Barry Sullivan

Legal Change and Legal Autonomy: Charitable Trusts in New York, 1777-1893

The law of charitable trusts in New York provides a wonderful example of the complexity of legal change. We hope to show that the so-called “restrictive” policy followed by New York was not really a legal policy of the state in the sense that it represented a rule deliberately designed to achieve a specific policy goal. On the contrary, it was largely the result of a highly traditional common law judicial response to social policy inputs having nothing at all to do with either the law of charity or the law of trusts. To this extent, it is an example of the “autonomy of law.” There were changes in New York law during the period that is the subject of this paper. We trace these developments as they occurred, by first surveying the English law of charity as it existed at the time of the Revolution, and then tracing the development in New York of a state law of charity from that time until 1844, when the New York courts appeared to have established a systematic approach to the subject. We then discuss the political and judicial reforms that were manifested in the Constitution of 1846 and resulted in the abolition of charitable trusts. Finally we recount the failure of Tildens will and the resulting legislation that ultimately changed the law of charity in New York. We conclude by assessing the importance of this analysis for the history of American charity law and the history of American charity itself.

The Bill of Rights and the Emerging Democracies

The political transformation and constitution-building process in East Central Europe concerned not only the simple identification or listing of rights, but, more importantly, the development of institutions that would adequately safeguard and implement constitutional freedoms and rights. This essay will not attempt an exhaustive review of all of the efforts made in the post-communist period to fulfill this expectation, but will point to some elements in the process of institutionalizing the protection of rights in order to illustrate the problems faced by these developing democracies and the accomplishments they have realized.

'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences

In Graham v Florida, a Florida state prisoner asked the Supreme Court to hold that the Cruel and Unusual Punishments Clause of the Eighth Amendment categorically precludes the imposition of life-without-parole sentences for any juvenile offender who has committed a nonhomicide offense. There was no Supreme Court precedent to support such a holding. Indeed, the relevant Supreme Court jurisprudence seemed clearly to preclude Graham’s argument. Remarkably, however, the Court accepted Graham’s invitation and left behind more than thirty years of consistent Supreme Court jurisprudence, seemingly without a second thought or backward glance. Indeed, the Court did not even acknowledge that the law had changed, still less that it had changed substantially and dramatically. The result reached in Graham was consistent with sound constitutional policy and could have been supported with many good reasons, but the Court failed to provide a candid explanation for its decision. Death was different no longer, but the Court did nothing to explain why that was the case.The first Part of this article will discuss the evolution of the Court’s two lines of Eighth Amendment jurisprudence leading up to Graham, those relating to noncapital and capital cases, respectively, and will discuss the two distinct frameworks the Court has applied to the two categories: a balancing test for noncapital cases and a categorical approach for capital cases. It will also distill three factors that underlie both tests. The second Part will discuss the Court’s decision to apply the categorical approach to Graham, even though it was a noncapital case. The second Part will then analyze the Court’s holding and the principal alternative opinions (authored by Chief Justice Roberts and Justice Thomas) to determine why the Court was willing to break so fundamentally with its prior jurisprudence. The third Part will consider the ramifications of Graham and will make some predictions about where the doctrinal innovation of Graham may lead. In particular, the third Part will consider what Graham bodes for three subsets of offenders: mentally retarded defendants, juvenile offenders who commit homicides, and adult defendants who commit nonhomicides.

Exhaustion of State Administrative Remedies in Section 1983 Cases

This comment focuses on exhaustion in section 1983 cases to determine whether a relaxed requirement is necessary or appropriate in terms of federalism, sound judicial administration, and the purposes of section 1983. The comment first examines the nature of the exhaustion requirement and the rationale for its application to state administrative rather than judicial remedies. Next, it considers relaxation of the exhaustion requirement in section 1983 cases, and examines the purposes of section 1983 in light of the rationale for exhaustion. The comment concludes that relaxation of the exhaustion requirement in section 1983 cases is not necessary to satisfy considerations of federalism or the purposes of section 1983, and suggests an alternative exhaustion requirement for section 1983 cases modeled on section 704 of the Administrative Procedures Act.