Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Supreme Court of the United States (36)
- Constitutional Law (31)
- Legislation (26)
- Law and Race (22)
- Comparative and Foreign Law (20)
-
- Civil Rights and Discrimination (18)
- Courts (15)
- Criminal Procedure (14)
- Common Law (12)
- State and Local Government Law (12)
- Business Organizations Law (10)
- Criminal Law (10)
- Judges (10)
- Intellectual Property Law (9)
- Law and Politics (9)
- Law and Society (9)
- Property Law and Real Estate (9)
- Labor and Employment Law (8)
- Human Rights Law (7)
- Litigation (7)
- Securities Law (7)
- Jurisprudence (6)
- Commercial Law (5)
- Law and Gender (5)
- Legal Education (5)
- Religion Law (5)
- Administrative Law (4)
- Fourteenth Amendment (4)
- Keyword
-
- History (74)
- United States Supreme Court (37)
- Race and law (17)
- Constitution (15)
- Law reform (15)
-
- England (14)
- Freedom (14)
- Congress (13)
- Louisiana (12)
- Slavery (12)
- Property (11)
- Race (11)
- Slaves (11)
- Cuba (10)
- Iceland (8)
- Trials (8)
- Corporations (7)
- Due process (7)
- Equality (7)
- Juries (7)
- Lawyers (7)
- Property rights (7)
- Punishment (7)
- Colonies (6)
- Constitutional interpretation (6)
- New Orleans (6)
- Reconstruction (6)
- Sagas (6)
- Statutory interpretation (6)
- University of Michigan Law School (6)
Articles 1 - 30 of 161
Full-Text Articles in Legal History
Une Histoire Pragmatique Du Politique, William J. Novak, Stephen W. Sawyer
Une Histoire Pragmatique Du Politique, William J. Novak, Stephen W. Sawyer
Articles
Comme le montre ce numero, nous ne sommes guere en manque de tentatives recentes de repenser l'histoire du politique. En effet, deux generations d'historiens ont deja produit un grand nombre de nouvelles approches et de perspectives a partir desquelles il est maintenant possible d'etudier l'histoire politique a nouveaux frais. Dans le contexte historiographique americain, nous avons ete temoins d'une serie de nouvelles approches allant de ce que l'on a appele la « nouvelle histoire sociale politique » des annees 1970 a l'effort des sciences sociales pour « repenser l'Etat » (Bringing the State Back In) dans les annees 1980 et …
The Historical Origins And Current Prospects Of The Multilateral Tax Convention, Reuven S. Avi-Yonah, Eran Lempert
The Historical Origins And Current Prospects Of The Multilateral Tax Convention, Reuven S. Avi-Yonah, Eran Lempert
Articles
This article has three aims. First, it surveys the pre-BEPS efforts to create a multilateral tax convention (MTC) from the 19th century onward, and explains why these efforts have failed, leading to an international tax regime dominated by unilateralism and bilateralism. Second, it contrasts the success of multilateralism in investment and trade law. Third, it examines the BEPS era efforts to create an MTC and suggests that, while there has been more convergence of the tax laws of countries, a fundamental divergence of interests persists that will likely doom any such efforts to failure. The article concludes that, at this …
The Not-So-Standard Model: Reconsidering Agency-Head Review Of Administrative Adjudication Decisions, Rebecca S. Eisenberg, Nina A. Mendelson
The Not-So-Standard Model: Reconsidering Agency-Head Review Of Administrative Adjudication Decisions, Rebecca S. Eisenberg, Nina A. Mendelson
Articles
The Supreme Court has invalidated multiple legislative design choices for independent agency structures in recent years, citing Article II and the need for political accountability through presidential control of agencies. In United States v. Arthrex, Inc., the Court turned to administrative adjudication, finding an Appointments Clause violation in the assignment of certain final patent adjudication decisions to appellate panels of unconfirmed administrative patent judges. As a remedy, a different majority declared unenforceable a statutory provision that had insulated Patent and Trademark Office (PTO) administrative adjudication decisions from political review for almost a century. The Court thereby enabled the politically appointed …
Delegation At The Founding: A Response To Critics, Julian Davis Mortenson, Nicholas Bagley
Delegation At The Founding: A Response To Critics, Julian Davis Mortenson, Nicholas Bagley
Articles
This essay responds to the wide range of commentary on Delegation at the Founding, published previously in the Columbia Law Review. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive effect. To the contrary: Depending on the relationships you chose to emphasize, a given act could properly be classified as both legislative (from the perspective of the immediate actor) and also executive (from the perspective …
Willard Hurst, Technological Changes, And The Transformation Of American Public Law, William J. Novak
Willard Hurst, Technological Changes, And The Transformation Of American Public Law, William J. Novak
Articles
As Sociobiologist E.O. Wilson once famously framed the “problem of humanity”: “We have paleolithic emotions; medieval institutions; and god-like technology.” America’s greatest philosopher John Dewey similarly placed this yawning gap between rapidly expanding technological change and slowly evolving human emotions and institutions at the heart of what he called The Public and Its Problems. Indeed, Dewey traced the origins of the modern American state as well as what he termed “the Great Society” to the new and modern technologies in production and commerce and steam and electricity that “resulted in a social revolution.” Without warning, Dewey argued, traditional local communities …
Chapter Eight - Technology And The Law: The Automobile (By James Willard Hurst), Bj Ard, William J. Novak
Chapter Eight - Technology And The Law: The Automobile (By James Willard Hurst), Bj Ard, William J. Novak
Articles
In this chapter we are going to talk about some of the automobile effects that it has had. Upon the law, and some of the effects that the law has had upon the automobile. We could undoubtedly open up some worthwhile lines of thought, if we talked about the automobile in relation to, certain brooder problems of which it is a part: for example, the effects of the internal combustion the growth engine, or of all types of communication. But we shall have enough on our hands if we stick to the automobile, and even so in the limits of …
The Future Of Securities Law In The Supreme Court, Adam C. Pritchard, Robert B. Thompson
The Future Of Securities Law In The Supreme Court, Adam C. Pritchard, Robert B. Thompson
Articles
Since the enactment of the first federal securities statute in 1933, securities law has illustrated key shifts in the Supreme Court’s jurisprudence. During the New Deal, the Court’s securities law decisions shifted almost overnight from open hostility toward the newly-expanded administrative state to broad deference to agency expertise. In the 1940s, securities cases helped build the legal foundation for a broadly enabling administrative law. The 1960s saw the Warren Court creating new implied rights of action in securities law illustrative of the Court’s approach to statutes generally. The stage seemed set for the rise of “federal corporate law.” The Court …
Rural Social Safety Nets For Migrant Farmworkers In Michigan, 1942–1971, Emily A. Prifogle
Rural Social Safety Nets For Migrant Farmworkers In Michigan, 1942–1971, Emily A. Prifogle
Articles
In the 1960s, farmers pressed trespass charges against aid workers providing assistance to agricultural laborers living on the farmers’ private property. Some of the first court decisions to address these types of trespass, such as the well-known and frequently taught State v. Shack (1971), limited the property rights of farmers and enabled aid workers to enter camps where migrants lived. Yet there was a world before Shack, a world in which farmers welcomed onto their land rural religious groups, staffed largely by women from the local community, who provided services to migrant workers. From the 1940s through the 1960s, federal, …
The Federalist Constitution: Foreword, David S. Schwartz, Jonathan Gienapp, John Mikhail, Richard A. Primus
The Federalist Constitution: Foreword, David S. Schwartz, Jonathan Gienapp, John Mikhail, Richard A. Primus
Articles
Over the past twenty years, constitutional law has taken a decidedly historical turn, both in academia and in the courts. The U.S. Supreme Court’s constitutional decisions are increasingly filled with extended historical inquiries, and not just by self-described originalists. Yet much of this historical inquiry is severely distorted. Twenty-first-century lawyers and judges enjoy improved and ever-widening access to a rich array of primary sources from the founding era and the early republic, but the ability of modern interpreters to make sense of these materials is pervasively affected by present biases. Many of these biases stem directly from long-standing received narratives …
Symposium: Diamond Anniversary: 75 Years Of The Lanham Act, Jessica Litman
Symposium: Diamond Anniversary: 75 Years Of The Lanham Act, Jessica Litman
Articles
Thank you so much for inviting me. I think this is my fifth or sixth event with the Arts and Entertainment Law Journal. It’s always lots of fun, and I learn a lot. I’ve been spending the last couple of months doing a deep dive into everything Edward Sidney Rogers with no real agenda. I’m exploring what’s there, to see if there are any interesting stories I might tell. I found a few, so this afternoon I’ll tell one of them. I want to start with the mundane observation that intellectual prop-erty and intellectual property law are global. We’ve seen …
Delegation At The Founding, Julian Davis Mortenson, Nicholas Bagley
Delegation At The Founding, Julian Davis Mortenson, Nicholas Bagley
Articles
This article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power---let alone by empowering the judiciary to police legalized limits. To the contrary, the overwhelming majority of Founders didn’t see anything wrong with delegations as a matter of legal theory. The formal account just wasn’t that complicated: Any particular use of coercive rulemaking authority could readily be characterized as the exercise of either executive or legislative power, and was thus formally valid regardless …
Stanley Surrey, The 1981 Us Model, And The Single Tax Principle, Reuven S. Avi-Yonah
Stanley Surrey, The 1981 Us Model, And The Single Tax Principle, Reuven S. Avi-Yonah
Articles
2021 marks the fortieth anniversary of the 1981 US Model Tax Treaty as well as the fifth anniversary of the 2016 US Model Tax Treaty. The first author has repeatedly argued that the 1981 Model gave life to the single tax principle (‘STP’). The 2016 Model updates effectively implemented the principle that cross-border income should be taxed once – that is not more and but also not less than once. For example, the 2016 Model does not reduce withholding taxes on payments of highly mobile income that are made to related persons that enjoy low or no taxation with respect …
Kings, Lords And Courts In Anglo-Norman England, Robert Hirshon
Kings, Lords And Courts In Anglo-Norman England, Robert Hirshon
Articles
This is an important book, filling a significant gap in scholarship on late Anglo-Saxon and Anglo-Norman law, lordship, and administration. Its primary focus is on the hundred court and its relationship to lords’ local courts. Nicholas Karn argues (204) that, following the creation of shires and hundreds across England in the tenth century, by the middle of the eleventh “the unitary model of the hundred was starting to break down, and decay accelerated and became general into the twelfth century.” Lords either “claimed whole hundreds themselves, or they created lesser units which were originally subsets of hundreds and which were …
The Support-Or-Advocacy Clauses, Richard Primus, Cameron O. Kistler
The Support-Or-Advocacy Clauses, Richard Primus, Cameron O. Kistler
Articles
Two little known clauses of a Reconstruction-era civil rights statute are potentially powerful weapons for litigators seeking to protect the integrity of federal elections. For the clauses to achieve their potential, however, the courts will need to settle correctly a contested question of statutory interpretation: do the clauses create substantive rights, or do they merely create remedies for substantive rights specified elsewhere? The correct answer is that the clauses create substantive rights.
Herein Of 'Herein Granted': Why Article I'S Vesting Clause Does Not Support The Doctrine Of Enumerated Powers, Richard A. Primus
Herein Of 'Herein Granted': Why Article I'S Vesting Clause Does Not Support The Doctrine Of Enumerated Powers, Richard A. Primus
Articles
Article I of the United States Constitution begins as follows: “All legislative Powers herein granted shall be vested in a Congress of the United States[.]” That text is sometimes called the Vesting Clause, or, more precisely, the Article I Vesting Clause, because Articles II and III also begin with Vesting Clauses. And there is a feature of those three clauses, when compared, to which twenty-first century constitutional lawyers commonly attribute considerable significance. Although the three Clauses are similar in other ways, the syntax of Article I’s Vesting Clause is not fully parallel to that of the other two. The Vesting …
Discerning A Dignitary Offense: The Concept Of Equal 'Public Rights' During Reconstruction, Rebecca J. Scott
Discerning A Dignitary Offense: The Concept Of Equal 'Public Rights' During Reconstruction, Rebecca J. Scott
Articles
The mountain of modern interpretation to which the language of the Fourteenth Amendment of the United States Constitution has been subjected tends to overshadow the multiple concepts of antidiscrimination that were actually circulating at the time of its drafting. Moreover, as authors on race and law have pointed out, Congress itself lacked any African American representatives during the 1866–68 moment of transitional justice. The subsequent development of a “state action doctrine” limiting the reach of federal civil rights enforcement, in turn, eclipsed important contemporary understandings of the harms that Reconstruction-era initiatives sought to combat. In contrast to the oblique language …
Winks, Whispers, And Prosecutorial Discretion In Rural Iowa, 1925-1928, Emily Prifogle
Winks, Whispers, And Prosecutorial Discretion In Rural Iowa, 1925-1928, Emily Prifogle
Articles
Through the eyes of Charles Pendleton’s memoirs, this article walks through a rural community with a county attorney to consider how race, religion, gender, and sexuality influenced rural prosecutorial discretion in the early twentieth century. Rural communities like those in Buena Vista County, Iowa, where the article is centered, experienced “the law” through distinctly isolated geographies and social networks that lacked anonymity and thus shaped available methods of conflict resolution. But anonymity did not mean homogeneity. Ethnic, racial, and religious diversity created divisions within a community where social distance between individuals was small. Both onymity and diversity shaped who should …
New Textualism And The Thirteenth Amendment, Leah Litman
New Textualism And The Thirteenth Amendment, Leah Litman
Articles
Michele Goodwin’s piece raises important questions about whether troubling modern-day labor practices in jails and prisons are consistent with the Thirteenth Amendment. In Goodwin’s telling, the ratification of the Thirteenth Amendment formally ended the institution of slavery, but the Amendment allowed practices resembling slavery to continue, perhaps reflecting the extant stereotypes and racism that formally amending the Constitution cannot root out. Indeed, Goodwin excavates historical materials that suggest the people who drafted and ratified the Amendment understood and expected that it would allow the perpetuation of slavery in another form. As Goodwin explains, most historians have argued that the Thirteenth …
Article Ii Vests Executive Power, Not The Royal Prerogative, Julian Davis Mortenson
Article Ii Vests Executive Power, Not The Royal Prerogative, Julian Davis Mortenson
Articles
Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presidential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful. Among constitutional originalists, this so-called “Vesting Clause Thesis” is now conventional wisdom. But it is also demonstrably wrong. Based on an exhaustive review of the eighteenth-century bookshelf, this Article shows that the ordinary meaning of “executive power” referred unambiguously to a single, discrete, and potent authority: the power to execute law. …
Second Redemption, Third Reconstruction, Richard A. Primus
Second Redemption, Third Reconstruction, Richard A. Primus
Articles
In The Accumulation of Advantages, the picture that Professor Owen Fiss paints about equality during and since the Second Reconstruction is largely a picture in black and white. That makes some sense. The black/white experience is probably the most important throughline in the story of equal protection. It was the central theme of both the First and Second Reconstructions. In keeping with that orientation, the picture of disadvantage described by Fiss’s theory of cumulative responsibility is largely drawn from the black/white experience. Important as it is, however, the black/white experience does not exhaust the subject of constitutional equality. So in …
An American Approach To Social Democracy: The Forgotten Promise Of The Fair Labor Standards Act, Kate Andrias
An American Approach To Social Democracy: The Forgotten Promise Of The Fair Labor Standards Act, Kate Andrias
Articles
There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American—in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor Relations Act, …
The Progressive Idea Of Democratic Administration, William J. Novak
The Progressive Idea Of Democratic Administration, William J. Novak
Articles
The first thing to acknowledge about administration is that administration is coincident with governance. Far from being a modern invention or some kind of radical departure from an original political or legal tradition, administration is among the oldest practices of governments. Indeed, it is impossible to conceive of government without administration. Laws need to be enforced, legislation needs to be implemented, and collective goods need to be secured. Governance is mostly a matter of actions and practices, making administration perhaps the most truly reflective aspect of legal and political culture.
Law & Laundry: White Laundresses, Chinese Laundrymen, And The Origins Of Muller V. Oregon, Emily Prifogle
Law & Laundry: White Laundresses, Chinese Laundrymen, And The Origins Of Muller V. Oregon, Emily Prifogle
Articles
This article uses the historian’s method of micro-history to rethink the significance of the Supreme Court decision Muller v. Oregon (1908). Typically considered a labor law decision permitting the regulation of women’s work hours, the article argues that through particular attention to the specific context in which the labor dispute took place — the laundry industry in Portland, Oregon — the Muller decision and underlying conflict should be understood as not only about sex-based labor rights but also about how the labor of laundry specifically involved race-based discrimination. The article investigates the most important conflicts behind the Muller decision, namely …
Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson
Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson
Articles
This Article analyzes the Supreme Court’s leading securities cases from 1962 to 1972—SEC v. Capital Gains Research Bureau, Inc.; J.I. Case Co. v. Borak; Mills v. Electric Auto-Lite Co.; Superintendent of Insurance v. Bankers Life & Casualty Co.; and Affiliated Ute of Utah v. United States—relying not just on the published opinions, but also the Justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws, rather …
Texas Gulf Sulphur And The Genesis Of Corporate Liability Under Rule 10b-5, Adam C. Pritchard, Robert B. Thompson
Texas Gulf Sulphur And The Genesis Of Corporate Liability Under Rule 10b-5, Adam C. Pritchard, Robert B. Thompson
Articles
This Essay explores the seminal role played by SEC v. Texas Gulf Sulphur Co. in establishing Rule 10b-5’s use to create a remedy against corporations for misstatements made by their officers. The question of the corporation’s liability for private damages loomed large for the Second Circuit judges in Texas Gulf Sulphur, even though that question was not directly at issue in an SEC action for injunctive relief. The judges considered both, construing narrowly “in connection with the purchase or sale of any security,” and the requisite state of mind required for violating Rule 10b-5. We explore the choices of the …
China's 'Corporatization Without Privatization' And The Late 19th Century Roots Of A Stubborn Path Dependency, Nicholas Howson
China's 'Corporatization Without Privatization' And The Late 19th Century Roots Of A Stubborn Path Dependency, Nicholas Howson
Articles
This Article analyzes the contemporary program of “corporatization without privatization” in the People's Republic of China (PRC) directed at China's traditional state-owned enterprises (SOEs) through a consideration of long ago precursor enterprise establishments--starting from the last Chinese imperial dynasty's creation of “government-promoted/-supervised, merchant-financed/-operated” (guandu shangban) firms in the latter part of the nineteenth century. While analysts are tempted to see the PRC corporations with listings on international exchanges that dominate the global economy and capital markets as expressions of “convergence,” this Article argues that such firms in fact show deeply embedded aspects of path dependency unique to the Chinese context …
Emotions In The Early Common Law (C. 1166–1215), John Hudson
Emotions In The Early Common Law (C. 1166–1215), John Hudson
Articles
Beyond dealing with wrongdoing and litigation, law has many other functions. It can be designed to make life more predictable, it can facilitate and promote certain actions, it can seek to prevent disputes by laying down rules, and provide routes to solutions other than litigation should disputes arise. All of these can have connections to matters of emotion. Using both lawbooks and records of cases from the Angevin period, the present article begins by looking at issues of land law rather than crime, and at law outside rather than inside court. It then returns to crime and litigation before exploring …
From Grace To Grids: Rethinking Due Process Protections For Parole., Kimberly A. Thomas, Paul D. Reingold
From Grace To Grids: Rethinking Due Process Protections For Parole., Kimberly A. Thomas, Paul D. Reingold
Articles
Current due process law gives little protection to prisoners at the point of parole, even though the parole decision, like sentencing, determines whether or not a person will serve more time or will go free. The doctrine regarding parole, which developed mostly in the late 1970s, was based on a judicial understanding of parole as an experimental, subjective, and largely standardless art—rooted in assessing the individual “character” of the potential parolee. In this Article we examine the foundations of the doctrine, and conclude that the due process inquiry at the point of parole should take into account the stark changes …
Toward A History Of The Democratic State, William J. Novak, Stephen W. Sawyer, James T. Sparrow
Toward A History Of The Democratic State, William J. Novak, Stephen W. Sawyer, James T. Sparrow
Articles
Over the past generation, the history of the state has been experiencing a much-noted renaissance, especially in France and the United States. In the United States as late as 1986, Morton Keller complained to William Leuchtenburg in the Journal of American History: “To say that ‘there is much still to be learned about the nature of the State in America’ is … a major understatement. There is close to everything to be learned about the State.” In France as late as 1990, Pierre Rosanvallon’s powerful introduction to L’État en France suggested that an ambitious history of the state could not …
Social Facts, Legal Fictions, And The Attribution Of Slave Status: The Puzzle Of Prescription, Rebecca J. Scott
Social Facts, Legal Fictions, And The Attribution Of Slave Status: The Puzzle Of Prescription, Rebecca J. Scott
Articles
In case after case, prosecutors, judges and juries therefore still struggle to come up with a definition of slavery, looking for some set of criteria or indicia that will enable them to discern whether the phenomenon they are observing constitutes enslavement. In this definitional effort, contemporary jurists may imagine that in the past, surely the question was simpler: someone either was or was not a slave. However, the existence of a set of laws declaring that persons could be owned as property did not, even in the nineteenth century, answer by itself the question of whether a given person was …