Digital Commons Network^™

The Founders And Slavery, Arthur R. Landever

Law Faculty Presentations and Testimony

The point of my talk is that our founders, who our tradition praises profusely of course, as men on Mount Olympus, had moral blinders on. I'm going to talk about key founders. Then I'm going to talk about the key English case, decided in 1772, Somerset v. Stuart. Then I'm going to talk about the Compromises of the 1770s and 1780s. Then I'm going to talk about what we can and can't learn from history. Then I'm going to consider what our generation is doing in the 21st century, considering what might shock our own descendants, two hundred years from …

Function Over Form: Reviving The Criminal Jury's Historical Role As A Sentencing Body, Chris Kemmitt

University of Michigan Journal of Law Reform

This Article argues that the Supreme Court, as evinced by its recent spate of criminal jury decisions, has abandoned the criminal jury known to the Founders and, in so doing, has severely eroded the protections intended to inhere in the Sixth Amendment jury trial right. It then proposes one potential solution to this problem.

According to the Supreme Court, this recent line of cases has been motivated by the need to preserve the "ancient guarantee" articulated in the Sixth Amendment under a new set of legal circumstances. Unfortunately, the Court misinterprets the ancient guarantee that it is ostensibly attempting to …

For A New Order In The Court, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Searches And The Misunderstood History Of Suspicion And Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

Keep These Branches Untangled, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Protecting Posterity: Economics, Abortion, Politics, And The Law, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Judicial Power And Mobilizable History, Richard A. Primus

Articles

One contribution that law professors can make to constitutional discourse, I suggest, is the nurturing of new mobilizable histories. A "mobilizable history," as I will use the term, is a narrative, image, or other historical source that is sufficiently well-known to the community of constitutional decisionmakers so as to be able to support a credible argument in the discourse of constitutional law. It draws upon materials that are within the collective memory of constitutional interpreters; indeed, a necessary step in nurturing a new mobilizable history is to introduce new information into that collective memory or to raise the prominence of …