Law Commons^™

Genteel Culture, Legal Education, And Constitutional Controversy In Early Virginia, Matthew J. Steilen

Journal Articles

This article focuses on the movement to reform legal education in early national Virginia, offering a fresh perspective by examining the connection between legal education and society and culture. It challenges the notion that constitutional ideas were the primary driving force behind reforms and argues that social status and “manners” played a more significant role. Wealthy elites in Virginia associated manners with education, sending their sons to college to become gentlemen, as it secured their aspirations to gentility and their influence over society and politics. Reformers sought to capitalize on this connection by educating a generation of university-trained, genteel lawyers …

Festschrift Symposium: Honoring Professor Sam Pillsbury, Michael Waterstone, Guyora Binder, Mary Graw Leary, Deborah W. Denno, Stephen J. Morse, Scott Wood, John T. Nockleby, Gary C. Williams, Samantha Buckingham, Samuel Pillsbury, Kevin Lapp

Journal Articles

The Loyola of Los Angeles Law Review is pleased to publish this Festschrift Symposium Honoring Professor Samuel Pillsbury. The following is an edited transcript of the live symposium held at LMU Loyola Law School on Friday, March 25, 2022.

The Story Of Beauharnais V. Illinois, Samantha Barbas

Journal Articles

No abstract provided.

The Rise And Fall Of Group Libel: The Forgotten Campaign For Hate Speech Laws, Samantha Barbas

Journal Articles

It is well-known that there is no “hate speech” law in the United States. This has been criticized, especially given the existence of robust hate speech laws in other nations. The absence of hate speech laws in American law has been attributed to legal, cultural, and historical factors, including speech protective First Amendment jurisprudence and long-standing skepticism of group reputation as an interest worthy of legal protection.

This Article presents another reason for the absence of hate speech laws in America: the failure of a large-scale social movement in the 1940s to pass hate speech laws or “group libel” laws, …

Our Imperial Federal Courts, Matthew J. Steilen

Journal Articles

This essay is a response to Christian R. Burset, Advisory Opinions and the Problem of Legal Authority, 74VAND.L.REV.621(2021).

“The article is significant for the archival work alone. It is useful, as well, for the impressive synthesis of the existing secondary literature, collected in the footnotes, which makes a convenient reading list for us mere mortals. The argument of the article is ambitious. As the Table of Contents suggests, its structure is complex: the author asks us to visit three different jurisdictions (two British and one American, each thousands of miles apart), in three different decades, in three different political and …

Lessons From A Journey Through State Subnational Constitutional Law, James A. Gardner

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No abstract provided.

The Constitutional Convention And Constitutional Change: A Revisionist History, Matthew J. Steilen

Journal Articles

How do we change the Federal Constitution? Article V tells us that we can amend the Constitution by calling a national convention to propose changes and then ratifying those proposals in state conventions. Conventions play this role because they represent the people in their sovereign capacity, as we learn when we read McCulloch v. Maryland.

What is not often discussed is that Article V itself contains another mechanism for constitutional change. In fact, Article V permits both conventions and leg-islatures to be used for amendment, and, as it happens, all but one of the 27 amendments to the Constitution have …

Presidential Whim, Matthew J. Steilen

Journal Articles

This article describes a new body of legal literature on the presidency. In contrast to older bodies of writing, which emphasize presidential independence, this body of writing emphasizes the dependence of the executive power, and a set of moral values associated with the office: faith, faithfulness, responsibility, honesty, due care, and professionalism, among others. The article considers prospects for enforcing this vision of the presidency in light of the particular problems posed by the Trump presidency. Many writers have complained of President Trump's leadership style, which is abrupt, reflexive, dissembling, and unilateral. I refer to this as the problem of …

The Security Court, Matthew J. Steilen

Journal Articles

The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security by law and …

The Josiah Philips Attainder And The Institutional Structure Of The American Revolution, Matthew J. Steilen

Journal Articles

This Article is a historical study of the Case of Josiah Philips. Philips led a gang of militant loyalists and escaped slaves in the Great Dismal Swamp of southeastern Virginia during the American Revolution. He was attainted of treason in 1778 by an act of the Virginia General Assembly, tried for robbery before a jury, convicted and executed. For many years, the Philips case was thought to be an early example of judicial review, based on a claim by St. George Tucker that judges had refused to enforce the act of attainder. Modern research has cast serious doubt on Tucker’s …

Bills Of Attainder, Matthew J. Steilen

Journal Articles

What are bills of attainder? The traditional view is that bills of attainder are legislation that punishes an individual without judicial process. The Bill of Attainder Clause in Article I, Section 9 prohibits the Congress from passing such bills. But what about the President? The traditional view would seem to rule out application of the Clause to the President (acting without Congress) and to executive agencies, since neither passes bills.

This Article aims to bring historical evidence to bear on the question of the scope of the Bill of Attainder Clause. The argument of the Article is that bills of …

All In The Family: A Legacy Of Public Service And Engagement - Edward And Thomas Fairchild, R. Nils Olsen Jr.

Journal Articles

No abstract provided.

When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas

Journal Articles

Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against …

Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey

Journal Articles

For a symposium on Teaching Ferguson, this essay considers how the standard introductory constitutional law course evades the history of legal struggle against institutionalized anti-black violence. The traditional course emphasizes the drama of anti-majoritarian judicial expansion of substantive rights. Looming over the doctrines of equal protection and due process, the ghost of Lochner warns of dangers of judicial leadership in substantive constitutional change. This standard narrative tends to lower expectations for constitutional justice, emphasizing the virtues of judicial modesty and formalism.

By supplementing the ghost of Lochner with the ghost of comparably infamous and influential case, United States v. Cruikshank …

What Is Criminal Law About?, Guyora Binder, Robert Weisberg

Journal Articles

In a recent critique, Jens Ohlin faults contemporary criminal law textbooks for emphasizing philosophy, history and social science at the expense of doctrinal training. In this response, we argue that the political importance of criminal law justifies including reflection about the justice of punishment in the professional education of lawyers. First, we argue that both understanding and evaluating criminal law doctrine requires consideration of political philosophy, legal history, and empirical research. Second, we argue that the indeterminacy of criminal law doctrine on some fundamental questions means that criminal lawyers often cannot avoid invoking normative theory in fashioning legal arguments. Finally, …

The Rejection Of Horizontal Judicial Review During America's Colonial Period, Robert J. Steinfeld

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No abstract provided.

Ferlinghetti On Trial: The Howl Court Case And Juvenile Delinquency, Joel E. Black

Journal Articles

In spring 1957 the Juvenile Division of the San Francisco Police Department seized copies of Howl and charged the poem's publisher, Lawrence Felinghetti, with obscenity. Tried in summer 1957 and defended by the American Civil Liberties Union, Ferlinghetti was exonerated by a District Court judge. Scholars typically place the Howl trial at the beginning of a cultural and social revolution that flourished in the 1960s or place it amid the personal lives and rebellions of the actors composing the Beat Generation. However, these treatments do not fully consider the ways the prosecution reflected trends in law, shaped debates over juvenile …

How The Movies Became Speech, Samantha Barbas

Journal Articles

In its 1915 decision in Mutual Film v. Industrial Commission of Ohio, the Supreme Court held that motion pictures were, as a medium, unprotected by freedom of speech and press because they were mere “entertainment” and “spectacles” with a “capacity for evil.” Mutual legitimated an extensive regime of film censorship that existed until the 1950s. It was not until 1952, in Burstyn v. Wilson, that the Court declared motion pictures to be, like the traditional press, an important medium for the communication of ideas protected by the First Amendment. By the middle of the next decade, film censorship in the …

Creating The Public Forum, Samantha Barbas

Journal Articles

The public forum doctrine protects a right of access - “First Amendment easements” - to streets and parks and other traditional places for public expression. It is well known that the doctrine was articulated by the Supreme Court in a series of cases in the 1930s and 1940s. Lesser known are the historical circumstances that surrounded its creation. Critics believed that in a modern world where the mass media dominated public discourse - where the soap box orator and pamphleteer had been replaced by the radio and mass circulation newspaper - mass communications had undermined the possibility of widespread participation …

A Historical Overview Of The Fair Labor Standards Act, Pamela Newell

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No abstract provided.

Free Wage Labor And The Suffrage In Nineteenth Century England, Robert J. Steinfeld

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No abstract provided.

The Origins Of American Felony Murder Rules, Guyora Binder

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Contemporary commentators continue to instruct lawyers and law students that England bequeathed America a sweeping default principle of strict liability for all deaths caused in all felonies. This Article exposes the harsh "common law" felony murder rule as a myth. It retraces the origins of American felony murder rules to reveal their modern, American, and legislative sources, the rationality of their original scope, and the fairness of their original application. It demonstrates that the draconian doctrine of strict liability for all deaths resulting from all felonies was never enacted into English law or received into American law. This Article reviews …

The Accidental Legal Historian: Herman Melville And The History Of American Law, Alfred S. Konefsky

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No abstract provided.

Coercion, Contract And Free Labor In The Nineteenth Century (A Response To Gunther Peck), Robert J. Steinfeld

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No abstract provided.

Subjectship, Citizenship, And The Long History Of Immigration Regulation, Robert J. Steinfeld

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No abstract provided.

Madison's Hope: Virtue, Self-Interest, And The Design Of Electoral Systems, James A. Gardner

Journal Articles

In recent years, perhaps no institution of American governance has been so thoroughly and consistently excoriated by legal theorists as the familiar American system of winner-take-all elections. The winner-take-all system is said to waste votes, lead to majority monopolization of political power, and cause the under representation and consequent social and economic subordination of political minorities. Some political scientists have attempted to defend winner-take-all systems on the ground that they perform better than PR in maximizing long-term collective and social interests. This article argues, in contrast, that winner-take-all electoral systems rest upon, and can be adequately defended, if at all, …

The Voice Of Willard Hurst, Alfred S. Konefsky

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No abstract provided.

Cultural Criticism Of Law, Guyora Binder, Robert Weisberg

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Professors Binder and Weisberg expound a "cultural criticism" of law that views law as an arena for composing, representing, and contesting identity, and that treats identity as constitutive of the interests that motivate instrumental action. They explicate this critical method by reference to "New Historicist" literary criticism, postmodern social theory, and Nietzchean aesthetics. They illustrate this method by reviewing recent scholarship of two kinds: First, they explore how legal disputes take on expressive meaning for parties and observers against the background of legal norms regulating or recognizing identities. Second, they examine "readings" of the representations of character, credit, and value …

The Slavery Of Emancipation, Guyora Binder

Journal Articles

The Thirteenth Amendment abolishes the institution of slavery rather than freeing individual slaves. Yet it quickly came to stand for little more than granting universal rights to make labor contracts and to leave service. This article develops a distinction between abolishing an institution and reclassifying individuals within it. Drawing on the comparative history of slavery, it shows that the institution of slavery has generally included mechanisms for the manumission of slaves and their passage into a liminal status combining self-ownership with social subordination and relative isolation. A critical account of the Antelope litigation shows that proponents of mass manumission still …

No Lever And No Place To Stand (A Response To Christopher Shannon), John Henry Schlegel

Journal Articles

No abstract provided.