British Journal of American Legal Studies最新文献

{"title":"The Great Synthesizer: Natural Rights, the Law of Nations, and the Moral Sense in the Philosophical and Constitutional Thought of James Wilson","authors":"D. A. Webb","doi":"10.2478/bjals-2023-0005","DOIUrl":"https://doi.org/10.2478/bjals-2023-0005","url":null,"abstract":"Abstract 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 classical liberalism as envisioned by John Locke, Wilson insisted that the new federal government be as democratic and broadly reflective of “We the People” as possible. Drawing upon the law of nations tradition as articulated particularly by Cicero, he became one of the nation's leading proponents of a strong, centralized federal government in order to form “a more perfect union.” And inspired by the concept of the moral sense and the innate sociality of the human person as discussed in the Scottish Enlightenment by Thomas Reid and Francis Hutcheson, he made clear that the “blessings of liberty” were contingent upon an active and engaged citizenry on the national level. By understanding this overlooked, synthetic quality of Wilson's thought, we may better understand, in all its richness and complexity, the unique role Wilson played in America's creation story, gain a new perspective on the original Constitution itself, its achievements and flaws, and reconstruct a compelling constitutional theory that cut across the political alignment of the day but perhaps better anticipated subsequent constitutional development than any of the prevailing positions in 1787.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"12 1","pages":"79 - 116"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42995389","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":"A Dark Shadow: The Intensification and Expansion of Lethal Injection Drug Secrecy","authors":"Austin D. Sarat, T. Dassin, Aidan Orr","doi":"10.2478/bjals-2023-0006","DOIUrl":"https://doi.org/10.2478/bjals-2023-0006","url":null,"abstract":"Abstract 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 secrecy statutes. This article analyzes that history and relationship. It describes a surprising pattern of openness and transparency about the identities of executioners and others involved in America's capital punishment process. Current lethal injection secrecy laws break with that pattern and cast a virtually unprecedented shadow over the execution process. This article concludes by assessing the consequences of the recent intensification and expansion of execution secrecy.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"12 1","pages":"1 - 26"},"PeriodicalIF":0.0,"publicationDate":"2023-04-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46728592","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":"King Mob and Contempt of Congress","authors":"Joshua T. Carback","doi":"10.2478/bjals-2023-0004","DOIUrl":"https://doi.org/10.2478/bjals-2023-0004","url":null,"abstract":"Abstract 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 prosecutions continue and the House's investigation concludes. Although this is the first time in American history that a mob actually breached the Capitol, riots and insurrections attempting to overawe parliamentary bodies on their own grounds are well precedented in the Anglo-American legal tradition. The purpose of this article is to provide historical context for affrays like the Trump Riot of January 6 and provide a framework for how legislatures should respond. Parliamentary precedents on both sides of the Atlantic prove that anyone who riots at the legislature is in contempt of parliamentary privilege. The legislature can refer such contempt to the executive for criminal prosecution. In egregious cases, however, the legislature should not hesitate to vindicate itself by using its own contempt power. The legislature should appoint a joint select committee or independent commission to investigate and hold those politically responsible to account. There may be cases when an officer or an agent of the executive provokes or incites a riot at the Capitol. The legislature must prevail in its efforts to bring them in for a hearing and compel them to produce discovery. Of the three coordinate branches of the federal government the legislature is first among equals. Parliamentary privilege must therefore trump executive privilege during an investigation of an assault on the national assembly. Any member of the executive who contemptuously incites a mob at the seat of government is liable for discipline under the inherent power of Congress.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"12 1","pages":"145 - 190"},"PeriodicalIF":0.0,"publicationDate":"2023-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48415187","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":"An Overview of Environmental Justice in Brazil","authors":"R. Perlingeiro, L. Schmidt","doi":"10.2478/bjals-2023-0003","DOIUrl":"https://doi.org/10.2478/bjals-2023-0003","url":null,"abstract":"Abstract 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 extrajudicial due process in order to point out certain dysfunctions of environmental adjudication that compromise its effectiveness, such as the inadequacy of the procedural legislation and the poor quality of the resulting decisions; ways of strengthening the rights and guarantees provided to litigants by the administrative and judicial authorities are also proposed as a means of improving the performance of environmental adjudication.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"12 1","pages":"27 - 50"},"PeriodicalIF":0.0,"publicationDate":"2022-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45519550","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":"Keeping It Complex With Philip Hunton, John Locke, and the United States Federal Judiciary: On the Merit of Murkiness in Separation of Powers Jurisprudence","authors":"M. Kundmueller","doi":"10.2478/bjals-2023-0001","DOIUrl":"https://doi.org/10.2478/bjals-2023-0001","url":null,"abstract":"Abstract 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 the precise contours of each institution's powers? This article addresses this longstanding question by comparing the solutions offered by Philip Hunton, John Locke, and the United States judiciary. I conclude that the judiciary's decried inability to clarify the limits of its own power is justified by Hunton's obscure explanation that separation of powers can only function so long as murkiness shrouds questions of ultimate institutional authority.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"12 1","pages":"51 - 78"},"PeriodicalIF":0.0,"publicationDate":"2022-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46730930","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":"Constructing Race","authors":"Thomas Halper","doi":"10.2478/bjals-2023-0002","DOIUrl":"https://doi.org/10.2478/bjals-2023-0002","url":null,"abstract":"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.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138515951","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":"Constructing Race","authors":"T. Halper","doi":"10.4324/9780203870303-16","DOIUrl":"https://doi.org/10.4324/9780203870303-16","url":null,"abstract":"Abstract 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.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"12 1","pages":"117 - 144"},"PeriodicalIF":0.0,"publicationDate":"2022-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41969168","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 Power to Restrict Immigration and the Original Meaning of the Constitution's Define and Punish Clause","authors":"Robert G. Natelson","doi":"10.2478/bjals-2022-0010","DOIUrl":"https://doi.org/10.2478/bjals-2022-0010","url":null,"abstract":"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.” <jats:fn symbol=\"2\"> U.S. C<jats:sc>onst</jats:sc>. <jats:sc>art</jats:sc>. I, § 8, cl. 10. </jats:fn>","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"40 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138515931","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 Power to Restrict Immigration and the Original Meaning of the Constitution's Define and Punish Clause","authors":"Robert G. Natelson","doi":"10.2139/ssrn.4212472","DOIUrl":"https://doi.org/10.2139/ssrn.4212472","url":null,"abstract":"Abstract 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, cl. 10.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"11 1","pages":"209 - 236"},"PeriodicalIF":0.0,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44909989","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 Time-traveling Lawyer: Using Time Travel Stories and Science Fiction in Legal Education","authors":"J. Zedalis","doi":"10.2478/bjals-2022-0008","DOIUrl":"https://doi.org/10.2478/bjals-2022-0008","url":null,"abstract":"Abstract 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 study of power, authority, freedom, and a number of global issues. As governments and people worldwide wrestle with climate change, armed conflict, pandemics, and the increasing significance of artificial intelligence and other advances in technology, time travel stories give students unique contexts in which to consider what law is and the degree to which it defines human experience. For generations, brilliant science fiction writers have offered thought-provoking stories and worlds that law professors and their students can use to reimagine legal thought and practice. Like its close relatives, mythology and fantasy, the science fiction genre is untethered to current social or political experience or projections necessarily corrupted by narrowly conceived historical perspectives. Science fiction writers are interested in illuminating possibilities by considering identifiable problems in unidentifiable environments. It is no accident that gender identity, racism, reproductive rights, extremist ideologies, global health crises, and various recognizable forms of labor exploitation are addressed in provocative and insightful ways by a number of the best science fiction writers. Law has a strong presence in their work. Judges, law givers, ruling groups, and other less familiar forms of power and control appear in these stories and help to move and shape the experience of the time traveler. Law students can draw on the work of these writers to consider old questions in new and refreshingly broad ways. The importance of communication and access to information are also strong themes common to law and science fiction. How are concepts of truth and propaganda significant to power? Is truth necessary for legitimacy? Information technologies introduced in the science fiction world now exist in real time in forms and with speed and volume unimagined even a few decades ago. As artificial intelligence becomes dominant in many aspects of our daily lives, law students must consider how it may change law making, court procedures, entire legal systems, and perhaps even concepts of justice. As a project, law students might develop a case and conduct a trial using an AI judge or try a case to an AI jury. How human is the law? The role of emotional intelligence and concepts like mercy, restorative justice, forgiveness, or retribution are also things they might explore in seminars or other classes using science fiction literature and other time travel media as a framework.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"11 1","pages":"355 - 378"},"PeriodicalIF":0.0,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47705915","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}