Legal History Commons^™

State V. John Scopes (The Monkey Trial), Douglas O. Linder

Faculty Works

The early 1920s found social patterns in chaos. Traditionalists, the older Victorians, worried that everything valuable was ending. Younger modernists no longer asked whether society would approve of their behavior, only whether their behavior met the approval of their intellect. Intellectual experimentation flourished. Americans danced to the sound of the Jazz Age, showed their contempt for alcoholic prohibition, debated abstract art and Freudian theories. In a response to the new social patterns set in motion by modernism, a wave of revivalism developed, becoming especially strong in the American South. Who would dominate American culture -- the modernists or the traditionalists? …

The Dakota Conflict Trials, Douglas O. Linder

Faculty Works

The causes of the Dakota Conflict are many and complex. The treaties of 1851 and 1858 contributed to tensions by undermining the Dakota culture and the power of chieftains, concentrating malcontents, and leading to a corrupt system of Indian agents and traders. Annuity payments reduced the once proud Dakota to the status of dependents. Annuity payments for the Dakota were late in the summer of 1862. On Sunday, August 17, four Dakota from a breakaway band of young malcontents were on a hunting trip when they came across some eggs in a hen's nest along the fence line of a …

The Trial Of Lizzie Borden, Douglas O. Linder

Faculty Works

"Lizzie Borden took an axe, and gave her mother forty whacks. When she saw what she had done, she gave her father forty-one." Actually the Bordens received only 29 whacks, not the 81 suggested by the famous ditty, but the popularity of the poem is a testament to the public's fascination with the 1893 murder trial of Lizzie Borden. The source of that fascination might lie in the almost unimaginably brutal nature of the crime - given the sex, background, and age of the defendant - or in the jury's acquittal of Lizzie in the face of prosecution evidence that …

The Trial Of William 'Big Bill' Haywood, Douglas O. Linder

Faculty Works

The struggle between the Western Federation of Miners and the Western Mine Owners' Association at the turn of the twentieth century might well be called a war. When the state of Idaho prosecuted William Big Bill Haywood in 1907 for ordering the assassination of former governor Frank Steunenberg, fifteen years of union bombings and murders, fifteen years of mine owner intimidation and greed, and fifteen years of government abuse of process and denials of liberties spilled into the national headlines. Featuring James McParland, America's most famous detective; Harry Orchard, America's most notorious mass murderer turned state's witness; Big Bill Haywood, …

The Boston Massacre Trials: An Account, Douglas O. Linder

Faculty Works

Although it has been over two centuries since the moonlit March night in 1770 when British soldiers killed five Bostonians on King Street, people still debate responsibility for the Boston Massacre. Does the blame rest with the crowd of Bostonians who hurled insults, snowballs, oysters shells, and other objects at the soldiers, or does the blame rest with an overreacting military that violated laws of the colony that prohibited firing at civilians? Whatever side one takes in the debate, all can agree that the Boston Massacre stands as a significant landmark on the road to the American Revolution.

The Trial Of Richard Bruno Hauptmann, Douglas O. Linder

Faculty Works

Journalist H. L. Mencken called the trial of Bruno Hauptmann, the accused kidnapper of the baby of aviator Charles Lindbergh, the greatest story since the Resurrection. While Mencken's description is doubtless an exaggeration, measured by the public interest it generated, the Hauptmann trial stands with the O. J. Simpson and Scopes trials as among the most famous trials of the twentieth century. The trial featured America's greatest hero, a good mystery involving ransom notes and voices in dark cemeteries, a crime that is every parent's worst nightmare, and a German-born defendant who fought against U. S. forces in World War …

The Trial Of The Lincoln Assassination Conspirators, Douglas O. Linder

Faculty Works

For President Abraham Lincoln, things looked brighter on Friday, April 14, 1865 than they had for a long time. Five days earlier, General Robert E. Lee effectively ended the long nightmare of the Civil War by surrendering the Army of Northern Virginia, and just the previous day, the city of Washington celebrated the war's end by illuminating every one of its public building with candles. Candles also burned in most private homes, causing a city paper to describe the nation's capital as all ablaze with glory. The President decided he could finally afford an evening of relaxation: he would attend …

The Trials Of Lenny Bruce, Douglas O. Linder

Faculty Works

In the late 1950s and early 1960s, Lenny Bruce was the spirit of hipness and rebellion. His underdog, idealistic humor took on every American sacred cow, from capitalism to organized religion to sexual mores. Fans were attracted to Bruce's dark sexiness and brutal honesty. Kenneth Tyson described Bruce as fully, quiveringly conscious. Bruce's rise to the status of cultural icon began in the mid-1950s in the strip clubs of southern California where Bruce began to develop the iconoclastic edginess that would be his trademark. In his autobiography, "How to Talk Dirty and Influence People", Bruce described the importance of the …

John Locke And The Meaning Of The Takings Clause, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

ohn Locke, political philosopher and all around polymath, stands as a central figure in the development of Western conceptions of property rights and democratic institutions. If not the sole voice that is echoed in the American revolution and the Constitutional Convention, he clearly influenced the founders, particularly James Madison, and he thus represents an intellectual force that is a legitimate part of the current debate over the relationship between government power and individual property rights.

The purpose of this article is to provide both a detailed analysis of Locke to aid the Takings debate and a particular reading of the …

The Beloved Community: The Influence And Legacy Of Personalism In The Quest For Housing And Tenants' Rights, 40 J. Marshall L. Rev. 513 (2007), Lloyd T. Wilson Jr.

UIC Law Review

No abstract provided.

The Past, Present And Future Of Health Care Reform: Can It Happen?, 40 J. Marshall L. Rev. 767 (2007), David Pratt

UIC Law Review

No abstract provided.

Labor Regulation, Union Avoidance And Organized Labor Relations Strategies On Tribal Lands: New Indian Gaming Strategies In The Wake Of San Manuel Band Of Indians V. National Labor Relations Board, 40 J. Marshall L. Rev. 1259 (2007), D. Michael Mcbride Iii, H. Leonard Court

UIC Law Review

No abstract provided.

The Mountain Meadows Massacre Of 1857 And The Trials Of John D. Lee: An Account, Douglas O. Linder

Faculty Works

Called the darkest deed of the nineteenth century, the brutal 1857 murder of 120 men, women, and children at a place in southern Utah called Mountain Meadows remains one of the most controversial events in the history of the American West. Although only one man, John D. Lee, ever faced prosecution (for what probably stands as one of the four largest mass killings of civilians in United States history), many other Mormons ordered, planned, or participated in the massacre of wagon loads of Arkansas emigrants as they headed through southwestern Utah on their way to California. Special controversy surrounds the …

The Trials Of Los Angeles Police Officers' In Connection With The Beating Of Rodney King, Douglas O. Linder

Faculty Works

It seemed like an open-and-shut case. The video, played on television so often that an executive at CNN called it wallpaper, showed Los Angeles police officers - as their supervisor watched - kicking, stomping on, and beating with metal batons a seemingly defenseless African-American named Rodney King. Polls taken shortly after the incident showed that over 90% of Los Angeles residents who saw the videotape believed that the police used excessive force in arresting King. Despite the videotape, a jury in Simi Valley concluded a year later that the evidence was not sufficient to convict the officers. Within hours of …

The Progressive Political Power Of Balkin's "Original Meaning", Dawn E. Johnsen

Articles by Maurer Faculty

No abstract provided.

Williston As Conservative-Pragmatist, Mark L. Movsesian

Faculty Publications

In her pathbreaking article, "Restatement and Reform: A New Perspective on the Origins of the American Law Institute, Professor N.E.H. Hull rejects the conventional wisdom about the conservative, even reactionary, character of the First Restatements. The truth, she argues, is more subtle. The Restatements, and the larger ALI project of which they were a part, reflect the "'progressive-pragmatic"' worldview of the law professors most responsible for their creation. These professors were reformers. They rejected the formalism of earlier generations; for them, law was not a conceptual system but a practical tool for promoting beneficial social goals. They tempered their zeal …

Taking Text Too Seriously: Modern Textualism, Original Meaning, And The Case Of Amar's Bill Of Rights, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Championed on the Supreme Court by Justices Scalia and Thomas and championed in academia most prominently by Professor Akhil Amar, textualism has in the past twenty years emerged as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning and, in seeking that meaning, they closely parse the Constitution's words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This article uses Professor …

William W. Cook And Detroit Street Railways, 1891-1894, Margaret A. Leary

Articles

In 1890, much of Detroit's street railway system used outmoded technology, had severe labor and public relations problems, and faced uncertainty over the remaining length of the 30-year franchise granted by the city in 1863, but extended in 1879, perhaps illegally. An apparent solution came in 1891, when William W. Cook-later to earn a fortune that he would give to the University of Michigan Law School-and other "Eastern capitalists" purchased Detroit's street rail system. They were unable to solve the existing problems, and the new outside ownership itself added difficulties. Cook's group sold out in 1894, and over the next …

A Retroactivity Retrospective, With Thoughts For The Future: What The Supreme Court Learned From Paul Mishkin, And What It Might, Kermit Roosevelt Iii

All Faculty Scholarship

No abstract provided.

Judicial Activism And Its Critics, Kermit Roosevelt Iii, Richard Garnett

All Faculty Scholarship

No abstract provided.

Incompletely Theorized Agreements: An Unworkable Theory Of Judicial Modesty, Yavar Bathaee

Fordham Urban Law Journal

This Comment examines the conflicting demands on American courts to safeguard the will of the legislature, ensure the protection of the minority, and resolve particular disputes and redress particular injuries. The manner and scope in which a court theorizes is critical as it binds future courts and litigants to its decisions. Professor Cass Sunstein proposes a jurisprudence of minimalism and supports theoretical modesty in the form of the "incompletely theorized agreement", the notion that individuals can agree on less theorized principles to resolve cases at hand without resorting to high-level theoretical pronouncements. This Comment addresses Sunstein's minimalist regime within the …

The Folklore Of Legal Biography, Mark Fenster

Michigan Law Review

Spencer Weber Waller's Thurman Arnold: A Biography faces the problem of making this life stand out, and this Review seeks both to evaluate his rendering-which it does in Part II, after providing more details of the raw materials of Arnold's life in Part I-and to use Arnold's ideas to reflect on the endeavor of the legal biography. Although other works bearing on Arnold's life have been available,' Waller's competent, readable chronicle will provide an authoritative source of information and satisfy the desires of general readers interested in accomplished legal lives and seeking a straightforward account of Arnold's career. But Waller's …

Lawful Personal Use, Jessica D. Litman

Articles

Despite having sued more than 20,000 of its customers,2 the recording industry wants the world to know that it has no complaint with personal use. Copyright lawyers of all stripes agree that copyright includes a free zone in which individuals may make personal use of copyrighted works without legal liability.3 Unlike other nations, though, the United States hasn't drawn the borders of its lawful personal use zone by statute.4 Determining the circumstances under which personal use of copyrighted works will be deemed lawful is essentially a matter of inference and analogy, and differently striped copyright lawyers will differ vehemently on …

Beyond Mitigation: Towards A Theory Of Allocution, Kimberly A. Thomas

Articles

THE COURT: I don't think I have time to listen .... I am not going to reexamine your guilt or innocence here. That is not the purpose of a sentence.. THE DEFENDANT: I did not have the chance to tell you .... THE DEFENDANT: But, your Honor, listen to me-1 Should the court hear this defendant? Is the story of innocence relevant at allocution-the defendant's opportunity to speak on his or her own behalf at the sentencing hearing prior to the imposition of sentence? Or, is the purpose of allocution something different, as the judge suggests? The answers depend on …

Criminal Justice And The 1967 Detroit 'Riot', Yale Kamisar

Articles

Forty years ago the kindling of segregation, racism, and poverty burst into the flame of urban rioting in Detroit, Los Angeles, Newark, and other U.S. cities. The following essay is excerpted from a report by Professor Emeritus Yale Kamisar filed with the National Advisory Commission on Civil Disorders (the Kerner Commission) regarding the disorders that took place in Detroit July 23-28, 1967. The report provided significant material and was the subject of one article in the series of pieces on the anniversary of the disturbances that appeared last summer in The Michigan Citizen of Detroit. Immediately after the disturbances ended, …

A Brief History Of American Telecommunications Regulation, Tim Wu

Faculty Scholarship

While the history of governmental regulation of communication is at least as long as the history of censorship, the modern regulation of long-distance, or "tele," communications is relatively short and can be dated to the rise of the telegraph in the mid-19th century. The United States left the telegraph in private hands, unlike countries and as opposed to the U.S. postal system, and has done the same with most of the significant telecommunications facilities that have been developed since. The decision to allow private ownership of telecommunications infrastructure has led to a rather particularized regulation of these private owners of …

Tax Reform Unraveling, Michael J. Graetz

Faculty Scholarship

The Tax Reform Act of 1986 was widely heralded as the most significant change in our nation’s tax law since the income tax was extended to the masses during World War II. It was the crowning domestic policy achievement of President Ronald Reagan, who proclaimed it “the best antipoverty measure, the best pro-family measure and the best job-creation measure ever to come out of the Congress of the United States” (Reagan, 1986). This journal published a symposium on the Tax Reform Act in its first issue. The law’s rate reductions and base broadening reforms were mimicked throughout the countries belonging …

Originalism And The Natural Born Citizen Clause, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The enigmatic phrase "natural born citizen" poses a series of problems for contemporary originalism. New originalists, like Justice Scalia, focus on the public meaning of the constitutional text, but the notion of a "natural born citizen" was likely a term of art, derived from the idea of a "natural born subject" in English law--a category that most likely did not extend to persons, like John McCain, who were born outside sovereign territory. But the constitution speaks of "citizens" and not "subjects," introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.

What was the original …

Roscoe Pound And The Future Of The Good Government Movement, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Analyzing The Friedman Thesis Through A Legal Lens: Book Review Essay Assessing Thomas L. Friedman's The World Is Flat, Jayanth K. Krishnan

Articles by Maurer Faculty

In his best-selling book, The World Is Flat, Thomas Friedman assesses how globalization has affected the political, economic, and social landscapes of both the developed and developing world. For Friedman, globalization is emboldening people in countries, like in India, to make societal and governmental demands that are similar to those made by Americans in the United States.

This Essay seeks to add a new layer to the debate over Friedman’s flattening-world thesis. Focusing on India, in particular, I shall argue that as the trajectory of India’s economic development appears on the rise, the sad reality is that …