Legal History Commons^™

Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney

Thomas J. McSweeney

One of the major branches of the field of law and literature is often described as "law as literature." Scholars of law as literature examine the law using the tools of literary analysis. The scholarship in this subfield is dominated by the discussion of narrative texts: confessions, victim-impact statements, and, above all, the judicial opinion. This article will argue that we can use some of the same tools to help us understand non-narrative texts, such as law codes and statutes. Genres create expectations. We do not expect a law code to be literary. Indeed, we tend to dissociate the law …

Heller, Mcdonald, And Murder: Testing The More Guns = More Murder Thesis, Don B. Kates, Carlisle Moody

Carlisle Moody

No abstract provided.

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 …

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Alexander Tsesis

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court has …

The Declaration Of Independence As Introduction To The Constitution, Alexander Tsesis

Alexander Tsesis

No abstract provided.

The "Guarantee" Clause, Ryan C. Williams

Ryan Williams

Article IV’s command that “the United States shall guarantee to every State in this Union a Republican Form of Government” stands as one of the few remaining lacunae in the judicially enforced Constitution. For well over a century, federal courts have viewed the provision — traditionally known as the Guarantee Clause but now referred to by some as the “Republican Form of Government” Clause — as a paradigmatic example of a nonjusticiable political question. In recent years, however, both the Supreme Court and lower federal courts have signaled a new willingness to reconsider this much-criticized jurisdictional barrier in an appropriate …

Introduction: Globalization, Power, States, And The Role Of Law, Frank J. Garcia

Frank J. Garcia

On October 12, 2012 the Boston College Law Review and the Boston College International and Comparative Law Review held a joint Symposium entitled, “Filling Power Vacuums in the New Global Legal Order.” In three panel discussions and a keynote address by Anne-Marie Slaughter, a lively discourse on the impact of globalization on state power, the law, and the law’s ability to both reallocate and effectively restrain power ensued. This Introduction, and the works that follow in this symposium issue, document that discourse.

Formal And Informal Amendment Of The United States Constitution, Richard S. Kay

Richard Kay

The Rejection Of Horizontal Judicial Review During America's Colonial Period, Robert J. Steinfeld

Robert Steinfeld

No abstract provided.

Ideal Theory And The Limits Of Historical Narrative, Anthony O'Rourke

Anthony O'Rourke

Some intellectual concepts that once played a central role in America’s constitutional history are, for both better and worse, no longer part of our political language.[1] These concepts may be so alien to us that they would remain invisible without carefully reexamining the past in order to challenge the received narratives of America’s constitutional development.[2] Should constitutional theorists undertake this kind of historical reexamination? If so, to what extent should they be willing to stray from the disciplinary norms that govern intellectual history? And what normative aims can they reasonably expect to achieve by exploring ideas in our …

The Jewel In The Crown: Can India’S Strict Liability Doctrine Deepen Our Understanding Of Tort Law Theory?, Deepa Badrinarayana

Deepa Badrinarayana

Understanding Crime Under Capitalism: A Critique Of American Criminal Justice And Introduction To Marxist Jurisprudence, Steven E. Gilmore

Steven E Gilmore

Targeted Killing: A Legal And Political History, Markus Gunneflo

Markus Gunneflo

Looking beyond the current debate’s preoccupation with the situations of insecurity of the second intifada and 9/11, this book reveals how targeted killing is intimately embedded in both Israeli and US statecraft and in the problematic relation of sovereign authority and lawful violence underpinning the modern state system. The book details the legal and political issues raised in targeted killing as it has emerged in practice including questions of domestic constitutional authority, the norms on the use of force in international law, the law of targeting and human rights. The distinctiveness of Israeli and US targeted killing is accounted for …

Incumbent Landscapes, Disruptive Uses: Perspectives On Marijuana-Related Land Use Control, Donald J. Kochan

Donald J. Kochan

Temporary Insanity: The Strange Life And Times Of The Perfect Defense, Russell D. Covey

Russell D. Covey

The temporary insanity defense has a prominent place in the mythology of criminal law. Because it seems to permit factually guilty defendants to escape both punishment and institutionalization, some imagine it as the “perfect defense.” In fact, the defense has been invoked in a dizzying variety of contexts and, at times, has proven highly successful. Successful or not, the temporary insanity defense has always been accompanied by a storm of controversy, in part because it is often most successful in cases where the defendant’s basic claim is that honor, revenge, or tragic circumstance – not mental illness in its more …

Institutional Rules, Strategic Behavior And The Legacy Of Chief Justice William Rehnquist: Setting The Record Straight On Dickerson V. United States, Daniel Katz

Daniel M Katz

Why did Justice Rehnquist behave the way he did in Dickerson v. United States? As written, many prevailing accounts accept Justice Rehnquist's opinion in Dickerson v. United States at face value and disavow the potential of a strategic explanation. The difficulty with the non-strategic accounts is their failure to outline explicitly the evidence supporting the uniqueness of their theory. Specifically, these explanations largely ignore the alternative set of preferences which could have produced the Chief's decision. This is troubling because prior scholarship demonstrates that a chief justice possesses a unique set of institutional powers which provides significant incentive for him …

Hegelian Dialectical Analysis Of United States Election Laws, Charles E. A. Lincoln Iv

Charles E. A. Lincoln IV

This Article uses the dialectical ideas of German philosopher Georg Wilhelm Friedrich Hegel (1770-1833) in application to the progression of United States voting laws since the founding. This analysis can be used to interpret past progression of voting rights in the US as well as a provoking way to predict the future trends in US voting rights. First, Hegel’s dialectical method is established as a major premise. Second, the general accepted history of United States voting laws from the 1770s to the current day is laid out as a minor premise. Third, the major premise of Hegel’s dialectical method weaves …

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …

The Framers' Federalism And The Affordable Care Act, 44 Conn. L. Rev. 1071 (2012), Steven D. Schwinn

Steven D. Schwinn

Federalism challenges to the Affordable Care Act ("ACA") are inspired by the relatively recent resurgence in federalism concerns in the Supreme Court's jurisprudence. Thus, ACA opponents seek to leverage the Court-created distinction between encouragement and compulsion (in opposition to Medicaid expansion), and the Court-created federalism concern when Congress regulates in a way that could destroy the distinction between what is national and what is local (in opposition to universal coverage). But outside the jurisprudence, the text and history of constitutional federalism tell another story. The text and history suggest that the Constitution created a powerful federal government, of the people …

Foreword, 37 J. Marshall L. Rev. 317 (2004), Samuel R. Olken

Samuel R. Olken

No abstract provided.

“Stop Me Before I Get Reversed Again”: The Failure Of Illinois Appellate Courts To Protect Their Criminal Decisions From United States Supreme Court Review, 36 Loy. U. Chi. L.J. 893 (2005), Timothy P. O'Neill

Timothy P. O'Neill

No abstract provided.

New Law, Old Cases, Fair Outcomes: Why The Illinois Supreme Court Must Overrule People V Flowers, 43 Loy. U. Chi. L.J. 727 (2012), Timothy P. O'Neill

Timothy P. O'Neill

No abstract provided.

Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence

Michael Anthony Lawrence

This Article looks back to the United States Supreme Court’s jurisprudence during the years 1953-1969 when Earl Warren served as Chief Justice, a period marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association and religion, voting rights, and more. The Article further discusses the constitutional bases for the Warren Court’s decisions, principally the Fourteenth Amendment equal protection and due process clauses.

The Article explains that the Warren Court’s equity-based jurisprudence closely resembles, at its root, the “justice-as-fairness” approach promoted in John Rawls’s monumental 1971 work, A Theory of …

The Supreme Court 1997 Term -- Foreword: The Limits Of Socratic Deliberation, Michael C. Dorf

Michael C. Dorf

No abstract provided.

A Nonoriginalist Perspective On The Lessons Of History, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Prediction And The Rule Of Law, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Preliminary Thoughts On The Virtues Of Passive Dialogue, Michael Heise

Michael Heise

The judicial, legislative, and executive branches interact in many ways. These interactions fuel a constitutional dialogue that serves as a backdrop to myriad governmental activities, both large and small. The judiciary's participation is necessary, desirable, and, as a practical matter, inevitable. In my article I analyze two competing models that bear on the normative question: What form should the judiciary's participation take? Debates over the judiciary's appropriate role in the public constitutional dialogue have captured scholarly attention for decades. Recent attention has focused on a growing distinction between the active and passive models of judicial participation. My article approaches this …

Legal Taxonomy, Emily Sherwin

Emily L Sherwin

This essay examines the ambition to taxonomize law and the different methods a legal taxonomer might employ. Three possibilities emerge. The first is a formal taxonomy that classifies legal materials according to rules of order and clarity. Formal taxonomy is primarily conventional and has no normative implications for judicial decision-making. The second possibility is a function-based taxonomy that classifies laws according to their social functions. Function-based taxonomy can influence legal decision-making indirectly, as a gatekeeping mechanism, but it does not provide decisional standards for courts. Its objective is to assist in analysis and criticism of law by providing an overview …

Critical Race Theory And Postcolonial Development Theory: Observations On Methodology, Chantal Thomas

Chantal Thomas

No abstract provided.