Law Commons^™

The Suez Crisis Of 1956 And Its Aftermath: A Comparative Study Of Constitutions, Use Of Force, Diplomacy And International Relations, Pnina Lahav

Faculty Scholarship

This article compares and juxtaposes constitutional war powers (deployed by the belligerents) and diplomacy (deployed by the US) as means of pursuing foreign policy during the 1956 Suez crisis.

In the fall of 1956 the United Kingdom, France and Israel launched a war against Egypt. It soon became clear that this was a coordinated effort. The war started a few days before the US presidential elections but the parties did not share their plans with President Eisenhower. The Hungarian rebellion and the Soviet invasion of Hungary occurred at the same time. Within weeks, the United States, in cooperation with the …

50 Years Of Legal Education In Ethiopia: A Memoir, Stanley Z. Fisher

Faculty Scholarship

In this paper I describe my experience as one of the early members of the Haile Selassie I University (H.S.I.U.), Law Faculty, and share my reflections on developments in the ensuing years.

Constitutional Exaptation, Political Dysfunction, And The Recess Appointments Clause, Jay D. Wexler

Faculty Scholarship

The so-called Recess Appointments Clause of the Constitution provides that: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”1 As of only a few years ago, I considered this clause so minor and quirky that I included it in a book about ten of the Constitution’s “oddest” clauses, right alongside such clearly weird provisions as the Title of Nobility Clause and the Third Amendment.2 Though I recognized that the Recess Appointments Clause was probably the least odd …

The Golden Or Bronze Age Of Judicial Selection?, Jed Handelsman Shugerman

Faculty Scholarship

In The Politics of Early Justice, Michael Gerhardt and Michael Stein convincingly undercut the conventional wisdom that there was a "golden age" of federal judicial selection in the early 1gth century: an era of merit-based, non-partisan nominations and deferential confirmations by the Senate., Their research is laudably thorough and groundbreaking, and it will serve as an important starting point for scholars and policymakers studying the history of federal judicial selection. Now that Gerhardt and Stein have uncovered and organized the comprehensive record of early federal judicial appointments, the question is how to interpret this wealth of new information.

This …

When Truth Cannot Be Presumed: The Regulation Of Drug Promotion Under An Expanding First Amendment, Christopher Robertson

Faculty Scholarship

The Food, Drug, and Cosmetic Act (FDCA) requires that, prior to marketing a drug, the manufacturer must prove that it is safe and effective for the manufacturer’s intended uses, as shown on the proposed label. Nonetheless, physicians may prescribe drugs for other “off-label” uses, and often do so. Still, manufacturers have not been allowed to promote the unproven uses in advertisements or sales pitches.

This regime is now precarious due to an onslaught of scholarly critiques, a series of Supreme Court decisions that enlarge the First Amendment, and a landmark court of appeals decision holding that the First Amendment precludes …

The Creation Of The Department Of Justice: Professionalization Without Civil Rights Or Civil Service, Jed Handelsman Shugerman

Faculty Scholarship

This Article offers a new interpretation of the founding of the Department of Justice (DOJ) in 1870 as an effort to shrink and professionalize the federal government. The traditional view is that Congress created the DOJ to increase the federal government's capacity to litigate a growing docket due to the Civil War. More recent scholarship contends that Congress created the DOJ to enforce Reconstruction and ex-slaves' civil rights. However, it has been overlooked that the DOJ Act eliminated about one-third of federal legal staff. The founding of the DOJ had less to do with Reconstruction, and more to do with …

Young Again, Larry Yackle

Faculty Scholarship

This essay revisits an old problem in the law of federal courts: the source of the right of action in Ex parte Young. The core of the story underlying Young is familiar. Shareholders in railroad corporations filed suit in a federal circuit court, claiming that state established rail rates in Minnesota violated the Fourteenth Amendment and the (dormant) Commerce Clause. The circuit court issued a preliminary injunction barring adoption of the rates and prohibiting the defendants from attempting to enforce them. One of the defendants, Minnesota Attorney General Edward T. Young, nonetheless brought a state court mandamus action against the …

"Simple" Takes On The Supreme Court, Robert L. Tsai

Faculty Scholarship

This essay assesses black literature as a medium for working out popular understandings of America’s Constitution and laws. Starting in the 1940s, Langston Hughes’s fictional character, Jesse B. Semple, began appearing in the prominent black newspaper, the Chicago Defender. The figure affectionately known as “Simple” was undereducated, unsophisticated, and plain spoken - certainly to a fault according to prevailing standards of civility, race relations, and professional attainment. Butthese very traits, along with a gritty experience under Jim Crow, made him not only a sympathetic figure but also an armchair legal theorist. In a series of barroom conversations, Simple ably critiqued …

American Influence On Israeli Law: Freedom Of Expression, Pnina Lahav

Faculty Scholarship

This chapter provides a historical overview of the American influence on Israel’s jurisprudence of freedom of expression from the 1950s to the first decade of the twenty first century. The chapter uses the format of decades, presenting representative cases for each decade, to record the process by which Israeli judges incorporated and sometimes rejected themes from the U.S. jurisprudence of freedom of expression. In the course of discussing the jurisprudential themes the chapter also highlights the historical context in which the cases were decided, from the war in Korea and McCarthyism in the 1950s, to the process of globalization which …

No History, No Certainty, No Legitimacy . . . No Problem: Originalism And The Limits Of Legal Theory, Gary S. Lawson

Faculty Scholarship

Professor Martin H. Redish is on the warpath. Like General Sherman marching toward Atlanta (or Justin Tuck marching toward Tom Brady), Professor Redish, together with Matthew Arnould,1 lays waste to every constitutional theory that he encounters. Originalism, with its “belief that constitutional interpretation should be characterized exclusively by an effort to determine the Constitution’s meaning by means of some form of historical inquiry,”2 generates “an often contrived and opaque veil of historical inquiry”3 that provides “an ideal smokescreen behind which judges may pursue their personal[,] moral, political[,] or economic goals with relative impunity.”4 Nontextual theories, for their part, “permit[] selective …

Trust And Fiduciary Duty In The Early Common Law, David J. Seipp

Faculty Scholarship

Trust is an expectation that others will act in one’s own interest. Trust also has a specialized meaning in Anglo-American law, denoting an arrangement by which land or other property is managed by one party, a trustee, on behalf of another party, a beneficiary.1 Fiduciary duties are duties enforced by law and imposed on persons in certain relationships requiring them to act entirely in the interest of another, a beneficiary, and not in their own interest.2 This Essay is about the role that trust and fiduciary duty played in our legal system five centuries ago and more.

The Twist Of Long Terms: Judicial Elections, Role Fidelity, And American Tort Law, Jed Handelsman Shugerman

Faculty Scholarship

The received wisdom is that American judges rejected strict liability through the nineteenth and early twentieth centuries. To the contrary, a majority of state courts adopted Rylands v. Fletcher and strict liability for hazardous or unnatural activities after a series of flooding tragedies in the late nineteenth century. Federal judges and appointed state judges generally ignored or rejected Rylands, while elected state judges overwhelmingly adopted Rylands or a similar strict liability rule.

In moving from fault to strict liability, these judges were essentially responding to increased public fears of industrial or man-made hazards. Elected courts were more populist: they were …

John Brown's Constitution, Robert L. Tsai

Faculty Scholarship

It will surprise many Americans to learn that before John Brown and his men briefly captured Harper’s Ferry, they authored and ratified a Provisional Constitution. This deliberative act built upon the achievements of the group to establish a Free Kansas, during which time Brown penned an analogue to the Declaration of Independence. These acts of writing, coupled with Brown’s trial tactics after his arrest, cast doubts on claims that the man was a lunatic or on a suicide mission. Instead, they suggest that John Brown aimed to be a radical statesman, one who turned to extreme tactics but nevertheless remained …

Go West Young Woman!: The Mercer Girls And Legal Historiography, Kristin Collins

Faculty Scholarship

This essay is a response to Professor Kerry Abrams’s article The Hidden Dimension of Nineteenth-Century Immigration Law, published in Vanderbilt Law Review. The Hidden Dimension tells the story of Washington Territory’s entrepreneurial Asa Shinn Mercer, who endeavored to bring hundreds of young women from the East Coast to the tiny frontier town of Seattle as prospective brides for white men who had settled there. Abrams locates the story of the Mercer Girls, as they were called, in the history of American immigration law. My response locates The Hidden Dimension in American legal historiography, both that branch of American legal historiography …

A Watershed Moment: Reversals Of Tort Theory In The Nineteenth Century, Jed Handelsman Shugerman

Faculty Scholarship

This article offers a new assessment of the stages in the development of fault and strict liability and their justifications in American history. Building from the evidence that a wide majority of state courts adopted Fletcher v. Rylands and strict liability for unnatural or hazardous activities in the late nineteenth century, a watershed moment turns to the surprising reversals in tort ideology in the wake of flooding disasters.

An established view of American tort law is that the fault rule supposedly prevailed over strict liability in the nineteenth century, with some arguing that it was based on instrumental arguments to …

Our Law, Their Law, History, And The Citation Of Foreign Law, David J. Seipp

Faculty Scholarship

The objection to citation of foreign law in U.S. Supreme Court decisions is bad history and bad law. First, let me briefly review how the objection has come to prominence recently. On June 26, 2003, the U.S. Supreme Court decided Lawrence v. Texas, striking down a same-sex sodomy statute. Justice Antonin Scalia, in the course of his dissenting opinion, wrote that the majority's citation of foreign law was "meaningless dicta," "[d]angerous dicta."' He added that the majority's opinion was "the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda."

Sacred Visions Of Law, Robert L. Tsai

Faculty Scholarship

Around the time of the Bicentennial Celebration of the U.S. Constitution's framing, Professor Sanford Levinson called upon Americans to renew our constitutional faith. This article answers the call by examining how two legal symbols - Marbury v. Madison and Brown v. Board of Education - have been used by jurists over the years to tend the American community of faith. Blending constitutional theory and the study of religious form, the article argues that the decisions have become increasingly linked in the legal imagination even as they have come to signify very different sacred visions of law. One might think that …

A Brief History Of Author-Publisher Relations And The Outlook For The 21st Century, Maureen A. O'Rourke

Faculty Scholarship

The Fiftieth Anniversary Edition of the Journal of the Copyright Society of the U.S.A. provides a particularly appropriate forum in which to discuss the current state of the copyright system. By some accounts, U.S. copyright law has been fabulously successful, encouraging the growth of industries whose copyrighted products both enrich American culture and contribute significant value to the economy.

Marbury And Judicial Deference: The Shadow Of Whittington V. Polk And The Maryland Judiciary Battle, Jed Handelsman Shugerman

Faculty Scholarship

On the 200th anniversary of Whittington and approaching the 200th anniversary of Marbury, this article revisits these two decisions and challenges legal scholars' assumptions that they were such strong precedents for judicial review.⁵ When one takes into account the broader contexts, both decisions were in fact judicial capitulations to aggressive legislatures and executives. The Maryland General Court asserted its judicial supremacy only in dicta, and the court failed to enforce judicial supremacy when it was legally justified. This article picks apart the court's reasoning step by step, using Whittington to illuminate Marbury and Marbury to illuminate Whittington. …

The Unhappy History Of Civil Rights Legislation, Fifty Years Later, Jack M. Beermann

Faculty Scholarship

Seldom, if ever, have the power and the purposes of legislation been rendered so impotent.... All that is left today are afew scattered remnants of a once grandiose scheme to nationalize the fundamental rights of the individual.

These words were written fifty years ago by Eugene Gressman, now William Rand Kenan, Jr. Professor Emeritus, University of North Carolina School of Law, as a description of what the courts, primarily the Supreme Court of the United States, had done with the civil rights legislation passed by Congress in the wake of the Civil War. Professor Gressman's article, The Unhappy History of …

Breaking The Mold Of Citizenship: The "Natural" Person As Citizen In Nineteenth-Century America (A Fragment), Elizabeth B. Clark

Publications

Mary Wollstronecraft once said, probably with a sigh, "I do earnestly wish to see the distinction of sex confounded in society, unless where love animates the behavior." Two centuries later, many groups in American political life are still caught in the same dilemma: hoping that a just society will take account of an essential characteristic -- race and sex spring to mind -- in ways that will benefit the group, while eschewing the potentially harmful characterizations that lie just on the flip side of the coin.

"Rights Revolutions And Counter-Revolutions" Book Note, Jed Handelsman Shugerman

Faculty Scholarship

The rise of rights talk is a subject that has gripped academia in recent years. Many historians of modem America are now searching for the origins of the rights revolution and the feverish use of rights arguments on the left and on the right. Two recent works of legal history tackle one part of this question with trailblazing interpretations, focusing on left-wing rights discourse and the successes of the civil rights movement. Both books offer compelling and well-written narratives of post-war legal issues, and they present innovative arguments that this revolution began in response to global crises.¹ Richard Primus's …

The Floodgates Of Strict Liability: Bursting Reservoirs And The Adoption Of Fletcher V. Rylands In The Guided Age, Jed Handelsman Shugerman

Faculty Scholarship

Part I presents an overview of Rylands v. Fletcher and then discusses the phases of the American response: the initial acceptance; the Northeastern rejections in the 1870s, which have been the basis for the erroneous scholarly conclusions; and the overlooked tide of acceptances across the country, beginning in the late 1880s and increasing in the 1890s. Part II places this wave of acceptance in its historical context of changing social forces, although these brief sketches are not the primary emphasis of this Note. First, during a period of rapid urbanization, a small number of courts sought to protect residential areas …

The Man On The Moon, Immortality, And Other Millennial Myths: The Prospects And Perils Of Human Genetic Engineering, George J. Annas

Faculty Scholarship

The year 2000 provides an opportunity to reflect and speculate on human life in the year 3000. We cannot know what human life will be like a thousand years from now, but we can and should think seriously about what we would like it to be. What is unique about human beings and about being human? What makes humans human? What qualities of the human species must we preserve to preserve humanity itself? What would a "better human" be like? If genetic engineering techniques work, are there human qualities we should try to temper, and ones we should try to …

Book Preface, Hendrik Hartog, Thomas A. Green

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

At her death in December 1997, Betsy Clark had been working for more than a dozen years on a study tentatively entitled "Women, Church and State: Religion and the Culture of Individual Rights in Nineteenth-Century America." Between 1987 and 1995, several of the planned chapters had appeared in law reviews and in history journals. Another chapter had been written and revised before and during the first stages of her illness. Two chapters can be found in preliminary form in her 1989 Princeton dissertation and had been presented to a colloquium at Harvard Law School. But other chapters planned for the …

Chapter 2 - Anticlericalism And Antistatism, Elizabeth B. Clark

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

Note: This is the first draft of the second chapter of a manuscript which through the lens of abolitionism and women's rights, traces the transformation of the ideology of individual rights over the course of the nineteenth century as it expanded to encompass, not just rights in the civil sphere, but rights of the person in private life. Part I of this paper examines nineteenth-century intellectual movements that located moral authority in the individual; Part II outlines the attack on authority within liberal Protestantism; Part III traces the extension of that critique to the state; and Part IV discusses the …

The Bill Of Rights As An Exclamation Point, Gary S. Lawson

Faculty Scholarship

Akhil Amar's The Bill of Rights: Creation and Reconstruction ("The Bill of Rights")' is one of the best law books of the twentieth century. That is not surprising, as it grows out of two of the best law review articles of the twentieth century' and was written by one of the century's premier legal scholars. I have been an unabashed Akhil Amar fan ever since our overlapping law school days more than fifteen years ago, and I am thrilled to have my perspicacity and good judgment vindicated by the publication of this remarkable work.

Chief Justice Holmes On The Science And Art (And Politics) Of Judging, David J. Seipp

Faculty Scholarship

Oliver Wendell Holmes, Jr. (1841-1935), twenty-fifth Chief Justice of Massachusetts, needs no introduction to the readers of this journal. Son and namesake of one of America's most popular writers, he was at twenty-four a Civil War hero wounded three times in battle, and at forty a lawyer-scholar whose book of lectures The Common Law would win him international renown. At sixtyone he began three decades as the Great Dissenter on the U.S. Supreme Court, where he exposed the economic theory underpinning the dominant freedom-of-contract ideology. Between 1882 and 1902-between early promise and later fame-he served on the Supreme Judicial Court …

Tribute, Jeffrey L. Salinger

Tributes

I remember sitting in the law auditorium late in our first semester of law school. Listening to a handful of professors, we heard about the electives offered for second semester. I am not sure how I felt prior to entering the auditorium that day. I do remember how I felt afterwards -- I was going to get into Professor Clark’s class. From what I’ve heard, her legal history seminar was by far the most highly coveted of the first-year electives. That’s no surprise, though -- you could almost feel her excitement as she spoke about the course. On hearing that …

Chapter 7 - Reflections On The Scholarship Of Elizabeth B. Clark, Kristin Olbertson, Carol Weisbrod, Christine Stansell, Martha Minow

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

Elizabeth Clark's essays on early nineteenth-century reform movements make a compelling case that abolitionists and feminists alike understood individual rights from a profoundly religious perspective. Clark also demonstrates how these reformers advocated the protection of so-called "natural rights" for enslaved African-Americans and white women in the vivid and fervently emotional language of evangelical revivalism. Broader cultural and intellectual trends of resistance to governmental and clerical authority, trends rooted in liberal and evangelical Protestantism, Clark argues, helped fuel attacks on slavery and gender inequality. Rejecting other historians' portrayals of the antebellum reformers as primarily secular in orientation, Clark makes the arresting, …