standards To Resolve The Difficulty Of Muldrow V. City Of St. Louis, Ian C. Stephens

Student Scholarship

Muldrow v. City of St. Louis shattered a widespread rule that required Title VII plaintiffs to not just be harmed but significantly harmed by unlawful discrimination. Under the old standard, "significance" was ill-defined and often left to the whims of what any particular judge thought was "bad enough," limiting access to justice for those who suffered non-pecuniary harms. But Muldrow's new standard that a plaintiff must suffer only "some harm" is equally ill-defined. All we know about the new standard is that it is not the old one. Unable to decipher the bounds of when no harm becomes some harm …

An Introduction To U.S. Groundwater Law: Domestic And Transboundary Considerations, Caleb Cook, Gabriel Eckstein

Faculty Scholarship

In light of the scientific and historical factors that have shaped the development of groundwater law and policy, this chapter seeks to provide a primarily descriptive account of its current state in the United States and to lay a foundation for future efforts to address gaps in the regime. Section 8B.02 considers the importance of groundwater in modern American society, with a particular focus on its uses and the threats these resources face. Section 8B.03 describes the U.S. framework for the domestic governance of groundwater resources. Section 8B.04 describes the mechanisms for transboundary governance of groundwater between the United States …

Rectifying The Rome Statute And Draft Articles On Prevention And Punishment Of Crimes Against Humanity To Include The Slave Trade, Jocelyn Getgen Kestenbaum

Articles

The slave trade is commonly misperceived as a historical crime. Yet, the scourge of the slave trade is present throughout the world today. Combatting these ongoing atrocity crimes is essential to ensure that human rights are upheld by the international community. The crime of the slave trade fills an impunity gap, especially in light of recentharms perpetuated by the Islamic State of Iraq and Syria (ISIS) against the Yazidi in Iraq. Revitalization of the conceptualization of the slave trade as a crime under international law might ensure greater enforcement of one of the oldest core international crimes. Critical proposed amendments …

The Right To Acquire Property, John G. Sprankling

American University Law Review

Can government prohibit the acquisition of all types of property? The intuitive answer to this question is “no.” But why? Is there a constitutional right to acquire property? And, if so, how does it apply if government merely prohibits acquisition of a certain type of property, such as contraceptives?

The Fourth, Fifth, and Fourteenth Amendments restrict when property may be “taken” or “seized” and when a person may be “deprived” of property. Thousands of law review articles and hundreds of books have analyzed the scope of these provisions. But almost no modern attention has been devoted to their logical counterpart—the …

Inge Viermetz, Woman Acquitted At Nuremberg, Diane Marie Amann

FIU Law Review

Conventional narratives tend to represent the post-World War II international criminal proceedings as a men’s project, thus obscuring the many women who participated, as lawyers, journalists, analysts, interpreters, witnesses, and defendants. Indeed, two women stood trial before Nuremberg Military Tribunals. This article examines the case of the only woman found not-guilty: Inge Viermetz, who had been an administrator at Lebensborn, the Nazi SS adoption and placement agency. The article outlines the prosecution’s child-taking case against Viermetz, as well as her successful gendered self-portrayal as a conventionally feminine caregiver. With references to Professor Megan A. Fairlie, at whose memorial symposium it …

Should Hate Speech Be Criminalized? Lessons From The Canadian Experience In R V. Zundel And R V. Keegstra, Kenneth Grad

FIU Law Review

There is a global trend toward increased use of criminal law to combat hate speech. In assessing this trend, one should be mindful of the experience of countries that have long had criminal laws targeting harmful expression. Canada is one such country. Using the leading Canadian cases of R v. Zundel and R v. Keegstra, this article argues that the Canadian experience suggests the criminal law is a flawed mechanism for countering harmful expression. This is so for at least three reasons. First, hate-speech prosecutions may undermine the group dignity and sense of inclusion of minority groups. Second, criminal laws …

Prurient Interests: The Law Of Sexual Desire, Lawrence M. Friedman

FIU Law Review

A recent book by George Fisher tries to explain the history of drug and alcohol laws in terms of social and legal norms against whatever can rob people of rational thinking; this article extends the analysis to laws about sexual behavior in the last two centuries, their rise and fall.

Emergency Oversight, Catherine Baylin Duryea

FIU Law Review

This Article examines one of the most pressing questions in administrative law: How much judicial oversight should administrative agencies face during an emergency? This issue was particularly salient during the COVID epidemic, but it is not new. The Second World War saw a significant expansion and consolidation of the power of administrative agencies as well as experimentation with the appropriate oversight role for courts. This Article analyzes one such experiment: judicial oversight of agencies implementing wartime anti-inflationary measures, i.e. price controls and rationing. During the war, Congress created a specialized court, the Emergency Court of Appeals (ECA), to hear disputes …

Fifty Years Of Protecting The Surviving Spouse: The Origin And Evolution Of Florida's Elective Share, Flavia Argamasilla

FIU Law Review

Currently, Florida’s elective share framework calculates the amount a surviving spouse is entitled to based on a decedent’s “elective estate.” Although this “elective estate” represents a significant improvement from previous law, where a decedent was free to completely disinherit a surviving spouse, issues still loom regarding the fairness of the framework. Granting a surviving spouse a fixed share of 30 percent of the decedent’s “elective estate” regardless of the length of the marriage can lead to inequitable outcomes. For instance, a surviving spouse who was married to the decedent for any period of time, one month even, can elect to …

Under What Circumstances Is "Caste" Likely To Be Useful As An Analytic Concept (And Should We Care)?, Sanford V. Levinson, Robert L. Tsai

Faculty Scholarship

This Essay is the product of the 2025 “Constitutional Law Schmooze,” where academics from a variety of disciplines and from all over the country meet to discuss a common topic of constitutional law chosen by the moderator. This year’s topic was “caste.” The two of us, having written independent “tickets” of admission for the schmooze—i.e., short essays setting out our tentative thoughts about “caste”—turned out to be relative skeptics about the value of the term for lawyers. We are certainly not hostile to those who differ with us. This should be regarded as a “friendly dissent,” as distinguished, say, from …