British Journal of American Legal Studies

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Latest documents

• Marital Cakes and Conscientious Promises

  The U.S. Supreme Court has recently been tasked with determining -both metaphorically and literally- whether in matters of marriage equality and religious freedom, those within society can have their cake and eat it too. This came to the fore in Masterpiece Cakeshop (2018). In most of scholarship which has followed, the respective parties’ rights in this case are parsed in terms of rights to religious expression and free speech (on the one hand), and a statutory right to non-discrimination (on the other). By approaching this matter through a primarily philosophical (rather than legal) lens, I aim to present a new perspective. Where cases involve same-sex marriage, it is argued that both sides are predicated upon religious or conscientious convictions. This is established through a philosophical argument, which examines the nature of the marital promise to love and seeks to demonstrate how this promise entails a characteristically religious sort of belief.

• Rule by the Few in the Federalist Papers: An Examination of the Aristocratic Preference of Publius

  The Federalist Papers are a set of eighty-five essays written by Alexander Hamilton, James Madison, and John Jay during the founding era of the United States, with the purpose of persuading the states to adopt the Constitution as the replacement for the Articles of Confederation. The Papers were some of the most impressive political writings of the time, and are still cited frequently today by the United States Supreme Court. The arguments set forth in the Papers attempted to defend the Constitution’s aristocratic characteristics against its opponents, the Anti-Federalists, while also attempting to normalize an anti-democratic, representative form of government in the minds of the American people. The clever advocacy and skillful rhetoric employed by Hamilton, Madison, and Jay led to the eventual ratification of the Constitution, and consequently the creation of the most powerful and prosperous nation on the planet. This paper examines the differences between the traditional forms of government, the political philosophies of the Papers’ authors, the anti-democratic, aristocratic nature of the government proposed by the Constitution, and the arguments for and against its adoption, as articulated in the Papers and various other writings.

• U.S.-UK FTA Negotiations: A Primer on Labor Agenda

  With Brexit completed and the UK’s conditions of separation from the EU pending, there is some anticipation for a U.S.-UK FTA. But then there is the Pandemic and the unpredictable variables of Donald Trump and Boris Johnson, and the influence of the residual binding obligations of the UK-EU separation agreement and possible UK-EU FTA, which may cause some pause. Identifying the negotiating agenda of the labor issues may flow easily from each country’s recent FTAs - USMCA and UK’s obligations under CETA. With that likely agenda, a comparison can be made between each country’s current labor laws on these issues to identify possible emerging areas needing further attention. Lingering in the background is the potential U.S.-EU FTA (TTIP) which will set standards and obligations for the UK which can be relevant to the UK FTAs with the U.S. and the EU. This is followed with analysis as to likely outcomes on these labor issues and the U.S.-UK FTA. Although the future cannot be predicted, it can be prepared for.

• To Delegate or Redelegate: Is That the Question?

  Conflicts between those supporting and opposing congressional redelegation to executive agencies go back to the earliest days of the Republic, but given the enormous development of the administrative state, now raise issues of great practical importance. The arguments back and forth implicate abstract notions of democracy, efficiency, and judicial power, though typically partisan and other self interested considerations actually drive the debate. The future is likely to see some retrenchment, but not wholesale rejection of redelegation, as the massive and unpredictable consequences would deter courts from acting

• Prison Ships

  In 2026, New York City plans to close the VERNON C. BAIN, America’s only currentlyoperating prison ship. Although prison ships have a long history, both in the United States and elsewhere, surprisingly little has been written about them. Accordingly, this article first provides a detailed overview of prison ships. It then surveys the U.S. case law generated by them.

• Administrative Functions of Implementation, Control of Administrative Decisions, and Protection of Rights

  This essay includes a comparative analysis of the traditions of administrative law in Latin American and their impact on the contemporary scene and trends in the general orientations of its administrative justice systems. This analysis is limited to Latin American countries of Iberian origin under the jurisdiction of the Inter-American Court of Human Rights ("I/A Court H.R"). The method followed by the author is to point out the roles attributable to the administrative authorities and to attempt to identify a distinction in Latin America between the "administrative function of implementation", "control of the legality of administrative decisions" (unrelated to any adjudicative function) and the "protection of rights" (by means of an adjudicative function) while examining their historical genesis and possible future trends. From that perspective, the text discusses certain administrative powers, such as disciplinary or other regulatory powers, and their forms of concrete application; the prerogatives and instruments of the authorities and of their decision-making employees in the exercise of the functions of implementation; the control of administrative decisions by those authorities themselves and by external bodies; and judicial and extrajudicial protection of rights against administrative decisions. The author concludes that Latin American administrative law, despite the fact that its civil-law substantive roots have always coexisted with judicial review typical of common law, is currently tending, on the one hand, to approximate the U.S. model of administrative adjudication and, on the other, to adapt to I/A Court H.R case law with respect to the administrative function of implementation in harmony with the fundamental right to good administration which, combined with a critical re-examination of diffuse control of the legality of administrative rules in court, would safeguard the true role of adjudicating bodies (administrative authorities or courts) in their function of protecting individual rights for the sake of more fair and equitable administrative justice.

• Apportionment, Allegiance, and Birthright Citizenship

  Trump v. New York appears to present the Supreme Court with a simple question of statutory construction: do federal statutes allow the President to exclude unlawfully resident aliens from the apportionment of seats in the House of Representatives? The President claims that they do. A three-judge District Court ruled that they do not. However, many arguments for the President go further and assert that the Constitution supports or even compels the exclusion. Some are historical, like the argument that no federal law restricted immigration before 1875, or that apportionment historically included aliens only because they were on a path to citizenship. Others assert that unlawfully present aliens should not be counted because they are outside the allegiance, jurisdiction, and polity of the United States. Some even utilize discredited theories that reject birthright citizenship for U.S.-born children of aliens. This Article rebuts those arguments and shows constitutional history supporting inclusion in the decennial apportionment. It demonstrates that the arguments ignore early federal, state, and colonial restrictions on immigration and naturalization and are inconsistent with fundamental constitutional principles governing apportionment, liability for treason, and birthright citizenship. Because these arguments reach far beyond the apportionment issue and threaten to surreptitiously alter longstanding constitutional law, the Court should disregard them and decide the case on statutory rather than constitutional grounds. If instead the Court addresses these arguments, it should reject them and reaffirm longstanding principles governing apportionment, liability for treason, and birthright citizenship.

• A Structuralist Concept of the Rule of Law

  The prevalent approach to the concept of the rule of law among legal theorists puts attributes first, assigning certain features of laws and sometimes legal systems as rule-of-law virtues. Inquiring at a more basic level, this paper advances a novel, structuralist view of the rule of law. While honoring theoretical constraints that guard against diluting the rule-of-law concept too thinly as a remedy for myriad societal ills, this approach shows that the concept implicates inequalities sustained by a society’s social, economic, and political structures. This is accomplished by demonstrating that the rule-of-law project holds a structural position in the collective normative discourse as a vehicle by which people morally evaluate the interplay between the actual capabilities of individuals and groups to participate in law, and the legal system’s treatment of those individuals and groups. Law’s procedural outputs may formally provide the public with access to the legal system, but the rule-of-law project goes to the actual capabilities of the people to access the system in reality, to have a fair opportunity to participate in the inputs into the system, and to have that participation impartially adjudicated. Conditions impacting a diversity of stakeholders - and particularly the most disadvantaged within the population - perturb the virtues typically associated with the rule-oflaw ideal when those conditions, and the power exercised to maintain them, impair capabilities for fair, dignified, and equal access to legal processes. Understanding the rule of law in structuralist terms, as an informal moral operator, (1) makes sense of the schism we normally accept between the concepts of law and the rule of law, (2) reorients the source of rule-of-law thinking from theorists bent on fixing a conceptual definition to communities engaged in first-order interactions with the legal system, (3) helps explain why citizens come not only to expect law to constrain official coercive powers but also to demand that law promote their actual capabilities to participate in the legal system on an egalitarian and dignitarian footing, and hence (4) implicates a critique of conditions of political and material inequalities that cannot but impair the healthy functioning of the rule-of-law project.

• Law as a Language, Law as an Art: Reflections on James Boyd White's Keep Law Alive

  Keep Law Alive, the latest book by law and literature scholar James Boyd White, is an important apologia for the traditional understanding and practice of law in the United States. Law, White argues, has served as a language in a sense closely parallel to what we mean by referring to English or Spanish as a language: law provides those fluent in it with the tools to describe the social world and to imagine its transformation, but without scripting what the speaker must say. White also envisions law as an art that evokes imagination, emotion and personal judgment, as well as the mind, and that is fundamentally oriented toward the realization of justice. Intellectual, social and political changes, however, threaten to displace law as a language and art with a view of law as an essentially empty rhetoric that cloaks the use of abstract and impersonal reasoning often borrowed from other disciplines. The survival of law depends on the willingness of those who speak it to continue its practice as an art that serves a humane vision of political life.

• Justice Holmes and the Question of Race

  Notwithstanding his youthful dalliance with abolitionism, Holmes’ votes and opinions in Supreme Court cases involving race reveal a stubborn indifference to discrimination on a range of issues. Whether this reflects a cold personal aloofness, a preoccupation with life as struggle, a commitment to judicial restraint or merely an insensitivity pervading the enlightened opinion of the day, his performance will continue to stain his reputation.

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