Legal History Commons^™

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

Carlisle Moody

No abstract provided.

Book Review (Reviewing Louis Fisher's Congress: Protecting Individual Rights), Adeen Postar

Adeen Postar

Fisher is currently the Scholar in Residence at the Constitution Project, and is well known for his many years as Senior Specialist on Separation of Powers at the Congressional Research Service and as Specialist in Constitutional Law at the Law Library of Congress. He has extensive experience testifying before Congress on topics that include Congress and the constitution, war powers, executive power and privilege, and several aspects of the federal budget and its processes. He has written numerous books on these topics, including (to name only a few) The President and Congress: Power and Policy (1972); Defending Congress and the …

The Architecture Of Law: Building Law In The Classical Tradition, Brian M. Mccall

Brian M McCall

Indefinite Detention, Colonialism, And Settler Prerogative In The United States, Natsu Taylor Saito

Natsu Taylor Saito

The primacy accorded individual civil and political rights is often touted as one of the United States' greatest achievements. However, mass incarcerations of indefinite duration have occurred consistently throughout U.S. history and have primarily targeted people of color. The dominant narrative insists that the United States is a political democracy and portrays each instance of indefinite detention in exceptionalist terms. This essay argues that the historical patterns of indefinite detention are better explained by recognizing the United States as a settler colonial state whose claimed prerogative to expand its territorial reach and contain/control populations over which it exercises jurisdiction inevitably …

Social Contract Neutrality And The Religion Clauses Of The Federal Constitution, Gregory S. Sergienko

Greg Sergienko

'Neutrality' has become the slogan that the Supreme Court uses for judging all claims of freedom of religion whether under the Establishment Clause or the Free Exercise Clause. However, the word 'neutrality' conceals the Court's inconsistent use of the concept. Thus, in Rosenberger v. Rectors of the University of Virginia, the recent debate about funding for religious publications, both the majority and the dissent asserted that only their approach was truly neutral. This inconsistency in the meaning of neutrality in the religion clauses is merely part of a general inconsistency in the Court's treatment of the religion clauses. Some of …

Poverty, The Great Unequalizer: Improving The Delivery System For Civil Legal Aid, Latonia Haney Keith

Latonia Haney Keith

Civil justice issues in the United States bring with them no guarantee of legal counsel, yet the civil legal system is still designed to require an attorney in almost all situations. Given the ever-growing costs of legal representation, how then are the legal needs of the poor met? The author calls this phenomenon the “justice gap” and addresses the issue of an access to justice gap and proposes a potential solution.

This article examines the existence of the “justice gap,” wherein the poor face substantial barriers that hinder them from receiving the same legal protections as wealthier Americans. It goes …

Foreword: "Law As…": Theory And Method In Legal History, Catherine L. Fisk, Robert W. Gordon

Catherine Fisk

No abstract provided.

Lawyers And Biblical Prophets, Thomas L. Shaffer

Thomas L. Shaffer

This is part of a broader exploration of the suggestion that the biblical prophets-Moses, Isaiah, Jeremiah, Amos, Nathan, and the others-are sources of ethical reflection and moral example for modern American lawyers. The suggestion appears to be unusual; I am not sure why. The Prophets were, more than anything else, lawyers-as their successors, the Rabbis of the Talmud, were. They were neither teachers nor bureaucrats, not elected officials or priests or preachers. And the comparison is not an ancient curiosity: Much of what admirable lawyer-heroes have done in modern America has been prophetic in the biblical sense-that is, what they …

Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich

Sonia Katyal

The very definition and scope of CLS (critical legal studies) is itself subject to debate. Some scholars characterize CLS as scholarship that employs a particular methodology—more of a “means” than an “end.” On the other hand, some scholars contend that CLS scholarship demonstrates a collective commitment to a political end goal—an emancipation of sorts —through the identification of, and resistance to, exploitative power structures that are reinforced through law and legal institutions. After a brief golden age, CLS scholarship was infamously marginalized in legal academia and its sub-disciplines. But CLS themes now appear to be making a resurgence—at least in …

Notes Toward A Critical Contemplation Of Law, Sonia K. Katyal

Sonia Katyal

In this tribute to Professor Derrick Bell’s legacy, Professor Katyal reflects on one of Bell’s greatest gifts: the necessary, and perhaps unfinished gift of critical contemplation of law, along with its possibilities and its concomitant limitations. In her paper, Katyal reflects on two seemingly disparate areas of civil rights that might benefit from Bell’s critical vision: the area of LGBT rights and equality, and federal Indian law. Relying on some of Bell’s most valuable insights, Katyal calls for the creation of a “critical sexuality studies” and a “critical indigenous studies” that employs some of Bell’s groundbreaking lessons in reimagining broader …

Latin American Legal History: Some Essential Spanish Terms, M C. Mirow

M. C. Mirow

Terms related to Latin American legal history translated into English.

The "Rabbi's Daughter" And The "Jewish Jane Addams": Jewish Women, Legal Aid, And The Fluidity Of Identity, 1890-1930, Felice Batlan

Felice J Batlan

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

Donald J. Kochan

Oliver Wendell Holmes, Jr., And The American Civil War, Catharine P. Wells

Catharine P. Wells

Hustle And Flow: A Social Network Analysis Of The American Federal Judiciary, Daniel Martin Katz

Daniel M Katz

No abstract provided.

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 …

Incest In A Thousdand Acres: Cheap Trick Or Feminist Re-Vision, Susan Ayres

Susan Ayres

This article ultimately argues that the plot changes are not a cheap trick intended to manipulate the reader's emotions, but a feminist re-vision, which succeeds or not depending on the reader's critical feminist perspective. Thus, Part Two delineates several feminist stances, such as liberal feminism, radical feminism, social feminism, and postmodern feminism, and summarizes the plot changes Smiley has imposed on King Lear. Part Three considers one major plot change - the longing for the mother - in terms of patriarchy's suppression of a maternal genealogy and feminine language. This part argues that the novel successfully demonstrates the difficulty in …

Will The Constitution Survive Into The Twenty-First Century - Some Reflections On The Bicentennial Of The United States Constitution, 21 J. Marshall L. Rev. 79 (1987), Michael P. Seng

Michael P. Seng

No abstract provided.

The Hypocrisy Of "Equal But Separate" In The Courtroom: A Lens For The Civil Rights Era, Jaimie K. Mcfarlin

Jaimie K. McFarlin

This article serves to examine the role of the courthouse during the Jim Crow Era and the early stages of the Civil Rights Movement, as courthouses fulfilled their dual function of minstreling Plessy’s call for “equality under the law” and orchestrating overt segregation.

The Interwoven Destinies Of The United States, Colombia And Panama: On Friendship, Commerce And Navigation Treaties And International Legal Imperialism, Marco Velásquez-Ruiz

Marco A. Velásquez-Ruiz

Based on the general contention that International Law can (and has) served imperialist purposes – that is to say, extend a nation’s authority over another by establishing an effective influence on its political and economic affairs –, this paper intends to illustrate how the 1846 Friendship, Commerce and Navigation Treaty concluded between the United States and Colombia – commonly known as the Mallarino-Bidlack Treaty –was eventually used by the former as a neocolonial device on the latter. Essentially, the suggested tale on which this paper is built goes as follows: to a great extent, the United States consolidated its global …

Deception In Morality And Law, Larry Alexander, Emily Sherwin

Emily L Sherwin

No abstract provided.

Limited-Domain Positivism As An Empirical Proposition, Stewart J. Schwab

Stewart J Schwab

In his typically clear statement of a provocative thesis, Fred Schauer, along with his co-author, Virginia Wise, ask us to think about positivism in a new way. Their claim has two parts. First, Schauer and Wise redefine legal positivism as an empirical claim about the limited domain of information that legal decisionmakers use to make decisions. Second, they begin testing the extent to which our legal system in fact reflects this limited domain. Ironically, Schauer and Wise believe that positivism, so conceived, is "increasingly false." Thus, their two-part approach is, first, to declare that legal positivism should be conceived of …

Some Observations On The Role Of Social Change On The Courts, Gerald Torres

Gerald Torres

No abstract provided.

Lessons In Fiscal Activism, Mirit Eyal-Cohen

Mirit Eyal-Cohen

This article highlights an anomaly. It shows that two tax rules aimed to achieve a similar goal were introduced at the same time. Both meant to be temporary and bring economic stimuli but received a dramatically different treatment. The economically inferior rule survived while its superior counterpart did not. The article reviews the reasons for this paradox. It shows that the causes are both political and an agency problem. The article not only enriches an important and ongoing debate that has received much attention in recent years, but also provides important lessons to policymakers.

Women And Justice For The Poor: A History Of Legal Aid, 1863–1945, Felice Batlan

Felice J Batlan

No abstract provided.

Administrative Equal Protection: Federalism, The Fourteenth Amendment, And The Rights Of The Poor, Karen M. Tani

Karen M. Tani

The Illusion Of Equality: The Failure Of The Community Property Reform To Achieve Management Equality, Elizabeth Carter

Elizabeth R. Carter

Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan

Donald J. Kochan

Environmental protection and economic concerns are not mutually exclusive. This article explores some of the issues of economic analysis that might arise as we approach the fourth generation of environmental law. It explains ways that economic analysis can be employed to generate the best environmental rules, including measures under what this article terms as "economics-based environmentalism." Economics-based environmentalism contends that the advantages of using economic principles within a “polycentric toolbox” of environmental law come from the benefits available in private ordering, markets, property rights, liability regimes and incentives structures that will better protect the environment than alternatives like state-based interventionist, …