Open Access. Powered by Scholars. Published by Universities.®

Legal History Commons

Open Access. Powered by Scholars. Published by Universities.®

Yale Law School

Faculty Scholarship Series

Articles 1 - 30 of 99

Full-Text Articles in Legal History

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum May 2009

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum

Faculty Scholarship Series

This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. I examine the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. I contend that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of arguments that ...


From Litigation, Legislation, Cristina M. Rodríguez Jan 2008

From Litigation, Legislation, Cristina M. Rodríguez

Faculty Scholarship Series

Brian Landsberg puts lawyers at the center of history. In Free at Last To
Vote: The Alabama Origins of the 1965 Voting Rights Act,1 Landsberg tells the story of the Department of Justice (DOJ) attorneys who spent the early 1960s bringing case after case against recalcitrant local officials in Alabama to enforce the voting rights provisions of the civil rights statutes that preceded the landmark Voting Rights Act of 1965 (VRA). In the popular imagination and in broadly framed historical accounts, the VRA represents the culmination
of grassroots civil rights struggle and hardball national politics. But Landsberg reminds us ...


Tribe, Kenji Yoshino Jan 2007

Tribe, Kenji Yoshino

Faculty Scholarship Series

I met Larry Tribe in 1997 at a dinner party in Cambridge, Massachusetts. To
introduce me to her colleagues, Harvard Professor Martha Minow asked me which of the University's scholars I would like to invite to my ideal dinner. As a newly minted professor, it took me a moment to realize this was not an interview question, but her characteristically generous attempt to construct a guest list. I asked for Larry Tribe and Helen Vendler. I had been lucky enough to take a seminar on modem poetry with Vendler as an undergraduate at Harvard. But neither Vendler nor I ...


Manson V. Brathwaite Revisited:Towards A New Rule Of Decision For Due Process Challenges, Giovanna Shay, Timothy O'Toole Mar 2006

Manson V. Brathwaite Revisited:Towards A New Rule Of Decision For Due Process Challenges, Giovanna Shay, Timothy O'Toole

Faculty Scholarship Series

A major cause of wrongful convictions is mistaken eyewitness identification. The leading Supreme Court case governing due process challenges to identification procedures, Manson v. Brathwaite, is almost 30 years old, and does not account for decades of social science research on eyewitness I.D. In fact, parts of the Manson test designed to ensure reliability run counter to research findings. In this piece, O'Toole and Shay describe the problems with the Manson test, and propose a new rule of decision for due process challenges to identification procedures.


The Origins Of "Reasonable Doubt", James Q. Whitman Mar 2005

The Origins Of "Reasonable Doubt", James Q. Whitman

Faculty Scholarship Series

The "reasonable doubt" rule is notoriously difficult to define, and many judges and scholars have deplored the confusion it creates in the minds of jurors. Yet "reasonable doubt" is regarded as a fundamental part of our law. How can a rule of such fundamental importance be so difficult to define and understand?

The answer, this paper tries to show, lies in history. The "reasonable doubt" rule was not originally designed to serve the purpose it is asked to serve today: It was not originally designed to protect the accused. Instead, it was designed to protect the souls of the jurors ...


The Limits Of History, James Q. Whitman Jan 2005

The Limits Of History, James Q. Whitman

Faculty Scholarship Series

Constantin Fasolt's odd hodgepodge of a book is largely about the philosophy of history, as its title suggests. It would be hard to recommend it as a work of philosophy, though: While Fasolt's reflections on "the limits of history" certainly have their moments of elegance and insight, the philosophy here is mostly careless and cursory stuff, with far too heavy a dose of post-modem pyrrhonism for this reviewer. But it would be too bad if readers allowed the book's portentous title, and the anguished philosophical gyrations of its first chapter, to prevent them from reading on. Fasolt ...


Multiple Ironies: Brown At 50, Ronald S. Sullivan Jr. Jan 2003

Multiple Ironies: Brown At 50, Ronald S. Sullivan Jr.

Faculty Scholarship Series

Brown v. Board of Education occupies a vaunted space in American
jurisprudence. One commentator writes that Brown is the most
celebrated case in the Court's history. Equally laudatory, another
commentator remarks: "In the half century since the Supreme Court's
decision, Brown has become a beloved legal and political icon." A
third proclaims that, "Brown forever changed the role of the United States Supreme Court in American politics and society." To the lay
public, Brown sits among a small pantheon of cases that is widely recognizable
to the average American.' Miranda and Roe v. Wade
likely are the only ...


At The Origins Of Law And The State: Monopolization Of Violence, Mutilation Of Bodies, Or Fixing Of Prices?, James Q. Whitman Jan 1996

At The Origins Of Law And The State: Monopolization Of Violence, Mutilation Of Bodies, Or Fixing Of Prices?, James Q. Whitman

Faculty Scholarship Series

In this Article, I would like to air some doubts about our dominant model of the origins of law and the state-what legal historians often call the "self-help" model. The self-help model is widely believed to offer a complete and adequate explanation of the origins and early development of law, and it comes close to being our standard model for explaining all periods in the development of the law.' Nevertheless, I am going to argue that it is significantly flawed. In particular, I am going to try to show that the self-help model rests on a serious misinterpretation of two ...


The Seigneurs Descend To The Rank Of Creditors: The Abolition Of Respect, James Q. Whitman Jan 1994

The Seigneurs Descend To The Rank Of Creditors: The Abolition Of Respect, James Q. Whitman

Faculty Scholarship Series

On the great night of August 4, 1789, the French National Assembly proclaimed the abolition of feudalism. This momentous revolutionary proclamation was not, however, self-executing: in the days that followed, it became clear that there was no definitive agreement about what "feudalism" was. After a week of uncertain debate, the gentlemen of the Assembly had not produced fully detailed abolition legislation. Politics having failed, the decision was made to tum the problem over to lawyers; on August 12, the Assembly constituted a Committee, made up principally of lawyers, and charged with the task of defining "feudalism." So it was that ...


Of Corporatism, Fascism And The First New Deal, James Q. Whitman Jan 1991

Of Corporatism, Fascism And The First New Deal, James Q. Whitman

Faculty Scholarship Series

Early in the Autumn of 1934, after several weeks of bureaucratic intrigue within the Roosevelt White House, General Hugh Johnson was forced to resign as chief of the National Recovery Administration. For some months, the President had resisted pressure to dismiss Johnson, who had presided over the NRA in erratic and impolitic fashion. But in late September, after several instances of egregious misbehavior on Johnson's part, the President pushed him out. A few weeks later, General Johnson gave his farewell speech, invoking the "shining name" of Benito Mussolini It was not the first time that the Director of the ...


Why Did The Revolutionary Lawyers Confuse Custom And Reason?, James Q. Whitman Jan 1991

Why Did The Revolutionary Lawyers Confuse Custom And Reason?, James Q. Whitman

Faculty Scholarship Series

That "somewhat unclear mingling" of reason, custom, and constitution, is my subject in this Article. This Article offers a general historical account of how the constitutionalist lawyers of the eighteenth-century world came to mingle ideas of customary right with characteristically eighteenth-century ideas of deductive natural law. To understand this tendency to conflate custom and reason, I will suggest, we must understand developments that long predated the passages quoted above. The eighteenth-century constitutionalist habit of identifying custom with reason should be traced back to the collapse of customary proof practices at the end of the Medieval period-a collapse with a long ...


The Lawyers Discover The Fall Of Rome, James Q. Whitman Jan 1991

The Lawyers Discover The Fall Of Rome, James Q. Whitman

Faculty Scholarship Series

Petrarch detested lawyers. The story of his experience of law is familiar. In 1316 Petrarch, then twelve years old, was sent by his father to study law, first in Montpellier, then in Bologna, the oldest center of Roman law studies in Europe. Bologna entranced him in some ways: there were great law teachers there, he later wrote, who were like the ancients themselves returned to life. Nevertheless, if he looked up to some of his teachers, his studies in Bologna taught Petrarch to despise the general soullessness and avarice offourteenth-century lawyers. Lawyers, he later wrote, cared nothing for antiquity and ...


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 ...


Relationship Between Free Choice And Labor Board Doctrine: Differing Empirical Approaches, Julius G. Getman, Stephen B. Goldberg, Jeanne M. Brett Jan 1984

Relationship Between Free Choice And Labor Board Doctrine: Differing Empirical Approaches, Julius G. Getman, Stephen B. Goldberg, Jeanne M. Brett

Faculty Scholarship Series

In Union Representation Elections: Law and Reality [hereinafter cited as Law and Reality], we examined the desirability of continued National Labor Relations Board (NLRB) regulation of pre-election campaigning. Our central finding, based upon a study of thirty-one elections and interviews with over a thousand employees, was that unlawful campaigning has no greater effect on employee voting behavior in union representation elections than does lawful campaigning. Hence, we recommended that the Board should no longer attempt to distinguish between lawful and unlawful campaigning; that the results of an election, once conducted, should be final; that speech should be wholly free; and ...


Union Representation Elections: Law And Reality: The Authors Respond To The Critics, Julius G. Getman, Stephen B. Goldberg, Jeanne M. Brett Jan 1981

Union Representation Elections: Law And Reality: The Authors Respond To The Critics, Julius G. Getman, Stephen B. Goldberg, Jeanne M. Brett

Faculty Scholarship Series

In Union Representation Elections. Law and Reality (hereinafter
Law and Reality without cross-reference), we examined the desirability
of continued National Labor Relations Board (NLRB) regulation
of pre-election campaigning. Our central finding, based upon a
study of thirty-one elections, and interviews with over 1000 employees,
was that unlawful campaigning has no greater effect on employee
voting behavior in a union representation election than does
lawful campaigning. Hence, we recommended that the Board
should no longer attempt to distinguish between lawful and unlawful
campaigning; that the results of an election, once conducted, should
be final; and that speech should be wholly free ...


The Process Is Part Of The Problem, Julius G. Getman Jan 1979

The Process Is Part Of The Problem, Julius G. Getman

Faculty Scholarship Series

AMERICANS REVERE ELECTIONS. We use them to select
our political leaders, our judges, our labor union officials, the
directors of our major institutions, and a multitude of other holders
of high office. Among other things, elections determine
whether employees are to be represented by a union and whether
corporations should be merged; they're increasingly used to decide
questions of public policy through initiatives and referendums.
However, as the articles in this symposium suggest, the
proliferation of elections may in fact be undesirable and may increase
the need for regulation and accompanying costs so much
that it undercuts the values ...


The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson Jan 1978

The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson

Faculty Scholarship Series

Between John Marshall's appointment to the Supreme Court in
1801 and Andrew Jackson's inauguration as President in 1829, the
Marshall Court declared one congressional act unconstitutional and
invalidated state statutes in fourteen cases. Among these cases were
many of Marshall's major judicial opinions, including Marbury v.
Madison Fletcher v. Peck, McCulloch v. Maryland,s Trustees of
Dartmouth College v. Woodward, and Gibbons v. Ogden.
Marshall's constitutional cases have been of enduring significance
and have generated widespread scholarly debate. Perhaps the
single issue that has most divided scholars is whether the great Chief
Justice should be understood ...


Legal And Constitutional History, William E. Nelson Jan 1978

Legal And Constitutional History, William E. Nelson

Faculty Scholarship Series

Since the publication of the last Legal and Constitutional Histo, survey
two years ago, the field has seen an extraordinary outpouring of
significant literature. In part, the literature was a product of the bicentennial
celebration. The University of Pennsylvania Law Review, the
Virginia Law Review, the De Paul Law Review, and even the Public
Contract Law Journal published bicentennial issues, each of which contained
several historical articles. In addition, the Law and Society Review
published a two-issue Festschrift in honor of the retirement of the
preeminent legal historian of the last three decades, James Willard Hurst. These special issues, together ...


Book Review: Better Kind Of Hatchet: Law, Trade And Diplomacy In The Cherokee Nation During The Early Years Of European Contact, William E. Nelson Jan 1977

Book Review: Better Kind Of Hatchet: Law, Trade And Diplomacy In The Cherokee Nation During The Early Years Of European Contact, William E. Nelson

Faculty Scholarship Series

John Phillip Reid's latest book, A Better Kind of Hatchet: Law,
Trade, and Diplomacy in the Cherokee Nation during the Early
Years of European Contact, is ostensibly a study of trade relations
between South Carolina and the Cherokee Indians during the first
third of the eighteenth century. But taken in conjunction with his
earlier book, A Law of Blood: The Primitive Law of the Cherokee
Nation, the new book is, in truth, much more. At the deepest level,
Reid's achievement in the two books is to suggest to white Americans,
first, some ways in which our understanding of ...


The Law Of Fogel V Chestnut: An Historical Analysis, Jan Ginter Deutsch Jan 1977

The Law Of Fogel V Chestnut: An Historical Analysis, Jan Ginter Deutsch

Faculty Scholarship Series

One of the facts that identifies law as a profession is the phenomenon of the first year of law school. For the lay public, it must appear remarkable that law students-being trained to operate in worlds that are changing with increasing rapidity should nevertheless spend their first year analyzing many of the same judicial decisions studied during their predecessors' first year.

It is because certain opinions attain a precedential value beyond the facts of the specific disputes they resolve that their study is not inconsistent with the learning of contemporary doctrine. Public acceptance of the profession, however, rests precisely on ...


Competition And Corporate Law: A Dialogue - The Bangor Punta And Santa Fe Options, Jan Ginter Deutsch Jan 1977

Competition And Corporate Law: A Dialogue - The Bangor Punta And Santa Fe Options, Jan Ginter Deutsch

Faculty Scholarship Series

In this imaginary dialogue between the economist and the lawyer, both attempt to analyze the recent decisions of the U.S. Supreme Court, applying the norms of their respective disciplines, and seek to derive a principle that would assist in formulating a course of action for the future. To those brought up in the classic tradition of Anglo-American law, the para­ meters employed to reach a decision in these cases may not be entirely intelligible. However, the determination of the applicable principle in the milieu of the current shift of the frontiers of law needs not only ...


Legal And Constitutional History, William E. Nelson Jan 1976

Legal And Constitutional History, William E. Nelson

Faculty Scholarship Series

A decade ago I contributed to the Annual Survey of American Law
my first review of the literature in the field of American legal history.
This year I would like to look back over the past ten with the
hope of identifying at least some of the continuities and changes in the
literature during that period.
Continuities in the Literature.-Many legal historians continue to
concentrate on discussions of factual data in their writings about the
American legal past. Some legal historians, such as Robert Mennel in
Thorns and Thistles: Juvenile Delinquents in the United States, 1825-
1940, have enlarged ...


Perlman V. Feldmann: A Case Study In Contemporary Corporate Legal History, Jan Ginter Deutsch Jan 1974

Perlman V. Feldmann: A Case Study In Contemporary Corporate Legal History, Jan Ginter Deutsch

Faculty Scholarship Series

When I was a law student, taking a course in introductory corporate law, what was heard around the halls was that most of corporate law would be learned if one understood Perlman v. Feldmann. I agree with that statement, and I have agreed more strongly each year I myself have taught introductory corporate law. Indeed, I now believe one would also learn a good deal about the significance of the corporation in American life during the past two decades. Unfortunately, however, it seems to me-on the basis of having read everything of which I was aware concerning one of the ...


Learned Hand's Contribution To The Law Of Tax Avoidance, Marvin A. Chirelstein Jan 1968

Learned Hand's Contribution To The Law Of Tax Avoidance, Marvin A. Chirelstein

Faculty Scholarship Series

The extent to which taxpayers are free to minimize their tax obligations
by choosing one legal form rather than another as the vehicle for a
transaction or relationship has preoccupied lawyers and administrators
since the inception of the federal income tax. There is a common
awareness among practitioners that different legal procedures will
often lead to different tax consequences, although in economic terms
the end results are essentially the same. In selecting the form in which
a proposed business transaction shall be cast, therefore, it is said to
be vital for the tax planner to consider and evaluate "all of ...


Epistemology Of Legal Judgments, F. S. C. Northrop Jan 1964

Epistemology Of Legal Judgments, F. S. C. Northrop

Faculty Scholarship Series

THERE are three major ways of understanding any subject. The
science of epistemology tells us what they are. It does this by investigating
our human ways of knowing, with particular reference to how words
obtain their various species of meanings. Since law, perhaps more than
most subjects, is concerned with the use and the interpretation of language,
it may help us to understand and evaluate the all-or-none principle
in legal judgments if we describe three major epistemological theories of
knowledge, including their respective conceptions of the meaning of
words, and relate them to the settling of legal disputes.


Modern Logic And Judicial Decision Making: A Sketch Of One View (With M. E. Caldwell), Layman E. Allen, M. E. Caldwell Jan 1963

Modern Logic And Judicial Decision Making: A Sketch Of One View (With M. E. Caldwell), Layman E. Allen, M. E. Caldwell

Faculty Scholarship Series

Two hundred years elapsed before the nineteenth century logicians Boole, De
Morgan, and others, finally succeeded in formally developing the "calculus of reasoning" first suggested by the German mathematician, Leibniz.3 It is, perhaps, to the credit of the legal profession that less than one century has subsequently elapsed, and already some lawyers and legal writers, along with other scholars, are beginning to explore the relationship between modern logic and law. What is attempted here is to outline the bare bones of one tentative way of looking at the relationship between modern logic and the judicial decision process. From the ...


Beyond Document Retrieval Toward Information Retrieval, Layman E. Allen Jan 1963

Beyond Document Retrieval Toward Information Retrieval, Layman E. Allen

Faculty Scholarship Series

Electronic data processing systems are being seriously
considered for use in legal research, and a veritable flood
of articles has appeared in various legal periodicals
speculating about the use to which such systems
can be put in legal context. The general tone of
these articles is understandable, for "we are all groping to
achieve a better understanding of the relation of these
developments in communication technology and law, and
it is to be expected that discussion will be vague and general
at the outset." As one step in the direction of more
explicitly defining the role of computers in the ...


The American Association Of American Law Schools Jurimetrics Committee Report On Scientific Investigation Of Legal Problems, Layman E. Allen Jan 1962

The American Association Of American Law Schools Jurimetrics Committee Report On Scientific Investigation Of Legal Problems, Layman E. Allen

Faculty Scholarship Series

The 1961 report of the Jurimetrics Committee of the American
Association of American Law Schools describes the interests of
the committee in investigating
1. the possible usefulness of programmed self-instructional
materials in legal education,
2. the use of symbolic logic as an analytic tool for detecting
and controlling syntactic ambiguity in written legal documents,
3. the possible use of electronic computers and other methods
of automatic data retrieval as aids in doing legal research,
4. the utility of semantics (including general semantics and
recent development in linguistics) for improving communication
in law,
5. the quantitative analysis of various aspects of ...


Logic, Law And Dreams, Layman E. Allen Jan 1959

Logic, Law And Dreams, Layman E. Allen

Faculty Scholarship Series

In considering what might be appropriate
to discuss with a group of
law librarians three words kept intruding
into my thoughts-the words
"logic," "law" and "dreams." For a
good reason too, I think, the reason
being that these words suggest ideas
that are very relevant to one of the big
problems faced by all librarians today.
To orient myself a little about what
these words suggest to other people, I
turned to a pair of standard desk
books. Of the many comments listed
there about these words, my attention
focused on just three.


Toward A More Systematic Drafting And Interpreting Of The Internal Revenue Code: Expenses, Losses And Bad Debts, Layman E. Allen, G. Orechkoff Jan 1957

Toward A More Systematic Drafting And Interpreting Of The Internal Revenue Code: Expenses, Losses And Bad Debts, Layman E. Allen, G. Orechkoff

Faculty Scholarship Series

Suppose that you, as a reasonable man, are asked whether the following
two sets of rules mean exactly the same thing. If they do and if you
intend to communicate your message as effectively as possible, which
of the two sets would you choose to state the organizational rules of your
law school?