Karl Llewellyn and Jerome Frank are today considered co-founders of the American Legal Realist School. Although American legal realism is no longer the predominant school of jurisprudence in the United States, it still plays an important role in the formation of our legal traditions. Given the breath of Karl Llewellyn’s contributions to law in America, it would be unfathomable for such a varied body of work to have had only one or just a few significant influences. Several of the influences on the life and work of Karl Llewellyn have been suggested and expounded upon, including Arthur Corbin, Jerome Frank and Roscoe Pound. While these are certainly important influences on the life and work of Llewellyn, one major influence on his thinking has rarely been considered. The role of Rudolf von Jhering deserves further exploration.The purpose of this Article is to shed light on the influence of Rudolf von Jhering on the life and scholarship of Karl Llewellyn. Following a brief overview of Llewellyn’s life, education, major work, and jurisprudential philosophy, information is provided on the life of Rudolf von Jhering. Consideration is given to the influence of German jurisprudence on American jurisprudential theory and thought, as well as the recognized influences from German jurisprudence on Llewellyn’s work, including Jhering’s influence on the life and work of Llewellyn, with particular emphasis on the Uniform Commercial Code.
{"title":"Rudolf Von Jhering’s Influence on Karl Llewellyn","authors":"R. Whitman, Julie E. Wynns","doi":"10.2139/SSRN.1685883","DOIUrl":"https://doi.org/10.2139/SSRN.1685883","url":null,"abstract":"Karl Llewellyn and Jerome Frank are today considered co-founders of the American Legal Realist School. Although American legal realism is no longer the predominant school of jurisprudence in the United States, it still plays an important role in the formation of our legal traditions. Given the breath of Karl Llewellyn’s contributions to law in America, it would be unfathomable for such a varied body of work to have had only one or just a few significant influences. Several of the influences on the life and work of Karl Llewellyn have been suggested and expounded upon, including Arthur Corbin, Jerome Frank and Roscoe Pound. While these are certainly important influences on the life and work of Llewellyn, one major influence on his thinking has rarely been considered. The role of Rudolf von Jhering deserves further exploration.The purpose of this Article is to shed light on the influence of Rudolf von Jhering on the life and scholarship of Karl Llewellyn. Following a brief overview of Llewellyn’s life, education, major work, and jurisprudential philosophy, information is provided on the life of Rudolf von Jhering. Consideration is given to the influence of German jurisprudence on American jurisprudential theory and thought, as well as the recognized influences from German jurisprudence on Llewellyn’s work, including Jhering’s influence on the life and work of Llewellyn, with particular emphasis on the Uniform Commercial Code.","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116848036","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}
The last few years have brought some equilibrium to the power struggle in the federal system between prosecutors, judges, and Congress over criminal sentencing. Though pieces of this story have been shared and various Supreme Court sentencing cases analyzed, our unique contribution is to explain how and why a true sentencing reform movement that began in the mid-1980's was co-opted by conservative politics at the federal level at the turn of this century, thereby eliminating one avenue of change entirely for all federal and state actors. Part I belongs to Main Justice. (see Note below) It was during the early days of George W. Bush's administration that the Department of Justice began its all-out assault on the federal judiciary's sentencing powers as part of a campaign to consolidate central authority and to require the harshest possible sentences for all federal convictions. DOJ's campaign was played out in numerous arenas at the same time: (1) in Congress, where DOJ urged the adoption of laws addressing the problem of leniency of district court judges; (2) before the U.S. Sentencing Commission (Commission), which DOJ chided for not doing enough about the leniency problem; and (3) even among its own field offices by attempting to virtually eliminate the traditional charging discretion exercised by prosecutors and instead mandating that all federal prosecutors bring the most serious charges provable. Eventually, as the straw that broke the Court's back, the Department succeeded in prompting Congress to enact the Feeney Amendment, a piece of legislation that was viewed as a frontal assault on the discretion of federal judges in sentencing. Though the show is far from over, the Supreme Court regained the upper hand over both DOJ and Congress, as we explain in Part II, by trumping Congress's legislation (and DOJ's political agenda) on constitutional grounds. In United States v. Booker the Court upheld the overall constitutionality of the federal sentencing system but only on the condition that the Guidelines be applied in a purely advisory manner, subject to extremely weak appellate review for reasonableness. The Supreme Court gave the power over sentencing that Congress had transferred to DOJ back to judges. The Court reaffirmed that position in a series of additional Sixth Amendment cases decided in the October 2007 and 2008 Terms: Gall v. United States, Kimbrough v. United States, (both heard in the October 2007 Term) and Spears v. United States, (heard in the October 2008 Term) firmed federal district judge discretion through rigid limits on appellate reversals. The Court appeared far less concerned with the effects of its opinions on state criminal justice systems. This was sensible, as most states don't have mandatory sentencing guideline systems or presumptive sentencing systems, those states that do build more judicial flexibility in their systems, and state legislators are not at war with their judiciary, the Court's new constitutional rul
过去几年，联邦系统中检察官、法官和国会在刑事量刑问题上的权力斗争取得了一些平衡。虽然我们已经分享了这个故事的片段，并分析了各种最高法院的量刑案例，但我们的独特贡献是解释了20世纪80年代中期开始的一场真正的量刑改革运动是如何以及为什么在本世纪初被联邦一级的保守派政治所采纳的，从而完全消除了所有联邦和州参与者的变革途径。第一部分属于主要法官。(见下文附注)正是在乔治·w·布什(George W. Bush)政府执政初期，司法部开始全面攻击联邦司法机构的量刑权力，作为巩固中央权威、要求对所有联邦定罪者处以最严厉刑罚的运动的一部分。司法部的运动同时在多个领域展开:(1)在国会，司法部敦促通过解决地区法院法官宽大处理问题的法律;(2)在美国量刑委员会(Commission)面前，司法部指责该委员会在从宽问题上做得不够;(3)甚至在其自己的外地办事处中，试图实际上消除检察官行使的传统指控自由裁量权，而强制要求所有联邦检察官提出可证明的最严重指控。最终，作为压垮最高法院的最后一根稻草，司法部成功地促使国会通过了《菲尼修正案》(Feeney Amendment)，这项立法被视为对联邦法官量刑自由裁量权的正面攻击。尽管这场秀还远未结束，但正如我们在第二部分所解释的那样，最高法院在宪法基础上战胜了国会的立法(以及司法部的政治议程)，重新占据了司法部和国会的上风。在美国诉布克案中，法院维持联邦量刑制度的总体合宪性，但前提是准则必须以纯粹咨询的方式适用，并须接受极其微弱的上诉审查。最高法院将国会移交给司法部的量刑权还给了法官。最高法院在2007年10月和2008年10月期间裁定的一系列附加第六修正案案件中重申了这一立场:Gall诉美国案、Kimbrough诉美国案(均在2007年10月期间审理)和Spears诉美国案(在2008年10月期间审理)通过严格限制上诉驳回，巩固了联邦地区法官的自由裁量权。最高法院似乎远不关心其意见对各州刑事司法系统的影响。这是合理的，因为大多数州没有强制性的量刑指导系统或推定量刑系统，那些州在他们的系统中建立了更多的司法灵活性，州立法者也没有与他们的司法机构发生冲突，法院的新宪法裁决实际上对州的影响明显小于联邦量刑。这并不是说，正如我们在第三部分中指出的那样，法院完全忽视了各州;两个顽固的州被明确地提醒了布莱克利/布克规则，最高法院在最近的判决中，俄勒冈诉Ice案(2008年10月开庭审理)，通过对多项罪行实施并行或连续判决的做法，赋予了州审判法官更大的自由裁量权。由于前几个任期的结果，新闻部最近在政治舞台上取得的许多胜利都在法庭上失去了。在司法部长阿尔贝托·r·冈萨雷斯(Alberto R. Gonzales)的领导下，司法部继续推动更严厉的惩罚，但情况的变化需要一种新的方法。国会考虑并否决了可能在宪法上复制司法部早期政变的新立法。当司法部在国会的共和党盟友在2006年大选后失去多数席位时，要求更严厉惩罚的努力大幅放缓。我们希望司法部长埃里克·霍尔德(Eric Holder)放弃严厉的量刑法律，并严格控制该领域的助理联邦检察官(AUSA)。我们现在看到，联邦地区法官的量刑低于联邦量刑指南规定的范围的情况越来越多，但并没有忽视联邦量刑指南。虽然州法官从未遭受过同样的痛苦，但我们希望州立法者对新的宪法要求做出反应，通过咨询而不是强制性指导来增加州司法在量刑方面的自由裁量权，并扩大司法权力以加重量刑。注:这并不总是司法部长、其他政治任命人员和在宾夕法尼亚大道和其他华盛顿市中心工作的审判律师的尊称，与遍布美国的94个联邦检察官办公室不同。
{"title":"DOJ's Attack on Federal Judicial Leniency, the Supreme Court's Response, and the Future of Criminal Sentencing","authors":"S. Klein, S. Thompson","doi":"10.2139/SSRN.1418622","DOIUrl":"https://doi.org/10.2139/SSRN.1418622","url":null,"abstract":"The last few years have brought some equilibrium to the power struggle in the federal system between prosecutors, judges, and Congress over criminal sentencing. Though pieces of this story have been shared and various Supreme Court sentencing cases analyzed, our unique contribution is to explain how and why a true sentencing reform movement that began in the mid-1980's was co-opted by conservative politics at the federal level at the turn of this century, thereby eliminating one avenue of change entirely for all federal and state actors. Part I belongs to Main Justice. (see Note below) It was during the early days of George W. Bush's administration that the Department of Justice began its all-out assault on the federal judiciary's sentencing powers as part of a campaign to consolidate central authority and to require the harshest possible sentences for all federal convictions. DOJ's campaign was played out in numerous arenas at the same time: (1) in Congress, where DOJ urged the adoption of laws addressing the problem of leniency of district court judges; (2) before the U.S. Sentencing Commission (Commission), which DOJ chided for not doing enough about the leniency problem; and (3) even among its own field offices by attempting to virtually eliminate the traditional charging discretion exercised by prosecutors and instead mandating that all federal prosecutors bring the most serious charges provable. Eventually, as the straw that broke the Court's back, the Department succeeded in prompting Congress to enact the Feeney Amendment, a piece of legislation that was viewed as a frontal assault on the discretion of federal judges in sentencing. Though the show is far from over, the Supreme Court regained the upper hand over both DOJ and Congress, as we explain in Part II, by trumping Congress's legislation (and DOJ's political agenda) on constitutional grounds. In United States v. Booker the Court upheld the overall constitutionality of the federal sentencing system but only on the condition that the Guidelines be applied in a purely advisory manner, subject to extremely weak appellate review for reasonableness. The Supreme Court gave the power over sentencing that Congress had transferred to DOJ back to judges. The Court reaffirmed that position in a series of additional Sixth Amendment cases decided in the October 2007 and 2008 Terms: Gall v. United States, Kimbrough v. United States, (both heard in the October 2007 Term) and Spears v. United States, (heard in the October 2008 Term) firmed federal district judge discretion through rigid limits on appellate reversals. The Court appeared far less concerned with the effects of its opinions on state criminal justice systems. This was sensible, as most states don't have mandatory sentencing guideline systems or presumptive sentencing systems, those states that do build more judicial flexibility in their systems, and state legislators are not at war with their judiciary, the Court's new constitutional rul","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117155755","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}
Many judges are minimalists. They favor rulings that are narrow, in the sense that they govern only the circumstances of the particular case, and also shallow, in the sense that they do not accept a deep theory of the legal provision at issue. In law, narrow and shallow decisions have real advantages insofar as they reduce both decision costs and error costs; make space for democratic engagement on fundamental questions; and reflect a norm of civic respect. In many cases, however, minimalism is hard to justify in these ways. Sometimes small steps increase the aggregate costs of decisions; sometimes they produce large errors, especially when they export decision-making burdens to fallible people. Predictability is an important variable, and minimalist decisions can compromise predictability. Sometimes large, nonminimalist steps serve democratic values and do not compromise the norm of civic respect. It follows that the justifications for minimalism are unconvincing in many contexts. The debate between minimalists and their adversaries is closely related to the debate between those who prefer standards and those who prefer rules, though there are some important differences.
{"title":"Beyond Judicial Minimalism","authors":"C. Sunstein","doi":"10.2139/SSRN.1274200","DOIUrl":"https://doi.org/10.2139/SSRN.1274200","url":null,"abstract":"Many judges are minimalists. They favor rulings that are narrow, in the sense that they govern only the circumstances of the particular case, and also shallow, in the sense that they do not accept a deep theory of the legal provision at issue. In law, narrow and shallow decisions have real advantages insofar as they reduce both decision costs and error costs; make space for democratic engagement on fundamental questions; and reflect a norm of civic respect. In many cases, however, minimalism is hard to justify in these ways. Sometimes small steps increase the aggregate costs of decisions; sometimes they produce large errors, especially when they export decision-making burdens to fallible people. Predictability is an important variable, and minimalist decisions can compromise predictability. Sometimes large, nonminimalist steps serve democratic values and do not compromise the norm of civic respect. It follows that the justifications for minimalism are unconvincing in many contexts. The debate between minimalists and their adversaries is closely related to the debate between those who prefer standards and those who prefer rules, though there are some important differences.","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"127 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122911418","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}
This article wades into the debate between contractarians and anti-contractarians over the extent to which statutes on unincorporated business entities should limit the ability of the participants in those entities to contract around fiduciary duties. Statutes enacted in the past several years provide considerable, but not complete, freedom to limit fiduciary duties. Contractarians argue that statutory limitations are inefficient and unnecessary, while anti-contractarians take the view that the statutes provide too much freedom of contract. This article stakes out a middle ground, arguing that the drafters of the statutes got it right and that in the absence of statutory limitations the courts would likely impose limitations. The middle ground chosen - that limitations cannot be "manifestly unreasonable" - should prove workable over time. By providing statutory guidance, lawyers and others advising unincorporated business entities will be better able to craft enforceable agreements. Finally, this article presents some ideas on how courts might interpret the term "manifestly unreasonable."
{"title":"Fiduciary Duties and Unincorporated Business Entities: In Defense of the 'Manifestly Unreasonable' Standard","authors":"Mark J. Loewenstein","doi":"10.2139/SSRN.893213","DOIUrl":"https://doi.org/10.2139/SSRN.893213","url":null,"abstract":"This article wades into the debate between contractarians and anti-contractarians over the extent to which statutes on unincorporated business entities should limit the ability of the participants in those entities to contract around fiduciary duties. Statutes enacted in the past several years provide considerable, but not complete, freedom to limit fiduciary duties. Contractarians argue that statutory limitations are inefficient and unnecessary, while anti-contractarians take the view that the statutes provide too much freedom of contract. This article stakes out a middle ground, arguing that the drafters of the statutes got it right and that in the absence of statutory limitations the courts would likely impose limitations. The middle ground chosen - that limitations cannot be \"manifestly unreasonable\" - should prove workable over time. By providing statutory guidance, lawyers and others advising unincorporated business entities will be better able to craft enforceable agreements. Finally, this article presents some ideas on how courts might interpret the term \"manifestly unreasonable.\"","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131043465","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}
The corporation does not allow owners, at least by default, to cash out their interests. This feature of "capital lock-in" facilitates durable and centralized management of corporate assets. It has been argued that capital lock-in is what has made the corporation the dominant business form and has enabled the modern firm. This argument for the historical significance of capital lock-in is intended to provide a rationale for rejecting reforms that would compromise lock-in. However, lock-in has costs, including inhibiting effective monitoring of managers. Moreover, the historical argument is inaccurate, since lock-in has always been available in the partnership form. Lock-in should be viewed as just one of many features of firms that evolve to meet business needs, not frozen in place by a dubious account of the past.
{"title":"Should History Lock in Lock-In?","authors":"Larry E. Ribstein","doi":"10.2139/SSRN.883648","DOIUrl":"https://doi.org/10.2139/SSRN.883648","url":null,"abstract":"The corporation does not allow owners, at least by default, to cash out their interests. This feature of \"capital lock-in\" facilitates durable and centralized management of corporate assets. It has been argued that capital lock-in is what has made the corporation the dominant business form and has enabled the modern firm. This argument for the historical significance of capital lock-in is intended to provide a rationale for rejecting reforms that would compromise lock-in. However, lock-in has costs, including inhibiting effective monitoring of managers. Moreover, the historical argument is inaccurate, since lock-in has always been available in the partnership form. Lock-in should be viewed as just one of many features of firms that evolve to meet business needs, not frozen in place by a dubious account of the past.","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129794208","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}
What survives of American Indian tribal sovereignty rests largely on decisions of the U.S. Supreme Court, which rely in turn on constitutional principles, various Indian treaties, federal statutes, and what amounts to judge-made federal common law. But the Court has historically been an enemy as much as an ally of Indian sovereignty, and today it seems intent on undermining what remains of the basic principles of American Indian law. In a remarkable reversal, the political branches of the federal and even some state governments are now (sometimes) more friendly than federal and state courts to Indian tribal interests.This article is part of a symposium marking the centennial of the Court's decision in Lone Wolf v. Hitchcock (1903), often called the "Dred Scott of Indian law." Lone Wolf upheld Congress's plenary power to seize Native American lands and abrogate Indian treaties. Later decisions qualified Lone Wolf's extreme abdication of judicial scrutiny and signalled a partial and tentative judicial defense of tribal rights. Yet the Lone Wolf mentality survives and has even undergone a revival on the modern Court, largely at the instigation of Chief Justice Rehnquist.The article begins by holding up as examples three cases decided in 1999, by the U.S. Supreme Court, the Navajo Nation Supreme Court, and the California Supreme Court. The first two reaffirmed Indian sovereignty and treaty rights. The California court, dealing with an Indian casino issue, went against tribal interests over a strong dissent, but the decision quickly boomeranged as the people of California overruled their judges to allow vastly expanded gaming on Indian lands.The article then goes back in time to review Lone Wolf and its progeny, pointing out how even the Warren Court, as late as 1955, outdid Lone Wolf in showing disregard for Indian property rights under the Constitution. The article surveys several key cases after 1955. Some of these countered the Lone Wolf mentality, but they also reveal Rehnquist's growing influence. The Court in 1999, for example, reaffirmed Indian treaty rights in a 5-4 decision barely noticed except by Indian law specialists. But Rehnquist's dissent, among other startling moves, sought to resurrect an anti-Indian rule of treaty interpretation so dated and extreme it was rejected in 1905 by the same Court that decided Lone Wolf. Instead of construing relevant law in favor of Indian treaty rights, as the Court has at least purported to do since long before Lone Wolf, Rehnquist strained to uphold the legality of an Indian removal order dating from 1850.The article closes by discussing two cases decided in 2001 (one unanimous and one over a notably weak dissent) in which Rehnquist wrote or joined the Court's opinion. Both cut back Indian sovereignty in terms suggesting a triumphal revival of the Lone Wolf mentality in the new millennium, and both suggest that this revival faces little effective opposition on the Court.
美国印第安部落的主权在很大程度上取决于美国最高法院的决定，而最高法院又依赖于宪法原则、各种印第安条约、联邦法规以及相当于法官制定的联邦普通法。但历史上，最高法院既是印第安人主权的盟友，也是敌人。今天，它似乎有意破坏美国印第安人法律中仅存的基本原则。在一个显著的逆转中，联邦政府的政治分支甚至一些州政府现在(有时)比联邦和州法院对印第安部落的利益更友好。本文是纪念最高法院在1903年的Lone Wolf v. Hitchcock一案中作出判决一百周年的专题讨论会的一部分，该案件通常被称为“印度法律界的德雷德·斯科特”。独狼主张国会有权夺取印第安人的土地，废除印第安人的条约。后来的判决证明了孤狼对司法审查的极端放弃，标志着对部落权利的部分和试探性司法辩护。然而，在首席大法官伦奎斯特的鼓动下，“独狼”的思维依然存在，甚至在现代最高法院重现。文章以1999年美国最高法院、纳瓦霍民族最高法院和加州最高法院判决的三个案件为例。前两次重申了印度的主权和条约权利。加州法院在处理一个印第安人赌场的问题时，因为强烈的异议而违背了部落的利益，但这个决定很快就产生了反作用，加州人民推翻了他们的法官，允许在印第安人的土地上大规模扩张赌博。文章随后回顾了《孤狼》及其后代，指出即使是沃伦法院，直到1955年，在无视宪法规定的印度财产权方面，也比《孤狼》做得更好。本文考察了1955年以后的几个关键案例。其中一些反驳了独狼的心态，但它们也揭示了伦奎斯特日益增长的影响力。例如，1999年最高法院以5比4的投票结果重申了印度的条约权利，除了印度法律专家几乎没有注意到这一点。但伦奎斯特的异议，在其他令人吃惊的举动中，试图复活一种反印第安的条约解释规则，这种规则是如此过时和极端，以至于在1905年被判决孤狼案的同一法院驳回。伦奎斯特没有将相关法律解释为有利于印第安人的条约权利，而法院至少在《孤狼案》之前很久就声称这样做了，而是竭力维护1850年发布的印第安人驱逐令的合法性。文章最后讨论了2001年判决的两起案件(一起是一致判决，另一起是明显微弱的异议)，伦奎斯特在这两起案件中撰写或参与了最高法院的意见。两者都削弱了印度的主权，暗示孤狼心态在新千年的胜利复兴，两者都表明这种复兴在最高法院几乎没有遇到有效的反对。
{"title":"Fighting the Lone Wolf Mentality: Twenty-First Century Reflections on the Paradoxical State of American Indian Law","authors":"B. Wildenthal","doi":"10.2139/SSRN.480885","DOIUrl":"https://doi.org/10.2139/SSRN.480885","url":null,"abstract":"What survives of American Indian tribal sovereignty rests largely on decisions of the U.S. Supreme Court, which rely in turn on constitutional principles, various Indian treaties, federal statutes, and what amounts to judge-made federal common law. But the Court has historically been an enemy as much as an ally of Indian sovereignty, and today it seems intent on undermining what remains of the basic principles of American Indian law. In a remarkable reversal, the political branches of the federal and even some state governments are now (sometimes) more friendly than federal and state courts to Indian tribal interests.This article is part of a symposium marking the centennial of the Court's decision in Lone Wolf v. Hitchcock (1903), often called the \"Dred Scott of Indian law.\" Lone Wolf upheld Congress's plenary power to seize Native American lands and abrogate Indian treaties. Later decisions qualified Lone Wolf's extreme abdication of judicial scrutiny and signalled a partial and tentative judicial defense of tribal rights. Yet the Lone Wolf mentality survives and has even undergone a revival on the modern Court, largely at the instigation of Chief Justice Rehnquist.The article begins by holding up as examples three cases decided in 1999, by the U.S. Supreme Court, the Navajo Nation Supreme Court, and the California Supreme Court. The first two reaffirmed Indian sovereignty and treaty rights. The California court, dealing with an Indian casino issue, went against tribal interests over a strong dissent, but the decision quickly boomeranged as the people of California overruled their judges to allow vastly expanded gaming on Indian lands.The article then goes back in time to review Lone Wolf and its progeny, pointing out how even the Warren Court, as late as 1955, outdid Lone Wolf in showing disregard for Indian property rights under the Constitution. The article surveys several key cases after 1955. Some of these countered the Lone Wolf mentality, but they also reveal Rehnquist's growing influence. The Court in 1999, for example, reaffirmed Indian treaty rights in a 5-4 decision barely noticed except by Indian law specialists. But Rehnquist's dissent, among other startling moves, sought to resurrect an anti-Indian rule of treaty interpretation so dated and extreme it was rejected in 1905 by the same Court that decided Lone Wolf. Instead of construing relevant law in favor of Indian treaty rights, as the Court has at least purported to do since long before Lone Wolf, Rehnquist strained to uphold the legality of an Indian removal order dating from 1850.The article closes by discussing two cases decided in 2001 (one unanimous and one over a notably weak dissent) in which Rehnquist wrote or joined the Court's opinion. Both cut back Indian sovereignty in terms suggesting a triumphal revival of the Lone Wolf mentality in the new millennium, and both suggest that this revival faces little effective opposition on the Court.","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"96 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123233688","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}
This essay discusses several of the themes of Sanford Levinson's work, focusing particularly on his comparison between law and religious faith, and his view of the United States Constitution as the nation's civic religion. The article argues that if faith in law is like religious faith, it must also respond to the dangers of idolatry and the problem of apology for the evils of the world. The article discusses the role of lawyers as rhetors, law as a performing art, and Levinson's well-known distinction between constitutional catholicism - belief in a central authority that determines the meaning of the Constitution - and constitutional protestantism - belief in the right and duty of individuals to determine for themselves what the Constitution means. The article concludes by deconstructing the catholicism/protestantism distinction, showing that although the distinction is not as clear-cut as Levinson originally imagined, it leads to an intriguing theory of what constitutional law is and how it is made by non-judicial actors.
{"title":"Idolatry and Faith: The Jurisprudence of Sanford Levinson","authors":"J. Balkin","doi":"10.2139/SSRN.397140","DOIUrl":"https://doi.org/10.2139/SSRN.397140","url":null,"abstract":"This essay discusses several of the themes of Sanford Levinson's work, focusing particularly on his comparison between law and religious faith, and his view of the United States Constitution as the nation's civic religion. The article argues that if faith in law is like religious faith, it must also respond to the dangers of idolatry and the problem of apology for the evils of the world. The article discusses the role of lawyers as rhetors, law as a performing art, and Levinson's well-known distinction between constitutional catholicism - belief in a central authority that determines the meaning of the Constitution - and constitutional protestantism - belief in the right and duty of individuals to determine for themselves what the Constitution means. The article concludes by deconstructing the catholicism/protestantism distinction, showing that although the distinction is not as clear-cut as Levinson originally imagined, it leads to an intriguing theory of what constitutional law is and how it is made by non-judicial actors.","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126145038","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}
Pub Date : 1900-01-01DOI: 10.1093/acprof:oso/9780199239351.003.0007
J. Gardner
{"title":"Fletcher on Offences and Defences","authors":"J. Gardner","doi":"10.1093/acprof:oso/9780199239351.003.0007","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199239351.003.0007","url":null,"abstract":"","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115089755","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}
Pub Date : 1900-01-01DOI: 10.4324/9781315094205-22
S. Rozelle
This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized administrator of TU Law Digital Commons. For more information, please contact daniel-bell@utulsa.edu. Recommended Citation Susan D. Rozelle, Daubert, Schmaubert: Criminal Defendants and the Short End of the Science Stick, 43 Tulsa L. Rev. 597 (2007).
本文由TU Law数字共享资源提供给您免费开放访问。它已被接受纳入塔尔萨法律评论由TU法律数字共享的授权管理员。欲了解更多信息，请联系daniel-bell@utulsa.edu。Susan D. Rozelle, Daubert, Schmaubert:刑事被告和科学棍子的短端，43 Tulsa L. Rev. 597(2007)。
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Pub Date : 1900-01-01DOI: 10.4324/9781315053547-18
B. Schwartz
{"title":"Supreme Court Superstars: The Ten Greatest Justices","authors":"B. Schwartz","doi":"10.4324/9781315053547-18","DOIUrl":"https://doi.org/10.4324/9781315053547-18","url":null,"abstract":"","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130616812","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}
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