American Courts Research Articles

Navigating Neutrality: Early American Governance in the Turbulent Atlantic by Sandra Moats

Reviewed by: Navigating Neutrality: Early American Governance in the Turbulent Atlantic by Sandra Moats Aaron Chin (bio) Keywords Early U.S. republic, Neutrality, Foreign relations, George Washington, Law of nations, State-building Navigating Neutrality: Early American Governance in the Turbulent Atlantic. By Sandra Moats. (Charlottesville: University of Virginia Press, 2021. Pp. 212. Paper, $29.50.) Although the United States won its independence, the young nation remained deeply—at times dangerously—intertwined with European empires. [End Page 456] The nation's first major foreign policy crisis erupted in 1793 when the United States had to decide whether to support the French Republic as its revolution took a radical turn and warred with much of Europe. In April of that year, George Washington and his Cabinet issued the Neutrality Proclamation, which stated that the United States would be "impartial" in its relations with all parties. But this was easier said than done. Americans, French, and British regularly violated this policy. Washington's administration would have to take proactive steps to implement this neutrality. As Sandra Moats convincingly argues in Navigating Neutrality: Early American Governance in the Turbulent Atlantic, the government's implementation of the Neutrality Proclamation marked a critical period in American state-building. As Moats shows throughout this brief but informative book, "enforcing neutrality contributed to America's transformation from a paper republic into an autonomous nation fully embracing its constitutional responsibilities" (1). In Moats's view, Washington himself played a crucial role in steering the nation through this delicate international situation. The first half of the book explores the American experience with neutrality before and during the Revolution, as well as why Washington's administration adopted this position in 1793. While still part of the British Empire, American sailors enjoyed trade during peace and privateering during war. Once the United States declared its independence, however, it learned the hard way that navigating neutrality as an in de pen dent nation presented new challenges. As president, Washington drew from his own experiences to address these problems. As a veteran of the Seven Years' War and a regular correspondent with French observers passing on news of their own revolution, Washington decided neutrality was the best approach. The second half of the book explores how the United States implemented neutrality. By soliciting input from the entire Cabinet and issuing a single statement, Washington set the precedents of taking initiative and speaking with a unified voice regarding foreign policy. In the following months, the executive branch issued several statements and implemented policies to enforce neutrality amid rampant violations by all parties. When Congress returned to session, both chambers supported Washington and passed legislation to back neutrality. In addition, the Supreme Court ruled that only American courts—not foreign ones—could rule on admiralty cases in the United States. Finally, the U.S. sent diplomatic personnel to promote its neutral interests across the world. By the end of 1794, the federal government had created a series of enforcement [End Page 457] mechanisms that gave neutrality teeth and contributed to the growth and consolidation of the American state. Moats's work primarily contributes to studies of American state-building in the early republic. These works focus on the steps the federal government took to consolidate the nation during its early years. Some scholars have focused on the international dimensions of this state-building process, emphasizing things like America's "treaty worthiness" and its adherence to the "law of nations" and "law of merchants" that moderated the interactions between powers. Other scholars have focused on the domestic aspects of this process, emphasizing the standardization of America's currency regime and the consolidation of the nation's debt. Moats's work cuts across both the international and domestic, making a convincing case for how the federal government strengthened the American state by carefully managing developments at home and abroad. The text, as the author notes, also engages with the New Diplomatic History. Moats draws from an impressive array of sources to make a strong argument. Writings by Washington, his Cabinet, and their foreign interlocutors make up the core of the source base. Letters, Cabinet Notes, and government reports appear frequently in the endnotes. Moats also shows a command...

Ending the Cycle of Abuse in Battered Women Defenses.

Intimate partner violence (IPV) is a public health concern, and multiple types of IPV have been described. Women, like men, have various motives for committing intimate partner homicide. This issue of The Journal includes an article reviewing the use of a Battered Woman Syndrome (BWS) defense in American courts. The time was right for a BWS defense a generation ago when there was a lack of understanding of the reasonableness of a woman's action, but not at present. We review the inherent problems of having a gendered law, looking to infanticide acts, as examples. We discuss the validity of BWS considering the DSM and the ICD-10. We explore the role of a forensic psychiatrist in these evaluations, particularly given the lack of a diagnostic, scientific basis for BWS, and consider the similarities with sexually violent predator hearings. In conclusion, we outline considerations for forensic psychiatrists when conducting these examinations. This includes awareness of potential gender bias, recognizing clinical and scientific challenges in the legal diagnosis of BWS, and consideration of the role of posttraumatic stress disorder.

THE DOCTRINE OF «INHERENT POWERS»: CONSTITUTIONAL AND LEGAL CHALLENGES VS. AN INTEGRAL LEGAL TRADITION? (ON THE EXAMPLE OF THE US LEGAL SYSTEM)

The principle of separation of powers has always remained and still remains the most important legal mechanism of an effective system of checks and balances between different branches of government. Its main functional purpose is to ensure the independence and autonomy of all branches of state power. In particular, constitutional legislator exclude the possibility of concentration of powers by enshrining a set of constitutional and legal guarantees in governing institutions' legal status. However, in practice, situations often arise when the implementation of certain powers serves as the reason for the serious constitutional and legal conflicts in terms of the implementation by a state body of tasks that are extrinsic for its constitutional nature. Therefore, it is scientifically and practically significant to investigate the experience of the United States in the sphere of control over the constitutionality of normative acts, adopted as a result of the exercise of the so-called inherent powers. The author focused on the analysis of the legal positions of American courts on the implementation of inherent powers, both by Congress as the US legislative body and by the judicial authorities. The main results of the suggested study include the following. The doctrine of the inherent powers of the US Congress is based on three restrictive principles: 1) the means chosen by the government (enshrined in the normative legal act) must directly lead to the achievement of the constitutional goal; 2) when determining the means necessary to achieve the constitutional goal, there must be a requirement of good faith in the choice of such means; 3) the means used must be directly correlated with the goal contained in the text of the constitution itself, that is, be proportional. In the context of the implementation of the inherent powers by the judicial authorities, it is summarized that the investigated doctrine reflects the essence of the procedural competency of the court and should be considered as an important component of its independence, as well as the effective administration of justice in general. As a conclusion, the author argues that the issue of whether the implementation of certain inherent powers is «constitutionally verified», constitutional review body should consider three basic requirements, the essence of which lies in the certain scope of basic law norms, as the latter stipulates the status and functions of a certain public authority. Key words: constitutional doctrine, inherent powers, the US legal system, constitutionality of acts of public authorities, judicial practice.

Historia powstania regionalnych trybunałów praw człowieka

The history of the formation of regional human rights courts, parts of human rights regimes on the European, African and both the American continents, is discussed in this paper. The author demonstrates an unquestionable connection between the courts and international government organisations active in the regions. She proves that the main reasons for establishing these authorities lie in the develop-ment of human rights protection systems and the associated need for supervision by independent judicial authorities, since the guarantee of rights and freedoms under regional treaties proved insufficient. The analysis shows the human rights courts were founded at different times and in diverse realities. The European Court was formed to supervise the democratic states in the region, whereas the non-European courts both were and still are regarded as unstable and implicated in internal conflicts. The next part of this article includes a discussion of the legal basis for estab-lishing regional human rights tribunals. All three bodies were established on the basis of a classical source of international law, namely an international treaty. The fundamental difference, however, is that with regard to the European and American Courts, these are treaties that form the basis of regional systems of human rights protection, while the African Tribunal was created under the Additional Protocol to the African Charter on Human and Peoples’ Rights.

The Conservation Constitution: The Conservation Movement and Constitutional Change, 1870–1930

In The Conservation Constitution Kimberly K. Smith meticulously explains how American courts, staunch protectors of property rights, provided constitutional footing for state and federal agencies to assert authority over natural resources. This story, however, is about more than conservation. “Managing the natural environment has,” she asserts, “become a major impetus for state building” (p. 246). With clear prose, a nuanced synthesis of the literature, and a sophisticated legal analysis, Smith examines issues, such as wildlife protection, forest management, and pollution control by local, state, and federal governments. She contextualizes judicial decisions with discussions of evolving ecological thought, legislative debates, and economic change. The growth of environmental agencies did not result from the general expansion of regulatory powers. The environment “had to be defended on its own terms, with reference to the distinctive legal principles governing natural resource use” (p. 12). Smith identifies four foundations for this authority. Three were grounded...

New frontiers of religious freedom? LGBTQ rights versus religious conscience

ABSTRACT One frontier of public deliberation on religious freedom involves the clash of religious conscience with government rules against discrimination. As American courts consider issues pitting religious believers against other groups, especially LGBTQ citizens, the public is deeply divided. A paradigmatic case has been the Masterpiece Cakeshop litigation, testing whether a Christian baker could refuse to produce a wedding cake for a same-sex couple given his religious objections. As that case continues and similar confrontations proliferate, the First Amendment’s ‘free exercise’ clause produces new dilemmas. Although public attitudes seldom influence judicial decisions directly, in the long run American courts may well ‘follow the election returns’. This contribution considers public assessments of the importance of religious liberty and then examines attitudes on the Masterpiece controversy, using data from the Democracy Fund’s Voter Survey and the 2016 and 2020 American National Election Studies (ANES). We find that religious factors play a major role in determining citizen opinion, as the public reacts very much along ‘culture wars’ lines. But personal attitudes toward LGBTQ citizens also have a major direct impact on views about ‘conscience exemptions’.

Манипулирование при межличностных установках говорящего в англоязычном судебном дискурсе

The paper is devoted to studying the mechanisms of manipulative influence on the addressee in the courtroom and analysing how the use of manipulative tactics in judicial discourse can be conditioned by the speaker’s communicative attitude. The aim of the research is to determine the specificity of the use of manipulative tactics and the speaker’s attitudes in relation to judicial discourse. As a result of studying samples of fragments containing monologues and dialogues from recordings of American court sessions, it has been shown how the interaction between the speaker’s interpersonal attitudes and manipulative tactics used takes place. The paper is the first to propose an analysis of the mechanisms of manipulative influence, to carry out a quantitative estimation of tactics and attitudes, which accounts for scientific novelty of the research.

Aesthetic Distance

There is an unnamed crisis of aesthetic immediacy afoot in the American criminal justice system. Defendants are seen too quickly. Or rather, they are recognized too quickly. They are recognized spatially, at the defense table, surrounded by lawyers and court marshals, playing the protagonists in the court performance. For most observers, this staging and its familiarity bring about a series of untold assumptions—assumptions that, when viewed nakedly, erode the presumption of innocence. While implicit biases and prejudices similarly short-circuit judicial proceedings—procedure and proceduralism itself—nefariously permit implicit narratives to outpace evidence. Tools to interrupt the aesthetics of transgression and its aftermath will serve judicial accuracy without substantial efficiency tradeoffs. While the bifurcation of the guilt and sentencing in American courts laudably partitions the culpability inquiry from the question of deserved punishment—the former, the question of wrongdoing, can never be truly divorced from history, neither personal nor social. Nor should it be. The Anglo-American insistence on a socially ahistorical criminal trial comes at a high cost: real and textured history—the foreground, leadup, and intimate histories of what occurred is kept out, while the more depersonalized histories that undergird daily life, narrative tropes, and mythologies of crime are permitted to play an outsized role. There is no place, as it stands, for simultaneity in truth or a multiplicity of character. This article thinks of ways to render collective transgression and the complexity of truth legally cognizable and to afford individual defendants full subject status as, I argue, the Sixth Amendment demands. It turns to a source famed for disrupting perception and the study of how and why perception is to be unsettled: Russian Formalism.

Recognition and enforcement of foreign judgments in American courts and the limits of the law market model

Abstract The law market model posits that the most appropriate resolution of choice-of-law disputes in private international law is to permit individuals to choose ex ante the law that applies to them. This is contrasted to the public law model where courts choose law based on the perceived interests of, or the parties’ connections with, the states or nations involved. The law market model envisions that consumer choice will lead to optimal competition among jurisdictions to supply the most efficient law. This model has influenced the rise of party autonomy, most notably in the widespread enforcement of many contractual choice-of-law and forum-selection clauses. One area that the model has had little influence on is the enforcement of foreign judgments. In the United States, judgments from other countries face higher hurdles in obtaining recognition and enforcement, as compared to judgments issued by courts of sister states. There has been little discussion in the law market literature of the possibility of ex ante contractually waiving these hurdles, or of choosing the law of states that make it easier to enforce foreign judgments. This reticence appears to be based in part on the assumption that state law on such recognition is mandatory and non-waivable, and that such law reflects the sovereign interests of states. Revisiting this regime through the lens of the law market model suggests that courts and public policymakers should permit parties, within broad limits, to contractually waive or select the law on judgment recognition, as they are permitted to do with other areas of law.

Access to evidence in private international law

Abstract This Article analyzes the interaction between the burden of proof and evidentiary discovery rules. Both sets of rules can affect incentives for prospective injurers to invest in evidence technology (i.e., ex ante investments that increase the quantity and quality of evidence in case an accident occurs). This interaction becomes acutely important in the private international law setting, where jurisdictions are split on the question whether the burden of proof should be treated as a substantive or procedural matter. When a tort occurs in Europe, but the case is litigated in American courts, treating the burden of proof as a procedural matter preserves the complementarity of incentives created by the burden of proof and evidentiary rules. Conversely, treating the burden of proof as a substantive matter creates a mismatch in incentives created by the burden of proof and evidentiary rules.

Review: Bloody Bay: Grassroots Policing in Nineteenth-Century San Francisco, by Darren A. Raspa

Review: <i>Bloody Bay: Grassroots Policing in Nineteenth-Century San Francisco</i>, by Darren A. Raspa

Problems relating to the formation of online contracts: A comparative perspective

The formation of online contracts has enjoyed considerable judicial and academic attention in American law. Generally, American courts are of the view that the rise of online contracts has not necessitated any changes to the fundamental principles of the law of contract, although commentators argue that the enforcement of online contracts has stretched the requirement of mutual assent beyond recognition. This article engages in a comparative evaluation of these arguments, as well as some proposals contained in the American Law Institute’s Draft Restatement of the Law, Consumer Contracts. Ultimately, the aim is to identify whether the principles regarding the formation of contracts in South African law ought to be adapted or supplemented to accommodate online contracts. It is found that both legal systems subscribe to fairly lenient formation requirements. The possibility of recognising more stringent assent-related requirements, such as imposing specific disclosure requirements, is investigated. It is concluded that there is little to be gained by insisting on stricter formation requirements for online contracts in general, because consumers rationally choose not to read these contracts. Instead, recognising these concerns may provide the impetus for increased reliance on other forms of control, most notably regulating the use of certain problematic standard terms.

"Should I go to other Rabbis … or should I go to court": Eastern European Jewish women and Marital Litigation, 1900–1920

"Should I go to other Rabbis … or should I go to court":Eastern European Jewish women and Marital Litigation, 1900–19201 Geraldine Gudefin (bio) In March 1906, a woman, signing as "the friendless woman of Lynn, Mass.," reached out to the Yiddish Forverts's advice columnist Abraham Cahan to decry her forced divorce, and the devastating financial hurdles that had resulted from it. The young mother of a two-year old and a one-month-old baby described, in A Bintel Brief, how the process of spousal desertion had unfolded. After she and her husband mutually agreed upon a divorce, the couple turned to a rabbi in Providence, Rhode Island, to dissolve the marriage.2 When the rabbi refused to proceed with the ceremony, rebuking the couple for "leaving a living orphan," the husband tried his luck with a different religious authority, this time with more success. By then, however, the wife no longer agreed to a divorce. Yet, she was taken to the other rabbi by force, and divorced against her will. Lured by the twenty-five-dollar bill that the husband had placed in front of him, the second rabbi hurried to prepare the get (bill of divorce). Following this procedure, the man disappeared, leaving the "friendless woman" and their children entirely destitute. Consequently, the newly divorced woman wrote to the Forverts in search of the financial support necessary for her survival: "Now there remains for me to ask some advice of you, as to what I should do. [End Page 1] Should I go to other Rabbis and tell of my great misfortune or should I go to court. I think, that the court will perhaps prevail upon him, to support me and my child, because I am friendless in Lynn and I have no one to turn to. I will get nothing from him with kindness: he does not want to see nor hear of me. Save me …"3 Four days later, the Yiddish newspaper published a follow-up to the first letter, signed "Destitute with Two Living Orphans from Lynn, Mass."4 This time, the young mother exhorted the editor to "issue a call for help to all the rabbis of the country" in the hopes of getting her divorce annulled. Besides highlighting the social and economic vulnerability of Yiddish-speaking female immigrants in the United States, these poignant letters also reveal new insights about how the newcomers interacted with American legal institutions at the beginning of the twentieth century. Like other of her foreign co-religionists, "Destitute with Two Living Orphans" weighed which legal and extra-legal options would best serve her interests, in a classic case of "forum shopping."5 On the one hand, her first letter displayed awareness of the secular6 legal system, as well as trust that the court system might have a greater impact on her husband than rabbinical authorities. Through her veiled threat to her former [End Page 2] husband—"I will get nothing from him with kindness"—she publicly signaled her willingness to use all the means available to her, including legal ones if necessary.7 On the other hand, as illustrated by her second missive, she remained hopeful that her situation could be resolved within a Jewish legal framework, without the interference of the American judicial system. Though rabbinical authority was waning in the United States, especially since the country's vastness, combined with religious voluntarism, allowed for the type of "internal" forum shopping that her own husband had used to his advantage, she was hesitant to fully give up her confidence in the rabbis' authority to assist her.8 As suggested by these epistles, the American court system formed an integral part of the female Jewish immigrant imagination in the early twentieth century. It is not clear whether "Destitute with Two Living Orphans" eventually went to court. However, there is substantial evidence that a myriad of her female co-religionists actively solicited the intrusion of legal institutions into their private lives. Seeking redress against their runaway husbands, Jewish women from Eastern Europe, illiterate for the most part, brought their husbands to American courts on charges of abandonment or bigamy, and sometimes both at once...

Slapping down SLAPP suits in South Africa: The need for legislative protection and civil society action

The formation of online contracts has enjoyed considerable judicial and academic attention in American law. Generally, American courts are of the view that the rise of online contracts has not necessitated any changes to the fundamental principles of the law of contract, although commentators argue that the enforcement of online contracts has stretched the requirement of mutual assent beyond recognition. This article engages in a comparative evaluation of these arguments, as well as some proposals contained in the American Law Institute’s Draft Restatement of the Law, Consumer Contracts. Ultimately, the aim is to identify whether the principles regarding the formation of contracts in South African law ought to be adapted or supplemented to accommodate online contracts. It is found that both legal systems subscribe to fairly lenient formation requirements. The possibility of recognising more stringent assent-related requirements, such as imposing specific disclosure requirements, is investigated. It is concluded that there is little to be gained by insisting on stricter formation requirements for online contracts in general, because consumers rationally choose not to read these contracts. Instead, recognising these concerns may provide the impetus for increased reliance on other forms of control, most notably regulating the use of certain problematic standard terms.

Choice of Law in the American Courts in 2021: Thirty-Fifth Annual Survey

Choice of Law in the American Courts in 2021: Thirty-Fifth Annual Survey

Constitutional Chaos in Bangladesh: A Journey from Secularism to Islamism

Every modern state stands on the separation of state and religion. Bangladesh was born as a secular state with a full guarantee of the right to freedom of religion. Though it started its journey proclaiming itself as a secular state, some political actors in the later course of history pushed the country into an almost Islamic Republic. This paper attempts to figure out what motivated the political actors to begin Islamizing the state by illustrating the chaos that arose from the constitutional modifications in question. It also argues that the basic structure doctrine and the principles of ‘Lemon Test’ turn the laws in Bangladesh, desecularizing the state, unconstitutional. It unearths the religiousness and secularity that our forefathers practiced in their daily lives long before Islam established itself on this land. It further finds the Constitutional Court of Bangladesh as the last resort to have those black laws declared unconstitutional, applying its supreme judicial review power within the current frameworks and limits of the constitution in reference to the landmark decisions of the American, Indian, and Turkish Constitutional Courts.

Delegation, Compliance, and Judicial Decision Making in the Court of Justice of the European Union

AbstractCourts regularly delegate tasks to individual or small subsets of judges. While a substantial literature addresses delegation in the context of American courts, less is known about why and how courts delegate from a comparative perspective. With many of the world’s high courts using panel systems (also known as “chambers”) by which the court delegates cases to subsets of judges, this limitation of the extant literature leaves a number of empirical and theoretical questions unanswered. We argue that the threat of noncompliance presents one factor influencing a court’s delegation of cases to panels. From our expectation that a court will not delegate cases with a greater risk for noncompliance to panels, we then derive empirical implications for case disposition and a court’s willingness to rule contrary to the legal merits in a case. We analyze panel usage at the Court of Justice of the European Union to support our account.

Judicial Disobedience, Justice Lemuel Shaw and Commonwealth v. Aves

The main purpose of this paper is the analysis of the notion "judicial disobedience”. The author describes two aspects (individual and institutional) and compare them with civil disobedience. The problem is presented in a paradigmatic manner upon the example of case law of American courts relating to slavery in the period of half of the century preceding the outbreak of the Civil War. Based on this, the author constructs a typology assuming four possible opinions of an adjudicating judge based on provisions of law, which are contrary to the judge’s conscience and morality. In this paper the problem is described upon the example of Justice Lemuel Shaw, Chief Justice of the Massachusetts Supreme Judicial Court from 1830 to 1860. However special attention is paid to his judgment in case Commonwealth v. Aves., but his another verdicts have been mentioned as well.

Ustawa proskrypcyjna (bill of attainder) w świetle Konstytucji USA

Bill of Attainder in the Light of the Constitution of the United States of America Passing bills of attainder is explicitly prohibited by article I section 9 sentence 3 of the U.S. Constitution. In the article the author carries out analysis of U.S. case-law, as well as American doctrine of law, in order to decode the contemporary meaning of the notion “bill of attainder” in the U.S. Constitution. The article presents the development of the aforementioned concept chronologically, beginning with the Ancient Rome and Medieval England. The crux of the article is to embrace the evolution of the case-law of American courts: from the assessment of repression against defeated Confederates and legislative struggle against communism in 20th century, to the attempt to challenge contemporary economic legislation. Once the case-law has been analysed, the concise definition of bill of attainder is presented: it is a legislative act, which determines guilt and imposes a punishment on selected natural or legal persons, who are thereby deprived of judicial protection. The caselaw confirms as well that the assessment of punitive character of regulation should be made through the prism of three criteria (historical, functional and motivational).

Wpływ braku uznania rządu państwa totalitarnego i autorytarnego na zdolność sądową tego państwa w świetle koncepcji brytyjsko-amerykańskich

Although government recognition is a legal concept of public international law, it interacts with other branches of law, including private international law and international civil procedure. According to the jurisprudence of British and American courts, unrecognized governments do not possess locus standi in civil proceedings in regard to matters which fall within the state dominium. In the mentioned jurisprudence, a doctrine has been formulated according to which judges are bound by the position of their state executive bodies in regard to foreign state and government recognition, which has direct influence on the locus standi of foreign states in the courts of Britain and the United States. The aim of this paper is to present the above rulings, as well as to analyze whether there are grounds for accepting the doctrine which follows from them in Polish civil litigation.