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The Constitution, Invasion, Immigration, and the War Powers of States British Journal of American Legal Studies Pub Date : 2024-01-27 Robert G. Natelson, Andrew T. Hyman
By express and implied reservation, the Constitution permits states to wage defensive war and take other military action in response to invasion, insurrection, and transnational criminal gangs. This article examines the under-researched area of state war powers and how they interact with federal military and other foreign affairs powers. It also recovers the meaning of the Constitution’s term “invasion”
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Rise of Complete Substitutes and Fall of the Origination Clause in the Post-Ratification Era British Journal of American Legal Studies Pub Date : 2023-12-21 Daniel J. Smyth
The Constitution’s Origination Clause requires the House of Representatives, the chamber considered closest to the people, to originate all bills for raising revenue. This clause allows Senate amendments to these bills. However, may Senate amendments completely replace House revenue bills with new revenue bills, as occurred with the Affordable Care Act of 2010? My previous research argued the original
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Insurrection, Disqualification, and the Presidency British Journal of American Legal Studies Pub Date : 2023-12-14 John Vlahoplus
Section 3 of the Fourteenth Amendment provides in part that anyone who takes an oath as an officer of the United States to support its Constitution but engages in insurrection may not hold any civil or military office under it until Congress removes the disability by a two-thirds vote of each House. The insurrection of January 6, 2021, and the coming presidential election raise two pressing constitutional
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Magical Thinking and Appearance-based Recusal British Journal of American Legal Studies Pub Date : 2023-10-27 Zygmont Pines
This article is a critical analysis of a fundamental judicial ethic, the appearance of impartiality, an increasingly important public issue that is poorly understood and woefully underexamined in jurisprudence and academic literature. The ethic is pivotal to the determination of judicial disqualification, a/k/a recusal, and the public's fragile trust in the rule of law. The article explains how a mysterious
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From Crown Privilege to State Secrets1 British Journal of American Legal Studies Pub Date : 2023-10-06 William G. Weaver, Louis Fisher
The state secrets privilege is the most formidable evidentiary privilege available to the United States government. Available only to the executive branch, it is used to protect national security information from disclosure during litigation, and is habitually acquiesced to by courts. Once invoked, the privilege prevents covered material from being put into evidence that touches sensitive matters of
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Oh What Tangled Webs We Weave—Unpacking (and Unpicking) the Majority Opinion in Dobbs, State Health Officer of the Mississippi Department of Health et al. v. Jackson Women's Health Organization et al. British Journal of American Legal Studies Pub Date : 2023-10-06 Ian Loveland
This paper evaluates the majority judgment in the United States Supreme Court in Dobbs v. Jackson Women's Health Organization. It is suggested that much of what is said in the majority opinion ostensibly appears eminently defensible if viewed solely from a narrowly legalistic perspective. But closer analysis suggests that the majority's reasoning has some weaknesses when viewed within that limited
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Lear's Daughters? Unenumerated Fundamental Rights and the Constitution British Journal of American Legal Studies Pub Date : 2023-09-30 Thomas Halper
How to determine whether fundamental unenumerated constitutional rights exist, and if so, what they are? The questions are of obvious enormous importance—witness the current controversy over abortion—and yet courts have generally been content to address the issues superficially, sometimes, cavalierly. Their treatment of the most common rationale, an historical/traditional consensus, exemplifies this
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“Mad Passions of the Hour”: Key West and the Civil War British Journal of American Legal Studies Pub Date : 2023-09-07 Canter Brown
This review discusses two recent books that focus on Key West in the Civil War. Employing vastly different approaches, both works will have their share of admirers and detractors. Given the complexity of Key West's role in the Civil War, however, much fertile ground remains for future researchers.
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“Keeping Tabs”: Spanish Consular Activities in Key West, 1829–70 British Journal of American Legal Studies Pub Date : 2023-09-07 Sean T. Perrone
This essay describes the work of Spain's consuls in Key West between 1829 and 1870. Although Spain sold Florida to the United States in 1821, it retained a keen interest in Key West (primarily due to the city's proximity to Cuba). As their country's “eyes and ears,” Spain's consuls were expected to keep their superiors in Madrid briefed on the latest developments, a task they pursued with vigor.
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Island Musings: a Selective Bibliography of Early Key West British Journal of American Legal Studies Pub Date : 2023-09-07 Robin C. Schard
This bibliography identifies and describes 75 works that focus on Key West during its first 50 years (1821–71) as a U.S. possession. General, legal, and popular culture materials are included.
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Judge William Marvin and the Law of Salvage British Journal of American Legal Studies Pub Date : 2023-09-07 Steven F. Friedell
This essay explores the salvage decisions rendered by William Marvin during his time as a judge in Key West (1839–45; 1847–63). It also discusses his celebrated treatise on salvage law (1858), which cemented his reputation as one of America's leading authorities on maritime law. Lastly, it recounts how Marvin superintended the city's notorious wrecking industry.
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The Confederate Law of Prize British Journal of American Legal Studies Pub Date : 2023-09-07 John Paul Jones
This essay describes the prize law of the Confederate States of America. Due to the Union's blockade of the South's coastline, Confederate judges heard very few prize cases. But when they did, they closely hewed to the prize law of the United States.
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Mr. Marvin Goes to Key West British Journal of American Legal Studies Pub Date : 2023-09-07 James M. Denham
This essay provides a sketch of William Marvin's first decade in Key West (1835–45). In this period, Marvin, originally from New York, served as the territory's U.S. district attorney (1835–39) and its second territorial judge (1839–45). It was during this time that Marvin became acquainted with the city's wrecking industry and began to develop his interest in salvage law.
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The Confederate Admiralty Court at Key West British Journal of American Legal Studies Pub Date : 2023-09-07 Robert M. Jarvis
In 1861, the Confederate States of America authorized the establishment of a “Court of Admiralty and Maritime Jurisdiction” at Key West. Although a judge was appointed, the court never sat because the island remained in Union hands throughout the Civil War. After first describing the court's creation and staffing, this article highlights the various procedural and practical problems the court would
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A Key West “jack-of-all-trades”: The Strange Life, and Peculiar Death, of Dr. Daniel W. Whitehurst British Journal of American Legal Studies Pub Date : 2023-09-07 Robert M. Jarvis
In 1845, lawyer-turned-physician Daniel W. Whitehurst, originally from Virginia, moved to Key West. By the time of his death in 1872, Whitehurst had served as the city's mayor, state senator, and captain of its rebel guard. Nevertheless, Whitehurst now is an unknown figure. Buried with him is his cause of death, which may have been suicide.
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The Schooner Enterprise: a Forgotten Key West Murder Case British Journal of American Legal Studies Pub Date : 2023-09-07 Robert M. Jarvis
In 1859, Key West found itself transfixed by a sensational criminal trial. Styled United States v. Carcer, Eloy, and Davis, and presided over by William Marvin, the island's legendary federal judge, the case involved a mutiny-murder aboard the slave ship Enterprise. Although famous in its day, the tale has been all but forgotten due to the Great Key West Fire of 1886, which destroyed nearly every record
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Great Britain and the Confederacy British Journal of American Legal Studies Pub Date : 2023-09-07 Michael J. Slinger
This essay describes the efforts of the Confederate States of America to convince Great Britain to support its secession from the United States. Although the South's leaders were confident that Britain's need for cotton would lead it to become an ally, numerous factors—including the British public's aversion to slavery—contributed to the country remaining neutral.
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The Great Synthesizer: Natural Rights, the Law of Nations, and the Moral Sense in the Philosophical and Constitutional Thought of James Wilson British Journal of American Legal Studies Pub Date : 2023-07-22 Derek A. Webb
This article argues that the key to understanding James Wilson, one of the leading architects of the Constitution and the first Supreme Court Justice to be sworn in, and yet arguably the most neglected and misunderstood figure from the founding generation, is as a “great synthesizer” of seemingly disparate philosophical and constitutional commitments. Drawing upon the natural rights tradition of early
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A Dark Shadow: The Intensification and Expansion of Lethal Injection Drug Secrecy British Journal of American Legal Studies Pub Date : 2023-04-29 Austin Sarat, Theo Dassin, Aidan Orr
Over the last decade, many death penalty states in the United States have enacted secrecy laws shielding the identity of lethal injection drug suppliers and executioners. Death penalty defense lawyers, legislators, and scholars have examined the constitutionality and efficacy of these laws. However, little attention has been paid to the history of death penalty secrecy and its relationship to existing
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King Mob and Contempt of Congress British Journal of American Legal Studies Pub Date : 2023-02-04 Joshua T. Carback
The aftershocks of the riot at the United States Capitol on January 6, 2021, continue to ripple through the American public square. The United States Department of Justice brought over 750 criminal charges against the assailants. The United States House of Representatives appointed a Select Committee to investigate the riot. And the public continues to discuss the meaning of January 6 as these criminal
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An Overview of Environmental Justice in Brazil British Journal of American Legal Studies Pub Date : 2022-12-15 Ricardo Perlingeiro, Luísa Silva Schmidt
This article discusses environmental conflict resolution in Brazil in both the administrative and judicial spheres, with the aim of analyzing the configuration of the bodies in charge of such adjudication, the procedural instruments at their disposal, and the main types, grounds and effects of environmental claims. An overview of the Brazilian system is evaluated based on the criteria of judicial and
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Keeping It Complex With Philip Hunton, John Locke, and the United States Federal Judiciary: On the Merit of Murkiness in Separation of Powers Jurisprudence British Journal of American Legal Studies Pub Date : 2022-12-13 Michelle M. Kundmueller
This article draws on the resources of a little-known political theorist, Philip Hunton, to explain the function of “murky” jurisprudence in the maintenance of separation of powers over time. In the era immediately before the drafting of the United States Constitution, separation of powers was a touted remedy to tyranny. But if government is thus moderated, a critical question arises: who will judge
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Constructing Race British Journal of American Legal Studies Pub Date : 2022-12-06 Thomas Halper
The legal construction of race has assumed considerable importance for affirmative action and other purposes. But buffeted by racist tropes from an earlier day and simple self interest, the construct has become a nest of irrationalities and inconsistencies.
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Nomos, Narrative, and Nephi: Legal Interpretation in the Book of Mormon British Journal of American Legal Studies Pub Date : 2022-11-12 Nathan B. Oman
The Book of Mormon helped launch one of America's most successful religions, and millions around the world accept it as scripture. It is thus one of the more influential books to have been published in the United States. Ironically, precisely because of its role in the founding of Mormonism, the text of the Book of Mormon has often been ignored. Recently, however, the Book of Mormon has begun to attract
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Government Speech British Journal of American Legal Studies Pub Date : 2022-11-12 Thomas Halper
The First Amendment commands government neutrality in regulating private speech, but government speech itself is exempt from this requirement. Courts have recognized that governance entails educational, informational, and persuasive speech, and have focused on distinguishing government speech from nongovernment speech. Some critics have argued that, instead, courts might do well to target government
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The Time-traveling Lawyer: Using Time Travel Stories and Science Fiction in Legal Education British Journal of American Legal Studies Pub Date : 2022-11-12 Jennifer Zedalis
Science fiction and time travel can be used to inform and enhance the education of law students in profound ways. Within the broader field of law and literature, the relationship between law and science fiction, especially time travel stories, is rich and useful. Themes and concepts in time travel can be applied in the exploration of existing legal philosophies as well as a more expansive and engaging
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The Power to Restrict Immigration and the Original Meaning of the Constitution's Define and Punish Clause British Journal of American Legal Studies Pub Date : 2022-11-12 Robert G. Natelson
The Supreme Court and constitutional commentators have long struggled to identify the provision in the Constitution, if any, that grants Congress authority to restrict immigration. This article demonstrates that authority to restrict immigration is included within the Constitution's grant of power to Congress to “define and punish . . . Offenses against the Law of Nations.” U.S. Const. art. I, § 8
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Article V and the Law of Constitutional Conventions British Journal of American Legal Studies Pub Date : 2022-10-13 Roman J. Hoyos
Can an Article V convention be limited? While there is an emerging consensus that it can, in this paper I focus on John A. Jameson's legal treatise on constitutional conventions and the jurisprudence it spawned to help round out our understanding of both Article V in particular, and of constitutional revision more generally. Jameson's treatise was directed to the larger question of whether constitutional
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Donald Trump's Clemencies: Unconventional Acts, Conventional Justifications British Journal of American Legal Studies Pub Date : 2022-09-12 Austin Sarat, Laura Gottesfeld, Carolina Kettles, Olivia Ward
During his four years as President Donald Trump's use of the clemency power generated considerable controversy. Much scholarship documents the fact that he ignored the traditional procedures for reviewing and approving requests for pardons and commutations. Trump used clemency to favor a rogues gallery of cronies, celebrities and those whose crimes showed particular contempt for the law. However, few
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Founding Authority: Authority, the Authoritative, and John Marshall's McCulloch British Journal of American Legal Studies Pub Date : 2022-08-20 Simon Gilhooley
Lacking the powers of the “purse or the sword,” the U.S. Supreme Court is particularly dependent upon maintaining “authority” in order to ensure recognition of its constitutional rulings. Such authority allows the Court to operate against the majority and to survive as a political institution despite lacking a basis in popular will. In one understanding of the Court's position, that authority sits
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Orwellian Opinions: The Language of Power and the Power of Language British Journal of American Legal Studies Pub Date : 2022-06-22 Thomas Halper
In 1984 and other writings, George Orwell explored the language of power and the power of language. As illustrations of the abuses he identified, this essay analyzes a pair of famous constitutional opinions, Justice Brown's Plessy v. Ferguson and Justice Douglas’ Griswold v. Connecticut.
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Administrative Functions of Implementation, Control of Administrative Decisions, and Protection of Rights British Journal of American Legal Studies Pub Date : 2021-04-01 Ricardo Perlingeiro
Abstract This essay includes a comparative analysis of the traditions of administrative law in Latin American and their impact on the contemporary scene and trends in the general orientations of its administrative justice systems. This analysis is limited to Latin American countries of Iberian origin under the jurisdiction of the Inter-American Court of Human Rights (“I/A Court H.R”). The method followed
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Law as a Language, Law as an Art: Reflections on James Boyd White's Keep Law Alive British Journal of American Legal Studies Pub Date : 2021-01-29 H. Jefferson Powell
Abstract Keep Law Alive, the latest book by law and literature scholar James Boyd White, is an important apologia for the traditional understanding and practice of law in the United States. Law, White argues, has served as a language in a sense closely parallel to what we mean by referring to English or Spanish as a language: law provides those fluent in it with the tools to describe the social world
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Justice Holmes and the Question of Race British Journal of American Legal Studies Pub Date : 2021-01-21 Thomas Halper
Abstract Notwithstanding his youthful dalliance with abolitionism, Holmes’ votes and opinions in Supreme Court cases involving race reveal a stubborn indifference to discrimination on a range of issues. Whether this reflects a cold personal aloofness, a preoccupation with life as struggle, a commitment to judicial restraint or merely an insensitivity pervading the enlightened opinion of the day, his
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The Engineers Case Centenary: SCOTUS and the Origins of Australia's Scabrous Constitutional Signature British Journal of American Legal Studies Pub Date : 2021-01-06 Benjamen Franklen Gussen,Sahar Araghi
Abstract Since the Engineers Case decision in 1920, the role of the United States Constitution in interpreting the Australian Constitution has been diminished, leading to inefficiencies in High Court of Australia (HCA) dealing with constitutional issues. To explain this thesis, the article looks at the 7,657 cases decided by the HCA, from the first case in 1903, to the 31st of August 2020, the centenary
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Apportionment, Allegiance, and Birthright Citizenship British Journal of American Legal Studies Pub Date : 2020-12-18 John Vlahoplus
Abstract Trump v. New York appears to present the Supreme Court with a simple question of statutory construction: do federal statutes allow the President to exclude unlawfully resident aliens from the apportionment of seats in the House of Representatives? The President claims that they do. A three-judge District Court ruled that they do not. However, many arguments for the President go further and
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A Global Constitutional Dialogue on Human Rights Challenges for the Judiciary in the 21st Century: Nine Challenges for Contemporary Judges British Journal of American Legal Studies Pub Date : 2020-12-12 Michael Kirby
Article A Global Constitutional Dialogue on Human Rights Challenges for the Judiciary in the 21st Century was published on 12 Dec 2020 in the journal British Journal of American Legal Studies (Volume 9, Issue 3).
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Human Rights Challenges in Brazil: Children and Vulnerable Persons British Journal of American Legal Studies Pub Date : 2020-10-09 Guilherme Calmon Nogueira da Gama
Abstract The vulnerability of children, the elderly and people with disabilities, as minority social groups, attracts special protection not only in Brazilian law, but also in international treaties of human rights. This Article presents an overview of this issue, and identifies the challenges related to the effectiveness of the juridical protection available to these groups.
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The Living Constitution and the (Almost) Dead Contracts Clause British Journal of American Legal Studies Pub Date : 2020-08-04 Thomas Halper
Abstract Under pressure to adapt to changing circumstances, the contract clause, though expressed in absolute terms, may now be violated for almost any reason at all. The living Constitution, in short, has virtually killed what was once a key constitutional provision.
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Persuasive or Pipe Dream? The Potential Influence of the Feminist Judgments Project on Future Judical Decision Making British Journal of American Legal Studies Pub Date : 2020-08-04 Kate Webber Nuñez
Abstract The Feminist Judgments Project (“FJP” or the “Project”) rewrites existing judicial opinions from a feminist perspective. This article explores whether and how the FJP's alternative jurisprudence can influence future legal decisions. The FJP seeks to change the law by revealing unconscious bias and opening judicial minds to previously unknown perspectives - a method that draws on psychological
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Oceans Apart?: The Rule of Lenity in Australia and the United States British Journal of American Legal Studies Pub Date : 2020-08-04 Julian R Murphy
Abstract Occasionally traced back to Byzantine times, the rule that penal statutes are to be interpreted strictly in favor of the subject, also known as the rule of lenity, now finds expression in common law countries across the world. This Article compares the origins and evolution of the rule in Australia and the United States. The comparison is timely because of the current uncertainty in both jurisdictions
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Modernity, the Commons and Capitalism British Journal of American Legal Studies Pub Date : 2020-08-04 George Skouras
Abstract The modern way of life and reflected in modern political philosophy is directed by capitalist activity of both commodities and persons. Entities that do not have commodity value are worthless to the capitalist enterprise, regardless of any intrinsic value in themselves. Modernity is capitalist modernity. Modernity has given preference for objects/commodities over persons. This paper will argue
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Innocence is Not Enough: The Public Life of Death Row Exonerations British Journal of American Legal Studies Pub Date : 2020-08-04 Austin Sarat, Natalie Morgan, Willa Grimes, Obed Narcisse, Jeremy Thomas
Abstract Miscarriages of justice and wrongful convictions are a pervasive reality in America's criminal justice system. In this paper we examine news coverage of miscarriages of justice in the death penalty system and the release of death row inmates to understand what we call the public life of exonerations. We examine the way newspapers tell the story of exonerations and the various tilts and tendencies
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Declared War and American Victory: A Search for Effective Commitment British Journal of American Legal Studies Pub Date : 2020-08-04 Slade Mendenhall
Abstract This Article argues that the act of formally declaring war entails a measure of explicit commitment on the part of American political actors that raises the cost of failure and motivates politicians to see engagements through to a decisive end, fulfilling the role of a contract or institutional commitment device. It argues that undeclared conflicts, lacking such a device, are more likely to
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The Brazilian Constitution: Context, Structure and Current Challenges British Journal of American Legal Studies Pub Date : 2020-07-24 Vanice Regina Lirio do Valle
Abstract The Brazilian Constitution was enacted over 31 years ago, and it pioneered several constitutional changes in Latin America, in line with a transformational project which was to be achieved through the protection of human rights including socioeconomic rights. Three decades of this constitutional experience have highlighted aspects in which the original design has proven to be too ambitious
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Freedom of Religion in the Brazilian Supreme Court in a Period of Three Decades British Journal of American Legal Studies Pub Date : 2020-07-14 Fernanda Duarte, Rafael Mario Iorio Filho
Abstract Judicial institutions which provide legal mechanisms for conflict resolution play an important role in maintaining the social order of complex societies. Weaknesses in the performance of their duties can contribute to social conflict developing into outright violence that will be beyond the management of law and the courts. In this sense it is strategic to study the judicial system and the
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Fear and Loathing in Legal Academia: Legal Academics’ Perceptions of Their Field and Their Curious Imaginaries of How ‘Outsiders’ Perceive It British Journal of American Legal Studies Pub Date : 2020-05-29 Nicolette Priaulx, Martin Weinel, Willow Leonard-Clarke, Thomas Hayes
Abstract This article concerns the question of how legal academics imagine ‘outsiders’ perceive legal academia. Centralising our empirical work undertaken at a UK research intensive University which explored the attitudes, beliefs and knowledges of non-legal academics about the field of legal academia, we focus on the findings flowing from benchmarking surveys with legal academics which invited self-evaluations
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Revisiting Death’s Difference: The Philosophical Anthropology of the U.S. Death Penalty and the Impossibility of Capital Due Process British Journal of American Legal Studies Pub Date : 2020-05-29 G.P. Marcar
Abstract Within the United States, legal challenges to the death penalty have held it to be a “cruel and unusual” punishment (contrary to the Eighth Amendment) or arbitrarily and unfairly enacted (contrary to the Fifth and Fourteenth Amendments). The Eighth Amendment requires that punishments not be disproportionate or purposeless. In recent rulings, the U.S. Supreme Court has adopted a piecemeal approach
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Joseph A. Greenaway Jr. Lecture Series on Law and Justice British Journal of American Legal Studies Pub Date : 2020-05-29 Joseph A. Greenaway
Abstract This lecture given at Birmingham City University School of Law, March 21, 2019 considers the origins of the right to silence in the jurisprudence of the Supreme Court of the United States and compares the constitutional protections against self-incrimination with those of the United Kingdom. It notes that the effect of the changes introduced by the Police and Criminal Evidence Act 1984 and
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Directions for the Study of Masculinity: Beyond Toxicity, Experience, and Alienation British Journal of American Legal Studies Pub Date : 2020-05-29 Dylan A. Yaeger
Abstract The relationship between the law and masculinity has not been as thoroughly examined as the relationship between the law and feminism or, more generally, between the law and gender. Yet, the reach of masculinity stretches deep into the very fiber of the law. Masculinity has for too long served as an invisible bedrock on which the law founded both its substance and method. The struggle for
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William O. Douglas and The Assault on Objectivity British Journal of American Legal Studies Pub Date : 2020-05-29 Thomas Halper
Abstract William O. Douglas, venerated by some and reviled by others, was very much his own man, disdaining his colleagues on the bench and the work they produced. For him, the point of judging was simply to do justice. However, justice is not always self evident, and legal norms and values, like objectivity and stare decisis, are ignored at a high cost. Nor, as it turns out, was his carefully carved
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Moral Cognition in Criminal Punishment British Journal of American Legal Studies Pub Date : 2020-05-29 Jason R. Steffen
Abstract Scholars often appeal to Kant in defending a retributivist view of criminal punishment. In this paper, I join other scholars in rejecting this interpretation as insufficiently attentive to Kant's wider theory of justice, particularly as found in the Rechtslehre, a section of the Metaphysics of Morals. I then turn to the Tugendlehre, where I examine analogies between Kant's treatments of morality
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A Structuralist Concept of the Rule of Law British Journal of American Legal Studies Pub Date : 2020-05-22 Alani Golanski
AbstractThe prevalent approach to the concept of the rule of law among legal theorists puts attributes first, assigning certain features of laws and sometimes legal systems as rule-of-law virtues. Inquiring at a more basic level, this paper advances a novel, structuralist view of the rule of law. While honoring theoretical constraints that guard against diluting the rule-of-law concept too thinly as
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(Mis)judging Ordinary Meaning?: Corpus Linguistics, the Frequency Fallacy, and the Extension-Abstraction Distinction in “Ordinary Meaning” Textualism British Journal of American Legal Studies Pub Date : 2019-12-01 Shlomo Klapper
Abstract Rarely is a new yardstick of legal meaning created. But over the past decade, corpus linguistics has begun to be utilized as a new tool to measure ordinary meaning in statutory interpretation and original public meaning in constitutional interpretation. The legal application of corpus linguistics posits that an examination of every use of a term in a wide variety of documents can yield a more
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“Felix Cohen Was the Blackstone of Federal Indian Law:” Taking the Comparison Seriously British Journal of American Legal Studies Pub Date : 2019-12-01 Adrien Habermacher
Abstract This paper explores the many facets of Rennard Strickland’s comparison between Sir William Blackstone, author of the 1765–69 Commentaries on the Laws of England, and Felix Cohen, architect of the 1942 Handbook of Federal Indian Law. It consists of a side by side analysis of both authors’ master works, political and educational projects, as well as general contribution to jurisprudence. It
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The Environment, A Bipartisan Issue?: Partisanship Polarization and Climate Change Policies in the United States British Journal of American Legal Studies Pub Date : 2019-12-01 Valentina Dotto,Anne Richardson Oakes
Abstract Responding to climate change presents significant challenges on both international and domestic fronts. The current U.S. federal government disclaims a connection between climate change, and human activity, and embraces an environmental program that includes withdrawal from the Paris Climate Change Agreement at international level and retrenchment from regulation domestically. This Article
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Henry Friendly and the Incorporation of the Bill of Rights British Journal of American Legal Studies Pub Date : 2019-12-01 Thomas Halper
Abstract This essay analyzes the response of one of America’s pre-eminent judges, Henry Friendly, to one of the most far reaching constitutional developments of his time and our time, the incorporation of the Bill of Rights into the Fourteenth Amendment’s Due Process Clause. In the course of addressing the issue, Friendly raised profound concerns about constitutional construction, federalism, the rule
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Law and Religion in Plymouth Colony British Journal of American Legal Studies Pub Date : 2019-12-01 Scott Douglas Gerber
Abstract 2020 marks the 400th anniversary of the planting of Plymouth Colony. Although the literature about Plymouth is voluminous, the discussion about law and religion has been inappropriately superficial to date. This article addresses the Pilgrims’ conception of law on matters of religion and the new insights into the Pilgrims’ story that can be ascertained by focusing on law. “Law” has been defined
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Cartel Control of Attorney Licensure and the Public Interest* British Journal of American Legal Studies Pub Date : 2019-12-01 Robert C. Fellmeth,Bridget Fogarty Gramme,C. Christopher Hayes
Abstract The purpose of regulating any profession is to assure competent practitioners, particularly where its absence can cause irreparable harm. Regulatory “licensing” ideally achieves such assurance, while at the same time avoiding unnecessary supply constriction. The latter can mean much higher prices and an inadequate number of practitioners. Regrettably, the universal delegation to attorneys
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To Kill a Mockingbird and Legal Ethics: On the Role of Atticus Finch’s Attic Rhetoric in Fulfillment of Duties to Client, to Court, to Society, and to Self British Journal of American Legal Studies Pub Date : 2019-12-01 Michelle Kundmueller
Abstract Atticus Finch, protagonist of Harper Lee’s To Kill a Mockingbird and longtime hero of the American bar, is well known, but he is not well understood. This article unlocks the secret to his status as the most admired of fictional attorneys by demonstrating the role that his rhetoric plays in his exemplary fulfillment of the duties of an attorney to zealously represent clients, to serve as an