Rutgers law review最新文献

{"title":"A Founding Father on Trial: Jefferson’s Rights Talk and the Problem of Slavery During the Revolutionary Period","authors":"W. Merkel","doi":"10.2139/SSRN.1924443","DOIUrl":"https://doi.org/10.2139/SSRN.1924443","url":null,"abstract":"Thomas Jefferson’s one-time image as a serious opponent of slavery has been heavily criticized by academics for nearly fifty years. Indeed, Jefferson’s reputation as a principal and principled progenitor of the American political tradition suffered badly in the closing decades of the Twentieth Century as historians, cultural commentators, and legal scholars focused on his racism, personal commitments to slavery, and intimate relationship with Sally Hemings, the enslaved Monticello domestic who was almost certainly the mother of one or more of his children. But while progressive thinkers soured on Jefferson at the close of the Twentieth Century, many libertarians, small government enthusiasts, neo-federalists, and champions of civic virtue remained committed to ideals and rhetoric they associated with Jefferson more than with any other founding father. When the Tea Party movement exploded onto the national political scene in the 2010 election, critics of the modern American state were quick to laud Jefferson as the favored spokesman of an allegedly simpler and purer alternative to the corrupted and degenerate federal government of the present. The original conception of America the Tea Party claimed to favor was, its members maintained, quintessentially Jeffersonian. Clearly, the Jefferson image retains power in contemporary political debates. But which image of the complex third President and drafter of the Declaration of Independence is most accurate, and which is most legitimately harnessed by citizens fighting to define the American creed in our times? Was Jefferson essentially a hypocritical racist who favored small government to protect slaveholder interests, or was he at heart a champion a universal liberty who envisioned a special role for the United States in human destiny? In this Article, I analyze the intricate relation between slavery, freedom, and the birth of the American creed by reassessing the earliest period of Jefferson’s public career when he practiced law in Virginia’s colonial capital Williamsburg, served as a member of the colonial assembly, the House of Burgesses, authored the Summary view of the Rights of British North America in 1774, and served as the principal draftsman of the Declaration of Independence in 1776. After exploring Jefferson’s legal education and the law of slavery in late colonial Virginia, the Article surveys Jefferson’s seven-year career as a property lawyer. It analyzes in detail Jefferson’s argument in Howell v. Netherland, a freedom suit appealed to the General Court of Virginia in 1770, and then considers his rhetoric respecting African slavery and alleged plans for political enslavement of British North America in his classic early constitutional state papers the Summary View and the Declaration of Independence. The natural rights arguments Jefferson employed in Howell v. Netherland, the Summary View, and the Declaration of Independence reflected a philosophy essentially inimical to human slavery.","PeriodicalId":82623,"journal":{"name":"Rutgers law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67790428","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 Jurisdictional Approach to Collapsing Corporate Distinctions","authors":"Peter B. Oh","doi":"10.2139/SSRN.328923","DOIUrl":"https://doi.org/10.2139/SSRN.328923","url":null,"abstract":"This article challenges our persistent path dependence on defunct distinctions between corporations and certain limited unincorporated associations. Recent federal tax regulations have inspired proposals for consolidated treatment of all limited business organizations through uniformly based or universally applicable statutes. I contend these proposals are preoccupied with how hybrid organizations such as the limited liability company and the limited liability partnership amalgamate, and thus implicitly preserve, traditional dichotomies between corporations and partnership categorizations as well as entities and aggregate theories. The continued use of these schemes compromises the legal basis for such proposals. By critically examining certain jurisdictional principles, this article reveals inconsistencies that can serve as an entry point for effecting collapse of distinctions between corporations and certain limited unincorporated associations. Specifically, United States citizens domiciled abroad are \"stateless\" and so cannot sue or be sued in federal courts under the alienage jurisdiction statute. Under the prevailing jurisdictional test, unincorporated associations with stateless members inherit this incapacity to access federal courts for alienage purposes while corporations do not. These radically different outcomes are the product of outmoded and untenable common law and statutory schemes. As a solution, I propose implementing a citizenship test based on domicile for both stateless individuals and unincorporated associations. Such a test would rectify these schemes and provide a framework that can support uniform treatment of all limited business organizations.","PeriodicalId":82623,"journal":{"name":"Rutgers law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68582231","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 Neglected History of Criminal Procedure, 1850-1940","authors":"Wesley M. Oliver","doi":"10.2139/SSRN.1463746","DOIUrl":"https://doi.org/10.2139/SSRN.1463746","url":null,"abstract":"Originalism has focused the attention of courts and academics on Framing Era history to interpret constitutional limits on police conduct. Previously unexplored sources reveal, however, that Framing Era limits on officers were expressly abandoned as professional police forces were created in the mid-nineteenth century and charged with aggressively investigating and preventing crime. The modern scheme of judicially supervised police investigations was then implemented after corruption and scandals of the 1920s. The development of modern criminal procedure has a rich historical background, but it has almost nothing to do with the events of the Framing Era.","PeriodicalId":82623,"journal":{"name":"Rutgers law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2009-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68184112","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 Dangers of Summary Judgment: Gender and Federal Civil Litigation","authors":"E. Schneider","doi":"10.2139/SSRN.968834","DOIUrl":"https://doi.org/10.2139/SSRN.968834","url":null,"abstract":"This Article examines the problematic application of summary judgment in federal courts through a study of gender cases. Identifying a new dimension of the interrelationship between procedure and gender, I examine the ways in which summary judgment impacts on cases involving gender and gender impacts on judicial decisionmaking on summary judgment, with emphasis on the intersection of Daubert and summary judgment. I analyze summary judgment in federal gender discrimination and tort cases involving women plaintiffs and argue that there is flawed judicial decisionmaking in these cases. I describe empirical data compiled for this Article on whether summary judgment is granted disproportionately against women plaintiffs in federal court. I discuss the special problems of judicial determination of these cases, issues of gender and judging and the need for more diverse decisionmaking, the need for these cases to be heard through live testimony in a public forum, and the way in which summary judgment practice reinforces the troubling \"privatization\" of federal civil litigation. I conclude that judicial decisionmaking in these cases illustrates the way in which current summary judgment practice permits subtle bias to go unchecked and reveals the dangers of summary judgment generally.","PeriodicalId":82623,"journal":{"name":"Rutgers law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2007-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67915590","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":"Altruism's limits: law, capacity, and organ commodification.","authors":"Michele Goodwin","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82623,"journal":{"name":"Rutgers law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26071733","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":"Beyond the Counter-Majoritarian Difficulty: Judicial Decision-Making in a Polynomic World","authors":"D. Greenwood","doi":"10.2139/SSRN.757313","DOIUrl":"https://doi.org/10.2139/SSRN.757313","url":null,"abstract":"This Article examines the role of judicial deference in a modern democracy. As a general rule, judges defer to laws that are enacted by legislatures. The Author disputes the view that judges defer to legislatures because legislatures are more majoritarian than judges. In refuting this view, the Author describes and discusses the main decision-making processes of a modern democracy, including aggregation processes such as majoritarian politics, legislative processes, economic markets, and civil society, as well as normative systems such as judiciaries, bureaucracies, and professionals. The Author contends that in order to understand and appreciate the role of judicial deference, we must distinguish judicial reasoning from these other decisionmaking institutions. While the boundaries between these institutions are quite flexible, often overlapping, and sometimes incoherent, the distinctions between them need not (and can not) be disregarded if we are to understand and appreciate the implicit natures and individual characteristics of each. The Author suggests that re-inflating the collapsed distinctions between these institutions will set the groundwork for a new and improved analysis of each.","PeriodicalId":82623,"journal":{"name":"Rutgers law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67821193","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 matter of priority: transplanting organs preferentially to registered donors.","authors":"Adam J Kolber","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82623,"journal":{"name":"Rutgers law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25606195","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":"Separation of the conjoined twins: a comparative analysis of the rights to privacy and religious freedom in Great Britain and the United States.","authors":"Jacqueline B Tomasso","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82623,"journal":{"name":"Rutgers law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24596945","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":"Raising the \"civilized minimum\" of pain amelioration for prisoners to avoid cruel and unusual punishment.","authors":"James McGrath","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>This Article addresses the problems with our nation's cultural and legal prohibitions against certain pain management treatments. The practice of pain management has not kept pace with the many medical advances that have made it possible for physicians to ameliorate most pain. The Author notes that some patients are denied access to certain forms of treatments due to the mistaken belief that addiction may ensue. Additionally, some individuals are under-treated for their pain to a greater degree than are others. This is especially the case for our nation's prisoners. The Author contends that prisoners are frequently denied effective pain amelioration. He notes, however, that there has been improvement in medical treatment in general for prisoners due to court challenges based on the Eighth Amendment's prohibition against cruel and unusual punishment. Yet, due to the protection of qualified immunity given to jailers and prison health care providers, prisoners cannot bring a claim for negligence or medical malpractice, they must allege a violation of their constitutional rights, a significantly higher legal standard. Prisoners must meet a subjective test showing that there was a deliberate indifference to their medical needs that violates the protection of the Eighth Amendment. The Author concludes that because medical advances have made it possible to alleviate most pain suffering, withholding pain treatment or providing a less effective treatment is tantamount to inflicting pain and should be viewed as a violation of the Eighth Amendment.</p>","PeriodicalId":82623,"journal":{"name":"Rutgers law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24578645","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":"Party as a 'Political Safeguard of Federalism': Martin Van Buren and the Constitutional Theory of Party Politics","authors":"G. Leonard","doi":"10.2139/SSRN.289004","DOIUrl":"https://doi.org/10.2139/SSRN.289004","url":null,"abstract":"In the last decade or so, the Supreme Court has revitalized judicial enforcement of federalism. This development has spurred the partisans of Herbert Wechsler's \"political safeguards of federalism\" to begin a serious investigation of the ways in which extra-judicial politics can and does substitute for and complement the judicial role in enforcing federalism and the Constitution. Similarly, constitutional scholars have turned in increasing numbers to the question of how even judicially promulgated doctrines of constitutional law turn out to be more derivative of popular politics than vice versa. Necessarily, much of the investigation on both fronts has turned historical and has turned to the central institution of popular politics in this country - the political party. This article is an effort to clarify the origins of the political party as a core institution of the American constitutional order - an institution unmentioned in the Constitution itself and, in fact, an institution to which the Founders were deeply hostile. The article focuses on the constitutional thought and political action of Martin Van Buren, the chief figure in the origins of American party politics in the early nineteenth century. Van Buren was the leader and virtual creator of the first, permanent mass political party, and he was its chief theorist as well. Brilliantly constructing a theory by which the antiparty American polity might accept the constitutional necessity of party organization, Van Buren drew on the vital political issues of his day to argue that only a truly democratic party - not the Supreme Court - could preserve and enforce the Constitution's most fundamental principles, including federalism and coordinate construction. Like most successful revolutions, Van Buren's constitutional revolution turned out to have all sorts of unintended consequences, but Van Buren's work remains foundational to American governance. Substantially anticipating both the modern Supreme Court's Garcia doctrine and modern scholars' emphasis on constitutional law's dependence on constitutional politics, Van Buren's thought and action reveals how constitutional law has always been a matter of negotiation between judicial politics and party politics, never simply a matter of case law.","PeriodicalId":82623,"journal":{"name":"Rutgers law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2001-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68421244","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}