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Boston College Law School Faculty Papers

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Full-Text Articles in Legal History

The Boston Lawyers’ Committee For Civil Rights Under Law: The First Fifty Years, Mark S. Brodin Jun 2020

The Boston Lawyers’ Committee For Civil Rights Under Law: The First Fifty Years, Mark S. Brodin

Boston College Law School Faculty Papers

Massachusetts lawyers have a long tradition of pro bono public service and commitment to the greater good of our society. So, it is no surprise that John F. Kennedy, a president steeped in Massachusetts history, reached out to the practicing bar to involve it in what he saw as a moral and legal crisis “as old as the scriptures and as clear as the American constitution.” In 1963, only months before his assassination, President Kennedy convened a meeting of 244 of the nation’s leading lawyers at the White House, seeking their active participation in the protection of civil rights ...


White Male Aristocracy, Mary Sarah Bilder Apr 2020

White Male Aristocracy, Mary Sarah Bilder

Boston College Law School Faculty Papers

Written for the Symposium on Gerald Leonard and Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s-1830s (Cambridge University Press, 2019).

Gerry Leonard and Saul Cornell’s fascinating book, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders’ Constitution, 1780-1830s tells the story, as I put in in a blurb, “of the unsettling transformation of aristocratic-tinged constitutional republic into a partisan white male democracy.” In this year where we recall the Nineteenth Amendment’s re-enfranchisement of women, the Leonard/Cornell book demands that we reevaluate the way we describe the early nineteenth-century ...


The Emerging Genre Of The Constitution: Kent Newmyer And The Heroic Age, Mary Sarah Bilder Jan 2020

The Emerging Genre Of The Constitution: Kent Newmyer And The Heroic Age, Mary Sarah Bilder

Boston College Law School Faculty Papers

In written celebration of Kent Newmyer’s intellectual and collegial influence, this essay argues that the written constitution was an emerging genre in 1787-1789. Discussions of the Constitution and constitutional interpretation often rest on a set of assumptions about the Constitution that arose in the years and decades after the constitutional Convention. The most significant one involves the belief that a fixed written document was drafted in 1787 intended in our modern sense as A Constitution. This fundamental assumption is historically inaccurate. The following reflections of a constitutionalist first lay out the argument for considering the Constitution as an emerging ...


Resistance Lawyering, Daniel S. Farbman Dec 2019

Resistance Lawyering, Daniel S. Farbman

Boston College Law School Faculty Papers

This is the story of a group of abolitionist lawyers who devoted themselves to working within a legal system that they considered to be fundamentally unjust and illegitimate. These “resistance lawyers” used the limited and unfriendly procedural tools of the hated Fugitive Slave Law of 1850 to frustrate, oppose, and, if possible, dismantle the operation of that law. Abolitionist resistance lawyers were forthrightly committed both to ensuring that their clients remained free and to using the cases that arose under the Fugitive Slave Law to wage a proxy war against the institution of slavery. Their daily direct service practices were ...


The Library Of Robert Morris, Antebellum Civil Rights Lawyer & Activist, Laurel Davis, Mary Sarah Bilder Sep 2019

The Library Of Robert Morris, Antebellum Civil Rights Lawyer & Activist, Laurel Davis, Mary Sarah Bilder

Boston College Law School Faculty Papers

The Robert Morris library, the only known extant, antebellum African American–owned library, reveals its owner’s intellectual commitment to full citizenship and equality for people of color. Although studies of lawyers’ libraries have focused on large collections, this article provides a model for interpreting small libraries, particularly where few personal papers remain extant.


History And Harvard Law School, Bruce A. Kimball, Daniel R. Coquillette Dec 2018

History And Harvard Law School, Bruce A. Kimball, Daniel R. Coquillette

Boston College Law School Faculty Papers

No abstract provided.


The "Guarantee" Clause, Ryan C. Williams Dec 2018

The "Guarantee" Clause, Ryan C. Williams

Boston College Law School Faculty Papers

Article IV’s command that “the United States shall guarantee to every State in this Union a Republican Form of Government” stands as one of the few remaining lacunae in the judicially enforced Constitution. For well over a century, federal courts have viewed the provision — traditionally known as the Guarantee Clause but now referred to by some as the “Republican Form of Government” Clause — as a paradigmatic example of a nonjusticiable political question. In recent years, however, both the Supreme Court and lower federal courts have signaled a new willingness to reconsider this much-criticized jurisdictional barrier in an appropriate case ...


The Constitution To The Constitution, Mary Sarah Bilder Sep 2018

The Constitution To The Constitution, Mary Sarah Bilder

Boston College Law School Faculty Papers

An overview of the reasons that the 1787 Constitution lacked the historical and legal assumptions that underlie our contemporary idea of "The Constitution." Appropriate for constitutional law courses and American history courses at the university and secondary levels.

Excerpted from essay originally published in The New England Quarterly as "The Ordeal and the Constitution" and lightly edited for coherence.


The Ordeal And The Constitution, Mary Sarah Bilder Mar 2018

The Ordeal And The Constitution, Mary Sarah Bilder

Boston College Law School Faculty Papers

No abstract provided.


The Relevance Of Colonial Appeals To The Privy Council, Mary Sarah Bilder Nov 2016

The Relevance Of Colonial Appeals To The Privy Council, Mary Sarah Bilder

Boston College Law School Faculty Papers

For the past two centuries, the colonial appeals to the Privy Council fell between the cracks on both sides of the Atlantic. For Americans, the creation of the Supreme Court and the absence of published reports of appeals implied legal discontinuity between “American” (post-1787) law and the pre-1787 British imperial world. For the British, the loss of the Atlantic colonies and the lack of printed precedents in appeals implied legal discontinuity between English common law and the colonial appeals. Elsewhere I have written about the importance of the appeals for colonial American legal history and the history of the development ...


Charter Constitutionalism: The Myth Of Edward Coke And The Virginia Charter, Mary Sarah Bilder Jul 2016

Charter Constitutionalism: The Myth Of Edward Coke And The Virginia Charter, Mary Sarah Bilder

Boston College Law School Faculty Papers

Magna Carta’s connection to the American constitutional tradition has been traced to Edward Coke’s insertion of English liberties in the 1606 Virginia Charter. This account curiously turns out to be unsupported by direct evidence. This Article recounts an alternative history of the origins of English liberties in American constitutionalism. A quarter century before the Virginia charter, provisions assuring liberties to English children born overseas were inserted in the earliest letters patent. These provisions drew on an older practice extending liberties to children born overseas. Because of these provisions, persons born in the colonies were guaranteed the same liberties ...


On What Matters In Comparative Constitutional Law: A Comment On Hirschl, Katharine G. Young Jul 2016

On What Matters In Comparative Constitutional Law: A Comment On Hirschl, Katharine G. Young

Boston College Law School Faculty Papers

The field of comparative constitutional law has developed in interesting and exciting directions in recent years. This essay provides a comment on Ran Hirschl’s Comparative Matters: The Renaissance of Comparative Constitutional Law, a path-breaking example of the new methodologies that have become possible in the field. Its new boundaries, described not as comparative constitutional law, but as comparative constitutional studies, include comparative politics, political economy, and the broader social sciences. By contrast, this essay suggests that the field must remain anchored in law, in all of its complexity. This may at times suggest different answers, and indeed different questions ...


Legal Aid 1900 To 1930: What Happened To Law Reform?, Mark Spiegel Jun 2015

Legal Aid 1900 To 1930: What Happened To Law Reform?, Mark Spiegel

Boston College Law School Faculty Papers

This article offers a counter narrative to the conventional description of legal aid in the United States. By offering this counter narrative it focuses us on certain enduring difficulties that any legal aid or legal services program has to face if it wants to engage in reform efforts: problems of funding and problems of the social and historical context. Conventional wisdom has it that legal aid until the 1960s was largely devoted to individual cases and that it was not until the advent of federally-funded legal services that law reform and social change became part of the delivery of legal ...


Constitutional Amendment By Stealth, Richard Albert Apr 2015

Constitutional Amendment By Stealth, Richard Albert

Boston College Law School Faculty Papers

Constitutional amendment ordinarily channels public deliberation through formal, transparent and predictable procedures designed to express the informed aggregated choices of political, popular and institutional actors. Yet the Government of Canada’s proposed senator selection reforms concealed a democratically problematic strategy to innovate an informal, obscure and irregular method of constitutional amendment: constitutional amendment by stealth. There are three distinguishing features of constitutional amendment by stealth—distinctions that make stealth amendment stand apart from other types of informal constitutional change: the circumvention of formal amendment rules, the intentional creation of a convention, and the twinned consequences of both promoting and weakening ...


How Unwritten Constitutional Norms Change Written Constitutions, Richard Albert Jan 2015

How Unwritten Constitutional Norms Change Written Constitutions, Richard Albert

Boston College Law School Faculty Papers

Written constitutions are susceptible to informal changes that do not manifest themselves in alterations to the text, for instance as a result of judicial interpretation, legislative enactment or executive action. This phenomenon is well developed in the scholarly literature on constitutional change and informal constitutional amendment. But what remains understudied and undertheorized in Canada and the United States is how written constitutions change informally as a result of the development of an unwritten constitutional norm, otherwise known as a constitutional convention. In this Article, I hypothesize with reference to the Canadian and United States Constitutions that there exist two major ...


The Great Alliance: History, Reason, And Will In Modern Law, Paulo D. Barrozo Jan 2015

The Great Alliance: History, Reason, And Will In Modern Law, Paulo D. Barrozo

Boston College Law School Faculty Papers

This article offers a new way to understand the intellectual origins of contemporary law. Analyses of law and legal thought tend to emphasize rupture and change. These analyses fail to account for how much of present law and jurisprudence is the continuation of a jurisprudential settlement that occurred in the second half of the nineteenth century. The aim of the settlement was to bring the will of the masses under the control of authoritative legal categories and conceptions of political morality. The principal mechanism of the settlement was the convergence between rationalism and historicism in law. In the nineteenth century ...


The Progressive Era Of Constitutional Amendment, Richard Albert Jan 2015

The Progressive Era Of Constitutional Amendment, Richard Albert

Boston College Law School Faculty Papers

As hard as it is today to amend the United States Constitution — and empirical studies confirm that it is one of the hardest democratic constitutions to amend, if not the hardest, in the entire world — the United States Constitution was once thought too easy to amend. During the Progressive Era, a period of social activism and institutional reform from the 1890s through the 1920s, the United States adopted four constitutional amendments in a short span of roughly 10 years: the Sixteenth Amendment, authorizing a direct income tax; the Seventeenth Amendment, establishing direct elections to the United States Senate; the Eighteenth ...


New Directions In The Scholarship Of The American Revolution, Mary Sarah Bilder May 2014

New Directions In The Scholarship Of The American Revolution, Mary Sarah Bilder

Boston College Law School Faculty Papers

These brief comments were presented in May 2014 at a panel in honor of the late Professor Pauline Maier (including Mary Beth Norton, Gordon Wood, Bernard Bailyn, Robert Martello, and Mary Sarah Bilder). Professor Bilder proposed three areas for future work in the framing era: (1) reconsidering the conception of the “state”; (2) exploring continuities in governance practices as well as formal constitutional change to explain the rapid embrace of the new constitutional system; (3) relocating American development within a larger global narrative in which 1776 or 1787 do not begin or end the story, and the thirteen colonies are ...


American Exceptionalism And Government Shutdowns: A Comparative Constitutional Reflection On The 2013 Lapse In Appropriations, Katharine G. Young May 2014

American Exceptionalism And Government Shutdowns: A Comparative Constitutional Reflection On The 2013 Lapse In Appropriations, Katharine G. Young

Boston College Law School Faculty Papers

The shutdown of the U.S. government after failure to pass a budget is exceptional by global standards. Other governments in mature constitutional democracies do not stop functioning, despite the difficulties in passing revenue bills. Yet shutdowns in America are increasing in occurrence, costliness and intensity. I argue that the Constitution is partly to blame, both because of what it creates and what it lacks. Drawing on a comparative perspective, I show how the constitutional emphasis on checks and balances contributes to the likelihood of shutdown, and how features that might forestall or resolve financial impasse are omitted.

After rejecting ...


Comparative Law In A Time Of Globalization: Some Reflections, Thomas C. Kohler Mar 2014

Comparative Law In A Time Of Globalization: Some Reflections, Thomas C. Kohler

Boston College Law School Faculty Papers

This piece discusses the tension between internationalization of legal ordering and the growing pressure against local and national ordering. Using Aristotle, Tocqueville, the Reception of Roman Law as forebears of the problem, I discuss three major European Court of Justice decisions (Laval, Viking and Schmidberger) as examples of the displacement of local ordering. I conclude that the task of comparative law is to focus on the importance of local ordering, keeping the human at the center and not vague principles generated by international bodies with no or little local ties.


Corporate Citizenship: Goal Or Fear?, Kent Greenfield Jan 2014

Corporate Citizenship: Goal Or Fear?, Kent Greenfield

Boston College Law School Faculty Papers

Discusses the conflicting opinions about corporate "citizenship." Should corporations be insulated from politics or a part of it?


Appeals To The Privy Council From The American Colonies: An Annotated Digital Catalogue: Part 1, Sharon Hamby O'Connor, Mary Sarah Bilder Jan 2014

Appeals To The Privy Council From The American Colonies: An Annotated Digital Catalogue: Part 1, Sharon Hamby O'Connor, Mary Sarah Bilder

Boston College Law School Faculty Papers

Archived content from an interactive project available at http://amesfoundation.law.harvard.edu/ColonialAppeals/.


Custom And Practice Unmasked: The Legal History Of Massachusetts' Experience With The Unauthorized Practice Of Law, Alexis Anderson Mar 2013

Custom And Practice Unmasked: The Legal History Of Massachusetts' Experience With The Unauthorized Practice Of Law, Alexis Anderson

Boston College Law School Faculty Papers

Through educational barriers, occupational licensing, and bar association activities, American lawyers have endeavored to achieve a monopoly on the practice of law. One tool that has helped cement their ability to define lawyer-only turf is the unauthorized practice of law (“UPL”) doctrine.

This Article, which explores Massachusetts’ attempts to bar lay practitioners, reveals that the state’s unauthorized practice of law movement took hold relatively recently. It has been marked by fits and starts, by active proponents and by equally determined naysayers, by headline grabbing politicians and bar leaders, and by increasingly assertive judges. Perhaps most importantly, this account also ...


How Bad Were The Official Records Of The Federal Convention?, Mary Sarah Bilder Oct 2012

How Bad Were The Official Records Of The Federal Convention?, Mary Sarah Bilder

Boston College Law School Faculty Papers

The official records of the Constitutional Convention of 1787 have been neglected and dismissed by scholars for the last century, largely to due to Max Farrand’s criticisms of both the records and the man responsible for keeping them - Secretary of the Convention William Jackson. This Article disagrees with Farrand’s conclusion that the Convention records were bad, and aims to resurrect the records and Jackson’s reputation. The Article suggests that the endurance of Farrand’s critique arises in part from misinterpretations of certain procedural components of the Convention and failure to appreciate the significance of others, understandable considering ...


Past The Pillars Of Hercules: Francis Bacon And The Science Of Rulemaking, Daniel R. Coquillette Jun 2012

Past The Pillars Of Hercules: Francis Bacon And The Science Of Rulemaking, Daniel R. Coquillette

Boston College Law School Faculty Papers

The parallels between Francis Bacon’s career and that of Edward H. Cooper are obvious. Bacon was one of the great legal minds of his day and, unlike the common law judges who formed the law by deciding cases, Bacon expressed his greatness in writing brilliant juristic treatises and, as Lord Chancellor, drafting one of the first modern rule systems, the Ordinances in Chancery (1617-1620). My thesis is that Bacon invented modern, scientific rulemaking by fusing his new theories of inductive, empirical research with the traditions of equitable pleading, and is, in fact, the intellectual forebearer of the likes of ...


Challenges Of “Sameness”: Pitfalls And Benefits To Assumed Connections In Lawyering, Alexis Anderson, Lynn Barenberg, Carwina Weng Apr 2012

Challenges Of “Sameness”: Pitfalls And Benefits To Assumed Connections In Lawyering, Alexis Anderson, Lynn Barenberg, Carwina Weng

Boston College Law School Faculty Papers

Individuals are drawn to connect with other people because of shared experiences and personal characteristics. These connections often help people establish rapport, trust, and engagement. Surely these same benefits would apply in the lawyer-client relationship where a lawyer’s ability to find common links with her client would facilitate the lawyering process.

Perhaps that is true, but not necessarily and not without some potential costs. As clinical teachers, we have become increasingly wary that assumptions attributable to sameness can complicate lawyering. Untested assumptions, whatever their source, can impair lawyering judgments. In our collective experience, we have found that assumptions rooted ...


The Model Penal Code’S Wrong Turn: Renunciation As A Defense To Criminal Conspiracy, R. Michael Cassidy, Gregory Massing Apr 2012

The Model Penal Code’S Wrong Turn: Renunciation As A Defense To Criminal Conspiracy, R. Michael Cassidy, Gregory Massing

Boston College Law School Faculty Papers

While the Model Penal Code was certainly one the most influential developments in criminal law in the past century, the American Law Institute (ALI) took a seriously wrong turn by recognizing a defense of “renunciation” to the crime of conspiracy. Under the Model Penal Code formulation, a member of a conspiracy who later disavows the agreement and thwarts its objective (for example, by notifying authorities of the planned crime in order to prevent its completion) is afforded a complete defense to conspiracy liability. This defense has enormous implications for crimes involving national security and terrorism, which are typically planned covertly ...


Thoughts On Duncan Kennedy's Third Globalization, Catharine P. Wells Apr 2012

Thoughts On Duncan Kennedy's Third Globalization, Catharine P. Wells

Boston College Law School Faculty Papers

This is a discussion of Duncan Kennedy's work on the historical development of three paradigms for analyzing law and their application to the law of emerging economies.


Appeals To The Privy Council Before American Independence: An Annotated Digital Catalogue, Sharon Hamby O'Connor, Mary Sarah Bilder Feb 2012

Appeals To The Privy Council Before American Independence: An Annotated Digital Catalogue, Sharon Hamby O'Connor, Mary Sarah Bilder

Boston College Law School Faculty Papers

Between the later seventeenth century and American independence, appeals from colonial high courts were taken to the Privy Council in England. These appeals are the precursors of today’s appeals to the U.S. Supreme Court. Their legal and policy issues can be reconstructed from the outcome of the appeals, the briefs of crown law officers, related Privy Council documents, and handwritten notations on these materials. This article describes Appeals to the Privy Council Before American Independence, an annotated digital catalogue of appeals from the thirteen colonies with links and digital images providing access to this material, now compiled from ...


Hauerwas And The Law: Is There A Basis For Conversation?, M. Cathleen Kaveny Jan 2012

Hauerwas And The Law: Is There A Basis For Conversation?, M. Cathleen Kaveny

Boston College Law School Faculty Papers

No abstract provided.