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Full-Text Articles in Law
Revisiting The History Of The Independent State Legislature Doctrine, Hayward H. Smith
Revisiting The History Of The Independent State Legislature Doctrine, Hayward H. Smith
St. Mary's Law Journal
In hopes of legitimizing the independent state legislature doctrine, its proponents have recently made two claims with respect to history, which this Article refers to as the Substance/Procedure Thesis and the Prevailing View Thesis. The former admits that the original understanding was that state “legislatures” promulgating election law pursuant to the Elector Appointment and Elections Clauses are required to comply with state constitutionally-mandated “procedural” lawmaking requirements (such as a potential gubernatorial veto), but asserts that they were otherwise understood to be independent of “substantive” state constitutional restraints. The latter asserts that the independent state legislature doctrine was the “prevailing view” …
Burying Mcculloch?, David S. Schwartz
Burying Mcculloch?, David S. Schwartz
Arkansas Law Review
Kurt Lash is a superb constitutional historian trapped inside the body of an originalist. He is one of the few originalists bold enough to acknowledge that McCulloch v. Maryland needs to be ejected from the (conservative) originalist canon of great constitutional cases. While he attributes to me an intention “not to praise the mythological McCulloch, but to bury it,” it is Lash who seeks to bury McCulloch, which he views as a fraudulent “story of our constitutional origins.”
Mcculloch V. Madison: John Marshall's Effort To Bury Madisonian Federalism, Kurt Lash
Mcculloch V. Madison: John Marshall's Effort To Bury Madisonian Federalism, Kurt Lash
Arkansas Law Review
In his engaging and provocative new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David S. Schwartz challenges McCulloch’s canonical status as a foundation stone in the building of American constitutional law. According to Schwartz, the fortunes of McCulloch ebbed and flowed depending on the politics of the day and the ideological commitments of Supreme Court justices. Judicial reliance on the case might disappear for a generation only to suddenly reappear in the next. If McCulloch v. Maryland enjoys pride of place in contemporary courses on constitutional law, Schwartz argues, then this …
Does Importance Equal Greatness? Reflections On John Marshall And Mcculloch V. Maryland, Sanford Levinson
Does Importance Equal Greatness? Reflections On John Marshall And Mcculloch V. Maryland, Sanford Levinson
Arkansas Law Review
David S. Schwartz’s The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, is a truly excellent book, for which I was happy to contribute the following blurb appearing on the back jacket: "David Schwartz has written an indispensable study of thesingle most important Supreme Court case in the canon. As such, he delineates not only the meaning and importance of the case in 1819, but also the use made of it over the next two centuries as it became a central myth and symbol of the very meaning of American constitutionalism.”
Civil And Common Law: A Historical Analysis Of Colonial And Postcolonial Canada, Patrick S. Stroud
Civil And Common Law: A Historical Analysis Of Colonial And Postcolonial Canada, Patrick S. Stroud
Butler Journal of Undergraduate Research
Legal historians divide European law into two principal families: common law (British law) and civil law (continental European law). Common law judges favor cases; courts “discover” law on a case-by-case basis and those cases make precedents for future ruling. Civil law courts favor codes; courts compare cases to existing laws and those laws control judges’ rulings. The two rarely interact, save one prominent example: Canada. British common law supposedly superseded French legal traditions in colonial Canada. But is history so binary? Did British common law truly “conquer” French civil law? Through analysis of Canadian legal history, this article demonstrates how …
United States V. Hatahley: A Legal Archaeology Case Study In Law And Racial Conflict, Debora L. Threedy
United States V. Hatahley: A Legal Archaeology Case Study In Law And Racial Conflict, Debora L. Threedy
American Indian Law Review
This article is a case study of United States v. Hatahley using the methodology of "legal archaeology" to reconstruct the historical, social, and economic context of the litigation. In 1953, a group of individual Navajos brought suit under the Federal Tort Claims Act for the destruction of over one hundred horses and burros. The first section of the article presents two contrasting narratives for the case. The first relates what we know about the case from the reported opinions, while the second locates the litigated case within the larger social context by examining the parties, the history of incidents culminating …
Philosophical, Legal, And Social Rationales For Appropriating The Tribal Estate, 1607 To1980, Arrell Morgan Gibson
Philosophical, Legal, And Social Rationales For Appropriating The Tribal Estate, 1607 To1980, Arrell Morgan Gibson
American Indian Law Review
No abstract provided.