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Articles 1 - 7 of 7
Full-Text Articles in Legal History
Rethinking Legislative Facts, Haley N. Proctor
Rethinking Legislative Facts, Haley N. Proctor
Notre Dame Law Review
As the factual nature of legal inquiry has become increasingly apparent over the past century, courts and commentators have fallen into the habit of labeling the facts behind the law “legislative facts.” Loosely, legislative facts are general facts courts rely upon to formulate law or policy, but that definition is as contested as it is vague. Most agree that legislative facts exist in some form or another, but few agree on what that form is, on who should find them, and how. This Article seeks to account for and resolve that confusion. Theories of legislative fact focus on the role …
Pretrial Commitment And The Fourth Amendment, Laurent Sacharoff
Pretrial Commitment And The Fourth Amendment, Laurent Sacharoff
Notre Dame Law Review
Today, the Fourth Amendment Warrant Clause governs arrest warrants and search warrants only. But in the founding era, the Warrant Clause governed a third type of warrant: the “warrant of commitment.” Judges issued these warrants to jail defendants pending trial. This Article argues that the Fourth Amendment Warrant Clause, with its oath and probable cause standard, should be understood today to apply to this third type of warrant. That means the Warrant Clause would govern any initial appearance where a judge first commits a defendant—a process that currently falls far short of fulfilling its constitutional and historical function. History supports …
The Gift Of Milner Ball, Thomas L. Shaffer
The Gift Of Milner Ball, Thomas L. Shaffer
Journal Articles
My friend and teacher Milner Ball speaks of the law as "systemic injustice." I find that a bit harsh and tend instead toward a way of looking at injustice that comes from the equally melancholy reflections of Robert E. Rodes, Jr., also my friend—my colleague, too—and also my teacher (in two senses, including the I-once-paid-tuition sense). Bob Rodes has noticed injustice as much as Milner has, but Bob, who tends to be an Erastian, would say it is not the law that is the source of injustice; it is not even the "system"; it is lawyers who are the source …
David Hoffman's Law School Lectures, 1822-1833, Thomas L. Shaffer
David Hoffman's Law School Lectures, 1822-1833, Thomas L. Shaffer
Journal Articles
The Baltimore lawyer and teacher David Hoffman (1784-1854), the father of American legal ethics, was also the first of the systematic American legal educators. He held one of the first appointments in this country as a university law professor (at the University of Maryland, 1814-43) and wrote the first American outline of the study of law. Joseph Story, in a contemporary review of the 1817 Course, called Hoffman's work "an honour to our country[,] . . . by far the most perfect system for the study of the law that has ever been offered to the public. " Chancellor James …
Learning The Law-Thoughts Toward A Human Perspective, Thomas L. Shaffer, Robert S. Redmount
Learning The Law-Thoughts Toward A Human Perspective, Thomas L. Shaffer, Robert S. Redmount
Journal Articles
The history of American legal education is notable for a sparsity of ideas on how to convey learning about law. There has been even less focal understanding of what learning is and what it takes to establish a process which will prepare lawyers for their profession. A window on this history was provided in historical survey by Alfred Z. Reed in 1921 and, more recently, by Professors Preble Stolz and Calvin Woodward. It is principally their accounts of eighteenth and nineteenth century developments that we here briefly integrate and summarize. The perspective-a consideration of legal education in terms of social …
Some Professorial Fallacies About Rights, John M. Finnis
Some Professorial Fallacies About Rights, John M. Finnis
Journal Articles
Why do students usually get into a muddle when analysing legal situations in Hohfeldian terms? What is the use of trying to straighten out the muddles, and of teaching Hohfeldian analysis at all? The short answer to the first question is that Hohfeld was clear-headed in applying his scheme, but because of his writing style and his odd views about definition was regrettably gnomic about the meaning and inter-relations of the terms of that scheme. The short answer to the second question is that clear-headed familiarity with Hohfeld's scheme can bring with it an awareness of the questions regularly begged …
History Of The Notre Dame College Of Law, Thomas Frank Konop
History Of The Notre Dame College Of Law, Thomas Frank Konop
Journal Articles
In the summer of 1868 the Board of Trustees of the University passed a resolution "for the opening of a course in law at Notre Dame." At that time there were very few law schools in the country and the profession was almost wholly recruited from the law-offices. As a matter of fact there was great doubt among the lawyers at that time as to the advisability and the possibility of acquiring training for the bar at a university. There were even prejudices at that time against the study of law at law schools. It was during such doubts and …