Legal History Commons^™

Recovering The Original Fourth Amendment, Thomas Y. Davies

Michigan Law Review

Claims regarding the original or intended meaning of constitutional texts are commonplace in constitutional argument and analysis. All such claims are subject to an implicit validity criterion - only historically authentic assertions should matter. The rub is that the original meaning commonly attributed to a constitutional text may not be authentic. The historical Fourth Amendment is a case in point. If American judges, lawyers, or law teachers were asked what the Framers intended when they adopted the Fourth Amendment, they would likely answer that the Framers intended that all searches and seizures conducted by government officers must be reasonable given …

The Influence Of Race In School Finance Reform, James E. Ryan

Michigan Law Review

It would be an exaggeration to say that school finance reform is all about race, but largely in the same way that it is an exaggeration to say that welfare reform is all about race. Like welfare reform, the controversy generated by school finance litigation and reform has, on the surface, little to do with race. Battles over school funding, which have been waged in nearly forty state supreme courts and at least as many state legislatures, instead appear to be over such issues as the redistribution of resources, retaining local control over education, and the efficacy of increased expenditures. …

Establishing New Legal Doctrine In Managed Care: A Model Of Judicial Response To Industrial Change, Peter D. Jacobson, Scott D. Pomfret

University of Michigan Journal of Law Reform

Courts are struggling with how to develop legal doctrine in challenges to the new managed care environment. In this Article, we examine how courts have responded in the past to new industries or radical transformations of existing industries. We analyze two historical antecedents, the emergence of railroads in the nineteenth century and mass production in the twentieth century, to explore how courts might react to the current transformation of the health care industry.

In doing so, we offer a model of how courts confront issues of developing legal doctrine, especially regarding liability, associated with nascent or dramatically transformed industries. Our …

Positivism, Emergent And Triumphant, Vincent A. Wellman

Michigan Law Review

Positivism is one of those words that triggers passionate and often contradictory responses. For some, positivism is a pejorative. Lon Fuller, perhaps more than anyone, charged that positivism was confused about the nature of law, blind to law's inherent morality, and morally corrupting to boot. He even suggested, in different ways, that positivism helped promote the rise of fascism in Europe. Others, in contrast, have treated positivism as a modest and undeniable truth about law. Law, they argued, is morally fallible, and accordingly, the existence and validity of law is a matter of social fact rather than moral necessity. H.L.A. …

From Renaissance Poland To Poland's Renaissance, Daniel H. Cole

Michigan Law Review

Poland is located in Eastern Europe - the "other Europe" - which shares a continent, but seemingly little else, with Western Europe. Most histories of Europe, legal histories included, are actually histories of Western Europe only. The "euro-centrism" some scholars complain about is, more accurately, a "western eurocentrism." The eastern half of the continent is ignored like the embarrassing black sheep of the European family. Economic historians have described Eastern Europe as a "backward" place, where feudal and mercantilist economies persisted as Western European economies modernized and industrialized. In geopolitical terms, Eastern Europe has been characterized as a region of …

Forgotten Constitutional History: The Production And Migration Of Meaning Within Constitutional Cultures, Gregory A. Mark

Michigan Law Review

When was the last time you read a serious, recently published work of constitutional history that did not deal mainly with the work of the Supreme Court? When, even among those works, did the author look beyond the immediate litigants to give the reader a sense of an evolving constitutional culture - a culture in symbiosis with the larger political and social culture - its eddies and byways, as well as its mainstream? My strong hunch is that anyone who can triumphantly respond to the implicit condemnation of narrowness in these questions will do so in large measure having read …

The Qualities Of Completeness: More? Or Less?, Mark R. Killenbeck

Michigan Law Review

On January 14, 1983, Chief Judge W. Brevard Hand announced what he knew would be widely regarded as a rather startling proposition. Believing that "[t]he first amendment in large part was a guarantee to the states which insured that the states would be able to continue whatever church-state relationship existed in 1791," Judge Hand held that the people of Alabama were perfectly free to "establish[] a religion," in this instance by allowing public school teachers to begin the school day with prayer. The ruling reversed an earlier decision in the same case, which characterized the statutory provision at issue as …

The Assault That Failed: The Progressive Critique Of Laissez Faire, Richard A. Epstein

Michigan Law Review

Robert Lee Hale has long been an intellectual thorn in the side of the defenders of laissez faire, among whom I am quite happy to count myself. As Barbara Fried notes in her meticulous study of Hale's work, his name is hardly a household word. But both directly and indirectly, his influence continues to be great. His best known work is perhaps Coercion and Distribution in a Supposedly Non-Coercive State, published in 1923 as a review of Thomas Nixon Carver's Principles of National Economy, itself a defense of the classical principles of laissez faire, remembered today only for the drubbing …

Reconceiving The Right To Present Witnesses, Richard A. Nagareda

Michigan Law Review

Modem American law is, in a sense, a system of compartments. For understandable curricular reasons, legal education sharply distinguishes the law of evidence from both constitutional law and criminal procedure. In fact, the lines of demarcation between these three subjects extend well beyond law school to the organization of the leading treatises and case headnotes to which practicing lawyers routinely refer in their trade. Many of the most interesting questions in the law, however, do not rest squarely within a single compartment; instead, they concern the content and legitimacy of the lines of demarcation themselves. This article explores a significant, …

Convergence And Competition: The Case Of Bank Regulation In Britain And The United States, Heidi Mandanis Schooner, Michael Taylor

Michigan Journal of International Law

This Article consists of four main parts. Part I introduces the convergence by competition model as it applies to the regulation of financial institutions and sets the stage for the test case application of the model to the regulatory systems in the United States and United Kingdom. Part II provides a comparative history of bank regulation in Britain and the United States. Central to our argument is the proposition that, even in the presence of globalized financial markets and the opportunities for rule competition brought in their wake, the bank regulatory systems of the United States and Britain continue to …

The Limited Public Offer In German And U.S. Securities Law: A Comparative Analysis Of Prospectus Act Section 2(2) And Rule 505 Of Regulation D, David B. Guenther

Michigan Journal of International Law

This Note examines the "limited circle of persons" exception in section 2(2) of the Prospectus Act in comparison to similar provisions of U.S. federal securities law, particularly Section 3(b) of the Securities Act of 1933 (the "Securities Act") and Rule 505 of Regulation D ("Rule 505"). Comparison of the Prospectus Act to U.S. securities law seems both warranted and useful. Certain aspects of German securities law are broadly modeled on U.S. precedents. U.S. securities laws reflect more than sixty-five years of experience defining (and re-defining) public and limited public offers and private placements. U.S. securities regulators have also displayed in …

Beyond The Hero Judge: Institutional Reform Litigation As Litigation, Margo Schlanger

Reviews

In 1955, in its second decision in Brown v. Board of Education, the Supreme Court suggested that federal courts might be called upon to engage in long-term oversight of once-segregated schools. Through the 1960s, southern resistance pushed federal district and appellate judges to turn that possibility into a reality. The impact of this saga on litigation practice extended beyond school desegregation, and even beyond the struggle for African-American equality; through implementation of Brown, the nation’s litigants, lawyers, and judges grew accustomed both to issuance of permanent injunctions against state and local public institutions, and to extended court oversight of compliance. …

Law's Territory (A History Of Jurisdiction), Richard T. Ford

Michigan Law Review

Pop quiz: New York City. The United Kingdom. The East Bay Area Municipal Utilities District. Kwazulu, South Africa. The Cathedral of Notre Dame. The State of California. Vatican City. Switzerland. The American Embassy in the U.S.S.R. What do the foregoing items have in common? Answer: they are, or were, all territorial jurisdictions. A thesis of this Article is that territorial jurisdictions - the rigidly mapped territories within which formally defined legal powers are exercised by formally organized governmental institutions - are relatively new and intuitively surprising technological developments. New, because until the development of modern cartography, legal authority generally followed …

Reflections On The Mjil Special Issue, John H. Jackson

Michigan Journal of International Law

A reflection on this special issue of Michigan Journal of International Law and its subject by Professor John H. Jackson.

Sovereignty, Compliance, And The World Trade Organization: Lessons From The History Of Supreme Court Review, Mark L. Movsesian

Michigan Journal of International Law

This article explores the nineteenth-century conflict over Supreme Court review and discusses its implications for today's debate on the WTO. Congress granted the Court appellate jurisdiction over state courts in one of its earliest pieces of legislation, the Judiciary Act of 1789. The first serious challenge to that jurisdiction occurred about a quarter-century later, however, in connection with the Court's famous opinion in Martin v. Hunter's Lessee. The conflict continued episodically for the next four decades, with several states refusing to acknowledge the Court's jurisdiction in particular cases, and ended only with the Civil War, which resolved this and …

The Boundaries Of Private Property, Michael A. Heller

Articles

If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive …

Taking Decisions Seriously, Richard D. Friedman

Reviews

The New Deal era is one of the great turning points of American constitutional history. The receptivity of the Supreme Court to regulation by state and federal governments increased dra- matically during that period. The constitutionalism that prevailed before Charles Evans Hughes became Chief Justice in 1930 was similar in most respects to that of the beginning of the twen- tieth century. The constitutionalism that prevailed by the time Hughes’ successor Harlan Fiske Stone died in 1946 is far more related to that of the end of the century. How this transformation occurred is a crucial and enduring issue in …

In Defense Of Revenge, William I. Miller

Book Chapters

One of the risks of studying the Icelandic sagas and loving them, is, precisely, loving them. And what is one loving when one loves them? The wit, the entertainment provided by perfectly told tales? And just how are these entertaining tales and this wit separable from their substance: honor, revenge, individual assertion, and yes, some softer values, too, like peacefulness and prudence? Yet one suspects, and quite rightly, that the softer values are secondary and utterly dependent on being responsive to the problems engendered by the rougher values of honor and vengeance. Is it possible to study the sagas and …

Fear, Weak Legs, And Running Away: A Soldier's Story, William Miller

Book Chapters

Statutes make for appallingly tedious reading unless primitively short and to the point as, for example, this provision in the early Kentish laws of Æthelberht (c. 600): “He who smashes a chin bone [of another] shall pay 20 shillings” or this one from King Alfred (c. 890): “If anyone utters a public slander, and it is proved against him, he shall make no lighter amends than the carving out of his tongue.”1 Yet on very rare occasion a modern statute can rivet our attention and when it does, it seems to do so by mimicking some of the look and …

Civics 2000: Process Constitutionalism At Yale, Daniel J. Hulsebosch

Michigan Law Review

One or another form of historical fidelity has long been in the repetoire of constitutional interpretation, and during the last two decades conservative jurists have searched for the "original intent" of various clauses. Increasingly, however, it is liberal law professors who are turning to history to make sense of American constitutionalism. What they find there is not a document listing eternal rights or duties but rather a multidimensional structure of government, captured as much in practice as on paper, that has metamorphosed over time. It seems we have, in that familiar phrase, a living Constitution. But interest is shifting from …

Caste, Class, And Equal Citizenship, William E. Forbath

Michigan Law Review

There is a familiar egalitarian constitutional tradition and another we have largely forgotten. The familiar one springs from Brown v. Board of Education; its roots lie in the Reconstruction era. Court-centered and countermajoritarian, it takes aim at caste and racial subordination. The forgotten one also originated with Reconstruction, but it was a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts. Aimed against harsh class inequalities, it centered on decent work and livelihoods, social provision, and a measure of economic independence and democracy. Borrowing a phrase from its Progressive Era proponents, I will call it the social …

The Cutting Edge Of Poster Law, Michael A. Heller

Articles

Students place tens of thousands of posters around law schools each year in staircases, on walls, and on bulletin boards. Rarely, however, do formal disputes about postering arise. Students know how far to go-and go no farther despite numerous avenues for postering deviance: blizzarding, megasigns, commercial or scurrilous signs. What is the history of poster law? What are its norms and rules, privileges and procedures? Is poster law effident? Is it just?

Private Ordering At The World's First Futures Exchange, Mark D. West

Michigan Law Review

Modern derivative securities - financial instruments whose value is linked to or "derived" from some other asset - are often sophisticated, complex, and subject to a variety of rules and regulations. The same is true of the derivative instruments traded at the world's first organized futures exchange, the Dojima Rice Exchange in Osaka, Japan, where trade flourished for nearly 300 years, from the late seventeenth century until shortly before World War II. This Article analyzes Dojima's organization, efficiency, and amalgam of legal and extralegal rules. In doing so, it contributes to a growing body of literature on commercial self-regulation while …