Legal History Commons^™

Dangerous Woman: Elizabeth Key's Freedom Suit - Subjecthood And Racialized Identity In Seventheenth Century Colonial Virginia, Taunya Lovell Banks

Faculty Scholarship

Elizabeth Key, an African-Anglo woman living in seventeenth century colonial Virginia sued for her freedom after being classified as a negro by the overseers of her late master’s estate. Her lawsuit is one of the earliest freedom suits in the English colonies filed by a person with some African ancestry. Elizabeth’s case also highlights those factors that distinguished indenture from life servitude—slavery in the mid-seventeenth century. She succeeds in securing her freedom by crafting three interlinking legal arguments to demonstrate that she was a member of the colonial society in which she lived. Her evidence was her asserted ancestry—English; her …

The Ethical And Legal Basis For Student Practice In Clinical Education In The United States And Japan: A Comparative Analysis, Robert Rubinson

All Faculty Scholarship

Clinical legal education is currently undergoing a surge of interest and development in Japan. This raises numerous opportunities as well as difficulties. One of the most vexing issues concerns the scope of work a clinic student in Japan can do. This issue is particularly difficult given that in Japan there are currently no "student practice rules" so common in the United States.

The norms and rules governing what activities law students can perform in the United States might assist those interested in clinical education in Japan as they work through these issues. This article will attempt to do this. I …

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 …

On Federalism, Freedom, And The Founders' View Of Retained Rights - A Reply To Randy Barnett, Kurt T. Lash

Law Faculty Publications

In A Textual-Historical Theory of the Ninth Amendment, 60 Stanford Law Review, I explain how some of the most common theories of the Ninth Amendment either have nothing to do with the actual text of the Amendment or place the text in conflict with similar terms in the Tenth Amendment. Focusing on the actual words of the Amendment, I argue that the text of the Ninth point towards a federalist rule of construction in which the people's retained rights are necessarily left to the control of the collective people in the several states. I also explain how this reading fits …

Reforming, Reclaiming Or Reframing Womanhood: Reflections On Advocacy For Women In Custody, Brenda V. Smith

Articles in Law Reviews & Other Academic Journals

I was asked to present one of the keynote addresses for this important symposium, Behind Bars: The Impact of Incarceration on Women and Their Families, sponsored by the Women's Rights Law Reporter at Rutgers University School of Law in Newark. I am happy to write the introductory essay for this meaningful publication which arose from that symposium. This is a particularly hospitable and appropriate environment for this publication given Rutgers University's important place in feminist scholarship and discourse - both in its graduate and undergraduate programs and in its publication arm - Rutgers University Press. Historically,the Women's Rights Law Reporter …

The Peculiar Story Of United States V. Miller, Brian L. Frye

Law Faculty Scholarly Articles

On April 18, 1938, the Arkansas and Oklahoma state police stopped Jack Miller and Frank Layton, two washed-up Oklahoma bank robbers. Miller and Layton had an unregistered sawed-off shotgun, so the police arrested them for violating the National Firearms Act (“NFA”). Surprisingly, the district court dismissed the charges, holding the NFA violates the Second Amendment. The Supreme Court reversed in United States v. Miller, holding the Second Amendment does not guarantee the right to keep and bear a sawed-off shotgun as a matter of law.

Seventy years later, Miller remains the only Supreme Court opinion construing the Second Amendment. …

Codification Of Late Roman Inheritance Law: Fideicommissa And The Theodosian Code, Joshua C. Tate

Faculty Journal Articles and Book Chapters

It has long been known that most of the private law content of the Theodosian Code has not been preserved independently of the Lex Romana Visigothorum, or Breviary of Alaric. Certain constitutions, not contained in the Breviary but dating to the period covered by the Theodosian Code, have survived in the Code of Justinian. There has been debate, however, as to whether all of these constitutions were contained in the Theodosian Code.

This Article discusses this problem with respect to a particular topic: fideicommissa. The Article considers whether a particular constitution, CJ 6.37.21, might have been included in the Theodosian …

A Watershed Moment: Reversals Of Tort Theory In The Nineteenth Century, Jed Handelsman Shugerman

Faculty Scholarship

This article offers a new assessment of the stages in the development of fault and strict liability and their justifications in American history. Building from the evidence that a wide majority of state courts adopted Fletcher v. Rylands and strict liability for unnatural or hazardous activities in the late nineteenth century, a watershed moment turns to the surprising reversals in tort ideology in the wake of flooding disasters.

An established view of American tort law is that the fault rule supposedly prevailed over strict liability in the nineteenth century, with some arguing that it was based on instrumental arguments to …