Legal History Commons^™

The Battle For The Soul Of International Shoe, Eric H. Schepard

Eric H Schepard

In 2011, Justice Kennedy’s plurality opinion in J. McIntyre Machinery, Ltd. v. Nicastro repeatedly cited International Shoe v. Washington, a 1945 decision that transformed the law of personal jurisdiction. Kennedy believed that International Shoe broadly supported his position that a state may hear a suit arising from a within-state workplace injury to its citizen only if the foreign (out-of-state) corporate defendant specifically markets its products to that state. This article reexamines the jurisprudence of International Shoe’s author, Chief Justice Harlan Fiske Stone, to argue that Kennedy hijacked International Shoe’s half-buried legacy of judicial restraint. Scholars have suggested that Stone hoped …

Remedies Unified In Nine Verses, Caprice Roberts

Caprice L. Roberts

An original substantive poem with footnotes that makes three bold claims: (i) Remedies shapes substantive rights, (ii) the scholarly quest for a unified theory of Remedies is ill-fated, and (iii) Remedies properly reasoned will unify across borders, doctrinal and geographic.

The Shield Of Rights, The Sword Of Disorder: Robert H. Jackson And Civil Liberties, George B. Crawford

George B. Crawford

No abstract provided.

Holmes And The Common Law: A Jury's Duty, Matthew P. Cline

Matthew P Cline

The notion of a small group of peers whose responsibility it is to play a part in determining the outcome of a trial is central to the common conception of the American legal system. Memorialized in the Constitution of the United States as a fundamental right, and in the national consciousness as the proud, if begrudged, duty of all citizens, juries are often discussed, but perhaps not always understood. Whatever misunderstandings have come to be, certainly many of them sprang from the juxtaposition of jury and judge. Why do we have both? How are their responsibilities divided? Who truly decides …

Cause Judging, Justin Hansford

Justin Hansford

Building on the framework of “cause lawyering” scholarship, this Article explores the fact that, in a similar tradition as a “cause lawyering” law practice animated by dedication to a cause, “cause judging” exists as well. This insight has implications for judicial ethics norms. The hyper-partisan nature of modern American life has already cast doubt on the possibility that politically appointed judges can ever truly attain the “appearance of impartiality” demanded by judicial recusal standards. Instead, judicial ethics norms should embrace the fact that judges have moral and political ideals that inform their rulings when they exercise judicial discretion, and that …

At&T V. Concepcion: The Problem Of A False Majority, Lisa Tripp, Evan R. Hanson

Lisa Tripp

The Supreme Court’s 2011 decision in AT&T v. Concepcion is the first case where the Supreme Court explores the interplay between state law unconscionability doctrine and the vast preemptive power of the Federal Arbitration Act (FAA). Although it is considered by many to be a landmark decision which has the potential for greatly expanding the already impressive preemptive power of the FAA, something is amiss with Concepcion.

AT&T v. Concepcion is ostensibly a 5-4 majority decision with a concurring opinion. However, the differences in the majority and concurring opinions are so profound that it appears that Justice Thomas actually …

Three-Dimensional Sovereign Immunity, Sarah L. Brinton

Sarah L Brinton

The Supreme Court has erred on sovereign immunity. The current federal immunity doctrine wrongly gives Congress the exclusive authority to waive immunity (“exclusive congressional waiver”), but the Constitution mandates that Congress share the waiver power with the Court. This Article develops the doctrine of a two-way shared waiver and then explores a third possibility: the sharing of the immunity waiver power among all three branches of government.

“Nixon’S Sabotage”: How Politics Pushed The “Discriminatory Purpose” Requirement Into Equal Protection Law, Danieli Evans

Danieli Evans

This article describes the way that politics—resistance from the elected branches coupled with President Nixon appointing Chief Justice Burger—shaped the Court’s unanimous decision in Swann v. Charlotte-Mecklenburg, 402 U.S. 1 (1971), a school desegregation case that played a crucial role in limiting the forms of state action considered unconstitutional discrimination. Chief Justice Burger defied longstanding Supreme Court procedure to assign himself the majority opinion even though he disagreed with the majority outcome. Justice Douglas alleged that he did this “in order to write Nixon’s view of freedom of choice into the law.” Justice Burger’s opinion laid the foundation for limiting …

The Risky Interplay Of Tort And Criminal Law: Punitive Damages, Daniel M. Braun

Daniel M Braun

The rise of modern mass tort litigation in the U.S. has transformed punitive damages into something of a “hot button” issue. Since the size of punitive damage awards grew so dramatically in the past half century, this private law remedy has begun to involve issues of constitutional rights that traditionally pertained to criminal proceedings. This has created a risky interplay between tort and criminal law, and courts have thus been trying to find ways to properly manage punitive damage awards. The once rapidly expanding universe of punitive damages is therefore beginning to contract. There remain, however, very serious difficulties. Despite …

Understanding "The Problem Of Social Cost", Enrico Baffi

enrico baffi

This paper examines the positions of Coase and Pigou in regard to the problem of external effects (externalities). Assessing their two most important works, it appears that Coase has a more relevant preference for an evaluation of total efficiency, while Pigou, with some exceptions, is convinced that it is almost always socially desirable to reach marginal efficiency through taxes or liability. It is interesting that the economist of Chicago, who has elaborated on the renowned theorem, thinks that is not desirable to reach efficiency at the margin every time, and that it is often preferable to evaluate the total, which …

Instrumentalist And Holmesian Voices In The Rhetoric Of Reapportionment: The Opinions Of Justices Brennan And Frankfurter In Baker V. Carr, Carlo A. Pedrioli

Carlo A. Pedrioli

In his autobiography, Chief Justice Earl Warren described Baker v.Carr as “the most important case of [his] tenure on the Court.” Following Brown v. Board of Education by eight years, Baker was the second “blockbuster” case of the Warren Court. Warren felt that, if the progeny of Baker had preceded Brown, Brown would have been unnecessary.

As with other major Supreme Court cases, Baker featured rhetoric from highly influential justices, two of whom in this case were Justice William Brennan and Justice Felix Frankfurter. Justice Brennan would write the groundbreaking opinion for the Court that would be part of “the …