Open Access. Powered by Scholars. Published by Universities.®

Legal History Commons

Open Access. Powered by Scholars. Published by Universities.®

2009

Series

Discipline
Institution
Keyword
Publication

Articles 1 - 30 of 103

Full-Text Articles in Legal History

Langdell And The Invention Of Legal Doctrine, Catharine Wells Nov 2009

Langdell And The Invention Of Legal Doctrine, Catharine Wells

University of Southern California Legal Studies Working Paper Series

This paper addresses two related questions.

The first relates to Langdell and his development of a doctrinal theory of contract law. The substance and method of Langdell’s work has not been well understood and this paper uses a variety of historical materials to remedy this problem. It begins with a review of contract law prior to Langdell. Contract law at this time was in a very primitive state. The available treatises were confusing and the cases themselves offered little guidance for predicting future case outcomes. The paper then proceeds to examine Langdell’s method by describing certain logic texts ...


The Sit-Ins And The State Action Doctrine, Christopher W. Schmidt Nov 2009

The Sit-Ins And The State Action Doctrine, Christopher W. Schmidt

All Faculty Scholarship

By taking their seats at “whites only” lunch counters across the South in the spring of 1960, African American students not only launched a dramatic new stage in the civil rights movement, they also sparked a national reconsideration of the scope of the constitutional equal protection requirement. The critical constitutional question raised by the sit-in movement was whether the Fourteenth Amendment, which after Brown v. Board of Education (1954) prohibited racial segregation in schools and other state-operated facilities, applied to privately owned accommodations open to the general public. From the perspective of the student protesters, the lunch counter operators, and ...


The Status And Future Of Government Documents, James T. Shaw Oct 2009

The Status And Future Of Government Documents, James T. Shaw

Criss Library Faculty Proceedings & Presentations

Depository libraries have traditionally enjoyed a pretty sweet deal—we receive free copies of documents in return for space, processing, and staff to help people use them. Depository libraries have served as key players in two areas of public policy: 1) public access to government information for the needs of today; and 2) widespread distribution of documents helps them survive to form a historical record.


Hope In The Law, Annelise Riles Oct 2009

Hope In The Law, Annelise Riles

Cornell Law Faculty Publications

No abstract provided.


The Limits Of Lex Americana: The Holocaust Restitution Litigation As A Cul-De-Sac Of International Human-Rights Law, Michael Allen Sep 2009

The Limits Of Lex Americana: The Holocaust Restitution Litigation As A Cul-De-Sac Of International Human-Rights Law, Michael Allen

Student Scholarship Papers

This article addresses the Holocaust-restitution litigation of the late 1990s, which resulted in spectacular settlements totaling over $9 billion and culminated with an Executive Agreement between Germany and the United States in 2000. Prominent law scholars such as NYU Professor Burt Neuborne and Michael Bazyler, author of Holocaust Justice: The Battle for Restitution in America's Courts (2003) and Holocaust Restitution: Perspectives on the Litigation and its Legacy (2006), have celebrated these lawsuits as a model for international human rights. Neuborne has extolled the litigation as the dawn of an era of “lex Americana,” in which multinational corporations (MNCs) have ...


Recent Additions To The Collection - Fall 2009: An Illustrated Guide To The Exhibit, Karen S. Beck Sep 2009

Recent Additions To The Collection - Fall 2009: An Illustrated Guide To The Exhibit, Karen S. Beck

Rare Book Room Exhibition Programs

Exhibition program from a Fall 2009 exhibit presented in the Daniel R. Coquillette Rare Book Room at the Boston College Law Library. Many of the books in the exhibit are described as "works likely to have been owned and used by working English and American lawyers who lived during the fifteenth through nineteenth centuries."


Bankruptcy Phobia, David A. Skeel Jr. Jul 2009

Bankruptcy Phobia, David A. Skeel Jr.

Faculty Scholarship at Penn Law

As the recent economic crisis has unfolded, bankruptcy has offered possible solutions at several key junctures. The first of these solutions, often referred to as mortgage modification, was geared toward homeowners who faced the loss of their homes in the months—now several years—since the start of the subprime crisis On the corporate side, Chapter 11 was an obvious alternative when large nonbank financial institutions like Bear Stearns and AIG stumbled in 2008. But regulators repeatedly balked, and the one exception to the avoidance of bankruptcy at all costs—Lehman Brothers—was anomalous. This aversion to bankruptcy, which seems ...


Absent From The Convention: Libraries, Law And Political Philosophy: John Adams And Thomas Jefferson, Mary Sarah Bilder Jun 2009

Absent From The Convention: Libraries, Law And Political Philosophy: John Adams And Thomas Jefferson, Mary Sarah Bilder

Boston College Law School Lectures and Presentations

Presentation by Professor Mary Sarah Bilder, as commentator, at the conference "John Adams & Thomas Jefferson: Libraries, Leadership & Legacy," held in Boston and Charlottesville, June 21-17, 2009.


The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum May 2009

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum

Faculty Scholarship Series

This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. I examine the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. I contend that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of arguments that ...


Arsenic And Old Chemistry: Images Of Mad Alchemists, Experts Attacking Experts, And The Crisis In Forensic Science, David S. Caudill May 2009

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 May 2009

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 ...


Legal Transplants: Slavery And The Civil Law In Louisiana, Ariela J. Gross May 2009

Legal Transplants: Slavery And The Civil Law In Louisiana, Ariela J. Gross

University of Southern California Legal Studies Working Paper Series

Can Louisiana tell us something about civil law vs. common law regimes of slavery? What can the Louisiana experience tell us about a civil law jurisdiction “transplanted” in a common-law country? Louisiana is unique among American states in having been governed first by France, then by Spain, before becoming a U.S. territory and state in the nineteenth century. Unlike other slave states, it operated under a civil code, first the Digest of 1808, and then the Code of 1825. With regard to the regulation of slaves, these codes also incorporated a “Black Code,” first adopted in 1806, which owed ...


The Constitution Of History And Memory, Ariela J. Gross May 2009

The Constitution Of History And Memory, Ariela J. Gross

University of Southern California Legal Studies Working Paper Series

Almost twenty years ago, the historian Pierre Nora wrote about the growing number of “lieux de mémoire” – museums, monuments, and memorials – where post-modern society situates public memory of traumatic or triumphant events. Yet he devoted little sustained attention to what may be the quintessential “lieu de mémoire” today, the courtroom or truth commission hearing room. Traces of our contemporary obsession with the encounter among law, history and memory are everywhere. And so are lawyers: writing new constitutions for new republics, staffing international tribunals for war criminals, taking testimonies for truth commissions. Yet much of the enthusiasm for legal strategies to ...


Law, War, And The History Of Time, Mary L. Dudziak Apr 2009

Law, War, And The History Of Time, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This paper examines wartime as a form of time, arguing that assumptions about the temporality of war are a feature of American legal thought. Time is thought to be linear and episodic, moving from one kind of time (peacetime) to another kind of time (wartime) in sequence. In this way of thinking, war is by definition temporary, so that war’s impact on law is limited in time. This understanding of war and time, however, is in tension with the practice of war in 20th century U.S. history, for American involvement in overseas military action has been continuous.

Drawing ...


A Law Student Collects: Simon Greenlear And Michael Morales: Spring 2009, Karen S. Beck, Michael Morales Apr 2009

A Law Student Collects: Simon Greenlear And Michael Morales: Spring 2009, Karen S. Beck, Michael Morales

Rare Book Room Exhibition Programs

Exhibition program from a Spring 2009 exhibit presented in the Daniel R. Coquillette Rare Book Room at the Boston College Law Library. The exhibit featured books, manuscripts, and ephemera related to the early American legal educator Simon Greenleaf.


Dan Freed: My Teacher, My Colleague, My Friend, Ronald Weich Apr 2009

Dan Freed: My Teacher, My Colleague, My Friend, Ronald Weich

All Faculty Scholarship

At a recent meeting of the National Association of Sentencing Commissions, Yale professor Dan Freed was honored during a panel discussion titled "Standing on the Shoulders of Sentencing Giants," Dan Freed is indeed a sentencing giant. but he is the gentlest giant of all. It is hard to imagine that a man as mild-mannered, soft-spoken, and self-effacing as Dan Freed has had such a profound impact on federal sentencing law and so many other areas of criminal justice policy, Yet he has.

I've been in many rooms with Dan Freed over the years — classrooms, boardrooms, dining rooms, and others ...


The Neal Report And The Crisis In Antitrust, Herbert J. Hovenkamp Mar 2009

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

Faculty Scholarship at Penn Law

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 ...


St. George Tucker's Lecture Notes, The Second Amendment, And Originalist Methodology: A Critical Comment, Saul Cornell Mar 2009

St. George Tucker's Lecture Notes, The Second Amendment, And Originalist Methodology: A Critical Comment, Saul Cornell

NULR Online

No abstract provided.


Judicial Independence In Excess: Reviving The Judicial Duty Of The Supreme Court, Paul D. Carrington, Roger C. Cramton Mar 2009

Judicial Independence In Excess: Reviving The Judicial Duty Of The Supreme Court, Paul D. Carrington, Roger C. Cramton

Cornell Law Faculty Publications

Independence from extrinsic influence is, we know, indispensable to public trust in the integrity of professional judges who share the duty to decide cases according to preexisting law. But such independence is less appropriate for those expected to make new law to govern future events. Indeed, in a democratic government those who make new law are expected to be accountable to their constituents, not independent of their interests and unresponsive to their desires. The Supreme Court of the United States has in the last century largely forsaken responsibility for the homely task of deciding cases in accord with preexisting law ...


The Law And The Host Of The Canterbury Tales, Frederick B. Jonassen Jan 2009

The Law And The Host Of The Canterbury Tales, Frederick B. Jonassen

Faculty Scholarship

No abstract provided.


Jurisprudence: A Beginner's Simple And Practical Guide To Advanced And Complex Legal Theory, 2 The Crit: Critical Stud. J. 62 (2009), Allen R. Kamp Jan 2009

Jurisprudence: A Beginner's Simple And Practical Guide To Advanced And Complex Legal Theory, 2 The Crit: Critical Stud. J. 62 (2009), Allen R. Kamp

Faculty Scholarship

No abstract provided.


A Golden-Age Of Civil Involvement: The Client-Centered Disadvantage For Lawyers As Law Makers, James E. Moliterno Jan 2009

A Golden-Age Of Civil Involvement: The Client-Centered Disadvantage For Lawyers As Law Makers, James E. Moliterno

Faculty Scholarship

None available.


Book Review: The Cambridge History Of Law In America Vol. 1: Early American (1580-1815), William Hamilton Bryson Jan 2009

Book Review: The Cambridge History Of Law In America Vol. 1: Early American (1580-1815), William Hamilton Bryson

Law Faculty Publications

The book under review is a survey of the influence of law on mainland British North America up to about 1815.


Miscellaneous Chancery Reports: (1714-1730), William Hamilton Bryson Jan 2009

Miscellaneous Chancery Reports: (1714-1730), William Hamilton Bryson

Law Faculty Publications

This is a collection of miscellaneous manuscript reports from the Court of Chancery dating from 1714 to 1730, the time of Chancellors Lord Cowper, Lord Macclesfield, and Lord King and the Master of the Rolls, Sir Joseph Jekyll.


Robert Paynell's Exchequer Reports (1627-1631), William Hamilton Bryson Jan 2009

Robert Paynell's Exchequer Reports (1627-1631), William Hamilton Bryson

Law Faculty Publications

Several of these exchequer cases reported by Robert Paynell, the equity ones, were published in 2001 in volume 118 of the Selden Society publications, Cases Concerning Equity and the Courts of Equity 1550-1660. These are reprinted here with permission. Thus, all of Paynell's exchequer cases are printed together here in the order that he put them in his own compilation. Paynell's exchequer reports published here, the other exchequer cases in volume 118 of the Selden Society publications, and those in Reports of Cases in the Court of Exchequer in the Time of King Charles I (2006) make available ...


The Jurisprudential Niche Occupied By Law And Economics, Nicholas Mercuro Jan 2009

The Jurisprudential Niche Occupied By Law And Economics, Nicholas Mercuro

Faculty Publications

This paper describes the jurisprudential niche occupied by the several schools of thought that comprise the field of Law and Economics in present-day legal scholarship. It begins by providing a brief history of law in the U.S.; it highlights the void left in law by the Legal Realists; it then very briefly explores some of the theories that attempted to fill that void including critical legal studies, feminist jurisprudence, and critical race theory. The paper then turns to its main focus - describing the several schools of thought that comprise the field of Law and Economics that has also helped ...


The Death Of The American Trial, Robert P. Burns Jan 2009

The Death Of The American Trial, Robert P. Burns

Faculty Working Papers

This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social signficance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.


Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich Jan 2009

Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich

Faculty Working Papers

This Article spotlights some of the idiosyncratic features of admiralty law at the time of the founding. These features pose challenges for applying the original understanding of the Constitution to contemporary questions of foreign relations. Federal admiralty courts were unusual creatures by Article III standards. They sat as international tribunals applying international and foreign law, freely hearing cases that implicated sensitive questions of foreign policy, and liberally exercising universal jurisdiction over disputes solely between foreigners. However, these powers did not arise out of the basic features of Article III, but rather from a felt need to opt into the preexisting ...


The Story Of Bivens V. Six Unknown-Named Agents Of The Federal Bureau Of Narcotics, James E. Pfander Jan 2009

The Story Of Bivens V. Six Unknown-Named Agents Of The Federal Bureau Of Narcotics, James E. Pfander

Faculty Working Papers

In Bivens v. Six Unknown-Named Agents of the Federal Bureau of Narcotics, the Supreme Court recognized the right of an individual to sue federal government officials for a violation of constitutional rights. Drawing on interviews with some of the participants, including Webster Bivens himself and one of the agents who conducted the search, this chapter in the forthcoming book Federal Courts' Stories describes the events that led to the litigation and the complex array of factors that informed the Court's approach to the case. After placing the Bivens decision in context, the chapter evaluates the competing narratives that have ...


Note, Created In Its Image: The Race Analogy, Gay Identity, And Gay Litigation In The 1950s-1970s, Craig J. Konnoth Jan 2009

Note, Created In Its Image: The Race Analogy, Gay Identity, And Gay Litigation In The 1950s-1970s, Craig J. Konnoth

Articles

Existing accounts of early gay rights litigation largely focus on how the suppression and liberation of gay identity affected early activism. This Note helps complicate these dynamics, arguing that gay identity was not just suppressed and then liberated, but substantially transformed by activist efforts during this period, and that this transformation fundamentally affected the nature of gay activism. Gay organizers in the 1950s and 1960s moved from avoiding identity-based claims to analogizing gays to African-Americans. By transforming themselves in the image of a successful black civil rights minority, activists attempted to win over skeptical courts in a period when equal ...