Monthly Archives: April 2012

Love and War

Rose Cuison Villazor, The Other Loving: Uncovering the Federal Government’s Racial Regulation of Marriage, 86 N.Y.U. L. Rev. 1361 (2011).

Legal historians: Find a window to read Rose Cuison Villazor’s “The Other Loving,” published in the NYU Law Review last fall. Although Villazor, Associate Professor of Law at Hofstra, does not identify primarily as a legal historian, she has written more than one historical work well worth a read. An earlier article examined alien land laws in the United States, telling the story of Oyama v. California (1948), which held unconstitutional a provision of California’s Alien Land Law that discriminated against owners of property bought by parents who were ineligible to become U.S. citizens. This more recent article, in turn, explores how immigration, citizenship, and military statutes and regulations in the period around World War II interacted to produce federal anti-miscegenation law, with both domestic and extraterritorial effects. Carefully researched and engagingly written, Villazor’s article seeks to challenge the conventional view that legal restrictions on marriage have traditionally been the sole domain of state, not federal, law—with implications for historical scholarship and for current political debates.

Villazor opens the piece with the story of Helene and John Bouiss, a half-Japanese, half-German woman and her white American husband, who in the spring of 1946 arrived in Seattle, Washington aboard a military ship, having been married at sea by the captain days earlier. Despite the passage of the so-called War Brides Act the year before, officials stopped Helene at the border on the ground that immigration law prohibited the entry of persons ineligible to become U.S. citizens. At the time, U.S. law put citizenship off-limits to persons identified as belonging to certain racial and ethnic groups, including Japanese. Helene, a Swedish citizen on the basis of a prior marriage, was a person of “mixed racial blood,” including that of a citizenship-ineligible group, in the eyes of the relevant immigration regulations; she was therefore covered by the prohibition. Her marriage to a U.S. citizen soldier honorably discharged from the military did not help; nor did the Ninth Circuit Court of Appeals, which upheld the exclusion. (The case never made it to the U.S. Supreme Court.) Continue reading "Love and War"

Pluralism Reimagined

Jan Smits, “A Radical View of Legal Pluralism” in Leone Niglia, ed, Pluralism and European Private Law (Oxford, 2012), available on SSRN.

Legal Pluralism is both a phenomenon and a response to that phenomenon.  We live in a world with a plurality of legal orders.  There are municipal legal systems and international law.  These are the most familiar forms of law, the most comfortable types of legal orders.  Then there are international or “supranational” legal orders like the European Union.  Finally, there are private and transnational legal orders that traverse the boundaries both of “law” and the very notion of a “system” (think of Lex Mercatoria or Sports law).

Jan Smits has been writing about legal pluralism for some time.  His work is always interesting.  This chapter is both intelligent and provocative because Smits takes legal pluralism to a new place and gives it a dimension no one has yet considered. Continue reading "Pluralism Reimagined"

Regulation and Theory: What Does Reality Have to Do With It?

Christine Parker & Lyn Aitken, The Queensland “Workplace Culture Check”: Learning from Reflection on Ethics Inside Law Firms, 24 Georgetown J. Legal Ethics 399 (2011).

Australia is the home to some of the world’s most interesting and provocative legal profession developments.  For example, Australian jurisdictions were among the first jurisdictions to permit nonlawyer ownership of law firms.  Not long thereafter, the Australian regulatory scheme was amended to permit outside investment in law firms.  As a result, Australia became the site of the world’s first publicly traded law firm.  Australia has been on the forefront of other lawyer regulation developments such as the proactive use of ex ante systems of regulation.

As commentators and jurisdictions elsewhere discuss and debate the proper scope of lawyer regulation, many look to Australia’s experiences in the hopes that they will provide valuable information and lessons.  Those actively following the Australian developments include the American Bar Association (ABA), the UK Legal Services Board, and the Solicitors Regulation Authority (SRA), which is the front-line regulator for solicitors in England and Wales. Continue reading "Regulation and Theory: What Does Reality Have to Do With It?"