Legal History Commons^™

Does “The Freedom Of The Press” Include A Right To Anonymity? The Original Meaning, Robert G. Natelson

Robert G. Natelson

This Article examines relevant evidence to determine whether, as some have argued, the original legal force of the First Amendment’s “freedom of the press” included a per se right to anonymous authorship. The Article concludes that, except in cases in which freedom of the press had been abused, it did. Thus, from an originalist point of view, Supreme Court cases such as Buckley v. Valeo and Citizens United v. Federal Election Commission, which upheld statutes requiring disclosure of donors to political advertising, were erroneously decided.

The Time Has Not Yet Come To Repair The World In The Kingdom Of God: Israeli Lawyers And The Failed Jewish Legal Revolution Of 1948, Assaf Likhovski

Assaf Likhovski

At certain moments in Israel's legal history, Jewish lawyers were forced to choose between their commitment to the professional interests of their guild and their commitment to Jewish nationalism. This dilemma was especially apparent in the debates surrounding what can be called the failed Jewish legal revolution of 1948, when Israeli lawyers had to decide whether they wanted to maintain the legal status quo by retaining the legal system that Israel inherited from the British rulers of Palestine, or whether this legal system would be replaced by one that was connected in some way to Jewish law (the Halakha). What …

The Beginning Of The End Of Coverture: A Reappraisal Of The Married Woman’S Separate Estate, Allison Anna Tait

Allison Anna Tait

Before statutory enactments in the nineteenth century granted married women a limited set of property rights, the separate estate trust was, by and large, the sole form of married women’s property. Although the separate estate allowed married women to circumvent the law of coverture, historians have generally viewed the separate estate as an ineffective vehicle for extending property rights to married women. In this Article, I reappraise the separate estate’s utility and argue that Chancery’s separate estate jurisprudence during the eighteenth century was a critical first step in the establishment of married women as property-holders. Separate estates guaranteed critical financial …

Does “The Freedom Of The Press” Include A Right To Anonymity? The Original Meaning, Robert G. Natelson

Robert G. Natelson

This Article examines relevant evidence to determine whether, as some have argued, the original legal force of the First Amendment’s “freedom of the press” included a per se right to anonymous authorship. The Article concludes that, except in cases in which freedom of the press had been abused, it did. Thus, from an originalist point of view, Supreme Court cases such as Buckley v. Valeo and Citizens United v. Federal Election Commission, which upheld statutes requiring disclosure of donors to political advertising, were erroneously decided.

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Riley V. California: Privacy Still Matters, But How Much And In What Contexts?, Adam Lamparello, Charles Maclean

Adam Lamparello

Private information is no longer stored only in homes or other areas traditionally protected from warrantless intrusion. The private lives of many citizens are contained in a digital device no larger than the palm of their hand—and carried in public places. But that does not make the data within a cell phone any less private, just as the dialing of a phone number does not voluntarily waive an individual’s right to keep their call log or location private. Remember that we are not talking about individuals suspected of committing violent crimes. The Government is recording the calls and locations of …

Restoring Constitutional Equilibrium, Adam Lamparello

Adam Lamparello

In areas such as the Fourteenth Amendment, the Supreme Court's lack of institutional restraint has affected citizens of every political persuasion. In Bush v. Gore, the Florida Supreme Court’s recount order was blocked. ‘Liberals,’ lost. In Roe v. Wade, the Court required state legislatures to allow most abortions in the first trimester. ‘Conservatives’ lost. In Clinton v. City of New York and Citizens United v. Federal Election Commission, the coordinate branch’s attempt to ensure a more efficient and fairer government was thwarted. Average citizens lost. The problem is not a liberal or conservative one, whatever those words mean. It is …

Toward A Less Adversarial Relationship Between Chevron And Gardner, James Ridgway

James D. Ridgway

In twenty-five years of judicial review of veterans benefits claims, the courts have failed to reconcile the interpretive canons of veteran friendliness and deference to the agency’s policy making role. This article argues that the courts must develop a coherent relationship between these doctrines by recognizing that each are core values of veterans law. First, it explores the history and nature of these two doctrines that are central to veterans law. Then, It considers how the canons are situated in the spectrum of fact- and value-based judicial review. Ultimately, separation-of-powers principles and the legislative history of the Veterans Judicial Review …

Депортация Ученых Из Советской России В 1922 Г.: Уроки Истории, Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

In article the author considers mutual relation of the science and Soviet political regimw. Events of 1922 — deportation a big group of scientists from the country are analyzed. An important problem which is put by the author is the estimation deportation results and an intellectual exhaustion of the society.

Early Historical Influences On Separation Of Property In English Law, Meryl A.P. Thomas

Meryl A.P. Thomas

Paper seeks to examine historical factors and influences that led to separation of property in England. Approach taken is a comparative approach, looking at how community of property developed in France, while at corresponding period in England this did not occur. Paper seeks to explore the factors that led to the development of community property in France, and more importantly to identify the factors that led to the development of separation of property in England.

Critiquing Modern-Day U.S. Legal Education With Rhetoric: Frank's Plea And The Scholar Model Of The Law Professor Persona, Carlo A. Pedrioli

Carlo A. Pedrioli

This article explains how, from 1920 to 1960, the role, or persona, of the law professor in the United States remained the situs of considerable rhetorical controversy that the role had been in the fifty years before 1920. On one hand, lawyers used rhetoric to promote a persona, that of a scholar, appropriate for the law professor situated within the university, a context suitable for the professionalization of law. On the other hand, different lawyers like Judge Jerome Frank used rhetoric to critique, often in a scathing manner, the scholar persona and put forth their own persona, that of a …

Law, Popular Legal Culture, And The Case Of Kansas, 1854-1856, Chad G. Marzen

Chad G. Marzen

This article analyzes the popular legal culture to appeals for emigration to Kansas made by abolitionists and Northeasterners in response to the passage of the Kansas-Nebraska Act of 1854. The article concludes that by engaging in a close reading of Kansas rhetoric from 1854-1856 in the instruments of popular culture which responded to the Kansas-Nebraska Act, the significant change in tone helps to explain how popular culture and the response to the legislation led to the growing polarization between North and South prior to the onset of the Civil War.

Radbruch On The Origins Of The Criminal Law: Punitive Interventions Before Sovereignty, Mireille Hildebrandt

Mireille Hildebrandt

This chapter is dedicated to Radbruch’s seminal text on ‘The origin of criminal law in the class of serfs’. It contains a number of counter intuitive insights on the relationship between public punishment and private revenge, derived from the domains of legal history and anthropological research in non-state societies. Radbruch’s aim was not to provide a historiography of punitive interventions in tribal Germanic society, but to remind his readers of the constitutive importance of sovereignty for the emergence of criminal law. This relates to Radbruch’s concern for legal certainty, and explains his inquiries into the continuity and discontinuities between the …

Criminal Law And Technology In A Data-Driven Society, Mireille Hildebrandt

Mireille Hildebrandt

This chapter takes leave of the idea that lawyers can remain immersed in legal text. It takes a stand for a careful reflection on what data-driven architectures do to some of the assumptions of modern law that are mistakenly taken for granted. Merely enacting the presumption of innocence by means of legal code will not do in the present future. If the defaults of Big Data analytics all point in the direction of precrime punishment or the pre-emption of inferred criminal intent, we need to reconfigure the smart decision systems that progressively mediate the perception and cognition of law enforcement …

Rebooting The Discourse On Causation In Criminal Law: A Pragmatic (And Imperfect) Approach, Michele C. Materni

Mike C Materni

Causation in the criminal law is an extremely complex issue for several reasons. Prime among those reasons is the fact that most scholars who have tackled the issue have done so by searching for a universal, comprehensive solution. This Article starts from the premise that such a solution is unattainable. Rather than embarking in extravagant philosophical inquiries, the Article offers a pragmatic solution to the issue of causation in the criminal law. Applying a methodology that finds validation in the philosophy of science, the Article argues that causation in the criminal law should be constructed in functional terms. Linking the …

Judicial Activism: An (Un)Expected Result Of Legal Interpretation In Complex Societies?, Fabio P L Almeida Mr, Alexandre A. Costa Dr

Fabio P L Almeida

Judicial activism has been accused of being an undue activity of judges, who should restrict themselves to the interpretation of the law. In this article, we argue that this conception is wrong: judicial activism does not imply a distortion in political and judicial structures, but it should be understood as an expected feature of legal interpretation in complex political systems. In contemporary liberal democracies, legislation cannot regulate all situations, and thus the only way to affirm its universality is through flexible interpretation, which grants to society the ability to adapt its legal system to new circumstances without the need to …

Table Annexed To Article: Counting ‘Sled Dog’ Adjectives Deployed In The Early Constitution (1787-1804), Peter Aschenbrenner

Peter J. Aschenbrenner

When a vocabulary of 49 adjectives – cardinals, ordinals, pronomials, and so forth – what OCL calls the ‘sled dog’ adjectives are tested against the target vocabulary – all 5,224 words in the Early Constitution (1787-1804), a total of 485 hits are recorded. OCL surveys these results and draws conclusions.

Table Annexed To Article: Color Me Adverb: How The Convention Painted The Text Of The Philadelphia Constitution, Peter Aschenbrenner

Peter J. Aschenbrenner

Adverbs are one of the principal – and most readily trackable – means by which writers of the English language color their output. Relying on ‘-ly’ adverbs (out of 3,732 total adverbs), adverb usage in the Philadelphia constitution is measured.

Table Annexed To Article: Counting Adjectives Deployed In The Early Constitution (1787-1804), Peter Aschenbrenner

Peter J. Aschenbrenner

How many adjectives were deployed by the authors of the Early Constitution (1787-1804)? Counting adjectives in the target vocabulary, the computation returns 114 different adjectives with 531 total deployments in the 5,224 words of the Early Constitution. Why do adjectives matter in English (or in any IE language)? Why do these counts matter?

Presentation: Luke Beck, Under The Commonwealth: The Royal Succession And The Religious Tests Clause Of The Australian Constitution, After Williams Colloquium (University Of Southern Queensland Oct. 4, 2013), Citing Teachout-Tillman Exchange And Tillman's Interpreting Precise Constitutional Text, Seth Barrett Tillman

Seth Barrett Tillman

Extract from Luke Beck, Presentation, Under the Commonwealth: The Royal Succession and the Religious Tests Clause of the Australian Constitution, After Williams [v Cwlth] Colloquium (University of Southern Queensland Oct. 4, 2013) (on file with author), citing Teachout-Tillman Exchange and Tillman's Interpreting Precise Constitutional Text.

[October 17, 2013]

Fashion, Sexism, And The United States Federal Judiciary, Charles E. Colman

Charles E. Colman

The U.S. federal judiciary has frequently displayed a dismissive attitude toward "fashion," while simultaneously recognizing the great economic importance of clothing. As fashion was, from the formation of the United States until at least the late 1960s, associated primarily with the female sex, while judges during this time period were almost exclusively male, one naturally wonders whether the power dynamics of gender shaped the development of the law pertaining to fashion. There is good reason to believe that this has indeed been the case.

Slaves To Big Data. Or Are We?, Mireille Hildebrandt

Mireille Hildebrandt

In this contribution the notion of Big Data is discussed in relation to the monetisation of personal data. The claim of some proponents as well as adversaries, that Big Data implies that ‘n = all’, meaning that we no longer need to rely on samples because we have all the data, is scrutinized and found both overly optimistic and unnecessarily pessimistic. A set of epistemological and ethical issues is presented, focusing on the implications of Big Data for our perception, cognition, fairness, privacy and due process. The article then looks into the idea of user centric personal data management, to …

Corporate “Soul”: Legal Incorporation Of Catholic Ecclesiastical Property In The United States - A Historical Perspective, Vicenç Feliú

Vicenç Feliú

This work is a revision and update of a study carried out in 1933 by Monsignor Patrick J. Dignan. Dignan’s purpose in his study was to outline the history of how the Roman Catholic Church secured laws for the protection of church property in accordance with the hierarchical nature of the Church. The purpose of the present article is to bring up to date Dignan’s work and complete a survey of the law in its present state. The article analyzes the differences in the law since the original survey to determine if Dignan’s conclusion that the Church should operate to …

The Three Waves Of Married Women’S Property Acts In The Nineteenth Century With A Focus On Mississippi, New York And Oregon, Joe Custer

Joe Custer

Paper starts with a brief section on early America and social reform that provides a background on why married women's property acts (MWPA's) passed when they did in nineteenth century America. After laying the foundation, the paper delves into the three waves in which the MWPA's were passed in the nineteenth century focusing for the first time in the literature on one specific state for each wave. The three states; Mississippi, New York and Oregon, are examined leading up to passage. Next, the paper will look into the judicial reaction of each State’s highest court. Were the courts supportive of …

Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman

Lewis M. Wasserman

Overcoming Obstacles to Religious Exercise in K-12 Education Lewis M. Wasserman Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …

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.

An Anachronism Too Discordant To Be Suffered: A Comparative Study Of Parliamentary And Presidential Approaches To Regulation Of The Death Penalty, Derek R. Verhagen

Derek R VerHagen

It is well-documented that the United States remains the only western democracy to retain the death penalty and finds itself ranked among the world's leading human rights violators in executions per year. However, prior to the Gregg v. Georgia decision in 1976, ending America's first and only moratorium on capital punishment, the U.S. was well in line with the rest of the civilized world in its approach to the death penalty. This Note argues that America's return to the death penalty is based primarily on the differences between classic parliamentary approaches to regulation and that of the American presidential system. …

Legal Mirrors Of Entrepreneurship, Mirit Eyal-Cohen

Mirit Eyal-Cohen

Small businesses are regarded the engine of the economy. But just what is a “small” business? Depending on where one looks in the law, the definitions vary and they differ from one section to another. Unfortunately, what these various size classifications fail to assess, are the policy considerations and the legislative intent for granting regulatory preferences to small concerns to begin with.

In the last century, the U.S. government has been cultivating one such policy of fiscal and economic growth. Consequently, Congress and private institutions have been acting to incentivize, support and reward entrepreneurship through the law in order to …

Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Effective corporate governance is critical to the productive operation of the global economy and preservation of our way of life. Excellent governance execution is also required to achieve economic growth and robust job creation in any country. In the United States, the premier director membership organization is the National Association of Corporate Directors (NACD). Now over 36 years old, NACD plays a major role in fostering excellence in corporate governance in the United States and beyond. Over the past thirty-six years NACD has grown from a mere realization of the importance of corporate governance to become the only national membership …