Open Access. Powered by Scholars. Published by Universities.®

Legal History Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 26 of 26

Full-Text Articles in Legal History

The Security Court, Matthew J. Steilen Sep 2018

The Security Court, Matthew J. Steilen

Journal Articles

The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security ...


All In The Family: A Legacy Of Public Service And Engagement - Edward And Thomas Fairchild, R. Nils Olsen Jr. Jan 2016

All In The Family: A Legacy Of Public Service And Engagement - Edward And Thomas Fairchild, R. Nils Olsen Jr.

Journal Articles

No abstract provided.


The Josiah Philips Attainder And The Institutional Structure Of The American Revolution, Matthew Steilen Jan 2016

The Josiah Philips Attainder And The Institutional Structure Of The American Revolution, Matthew Steilen

Journal Articles

This Article is a historical study of the Case of Josiah Philips. Philips led a gang of militant loyalists and escaped slaves in the Great Dismal Swamp of southeastern Virginia during the American Revolution. He was attainted of treason in 1778 by an act of the Virginia General Assembly, tried for robbery before a jury, convicted and executed. For many years, the Philips case was thought to be an early example of judicial review, based on a claim by St. George Tucker that judges had refused to enforce the act of attainder. Modern research has cast serious doubt on Tucker ...


Bills Of Attainder, Matthew Steilen Jan 2016

Bills Of Attainder, Matthew Steilen

Journal Articles

What are bills of attainder? The traditional view is that bills of attainder are legislation that punishes an individual without judicial process. The Bill of Attainder Clause in Article I, Section 9 prohibits the Congress from passing such bills. But what about the President? The traditional view would seem to rule out application of the Clause to the President (acting without Congress) and to executive agencies, since neither passes bills.

This Article aims to bring historical evidence to bear on the question of the scope of the Bill of Attainder Clause. The argument of the Article is that bills of ...


Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey Jan 2015

Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey

Journal Articles

For a symposium on Teaching Ferguson, this essay considers how the standard introductory constitutional law course evades the history of legal struggle against institutionalized anti-black violence. The traditional course emphasizes the drama of anti-majoritarian judicial expansion of substantive rights. Looming over the doctrines of equal protection and due process, the ghost of Lochner warns of dangers of judicial leadership in substantive constitutional change. This standard narrative tends to lower expectations for constitutional justice, emphasizing the virtues of judicial modesty and formalism.

By supplementing the ghost of Lochner with the ghost of comparably infamous and influential case, United States v. Cruikshank ...


When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas Jan 2015

When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas

Journal Articles

Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against ...


The Rejection Of Horizontal Judicial Review During America's Colonial Period, Robert J. Steinfeld Jan 2015

The Rejection Of Horizontal Judicial Review During America's Colonial Period, Robert J. Steinfeld

Journal Articles

No abstract provided.


What Is Criminal Law About?, Guyora Binder, Robert Weisberg Jan 2015

What Is Criminal Law About?, Guyora Binder, Robert Weisberg

Journal Articles

In a recent critique, Jens Ohlin faults contemporary criminal law textbooks for emphasizing philosophy, history and social science at the expense of doctrinal training. In this response, we argue that the political importance of criminal law justifies including reflection about the justice of punishment in the professional education of lawyers. First, we argue that both understanding and evaluating criminal law doctrine requires consideration of political philosophy, legal history, and empirical research. Second, we argue that the indeterminacy of criminal law doctrine on some fundamental questions means that criminal lawyers often cannot avoid invoking normative theory in fashioning legal arguments. Finally ...


Creating The Public Forum, Samantha Barbas Jan 2011

Creating The Public Forum, Samantha Barbas

Journal Articles

The public forum doctrine protects a right of access - “First Amendment easements” - to streets and parks and other traditional places for public expression. It is well known that the doctrine was articulated by the Supreme Court in a series of cases in the 1930s and 1940s. Lesser known are the historical circumstances that surrounded its creation. Critics believed that in a modern world where the mass media dominated public discourse - where the soap box orator and pamphleteer had been replaced by the radio and mass circulation newspaper - mass communications had undermined the possibility of widespread participation in politics, public life ...


The Origins Of American Felony Murder Rules, Guyora Binder Jan 2004

The Origins Of American Felony Murder Rules, Guyora Binder

Journal Articles

Contemporary commentators continue to instruct lawyers and law students that England bequeathed America a sweeping default principle of strict liability for all deaths caused in all felonies. This Article exposes the harsh "common law" felony murder rule as a myth. It retraces the origins of American felony murder rules to reveal their modern, American, and legislative sources, the rationality of their original scope, and the fairness of their original application. It demonstrates that the draconian doctrine of strict liability for all deaths resulting from all felonies was never enacted into English law or received into American law. This Article reviews ...


The Accidental Legal Historian: Herman Melville And The History Of American Law, Alfred S. Konefsky Jan 2004

The Accidental Legal Historian: Herman Melville And The History Of American Law, Alfred S. Konefsky

Journal Articles

No abstract provided.


Coercion, Contract And Free Labor In The Nineteenth Century (A Response To Gunther Peck), Robert J. Steinfeld Jan 2003

Coercion, Contract And Free Labor In The Nineteenth Century (A Response To Gunther Peck), Robert J. Steinfeld

Journal Articles

No abstract provided.


Subjectship, Citizenship, And The Long History Of Immigration Regulation, Robert J. Steinfeld Jan 2001

Subjectship, Citizenship, And The Long History Of Immigration Regulation, Robert J. Steinfeld

Journal Articles

No abstract provided.


Madison's Hope: Virtue, Self-Interest, And The Design Of Electoral Systems, James A. Gardner Jan 2000

Madison's Hope: Virtue, Self-Interest, And The Design Of Electoral Systems, James A. Gardner

Journal Articles

In recent years, perhaps no institution of American governance has been so thoroughly and consistently excoriated by legal theorists as the familiar American system of winner-take-all elections. The winner-take-all system is said to waste votes, lead to majority monopolization of political power, and cause the under representation and consequent social and economic subordination of political minorities. Some political scientists have attempted to defend winner-take-all systems on the ground that they perform better than PR in maximizing long-term collective and social interests. This article argues, in contrast, that winner-take-all electoral systems rest upon, and can be adequately defended, if at all ...


The Voice Of Willard Hurst, Alfred S. Konefsky Jan 2000

The Voice Of Willard Hurst, Alfred S. Konefsky

Journal Articles

No abstract provided.


Cultural Criticism Of Law, Guyora Binder, Robert Weisberg Jan 1997

Cultural Criticism Of Law, Guyora Binder, Robert Weisberg

Journal Articles

Professors Binder and Weisberg expound a "cultural criticism" of law that views law as an arena for composing, representing, and contesting identity, and that treats identity as constitutive of the interests that motivate instrumental action. They explicate this critical method by reference to "New Historicist" literary criticism, postmodern social theory, and Nietzchean aesthetics. They illustrate this method by reviewing recent scholarship of two kinds: First, they explore how legal disputes take on expressive meaning for parties and observers against the background of legal norms regulating or recognizing identities. Second, they examine "readings" of the representations of character, credit, and value ...


The Slavery Of Emancipation, Guyora Binder Jan 1996

The Slavery Of Emancipation, Guyora Binder

Journal Articles

The Thirteenth Amendment abolishes the institution of slavery rather than freeing individual slaves. Yet it quickly came to stand for little more than granting universal rights to make labor contracts and to leave service. This article develops a distinction between abolishing an institution and reclassifying individuals within it. Drawing on the comparative history of slavery, it shows that the institution of slavery has generally included mechanisms for the manumission of slaves and their passage into a liminal status combining self-ownership with social subordination and relative isolation. A critical account of the Antelope litigation shows that proponents of mass manumission still ...


Institutions And Linguistic Conventions: The Pragmatism Of Lieber's Legal Hermeneutics, Guyora Binder Jan 1995

Institutions And Linguistic Conventions: The Pragmatism Of Lieber's Legal Hermeneutics, Guyora Binder

Journal Articles

This article presents Francis Lieber’s 1839 treatise “Legal and Political Hermeneutics” as a surprisingly modern and pragmatic account of interpretation. It first explicates the two most important influences on Liber’s thought, the romantic philology of Friedrich Schleiermacher, and the institutional positivism of Whig jurists Story and Kent. It shows that both of these sources frankly acknowledged that interpretation is an institutional practice, organized by the evolving aims and customs of the institutions within which it took place. Both tended to view the writing and reading of texts as the deployment of linguistic conventions. Both movements thereby viewed meaning ...


The Colonial Origins Of Liberal Property Rights, Elizabeth B. Mensch Jan 1992

The Colonial Origins Of Liberal Property Rights, Elizabeth B. Mensch

Journal Articles

No abstract provided.


Property And Suffrage In The Early American Republic, Robert J. Steinfeld Jan 1989

Property And Suffrage In The Early American Republic, Robert J. Steinfeld

Journal Articles

No abstract provided.


The Line Between History And Casenote, John Henry Schlegel Jan 1988

The Line Between History And Casenote, John Henry Schlegel

Journal Articles

No abstract provided.


Religion, Revival, And The Ruling Class: A Critical History Of Trinity Church, Elizabeth B. Mensch Jan 1987

Religion, Revival, And The Ruling Class: A Critical History Of Trinity Church, Elizabeth B. Mensch

Journal Articles

No abstract provided.


Notes Toward An Intimate, Opinionated, And Affectionate History Of The Conference On Critical Legal Studies, John Henry Schlegel Jan 1984

Notes Toward An Intimate, Opinionated, And Affectionate History Of The Conference On Critical Legal Studies, John Henry Schlegel

Journal Articles

No abstract provided.


Mirror, Mirror On The Wall: Histories Of American Law Schools, Alfred S. Konefsky, John Henry Schlegel Feb 1982

Mirror, Mirror On The Wall: Histories Of American Law Schools, Alfred S. Konefsky, John Henry Schlegel

Journal Articles

No abstract provided.


Comments On The History Of Plea Bargaining, Lynn M. Mather Jan 1979

Comments On The History Of Plea Bargaining, Lynn M. Mather

Journal Articles

No abstract provided.


Lawyers' Papers As A Source Of Legal History: The 19th Century, Alfred Konefsky Aug 1976

Lawyers' Papers As A Source Of Legal History: The 19th Century, Alfred Konefsky

Journal Articles

No abstract provided.