Law Commons^™

Reconsidering Section 1983'S Nonabrogation Of Sovereign Immunity, Katherine Mims Crocker

Faculty Publications

Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any "person" who violates federal rights. The U.S. Supreme Court has long held that "person" excludes states because Section 1983 flunks a condition of crystal clarity.

This Article reconsiders that conclusion--in legalese, Section 1983's nonabrogation of sovereign immunity--along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983's enactment, the caselaw …

The Diverging Right(S) To Bear Arms: Private Armament And The Second And Fourteenth Amendments In Historical Context, Alexander Gouzoules

Faculty Publications

This article compares the historical evolution of the social understanding of private armament with contemporary legal doctrine on the right to bear arms. The District of Columbia v. Heller decision, which held that the Second Amendment protects a personal right to self-defense, and the McDonald v. City of Chicago decision, which held the Second Amendment to be incorporated by the Fourteenth Amendment, both turned on extensive historical analysis. But by reading a broad “individual right to self-defense” into both the Second and Fourteenth Amendments, the Court assumed continuity between the social understandings at the time of these amendments’ respective ratifications. …

Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney

Faculty Publications

One of the major branches of the field of law and literature is often described as "law as literature." Scholars of law as literature examine the law using the tools of literary analysis. The scholarship in this subfield is dominated by the discussion of narrative texts: confessions, victim-impact statements, and, above all, the judicial opinion. This article will argue that we can use some of the same tools to help us understand non-narrative texts, such as law codes and statutes. Genres create expectations. We do not expect a law code to be literary. Indeed, we tend to dissociate the law …

Creating A Literature For The King’S Courts In The Later Thirteenth Century: Hengham Magna, Fet Asaver, And Bracton, Thomas J. Mcsweeney

Faculty Publications

The early common law produced a rich literature. This article examines two of the most popular legal treatises of the second half of the thirteenth century, Hengham Magna and Fet Asaver. It has long been recognized that these two treatises bear some relationship to each other. This article will attempt to establish that relationship, arguing that Hengham Magna and Fet Asaver were written by different people; that Fet Asaver borrows from Hengham Magna; and that the authors of both texts had independent access to the Bracton treatise. The article concludes by suggesting a new way to think about the legal …

Book Review Of The Oxford History Of The Laws Of England, Volume Ii, Thomas J. Mcsweeney

Faculty Publications

No abstract provided.

The Strange Career Of The Common Law In North Carolina, John V. Orth

Faculty Publications

No abstract provided.

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

Faculty Publications

No abstract provided.

Magna Carta, Civil Law, And Canon Law, Thomas J. Mcsweeney

Faculty Publications

No abstract provided.

The Release Of Energy': Reflections On A Legal History Trope, John V. Orth

Faculty Publications

No abstract provided.

Between England And France: A Cross-Channel Legal Culture In The Late Thirteenth Century, Thomas J. Mcsweeney

Faculty Publications

No abstract provided.

Constitutional Construction And Departmentalism: A Case Study Of The Demise Of The Whig Presidency, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Americanism Behind Barbed Wire, Eric L. Muller

Faculty Publications

No abstract provided.

Justices As Economic Fixers: A Response To A Macrotheory Of The Court, Scott Baker, Adam Feibelman, William P. Marshall

Faculty Publications

No abstract provided.

Pragmatic Idealism And The Scholarship Of Mel Durchslag, William P. Marshall

Faculty Publications

No abstract provided.

"A Frequent Recurrence To Fundamental Principles": A Tribute To Jim Ely, John V. Orth

Faculty Publications

No abstract provided.

Fixing A Hole: How The Criminal Law Can Bolster Reparations Theory, Eric L. Muller

Faculty Publications

High-profile popular-press authors recently have challenged the mainstream consensus that certain historical events should be condemned as injustices. These authors argue that such condemnation unfairly imposes modern standards on historical actors. Until now, the redress movement has largely ignored these partisan revisionists who have sought to justify the harmful decisions made by past generations. Such revisionism, however, threatens the very foundation of reparations theory by persuading the public that redress is unnecessary because historical figures actually committed no injustice by merely acting appropriately, given the historical context in which they lived. This Article seeks to initiate a dialogue regarding how …

The Enumeration Of Rights: "Let Me Count The Ways", John V. Orth

Faculty Publications

No abstract provided.

Second Thoughts In The Law Of Property, John V. Orth

Faculty Publications

No abstract provided.

Rediscovering Vulgar Charity: A Historical Analysis Of America's Tangled Nonprofit Law, Thomas A. Kelley Iii

Faculty Publications

No abstract provided.

A Penny For Their Thoughts: Draft Resistance At The Poston Relocation Center, Eric L. Muller

Faculty Publications

No abstract provided.

Foreword, Eric L. Muller

Faculty Publications

Judgments Judged and Wrongs Remembered: Examining the Japanese American Civil Liberties Cases on Their Sixtieth Anniversary

Prelude To Armageddon, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Inference Or Impact? Racial Profiling And The Internment's True Legacy, Eric L. Muller

Faculty Publications

No abstract provided.

Priestley V. Fowler (1837) And The Emerging Tort Of Negligence, Michael Ashley Stein

Faculty Publications

Priestly v. Fowler has long been noted as the source of the doctrine of common employment. This Article, however, argues that the case is better understood in the context of the then-emerging independent tort of negligence-specifically, as an unsuccessful attempt to require of masters a duty of care towards their servants. The Article re-examines the facts, arguments, personalities, and various reported versions of the case in tracing the effort to establish a new duty of care. The Article traces, as well, to another case, Hutchinson v. York, the true origins of the common employment doctrine. Finally, the Article compares the …

Book Review Of Sarah Barringer Gordon's The Mormon Question: Polygamy And Constitutional Conflict In Nineteenth-Century America, Nathan B. Oman

Faculty Publications

No abstract provided.

The Lives Of John Marshall, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Apologies Or Apologisits? Remembering The Japanese American Internment In Wyoming, Eric L. Muller

Faculty Publications

No abstract provided.

Impeachment Defanged And Other Institutional Ramifications Of The Clinton Scandals, Michael J. Gerhardt

Faculty Publications

No abstract provided.

The Historical And Constitutional Significance Of The Impeachment And Trial Of President Clinton, Michael J. Gerhardt

Faculty Publications

No abstract provided.

The Lessons Of Impeachment History, Michael J. Gerhardt

Faculty Publications

No abstract provided.