Legal History Commons^™

The Presumptions Of Classical Liberal Constitutionalism, Matthew J. Lindsay

All Faculty Scholarship

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 …

Whose Bright Idea Was This Anyway? The Origins Of Judicial Elections In Maryland, Yosef Kuperman

University of Baltimore Law Forum

This paper describes how Maryland switched from the life-tenured appointed judiciary under its original Constitution to an elected judiciary. It traces the history of judicial selection from the appointments after 1776 through the Ripper Bills of the early nineteenth century to the eventual adoption of judicial elections in 1850. It finds that the supporters of judicial elections had numerous complex motives that boiled down to trying to make the Judiciary less political but more publically accountable. At the end of the day, Marylanders trusted elections more than politicians.

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

All Faculty Scholarship

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

All Faculty Scholarship

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

All Faculty Scholarship

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

All Faculty Scholarship

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

All Faculty Scholarship

No abstract provided.

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

All Faculty Scholarship

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 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 …

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

All Faculty Scholarship

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 …

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

All Faculty Scholarship

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 …