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Full-Text Articles in Legal History
Abortion Across State Lines, Joseph W. Dellapenna
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 …
Luther Martin, Maryland And The Constitution, William L. Reynolds
Luther Martin, Maryland And The Constitution, William L. Reynolds
William L. Reynolds
Reviews the life and contributions of Maryland lawyer and scholar Luther Martin (1748-1826).
Book Review: Henry J. Richardson Iii, The Origins Of African-American Interests In International Law, D. A. Jeremy Telman
Book Review: Henry J. Richardson Iii, The Origins Of African-American Interests In International Law, D. A. Jeremy Telman
Law Faculty Publications
This short review evaluates Professor Richardson's book both as a contribution to the history of the Atlantic slave trade and as contribution to critical race theory.
Professor Richardson has read innumerable historical monographs, works of legal and sociological theory, international law and critical race theory. Armed with this store of knowledge, he is able to recount a detailed narrative of African-American claims to, interests in and appeals to international law over approximately two centuries spanning, with occasional peeks both forward and backward in time, from the landing of the first African slaves at Jamestown in 1619 to the 1815 Treaty …
39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes
39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes
Akron Law Faculty Publications
The 39th Congress (1865-1867) was one of the important Congresses in our history. It passed more legislation than any other Congress up to that time.
This preliminary examination of the 39th Congress begins with a look it composition. One of the critical factors was that while the 38th Congress contained a majority of unionists, the 39th Congress contained a super-majority which meant not only that they could override a Presidential veto, but also that they did not need to take the Democratic opposition seriously. This article also identifies the leadership of the 39th Congress. The 38th Congress was composed of …
Infinite Hope-- Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly
Infinite Hope-- Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly
Akron Law Faculty Publications
The Fourteenth Amendment embodies hope. This article introduces the Symposium celebrating the 140th anniversary of its ratification, held at the University of Akron. The symposium was a fruitful occasion to reflect upon the meaning of the Amendment to its Framers in Congress and as it was initially interpreted by the United States Supreme Court and the public, and to examine the lasting impacts of both conceptions. Our participants especially examined three of the Supreme Court's earliest forays into applying the Fourteenth Amendment: The Slaughter House Cases, Bradwell v. Illinois, and Cruikshank v. United States. Those forays succeeded in cramping the …
The Union As It Wasn't And The Constitution As It Isn't: Section Five And Altering The Balance Of Power, Elizabeth Reilly
The Union As It Wasn't And The Constitution As It Isn't: Section Five And Altering The Balance Of Power, Elizabeth Reilly
Akron Law Faculty Publications
The original prototype of Section One of the Fourteenth Amendment, as introduced by its primary Framer, John Bingham of Ohio, read: The Congress shall have the power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.
Bingham went on to note expressly that “save the words conferring the express grant of power to the Congress,” the principles of the rights were already in …
The Original Meaning Of The Constitution's “Executive Vesting Clause”—Evidence From Eighteenth Century Drafting Practice, Robert G. Natelson
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
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
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 …
Book Review: Henry J. Richardson Iii, The Origins Of African-American Interests In International Law, D. A. Jeremy Telman
Book Review: Henry J. Richardson Iii, The Origins Of African-American Interests In International Law, D. A. Jeremy Telman
D. A. Jeremy Telman
This short review evaluates Professor Richardson's book both as a contribution to the history of the Atlantic slave trade and as contribution to critical race theory.Professor Richardson has read innumerable historical monographs, works of legal and sociological theory, international law and critical race theory. Armed with this store of knowledge, he is able to recount a detailed narrative of African-American claims to, interests in and appeals to international law over approximately two centuries spanning, with occasional peeks both forward and backward in time, from the landing of the first African slaves at Jamestown in 1619 to the 1815 Treaty of …
39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes
39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes
Richard L. Aynes
The 39th Congress (1865-1867) was one of the important Congresses in our history. It passed more legislation than any other Congress up to that time. This preliminary examination of the 39th Congress begins with a look it composition. One of the critical factors was that while the 38th Congress contained a majority of unionists, the 39th Congress contained a super-majority which meant not only that they could override a Presidential veto, but also that they did not need to take the Democratic opposition seriously. This article also identifies the leadership of the 39th Congress. The 38th Congress was composed of …
Infinite Hope-- Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly
Infinite Hope-- Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly
Elizabeth Reilly
The Fourteenth Amendment embodies hope. This article introduces the Symposium celebrating the 140th anniversary of its ratification, held at the University of Akron. The symposium was a fruitful occasion to reflect upon the meaning of the Amendment to its Framers in Congress and as it was initially interpreted by the United States Supreme Court and the public, and to examine the lasting impacts of both conceptions. Our participants especially examined three of the Supreme Court's earliest forays into applying the Fourteenth Amendment: The Slaughter House Cases, Bradwell v. Illinois, and Cruikshank v. United States. Those forays succeeded in cramping the …
The Union As It Wasn't And The Constitution As It Isn't: Section Five And Altering The Balance Of Power, Elizabeth Reilly
The Union As It Wasn't And The Constitution As It Isn't: Section Five And Altering The Balance Of Power, Elizabeth Reilly
Elizabeth Reilly
The original prototype of Section One of the Fourteenth Amendment, as introduced by its primary Framer, John Bingham of Ohio, read: The Congress shall have the power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.
Bingham went on to note expressly that “save the words conferring the express grant of power to the Congress,” the principles of the rights were already in …
The Appropriations Power And Sovereign Immunity, Paul F. Figley
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 …
The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain
The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain
Corinna Lain
Conventional wisdom is that outside the Eighth Amendment context, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the “evolving standards of decency” doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely—and explicitly—bases constitutional protection on whether a majority of states agree with it. This Article examines the Supreme Court’s reliance on the majority position of the states to identify constitutional norms, then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While the past few …