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Articles 1 - 30 of 226
Full-Text Articles in Legal History
Brief Of Amicus Curiae Tax Professors In Support Of Respondent In Moore V. United States, Donald B. Tobin, Ellen P. Aprill
Brief Of Amicus Curiae Tax Professors In Support Of Respondent In Moore V. United States, Donald B. Tobin, Ellen P. Aprill
Faculty Scholarship
Petitioners in Moore v. United States have argued to the Supreme Court that the word “incomes” in the Sixteenth Amendment authorizes only the taxation of “realized” income. Thus, they assert, a repatriation tax (referred to as MRT) in the Tax Cuts and Jobs Act is invalid because it taxes unrealized gains. While other briefs in the case explain that, as properly understood, the tax at issue taxes only realized gains, this brief counters the petitioners’ Sixteenth Amendment argument. It explains that economists, accountants, and lawyers in the early twentieth century all defined income in broad terms, embracing the definition of …
Situating Dobbs, Paula A. Monopoli
Situating Dobbs, Paula A. Monopoli
Faculty Scholarship
The recent decision in Dobbs v. Jackson Women’s Health has been characterized as an outlier because its effect is to erase a previously recognized constitutional right. This paper situates Dobbs in a broader feminist constitutional history. It asks if this retrenchment is really such a unique turn in American jurisprudence when it comes to protections or “rights” that matter most to women’s lived experience. The paper argues that if one opens the aperture of constitutional history to embrace a more capacious view of rights, those afforded to women have often been eroded or erased by state legislatures, Congress, and courts. …
Feminist Legal History And Legal Pedagogy, Paula A. Monopoli
Feminist Legal History And Legal Pedagogy, Paula A. Monopoli
Faculty Scholarship
Women are mere trace elements in the traditional law school curriculum. They exist only on the margins of the canonical cases. Built on masculine norms, traditional modes of legal pedagogy involve appellate cases that overwhelmingly involve men as judges and advocates. The resulting silence signals that women are not makers of law—especially constitutional law. Teaching students critical modes of analysis like feminist legal theory and critical race feminism matters. But unmoored from feminist legal history, such critical theory is incomplete and far less persuasive. This Essay focuses on feminist legal history as foundational if students are to understand the implications …
Gender, Voting Rights, And The Nineteenth Amendment, Paula A. Monopoli
Gender, Voting Rights, And The Nineteenth Amendment, Paula A. Monopoli
Faculty Scholarship
One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that “there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment.” This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct …
Constitutional Structure, Institutional Relationships And Text: Revisiting Charles Black's White Lectures, Richard C. Boldt
Constitutional Structure, Institutional Relationships And Text: Revisiting Charles Black's White Lectures, Richard C. Boldt
Faculty Scholarship
Fundamental questions about constitutional interpretation and meaning invite a close examination of the complicated origins and the subsequent elaboration of the very structure of federalism. The available records of the Proceedings in the Federal Convention make clear that the Framers entertained two approaches to delineating the powers of the central government relative to those retained by the states. The competing approaches, one reliant on a formalist enumeration of permissible powers, the other operating functionally on the basis of a broad dynamic concept of state incompetence and national interest, often are presented as mutually inconsistent narratives. In fact, these two approaches …
Race, Surveillance, Resistance, Chaz Arnett
Race, Surveillance, Resistance, Chaz Arnett
Faculty Scholarship
The increasing capability of surveillance technology in the hands of law enforcement is radically changing the power, size, and depth of the surveillance state. More daily activities are being captured and scrutinized, larger quantities of personal and biometric data are being extracted and analyzed, in what is becoming a deeply intensified and pervasive surveillance society. This reality is particularly troubling for Black communities, as they shoulder a disproportionate share of the burden and harm associated with these powerful surveillance measures, at a time when traditional mechanisms for accountability have grown weaker. These harms include the maintenance of legacies of state …
People V. Croswell: Libelous Truth, The Common Law, And Battlefield Of The Bloodless Revolution, Samuel A. Schwartz
People V. Croswell: Libelous Truth, The Common Law, And Battlefield Of The Bloodless Revolution, Samuel A. Schwartz
Legal History Publications
The case of People v. Croswell will forever stand for the spirited arguments by leading legal minds about the legality of using truth as a defense to criminal libel, establishing the common law, and determining the role of the jury. But it is the story of Harry Croswell, young firebrand Federalist editor of The Wasp, that provides an insightful view into the turbulent political scene that stormed fiercely across the United States at the turn of the nineteenth century.
Thirty Years Later: Recalling The Gender Bias Report And Asking "What's Next" In The Legal Profession, Pamela J. White
Thirty Years Later: Recalling The Gender Bias Report And Asking "What's Next" In The Legal Profession, Pamela J. White
2020: Challenging Gender Bias in the Legal Profession
No abstract provided.
Platforms And The Fall Of The Fourth Estate: Looking Beyond The First Amendment To Protect Watchdog Journalism, Erin C. Carroll
Platforms And The Fall Of The Fourth Estate: Looking Beyond The First Amendment To Protect Watchdog Journalism, Erin C. Carroll
Maryland Law Review
No abstract provided.
Emancipation Unlocke'd: Partus Sequitur Ventrem, Self-Ownership, And No "Middle State"In Maria Vs. Surbaugh, Diane J. Klein
Emancipation Unlocke'd: Partus Sequitur Ventrem, Self-Ownership, And No "Middle State"In Maria Vs. Surbaugh, Diane J. Klein
University of Maryland Law Journal of Race, Religion, Gender and Class
No abstract provided.
The Constitutional Development Of The Nineteenth Amendment In The Decade Following Ratification, Paula A. Monopoli
The Constitutional Development Of The Nineteenth Amendment In The Decade Following Ratification, Paula A. Monopoli
Faculty Scholarship
No abstract provided.
The Security Court, Matt Steilen
The Security Court, Matt Steilen
Maryland Law Review Online
The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security by law and …
Interpretation As Statecraft: Chancellor Kent And The Collaborative Era Of American Statutory Interpretation, Farah Peterson
Interpretation As Statecraft: Chancellor Kent And The Collaborative Era Of American Statutory Interpretation, Farah Peterson
Maryland Law Review
No abstract provided.
Mother. Orator. Woman Suffrage Leader: The Feminist Legacy Of Elizabeth Cady Stanton, Paula A. Monopoli
Mother. Orator. Woman Suffrage Leader: The Feminist Legacy Of Elizabeth Cady Stanton, Paula A. Monopoli
Faculty Scholarship
No abstract provided.
Technological Triggers To Tort Revolutions: Steam Locomotives, Autonomous Vehicles, And Accident Compensation, Donald G. Gifford
Technological Triggers To Tort Revolutions: Steam Locomotives, Autonomous Vehicles, And Accident Compensation, Donald G. Gifford
Faculty Scholarship
No abstract provided.
From Parliamentary To Judicial Supremacy: Reflections In Honour Of The Constitutionalism Of Justice Moseneke, Peter G. Danchin
From Parliamentary To Judicial Supremacy: Reflections In Honour Of The Constitutionalism Of Justice Moseneke, Peter G. Danchin
Faculty Scholarship
No abstract provided.
United States V. The William And The Phenomena Of Jury Nullification In Early 19th Century America, Michael G. Lederman
United States V. The William And The Phenomena Of Jury Nullification In Early 19th Century America, Michael G. Lederman
Legal History Publications
In September 1808, Judge John Davis upheld the constitutionality of the Embargo Act of 1807 under the Constitution’s Article I, Section 8, Clause 3 Interstate Commerce power. Judge Davis’s original opinion curiously lacks any reference to Marbury v. Madison. Judge Davis defends judicial review and rejects the notion of jury nullification. While Judge Davis upheld the embargo’s constitutionality, a subsequent jury trial on the facts resulted in the return of The William to its rightful owners. This case reflects the attempts by early American judges to carve out the power of judicial review and maintain the appearance of an …
United States V. Klintock: Reconsideration Of United States V. Palmer As To General Piracy As Defined By The Law Of Nations Through The Applicable Standards Of Political Action Of Acknowledgement And Recognition And The Status Of Statelessness, Justin L. Sieffert
Legal History Publications
During the February 1820 Term, the Supreme Court of the United States decided four significant piracy cases, beginning with United States v. Klintock. Political, economic, and social pressures enhanced the problem of piracy affecting the interests of the United States. Responding to the criticism of his decision in United States v. Palmer and the passage of the Act of 1819 state Congressional intent for defining piracy by the “law of nations,” Marshall authored the decision in Klintock distinguishing Palmer and, upon reconsideration, interpreting the Act of 1790 to include general piracy as defined by the “law of nations.” With …
Martin V. Mott And The Establishment Of Executive Emergency Authority, Eli Berns-Zieve
Martin V. Mott And The Establishment Of Executive Emergency Authority, Eli Berns-Zieve
Legal History Publications
In August of 1814, a New York farmer named Jacob E. Mott refused to rendezvous with the militia pursuant to the orders of Governor Daniel D. Tompkins as commanded by President James Madison. In 1818, Mott was court martialed and fined ninety-six dollars. One year later, Mott brought an action in replevin in the New York state courts to recover chattel taken from him by a deputy marshal in lieu of the ninety-six dollars. Both the New York trial and appellate courts sided with Mott. In a unanimous opinion authored by Justice Joseph Story, the Supreme Court of the United …
Willson V. Black-Bird Creek Marsh Co., 25 U.S. 245 (1829): An Early Test Of The Dormant Commerce Clause, Michael P. Collins Jr.
Willson V. Black-Bird Creek Marsh Co., 25 U.S. 245 (1829): An Early Test Of The Dormant Commerce Clause, Michael P. Collins Jr.
Legal History Publications
In 1822, Delaware authorized the Blackbird Creek Marsh Company to bank and drain the Blackbird Creek in New Castle County. Subsequently, Thompson Wilson and others destroyed the structure built by the marsh company. The marsh company subsequently sued Mr. Wilson for the damage to its property. The parties eventually appealed their dispute to the Supreme Court of the United States. The Court held that Delaware’s authorization to bank and dam the creek did not conflict with the federal government’s exclusive authority to regulate commerce between the several states. Ultimately, the Court decided Willson in a manner inconsistent with its earlier …
Eugenics, Jim Crow, And Baltimore's Best, Garrett Power
Eugenics, Jim Crow, And Baltimore's Best, Garrett Power
Faculty Scholarship
No abstract provided.
Interest And Irritation: Brown V. Maryland And The Making Of A National Economy, Henry P. Callegary
Interest And Irritation: Brown V. Maryland And The Making Of A National Economy, Henry P. Callegary
Legal History Publications
This paper examines the United States Supreme Court case Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827), which struck down Maryland’s licensing fee on wholesalers of imported goods. In doing so, the Court reaffirmed its commitment to a national economic policy, instead of a state-centric system. This paper explores the context of the decision, including profiles of the parties involved, the attorneys for both sides, the lower court decisions, and the majority opinion and dissent from the United States Supreme Court. Additionally, this paper follows the lineage of the case through to the present day, examining its doctrinal impact …
The Armstrong Evolution, Michael Pappas
The Armstrong Evolution, Michael Pappas
Maryland Law Review Online
No abstract provided.
United States V. Hodges: Treason, Jury Trials, And The War Of 1812, Jennifer Elisa Smith
United States V. Hodges: Treason, Jury Trials, And The War Of 1812, Jennifer Elisa Smith
Legal History Publications
In August 1814 a number of British soldiers were arrested as stragglers or deserters in the town of Upper Marlboro, Maryland. Upon learning of the soldiers’ absences the British military took local physician, Dr. William Beanes, and two other residents into custody and threatened to burn Upper Marlboro if the British soldiers were not returned. John Hodges, a local attorney, arranged the soldiers’ return to the British military. For this, Hodges was charged with high treason for “adhering to [the] enemies, giving them aid and comfort.” The resulting jury trial was presided over by Justice Gabriel Duvall, a Supreme Court …
The Bellona Company's Case, Casey Conrad
The Bellona Company's Case, Casey Conrad
Legal History Publications
The Bellona Gunpowder Company of Maryland was one of Maryland’s most prominent gunpowder manufactories during the early nineteenth century. Founded in 1801, the gunpowder company become the second leading gunpowder producer for the American government, and supplied almost one-fifth of American domestic gunpowder. In 1828, the Baltimore and Susquehanna Railroad Company was incorporated by the State of Maryland to construct a railroad that would connect the City of Baltimore to the Susquehanna River. The legislature authorized the railroad company to initiate condemnation proceedings against private property owners, if it was unable to negotiate for the sale of such land. In …
Shreve V. Baltimore: A Municipal Misstep Leads To A City Forever Beautiful, Laura Tallerico
Shreve V. Baltimore: A Municipal Misstep Leads To A City Forever Beautiful, Laura Tallerico
Legal History Publications
This paper explores municipal decision making in condemnation proceedings and whether or not the public use requirement protects individual property owners from poor municipal decision-making. When condemners are allowed to take in fee simple absolute, their decisions have lasting effects on property. The decisions of the Baltimore City government in its creation of a water system illustrate why some may be queasy about this. However, this may actually be desirable because it allows for municipalities, in particular, to both achieve the public purpose necessary at the time of condemnation and to improve in the future rather than go through the …
United States V. Gooding: The Imperfect Indictment That Created The Perfect Defense For The Illegal Slave Trade, Fernando D. Kirkman
United States V. Gooding: The Imperfect Indictment That Created The Perfect Defense For The Illegal Slave Trade, Fernando D. Kirkman
Legal History Publications
In United States v. Gooding, the Supreme Court quashed an indictment against John Gooding for engaging in international slave trading, a violation of the Slave Trade Act of 1818. The Slave Trade Act of 1818 modified the penalties for engaging the in slave trading, and switched the burden of proof to the defendant, to disprove the presumption that the defendant had engaged in the slave trade. This article looks at how United States v. Gooding stands as a step backwards toward condoning and legitimizing the international slave trade. This paper also examines the moral relativism expressed in the United States’ …
Privacy, Police Power, And The Growth Of Public Power In The Early Twentieth Century: A Not So Unlikely Coexistence, Carol Nackenoff
Privacy, Police Power, And The Growth Of Public Power In The Early Twentieth Century: A Not So Unlikely Coexistence, Carol Nackenoff
Maryland Law Review
No abstract provided.
Legal Epistemologies, Howard Schweber
The Early Female Jewish Members Of The Maryland Bar: 1920–1929, Deborah Sweet Eyler
The Early Female Jewish Members Of The Maryland Bar: 1920–1929, Deborah Sweet Eyler
Maryland Law Review
No abstract provided.