• A CONSTITUTION FIT FOR A NATION: THE INFLUENCE OF THE LAW OF NATIONS ON THE VIRGINIA PLAN AND JAMES MADISON’S CONSTITUTIONAL THOUGHT

      SCRUDATO IV, JOHN (2020-04-01)
      The Constitutional Convention of 1787 forged a new nation, but it’s only recently that the full picture of what nationhood meant to the founders has come into focus. The world of the founders was a far more interconnected and globalized one than had been generally realized—a world in which numerous global empires struggled diplomatically, economically and militarily for land, riches and influence. In European capitals and even in the American colonies, diplomats, generals and politicians widely believed that these interactions between nations were governed by a set of natural law principles called the Law of Nations and conflict could be best avoided precisely by observing its rules. This presents a new, international factor to consider in analyzing the motivations and compromises of the founders, a dimension that is only just starting to receive scholarly attention.
    • A Conversation Between Milner Ball and James Boyd White

      Ball, Milner; White, James (2013-05-08)
      The editors of the Journal invited me to review James Boyd White's Acts of Hope. In response I proposed inviting Professor White to join me in a conversation about his work. First the editors and then he accepted the proposal. Professor White and I agreed that we might call a halt to this experiment at any time because we would not subvert our friendship in the attempt to enact an instance of it in print. The editors accepted the risk that we might at last have no pages for them. - MSB
    • A Critical Take on Shasta County and the "New Chicago School"

      Litowitz, Douglas (2013-05-08)
      Legal scholarship is abuzz with research on social norms--nonlegal rules of behavior that are enforced by private individuals through social sanctions such as gossip and ostracism. Upon a moment's reflection it is easy to see that social norms affect virtually all of our behavior, from mundane matters of personal hygiene to practical matters, including business negotiations and dispute resolution. In addition to affecting our behavior, social norms tend to become internalized as standards of selfassessment, which means that our thoughts are equally affected by social norms. Until the last decade or so legal scholars devoted little attention to social norms, holding fast to the longstanding assumption (among legal theorists) that law is the dominant constraint on human behavior. Recent scholarship casts doubt on this assumption of "legal centrism" by pointing out that social norms have a more profound affect on our lives than law, at least if we understand law in the narrow sense of formal rules backed by the state's coercive power. In fact, empirical research suggests that many people (perhaps most people) lack a working knowledge of law and instead find themselves "opting out" of the legal system by resolving disputes according to social norms. Within the legal academy there is a growing body of research on social norms (some might say that it has become almost a cottage industry), and in this paper I want to raise some questions about the fundamental orientation of this scholarship.
    • "A Dangerous Undertaking": The Problem of Intentionalism and Promise of Expert Testimony in Appropriation Art Infringement Cases

      Jasiewicz, Monika Isia (2015-10-18)
      In May 2011, a federal district court issued a ruling that shocked the art world. In a copyright infringement action against prominent artist Richard Prince, Judge Deborah Batts of the Southern District of New York dispensed the art world equivalent of the death penalty: an injunction requiring that artworks be "deliver[ed] up for impounding, destruction, or other disposition." The condemned works-a series of Prince collages titled "Canal Zone"-contained photographs from Yes, Rasta, a book of portraits of Jamaican Rastafarians by the photographer Patrick Cariou. Prince had cut out images from the book and painted over them, combining them in his collages with other original and found images. The court held that by using images from Yes, Rasta, Prince infringed Cariou's copyrights, and his work did not qualify for the fair use defense.
    • A Defense of Theory: Interpretation as an Adventure on the Border Line

      Franci, Giovanna (2013-05-08)
      The discussion of the role of theory in recent critical debates on interpretation has been very lively. This has been particularly true in the United States, where, because of a mistaken sense of pragmatism, theory is often confused with ideology or methodology. In this paper I will try to expand upon my own idea of theory. I will argue for a conception of theory that frames theory as an inner tension and an incessant process of thought, one which underlies all interpretive acts and which evades not only the object under analysis in each single discipline, but also the profession of different cultural fashions and critical trends. Every now and then I find myself forced to answer an urgent question: "Which side are you on?" I am asked; or, "Under which King, Bezonian?" as the "reactionary" F.R. Leavis provokingly entitled one of his pamphlets written in the 1930s. In The Idea of a UniversityLeavis was already beginning to cope with rising problems like that of "Mass Civilization and Minority Culture." Although that time was certainly different from ours, many problems which have characterized our period were already present: the leveling down of culture with respect to mass society, the decay of tradition in the face of new forms of technological barbarism, the relationship between the elite and the majority, changes in language in a new Babel and, above all, the questioning of the didactic function of the university and the task of criticism to "scrutinize" the values of life. With regard to all these issues, the risk of dividing into "Apocalittici e integrati," roughly quoting Umberto Eco's dichotomy of some years ago, is imminent. This is particularly true for my generation which has always lived "out of time," too late or too early in relation to certain important changes. This happened to us in 1968, as opposed to the generation of eighteenyear- olds, and again in the seventies during the dreadful years of terrorism, or during the struggles of the most radical and separatist feminism (and, of course, we were not at all at ease with old-fashioned Academia). However, this contradictory position towards the difficult relationship between a changing society and the values to be preserved, between realism and utopia, also contains positive aspects. The presence of such positive aspects is the reason why certain deconstructive criticism, or negative hermeneutics, from the seventies onward has attracted my attention. This interpretive stance was based not on final certainties, but rather on a continuous questioning, both in politics and in literary criticism. How, then, does a member of the "out of time" generation describe the current historical moment? The socialist dream of setting oppressed people and women free has never come true, at least not in the ways expected or wished for in the past. The end of ideology, the actual as well as metaphorical collapse of walls, has annulled the old opposition between blocs: capitalism and communism, reaction and revolution, the right and the left, the reactionary and the conservative. In Europe the debate is now rendered in postideological terms, even with an unprecedented breakdown of political credibility in Italian politics, or, even more tragically, in the face of the terrible civil war in the former Yugoslavia. The confusion of ideas following the crisis of foundations has created contradictory phenomena that mix various aspects of the same problem. Instead of radically claiming the right to equality, as in the past, today it is the idea or right to difference that is radically claimed. Claims to difference, which made their appearance in Europe during the seventies (especially as a consequence of the influence of psychoanalysis), have now resurfaced in both Europe and America. Thus, left-wing ideas, once dead in the old continent, have paradoxically moved west into the country that was once seen as the natural center of capitalism. The inclination to generalize, to judge on the basis of the most important problems and universal categories valid for everybody, must now not only come to terms with a world characterized by the global circulation of ideas, but also with subtle changes which require that we pay attention to different realities.
    • A Distaste for War at Walden Pond: Thoreau's The Bean-Field, Theories of Personal Property, and the Mexican-American War

      Cross, Jesse (2013-05-08)
      Upon the tenth anniversary of their graduation from Harvard University, the members of the Harvard class of 1837 were sent a survey asking them to state, among other things, their current occupation. One member of this class, Henry David Thoreau, undoubtedly encountered this request while in a peculiar frame of mind. Thoreau responded to the survey on September 30, 1847, less than four weeks after he had left the small home he had occupied for two years at Walden Pond. Once again a "sojourner in civilized life," as he would put it in Walden, Thoreau responded to his alma mater by listing no less than thirteen different occupations. "I am a Schoolmaster," Thoreau explained, "a Private Tutor, a Surveyor - a Gardener, a Farmer - a Painter, I mean a House Painter, a Carpenter, a Mason, a Day-Laborer, a Pencil-Maker, a Glass-paper Maker, a Writer, and sometimes a Poetaster." Of these many alleged professions, the one that would actually provide much of Thoreau's income over the years - his work as a surveyor - is also one of the least considered or analyzed aspects of Thoreau's identity. As Patrick Chura observed in his recent book, Thoreau the Land Surveyor, "Thoreau's literary stock has risen steadily in the twentieth century, but interest from literary researchers [in Thoreau's work as a surveyor] has been intermittent at best." This neglect of Thoreau-as-surveyor is unfortunate for a variety of reasons, not the least of which is that it has left incomplete the task of studying the interesting and complex relationship Thoreau bore to the property regimes and property theories of his day. Scholars frequently have been content to focus upon Thoreau's famous critiques of contemporary property regimes in the opening chapter of Walden, where Thoreau describes ownership as part of a larger economic system that had engulfed New England and that he found detestable. As Thoreau's long career as a surveyor reveals, however, the relationship must be more complex than this. His work as a surveyor made him into an agent of the existing property regime, yet the man we see in much of Thoreau's writing is aloof and triumphant, a far cry from someone who understands himself to be an agent of a regime he detests. How can this be?
    • A Ghost in the House of Justice: Death and the Language of the Law

      Felman, Shoshana (2013-05-08)
      A witness faints on the stand during the Eichmann trial. This Essay will explore the meaning of this unexpected legal moment, and will ask: Is the witness's collapse relevant-and if so, in what sense-to the legal framework of the trial? How does this courtroom event affect the trial's definition of legal meaning in the wake of the Holocaust? Under what circumstances and in what ways can the legal default of a witness constitute a legal testimony in its own right? I will present, first, Hannah Arendt's reading of this episode, and will later contrast her reading with my own interpretation of this courtroom scene. Still later, I will analyze the judges' reference to this scene.
    • A Loser's Ingenuity

      Astbury, Raymond (2013-05-08)
      Lois G. Schwoerer, The Ingenious Mr. Henry Care, Restoration Publicist. Baltimore and London: Johns Hopkins University Press, 2001. Pp. xxvii, 349. $32. Stephen Parks ed., The Luttrell File: Narcissus Luttrell's Dates on Contemporary Pamphlets, 1678-1730. Assisted by Earle Havens, with a Chronological Index compiled by Carolyn Nelson. New Haven, Connecticut: Beinecke Rare Book and Manuscript Library, 1999. (The Yale University Library Gazette Occasional Supplement 3). Pp. vi, 223. $25. The Ingenious Mr. Henry Careis the latest monograph in a series of scholarly articles, essays, and edited works on a range of subjects, by Lois G. Schwoerer, Kayser Professor of History Emeritus at the George Washington University. Schwoerer's work has addressed, among other topics, the history of British political thought, the Restoration, the Revolution of 1688/89, the Declaration of Rights, Lady Rachel Russell, Lord William Russell, Lord Chief Justice Scroggs, the Standing Army controversy, and the use of the press in the politics of the seventeenth century. This new book is not a conventional biography (archives of Care's life are not extant) but a study of his journalism and pamphleteering, analyzing and interpreting how his writing intersected, reflected, and helped to mold the major political, religious, constitutional, and ideological issues of the time. Schwoerer uses Care's journalism as a prism to illuminate the era in order to contribute to a remodeling of Restoration historiography. Schwoerer is one of the few historians who assert that the Restoration press emerged as a prototype fourth estate, playing a more important role in politics, religion, and society than is usually acknowledged. She presents Care (1646-1688), who came from a more lowly social background than, for example, Marchamont Nedham, Sir Roger L'Estrange, or Daniel Defoe, as a writer who made a significant contribution to the public debates of his day on religion, politics, and society. Schwoerer argues that Care's writing enfranchised those who were not part of the political class, thereby helping to create a public sphere (at a point in time earlier than Habermas' identified). According to Schwoerer, through Care's writing the political awareness of the marginally-educated lower orders in society was raised, empowering them to contribute to the stabilization, or destabilization, of authority in church and state. She reevaluates Care's role within the print culture of the time, rehabilitates his reputation, and rescues him from the relative obscurity into which he has fallen in the early twenty-first century.
    • A Philosophical Account of Coerced Self-Incrimination

      Thomas, George (2013-03-25)
      Although few would dispute that law and philosophy developed from the same tradition or even that law uses philosophical concepts, a premise of much legal scholarship is that law has developed its own methodology and is wholly separate from philosophy. This attitude may reflect, in part, a feeling that philosophy is more esoteric or difficult than law, and that lawyers are ill-equipped to venture into philosophical thickets. It is true, of course, that philosophers often think about issues far removed from pragmatic reality while lawyers have to deal with real cases and real people. But law and philosophy cannot be so easily divorced. Indeed, judicial opinions can be seen as forming a data set that permits rough tests of philosophical concepts. While an individual case may reach an aberrant result, a relatively stable judicial concept will likely emerge over time. Perhaps courts define philosophically-related concepts differently than philosophers, but I think that unlikely. Philosophers do not invent philosophical accounts, and judges do not invent interpretations of legal concepts. Both groups draw from the surrounding culture. One way to gain insight into cultural attitudes toward a particular question is to look for similarities in legal and philosophical treatments of that question. I wish to examine one potential parallel between law and philosophy by comparing the prevailing judicial account of coerced self-incrimination with the prevailing philosophical treatment of coercion. I will focus on the question of when, in particular cases, the police (P) coerce a suspect (S) into answering questions (A). The principal source of legal protection against this kind of coercion is the Fifth Amendment self-incrimination clause. The clause provides that "No person ... shall be compelled in any criminal case to be a witness against himself. As the clause prohibits compulsion rather than coercion, I begin with the assumption that compulsion and coercion are co-extensive concepts, an assumption I will later question. Moreover, I am interested only in coercion that causes (or will cause) an incriminating response. The extent to which government can penalize a refusal to testify - when the coercion is resisted - is a wholly separate question.
    • A Process of Denial: Bork and Post-Modern Conservatism

      Boyle, James (2013-03-25)
      As you might guess from the title, Robert Bork's latest work, The Tempting of America, is a book about the Fall - both America's and Mr. Bork's own. It will not surprise many readers to, find that the two are linked, or that the "temptation" to which Mr. Bork refers is that of politics. In particular, he warns us of an increasing politicization of the American legal system. This politicization is caused primarily by judges who desert the original understanding of the Constitution and, under the guise of "interpretation," attempt instead to impose their own individual notions of justice on the cases before them. Mr. Bork conveys these messages in a book which is part autobiography and part legal theory, inspired by the ordeal which brought him to fame: the Senate's judicial confirmation process. In his case, of course, it was actually a process of denial. Unfortunately, so is the book. Although this article was prompted by the publication of The Tempting of America, its subject is wider than that book alone. As I went further back into Mr. Bork's intellectual history, I discovered that the arguments in his most recent book followed a formula developed in his earlier writings. Like The Tempting of America, Mr. Bork's other works follow a lapsarian pattern-a tale of a fall from grace, coupled with a strategy for redemption. Mr. Bork identifies a state of corruption and decay in some institution or area of law. He traces the rot to a particular departure from the proper state of affairs, a willful violation of an authoritatively decreed scheme of things. He then prescribes a method which will allow us to escape our current fallen state and return to a condition of righteousness. Mr. Bork speaks strongly in favor of his method, pronouncing it "inescapable" or "unavoidable." Yet it is obvious that Mr. Bork's panacea has all the same features as the disease it is supposed to cure, despite Mr. Bork's lengthy and thunderous denial that this is the case. Eventually, he falls silent for a while, only to emerge two or three years later with some new, and newly ineluctable, redemptive method. The process then repeats itself. Readers familiar only with Mr. Bork's most recent writings will be surprised to find that in the past he has been, successively, a believer in libertarianism, process theory, judicial restraint, natural rights, neutral principles, law and economics, and two distinct forms of originalism. At the time, each of these theories was offered as the only possible remedy to the subjectivity and arbitrariness of value judgements in a constitutional democracy, while the other theories he had held, or was about to hold, were rejected out of hand. The Tempting of America is, in one sense, the weakest and most obviously flawed of Mr. Bork's panaceas. He criticizes contemporary liberal constitutional jurisprudence for being arbitrary, politically biased, indeterminate, and ahistorical. Yet his prescription for cure - the philosophy of original understanding - is even more obviously flawed in these ways. Indeed, as the quotation at the beginning of this piece demonstrates, in an earlier incarnation he himself dismissed originalism as "naive." Mr. Bork's rhetoric of denial must be correspondingly stronger and more thunderous. Yet in another sense, The Tempting of America marks a departure, albeit a fragmentary and contradictory one, from the endless process of denial. It reveals a shift to a different form of conservative thought, one that could be called pre-modern, or even post-modern. For these reasons, among others, it behooves us to pay more attention to Mr. Bork's most recent argument than its surface confusion and dogma might first appear to deserve.
    • A Slightly Polemical Comment on Austin Sarat

      Brooks, Peter (2013-05-08)
      Let me begin by registering three points of emphatic agreement with Austin Sarat's invigorating remarks. First, like Sarat, I believe that bringing the humanities to, and into, the law is not a matter of "uplift and inspiration," though it is often so understood. Such an anodyne model of the "Law and Humanities" movement ultimately trivializes the interrogative force of the humanities while changing nothing in the practice of legal thinking. Second, I agree that currently the humanistic study of the law remains very much a handmaiden of legal studies, if not more accurately a scullery maid. Finally, I think an undergraduate liberal arts program that includes attention to the law and legal thinking is in itself very desirable. Nonetheless, I fear that Sarat's proposal of a "cultural studies of law" risks giving us a formula for impotence. I say this in part because I believe the cultural studies model offers no panacea. In the humanities, we have seen cultural studies become a kind of hotel lobby where all disciplines can hang out, brought together in a self-satisfied discourse on the implication of knowledge with power, on the marginal and the hegemonic; a somewhat desultory conversation at times because cultural studies as a field or a metadiscipline has not really proposed any powerful new theory or analytic model. I overstate the case - much animating work has been done in the name of cultural studies - because I think there is a mirage effect in the very label of cultural studies, whereas when you get to the field of practice, you find little that provides a unifying and productive paradigm for the field.
    • After Midnight: The Circuit Judges and the Repeal of the Judiciary Act of 1801

      Glickstein, Jed (2013-05-08)
      Most law students encounter the midnight judges, if at all, in a footnote to "perhaps the most famous case in American history." In the words of the judges' foremost historiographer, "the appointment of the 'midnight judges' has lingered because it affords the appropriate essential for a springboard introduction to an analysis of John Marshall's decision in Marbury v. Madison." To summarize: Thomas Jefferson and the Democratic-Republicans defeated the reigning Federalist Party, led by President John Adams, in the election of 1800. In response, the lame-duck Federalists tried to shore up their position in the short time before Adams left office. Just a few weeks before Jefferson's inauguration, the outgoing Federalist Congress passed the Judiciary Act of 1801, creating sixteen new federal circuit judgeships. In a separate act, Congress created three additional circuit judgeships and over forty justices of the peace for the District of Columbia. Adams hastily filled as many of these positions as he could with his supporters. As a Federalist senator famously observed to a friend, his party was "about to experience a heavy gale of adverse wind; can they be blamed for casting many anchors to hold their ship thro the storm?" In short order, however, President Jefferson and the Republicans regained the initiative. Shrugging off the Federalists' protests, the new Congress repealed the Judiciary Act, abolished the new courts, and put the so-called "midnight judges" out of their jobs. Jefferson also ordered his Secretary of State to ignore some signed commissions that the Adams administration had forgotten to deliver to justices of the peace during the chaotic changeover, leading William Marbury and several other would-be JPs to sue to get hold of their commissions. Marbury lost, but in deciding his case Chief Justice John Marshall promulgated what has become the classic statement of judicial review, the proposition that courts have the power to review the constitutionality of acts of Congress.
    • "After The Final No There Comes A Yes": A Law Teacher's Report

      Radin, Margaret (2013-03-25)
      For the past five or six years I have included six poems by Wallace Stevens in the readings for a required first-year law course. They are the only poems I teach in the course. Thomas Grey's thoughtful essay raises a seemingly unlikely question. Should Stevens's poetry be considered part of the legal canon? Do his poems possess legal authority? That in answer some kind of a "yes" or "maybe" might seriously be considered may at first surprise even the Stevens fans among legal academics. Yet why do I have the firm intuition that the poems are useful, relevant, important for law students to know? Why do they strike me as somehow deeply law-related? Professor Grey's question about poetry and legal authority prompts me to reflect upon and try to clarify my intuitions about law and Wallace Stevens. I share these reflections because those whose interest is aroused by Professor Grey's question might possibly be interested also in one personal and partial answer: how one teacher has found Stevens essential in one practical legal context, the training of law students in the ways of legal thought. So I offer this report from practice.
    • Against Constitutional Theory

      Campos, Paul (2013-03-25)
      Nobody can agree on what the Constitution means. Some argue that it prohibits states from banning abortions, while others claim that it says nothing about abortion, or that it prohibits abortion. It is claimed that the Constitution abolishes the death penalty, and that it specifically authorizes the death penalty; that it bans segregated schools and is indifferent to segregation; that it requires that we exempt religious believers from laws that burden the practice of their religion, and that it prohibits governments from granting such exemptions; that it eliminates the possibility of a thirty-one year-old president, and that it welcomes this possibility. Such examples, of course, could be greatly multiplied. Two beliefs about this perplexing document do not appear controversial. All commentators seem to agree that the Constitution is a text, and that understanding it is primarily a matter of deploying the proper theory of textual interpretation. The purpose of this article is to demonstrate that those beliefs are largely mistaken. I am aware that readers of this text will consider such a claim highly counterintuitive, and perhaps dismiss it out of hand. I can only prospectively ask for your patience. Reading, Barthes has noted, is an intimacy between strangers; and perhaps, like all intimacy, it requires an initial gesture of faith from both author and reader.
    • Against Culturalism

      Bromwich, David (2013-05-08)
      Listening yesterday to Professor Eco's sensible and genial remarks and thinking about their drift-that the universities perform a function not so different after all from the mass culture; that the distinction between high-academic and mass culture anyway is one of degree and not of kind; that the memberships overlap and we seem well enough able to take this in stride-I was struck, as Americans often are, by how different my experience of culture is from that of a European of the intellectual class. Eco was attacking with broad irony what must have seemed to him the louder side in a debate we Americans have all grown used to. Academic moralists regularly tell us how shallow academic culture is because, being a product of an elite, it does not represent the democratic yearnings of the populace. Meanwhile, in the culture at large, prospering satirists excoriate the public for its disappointment of the humanist ideal, and tax even the universities for having too far countenanced the vulgar taste. Eco dealt out jovial scorn to moralists of the second sort, and it was natural for us to take pleasure in his choice of targets. Very likely his remarks would meet the same warm response from an audience at CBS or Time-Warner. But it seems to me that moralists, of both the media mission civilisatriceand the academic-populist varieties, miss a point about American life, and that, under the charm of a scholar mature enough to split the difference, we are in danger of missing the same point ourselves. All the pleasant talk about broadening the scope of intellectual culture, about mingling high and low more freely-like the talk one hears from the opposite side, about letting refinement do its proper work - assumes that plenty of Americans are born and bred to a high culture which it is possible to inherit. Only on that assumption does it make sense either to want people to inherit it more securely or to point out the desirability of breaking out of it at last. And yet, as anyone can tell you who has studied this country or who grew up here, we do not have a high culture of any considerable depth, visibility, potency, or real standing. America does not have, and never did have, a high culture one can break out of. It is - it was for all the Americans in this audience - something we had to break into. How does that circumstance affect the argument about the place of a university in a democratic culture, the argument to which Eco chose to give a European turn in this American setting?
    • Agency and the Language of the Novel

      Culver, Stuart (2013-05-08)
      Irene Tucker, A Probable State: The Novel, the Contract, and the Jews. Chicago: University of Chicago Press, 2000. Pp. xiv, 311. $42, cloth. Irene Tucker's A Probable State: The Novel, the Contract, and the Jews is an intelligent, closely-argued book that deals insightfully and valuably with a number of issues students of literary and legal history find pressing today. She has three major stories to tell: how liberal--which for Tucker means Lockean-assumptions about individual agency, property, and representation failed to withstand the new ideas and social facts of the late nineteenth century; how the narrative conventions of realism were challenged and remade by new conceptions of literary authority and the act of reading; and how the Jew became the figure for a new relation between culture and identity. Along the way, Tucker offers a persuasive critique of the role context has come to play in the historicist literary study influenced by Michel Foucault. The largest claims Tucker makes in A Probable State are neither strikingly original nor unexpected to any reader familiar with the territory she covers. Still, one's journey through the book's complex and subtle readings is rewarding and at the center of A Probable State is an essay on the role of contract in Henry James's What Maisie Knew that seems to this reader an extremely successful example of how legal and literary studies can interact.
    • An American Vision of Federal Arts Subsidies: Why and How the U.S. Government Should Support Artistic Expression

      Reid, Daniel (2013-05-08)
      Debate over arts policy in the United States today rightly focuses on the legal background of market regulations, asking how our property rights regimes, intellectual and otherwise, should adapt to the internet's revolution in reproducibility and to the growing consolidation of distribution channels and backlists. Issues of copyright, digital rights management, and frequency access have obvious and fundamental ramifications for the creation, availability, and quality of a broad range of artistic endeavors. Adjustments to these policies are the most important form of "intervention" undertaken by the federal government because only it can legitimately craft and enforce these necessary rules. This Note focuses on financialinterventions in the arts, which have also been the subject of heated, if less productive, dispute. In the last few decades, the American conversation about government subsidies to the arts has been highly politicized, with many of the arguments wielded by supporters contributing little beyond ideological posturing. Despite the rhetorical force of appeals for money for the arts, virtually all of the major justifications advanced by proponents fail to build a persuasive case for direct federal funding. This Note argues that these proponents have largely overlooked by far the strongest justification for direct arts subsidies, one that is uniquely American and uniquely persuasive: a civic argument for government funding.
    • An Anthropological Approach to Modern Forfeiture Law: The Symbolic Function of Legal Actions Against Objects

      Berman, Paul (2013-05-08)
      In 1996 the Supreme Court issued two opinions, Bennis v. Michigan and United States v. Ursery, emphasizing the constitutionality of civil forfeiture schemes under both the Due Process and Double Jeopardy Clauses of the Fifth Amendment. These decisions, and civil forfeiture schemes generally, have faced strong criticism from scholars and civil libertarians. Critics point out that law enforcement agencies "perpetrate astonishing outrages on owners of private property through forfeitures," and they argue that civil forfeiture runs afoul of any number of constitutionally-based guarantees, from the Fourth Amendment's warrant requirement to the Eighth Amendment's concept of proportional punishment. Among the arguments advanced against civil forfeiture has been one based on its origins. The so-called "legal fiction" underlying forfeiture is that the government is acting against the property itself, rather than against the owner. Commentators have traced this fiction to the Middle Ages. Under the law of the deodand, an inanimate object that caused a death was deemed to be "guilty" of a crime and therefore was offered to God through forfeiture to the King. Those opposed to today's forfeiture laws have seized upon this history to demonstrate the supposedly senseless origins of forfeiture. "Implicit in this discussion is the absurdity of perpetuating a system that attributed evil to an ox, a tree, a boat, and a broadsword."
    • An Economy of Violence: Financial Crisis and Whig Constitutional Thought, 1720-1721

      Lebovitz, Adam (2018-09-16)
      The South Sea bubble burst suddenly in September 1720, the second in a chain of panics that struck Paris, London, and Amsterdam in quick succession. The crash in London was by far the most severe; within weeks two-thirds of England's nominal wealth had evaporated, public credit had collapsed, and London's most distinguished banking houses tottered on the brink of ruin. Commerce ground to a halt, leaving a forest of half-built ships rotting in city harbors and a thicket of unfinished mansions in London's fashionable districts.
    • An Embodied Bisexual Perspective

      Colker, Ruth (2013-05-08)
      In his book, Sex and Reason, Judge Richard Posner argues that law and society should treat sexuality as a "morally indifferent subject." Society should regard sexual preferences as having no greater moral significance than preferences for food. Although many gay rights proponents disagree with Posner's specific application of this principle, no one seems to disagree with his attempt to separate law and morality. That "morally indifferent" perspective which is advanced by Posner, as well as by many proponents of gay rights, will be the subject of this essay. I will argue, by contrast, that we should develop a morally significant perspective on gay rights which I call an "embodied bisexual perspective." In Part I, I will develop an embodied bisexual perspective and, in Part II, I will apply that perspective to sodomy laws, marriage and adoption, and employment in the military.