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Articles 1 - 16 of 16
Full-Text Articles in Legal History
Fashion, Sexism, And The United States Federal Judiciary, Charles E. Colman
Fashion, Sexism, And The United States Federal Judiciary, Charles E. Colman
Charles E. Colman
The U.S. federal judiciary has frequently displayed a dismissive attitude toward "fashion," while simultaneously recognizing the great economic importance of clothing. As fashion was, from the formation of the United States until at least the late 1960s, associated primarily with the female sex, while judges during this time period were almost exclusively male, one naturally wonders whether the power dynamics of gender shaped the development of the law pertaining to fashion. There is good reason to believe that this has indeed been the case.
The Battle For The Soul Of International Shoe, Eric H. Schepard
The Battle For The Soul Of International Shoe, Eric H. Schepard
Eric H Schepard
In 2011, Justice Kennedy’s plurality opinion in J. McIntyre Machinery, Ltd. v. Nicastro repeatedly cited International Shoe v. Washington, a 1945 decision that transformed the law of personal jurisdiction. Kennedy believed that International Shoe broadly supported his position that a state may hear a suit arising from a within-state workplace injury to its citizen only if the foreign (out-of-state) corporate defendant specifically markets its products to that state. This article reexamines the jurisprudence of International Shoe’s author, Chief Justice Harlan Fiske Stone, to argue that Kennedy hijacked International Shoe’s half-buried legacy of judicial restraint. Scholars have suggested that Stone hoped …
Remedies Unified In Nine Verses, Caprice Roberts
Remedies Unified In Nine Verses, Caprice Roberts
Caprice L. Roberts
An original substantive poem with footnotes that makes three bold claims: (i) Remedies shapes substantive rights, (ii) the scholarly quest for a unified theory of Remedies is ill-fated, and (iii) Remedies properly reasoned will unify across borders, doctrinal and geographic.
Antimonopoly And The Radical Lochean Origins Of Western Water Law, Michael Blumm
Antimonopoly And The Radical Lochean Origins Of Western Water Law, Michael Blumm
Michael Blumm
This review of David Schorr's book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier, maintains that the book is a therapeutic corrective to the standard history of the origins of western water law as celebration of economic efficiency and wealth maximization. Schorr's account convincingly contends that the roots of prior appropriation water law--the "Colorado Doctrine"--lie in distributional justice concerns, not in the supposed efficiency advantages of private property over common property. The goals of the founders of the Colorado doctrine, according to Schorr, were to advance Radical Lochean principles such as widespread distibution of water …
Establishing Justice In Middle America: A History Of The United States Court Of Appeals For The Eighth Circuit, Jeffrey Morris
Establishing Justice In Middle America: A History Of The United States Court Of Appeals For The Eighth Circuit, Jeffrey Morris
Jeffrey B. Morris
No abstract provided.
Calmly To Poise The Scales Of Justice: A History Of The Courts Of The District Of Columbia Circuit, Jeffrey Morris, Chris Rohmann
Calmly To Poise The Scales Of Justice: A History Of The Courts Of The District Of Columbia Circuit, Jeffrey Morris, Chris Rohmann
Jeffrey B. Morris
No abstract provided.
The Shield Of Rights, The Sword Of Disorder: Robert H. Jackson And Civil Liberties, George B. Crawford
The Shield Of Rights, The Sword Of Disorder: Robert H. Jackson And Civil Liberties, George B. Crawford
George B. Crawford
No abstract provided.
Holmes And The Common Law: A Jury's Duty, Matthew P. Cline
Holmes And The Common Law: A Jury's Duty, Matthew P. Cline
Matthew P Cline
The notion of a small group of peers whose responsibility it is to play a part in determining the outcome of a trial is central to the common conception of the American legal system. Memorialized in the Constitution of the United States as a fundamental right, and in the national consciousness as the proud, if begrudged, duty of all citizens, juries are often discussed, but perhaps not always understood. Whatever misunderstandings have come to be, certainly many of them sprang from the juxtaposition of jury and judge. Why do we have both? How are their responsibilities divided? Who truly decides …
Cause Judging, Justin Hansford
Cause Judging, Justin Hansford
Justin Hansford
Building on the framework of “cause lawyering” scholarship, this Article explores the fact that, in a similar tradition as a “cause lawyering” law practice animated by dedication to a cause, “cause judging” exists as well. This insight has implications for judicial ethics norms. The hyper-partisan nature of modern American life has already cast doubt on the possibility that politically appointed judges can ever truly attain the “appearance of impartiality” demanded by judicial recusal standards. Instead, judicial ethics norms should embrace the fact that judges have moral and political ideals that inform their rulings when they exercise judicial discretion, and that …
At&T V. Concepcion: The Problem Of A False Majority, Lisa Tripp, Evan R. Hanson
At&T V. Concepcion: The Problem Of A False Majority, Lisa Tripp, Evan R. Hanson
Lisa Tripp
The Supreme Court’s 2011 decision in AT&T v. Concepcion is the first case where the Supreme Court explores the interplay between state law unconscionability doctrine and the vast preemptive power of the Federal Arbitration Act (FAA). Although it is considered by many to be a landmark decision which has the potential for greatly expanding the already impressive preemptive power of the FAA, something is amiss with Concepcion.
AT&T v. Concepcion is ostensibly a 5-4 majority decision with a concurring opinion. However, the differences in the majority and concurring opinions are so profound that it appears that Justice Thomas actually …
Three-Dimensional Sovereign Immunity, Sarah L. Brinton
Three-Dimensional Sovereign Immunity, Sarah L. Brinton
Sarah L Brinton
The Supreme Court has erred on sovereign immunity. The current federal immunity doctrine wrongly gives Congress the exclusive authority to waive immunity (“exclusive congressional waiver”), but the Constitution mandates that Congress share the waiver power with the Court. This Article develops the doctrine of a two-way shared waiver and then explores a third possibility: the sharing of the immunity waiver power among all three branches of government.
The United States Constitution And Its History Through The Barristers And Political, Allen E. Shoenberger
The United States Constitution And Its History Through The Barristers And Political, Allen E. Shoenberger
Allen E Shoenberger
No abstract provided.
Ideological Voting Applied To The School Desegregation Cases In The Federal Courts Of Appeals From The 1960’S And 70’S, Joe Custer
Joe Custer
This paper considers a research suggestion from Cass Sunstein to analyze segregation cases from the 1960's and 1970's and whether three hypothesis he projected in the article "Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation," 90 Va. L. Rev. 301 (2004), involving various models of judicial ideology, would pertain. My paper considers Sunstein’s three hypotheses in addition to other judicial ideologies to try to empirically determine what was influencing Federal Court of Appeals Judges in regard to Civil Rights issues, specifically school desegregation, in the 1960’s and 1970’s.
“Nixon’S Sabotage”: How Politics Pushed The “Discriminatory Purpose” Requirement Into Equal Protection Law, Danieli Evans
“Nixon’S Sabotage”: How Politics Pushed The “Discriminatory Purpose” Requirement Into Equal Protection Law, Danieli Evans
Danieli Evans
This article describes the way that politics—resistance from the elected branches coupled with President Nixon appointing Chief Justice Burger—shaped the Court’s unanimous decision in Swann v. Charlotte-Mecklenburg, 402 U.S. 1 (1971), a school desegregation case that played a crucial role in limiting the forms of state action considered unconstitutional discrimination. Chief Justice Burger defied longstanding Supreme Court procedure to assign himself the majority opinion even though he disagreed with the majority outcome. Justice Douglas alleged that he did this “in order to write Nixon’s view of freedom of choice into the law.” Justice Burger’s opinion laid the foundation for limiting …
The Risky Interplay Of Tort And Criminal Law: Punitive Damages, Daniel M. Braun
The Risky Interplay Of Tort And Criminal Law: Punitive Damages, Daniel M. Braun
Daniel M Braun
The rise of modern mass tort litigation in the U.S. has transformed punitive damages into something of a “hot button” issue. Since the size of punitive damage awards grew so dramatically in the past half century, this private law remedy has begun to involve issues of constitutional rights that traditionally pertained to criminal proceedings. This has created a risky interplay between tort and criminal law, and courts have thus been trying to find ways to properly manage punitive damage awards. The once rapidly expanding universe of punitive damages is therefore beginning to contract. There remain, however, very serious difficulties. Despite …
Quotas, Politics, And Judicial Statesmanship: The Civil Rights Act Of 1991 And Powell's Bakke, Mark H. Grunewald
Quotas, Politics, And Judicial Statesmanship: The Civil Rights Act Of 1991 And Powell's Bakke, Mark H. Grunewald
Mark H. Grunewald
No abstract provided.