Law Commons^™

The Booth Cases: Final Step To The Civil War, Jenni Parrish

Faculty Scholarship

No abstract provided.

Did The First Justice Harlan Have A Black Brother?, James W. Gordon

Faculty Scholarship

This Article summarizes the careers of James, John, and Robert Harlan. It then examines the evidence of the blood relationship between Robert Harlan and James Harlan, and speculates on the influence that John Harlan's contact with Robert Harlan might have had in shaping John's views on race. Finally, the Article reflects on the implications of the careers of John and Robert Harlan for our understanding of race in late nineteenth century America.

Historical Framework For Reviving Constitutional Protection For Property And Contract Rights , James L. Kainen

Faculty Scholarship

Post-New Deal constitutionalism is in search of a theory that justifies judicial intervention on behalf of individual rights while simultaneously avoiding the charge of "Lochnerism."' The dominant historical view dismisses post-bellum substantive due process as an anomalous development in the American constitutional tradition. Under this approach, Lochner represents unbounded protection for economic rights that permitted the judiciary to read laissez faire, pro-business policy preferences into the constitutional text. Today's revisionists have mounted a substantial challenge to the dismissive views of traditionalists. Indeed, some claim Lochner reached the right result, but for the wrong reason. The revisionists characterize substantive due process …

What He Was For, Eben Moglen

Faculty Scholarship

It will be said frequently in the years to come that an era in American history died when Thurgood Marshall left us. It will take some time for us to absorb the truth, for our sadness to be replaced by desperation. More than an era closed when his gallant heart failed him at last; in every corner of our battered country, maimed as it is by years of recklessly cultivated hatred, we lost the voice that constantly called us to attend to the work of our salvation.

Equality And Diversity: The Eighteenth-Century Debate About Equal Protection And Equal Civil Rights, Philip A. Hamburger

Faculty Scholarship

Living, as we do, in a world in which our discussions of equality often lead back to the desegregation decisions, to the Fourteenth Amendment, and to the antislavery debates of the 1830s, we tend to allow those momentous events to dominate our understanding of the ideas of equal protection and equal civil rights. Indeed, historians have frequently asserted that the idea of equal protection first developed in the 1830s in discussions of slavery and that it otherwise had little history prior to its adoption into the U.S. Constitution. Long before the Fourteenth Amendment, however – long before even the 1830s …

Using Comparative Fault To Replace The All-Or-Nothing Lottery Imposed In Intentional Torts Suits In Which Both Plaintiff And Defendant Are At Fault , Gail D. Hollister

Faculty Scholarship

All or nothing. For years this idea of absolutes has been a hallmark of tort law despite the inequities it has caused. Plaintiffs must either win a total victory or suffer total defeat. In recent years courts and legislatures have begun to recognize the injustice of the all-or-nothing approach and to replace it with rules that permit partial recoveries that are more equitably tailored to the particular facts of each case. The most dramatic example of this more equitable approach is the nearly universal rejection of contributory negligence in favor of comparative fault in negligence cases. Almost all jurisdictions, however, …

Legal Realism And The Social Contract: Fuller’S Public Jurisprudence Of Form, Private Jurisprudence Of Substance, James Boyle

Faculty Scholarship

No abstract provided.

A Vigil For Thurgood Marshall, Eben Moglen

Faculty Scholarship

Three days after his death, on January 27th, Thurgood Marshall came to the Supreme Court, up the marble steps, for the last time. Congress had ordered Abraham Lincoln's catafalque brought to the Court, and on it the casket of Thurgood Marshall lay in state. His beloved Chief, Earl Warren, had been so honored in the Great Hall of the Court, and no one else. Congress made the right decision about the bier, and it spoke with the voice of the people: no other American, of any age, so deserved to lie where Lincoln slept.

To him, all day on Wednesday, …

The Transformation Of Morton Horwitz, Eben Moglen

Faculty Scholarship

In 1977, Morton Horwitz published his astonishing first book, The Transformation of American Law, 1780-1860. Looking back, two things could be said of the reception of the Transformation: the book was subjected to extremely searching and ultimately quite successful criticism, while at the same time it dominated the field of American legal history for more than a decade, as no book had before, or has since. Like almost all other historians of American law trained in the years following 1977, my education in the craft of legal history was decisively affected by the Transformation. My first published work was a …