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Legal History Commons

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2007

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Articles 1 - 30 of 55

Full-Text Articles in Legal History

The Era Of Deference: Courts, Expertise, And The Emergence Of New Deal Administrative Law, Reuel E. Schiller Dec 2007

The Era Of Deference: Courts, Expertise, And The Emergence Of New Deal Administrative Law, Reuel E. Schiller

Michigan Law Review

The first two terms of Franklin Roosevelt's presidency (1933-1941) were periods of great administrative innovation. Responding to the Great Depression, Congress created scores of new administrative agencies charged with overseeing economic policy and implementing novel social welfare programs. The story of the constitutional difficulties that some of these policy innovations encountered is a staple of both New Deal historiography and the constitutional history of twentieth-century America. There has been very little writing, however, about how courts and the New Deal-era administrative state interacted after these constitutional battles ended. Having overcome constitutional hurdles, these administrative agencies still had to interact ...


Embracing The Living Constitution: Justice Anthony M. Kennedy's Move Away From A Conservative Methodology Of Constitutional Interpretation, Lisa K. Parshall Oct 2007

Embracing The Living Constitution: Justice Anthony M. Kennedy's Move Away From A Conservative Methodology Of Constitutional Interpretation, Lisa K. Parshall

North Carolina Central Law Review

No abstract provided.


Constitutional Law—Equal Protection & Due Process—Is The Arkansas Supreme Court Abandoning Judicial Federalism?, Alexander Justiss Oct 2007

Constitutional Law—Equal Protection & Due Process—Is The Arkansas Supreme Court Abandoning Judicial Federalism?, Alexander Justiss

University of Arkansas at Little Rock Law Review

This note examines the history of judicial federalism by discussing the history of its use, as well as the analytical models that have been produced by its various adoptive jurisdictions. The development of these models has given courts much authority in determining the scope of individual rights within their respective jurisdictions. Further, a discussion follows that explores the criticisms directed at the use of such authority.

This note also examines the Arkansas Supreme Court's adoption and use of judicial federalism as a necessary safeguard against governmental infringements on individual rights, particularly those involving the right to privacy. Although such ...


Looking Ahead: The Future Of Child Welfare Law, Donald N. Duquette Oct 2007

Looking Ahead: The Future Of Child Welfare Law, Donald N. Duquette

University of Michigan Journal of Law Reform

Introduction to a 2007 Symposium held to mark the Thirtieth Anniversary of the Child Advocacy Clinic.


Religious Liberty That Almost Wasn't: On The Origin Of The Establishment Clause Of The First Amendment, Gregory C. Downs Oct 2007

Religious Liberty That Almost Wasn't: On The Origin Of The Establishment Clause Of The First Amendment, Gregory C. Downs

University of Arkansas at Little Rock Law Review

The purpose of this article is to briefly examine the origin of the Establishment Clause in the event sometimes referred to as the "Virginia Experience," and to consider the possibility that the significant "leading roles" in the First Amendment's creation were not limited to Jefferson and Madison. Further, Madison's leading role in the actual sponsorship of the First Amendment may not have been entirely voluntary. With the ever-present litigation and controversies revolving around the extent and meaning of the First Amendment's Establishment Clause, the overlooked history of the creation of the First Amendment is both interesting and ...


The Bridge At Jamestown: The Virginia Charter Of 1606 And Constitutionalism In The Modern World, A.E. Dick Howard Sep 2007

The Bridge At Jamestown: The Virginia Charter Of 1606 And Constitutionalism In The Modern World, A.E. Dick Howard

University of Richmond Law Review

No abstract provided.


The Adulterous Wife: A Cross-Historical And Interdisciplinary Approach, Meghan E.B. Norton Sep 2007

The Adulterous Wife: A Cross-Historical And Interdisciplinary Approach, Meghan E.B. Norton

Buffalo Women's Law Journal

No abstract provided.


Social Justice And The Law, Elaine R. Jones Sep 2007

Social Justice And The Law, Elaine R. Jones

University of Richmond Law Review

No abstract provided.


Rule Of Law Conference: Global Issues And The Rule Of Law, Lord Chief Justice Nicholas Phillips Of Worth Matravers Sep 2007

Rule Of Law Conference: Global Issues And The Rule Of Law, Lord Chief Justice Nicholas Phillips Of Worth Matravers

University of Richmond Law Review

No abstract provided.


Contemplating The Meaning Of "The Rule Of Law", Rodney A. Smolla Sep 2007

Contemplating The Meaning Of "The Rule Of Law", Rodney A. Smolla

University of Richmond Law Review

No abstract provided.


Walking The Beach To The Core Of Sovereignty: The Historic Basis For The Public Trust Doctrine Applied In Glass V. Goeckel, Robert Haskell Abrams Jul 2007

Walking The Beach To The Core Of Sovereignty: The Historic Basis For The Public Trust Doctrine Applied In Glass V. Goeckel, Robert Haskell Abrams

University of Michigan Journal of Law Reform

In 2004, a split panel of the Michigan Court of Appeals announced its conclusion that Michigan littoral owners of property owned to the water's very edge and could exclude members of the public from walking on the beach. In that instant almost 3300 miles of the Great Lakes foreshore became, in theory and in law, closed to public use. The case became the leading flash point of controversy between the vast public and ardent private property rights groups. A little more than one year later, the Michigan Supreme Court reversed that ruling as errant on public trust grounds and ...


Bespeaking Justice: A History Of Indigent Defense In Montana, James Park Taylor Jul 2007

Bespeaking Justice: A History Of Indigent Defense In Montana, James Park Taylor

Montana Law Review

Indigent Defense in Montana


Can International Law Survive The 21st Century - Yes: With Patience, Persistence, And A Peek At The Past, Dana Zartner Falstrom May 2007

Can International Law Survive The 21st Century - Yes: With Patience, Persistence, And A Peek At The Past, Dana Zartner Falstrom

San Diego International Law Journal

With the end of the Cold War-the principal international political framework that shaped the international system since the end of WWII-an increasing number of global tensions have arisen which have brought to the fore questions about the ability of existing international law to provide a guiding framework for state behavior. Debates over the limits of state sovereignty, the appropriateness of humanitarian intervention, the justness of pre-emptive war, the definition of self-defense, the legality of replacing a government in the interests of your ideals, and how to deal with terrorism have dominated discussions around the world. Moreover, these discussions have caused ...


Criminal Law Beyond The State: Popular Trials On The Frontier, Andrea Mcdowell May 2007

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

BYU Law Review

No abstract provided.


A Modest Proposal For Regulating Unpublished, Non-Precedential Federal Appellate Opinions While Courts And Litigants Adapt To Federal Rule Of Appellate Procedure 32.1, Sarah E. Ricks Apr 2007

A Modest Proposal For Regulating Unpublished, Non-Precedential Federal Appellate Opinions While Courts And Litigants Adapt To Federal Rule Of Appellate Procedure 32.1, Sarah E. Ricks

The Journal of Appellate Practice and Process

No abstract provided.


Experience Matters: The Rise Of A Supreme Court Bar And Its Effect On Certiorari, Joseph W. Swanson Apr 2007

Experience Matters: The Rise Of A Supreme Court Bar And Its Effect On Certiorari, Joseph W. Swanson

The Journal of Appellate Practice and Process

No abstract provided.


Seeking Best Practices Among Intermediate Courts Of Appeal: A Nascent Journey, W. Warren H. Binford, Preston C. Greene, Maria C. Schmidlkofer Apr 2007

Seeking Best Practices Among Intermediate Courts Of Appeal: A Nascent Journey, W. Warren H. Binford, Preston C. Greene, Maria C. Schmidlkofer

The Journal of Appellate Practice and Process

No abstract provided.


When Is Oral Argument Important? A Judicial Clerk's View Of The Debate, Michael Duvall Apr 2007

When Is Oral Argument Important? A Judicial Clerk's View Of The Debate, Michael Duvall

The Journal of Appellate Practice and Process

No abstract provided.


The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg Apr 2007

The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg

West Virginia Law Review

No abstract provided.


The Origins Of A Coming Crisis: Renewal Of The Churchill Falls Contract, James P. Feehan, Melvin Baker Apr 2007

The Origins Of A Coming Crisis: Renewal Of The Churchill Falls Contract, James P. Feehan, Melvin Baker

Dalhousie Law Journal

The 1969 Churchill Falls contract between Hydro-Quebec and the Churchill Falls Labrador Corporation has been the subject of political controversy. It has also been challenged in the courts, with appeals reaching to the Supreme Court of Canada. Yet, despite the scrutiny of those court cases, the political rhetoric, and the literature that has been spawned by this matter, an extraordinary element of that contract remains remarkably obscure. It is the contract's renewal clause. At the expiry of the contract's forty-four-year term in 2016, that clause requires an automatic renewal for twenty-five additional years at a fixed nominal price ...


Conflict Of Interest, Duress And Unconscionability In Quebec Civil Law: Comment On "The Origins Of A Coming Crisis: Renewal Of The'churchill Falls Contract", Sarah P. Bradley Apr 2007

Conflict Of Interest, Duress And Unconscionability In Quebec Civil Law: Comment On "The Origins Of A Coming Crisis: Renewal Of The'churchill Falls Contract", Sarah P. Bradley

Dalhousie Law Journal

As Professor James Feehan and archivist-historian Melvin Baker describe the circumstances in which the fateful renewal provision of the 1969 Churchill Falls hydro contract was negotiated, they suggest that the legal doctrines of conflict of interest or economic duress might offer a basis upon which the contract, or perhaps the renewal provision, could be impugned. In addition to interesting historical insights, their analysis offers the intriguing possibility that the government of Newfoundland may yet succeed in its long-standing battle to rid itself of its obligations under the grossly disadvantageous Churchill Falls contract.


Keeping The State Out: The Separation Of Law And State In Classical Islamic Law, Lubna A. Alam Apr 2007

Keeping The State Out: The Separation Of Law And State In Classical Islamic Law, Lubna A. Alam

Michigan Law Review

The implementation and enforcement of Islamic law, especially Islamic criminal law, by modem-day Muslim nation-states is fraught with controversy and challenges. In Pakistan, the documented problems and failures of the country's attempt to codify Islamic law on extramarital sexual relations have led to efforts to remove rape cases from Islamic law courts to civil law courts. In striking contrast to Pakistan's experience, the Republic of the Maldives recently commissioned a draft of a penal law and sentencing guidelines based on Islamic law that abides by international norms. The incorporation of Islamic law into the legal systems of various ...


Deconstructing Thinking Like A Lawyer: Analyzing The Cognitive Components Of The Analytical Mind, Larry O. Natt Gantt Ii Apr 2007

Deconstructing Thinking Like A Lawyer: Analyzing The Cognitive Components Of The Analytical Mind, Larry O. Natt Gantt Ii

Campbell Law Review

This article ... tackles the task of identifying the cognitive components of legal thinking. The article begins this task by discussing the development of modern law school pedagogy, which gave rise to the emphasis on thinking like a lawyer. The article then considers current conceptions of legal thinking which have divided the skill into cognitive and practical components, and it examines why the cognitive components remain at the center of the skill. The article then surveys empirical research on legal thinking by examining recent research on personality and learning styles as well as research on law student and lawyer surveys. The ...


Property, Contracts, And Politics, Mark Tushnet Apr 2007

Property, Contracts, And Politics, Mark Tushnet

Michigan Law Review

Rebecca Scott is a historian, not an economist. Describing how a dispute over a mule's ownership was resolved, Professor Scott reproduces a receipt two claimants left when they took the mule from the plantation whose manager claimed it as well (p. 185). By contrast, analyzing property relations in the pre-Civil War American South, economic historian Jenny Wahl observes, "[E]conomic historians tend to [use] ... frequency tables, graphs, and charts." The differences in visual aids to understanding indicate the various ways historians and economists approach a single topic-the relation between markets and politics, the latter defined to include the deployment ...


Looking Backward: Richard Epstein Ponders The "Progressive" Peril, Michael Allan Wolf Apr 2007

Looking Backward: Richard Epstein Ponders The "Progressive" Peril, Michael Allan Wolf

Michigan Law Review

In the 1888 novel Looking Backward, Edward Bellamy dreamed up a twentieth century America that was a socialist utopia, a vision invoked four years later by the conservative Justice David J. Brewer as a warning against government regulation. In How Progressives Rewrote the Constitution, Richard Epstein, looking back at the twentieth century through an interpretive lens much more similar to Brewer's than Bellamy's, sees and bemoans the growth of a dominant big government of which the novelist could only dream. Epstein pulls no punches in his attack on those he deems responsible for the shift in the American ...


Bureaucratization And Balkanization: The Origins And Effects Of Decision-Making Norms In The Federal Appellate Courts, Stefanie A. Lindquist Mar 2007

Bureaucratization And Balkanization: The Origins And Effects Of Decision-Making Norms In The Federal Appellate Courts, Stefanie A. Lindquist

University of Richmond Law Review

No abstract provided.


Mandatory Guidelines: The Oxymoronic State Of Sentencing After United States V. Booker, Hon. Graham C. Mullen, J. P. Davis Mar 2007

Mandatory Guidelines: The Oxymoronic State Of Sentencing After United States V. Booker, Hon. Graham C. Mullen, J. P. Davis

University of Richmond Law Review

No abstract provided.


Employing The Ninth Amendment To Supplement Substantive Due Process: Recognizing The History Of The Ninth Amendment And The Existense Of Nonfundamental Unenumerated Rights, Joseph F. Kadlec Mar 2007

Employing The Ninth Amendment To Supplement Substantive Due Process: Recognizing The History Of The Ninth Amendment And The Existense Of Nonfundamental Unenumerated Rights, Joseph F. Kadlec

Boston College Law Review

Asserted liberty rights not enumerated in the U.S. Constitution are generally considered under the substantive due process doctrine. Courts look only at narrowly defined interests and their history and traditions, and recognize only fundamental rights. This approach, however, fails to acknowledge the existence of nonfundamental rights that deserve recognition and a level of protection from improper legislation. As a supplement to its incomplete substantive clue process jurisprudence, the Supreme Court should examine the Ninth Amendment's history and traditions. Looking to this history and tradition will provide better guideposts for what types of rights should be protected. Employing the ...


Legal Fictions In Pierson V. Post, Andrea Mcdowell Feb 2007

Legal Fictions In Pierson V. Post, Andrea Mcdowell

Michigan Law Review

American courts and citizens generally take the importance of private property for granted. Scholars have sought to explain its primacy using numerous legal doctrines, including natural law, the Lockean principle of a right to the product of one's labor, Law & Economics theories about the incentives created by property ownership, and the importance of bright line rules. The leading case on the necessity of private property, Pierson v. Post, makes all four of these points. This Article argues that Pierson has been misunderstood. Pierson was in fact a defective torts case that the judges shoe-horned into a property mold using ...


Please Don't Feed The Homeless: Pottinger Revisited , Shirley D. Howell Jan 2007

Please Don't Feed The Homeless: Pottinger Revisited , Shirley D. Howell

The Modern American

No abstract provided.