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2006

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Articles 1 - 30 of 55

Full-Text Articles in Legal History

Making Law, Making War, Making America (Revised 12/6/06), Mary Dudziak Dec 2006

Making Law, Making War, Making America (Revised 12/6/06), Mary Dudziak

University of Southern California Legal Studies Working Paper Series

It is often said that “in times of war, law is silent,” but this essay argues that the experience of the twentieth century provides a sharp contrast to this old saying. It is not just that law was not silent during warfare, but that law provided a language within which war could be seen. War is not a natural category outside the law, but is in part produced by it. Across decades of conflict, law was a marker that defined for the nation some of those times when conflict would be contemplated as a “war,” and helped cabin other uses ...


Working Toward Democracy: Thurgood Marshall And The Constitution Of Kenya, Mary L. Dudziak Dec 2006

Working Toward Democracy: Thurgood Marshall And The Constitution Of Kenya, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This Article is a work of transnational legal history. Drawing upon new research in foreign archives, it sheds new light on the life of Thurgood Marshall, exploring for the first time an episode that he cared very deeply about: his work with African nationalists on an independence constitution for Kenya. The story is paradoxical, for Marshall, a civil rights legend in America, would seek to protect the rights of white landholders in Kenya who had gained their land through discriminatory land laws, but were soon to lose political power. In order to understand why Marshall would take pride in entrenching ...


Taxing Emotional Injury Recoveries: A Critical Analysis Of Murphy V. Internal Revenue Service, Gregory L. Germain Nov 2006

Taxing Emotional Injury Recoveries: A Critical Analysis Of Murphy V. Internal Revenue Service, Gregory L. Germain

ExpressO

Does Congress have the power under the United States Constitution to tax compensatory personal injury awards? Several months ago, the D.C. Circuit Court of Appeals said "no" in Murphy v. Internal Revenue Service. The court theorized that Ms. Murphy’s compensatory damages award did not constitute “income,” as understood by the enactors of the 16th Amendment, because the award merely made Ms. Murphy whole rather than increasing her wealth.

This paper disputes virtually every aspect of the Murphy decision. The court made errors from the beginning in analyzing the statutory issues. While the court ultimately reached the correct preliminary ...


A Complete Property Right Amendment, John H. Ryskamp Oct 2006

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.


The Case For American History In The Law-School Curriculum, Harold P. Southerland Oct 2006

The Case For American History In The Law-School Curriculum, Harold P. Southerland

ExpressO

This article argues for the teaching of American History throughout the first year of law school. I do not believe that students can fully understand the cases they are reading in other courses without a knowledge of environing context. Understanding American History -- which is many respects doesn't paint a flattering picture -- may also help students in making fundamental choices about what role they wish to play in their careers as lawyers. I believe it is time to recognize that too much of the profession is run as a business and not as a noble calling dedicated to helping those ...


St. George Tucker’S Second Amendment: Deconstructing ‘The True Palladium Of Liberty’, Stephen P. Halbrook Oct 2006

St. George Tucker’S Second Amendment: Deconstructing ‘The True Palladium Of Liberty’, Stephen P. Halbrook

ExpressO

St. George Tucker, known as “America’s Blackstone” and author of the first commentary on the Constitution in 1803, described the Second Amendment right of the people to keep and bear arms as “the true palladium of liberty.” In a recent symposium at the William and Mary College of Law, Prof. Saul Cornell presented Tucker as an adherent of the view that the Amendment guarantees a collective or civic right to bear arms in the militia, not an individual right to have arms for self defense or as a dissuasion to tyranny. In response, my article scrutinizes Tucker’s work ...


Cradled In The Declaration Of Independence, Jay Tidmarsh Oct 2006

Cradled In The Declaration Of Independence, Jay Tidmarsh

ExpressO

This book review engages recent scholarship on the nature of civil-rights lawyering in the African-American bar in the generation before Brown v. Board of Education. Using the recent biography of Earl Burrus Dickerson, one of the leaders of the African-American bar before World War II, the book review finds support for the emerging view that, in the years before Brown, the African-American civil-rights bar was not focused on ending de jure segregation in public institutions, but rather in building up African-American institutions. Contrary to recent scholarship, however, the review suggests that Dickerson personally preferred a more integrationist strategy, and his ...


Uncivil Religion: "Judeo-Christianity" And The Ten Commandments, Frederick Mark Gedicks, Roger Hendrix Oct 2006

Uncivil Religion: "Judeo-Christianity" And The Ten Commandments, Frederick Mark Gedicks, Roger Hendrix

ExpressO

In the recent Decalogue Cases, Justice Scalia argued that when it comes to “public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits th[e] disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.” Justice Scalia's argument represents the latest attempt to insulate American civil religion from Establishment Clause attack. A “civil religion” is a set of nondenominational values, symbols, rituals, and assumptions which create both reverence of national history and formation of a communal national bond. The most recent incarnation ...


Winter For Purehearts, Michael Cavendish Sep 2006

Winter For Purehearts, Michael Cavendish

ExpressO

The worst judicial opinion ever written issued from Florida on an anonymous day in 1864. The opinion discussed slavery. More accurately, it cherished slavery—lionizing the then extant practice in the way the British sing of the sea. As a legal precedent, it was a dangerous opinion because it was presented as something basic, fundamental and inexorable, something not to be questioned. It was dangerously simple when conveyed to accepting minds in the way a cold knife is dangerous in angered hands. The opinion, Miller v. Gaskins, is a vital study for researchers surveying the lines of human fallacy that ...


Radicals In Robes: A Review, Dru Stevenson Sep 2006

Radicals In Robes: A Review, Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book about conservative activists in the federal judiciary. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis ...


Predatory Structured Finance, Christopher L. Peterson Sep 2006

Predatory Structured Finance, Christopher L. Peterson

ExpressO

Predatory lending is a real, pervasive, and destructive problem as demonstrated by record settlements, jury awards, media exposes, and a large body of empirical scholarship. Currently the national debate over predatory mortgage lending is shifting to the controversial question of who should bear liability for predatory lending practices. In today’s subprime mortgage market, originators and brokers quickly assign home loans through a complex and opaque series of transactions involving as many as a dozen different strategically organized companies. Loans are typically transferred into large pools, and then income from those loans is “structured” to appeal to different types of ...


A New Clean Water Act, Paul Boudreaux Sep 2006

A New Clean Water Act, Paul Boudreaux

ExpressO

The Supreme Court’s new federalism has struck its strongest blows so far on the Clean Water Act. This summer, in Rapanos v. United States, a sharply divided Court nearly struck down a large chunk of the Act’s protection of wetlands and other small waterways – five years after an earlier decision had narrowed the reach of the Act because of its supposed overreaching into state prerogative. Why has the Clean Water Act been the Court’s favorite target? One reason is that the statute was fatally flawed when enacted. Congress chose to cover “navigable waters,” but its practical definition ...


Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila Sep 2006

Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent ...


Criminal Law Beyond The State: Popular Trials On The Frontier, Andrea Mcdowell Aug 2006

Criminal Law Beyond The State: Popular Trials On The Frontier, Andrea Mcdowell

ExpressO

Before the civil war, “lynching” signified all forms of group-inflicted punishments, including vigilantism and mob killings. By this definition, lynchings happen in every country. Only in America, however, was lynching widespread and socially accepted. Scholars say this shows that the American commitment to due process often succumbed to “vigilante values,” that is, the desire for speedy, certain and severe penalties. They contend that vigilante values triumphed on the frontier, where courts were weak and vigilance committees strong. This article demonstrates that this view must be substantially qualified because due process was of great concern to Americans on the frontier, especially ...


The Crimmigration Crisis: Immigrants, Crime, & Sovereign Power, Juliet P. Stumpf Aug 2006

The Crimmigration Crisis: Immigrants, Crime, & Sovereign Power, Juliet P. Stumpf

ExpressO

This article provides a fresh theoretical perspective on the most important development in immigration law today: the convergence of immigration and criminal law. Although the connection between immigration and criminal law, or “crimmigration law,” is now the subject of national debate, scholarship in this area is in a fledgling state. This article begins to fill that void. It proposes a unifying theory – membership theory – for why these two areas of law recently have become so connected, and why that convergence is troubling. Membership theory restricts individual rights and privileges to those who are members of a social contract between the ...


Commercial Law In The Cracks Of Judicial Federalism, Donald J. Smythe Aug 2006

Commercial Law In The Cracks Of Judicial Federalism, Donald J. Smythe

ExpressO

Almost seventy years after the Supreme Court sought to rationalize the American system of judicial federalism in Erie, sales law remains trapped in a pattern more reminiscent of the Swift v. Tyson era. The extraordinarily wide separation of powers in the NCCUSL-ALI uniform law-making process has entrenched Article 2 of the UCC in the status quo. Concurrently, an imbalance between the federal and state courts in the American system of judicial federalism has conferred an unusually wide range of discretion over state commercial law on the federal courts. Ironically, therefore, state sales statutes are being reinterpreted and revised by the ...


The Twilight Of The Opera Pirates: A Prehistory Of The Exclusive Right Of Public Performance For Musical Compositions, Zvi S. Rosen Aug 2006

The Twilight Of The Opera Pirates: A Prehistory Of The Exclusive Right Of Public Performance For Musical Compositions, Zvi S. Rosen

ExpressO

The exclusive right of public performance of a musical composition now brings to composers and songwriters revenue of approximately one billion dollars a year in the US alone. However, this right was not firmly established until a century after America’s first copyright statute, relying until then on the common-law principles that protected unpublished works. The first effort to create this right by statute was the Ingersoll Copyright Bill, an omnibus revision in 1844 which died quickly in committee. After that 50 years passed, and in the final quarter of the nineteenth century the need for statutory protection for public ...


The Pocahontas Exception: The Exemption Of American Indian Ancestry From Racial Purity Law, Kevin Noble Maillard Aug 2006

The Pocahontas Exception: The Exemption Of American Indian Ancestry From Racial Purity Law, Kevin Noble Maillard

ExpressO

“The Pocahontas Exception” confronts the legal existence and cultural fascination with the eponymous “Indian Grandmother.” Laws existed in many states that prohibited marriage between whites and nonwhites to prevent the “quagmire of mongrelization.” Yet, this racial protectionism, as ingrained in law, blatantly exempted Indian blood from the threat to white racial purity. In Virginia, the Racial Integrity Act of 1924 made exceptions for whites of mixed descent who proudly claimed Native American ancestry from Pocahontas. This paper questions the juridical exceptions made for Native American ancestry in antimiscegenation statues, and analyzes the concomitant exemptions in contemporary social practice. With increasing ...


A Race Or A Nation? Cherokee National Identity And The Status Of Freedmen's Descendents, S. Alan Ray Aug 2006

A Race Or A Nation? Cherokee National Identity And The Status Of Freedmen's Descendents, S. Alan Ray

ExpressO

The Cherokee Nation today faces the challenge of determining its citizenship criteria in the context of race. The article focuses on the Cherokee Freedmen. As former slaves of Cherokee citizens, the Freedmen were adopted into the Cherokee Nation after the Civil War pursuant to a treaty with the United States, and given unqualified rights of citizenship. The incorporation of the Freedmen into the tribe was resisted from the start, and now, faced with a decision of the Cherokee Nation’s highest court affirming the descendents’ citizenship rights, the Nation prepares to vote on a constitutional amendment which would impose an ...


Searches And The Misunderstood History Of Suspicion And Probable Cause: Part One, Fabio Arcila Aug 2006

Searches And The Misunderstood History Of Suspicion And Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent ...


The Origin Of The Compelling State Interest Test And Strict Scrutiny, Stephen A. Siegel Aug 2006

The Origin Of The Compelling State Interest Test And Strict Scrutiny, Stephen A. Siegel

ExpressO

This article argues that strict scrutiny did not originate in equal protection cases. Rather, it originated in the First Amendment in the late 1950s and early 1960s and migrated from there to the Equal Protection Clause in the late-1960s. The Article begins by discussing strict scrutiny analytically, situating it as one of many doctrines through which the Supreme Court gives heightened protection to favored constitutional interests. It then traces the origin of strict scrutiny’s compelling state interest requirement to the First Amendment. It shows that the compelling state interest test initially appeared in First Amendment litigation in 1957 and ...


Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court: Part I-A English Stories, Marc L. Roark Aug 2006

Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court: Part I-A English Stories, Marc L. Roark

ExpressO

This is part I-A of a Book I am working towards on the narratives and fictions of sovereign immunity. The goal in this part is to look before the American republic and towards the background in which American Sovereignty came to be shaped by -- the feudal notion of the sovereign; the Lockean response, and the Blackstonean doctrine. The first part looks at the legal fictions surrounding the kingship, their sources and their effects. The Second part looks to the specific ways of treating the sovereign in law, namely viewing King as Property owner or patriarch, Trustee, and Constitution.


Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court, Marc L. Roark Aug 2006

Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court, Marc L. Roark

ExpressO

This is the introduction to a book I am preparing on the Normative and Narrative aspects of the U.S. Sovereign Immunity Doctrine. The introduction sets up the problem of a doctrine that is not exactly coherent with the national narrative.


Justice Thomas' Kelo Dissent, Or, "History As A Grab Bag Of Principles", David L. Breau Aug 2006

Justice Thomas' Kelo Dissent, Or, "History As A Grab Bag Of Principles", David L. Breau

ExpressO

In Kelo v. City of New London, the Supreme Court held 5-4 that creating jobs and increasing tax revenues satisfy the Fifth Amendment’s requirement that property be "taken for public use." Justice Thomas joined the dissenters, but authored a separate opinion arguing that the Public Use Clause was originally understood as a substantive limitation that allowed the government to take property only if the government owns, or the public actually uses, the taken property. This article demonstrates that much of the historical evidence that Justice Thomas provides in his dissent to support a narrow original understanding of public use ...


Lost Opportunity: Bush V. Holmes And The Application Of State Constitutional Uniformity Clauses To School Voucher Programs, Jamie S. Dycus Aug 2006

Lost Opportunity: Bush V. Holmes And The Application Of State Constitutional Uniformity Clauses To School Voucher Programs, Jamie S. Dycus

ExpressO

This article analyzes the Florida Supreme Court’s recent decision in Bush v. Holmes, in which the court struck down Florida’s school voucher program as a violation of Florida's constitutional uniformity clause. It argues that the court erred by applying a simplistic and ahistorical definition of uniformity, and recommends that future courts applying state constitutional uniformity clauses to school voucher schemes take a different approach.

Specifically, it argues that courts in future cases should begin by acknowledging frankly the necessity of determining the meaning of uniformity. Next, drawing on case law and historical evidence, they should fashion definitions ...


Developing Development Theory: Law & Development Orthodoxies And The Northeast Asian Experience, John K.M. Ohnesorge Jul 2006

Developing Development Theory: Law & Development Orthodoxies And The Northeast Asian Experience, John K.M. Ohnesorge

ExpressO

None of the orthodox theories about law and economic development produced in recent decades has been based on a study of the "miracle" economies of Northeast Asia, nor have any of these orthodoxies seriously been tested against the Northeast Asian experience of law and development. This article conducts such a test, finding that none of these orthodoxies fares well when its claims are tested against the Northeast Asian experience. Rather than using Northeast Asia's experience to produce yet another orthodoxy, however, this article instead proposes rethinking how we understand the task of legal technical assistance, a rethinking which is ...


Untying The Knot: An Analysis Of The English Divorce And Matrimonial Causes Court Records, 1858-1866, Danaya C. Wright Jun 2006

Untying The Knot: An Analysis Of The English Divorce And Matrimonial Causes Court Records, 1858-1866, Danaya C. Wright

ExpressO

This paper is an analysis of the petitions, answers, affidavits, and court docket for the first nine years of the English divorce and matrimonial causes court. It examines in detail the child custody, alimony, gender, and class components of the court’s first nine years. After analyzing the petitions and court docket along gender lines for the different causes of action (divorce, separation, annulment, and restitution of conjugal rights), and their success rate by gender and by age of the marriage, it then breaks down marriages by age and speculates on a variety of causes for the different results and ...


Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp Jun 2006

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.


The “Csi Effect”: Better Jurors Through Television And Science?, Michael D. Mann Jun 2006

The “Csi Effect”: Better Jurors Through Television And Science?, Michael D. Mann

ExpressO

This Comment discusses how television shows such as CSI and Law & Order create heightened juror expectations. This will be published in the Buffalo Public Interest Law Journal's 2005-2006 issue.


The (Intellectual Property Law &) Economics Of Innocent Fraud: The Ip & Development Debate, Peter Matthew Beattie Jun 2006

The (Intellectual Property Law &) Economics Of Innocent Fraud: The Ip & Development Debate, Peter Matthew Beattie

ExpressO

This note/essay examines the evidence on the effect of stronger IP laws introduced during the process of international IP law harmonization initiated by the TRIPS agreement, on the economic development of developing countries. It has been argued by proponents of harmonization that stronger IP laws will provide a needed boost to the economic development of developing (and even least-developed) countries. Critics of harmonization have argued that stronger IP laws will have the opposite effect. What has been largely overlooked in this debate is the strength of the evidentiary foundation upon which the arguments of both sides depend. Many of ...