<abstract xmlns="http://www.w3.org/1999/xhtml">Miscarriages of justice and wrongful convictions are a pervasive reality in America's criminal justice system. In this paper we examine news coverage of miscarriages of justice in the death penalty system and the release of death row inmates to understand what we call the public life of exonerations. We examine the way newspapers tell the story of exonerations and the various tilts and tendencies that characterize their presentations. We focus on the five states which, from 1972–2019, had ten or more exonerations. During that period, they were Florida, Illinois, Texas, Louisiana, and Oklahoma. We conclude that the public discourse surrounding exoneration, while providing evidence of the death penalty system's most consequential flaws, serves as much to preserve that system as to challenge it.</abstract>

Professor of Jurisprudence and Political Science, Amherst College

Innocence is Not Enough: The Public Life of Death Row Exonerations

<abstract xmlns="http://www.w3.org/1999/xhtml">Occasionally traced back to Byzantine times, the rule that penal statutes are to be interpreted strictly in favor of the subject, also known as the rule of lenity, now finds expression in common law countries across the world. This Article compares the origins and evolution of the rule in Australia and the United States. The comparison is timely because of the current uncertainty in both jurisdictions about the rule's rationale and scope and because of an emerging global trend towards the “constitutionalization” of common law rules of interpretation. In the course of the analysis, various facets of the rule are discussed, including its common law origins; jurisprudential development; purported constitutional foundations; and modifications by state and federal statutes. Tracing the rule's development in each country reveals significant commonalities, but also important differences, in the respective approaches to the interpretation of criminal statutes. Most importantly, despite similarities in the two countries’ constitutional structures, the rule has assumed constitutional significance in the United States but not in Australia. Identification of this marked difference provides an opportunity to reflect on the separation of powers, and the federal structure, of each country.</abstract>

Oceans Apart?: The Rule of Lenity in Australia and the United States

<abstract xmlns="http://www.w3.org/1999/xhtml">This Article argues that the act of formally declaring war entails a measure of explicit commitment on the part of American political actors that raises the cost of failure and motivates politicians to see engagements through to a decisive end, fulfilling the role of a contract or institutional commitment device. It argues that undeclared conflicts, lacking such a device, are more likely to end on less decisive and less favorable terms to the United States. On this basis, it explains the emergence of a decades-long trend of protracted, unsuccessful, and indecisive military engagements by the United States as having emerged from the erosion of a constitutionally established separation of powers with respect to the initiation and administration of foreign military conflicts. In defense of this theory, it uses case studies to assess the relevance of its predictions and to weigh potential objections involving selection bias and imperfect information.</abstract>

Declared War and American Victory: A Search for Effective Commitment

<abstract xmlns="http://www.w3.org/1999/xhtml">The Feminist Judgments Project (“FJP” or the “Project”) rewrites existing judicial opinions from a feminist perspective. This article explores whether and how the FJP's alternative jurisprudence can influence future legal decisions. The FJP seeks to change the law by revealing unconscious bias and opening judicial minds to previously unknown perspectives - a method that draws on psychological theories of decision making such as cultural cognition. This article takes a different approach and evaluates the FJP using theories from political science. In light of the increasingly conservative judiciary and the Republican administration, the attitudinal and strategic theories of decision making would give the FJP little prospect of actually influencing the law. Thus, this article focuses on historical institutionalism to present a theoretical explanation for why and how the FJP's re-envisioned law could possibly persuade the judiciary. Specifically, the article examines the degree to which the FJP draws on social facts highlighted by the #MeToo and LGBTQ rights movements and whether the Project thereby creates the conditions for social construction and resultant legal change. It also uses theories on displacement to present a critique of the FJP's more radical re-writes and points to the more moderate approach of ideational salience amplification as effective. Ultimately, it concludes that the FJP's path of persuasion is somewhat narrow and limited, but possible.</abstract>

Persuasive or Pipe Dream? The Potential Influence of the Feminist Judgments Project on Future Judical Decision Making

<abstract xmlns="http://www.w3.org/1999/xhtml">The modern way of life and reflected in modern political philosophy is directed by capitalist activity of both commodities and persons. Entities that do not have commodity value are worthless to the capitalist enterprise, regardless of any intrinsic value in themselves. Modernity is capitalist modernity. Modernity has given preference for objects/commodities over persons. This paper will argue for opening-up the landscape for alternative experiences to capitalism, as an attempt to move away from the capitalist enterprise. That is, be able to provide open space for people to use other than the buying and selling of commodities---where the commodification process breaks down and opens-up spaces for alternative experiences besides the capitalist experience. In other words, this work will attempt to serve as critique of Enlightenment philosophical discourse---that is, serve as a critique of the Age of Enlightenment serving as the foundational head of modernism---a plea for the rebellion against the quantification and mathematization of reality under modernist and industrial societies. It will use the modern landscape as the first effort to break free from the capitalist enterprise.</abstract>

Modernity, the Commons and Capitalism

<abstract xmlns="http://www.w3.org/1999/xhtml">Under pressure to adapt to changing circumstances, the contract clause, though expressed in absolute terms, may now be violated for almost any reason at all. The living Constitution, in short, has virtually killed what was once a key constitutional provision.</abstract>

The Living Constitution and the (Almost) Dead Contracts Clause

AHEAD OF PRINT

Volume 13 (2024): Issue 1 (February 2024)

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Volume 6 (2017): Issue 2 (December 2017)

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Volume 5 (2016): Issue 2 (December 2016)

Volume 5 (2016): Issue 1 (April 2016)

British Journal of American Legal Studies

 The British Journal of American Legal Studies is the premier American legal studies journal in Europe. This peer reviewed, cross-disciplinary journal is a bridge between American and European legal scholarship focused on American legal issues. The journal has a theoretical focus, but will occasionally publish articles with a doctrinal or empirical focus that cast light on important issue within the journal's remit. The journal highlights scholarship examining shared intellectual traditions between America, Britain and Europe. Authors whose work draws connections between American, British and European constitutional, political, historical, intellectual ideas and materials informing legal studies are particularly welcome to submit articles to the journal.　   Submissions/information for authors:  Submissions may be made through Scholastica and are typically but not exclusively between 10 - 15, 000 words excluding footnotes. The journal uses Bluebook referencing format.　  The journal does not have article processing charges (APCs) nor article submission charges.  Archiving  Sciendo archives the contents of this journal in Portico - digital long-term preservation service of scholarly books, journals and collections.  Plagiarism Policy  The editorial board is participating in a growing community of Similarity Check System's users in order to ensure that the content published is original and trustworthy. Similarity Check is a medium that allows for comprehensive manuscripts screening, aimed to eliminate plagiarism and provide a high standard and quality peer-review process.  Target Group   academics and practitioners in the field of constitutional law having relevance to the United States, including human rights, legal and political theory, socio-legal studies and legal history 