Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- University of Colorado Law School (50)
- University of Michigan Law School (50)
- University of Pennsylvania Carey Law School (23)
- Washington and Lee University School of Law (14)
- University of Pittsburgh School of Law (8)
-
- Columbia Law School (7)
- William & Mary Law School (7)
- Boston University School of Law (6)
- Roger Williams University (6)
- University of Maryland Francis King Carey School of Law (6)
- UIC School of Law (5)
- University of Baltimore Law (4)
- Fordham Law School (3)
- New York Law School (3)
- St. John's University School of Law (3)
- American University Washington College of Law (2)
- Duke Law (2)
- Emory University School of Law (2)
- Georgetown University Law Center (2)
- Texas A&M University School of Law (2)
- University at Buffalo School of Law (2)
- University of Georgia School of Law (2)
- University of Richmond (2)
- Wayne State University (2)
- Barry University School of Law (1)
- Cleveland State University (1)
- Georgia State University College of Law (1)
- Kutztown University (1)
- Liberty University (1)
- Maurer School of Law: Indiana University (1)
- Keyword
-
- United States Supreme Court (70)
- History (31)
- Constitutional law (26)
- Supreme Court (25)
- Legal history (20)
-
- Constitution (16)
- SCOTUS (15)
- Judicial review (13)
- Supreme Court of the United States (13)
- Congress (10)
- Constitutional interpretation (10)
- First Amendment (10)
- New Deal (9)
- Separation of powers (9)
- Federalism (8)
- Fifth Amendment (8)
- Fourteenth Amendment (8)
- Legal History (8)
- Tribal sovereignty (8)
- American Indian law (7)
- Civil rights (7)
- Jurisprudence (7)
- Miranda v. Arizona (7)
- Originalism (7)
- Confessions (6)
- Corporations (6)
- Custodial interrogations (6)
- Discrimination (6)
- Due Process Clause (6)
- Due process (6)
- Publication Year
- Publication
-
- Publications (50)
- Articles (44)
- All Faculty Scholarship (28)
- Faculty Scholarship (25)
- Scholarly Articles (14)
-
- Faculty Publications (9)
- Book Chapters (8)
- Reviews (6)
- UIC Law Open Access Faculty Scholarship (5)
- Other Publications (4)
- Law Faculty Scholarship (3)
- Life of the Law School (1993- ) (3)
- Scholarly Works (3)
- Articles in Law Reviews & Other Academic Journals (2)
- Faculty Articles (2)
- Georgetown Law Faculty Publications and Other Works (2)
- Journal Articles (2)
- Law Faculty Publications (2)
- Law Faculty Research Publications (2)
- Articles & Chapters (1)
- Articles, Chapters and Online Publications (1)
- Book Reviews (1)
- Calvert Undergraduate Research Awards (1)
- Court Briefs (1)
- English Department: Research for Change - Wicked Problems in Our World (1)
- Faculty Publications By Year (1)
- Faculty Works (1)
- Law Faculty Articles and Essays (1)
- Law School Building (1)
- Maryland Law Review Online (1)
Articles 1 - 30 of 232
Full-Text Articles in Legal History
The Past As A Colonialist Resource, Deepa Das Acevedo
The Past As A Colonialist Resource, Deepa Das Acevedo
Faculty Articles
Originalism’s critics have failed to block its rise. For many jurists and legal scholars, the question is no longer whether to espouse originalism but how to espouse it. This Article argues that critics have ceded too much ground by focusing on discrediting originalism as either bad history or shoddy linguistics. To disrupt the cycle of endless “methodological” refinements and effectively address originalism’s continued popularity, critics must do two things: identify a better disciplinary analogue for originalist interpretation and advance an argument that moves beyond methods.
Anthropology can assist with both tasks. Both anthropological analysis and originalist interpretation are premised on …
A Theory Of Federalization Doctrine, Gerald S. Dickinson
A Theory Of Federalization Doctrine, Gerald S. Dickinson
Articles
The doctrine of federalization—the practice of the U.S. Supreme Court consulting state laws or adopting state court doctrines to guide and inform federal constitutional law—is an underappreciated field of study within American constitutional law. Compared to the vast collection of scholarly literature and judicial rulings addressing the outsized influence Supreme Court doctrine and federal constitutional law exert over state court doctrines and state legislative enactments, the opposite phenomenon of the states shaping Supreme Court doctrine and federal constitutional law has been under-addressed. This lack of attention to such a singular feature of American federalism is striking and has resulted in …
Law Dean’S Letter Urges Confirmation Of Biden’S Historic Scotus Pick, Ketanji Brown Jackson, Angela Onwuachi-Willig
Law Dean’S Letter Urges Confirmation Of Biden’S Historic Scotus Pick, Ketanji Brown Jackson, Angela Onwuachi-Willig
Shorter Faculty Works
In a letter citing Black women’s underrepresentation on the federal bench, Angela Onwuachi-Willig, dean of the BU School of Law, and more than 200 other Black women law deans and professors urged the US Senate on Friday to confirm President Joe Biden’s nominee, Ketanji Brown Jackson, to the nation’s highest court “swiftly and with bipartisan support.”
Arthur A. Thomas: A Hero Of A Valet, Todd C. Peppers
Arthur A. Thomas: A Hero Of A Valet, Todd C. Peppers
Scholarly Articles
During his time on the Supreme Court, Justice Oliver Wendell Holmes Jr. was the beneficiary of adulation from his legal secretaries (today we refer to them as law clerks) and young legal scholars, like Felix Frankfurter and Harold Laski. While the Justice basked in the warm glow of their hero worship, he was quick to point out to them that “no man is a hero to his valet.” The phrase was not original to Holmes, although the expression sounds like it sprang from his clever mind. The underlying meaning is simple—the servant tending daily to his employer sees flaws and …
The Chief Justice And The Page: Earl Warren, Charles Bush, And The Promise Of Brown V. Board Of Education, Todd C. Peppers
The Chief Justice And The Page: Earl Warren, Charles Bush, And The Promise Of Brown V. Board Of Education, Todd C. Peppers
Scholarly Articles
In October Term 1954, the Supreme Court heard oral arguments regarding the implementation of the Brown decision. The resulting opinion is commonly referred to as “Brown II.” In his unanimous opinion, Chief Justice Earl Warren ordered local school districts to desegregate their schools “with all deliberate speed.” Supporters of immediate integration were dismayed by the vague language, which ultimately allowed southern states to use a variety of tactics to deliberately evade and resist the Court’s mandate that public schools be desegregated.
What has been forgotten in the discussion of Brown II and the “all deliberate speed” standard is that …
Gertrude Jenkins, Unplugged, Todd C. Peppers
Gertrude Jenkins, Unplugged, Todd C. Peppers
Scholarly Articles
Gertrude Jenkins worked for U.S. Chief Justice Harlan Fiske Stone until his death in 1946. Adept at multi-tasking, she also ran a boarding house to make more money. A position as a floating secretary was created for Jenkins at the Court, and she worked in other chambers as well as the Court library until October 1949, when she accepted a position in Justice Frankfurter’s chambers. Jenkins retired in August 1953.
Gertrude Jenkins’s letters neither shed light on the grand constitutional issues of her day nor provide insights into the justices’ jurisprudential views. They will not cause historians to radically reevaluate …
Law School News: Rwu Law Remembers Sarah Weddington 12/30/2021, Michael M. Bowden
Law School News: Rwu Law Remembers Sarah Weddington 12/30/2021, Michael M. Bowden
Life of the Law School (1993- )
No abstract provided.
The Future Of Securities Law In The Supreme Court, Adam C. Pritchard, Robert B. Thompson
The Future Of Securities Law In The Supreme Court, Adam C. Pritchard, Robert B. Thompson
Articles
Since the enactment of the first federal securities statute in 1933, securities law has illustrated key shifts in the Supreme Court’s jurisprudence. During the New Deal, the Court’s securities law decisions shifted almost overnight from open hostility toward the newly-expanded administrative state to broad deference to agency expertise. In the 1940s, securities cases helped build the legal foundation for a broadly enabling administrative law. The 1960s saw the Warren Court creating new implied rights of action in securities law illustrative of the Court’s approach to statutes generally. The stage seemed set for the rise of “federal corporate law.” The Court …
Law School News: Logan Article Central To Scotus Dissent, Roger Williams University School Of Law
Law School News: Logan Article Central To Scotus Dissent, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Corruption In Capsules: How It Is Legal For Companies To Put Harmful Ingredients In Vitamins And Dietary Supplements, Emily Leggiero
Corruption In Capsules: How It Is Legal For Companies To Put Harmful Ingredients In Vitamins And Dietary Supplements, Emily Leggiero
English Department: Research for Change - Wicked Problems in Our World
The vitamin and supplement industry has increased exponentially in profits as well as potential products on the market since the turn of the century. However, these products are not regulated, nor do they undergo any premarket clinical research or testing. Public health is compromised by vitamins and supplements that are available for American consumption that is disproportionately unregulated to their chemically similar counterparts. This wicked problem is facilitated through the combination of historical legislative definitions that has since been distorted for corrupt administrative gain through the allotment of corporate expenditures. Company disbursements are made to the same policymakers that create …
2nd Annual Women In Law Leadership Lecture: A Fireside Chat With Debra Katz, Esq. 03-03-2021, Roger Williams University School Of Law
2nd Annual Women In Law Leadership Lecture: A Fireside Chat With Debra Katz, Esq. 03-03-2021, Roger Williams University School Of Law
School of Law Conferences, Lectures & Events
No abstract provided.
Before And After Hinckley: Legal Insanity In The United States, Stephen J. Morse
Before And After Hinckley: Legal Insanity In The United States, Stephen J. Morse
All Faculty Scholarship
This chapter first considers the direction of the affirmative defense of legal insanity in the United States before John Hinckley was acquitted by reason of insanity in 1982 for attempting to assassinate President Reagan and others and the immediate aftermath of that acquittal. Since the middle of the 20th Century, the tale is one of the rise and fall of the American Law Institute’s Model Penal Code test for legal insanity. Then it turns to the constitutional decisions of the United States Supreme Court concerning the status of legal insanity. Finally, it addresses the substantive and procedural changes that …
Rabbi Lamm, The Fifth Amendment, And Comparative Jewish Law, Samuel J. Levine
Rabbi Lamm, The Fifth Amendment, And Comparative Jewish Law, Samuel J. Levine
Scholarly Works
Rabbi Norman Lamm’s 1956 article, “The Fifth Amendment and Its Equivalent in the Halakha,” provides important lessons for scholarship in both Jewish and American law. Sixty-five years after it was published, the article remains, in many ways, a model for interdisciplinary and comparative study of Jewish law, drawing upon sources in the Jewish legal tradition, American legal history, and modern psychology. In so doing, the article proves faithful to each discipline on its own terms, producing insights that illuminate all three disciplines while respecting the internal logic within each one. In addition to many other distinctions, since its initial publication, …
Cancelling Justice? The Case Of James Clark Mcreynolds, Todd C. Peppers
Cancelling Justice? The Case Of James Clark Mcreynolds, Todd C. Peppers
Scholarly Articles
Over the last several years, there has been a vigorous debate as to whether monuments and memorials of Confederate leaders and controversial historical figures should be purged from the public square. These conversations have included former Supreme Court justices and have led to the removal of multiple statues of former Chief Justice Roger Taney, author of the infamous “Dred Scott” decision. Drawing on the arguments mounted for and against the removal of statues, this article explores the decision of a small liberal arts college to strip the name of former Supreme Court Justice James Clark McReynolds from a campus building. …
American Common Market Redux, Richard Collins
American Common Market Redux, Richard Collins
Publications
The Tennessee Wine case, decided in June of 2019, had a major effect on the path of the law for an issue not argued in it. The Supreme Court affirmed invalidity of a protectionist state liquor regulation that discriminated against interstate commerce in violation of the dormant commerce clause doctrine. Its holding rejected a vigorous defense based on the special terms of the Twenty-first Amendment that ended Prohibition—an issue of interest only to those involved in markets for alcoholic drinks. However, the Court’s opinion removed serious doubts about validity of the Doctrine itself, even though the petitioner and supporting amici …
"Our Most Sacred Legal Commitments": A Digital Exploration Of The U.S. Supreme Court Defining Who We Are And How They Should Opine, Eric C. Nystrom, David S. Tanenhaus
"Our Most Sacred Legal Commitments": A Digital Exploration Of The U.S. Supreme Court Defining Who We Are And How They Should Opine, Eric C. Nystrom, David S. Tanenhaus
Scholarly Works
This Article focuses on uncovering the multiple meanings of the word "our" in the published opinions of the U.S. Supreme Court from Chisholm to modern times. To do so, we use a digital legal history approach, combining robust court data, text mining techniques, and expert word classification, using a set of custom open-source tools and open data.
Corporate Personhood And Limited Sovereignty, Elizabeth Pollman
Corporate Personhood And Limited Sovereignty, Elizabeth Pollman
All Faculty Scholarship
This Article, written for a symposium celebrating the work of Professor Margaret Blair, examines how corporate rights jurisprudence helped to shape the corporate form in the United States during the nineteenth century. It argues that as the corporate form became popular because of the way it facilitated capital lock-in, perpetual succession, and provided other favorable characteristics related to legal personality that separated the corporation from its participants, the Supreme Court provided crucial reinforcement of these entity features by recognizing corporations as rights-bearing legal persons separate from the government. Although the legal personality of corporations is a distinct concept from their …
A Formulaic Recitation Will Not Do: Why The Federal Rules Demand More Detail In Criminal Pleading, Charles Eric Hintz
A Formulaic Recitation Will Not Do: Why The Federal Rules Demand More Detail In Criminal Pleading, Charles Eric Hintz
All Faculty Scholarship
When a plaintiff files a civil lawsuit in federal court, her complaint must satisfy certain minimum standards. Specifically, under the prevailing understanding of Federal Rule of Civil Procedure 8(a), a complaint must plead sufficient factual matter to state a claim to relief that is plausible on its face, rather than mere conclusory statements. Given the significantly higher stakes involved in criminal cases, one might think that an even more robust requirement would exist in that context. But in fact a weaker pleading standard reigns. Under the governing interpretation of Federal Rule of Criminal Procedure 7(c), indictments that simply parrot the …
The Lost Promise Of Progressive Formalism, Andrea Scoseria Katz
The Lost Promise Of Progressive Formalism, Andrea Scoseria Katz
Scholarship@WashULaw
Today, any number of troubling government pathologies—a lawless presidency, a bloated and unaccountable administrative state, the growth of an activist bench—are associated with the emergence of a judicial philosophy that disregards the “plain meaning” of the Constitution for a loose, unprincipled “living constitutionalism.” Many trace its origins to the Progressive Era
(1890–1920), a time when Americans turned en masse to government as the solution to emerging problems of economic modernity—financial panics, industrial concentration, worsening workplace conditions, and skyrocketing unemployment and inequality—and, the argument goes, concocted a flexible, new constitutional philosophy to allow the federal government to take on vast, new …
The (Joseph) Stories Of Newmyer And Cover: Hero Or Tragedy?, Jed H. Shugerman
The (Joseph) Stories Of Newmyer And Cover: Hero Or Tragedy?, Jed H. Shugerman
Faculty Scholarship
Kent Newmyer’s classics Supreme Court Justice Joseph Story: Statesman of the Old Republic and John Marshall and the Heroic Age of the Supreme Court are important stories about the architects and heroes of the rule of law in America. In Newmyer’s account, Story played a crucial role preserving the republic and building a legal nation out of rival states, and Newmyer’s Story is fundamentally important for students of American history. But in Robert Cover’s account in Justice Accused on northern judges’ deference to slavery, Story is an anti-hero. Sometimes Story stayed silent. In Prigg v. Pennsylvania, Story overvalued formalistic comity. …
Attribution Time: Cal Tinney’S 1937 Quip, “A Switch In Time’Ll Save Nine”, John Q. Barrett
Attribution Time: Cal Tinney’S 1937 Quip, “A Switch In Time’Ll Save Nine”, John Q. Barrett
Faculty Publications
In the history of the United States Supreme Court, 1937 was a huge year—perhaps the Court’s most important year ever.
Before 1933, the Supreme Court sometimes held that progressive policies enacted by political branches of government were unconstitutional. Such decisions became much more prevalent during President Franklin D. Roosevelt’s first term, from 1933 through 1936. In those years, the Court struck down, often by narrow margins, both federal “New Deal” laws and state law counterparts that sought to combat the devastation of the Great Depression.
Then, in early 1937, President Roosevelt proposed to “pack”—to enlarge—the Court, so that it would …
Deep Tracks: Album Cuts That Help Define The Essential Scalia, Gary S. Lawson
Deep Tracks: Album Cuts That Help Define The Essential Scalia, Gary S. Lawson
Faculty Scholarship
Jeff Sutton and Ed Whelan have collected some of Justice Scalia’s “greatest hits” in a volume entitled The Essential Scalia: On the Constitution, the Courts, and the Rule of Law. The book is an excellent introduction to the jurisprudential thought and literary style of one of the most influential legal thinkers—and legal writers—in modern times. As with any “greatest hits” compilation, however, there are inevitably going to be key “album cuts” for which there will not be space. This essay seeks to supplement Sutton and Whelan’s invaluable efforts by surveying three of those “deep tracks” that shed particular light on …
An Analysis Of The Competing Views On The Interpretation Of The U.S. Constitution, Joseph Longo
An Analysis Of The Competing Views On The Interpretation Of The U.S. Constitution, Joseph Longo
Senior Honors Theses
This thesis will examine the competing interpretations of the United States Constitution and the different effects these interpretations would have on the American government and legal systems. By examining legal precedents and different philosophical views, the varying interpretations will be examined and put through real-world scenarios. The founding of America was over 200 years ago, but philosophical views throughout history shall be used in the understanding of the different interpretations and real-world consequences. The thesis will not claim that one interpretation is proper and the perfect one for the United States, rather it will challenge each view in an attempt …
Law School News: Rwu Law Announces Rbg Contest For K-12 Students 12-2-2020, Michael M. Bowden
Law School News: Rwu Law Announces Rbg Contest For K-12 Students 12-2-2020, Michael M. Bowden
Life of the Law School (1993- )
No abstract provided.
Marshaling Mcculloch, Richard A. Primus
Marshaling Mcculloch, Richard A. Primus
Reviews
David Schwartz’s terrific new book is subtitled John Marshall and the 200-Year Odyssey of McCulloch v. Maryland. But the book is about much more than Marshall and McCulloch. It’s bout the long struggle over the scope of national power. Marshall and McCulloch are characters in the story, but the story isn’t centrally about them. Indeed, an important part of Schwartz’s narrative is that McCulloch has mattered relatively little in that struggle, except as a protean symbol.
Crisis? Whose Crisis?, Jack M. Beermann
Crisis? Whose Crisis?, Jack M. Beermann
Faculty Scholarship
Every moment in human history can be characterized by someone as “socially and politically charged.” For a large portion of the population of the United States, nearly the entire history of the country has been socially and politically charged, first because they were enslaved and then because they were subjected to discriminatory laws and unequal treatment under what became known as “Jim Crow.” The history of the United States has also been a period of social and political upheaval for American Indians, the people who occupied the territory that became the United States before European settlement. Although both African-Americans and …
Inside Baseball: Justice Blackmun And The Summer Of '72, Savanna L. Nolan
Inside Baseball: Justice Blackmun And The Summer Of '72, Savanna L. Nolan
Articles, Chapters and Online Publications
This article examines the historical context of Justice Blackmun's infamous opinion from Flood v. Kuhn, also known as the baseball case. Analysis includes discussion of recently re-discovered personal letters between Justices Powell and Blackmun.
The Belloni Decision: A Foundation For The Northwest Fisheries Cases, The National Tribal Sovereignty Movement, And An Understanding Of The Rule Of Law, Charles Wilkinson
The Belloni Decision: A Foundation For The Northwest Fisheries Cases, The National Tribal Sovereignty Movement, And An Understanding Of The Rule Of Law, Charles Wilkinson
Publications
Judge Belloni’s decision in United States v. Oregon, handed down a half-century ago, has been given short shrift by lawyers, historians, and other commentators on the modern revival of Indian treaty fishing rights in the Pacific Northwest. The overwhelming amount of attention has been given to Judge Boldt’s subsequent decision in United States v. Washington and the Passenger Vessel ruling by the Supreme Court affirming Judge Boldt. I’m one who has been guilty of that.
We now can see that United States v. Oregon was the breakthrough. In those early days, Judge Belloni showed deep understanding of the two …
An Inside History Of The Burger Court's Patent Eligibility Jurisprudence, Christopher B. Seaman, Sheena X. Wang
An Inside History Of The Burger Court's Patent Eligibility Jurisprudence, Christopher B. Seaman, Sheena X. Wang
Scholarly Articles
Patent eligibility is one of the most important and controversial issues in intellectual property law. Although the relevant constitutional and statutory text is extremely broad, the Supreme Court has significantly narrowed the scope of patentable eligibility by creating exceptions for inventions directed to abstract ideas, laws of nature, and natural phenomenon. In particular, the Supreme Court’s decisions on this issue over the past decade have created considerable uncertainty regarding the patentability of important innovations. As a result, numerous stakeholders have called for reform of the current rules regarding patent eligibility, and members of Congress have introduced legislation to amend the …
Chief Justice Melville Weston Fuller And The Great Mustache Debate Of 1888, Todd C. Peppers
Chief Justice Melville Weston Fuller And The Great Mustache Debate Of 1888, Todd C. Peppers
Scholarly Articles
Over the long history of the Supreme Court, nominees to the highest court in the land have been opposed for a variety of reasons. Often opponents are concerned about the nominee’s political ideology or competency. Occasionally, allegations are raised about political cronyism. And candidates have come under fire for their religion. But nominee Melville Weston Fuller’s selection launched a national debate that went to the very heart of what makes one qualified to sit on the Supreme Court: whether a judge should have a mustache.
On March 23, 1888, Morrison R. Waite died of pneumonia after sitting for fourteen years …