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Adoption of English Law In Maryland

Posted: 17 May 2011 11:40 AM PDT

Garrett Power, University of Maryland School of Law, has published Adoption of English Law in Maryland as University of Maryland Legal Studies Research Paper No. 2011-24. Here is the abstract.

 
It served as an axiom of Maryland's constitutional history that settlers carried with them the "rights of Englishmen" when they crossed the Atlantic. In 1642 the Assembly of Maryland Freemen declared Maryland's provincial judges were to follows the law of England. Maryland's 1776 Declaration of Independence left a legal lacuna - what were to be the laws and public institutions of this newly created sovereign entity? This paper considers the manner in which the sovereign state of Maryland filled the void.
Download the paper from SSRN at the link.

John Stuart Mill, Oliver Wendell Holmes, and the Defense of Free Speech

Posted: 17 May 2011 11:12 AM PDT

Irene M. Ten Cate, Columbia Law School, has published Speech, Truth, and Freedom: An Examination of John Stuart Mill's and Justice Oliver Wendell Holmes's Free Speech Defenses in volume 22 of the Yale Journal of Law and the Humanities (2010). Here is the abstract.


This Article is the first in-depth comparison of two classic defenses of free speech that have profoundly influenced First Amendment law: John Stuart Mill's On Liberty and Justice Holmes's dissenting opinion in Abrams v. United States. Both defenses argue that dissenting speech plays a critical role in a collective truth-seeking endeavor, and they are often grouped together as advocating for a marketplace of ideas, a metaphor that has become a fixture in American constitutional law.

However, this Article finds that, on closer examination, the two theories are grounded in fundamentally different views of the quest for truth and the role of speech in this undertaking. Mill envisions a process in which clashes between contrary opinions lead to progress in uncovering universal, unchangeable truths. Individuals who express unpopular views are indispensable, as their challenges to prevailing opinions keep the search for truth, and the meaning of already discovered truths, alive. The mentions of truth in the Abrams dissent, consistent with elaborations on the subject in Holmes's scholarly writings and correspondence, are best read as referring to choices made by majorities or dominant forces in response to internal and external challenges to the status quo. Holmes's commitment to free speech appears to be based primarily on its role in safeguarding a process by which decision-making factions can be formed This Article argues that a key to understanding the differences between the two defenses lies in the ideas about freedom that are at the heart of Mill and Holmes's world views. Mill believes that individuals are free in the sense that they have the ability to choose their beliefs, even if they frequently opt for the easier alternative of uncritically following the mainstream. At the same time, he believes that a society can create conditions that are conducive to individual flourishing. Mill's free speech defense is based not only on the argument that individuals are more likely to pick true beliefs if presented with several alternatives, but also on the notion that a society that prizes dissent promotes the development of character traits in its citizens that will in turn allow that society to prosper. Holmes, on the other hand, views individuals as constrained by firmly rooted preferences shaped by accidental circumstances, but regards society as constantly evolving and adjusting and, to a large extent, free to determine its future course.
His defense is staked on a constitutional commitment to safeguarding the conditions for collective self-determination in an uncertain and perpetually changing world.Download the article from SSRN at the link.

"Nothing To Hide"

Posted: 17 May 2011 08:16 AM PDT

Daniel J. Solove, George Washington University Law School, has published the first chapter of Nothing to Hide: The False Tradeoff between Privacy and Security (Yale University Press, 2011). Here is the abstract.



"If you've got nothing to hide," many people say, "you shouldn't worry about government surveillance." Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so.

In addition to attacking the "Nothing-to Hide Argument," Solove exposes the fallacies of pro-security arguments that have often been used to justify government surveillance and data mining. These arguments - such as the "Luddite Argument,"the "War-Powers Argument," the "All-or-Nothing Argument," the "Suspicionless-Searches Argument," the "Deference Argument," and the "Pendulum Argument" - have skewed law and policy to favor security at the expense of privacy.

The debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and the other. But protecting privacy isn't fatal to security measures; it merely involves adequate oversight and regulation.

The primary focus of the book is on common pro-security arguments, but Solove also discusses concrete issues of law and technology, such as the Fourth Amendment Third Party Doctrine, the First Amendment, electronic surveillance statutes, the USA-Patriot Act, the NSA surveillance program, and government data mining.
Download the text from SSRN at the link.

Morality and the Practice of Law

Posted: 17 May 2011 07:58 AM PDT

Kieran McEvoy, Queen's University Belfast School of Law, has published What Did the Lawyers Do During the 'War'? Neutrality, Conflict and the Culture of Quietism at 74 Modern Law Review 350 (2011). Here is the abstract.



Using Northern Ireland as a case study, this paper explores how lawyers responded to the challenges of entrenched discrimination, sustained political violence and an emerging peace process. Drawing upon the literature of the sociology of lawyering, it examines whether lawyers can or should be more than 'paid technicians' in such circumstances. It focuses in particular upon a number of 'critical junctures' in the legal history of the jurisdiction and uncouples key elements of the local legal culture which contributed to an ethos of quietism. The paper argues that the version of legal professionalism that emerged in Northern Ireland was contingent and socially constructed and, with notable exceptions, obfuscated a collective failure of moral courage. It concludes that facing the truth concerning past silence is fundamental to a properly embedded rule of law and a more grounded notion of what it means to be a lawyer in a conflict.
The full text is not available from SSRN.

Still Writing After All These Years

Posted: 17 May 2011 07:50 AM PDT

Mark Bauerlein reflects on Stanley Fish's career and achievements in a column in the Chronicle of Higher Education. Link here.
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