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Articles 1 - 30 of 101
Full-Text Articles in Legal History
Originalism And Historical Fact-Finding, Joseph Blocher, Brandon L. Garrett
Originalism And Historical Fact-Finding, Joseph Blocher, Brandon L. Garrett
Faculty Scholarship
Historical facts are more central to constitutional litigation than ever before, given the Supreme Court’s increasing reliance on originalism and other modes of interpretation that invoke historical practice and tradition. This raises a central tension. The case for originalism has rested largely on the idea that it is simultaneously fact-bound and a theory of adjudication capable of resolving questions of constitutional law. In practice, however, the historical facts central to originalism typically are not litigated in accordance with standard practices for fact-finding: introduction at trial, expert testimony, adversarial testing, deference on appeal, and so on.
In the absence of the …
Bruen's Enforcement Puzzle: Unearthing And Adjudicating The Historical Enforcement Record In Second Amendment Cases, Andrew Willinger
Bruen's Enforcement Puzzle: Unearthing And Adjudicating The Historical Enforcement Record In Second Amendment Cases, Andrew Willinger
Faculty Scholarship
The Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations. The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced. In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue. Historical enforcement data appear to …
Restating The Law In The Shadow Of Codes: The Ali In Its Formative Era, Deborah A. Demott
Restating The Law In The Shadow Of Codes: The Ali In Its Formative Era, Deborah A. Demott
Faculty Scholarship
This chapter recounts the American Law Institute’s (ALI’s) history in its formative era (1923–1945), drawing from archival sources to deepen existing accounts of the ALI’s self-definition as an ongoing institution. The history is more complex than it appears in prior accounts because institutional necessities—including funding—as well as multiple contingencies shaped both the ALI and its work. Likewise, the ALI’s signal work in this period, the Restatement, departed in significant ways from its original plan. Generating the revenues requisite to its ongoing existence required that the ALI partner with commercial publishers and, at their urging, separately publish Annotations for each Restatement …
The Territories Under Text, History, And Tradition, Andrew Willinger
The Territories Under Text, History, And Tradition, Andrew Willinger
Faculty Scholarship
In two of its major decisions in the 2021–2022 Term, New York State Rifle & Pistol Ass’n v. Bruen and Dobbs v. Jackson Women’s Health Organization, the Court continued solidifying its originalist method of constitutional interpretation by looking increasingly to historical regulatory practice to construe how the Constitution protects individual rights. The Court is focused not only on the original public meaning of constitutional provisions, but also on historical practice. Historical laws and practices are now key to understanding how those who lived at the relevant time thought a constitutional provision might be applied and what regulatory approaches were consistent …
Keeping Our Republic, Ashlee A. Paxton-Turner
Keeping Our Republic, Ashlee A. Paxton-Turner
Faculty Scholarship
No abstract provided.
Navassa: Property, Sovereignty, And The Law Of The Territories, Joseph Blocher, Mitu Gulati
Navassa: Property, Sovereignty, And The Law Of The Territories, Joseph Blocher, Mitu Gulati
Faculty Scholarship
The United States acquired its first overseas territory—Navassa Island, near Haiti—by conceptualizing it as a kind of property to be owned, rather than a piece of sovereign territory to be governed. The story of Navassa shows how competing conceptions of property and sovereignty are an important and underappreciated part of the law of the territories—a story that continued fifty years later in the Insular Cases, which described Puerto Rico as “belonging to” but not “part of” the United States.
Contemporary scholars are drawn to the sovereignty framework and the public-law tools that come along with it: arguments about rights and …
Standing, Equity, And Injury In Fact, Ernest A. Young
Standing, Equity, And Injury In Fact, Ernest A. Young
Faculty Scholarship
This contribution to the Notre Dame Law Review's annual Federal Courts symposium on "The Nature of the Federal Equity Power" asks what the traditions of equity can tell us about Article III standing. I take as my point of departure the observation by Professors Sam Bray and Paul Miller, in their contribution to the symposium, that equity does not have causes of action as such--or at least not in the same way as actions at law. This is potentially important for standing, as many academic critiques of the Supreme Court's standing jurisprudence have argued that standing should turn on whether …
Judge James A. Wynn, Originalism, And The Juridical/Judicial Role, Michael E. Tigar
Judge James A. Wynn, Originalism, And The Juridical/Judicial Role, Michael E. Tigar
Faculty Scholarship
No abstract provided.
On The Scent: A History Of “The King Of The Foxes” Autograph Manuscript, Jennifer L. Behrens
On The Scent: A History Of “The King Of The Foxes” Autograph Manuscript, Jennifer L. Behrens
Faculty Scholarship
No abstract provided.
"The Road I Can't Help Travelling": Holmes On Truth And Persuadability, Joseph Blocher
"The Road I Can't Help Travelling": Holmes On Truth And Persuadability, Joseph Blocher
Faculty Scholarship
No abstract provided.
King Leopold's Bonds And The Odious Debts Mystery, Joseph Blocher, Mitu Gulati, Kim Oosterlinck
King Leopold's Bonds And The Odious Debts Mystery, Joseph Blocher, Mitu Gulati, Kim Oosterlinck
Faculty Scholarship
In 1898, in the wake of the Spanish-American war, Spain ceded the colony of Cuba to the United States. In keeping with the law of state succession, the Spanish demanded that the U.S. also take on Spanish debts that had been backed by Cuban revenues. The Americans refused, arguing that some of those debts had been utilized for purposes adverse to the interests of the Cuban people. This, some argue, was the birth of the doctrine of “odious debts”; a doctrine providing that debts incurred by a non-representative government and utilized for purposes adverse to the population do not need …
The Empty Chair: Reflections On An Absent Justice, Jennifer L. Behrens
The Empty Chair: Reflections On An Absent Justice, Jennifer L. Behrens
Faculty Scholarship
This article examines a January 1888 letter to U.S. Supreme Court Chief Justice Morrison Waite from Associate Justice Stanley Matthews. Justice Matthews requested time away from the notoriously overworked Court’s session in order to attend the funeral of Dr. Peter Parker, renowned medical missionary and diplomat. The piece presents biographical sketches of Justice Matthews and Dr. Parker, and considers the historical context of the potential absence on the late nineteenth-century Court’s operations.
Empty Chairs, Jennifer L. Behrens
Beyond The Annals Of Murder: The Life And Works Of Thomas M. Mcdade, Jennifer L. Behrens
Beyond The Annals Of Murder: The Life And Works Of Thomas M. Mcdade, Jennifer L. Behrens
Faculty Scholarship
Thomas M. McDade is best known (if not well-known enough) for his seminal 1961 reference bibliography, The Annals of Murder: A Bibliography of Books and Pamphlets on American Murders from Colonial Times to 1900. Beyond that singular text on early American murder trial accounts, though, lies more than 70 additional publications on American legal history, law enforcement, and literature, gathered together for the first time in an annotated bibliography of McDade’s lesser-known writings. The article also examines McDade’s fascinating life and varied career as an early FBI agent, World War II veteran, corporate executive, and true crime chronicler.
Finding Law, Stephen E. Sachs
Finding Law, Stephen E. Sachs
Faculty Scholarship
That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.
This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and …
Originalism And The Law Of The Past, William Baude, Stephen E. Sachs
Originalism And The Law Of The Past, William Baude, Stephen E. Sachs
Faculty Scholarship
Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed.
This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of …
Owning Heller, Darrell A. H. Miller
Owning Heller, Darrell A. H. Miller
Faculty Scholarship
Recent historical research using big-data techniques casts doubt on whether District of Columbia v. Heller was rightly decided according to originalist methods. These new discoveries put originalists in a bind. Do they embrace “faint hearted” originalism: the idea that as between the need for stability in prior decision making, settled expectations, and the coherence of the law, some adulterated decisions must remain enforced for the greater good? Or do they follow Justice Thomas’s reasoning in Gamble v. United States, remain stout-hearted, and reject any prior decision that cannot be supported by the common linguistic usage of the founding era – …
The Emergence Of The American Constitutional Law Tradition, H. Jefferson Powell
The Emergence Of The American Constitutional Law Tradition, H. Jefferson Powell
Faculty Scholarship
No abstract provided.
Constitutional Conflict And Sensitive Places, Darrell A. H. Miller
Constitutional Conflict And Sensitive Places, Darrell A. H. Miller
Faculty Scholarship
No abstract provided.
Slouching Toward Universality: A Brief History Of Race, Voting, And Political Participation, Guy-Uriel E. Charles, Luis E. Fuentes-Rohwer
Slouching Toward Universality: A Brief History Of Race, Voting, And Political Participation, Guy-Uriel E. Charles, Luis E. Fuentes-Rohwer
Faculty Scholarship
No abstract provided.
Martin, Ghana, And Global Legal Studies, H. Timothy Lovelace Jr.
Martin, Ghana, And Global Legal Studies, H. Timothy Lovelace Jr.
Faculty Scholarship
This brief essay uses global legal studies to reconsider Dr. Martin Luther King, Jr.'s activism after Gayle v. Browder. During this undertheorized portion of King's career, the civil rights leader traveled the world and gained a greater appreciation for comparative legal and political analysis. This essay explores King's first trip abroad and demonstrates how King's close study of Kwame Nkrumah's approaches to law reform helped to lay the foundation for watershed moments in King's own life.
In To Redeem the Soul of America: The Southern Christian Leadership Conference and Martin Luther King, Jr., renowned civil rights scholar and author, Adam …
Fear And Firearms, Darrell A. H. Miller
James Dewitt Andrews: Classifying The Law In The Early Twentieth Century*, Richard A. Danner
James Dewitt Andrews: Classifying The Law In The Early Twentieth Century*, Richard A. Danner
Faculty Scholarship
This paper examines the efforts of New York lawyer James DeWitt Andrews and others to create a new classification system for American law in the early years of the twentieth century. Inspired by fragments left by founding father James Wilson, Andrews worked though the American Bar Association and organized independent projects to classify the law. A controversial figure, whose motives were often questioned, Andrews engaged the support and at times the antagonism of prominent legal figures such as John H. Wigmore, Roscoe Pound, and William Howard Taft before his plans ended with the founding of the American Law Institute in …
Originalism’S Bite, William Baude, Stephen E. Sachs
Originalism’S Bite, William Baude, Stephen E. Sachs
Faculty Scholarship
Is originalism toothless? Richard Posner seems to think so. He writes that repeated theorizing by "intelligent originalists," one of us happily included, has rendered the theory "incoherent" and capable of supporting almost any result. We appreciate the attention, but we fear we've been misunderstood. Our view is that originalism permits arguments from precedent, changed circumstances, or whatever you like, but only to the extent that they lawfully derive from the law of the founding. This kind of originalism, surprisingly common in American legal practice, is catholic in theory but exacting in application. It might look tame, but it has bite.
Practice And Precedent In Historical Gloss Games, Joseph Blocher, Margaret H. Lemos
Practice And Precedent In Historical Gloss Games, Joseph Blocher, Margaret H. Lemos
Faculty Scholarship
No abstract provided.
Cultural Paradigms In Property Institutions, Taisu Zhang
Cultural Paradigms In Property Institutions, Taisu Zhang
Faculty Scholarship
Do “cultural factors” substantively influence the creation and evolution of property institutions? For the past several decades, few legal scholars have answered affirmatively. Those inclined towards a law and economics methodology tend to see property institutions as the outcome of self-interested and utilitarian bargaining, and therefore often question the analytical usefulness of “culture.” The major emerging alternative, a progressive literature that emphasizes the social embeddedness of property institutions and individuals, is theoretically more accommodating of cultural analysis but has done very little of it.
This Article develops a “cultural” theory of how property institutions are created and demonstrates that such …
Joseph Story, Ralf Michaels
Joseph Story, Ralf Michaels
Faculty Scholarship
Joseph Story (1779-1845) was one of the greatest and most influential American lawyers of all time. Both as a Supreme Court Justice and as a professor at Harvard Law School, his work and thought were, and still are, of great importance. Today’s private international law would look different without him, both in the United States and in the rest of the world. At the same time, his approach to the field cannot be properly understood unless placed within his broader work on law, and the specific American background against which it was developed.
Continuity And The Declaration Of Independence, Darrell A. H. Miller
Continuity And The Declaration Of Independence, Darrell A. H. Miller
Faculty Scholarship
No abstract provided.
Cases And Case-Lawyers, Richard A. Danner
Cases And Case-Lawyers, Richard A. Danner
Faculty Scholarship
In the nineteenth century, the term “case-lawyer” was used as a label for lawyers who seemed to care more about locating precedents applicable to their current cases than understanding the principles behind the reported case law. Criticisms of case-lawyers appeared in English journals in the late 1820s, then in the United States, usually from those who believed that every lawyer needed to know and understand the unchanging principles of the common law in order to resolve issues not found in the reported cases. After the Civil War, expressions of concern about caselawyers increased with the significant growth in the amount …
Wächter, Carl Georg Von, Ralf Michaels
Wächter, Carl Georg Von, Ralf Michaels
Faculty Scholarship
Carl Georg von Wächter (1797-1880) was once considered 'one of the greatest German jurists of all times’, but was all but forgotten in the 20th century, despite an excellent dissertation on his work in private international law by Nikolaus Sandmann. In private international law, he is known mainly for his critique of earlier theories, in particular the theory of statutes. Positively, Wächter is mainly (and not accurately) known as a proponent of a strong preference for the lex fori and as such mainly presented in opposition to Friedrich Carl von Savigny’s theory (Savigny, Friedrich Carl von). Only recently has there …