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Abstract:
In most cultural contexts creativity is viewed as an unalloyed virtue. Law is different: given the inherently conservative and slow-moving pace of legal evolution, innovation in the law is viewed by many observers as problematic. Yet American revolutionaries, constitutionalists, legislators, chief executives, judges, administrators, scholars and activists have creatively changed the law for over two centuries in mostly positive ways with some admittedly questionable innovations. This article makes a bold new proposal designed to energize and clarify our synoptic thinking about the nature of legal creativity.

Starting with the opinions of numerous eminent legal historians on the most creative moments in Anglo-American law, we will explore the meaning of creative moments in law, and advance to analytically compare legal creativity with other kinds of creativity (corporate, artistic, military and rhetorical). Then we will heuristically entertain a ranking of the top hundred moments in American law and a justification for the ranking.

law and creativity, American legal development, legal history

Abstract:
The key American official in formulating and implementing American national security law and policy is the president of the United States. By virtue of the Presidential Oath Clause in the Constitution and the president's taking of the uniquely important Presidential Oath as a condition of assuming the national executive power, the president has the paramount federal responsibility to articulate and watch over the American national interest.

As I suggested in a previous article, the field of presiprudence should be launched by scholars to focus on the legal work product of the president. The present article seeks to map out the rough contours of the presiprudence of American national security law and policy in the post-9/11 world. First, I present the case for American presidents to pursue a maximum security American state. Second, I consider the limits of presidential pursuit of a maximum security American state. Finally, I offer specific and general guidelines for presidents in balancing security with liberty in protecting the American nation.

national security, presidential powers, presidential oath

Abstract:
In this Essay, Professor Blomquist responds to the remarks of Seth Tillman, which critiqued an article by Professor Geoffrey Stone on whether or not the Founders contemplated a "Christian Nation."

We Americans - We the People - relish our national Constitution and delight in the game of constitutional interpretation. The game of American constitutional interpretation recalls the complexity and nuance of other great games like the Glass Bead Game and Chess. In never-ending iterations about the meaning of our Constitution we pontificate and debate about intellectual antecedents, historical background, provisions of the Constitution, ratification, contemporary exigencies, and much more.

Seth Barrett Tillman has provided constitutional law "gamers" with two hard-hitting legal think pieces - one, a full-blown article in Penn State Law Review, the other, an abridged version of that article in Cardozo Law Review De Novo - evaluating and critiquing Professor Geoffrey R. Stone’s Melville B. Nimmer Memorial Lecture and Essay published in the UCLA Law Review.

In this modest and concise Essay, I seek to praise Tillman's intellectual virtues (while empathizing, in part, with Professor Stone). My pivoting gambit and larger purpose, however, is to urge legal scholars, jurists and lawyers to strive for what I call contextual constitutional intelligence in playing the vital game of interpreting our American Constitution.

Constitution, constitutional intelligence, constitutional law 'gamers'

Abstract:
This Article explores narratives of extreme American neighbors acting badly - to other neighbors, to the police and to themselves. Starting with a philosophical-religious-psychological assessment of the neighbor as tragic construct, the Article quantifies and analyzes American neighbor jurisprudence in the opening years of the twenty-first century. The cautionary tales reveal ongoing, serious, and destructive meltdowns involving neighbors throughout the United States. The Article notes that while state and federal judges have done a fair job in resolving these vexing disputes under traditional criminal law, tort and property principles, it is high time for some new approaches. In formulating an epistemic theory of extreme neighborhood conflict, the Article closes with an overarching gestalt, suggests a mapping of American neighborhood law, and concludes with a few ideas for potential pragmatic policy responses.

neighbors, neighborhood disputes

Abstract:
The trouble with negligence per se doctrine in the United States is that - like a house built on soft and shifting sands - it is structurally unsound and lots of bother to maintain. It is time to tear the unstable edifice down, reinforce the foundation, and build anew. Nonprescriptive, statute-like enactments are, by definition, not aimed at civil tort actions. But, prevailing negligence per se doctrine in America utilizes an intent-based approach of whether or not such laws were designed to protect a particular class of persons from a particular kind of harm. Not only is prevailing negligence per se doctrine unsystematic, vague, muddled and wrongheaded as a result, it is inefficient and confusing for judges, lawyers and jurors, alike. This Article proposes a new approach to negligence per se by urging courts to consider a number of steps. They include rescinding prevailing negligence per se doctrine; announcing a baseline for the relevant common law standard of reasonable care, as discerned and applied by a jury; crafting a clear statement of the rule of interpretation whereby statute-like enactments will not be utilized as binding tort standards unless they unmistakably include those standards in the actual text of the enactment; and, finally, allowing violations of nonprescriptive, statute-like standards to be considered by the jury - along with all the other evidence in the case - as mere evidence of lack of due care. But, the Article goes on to argue that courts should retain the judicial power to borrow nonprescriptive, statute-like enactments, on a very selective basis, if astute policy analysis reveals substantial advantages in discrete policy areas for utilizing a more specific standard of care.

torts, jurisprudence, negligence per se

Abstract:
This article addresses the following questions: What kind of human situations are addressed by road rage language in the popular press? Does the legal press, consisting of bar journals and legal newspapers, deploy the road rage lexeme in an analogous fashion to the popular press? How have legal scholars, courts, and legislatures used the phrase? Has use of the road rage lexeme helped or impeded legal reasoning and understanding? The article canvasses a sample of popular print media accounts of road rage, with primary emphasis on major American newspapers. Then, the article examines the use of road rage language in the more rarified context of the legal media. This is followed by a description and an analysis of lawyerly use of road rage parlance in law review articles, legislative materials, and written judicial opinions. Finally, the article draws a few short and tentative conclusions. Driving the use of the road rage lexeme has been the result of legal culture and popular culture dissolving into each other. Popularized by newspaper reporters and editorial writers who felt need to describe what they viewed as increasing incidents of aggressive and violent behavior in and around automobiles on our increasingly congested roadways, the road rage lexeme was transferred to the legal press and, ultimately, to legal analysts in legislatures, academia, and courts. These analysts used it to explain in a short-cut, simple phrase multiple and complicated human frustrations, reactions, encounters, invasions, and bloodshed on America's highways, street corners, and parking lots. While legal analysts have attempted to define road rage, the meaning of the phrase remains amorphous and unbound. The legal community needs to be careful in deploying road rage parlance in new statutes, judicial opinions, and law review articles. The lexeme, as a cultural construct, has the potential of infusing law with a post-modern malady of subjectivity run rampant. Road rage may be a convenient legal handle, but it is a lexeme fraught with danger because it has the tendency to be so general and subjective as to border on the meaningless.