Roger Williams University School of Law Faculty Papers

Equality in Germany and the United States

Edward J. Eberle — Mon, 03 Mar 2008 13:08:45 PST

I examine the nature and quality of equality as a fundamental right in the constitutions of Germany and the USA.

Aliens in the Garden

Jared A. Goldstein — Mon, 03 Mar 2008 13:08:44 PST

This Article examines environmental rhetoric and argues that a nationalist conception of nature has long distorted environmental policies. Environmental discourse frequently seeks to explain the natural world by reference to the world of nations, a phenomenon that can be characterized as the “nationalization of nature.” A contemporary example of the nationalization of nature is the rhetoric of “invasive species,” which depicts harmful foreign plants and animals in ways that bear an uncanny resemblance to the demonization of foreigners by opponents of immigration. A typical newspaper article about invasive species, bearing the headline “Eeeeek! The eels are coming!,” warned about an influx of “Asian swamp eels” and described them as “slimy, beady-eyed immigrants.” The nationalization of nature is a longstanding trope in American environmental discourse, as policies toward native and foreign plants and animals have long served as surrogates for addressing questions of national identity. Conceiving of environmental problems through the lens of nationalism, however, distorts environmental policies by projecting onto nature unrelated anxieties about national security and national identity.

Allies Not Adversaries: Teaching Collaboration to the next Generation of Doctors and Lawyers to Address Social Inequality

Elizabeth Tobin Tyler — Tue, 05 Feb 2008 11:10:07 PST

Recent reports from the Carnegie Foundation for the Advancement of Teaching, as well as from other medical and legal educators, stress that professional training of doctors and lawyers focuses too narrowly on knowledge-based learning, and not enough on context-based problem solving, professionalism, and ethics. Tracing recent calls from both legal and medical educators to increase the teaching of ethics, social responsibility, the lawyer-client and doctor-patient relationship, and holistic problem-solving, this article offers a model of interdisciplinary medical-legal education focused on developing practitioners sensitive to the needs of diverse and disenfranchised clients and patients. It highlights a burgeoning medical-legal partnership model, now in nearly eighty sites across the country, which partners lawyers and doctors to address the underlying social determinants of health for poor children and their families. The medical-legal partnership model, which increasingly includes medical school and law school partners, provides a unique opportunity to engage law and medical students in interdisciplinary problem-solving and ethical reflection, while also expanding their understanding of complex issues of social justice and inequality in our legal and health care systems. An interdisciplinary course offered by Brown Medical School and Roger Williams University School of Law is offered as a model.

Habeas Without Rights

Jared A. Goldstein — Wed, 03 Oct 2007 15:33:19 PDT

For almost six years, the habeas corpus petitions brought by foreign detainees held by the United States at Guantanamo Bay, Cuba, have stalled because the courts have struggled to answer a single question: whether the detainees possess enforceable rights. Although that question remains unresolved, the courts have uniformly concluded that the Guantanamo habeas claims, as well as the habeas claims brought by other accused enemy combatants, require a showing that the detainees possess cognizable rights violated by the detentions, most especially constitutional rights. This Article argues that the courts have been asking the wrong question and that habeas relief does not require the possession of rights. For most of the long history of habeas corpus, courts resolved habeas claims by determining whether the jailer had authority to impose detention, without undertaking any inquiry into the petitioner’s rights. Habeas did not address “rights” in the modern sense of a discrete group of personal trumps against governmental action, such as those protected by the Bill of Rights. Habeas did not protect rights in this sense for a simple reason: habeas predates rights. Rather than addressing rights, habeas cases traditionally were framed in terms of power: “The question is,” Justice Marshall asked in Ex parte Burford, “what authority has the jailor to detain him?” In the Guantanamo detainee cases, the traditional habeas inquiry would require the government to establish, as a matter of fact and law, that the detainees are enemy combatants.

Like a Sturgeon?: Royal Fish, Royal Prerogative and Modern Executive Power

Jonathan M. Gutoff — Wed, 03 Oct 2007 15:28:07 PDT

The royal prerogative over sturgeon, which has existed since the time of Edward II and continues today. There has been much recent discussion about how the royal prerogative relates to the powers of the president. This discussion, however, has focused on the royal prerogative of making war. A different aspect of the prerogative, the right of the Crown to sturgeon – and whales and porpoises – may illustrate that the incorporation of the royal prerogative into the powers of the presidency may not be as straight-forward as some have argued.

The Architecture of First Amendment Free Speech

Edward J. Eberle — Wed, 03 Oct 2007 15:19:52 PDT

The article establishes an architechtural framework for evaluating and classifying species of speech under the First Amendment.

The German Idea of Freedom

Edward J. Eberle — Wed, 03 Oct 2007 15:15:43 PDT

The article examines the concepts that comprise the uniquely German idea of freedom.

The Future of Federal Sentencing Policy: Learning Lessons from Republican Judicial Appointees

David M. Zlotnick — Wed, 03 Oct 2007 15:12:34 PDT

In the two years since the landmark Booker decision, federal sentencing policy has been in a state of suspended animation. This Article urges federal sentencing reform advocates to look to an unlikely source for realistic goals and ideological support - the experiences of Republican judicial appointees in the Guidelines era. My findings are based upon a long-term research project into cases in which Republican appointees stated their disagreement with the sentences required by law from the bench. The Article discusses the primary product of my research, forty comprehensive case profiles and their policy implications. Specifically, the Article demonstrates how the lessons of these Republican appointees are relevant to three of the critical issues in the post-Booker sentencing debate; first, the need for mandatory minimums, second, the desirability of a legislative “Booker fix,” and finally, specific areas for reform, such as the disparity between crack and powder cocaine sentences, that might have traction in what is likely to be a cautious Democratic Congress on criminal justice issues. By making use of these judges’ insights, I argue that the sentencing debate can transcend tough-on-crime posturing to smart-on-crime policies that better protect both public safety and the public fisc. The Article concludes by drawing on these judges’ words and deeds to construct a rhetorical framework for meaningful, bipartisan sentencing reform in the post-Booker era.

Absentee Landlords, Rent Control, and Healthy Gentrification: A Policy Proposal to De-concentrate the Poor in Urban America

Jorge O. Elorza — Wed, 03 Oct 2007 15:07:21 PDT

Empirical data overwhelmingly suggests that the presence of middle- and working-class homeowners is beneficial for inner city communities. Yet, absentee landlords have a systematic financial advantage over resident landlords when it comes to purchasing homes in blighted neighborhoods. This advantage has disastrous effects for inner-cities as the communities with the greatest need for the stabilizing presence of middle- and working-class homeowners are the ones least likely to attract them. The lack of in-moving homeowners and the resulting increase in poverty, cause declining neighborhoods to fall deeper into downward spirals.

In this Article, I propose a rent control plan designed to attract middle- and working- class homeowners to blighted neighborhoods and I argue that many positive outcomes will result. By designing this plan, I hope to breathe new life into the rent control debate by challenging the conventional wisdom that rent control has only one legitimate purpose, reducing tenants’ rents, and by calling attention to the externalities caused by the absentee landlord industry. Second, I provide a legal and economic model for inner cities to de-concentrate poverty and to better integrate the poor into mainstream society. Third, I develop a model for healthy gentrification whereby vicious cycles of poverty are transformed into virtuous cycles of stability.

Art As Speech

Edward J. Eberle — Wed, 03 Oct 2007 15:01:51 PDT

The article provides a theory for the protection of artistic expression as core protected expression under the First Amendment.

Witness

Nancy L. Cook — Wed, 27 Sep 2006 11:00:34 PDT

The article explores the concept of "witness" by looking at the history and tradition of giving testimony in three contexts, legal history, religion, and literary narrative, with the goal of situating lawyers within these traditions. The author's interest in the topic was prompted by years of frustration with the circumscribed role of lawyers in the judicial system's truth-telling enterprise and, more profoundly, by concerns with lawyers' restrained capacity to shape truth in the larger, social-cultural sense. The question asked, therefore, is whether lawyers, who are positioned to witness (as in "behold") so much about society, and have the social authority to witness (as in "attest") to what they have seen, have an obligation, or at least a right, to speak. If so, what are the parameters of this role, what are its roots, and what is the nature of the discursive practice?

Coerced Labor and Implied Congressional Powers: The Example of Deserting Sailors and Fugitive Slaves

Johnathan M. Gutoff — Mon, 12 Dec 2005 11:46:28 PST

This article explores the relationship between the law of maritime labor and the law of slavery. In the eighteenth century, both sailors and slaves were part of a broad regime of unfree labor relations, with slaves, of course, the most oppressed. In the nineteenth century, an era otherwise supposedly devoted to the ideal of "free" labor, sailors and slaves instead remained unfree, subject to federal laws providing for the forced return to their toils if they deserted - the Merchant Seaman's Act and the Fugitive Slave Act. Both of those statutes were deemed to be within Congress' authority, despite questionable foundations for those conclusions on the face of the Constitution. Exploring the similarities and differences between the conditions and legal treatment of merchant seamen and slaves may yield important insights into the understanding of the congressional reaction to those conditions and the Supreme Court's understanding of Congressional power.

Looking for Justice on a Two-Way Street

Nancy L. Cook — Tue, 06 Dec 2005 12:47:34 PST

This article looks at contemporary notions of "access to justice," particularly in relation to poverty lawyers' goals of "bridge building" between economically distressed communities and institutions of political and legal power.

The underlying goal of collaborative, as well as of traditional lawyering strategies has been to enable disempowered clients to reach the power brokers and distributors. Access to the communities from which such clients come is not perceived to be part of the imperative, however; lawyers do not think in terms of providing the privileged and powerful with access to financially undersupported communities. Thus, one thing that appears to be missing from "access to justice" theories is a recognition that access is a two-way street.

This suggests a number of challenges for lawyers working in poor communities: What do we assume about power in this context? What assumptions are made about the desirability of access to conventional power, and about the undesirability of accessing the power bases in the neighborhoods? Who really stands to benefit from the interactions between professional service providers and community residents? Implicitly, this article argues, those ostensibly being enabled are also being devalued. To ameliorate this, the author proposes that the value of increased access to communities be explicitly recognized.

Assuming two-way access as a fundamental goal, certain elements are a requisite part of whatever strategies are employed. The basic ingredients can be summed up as: respect for the homeplace; cross-socialization, and strategic use of social capital. Processed together, these lead toward a mutually beneficial relationship. The article outlines a basic beginning methodology: the creation of hospitality space, within the community, where community insiders and outsider allies can interact with a goal toward developing new, as yet unimagined, thirdspaces.

Mixed Signals and Subtle Cues: Jury Independence and Judicial Appointment of the Jury Foreperson

Andrew Horwitz — Mon, 22 Aug 2005 06:50:44 PDT

Imagine that you are falsely accused of a serious crime and that you are now on trial before a judge and jury. You knew before the trial began that the judge had a reputation as a “law and order” judge, as a judge who was not at all receptive to the arguments of most criminal defense attorneys. You have been watching as the judge and your attorney have been engaged in what appears to be an adversarial battle throughout the trial, but you have taken some comfort in the fact that it will be the jury, not the judge, who will make the factual determinations with respect to your case. As is typical, you and your attorney are more comfortable with some of the jurors than with others, but you hope that one of the jurors in whom you have more faith will become the foreperson and that he or she will control the deliberation process. You also hope that some of your less favored jurors may ultimately be designated as alternate jurors and, therefore, be excluded from the deliberation process. After the judge has instructed the jury on the law, much to your surprise, the judge hand-picks one member of the jury to be the foreperson, exempting that juror from possible designation as an alternate and effectively guaranteeing that that juror will play a dominant role in the deliberation process. What is not surprising, from your point of view, is that the judge has appointed the juror that you and your attorney – and probably the judge as well – have viewed as the most antagonistic to the defense. You believe – with some significant justification – that the judge has inappropriately interfered with the jury’s deliberative process. You also believe – again with some significant justification – that the judge has violated your right to have a fair and impartial jury decide the facts of your case. But can these beliefs be successfully litigated in an appellate court? These are the issues that this article seeks to address.

Religion and State in the Classroom: Germany and the United States

Edward J. Eberle — Thu, 18 Aug 2005 06:28:07 PDT

The relationship between religion and state remains a central question for society. The community of believers that is a church, synagogue, mosque or other group is a self-associated people of faith. The state is the politically authorized agent of the society. We might say a church (to pick a common term) is the domain of religion, the state the domain of civil society. This is a draft of an article titled Religion in the Classroom in Germany and the United States, by Edward J. Eberle that is forthcoming in Vol. 81 Tul. L. Rev. (2006). Posted with the permission of the Tulane Law Review, which holds the copyright.

Law and Poetry

Edward J. Eberle et al. — Thu, 17 Mar 2005 06:28:27 PST

In this article, Professor Edward Eberle and Professor Bernhard Grossfeld contend that law can better be understood by looking at it in a more complete way, including its interaction with culture, environment and other phenomena. Here we examine the intriguing relationship between law and poetry.

Our investigation discloses that law and poetry share important relations and exert mutual influence on each other. For example, law and poetry share language as their working medium; language shapes the chaos of experience in law and poetry; and law and poetry are products of human ingenuity and imagination.

Even more interesting than the interrelationship between the two is their mutual influence on each other. For example, law and poetry both reflect the culture they are situated in and help constitute that culture. Study of poetry reveals important insight into the structure and use of language, which can uncover discreet, even immanent, patterns in the law.

These observations lead to our point: since law reflects culture and can also help infuse culture, we need a deeper understanding of the forces at work that comprise a culture so that we can better understand the operation of law. Examination of the underside of law is necessary if we are to obtain greater insight into the culture on which law operates. Our study of law and poetry is a contribution to this end.

Above Contempt?: The Attorney General, the Courts, and Informational Overreaching in Terrorism Prosecutions

Peter Margulies — Wed, 21 Apr 2004 06:22:25 PDT

Prosecutors face the continual temptation to overreach in decisions about the control of information. At each phase of a criminal proceeding, from investigation through trial, prosecutors make crucial decisions about information to disclose and highlight with courts, juries, and the public. In ordinary times, courts, defense counsel, the media, and internal sources of oversight can place some constraints, however tenuous, on the prosecutor’s efforts to monopolize the management of information. However, external events, such as the attacks of September 11, 2001, can weaken these constraints, producing alarming spikes in prosecutorial power.

Researching the Laws of the Colony of Rhode Island and Providence Plantations

Gail I. Winson — Mon, 08 Mar 2004 06:38:18 PST

Roger Williams is generally recognized as the founder of Rhode Island. Although his settlement of Providence in 1636 was not the first or only settlement in the area, he was able to open the whole region to English settlement. Due to his friendship with local Indians and knowledge of their language he obtained land from the Indians and assisted other settlers in doing the same. When Williams was banished from the Massachusetts Bay Colony in 1635 because of his rejection of Puritanism, his friend, Governor John Winthrop, suggested that he start a new settlement at Narragansett Bay. Founders of other early settlements also migrated from the Massachusetts colony seeking religious freedom. Rhode Island began as four separate towns, which were not incorporated until a joint government was formed in 1647, under the “Incorporation of Providence Plantations,” or Charter of 1644. Until the granting of that charter, Rhode Island had no authority to exist as an English colony.

The official name of the state remains today “Rhode Island and Providence Plantations.” Rhode Island refers to Aquidneck Island, the location of the present-day towns of Portsmouth, Middletown, and Newport. According to Howard Chapin’s Documentary History of Rhode Island, “the earliest appearance of the name Rhode Island as the designation of the island of Aquidneck is in a letter from Roger Williams to Deputy Governor John Winthrop ... which from its context was evidently written in the spring of 1637.” As described below, the Island was one of the first areas in the Colony to be settled. Providence Plantations refers to early settlements at the northern end of the Narragansett Bay, in Providence and the surrounding area. The word plantation has the meaning of a settlement in a new country or region: colony.

Parts II, III, and IV of this paper consist of bibliographic essays covering three main periods in the early development of the Colonial government and legal institutions of Rhode Island: 1636-1647, the formation of the four original towns and their consolidation under a Parliamentary Patent, or Charter; 1647-1663, government under the Code of 1647 and the issuance of a Royal Charter; and 1663-1776, governance under the Royal Charter and the deterioration of relations with the monarchy leading to a declaration of independence. While the history of Rhode Island is fascinating, only the bare essentials are provided in this article, sufficient to explain the background and context in which legal institutions developed in the Colony.

Part V deals with legislative documents and includes a bibliographic listing of important legislative documents of the colonial period. Part VI addresses the early development of Rhode Island’s court system, and includes a bibliographic listing of both primary and secondary sources on the history of the courts. The conclusion provides a list of additional sources for researching the history, government, and laws of colonial Rhode Island, including archival collections in the state.