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Full-Text Articles in Legal History

Table Of Contents, Seattle University Law Review Sep 2020

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents


Is Solitary Confinement A Punishment?, John F. Stinneford Aug 2020

Is Solitary Confinement A Punishment?, John F. Stinneford

Northwestern University Law Review

The United States Constitution imposes a variety of constraints on the imposition of punishment, including the requirements that the punishment be authorized by a preexisting penal statute and ordered by a lawful judicial sentence. Today, prison administrators impose solitary confinement on thousands of prisoners despite the fact that neither of these requirements has been met. Is this imposition a “punishment without law,” or is it a mere exercise of administrative discretion? In an 1890 case called In re Medley, the Supreme Court held that solitary confinement is a separate punishment subject to constitutional restraints, but it has ignored this holding ...


A History Of The Law Of Assisted Dying In The United States, Alan Meisel Jul 2020

A History Of The Law Of Assisted Dying In The United States, Alan Meisel

SMU Law Review

No abstract provided.


Flexibly Fluid & Immutably Innate: Perception, Identity, And The Role Of Choice In Race, Emily Lamm Jul 2020

Flexibly Fluid & Immutably Innate: Perception, Identity, And The Role Of Choice In Race, Emily Lamm

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.


A More Perfect Union: The Emoluments Clause, Grant C. Rasak Jul 2020

A More Perfect Union: The Emoluments Clause, Grant C. Rasak

Pepperdine Law Review

America’s Framers crafted the Emoluments Clause to preserve institutional integrity, mitigate undue influences, and best serve the American People. The Emoluments Clause influenced the course of the Constitutional Convention, as the Pennsylvania Delegation championed resolute reforms. Benjamin Franklin, working alongside James Wilson, advocated for strengthening domestic and international practices by crafting the Emoluments Clause. The Framers proposed a system of self-government which sought to establish public trust, mitigate corrupt practices, and promote institutional integrity. The Pennsylvania Delegation summoned Wilson, under the tutelage of Franklin, to champion the Emoluments Clause. Wilson proposed a new notion of national unity by placing ...


Complicity In The Perversion Of Justice: The Role Of Lawyers In Eroding The Rule Of Law In The Third Reich, Cynthia Fountaine Jul 2020

Complicity In The Perversion Of Justice: The Role Of Lawyers In Eroding The Rule Of Law In The Third Reich, Cynthia Fountaine

St. Mary's Journal on Legal Malpractice & Ethics

A fundamental tenet of the legal profession is that lawyers and judges are uniquely responsible—individually and collectively—for protecting the Rule of Law. This Article considers the failings of the legal profession in living up to that responsibility during Germany’s Third Reich. The incremental steps used by the Nazis to gain control of the German legal system—beginning as early as 1920 when the Nazi Party adopted a party platform that included a plan for a new legal system—turned the legal system on its head and destroyed the Rule of Law. By failing to uphold the integrity ...


Flipping The Script On Brady, Ion Meyn Jul 2020

Flipping The Script On Brady, Ion Meyn

Indiana Law Journal

Brady v. Maryland imposes a disclosure obligation on the prosecutor and, for this

reason, is understood to burden the prosecutor. This Article asks whether Brady also

benefits the prosecutor, and if so, how and to what extent does it accomplish this?

This Article first considers Brady’s structural impact—how the case influenced

broader dynamics of litigation. Before Brady, legislative reform transformed civil

and criminal litigation by providing pretrial information to civil defendants but not

to criminal defendants. Did this disparate treatment comport with due process?

Brady arguably answered this question by brokering a compromise: in exchange for

imposing minor ...


Understanding The Spirit Of The Constitution On Corruption: Emoluments, Impeachment, And The Primacy Of Political Virtue, Lea Mano Jun 2020

Understanding The Spirit Of The Constitution On Corruption: Emoluments, Impeachment, And The Primacy Of Political Virtue, Lea Mano

William & Mary Bill of Rights Journal

No abstract provided.


Kidnapping Reconsidered: Courts Merger Tests Inadequately Remedy The Inequities Which Developed From Kidnapping's Sensationalized And Racialized History, Samuel P. Newton Jun 2020

Kidnapping Reconsidered: Courts Merger Tests Inadequately Remedy The Inequities Which Developed From Kidnapping's Sensationalized And Racialized History, Samuel P. Newton

William & Mary Bill of Rights Journal

No abstract provided.


Men's Reproductive Rights: A Legal History, Mary Ziegler Jun 2020

Men's Reproductive Rights: A Legal History, Mary Ziegler

Pepperdine Law Review

This Article offers the first legal history of men’s procreative rights, filling a gap in scholarship on assisted reproduction, constitutional law, and social movements. A rich literature addresses women’s procreative rights in contexts from abortion to infertility. By comparison, we know relatively little about the history of the debate about reproductive rights for men. This void is particularly troubling at a time when the law of reproductive rights is increasingly up for grabs, especially in the context of assisted reproduction technologies (ART). Men’s rights advocates—and the abortion-rights supporters responding to them—championed a jurisprudential approach to ...


China's Belt And Road Initiative: An Examination Of Project Financing Issues And Alternatives, August Nelson Dinwiddie Jun 2020

China's Belt And Road Initiative: An Examination Of Project Financing Issues And Alternatives, August Nelson Dinwiddie

Brooklyn Journal of International Law

In 2013, China launched the Belt and Road Initiative (BRI) to realize the vision of revitalizing the ancient Silk Road. The BRI can be characterized as a vast infrastructure development initiative spanning over sixty-five countries that total almost half of the world's GDP. Since its launch, BRI projects have primarily been financed through commercial loans provided by Chinese banks, creating concerns over debt sustainability. At the top of these concerns are fears over whether participation in the BRI will lead to a "debt-trap scenaro." Public-Private Partnerships (PPPs) provide an alternative financing option. In project development under a PPP, particularly ...


Comity & Calamity: Deference To The Executive And The Uncertain Future Of The Fsia, Michael Cooper Jun 2020

Comity & Calamity: Deference To The Executive And The Uncertain Future Of The Fsia, Michael Cooper

Brooklyn Journal of International Law

In 1976, Congress set out to remedy the haphazard and politically influenced system by which foreign states were granted sovereign immunity from United States’ courts. Its remedy was the Foreign Sovereign Immunities Act (FSIA), which explicitly put the power to determine whether a foreign state should be granted immunity from a court’s jurisdiction in the hands of the judiciary. Moreover, with some minor exceptions, the FSIA did not explicitly contemplate any involvement from the executive branch in reaching those determinations. However, given that concerns involving foreign relations inherently arise when a foreign state is sued in U.S. courts ...


A Keystroke Causes A Tornado: Applying Chaos Theory To International Cyber Warfare Law, Daniel Garrie, Masha Simonova Jun 2020

A Keystroke Causes A Tornado: Applying Chaos Theory To International Cyber Warfare Law, Daniel Garrie, Masha Simonova

Brooklyn Journal of International Law

Cyber warfare today finds itself on the front page of the news daily. It is increasingly apparent that the cyber domain demands more guidance, with leaders opting for the deployment of cyber capabilities to bypass kinetic warfare norms. Proposed solutions abound, but none adequately address the specific features of cyber warfare that set it apart from traditional kinetic warfare. This Article argues that a new legal framework is necessary to properly address this problem, and such a doctrine should incorporate principles of chaos theory. Chaos theory is a branch of mathematics dealing with complex systems, with the most well-known example ...


Kosovo's Controversial 100 Percent Tariff: An Analysis Of Its Imposition And The Issues Bleeding Into The Conflict Between Kosovo And Serbia, Ernira Mehmetaj Jun 2020

Kosovo's Controversial 100 Percent Tariff: An Analysis Of Its Imposition And The Issues Bleeding Into The Conflict Between Kosovo And Serbia, Ernira Mehmetaj

Brooklyn Journal of International Law

On November 6, 2018, Kosovo imposed a 10 percent tariff on products imported from Serbia and Bosnia and Herzegovina. Later that month, on November 28, 2018, after Kosovo was denied membership in the International Criminal Police Organization, Kosovo increased the custom tariffs on Serbian and Bosnian goods from 10 to 100 percent. These actions resulted in a standstill of the European Union–mandated Belgrade-Pristina dialogue—a dialogue seeking to normalize the relations between the two states. Having the tumultuous history shared by Kosovo and Serbia as a backdrop, this Note analyzes the international agreements Kosovo is party to, specifically the ...


Reassessing Aspects Of The Contribution Of African States To The Development Of International Law Through African Regional Multilateral Treaties, Tiyanjana Maluwa Jun 2020

Reassessing Aspects Of The Contribution Of African States To The Development Of International Law Through African Regional Multilateral Treaties, Tiyanjana Maluwa

Michigan Journal of International Law

For decades, debates about Africa’s contribution to the development of international law have been dominated by two opposing schools of thought. First, that European colonial powers deliberately erased Africa and Africans from the history of the creation and use of international law. Second, that, on the contrary, over the last six decades (since the emergence of the newly independent African states in the late 1950s and early 1960s), Africa has contributed to the making of international law and has not been merely a passive recipient of a Eurocentric international law.

This article underscores the role of the postcolonial periphery ...


Felony Disenfranchisement And The Nineteenth Amendment, Michael Gentithes May 2020

Felony Disenfranchisement And The Nineteenth Amendment, Michael Gentithes

Akron Law Review

The Nineteenth Amendment and the history of the women’s suffrage movement can offer a compelling argument against felony disenfranchisement laws. These laws leave approximately six million citizens unable to vote, often for crimes wholly unrelated to the political process. They also increasingly threaten gains in female enfranchisement.

Today’s arguments in support of felony disenfranchisement laws bear striking similarities to the arguments of anti-suffragists more than a century earlier. Both suggest that a traditionally subordinated class of citizens is inherently incapable of bearing the responsibility that the right to vote entails, and that their votes are somehow less worthy ...


The Nineteenth Amendment And The U.S. "Women's Emancipation Policy" In Post-World War Ii Occupied Japan: Going Beyond Suffrage, Cornelia Weiss May 2020

The Nineteenth Amendment And The U.S. "Women's Emancipation Policy" In Post-World War Ii Occupied Japan: Going Beyond Suffrage, Cornelia Weiss

Akron Law Review

This paper explores the influence of the Nineteenth Amendment on U.S. military occupation policy in Post-World War II Japan. A mere 25 years after the ratification of the Nineteenth Amendment, actions taken during the military occupation did not stop at suffrage for Japanese women. Actions included a constitution that provided for women’s “equality” (what, even 100 years after the ratification of the Nineteenth Amendment, is still absent in the U.S. constitution). In addition to addressing women’s suffrage and constitutional equality, this paper examines the successes and failures of the Occupation to eradicate the legal enslavement of ...


The Temperance Movement's Impact On Adoption Of Women's Suffrage, Richard H. Chused May 2020

The Temperance Movement's Impact On Adoption Of Women's Suffrage, Richard H. Chused

Akron Law Review

This paper examines the nature of the Progressive Era and the Prohibition Movement and the important links between the sentiments giving rise to prohibition and those stimulating adoption of suffrage. Though each arose from a somewhat distinct array of reform impulses and overcame varying opposition groups, they were closely related in some ways, supported by overlapping groups of people, advanced by large numbers of women, and, in part, lifted to enactment by similar motivations. Indeed, without the support of many conservative citizens approving both Amendments, it is not clear what the fate of suffrage would have been after World War ...


"A Woman Stumps Her State": Nellie G. Robinson And Women's Right To Hold Public Office In Ohio, Elizabeth D. Katz May 2020

"A Woman Stumps Her State": Nellie G. Robinson And Women's Right To Hold Public Office In Ohio, Elizabeth D. Katz

Akron Law Review

In recognition of the centennial of the Nineteenth Amendment, this essay provides an introduction to a largely overlooked yet essential component of the women’s movement: the pursuit of women’s legal right to hold public office. From the mid-nineteenth century through ratification of the federal suffrage amendment in 1920, women demanded access to appointed and elected positions, ranging from notary public to mayor. Because the legal right to hold office had literal and symbolic connections to the right to vote, suffragists and antisuffragists were deeply invested in the outcome. Courts and legislatures varied in their responses, with those in ...


Suffragist Prisoners And The Importance Of Protecting Prisoner Protests, Nicole B. Godfrey May 2020

Suffragist Prisoners And The Importance Of Protecting Prisoner Protests, Nicole B. Godfrey

Akron Law Review

This paper examines the role that public exposure to the conditions experienced by suffragist prisoners played in the passage of the Nineteenth Amendment. Using the experience of the suffragists as an example of how prisoner protest impacted democratic debate, the paper argues that robust protection of prisoners’ First Amendment rights is fundamental to the nation’s democratic values and political discourse and debate.

The paper begins with an historical overview of the arrests, convictions, and incarceration of the Silent Sentinels, women who began picketing outside the White House in 1917. Over the course of several months, local officials in the ...


Pillars Of Justice: Lawyers And The Liberal Tradition, By Owen Fiss, Saba Samanian May 2020

Pillars Of Justice: Lawyers And The Liberal Tradition, By Owen Fiss, Saba Samanian

Osgoode Hall Law Journal

AT TIMES, IT IS POSSIBLE TO UNDERESTIMATE, or perhaps momentarily forget, the individuals who have been instrumental in shaping the evolution of the justice system. Thankfully, Pillars of Justice by Owen Fiss serves as a reminder of the resilience and the triumph of such individuals. Each chapter of the book is dedicated to someone who he considers to have made a significant contribution to justice, and, as such, has become a personal hero.


The Legal History Of State Legislative Vacancies And Temporary Appointments, Tyler Yeargain May 2020

The Legal History Of State Legislative Vacancies And Temporary Appointments, Tyler Yeargain

Journal of Law and Policy

We love paying attention to special elections. They operate as catharsis for opposition parties and activists, easily serve as proxies for how well the governing party is doing, and are ripe for over-extrapolation by prognosticators. But in thirty states and territories throughout the United States, state legislative vacancies are filled by a combination of special elections and temporary appointments. These appointment systems are rarely studied or discussed in academic literature but have a fascinating legal history that dates back to pre-Revolutionary America. They have substantially changed in the last four centuries, transitioning from a system that, like the Electoral College ...


Seeking Liberty, Finding Patriarchy: The Common Law's Historical Legacy, Deborah Dinner May 2020

Seeking Liberty, Finding Patriarchy: The Common Law's Historical Legacy, Deborah Dinner

Boston College Law Review

Anita Bernstein’s important new book argues that the common law might be used to advance women’s liberation. In this short essay, I analyze Bernstein’s three modes of historical analysis: redeeming the common law where it enforced oppression, recovering it when it promoted women’s rights, and facilitating its evolution toward a feminist future. I argue that Bernstein’s account, though learned and compelling, sidelines the centrality of patriarchy to the common law. Adopting the liberty of the patriarch cannot realize true freedom for women. By appropriating common law doctrines, feminists risk forging a conceptual alliance with the ...


Law Is What The Judge Had For Breakfast: A Brief History Of An Unpalatable Idea, Dan Priel May 2020

Law Is What The Judge Had For Breakfast: A Brief History Of An Unpalatable Idea, Dan Priel

Buffalo Law Review

According to a familiar adage the legal realists equated law with what the judge had for breakfast. As this is sometimes used to ridicule the realists, prominent defenders of legal realism have countered that none of the realists ever entertained any such idea. In this Essay I show that this is inaccurate. References to this idea are found in the work of Karl Llewellyn and Jerome Frank, as well as in the works of their contemporaries, both friends and foes. However, the Essay also shows that the idea is improperly attributed to the legal realists, as there are many references ...


Fixing America's Founding, Maeve Glass May 2020

Fixing America's Founding, Maeve Glass

Michigan Law Review

Review of Jonathan Gienapp's The Second Creation: Fixing the American Constitution in the Founding Era.


Translating The Constitution, Jack M. Balkin May 2020

Translating The Constitution, Jack M. Balkin

Michigan Law Review

Review of Lawrence Lessig's Fidelity and Constraint: How the Supreme Court Has Read the American Constitution.


Coin, Currency, And Constitution: Reconsidering The National Bank Precedent, David S. Schwartz May 2020

Coin, Currency, And Constitution: Reconsidering The National Bank Precedent, David S. Schwartz

Michigan Law Review

Review of Eric Lomazoff's Reconstructing the National Bank Controversy: Politics and Law in the Early American Republic.


What Is Remembered, Alice Ristroph May 2020

What Is Remembered, Alice Ristroph

Michigan Law Review

Review of Sarah A. Seo's Policing the Open Road: How Cars Transformed American Freedom.


Fascism And Monopoly, Daniel A. Crane May 2020

Fascism And Monopoly, Daniel A. Crane

Michigan Law Review

The recent revival of political interest in antitrust has resurfaced a longstanding debate about the role of industrial concentration and monopoly in enabling Hitler’s rise to power and the Third Reich’s wars of aggression. Proponents of stronger antitrust enforcement argue that monopolies and cartels brought the Nazis to power and warn that rising concentration in the American economy could similarly threaten democracy. Skeptics demur, observing that German big business largely opposed Hitler during the crucial years of his ascent. Drawing on business histories and archival material from the U.S. Office of Military Government’s Decartelization Branch, this ...


Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott May 2020

Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott

Michigan Law Review

The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive Era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent beings. As children emerged as legal persons, children’s rights advocates challenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s ...