Legal History Commons^™

A Century In The Making: The Glorious Revolution, The American Revolution, And The Origins Of The U.S. Constitution’S Eighth Amendment, John Bessler

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The sixteen words in the U.S. Constitution’s Eighth Amendment have their roots in England’s Glorious Revolution of 1688–89. This Article traces the historical events that initially gave rise to the prohibitions against excessive bail, excessive fines, and cruel and unusual punishments. Those three proscriptions can be found in the English Declaration of Rights and in its statutory counterpart, the English Bill of Rights. In particular, the Article describes the legal cases and draconian punishments during the Stuart dynasty that led English and Scottish parliamentarians to insist on protections against cruelty and excessive governmental actions. In describing the grotesque punishments of …

The Marquis Beccaria: An Italian Penal Reformer’S Meteoric Rise In The British Isles In The Transatlantic Republic Of Letters, John Bessler

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This article traces the reception of Cesare Beccaria’s book, Dei delitti e delle pene (1764), in Britain and in colonial and early America. That book, first translated into English as An Essay on Crimes and Punishments (1767), catalyzed penal reform and the anti-gallows movement on both sides of the Atlantic. As the first Enlightenment text to make a comprehensive case against capital punishment, On Crimes and Punishments became a bestseller, appearing in multiple English-language editions and attracting much public attention. Widely read by an array of British and American lawmakers and other civic-minded penal reformers, On Crimes and Punishments was …

Morality, Law, And Judicial Ethics In The Western Legal Tradition, Mortimer N.S. Sellers

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No abstract provided.

The Presumptions Of Classical Liberal Constitutionalism, Matthew J. Lindsay

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Richard A. Epstein’s The Classical Liberal Constitution is an imposing addition to the burgeoning body of legal scholarship that seeks to “restore” a robust conception of economic liberty and limited government to its rightful place at the center of American constitutionalism. Legislators and judges operating within a “classical liberal conception of government,” Epstein explains, would approach skeptically “[a]ll [regulatory] proposals that deviate from the basic common law protections of life, liberty, and property.” Classical liberal constitutional courts would thus renounce the toothless rational basis review of the post-New Deal “progressive mindset,” and instead subject to exacting scrutiny the government’s “purported …

The Italian Enlightenment And The American Revolution: Cesare Beccaria's Forgotten Influence On American Law, John Bessler

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The influence of the Italian Enlightenment—the Illuminismo—on the American Revolution has long been neglected. While historians regularly acknowledge the influence of European thinkers such as William Blackstone, John Locke and Montesquieu, Cesare Beccaria’s contributions to the origins and development of American law have largely been forgotten by twenty-first century Americans. In fact, Beccaria’s book, Dei delitti e delle pene (1764), translated into English as On Crimes and Punishments (1767), significantly shaped the views of American revolutionaries and lawmakers. The first four U.S. Presidents—George Washington, John Adams, Thomas Jefferson and James Madison—were inspired by Beccaria’s treatise and, in some cases, read …

Book Review (Reviewing Louis Fisher's Congress: Protecting Individual Rights), Adeen Postar

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Fisher is currently the Scholar in Residence at the Constitution Project, and is well known for his many years as Senior Specialist on Separation of Powers at the Congressional Research Service and as Specialist in Constitutional Law at the Law Library of Congress. He has extensive experience testifying before Congress on topics that include Congress and the constitution, war powers, executive power and privilege, and several aspects of the federal budget and its processes. He has written numerous books on these topics, including (to name only a few) The President and Congress: Power and Policy (1972); Defending Congress and the …

Niccolò Machiavelli: Father Of Modern Constitutionalism, Mortimer N.S. Sellers

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Niccolò Machiavelli is the father of modern constitutionalism. Constitutionalism began anew in the modern world with the study of the ancient republics and it was Machiavelli who inaugurated this revived science of politics. Five hundred years after the composition of Il Principe and the Discorsi we are still working out the implications of applying reason to the structures of law and government in pursuit of justice and the common good. Modern constitutionalism and ancient republicanism share three central beliefs: first, that government should serve justice and the common good; second, that government should do so through known and stable laws; …

A Government Of Laws Not Of Precedents 1776-1876: The Google Challenge To Common Law Myth, James Maxeiner

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The United States, it is said, is a common law country. The genius of American common law, according to American jurists, is its flexibility in adapting to change and in developing new causes of action. Courts make law even as they apply it. This permits them better to do justice and effectuate public policy in individual cases, say American jurists.

Not all Americans are convinced of the virtues of this American common law method. Many in the public protest, we want judges that apply and do not make law. American jurists discount these protests as criticisms of naive laymen. They …

The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson

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The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.

A careful reading of the history of the framing …

The Role Of Political And Social Movements On Women’S Entry Into The Legal Profession In Maryland (1902-1918), Jane C. Murphy

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The rise of women in the legal profession in Maryland was shaped by a wide range of factors, including national, state, and local political and social movements. As one scholar has noted, "[W] omen's lives are complex and .. . region, period, personality, and circumstance crucially influence what a subject is able to make of herself."' In this chapter, I explore how those circumstances-- personal and political-influenced the first group of eight women admitted to the Maryland Bar between 1902 and 1920. These women-Etta Maddox, Anna Grace Kennedy, Emilie Doetsch, Marie Elizabeth Kirk Coles, Mary Virginia Meushaw, Helen F. Hill, …

The Federal Rules At 75: Dispute Resolution, Private Enforcement Or Decision According To Law?, James Maxeiner

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This essay is a critical response to the 2013 commemorations of the 75th anniversary of the Federal Rules of Civil Procedure.

The Federal Rules of Civil Procedure were introduced in 1938 to provide procedure to decide cases on their merits. The Rules were designed to replace decisions under the “sporting theory of justice” with decisions according to law. By 1976, at midlife, it was clear that they were not achieving their goal. America’s proceduralists split into two sides about what to do.

One side promotes rules that control and conclude litigation: e.g., plausibility pleading, case management, limited discovery, cost indemnity …

The Constitutional Thought Of Alexander Hamilton, Mortimer N.S. Sellers

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Alexander Hamilton was one of the strongest minds behind the development of modern constitutionalism, both in theory and in practice. Hamilton shared the constitutional principles of his republican contemporaries in his commitment to bicameral legislatures, elected executives, the separation of powers, checks and balances in government, and representative (rather than direct) democracy. He differed somewhat in his much stronger commitment to federalism, to executive power, and to judges, as the bulwark of constitutional liberty. Hamilton became as "Publius" (with James Madison) in "The Federalist" the foremost advocate and interpreter of constitutional government as it would ultimately be implemented in the …

Fifty Years Before Brady, Colin Starger

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In marking the fiftieth anniversary of Brady v. Maryland, a fitting way to appreciate the historic significance of Justice Douglas’ opinion for the Court is to turn back the pages another fifty years. Brady’s profound contribution to our criminal justice system becomes apparent by considering the impoverished state of the Supreme Court’s due process doctrine as it stood a century ago. In the fifty years that led up to Brady, the Court confronted a series of racially and politically charged cases that forced constitutional soul searching about due process in the face of rank injustice. The story of the Court’s …

The Dialectic Of Stare Decisis Doctrine, Colin Starger

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In the United States Supreme Court, the concept of stare decisis operates as both metadoctrine and doctrine. On the one hand, stare decisis functions as a generally applicable presumption in favor of adherence to precedent. This presumption is metadoctrinal because it provides a generic argument against overruling that applies independently of the substantive context of any given case. On the other hand, when the Court considers overruling a particularly controversial precedent, it usually weighs the constraining force of stare decisis by invoking factors and tests announced in its own prior caselaw. In other words, the Court has precedent about when …

The Anomaly Of Executions: The Cruel And Unusual Punishments Clause In The 21st Century, John Bessler

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This Article describes the anomaly of executions in the context of the U.S. Supreme Court’s Eighth Amendment jurisprudence. While the Supreme Court routinely reads the Cruel and Unusual Punishments Clause to protect prisoners from harm, the Court simultaneously interprets the Eighth Amendment to allow inmates to be executed. Corporal punishments short of death have long been abandoned in America’s penal system, yet executions — at least in a few locales, heavily concentrated in the South — persist. This Article, which seeks a principled and much more consistent interpretation of the Eighth Amendment, argues that executions should be declared unconstitutional as …

Tinkering Around The Edges: The Supreme Court's Death Penalty Jurisprudence, John Bessler

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This Essay examines America's death penalty forty years after Furman and provides a critique of the Supreme Court's existing Eighth Amendment case law. Part I briefly summarizes how the Court, to date, has approached death sentences, while Part II highlights the incongruous manner in which the Cruel and Unusual Punishments Clause has been read. For instance, Justice Antonin Scalia-one of the Court's most vocal proponents of "originalism" conceded that corporal punishments such as handbranding and public flogging are no longer constitutionally permissible; yet, he (and the Court itself) continues to allow death sentences to be imposed. The American Bar Association …

Review Of A Final Accounting, Holocaust Survivors And Swiss Banks, Adeen Postar

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No abstract provided.

Presidential Memories: Lincoln's Relationship With The Jews - Remembered On President's Day, Kenneth Lasson

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This article examines the relationship President Abraham Lincoln had with members of the Jewish faith.

Ever since George Washington, U.S. presidents have made inclusive gestures toward Jewish-American citizens and soldiers, but only Abraham Lincoln, whose 291st birthday we celebrated last week, ever officially intervened on their behalf. He did it twice within the span of two years. During his political career Lincoln had many Jewish associates, advisers and supporters.

During the Civil War General Grant issued General Order No. 11, which is also discussed. This order was a result of Grant’s perception that Jews were participating in a black market …

Book Review (Reviewing Leonard Orland's A Final Accounting), Adeen Postar

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Leonard Orland is the Oliver Ellsworth Professor of Law at the University of Connecticut. He has written a fine, if a bit unwieldy, book that traces the sad history of money and other assets deposited in supposedly sacrosanct Swiss banks by European Jews during the Nazi era to its long overdue resolution by the American justice system. The book provides background and perspective on how and why the $12.1 billion in pre-war dollars (about $250 trillion today) of financial assets of Holocaust victims disappeared into thin air in the years following World War II. These assets were given over to …

Dan Freed: My Teacher, My Colleague, My Friend, Ronald Weich

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At a recent meeting of the National Association of Sentencing Commissions, Yale professor Dan Freed was honored during a panel discussion titled "Standing on the Shoulders of Sentencing Giants," Dan Freed is indeed a sentencing giant. but he is the gentlest giant of all. It is hard to imagine that a man as mild-mannered, soft-spoken, and self-effacing as Dan Freed has had such a profound impact on federal sentencing law and so many other areas of criminal justice policy, Yet he has.

I've been in many rooms with Dan Freed over the years — classrooms, boardrooms, dining rooms, and others. …

The Gentleman From Hagerstown: How Maryland Jews Won The Right To Vote, Kenneth Lasson

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This article discusses the early history of Maryland in the context of religious discrimination, specifically in reference to discrimination against those of the Jewish faith, even though the state "was founded as a haven of religious liberty and beacon of toleration." It also highlights a member of the Maryland House of Delegates, Thomas Kennedy, a Christian, as being the leader of the movement to ultimately correct this injustice. Part of the problem were clauses in the state's constitution requiring officeholders to be Christians. Kennedy lost his seat in the House, but didn't give up the battle. Ha had tried several …

The Ethical And Legal Basis For Student Practice In Clinical Education In The United States And Japan: A Comparative Analysis, Robert Rubinson

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Clinical legal education is currently undergoing a surge of interest and development in Japan. This raises numerous opportunities as well as difficulties. One of the most vexing issues concerns the scope of work a clinic student in Japan can do. This issue is particularly difficult given that in Japan there are currently no "student practice rules" so common in the United States.

The norms and rules governing what activities law students can perform in the United States might assist those interested in clinical education in Japan as they work through these issues. This article will attempt to do this. I …

Symposium: Bruce Springsteen And The American Lawyer: "Meanness In This World", Garrett Epps

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As part of a symposium on Bruce Springsteen and American law, this essay considers the themes explored by Springsteen in his song "Nebraska," which was inspired by the story of Charles Starkweather and Caril Anne Fugate, two young "lovers" who indulged in a remarkable course of violence in Nebraska during the 1950s. The essay asks to what extent the song, and the story, echo the themes of emigration and displacement that are key elements in the history and current reality of the American West. The essay compares the story of Starkweather and Fugate with the current case of Christian Longo, …

The Botched Hanging Of William Williams: How Too Much Rope And Minnesota’S Newspapers Brought An End To The Death Penalty In Minnesota, John Bessler

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This article describes Minnesota's last state-sanctioned execution: that of William Williams, who was hanged in 1906 in the basement of the Ramsey County Jail. Convicted of killing a teenage boy, Williams was tried on murder charges in 1905 and was put to death in February of the following year. Because the county sheriff miscalculated the length of the rope, the hanging was botched, with Williams hitting the floor when the trap door was opened. Three deputies, standing on the scaffold, thereafter seized the rope and forcibly pulled it up until Williams - fourteen and half minutes later - died by …

Speech: The Bill Of Rights, Garrett Epps

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The Bill of Rights is a much more fortuitous addition to the Constitution than many people imagine. The tired delegates at Philadelphia were unable to make the final effort to frame a bill of rights, and their failure nearly caused the collapse of ratification. When the First Congress met, James Madison took responsibility for making the new government live up to the implied pledge made during ratification to provide a partial list, drawn from the historic rights on English subjects. Not all Madison's proposed amendments were adopted however. The work of adumbrating the full scope of liberty under the Constitution …

Gender Bias: Continuing Challenges And Opportunities, Rebecca Korzec

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In 1873 the U.S. Supreme Court denied Myra Bradwell the right to practice law, holding "the paramount destiny and mission of women are to fulfill the noble and benign office of wife and mother." Now, just slightly more a century later, two women sit on the Supreme Court, and almost half of all law students and law school faculty are women.

Standard Terms Contracting In The Global Electronic Age: European Alternatives, James Maxeiner

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This article examines American, European Union and German standard terms laws from an American perspective. It considers not only current law, but significant aspects of the development of these bodies of law. It sets out general issues involved in standard terms laws and summarizes American law. It notes the origin of American concepts in Europe and examines standard terms in the struggle over revision of the Uniform Commercial Code. It looks at the law of the European Union and its origin in the consumer movement. It considers in detail the law of one Member State as an example, that of …

Professor Waller's Un-American Approach To Antitrust, Robert H. Lande

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Professor Waller asks an un-American question - what can the United States antitrust program learn from the rest of the world? This question is un-American because we in the United States rarely look to others for advice. Besides, we invented antitrust and we were practically alone in the world in enforcing antitrust for almost a century. Only during the current generation have many other nations had active and vigorous antitrust programs. Moreover, the United States is in the business of exporting our accumulated century of antitrust wisdom through a wide variety of methods, and we revel in playing this role. …

Holocaust Deniers Can't Be Ignored: History: As Victims And Witnesses Of World War Ii Die Off, Revisionist Views Of The Nazi Horrors Could Gain Broader Acceptance, Kenneth Lasson

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On trial in an English courtroom, where British historian David Irving has sued American professor Deborah Lipstadt for defamation, is not only the scholars' reputations but history itself. Irving claims that he was libeled by Lipstadt's 1993 book, "Denying the Holocaust: The Growing Assault on Truth and Memory," in which she called him "one of the most dangerous of the `revisionists'" because, "familiar with historical evidence, he bends it until it conforms with his ideological leanings and political agenda." But under British law, the burden of proof in defamation is squarely on the defendant, thus making it necessary for Lipstadt …

Twain's Admiration Of Jews Conflicted His Article Of 100 Years Ago Seems Less Flattering Today, Kenneth Lasson

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It's been exactly a hundred years since Mark Twain first revealed himself as an unmitigated admirer of Jewish people. "A marvelous race, by long odds the most marvelous that the world has produced, I suppose." he wrote in "Concerning the Jews," published in March of 1898 by Harper's magazine.

How different after all was Twain from H.L. Mencken, who (after the posthumous publication of his diaries) was attacked as an anti-Semite? As literary critic Joseph Epstein has pointed out, Mencken talked about Jews the way they talked about themselves: "But H.L. Mencken was no anti-Semite. For that he would have …