British Journal of American Legal Studies最新文献

{"title":"Sanctuary Cities: A Study in Modern Nullification?","authors":"L. M. A. Simonis","doi":"10.2478/bjals-2019-0002","DOIUrl":"https://doi.org/10.2478/bjals-2019-0002","url":null,"abstract":"Abstract Since Donald Trump’s election as President of the United States, the sanctuary movement has gained prominence as a form of resistance to federal immigration policy. Sanctuary cities and states have attempted to frustrate the Trump administration’s immigration agenda by refusing to cooperate with Immigration and Customs Enforcement’s (ICE’s) efforts to remove aliens illegally residing in the United States. Academics, pundits and politicians have compared this resistance and non-cooperation to “nullification,” a doctrine typically associated with the South Carolina Nullification Crisis of the 1830s and the Virginia and Kentucky Resolutions of 1798. This article rejects comparisons between the sanctuary movement and nullification as false equivalencies and explains why the sanctuary movement is not a form of modern nullification. Rather, it suggests the movement is better understood as being similar to “interposition”—a doctrine related to, but distinct from, nullification. In doing so, this paper will clarify the meaning of nullification and interposition by analyzing the developments of these doctrines. Part 1 of this article discusses the historical, theoretical and practical aspects of South Carolina-style nullification, and compares these to that of the sanctuary movement. Part 2 explores the development of nullification and interposition more broadly, with a particular focus on the Virginia and Kentucky Resolutions of 1798. Finally, Part 3 directly compares the sanctuary movement, nullification and interposition, and it connects the movement to the “anti-commandeering” doctrine articulated by the Supreme Court in the 1990s.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"524 ","pages":"37 - 81"},"PeriodicalIF":0.0,"publicationDate":"2019-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41278567","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Normative and Institutional Dimensions of Rights’ Adjudication Around the World","authors":"P. C. D. Sousa","doi":"10.2478/bjals-2019-0005","DOIUrl":"https://doi.org/10.2478/bjals-2019-0005","url":null,"abstract":"Abstract The implications of incommensurability for rights’ adjudication tend to be overlooked in much of contemporary constitutional theory. This paper criticizes the dominant “one right-answer” approach to conflicts of rights, and develops an alternative approach that is better suited to constitutional rights’ adjudication in contemporary pluralistic legal orders. It is submitted that the normative reasons for having courts undertake the value-choices implicit in constitutional rights’ adjudication, and for preferring certain legal methodologies over others, must reflect the role of courts in resolving social disputes in the light of specific aspects of the economic, social, and legal life of the polities in which those courts operate. It is further argued that any theory that builds from this approach needs to answer two inter-related questions: when is constitutional rights’ adjudication by courts appropriate, and how rights’ adjudication should be pursued.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"8 1","pages":"139 - 164"},"PeriodicalIF":0.0,"publicationDate":"2019-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42818956","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Law and Religion in Plymouth Colony","authors":"S. Gerber","doi":"10.2478/BJALS-2019-0016","DOIUrl":"https://doi.org/10.2478/BJALS-2019-0016","url":null,"abstract":"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 in many different ways by many different people throughout history. Aristotle, Cicero, Thomas Aquinas, and other proponents of natural law argued that law is the exercise of reason to deduce binding rules of moral behavior from nature’s or God’s creation. The renowned English positivist John Austin, in contrast, maintained that law is the command of the sovereign. To Karl von Savigny and other proponents of the so-called historical school, law is the unconscious embodiment of the common will of the people. To the philosophical school, law is the expression of idealized ethical custom. The dominant contemporary view seems to be that law is the reflection of social, political, and economic interests. For the Pilgrims of Plymouth Colony, law was both the memorialization of their commitment to the Word of God and an instrument for exercising social control so as to effectuate that commitment. The Pilgrims, of course, used law to regulate the more mundane aspects of life as well. Indeed, quantitatively speaking, more laws were enacted by the Pilgrims that addressed the day-to-day activities of life in Plymouth Colony than memorialized the Pilgrims’ commitment to eternal glory in the afterlife, but the latter was unquestionably more important, qualitatively speaking, than the former. In the oft-quoted words of a young William Bradford, “to keep a good conscience, and walk in such a way as God has prescribed in his Word, is a thing which I must prefer before you all, and above life itself.”","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"8 1","pages":"167 - 191"},"PeriodicalIF":0.0,"publicationDate":"2019-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44377545","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The U.S. Constitution’s Emoluments Clauses: How History, Behavioral Psychology, and the Framers’ Understanding of Corruption All Require an End to President Trump’s Conflicts of Interest","authors":"D. Mayer, A. Sulkowski","doi":"10.2478/bjals-2018-0010","DOIUrl":"https://doi.org/10.2478/bjals-2018-0010","url":null,"abstract":"Abstract The two Emoluments Clauses in the U.S. Constitution forbid federal officials from accepting “any present, Emolument, Office, or Title, of any kind whatsoever” from foreign or domestic governments. President Donald Trump’s business interests generate numerous opportunities to use public office for his personal benefit. This article examines the history of the Emoluments Clauses and the Framers’ conception of corruption. The conflicts of interest alleged in pending emoluments lawsuits against President Trump would not be allowable in the private sector, and various plaintiffs argue that the Emoluments Clauses apply to all public officials, including the President. The President’s lawyers have claimed he is exempt from the application of these clauses and have raised numerous procedural objections, such as challenging who might have” standing” to bring a lawsuit to compel his compliance with the clauses. Out of three cases filed in 2017, one has been dismissed, while two judges have recognized that the plaintiffs have standing. In each lawsuit, the President’s lawyers insist on a conception of corruption that is quid pro quo, where only bargained for exchanges count as corruption. While the Emoluments Clauses require public officials to get Congressional permission before receiving such benefits, the President’s position is that Congress must first demand an accounting of any personal benefits, rather than the burden being on the President to ask permission. Thus far, two courts have rejected that approach, and as of this writing, further appeals can be expected.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"7 1","pages":"257 - 289"},"PeriodicalIF":0.0,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47977789","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Curious Incident of Trump and the Courts: Interbranch Deference in an Age of Populism","authors":"Bruce G. Peabody","doi":"10.2478/BJALS-2018-0011","DOIUrl":"https://doi.org/10.2478/BJALS-2018-0011","url":null,"abstract":"Abstract Given President Donald Trump’s generally non-deferential posture towards national political and governing institutions, why hasn’t his administration produced greater tension with respect to judges, courts, and established norms of judicial independence? Increased politicization of the judiciary, deepening partisanship, and distinct attributes of the President himself all seem to set up a climate of interbranch confrontation likely to challenge judicial independence norms. But at least in the first two years of this presidency, sustained opposition to courts is not evident. This analysis documents and accounts for this puzzle, ultimately contending that the President’s unexpected (and admittedly fragile) institutional comity can be traced to his personal history of relying on legal safeguards and authority as well as a complex stew of partisan and ideological uncertainty about the future direction of courts.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"7 1","pages":"237 - 256"},"PeriodicalIF":0.0,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43523999","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Lying and the First Amendment","authors":"T. Halper","doi":"10.2478/bjals-2018-0007","DOIUrl":"https://doi.org/10.2478/bjals-2018-0007","url":null,"abstract":"Abstract The first amendment does not protect all speech. Should it protect lies? Some argue that the state should intervene to prevent and punish lying because the people are insufficiently rational (they are too emotional, and, therefore vulnerable) or excessively rational (they find it too costly to investigate claims and are, therefore, vulnerable). Others retort that state officials are not neutral or objective, but have their own interests to advance and protect, and, therefore, cannot be trusted. Though certain kinds of lying, like fraud and perjury, are clearly not protected speech, courts have recently seemed sympathetic to the view that the proper response to lying is not government action, but the workings of the marketplace of ideas. The distinguished economist, Ronald Coase, has taken this argument much farther, applying it to commercial speech, but thus far his views have not prevailed.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"7 1","pages":"401 - 423"},"PeriodicalIF":0.0,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41875429","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Posner’s Folly: The End of Legal Pragmatism and Coercion’s Clarity","authors":"Joseph D'Agostino","doi":"10.2478/BJALS-2018-0009","DOIUrl":"https://doi.org/10.2478/BJALS-2018-0009","url":null,"abstract":"Abstract Highly influential legal scholar and judge Richard Posner, newly retired from the bench, believes that law is irrelevant to most of his judicial decisions as well as to most constitutional decisions of the U.S. Supreme Court. His recent high-profile repudiation of the rule of law, made in statements for the general public, was consistent with what he and others have been saying to legal audiences for decades. Legal pragmatism has reached its end in abandoning all the restraints of law. Posner-endorsed “epistemological democracy” obscures a discretion that is much worse than the rule of law promoted by epistemological authoritarianism. I argue that a focus on conceptual essentialism and on the recognition of coercive intent as essential to the concept of law, both currently unpopular among legal theorists and many jurists, can clarify legal understandings and serve as starting points for the restoration of the rule of law. A much more precise, scientific approach to legal concepts is required in order to best ensure the rational and moral legitimacy of law and to combat eroding public confidence in political and legal institutions, especially in an increasingly diverse society. The rational regulation by some (lawmakers) of the real-world actions of others (ordinary citizens) requires that core or central instances of concepts have essential elements rather than be “democratic.” Although legal pragmatism has failed just as liberal theory generally has failed, the pragmatic value of different conceptual approaches is, in fact, the best measure of their worth. Without essentialism in concept formation and an emphasis on coercion, the abilities to understand and communicate effectively about the practical legal world are impaired. Non-essentialism grants too much unwarranted discretion to judges and other legal authorities, and thus undermines the rule of law. Non-essentialist or anti-essentialist conceptual approaches allow legal concepts to take on characteristics appropriate to religious and literary concepts, which leads to vague and self-contradictory legal concepts that incoherently and deceptively absorb disparate elements that are best kept independent in order to maximize law’s rationality and moral legitimacy. When made essentialist, the concept of political positive law shrinks, clarifies, and reveals its true features, including the physically-coercive nature of all laws and the valuable method of tracing the content of law by following its coercive intents and effects.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"7 1","pages":"365 - 400"},"PeriodicalIF":0.0,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41795286","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constitutional Coup? The Case that Promulgated a New Constitution for Montana","authors":"Robert G. Natelson","doi":"10.2139/SSRN.3263685","DOIUrl":"https://doi.org/10.2139/SSRN.3263685","url":null,"abstract":"Abstract This Article examines one of the most important state court cases ever decided. In Montana ex rel. Cashmore v. Anderson, the Montana Supreme Court exercised its original jurisdiction to order, by a 3-2 margin, that the state’s original constitution be replaced with one the people apparently had failed to ratify. In doing so, the court yielded to interest groups that favored replacing the original state constitution with an instrument based on radically different premises. Political threats may have caused the swing justice to vote for the new constitution, but even if that did not occur, the case represents a striking example of the failure of the rule of law. The Article also proposes reforms that may reduce the chances of a recurrence.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"7 1","pages":"317 - 364"},"PeriodicalIF":0.0,"publicationDate":"2018-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42424825","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Declared War and American Victory: A Search for Effective Commitment","authors":"Slade Mendenhall","doi":"10.2139/ssrn.3455458","DOIUrl":"https://doi.org/10.2139/ssrn.3455458","url":null,"abstract":"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 end on less decisive and less favorable terms to the United States. On this basis, it explains the emergence of a decades-long trend of protracted, unsuccessful, and indecisive military engagements by the United States as having emerged from the erosion of a constitutionally established separation of powers with respect to the initiation and administration of foreign military conflicts. In defense of this theory, it uses case studies to assess the relevance of its predictions and to weigh potential objections involving selection bias and imperfect information.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"9 1","pages":"261 - 322"},"PeriodicalIF":0.0,"publicationDate":"2018-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47691023","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Holmes Truth: Toward a Pragmatic, Holmes-Influenced Conceptualization of the Nature of Truth","authors":"Jared Schroeder","doi":"10.2478/BJALS-2018-0005","DOIUrl":"https://doi.org/10.2478/BJALS-2018-0005","url":null,"abstract":"Abstract Truth as a fundamental ingredient within the flow of discourse and the application of freedom of expression in democratic society has historically received considerable attention from the U.S. Supreme Court. Many of the Court’s central precedents regarding First Amendment concerns have been determined by how justices have understood truth and how they have conceptualized the complex relationship truth and falsity share. Despite the attention truth has received, however, the Court has not provided a consistent understanding of its meaning. For these reasons, this article examines how the Supreme Court has conceptualized truth in freedom-of-expression cases, ultimately drawing upon the results of that analysis, as well as pragmatic approaches to philosophy, the so called “pragmatic method” put forth by American philosopher William James, to propose a unifying conceptualization of truth that could be employed to help the Court provide consistency within its precedents regarding the meaning of a concept that has been central to the Court’s interpretation of the First Amendment since, in many ways, another pragmatist and friend of James’s, Justice Oliver Wendell Holmes, substantially addressed truth in his dissent in Abrams v. United States. The article concludes by proposing that the courts conceptualize the nature of truth via three substantially related understandings: that truth is a process, that it is experience-funded, and that it is not absolute and is best approached without prejudice. Each of the three ingredients relates, at least to some extent, with thematic understandings put forth by the Court in previous freedom-of-expression cases, and therefore does not represent a significant departure from justices’ traditional approaches to truth. The model, most ideally, does seek, with the help of pragmatic thought and ideas put forth by Justice Holmes, to encourage consistent recognition of certain principles regarding truth as justices go about considering its nature in First Amendment cases.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"7 1","pages":"169 - 203"},"PeriodicalIF":0.0,"publicationDate":"2018-05-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46408241","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}