British Journal of American Legal Studies最新文献

{"title":"William O. Douglas and The Assault on Objectivity","authors":"T. Halper","doi":"10.2478/bjals-2020-0001","DOIUrl":"https://doi.org/10.2478/bjals-2020-0001","url":null,"abstract":"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 authentic persona more than a mask of lies.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"9 1","pages":"115 - 142"},"PeriodicalIF":0.0,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49216373","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":"Revisiting Death's Difference: The Philosophical Anthropology of the U.S. Death Penalty and the Impossibility of Capital Due Process","authors":"G. P. Marcar","doi":"10.2478/bjals-2020-0003","DOIUrl":"https://doi.org/10.2478/bjals-2020-0003","url":null,"abstract":"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 to this matter. In regard to particular classes of defendant, the Court has sought to rule on whether death is likely to be a proportional and purposeful punishment, as well as whether—given the condition of these defendants—such a determination can be reliably and accurately gauged. This article will suggest a different approach. Instead of asking whether, given the nature of certain categories of human defendant, the death penalty is constitutional in their case, I will begin by asking what—given the nature of the U.S. death penalty—one must believe about human beings for death to be a proportionate punishment. From this, I will argue that to believe that these penal goals are capable of fulfilment by the death penalty entails commitment to an empirically unconfirmable philosophical anthropology. On this basis, it will be further argued that the beliefs required for the U.S. death penalty's proportional and purposeful instigation (pursuant to the Eighth Amendment) are not congruent with the demands of legal due process.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"9 1","pages":"181 - 208"},"PeriodicalIF":0.0,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45210537","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":"Moral Cognition in Criminal Punishment","authors":"Jason R. Steffen","doi":"10.2478/bjals-2020-0002","DOIUrl":"https://doi.org/10.2478/bjals-2020-0002","url":null,"abstract":"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 and justice. In particular, I argue that Kant's own views about conscience and moral cognition should cause us to rethink the importance of lex talionis (an integral retributive principle) in the criminal justice system, and to adopt a more merciful attitude toward punishable criminals than we might otherwise be inclined to do. I end with a few policy proposals aimed at encouraging such moral cognition in contemporary Anglo-American criminal justice systems","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"9 1","pages":"143 - 179"},"PeriodicalIF":0.0,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49505560","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":"Fear and Loathing in Legal Academia: Legal Academics’ Perceptions of Their Field and Their Curious Imaginaries of How ‘Outsiders’ Perceive It","authors":"N. Priaulx, Martin Weinel, Willow Leonard-Clarke, T. Hayes","doi":"10.2478/bjals-2020-0006","DOIUrl":"https://doi.org/10.2478/bjals-2020-0006","url":null,"abstract":"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 of the field of legal academia as well as imagining how non-legal academics (’outsiders’) might evaluate the field of legal academia. Of particular interest, we note the presence of a curious divergence between self-perceptions of legal academia and their ‘imaginaries’ as to how ’outsiders’ will perceive the field. Supported by a review of the legal scholarly literature, our study reveals a persistently bleak ‘folklore’ surrounding the question of how ‘outsiders’ will regard legal academia – though critically, one which on the basis of our empirical work, finds little root in reality. Providing the first study of its kind, and offering a range of novel analytical techniques, we highlight the significant purchase of empirical meta-disciplinary work of this nature for better understanding legal academia and its relationship with other fields. While undertaken as a scoping study, we identify potential opportunities for raising the profile of legal academia in wider spheres, as well as enhancing opportunities for cross-disciplinary collaboration. As we argue by reference to our findings, part of that work may simply involve legal academics projecting their more positive self-perceptions of their field and the value of their work to the outside world.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"9 1","pages":"17 - 80"},"PeriodicalIF":0.0,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45546469","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":"Joseph A. Greenaway Jr. Lecture Series on Law and Justice* Speak at Your Own Peril","authors":"Joseph A. Greenaway","doi":"10.2478/bjals-2020-0007","DOIUrl":"https://doi.org/10.2478/bjals-2020-0007","url":null,"abstract":"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 the Criminal Justice and Public Order Act of 1994 is that there is now a fundamental divergence in approach between the two jurisdictions and concludes that as the twenty first century progresses, defendants on both sides of the Atlantic will be less likely to exercise their rights without consequence and then when they do choose to speak it will be at their peril.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"9 1","pages":"1 - 15"},"PeriodicalIF":0.0,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45327824","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":"Directions for the Study of Masculinity: Beyond Toxicity, Experience, and Alienation","authors":"Dylan A. Yaeger","doi":"10.2478/bjals-2020-0005","DOIUrl":"https://doi.org/10.2478/bjals-2020-0005","url":null,"abstract":"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 formal equality during the last half century sought the elimination of the masculinist bias, but has only exposed the extent of the entrenchment. The popular idea is that the law exists in a removed and exalted position where it sits in judgement of a pre-existing and fully formed masculinity. Indeed, much of the internal coherence of the law is premised on the integrity of the subject and the propagation of sexual difference. Thus, the law is precluded from acknowledging or engaging with its own productive power and vacuously characterizes itself as a neutral arbiter. Today, while significant changes occur in sex and sexuality, the study of masculinity appears theoretically stagnant. Part I of this paper distinguishes between masculinity studies and the men's movement and explains the relationship of each to feminist theory. Part II looks at how the power of the law works and how masculinity studies is an effective tool to help understand how that power manifests and is employed. Part III examines the relationship between feminist legal theory and masculinity studies with a particular focus on two areas where I view masculinity studies as having successfully employed insights from feminist theory. Finally, Part IV considers four areas where I suggest masculinity studies could better incorporate certain insights from feminist theory, which would result in a more rigorous understanding of the relationship among power, masculinity, and law, and point masculinity studies in a more nuanced direction. To advance this critique, the paper analyzes underlying arguments that support the power of law based in classic liberal political theory. It employs recurrent critiques of the law, and of liberalism more generally, found in Feminist Legal Theory, Critical Race Theory, Queer Theory, and Critical Legal Studies to reveal the law as always already intertwined with masculinity.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"9 1","pages":"113 - 81"},"PeriodicalIF":0.0,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42319060","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":"“Felix Cohen Was the Blackstone of Federal Indian Law:” Taking the Comparison Seriously","authors":"Adrien Habermacher","doi":"10.2478/bjals-2019-0014","DOIUrl":"https://doi.org/10.2478/bjals-2019-0014","url":null,"abstract":"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 reveals that despite the stark differences between Blackstone’s work on the English common law from his professorship at Oxford in the late eighteenth century, and Cohen’s endeavors on the US federal law concerning Native Americans as a civil servant at the turn of the 1940s, there are remarkable similarities in the enterprises of legal scholarship the two jurists took on, the larger political projects they promoted, and their role in the development of legal thought. The idea that “Felix Cohen was the Blackstone of Federal Indian Law” has stylistic appeal and could have been little more than a gracious way to celebrate Cohen. An in-depth comparative examination of legal history and jurisprudence however corroborates and amplifies the soundness of the comparison.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"255 4","pages":"371 - 398"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41289971","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":"Cartel Control of Attorney Licensure and the Public Interest*","authors":"R. Fellmeth, Bridget Fogarty Gramme, C. Hayes","doi":"10.2478/bjals-2019-0006","DOIUrl":"https://doi.org/10.2478/bjals-2019-0006","url":null,"abstract":"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 of the power to regulate themselves has led to a lose/lose system lacking protection from incompetent practice while also diminishing needed supply. The problem is manifest in four regulatory flaws: First, state bars—in combination with the American Bar Association—require four years of largely irrelevant higher education for law school entry. Most of this coursework commonly has nothing to do with law. Second, and related, these seven-years of mandatory higher education (that only the United States requires for attorney licensure) impose extraordinary costs. Those costs now reach from $190,000 to $380,000 in tuition and room and board per student—driven by shocking tuition levels lacking competitive check. Third, attorney training focuses almost entirely on a few traditional subjects, with little attention paid to the development of useful skills in most of the 24 disparate areas of actual practice (e.g., administrative, bankruptcy, corporate, criminal, family, taxation, et al.). And schools often pay scant attention to legislation, administrative proceedings, or the distinct areas of law that will be relevant to a student’s future practice. Fourth, state bars rely on supply-constricting bar examinations of questionable connection to competence assurance. In the largest state of California, the bar examination fails about 2/3 of its examinees. This system has fostered an opportunistic cottage industry of increasingly expensive preparatory courses that further raise the cost of becoming an attorney—even after 7 years of higher education. Meanwhile, the bars regulating attorneys in the respective states: a) Do not treat negligent acts as a normal basis for discipline (outside of extreme incapacity); b) Do not require malpractice insurance—effectively denying consumer remedies for negligence; c) Do not allow clients injured by malpractice to recover from “client security funds”; d) Do not require post-licensure “legal education” in the area of an attorney’s practice; e) Do not test attorneys in the area of practice relied upon by consumers—ever; and f) Respond to cost-effective, technology-centric solutions to legal problems not by regulation to assure consumer benefit, but by attempts to categorically foreclose them in favor of total reliance on often unavailable/expensive counsel. No area of state regulation has more openly violated federal antitrust law than has the legal profession. The United States Supreme Court held in 2015 that any state body controlled by “active market participants” in a profession regulated is not a sovereign entity for antitru","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"22 1","pages":"193 - 233"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69181393","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":"Henry Friendly and the Incorporation of the Bill of Rights","authors":"T. Halper","doi":"10.2478/BJALS-2019-0012","DOIUrl":"https://doi.org/10.2478/BJALS-2019-0012","url":null,"abstract":"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 of law, and individual liberty that continue to resonate decades later.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"8 1","pages":"235 - 247"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42077409","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":"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","authors":"M. Kundmueller","doi":"10.2478/bjals-2019-0011","DOIUrl":"https://doi.org/10.2478/bjals-2019-0011","url":null,"abstract":"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 officer of the court, and to act as a public citizen with a special responsibility for the quality of justice. Always using the simplest accurate wording, focusing on reason over emotion, and speaking in the same manner whether in private or in public, Atticus’s rhetoric exemplifies the ancient Roman style known by students of rhetoric as “Attic.” Using this style to navigate the potential for conflict among his duties, Atticus reveals the power, the elegance, and the ethical necessity of Attic rhetoric. Connecting Atticus’s name to the Attic style of rhetoric for the first time, this article advances several scholarly debates by demonstrating the mutual compatibility of the duties imposed by the Model Rules of Professional Conduct and proffering a powerful tool to attorneys seeking to practice or to teach improved ethical conduct.","PeriodicalId":40555,"journal":{"name":"British Journal of American Legal Studies","volume":"8 1","pages":"289 - 325"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45648853","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}