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Legal History

2011

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Articles 1 - 30 of 150

Full-Text Articles in Law

The Tenuous Case For Conscience, Steven D. Smith Dec 2011

The Tenuous Case For Conscience, Steven D. Smith

Steven D. Smith

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it ...


Labor Disputes In Professional Sports: How Federal Judges Referee Antitrust Lawsuits-- False Starts And Technical Fouls, Michael Leroy Oct 2011

Labor Disputes In Professional Sports: How Federal Judges Referee Antitrust Lawsuits-- False Starts And Technical Fouls, Michael Leroy

Michael H LeRoy

Using a database of 83 published court opinions from 1970-2011, I show that players have utilized conflicting federal laws to improve their labor market mobility. They formed unions under the National Labor Relations Act, and bargained collectively with leagues. Often, however, they lacked bargaining power to modify the draft or reserve clause, which bound them to a team. Players sued, therefore, under the Sherman Act to challenge these practices as restraints of trade. Thus, players have used a dual engagement strategy of bargaining with leagues under the NLRA while holding identical negotiations under the threat of Sherman Act treble damages ...


Pignus In Causa Iudicati Captum And Execution Of Judgment According To Post-Classical Roman Law, Alexey Rudakov Oct 2011

Pignus In Causa Iudicati Captum And Execution Of Judgment According To Post-Classical Roman Law, Alexey Rudakov

Alexey Rudakov

No abstract provided.


Emerging Models For Alternatives To Marriage, Sanford N. Katz Oct 2011

Emerging Models For Alternatives To Marriage, Sanford N. Katz

Sanford N. Katz

Perhaps one of the most important changes in family law in the past thirty years has been the inclusion of certain kinds of friendships in the range of relationships from which rights and responsibilities can flow. Domestic partnership laws, a phenomenon of the 1990s, may be seen as a natural development from the judicial recognition of contract cohabitation and the legislative and judicial response to same-sex couples who, unable to meet statutory requirements for marriage, have sought official recognition of their relationships. This essay discusses an aspect of certain kinds of domestic partnership laws-their formal requirements and the extent to ...


Encyclopedia Of The Supreme Court Of The United States, David Tanenhaus, Kay Kindred, Felice Batlan, Alfred Brophy, Mark Graber Oct 2011

Encyclopedia Of The Supreme Court Of The United States, David Tanenhaus, Kay Kindred, Felice Batlan, Alfred Brophy, Mark Graber

Mark Graber

This 5-volume set focuses on the substance of American law, the processes that produce its legal principles, and the history of the Supreme Court, from its creation to the present. One of the encyclopedia's distinguishing themes is the examination of case law, the essential texts that form the backbone of legal and pre-legal study in the United States. Overview essays address the history of such topics as citizenship, due process, Native Americans, racism, and contraception, emphasizing the social context of each and the social and political pressures that shaped interpretation. This approach plays directly into the cutting-edge field known ...


Immigrant Laws, Obstacle Preemption And The Lost Legacy Of Mcculloch, Lauren Gilbert Oct 2011

Immigrant Laws, Obstacle Preemption And The Lost Legacy Of Mcculloch, Lauren Gilbert

Lauren Gilbert

Using Congress’ perceived failure to enforce the immigration laws as a backdrop, this paper will explore how the Supreme Court’s recent decision in Chamber of Commerce v.Whiting upholding the Legal Arizona Workers Act exposes some of the tensions and contradictions in modern preemption doctrine. Examining the relationship among express, field, impossibility and obstacle preemption, I explore three emerging trends, all evident in Chamber of Commerce v. Whiting. The first is an increasing reluctance of the Court to find implied obstacle preemption. The second related trend is an inclination to expand the scope of impossibility preemption beyond the physical ...


Restoring The Natural Law: Copyright As Labor And Possession, Alfred C. Yen Oct 2011

Restoring The Natural Law: Copyright As Labor And Possession, Alfred C. Yen

Alfred C. Yen

In this Article, Professor Yen explores the problems associated with viewing copyright solely as a tool for achieving economic efficiency and advocates for the restoration of natural law to copyright jurisprudence. The Article demonstrates that economics has not been solely responsible for copyright’s development and basic structure, but has rather developed along lines suggested by neutral law, despite modern copyright jurisprudence. The Article considers the consequences of extinguishing copyright’s natural law facets in favor of the blind pursuit of efficiency and concludes by exploring the implications of restoring natural law thinking to copyright jurisprudence.


The Development Of Charity: Anti-Poverty Measures Of Ancient Jewish Law & Jurisprudence, William H. Byrnes Iv Oct 2011

The Development Of Charity: Anti-Poverty Measures Of Ancient Jewish Law & Jurisprudence, William H. Byrnes Iv

William H Byrnes IV

This article describes the ancient Jewish practices, codified in Biblical law and later legal commentary, to protect the needy. The Jews’ anti-poverty measures - including regulation of agriculture, loans, working conditions, and customs for sharing at feasts - were a significant development in the jurisprudence of charity. The first half begins with a brief history of ancient Jewish civilization, providing context for the development of charity by exploring the living conditions of the poor. The second half concludes with a description of the Jewish laws, Mishnah and Talmudic commentary, as well as the practice and codification of Rabbinical teaching that establish a ...


The Legal Education Of A Patriot: Josiah Quincy Jr.'S Law Commonplace (1763), Daniel R. Coquillette Oct 2011

The Legal Education Of A Patriot: Josiah Quincy Jr.'S Law Commonplace (1763), Daniel R. Coquillette

Daniel R. Coquillette

This article is based on the exciting discovery of a never before printed Law Commonplace, written by the 18th-century lawyer and patriot, Josiah Quincy, Junior. Quincy was co-counsel with Adams in the famous Boston Massacre Trial, a leader of Committee on Correspondence and the Sons of Liberty, and author of the first American law reports. His Law Commonplace provides an exceptional window into the political, racial and gender controversies of the evolving American legal system, and profoundly challenges our conventional views on the origin of American legal education. In certain areas, particularly jury trial, it also has present constitutional significance ...


"The Purer Fountains": Bacon And Legal Education, Daniel R. Coquillette Oct 2011

"The Purer Fountains": Bacon And Legal Education, Daniel R. Coquillette

Daniel R. Coquillette

Today, the classical underpinnings of American legal education are under intense critical review. The dominant pedagogy, the case book and the Socratic method, were established by Christopher Columbus Langdell (1806-1906) at Harvard Law School more than a century ago. Together with Langdell's first year curriculum, which was exclusively focused on Anglo-American common law doctrine, and his emphasis on a competitive, anonymous graded meritocracy, this system still exercises an incredible grip on elite American law schools. But Langdell's 19th Century model has now been challenged by many rivals, including critical legal studies, law and economics empiricism, global curriculums, and ...


Review Of Industrializing English Law: Entrepreneurship And Business Organization, 1720-1844, James S. Rogers Oct 2011

Review Of Industrializing English Law: Entrepreneurship And Business Organization, 1720-1844, James S. Rogers

James S. Rogers

No abstract provided.


Save The Economy: Break Up The Big Banks And Shape Up The Regulators, Charles W. Murdock Oct 2011

Save The Economy: Break Up The Big Banks And Shape Up The Regulators, Charles W. Murdock

Charles W. Murdock

Save the Economy: Break Up the Big Banks and Shape Up the Regulators

The U.S. economy is still reeling from the financial crisis that exploded in the fall of 2008. This article asserts that the big banks were major culprits in causing the crisis, by funding the non-bank lenders that created the toxic mortgages which the big banks securitized and sold to unwary investors. Paradoxically, banks which were then too big to fail are even larger today.

The article briefly reviews the history of banking from the Founding Fathers to the deregulatory mindset that has been present since 1980 ...


Dora And William Donner Were Busy People, Richard H. Maloy Oct 2011

Dora And William Donner Were Busy People, Richard H. Maloy

Richard Maloy

No abstract provided.


Private Rights Or Public Wrongs? The Crime Victims Rights Act Of 2004 In Historical Context, Christopher J. Truxler Oct 2011

Private Rights Or Public Wrongs? The Crime Victims Rights Act Of 2004 In Historical Context, Christopher J. Truxler

Christopher J. Truxler

Historically, crime victims served as policemen, investigators, and private prosecutors, and were regarded as law enforcement’s most dependable catalyst. The Crime Victim’s Rights Act of 2004 grants crime victims eight substantive and procedural rights and breathes new life into the common law idea that crime is both a public wrong and a private injury. The Act has, however, elicited ardent criticism. Opponents contend that the Act is both bad policy and, most likely, unconstitutional. Without commenting on the Act’s policy or constitutionality, this article places the Crime Victims’ Rights Act within a broader historical context where victims ...


The Lost Lawyers: Early American Legal Literates And Transatlantic Legal Culture, Mary Sarah Bilder Sep 2011

The Lost Lawyers: Early American Legal Literates And Transatlantic Legal Culture, Mary Sarah Bilder

Mary Sarah Bilder

From the author's introduction: Paul C. Kurtz wrote well, spoke and argued eloquently, wore a nice suit, and carried a briefcase. As an observer notes, "He looked 100 percent like a lawyer and conducted himself as a lawyer." Being an actual practitioner of the law, however, does not make one a lawyer in modern America. Lawyer status is conferred only upon those who satisfy formal definitions based on professional education and bar admission. Not surprisingly, on July 7, 1998, Mr. Kurtz was arrested for passing himself off as a lawyer. Three hundred years earlier, an English lord similarly refused ...


Idea Or Practice: A Brief Historiography Of Judicial Review, Mary Sarah Bilder Sep 2011

Idea Or Practice: A Brief Historiography Of Judicial Review, Mary Sarah Bilder

Mary Sarah Bilder

Judicial review may be the most publicly contested aspect of American constitutionalism. The conventional beliefs that judicial review should be understood as an idea and American constitutionalism studied as a new rationalistic, political science are largely due to the influential scholarship of Edward Corwin. This brief essay recovers the pre-Corwin discussion about the origins of judicial review to demonstrate the way in which the approach to judicial review as an idea has been, itself, historically constructed by scholarly inclination, disciplinary identification, and the availability of historical materials.


Absent From The Convention: Libraries, Law And Political Philosophy: John Adams And Thomas Jefferson, Mary Sarah Bilder Sep 2011

Absent From The Convention: Libraries, Law And Political Philosophy: John Adams And Thomas Jefferson, Mary Sarah Bilder

Mary Sarah Bilder

Presentation by Professor Mary Sarah Bilder, as commentator, at the conference "John Adams & Thomas Jefferson: Libraries, Leadership & Legacy," held in Boston and Charlottesville, June 21-17, 2009.


Expounding The Law: Law And Judicial Duty, Mary Sarah Bilder Sep 2011

Expounding The Law: Law And Judicial Duty, Mary Sarah Bilder

Mary Sarah Bilder

Written as a comment on Philip Hamburger's book, Law and Judicial Duty, this essay explains why the history of judicial review remains a difficult area for scholarship. American judicial tradition espoused that judges had an obligation to declare as void laws repugnant to the constitution. The essay suggests that the source of this duty, as well as the meaning of both the constitution and laws of the land, changed over time. The essay proposes that scholars perceived American judicial review as problematic only when this tradition conflicted with an increasingly rigid belief in separation of powers. The essay concludes ...


Checking The Staats: How Long Is Too Long To Give Adequate Public Notice In Broadening Reissue Patent Applications?, David M. Longo Sep 2011

Checking The Staats: How Long Is Too Long To Give Adequate Public Notice In Broadening Reissue Patent Applications?, David M. Longo

David M. Longo

No abstract provided.


The Fetish For Authentic Race In American Law, Christopher A. Bracey Sep 2011

The Fetish For Authentic Race In American Law, Christopher A. Bracey

Christopher A Bracey

This article offers an interdisciplinary and transhistorical account of race authentication as it has evolved over the past two centuries within American law and culture. As 21st century Americans, we find ourselves in the midst of an authenticity revival – a reaction to the increasingly vapid and digitized world in which we live. We generally crave authentic items and experiences, and this impulse has gained increased traction in the racial context. Most commentators agree that American society has become increasingly multiracial, and that race now takes on diminished significance as a determining factor of one’s life chances. Yet there are ...


The Distorted Reality Of Civil Recourse Theory, Alan Calnan Sep 2011

The Distorted Reality Of Civil Recourse Theory, Alan Calnan

Alan Calnan

In their recent article Torts as Wrongs, Professors John C.P. Goldberg and Benjamin C. Zipursky offer their most complete and accessible explanation of the civil recourse theory (CRT) of tort law. A purely descriptive account, CRT holds that tort law is exclusively a scheme of private rights for the redress of legal wrongs and is not a pragmatic mechanism for imposing strict liability or implementing public policy. The present paper challenges this view by revealing critical errors in its perspective, methodology, and analysis. It shows that Goldberg and Zipursky do not objectively observe tort law and uncritically report what ...


Copyrighting Shakespeare: Jacob Tonson, Eighteenth Century English Copyright And The Birth Of Shakespeare Scholarship, Jeffrey M. Gaba Sep 2011

Copyrighting Shakespeare: Jacob Tonson, Eighteenth Century English Copyright And The Birth Of Shakespeare Scholarship, Jeffrey M. Gaba

Jeffrey M. Gaba

In 1709, Jacob Tonson, the most significant publisher of his age, purchased the “copyright” to Shakespeare. Tonson and his family over the next fifty years went on to publish some of the most significant editions of the collected works of Shakespeare, edited by the likes of Nicholas Rowe, Alexander Pope and Samuel Johnson. In many ways, the Tonsons were responsible for the growth of Shakespeare’s popularity and the critical study of his work. This article discusses the significance of copyright to the Tonsons’ publication decisions. It suggests that the Tonson copyright did not significantly “encourage” their contributions to Shakespeare ...


Mr. Justice Horace Gray: Judicial Philosophy And Supreme Court Jurisprudence, Nick John Peter Meros Sep 2011

Mr. Justice Horace Gray: Judicial Philosophy And Supreme Court Jurisprudence, Nick John Peter Meros

Nick John Peter Meros

The vast majority of contemporary biographic paradigms of Supreme Court Justice Horace Gray classify him as a ``nationalist,'' or ardent supporter of the federal government's interest and sovereignty over state and local governments. Legal historians and scholars cite decisions and opinions in which he promoted ``substantial and effective national government power'' over interstate commerce and upheld state government’s police powers as evidence for his ``nationalism.''

My research, however, reveals that Justice Gray repeatedly ruled against the federal government and for state and local interests. Moreover, Gray's opinions in favor of the federal government highlighted not its superiority ...


Popular Originalism? The Tea Party And Constitutional Theory, Rebecca Zietlow Sep 2011

Popular Originalism? The Tea Party And Constitutional Theory, Rebecca Zietlow

Rebecca E Zietlow

The United States Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism, constitutional interpretation outside of the courts, to invoke originalism as constitutional method. The Tea Party movement thus provides an excellent heuristic to explore the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both originalists and popular constitutionalists study legal history to illuminate constitutional meaning, but the two schools of thought draw diverging lessons from that history. Originalists look ...


Back To The Future Of Regulating Abortion In The First Term, Tracy A. Thomas Aug 2011

Back To The Future Of Regulating Abortion In The First Term, Tracy A. Thomas

Tracy A. Thomas

The year 2011 has been unprecedented in the rate and scope of abortion legislation passed by the states. More bills to prohibit and regulate abortion have passed during the first half of this year than at any time since abortion was legalized. The proliferation of controversial legislation charts new ground of both direct and indirect regulation of abortion, including mandatory ultrasounds prior to abortion, prohibitions after the fetus can allegedly feel pain at twenty weeks, and “heartbeat bills” that ban abortions after the first detectable heartbeat at six weeks. While the accelerated rate of such legislation is surprising, laws designed ...


Popular Originalism? The Tea Party And Constitutional Theory, Rebecca Zietlow Aug 2011

Popular Originalism? The Tea Party And Constitutional Theory, Rebecca Zietlow

Rebecca E Zietlow

The United States Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism, constitutional interpretation outside of the courts, to invoke originalism as constitutional method. The Tea Party movement thus provides an excellent heuristic to explore the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both originalists and popular constitutionalists study legal history to illuminate constitutional meaning, but the two schools of thought draw diverging lessons from that history. Originalists look ...


Puritanism, Godliness, And Political Development In Boston & The General Court (1630-1640), Peter Mazzacano Aug 2011

Puritanism, Godliness, And Political Development In Boston & The General Court (1630-1640), Peter Mazzacano

Peter Mazzacano

The goal of this article is to examine the degree to which Puritanism influenced early American political culture. That is, how did Puritan values and practices facilitate the development of an exceptional political culture during the formative years of Massachusetts Bay? Utilizing a case-study method of analysis, this article examines the political developments in the General Court and the town of Boston during the decade 1630 to 1640. The research methods used are primarily the writings of leading Puritans, and concomitant town, church, and colonial records. The main finding is that the Puritans paid little heed to notions of democracy ...


Committing Crimes One Bill At A Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World, Lanessa Owens Aug 2011

Committing Crimes One Bill At A Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World, Lanessa Owens

Lanessa L. owens

Committing Crimes One Bill At Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World.

From Masters’ and Slaves’, to Gays’ and Straights’, you think they are different; I will convince you they are the same. I will demonstrate how legislatures have historically and continually abused their power to enact laws. Under the disguise of some governmental interest, legislatures continue to create, enact, and enforce bias laws. This article imports Criminal Procedure into Constitutional Law to create a proactive solution to the ongoing problem of law making. It is this author contention that the ...


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Democratic Inclusion, Cognitive Development, And The Age Of Electoral Majority, Vivian E. Hamilton Aug 2011

Democratic Inclusion, Cognitive Development, And The Age Of Electoral Majority, Vivian E. Hamilton

Vivian E. Hamilton

Who should vote in the modern democratic state? The question cuts to the core of democratic government. For centuries, voting was a privilege limited to few, but democratic norms now require that electoral inclusion be presumed, and exclusion justified. Accordingly, few exclusionary rules remain. Among them are citizenship, law-abidingness, and minimum age requirements. The last of these, all but ignored by legal and political theorists, is this Article’s focus. The age of electoral majority has declined over time and across the globe. At the beginning of the twentieth century, the average voting age worldwide was just under twenty-four; today ...