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Legal History Commons

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2015

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Articles 1 - 30 of 395

Full-Text Articles in Legal History

The Progressives: Economics, Science, And Race, Herbert J. Hovenkamp Dec 2015

The Progressives: Economics, Science, And Race, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This essay is a brief review of Thomas C. Leonard, Illiberal Reformers: Race, Eugenics, and American Economics in the Progressive Era (Princeton Univ. Press 2016).


The Lewis F. Powell, Jr. Archives And The Contemporary Researcher, John Jacob Dec 2015

The Lewis F. Powell, Jr. Archives And The Contemporary Researcher, John Jacob

John Jacob

No abstract provided.


Foreword: Kratovil Symposium Issue Of The John Marshall Law Review, 38 J. Marshall L. Rev. 1 (2004), Celeste M. Hammond Dec 2015

Foreword: Kratovil Symposium Issue Of The John Marshall Law Review, 38 J. Marshall L. Rev. 1 (2004), Celeste M. Hammond

Celeste M. Hammond

No abstract provided.


Foreword: Kratovil Symposium Issue Of The John Marshall Law Review, 38 J. Marshall L. Rev. 1 (2004), Celeste M. Hammond Dec 2015

Foreword: Kratovil Symposium Issue Of The John Marshall Law Review, 38 J. Marshall L. Rev. 1 (2004), Celeste M. Hammond

Celeste M. Hammond

No abstract provided.


John A Sibley Lecture, The Shaping Of International Law, Louis B. Sohn Dec 2015

John A Sibley Lecture, The Shaping Of International Law, Louis B. Sohn

Georgia Journal of International & Comparative Law

No abstract provided.


The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt Dec 2015

The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt

Mark P Nevitt

Climate change is the world’s greatest environmental threat. And it is increasingly understood as a threat to domestic and international peace and security. In recognition of this threat, the President has taken the initiative to prepare for climate change’s impact – in some cases drawing sharp objections from Congress. While both the President and Congress have certain constitutional authorities to address the national security threat posed by climate change, the precise contours of their overlapping powers are unclear. As Commander in Chief, the President has the constitutional authority to repel sudden attacks and take care that the laws are ...


Privacy, Police Power, And The Growth Of Public Power In The Early Twentieth Century: A Not So Unlikely Coexistence, Carol Nackenoff Dec 2015

Privacy, Police Power, And The Growth Of Public Power In The Early Twentieth Century: A Not So Unlikely Coexistence, Carol Nackenoff

Maryland Law Review

No abstract provided.


Legal Epistemologies, Howard Schweber Dec 2015

Legal Epistemologies, Howard Schweber

Maryland Law Review

No abstract provided.


Of Monsters & Lawyers, Milan Markovic Nov 2015

Of Monsters & Lawyers, Milan Markovic

Milan Markovic

No abstract provided.


Magna Carta Then And Now: A Symbol Of Freedom And Equal Rights For All, Eugene K B Tan, Jack Tsen-Ta Lee Nov 2015

Magna Carta Then And Now: A Symbol Of Freedom And Equal Rights For All, Eugene K B Tan, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

Magna Carta became applicable to Singapore in 1826 when a court system administering English law was established in the Straits Settlements. This remained the case through Singapore’s evolution from Crown colony to independent republic. The Great Charter only ceased to apply in 1993, when Parliament enacted the Application of English Law Act to clarify which colonial laws were still part of Singapore law. Nonetheless, Magna Carta’s legacy in Singapore continues in a number of ways. Principles such as due process of law and the supremacy of law are cornerstones of the rule of law, vital to the success ...


Temporary Insanity: The Strange Life And Times Of The Perfect Defense, Russell D. Covey Nov 2015

Temporary Insanity: The Strange Life And Times Of The Perfect Defense, Russell D. Covey

Russell D. Covey

The temporary insanity defense has a prominent place in the mythology of criminal law. Because it seems to permit factually guilty defendants to escape both punishment and institutionalization, some imagine it as the “perfect defense.” In fact, the defense has been invoked in a dizzying variety of contexts and, at times, has proven highly successful. Successful or not, the temporary insanity defense has always been accompanied by a storm of controversy, in part because it is often most successful in cases where the defendant’s basic claim is that honor, revenge, or tragic circumstance – not mental illness in its more ...


The Corpus Juris Civilis, Frederick W. Dingledy Nov 2015

The Corpus Juris Civilis, Frederick W. Dingledy

Library Staff Publications

The Corpus Juris Civilis, created by order of Byzantine Emperor Justinian I to compile the laws in force at the time, would become a vital foundation for both the civil law and common law traditions. Important figures in the development of the United States’ law used principles listed in the Corpus as a guide, and to this day legal scholars and historians still refer to it. As a system of law based on principles, not case law, the Corpus provided the framework upon which France built the Code Napoleon. The Corpus' influence can be seen in the legal systems of ...


Memorial: Nancy P. Johnson (1949-2014), Kristina L. Niedringhaus Nov 2015

Memorial: Nancy P. Johnson (1949-2014), Kristina L. Niedringhaus

Kristina L Niedringhaus

No abstract provided.


From Criminal Law To Urban Law And Policy: A Tribute To Professor Feridun Yenisey, Ryan Rowberry, Julian Juergensmeyer Nov 2015

From Criminal Law To Urban Law And Policy: A Tribute To Professor Feridun Yenisey, Ryan Rowberry, Julian Juergensmeyer

Julian C. Juergensmeyer

No abstract provided.


Marriage (In)Equality And The Historical Legacies Of Feminism, Serena Mayeri Nov 2015

Marriage (In)Equality And The Historical Legacies Of Feminism, Serena Mayeri

Faculty Scholarship at Penn Law

In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so ...


Representing Interdisciplinarity, Kunal M. Parker Nov 2015

Representing Interdisciplinarity, Kunal M. Parker

Villanova Law Review

No abstract provided.


Book Review: The Once And Future King: The Rise Of Crown Government In America, Ronald D. Rotunda Oct 2015

Book Review: The Once And Future King: The Rise Of Crown Government In America, Ronald D. Rotunda

Ronald D. Rotunda

If you want to understand your own language, learn a foreign tongue. Similarly, if you want to understand the American system of government, learn what our intellectual kin—Great Britain and Canada—have done. As Professor F.H. Buckley notes, “He who knows only his own country knows little enough of that.” He is one of the few people who has thoroughly mastered the legal structure and history of all three countries.


On The Battlefield Of Merit, Daniel Coquillette Oct 2015

On The Battlefield Of Merit, Daniel Coquillette

Daniel R. Coquillette

Lecture based on Professor Coquillette's extensive research on the history of Harvard Law School as well as on his book of the same title.


Session Ii: Historical Perspectives On Privacy In American Law, 29 J. Marshall J. Computer & Info. L. 319 (2012), Steven D. Schwinn, Alberto Bernabe, Kathryn Kolbert, Adam D. Moore, Marc Rotenberg Oct 2015

Session Ii: Historical Perspectives On Privacy In American Law, 29 J. Marshall J. Computer & Info. L. 319 (2012), Steven D. Schwinn, Alberto Bernabe, Kathryn Kolbert, Adam D. Moore, Marc Rotenberg

Alberto Bernabe

No abstract provided.


Donor Advised Funds In Historical Perspective, Lila Corwin Berman Oct 2015

Donor Advised Funds In Historical Perspective, Lila Corwin Berman

Forum on Philanthropy and the Public Good

This article argues that the emergence of a specific financial structure called the donor advised fund (DAF) developed in tandem with postwar efforts to extend the private sector’s reach into public welfare through new forms of charitable giving and voluntarism. In charting the gestation, birth, and expansion of DAFs from the late nineteenth century to our present day, it contends that the longstanding tension in American life between state-based regulation and individual freedoms has stood at the heart of debates about charitable tax law. Far from simply reflecting reigning historical forces, DAFs came to shape ideologies about public and ...


Response To Nicholas Boyle, O. Carter Snead Oct 2015

Response To Nicholas Boyle, O. Carter Snead

O. Carter Snead

Response to Nicholas Boyle’s talk “God, Sex, and America: From Decline of the Common Morality to the Emergence of a Global Ethical Life” at The Catholic University of America Center for Law, Philosophy and Culture’s Symposium “A Common Morality for the Global Age: In Gratitude for What We Are Given.”


Oliver Wendell Holmes, Jr., And The American Civil War, Catharine P. Wells Oct 2015

Oliver Wendell Holmes, Jr., And The American Civil War, Catharine P. Wells

Catharine P. Wells

Oliver Wendell Holmes, Jr. spent three terrible years fighting in the Civil War. By any standard his experience was horrific. He was wounded three times, suffered a nearly fatal bout of dysentery, and endured the deaths of many of his closest friends. Without doubt, it was the most affecting period of his life. Unfortunately, however, the accounts of Holmes’ wartime experience have been notably superficial. Part of the problem has been the fact that, until recently, the chief source of information about these years was Holmes’ own diary and letters. The difficulty with these as a source has been twofold ...


Oliver Wendell Holmes, Jr., And The American Civil War, Catharine P. Wells Oct 2015

Oliver Wendell Holmes, Jr., And The American Civil War, Catharine P. Wells

Catharine P. Wells

Oliver Wendell Holmes, Jr. spent three terrible years fighting in the Civil War. By any standard his experience was horrific. He was wounded three times, suffered a nearly fatal bout of dysentery, and endured the deaths of many of his closest friends. Without doubt, it was the most affecting period of his life. Unfortunately, however, the accounts of Holmes’ wartime experience have been notably superficial. Part of the problem has been the fact that, until recently, the chief source of information about these years was Holmes’ own diary and letters. The difficulty with these as a source has been twofold ...


"Shouting 'Fire' In A Theater": The Life And Times Of Constitutional Law's Most Enduring Analogy, Carlton F.W. Larson Oct 2015

"Shouting 'Fire' In A Theater": The Life And Times Of Constitutional Law's Most Enduring Analogy, Carlton F.W. Larson

William & Mary Bill of Rights Journal

In 1919, Justice Oliver Wendell Holmes introduced the specter of a man falsely shouting “fire” in a theater into First Amendment law. Nearly one hundred years later, this remains the most enduring analogy in constitutional law. It has been relied on in hundreds of constitutional cases, and it has permeated popular discourse on the scope of individual rights.

This Article examines both the origins and the later life of Holmes’s theater analogy. Part I is a detective story, seeking to solve the mystery of how Holmes came up with this particular example. This story takes us to the forgotten ...


Building Legal Order In Ancient Athens, Federica Carugati, Gillian K. Hadfield, Barry R. Weingast Oct 2015

Building Legal Order In Ancient Athens, Federica Carugati, Gillian K. Hadfield, Barry R. Weingast

University of Southern California Legal Studies Working Paper Series

How do democratic societies establish and maintain order in ways that are conducive to growth? Contemporary scholarship associates order, democracy, and growth with centralized rule of law institutions. In this article, we test the robustness of modern assumptions by turning to the case of ancient Athens. Democratic Athens was remarkably stable and prosperous, but the ancient city-state never developed extensively centralized rule of law institutions. Drawing on the “what-is-law” account of legal order elaborated by Hadfield and Weingast (2012),we show that Athens’ legal order relied on institutions that achieved common knowledge and incentive compatibility for enforcers in a largely ...


War, Dearth And Theft In The Eighteenth Century: The Record Of The English Courts, Douglas Hay Oct 2015

War, Dearth And Theft In The Eighteenth Century: The Record Of The English Courts, Douglas Hay

Douglas C. Hay

No abstract provided.


Archival Research In The History Of The Law: A User's Perspective, Douglas Hay Oct 2015

Archival Research In The History Of The Law: A User's Perspective, Douglas Hay

Douglas C. Hay

Legal history and the social history of law have become very active fields of research in Britain, the United States, and Canada in the past ten years. Moreover, they have begun to affect each other, so that social historians are now much more sensitive to doctrinal changes, shifts in legal rules, and legal concepts, while legal historians increasingly appreciate that explaining legal change – or the lack of it – may require extensive research outside the law library. In short, lawyers and historians are beginning to meet not only in law libraries, but also in archives. And, like all users, they are ...


Four Concepts Of Validity: Further Reflections On The Inclusive/Exclusive Positivism Debate, Will Waluchow, Leslie Green, Michael Guidice, François Tanguay-Renaud Oct 2015

Four Concepts Of Validity: Further Reflections On The Inclusive/Exclusive Positivism Debate, Will Waluchow, Leslie Green, Michael Guidice, François Tanguay-Renaud

François Tanguay-Renaud

Wil Waluchow, McMaster University, discusses four concepts of legal validity and how these might help understand the role of constitutional moral tests for legal validity. Respondent: Les Green Osgoode Hall Law School/Oxford University


Writing Canadian Legal History: Origins, Philip Girard Oct 2015

Writing Canadian Legal History: Origins, Philip Girard

Philip Girard

No abstract provided.


Hunger, Horses And Government Men: Criminal Law On The Aboriginal Plains, 1870-1905, Shelley Gavigan Oct 2015

Hunger, Horses And Government Men: Criminal Law On The Aboriginal Plains, 1870-1905, Shelley Gavigan

Shelley A. M. Gavigan

Scholars often accept without question that Canada's Indian Act (1876) criminalized First Nations. In this illuminating book, Shelley Gavigan argues that the notion of criminalization captures neither the complexities of Aboriginal participation in the courts nor the significance of the Indian Act as a form of law.

Gavigan uses records of ordinary cases from the lower courts and insights from critical criminology and traditional legal history to interrogate state formation and criminal law in the Saskatchewan region of the North-West Territories between 1870 and 1905. By focusing on Aboriginal people's participation in the courts rather than on narrow ...