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Articles 1 - 4 of 4
Full-Text Articles in Legal History
Lawyer And Public Service, The Historical Perspectives On Pro Bono Lawyering, Russell G. Pearce
Lawyer And Public Service, The Historical Perspectives On Pro Bono Lawyering, Russell G. Pearce
Faculty Scholarship
Historically, the first way of viewing the lawyer's role was as a member of America's governing class. Second came cause lawyering on behalf of a particular issue. Third, and most recently, arose the idea of pro bono lawyering, a less ambitious incarnation of the governing class lawyer who contributes time to helping cause lawyers. These categories are not rigid: for each individual they may overlap to one degree or another. This framework is preliminary and requires further research and development. Nonetheless, it provides a useful tool for explaining how lawyers-and in particular the heroic lawyers described in this symposium-connect to …
Historical Framework For Reviving Constitutional Protection For Property And Contract Rights , James L. Kainen
Historical Framework For Reviving Constitutional Protection For Property And Contract Rights , James L. Kainen
Faculty Scholarship
Post-New Deal constitutionalism is in search of a theory that justifies judicial intervention on behalf of individual rights while simultaneously avoiding the charge of "Lochnerism."' The dominant historical view dismisses post-bellum substantive due process as an anomalous development in the American constitutional tradition. Under this approach, Lochner represents unbounded protection for economic rights that permitted the judiciary to read laissez faire, pro-business policy preferences into the constitutional text. Today's revisionists have mounted a substantial challenge to the dismissive views of traditionalists. Indeed, some claim Lochner reached the right result, but for the wrong reason. The revisionists characterize substantive due process …
Rediscovering The Republican Origins Of The Legal Ethics Codes, Russell G. Pearce
Rediscovering The Republican Origins Of The Legal Ethics Codes, Russell G. Pearce
Faculty Scholarship
Many commentators wrongly assume that the hired gun ideal is the foundation of our legal ethics codes. This article explains that this assumption is based on an historical mistake that has consequences for interpreting the modern codes. Judge George Sharswood, the nineteenth century scholar whose work provided the basis for the 1908 A.B.A. Canons of Ethics, had a republican conception that rejected the adversarial ethic in favor of a more nuanced conception that combined loyalty to clients with a thick obligation to the public good that both bounded client representation and required lawyers to provide political leadership. Although the emphasis …
Impeachment Exception To The Exclusionary Rules: Policies, Principles, And Politics, The , James L. Kainen
Impeachment Exception To The Exclusionary Rules: Policies, Principles, And Politics, The , James L. Kainen
Faculty Scholarship
The exclusionary evidence rules derived from the Fourth, Fifth, and Sixth Amendments continue to play an important role in constitutional criminal procedure, despite the intense controversy that surrounds them. The primary justification for these rules has shifted from an "imperative of judicial integrity" to the "deterrence of police conduct that violates... [constitutional] rights." Regardless of the justification it uses for the rules' existence, the Supreme Court continues to limit their breadth "at the margin," when "the acknowledged costs to other values vital to a rational system of criminal justice" outweigh the deterrent effects of exclusion. The most notable limitation on …