Law Commons^™

Considering William And Mary's History With Slavery: The Case Of President Thomas Roderick Dew, Alfred L. Brophy

William & Mary Bill of Rights Journal

Amidst the recent apologies for slavery from the legislatures of Virginia, Maryland, North Carolina, Alabama, New Jersey, and Florida, there is significant controversy over the wisdom of investigations of institutions' connections to slavery and apologies for those connections.' The divide over attitudes toward apologies falls along racial lines. This Article briefly looks to the controversy on both sides of the apology debates. Among those questions about investigations of the past, universities occupy a special place. Efforts at recovery of their connections to slavery include a study released by graduate students at Yale University in 2001,2 a report by Brown University's …

Tracing The Contours Of The Ninth Amendment, Alan Tauber

Alan Tauber

In order to secure the ratification of the Constitution, the Federalists were forced to provide a Bill of Rights to calm the fears of the Antifederalists. This sparked a fear of its own among the Federalists, namely that the enumeration in the Constitution of certain rights would lead future generations to regard those enumerated rights as the only ones protected. In order to guard against this, James Madison wrote the Ninth Amendment, which provides that “The enumeration in this Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Despite this safeguard, the …

Slaves In The Family: Testamentary Freedom And Interracial Deviance, Kevin Noble Maillard

Kevin Noble Maillard

This Article addresses the deviance of interracial sexuality acknowledged in testamentary documents. The language of wills calls into question the authority of probate and family law by forcing issues of deviance into the public realm. Will dramas, settled in or out of court, publicly unearth insecurities about family. Many objections to the stated intent of the testator generate from social prejudices toward certain kinds of interpersonal relationships: nonmarital, homosexual, and/or interracial. When pitted against an issue of a moral or social transgression, testamentary intent often fails. In order for these attacks on testamentary validity to succeed, they must be situated …

A Concise Guide To The Records Of The State Ratifying Conventions As A Source Of The Original Meaning Of The U.S. Constitution, Gregory E. Maggs

Gregory E. Maggs

Thousands of articles and hundreds of cases have cited the records of the state ratifying conventions to support claims about the original meaning of the Constitution. Anyone reading these sources needs to know what records exist, why they might provide evidence of the original meaning of the Constitution, and what weaknesses claims about the original meaning which rest on them might have. Yet despite frequent references to the records of the state ratifying conventions, and despite the widely accepted importance of these records, I suspect that many lawyers, judges, law clerks, and legal scholars feel inadequately prepared to make or …

“Arms In The Hands Of Jews Are A Danger To Public Safety”: Nazism, Firearm Registration, And The Night Of The Broken Glass, Stephen P. Halbrook

Stephen P Halbrook

The title to this article is a quotation from an arrest report of a Jewish gun owner just weeks before the Nazis launched the pogrom known as the Night of the Broken Glass in 1938. His name was Alfred Flatow, and he was an Olympic champion who had registered firearms before the Nazis came to power. Once in control, the Hitler regime used the registration records to disarm their enemies so they could not resist. What actually occurred has been hotly debated in the American gun control controversy, and is even discussed in amicus briefs in the current Supreme Court …

Invisible Workers: The Exclusion Of Domestic Workers From Protective Labor Legislation, Erica C. Morgan

Erica C Morgan

No abstract provided.

Property, Persona, Permission, Deven R. Desai

Deven R. Desai

Information overload confronts us everyday. In such a situation, attention is scarce and the ability to focus attention has value. In short, the explosion of information means we live in an attention economy. As theorist Richard Lanham has posited, the key assets in the attention economy (e.g. writings, images) are part of the cultural conversation which leads to and elevates the importance of intellectual property because intellectual property is the way our society manages such assets. Put differently, authors now have two interests: the copyrighted work and the reputation that travels with that creation as it enhances the author’s ability …

Mis-Under-Standing Freedom From Religion: Two Cents On Madison's Three Pence, Kyle Duncan

Kyle Duncan

Forty years ago in Flast v. Cohen, the Supreme Court created, for Establishment Clause cases only, a dramatic exception to a bedrock principle of standing doctrine, based on one catchy phrase from a famous historical document—James Madison’s 1785 Memorial and Remonstrance Against Religious Assessments. The Court has been notoriously bad at Establishment Clause history, but Flast seemed to push the envelope. Yet neither the Court nor commentators seemed to question Flast’s historical credentials over the last four decades. Recently, the Supreme Court took up the standing question again in Hein v. Freedom From Religion Foundation, Inc. Unhappily, the justices’ various …

Property, Power And Personal Freedom, Jeffrey B. Teichert

Jeffrey B. Teichert

This article discusses the right to just compensation for regulatory takings of private property in the context of the history of the right to property in England and the founding generation in the United States. It challenges the conclusions of an influential 1964 Yale Law Journal article by Professor Joseph L. Sax, demonstrating that Professor Sax’s misplaced reliance on continental writers rather than English writers lead him to adopt a more statist understanding of the Takings Clause of the Fifth Amendment than is warranted by its history.

This article demonstrates how the Magna Carta was intended to strengthen tenure in …

Presidential Popular Constitutionalism, Jedediah S. Purdy

Jedediah S Purdy

This Article adds a new dimension to the most important and influential strand of recent constitutional theory: popular or democratic constitutionalism, the investigation into how the Constitution is interpreted (1) as a set of defining national commitments and practices, not necessarily anchored in the text of the document and (2) by citizens and elected politicians outside the judiciary. Wide-ranging and ground-breaking scholarship in this area has neglected the role of the President as a popular constitutional interpreter. Presidents articulate and revise normative accounts of the nation that interact dynamically with citizens’ constitutional understandings. This Article sets out a “grammar” of …

Safeguarding Fundamental Rights: Judicial Incursion Into Legislative Authority, Alexander Tsesis

Alexander Tsesis

The Supreme Court recently limited Congress’s ability to pass civil rights statutes for the protection of fundamental rights. Decisions striking sections of the Violence Against Women Act and the Americans with Disabilities Act focused on states’ sovereign immunity. These holdings inadequately analyzed how the Reconstruction Amendments altered federalism by making the federal government primarily responsible for protecting civil rights. The Supreme Court also overlooked principles of liberty and equality lying at the foundation of American governance. The Court’s restrictions on legislative authority to identify fundamental rights and to safeguard them runs counter to the central credo of American governance that …

Agents Of (Incremental) Change: From Myra Bradwell To Hillary Clinton, Gwen H. Jordan

Gwen H Jordan

In this essay, the author asserts that after the Civil War, when the race and gender hierarchies that ordered American society were vulnerable, a little-studied collection of activist women lawyers led a law reform movement that established women’s rights incrementally. They were among those thinking about and experimenting with different ways of framing, securing, and enforcing women’s full and equal citizenship rights. As lawyers, licensed members of the legal profession, they operated within the conventional institutions of power – lobbying the legislatures to enact new laws and urging judges to implement a new form of legal reasoning that supported their …

In The Arena: The Texas Supreme Court’S Steady Rein On Railroads And Big Business, 1880 – 1900, William J. Chriss

William J Chriss

Like the pre-Lochner United States Supreme Court, the late nineteenth century Texas Supreme Court did not see its role as one of protecting big business from government regulation. Texas courts did not, as a rule, use judicial activism to defend laissez-faire economics. Rather, like many other courts, state and federal, the Texas Supreme Court allowed the other two branches of government a relatively free hand in regulating business in general and railroads in particular. This is not to say that the Texas court was anemic or passive. In fact, the Texas Supreme Court went well beyond merely deferring to legislative …

An Empirical Analysis Of The Trends, Determinants, And Effects Of Majority Opinions Of The U.S. Supreme Court, James F. Spriggs, Ryan C. Black

James F. Spriggs II

In this essay we utilize an empirical legal studies approach to understand the way in which law develops on the U.S. Supreme Court. Our empirical indicator for law is a simple, yet powerful, characteristic of the Court’s opinions—their length. Building on past legal research, we submit that opinion length is one aspect of the overall language in an opinion and captures important features of a legal ruling Our analysis contributes to the legal literature by: (1) presenting a theoretical and empirical treatment of opinion length that affords us a better understanding of how law is crafted at the Court and …

Federalism, The Rehnquist Court, And The Modern Republican Party, Bradley W. Joondeph

Bradley W. Joondeph

Most scholars agree that federalism was central to the Rehnquist Court’s constitutional agenda. But there is a part of the federalism story that has been largely overlooked: the Court's decisions involving the structural constraints on state governments, the most significant of which are preemption and the dormant Commerce Clause. This article makes two empirical claims about the Rehnquist Court’s federalism jurisprudence, one descriptive and one interpretive. The descriptive claim is that that the Court’s overall approach to federalism was more complicated than many have assumed, and it was not necessarily friendly to the states. To support this contention, I present …

An Originalist Defense Of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, And The Fifth Amendment, Frederick Mark Gedicks

Frederick Mark Gedicks

A longstanding scholarly consensus holds that the Due Process Clause of the Fifth Amendment protects only rights to legal process. Both this consensus and the occasional challenges to it have generally overlooked the interpretive significance of the classical natural law tradition that made substantive due process textually coherent, and the emergence of public-meaning originalism as the dominant approach to constitutional interpretation. This Article fills those gaps. One widely shared understanding of the Due Process Clause in the late eighteenth century encompassed judicial recognition of unenumerated substantive rights as a limit on congressional power. This concept of “substantive” due process originated …

The Evolution Of The Suspension Clause At The Constitutional Convention, Michael L. Rosin

Michael L Rosin

The Habeas Corpus Suspension clause originally proposed at the Constitutional Convention limited the suspension power to Congress. At the end of August 1787 the Committee of Five consciously removed this limitation at the same time it extended the limit on military appropriations from one year to two years. The debate on the Convention floor makes it clear that the Convention was concerned that Congress would not meet often enough for one year military appropriations to be adequate. Although there is no recorded debate on the change to the Suspension clause, it seems reasonable to infer that the Convention made the …

Spiritualism And Will(S) In The Age Of Contract, Christopher J. Buccafusco

Christopher J. Buccafusco

Spiritualism was one of the most salient cultural phenomena of late-nineteenth-century American life. The belief of considerable numbers of respectable citizens that they could communicate with the dead via an entranced medium called into question both popular and scientific conceptions of rationality, volition, and freedom. In turn, these changing ideas about the mind challenged American law’s commitment to its belief in free and reasonable legal actors. This Article, the first to consider Spiritualism’s implications for American law, examines the legal reaction to the anxieties Spiritualism generated for the age of contract. Principally, it looks at the judicial response to cases …

The Idea Of Pollution, John Copeland Nagle

John Copeland Nagle

Pollution is the primary target of environmental law. During the past forty years, hundreds of federal and state statutes, administrative regulations, and international treaties have established multiple approaches to addressing pollution of the air, water, and land. Yet the law still struggles to identify precisely what constitutes pollution, how much of it is tolerable, and what we should do about it.

But environmental pollution is hardly the only type of pollution. Historically, the idea of pollution referred to a host of effects upon human environments. This remains evident in contemporary anthropological literature, which studies the pollution beliefs of cultures throughout …

Law And Biology, Morris B. Hoffman

Morris B. Hoffman

Survey of the impacts of emerging evolutionary and neuroscientific insights into the foundations of law.

When Theory Met Practice: Teaching Tort Law From A Practical Perspective, Prentice L. White

Prentice L White

WHEN THEORY MET PRACTICE: TEACHING TORT LAW FROM A PRACTICAL PERSPECTIVE ABSTRACT When I initially entered the world of academia, I did so with the intention of not only teaching my students the black letter law, but I also envision an opportunity to share with them my experiences in the practice. My philosophy has always been “How can you teach what you have not learned.” Learning is an on-going process and it is not limited to the classroom—especially in professional school. That’s why it was so important for me to share a practical experience with my students as much as …

The Original Meaning Of An Omission: The Tenth Amendment, Popular Sovereignty And "Expressly" Delegated Power, Kurt T. Lash

Kurt T. Lash

Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland. According to Marshall, the fact that the Framers departed from the language of the Articles of Confederation and omitted the term “expressly” suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers. As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for strict construction of federal power was simply an attempt to …

Restoring Justice To Civil Rights Movement Activists?: New Historiography And The “Long Civil Rights Era”, Athena D. Mutua

Athena D. Mutua

The paper engages ongoing discussions about the Civil Rights and Restorative Justice Project. This Project has been organized to support efforts to rectify and account for the tremendous cost to civil rights activists and supporters of participating in the civil rights movement. These efforts include, for instance, fresh prosecutions against perpetrators of old hate crimes, including cases against the killers of Medger Evers and the three Mississippi Freedom Summer workers. The question the paper asks is: what do Project participants mean when they talk about the civil rights era? The short answer is that the Project organizers initially conceptualized the …

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.

The New Face Of Women's Legal History: An Introduction To The Symposium, Tracy A. Thomas

Akron Law Faculty Publications

Women’s legal history is developing as a new and exciting field that provides alternative perspectives on legal issues both past and present. Feminist legal history seeks to examine the ways in which law historically has informed women’s rights and how feminist discourse has shaped the law. This short essay quickly traces the development of women's legal history as a field, and then introduces the papers from a symposium at the University of Akron School of Law. The Akron Constitutional Law Center oranized a conference in October 2007 entitled “The New Face of Women’s Legal History” to showcase many of the …

The Lost Sanctuary: Examining Sex Trafficking Through The Lens Of United States V. Ah Sou, M. Margaret Mckeown, Emily Ryo

Emily Ryo

Drawing upon original court records and other previously-unexamined archival materials, this article uncovers the story of one of the earliest reported and documented cases of sex trafficking in American history, United States v. Ah Sou, 138 F. 775 (9th Cir. 1905). Through Ah Sou’s legal challenge, we investigate the development of international human rights norms relevant to sex trafficking and the domestication of those norms in U.S. law. We then examine in detail the remedies presently available for sex trafficking victims and apply those remedies retrospectively to Ah Sou’s case. We conclude that despite the development of the law—both in …

Learned Hand’S District Court Opinions, 1916-1917: A Macrostructural Analysis Employing Cognitive Psychology Principles, Jeffrey A. Van Detta

Jeffrey A. Van Detta

What makes a judge a good trial court writer? Should this be measured by the writing of the appeals court judges who review them? Does it even matter if trial court judges write well? Examining trial court opinions that Judge Learned Hand wrote 1916-1917 on the U.S. District Court, this article answers those questions by applying principles of cognitive psychology in a detailed critical evaluation of each opinion and its legal and society context. This article makes a very substantial contribution to the study of legal linguistics, cognitive psychology as applied in critical reading of judicial opinions, and of Learned …

The Immoral Application Of Exclusionary Rules, Todd E. Pettys

Todd E. Pettys

In both civil and criminal cases today, judges routinely withhold relevant evidence from jurors, fearing that jurors would use it in an irrational or legally impermissible manner. Forcing jurors to take responsibility for a verdict based upon a government-screened pool of evidence stands in sharp contrast to the way we ordinarily think about government efforts to withhold potentially useful information from citizens faced with important decisions. The First Amendment’s guarantee of the freedom of speech, for example, reflects a moral judgment that the government offends its citizens’ deliberative autonomy when it restricts speech based upon fears about what that speech …

Two Horwitzian Journeys, Assaf Likhovski

Assaf Likhovski

No abstract provided.