David S. Bogen

Privileges and Immunities: a Reference Guide to the United States Constitution

David S. Bogen — Tue, 22 Nov 2011 09:01:25 PST

The privileges and immunities clauses in the U.S. Constitution forbids one state from discriminating against citizens of another state with respect to privileges and immunities that state affords its own citizens. Of course, the history, interpretation, and rulings on Article IV and the Fourteenth Amendment are much more nuanced and controversial. Bogen details the origins and development of the concept of privileges and immunities, and provides an in-depth analysis of the symbiotic relationship between Article IV and the Fourteenth Amendment, detailing the current understanding of the clauses as reflected in the decisions of the Supreme Court. The author concludes by arguing that the tension between the Framers' intent to protect fundamental human rights and the Court's current confused and inappropriate use of rights language may be resolved by applying customary international human rights to the states. An extensive bibliographic essay and a table of cases are provided to guide further reading on the topic.

Bulwark of Liberty: the Court and the First Amendment

David S. Bogen — Tue, 22 Nov 2011 09:01:21 PST

Tributes to Professor Alice Brumbaugh

Alan D. Hornstein et al. — Thu, 11 Aug 2011 10:34:06 PDT

Tribute to Professor Alice Brumbaugh upon her retirement from the University of Maryland School of Law.

Tributes to Professor Alan Hornstein

David S. Bogen et al. — Thu, 11 Aug 2011 10:34:02 PDT

Tribute to Professor Alan Hornstein upon his retirement from the University of Maryland School of Law.

From Racial Discrimination to Separate But Equal: The Common Law Impact of the Thirteenth Amendment

David S. Bogen — Thu, 11 Aug 2011 10:33:58 PDT

Many forces produced the shift in the United States from the acceptance of slavery and racial inequality to the doctrine of separate but equal. The 13th Amendment abolished slavery and authorized legislation to enforce that abolition, but these well-known direct effects are only part of the story. This paper examines the Amendment’s indirect impact on racial discrimination – furthering a standard of equality in public relationships without threatening the existing racial separation. The Amendment is evidence of a change in values that justified overturning prior decisions, and abolition created a new context for legislation and common law decisions. It reinforced the belief that African-Americans were entitled to fundamental rights including citizenship. The recognition of equal rights led courts and legislators to require equality on common carriers, but courts distinguished between civil rights and social relationships, and allowed carriers to segregate a s long as the facilities were physically equal. The Court subsequently incorporated the doctrine of separate but equal from common carrier law into a constitutional standard.

Culture, Religion, and Indigenous People

David S. Bogen et al. — Tue, 02 Mar 2010 05:38:43 PST

The Constitution treats culture, religion, and government as separate concepts. Different clauses of the First Amendment protect culture and religion from government. For several decades, the Supreme Court of the United States interpreted the First Amendment as offering religion greater protection against interference than was offered to culture, but the Supreme Court largely dissolved these constitutional differences when confronted with issues posed by the religious practices of Native Americans. With some indigenous Americans, the lines between culture, religion, and even government blur – challenging the Supreme Court’s assumptions about the Constitution. The uniqueness of the claims of Native Americans pushed the Supreme Court toward recognition of a common constitutional standard for religion and cultural protection, but also justified political exemptions targeted at tribal behavior that do not extend to other religions or cultures.

The Free Speech Metamorphosis of Mr. Justice Holmes

David S. Bogen — Tue, 07 Jul 2009 10:40:57 PDT

Ignoring History: The Liability of Ships' Masters, Innkeepers and Stablekeepers Under Roman Law

David S. Bogen — Fri, 29 May 2009 06:36:18 PDT

The Maryland Context of Dred Scott: The Decline in the Legal Status of Maryland Free Blacks 1776-1810

David S. Bogen — Fri, 29 May 2009 06:35:01 PDT

Indigenous Peoples and the Law - Ancient Customs: Modern Dilemmas

David S. Bogen — Wed, 22 Apr 2009 15:27:27 PDT

Indigenous people have a variety of complex relationships to law in nations such as Australia, Canada, New Zealand and the United States where non-indigenous people constitute the majority of the population. Customary law has been recognised in each of these nations as a source of domestic law, but this recognition has created various tensions. For instance, Native Title looks to customary law for its definition, but non-indigenous society demands that Native Title be managed by modern Indigenous institutions created under non-indigenous law. Issues of federalism and international law influence the interaction of Indigenous and non-indigenous law against a background of the history of particular peoples. Culture provides a framework for how each country will handle the ongoing relationship of Indigenous and non-Indigenous law.

The Taney Period, 1836-64

David S. Bogen — Wed, 22 Apr 2009 05:57:38 PDT

Book Review: The Limits of Judicial Power: The Supreme Court in American Politics

David S. Bogen — Fri, 10 Apr 2009 11:11:10 PDT

Book Review: Antecedents and Beginnings to 1801

David S. Bogen — Fri, 10 Apr 2009 11:11:08 PDT

Book Review: The Constitution in the Supreme Court: the First Hundred Years, 1789-1888.

David S. Bogen — Fri, 10 Apr 2009 11:11:06 PDT

Book Review: Speech and Law in a Free Society

David S. Bogen — Fri, 10 Apr 2009 11:11:05 PDT

Recent Decisions of the Supreme Court in Labor Law

David S. Bogen — Fri, 10 Apr 2009 11:11:04 PDT

Book Review: Reconstruction and Reunion, 1864-88, Part One

David S. Bogen — Fri, 10 Apr 2009 11:11:03 PDT

Book Review: Slave Law in the Americas

David S. Bogen — Fri, 10 Apr 2009 11:11:02 PDT

Book Review: The Taney Period, 1836-64

David S. Bogen — Fri, 10 Apr 2009 11:11:01 PDT

Religion and Constitutionalism: Indigenous Societies

David S. Bogen — Fri, 10 Apr 2009 11:09:31 PDT