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2014

Legal History

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Full-Text Articles in Law

The Legacy Of Ronald Dworkin (1931-2013): A Legal Theory And Methodology For Hedgehogs, Hercules, And One Right Answers, Imer Flores Dec 2014

The Legacy Of Ronald Dworkin (1931-2013): A Legal Theory And Methodology For Hedgehogs, Hercules, And One Right Answers, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this paper the author addresses Ronald Dworkin’s work and assesses his legacy to legal, moral and political philosophy. And so, considers among its merits having developed an original legal theory with its distinctive methodology, which not only has transcended the Natural Law and Legal Positivism dichotomy, but also has reintegrated law into a branch of political morality and defended as a corollary the one right answer thesis. Hence, commences by identifying the dworkininan challenge; continues by introducing some basic definitions and distinctions between jurisprudence, legal philosophy (or philosophy of law) and legal theory (or theory of law), on ...


The Santissima Trinidad: The Role Of Baltimore's Privateers With The Independence Of The United Provinces, Shannon Price Dec 2014

The Santissima Trinidad: The Role Of Baltimore's Privateers With The Independence Of The United Provinces, Shannon Price

Legal History Publications

After the War of 1812, the maritime industry began to decline and merchants and mariners began serving as privateers for Latin American colonies ceding from Spain. This paper examines the Supreme Court decision in an action filed on behalf of the Spanish government seeking restitution for cargo seized from a Spanish vessel, the Santissima Trinidad, on the high seas by the Independencia Del Sud, a public vessel of Buenos Ayres. The Court holds that jurisdiction exists for neutrality violations as the goods were landed at Norfolk, Virginia and the public vessel had an illegal augmentation of force in a U ...


Livingston & Gilchrist V. The Maryland Insurance Co. (1813): A Testament To Judicial Flexibility, Kathleen Lord Fallon Dec 2014

Livingston & Gilchrist V. The Maryland Insurance Co. (1813): A Testament To Judicial Flexibility, Kathleen Lord Fallon

Legal History Publications

Barely a month before Justice Brockholst Livingston joined the Supreme Court of the United States, a ship he commissioned with a cargo of $50,000, was captured by the British and condemned. The circumstances of the vessel’s voyage led to its capture; she sailed as an American merchant ship under a Spanish license with an American crew. When seized as a prize, the British found papers showing conflicting information concealed amongst the crew belongings. Justice Livingston tried to recoup his losses through an insurance policy with the Maryland Insurance Company, but was denied on the grounds that the voyage ...


Interest Groups In The Teaching Of Legal History, Herbert J. Hovenkamp Nov 2014

Interest Groups In The Teaching Of Legal History, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

One reason legal history is more interesting than it was several decades ago is the increased role of interest groups in our accounts of legal change. Diverse movements including law and society, critical legal theory, comparative law, and public choice theory have promoted this development, even among writers who are not predominantly historians. Nonetheless, in my own survey course in American legal history I often push back. Taken too far, interest group theorizing becomes an easy shortcut for assessing legal movements and developments without fully understanding the ideas behind them.

Intellectual history in the United States went into decline because ...


The Incredible Wrongness Of The Warren Report - The Official Inquiry Into The Assassination Of Jfk Is Deeply Flawed, Donald E. Wilkes Jr. Nov 2014

The Incredible Wrongness Of The Warren Report - The Official Inquiry Into The Assassination Of Jfk Is Deeply Flawed, Donald E. Wilkes Jr.

Popular Media

This article will explain why a reevaluation of the Report in light of the new information requires rejection of other key aspects of the Report.


Discredited: The Warren Report 50 Years Later, Donald E. Wilkes Jr. Nov 2014

Discredited: The Warren Report 50 Years Later, Donald E. Wilkes Jr.

Popular Media

In the half-century since the Warren Report, a vast mass of additional evidence and new information relating to the assassination has emerged. There have been reinvestigations by Congress. Hundreds of thousands of pages of government documents have been declassified. Responsible private researchers, including academic scholars from major universities, have undertaken their own studies and published authoritative books and articles calling into question the accuracy of the Warren Report. The strange, listless behavior of the Warren Commission itself has been amply documented.

We must, after 50 years, face the hair-raising, inescapable truth: The critics who warned us about the Warren Report ...


Magna Carta And The Right To Trial By Jury, Thomas J. Mcsweeney Oct 2014

Magna Carta And The Right To Trial By Jury, Thomas J. Mcsweeney

Faculty Publications

No abstract provided.


Reforming High School American History Curricula: What Publicized Student Intolerance Can Teach Policymakers, Douglas E. Abrams Oct 2014

Reforming High School American History Curricula: What Publicized Student Intolerance Can Teach Policymakers, Douglas E. Abrams

Faculty Publications

This article concerns the way public high schools teach American history under curricula and standards mandated by state law. “We’re raising young people who are, by and large, historically illiterate,” says David McCullough, the dean of American historians.

The article describes three recent nationally publicized incidents in which high school students belittled lynching and the Trail of Tears, evidently without appreciating the episodes’ legal and historical significance to African Americans and Native Americans respectively. Standards and textbooks typically recognize diversity and multiculturalism, but research and surveys indicate that classroom teachers frequently sanitize or avoid discomforting topics that might trigger ...


Auctioning Class Settlements, Jay Tidmarsh Oct 2014

Auctioning Class Settlements, Jay Tidmarsh

Journal Articles

Although they promise better deterrence at a lower cost, class actions are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class (the class representative and class counsel) advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class-action reform proposals. This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea ...


Haydn Doren's Defense In The Court Of The Jarl Of Whiterun, Balgruuf The Greater, Ryan W. Selfridge Oct 2014

Haydn Doren's Defense In The Court Of The Jarl Of Whiterun, Balgruuf The Greater, Ryan W. Selfridge

Student Publications

This paper is a look at an American Mock Trial Association scenario placed in the world of Skyrim. The piece applies legal concepts regarding forming narratives in the courtroom, something that is absolutely necessary to a jury trial. The unique scenario the trial was held in facilitated the explanation of the rules of evidence in the footnotes, and illustrates how the evidence was admitted to the court.


The Law In Postcards, Laurel Davis Sep 2014

The Law In Postcards, Laurel Davis

Rare Book Room Exhibition Programs

Exhibition program from a Fall 2014 exhibit presented in the Daniel R. Coquillette Rare Book Room at the Boston College Law Library. The exhibit featured selections from a gift of law-related postcards, donated by Michael H. Hoeflich.


Economics Of Legal History, Daniel M. Klerman Aug 2014

Economics Of Legal History, Daniel M. Klerman

University of Southern California Legal Studies Working Paper Series

This essay surveys economic analyses of legal history. In order to make sense of the field and to provide examples that might guide and inspire future research, it identifies and discusses five genres of scholarship.

1) Law as the dependent variable. This genre tries to explain why societies have the laws they do and why laws change over time. Early economic analysis tended to assume that law was efficient, while later scholars have usually adopted more realistic models of judicial and legislative behavior that take into account interest groups, institutions, and transactions costs.

2) Law as an independent variable. Studies ...


Representation In Context: Party Power And Lawyer Expertise, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark Aug 2014

Representation In Context: Party Power And Lawyer Expertise, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Georgetown Law Faculty Publications and Other Works

The questions when, why, and how legal representation makes a difference for parties in civil litigation remain largely unanswered, although recent scholarship raises compelling new questions and suggests new explanations and theoretical approaches. Understanding how legal representation operates, we argue, requires an appreciation for the context in which the representation actually takes place. This article examines two previously unexplored elements of the context of legal representation through empirical and theoretical analysis: the balance of power between the parties to a dispute and the professional, specifically strategic, expertise that a legal representative contributes. The results of a study of 1,700 ...


The Structure And Evolution Of The Academic Discipline Of Law In The United States: Generation And Validation Of Course-Subject Co-Occurrence (Csco) Maps, Peter A. Hook Jul 2014

The Structure And Evolution Of The Academic Discipline Of Law In The United States: Generation And Validation Of Course-Subject Co-Occurrence (Csco) Maps, Peter A. Hook

School of Information Sciences Faculty Research Publications

This dissertation proposes, exemplifies, and validates the usage of course-subject co-occurrence (CSCO) data to generate topic maps of an academic discipline. CSCO is defined as course-subjects taught in the same academic year by the same teacher. This work is premised on the assumption that in the aggregate and for reasons of efficiency, faculty members teach course-subjects that are topically similar to one another. To exemplify and validate CSCO, more than 112,000 CSCO events were extracted from the annual directories of the American Association of Law Schools covering nearly eighty years of law school teaching in the United States. The ...


The Federal Rules At 75: Dispute Resolution, Private Enforcement Or Decision According To Law?, James Maxeiner Jul 2014

The Federal Rules At 75: Dispute Resolution, Private Enforcement Or Decision According To Law?, James Maxeiner

All Faculty Scholarship

This essay is a critical response to the 2013 commemorations of the 75th anniversary of the Federal Rules of Civil Procedure.

The Federal Rules of Civil Procedure were introduced in 1938 to provide procedure to decide cases on their merits. The Rules were designed to replace decisions under the “sporting theory of justice” with decisions according to law. By 1976, at midlife, it was clear that they were not achieving their goal. America’s proceduralists split into two sides about what to do.

One side promotes rules that control and conclude litigation: e.g., plausibility pleading, case management, limited discovery ...


When Harvard Said No To Eugenics: The J. Ewing Mears Bequest, 1927, Paul A. Lombardo Jul 2014

When Harvard Said No To Eugenics: The J. Ewing Mears Bequest, 1927, Paul A. Lombardo

Faculty Publications By Year

James Ewing Mears (1838-1919) was a founding member of the Philadelphia Academy of Surgery. His 1910 book, The Problem of Race Betterment, laid the groundwork for later authors to explore the uses of surgical sterilization as a eugenic measure. Mears left $60,000 in his will to Harvard University to support the teaching of eugenics. Although numerous eugenic activists were on the Harvard faculty, and who of its Presidents were also associated with the eugenics movement, Harvard refused the Mears gift. The bequest was eventually awarded to Jefferson Medical College in Philadelphia. This article explains why Harvard turned its back ...


Gideon V. Wainwright--From A 1963 Perspective, Jerold H. Israel Jul 2014

Gideon V. Wainwright--From A 1963 Perspective, Jerold H. Israel

Articles

Gideon v. Wainwright is more than a “landmark” Supreme Court ruling in the field of constitutional criminal procedure. As evidenced by the range of celebrators of Gideon’s Fiftieth Anniversary (extending far beyond the legal academy) and Gideon’s inclusion in the basic coverage of high school government courses, Gideon today is an icon of the American justice system. I have no quarrel with that iconic status, but I certainly did not see any such potential in Gideon when I analyzed the Court’s ruling shortly after it was announced in March of 1963. I had previously agreed to write ...


America’S Legal History Started In Williamsburg, Paul Hellyer Jun 2014

America’S Legal History Started In Williamsburg, Paul Hellyer

Library Staff Publications

No abstract provided.


A Revolution At War With Itself? Preserving Employment Preferences From Weber To Ricci, Sophia Z. Lee Jun 2014

A Revolution At War With Itself? Preserving Employment Preferences From Weber To Ricci, Sophia Z. Lee

Faculty Scholarship at Penn Law

Two aspects of the constitutional transformation Bruce Ackerman describes in The Civil Rights Revolution were on a collision course, one whose trajectory has implications for Ackerman’s account and for his broader theory of constitutional change. Ackerman makes a compelling case that what he terms “reverse state action” (the targeting of private actors) and “government by numbers” (the use of statistics to identify and remedy violations of civil rights laws) defined the civil rights revolution. Together they “requir[ed] private actors, as well as state officials, to . . . realize the principles of constitutional equality” and allowed the federal government to “actually ...


New Directions In The Scholarship Of The American Revolution, Mary Sarah Bilder May 2014

New Directions In The Scholarship Of The American Revolution, Mary Sarah Bilder

Boston College Law School Faculty Papers

These brief comments were presented in May 2014 at a panel in honor of the late Professor Pauline Maier (including Mary Beth Norton, Gordon Wood, Bernard Bailyn, Robert Martello, and Mary Sarah Bilder). Professor Bilder proposed three areas for future work in the framing era: (1) reconsidering the conception of the “state”; (2) exploring continuities in governance practices as well as formal constitutional change to explain the rapid embrace of the new constitutional system; (3) relocating American development within a larger global narrative in which 1776 or 1787 do not begin or end the story, and the thirteen colonies are ...


A Psychological Account Of Consent To Fine Print, Tess Wilkinson-Ryan May 2014

A Psychological Account Of Consent To Fine Print, Tess Wilkinson-Ryan

Faculty Scholarship at Penn Law

The moral and social norms that bear on contracts of adhesion suggest a deep ambivalence. Contracts are perceived as serious moral obligations, and yet they must be taken lightly or everyday commerce would be impossible. Most people see consent to boilerplate as less meaningful than consent to negotiated terms, but they nonetheless would hold consumers strictly liable for both. This Essay aims to unpack the beliefs, preferences, assumptions, and biases that constitute our assessments of assent to boilerplate. Research suggests that misgivings about procedural defects in consumer contracting weigh heavily on judgments of contract formation, but play almost no role ...


American Exceptionalism And Government Shutdowns: A Comparative Constitutional Reflection On The 2013 Lapse In Appropriations, Katharine G. Young May 2014

American Exceptionalism And Government Shutdowns: A Comparative Constitutional Reflection On The 2013 Lapse In Appropriations, Katharine G. Young

Boston College Law School Faculty Papers

The shutdown of the U.S. government after failure to pass a budget is exceptional by global standards. Other governments in mature constitutional democracies do not stop functioning, despite the difficulties in passing revenue bills. Yet shutdowns in America are increasing in occurrence, costliness and intensity. I argue that the Constitution is partly to blame, both because of what it creates and what it lacks. Drawing on a comparative perspective, I show how the constitutional emphasis on checks and balances contributes to the likelihood of shutdown, and how features that might forestall or resolve financial impasse are omitted.

After rejecting ...


The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt Apr 2014

The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt

All Faculty Scholarship

Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Essay explains how this differentiation arose and considers its consequences.

Although there is a certain inherent logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech ...


Economic Analysis Of Legal History, Daniel M. Klerman Apr 2014

Economic Analysis Of Legal History, Daniel M. Klerman

University of Southern California Legal Studies Working Paper Series

This essay surveys economic analyses of legal history. In order to make sense of the field and to provide examples that might guide and inspire future research, it identifies and discusses five genres of scholarship.

1) Law as the dependent variable. This genre tries to explain why societies have the laws they do and why laws change over time. Early economic analysis tended to assume that law was efficient, while later scholars have usually adopted more realistic models of judicial and legislative behavior that take into account interest groups, institutions, and transactions costs.

2) Law as an independent variable. Studies ...


Beyond Backlash: Legal History, Polarization, And Roe V. Wade, Mary Ziegler Apr 2014

Beyond Backlash: Legal History, Polarization, And Roe V. Wade, Mary Ziegler

Scholarly Publications

On its fortieth anniversary, Roe v. Wade serves as the most prominent example of the damage judicial review can do to the larger society. Scholars from across the ideological spectrum have related how Roe helped to entrench the ideological positions held by those on either side of the abortion issue, precluding any form of productive compromise. This criticism, which the Article calls the “beyond backlash” argument, has profound legal consequences, serving as both a justification for overruling Roe and as a case study of the benefits of varying interpretive methods.

This Article reevaluates the beyond backlash claim through a careful ...


Targeted Killing: United States Policy, Constitional Law, And Due Process, Mark Febrizio Apr 2014

Targeted Killing: United States Policy, Constitional Law, And Due Process, Mark Febrizio

Senior Honors Theses

The increased incorporation of targeted killing, primarily through the use of unmanned aerial vehicles, into United States policy raises salient questions regarding its consistency with the U.S. Constitution. This paper contrasts interpretations of constitutional due process with the current legal framework for conducting targeted killing operations. The Fifth Amendment to the Constitution establishes the due process owed to U.S. citizens. This paper determines that the killing of Anwar al-Awlaki, an American citizen, was accomplished in a manner inconsistent with constitutional due process and demonstrates an over-extension of executive branch power. This paper examines one scholarly recommendation that seeks ...


Habeas Corpus Proceedings In The High Court Of Parliament In The Reign Of James I, 1603-1625, Donald E. Wilkes Jr. Apr 2014

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

Scholarly Works

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 ...


The Difference Prevention Makes: Regulating Preventive Justice, David Cole Mar 2014

The Difference Prevention Makes: Regulating Preventive Justice, David Cole

Georgetown Law Faculty Publications and Other Works

Since the terrorist attacks of September 11, 2001, the United States and many other countries have adopted a ‘‘paradigm of prevention,’’ employing a range of measures in an attempt to prevent future terrorist attacks. This includes the use of pre textual charges for preventive detention, the expansion of criminal liability to prohibit conduct that precedes terrorism, and expansion of surveillance at home and abroad. Politicians and government officials often speak of prevention as if it is an unqualified good. Everyone wants to prevent the next terrorist attack, after all. And many preventive initiatives, especially where they are not coercive and ...


Analogical Legal Reasoning: Theory And Evidence, Joshua C. Teitelbaum Mar 2014

Analogical Legal Reasoning: Theory And Evidence, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

The paper offers a formal model of analogical legal reasoning and takes the model to data. Under the model, the outcome of a new case is a weighted average of the outcomes of prior cases. The weights capture precedential influence and depend on fact similarity (distance in fact space) and precedential authority (position in the judicial hierarchy). The empirical analysis suggests that the model is a plausible model for the time series of U.S. maritime salvage cases. Moreover, the results evince that prior cases decided by inferior courts have less influence than prior cases decided by superior courts.


Recent Arrivals To The Rare Book Room: Spring 2014, Laurel Davis Mar 2014

Recent Arrivals To The Rare Book Room: Spring 2014, Laurel Davis

Rare Book Room Exhibition Programs

Exhibition program from a Spring 2014 exhibit presented in the Daniel R. Coquillette Rare Book Room at the Boston College Law Library. The exhibit focused on books and manuscripts that had been added to the collection over the previous two years.