Law Commons^™

The Right To Trial By Jury Shall Remain Inviolate: Jury Trials In Civil Actions In Georgia’S Courts, David E. Shipley

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Trials, though rare, “shape almost every aspect of procedure,” and the jury trial is a distinctive feature of civil litigation in the United States. The Seventh Amendment of the U.S. Constitution ‘preserves’ the right to jury trial “[i]n suits at common law, where the value in controversy shall exceed twenty dollars.” Even though this amendment does not apply to the states, courts in the states “honor the right to the extent it is created in their constitutions or local statutes.”

The Georgia Constitution provides that “[t]he right to trial by jury shall remain inviolate,” and Georgia’s appellate courts have shown …

Jurisdiction Beyond Our Borders: United States V. Alcoa And The Extraterritorial Reach Of American Antitrust, 1909–1945, Laura Phillips Sawyer

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Chapter in the book Antimonopoly and American Democracy by Daniel A. Crane and William J. Novak, eds., Oxford University Press, 2023.

In 1945, Judge Learned Hand wrote one of the most influential opinions in modern antitrust law. In declaring that the Aluminum Company of America (Alcoa) had illegally monopolized the industry for virgin aluminum and had participated in an illegal international cartel, Hand both revived and extended American antitrust law. The ruling is famous for several reasons: it narrowly defined the relevant market in favor of the government; it expanded the category of impermissible dominant firm conduct; it interpreted congressional …

Journeys Through Space And Time While Reading International Law And The Politics Of History, Found On A Palimpsest, Translated For You, The Reader, Harlan G. Cohen

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I was invited to a symposium on Anne Orford’s book, International Law and the Politics of History. On my way there, my mind wandered, and I found myself lost in a forest of half-remembered stories and unfinished thoughts. Searching for a way out, this is what I discovered.

The Ballad Of Hicks Carmichael: Law, Music, And Popular Justice In Urban Appalachia, William Davenport Mercer

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This article examines a rare folk ballad to revisit an 1888 Tennessee trial that newspapers referred to as the fastest in the country in which the death penalty was involved. If we look at this event using court records and newspapers, it tells a regrettably common story of a court under pressure from the populace skirting the protections of law. However, if we consider the trial as a performative endeavor, we can rightly consider other performative events, like folk songs, not as reflective of official events but as equivalents that help provide insight into the larger motives behind the court’s …

The Paradox Of Justice John Paul Stevens, Sonja R. West, Dahlia Lithwick

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In the days following Justice John Paul Stevens’s death last year, numerous tributes and remembrances immediately poured forth. Former clerks, journalists, and legal scholars all grasped for the perfect words to capture the man and the justice we had just lost.

Yet many readers of these tributes and homages might have begun to wonder whether they were actually all talking about the same person. Because, taken together, the various portraits appeared to be full of contradictions. In one piece, for example, Justice Stevens is described as a frequent lone dissenter, while in another he is praised for his consensusbuilding leadership. …

Marshall Shapo's "Constitutional Tort" Fifty-Five Years Later, Michael Wells

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In 1965, Northwestern University Law Review published Professor Marshall Shapo’s article, Constitutional Tort: Monroe v. Pape and the Frontiers Beyond.1 Professor Shapo’s paper analyzed the origins of constitutional tort law, which consists of suits for damages for constitutional violations committed by government officials or the governments themselves. The article began with an account of the post-Civil War background of 42 U.S.C. § 1983, a statute enacted in 1871 to enforce the Fourteenth Amendment. After the Civil War, recalcitrant southerners, acting through groups like the Ku Klux Klan, intimidated the freedmen and their white supporters, organized lynch mobs, burned houses, and, …

Constructing The Original Scope Of Constitutional Rights, Nathan Chapman

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In this solicited response to Ingrid Wuerth's "The Due Process and Other Constitutional Rights of Foreign Nations," I explain and justify Wuerth's methodology for constructing the original scope of constitutional rights. The original understanding of the Constitution, based on text and historical context, is a universally acknowledged part of constitutional law today. The original scope of constitutional rights — who was entitled to them, where they extended, and so on — is a particularly difficult question that requires a measure of construction based on the entire historical context. Wuerth rightly proceeds one right at a time with a careful consideration …

Between Economic Planning And Market Competition: Institutional Law And Economics In The Us, Laura Phillips Sawyer

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In 1926 John Maurice Clark published a seminal text in institutionalist economics, Social Control of Business, surveying the ways in which business was subject to control by a variety of formal and informal constraints. 1 The text rejected mainstream ideas in neoclassical political economy by explaining how individual self-interest and competition could be manipulated not only through legal rules but also by custom, habit, codes of ethics, and morals. Representative of the institutionalist movement, Clark discarded presumptions of an individualistic economy based on market competition. Instead, he posited that long-term public goals of prosperity and equity could be achieved through …

Principle And Politics In The New History Of Originalism, Logan E. Sawyer Iii

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The emergence of a new form of originalism has sparked an interest in the theory’s past that is particularly welcome as developments on the Supreme Court and in the Republican Party unsettle the theory’s place in American law and politics. Our understanding of the theory’s development, however, has been limited by an unfortunate and unnecessary division between what are now two separate histories of originalism. One history examines the theory’s development in academia and emphasizes the influence of principled argument. A second investigates its role in politics and highlights the role of conservative interests. This review essay identifies this division …

California Fair Trade: Antitrust And The Politics Of “Fairness” In U.S. Competition Policy, Laura Phillips Sawyer

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In the decades before World War II, U.S. antitrust law was anything but settled. Considerable pressure for antitrust revision came from the states. A perhaps unlikely leader, Edna Gleason, organized California’s retail pharmacists and coordinated trade networks to monitor and enforce Resale Price Maintenance (RPM) contracts, a system of price-fixing, then known as “fair trade.” Progressive jurists, including Louis Brandeis and institutional economist E. R. A. Seligman, supported RPM as a protection to independent proprietors. The breakdown of legal and economic consensus regarding what constituted “unfair competition” allowed businesspeople to act as intermediaries between heterodox economic thought and contested antitrust …

Habeas Corpus Proceedings In The High Court Of Parliament In The Reign Of James I, 1603-1625, Donald E. Wilkes Jr.

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English parliamentary habeas corpus proceedings have been neglected by scholars. This Article ends that neglect. This Article focuses on the parliamentary habeas corpus proceedings that occurred in the reign of King James. The Article corrects several misunderstandings relating to the history of the writ of habeas corpus in England and to the history of the English Parliament (which in the seventeenth century commonly was referred to as the High Court of Parliament).

Part I of the Article provides answers to questions concerning the historical background and context of the parliamentary habeas corpus proceedings in the High Court of Parliament during …

Paul D. Moreno's The American State From The Civil War To The New Deal: The Twilight Of Constitutionalism And The Triumph Of Progressivism, Laura Phillips Sawyer

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Paul Moreno, the Grewcock Chair in Constitutional History at Hillsdale College, sets out to explain how the natural rights constitutionalism of the Founders was replaced by an ‘entitlement-based welfare state of modern liberalism’ by the late 1930s. The book is an ‘analytic narrative’, drawing on both constitutional theory and current ‘public choice’ law and economics, and contributes to recent scholarship by libertarian-minded legal scholars, such as David Bernstein and David Mayer, among others.

The Patent System In Pre-1989 Czechoslovakia, Marketa Trimble

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The chapter analyzes patent law in Czechoslovakia in the period from 1945 until the end of communist rule in 1989. In addition to reviewing the legislative development of patent law – the laws on the books – the chapter explains the law in action, which includes the application of the law in practice and the attitudes of Czechoslovak society toward inventive activities and patenting. The chapter shows that post-1945 Czechoslovak patent law drew on a highly developed pre-1940 Czechoslovak patent law and practice that was based on the Austrian patent law inherited by Czechoslovakia in 1918 when it split from …

A Funhouse Mirror Of Law: The Entailment In Jane Austen's Pride And Prejudice, Peter A. Appel

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In this Essay, I will first outline the general development of different means used to hold property and keep it within a family in England. This discussion must of necessity be brief and schematic, and therefore readers should not rely on it as a completely accurate, nuanced, and detailed discussion of the historical development of English land law. I will then examine what Austen has to say about Longbourn, the principal property in Pride and Prejudice, which leads me to conclude that Austen probably conceived of Longbourn as being entailed and not secured under a strict settlement. I will also …

Legal History In Context, Logan E. Sawyer Iii

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The author examines the teaching methodologies involved in historical education and legal education.

Timeline Of African-American Legal History In Nevada (1861-2011), Rachel J. Anderson

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For the first time in Nevada history, this timeline depicts selected events in the history of African-American lawyers, civil rights, and diversity in Nevada's bar and bench. It includes many historically significant pictures and is part of a special Black History Month issue of the Nevada Lawyer, the official publication of the State Bar of Nevada. That issue highlights the achievements and contributions of African-American lawyers in Nevada in honor of the 51st anniversary of the first African American (Charles L. Kellar) passing the Nevada state bar examination, the 48th anniversary of the first two African Americans admitted to the …

John Paul Stevens And Equally Impartial Government, Diane Marie Amann

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This article is the second publication arising out of the author's ongoing research respecting Justice John Paul Stevens. It is one of several published by former law clerks and other legal experts in the UC Davis Law Review symposium edition, Volume 43, No. 3, February 2010, "The Honorable John Paul Stevens."

The article posits that Justice Stevens's embrace of race-conscious measures to ensure continued diversity stands in tension with his early rejections of affirmative action programs. The contrast suggests a linear movement toward a progressive interpretation of the Constitution’s equality guarantee; however, examination of Stevens's writings in biographical context reveal …

The Death Of Suspicion, Fabio Arcila Jr.

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This article argues that neither the presumptive warrant requirement nor the presumptive suspicion requirement are correct. Though representative of the common law, they do not reflect the totality of our historic experience, which includes civil search practices. More importantly, modern developments - such as urban life and technological advancements, the rise of the regulatory state, and security concerns post-9/11 - have sufficiently changed circumstances so that these rules are not just unworkable now, they are demonstrably wrong. Worst of all, adhering to them has prevented us from formulating a more coherent Fourth Amendment jurisprudence. A new paradigm confronts us, in …

Historical American Perspectives On International Law, Harlan G. Cohen

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The United States’ relationship with international law, although oft-discussed, is poorly understood. Depictions of the relationship are often little more than caricatures. Depending on when the caricature is drawn, the United States may be a longstanding “champion” of international law, an “exceptionalist” defender of American values, or a hypocritical opponent of international governance. Many traditional histories do little to complicate these views. Focused primarily on foreign affairs law and constitutional war powers, these histories highlight moments of tension between the United States and international law. Missing from these histories of American diplomacy and warcraft, foreign affairs caselaw and doctrinal development …

In The Trenches: Searches And The Misunderstood Common-Law History Of Suspicion And Probable Cause, Fabio Arcila

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A detailed analysis of the common law during the Framers’ era, and of how it reflected the Fourth Amendment’s restrictions, shows that many 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 conclusion challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

Learned treatises in particular, and to a lesser extent a few case decisions, had articulated a judicial duty to monitor probable cause. But it is a mistake …

John Paul Stevens, Human Rights Judge, Diane Marie Amann

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This article explores the nature and origins of Supreme Court Justice John Paul Stevens' engagement with international and foreign law and norms. It first discusses Stevens' pivotal role in the revived use of such norms to aid constitutional interpretation, as well as 1990s opinions testing the extent to which constitutional protections reach beyond the water's edge and 2004 opinions on post-September 11 detention. It then turns to mid-century experiences that appear to have contributed to Stevens' willingness to consult foreign context. The article reveals that as a code breaker Stevens played a role in the downing of the Japanese general …

The Dictionary And The Man: Garner’S Black’S Law Dictionary, Jeanne Price, Roy M. Mersky

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The 7th and 8th editions of Black's Law Dictionary were the first edited by Bryan Garner. This review of the 8th edition of Black's Law Dictionary focuses on the approach taken by Garner in thoroughly revising the dictionary and places his work in the context of the recent history of legal dictionaries and lexicography.

Reflections On The Killing State: A Cultural Study Of The Death Penalty In The Twentieth Century United States, Dwight Aarons

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No abstract provided.

Recognizing Race In The American Legal Canon, Fran Ansley

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No abstract provided.

Pioneers In The Legal Profession: Some Of The First African-American And Women Lawyers In Tennessee, Dwight Aarons

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No abstract provided.

Curses, Oaths, Ordeals And Tials Of Animals, Alan Watson

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To the outsider, a foreign legal system may at times appear irrational, with a belief in the efficacy, usually with supernatural assistance, of curses, oaths and ordeals, and that animals may properly be punished, even restrained from anti-human behaviour, after a criminal trial. But caution must be exercised. There may be little real belief that the deity will intervene-for instance, that the ordeal will reveal guilt or innocence. Rather, the society may be faced with an intolerable problem, with no reasonable solution, and the participants may resort to extraordinary legal measures as a "Last Best Chance", or "The Second Best". …

One Hundred Years Of Harmful Error: The Historical Jurisprudence Of Medical Malpractice, Theodore Silver

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In this Article, Professor Silver examines the origins of present-day malpractice law. He begins by noting that negligence and medical malpractice as the common law now knows them made their debut in the nineteenth century although their roots lie deep in the turf of trespass and assumpsit. He argues, however, that toward the turn of the century several episodes of linguistic laziness purported to produce a separation between negligence and medical malpractice so that the two fields are conventionally thought to rest on separate doctrinal foundations. According to Professor Silver, historically based scrutiny of medical malpractice and its ties to …

The Evolution Of Law: Continued, Alan Watson

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In my book The Evolution of Law I sought to give a general theory of legal evolution based on detailed legal examples from which generalizations could be drawn, offering as few examples as were consistent with my case in order to present as clear a picture as possible. I was well aware as I was writing that some critics would regard the examples as mere isolated aberrations and for them and for other readers who, whether convinced of the thesis or not, would like further evidence, I want here to bring forward a few extra significant examples.