Legal History Commons^™

The United States Constitution And Its History Through The Barristers And Political, Allen E. Shoenberger

Allen E Shoenberger

No abstract provided.

Introduction To The Theory Of Law: History And The Unity Of Legal Things, John Lunstroth

John Lunstroth

I propose a general theory of the law. I begin with the history of the western legal tradition. When tracing laws, or legal things, over long periods of time it is apparent that the positivist theory is inadequate to describe law. Natural law similarly fails to explain what is seen in the historical record. I suggest an historicist theory best describes the law when seen as a conceptual and historical whole. I then identify a fundamental break in the historical record, the Enlightenment, when the scientific worldview became dominant. The scientific gaze splits nature (including law) into two parts, moral …

Why Do Europeans Ban Hate Speech? A Debate Between Karl Loewenstein And Robert Post, Robert Kahn

Robert Kahn

European countries restrict hate speech, the United States does not. This much is clear. What explains this difference? Too often the current discussion falls back on a culturally rich but normatively vacant exceptionalism (American or otherwise) or a normatively driven convergence perspective that fails to address historical, cultural and experiential differences that distinguish countries and legal systems. Inspired by the development discourse of historical sociology, this article seeks to record instances where Americans or Europeans have argued their approach to hate speech laws was more “advanced” or “modern.”

To that end this article focuses on two authors whose writing appears …

Costs Of Codification, Dru Stevenson

Dru Stevenson

Between the Civil War and World War II, every state and the federal government shifted toward codified versions of their statutes. Academia has so far ignored the systemic effects of this dramatic change. For example, the consensus view in the academic literature about rules and standards has been that precise rules present higher enactment costs for legislatures than would general standards, while vague standards present higher information costs for courts and citizens than do rules. Systematic codification – featuring hierarchical format and numbering, topical arrangement, and cross-references – inverts this relationship, lowering transaction costs for legislatures and increasing information costs …

The Second Amendment´S Fixed Meaning And Multiple Purposes, Thiago L. B. Sturzenegger

Thiago L. B. Sturzenegger

The Second Amendment’s Fixed Meaning and Multiple Purposes

The faith to the Constitution’s textual meaning may provide the interpreter with the ability to perceive the adaptability of a constitutional provision to different social and political contexts. The text of the Constitution refers to principles of law; principles that are indispensable in different ways throughout time. Textualism as a constitutional interpretation model may offer the path to a more versatile Constitution.

To support this statement, this work examines the cases in which the Supreme Court interpreted the Second Amendment to the Constitution. The focal point of interest is the uses of …

The Risky Interplay Of Tort And Criminal Law: Punitive Damages, Daniel M. Braun

Daniel M Braun

The rise of modern mass tort litigation in the U.S. has transformed punitive damages into something of a “hot button” issue. Since the size of punitive damage awards grew so dramatically in the past half century, this private law remedy has begun to involve issues of constitutional rights that traditionally pertained to criminal proceedings. This has created a risky interplay between tort and criminal law, and courts have thus been trying to find ways to properly manage punitive damage awards. The once rapidly expanding universe of punitive damages is therefore beginning to contract. There remain, however, very serious difficulties. Despite …

E Pluribus Unum: Liberalism's March To Be The Singular Influence On Civil Rights At The Supreme Court, Aaron J. Shuler

Aaron J Shuler

Rogers Smith writes that American political culture can best be understood as a blend of liberal, republican and illiberal ascriptive ideologies. The U.S. Supreme Court’s constitutional jurisprudence has largely reflected this thesis. While the Court moved away from permitting laws that explicitly construct hierarchies in the 20th century and made tepid references to egalitarian principles during the Warren Court, liberalism has prevailed in the majority of the Court’s decisions. Gains in civil rights through the Fourteenth Amendment’s Equal Protection and Substantive Due Process clauses were achieved primarily through liberal notions of de-regulation, a market economy and individual freedom. Conversely, State …

Sex, Drugs, Alcohol, Gambling, And Guns: The Synergistic Constitutional Effects, David B. Kopel, Trevor Burrus

David B Kopel

In this Article, we discuss the synergistic relationship between the wars‖ on drugs, guns, alcohol, sex, and gambling, and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general police power‖ to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex have encroached on the police powers traditionally reserved to the states.

Congress‘s infringement of the States‘ powers over the health, safety, welfare, and …

Willful [Color-] Blindness: The Supreme Court's Equal Protection Of Ascription, Aaron J. Shuler

Aaron J Shuler

Rogers Smith in his "Beyond Tocqueville, Myrdal and Hartz: The Multiple Traditions in America," warns of novel legal systems reconstituting ascriptive American inequality. The post-Warren Courts' approach to Equal Protection, specifically their unwillingness to consider disparate impact and the difference between invidious and benign practices, betrays an "ironic innocence" as described by James Baldwin to a history of racial discrimination and domination, and a disavowal of a hiearchy that the Court perpetuates.

The Great Gun Control War Of The Twentieth Century--And Its Lessons For Gun Laws Today, David B. Kopel

David B Kopel

A movement to ban handguns began in the 1920s in the Northeast, led by the conservative business establishment. In response, the National Rifle Association began to get involved in politics, and was able to defeat handgun prohibition. Gun control and gun rights became the subjects of intense political, social, and cultural battles for much of the rest of the 20th century, and into the 21st.

Often, the battles were a clash of absolutes: One side contended that there was absolutely no right to arms, that defensive gun ownership must be prohibited, and that gun ownership for sporting purposes could be, …

The Tenuous Case For Conscience, Steven D. Smith

Steven D. Smith

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …

Emerging Models For Alternatives To Marriage, Sanford N. Katz

Sanford N. Katz

Perhaps one of the most important changes in family law in the past thirty years has been the inclusion of certain kinds of friendships in the range of relationships from which rights and responsibilities can flow. Domestic partnership laws, a phenomenon of the 1990s, may be seen as a natural development from the judicial recognition of contract cohabitation and the legislative and judicial response to same-sex couples who, unable to meet statutory requirements for marriage, have sought official recognition of their relationships. This essay discusses an aspect of certain kinds of domestic partnership laws-their formal requirements and the extent to …

Collective Choice, Justin Schwartz

Justin Schwartz

This short nontechnical article reviews the Arrow Impossibility Theorem and its implications for rational democratic decisionmaking. In the 1950s, economist Kenneth J. Arrow proved that no method for producing a unique social choice involving at least three choices and three actors could satisfy four seemingly obvious constraints that are practically constitutive of democratic decisionmaking. Any such method must violate such a constraint and risks leading to disturbingly irrational results such and Condorcet cycling. I explain the theorem in plain, nonmathematical language, and discuss the history, range, and prospects of avoiding what seems like a fundamental theoretical challenge to the possibility …

Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, David B. Kopel, Gary Lawson

David B Kopel

In "Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform," Professor Andrew Koppelman concludes that the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is constitutionally authorized as a law "necessary and proper for carrying into Execution" other aspects of the PPACA. However, the Necessary and Proper Clause rather plainly does not authorize the individual mandate. The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must …

The Corporation As Imperfect Society, Brian M. Mccall

Brian M McCall

Corporations are ubiquitous in modern society. They pervade every aspect of our life, consumer, professional, investment activity. Probably, people have more contact with corporations on a daily basis than any other institution, including government. From the South Sea Bubble to the Stock market Crash of 1929 to Enron to General Motors and Countrywide Mortgage, corporate scandals and controversies invite fundamental questions about corporate law. This article attempts to bring a fresh perspective to the question: “what is a corporation and how should the law treat it?” The article articulates a corporate metaphysics rooted in political philosophy. The dominant models of …

Pearson, Iqbal, And Procedural Judicial Activism, Goutam U. Jois

Goutam U Jois

In its most recent term, the Supreme Court decided Pearson v. Callahan and Ashcroft v. Iqbal, two cases that, even at this early date, can safely be called “game-changers.” What is fairly well known is that Iqbal and Pearson, on their own terms, will hurt civil rights plaintiffs. A point that has not been explored is how the interaction between Iqbal and Pearson will also hurt civil rights plaintiffs. First, the cases threaten to catch plaintiffs on the horns of a dilemma: Iqbal says, in effect, that greater detail is required to get allegations past the motion to dismiss stage. …

New Governance In The Teeth Of Human Frailty: Lessons From Financial Regulation, Cristie L. Ford

Cristie L. Ford

New Governance scholarship has made important theoretical and practical contributions to a broad range of regulatory arenas, including securities and financial markets regulation. In the wake of the global financial crisis, question about the scope of possibilities for this scholarship are more pressing than ever. Is new governance a full-blown alternative to existing legal structures, or is it a useful complement? Are there essential preconditions to making it work, or can a new governance strategy improve any decision making structure? If there are essential preconditions, what are they? Is new governance “modular” – that is, does it still confer benefits …

Principles-Based Securities Regulation In The Wake Of The Global Financial Crisis, Cristie L. Ford

Cristie L. Ford

This paper seeks to re-examine, and ultimately to restate the case for, principles-based securities regulation in light of the global financial crisis and related developments. Prior to the onset of the crisis, the concept of more principles-based financial regulation was gaining traction in regulatory practice and policy circles, particularly in the United Kingdom and Canada. The crisis of course cast financial regulatory systems internationally, including more principles-based approaches, into severe doubt. This paper argues that principles-based securities regulation as properly understood remains a viable and even necessary policy option, which offers solutions to the real-life and theoretical challenge that the …

The Failure Of Adversary Process In The Administrative State, Bryan T. Camp

Bryan T Camp

In a series of hearings in 1997 and 1998, Congress heard allegations that the Internal Revenue Service (“IRS” or “Service”) was abusing taxpayers during the process of collecting taxes. The resulting distrust of the tax bureaucracy led Congress to create a special adversary proceeding providing for judicial review of IRS collection decisions. The proceeding is beguilingly titled “Collection Due Process” (and commonly referred to as “CDP”). My study of CDP’s structure, operation, and of 976 court decisions issued through the end of 2006 demonstrates that it has failed to fulfill its promise. Of the over 15 million collection decisions made …

A Commentary On The Old Saw That Same-Sex Marriage Threatens Civilization, Ronald L. Steiner

Ronald L. Steiner

Discussions of same-sex marriage frequently entertain the notion that civilization is somehow at stake were a society to award legal sanction to it, and to gay rights more generally. Typically, those who express concern for negative civilizational consequences have in mind Western civilization, and more specifically Christian civilization. This civilizational concern will often be amplified by the implication that opposite-sex, or opposite-sex monogamous marriage is a timeless human universal. Any other marital regime is presumed to be an aberration, most likely the result of grave moral depravity of a sort supposedly facilitated by the modern rights-based society. This chapter subjects …

Constituting Vanuatu: Societal, Legal And Local Perspectives,, Benedict Sheehy, Jackson Maogoto

Benedict Sheehy

Governance in Vanuatu has been a source of concern for Australia as it forms part of Australia’s ‘Arc of Instability.’ Vanuatu has adopted a modified Westminster system as that system is often advocated as the model for constitutions and governance around the world. In various former colonies local populations were expected to simply absorb its liberal democratic principles apparently on some assumption that such principles were an innate part of human nature. Most readings of history would come to a different conclusion. Vanuatu illustrates this error and the complexities of a society that not only creates a broad challenge for …

Public Power And Private Purpose: Odious Debt And The Political Economy Of Hegemony, Deborah M. Weissman, Louis A. Pérez Jr.

Deborah M. Weissman

This Article examines the process by which overlapping interests between private bankers and government translates into influence and power mediated through the use of bank loans as instruments of foreign policy. The article suggests the market transactions often act as a matter of U.S. interests. It makes use of historical narratives not only as means to document the origins of the Odious Debt doctrine, but also to demonstrate the complexity attending efforts to create an Odious Debt doctrine that might function in law. The International Lending Supervision Act, the Baker plan and Brady initiative - policies reinforced through legal interpretations, …

The Human Rights Dilemma: Rethinking The Humanitarian Project, Deborah M. Weissman

Deborah M. Weissman

This Article provides an interpretive account of the human rights discourse at a time when the U.S. legal community is deepening its relationship with these issues. It maps the context of the human rights project over the past one hundred years, with a critical eye and as a cautionary tale. It reviews the historical circumstances and the ideological framework in which human rights have been appropriated as an instrument of national policy, often to the detriment of humanitarian objectives. It considers the role of law, not only as an instrument by which colonial rule was maintained but as a system …

Relativism, Reflective Equilibrium, And Justice, Justin Schwartz

Justin Schwartz

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS.

The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into …

The Paradox Of Ideology, Justin Schwartz

Justin Schwartz

A standard problem with the objectivity of social scientific theory in particular is that it is either self-referential, in which case it seems to undermine itself as ideology, or self-excepting, which seem pragmatically self-refuting. Using the example of Marx and his theory of ideology, I show how self-referential theories that include themselves in their scope of explanation can be objective. Ideology may be roughly defined as belief distorted by class interest. I show how Marx thought that natural science was informed by class interest but not therefore necessarily ideology. Capitalists have an interest in understanding the natural world (to a …

Functional Explanation And Metaphysical Individualism, Justin Schwartz

Justin Schwartz

A number of (present or former) analytical Marxists, such as Jon Elster, have argued that functional explanation has almost no place in the social sciences. (Although the discussion is framed in terms of a debate among analytical Marxists, the point is quite general, and Marxism is used for illustrative purposes.) Functional explanation accounts for what is to be explained by reference to its function; thus, sighted organism have eyes because eyes enable them to see. Elster and other critics of functional explanation argue that this pattern of explanation is inconsistent with "methodological individualism," the idea, as they understand it, that …