Legal History Commons^™

"Well-Behaved Women Don't Make History": Rethinking English Family, Law, And History, Danaya C. Wright

Danaya C. Wright

In 1857 Parliament finally succumbed to public and political pressure and passed a bill creating a domestic relations court: the Court for Divorce and Matrimonial Causes. This new court for the first time in common-law history, combined the following jurisdictions: the ecclesiastical court's jurisdiction over marital validity and separation; the Chancery court's jurisdiction over child custody and equitable estates; the common-law court's jurisdiction over property; and Parliament's jurisdiction over divorce and marital settlements. Wives were given the legal right to seek a divorce or judicial separation in a court of law, receive custody of the children of the marriage, and …

Panelist, The Legacy Of James M. Landis, Daniel Coquillette

Daniel R. Coquillette

No abstract provided.

Culture, Nationhood, And The Human Rights Ideal, Berta E. Hernández-Truyol, Sharon E. Rush

Berta E. Hernández-Truyol

This paper was written as a part of a Symposium on Culture, Nation, and LatCrit (Latina/o Communities and Critical Race) Theory and focuses on the concept of voice and silence. Part I locates the works in the axis of silence and power. Part II explores how critical theory and international human rights norms can be used to develop a methodology to analyze and detect the exclusion or silencing of voices. A paradigm is developed that, by internationalizing voice, serves as a useful tool to explore power-based silencing. In Part III, the article illustrates how the proposed paradigm can focus the …

The Concept Of Religion, Eduardo M. Peñalver

Eduardo M. Peñalver

No abstract provided.

The Persistent Problem Of Obligation In International Law, Eduardo Peñalver

Eduardo M. Peñalver

No abstract provided.

Is Land Special? The Unjustified Preference For Landownership In Regulatory Takings Law, Eduardo M. Peñalver

Eduardo M. Peñalver

This article critiques the Court's attempt to cabin the Lucas "per se" takings rule by limiting it to real property. It argues that the distinction between real and personal property cannot be justified by history or the differing expectations of property owners. It then applies five theoretical frameworks (libertarian, personhood, utilitarian, public choice, and Thomistic-Aristotelian natural law) and finds that none of them supports the jurisprudential distinction between real and personal property. As a result, the article argues that "because the distinction between personal and real property is an unprincipled one, it cannot save the Court from the unpalatable implications …

Reconstructing Richard Epstein, Eduardo M. Peñalver

Eduardo M. Peñalver

No abstract provided.

Property As Entrance, Eduardo M. Peñalver

Eduardo M. Peñalver

No abstract provided.

Property Metaphors And Kelo V. New London: Two Views Of The Castle, Eduardo M. Peñalver

Eduardo M. Peñalver

No abstract provided.

Theories And Practices Of Islamic Finance And Exchange Laws: Poverty Of Interest, Ahmed E. Souaiaia

Ahmed E SOUAIAIA

Ser Y Tiempo Jurídicos (Juridical Being And Time), Juan Carlos Riofrío Martínez-Villalba

Juan Carlos Riofrío Martínez-Villalba

El estudio contiene una profundización metafísica del análisis de la dinámica jurídica. Para explicarla se aplican los poderosos conceptos griegos de ser y potencia, con los que los antiguos pudieron resolver el problema del tiempo y del cambio cósmico. Por eso el artículo comienza modulando para el derecho estas nociones griegas, de los cuales resultan los conceptos metafísicos de “ser jurídico” y “potencia jurídica”, para luego arribar al concepto de “espacio jurídico”. Con esta triada de nociones se puede, entonces, resolver el tema del cambio y el tiempo jurídico, como se hace al final del trabajo.

This article contains a …

Progressive Legal Thought, Herbert Hovenkamp

Herbert Hovenkamp

A widely accepted model of American legal history is that classical legal thought, which dominated much of the nineteenth century, was displaced by progressive legal thought, which survived through the New Deal and in some form to this day. Within its domain, this was a revolution nearly on a par with Copernicus or Newton. This paradigm has been adopted by both progressive liberals who defend this revolution and by classical liberals who lament it. Classical legal thought is generally identified with efforts to systematize legal rules along lines that had become familiar in the natural sciences. This methodology involved not …

Professor Frank R. Kennedy, Jack F. Williams

Jack F. Williams

No abstract provided.

Comparative Racialization: From Subjugation To Resistance And Remedy, Tanya Washington

Tanya Monique Washington

No abstract provided.

Decolonization, Development, And Denial, Natsu Taylor Saito

Natsu Taylor Saito

No abstract provided.

Punitive Injunctions, Nirej S. Sekhon

Nirej Sekhon

No abstract provided.

Hugo Black's Congressional Investigation Of Lobbying And The Public Utility Holding Company Act: A Historical View Of The Power Trust, New Deal Politics, And Regulatory Propaganda, William Gregory, Rennard Strickland

William A. Gregory

No abstract provided.

Auctioning Class Settlements, Jay Tidmarsh

Jay Tidmarsh

Although they promise better deterrence at a lower cost, class actions are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class (the class representative and class counsel) advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class-action reform proposals. This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea …

Inventing The Classical Constitution, Herbert Hovenkamp

Herbert Hovenkamp

One recurring call over a century of American constitutional thought is for return to a “classical” understanding of American federal and state Constitutions. “Classical” does not necessarily mean “originalist” or “interpretivist." Some classical views, such as the attempt to revitalize Lochner-style economic due process, find little support in the text of the federal Constitution or any of the contemporary state constitutions. Rather, constitutional meaning is thought to lie in a background link between constitution formation and classical statecraft. The core theory rests on the assumption of a social contract to which everyone in some initial position agreed. Like any …

Professionalism For The 21st Century: Independence In Context, Rebecca Roiphe

Rebecca Roiphe

Most scholars condemn professionalism as self-serving, anti-competitive rhetoric. This Article argues that professionalism can be a positive and productive way of thinking about lawyers’ work. While it is undoubtedly true that the Bar has used the ideology of the professional role to support self-interested and bigoted causes, professionalism has also served as an important way of developing and marshalling group identity to promote useful ends. The critics of professionalism tend to view it as an ideology, according to which professionals, unlike businessmen, are concerned not with their own financial gain but with the good of their clients and the community …

Historical Framework For Reviving Constitutional Protection For Property And Contract Rights , James L. Kainen

James L. Kainen

Post-New Deal constitutionalism is in search of a theory that justifies judicial intervention on behalf of individual rights while simultaneously avoiding the charge of "Lochnerism."' The dominant historical view dismisses post-bellum substantive due process as an anomalous development in the American constitutional tradition. Under this approach, Lochner represents unbounded protection for economic rights that permitted the judiciary to read laissez faire, pro-business policy preferences into the constitutional text. Today's revisionists have mounted a substantial challenge to the dismissive views of traditionalists. Indeed, some claim Lochner reached the right result, but for the wrong reason. The revisionists characterize substantive due process …

Impeachment Exception To The Exclusionary Rules: Policies, Principles, And Politics, The , James L. Kainen

James L. Kainen

The exclusionary evidence rules derived from the Fourth, Fifth, and Sixth Amendments continue to play an important role in constitutional criminal procedure, despite the intense controversy that surrounds them. The primary justification for these rules has shifted from an "imperative of judicial integrity" to the "deterrence of police conduct that violates... [constitutional] rights." Regardless of the justification it uses for the rules' existence, the Supreme Court continues to limit their breadth "at the margin," when "the acknowledged costs to other values vital to a rational system of criminal justice" outweigh the deterrent effects of exclusion. The most notable limitation on …

Truth, Deterrence, And The Impeachment Exception , James L. Kainen

James L. Kainen

James v. Illinois permits illegally-obtained evidence to impeach defendants, but not defense witnesses. Thus far, all courts have construed James to allow impeachment of defendants' hearsay declarations. This article argues against allowing illegally-obtained evidence to impeach defendants' hearsay declarations because doing so unduly diminishes the exclusionary rule's deterrent effect. The distinction between impeaching defendants and defense witnesses disappears when courts allow prosecutors to impeach defendants' hearsay declarations. Because defense witnesses report exculpatory conduct of a defendant who always has a substantial interest in disguising his criminality, their testimony routinely incorporates defendant hearsay. Defense witness testimony thus routinely paves the way …

Nineteenth Century Interpretations Of The Federal Contract Clause: The Transformation From Vested To Substantive Rights Against The State , James L. Kainen

James L. Kainen

During the early nineteenth century, the contract clause served as the fundamental source of federally protected rights against the state. Yet the Supreme Court gradually eased many of the restrictions on state power enforced in the contract clause cases while developing the doctrine of substantive due process after the Civil War. By the end of the nineteenth century, the due process clause had usurped the place of the contract clause as the centerpiece in litigation about individual rights. Most analyses of the history of federally protected rights against the state have emphasized the rise of substantive due process to the …

Portrait Of A Patriot: The Major Political And Legal Papers Of Josiah Quincy Junior, Volume 6, Correspondence And Published Political Writings, Daniel Coquillette, Neil Longley York

Daniel R. Coquillette

The Jurisprudence Of The Hughes Court: The Recent Literature, Barry Cushman

Barry Cushman

No abstract provided.

Law & Order Made Amusing: A Selection Of Law Books For Children From The Collection Of Morris L. Cohen, Karen S. Beck, Mary Sarah Bilder, Ann Mcdonald, Sharon Hambly O'Connor

Sharon Hamby O'Connor

Exhibition program from a Spring 1998 exhibit presented in the Daniel R. Coquillette Rare Book Room at the Boston College Law Library. The exhibit featured selections from Morris L. Cohen's collection of law books for children.

Law & Order Made Amusing: A Selection Of Law Books For Children From The Collection Of Morris L. Cohen, Karen S. Beck, Mary Sarah Bilder, Ann Mcdonald, Sharon Hambly O'Connor

Sharon Hamby O'Connor

Exhibition program from a Spring 1998 exhibit presented in the Daniel R. Coquillette Rare Book Room at the Boston College Law Library. The exhibit featured selections from Morris L. Cohen's collection of law books for children.

Appeals To The Privy Council From The American Colonies: An Annotated Digital Catalogue, Mary Bilder, Sharon O'Connor

Sharon Hamby O'Connor

In recognition of the three-hundred anniversary of the accession of George I, the Ames Foundation announces a new electronic resource: Appeals to the Privy Council from the American Plantations: An Annotated Digital Catalogue. For the first time in centuries, the site makes accessible the important appellate cases that helped to define constitutional law before the creation of the United States Supreme Court.

The British Privy Council heard appeals from the 13 colonies that became the United States and from the other colonies in Canada and the Caribbean. Over 800 cases were appealed from the colonial supreme courts. Nearly one-third of …

Justice Lewis F. Powell's Baffling Vote In Roe V. Wade, Samuel W. Calhoun

Samuel W. Calhoun

No abstract provided.