Legal History Commons^™

Reports Of Cases In The Court Of Chancery From 1683 To 1688, William Hamilton Bryson

Law Faculty Publications

This collection of law reports brings together in one place the reports of cases in the Court of Chancery from the short tenure of Sir Francis North, lord Guilford, and that of Sir George Jeffreys, Lord Jeffreys, who was the Lord Chancellor during the reign of King James II. These reports have been scattered heretofore, but it is hoped that, by reprinting them in one place, they can be more easily comprehended individually and the jurisprudence of this court can be better understood. They come from the reigns of King Charles II and King James II, and date from 1683 …

Edward Barradall's Reports Of Cases In The General Court Of Virginia (1733-1741), William Hamilton Bryson

Law Faculty Publications

Edward Barradall was born in London, the son of Henry Barradall and Catherine Blumfield Barradall. He was baptized on 17 October 1703 in the parish church of St. Paul's, Covent Garden. Both of his brothers and two of his sisters came to Virginia in the 1730s. Edward Barradall was in Virginia by February 1731. From at least then until about 1733, he practiced law in the county courts of Caroline County and the Northern Neck. His law reports begin in 1733, and so it is to be presumed that that is the year he moved his practice from the county …

Alexander Forrester's Chancery Reports, William Hamilton Bryson

Law Faculty Publications

This is a new edition of Alexander Forrester's Chancery reports. It is based upon the best manuscript copy that has survived, Lincoln's Inn MSS. Misc. 52 and Misc. 54, and the first printed edition. The edition that was first published in 1741 included only the cases from 1732 to 1739. Compared to the copy in Lincoln's Inn, they are not much different in quality from each other. The cases in the 1741 edition are the basis for this edition as far as they go. The learned apparatus of the third edition by John Griffith Williams (d. 1799) has not been …

Reports Of Cases By Lord Hardwicke, William Hamilton Bryson

Law Faculty Publications

Philip Yorke, earl of Hardwicke (1690-1764) was the Lord Chancellor of Great Britain from 1737 to 1756. He had a brilliant legal mind, and his memory is still celebrated today.

These reports are taken from Lord Hardwicke's opinions in other cases. Thus, being statements by Lord Hardwicke of these cases, in that sense, they are his reports of these cases. The text published here has been massaged into the standard format for law reports. However, originally, it was Lord Hardwicke's treatment of these reports as legal precedents for other cases that were before him for decision, which precedents he followed …

Mcculloch V. Madison: John Marshall's Effort To Bury Madisonian Federalism, Kurt T. Lash

Law Faculty Publications

"In his engaging and provocative new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David S. Schwartz challenges McCulloch’s canonical status as a foundation stone in the building of American constitutional law. According to Schwartz, the fortunes of McCulloch ebbed and flowed depending on the politics of the day and the ideological commitments of Supreme Court justices. Judicial reliance on the case might disappear for a generation only to suddenly reappear in the next. If McCulloch v. Maryland enjoys pride of place in contemporary courses on constitutional law, Schwartz argues, then this …

The Empty Idea Of “Equality Of Creditors”, David A. Skeel Jr.

All Faculty Scholarship

For two hundred years, the equality of creditors norm—the idea that similarly situated creditors should be treated similarly—has been widely viewed as the most important principle in American bankruptcy law, rivaled only by our commitment to a fresh start for honest but unfortunate debtors. I argue in this Article that the accolades are misplaced. Although the equality norm once was a rough proxy for legitimate concerns, such as curbing self-dealing, it no longer plays this role. Nor does it serve any other beneficial purpose.

Part I of this Article traces the historical emergence and evolution of the equality norm, first …

Blackstone, Expositor And Censor Of Law Both Made And Found, Jessie Allen

Book Chapters

Jeremy Bentham famously insisted on the separation of law as it is and law as it should be, and criticized his contemporary William Blackstone for mixing up the two. According to Bentham, Blackstone costumes judicial invention as discovery, obscuring the way judges make new law while pretending to uncover preexisting legal meaning. Bentham’s critique of judicial phoniness persists to this day in claims that judges are “politicians in robes” who pick the outcome they desire and rationalize it with doctrinal sophistry. Such skeptical attacks are usually met with attempts to defend doctrinal interpretation as a partial or occasional limit on …

Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton

Publications

No abstract provided.

A Context For Legal History, Or, This Is Not Your Father’S Contextualism, Justin Desautels-Stein

Publications

This short essay attempts a systematic rehearsal of the structuralist approach to legal historiography.

Sir Robert Raymond's Common Law Reports (1694-1696), William Hamilton Bryson

Law Faculty Publications

Robert Raymond was born on 20 December 1673 in London. He was the only son of Sir Thomas Raymond (1627-1683), a judge and law reporter. He was formally admitted to Gray's Inn, his father's inn, at the age of nine in 1682. He was a student at Eton College and Christ's College, Cambridge. Raymond was called to the bar of Gray's Inn in November 1697, and he joined ad eundem Lincoln's Inn in 1710. He was the Solicitor General from 1710 until 1714 and Attorney General from 1720 to 1724. He was a member of Parliament from 1710 to 1724. …

The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson

All Faculty Scholarship

The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.

A careful reading of the history of the framing …

John Merefield's Common Pleas Reports, William Hamilton Bryson

Law Faculty Publications

John Merefield of Crewkerne, Somerset, was admitted to the Inner Temple on 14 February 1612, and he was called to the bar on 15 October 1620. He gave readings in 1621 and 1641; on 4 November 1638, he was called to the bench. Merefield was created a serjeant in October 1660, and he died in October 1666.

Fourteen Cases From Herbert Jacob's Queen's Bench Reports, William Hamilton Bryson

Law Faculty Publications

Herbert Jacob was admitted to the Inner Temple on 3 June 1692, called to the bar on 28 June 1699, and called to the bench of the Inner Temple on 22 November 1721. He died in 1725.

Harvard Law School MS. 4081 [formerly MS. 2136] is a collection of Queen's Bench reports dating from 1702 to 1706. This manuscript consists of two books, which are attributed to Herbert Jacob, a barrister of the Inner Temple. The cases in volume one and volume two, ff. 1-71v, are the same reports as 2 Lord Raymond 755-1252, 92 E.R. 4-325. Volume two, ff. …

Thomas Bold's Chancery Reports, William Hamilton Bryson

Law Faculty Publications

Thomas Bold was born in 1695, the son of William Bold of St. Bride's Parish, London. He entered Westminster School in 1708 and Christ Church, Oxford, on 23 June 1713. Bold received his B.A. in 1718 and an M.A. in 1721. He was admitted as a law student at the Middle Temple on 15 June 1711 and called to the bar on 31 May 1717. He was admitted ad eundem at Lincoln's Inn on 23 November 1717.

Structuralist Legal Histories, Justin Desautels-Stein

Publications

This is a contribution to a symposium titled "Theorizing Contemporary Legal Thought." The central theme of the piece is the relation between legal structuralism and legal historiography.

Interest Groups In The Teaching Of Legal History, Herbert J. Hovenkamp

All Faculty Scholarship

One reason legal history is more interesting than it was several decades ago is the increased role of interest groups in our accounts of legal change. Diverse movements including law and society, critical legal theory, comparative law, and public choice theory have promoted this development, even among writers who are not predominantly historians. Nonetheless, in my own survey course in American legal history I often push back. Taken too far, interest group theorizing becomes an easy shortcut for assessing legal movements and developments without fully understanding the ideas behind them.

Intellectual history in the United States went into decline because …

Reading Blackstone In The Twenty-First Century And The Twenty-First Century Through Blackstone, Jessie Allen

Book Chapters

If the Supreme Court mythologizes Blackstone, it is equally true that Blackstone himself was engaged in something of a mythmaking project. Far from a neutral reporter, Blackstone has some stories to tell, in particular the story of the hero law. The problems associated with using the Commentaries as a transparent window on eighteenth-century American legal norms, however, do not make Blackstone’s text irrelevant today. The chapter concludes with my brief reading of the Commentaries as a critical mirror of some twenty-first-century legal and social structures. That analysis draws on a long-term project, in which I am making my way through …

Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee

All Faculty Scholarship

Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …

Rabban's Law's History, Herbert J. Hovenkamp

All Faculty Scholarship

This is a brief review of David Rabban's new book: Law's History: American Legal Thought and the Transatlantic Turn to History (Cambridge, 2013).

Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen

All Faculty Scholarship

In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in …

American Influence On Israeli Law: Freedom Of Expression, Pnina Lahav

Faculty Scholarship

This chapter provides a historical overview of the American influence on Israel’s jurisprudence of freedom of expression from the 1950s to the first decade of the twenty first century. The chapter uses the format of decades, presenting representative cases for each decade, to record the process by which Israeli judges incorporated and sometimes rejected themes from the U.S. jurisprudence of freedom of expression. In the course of discussing the jurisprudential themes the chapter also highlights the historical context in which the cases were decided, from the war in Korea and McCarthyism in the 1950s, to the process of globalization which …

Originalism And Loving V. Virginia, Steven G. Calabresi, Andrea Matthews

Faculty Working Papers

This article makes an originalist argument in defense of the Supreme Court's holding in Loving v. Virginia that antimiscegenation laws are unconstitutional. This article builds on past work by Professor Michael McConnell defending Brown v. Board of Education on originalist grounds and by Professor Calabresi defending strict scrutiny for gender classifications on originalist grounds. Professor Calabresi's work in this area was defended and praise recently by Slate magazine online. The article shows that Loving v. Virginia is defensible using the public meaning originalism advocated for by Justices Antonin Scalia and Clarence Thomas. This article shows that the issue in Loving …

Duncan Kennedy's Third Globalization, Criminal Law, And The Spectacle, Aya Gruber

Publications

No abstract provided.

Experimental Pragmatism In The Third Globalization, Justin Desautels-Stein

Publications

Pragmatism dominates contemporary legal thought, but knowing this isn’t knowing so much. Legal pragmatism means different things to different people, and as this essay argues, minimalist and experimentalist forms of regulation both share a broadly pragmatic sensibility about law and democracy. As a consequence, we need to tease out the various threads of legal pragmatism in the hope of distinguishing the pragmatisms that work from the ones that don’t, or less pragmatically, the ones that are just from the ones that are not. This knowledge will come from an ongoing assessment of the political stakes immanent in the pragmatisms, and …

Conference Program -- Association For The Study Of Law, Culture, & The Humanities 14th Annual Conference, University Of Nevada, Las Vegas -- William S. Boyd School Of Law

Association for the Study of Law, Culture, & the Humanities 14th Annual Conference

The UNLV William S. Boyd School of Law hosted the Association for the Study of Law, Culture & the Humanities 14th Annual Conference from March 11-12, 2011. The Association brings together more than 275 interdisciplinary scholars from around the world each year to discuss law and legal issues from a broad perspective. Scholars attended the meeting at UNLV from Australia, Canada, England, Ireland, Italy, New Zealand and Sweden. The theme of the conference, drawing on the work of Nan Seuffert of the University of Waikato, was "Boundaries and Enemies."

The Association for the Study of Law, Culture and the Humanities …

The Speluncean Explorers--Further Proceedings, Anthony D'Amato

Faculty Working Papers

Lon L. Fuller's The Case of the Speluncean Explorers is a classic in jurisprudence. The case presents five judicial opinions which clash with each other and produce for the reader an exhilarating excursion into fundamental theories of law and the state and the role of courts vis-i-vis legislatures and executives. Though the issues articulated by Fuller are timeless, the past thirty years in jurisprudential scholarship have produced at least one major new vantage point—the "rights thesis".

The Death Of The American Trial, Robert P. Burns

Faculty Working Papers

This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social signficance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.

The Dictionary And The Man: Garner’S Black’S Law Dictionary, Jeanne Price, Roy M. Mersky

Scholarly Works

The 7th and 8th editions of Black's Law Dictionary were the first edited by Bryan Garner. This review of the 8th edition of Black's Law Dictionary focuses on the approach taken by Garner in thoroughly revising the dictionary and places his work in the context of the recent history of legal dictionaries and lexicography.

My Dinner At Langdell's, Pierre Schlag

Publications

This essay begins on one of those cold wet April Cambridge mornings. It was too wet for fog, but too indifferent for rain. My head ached. My lips were dry and my tongue felt bloated. The fever had surely come back. Worse - the laudanum was wearing off. Tonight would be dinner at Langdell's. It occurred to me that not everyone is invited to Langdell's for dinner - certainly not wayward law professors from the provinces. This was an extraordinary opportunity. Blackstone would be there. Duncan Kennedy perhaps. Certainly the early Llewellyn. I knocked on the door.

The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

UF Law Faculty Publications

This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial voice in Symbols and …