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Articles 1 - 15 of 15
Full-Text Articles in Legal History
Amicus Brief In Collins V. Mnuchin On Original Public Meaning Of Presidential Removal And The 'Decision Of 1789', Jed Handelsman Shugerman
Amicus Brief In Collins V. Mnuchin On Original Public Meaning Of Presidential Removal And The 'Decision Of 1789', Jed Handelsman Shugerman
Faculty Scholarship
Petitioners and the en banc Court of Appeals below have rested their contention that the Constitution grants the President at-will removal authority over the head of the Federal Housing Finance Agency (FHFA) on historical claims about the first Congress’s ostensible “Decision of 1789.” In so doing, Petitioners are following Chief Justice Taft’s account in Myers v. United States, upon which this Court relied on in 2010 and again last term for an originalist interpretation of Article II. New historical research shows that Myers was incorrect. The “Decision of 1789” actually supports, rather than undermines, Congress’s power to limit presidential removal. …
Crisis? Whose Crisis?, Jack M. Beermann
Crisis? Whose Crisis?, Jack M. Beermann
Faculty Scholarship
Every moment in human history can be characterized by someone as “socially and politically charged.” For a large portion of the population of the United States, nearly the entire history of the country has been socially and politically charged, first because they were enslaved and then because they were subjected to discriminatory laws and unequal treatment under what became known as “Jim Crow.” The history of the United States has also been a period of social and political upheaval for American Indians, the people who occupied the territory that became the United States before European settlement. Although both African-Americans and …
Race, Surveillance, Resistance, Chaz Arnett
Race, Surveillance, Resistance, Chaz Arnett
Faculty Scholarship
The increasing capability of surveillance technology in the hands of law enforcement is radically changing the power, size, and depth of the surveillance state. More daily activities are being captured and scrutinized, larger quantities of personal and biometric data are being extracted and analyzed, in what is becoming a deeply intensified and pervasive surveillance society. This reality is particularly troubling for Black communities, as they shoulder a disproportionate share of the burden and harm associated with these powerful surveillance measures, at a time when traditional mechanisms for accountability have grown weaker. These harms include the maintenance of legacies of state …
Copyright As Legal Process: The Transformation Of American Copyright Law, Shyamkrishna Balganesh
Copyright As Legal Process: The Transformation Of American Copyright Law, Shyamkrishna Balganesh
Faculty Scholarship
American copyright law has undergone an unappreciated conceptual transformation over the course of the last century. Originally conceived of as a form of private law – focusing on horizontal rights, privileges and private liability – copyright law is today understood principally through its public-regarding goals and institutional apparatus, in effect as a form of public law. This transformation is the result of changes in the ideas of law and law-making that occurred in American legal thinking following World War II, manifested in the deeply influential philosophy of the Legal Process School of jurisprudence which shaped the modern American copyright landscape. …
National Security And Judicial Ethics: The Exception To The Rule Of Keeping Judicial Conduct Judicial And The Politicization Of The Judiciary, Joshua E. Kastenberg
National Security And Judicial Ethics: The Exception To The Rule Of Keeping Judicial Conduct Judicial And The Politicization Of The Judiciary, Joshua E. Kastenberg
Faculty Scholarship
This article is divided into three sections, and it incorporates original research from the personal correspondences of several judges and justices. This article includes unpublished correspondences from various judicial collections at the Library of Congress, the Bentley Historical Library at the University of Michigan, the Washington and Lee School of Law’s special collections, the Richard Nixon and Ronald Reagan Presidential Libraries, the National Library of Australia in Canberra, and Canada’s National Archives in Ottawa. The first section analyzes the current framework governing judicial disqualification based on the separation of powers doctrine as well as the right to an impartial judiciary, …
Motives And Fiduciary Loyalty, Stephen R. Galoob, Ethan J. Leib
Motives And Fiduciary Loyalty, Stephen R. Galoob, Ethan J. Leib
Faculty Scholarship
How, if at all, do motives matter to loyalty? We have argued that loyalty (and the duty of loyalty in fiduciary law) has a cognitive dimension. This kind of “cognitivist” account invites the counterargument that, because most commercial fiduciary relationships involve financial considerations, purity of motive cannot be central to loyalty in the fiduciary context. We contend that this counterargument depends on a flawed understanding of the significance of motive to loyalty. We defend a view of the importance of motivation to loyalty that we call the compatibility account. On this view, A acts loyally toward B only if …
The Empty Chair: Reflections On An Absent Justice, Jennifer L. Behrens
The Empty Chair: Reflections On An Absent Justice, Jennifer L. Behrens
Faculty Scholarship
This article examines a January 1888 letter to U.S. Supreme Court Chief Justice Morrison Waite from Associate Justice Stanley Matthews. Justice Matthews requested time away from the notoriously overworked Court’s session in order to attend the funeral of Dr. Peter Parker, renowned medical missionary and diplomat. The piece presents biographical sketches of Justice Matthews and Dr. Parker, and considers the historical context of the potential absence on the late nineteenth-century Court’s operations.
King Leopold's Bonds And The Odious Debts Mystery, Joseph Blocher, Mitu Gulati, Kim Oosterlinck
King Leopold's Bonds And The Odious Debts Mystery, Joseph Blocher, Mitu Gulati, Kim Oosterlinck
Faculty Scholarship
In 1898, in the wake of the Spanish-American war, Spain ceded the colony of Cuba to the United States. In keeping with the law of state succession, the Spanish demanded that the U.S. also take on Spanish debts that had been backed by Cuban revenues. The Americans refused, arguing that some of those debts had been utilized for purposes adverse to the interests of the Cuban people. This, some argue, was the birth of the doctrine of “odious debts”; a doctrine providing that debts incurred by a non-representative government and utilized for purposes adverse to the population do not need …
On Trust, Law, And Expecting The Worst, Elizabeth F. Emens
On Trust, Law, And Expecting The Worst, Elizabeth F. Emens
Faculty Scholarship
This Review has three parts. Part I aims to convey something of the breadth and interest of Hasday’s fascinating new book, foregrounding the role of gender and beginning to touch the subject of trust. Part II delves briefly but widely into the theme of trust, which pervades the book and invites further examination. Part III presents a framework that combines affective trust and epistemic curiosity and applies this framework to illuminate and sort Hasday’s proposals for reform; to critique a recent, dramatic change in the evidentiary treatment of marital confidences; and to devise a novel approach to prenuptial agreements. Throughout, …
"The Road I Can't Help Travelling": Holmes On Truth And Persuadability, Joseph Blocher
"The Road I Can't Help Travelling": Holmes On Truth And Persuadability, Joseph Blocher
Faculty Scholarship
No abstract provided.
Empty Chairs, Jennifer L. Behrens
Against Progress: Interventions About Equality In Supreme Court Cases About Copyright Law, Jessica Silbey
Against Progress: Interventions About Equality In Supreme Court Cases About Copyright Law, Jessica Silbey
Faculty Scholarship
This symposium essay is adapted from my forthcoming book Against Progress: Intellectual Property and Fundamental Values in the Internet Age (Stanford University Press 2021 forthcoming). The book’s primary argument is that, with the rise of digital technology and the ubiquity of the internet, intellectual property law is becoming a mainstream part of law and culture. This mainstreaming of IP has particular effects, one of which is the surfacing of on-going debates about “progress of science and the useful arts,” which is the constitutional purpose of intellectual property rights.
In brief, Against Progress describes how in the 20th century intellectual property …
Fixing America's Founding, Maeve Glass
Fixing America's Founding, Maeve Glass
Faculty Scholarship
The forty-fifth presidency of the United States has sent lawyers reaching once more for the Founders’ dictionaries and legal treatises. In courtrooms, law schools, and media outlets across the country, the original meanings of the words etched into the U.S. Constitution in 1787 have become the staging ground for debates ranging from the power of a president to trademark his name in China to the rights of a legal permanent resident facing deportation. And yet, in this age when big data promises to solve potential challenges of interpretation and judges have for the most part agreed that original meaning should …
Minimum And Maximum Protection Under International Copyright Treaties, Jane C. Ginsburg
Minimum And Maximum Protection Under International Copyright Treaties, Jane C. Ginsburg
Faculty Scholarship
This Comment addresses minimum and maximum substantive international protections set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the maxima have generally received less attention. It first discusses the general structure of the Berne Convention, TRIPS, and the WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive.
Holmes's Understanding Of His Clear-And-Present-Danger Test: Why Exactly Did He Require Imminence?, Vincent A. Blasi
Holmes's Understanding Of His Clear-And-Present-Danger Test: Why Exactly Did He Require Imminence?, Vincent A. Blasi
Faculty Scholarship
For all the suggestiveness and staying power of his market-in-ideas metaphor, Justice Oliver Wendell Holmes’s most significant influence on First Amendment law has turned out to be his notion that only imminent harm can justify punishment for expressions of opinion. This emphasis on the time dimension in the calculus of harm is now entrenched in modern doctrine. It is easy to imagine how First Amendment law might have developed differently had Holmes’s peculiar focus on imminence not been a factor in shaping how the freedom of speech has come to be understood in the United States.