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Full-Text Articles in Legal History

A Reformed Liberalism: Michael Mcconnell’S Contributions To Christian Jurisprudence, Nathan Chapman Jan 2018

A Reformed Liberalism: Michael Mcconnell’S Contributions To Christian Jurisprudence, Nathan Chapman

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Michael McConnell is one of the most influential constitutional scholars of the past thirty years. He has written a great deal about religious liberty, but relatively little about how his own religious beliefs may relate to his constitutional jurisprudence. This essay is the first to explore the connection between McConnell’s religious views and scholarship. The essay engages with a short piece by McConnell that sketches the outlines of a “reformed liberalism.” McConnell argued that reformed Christian theology is compatible with the classical liberalism that animated the framing of the U.S. Constitution. Though he did not develop this account ...


Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck Jan 2018

Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck

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The Supreme Court concluded twenty-five years ago, in Lujan v. Defenders of Wildlife, that uninjured private plaintiffs may not litigate “generalized grievances” about the legality of executive branch conduct. According to the Lujan Court, Congress lacked power to authorize suit by a plaintiff who could not establish some “particularized” injury from the challenged conduct. The Court believed litigation to require executive branch legal compliance, brought by an uninjured private party, is not a “case” or “controversy” within the Article III judicial power and impermissibly reassigns the President’s Article II responsibility to “take Care that the Laws be faithfully executed ...


Inimicus Libertatis: Chief Justice Rehnquist’S Majority Or Plurality Opinions In The Field Of Criminal Procedure, Donald E. Wilkes Jr. Aug 2017

Inimicus Libertatis: Chief Justice Rehnquist’S Majority Or Plurality Opinions In The Field Of Criminal Procedure, Donald E. Wilkes Jr.

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Since the early 1970’s an increasingly conservative Supreme Court of the United States has been leading this country through a “Criminal Procedure Counterrevolution” (also called “The Rehnquisition”), during which the federal rights and remedies of criminal defendants have been inexorably and significantly eroded. There are numerous books and law review articles discussing this counterrevolution. Chief Justice Rehnquist, the most articulate and ideological of the Courts conservative justices, may properly be regarded as the intellectual founder and leader of this trend in favor of restricting criminal procedure rights.

This article analyzes and provides a bibliography of Supreme Court criminal procedure ...


Why The Right Embraced Rights, Logan E. Sawyer Iii Jan 2016

Why The Right Embraced Rights, Logan E. Sawyer Iii

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Book review of he Other Rights Revolution: Conservative Lawyers and the Remaking of American Government by Jefferson Decker (Oxford U. Press 2016).


Political Dysfunction And The Election Of Donald Trump: Problems Of The U.S. Constitution's Presidency, David Orentlicher Jan 2016

Political Dysfunction And The Election Of Donald Trump: Problems Of The U.S. Constitution's Presidency, David Orentlicher

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In this article, Professor Orentlicher examines the Constitution's design for the executive branch. He argues that by opting for a single executive rather than a multi-person executive, the Constitution causes two serious problems-it fuels the high levels of partisan polarization that we see today, and it increases the likelihood of misguided presidential decision making. Drawing on the experience in other countries with executive power shared by multiple officials, he proposes a bipartisan executive.


One Of The Perfect People, Ann Puckett Jan 2015

One Of The Perfect People, Ann Puckett

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This Article eulogizes Nancy P. Johnson.


Hearing Voices: Non-Party Stories In Abortion And Gay Rights Advocacy, Linda H. Edwards Jan 2015

Hearing Voices: Non-Party Stories In Abortion And Gay Rights Advocacy, Linda H. Edwards

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During the twelve years after Roe v. Wade, the Supreme Court considered a number of abortion issues, but Thornburgh v. American College of Obstetricians & Gynecologists was the first case to raise a direct call for Roe’s demise. The issues galvanized interests on all sides. Among the welter of amicus briefs was a remarkable brief destined to create a new, controversial, and potentially powerful form of appellate advocacy. Primarily authored by Lynn M. Paltrow, the brief was submitted on behalf of the National Abortion Rights Action League (NARAL). Like a Brandeis Brief, the NARAL brief relies on sources outside the ...


Habeas Corpus Proceedings In The High Court Of Parliament In The Reign Of James I, 1603-1625, Donald E. Wilkes Jr. Apr 2014

Habeas Corpus Proceedings In The High Court Of Parliament In The Reign Of James I, 1603-1625, Donald E. Wilkes Jr.

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English parliamentary habeas corpus proceedings have been neglected by scholars. This Article ends that neglect. This Article focuses on the parliamentary habeas corpus proceedings that occurred in the reign of King James. The Article corrects several misunderstandings relating to the history of the writ of habeas corpus in England and to the history of the English Parliament (which in the seventeenth century commonly was referred to as the High Court of Parliament).

Part I of the Article provides answers to questions concerning the historical background and context of the parliamentary habeas corpus proceedings in the High Court of Parliament during ...


Foreword: Conference On Religious Legal Theory: Rlt Iv: Expanding The Conversation, Samuel J. Levine Jan 2014

Foreword: Conference On Religious Legal Theory: Rlt Iv: Expanding The Conversation, Samuel J. Levine

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In this article, the author introduces the articles published in the Symposium Issue of the Touro Law Review, which is a compilation of selected excerpts from the fourth annual Conference on Religious Legal Theory (“RLT”) held April 10-12, 2013. By introducing each article, the author shows a sampling of the variety of topics and disciplines explored and the range of perspectives represented at the Conference, which revolved around the theme RLT IV: Expanding the Conversation. The author provides the background of the panelists to give context to each article, and then briefly discusses the relevance and main ideas.


The Great Writ In The Peach State: Georgia Habeas Corpus, 1865-1965, Donald E. Wilkes Jr. Jan 2014

The Great Writ In The Peach State: Georgia Habeas Corpus, 1865-1965, Donald E. Wilkes Jr.

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There is a plenitude of scholarly writing on the Great Writ of Habeas Corpus, which is universally recognized as "one of the decisively differentiating factors between our democracy and totalitarian governments."' The overwhelming majority of these scholarly publications are concerned with the writ of habeas corpus as administered in the federal court system. There are far fewer scholarly publications on the writ of habeas corpus as administered in the courts of the State of Georgia, and most of these works are concerned with Georgia habeas corpus as a state postconviction remedy, past and present. Only one scholarly piece, a law ...


The Trouble With Categories: What Theory Can Teach Us About The Doctrine-Skills Divide, Linda H. Edwards Jan 2014

The Trouble With Categories: What Theory Can Teach Us About The Doctrine-Skills Divide, Linda H. Edwards

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We might not need another article decrying the doctrine/skills dichotomy. That conversation seems increasingly old and tired. But like it or not, in conversations about the urgent need to reform legal education, the dichotomy’s entailments confront us at every turn. Is there something more to be said? Perhaps surprisingly, yes. We teach our students to examine language carefully, to question received categories, and to understand legal questions in light of their history and theory. Yet when we talk about the doctrine/skills divide, we seem to forget our own instruction.

This article does not exactly take sides in ...


Reclaiming The Equitable Heritage Of Habeas, Erica J. Hashimoto Oct 2013

Reclaiming The Equitable Heritage Of Habeas, Erica J. Hashimoto

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Equity runs through the law of habeas corpus. Throughout the seventeenth and eighteenth centuries, prisoners in England sought the Great Writ primarily from a common law court — the Court of King’s Bench — but that court’s exercise of power to issue the writ was built around equitable principles. Against this backdrop, it is hardly surprising that modern-day habeas law draws deeply on traditional equitable considerations. Criticism of current habeas doctrine centers on the risk that its rules — and particularly the five gatekeeping doctrines that preclude consideration of claims — produce unfair results. But in fact four of these five bars ...


The Law's Mystery, Linda L. Berger, Jack L. Sammons Apr 2013

The Law's Mystery, Linda L. Berger, Jack L. Sammons

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What is the continuing significance of Cohen v. California, the 1971 U.S. Supreme Court decision holding that “Fuck the Draft” is a message protected by the First Amendment? Using Cohen as an exemplar, this article offers a new theory about how to understand the law and judicial opinions.

The theory begins in a recognition of the “law” as resting upon mystery and uncertainty, a mystery that is also the source of the law’s enchantment. It is this enchantment that we depend upon for the law to be authoritative rather than authoritarian and reducible to the political and thus ...


A Short Road To Statehood, A Long Road To Washington, Rachel J. Anderson Feb 2013

A Short Road To Statehood, A Long Road To Washington, Rachel J. Anderson

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This article documents the election in 2012 of the first African-American to represent Nevada in the U.S. Congress, Steven Horsford. It is part of "A Special Series on African Americans in Nevada Politics - Past and Present" on pages 16-21 of the issue." Sources are on page 21 of the issue.


Legal History In Context, Logan E. Sawyer Iii Jan 2013

Legal History In Context, Logan E. Sawyer Iii

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The author examines the teaching methodologies involved in historical education and legal education.


A Funhouse Mirror Of Law: The Entailment In Jane Austen's Pride And Prejudice, Peter A. Appel Jan 2013

A Funhouse Mirror Of Law: The Entailment In Jane Austen's Pride And Prejudice, Peter A. Appel

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In this Essay, I will first outline the general development of different means used to hold property and keep it within a family in England. This discussion must of necessity be brief and schematic, and therefore readers should not rely on it as a completely accurate, nuanced, and detailed discussion of the historical development of English land law. I will then examine what Austen has to say about Longbourn, the principal property in Pride and Prejudice, which leads me to conclude that Austen probably conceived of Longbourn as being entailed and not secured under a strict settlement. I will also ...


Reflections On The Life And Times Of Alan Watson, Camilla E. Watson Jan 2013

Reflections On The Life And Times Of Alan Watson, Camilla E. Watson

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The author summarizes the career of Alan Watson, J.D. and University of Georgia Law School faculty member.


Blacks In Nevada Elections, Rachel J. Anderson Jan 2013

Blacks In Nevada Elections, Rachel J. Anderson

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This article is a snapshot of challenges, contributions, and achievements of African Americans in Nevada elections. It is part of "A Special Series on African Americans in Nevada Politics - Past and Present" on pages 16-21 of the issue.


Metaphor In Law As Poetic And Propositional Language, Linda L. Berger Jan 2013

Metaphor In Law As Poetic And Propositional Language, Linda L. Berger

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No abstract provided.


Blacks And Voting Rights In Nevada, Rachel J. Anderson Jan 2013

Blacks And Voting Rights In Nevada, Rachel J. Anderson

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This article is a brief foray into black suffrage and equal rights in Nevada legal history. It is part of "A Special Series on African Americans in Nevada Politics - Past and Present" on pages 16-21 of the issue. Sources are on page 21 of the issue.


Disentangling Conscience And Religion, Nathan Chapman Jan 2013

Disentangling Conscience And Religion, Nathan Chapman

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What does “liberty of conscience” mean? Religious liberty? Freedom of strong conviction? Freedom of thought? Since the Founding Era, Americans have used liberty of conscience to paper over disputes about the proper scope of religious, moral, and philosophical liberty. This Article explores the relationship between conscience and religion in history, political theory, and theology, and proposes a conception of conscience that supports a liberty of conscience distinct from religious liberty. In doing so, it offers a theoretical basis for distinguishing between conscience and religion in First Amendment scholarship and related fields. Conscience is best understood, for purposes of legal theory ...


Blacks In The Nevada Legal Profession, Rachel J. Anderson Jan 2013

Blacks In The Nevada Legal Profession, Rachel J. Anderson

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This article discusses the history of African-Americans in the Nevada legal profession. It is part of "A Special Series on African Americans in Nevada Politics - Past and Present" on pages 16-21 of the issue. Sources are on page 21 of the issue.


Creating Hammer V. Dagenhart, Logan E. Sawyer Iii Oct 2012

Creating Hammer V. Dagenhart, Logan E. Sawyer Iii

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Hammer v. Dagenhart is among the best known cases in the canon of constitutional law. It struck down the first federal child labor law on the grounds that Congress’s commerce power allowed it to prohibit the interstate shipment of harmful goods, like impure food and drugs, but not harmless goods, like the products of child labor. Withering criticism of the decision spread from Justice Holmes’s famous dissent to law reviews, treatises, casebooks, and constitutional law classes. For nearly a century the decision has been scorned as inconsistent with precedent, incoherent as policy, and driven solely by the Court ...


Contract And Dispossession, Deborah W. Post Jul 2012

Contract And Dispossession, Deborah W. Post

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This Essay, part of a collection of essays on the same theme, argues that contract law has become an instrument of oppression and dispossession rather than liberation. Having offered a critique, the challenge then is to consider whether it is possible to restore the liberatory potential of contract. The symposium, Post-Marxism, Post-Racialism & Other Fables of the Dispossession, was an invitation to consider the contemporary relevance of Marxist theory.

There are two reference points in this cultural critique. One is the importance of social position in a jurisprudence that embraces objectivity; the uncritical and unreflective reliance on hegemonic social practices, codes and conventions in determining whether the parties to an agreement meant or intended it to be legally enforceable. Contract law recognizes and regulates status relationships. The resort by judges to hegemonic conceptions of status results in dispossession when ...


Due Process As Separation Of Powers, Nathan S. Chapman, Michael W. Mcconnell May 2012

Due Process As Separation Of Powers, Nathan S. Chapman, Michael W. Mcconnell

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From its conceptual origin in Magna Charta, due process of law has required that government can deprive persons of rights only pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether the Fifth or Fourteenth Amendments were understood to entail modern “substantive due process” have obscured the way that many American lawyers and courts understood due process to limit the legislature from the Revolutionary era through the Civil War. They understood due process to prohibit legislatures from directly depriving persons of rights, especially vested property rights, because it was ...


Preserving The Past In The Present For The Future: Las Vegas Chapter Of The National Bar Association Archive At The Wiener-Rogers Law Library, Jeanne Price, Rachel J. Anderson Feb 2012

Preserving The Past In The Present For The Future: Las Vegas Chapter Of The National Bar Association Archive At The Wiener-Rogers Law Library, Jeanne Price, Rachel J. Anderson

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This co-authored article documents the establishment of the Las Vegas Chapter of the National Bar Association (LVNBA) Archive in 2011 at the Wiener-Rogers Law Library at the University of Nevada, Las Vegas, William S. Boyd School of Law, which may be the first of its kind in the nation. The LVNBA archive was established in cooperation with the LVNBA, the local affiliate of the National Bar Association, which is the nation’s oldest minority bar and largest national association of over 44,000 predominately African-American lawyers, judges, professors, and law students. Materials donated by the LVNBA and its members document ...


Timeline Of African-American Legal History In Nevada (1861-2011), Rachel J. Anderson Feb 2012

Timeline Of African-American Legal History In Nevada (1861-2011), Rachel J. Anderson

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For the first time in Nevada history, this timeline depicts selected events in the history of African-American lawyers, civil rights, and diversity in Nevada's bar and bench. It includes many historically significant pictures and is part of a special Black History Month issue of the Nevada Lawyer, the official publication of the State Bar of Nevada. That issue highlights the achievements and contributions of African-American lawyers in Nevada in honor of the 51st anniversary of the first African American (Charles L. Kellar) passing the Nevada state bar examination, the 48th anniversary of the first two African Americans admitted to ...


Dean’S Column: Collaborations With Professional Associations, Rachel J. Anderson Feb 2012

Dean’S Column: Collaborations With Professional Associations, Rachel J. Anderson

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This co-authored article documents the cooperation and synergies between the William S. Boyd School of Law at the University of Nevada, Las Vegas, and the Las Vegas Chapter of the National Bar Association (LVNBA). The LVNBA is the local affiliate of the National Bar Association, which is the nation’s oldest minority bar and largest national association of over 44,000 predominately African-American lawyers, judges, professors, and law students. The article is part of a special Black History Month issue of the Nevada Lawyer, the official publication of the State Bar of Nevada. That issue highlights the achievements and contributions ...


Justice John Paul Stevens, Originalist, Diane Marie Amann Jan 2012

Justice John Paul Stevens, Originalist, Diane Marie Amann

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Commentators, including the author of a recent book on the Supreme Court, often attempt to give each Justice a methodological label, such as “practitioner of judicial restraint,” “legal realist,” “pragmatist,” or “originalist.” This Essay first demonstrates that none of the first three labels applies without fail to Justice John Paul Stevens; consequently, it explores the extent to which Justice Stevens’s jurisprudence paid heed to the fourth method, “originalism.” It looks in particular at Justice Stevens’s opinions in recent cases involving firearms, national security, and capital punishment. Somewhat at odds with conventional wisdom, the Essay reveals Justice Stevens as ...


The “Ethical” Surplus Of The War On Illegal Immigration, Francis J. Mootz Iii, Leticia M. Saucedo Jan 2012

The “Ethical” Surplus Of The War On Illegal Immigration, Francis J. Mootz Iii, Leticia M. Saucedo

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The Aristotelian philosopher, Gene Garver, suggests that rhetorical claims have an "ethical surplus" that extends beyond the specific claim being advanced at the moment. This follows from the fact that rhetoric includes not only logos, but also pathos and ethos. We adopt the thesis of "ethical surplus," but in a negative context. The "war on illegal immigration" has generated an ethical surplus that leads its promoters beyond the specific claim of securing borders against unlawful entry. After demonstrating that there is an express rhetoric of "war" used in connection with Arizona's adoption of recent anti-immigrant legislation, we explore the ...