Legal History Commons^™

Macaulay's Penal Code, Adam Smith And The Jurisprudence Of Resentment, Ian D. Leader-Elliott Professor

Ian D Leader-Elliott Professor

ABSTRACT: The ‘offences affecting the human body’ in Chapter 16 of the Indian Penal Code were shaped by Thomas Macaulay’s distinctive vision of the moral principles that should constrain criminal liability for unlawful homicide and lesser offences of causing harm. Though the general structure of Macaulay’s Draft Penal Code owes much to Bentham, the offences affecting the human body display far closer affinity with the jurisprudence of Adam Smith’s Theory of the Moral Sentiments. The offences proposed in the Draft Code were radically different from the corresponding offences against the person in English statutory and common law. Though Macaulay’s provisions …

Women's Legal History Symposium Introduction: Making History, Felice J. Batlan

Felice J Batlan

This essay introduces the Chicago-Kent Symposium on Women's Legal History: A Global Perspective. It seeks to situate the field of women's legal history and to explore what it means to begin writing a transnational women's history which transcends and at times disrupts the nation state. In doing so, it sets forth some of the fundamental premises of women's legal history and points to new ways of writing such histories.

Book Review (Reviewing Christopher Waldrep, Jury Discrimination: The Supreme Court, Public Opinion, And A Grassroots Fight For Racial Equality In Mississippi (2010)), Christopher W. Schmidt

Christopher W. Schmidt

No abstract provided.

Book Review (Reviewing Kenneth W. Mack, Representing The Race: The Creation Of The Civil Rights Lawyer (2012)), Christopher W. Schmidt

Christopher W. Schmidt

No abstract provided.

The Long And Winding Road From Monroe To Connick, Sheldon Nahmod

Sheldon Nahmod

In this article, I address the historical and doctrinal development of § 1983 local government liability, beginning with Monroe v. Pape in 1961 and culminating in the Supreme Court’s controversial 2011 failure to train decision in Connick v. Thompson. Connick has made it exceptionally difficult for § 1983 plaintiffs to prevail against local governments in failure to train cases. In the course of my analysis, I also consider the oral argument and opinions in Connick as well as various aspects of § 1983 doctrine. I ultimately situate Connick in the Court’s federalism jurisprudence which doubles back to Justice Frankfurter’s view …

Book Review: The New Jim Crow: Mass Incarceration In The Age Of Colorblindness, Nick J. Sciullo

Nick J. Sciullo

Many in the legal academy have heard of Michelle Alexander’s new book, The New Jim Crow: Mass Incarceration in an Age of Colorblindness. It has been making waves. One need only attend any number of legal conferences in the past year or so, or read through the footnotes in recent law review articles. Furthermore, this book has been reviewed in journals from a number of academic fields, suggesting Alexander has provided a text with profound insights across the university and public spheres. While I will briefly talk about the book as a book, I will spend the majority of this …

Social Justice In Turbulent Times: Critical Race Theory And Occupy Wall Street, Nick J. Sciullo

Nick J. Sciullo

In this brief article, I tackle several issues that are critically important to progressive move(ment)s in the law and in society as a whole. I am convinced that the progressive community can make great strides in enriching the law and people’s experience with it through continued articulation and combined sense of theory and practice. We need to move beyond litigation and engage our critical consciousness to embrace activism on all fronts. This is why I locate a positive politics of struggle in the Occupy Movements that I believe progressives ought to embrace . We must simultaneously come to grips with …

The Origins And Efficacy Of Private Enforcement Of Animal Cruelty Law In Britain, Jerry L. Anderson

Jerry L. Anderson

In 1822, the British Parliament enacted a landmark statute to punish the abuse of animals, known as Martin’s Act, named after Richard Martin, MP, who championed the bill. The Act provided a criminal penalty of up to £5 for the cruel treatment of cattle, a term which included horses, oxen, and sheep. Because the Act was the first national statute aimed at animal cruelty, scholars have naturally focused on its substance, which established an important new norm governing the relationship between humans and other animals. However, the Act would not have been successful without vigorous prosecution, which helped define the …

Repensar A Teoria Do Estado Entre Pluralismo Ético E Globalização, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Não pode deixar de haver uma relação entre Estado e valores. Sem alguns valores partilhados, o Estado tem dificuldades. Há sempre, de um modo ou de outro, uma Ética no Estado. Ou várias. Como lidar com as éticas e as morais em sociedades pluralista como as nossas? Esta dificuldade obriga-nos também a repensar o próprio Estado, também desafiado por tempos de globalização. Foram estas algumas das interrogações que desejamos colocar neste estudo, elaborado para corresponder ao honroso convite para colaborar no portentoso volume que homenageia o grande constitucionalista brasileiro, e Vice-Presidente da República Federativa do Brasil, Prof. Michel Temer.

Washington Was Right: The Supreme Court Could Have Intervened To Interpret French Treaties, Kevin P. Chapman

Kevin P. Chapman

In the early days of his presidency, George Washington faced his first international crisis when French Ambassador Genet demanded that the United States honor its treaty obligations and provide support to the new French Republic in its ongoing war with Great Britain. Concerned about the legal effect that the French Revolution had on the viability of these obligations, Washington asked the Supreme Court to render an opinion. Chief Justice John Jay replied that the Constitution did not authorize the Supreme Court to render advisory opinions.

If Jay was correct, why did Washington, who presided over the very convention that produced …

My “Country” Lies Over The Ocean: Seasteading And Polycentric Law, Allen P. Mendenhall

Allen Mendenhall

This essay considers the implications of the Seasteading Institute upon notions of law and sovereignty and argues that seasteading could make possible the implementation or ordering of polycentric legal systems while providing evidence for the viability of private-property anarchism or anarchocapitalism, at least in their nascent forms. This essay follows in the wake of Edward P. Stringham’s edition Anarchy and the Law and treats seasteading and polycentric law as concrete realities that lend credence to certain anarchist theories. Polycentric law in particular allows for institutional diversity that enables a multiplicity of rules to coexist and even compete in the open …

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

M. Cathleen Kaveny

No abstract provided.

Between “Metaphysics Of The Stone Age” And The “Brave New World”: H.L.A. Hart On The Law’S Assumptions About Human Nature, Péter Cserne

Péter Cserne

This paper analyses H.L.A. Hart’s views on the epistemic character of the law’s assumptions about human behaviour, as articulated in Causation in the Law and Punishment and Responsibility. Hart suggests that the assumptions behind legal doctrines typically combine common sense factual beliefs, moral intuitions, and philosophical theories of earlier ages with sound moral principles, and empirical knowledge. An important task of legal theory is to provide a ‘rational and critical foundation’ for these doctrines. This does not only imply conceptual clarification in light of an epistemic ideal of objectivity but also involves legal theorists in ‘enlightenment’ about empirical facts, ‘demystification’ …

What Piece Of Work Is Man: Frans De Waal And Pragmatist Naturalism, Wouter H. De Been, Sanne Taekema

Wouter H. de Been

Frans de Waal has questioned a central premise of liberal theory, i.e. that human beings are primarily defined by selfishness and rationality. This premise does not conform to what we know from research about our primate origins - namely that primates are gregarious and guided by sympathy and empathy. De Waal argues we should return to Adam Smith’s moral theory and his focus on sympathy and empathy. We believe a return to pragmatism would be more appropriate. Pragmatism largely conforms to the view of human nature that De Waal’s research now supports. We argue that pragmatism can provide a more …

Bad News For John Marshall, David B. Kopel, Gary Lawson

David B Kopel

In Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, we demonstrated that the individual mandate’s forced participation in commercial transactions cannot be justified under the Necessary and Proper Clause as the Clause was interpreted in McCulloch v. Maryland. Professor Andrew Koppelman’s response, Bad News for Everybody, wrongly conflates that argument with a wide range of interpretative and substantive positions that are not logically entailed by taking seriously the requirement that laws enacted under the Necessary and Proper Clause must be incidental to an enumerated power. His response is thus largely unresponsive to our actual arguments.