Legal History Commons^™

Major Questions About Presidentialism: Untangling The “Chain Of Dependence” Across Administrative Law, Jed Handelsman Shugerman, Jodi L. Short

Faculty Scholarship

A contradiction about the role of the president has emerged between the Roberts Court’s Article II jurisprudence and its Major Questions Doctrine jurisprudence. In its appointment and removal decisions, the Roberts Court claims that the president is the “most democratic and politically accountable official in Government” because the president is “directly accountable to the people through regular elections,” an audacious new interpretation of Article II; and it argues that tight presidential control of agency officials lends democratic legitimacy to the administrative state. We identify these twin arguments about the “directly accountable president” and the “chain of dependence” as the foundation …

Deep Tracks: Album Cuts That Help Define The Essential Scalia, Gary S. Lawson

Faculty Scholarship

Jeff Sutton and Ed Whelan have collected some of Justice Scalia’s “greatest hits” in a volume entitled The Essential Scalia: On the Constitution, the Courts, and the Rule of Law. The book is an excellent introduction to the jurisprudential thought and literary style of one of the most influential legal thinkers—and legal writers—in modern times. As with any “greatest hits” compilation, however, there are inevitably going to be key “album cuts” for which there will not be space. This essay seeks to supplement Sutton and Whelan’s invaluable efforts by surveying three of those “deep tracks” that shed particular light on …

“Government By Injunction,” Legal Elites, And The Making Of The Modern Federal Courts, Kristin Collins

Faculty Scholarship

The tendency of legal discourse to obscure the processes by which social and political forces shape the law’s development is well known, but the field of federal courts in American constitutional law may provide a particularly clear example of this phenomenon. According to conventional accounts, Congress’s authority to regulate the lower federal courts’ “jurisdiction”—generally understood to include their power to issue injunctions— has been a durable feature of American constitutional law since the founding. By contrast, the story I tell in this essay is one of change. During the nineteenth century and into the twentieth, many jurists considered the federal …

The Twist Of Long Terms: Judicial Elections, Role Fidelity, And American Tort Law, Jed Handelsman Shugerman

Faculty Scholarship

The received wisdom is that American judges rejected strict liability through the nineteenth and early twentieth centuries. To the contrary, a majority of state courts adopted Rylands v. Fletcher and strict liability for hazardous or unnatural activities after a series of flooding tragedies in the late nineteenth century. Federal judges and appointed state judges generally ignored or rejected Rylands, while elected state judges overwhelmingly adopted Rylands or a similar strict liability rule.

In moving from fault to strict liability, these judges were essentially responding to increased public fears of industrial or man-made hazards. Elected courts were more populist: they were …

Marbury And Judicial Deference: The Shadow Of Whittington V. Polk And The Maryland Judiciary Battle, Jed Handelsman Shugerman

Faculty Scholarship

On the 200th anniversary of Whittington and approaching the 200th anniversary of Marbury, this article revisits these two decisions and challenges legal scholars' assumptions that they were such strong precedents for judicial review.⁵ When one takes into account the broader contexts, both decisions were in fact judicial capitulations to aggressive legislatures and executives. The Maryland General Court asserted its judicial supremacy only in dicta, and the court failed to enforce judicial supremacy when it was legally justified. This article picks apart the court's reasoning step by step, using Whittington to illuminate Marbury and Marbury to illuminate Whittington. …

Bracton, The Year Books, And The 'Transformation Of Elementary Legal Ideas' In The Early Common Law, David J. Seipp

Faculty Scholarship

The language of the common law has a life and a logic of its own, resilient through eight centuries of unceasing talk. Basic terms of the lawyer's specialized vocabulary, elementary conceptual distinctions, and modes of argument, which all go to make “thinking like a lawyer” possible, have proved remarkably durable in the literature of the common law. Two fundamental distinctions—between “real” and “personal” actions and between “possessory” and “proprietary” remedies—can be traced back to their early use in treatises of the first generations of professional common law judges and in reports of courtroom dialogue from the first generations of professional …