rss_2.0British Journal of American Legal Studies FeedSciendo RSS Feed for British Journal of American Legal Studies Journal of American Legal Studies Feed Confederate Admiralty Court at Key West<abstract> <title style='display:none'>Abstract</title> <p>In 1861, the Confederate States of America authorized the establishment of a “Court of Admiralty and Maritime Jurisdiction” at Key West. Although a judge was appointed, the court never sat because the island remained in Union hands throughout the Civil War. After first describing the court's creation and staffing, this article highlights the various procedural and practical problems the court would have faced if it had been able to operate.</p> </abstract>ARTICLEtrue Key West “jack-of-all-trades”: The Strange Life, and Peculiar Death, of Dr. Daniel W. Whitehurst<abstract> <title style='display:none'>Abstract</title> <p>In 1845, lawyer-turned-physician Daniel W. Whitehurst, originally from Virginia, moved to Key West. By the time of his death in 1872, Whitehurst had served as the city's mayor, state senator, and captain of its rebel guard. Nevertheless, Whitehurst now is an unknown figure. Buried with him is his cause of death, which may have been suicide.</p> </abstract>ARTICLEtrue's Note“Keeping Tabs”: Spanish Consular Activities in Key West, 1829–70<abstract> <title style='display:none'>Abstract</title> <p>This essay describes the work of Spain's consuls in Key West between 1829 and 1870. Although Spain sold Florida to the United States in 1821, it retained a keen interest in Key West (primarily due to the city's proximity to Cuba). As their country's “eyes and ears,” Spain's consuls were expected to keep their superiors in Madrid briefed on the latest developments, a task they pursued with vigor.</p> </abstract>ARTICLEtrue William Marvin and the Law of Salvage<abstract> <title style='display:none'>Abstract</title> <p>This essay explores the salvage decisions rendered by William Marvin during his time as a judge in Key West (1839–45; 1847–63). It also discusses his celebrated treatise on salvage law (1858), which cemented his reputation as one of America's leading authorities on maritime law. Lastly, it recounts how Marvin superintended the city's notorious wrecking industry.</p> </abstract>ARTICLEtrue Britain and the Confederacy<abstract> <title style='display:none'>Abstract</title> <p>This essay describes the efforts of the Confederate States of America to convince Great Britain to support its secession from the United States. Although the South's leaders were confident that Britain's need for cotton would lead it to become an ally, numerous factors—including the British public's aversion to slavery—contributed to the country remaining neutral.</p> </abstract>ARTICLEtrue Musings: a Selective Bibliography of Early Key West<abstract> <title style='display:none'>Abstract</title> <p>This bibliography identifies and describes 75 works that focus on Key West during its first 50 years (1821–71) as a U.S. possession. General, legal, and popular culture materials are included.</p> </abstract>ARTICLEtrue Marvin Goes to Key West<abstract> <title style='display:none'>Abstract</title> <p>This essay provides a sketch of William Marvin's first decade in Key West (1835–45). In this period, Marvin, originally from New York, served as the territory's U.S. district attorney (1835–39) and its second territorial judge (1839–45). It was during this time that Marvin became acquainted with the city's wrecking industry and began to develop his interest in salvage law.</p> </abstract>ARTICLEtrue“Mad Passions of the Hour”: Key West and the Civil War<abstract> <title style='display:none'>Abstract</title> <p>This review discusses two recent books that focus on Key West in the Civil War. Employing vastly different approaches, both works will have their share of admirers and detractors. Given the complexity of Key West's role in the Civil War, however, much fertile ground remains for future researchers.</p> </abstract>ARTICLEtrue Schooner Enterprise: a Forgotten Key West Murder Case<abstract> <title style='display:none'>Abstract</title> <p>In 1859, Key West found itself transfixed by a sensational criminal trial. Styled United States v. Carcer, Eloy, and Davis, and presided over by William Marvin, the island's legendary federal judge, the case involved a mutiny-murder aboard the slave ship Enterprise. Although famous in its day, the tale has been all but forgotten due to the Great Key West Fire of 1886, which destroyed nearly every record of the affair.</p> </abstract>ARTICLEtrue Confederate Law of Prize<abstract> <title style='display:none'>Abstract</title> <p>This essay describes the prize law of the Confederate States of America. Due to the Union's blockade of the South's coastline, Confederate judges heard very few prize cases. But when they did, they closely hewed to the prize law of the United States.</p> </abstract>ARTICLEtrue Court (if any) Decided —A Correction for Justice Sotomayor (and others) Great Synthesizer: Natural Rights, the Law of Nations, and the Moral Sense in the Philosophical and Constitutional Thought of James Wilson<abstract> <title style='display:none'>Abstract</title> <p>This article argues that the key to understanding James Wilson, one of the leading architects of the Constitution and the first Supreme Court Justice to be sworn in, and yet arguably the most neglected and misunderstood figure from the founding generation, is as a “great synthesizer” of seemingly disparate philosophical and constitutional commitments. Drawing upon the natural rights tradition of early classical liberalism as envisioned by John Locke, Wilson insisted that the new federal government be as democratic and broadly reflective of “We the People” as possible. Drawing upon the law of nations tradition as articulated particularly by Cicero, he became one of the nation's leading proponents of a strong, centralized federal government in order to form “a more perfect union.” And inspired by the concept of the moral sense and the innate sociality of the human person as discussed in the Scottish Enlightenment by Thomas Reid and Francis Hutcheson, he made clear that the “blessings of liberty” were contingent upon an active and engaged citizenry on the national level. By understanding this overlooked, synthetic quality of Wilson's thought, we may better understand, in all its richness and complexity, the unique role Wilson played in America's creation story, gain a new perspective on the original Constitution itself, its achievements and flaws, and reconstruct a compelling constitutional theory that cut across the political alignment of the day but perhaps better anticipated subsequent constitutional development than any of the prevailing positions in 1787.</p> </abstract>ARTICLEtrue Overview of Environmental Justice in Brazil<abstract> <title style='display:none'>Abstract</title> <p>This article discusses environmental conflict resolution in Brazil in both the administrative and judicial spheres, with the aim of analyzing the configuration of the bodies in charge of such adjudication, the procedural instruments at their disposal, and the main types, grounds and effects of environmental claims. An overview of the Brazilian system is evaluated based on the criteria of judicial and extrajudicial due process in order to point out certain dysfunctions of environmental adjudication that compromise its effectiveness, such as the inadequacy of the procedural legislation and the poor quality of the resulting decisions; ways of strengthening the rights and guarantees provided to litigants by the administrative and judicial authorities are also proposed as a means of improving the performance of environmental adjudication.</p> </abstract>ARTICLEtrue Dark Shadow: The Intensification and Expansion of Lethal Injection Drug Secrecy<abstract> <title style='display:none'>Abstract</title> <p>Over the last decade, many death penalty states in the United States have enacted secrecy laws shielding the identity of lethal injection drug suppliers and executioners. Death penalty defense lawyers, legislators, and scholars have examined the constitutionality and efficacy of these laws. However, little attention has been paid to the history of death penalty secrecy and its relationship to existing secrecy statutes. This article analyzes that history and relationship. It describes a surprising pattern of openness and transparency about the identities of executioners and others involved in America's capital punishment process. Current lethal injection secrecy laws break with that pattern and cast a virtually unprecedented shadow over the execution process. This article concludes by assessing the consequences of the recent intensification and expansion of execution secrecy.</p> </abstract>ARTICLEtrue Race<abstract> <title style='display:none'>Abstract</title> <p>The legal construction of race has assumed considerable importance for affirmative action and other purposes. But buffeted by racist tropes from an earlier day and simple self interest, the construct has become a nest of irrationalities and inconsistencies.</p> </abstract>ARTICLEtrue Mob and Contempt of Congress<abstract> <title style='display:none'>Abstract</title> <p>The aftershocks of the riot at the United States Capitol on January 6, 2021, continue to ripple through the American public square. The United States Department of Justice brought over 750 criminal charges against the assailants. The United States House of Representatives appointed a Select Committee to investigate the riot. And the public continues to discuss the meaning of January 6 as these criminal prosecutions continue and the House's investigation concludes. Although this is the first time in American history that a mob actually breached the Capitol, riots and insurrections attempting to overawe parliamentary bodies on their own grounds are well precedented in the Anglo-American legal tradition.</p> <p>The purpose of this article is to provide historical context for affrays like the Trump Riot of January 6 and provide a framework for how legislatures should respond. Parliamentary precedents on both sides of the Atlantic prove that anyone who riots at the legislature is in contempt of parliamentary privilege. The legislature can refer such contempt to the executive for criminal prosecution. In egregious cases, however, the legislature should not hesitate to vindicate itself by using its own contempt power. The legislature should appoint a joint select committee or independent commission to investigate and hold those politically responsible to account.</p> <p>There may be cases when an officer or an agent of the executive provokes or incites a riot at the Capitol. The legislature must prevail in its efforts to bring them in for a hearing and compel them to produce discovery. Of the three coordinate branches of the federal government the legislature is first among equals. Parliamentary privilege must therefore trump executive privilege during an investigation of an assault on the national assembly. Any member of the executive who contemptuously incites a mob at the seat of government is liable for discipline under the inherent power of Congress.</p> </abstract>ARTICLEtrue It Complex With Philip Hunton, John Locke, and the United States Federal Judiciary: On the Merit of Murkiness in Separation of Powers Jurisprudence<abstract> <title style='display:none'>Abstract</title> <p>This article draws on the resources of a little-known political theorist, Philip Hunton, to explain the function of “murky” jurisprudence in the maintenance of separation of powers over time. In the era immediately before the drafting of the United States Constitution, separation of powers was a touted remedy to tyranny. But if government is thus moderated, a critical question arises: who will judge the precise contours of each institution's powers? This article addresses this longstanding question by comparing the solutions offered by Philip Hunton, John Locke, and the United States judiciary. I conclude that the judiciary's decried inability to clarify the limits of its own power is justified by Hunton's obscure explanation that separation of powers can only function so long as murkiness shrouds questions of ultimate institutional authority.</p> </abstract>ARTICLEtrue of Religion in the Brazilian Supreme Court in a Period of Three Decades<abstract><title style='display:none'>Abstract</title><p>Judicial institutions which provide legal mechanisms for conflict resolution play an important role in maintaining the social order of complex societies. Weaknesses in the performance of their duties can contribute to social conflict developing into outright violence that will be beyond the management of law and the courts. In this sense it is strategic to study the judicial system and the decision-making processes of its judges if one wants to understand the ways conflicts are dealt in a certain place and time. In this article we focus our attention on the role of the Brazilian Federal Supreme Court as custodian of the Constitution and the discourses that its decision-making construct when dealing with human rights issues. Specifically we set out to understand how the opinions of Brazilian Supreme Court Justices are constructed when deciding cases concerning freedom of religion. The timeline considered covers 31 years, from 1988 to 2019, a period that begins with the promulgation of the new constitution in 1988 (which symbolically reinstated democracy in the country after the end of the period of military rule that began in 1964) up to the present day. We begin by presenting the legal definition of freedom of religion in Brazil which constitutes the normative background of the discussion. We then discuss our project, stressing the methodological approach we have adopted and finally we present our data findings. We identified 39 cases in total of which 11 were selected and analyzed using the methodology of Semiolinguistic Discourse Analysis in order to define the semantic field related to freedom of religion in Brazil. Even though the number of cases is not large it is possible to identify some features of Brazilian legal culture which are also recurrent when dealing with religious freedom. One of these features is the absence of consensus-building logic in the Justices’ opinions—we attribute this to what we term the disputatio mindset—which contributes to continuing institutional instability and legal insecurity. Our findings suggest that these Supreme Court decisions frequently lack the strong level of rational consistency that lower courts require if they are to identify clear guiding principles that can control the outcomes of new cases</p></abstract>ARTICLEtrue Global Constitutional Dialogue on Human Rights Challenges for the Judiciary in the 21st Century