A Vigil for Thurgood Marshall

Three days after his death, on January 27th, Thurgood Marshall came to the Supreme Court, up the marble steps, for the last time. Congress had ordered Abraham Lincoln\u27s catafalque brought to the Court, and on it the casket of Thurgood Marshall lay in state. His beloved Chief, Earl Warren, had been so honored in the Great Hall of the Court, and no one else. Congress made the right decision about the bier, and it spoke with the voice of the people: no other American, of any age, so deserved to lie where Lincoln slept. To him, all day on Wednesday, the people came – a score of thousands, we were told, in the blustery bright Washington winter. The President had said a week before that it was spring, but he was optimistic. I stood with perhaps two thousand of the people myself. They knew it was winter, but there was something that they had to do. With others who had been TM\u27s law clerks, I kept vigil by the bier for a time. We stood by turns, in motionless respect as the people passed. TM\u27s son John stood there all day, hour after hour with his trooper\u27s straightness, full of gentle strength, his father\u27s toughness in his face. So by turns we stood, on hard cold marble, and the people came to say goodbye. They too came up the steps and through the doors, above which the Court promises the world EQUAL JUSTICE UNDER LAW. Later the Chief Justice said, and rightly, that no other individual had done more to make those words reality

The Incompleat Burkean: Bruce Ackerman\u27s Foundation for Constitutional History

With this book, the first in a projected series of at least three volumes, Bruce Ackerman confirms what attentive readers of his law review articles of the past ten years have already known-he is the most original and important writer on constitutional theory in the contemporary English-speaking world. We the People: Foundations, despite its informal, sometimes overly talky style, is not an easy book. Filled to the brim, even to overflowing, and containing many gestures in the direction of arguments to be made in future volumes rather than the substance of the arguments themselves, it presents both the casual reader and the reviewer with a complex task of assimilation, understanding, and judgment. No single critique of the book can do justice to the whole of its content, let alone its potential, particularly when appropriate reservation is made for the fact that much of this first volume is promise rather than delivery. But even with what we have, Ackerman\u27s book attempts to establish in a single imaginative bound the agenda for both constitutional history and theory in the last decade of the twentieth century; given the scope of its ambitions, the dialogue over its significance cannot begin too soon, or be carried on too heatedly. My own interest as a legal historian is with Ackerman\u27s attempt to revise the entire span of American constitutional history; others will no doubt concentrate on his political theory, or his analysis of the contemporary quandary of constitutional politics and the Supreme Court. But while this book could hardly be styled a seamless web, a summary of Ackerman\u27s remarkably fertile theoretical conceptions must precede any attention to his historical and historiographic arguments

Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-Incrimination

The purpose of this essay is to cast doubt on two basic elements of the received historical wisdom concerning the privilege as it applies to British North America and the early United States. First, early American criminal procedure reflected less tenderness toward the silence of the criminal accused than the received wisdom has claimed. The system could more reasonably be said to have depended on self-incrimination than to have eschewed it, and this dependence increased rather than decreased during the provincial period for reasons intimately connected with the economic and social context of the criminal trial in colonial America. Second, the constitutional provisions of the late eighteenth century protecting against compulsory self-incrimination were not final acknowledgments of a long-accepted fundamental right. They were instead reflections of the contentious prerevolutionary constitutional debate, in which North American advocates made sweeping and often antiquarian legal claims protecting or expanding their power to resist Imperial control. The privilege against giving compelled self-incriminatory testimony was one of several common law doctrines to which the Americans gave far more rhetorical than practical respect during this period because it was ancillary to one of their central concerns the constitutional function of the jury trial in limiting governmental power. The enactment of constitutions containing sweeping endorsements of the privilege seems to have had little or no immediate effect on contrary practice in the new states. By examining the activities of defense counsel, however, we can begin to trace the gradual adjustment of the criminal procedure system in the second and third decades of the nineteenth century

The Melting of Patent Law

In this special comment, the author posits that the patent system as it stands is archaic and oppressive, and has neither intellectual nor moral support. Having veered away from its original goals, by virtue of the change in the technological and functional basis of government, it instead serves as a justification for inequalities of wealth distribution. The author argues that substantial reform is required that would shift the balance in patent law from monopolistic greed to public interest, paving the way for access to knowledge

The Re-Placement Test: Using TOEFL for Purposes of Placement

This article will consider using TOEFL scores for purposes of placement and advising for international graduate students at a northern California research university. As the number of international students is on the rise and the funds for the graduate ESL program are diminishing, the way in which the university is handling the influx of international students is undergoing substantial changes. One aspect of the system that is gaining attention is the graduate-level ESL placement exam. To find out if using TOEFL scores for placement is a viable option, I have looked at the Pearson r coefficient for TOEFL scores and university placement exam scores from years 2007-2011. Results from this study show a moderate correlation between the TOEFL and placement exam and suggest that students at this university with TOEFL scores 110 and above should be exempt from any ESL requirement while students with TOEFL scores below 90 need to take ESL courses

The Incompleat Burkean: Bruce Ackerman\u27s Foundation for Constitutional History

Bruce Ackerman, We the People: Foundations. Cambridge: Harvard University Press, 1991. Pp. x, 369. $24.95 (cloth),$9.95 (paper). With this book, the first in a projected series of at least three volumes, Bruce Ackerman confirms what attentive readers of his law review articles of the past ten years have already known-he is the most original and important writer on constitutional theory in the contemporary English-speaking world. We the People: Foundations, despite its informal, sometimes overly talky style, is not an easy book. Filled to the brim, even to overflowing, and containing many gestures in the direction of arguments to be made in future volumes rather than the substance of the arguments themselves, it presents both the casual reader and the reviewer with a complex task of assimilation, understanding, and judgment. No single critique of the book can do justice to the whole of its content, let alone its potential, particularly when appropriate reservation is made for the fact that much of this first volume is promise rather than delivery. But even with what we have, Ackerman\u27s book attempts to establish in a single imaginative bound the agenda for both constitutional history and theory in the last decade of the twentieth century; given the scope of its ambitions, the dialogue over its significance cannot begin too soon, or be carried on too heatedly. My own interest as a legal historian is with Ackerman\u27s attempt to revise the entire span of American constitutional history; others will no doubt concentrate on his political theory, or his analysis of the contemporary quandary of constitutional politics and the Supreme Court. But while this book could hardly be styled a seamless web, a summary of Ackerman\u27s remarkably fertile theoretical conceptions must precede any attention to his historical and historiographic arguments

Freeing the Mind: Free Software and the Death of Proprietary Culture

The subject matter we are going to talk about is variously named and the words have some resonances of importance. I am going to use the phrase “Free Software” to describe this material, and I am going to suggest to you that the choice of words is relevant. We are talking not merely about a form of production or a system of industrial relations, but also about the beginning of a social movement with specific political goals, which will characterize not only the production of software in the twenty-first century, but the production and distribution of culture generally

Tuning In: Using the News for a Content-Based ESL Class

Vast amounts of daily news content are widely available and easily accessible, and they can be converted into materials for intermediate and advanced ESL classes. This article will describe the why and how for integrating news media sources into a multiskills ESL classroom. Through the news, students are immediately engaged with the material because they are viewing articles and news stories that are happening in the world. Additionally, the authentic nature of the material presents a broad spectrum of vocabulary and sentence structures. While students are not expected to understand every word or phrase, the exposure to authentic text in an ESL class is tremendously beneficial. This article will take a 1st-person perspective on the implementation of the news-based course, as well as ideas on how to use the news as a supplemental resource in other ESL classes, such as speaking, composition, or grammar/vocabulary classes

Commercial Arbitration in the Eighteenth Century: Searching for the Transformation of American Law

Some recent writing on the history of American law, notably that of Morton Horwitz, has observed a transformation in the early years of the nineteenth century as a new legal culture replaced the pre-commercial regime and altered rules of law in favor of the commercially active founders of industrial capitalism. In the course of this transformation, Horwitz argues, merchants and lawyers identified possible grounds for an alliance, in which the lawyers gained social status and a monopoly in adjudicative institutions, while the commercial classes gained a system of law which subsidized their interests at the expense of other classes in society. This alliance also required the dismantling of the alternative institutions by which merchants had avoided the anti-commercial characteristics of earlier law. Prominent among these alternative institutions was the system of commercial arbitration, which some evidence suggests declined in importance at the beginning of the nineteenth century. The observed decline, along with an alleged judicial assault upon the principles and practices of the institution, is thus claimed as one of the harbingers of the forthcoming transformation. This Note explores the details of the history of commercial arbitration in colonial New York in order to examine the historical underpinnings of the Horwitz thesis. Part I presents the results of historical research into the growth and development of arbitration in eighteenth-century New York. Part II discusses the light cast by the investigation on the work of Horwitz and others, and suggests some implications for future work in American legal history