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Scholarship In Review: A Response To David S. Schwartz's The Spirit Of The Constitution: John Marshall And The 200-Year Odyssey Of Mcculloch V. Maryland, Law Review Editors

Arkansas Law Review

We are elated to introduce, and the Arkansas Law Review is honored to publish, this series discussing and applauding David S. Schwartz’s new book: The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland. Schwartz sets forth meticulous research, coupled with unparalleled insight, into the opinion penned by Chief Justice John Marshall and details the winding path Marshall’s words have traveled over the past 200 years. Schwartz argues that the shifting interpretations of McCulloch, often shaped to satisfy the needs of the time, echoes the true spirit of the Constitution.

Special Rules Of Attribution Of Conduct In International Law, Marko Milanovic

International Law Studies

Are there are any special rules of attribution in international law? Are there, in other words, imputational rules that are not recognized as such in general international law, but are specific to particular branches of international law? This is the first article to systematically analyze the notion of special rules of attribution in international law. In particular, it searches for such rules in international humanitarian law, the law on the use of force, and European human rights law.

The article argues that, to the extent special rules of attribution exist, they are rare and never uncontroversial. In most situations, putative …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Designing Analog Learning Games: Genre Affordances, Limitations And Multi-Game Approaches, Owen Gottlieb, Ian Schreiber

Articles

This chapter explores what the authors discovered about analog games and game design during the many iterative processes that have led to the Lost & Found series, and how they found certain constraints and affordances (that which an artifact assists, promotes or allows) provided by the boardgame genre. Some findings were counter-intuitive. What choices would allow for the modeling of complex systems, such as legal and economic systems? What choices would allow for gameplay within the time of a class-period? What mechanics could promote discussions of tradeoff decisions? If players are expending too much cognition on arithmetic strategizing, could that …

Wire(Less) Tapping: Protecting Arkansans' Fourth Amendment Right In The Era Of The Cloud, Erin James

Arkansas Law Review

Every day we surround ourselves with dozens of devices that monitor our every move, every request, all connecting with one another and sending massive amounts of data back to the device manufacturers. The idea of the prosecution placing the little black cylinder of your Amazon Alexa on the witness stand and asking Alexa to testify against you seems like something pulled from an Orwellian nightmare. But, in reality, it is already occurring.

Climate Change And Causation: Joining Law And Climate Science On The Basis Of Formal Logic, Petra Minnerop, Friederike Otto

Buffalo Environmental Law Journal

No abstract provided.

Practical Alternatives To The Rule Of Joint And Several Liability: Regulatory Negligence As A Case Study, Boaz Segal

Buffalo Environmental Law Journal

No abstract provided.

Immunity From Suit For International Organizations: The Judiciary's New Que Of Separating Lawsuit Sheep From Lawsuit Goats, Ylli Dautaj

Indiana Journal of Global Legal Studies

I. Introduction

II. Immunity from Suit in Public International Law

(A) Sovereign Immunity

(i) Sources of Sovereign Immunity

(ii) Legal Theory on Sovereign Immunity

(iii) Doctrinal Evolution of Sovereign Immunity

(B) Jurisdictional Immunity for International Organizations

(C) Sovereign Immunity and Immunity for International Organizations

Domestically

III. Jam v. Int'l Finance Corporation:

A New Dawn for International Organizations in the United States

(A) Jam v. Int'l Finance Corporation: Majority View

(B) Jam v. Int'l Finance Corporation: Dissenting Opinion by Justice Breyer

IV. The Exception that Proves but does not Swallow the rule on Virtually

Absolute Immunity: Criticism of the Majority in …

The Need For A Historical Exception To Grand Jury Secrecy In The Federal Rules Of Criminal Procedure, Daniel Aronsohn

Loyola of Los Angeles Law Review

No abstract provided.

Without Personhood: The Missing Point Of Slaves In Missouri's Emancipation-By-Residency Freedom Suit Jurisprudence, 1824-1837, Jacob Alfred Brandler

Graduate Theses/Dissertations

From 1824 to 1837, the Supreme Court of Missouri developed a sophisticated caselaw establishing emancipation-by-residency—where a Missouri court could liberate an enslaved petitioner because of their residence in a free jurisdiction—as a basis of freedom suits. In 1852, however, the Court undermined the precedential value of those decisions and dismantled this basis when deciding Dred Scott’s case, Scott v. Emerson. Scholarship on Missouri’s freedom suits has highlighted how partisanship and the political atmosphere in Missouri as well as across the nation contributed to this outcome. This study adds to the historiography how the previous caselaw itself predisposed the result; …

Marshaling Mcculloch, Richard A. Primus

Reviews

David Schwartz’s terrific new book is subtitled John Marshall and the 200-Year Odyssey of McCulloch v. Maryland. But the book is about much more than Marshall and McCulloch. It’s bout the long struggle over the scope of national power. Marshall and McCulloch are characters in the story, but the story isn’t centrally about them. Indeed, an important part of Schwartz’s narrative is that McCulloch has mattered relatively little in that struggle, except as a protean symbol.

Long-Term Incarceration And The Moral Limits Of Punishment, Jacob Bronsther

Cardozo Law Review

Hundreds of thousands of Americans are serving decades-long prison sentences. While scholars have established that these sentences are both economically inefficient and destructive of minority communities, a fundamental question remains: Is long-term incarceration ever morally permissible? Understandably, the economists and sociologists of prison have not addressed this moral question. But neither have the philosophers of criminal law, who rarely consider sentencing issues. This Article seeks to fill this lacuna. It does so by reviving the moral and legal prohibition on degrading punishment. The Article argues that long-term incarceration is impermissibly degrading, on a par with the death penalty and penal …

Theories Of Prosecution, Jeffrey Bellin

Faculty Publications

For decades, legal commentators sounded the alarm about the tremendous power wielded by prosecutors. Scholars went so far as to identify uncurbed prosecutorial discretion as the primary source of the criminal justice system’s many flaws. Over the past two years, however, the conversation shifted. With the emergence of a new wave of “progressive prosecutors,” scholars increasingly hail broad prosecutorial discretion as a promising mechanism for criminal justice reform.

The abrupt shift from decrying to embracing prosecutorial power highlights a curious void at the center of criminal justice thought. There is no widely accepted normative theory of the prosecutorial role. As …

Conservative Minimalism And The Consumer Financial Protection Bureau, Jonathan H. Adler

Faculty Publications

While Chief Justice Roberts's votes do not hew closely to what either conservatives or progressives would have preferred, it is a mistake to assume the chief justice has been arbitrary or inconsistent. Rather, the October 2019 Term offered further confirmation that Chief Justice Roberts is a conservative minimalist. While his jurisprudential orientation remains quite conservative, he prefers narrow rulings over sweeping judgments. "If it's not necessary to decide more to dispose of a case, in my view it is necessary not to decide more," he explained in his confirmation hearings. At the same time, Chief Justice Roberts is reluctant to …

Dissent, Disagreement And Doctrinal Disarray: Free Expression And The Roberts Court In 2020, Clay Calvert

William & Mary Bill of Rights Journal

Using the United States Supreme Court’s 2019 rulings in Manhattan Community Access Corp. v. Halleck, Nieves v. Bartlett, and Iancu v. Brunetti as analytical springboards, this Article explores multiple fractures among the Justices affecting the First Amendment freedoms of speech and press. All three cases involved dissents, with two cases each spawning five opinions. The clefts compound problems witnessed in 2018 with a pair of five-to-four decisions in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. Partisan divides, the Article argues, are only one problem with First Amendment …

Jewish Law Perspectives On Judicial Settlement Practice, Shlomo Pill

Pepperdine Dispute Resolution Law Journal

The classic adjudicatory paradigm of opposing attorneys facing off at trial before a judge and jury in order to receive a favorable judgment is an image long past. Increased litigation volume, and the added time and expense of modern litigation has resulted in a rich practice of judges working to broker settlements between litigants in lieu of formal adjudication. Judicial settlement is the subject of much debate, however, and the diverse range of judicial practice in this area reflects the institutional, ethical, and jurisprudential uncertainties we still have regarding the propriety of judges facilitating settlements. This paper offers a new …

The Kavanaugh Court And The Schechter-To-Chevron Spectrum: How The New Supreme Court Will Make The Administrative State More Democratically Accountable, Justin Walker

Indiana Law Journal

In a typical year, Congress passes roughly 800 pages of law—that’s about a seveninch

stack of paper. But in the same year, federal administrative agencies promulgate

80,000 pages of regulations—which makes an eleven-foot paper pillar. This move

toward electorally unaccountable administrators deciding federal policy began in

1935, accelerated in the 1940s, and has peaked in the recent decades. Rather than

elected representatives, unelected bureaucrats increasingly make the vast majority

of the nation’s laws—a trend facilitated by the Supreme Court’s decisions in three

areas: delegation, deference, and independence.

This trend is about to be reversed. In the coming years, Congress will …

Legitimate Interpretation - Or Legitimate Adjudication?, Thomas W. Merrill

Cornell Law Review

Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much better account of actual practice. This Article argues that if we refocus the debate by asking what constitutes legitimate adjudication, as determined by the social practice of the parties and their lawyers who take part in adjudication, it is possible to develop an account of legitimacy that produces a much better ftt between theory and …

Chevron As Construction, Lawrence B. Solum, Cass R. Sunstein

Faculty Scholarship

In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. In cases that involve statutory construction, the argument on …

The Failure To Grapple With Racial Capitalism In European Constitutionalism, Jeffrey Miller

Scholarly Articles in Law Reviews & Journals

Since the 1980s prominent scholars of European legal integration have used the example of U.S. constitutionalism to promote a federal vision for the European Community. These scholars, drawing lessons from developments across the Atlantic, concluded that the U.S. Supreme Court had played a key role in fostering national integration and market liberalization. They foresaw the possibility for the European Court of Justice (ECJ) to be a catalyst for a similar federal and constitutional outcome in Europe. The present contribution argues that the scholars who constructed today’s dominant European constitutional paradigm underemphasized key aspects of the U.S. constitutional experience, including judgments …