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Full-Text Articles in Legal History
Article Iii And The Scottish Enlightenment, James E. Pfander
Article Iii And The Scottish Enlightenment, James E. Pfander
Faculty Working Papers
Historically-minded scholars and jurists invariably turn to English law and precedents in attempting to recapture the legal world of the framers. Blackstone's famous Commentaries on the Laws of England offers a convenient reference for moderns looking backwards. Yet the generation that framed the Constitution often relied on other sources, including Scottish law and legal institutions. Indeed, the Scottish judicial system provided an important, but overlooked, model for the framing of Article III. Unlike the English system of overlapping jurisdiction, the Scottish judiciary featured a hierarchical, appellate-style judiciary, with one supreme court sitting at the top and an array of inferior …
Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich
Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich
Faculty Working Papers
This Article spotlights some of the idiosyncratic features of admiralty law at the time of the founding. These features pose challenges for applying the original understanding of the Constitution to contemporary questions of foreign relations. Federal admiralty courts were unusual creatures by Article III standards. They sat as international tribunals applying international and foreign law, freely hearing cases that implicated sensitive questions of foreign policy, and liberally exercising universal jurisdiction over disputes solely between foreigners. However, these powers did not arise out of the basic features of Article III, but rather from a felt need to opt into the preexisting …
Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander
Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander
Faculty Working Papers
Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article III's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …