Law Commons^™

It Is A Constitution We Are Expounding: John Marshall, Spencer Roane, And The Fundamental Conflicts Surrounding Mcculloch V. Maryland (1819), Catherine T. Meisenheimer

Compass: An Undergraduate Journal of American Political Ideas

Using a blend of primary and secondary sources, this research paper examines the lesser-known newspaper debate between Chief Justice John Marshall and Judge Spencer Roane of the Virginia Court of Appeals. The purpose of this research is to answer one question: What were the fundamental issues that divided early Americans as demonstrated by the landmark case of McCulloch v. Maryland (1819)? To contribute to the ongoing discussion of McCulloch and its significance, my paper attempts to understand the issues surrounding McCulloch within its broader, historical context. Instead of confining its importance to the Second Bank of the United States, I …

The Riccobono Seminar Of Roman Law In America: The Lost Years, Timothy G. Kearley

Timothy G. Kearley

Using The Master’S Tool To Dismantle His House: Derrick Bell, Herbert Wechsler, And Critical Legal Process, William Rhee

Concordia Law Review

This Article retells the life stories of Derrick Bell, a founder of Critical Race Theory, and Herbert Wechsler, a founder of the Legal Process School, to suggest a synthesis of their often conflicting paradigms—Critical Legal Process. Critical Legal Process’s fundamental question is whether the Master’s tool, the so-called rule of law, can be considered—in the words of Wechsler’s most famous article—a genuine “neutral principle.” Can the Master’s favorite tool be repurposed to dismantle the very house it built? Can the same rule of law that was abused to build the racist Jim Crow system not only dismantle that explicitly racist …

Roll Over Langdell, Tell Llewellyn The News: A Brief History Of American Legal Education, Stephen R. Alton

Stephen Alton

The origin of this essay is a presentation the author made at the Office of the Attorney General of the State of Texas on December 10, 2008. This essay is derived from the author's presentation, which originally was entitled "A Brief and Highly Selective History of American Legal Education and Jurisprudence. " In this essay, the author provides an overview of the history and development of legal education in America, emphasizing the establishment and evolution of the case method of instruction in American law schools and focusing on the influence of American jurisprudence on the development of legal education in …

Creating Difference: The Legal Production Of Race In American Slavery, Shaun N. Ramdin

Electronic Thesis and Dissertation Repository

This dissertation examines the legal construction and development of racial difference as considered in literature written or set during the final years of American slavery. While there had consistently been a conceptual correspondence between black skin and enslavement, race or racial difference did not become the unqualified explanation of enslavement until fairly late in the institution’s history. Specifically, as slavery’s stability became increasingly threatened through the nineteenth century by abolitionism and racial slippage, race became the singular and explicit rationale for its existence and perpetuation. I argue that the primary discourse of this justificatory rationale was legal: through law race …

Brougham’S Ghost, Michael S. Ariens

Faculty Articles

In defending Queen Caroline in the House of Lords, Henry Brougham declared, “[a]n advocate, by the sacred duty of his connection with his client, knows, in the discharge of that office, but one person in the world, that client and none other.” Brougham’s ethic of advocacy has been cited repeatedly as stating the American lawyer’s duty of zealous representation of a client. It has often been called the “classic statement” of zealous representation and representing the “traditional view of the lawyer’s role.”

This essay challenges these conclusions. Brougham’s rhetoric was neither a classic statement of the duty of loyalty to …

Governmental Power Versus Individual Liberty, Vincent R. Johnson

Faculty Articles

Father, Son, and Constitution by Alexander Wohl is a major contribution to legal scholarship. This dual biography focuses on two public figures, each of whom played a leading role in addressing the most challenging legal questions of their day. The subjects of the book are Supreme Court Justice Tom C. Clark and his son Ramsey Clark, the most liberal attorney general in American history. The Clarks’ stories are told against a backdrop of the continuing American struggle to find the proper balance between governmental power and individual liberty.

The public careers of Tom and Ramsey Clark were largely sequential, but …

Progressive Legal Thought, Herbert J. Hovenkamp

All Faculty Scholarship

A widely accepted model of American legal history is that "classical" legal thought, which dominated much of the nineteenth century, was displaced by "progressive" legal thought, which survived through the New Deal and in some form to this day. Within its domain, this was a revolution nearly on a par with Copernicus or Newton. This paradigm has been adopted by both progressive liberals who defend this revolution and by classical liberals who lament it.

Classical legal thought is generally identified with efforts to systematize legal rules along lines that had become familiar in the natural sciences. This methodology involved not …

Governmental Power Versus Individual Liberty., Vincent R. Johnson

The Scholar: St. Mary's Law Review on Race and Social Justice

Father, Son, and Constitution by Alexander Wohl is a major contribution to legal scholarship. This dual biography focuses on two public figures, each of whom played a leading role in addressing the most challenging legal questions of their day. The subjects of the book are Supreme Court Justice Tom C. Clark and his son Ramsey Clark, the most liberal attorney general in American history. The Clarks’ stories are told against a backdrop of the continuing American struggle to find the proper balance between governmental power and individual liberty. The public careers of Tom and Ramsey Clark were largely sequential, but …

Progressive Legal Thought, Herbert Hovenkamp

Herbert Hovenkamp

A widely accepted model of American legal history is that classical legal thought, which dominated much of the nineteenth century, was displaced by progressive legal thought, which survived through the New Deal and in some form to this day. Within its domain, this was a revolution nearly on a par with Copernicus or Newton. This paradigm has been adopted by both progressive liberals who defend this revolution and by classical liberals who lament it. Classical legal thought is generally identified with efforts to systematize legal rules along lines that had become familiar in the natural sciences. This methodology involved not …

The Texas Supreme Court: A Narrative History, 1836–1986 (Book Review), Michael S. Ariens

Faculty Articles

The historical material and resources available for American legal historians is both too much and too little. Hundreds of published case opinions became thousands of opinions by the end of the 1820s, leading lawyers to conclude that no one could know the entirety of the law. Yet this cascade of information is also too little, because the work of treatise writers and magazine editors of the time was ruthlessly focused on then-existing legal concerns.

For these reasons, James L. Haley works within difficult strictures in his book, The Texas Supreme Court: A Narrative History, 1836–1986. Because his story is about …

A Death At Crooked Creek: The Case Of The Cowboy, The Cigarmaker, And The Love Letter, By Marianne Wesson (Book Review), Michael S. Ariens

Faculty Articles

Marianne Wesson’s A Death at Crooked Creek tells the story of one of the most intriguing mysteries in American legal history. For evidence teachers, and possibly even law students, Mutual Life Ins. Co. v. Hillmon is a classic nineteenth century mystery story. The case raises the question: Was the deceased John W. Hillmon, who had recently taken out the extraordinary sum of $25,000 in life insurance, or was it Frederick Adolph Walters, an itinerant who had left Iowa a year earlier?

In addition to teaching at the University of Colorado School of Law, Wesson is the author of three mystery …

Father, Son, And Constitution: How Justice Tom Clark And Attorney General Ramsey Clark Shaped American Democracy, By Alexander Wohl (Book Review), Vincent R. Johnson

Faculty Articles

In Father, Son, and Constitution, Alexander Wohl brings to life two major figures of American law: Tom C. Clark and his son, Ramsey Clark. The story focuses primarily on the middle third of the twentieth century and the many heated constitutional challenges that arose during that era.

With an engaging literary style, Wohl perceptively examines not merely the lives and careers of Tom and Ramsey Clark, but the key roles they played in the issues of their day. The story proceeds from Pearl Harbor and World War II, to the Cold War, to desegregation, to the problems that beset President …

Lost And Found: David Hoffman And The History Of American Legal Ethics, Michael S. Ariens

Faculty Articles

David Hoffman was a successful Baltimore lawyer who wrote the first study of American

law in 1817 and authored the first maxims of American legal ethics. Yet for more than a century after his death, Hoffman was a forgotten figure to American lawyers. Beginning in the late 1970s, Hoffman was re-discovered, and his writings on legal ethics have been favorably cited.

How and why was Hoffman “lost” to American law for over a century, and why he was “found”? Hoffman was lost to history because his view of ethics was premised on republican virtue, specifically the concept of honor. A …

The Agony Of Modern Legal Ethics, 1970–1985, Michael S. Ariens

Faculty Articles

When the American Bar Association (ABA) adopted its Code of Professional Responsibility at its annual meeting in August 1969, the American legal profession was a publicly respected and economically vibrant body. Lawyers, though always more feared than loved, became increasingly important in post-World War II America. The demand for their services exploded for a quarter-century, and lawyers assumed an increased role in the economic and political life of the United States. During the 1950s and early 1960s, the Cold War led American lawyers and other public figures to re-emphasize the rule of law as defining the difference between the United …

Lost Options For Mutual Gain? The Layperson, The Lawyer, And Dispute Resolution In Early America, Carli N. Conklin

Faculty Publications

In 1786, legal reform activist Benjamin Austin undertook a campaign to promote the use of arbitration over litigation as the primary method of dispute resolution in Massachusetts. Although supported by a groundswell of anti-lawyer sentiment, Austin ultimately failed in securing the triumph of arbitration. Exploring Austin's pamphlet campaign in its historical context not only provides us with a snapshot of the arguments for and against dispute resolution in early America, but also serves as a corrective to the prevailing accounts of arbitration in American legal history. This article explores the context and content of Austin's pamphlet campaign and its implications …

Teaching American Legal History Through Storytelling, Michael S. Ariens

Faculty Articles

Distinct from facts and truths, the power of storytelling can serve as a method of teaching American Legal History. A course in American Legal History can facilitate discussion into whether the rule of law has been the rule or exception in the history of American law. Integral to this overarching story are three storylines that surface throughout the course: the development of law in American political history; the ideological underpinnings of legal doctrine development; and the rise and decline of different approaches to legal thought and their effect on legal education.

The course begins with a chronological overview of the …

Teaching Legal History In The Age Of Practical Legal Education, Douglas E. Abrams

Faculty Publications

Historian Henry Steele Commager said, “History is useful in the sense that art is useful--or music or poetry or flowers; perhaps even in the sense that religion and philosophy is useful .... For without these things life would be poorer and meaner.” For law students who anticipate a career representing private and public clients and participating in public discussion, however, study of legal history carries rewards beyond intellectual stimulation and personal satisfaction. Law students contemplating client representation should ponder Justice Holmes's advice that “[h]istory must be a part of the study [of law], because without it we cannot know the …

Inside The Castle: Law And Family In 20th Century America, By Joanna L. Grossman And Lawrence M. Friedman (Book Review), Michael S. Ariens

Faculty Articles

Inside the Castle: Law and Family in 20th Century America, by Joanna L. Grossman and Lawrence M. Friedman, is an entertaining and occasionally frustrating history. In the book’s introduction, the authors offer two big ideas. Their first idea promotes the instrumental explanation of law, and the second idea is the rise in the last part of the twentieth century of what the authors call “individualized marriage.”

Both these ideas have been long promoted by Lawrence M. Friedman, one of the nation’s foremost legal historians, and in many respects, the evidence adduced by the authors confirms both big ideas. Grossman and …

Roll Over Langdell, Tell Llewellyn The News: A Brief History Of American Legal Education, Stephen R. Alton

Faculty Scholarship

The origin of this essay is a presentation the author made at the Office of the Attorney General of the State of Texas on December 10, 2008. This essay is derived from the author's presentation, which originally was entitled "A Brief and Highly Selective History of American Legal Education and Jurisprudence. " In this essay, the author provides an overview of the history and development of legal education in America, emphasizing the establishment and evolution of the case method of instruction in American law schools and focusing on the influence of American jurisprudence on the development of legal education in …

Coconspirators, “Coventurers,” And The Exception Swallowing The Hearsay Rule, Ben L. Trachtenberg

Faculty Publications

In recent years, prosecutors - sometimes with the blessing of courts - have argued that when proving the existence of a “conspiracy” to justify admission of evidence under the Coconspirator Exception to the Hearsay Rule, they need show only that the declarant and the defendant were “coventurers” with a common purpose, not coconspirators with an illegal purpose. Indeed, government briefs and court decisions specifically disclaim the need to show any wrongful goal whatsoever. This Article contends that such a reading of the Exception is mistaken and undesirable. Conducted for this article, a survey of thousands of court decisions, including the …

Lawyers, Guns & Public Monies: The U.S. Treasury, World War One, And The Administration Of The Modern Fiscal State, Ajay K. Mehrotra

Articles by Maurer Faculty

The First World War was a pivotal event for American political and economic development, particularly in the realm of public finance. For it was during the war years that the federal government ended its traditional reliance on regressive import duties and excise taxes as principal sources of revenue and began a modern era of fiscal governance, one based primarily on the direct and progressive taxation of personal and corporate income. Like other aspects of war mobilization, this fiscal revolution required an enormous infusion of national administrative resources. Nowhere was this more evident than within the corridors of the U.S. Treasury …

Anger, Irony, And The Formal Rationality Of Professionalism, Ajay K. Mehrotra

Articles by Maurer Faculty

No abstract provided.

Debunking The "Divine Conception" Myth: Environmental Law Before Nepa, Michael C. Blumm

Michael Blumm

This is a review of Karl Brooks' book, "Before Earth Day: The Origins of American Environmental Law, 1945-70." Brooks challenges the standard account given in most America law school classes that has environmental law bursting onto the legal scene in the "environmental decade" of the 1970's. Like the "miracle in Philadelphia" in the summer of 1787, this "divine conception" theory of the genesis of environmental law is a myth, as Brooks ably demonstrates. He discusses the struggle to pass environmental statutes in the late 1940's like the Fish and Wildlife Coordination Act, as well as successful block developments like Idaho …

Thinking About Law And Creativity: On The 100 Most Creative Moments In American Law, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

The Storm Between The Quiet: Tumult In The Texas Supreme Court, 1911-21, Michael S. Ariens

Faculty Articles

The Texas Supreme Court from 1911–1921 is best known not for the law it made or the opinions it wrote, but for its failure to decide cases. Although the supreme court’s difficulty in clearing its docket existed before 1911, the number of outstanding cases exploded during the second decade of the twentieth century.

Arguably, the issue of statewide prohibition and the divergent views held on that issue by members of the Texas Supreme Court was the driving force behind the disharmony and dysfunctionality of the court during this decade. Statewide prohibition explains why elections of candidates to the court were …

The Storm Between The Quiet: Tumult In The Texas Supreme Court, 1911-21., Michael S. Ariens

St. Mary's Law Journal

The Texas Supreme Court from 1911–1921 is best known not for the law it made or the opinions it wrote, but for its failure to decide cases. Although the supreme court’s difficulty in clearing its docket existed before 1911, the number of outstanding cases exploded during the second decade of the twentieth century. Arguably, the issue of statewide prohibition and the divergent views held on that issue by members of the Texas Supreme Court was the driving force behind the disharmony and dysfunctionality of the court during this decade. Statewide prohibition explains why elections of candidates to the court were …

An Essay On The Tort Of Negligent Infliction Of Emotion Distress In Texas: Stop Saying It Does Not Exist., Charles E. Cantu

St. Mary's Law Journal

The injury of emotional distress is an interesting tort, which has long perplexed the Anglo-American system of jurisprudence. While, originally, allegations of this kind did not constitute a cause of action, today, there is no question that an injured plaintiff may recover for the infliction of emotional distress. The majority and minority positions differ now only on what must be alleged and proved. Texas was the first jurisdiction in the United States to allow recovery for mental anguish. However, in 1993 in the case of Boyles v. Kerr, the Texas Supreme Court appeared to depart from the majority view when …

An Essay On The Tort Of Negligent Infliction Of Emotional Distress In Texas: Stop Saying It Does Not Exist, Charles E. Cantú

Faculty Articles

The injury of emotional distress is an interesting tort, which has long perplexed the Anglo-American system of jurisprudence. While, originally, allegations of this kind did not constitute a cause of action, today, there is no question that an injured plaintiff may recover for the infliction of emotional distress. The majority and minority positions differ now only on what must be alleged and proved.

Texas was the first jurisdiction in the United States to allow recovery for mental anguish. However, in 1993 in the case of Boyles v. Kerr, the Texas Supreme Court appeared to depart from the majority view when …

The Diminishing Sphere Of The Cooperative Virtues In American Law And Society, Ana M. Novoa

Faculty Articles

Exploration of destructive developments in American law and society show that family law is completely askew. Although family law deals with the most intimate and basic personal relationships, it applies a legal process based on autonomous individual public and private economic rights to those intimate relational realities. It is a hallowed expression of male virtues and a paradigmatic example of the use of the law to protect vested interests and shape society, rather than a reflection of reality.

The split between the private/family/female and the public/business/male spheres of the nineteenth century created the separation of competitive attributes, virtues, and vices …