LEGAL HISTORY eJOURNAL

"Fortuity and the Article III 'Case': A Critique of Fletcher's 'The Structure of Standing'" Free Download
Alabama Law Review, Vol. 65, No. 289, 2013
Pepperdine University Legal Studies Research Paper No. 2014/23

ROBERT J. PUSHAW, Pepperdine University - School of Law
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25 years after William A. Fletcher wrote “The Structure of Standing,� Robert Pushaw builds upon Fletcher’s theory of standing and offers an alternative. Pushaw argues that Article III's text, drafting and ratification history, and early implementation -- materials that Professor Fletcher explicitly declined to consider -- reveal a basic and universally applicable standing principle. Standing should hinge on whether the plaintiff is presenting a true Article III “Case,� which requires a showing that her federal legal rights have been invaded fortuitously (i.e., involuntarily as a result of a chance occurrence) so that she can legitimately seek a judicial declaration of the law. Restricting federal courts to their Article III role of expounding federal law only as needed to exercise their “judicial Power� to decide genuine “Cases� helps implement the Constitution's system of separation of powers.

Pushaw’s theory that only “accidental� plaintiffs have standing to bring “Cases� leads him to modify Professor Fletcher's approach in two key ways. First, whereas Fletcher contended that Congress has plenary power to confer standing to vindicate statutory rights, Pushaw would accord such legislative judgments only a strong presumption of constitutionality -- but one that can be overcome in certain circumstances where blind judicial deference threatens separation of powers. Second, Pushaw agrees with Fletcher that particular constitutional clauses implicitly suggest who can enforce them and that Congress cannot grant standing more generously. Pushaw would add, however, that plaintiffs who bring “Cases� arising under the Constitution must demonstrate that their constitutional rights have been violated by happenstance events beyond their control.

Part I of the article describes modern standing law and identifies its serious flaws. Part II discusses Professor Fletcher's proposed solution to these problems. Part III evaluates his thesis in light of the intervening twenty-five years of standing cases and scholarship. Part IV sets forth Pushaw’s “accidental plaintiff� theory of standing as a more practical and historically grounded alternative.

"Ineffective Assistance of Counsel Before Powell v. Alabama: Lessons from History for the Future of the Right to Counsel" Free Download
Iowa Law Review, Vol. 99, p. 2161, 2014
U of Penn Law School, Public Law Research Paper No. 14-29

SARA MAYEUX, University of Pennsylvania Law School
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The doctrinal literature on ineffective assistance of counsel typically begins with the 1932 Supreme Court case of Powell v. Alabama. This symposium contribution goes back farther, locating the IAC doctrine’s origins in a series of state cases from the 1880s through the 1920s. At common law, the traditional agency rule held that counsel incompetence was never grounds for a new trial. Between the 1880s and the 1920s, state appellate judges chipped away at that rule, developing a more flexible doctrine that allowed appellate courts to reverse criminal convictions in cases where, because of egregious attorney ineptitude, there was reason to think the verdict might have been different with a competent lawyer. In 1932, the Supreme Court drew upon this line of state cases when it ratified the emerging doctrine in Powell. The persistence of similar complaints of unfair trials across very different time periods, and despite much ostensible doctrinal change, suggests that the inequities of the American criminal justice system are structurally embedded in the adversary process more than they are a function of the specifics of the current iteration of right-to-counsel doctrine. As such, this history lends support to arguments for criminal justice reform that emphasize the need for systemic legislative and policy change rather than merely doctrinal tinkering.

"Cutting to the Bone: The Radical Challenge of Anna Doyle Wheeler and William Thompson" Free Download

JIM JOSE, University of Newcastle (Australia)
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In 1825 a significant feminist book was published under the title Appeal of One Half the Human Race, Women: Against the Pretensions of the Other Half, Men, to Retain Them in Political, and Thence in Civil and Domestic, Slavery; in Reply to a Paragraph of Mr. Mill's Celebrated “Article on Government. It was a direct political response to claims made by liberal philosopher James Mill that women did not need to be enfranchised. The argument of this paper is that the Appeal’s response to Mill represents one of the most challenging political statements of early nineteenth century political thought. First, it definitively refuted Mill’s argument and threw down the gauntlet to the fundamental liberal utilitarian premises upon which Mill’s argument rested. Second, it produced one of the most radical statements ever published in favour of women’s full social and political freedom, even more so than Mary Wollstonecraft’s influential treatise published 30 years earlier. In its structure and the manner of presentation of its arguments the Appeal challenged the masculinist standards of authorship even as it appeared to conform to them. And third, the Appeal provided James Mill’s son, John Stuart Mill, with the arguments upon which the younger Mill’s reputation as a nineteenth-century feminist now rests. Consequently, the Appeal represents an original formulation of feminist political theory that is more than a hyphenated offspring of the masculinist tradition of political thought in which it arose. It is feminist political theory without apology.

"No Entry to the Public Lands: Towards a Theory of a Public Trust Servitude for a Way Over Abutting Private Land" Free Download
Wyoming Law Review, Vol. 14, No. 1, 2014

SHELBY D. GREEN, Pace University - School of Law
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This article explores the problem of inadequate access and why owners of private property abutting public lands cannot fence out the public if their sole or primary purpose is to deny access to public land. The reasons why such landowners should not be allowed to put up fences, even on their own land, if the effect is to hinder the public's access to public land are several. First, it is opportunistic and unjustly interferes with citizens' ability to enjoy the interest they hold in public lands. Second, it denies citizens access rights rooted in the common law. Third, and perhaps most compelling, because of general notions of property ownership and the evolving public trust doctrine, the right to exclude the public to the extent of access to public lands never inhered in the adjoining private land title.

This article begins with a general discussion of what it means to own land privately in our property regime. The second section discusses the United States' landholdings in the country, the differences in ownership rights from that of private ownership, and the obligations imposed upon the federal government as sovereign and as proprietor of public lands. After that discussion, the article examines the historical causes for the lack of access, along with the federal government's responses. This leads into a discussion of some of the legal theories available for assuring access. Finally, the argument presented is that, notwithstanding the Supreme Court's attempt to close the door to implied easements in favor of the government, the expanded concept of public trust may still provide a path through.

"Sacred Trust or Sacred Right?" Free Download
in The Constitutional Parent: Rights, Responsibilities, and the Enfranchisement of the Child: (New Haven, Conn.: Yale University Press, 2014)

JEFFREY SHULMAN, Georgetown University Law Center
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It is commonly assumed that parents have long enjoyed a fundamental legal right to control the upbringing of their children, but this reading of the law is sorely incomplete. What is deeply rooted in our legal traditions is the idea that the state entrusts parents with custody of the child, and the concomitant rule that the state does so only as long as parents meet their legal duty to take proper care of the child. This book looks at four related areas of the law: parental custody, state regulation of education, religion and parental rights, and nonparental third party rights. In each, it is argued that, historically, the authority of the parent has been treated as a sacred trust, a delegation of state power made on the presumption that it will be employed to promote the eventual enfranchisement of the child; that the emergence of a rights orientation has threatened to uncouple the traditional linkage of rights and responsibilities, subordinating the best interests of the child and the legitimate needs of the state to parental preferences; and that a renewed reliance on the trust model of parent-child relations would better serve both the developing personhood of the child and the civil society to which he or she belongs. In each area of the law, we face the same historical reality. It is the rights orientation that breaks with deeply rooted legal traditions and cultural values, rejecting time-honored trust principles of family law meant to protect both private and public interests.

The law of parent-child relations has long embodied a belief that education (a “leading away from�) is the path away from childhood and toward intellectual and moral enfranchisement. Unless children are to live under “a perpetual childhood of prescription,� unless we are to deny them the pursuit of happiness, they must be exposed to the dust and heat of the race, intellectually, morally, spiritually. It is no wonder then that we would want to transform the sacred trust of parenthood into a sacred right. But our legal traditions teach that parenthood is first and foremost not a sacred right but a sacred responsibility, a fiduciary duty owed equally to the child and the state. The Constitution’s guarantee of personal freedoms is meaningful only if we, as parents, accept the responsibilities from which parental authority arises, and the constitutional strength of parenting privileges should depend on our willingness to do so.

If by “fundamental� we designate rights with a deep historical pedigree, the right to parent free from state interference cannot be numbered among them. The American legal tradition is one that treated paternal absolutism and its rights foundation as barbaric. This is nowhere better seen than in child custody cases, where courts challenged, first, paternal authority and, then, parental control of the child generally. Custodial authority, it was maintained by jurists and legal theoreticians alike, “is not the natural right of the parents; it emanates from the State, and is an exercise of police power.� Far from being absolute, the right to parent was not even the courts’ primary consideration. “The true view,� stated one court, “is that the rights of the child are alone to be considered.� The prevailing legal currents, driven by the equitable force of trust principles, swept away claims of right advanced to support parental power.

The right to parent as a matter of constitutional law is especially tenuous. The Supreme Court has on occasion echoed the popular assumption that the right of parents to make decisions concerning the care, custody, and nurture of their children is a fundamental one, deeply rooted in legal tradition and honored by the work of the Court. But no Supreme Court holding — including those of the seminal parenting cases Meyer and Pierce, and modern variants like Yoder and Troxel — supports this claim. If the rigor of the Court with regard to the regulation of parental authority has varied, its scrutiny has never been strict. In fact, more than once the Court has declined the opportunity to adopt this position. As Justice Antonin Scalia has observed, there is little decisional support for the notion that the right to parent is a “substantive constitutional right� at all, let alone a fundamental one.

To say that a parental rights orientation is not deeply rooted in our traditions is not to declare that a particular policy decision is right or wrong. It is simply to say that it is a question of policy whether and how the state should regulate parent-child relations. If we understand that, as a descriptive matter, the right to parent is at odds with a tradition of shared responsibility for the welfare of the child, we might be more willing to consider how old equitable principles can lead to new ways of accommodating the interests of parent, child, and state. By giving parents the right to bring up their children as they see fit, we forestall debate on such contentious questions as educational regulation, religious mentoring, and third-party visitation. We ought not to take these questions out of the public domain by keeping the home under constitutional lock and key.

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Advisory Board

Legal History eJournal

KWAME ANTHONY APPIAH
Princeton University - Department of Philosophy

PETER PRESTON BROOKS
Andrew W. Mellon Foundation Scholar, Center for Human Values, Peter Brooks, Princeton University

JUDITH BUTLER
University of California, Berkeley

KIMBERLE CRENSHAW
Columbia Law School

HENRY LOUIS GATES
Harvard University - Department of African-American Studies

THOMAS C. GREY
Nelson Bowman Sweitzer & Marie B. Sweitzer Professor of Law, Stanford Law School

DONNA HARAWAY
University of California, Santa Cruz - History of Consciousness

DUNCAN KENNEDY
Harvard Law School

MARGARET JANE RADIN
Henry King Ransom Professor of Law, University of Michigan Law School, Distinguished Research Scholar, University of Toronto Faculty of Law

REVA B. SIEGEL
Nicholas deB. Katzenbach Professor of Law, Yale University - Law School

KENDALL THOMAS
Columbia Law School

IRIS MARION YOUNG
University of Chicago - Department of Political Science