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Full-Text Articles in Legal History

Standing In Barack Obama's Shoes: Evaluating The President's Jurisprudence Of Empathy In Light Of James Wilson's Jurisprudence Of “Common Sense”, John Rollert Aug 2010

Standing In Barack Obama's Shoes: Evaluating The President's Jurisprudence Of Empathy In Light Of James Wilson's Jurisprudence Of “Common Sense”, John Rollert

Student Scholarship Papers

This article explains what President Barack Obama meant when he called empathy an “essential ingredient” in judicial decision making and, thus, the outstanding quality he would look for in his Supreme Court nominees. It also provides a comparative study between Obama’s jurisprudence of empathy and Justice James Wilson’s jurisprudence of common sense in order to illustrate the dangers of deciding difficult Supreme Court cases with recourse to unconventional, extra-legal tools.


A Postscript For Charles Black: The Supreme Court And Race In The Progressive Era, Benno C. Schmidt Jr. Jan 1986

A Postscript For Charles Black: The Supreme Court And Race In The Progressive Era, Benno C. Schmidt Jr.

Faculty Scholarship Series

Charles Black's work in constitutional law is,1 like the "slow politics of
the text"2 of the great Document itself, a statement of fundamental truths
about our condition and aspirations that often takes a while to set in. As
Harry Wellington has noted, few people had the sense to see The People
and the Court3 when published in 1960 for what it should with deliberate
speed have become: the dominant influence on my generation of constitu?
tional lawyers' efforts to see the problem of judicial review beyond the
shadows of the New Deal and the debacle of FDR ...


Treaties And Executive Agreements A Reply, Edwin Borchard Jan 1945

Treaties And Executive Agreements A Reply, Edwin Borchard

Faculty Scholarship Series

The authors of the articles under reply, Messrs. McDougal and Lans, have, like McClure, essayed to show that the treaty and the executive agreement are interchangeable, and, since executive agreements are simpler to conclude, they advocate disregarding as obsolete the treaty-making power, requiring, as it does, the consent of two thirds of the Senate, and substituting for it the use of the executive agreement. In that demand they differ radically from the constitutional conclusions which the writer, as well as many other students of the subject, have reached. To give their proposal a more “democratic” tinge, the authors propose what ...


Shall The Executive Agreement Replace The Treaty, Edwin Borchard Jan 1944

Shall The Executive Agreement Replace The Treaty, Edwin Borchard

Faculty Scholarship Series

In recent years many political leaders and publicists have sought to prove that the treaty-making process, requiring the "undemocratic." valid and desirable preferably without congressional approval or, by a majority of Congress. 1300 executive agreements have been concluded history, as contrasted 900 i8 that up to 1928 only 15 for good reasons; treaties have been amended by have benefited the nation.

BASES OF THE PROPOSALS FOR CHANGE

The recent proposals for a change in the Constitution, either with or without benefit of a constitutional amendment, have their origin in several grievances and are said to derive moral support from several ...


State Indemnity For Errors Of Criminal Justice, Edwin Borchard Jan 1941

State Indemnity For Errors Of Criminal Justice, Edwin Borchard

Faculty Scholarship Series

All too frequently the public is shocked by the news that Federal or State authorities have convicted and imprisoned a person subsequently proved to have been innocent of any crime. These accidents in the administration of the criminal law happen either through an unfortunate concurrence of circumstances or perjured testimony or are the result of mistaken identity, the conviction having been obtained by zealous prosecuting attorneys on circumstantial evidence. In an earnest effort to compensate in some measure the victims of these miscarriages of justice, Congress in May 1938 enacted a law "to grant relief to persons erroneously convicted in ...


Relation Between International Law And Municipal Law, Edwin Borchard Jan 1940

Relation Between International Law And Municipal Law, Edwin Borchard

Faculty Scholarship Series

Recent events on this continent make it seem appropriate once more to discuss the much – debated question of the relation between international law and municipal law. For one school, the dualists, municipal law prevails in case of conflict; for the other school, the monists international law prevails. There are two special features about the debate which warrant mention: first, that while the disputants do not widely differ in the ultimate solution of practical problems, they do differ considerably in their major premises and in the resulting theories; and second, that the attempt of various countries on occasion to escape the ...


Taney's Influence On Constitutional Law, Edwin Borchard Jan 1936

Taney's Influence On Constitutional Law, Edwin Borchard

Faculty Scholarship Series

The hundredth anniversary of the elevation of Roger Brooke Taney to the post of Chief Justice of the Supreme Court affords a fitting occasion to review the significance of his judicial services to the nation and to American constitutional law. A re-examination of his life work in the perspective of history indicates how unwise it often is to form rigid judgments on men and events in the excitement of contemporary emotion, for the harsh opinions which Taney evoked by his decisions on the slavery question have been tempered in the detached light reason. The historical cloud under which his name ...


Justiciability, Edwin Borchard Jan 1936

Justiciability, Edwin Borchard

Faculty Scholarship Series

It might be supposed that justiciability, the very foundation of the judicial function, would be a matter on which courts could hardly differ. Yet there seems to be the greatest confusion among the courts as to when an issue is and is not susceptible of judicial decision. This is largely due to a devotion to phrases and symbols which make historical investigation and theoretical analysis seem an unnecessary encroachment on the judicial prerogative. The very system of stare decisis invites courts to relieve themselves of the necessity of thinking through again ostensible propositions which seem to have once received the ...


Protection Of Citizens Abroad And Change Of Original Nationality, Edwin Borchard Jan 1934

Protection Of Citizens Abroad And Change Of Original Nationality, Edwin Borchard

Faculty Scholarship Series

Precedent and time are the creators and preservers of customary law. So strong is the force of habit in human behavior that man in doubt or distress instinctively turns to past experience to see how his forbears dealt with similar problems. The law, which is the cement holding together the social structure, is, in its evolution as a conservative force, of necessity driven to search for precedents and to profit by them in building certainty and thereby security. Without landmarks there is no system; and for the very reason that international law is deficient in its lack of a legislature ...


Judicial Relief For Insecurity, Edwin Borchard Jan 1933

Judicial Relief For Insecurity, Edwin Borchard

Faculty Scholarship Series

In an earlier article' an attempt was made to criticize the narrowness of view which has limited the concept of "wrongs" and "cause of action” to committed delicts, and the concept of the judicial process, to their redress. This superficial view of legal relations and of the judicial function has obscured realization of the fact that harm is done and rights are impaired or jeopardized by mere dispute or challenge before and without any physical attack. The mere existence of an instrument, the denial of a right, the assertion of an unfounded claim, the existence of conflicting claims to the ...


Judicial Relief For Peril And Insecurity, Edwin Borchard Jan 1932

Judicial Relief For Peril And Insecurity, Edwin Borchard

Faculty Scholarship Series

In the United States, we are not accustomed to consider the theory of procedure as of profound importance. Possibly the extraordinary technicality of American procedure by reason of which substantive issues are so often relegated to practical oblivion by procedural tactics is in part responsible. At all events, the unsystematic and empirical method of embarking upon and concluding litigation seems to have developed a frame of mind somewhat indifferent to the theoretical function of the judicial process. For example, down to very recent days Justices of the United States Supreme Court gave expression to the view, now happily repudiated, that ...


The Summary Power To Punish For Contempt, Walter Nelles Jan 1931

The Summary Power To Punish For Contempt, Walter Nelles

Faculty Scholarship Series

In the past three quarters of a century there have been many signs
that the power to punish summarily for contempt of court is encroaching
upon the once sacred "right" of trial by jury in criminal cases :-e.g.,
summary punishments for crimes affecting receiverships;1 the labor
injunction, which, though it is a main subject of my interest, will receive
only casual further mention here; various other instances where,
in form, the question is rather as to scope of chancery power to enjoin
than as to the scope of the contempt power;la and finally a small but
growing ...


The Problems Of Appellate Courts, Walter F. Dodd Jan 1930

The Problems Of Appellate Courts, Walter F. Dodd

Faculty Scholarship Series

Courts of review have now become highly specialized parts of our justice system. This was not the case in the earlier history of state and federal judicial systems.
During the greater part of the period between 1818 and 1848 the Supreme
Court of Illinois was composed of judges who did trial work as well. When Connecticut, in 1806, separated judicial functions from those of the executive and legislative departments, provision was made that the judges of the superior court (the trial court) should constitute the Supreme Court of Errors. During a long period under the federal system, justices of the ...


The Judicial Interpretation Of Public Utility Franchises, Richard J. Smith Jan 1930

The Judicial Interpretation Of Public Utility Franchises, Richard J. Smith

Faculty Scholarship Series

The United States Supreme Court has recently added one more
decision to the long list of cases on the contractual aspects of
public utility franchises. The specific question before the court
was the review of a permanent injunction granted by a federal
district court of three judges to restrain the railroad commission
of California from enforcing against the Los Angeles Railway
Corporation the provisions for rates of fare embodied in a series
of franchises under which the company operated. The franchises
had been granted successively from 1886 to 1928 and had provided
generally that the rate of fare should not ...


The Governor's Approval Of Legislation In Connecticut, Walter F. Dodd Jan 1929

The Governor's Approval Of Legislation In Connecticut, Walter F. Dodd

Faculty Scholarship Series

THE Supreme Court of Errors of Connecticut in the case of State v.
McCook, decided July 25, 1929, determined an important question as
to the time within which the governor may approve legislation in that
state. Article IV, § 12, of the constitution of Connecticut, framed in
1818, is, with verbal changes, and with differences of the period for
executive consideration and in legislative majorities, substantially the
same as the provision of the constitution of the United States with respect
to executive approval or disapproval of legislation.


Constitutional Problems Involved In The Mccook Case, Walter F. Dodd Jan 1929

Constitutional Problems Involved In The Mccook Case, Walter F. Dodd

Faculty Scholarship Series

The Supreme Court of Errors of Connecticut in the case of
State v. McCook, decided July 25, 1929, determined an important
question as to the time within which the governor may approve
legislation in this State. Article IV, sec. 12 of the constitution
of Connecticut, framed in 1818, is, with verbal changes, and
with differences of the period for executive consideration and
in legislative majorities, substantially the same as the provision
of the constitution of the United States with respect to executive
approval or disapproval of legislation.


Some Observations On The Law Of Evidence: Family Relations, Donald Slesinger, Robert M. Hutchins Jan 1929

Some Observations On The Law Of Evidence: Family Relations, Donald Slesinger, Robert M. Hutchins

Faculty Scholarship Series

E XCEPT In cases of necessity' the wife was incompetent to
testify for or against her husband at common law Coke
suggests that the reason for the rule lay in the fact that husband
and wife were one, and naturally could not be divided for the
purposes of testimony Although the courts soon got beyond this
doctrine, they insisted on the value of the rule. They argued that
spouses, though perhaps not physically identical, were identical
in interest. When disqualification by interest was removed, the
judges bad to take other ground, and did so in Stapleton v
Crofts.' There they ...


Some Observations On The Law Of Evidence -- Consciousness Of Guilt, Donald Slesinger, Robert M. Hutchins Jan 1929

Some Observations On The Law Of Evidence -- Consciousness Of Guilt, Donald Slesinger, Robert M. Hutchins

Faculty Scholarship Series

Consciousness of guilt is another state of mind that raises a
new set of legal and psychological problems. Wigmore dramatically
states its significance when he says:
"As an axe leaves its mark in the speechless tree, so an
evil deed leaves its mark in the evil doer's consciousness."
Again:
"The reliance is not upon the testimonial credit of a person,
but upon psychologic forces closely analogous to the
forces of external nature."
As a result, we are not here concerned, as in the case of state of
mind to prove an act, with the hearsay rule or an exception ...


Some Observations On The Law Of Evidence, Donald Slesinger, Robert M. Hutchins Jan 1928

Some Observations On The Law Of Evidence, Donald Slesinger, Robert M. Hutchins

Faculty Scholarship Series

Spontaneous utterances, exclamations or declarations are, under
certain conditions, admissible in evidence though the party who made
them does not take the stand. According to most courts the occasion
must be startling enough to cause shock, which in turn creates an emotional
state. The utterance must be made under stress of that emotion;
it must be "spontaneous and natural; impulsive and instinctive" ;
it should be immediate, or "so clearly connected (with the occasion)
that the declaration may be said to be the spontaneous explanation of
the real cause." Although in some jurisdictions there is insistence that
the declaration be "contemporaneous ...


Some Observations On The Law Of Evidence -- Memory, Donald Slesinger, Robert M. Hutchins Jan 1928

Some Observations On The Law Of Evidence -- Memory, Donald Slesinger, Robert M. Hutchins

Faculty Scholarship Series

T HE common legal assumptions in regard to memory come
most clearly to the surface in the rules governing present
recollection revived, past recollection recorded, and cross-examination
to impeach. Between the first two, sharp distinctions are
drawn which result partly from the fact that a memorandum used
to refresh recollection generally does not go to the jury as evidence
- whereas a memorandum of past recollection does - and
partly from the psychological theories of the courts.


Notes On Judicial Organization And Procedure, Walter F. Dodd Jan 1928

Notes On Judicial Organization And Procedure, Walter F. Dodd

Faculty Scholarship Series

The Judicial Council Movement. Woodrow Wilson wrote that no
government is better than its courts, to which ex-President Taft replied
that our judicial failure has been more outstanding than our failure in
municipal government. The task of making our courts as efficient as
possible is thus both an important and an urgent one.
Many factors have contributed to the present charges of inefficiency,
but none perhaps of greater weight than that of delay. This has been
particularly true of the larger cities, with their principal trial courts
as much as two years behind in their work. The jury system, both ...


Strength And Weakness Of The New International Court, Edwin Borchard Jan 1922

Strength And Weakness Of The New International Court, Edwin Borchard

Faculty Scholarship Series

For an adequate understanding of the origin, jurisdiction and functions of the newly established court of international justice at the Hague, it will be necessary to revert to the two Hague Conferences of 1899 and 1907 and to examine the organization of the Permanent Court of Arbitration at the Hague created and developed at: those Conferences. The characteristic feature of the Court of Arbitration as distinguished from the new Permanent Court of Justice lies in the fact that the personnel of the former consists of an eligible list or panel, of which there are now some one hundred and twenty ...


Some Lessons From The Civil Law, Edwin Borchard Jan 1916

Some Lessons From The Civil Law, Edwin Borchard

Faculty Scholarship Series

The purpose of this brief article is not so much to set forth any specific institutions disclosed by a study of the civil law, as to point out some of those defects of our own system which are accentuated by comparison with the civil law, defects due to the methods rather than the substance of the common law. There is no desire to urge such a radical and perhaps impossible step as the substitution of civil law methods for our own; but in the consideration of plans for the improvement of our law, it may be profitable to observe that ...


Consolidation Of Preliminary Motions And Demurrers In Connecticut, John W. Edgerton Jan 1913

Consolidation Of Preliminary Motions And Demurrers In Connecticut, John W. Edgerton

Faculty Scholarship Series

The abolishment of demurrers by the new equity rules of the
Federal Court and by the recent Practice Act of the Law Courts
of New Jersey makes pertinent the question whether Connecticut
may not to her advantage amend her practice to conform to that
of those two jurisdictions and that of the English Courts. The
Connecticut State Bar Association has already gone on record as
favoring the adoption of a rule which should compel a party to
embody in one document a motion to expunge and a demurrer,.
where the motion and demurrer are addressed to the same pleading,
whether ...