Legal History Commons^™

Consequences Of Supreme Court Decisions Upholding Individual Constitutional Rights, Jesse H. Choper

Jesse H Choper

The thrust of this Article is to attempt to ascertain just what differences the Court's judgments upholding individual constitutional rights have made for those who fall within the ambit of their protection. It seeks to address such questions as: What were the conditions that existed before the Court's ruling? How many people were subject to the regime that was invalidated by the Justices? Was the Court's mandate successfully implemented? What were the consequences for those affected? At a subjective level, were the repercussions perceived as salutary by those (or at least most of those) who were the beneficiaries of the …

Saving Originalism, Robert J. Delahunty, John Yoo

John C Yoo

It is sometimes said that biographers cannot help but come to admire, even love, their subjects. And that adage seems to ring true of Professor Amar, the foremost “biographer” of the Constitution. He loves it not just as a governing structure, or a political system, but as a document. He loves the Constitution in the same way that a fan of English literature might treasure Milton’s Paradise Lost or Shakespeare’s Macbeth. He loves the Constitution not just for the good: the separation of powers, federalism, and the Bill of Rights. He also loves it for its nooks and crannies, idiosyncrasies, …

The Commons, Capitalism, And The Constitution, George Skouras

George Skouras

Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock

Charles W. Murdock

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension, …

American Constitutionalism: Volume Ii: Rights & Liberties, Howard Gillman, Mark Graber, Keith Whittington

Mark Graber

Constitutionalism in the United States is not determined solely by decisions made by the Supreme Court. Moving beyond traditional casebooks, renowned scholars Howard Gillman, Mark A. Graber, and Keith E. Whittington take a refreshingly innovative approach in American Constitutionalism. Organized according to the standard two-semester sequence--in which Volume I covers Structures of Government and Volume II covers Rights and Liberties--this text is unique in that it presents the material in a historical organization within each volume, as opposed to the typical issues-based organization.

American Constitutionalism: Volume I: Structures Of Government, Howard Gillman, Mark Graber, Keith Whittington

Mark Graber

Constitutionalism in the United States is not determined solely by decisions made by the Supreme Court. Moving beyond traditional casebooks, renowned scholars Howard Gillman, Mark A. Graber, and Keith E. Whittington take a refreshingly innovative approach in American Constitutionalism. Organized according to the standard two-semester sequence--in which Volume I covers institutions and Volume II covers Rights and Liberties-- this text is unique in that it presents the material in a historical organization within each volume, as opposed to the typical issues-based organization.

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 as …

Book Review: Reconstruction And Reunion, 1864-88, Part One, David S. Bogen

David S. Bogen

No abstract provided.

Sacrifice And Civic Membership: Who Earns Rights, And When?, Julie Novkov

Julie Novkov

This paper considers two moments that scholars generally agree featured advances for African Americans’ citizenship – the end of the Civil War and Reconstruction, and World War II and its immediate aftermath – and reads these moments through lenses of race and gender. I consider the conjunction of acknowledged sacrifices and contributions to the state, the rights advances achieved, and the gendered and racialized conceptions of citizen service emerging out of both post-war periods. This conjunction suggests that the kind of citizenship that people of color gained during and after wartime crises depended upon gendered and racialized hierarchies that valued …

Relativism, Reflective Equilibrium, And Justice, Justin Schwartz

Justin Schwartz

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS.

The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into …