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Articles 1 - 30 of 32
Full-Text Articles in Law
“To Assemble Together For Their Common Good”: History, Ethnography, And The Original Meanings Of The Rights Of Assembly And Speech, Saul Cornell
Fordham Law Review
The Whiskey Rebellion is not generally a major focus in constitutional histories or casebooks. Given this fact, it is hardly surprising that the 1795 case Respublica v. Montgomery seldom figures as more than a minor footnote in scholarly writing about early American constitutional development, if it receives any attention at all. The case has little precedential value for modern First Amendment doctrine and only obliquely implicates larger jurisprudential questions about the rights of assembly and freedom of expression. In strictly doctrinal terms, Montgomery is primarily about the obligation of a justice of the peace to put down a riot, not …
Historians And The New Originalism: Contextualism, Historicism, And Constitutional Meaning, Martin S. Flaherty
Historians And The New Originalism: Contextualism, Historicism, And Constitutional Meaning, Martin S. Flaherty
Fordham Law Review
Toward that end, this Foreword addresses three matters. First, it considers why the use of history in constitutional interpretation is inescapable. Next, it suggests that the Essays in this forum do not go far enough in debunking the idea of “public meaning” originalism as a serious alternative to previous approaches. Finally, the balance of this Foreword reviews the also perhaps inescapable misuses of history that constitutional interpretation invites and considers the type of misuse that public meaning originalism represents.
Historicism And Holism: Failures Of Originalist Translation, Jonathan Gienapp
Historicism And Holism: Failures Of Originalist Translation, Jonathan Gienapp
Fordham Law Review
For as long as the U.S. Constitution has existed, Americans have appealed to the history of its creation to interpret its meaning. But only since the advent of originalism—the well-known constitutional theory that requires interpreting the Constitution today in accordance with its original meaning—has historical study been so immediately implicated by constitutional interpretation. Despite potential, though, for meaningful exchange between originalists and historians, little has taken place. That originalism plays an ever-growing role in contemporary political culture only makes the lack of dialogue all the more unfortunate.
Outsourcing The Law: History And The Disciplinary Limits Of Constitutional Reasoning, Helen Irving
Outsourcing The Law: History And The Disciplinary Limits Of Constitutional Reasoning, Helen Irving
Fordham Law Review
Debates about the use of history in constitutional interpretation find their primary nourishment in the originalism debate. This has generated a vast amount of literature, but also narrowed the terms of the debate. Originalism is a normative commitment wrapped in a questionable methodological confidence. Regardless of the multiple forms originalism takes, originalists are confident that the meaning (in the sense of intention) that animated the framing of the Constitution can be ascertained and, indeed, that they can ascertain it. The debate has largely focused, then, on whether modern-day scholars and jurists can ascertain original historical meaning or, alternatively, whether they …
Tone Deaf To The Past: More Qualms About Public Meaning Originalism, Jack Rakove
Tone Deaf To The Past: More Qualms About Public Meaning Originalism, Jack Rakove
Fordham Law Review
With some apologies for a vast degree of oversimplification, let us stipulate that there are two main forms of originalism. One is known as “semantic” or “public meaning” originalism. Its leading advocates include Lawrence Solum, Keith Whittington, and Randy Barnett (professional friends, all). The leading premise of semantic originalism is that the meaning of the constitutional text—or, more specifically, of its individual clauses—was fixed at the moment of its adoption. Under this view, the goal of constitutional interpretation is to recover that original meaning, and the best way to do that pivots on reconstructing how an informed reader, whether a …
History, Governmental Structure, And Politics: Defining The Scope Of Local Board Of Health Power, Pekham Pal
History, Governmental Structure, And Politics: Defining The Scope Of Local Board Of Health Power, Pekham Pal
Fordham Law Review
Local boards of health often issue regulations that have broad effects that surpass the borders of the city or county to which they apply. Promulgation of such rules by board of health members appointed by the executive branch implicates separation of powers concerns; because such regulations may so extensively burden a locality’s citizens, it may be more appropriate for elected officials to adopt these regulations. Indeed, local businesses or other interested parties often bring suit challenging local board of health actions. Courts apply different analytical methodologies to review these challenges, which often leads to incongruent local health agency discretion for …
Originalism As Thin Description: An Interdisciplinary Critique, Saul Cornell
Originalism As Thin Description: An Interdisciplinary Critique, Saul Cornell
Res Gestae
My essay was intended as a critique of originalism from the perspective of intellectual history. I pointed out that originalism lacked a rigorous empirical method for analyzing what texts meant in the past. I suppose in some sense it is flattering that Solum has devoted much of his recent article to an attack on my earlier essay. Of course, flattery aside, it would have been more useful if Solum had stated my thesis correctly. For purposes of clarity, I have juxtaposed Solum’s description of my argument with what my essay actually said. Readers will be able to judge for themselves …
A Great Invisible Crashing: The Rise And Fall Of Patent Eligibility Through Mayo V. Prometheus, Scott Pierce
A Great Invisible Crashing: The Rise And Fall Of Patent Eligibility Through Mayo V. Prometheus, Scott Pierce
Fordham Intellectual Property, Media and Entertainment Law Journal
Title 35 of the United States Code at Section 101 states that “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” Despite the apparent simplicity of the statute and its predecessors, the boundaries of patent eligibility dictated by the term “process” and the term “art” that it replaced, along with the terms “machine,” “manufacture” and “composition of matter,” have become increasingly uncertain over the course of the last two-hundred years. Recently, the lack …
Access To Justice: Some Historical Comments, Lawrence M. Friedman
Access To Justice: Some Historical Comments, Lawrence M. Friedman
Fordham Urban Law Journal
This article sets out some preliminary thoughts on what "access to justice" might mean, and comment on how access to justice has fared historically.
The Exclusionary Rule Redux - Again, Lloyd L. Weinreb
The Exclusionary Rule Redux - Again, Lloyd L. Weinreb
Fordham Urban Law Journal
The exclusionary rule itself is not very complicated: if the police obtain evidence by means that violate a person’s rights under the Fourth Amendment, the evidence is not admissible against that person in a criminal trial. The basic provision, however, has been freighted with innumerable epicycles, and epicycles on epicycles ever since it was made part of Fourth Amendment jurisprudence. The exclusionary rule survives in a kind of doctrinal purgatory, neither accepted fully into the constitutional canon nor cast into the outer darkness. It survives, but its reach is uncertain, its rational questioned, and its value doubted. Hudson v. Michigan …
Post-Grant Patent Invalidation In China And In The United States, Europe, And Japan: A Comparative Study, Haito Sun
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
"Bound Fast And Brought Under The Yokes": John Adams And The Regulation Of Privacy At The Founding, Allison L. Lacroix
"Bound Fast And Brought Under The Yokes": John Adams And The Regulation Of Privacy At The Founding, Allison L. Lacroix
Fordham Law Review
No abstract provided.
Fighting Fire With Fire: A Refllection On The Ethics Of Clarence Darrow, Gerald F. Uelmen
Fighting Fire With Fire: A Refllection On The Ethics Of Clarence Darrow, Gerald F. Uelmen
Fordham Law Review
No abstract provided.
A View Of The Legal Profession From A Mid-Twelfth-Century Monastery, Amelia J. Uelmen
A View Of The Legal Profession From A Mid-Twelfth-Century Monastery, Amelia J. Uelmen
Fordham Law Review
No abstract provided.
Damned To The Inferno? A New Vision Of Lawyers At The Dawning Of The Millennium, Robert J. Cosgrove
Damned To The Inferno? A New Vision Of Lawyers At The Dawning Of The Millennium, Robert J. Cosgrove
Fordham Urban Law Journal
This Article seeks to explain the negative perception the legal profession and lawyers have in the eyes of the American public. Disregarding common answers such as the disproportionate amount of influence lawyers have or high salaries and extravagant lifestyles, this Article argues that a cultural shift has led many Americans to see the law as an arbitrary device. Consequently, this belief is reinforced by lawyers and and perpetuated by law schools, leading to the negative perception of the legal profession. In the process, the Article addresses five main issues: the definition and purpose of the law, the republican theory of …
Federalism For The New Millennium: Accounting For The Values Of Federalism, Dennis M. Cariello
Federalism For The New Millennium: Accounting For The Values Of Federalism, Dennis M. Cariello
Fordham Urban Law Journal
This Article explores the long and intricate history of federalism, the arrangement between the federal and local governments to serve the people, in the United States. It begins with the beginnings of federalism in pre-colonial times and continues to discuss how recent Supreme Court decisions have failed to articulate a cohesive test for federalism issues. Ultimately, the Article proposes a method for resolving federalism disputes. This method focuses on the sociopolitical and economic benefits of federalism as the Framers intended. Further, it argues that courts should inquire as to the utility of either the federal or local government regulating a …
Border Patrol: Reflections On The Turn To History In Legal Scholarship, Laura Kalman
Border Patrol: Reflections On The Turn To History In Legal Scholarship, Laura Kalman
Fordham Law Review
No abstract provided.
Thomas Jefferson, Equality, And The Creation Of A Civil Society, Gordon S. Wood
Thomas Jefferson, Equality, And The Creation Of A Civil Society, Gordon S. Wood
Fordham Law Review
No abstract provided.
The Sleeper Wakes: The History And Legacy Of The Twenty-Seventh Amendment
The Sleeper Wakes: The History And Legacy Of The Twenty-Seventh Amendment
Fordham Law Review
No provision of the United States Constitution has a more drawn-out, tortured history than the Twenty-seventh Amendment, which was ratified more than two centuries after Representative James Madison introduced it in the First Congress. In this Article; Professor Bernstein traces the Amendment's origins to the legislative political culture of the late eighteenth century, as influenced by the controversy over ratifying the Constitution. He then examines the perennial controversies over congressional compensation in American historiy elucidating how in the 1980s and 1990s public anger at Congress reached critical mass sufficient to propel the 1789 compensation amendment into the Constitution. Finally, this …
The Condominia Of Morgan: A Family Of Bankers And A Family Of Banks, Michael P. Malloy
The Condominia Of Morgan: A Family Of Bankers And A Family Of Banks, Michael P. Malloy
Fordham Law Review
The House of Morgan, By R. Chernow. Atlantic Monthly Press, 1990. Pp. 812. $14.95
The History And Purposes Of Rule 11, Robert L. Carter
The History And Purposes Of Rule 11, Robert L. Carter
Fordham Law Review
No abstract provided.
The History And Purposes Of Rule 11, John F. Cannon
The History And Purposes Of Rule 11, John F. Cannon
Fordham Law Review
No abstract provided.
Some Further Reflections On The Problem Of Adequacy Of Trial Counsel , Warren E. Burger
Some Further Reflections On The Problem Of Adequacy Of Trial Counsel , Warren E. Burger
Fordham Law Review
No abstract provided.
Book Review: The Law Of Obscenity, Edward J. Berbusse, S.J.
Book Review: The Law Of Obscenity, Edward J. Berbusse, S.J.
Fordham Urban Law Journal
Edward J. Berbusse, S.J. reviews The Law of Obscenity by Frederick F. Schauer. Schauer's book provides a historical perspective on obscenity law, tracking developments through several centuries. It begins with a look at obscenity law within the Church during the 16th and moves through civil law in England and up to the present in the United States. The book then explores the Miller v. California decision and the Supreme Court's move to a local standard, rather than national, of obscenity. In addition to the Miller case, Schauer looks at other important decisions which developed the modern body of law focusing …
In Accordance With Usage: The Authority Of Custom, The Stamp Act Debate, And The Coming Of The American Revolution , John Phillip Reid
In Accordance With Usage: The Authority Of Custom, The Stamp Act Debate, And The Coming Of The American Revolution , John Phillip Reid
Fordham Law Review
No abstract provided.
In Banc Procedures In The United States Courts Of Appeals, Peter Michael Madden
In Banc Procedures In The United States Courts Of Appeals, Peter Michael Madden
Fordham Law Review
No abstract provided.
Conscription, The Constitution, And The Framers: An Historical Analysis, Michael J. Malbin
Conscription, The Constitution, And The Framers: An Historical Analysis, Michael J. Malbin
Fordham Law Review
No abstract provided.
Judicial Removal In New York: A New Look, Edwin L. Gasperini, Arnold S. Anderson, Patrick W. Mcginley
Judicial Removal In New York: A New Look, Edwin L. Gasperini, Arnold S. Anderson, Patrick W. Mcginley
Fordham Law Review
No abstract provided.
Lord Mansfield Revisited-- A Modern Assessment, Bernard L. Shientag
Lord Mansfield Revisited-- A Modern Assessment, Bernard L. Shientag
Fordham Law Review
No abstract provided.