Legal History Commons^™

Appeal To Heaven: On The Religious Origins Of The Constitutional Right Of Revolution, John M. Kang

William & Mary Bill of Rights Journal

No abstract provided.

Echoes Of The Impact Of Webb V. Mcgowin On The Doctrine Of Consideration Under Contract Law: Some Reflections On The Decision On The Approach Of Its 75th Anniversary, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Arsenic And Old Chemistry: Images Of Mad Alchemists, Experts Attacking Experts, And The Crisis In Forensic Science, David S. Caudill

Working Paper Series

Drawing on research into the use of experts in early 19th-century criminal trials, the image of mad alchemists in popular culture representations of science, and the distinction between empirical and contingent “interpretive repertoires” in the discourse of scientific controversies, this article explores the controversy over arsenic-detection technologies prior to the Marsh test. In addition to noting the predictable criticism of incompetent expertise in the service of law, this article highlights implied accusations of hubris and amorality on the part of over-confident experts, both in the early 19th-century and in today's crisis of forensic science.

Abortion Across State Lines, Joseph W. Dellapenna

Working Paper Series

In this Article, I propose to analyze conflicts of law precedents and theory to explore the extent to which a state can apply its law on abortion to abortions performed outside the state but bearing a significant connection to the state. In attempting to resolve such questions, we enter into the domain of choice of law, part of the field of conflicts of law. This domain is notoriously unstable and contested. This instability allows legal commentators to project their attitudes towards abortion (and many other matters) in analyzing and construing the relevant authorities to resolve choice of law issues. I …

Resolving Political Questions Into Judicial Questions: Tocqueville's Thesis Revisited, Mark Graber

Mark Graber

This paper explores whether national political questions during the second party system were resolved into questions adjudicated by the Supreme Court of the United States. The essay details an appropriate test for Tocqueville’s thesis, demonstrates that most national political questions that excited Jacksonians were not resolved into judicial questions, and explains why Tocqueville’s thesis does not accurately describe national constitutional politics during the three decades before the Civil War. That most political questions were not resolved into judicial questions during the three decades before the Civil War given common political science claim that “(v)irtually any issue the Court might wish …

James Buchanan As Savior? Judicial Power, Political Fragmentation, And The Failed 1831 Repeal Of Section 25, Mark Graber

Mark Graber

James Buchanan is often credited with being the unlikely savior of judicial review in early Jacksonian America. In 1831, Buchanan, then a representative from Pennsylvania, issued a minority report criticizing the proposed repeal of Section 25 of the Judiciary Act of 1789 that is generally credited with convincing a skeptical Congress that fundamental constitutional norms required federal judicial oversight of state courts and state legislatures. This paper claims that federalism and political fragmentation were more responsible than James Buchanan for the failed repeal of Section 25, for the maintenance of judicial power in the United States during the transition from …

The Neal Report And The Crisis In Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

The Neal Report, which was commissioned by Lyndon Johnson and published in 1967, is rightfully criticized for representing the past rather than the future of antitrust. Its authors completely embraced a theory of competition and industrial organization that had dominated American economic thinking for forty years, but was just in the process of coming to an end. The structure-conduct-performance (S-C-P) paradigm that the Neal Report embodied had in fact been one of the most elegant and most tested theories of industrial organization. The theory represented the high point of structuralism in industrial organization economics, resting on the proposition that certain …

The Innkeeper's Tale: The Legal Development Of A Public Calling, David S. Bogen

David S. Bogen

No abstract provided.

Tre Giuristi Perugini Cinquecenteschi: Giovan Paolo Lancellotti, Paolo Comitoli, Benincasio Benincasa, Adolfo Giuliani

Adolfo Giuliani

Why did moral theology become such an important source of legal principles in the late 16th century? This paper argues that to begin to understand the pervasive moral transformation of those decades we need first to consider the ways by which those jurists confidently rewrote the boundaries between canon law, civil law and moral theology.
This paper is focused on the three jurists — a civilian, a canonist and a theologian — who shared the intellectual atmosphere of the university of Perugia between 16th and 17th century: Giovan Paolo Lancellotti, Paolo Comitoli and Benincasio Benincasa.
The full-text is available from …

Argonauts Of The Eastern Mediterranean: Legal Transplants And Signaling, Assaf Likhovski

Assaf Likhovski

This Article tells the story of two legal cooperation projects established by the Israeli Ministry of Justice in the 1950s and 1960s. The Article argues that the history of these projects can suggest a new way of understanding the process of legal transplantation. Much of the literature on legal transplants focuses on the legal norms transplanted.

This Article seeks to shift the focus of the debate from a discussion of the legal norms transplanted to a discussion of the social acts involved in the process of transplantation. The Article argues that while transplantation may be motivated by practical considerations,such as …

Правовая Политика Советского Государства В Сфере Регулирования Научной Деятельности (1917-Конец 20-Х Годов), Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

The Soviet state legal policy bases in the sphere of the scientific activities regulation have been founded in 1917-1929. In statutory acts the subjects circle of the management boards in research activities has been defined. The legal policy was carried out by attraction of the scientific institutes, separate scientists to performance researches for the purpose of the substantiation, creation and strengthening the State-legal system. It was provided by means of legislative regulating the creation order of the state research institutes and high schools, processes of their interaction and regulation of the scientific activity itself, scientific researches financing out from the …

The Original Meaning Of The Constitution's “Executive Vesting Clause”—Evidence From Eighteenth Century Drafting Practice, Robert G. Natelson

Robert G. Natelson

Advocates of presidential power from the days of George Washington at least to the time of George W. Bush have claimed that the Constitution’s so-called “Executive Vesting Clause,” the first sentence of Article II, not only designates the President as chief executive, but also confers broad authority. Some commentators support that view, while others maintain that the President’s powers are limited to those enumerated elsewhere in the Constitution. This study addresses the previously-overlooked question of which interpretation is more consistent with contemporaneous drafting customs. It concludes that treating the “Executive Vesting Clause” as a mere designation is consistent with those …

The Original Meaning Of The Privileges And Immunities Clause, Robert G. Natelson

Robert G. Natelson

This article explains the meaning of the U.S. Constitution's Privileges and Immunities Clause of Article IV, as the Founders understood it. It explains that the terms "privileges" and "immunities" had well-understood content in 18th century law---as benefits created by government. The Clause protects states from discriminating against visitors as to the benefits of citizenship (such as access to the courts), but does not address "natural rights" such as freedom of speech and religion.

Full Faith And Credit In The Early Congress, Stephen E. Sachs

Stephen E. Sachs

After more than 200 years, the Full Faith and Credit Clause remains poorly understood. The Clause first issues a self-executing command (that "Full Faith and Credit shall be given"), and then empowers Congress to prescribe the manner of proof and the "Effect" of state records in other states. But if states must accord each other full faith and credit-and if nothing could be more than full-then what "Effect" could Congress give state records that they wouldn't have already? And conversely, how could Congress in any way reduce or alter the faith and credit that is due? This Article seeks to …

The Assault On Classical Legal Thought In Colombia (1886-1920), Jorge Gonzalez-Jacome

Jorge Gonzalez-Jacome

The topic of this paper is the tensions among classical legal thought (CLT) and other modes of legal thought in Colombia between 1886 and 1920. My main claim is that, during this period, CLT was attacked by a version of traditionalism and by a social-based legal thought. The former was evident in the constitutional discussions around the 1886 Colombian Constitution, while the latter became apparent in the interpretation of the Civil Code in areas such as property, contracts and torts. My goal is to tell a story that gives a sense of the fall of CLT as a process crossed …

The Appropriations Power And Sovereign Immunity, Paul F. Figley

Articles in Law Reviews & Other Academic Journals

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence - or nonexistence - of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers’ Case (1690–1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the …

Neoclassicism And The Separation Of Ownership And Control, Herbert J. Hovenkamp

All Faculty Scholarship

"Separation of ownership and control" is a phrase whose history will forever be associated with Adolf A. Berle and Gardiner C. Means' The Modern Corporation and Private Property (1932), as well as with Institutionalist economics, Legal Realism, and the New Deal. Within that milieu the large publicly held business corporation became identified with excessive managerial power at the expense of stockholders, social irresponsibility, and internal inefficiency. Neoclassical economists both then and ever since have generally been critical, both of the historical facts that Berle and Means purported to describe and of the conclusions that they drew. In fact, however, within …

Portrait Of A Patriot: The Major Legal And Political Papers Of Josiah Quincy Junior, Volume 4, The Law Reports, Part One (1761-1765.), Daniel Coquillette, Neil Longley York

Daniel R. Coquillette

No abstract provided.

Portrait Of A Patriot: The Major Legal And Political Papers Of Josiah Quincy Junior, Volume 5, The Law Reports, Part Two (1765-1772.), Daniel Coquillette, Neil Longley York

Daniel R. Coquillette

No abstract provided.

Select Ecclesiastical Cases From The King's Courts 1272-1307, David Millon

David K. Millon

No abstract provided.