British Journal of American Legal Studies最新文献

{"title":"Nomos, Narrative, and Nephi: Legal Interpretation in the Book of Mormon","authors":"Nathan B. Oman","doi":"10.2478/bjals-2022-0004","DOIUrl":"https://doi.org/10.2478/bjals-2022-0004","url":null,"abstract":"Abstract 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 the attention of scholars whose interest in the text goes beyond either religious devotion or the academic study of Mormonism. Rather, they look to the text as a literary creation of interest in its own right. This article brings this new approach into dialogue with the influential legal theory of Robert Cover. In so doing, it breaks new ground in the study of law and literature and shows how a close reading of the Book of Mormon text reveals a subtle debate about the nature of rule following that intersects with contemporary discussions in legal theory. These narratives illustrate an important feature of what we might call the phenomenology of legal experience, namely the way in which law carries within itself—rightly or wrongly—claims to transcendence.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"11 1","pages":"297 - 322"},"PeriodicalIF":0.0,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43530704","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":"Government Speech","authors":"T. Halper","doi":"10.2478/bjals-2022-0009","DOIUrl":"https://doi.org/10.2478/bjals-2022-0009","url":null,"abstract":"Abstract 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 speech that manipulates public opinion or abridges private speech, as it is the consequences of the speech and not the nature of the speaker that really matters. The basic problem remains unsolved: If courts treat government speech as covered by the First Amendment, the practical utility of government speech disappears. But if courts deny that government speech is covered by the First Amendment, government speech may silence or overwhelm private speech and much of the practical utility of the First Amendment may disappear.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"11 1","pages":"323 - 354"},"PeriodicalIF":0.0,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44521316","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":"Article V and the Law of Constitutional Conventions","authors":"Roman J. Hoyos","doi":"10.2139/ssrn.3723119","DOIUrl":"https://doi.org/10.2139/ssrn.3723119","url":null,"abstract":"Abstract 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 conventions in general could be limited. Since its initial publication in 1867, courts have relied upon Jameson's insights to build a law of constitutional conventions at the state level. Several components of this jurisprudence are particularly relevant to Article V, including the distinction between constitutional and revolutionary conventions, the distinction between amendment and revision, and the requirements of convention acts and ratification votes, in addition to the preclusion of a robust role for the electorate in the Article V convention process. This jurisprudence is readily available for courts to help guide them in determining the nature and limits of an Article V convention.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"11 1","pages":"257 - 296"},"PeriodicalIF":0.0,"publicationDate":"2022-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42839503","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":"Article V and the Law of Constitutional Conventions","authors":"Roman J. Hoyos","doi":"10.2478/bjals-2022-0007","DOIUrl":"https://doi.org/10.2478/bjals-2022-0007","url":null,"abstract":"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 conventions in general could be limited. Since its initial publication in 1867, courts have relied upon Jameson's insights to build a law of constitutional conventions at the state level. Several components of this jurisprudence are particularly relevant to Article V, including the distinction between constitutional and revolutionary conventions, the distinction between amendment and revision, and the requirements of convention acts and ratification votes, in addition to the preclusion of a robust role for the electorate in the Article V convention process. This jurisprudence is readily available for courts to help guide them in determining the nature and limits of an Article V convention.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"26 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138515964","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":"Donald Trump's Clemencies: Unconventional Acts, Conventional Justifications","authors":"Austin D. Sarat, Laura Gottesfeld, Carolina Kettles, Olivia Ward","doi":"10.2139/ssrn.3997794","DOIUrl":"https://doi.org/10.2139/ssrn.3997794","url":null,"abstract":"Abstract 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 scholars have examined the justifications he offered when he granted pardons and commutations. This paper fills that gap. We argue that because the clemency power sits uneasily with democracy and the rule of law, when Presidents use this power they feel the need to supply justifications. We report on a study of Trump's clemency justifications that suggests that while his clemencies themselves were often controversial and his means of communicating about them unconventional, the reasons he gave for them were generally quite conventional and continuous with the justifications offered by his predecessors for their pardons and commutations.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"11 1","pages":"173 - 207"},"PeriodicalIF":0.0,"publicationDate":"2022-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46151181","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":"Donald Trump's Clemencies: Unconventional Acts, Conventional Justifications","authors":"Austin Sarat, Laura Gottesfeld, Carolina Kettles, Olivia Ward","doi":"10.2478/bjals-2022-0005","DOIUrl":"https://doi.org/10.2478/bjals-2022-0005","url":null,"abstract":"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 scholars have examined the justifications he offered when he granted pardons and commutations. This paper fills that gap. We argue that because the clemency power sits uneasily with democracy and the rule of law, when Presidents use this power they feel the need to supply justifications. We report on a study of Trump's clemency justifications that suggests that while his clemencies themselves were often controversial and his means of communicating about them unconventional, the reasons he gave for them were generally quite conventional and continuous with the justifications offered by his predecessors for their pardons and commutations.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138515985","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":"Founding Authority: Authority, the Authoritative, and John Marshall's McCulloch","authors":"Simon Gilhooley","doi":"10.2478/bjals-2022-0006","DOIUrl":"https://doi.org/10.2478/bjals-2022-0006","url":null,"abstract":"Abstract 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 outside of politics, and calls upon a pre-existing and accepted relationship in order to navigate the absence of power and force. Linking authority to a pre-existing relationship and a non-political role, the Supreme Court can be seen as countermajoritarian by design. Calling on an authority which sits outside of political life, by necessity it lacks attachment to the political majority of any given era, and instead binds the nation to a constitution which sits above and beyond politics. However a second approach to authority emphasizes not a relationship to a past moment or pre-political relationship but rather the collective recognition of authority. This view of authority looks to Flathman's conception of “the authoritative,” defined in terms of “the web of conventions” that link power and authority, to situate authority within the current moment. Examining a central moment within the development of the U.S. Supreme Court's authority, the case of McCulloch vs. Maryland, this article argues that it is the second view of authority that most readily captures the authority of the Court. Through a close reading of Chief Justice John Marshall's opinion in McCulloch vs. Maryland, the article shows that while appeals to a founding moment were important within that opinion, these appeals can be productively understood as reflective of the authoritative ethos of the early American Republic. Framed in this manner, the opinion sought to generate authority not by a link to the past but through connection to a contingent sense of the authoritative. Crucially, such an approach positions constitutional authority within the contemporary political realm and offers the possibility of a constitutional politics less anchored in a particular historical moment of founding.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"11 1","pages":"237 - 255"},"PeriodicalIF":0.0,"publicationDate":"2022-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46589182","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 Dynamics of Democratic Breakdown: A Case Study of the American Civil War","authors":"Anthony J. Gaughan","doi":"10.2478/bjals-2022-0002","DOIUrl":"https://doi.org/10.2478/bjals-2022-0002","url":null,"abstract":"Abstract The 2020 election raised fundamental questions about the future of American democracy. Although the Democratic presidential nominee Joseph Biden won a decisive victory in the Electoral College and the popular vote, President Donald Trump refused to accept defeat. For weeks after the election, Trump falsely claimed that Democrats had stolen the election. In an unprecedented step for a defeated incumbent president, he pressured Republican election officials and legislators to help him overturn the election results. Trump’s attacks on American democracy culminated on January 6, 2021, when a pro-Trump mob invaded the United States Capitol Building to disrupt the Electoral Vote Count. In the aftermath of the 2020 election controversy, national polls found that over 90% of Americans believe that American democracy is in danger. Since the election, experts on both ends of the political spectrum have warned of the possibility of a full-fledged democratic breakdown in the United States. This article places America’s political crisis in historical context by examining the only democratic breakdown in the nation’s history: the Civil War. Following Abraham Lincoln’s victory in the 1860 election, eleven southern states seceded from the Union. The conflict that ensued cost over half a million lives and left one-half of the United States in physical and economic ruin. This article makes three main points. First, a dispute over election rules did not cause the Civil War. Instead, the war resulted when the dominant political class in the South—slaveholders—rejected the principle of majority rule. American history thus demonstrates that even in the case of an election of unquestionable integrity, a disgruntled extremist minority might still break the country apart. Second, the slaveholders feared that if they put the issue of secession to a popular referendum, the non-slaveholding majorities in southern states might vote against it. To achieve their goal of destroying the Union, therefore, slaveholders dictated special rules for the secession votes in their states. After Lincoln’s election, southern state legislatures delegated the issue of secession to state conventions. Across the South, slaveholders manipulated the convention election rules to ensure the result they wanted: break-up of the federal union. Third, and finally, northerners viewed the war as a battle for the survival of democracy itself. They recognized that no democratically held election would ever be binding if losers could simply break free and form their own government. Northerners thus rallied around the Lincoln administration and supported the Union war effort through four bloody years of battle. The Union’s victory vindicated democracy as a form of government. The Confederacy’s crushing defeat in 1865 demonstrated that democracies could successfully navigate even the most extreme forms of civil disorder. Most important of all, the Civil War era gave rise to a dramatic expansion in t","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"11 1","pages":"113 - 151"},"PeriodicalIF":0.0,"publicationDate":"2022-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45844170","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":"Conscientiousness and Supreme Court Confirmation Hearings in the Senate Judiciary Committee","authors":"Ryan C. Black, Ryan J. Owens, Justin Wedeking, Patrick C. Wohlfarth","doi":"10.2478/bjals-2021-0011","DOIUrl":"https://doi.org/10.2478/bjals-2021-0011","url":null,"abstract":"Abstract This article examines how one personality trait of U.S. Supreme Court nominees influences the confirmation process in the Senate Judiciary Committee. Specifically, the article asks, are conscientious nominees more forthcoming when they answer Committee Members’ questions? And, second, are Committee Members, in turn, more or less likely to vote favorably for conscientious nominees? The paper builds a theory of how the conscientiousness trait shapes how nominees to the High Court interact with the Senate Judiciary Committee. To test our theory and answer the questions, we use confirmation hearing data starting from 1955 and extending through 2018, which includes both the Gorsuch and Kavanaugh hearings. We find that personality shapes interactions in the Senate judiciary committee in important and meaningful ways. Importantly, we find evidence that suggests a nominee's conscientiousness helps to explain why some Senators would be willing to vote for him or her even when that nominee might be less qualified.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"10 1","pages":"379 - 408"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49469417","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":"Improving the Senate Judiciary Committee's Role in the Confirmation of Supreme Court Justices","authors":"Lori A. Ringhand, P. Collins","doi":"10.2478/bjals-2021-0010","DOIUrl":"https://doi.org/10.2478/bjals-2021-0010","url":null,"abstract":"Abstract The confirmation hearings of U.S. Supreme Court justices held by the Senate Judiciary Committee have been the subject of substantial criticism. Yet, critics typically fail to outline exactly what they want the hearings to accomplish. This article critically examines the purpose and history of confirmation hearings in an effort to shine light on the value that the hearings can add to the Supreme Court selection process. It also discusses three changes that can be made to help the confirmation hearings achieve their promise as an important venue for vetting future members of the Supreme Court and reaching a shared understanding of constitutional meanings among the American public.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"10 1","pages":"363 - 378"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41857481","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}