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Full-Text Articles in Legal History

Why Didn't The Common Law Follow The Flag?, Christian Burset May 2019

Why Didn't The Common Law Follow The Flag?, Christian Burset

Journal Articles

This Article considers a puzzle about how different kinds of law came to be distributed around the world. The legal systems of some European colonies largely reflected the laws of the colonizer. Other colonies exhibited a greater degree of legal pluralism, in which the state administered a mix of different legal systems. Conventional explanations for this variation look to the extent of European settlement: where colonizers settled in large numbers, they chose to bring their own laws; otherwise, they preferred to retain preexisting ones. This Article challenges that assumption by offering a new account of how and why the British ...


The Security Court, Matthew J. Steilen Sep 2018

The Security Court, Matthew J. Steilen

Journal Articles

The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security ...


Book Review, Justin R. Huckaby Jan 2017

Book Review, Justin R. Huckaby

Journal Articles

In Conventional Wisdom: The Alternate Article V Mechanism for Proposing Amendments to the U.S. Constitution, John R. Vile discusses the thus-far unused Article V convention method of amending the U.S. Constitution. The book focuses on what an Article V convention could be and what parameters it might entail. Could such a convention be limited in scope, or must it be general in nature? Vile considers these questions and the literature behind them to develop his own interpretation of an Article V convention and how it should be implemented.


Bills Of Attainder, Matthew Steilen Jan 2016

Bills Of Attainder, Matthew Steilen

Journal Articles

What are bills of attainder? The traditional view is that bills of attainder are legislation that punishes an individual without judicial process. The Bill of Attainder Clause in Article I, Section 9 prohibits the Congress from passing such bills. But what about the President? The traditional view would seem to rule out application of the Clause to the President (acting without Congress) and to executive agencies, since neither passes bills.

This Article aims to bring historical evidence to bear on the question of the scope of the Bill of Attainder Clause. The argument of the Article is that bills of ...


All In The Family: A Legacy Of Public Service And Engagement - Edward And Thomas Fairchild, R. Nils Olsen Jr. Jan 2016

All In The Family: A Legacy Of Public Service And Engagement - Edward And Thomas Fairchild, R. Nils Olsen Jr.

Journal Articles

No abstract provided.


The Josiah Philips Attainder And The Institutional Structure Of The American Revolution, Matthew Steilen Jan 2016

The Josiah Philips Attainder And The Institutional Structure Of The American Revolution, Matthew Steilen

Journal Articles

This Article is a historical study of the Case of Josiah Philips. Philips led a gang of militant loyalists and escaped slaves in the Great Dismal Swamp of southeastern Virginia during the American Revolution. He was attainted of treason in 1778 by an act of the Virginia General Assembly, tried for robbery before a jury, convicted and executed. For many years, the Philips case was thought to be an early example of judicial review, based on a claim by St. George Tucker that judges had refused to enforce the act of attainder. Modern research has cast serious doubt on Tucker ...


Inside The Taft Court: Lessons From The Docket Books, Barry Cushman Jan 2016

Inside The Taft Court: Lessons From The Docket Books, Barry Cushman

Journal Articles

For many years, the docket books kept by certain of the Taft Court Justices have been held by the Office of the Curator of the Supreme Court. Though the existence of these docket books had been brought to the attention of the scholarly community, access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the Taft Court docket books held by the Office of the Curator, which are the only ...


The Hughes Court Docket Books: The Early Terms, 1929-1933, Barry Cushman Jul 2015

The Hughes Court Docket Books: The Early Terms, 1929-1933, Barry Cushman

Journal Articles

For many years, the docket books kept by a number of the Hughes Court Justices have been held by the Office of the Curator of the Supreme Court. Yet the existence of these docket books was not widely known, and access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the docket books that the Curator’s Office holds for the early Hughes Court, comprising the 1929-1933 Terms. Only one ...


A Defense Of The Corporate Law Duty Of Care, Julian Velasco Apr 2015

A Defense Of The Corporate Law Duty Of Care, Julian Velasco

Journal Articles

Most people would acknowledge the importance of the duty of loyalty, but the same is not true of the duty of care. Historically, the corporate law duty of care has been underenforced at best, and arguably unenforced entirely. Some scholars do not consider the duty of care to be a fiduciary duty at all, and there are those who would do away with it entirely. In this paper, I intend to provide a comprehensive defense of the corporate law fiduciary duty of care. I hope to show that the duty of care is not simply an ill-fitting appendage to the ...


Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey Jan 2015

Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey

Journal Articles

For a symposium on Teaching Ferguson, this essay considers how the standard introductory constitutional law course evades the history of legal struggle against institutionalized anti-black violence. The traditional course emphasizes the drama of anti-majoritarian judicial expansion of substantive rights. Looming over the doctrines of equal protection and due process, the ghost of Lochner warns of dangers of judicial leadership in substantive constitutional change. This standard narrative tends to lower expectations for constitutional justice, emphasizing the virtues of judicial modesty and formalism.

By supplementing the ghost of Lochner with the ghost of comparably infamous and influential case, United States v. Cruikshank ...


What Is Criminal Law About?, Guyora Binder, Robert Weisberg Jan 2015

What Is Criminal Law About?, Guyora Binder, Robert Weisberg

Journal Articles

In a recent critique, Jens Ohlin faults contemporary criminal law textbooks for emphasizing philosophy, history and social science at the expense of doctrinal training. In this response, we argue that the political importance of criminal law justifies including reflection about the justice of punishment in the professional education of lawyers. First, we argue that both understanding and evaluating criminal law doctrine requires consideration of political philosophy, legal history, and empirical research. Second, we argue that the indeterminacy of criminal law doctrine on some fundamental questions means that criminal lawyers often cannot avoid invoking normative theory in fashioning legal arguments. Finally ...


When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas Jan 2015

When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas

Journal Articles

Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against ...


The Rejection Of Horizontal Judicial Review During America's Colonial Period, Robert J. Steinfeld Jan 2015

The Rejection Of Horizontal Judicial Review During America's Colonial Period, Robert J. Steinfeld

Journal Articles

No abstract provided.


The Environmentalist Attack On Environmental Law, John Copeland Nagle Jan 2015

The Environmentalist Attack On Environmental Law, John Copeland Nagle

Journal Articles

This essay reviews two books written by leading scholars that express profound dissatisfaction with the ability of environmental law to actually protect the environment. Mary Wood’s “Nature’s Trust: Environmental Law for a New Ecological Age” calls for “deep change in environmental law,” emphasizing the roles that agency issuance of permits to modify the environment and excessive deference to agency decisions play in ongoing environmental destruction. Wood proposes a “Nature’s Trust” built on the public trust doctrine to empower courts to play a much more aggressive role in overseeing environmental decisionmaking. In “Green Governance: Ecological Survival, Human Rights ...


Auctioning Class Settlements, Jay Tidmarsh Oct 2014

Auctioning Class Settlements, Jay Tidmarsh

Journal Articles

Although they promise better deterrence at a lower cost, class actions are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class (the class representative and class counsel) advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class-action reform proposals. This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea ...


The Jurisprudence Of The Hughes Court: The Recent Literature, Barry Cushman Jan 2014

The Jurisprudence Of The Hughes Court: The Recent Literature, Barry Cushman

Journal Articles

The balance of this Article is devoted, after a fashion, to an exploration of the extent to which the recent literature on the Hughes Court seeks to incorporate the internal point of view. In Part I, I seek to identify the historiographical premises undergirding each author’s treatment of the subject. In Part II, I explore how those historiographical premises are reflected in each author’s treatment of the substantive development of constitutional doctrine during the period. In Part III, I examine the ways in which those historiographical premises inform each author’s analysis of the causal forces driving that ...


The Court-Packing Plan As Symptom, Casualty, And Cause Of Gridlock, Barry Cushman Jan 2013

The Court-Packing Plan As Symptom, Casualty, And Cause Of Gridlock, Barry Cushman

Journal Articles

This essay, prepared for the Notre Dame Law Review's Symposium, “The American Congress: Legal Implications of Gridlock,” considers three ways in which President Franklin D. Roosevelt’s 1937 Court-packing bill was related to the phenomenon of gridlock in the 1930s. First, as FDR's public remarks on the subject demonstrate, he believed that the early New Deal was a victim of partisan gridlock between the Democrat-controlled political branches and the Republican-controlled judiciary. Moreover, he did not believe that the impasse could be overcome through an amendment to the Constitution, for he regarded Article V's supermajority requirements as virtually ...


Precedent And Reliance, Randy J. Kozel Jan 2013

Precedent And Reliance, Randy J. Kozel

Journal Articles

Among the most prevalent justifications for deference to judicial precedent is the protection of reliance interests. The theory is that when judicial pronouncements have engendered significant reliance, there should be a meaningful presumption against adjudicative change. Yet there remains a fundamental question as to why reliance on precedent warrants judicial protection in the first place.

This Article explores the dynamics and implications of precedential reliance. It contends that the case for protecting reliance on precedent is uncertain. There are several reasons why reliance might potentially be worth protecting, but all are subject to serious limitations or challenges. To bolster the ...


Court-Packing And Compromise, Barry Cushman Jan 2013

Court-Packing And Compromise, Barry Cushman

Journal Articles

President Franklin D. Roosevelt’s 1937 Court-packing bill would have permitted him to appoint six additional justices to the Supreme Court, thereby expanding its membership to fifteen immediately. Throughout the ultimately unsuccessful campaign to enact the measure, Roosevelt was presented with numerous opportunities to compromise for a measure authorizing the appointment of fewer additional justices. The President rejected each of these proposals, and his refusal to compromise often has been attributed to stubbornness, overconfidence, or hubris. Yet an examination of the papers of Attorney General Homer S. Cummings reveals why FDR and his advisors believed that he required no fewer ...


Natural Law Theory: Its Past And Its Present, John M. Finnis Jan 2012

Natural Law Theory: Its Past And Its Present, John M. Finnis

Journal Articles

No abstract provided.


Creating The Public Forum, Samantha Barbas Jan 2011

Creating The Public Forum, Samantha Barbas

Journal Articles

The public forum doctrine protects a right of access - “First Amendment easements” - to streets and parks and other traditional places for public expression. It is well known that the doctrine was articulated by the Supreme Court in a series of cases in the 1930s and 1940s. Lesser known are the historical circumstances that surrounded its creation. Critics believed that in a modern world where the mass media dominated public discourse - where the soap box orator and pamphleteer had been replaced by the radio and mass circulation newspaper - mass communications had undermined the possibility of widespread participation in politics, public life ...


The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jan 2011

The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia

Journal Articles

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts...shall...have cognizance...of all causes where an alien sues for tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004 ...


Copyright And The First Amendment: Comrades, Combatants, Or Uneasy Allies?, Joseph P. Bauer Jan 2010

Copyright And The First Amendment: Comrades, Combatants, Or Uneasy Allies?, Joseph P. Bauer

Journal Articles

The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better, and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright laws afford to the creator of a work the exclusive right to reproduce, distribute, transform, and perform that work for an extended period of time. The First Amendment, on the other hand, proclaims that Congress "shall make no law...abridging the freedom of speech or of the press," thus at least nominally indicating that limitations on the ...


Substantive Canons And Faithful Agency, Amy Coney Barrett Jan 2010

Substantive Canons And Faithful Agency, Amy Coney Barrett

Journal Articles

Federal courts have long employed substantive canons of construction in the interpretation of statutes. For example, they apply the rule of lenity, which directs that ambiguous criminal statutes be interpreted in favor of the defendant, and the avoidance canon, which directs that statutes be interpreted in a manner that prevents the court from having to address serious constitutional questions. They also apply so-called “clear statement” rules — for example, absent a clear statement from Congress, a federal court will not interpret a statute to abrogate state sovereign immunity. While some commentators have attempted to rationalize these and other substantive canons as ...


Response To Nicholas Boyle, O. Carter Snead Jan 2009

Response To Nicholas Boyle, O. Carter Snead

Journal Articles

Response to Nicholas Boyle’s talk “God, Sex, and America: From Decline of the Common Morality to the Emergence of a Global Ethical Life” at The Catholic University of America Center for Law, Philosophy and Culture’s Symposium “A Common Morality for the Global Age: In Gratitude for What We Are Given.”


The Nobel Effect, Roger P. Alford Jan 2009

The Nobel Effect, Roger P. Alford

Journal Articles

No abstract provided.


H.L.A. Hart: A Twentieth-Century Oxford Political Philosopher, John M. Finnis Jan 2009

H.L.A. Hart: A Twentieth-Century Oxford Political Philosopher, John M. Finnis

Journal Articles

This essay offers first a sketch (by a student and colleague) of H.L.A. Hart's life; second an account of the political philosophy which he explicitly articulated in The Concept of Law (1961), and of its relation to the main currents of Oxford political philosophy in the 1950s; and thirdly an exposition and critical assessment of the normative political theory deployed, to widespread acclaim, in his Law, Liberty & Morality (1963).


Trademark Use And The Problem Of Source, Mark P. Mckenna Jan 2009

Trademark Use And The Problem Of Source, Mark P. Mckenna

Journal Articles

This Article mediates a scholarly debate regarding the existence and desirability of a "trademark use" doctrine. It argues that trademark use is a predicate of liability under the Lanham Act, but those who advocate treating trademark use as a threshold question put much more weight on that concept than it can bear. Courts cannot consistently apply trademark use as a distinct element of the plaintiff's prima facie case because trademark use can be determined only from the perspective of consumers. Specifically, courts can determine whether a defendant has made trademark use of a plaintiff's mark only by asking ...


Reason, Revelation, Universality And Particularity In Ethics, John M. Finnis Jan 2008

Reason, Revelation, Universality And Particularity In Ethics, John M. Finnis

Journal Articles

This address to a philosophical conference on truth and faith in ethics engages in an extended critique of the account of truth in Bernard Williams, Truth and Truthfulness: an essay in genealogy (Princeton University Press, 2002). For any jurisprudential, moral or political theory that affirms natural law needs to respond first to sceptical denials that reason can discover any truths about what ends all human individuals or groups ought to pursue. But any such theory also needs to make clear how it differs from, even when it coincides in moral judgment with, bodies of moral teaching self-identified as part of ...


Procedural Common Law, Amy Coney Barrett Jan 2008

Procedural Common Law, Amy Coney Barrett

Journal Articles

Debates about the common lawmaking power of the federal courts focus exclusively on substantive common law. But federal common law is not limited to matters of substance; it reaches matters of procedure as well. Federal law includes a robust body of what might be called procedural common law - common law primarily concerned with the regulation of internal court processes rather than substantive rights and obligations. This body of law includes many doctrines that are fixtures in the law of procedure and federal courts. For example, abstention, forum non conveniens, remittitur, stare decisis, and preclusion can all fairly be characterized as ...