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Articles 1 - 30 of 49
Full-Text Articles in Legal History
The Fugazi Second Amendment: Bruen's Text, History, And Tradition Problem And How To Fix It, Patrick J. Charles
The Fugazi Second Amendment: Bruen's Text, History, And Tradition Problem And How To Fix It, Patrick J. Charles
Cleveland State Law Review
This Article critiques the Supreme Court’s use of text, history, and tradition in New York Rifle & Pistol Association, Inc. v. Bruen. In doing so, not only is the Supreme Court’s approach to history-in-law in Bruen called into question, but also the Article provides the courts with an historically objective and even-keeled ‘way-ahead’ for future Second Amendment cases and controversies.
The Role Of Law In U.S. History Textbooks, Russ Versteeg
The Role Of Law In U.S. History Textbooks, Russ Versteeg
Cleveland State Law Review
This Article analyzes the references to law found in three standard U.S. History textbooks: (1) ALAN BRINKLEY, AMERICAN HISTORY CONNECTING WITH THE PAST 745 (McGraw-Hill Educ., 15th ed. 2015); (2) ERIC FONER, GIVE ME LIBERTY! AN AMERICAN HISTORY 461 (Steve Forman et al. eds., 5th ed. 2017); and (3) DAVID GOLDFIELD ET AL., THE AMERICAN JOURNEY: A HISTORY OF THE UNITED STATES (7th ed. Combined vol. 2014, 2011, 2008). The Article includes a quantitative analysis of topics (i.e., tabulating the topics that appear most frequently in the texts arranged chronologically) as well as summaries of those topics. It also discusses …
The Faces Of The Second Amendment Outside The Home, Take Three: Critiquing The Circuit Courts Use Of History-In-Law, Patrick J. Charles
The Faces Of The Second Amendment Outside The Home, Take Three: Critiquing The Circuit Courts Use Of History-In-Law, Patrick J. Charles
Cleveland State Law Review
This article seeks to critique the circuit courts’ varying history-in-law approaches, as well as to provide advice on the proper role that history-in-law plays when examining the scope of the Second Amendment outside the home. This article sets forth to accomplish this task in three parts. Part I argues why history-in-law is appropriate when adjudicating Second Amendment decisions outside the home. Part II examines the benefits and burdens of utilizing history-in-law as a method of constitutional interpretation, while breaking down the alternative approaches employed by circuit courts when adjudicating Second Amendment decisions outside the home. Lastly, Part III offers practical …
Inseparable: Perspective Of Senator Daniel Webster, Ernest M. Oleksy
Inseparable: Perspective Of Senator Daniel Webster, Ernest M. Oleksy
The Downtown Review
Considering the hypersensitivity that their nation has towards race relations, it is often ineffable to contemporary Americans as to how anyone could have argued against abolition in the 19th century. However, by taking the perspective of Senator Daniel Webster speaking to an audience of disunionist-abolitionists, proslaveryites, and various shades of moderates, numerous points of contention will be brought to light as to why chattel slavery persisted so long in the U.S. Focal points of dialogue will include the Narrative of Frederick Douglass, the "positive good" claims of Senator John C. Calhoun, the disunionism of William Lloyd Garrison, and the defense …
Teaching American Legal History In A Law School, Peter D. Garlock
Teaching American Legal History In A Law School, Peter D. Garlock
Law Faculty Articles and Essays
Professor Peter Garlock describes his legal history course.
Justice William J. Brennan, Jr., James Wilson, And The Pursuit Of Equality And Liberty, Deborah A. Roy
Justice William J. Brennan, Jr., James Wilson, And The Pursuit Of Equality And Liberty, Deborah A. Roy
Cleveland State Law Review
This Article analyzes the jurisprudence of one of the most transformative Supreme Court Justices, William J. Brennan, Jr., from the perspective of his vision that the United States Constitution is founded on Human Dignity. Justice Brennan expressed this principle in his opinions that advanced the realization of individual rights for each and every American. The principle of human dignity invokes the values of equality and liberty. The article shows that Justice Brennan traced the principle of human dignity back to the Founding Fathers and the constitutional government that they established. Rather than being unhinged from the Constitution as his critics …
The Founders And Slavery, Arthur R. Landever
The Founders And Slavery, Arthur R. Landever
Law Faculty Presentations and Testimony
The point of my talk is that our founders, who our tradition praises profusely of course, as men on Mount Olympus, had moral blinders on. I'm going to talk about key founders. Then I'm going to talk about the key English case, decided in 1772, Somerset v. Stuart. Then I'm going to talk about the Compromises of the 1770s and 1780s. Then I'm going to talk about what we can and can't learn from history. Then I'm going to consider what our generation is doing in the 21st century, considering what might shock our own descendants, two hundred years from …
Race, Nation-Building And Legal Transculturation During The Haitian Unification Period (1822-1844): Towards A Dominican Perspective, Charles R. Venator Santiago
Race, Nation-Building And Legal Transculturation During The Haitian Unification Period (1822-1844): Towards A Dominican Perspective, Charles R. Venator Santiago
Cleveland State Law Review
This paper offers some preliminary reflections on the relationship between law, race, and nation building during the Haitian unification period. My contention is that, while the Haitian occupation can be described as a domination of Santo Domingo, it is also possible to discern some important ways in which Dominicans benefited from this relationship. More importantly, I suggest that there are some important moments where Dominicans participate in the Haitian nation building process. This paper also draws on a critical reading of Fernando Ortiz's notion of legal transculturation as articulated in his book, Cuban Counterpoint, to reflect on the multiple clashes …
When Literature Becomes Law: An Example From Ancient Greece, Mark J. Sundahl
When Literature Becomes Law: An Example From Ancient Greece, Mark J. Sundahl
Law Faculty Articles and Essays
The subject of this paper is the peculiar Athenian law, generally referred to as the Testamentary Law, which permitted a will to be invalidated if a jury determined that the testator composed the will while "under the influence of a woman" (in the original Greek, gunaiki peithomenos). While scholars have long argued that the progressive ideas of the archaic poets of ancient Greece inspired political change - such as the emergence of democracy in Athens - this paper makes an even stronger claim regarding the connection between law and literature in ancient Greece. This paper proposes that Solon, the famous …
Who Was William Marbury?, David F. Forte
Who Was William Marbury?, David F. Forte
Law Faculty Articles and Essays
Of all the disappointed office seekers in American history, only William Marbury has been so honored as to have his portrait hung in the chambers of the United States Supreme Court alongside that of James Madison. The two titular protagonists to the Marbury v. Madison dispute had no idea that their original contretemps would ever find its way to litigation, let alone eventual mythic significance as the foundation stone of judicial review.
Life, Death And The Law - And Why Capital Punishment Is Legally Insupportable , Peter Fitzpatrick
Life, Death And The Law - And Why Capital Punishment Is Legally Insupportable , Peter Fitzpatrick
Cleveland State Law Review
Given that law has an integral commitment to life, in this lecture I want to show how the law should manifest something of a fundamental dissonance, even a terminal incoherence, when law is called upon to deal death. That is what happens in the judicial discourse on the death penalty in the United States. I will approach this demonstration in a way that may at first seem paradoxical, in a way that will bring out the deep affinity between law and death. That affinity is one in which death is, in a sense, the limit of law; a limit that …
Spiritual Equality, The Black Codes, And The Americanization Of The Freedmen, David F. Forte
Spiritual Equality, The Black Codes, And The Americanization Of The Freedmen, David F. Forte
Law Faculty Articles and Essays
The notion of spiritual equality grew from the abolitionist movement - the precursor for the political ideology of the radical Republicans. The radical Republicans did not think one could achieve the acceptance of spiritual equality through forced material equality. [I]t was a religious revival that brought our country to confront the reality of slavery. It was a theological doctrine from which we derived our notion of equality in the Reconstruction Amendments. And in that era, the free-thinkers - the secularists of the age - were temporizers on the issue. They were simply of no use in the raising to liberty …
Suspending The Rule Of Law - Temporary Immunity As Violative Of Montesquieu's Republican Virtue As Embodied In George Washington, Joseph P. Rodgers
Suspending The Rule Of Law - Temporary Immunity As Violative Of Montesquieu's Republican Virtue As Embodied In George Washington, Joseph P. Rodgers
Cleveland State Law Review
This Note offers a somewhat unique perspective on the notion of clemency. This inquiry contemplates the merit of temporary immunity from civil suits for acts which eventuated outside the scope of one's official responsibilities and argues that such an unprecedented expansion of civil immunity is antithetical to Montesquieu's conception of public virtue as evinced in The Spirit of Laws. This Note also reflects on the iconic role of Washington at the Constitutional Convention as emblematic of quintessential republican virtue. Part II briefly traces the evolution of absolute, qualified, and temporary immunity from an historical perspective. Part III acclimates the reader …
Challenges In Judging: Some Insights From The Writings Of Moses, Gordon J. Beggs
Challenges In Judging: Some Insights From The Writings Of Moses, Gordon J. Beggs
Cleveland State Law Review
Starting with the idea that Judeo-Christian principles played a significant role in the development of American legal ethics, the author uses the writings of Moses as a lens to examine some challenges in judging. Moses authored the first five books of the Old Testament known as the Pentateuch or books of the law-Genesis, Exodus, Leviticus, Numbers, and Deuteronomy. The author begins by suggesting a caveat and an approach to interpretation. When examining the writings of Moses, we are not necessarily seeking a literal application. He suggests instead, that when looking at the writings of Moses, three questions should be answered: …
Marbury's Travail: Federalist Politics And William Marbury's Appointment As Justice Of The Peace, David F. Forte
Marbury's Travail: Federalist Politics And William Marbury's Appointment As Justice Of The Peace, David F. Forte
Law Faculty Articles and Essays
This Article describes how Marbury, the youngest son of an impoverished remnant of a well-known family, elbowed his way to wealth and influence among the Maryland gentry. Further, this Article illuminates Marbury's choice between the two wings of the Federalist party in Maryland - the Hamiltonian elite and the Adams' loyalists - and how Marbury's partisan service brought him to a position earning Thomas Jefferson's disdain and rebuff. In the end, Marbury's appointment and rejection derived from the very different characters of John Adams and Thomas Jefferson.
The Struggle Over The Past, Robert W. Gordon
The Struggle Over The Past, Robert W. Gordon
Cleveland State Law Review
History supplies a set of basic ground rules; the "traditional principles of the common law," from which much modem law, both judge-made and statutory law, is seen as having improperly deviated. As the New Right ideology spreads among elite decision-makers and intellectuals, it poses a serious challenge to the Progressive-liberal consensus about the legal meanings of history that had previously dominated American legal thought for a very long time. The historical claims of New Right ideology in particular have touched off a number of fierce debates among Old (Progressive) Liberal, New Right, and radical legal intellectuals. In Section II, the …
The Seventeenth-Century Revolution In The English Land Law, Charles J. Reid Jr.
The Seventeenth-Century Revolution In The English Land Law, Charles J. Reid Jr.
Cleveland State Law Review
It is the purpose of this Article to explore systematically the creation of the new system of land law in the seventeenth century. The Article opens with a brief introduction to some of the major events of the seventeenth century to assist readers unfamiliar with this period. Successive sections will then treat the abolition of the feudal tenures and the adoption of socage tenure, the defeat of copy hold and the triumph of the enclosure movement, the creation of the rule against perpetuities and the strict settlement, and the creation of the modem trust and mortgage instruments.
The Responsibility Of Lawyers To Challenge Injustice, Geoff Budlender
The Responsibility Of Lawyers To Challenge Injustice, Geoff Budlender
Cleveland State Law Review
Jotham Zwane is a respected community leader in Amsterdam, a small country town in South Africa. I could talk for a long time about the truly remarkable Jotham Zwane and his experiences. But in the present context, what is particularly striking about this part of his story is what it tells us about lawyers and their responsibilities. In the first place, the story reminds us of the classic role of the lawyer: to stand between the individual and the state. The second lesson which emerges from the story is a question about the role of lawyers in an unjust system. …
The Justice Mission Of American Law Schools, David Barnhizer
The Justice Mission Of American Law Schools, David Barnhizer
Cleveland State Law Review
Justice has been seen by many scholars as a premise about which much can be said but virtually nothing either proved or disproved through the application of the methodologies that provide the grounding for science. While justice is undeniably representative of a slippery and evasive set of concepts, it paradoxically reflects the fundamental values of Western society without which we cannot hold together the thin tissue of political organization that we call the "Rule of Law." As is described in the latter part of this article, justice is in fact a simple meta-principle, one about which we need not be …
The Matrix Of The Common Law, George L. Haskins
The Matrix Of The Common Law, George L. Haskins
Cleveland State Law Review
Great men have admonished us never to forget the continuing relevance of history in the Anglo-American legal system. We are cautioned to remember that the highly individualistic character of much of our law is explained by its Germanic rather than its Roman roots and, further, that the Anglo-American system has built upon countervailing concepts of relationships which are feudal in origin, and to which rights and duties attach without regard to the will of individuals, which is the underlying principle of classical Roman law. Thus, in our law, powers, rights, and duties stem from relationships such as principal-agent, vendor-purchaser, landlord-tenant …
Natural Law And Legal Reasoning Natural Law, John Finnis
Natural Law And Legal Reasoning Natural Law, John Finnis
Cleveland State Law Review
In sum: Much academic theory about legal reasoning greatly exaggerates the extent to which reason can settle what is greater good or lesser evil, and minimizes the need for authoritative sources which, so far as they are clear and respect the few absolute moral rights and duties, are to be respected as the only rational basis for judicial reasoning and decision, in relation to the countless issues which do not directly involve those absolute rights and duties. A natural law theory in the classical tradition makes no pretense that natural reason can determine the one right answer to those countless …
A Critical Legal Studies Perspective, Mark Tushnet
A Critical Legal Studies Perspective, Mark Tushnet
Cleveland State Law Review
In this comment I want to address two points suggested by Professor Finnis's essay "Natural Law and Legal Reasoning." I say "suggested by" deliberately, for I do not want to attribute the points in their full force to him, although I believe that his essay lends itself to a reading in which those points would be given their full force. The points deal with the question of "easy questions" and what Professor Finnis calls the "sufficient and necessarily artificial clarity and definiteness" that yields answers to such questions, and with the way in which legal professionals are likely to understand …
Whose Nature - Practical Reason And Patriarchy, Lynne Henderson
Whose Nature - Practical Reason And Patriarchy, Lynne Henderson
Cleveland State Law Review
My comments on John Finnis's Natural Law and Legal Reasoning grow out my concern about the relationship of law to authoritarianism. In this comment, I do not intend to go deeply into the relationship of law to authoritarianism but rather to sketch out the background of the argument. It seems to me that authoritarianism, properly understood, is of great relevance to a symposium on jurisprudence and legal reasoning, because at a minimum, authoritarianism overlaps with legality's ethic of rule-following and obedience to authority. Authoritarian attitudes about authority and morality also are relevant to the jurisprudential concern with the relation of …
Incommensurable Values, Rational Choice, And Moral Absolutes, David Luban
Incommensurable Values, Rational Choice, And Moral Absolutes, David Luban
Cleveland State Law Review
My comments in this paper are directed to just one argument, or rather one cluster of arguments, deployed by John Finnis in just three pages of Natural Law and Legal Reasoning. I am referring to Finnis's argument that the goods and bad at stake in legal, moral and political choice are incommensurable, and to the conclusions he draws from this argument. I will argue that while the incommensurability thesis is true, that is so for reasons somewhat different than those Finnis advances (section I); that in its most common form the incommensurability thesis does not in all cases imply the …
The Virtues Of Redundancy In Legal Thought, Randy E. Barnett
The Virtues Of Redundancy In Legal Thought, Randy E. Barnett
Cleveland State Law Review
Redundancy has a bad reputation among legal intellectuals. My interest in the virtues of redundancy grows out of my interest in the social function of the liberal conception of justice and the rule of law. In this essay, I propose that legal theorists pay serious attention to the concept of redundancy used by engineers. I explain how redundancy-in this special sense-is essential to any intellectual enterprise in which we try to reach action-guiding conclusions, including the enterprise of law. I will describe the virtues of redundancy in legal thought. I want to explain why it is useful to rely on …
Natural Law As Practical Methodology: A Finnisian Analysis Of City Of Richmond V. J. A. Croson, Co., David Barnhizer
Natural Law As Practical Methodology: A Finnisian Analysis Of City Of Richmond V. J. A. Croson, Co., David Barnhizer
Cleveland State Law Review
The first part of this article examines some of the main features of Finnis's theory of natural law. It suggests that Finnis offers a "soft" theory of natural law anchored in a richer and more realistic conception of human nature than has generally characterized natural law theory. It brings forth the role of Aristotelian practicality in Finnis's thinking. Finally, the first part of the article discusses the roles of what Finnis calls basic human goods, attempting to suggest how the particular basic human goods he advances intuitively provide an important component of a framework for a more realistic variety of …
Justification In The Killing Of An Innocent Person, John Makdisi
Justification In The Killing Of An Innocent Person, John Makdisi
Cleveland State Law Review
It is appropriate to call Finnis' approach to life as an incommensurable basic human good a natural law approach. It suggests that there is more to life than just an accumulation of wealth, happiness, value, etc. There is something about life that we cannot value, that we cannot measure, that we cannot fathom, that is mysterious. While contract and even some tort law are readily adaptable to arguments of economic efficiency, there are areas where such arguments do not belong. Specifically, where the end result cannot be measured because the values at stake are incommensurable, there may be no best …
The Rule Of Law And The Rule Of Laws, David F. Forte
The Rule Of Law And The Rule Of Laws, David F. Forte
Cleveland State Law Review
The thesis of this article is that, for the Rule of Law to be maintained in a modern technological society, the legal system must affirmatively tolerate a range of justifiable non-compliance. I begin with a rather strong definition of the Rule of Law, one that encompasses not merely the procedural desiderata of Lon Fuller, but also the notion that the Rule of Law has a substantive content (the common good) and that it necessarily binds the rulers as well as the ruled. I posit as an opposite phenomenon to the Rule of Law, the rule of laws, or the term …
Natural Law Without Metaphysics: The Case Of John Finnis, Jeremy Shearmur
Natural Law Without Metaphysics: The Case Of John Finnis, Jeremy Shearmur
Cleveland State Law Review
Finnis, in Natural Law and Natural Right, sidesteps certain problems by taking a largely internalist view of natural law. First, for Finnis there is no problem of moving from facts to values, because within his starting-point-the "internal" reflective analysis of action-values are already there to be found. Second, Finnis suggests that what is today often cited as "the" statement of a fact/value problem, Hume's analysis, is in fact better understood as directed towards a different problem: one of the relation between truth and motivation. Here Finnis also offers a solution, suggesting that "one is motivated according to one's understanding of …
Allocating Risks And Suffering: Some Hidden Traps, John Finnis
Allocating Risks And Suffering: Some Hidden Traps, John Finnis
Cleveland State Law Review
The economic analysis of which Adam Smith is a principal founder is helpful in practical reasoning about problems of justice precisely insofar as it systematically calls attention to the side-effects of individual choices and actions and behavior. Still, it would be a mistake to conclude that we need only a more adequate account of the benefits and burdens up for distribution or allocation by those responsible for the common good or general fate. We need also to bear in mind what Smith did not forget and what economics does not comprehend, the requirements of commutative justice. To see this, we …