THE ALIEN-CITIZEN PARADOX AND OTHER CONSEQUENCES OF U.S. COLONIALISM
American history is replete with paradoxes. As the above quotes illustrate, American idealism purports to welcome the immigration of foreigners to this land, yet American behavior is consumed by expressions of fear over this very idea. This fear of foreign influx has not been limited to concerns over immigration but has also been expressed by a constitutional doctrine that has marginalized the inhabitants of the United States territories.
STATUS RULES: DOCTRINE AS DISCRIMINATION IN A POSTHICKS ENVIRONMENT
Ruth Gana Okediji
In his momentous essay The Path of the Law, Oliver Wendell Holmes observed that “[t]he law is the witness and the external deposit” of the moral life of a nation. Holmes argued that no matter whether an individual believes that the law emanates from a sovereign or from the legislature, there is a constant inquiry into the rationale and principles laid down by the judge who interprets the law. According to Holmes, this search for reason reflects a fallacy that suggests “that the only force at work in the development of the law is logic.” The vitality of Holmes’ observation strikes with particular force upon examination of recent developments in judicial application of antidiscrimination laws. One such application is the United States Supreme Court’s decision in St. Mary’s Honor Center v. Hicks.
ALLOWING IMPROPER ARGUMENT OF COUNSEL TO BE RAISED FOR THE FIRST TIME ON APPEAL AS FUNDAMENTAL ERROR: ARE FLORIDA COURTS THROWING OUT THE BABY WITH THE BATH WATER?
The Honorable Larry A. Klein
In 1978 Florida’s Fourth District Court of Appeal wrote that it was distressed by the trial bar’s increased tendency “to permit the noble art of trial practice to degenerate into a free-for-all.” The statement was prompted by numerous improper remarks made by defense counsel in closing argument to which the plaintiff did not object at trial but was raising for the first time on appeal. The court noted that it would have reversed if the plaintiff’s counsel had objected, but concluded that the failure to object was an intentional trial tactic and refused to grant a new trial.
INTERNAL VERSUS EXTERNAL PERSPECTIVES ON LAW: TOWARD
Douglas E. Litowitz
Legal doctrine and legal practice can be understood from either an internal or external perspective. The internal perspective is mandatory for judges and lawyers who work within the legal system. In their official capacity, these participants in the system are required to view the law as a set of rules with legitimacy and moral authority. By contrast, the external perspective predominates among sociologists, economists, and historians who approach law and legal conduct as epiphenomenal, as a reflection of deeper forces unrecognized by the players within the system. The internal perspective approximates a first-person view or insider’s view of the legal system, whereas the external perspective is a third-person view or observer’s view of the law.
CORPORATE GOLIATHS IN THE COSTUME OF DAVID: THE QUESTION OF ASSOCIATION AGGREGATION UNDER THE EQUAL ACCESS TO JUSTICE ACT—SHOULD THE WHOLE BE GREATER THAN ITS PARTS?
Joseph J. Ward
The Equal Access to Justice Act (EAJA) allows the prevailing party in a suit that challenges government action to recover attorneys’ fees and costs unless the government can prove that its action was substantially justified or that special circumstances exist which should preclude such an award. In the almost two decades since the EAJA was enacted in 1980, scholars and courts have debated and refined nearly all of the criteria for a successful claim under the Act. However, scholars and courts have paid scant attention to the issue of who qualifies as a party eligible for a fee award under the Act. This is particularly surprising since the determination of whether an applicant for EAJA fees qualifies as a party constitutes the threshold inquiry in an EAJA claim and is arguably the most important element of all.
CHOPPY WATERS ARE FORECAST FOR ACADEMIC FREE SPEECH
Rachel E. Fugate
Academic freedom constitutes the core of a university. In its most basic form, academic freedom gives a university professor the right to teach free of censorship and meddling by the university administration and other faculty members. Although this basic concept seems to hold near universal acceptance, the United States Supreme Court has developed a line of cases in the past few years that pose a threat to this liberty.