Legal History Commons^™

Address At The Lincoln Charter Of The Forest Conference, Bishop Grosseteste University: The Charter Of The Forest: Evolving Human Rights In Nature, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

This conference is a singular event, long over due. It has been 258 years since William Blackstone celebrated “these two sacred charters,”1 Carta de Foresta and Magna Carta, with his celebrated publication of their authentic texts. In 2015, the Great Charter of Liberties enjoyed scholarly, political and popular focus. The companion Forest Charter was and is too much neglected.2 I salute the American Bar Association, and Dan Magraw, for the ABA’s educational focus of the Forest Charter, as well as Magna Carta. Today we restore some balance with this conference’s searching and insightful examination of the Forest Charter’s significance.

The Abraham Lincoln Lecture On Constitutional Law, Steven G. Calabresi

Northwestern University Law Review

These introductory remarks to the Inaugural Abraham Lincoln Lecture on Constitutional Law were delivered at Northwestern Pritzker School of Law on April 6, 2017.

Golden Gate University School Of Law: A Bridge To The Profession In The Heart Of San Francisco, Rachel A. Van Cleave

Golden Gate University Law Review

An over 115-year San Francisco institution devoted to opening legal education and the profession to people of diverse backgrounds and experiences, Golden Gate University School of Law (GGU Law) has been a cornerstone of the Bay Area legal community. GGU Law’s mission, graduates, and academic leaders have played an integral role to the fabric of the San Francisco Bay Area legal community and that has shaped a progressive use of the law that seeks to protect the rights of those who otherwise lack a strong political or legal voice. These contributions continue to reverberate throughout California and beyond. This essay …

Tragedy, Outrage & Reform: Crimes That Changed Our World: 1983 – Thurman Beating - Domestic Violence, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

They offer some incredible stories about how people, good and bad, change the world around …

Inimicus Libertatis: Chief Justice Rehnquist’S Majority Or Plurality Opinions In The Field Of Criminal Procedure, Donald E. Wilkes Jr.

Scholarly Works

Since the early 1970’s an increasingly conservative Supreme Court of the United States has been leading this country through a “Criminal Procedure Counterrevolution” (also called “The Rehnquisition”), during which the federal rights and remedies of criminal defendants have been inexorably and significantly eroded. There are numerous books and law review articles discussing this counterrevolution. Chief Justice Rehnquist, the most articulate and ideological of the Courts conservative justices, may properly be regarded as the intellectual founder and leader of this trend in favor of restricting criminal procedure rights.

This article analyzes and provides a bibliography of Supreme Court criminal procedure opinions …

Conclusion: Trigger Crimes & Social Progress, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. It is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of everyday existence but some crimes make people stop and take notice – because they are so outrageous or so heart-wrenching.

This brief essay explores the dynamic of tragedy, outrage, and reform, illustrating how certain kinds of crimes can trigger real social progress. Several dozen such “trigger crimes” are identified but four in particular are …

Canada’S First Malpractice Crisis: Medical Negligence In The Late Nineteenth Century, R. Blake Brown

Osgoode Hall Law Journal

This article describes and explains the first Canadian medical malpractice crisis. While malpractice had emerged as a prominent legal issue in the United States by the mid nineteenth century, Canadian doctors first began to express concerns with a growth in malpractice litigation in the late nineteenth century. Physicians claimed that lawsuits damaged reputations and forced them to spend lavishly on defending themselves. Doctors blamed lawyers for drumming up spurious lawsuits and argued that ignorant or malicious jurors tended to side with plaintiffs. Evidence, however, points to additional factors that contributed to litigation. Medical professionals in rural areas sometimes avoided lengthy …

Sex, Race, And Motel Guests: Another Look At King V Barclay, Sarah E. Hamill

Osgoode Hall Law Journal

The 1961 case of King v Barclay is something of a footnote in the history of discrimination against Black Canadians. If it is cited at all, it is usually cited alongside the more famous racism cases, such as Christie v York, as proof of the widespread nature of racism in Canada. In this paper, I re-read the trial decision and examine the original case file to show that the facts of King and the racism in the case are more complex than usually realized. King emerged out of a series of errors from both King and Barclay’s Motel which resulted …

Pardon And Parole In Prohibition-Era New York: Discretionary Justice In The Administrative State, Carolyn Strange

Osgoode Hall Law Journal

Historians of early-modern England and British colonies have productively applied Douglas Hay’s germinal study of mercy. In contrast, historians of the United States have overlooked the utility of the conceptual tools Hay provided to prize open the mitigation of punishment across time and place. In the decade that followed the First World War, disputes over the proper role of mercy and administrative discretion were as heated as they were in Hanoverian England. In Jazz Age New York, fears of gangsterism and concern over the apparent laxity of parole regulations put the proponents of Progressive penology on the defensive. This article …

When Wage Theft Was A Crime In Canada, 1935-1955: The Challenge Of Using The Master’S Tools Against The Master, Eric Tucker

Osgoode Hall Law Journal

In recent years the term “wage theft” has been widely used to describe the phenomenon of employers not paying their workers the wages they are owed. While the term has great normative weight, it is rarely accompanied by calls for employers literally to be prosecuted under the criminal law. However, it is a little known fact that in 1935, Canada enacted a criminal wage theft law, which remained on the books until 1955. This article provides an historical account of the wage theft law, including the role of the Royal Commission on Price Spreads, the legislative debates and amendments that …

Promises Of Law: The Unlawful Dispossession Of Japanese Canadians, Eric M. Adams, Jordan Stanger-Ross

Osgoode Hall Law Journal

This article is about the origins, betrayal, and litigation of a promise of law. In 1942, while it ordered the internment of over twenty-one thousand Canadians of Japanese descent, the Canadian government enacted orders in council authorizing the Custodian of Enemy Property to seize all real and personal property owned by Japanese Canadians living within coastal British Columbia. Demands from the Japanese-Canadian community and concern from within the corridors of government resulted in amendments to those orders stipulating that the Custodian held that property as a “protective” trust and would return it to Japanese Canadians at the conclusion of the …

Musings And Silences Of Chief Justice William Osgoode: Digest Marginalia About The Reception Of Imperial Law, G. Blaine Baker

Osgoode Hall Law Journal

This article focuses on musings and silences in the margins of Canadian Chief Justice William Osgoode’s late-eighteenth-century law library, to understand the role he assigned to Westminster-based imperial law in the transmission of British justice to the colonies. It concludes that this role was limited, mostly by Osgoode’s greater commitment of time and energy to legislative and executive branches of government than to the judiciary, and by his sometimes cavalier impatience with English courts and legal commentators.

The Brussels Peace Conference Of 1874 And The Modern Laws Of Belligerent Qualification, Tracey Leigh Dowdeswell

Osgoode Hall Law Journal

The Brussels Conference of 1874 was convened after the Franco-Prussian War (1870-71). At stake was not only the restoration of the fragile balance of power in Europe, but also the articulation of a new ideal of warfare and its role in the European state system. This article discusses the Conference in relation to the “new war” thesis put forth by Mary Kaldor in New and Old Wars (1999). It was at Brussels that the “old war” crystalized as a political ideal: war would be a tournament, fought by professional armies, organized by nation states; civilians who refrained from participation would …

Let The Facts Speak For Themselves: The Empiricist Origins Of The Right To Remain Silent, Randa Helfield

Osgoode Hall Law Journal

Historians have traced the right to silence to early canon law, the political conflicts of the sixteenth and seventeenth centuries, and even The Prisoner’s Counsel Act, which effectively silenced the accused by allowing his lawyer to speak for him. This article argues that changes in philosophical notions of truth best explain how, given the importance of the accused’s testimony at the altercation trial, her silence could ever have been tolerated and ultimately enforced as a right. By the mid-eighteenth century, the rise of empiricism had shifted the trial’s reliance on testimony to a preference for facts, which seemed more immediately …

The Hounds Of Empire: Forensic Dog Tracking In Britain And Its Colonies, 1888-1953, Binyamin Blum

Faculty Scholarship

No abstract provided.

The Bystander In The Bible, The Reverend Doctor John C. Lenz Jr.

Utah Law Review

In this study I have set out to investigate the stories that Jews and Christians have told for over two thousand years. Surveying the Biblical literature, I have looked for verses, passages and stories related to the issue of the bystander’s duty to act on behalf of the victim. The issue of a person’s duty to help someone in need and to be proactively engaged on behalf of the most vulnerable is everywhere present in both the Hebrew and Christian scriptures. The Biblical proscriptions are not just suggestions to “do the right thing” but divine ethical demands to action on …

Masking Neo-Liberal Development: Polanyi, Rule Of Law And Dis-Embedding Dynamics, Mark Findlay

Research Collection Yong Pung How School Of Law

Purpose: Polanyi in his analysis of market dis-embedding suggests a drift in economic relations from the social to the fictitious. The purpose of this paper is to add two crucial components to the dis-embedding dynamic: rule of law discourse as a market force away from the social, and through suspension of imagination and of disbelief, the incongruous compatibility of actual and fictional markets that further works against embedding.Design/methodology/approach: Theory building through the application and testing of the Polanyian market dis-embedding analysis is a central concern for the paper. Through the example of foreign direct investment (FDI) and the manner in …

The Changing View Of The “Bystander” In Holocaust Scholarship: Historical, Ethical, And Political Implications, Victoria J. Barnett

Utah Law Review

The role of “bystanders” has been a central theme in discussions about the ethical legacy of the Holocaust. In early Holocaust historiography, “bystander” was often used as a generalized catchall term designating passivity toward Nazi crimes. “Bystander behavior” became synonymous with passivity to the plight of others, including the failure to speak out against injustice and/or assist its victims. More recent scholarship has documented the extent to which local populations and institutions were actively complicit in Nazi crimes, participating in and benefitting from the persecution of Jewish citizens, not only in Germany but across Europe. This newer research has sparked …

International Military Tribunals’ Genesis, Wwii Experience, And Future Relevance, Henry Korn

Utah Law Review

Years after the prosecution of Nazi and Japanese war criminals, the United Nations created an International Criminal Tribunal as part of its commitment to bring to justice persons engaged in war crimes, as those crimes were defined during the WWII proceedings. Ultimately, specific tribunals, organized by the United Nations, were created to bring to justice war criminals. In 1993, a tribunal was formed to prosecute former Yugoslav officials and military personnel for atrocities committed during what is known as the Yugoslav wars. In 1994, a tribunal was formed to prosecute officials in Rwanda for evidence of ethnic genocides. There is …

Examining The Role Of Law Of War Training In International Criminal Accountability, Laurie R. Blank

Utah Law Review

Training and dissemination of the fundamental rules and principles of law of armed conflict (LOAC) is the first step in any process to ensure lawful military operations. A soldier, a military unit, an entire military must know the rules and parameters for appropriate, lawful and effective action during armed conflict. In the same manner, accountability for violations of LOAC — whether individual criminal accountability or state responsibility — is an equally essential tool for enforcing the law. Exploring the intersection between these two endpoints of the spectrum of LOAC implementation highlights how training and accountability can actually work together to …

No Justice Without Narratives:Transition, Justice And The Khmer Rouge Trials, Tallyn Gray Dr

Transitional Justice Review

The article addresses the relationship between the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the supposed constituents of that transitional justice institution. The article sets out to offer a sociological methodology that TJ mechanism could contemplate in the process of enabling victims/witnesses to narrate justice and transition in their own terms and using Cambodia as a case study. It offers a theoretical and methodological approach to be reflected upon by transitional justice scholars and practitioners, which may enable a more victim-centered attitude in practical interactions with atrocity survivors ( not a cure-all policy solution ). My own research …

Today's Porn: Not A Constitutional Right; Not A Human Right, Patrick Trueman

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Philosophical Legal Ethics: An Affectionate History, David Luban, W. Bradley Wendel

Georgetown Law Faculty Publications and Other Works

The modern subject of theoretical legal ethics began in the 1970s. This brief history distinguishes two waves of theoretical writing on legal ethics. The “First Wave” connects the subject to moral philosophy and focuses on conflicts between ordinary morality and lawyers’ role morality, while the “Second Wave” focuses instead on the role legal representation plays in maintaining and fostering a pluralist democracy. We trace the emergence of the First Wave to the larger social movements of the 1960s and 1970s; in the conclusion, we speculate about possible directions for a Third Wave of theoretical legal ethics, based in behavioral ethics, …

It Can't Wait: Exposing The Connections Between Forms Of Sexual Exploitation, Dawn Hawkins

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Shareholder Protection Across Time, Brian R. Cheffins, Steven A. Bank, Harwell Wells

Florida Law Review

This Article offers the first systematic attempt to measure the development of shareholder protection in the United States across time. Using three indices developed to measure the relative strength of shareholder protection across nations, this Article evaluates numerically the protections corporate and securities law have offered shareholders from the beginning of the 20th century to the present day. It accomplishes this by tracking the rights accorded to shareholders across time under three important sources of corporate law: Delaware and Illinois and the Model Business Corporation Act.

This Article’s novel study yields novel results. First, we find that the protections afforded …

The History Of Drug Control Laws: American Aspects, 9 J. Marshall J. Prac. & Proc. 46 (1975), Nicholas N. Kittrie

Nicholas Kittrie

No abstract provided.

Introduction To Legal History Symposium, John Bernard Corr

John (Bernie) Corr

No abstract provided.

Introduction To Legal History Symposium, John Bernard Corr

John (Bernie) Corr

No abstract provided.

Law In East Florida 1783-1821, M C. Mirow

M. C. Mirow

Using primary sources from the East Florida Papers, this article explores colonial legality in St. Augustine and the Province of East Florida during the second Spanish period from 1783 to 1821. In addition to discussing the promulgation of the Constitution of Cádiz and its effects, the article reaches into legal records dealing with civil and testamentary cases to explore and to describe aspects of private law in this North American Spanish colony. Economic and social relations are revealed in the sources that are rich in legal information concerning slavery, family, religion, trade, and landholding. The article concludes that the sources …

China's 'Corporatization Without Privatization' And The Late 19th Century Roots Of A Stubborn Path Dependency, Nicholas C. Howson

Law & Economics Working Papers

This Article analyzes the contemporary program of “corporatization without privatization” in the People’s Republic of China (PRC) directed at China’s traditional state-owned enterprises (SOEs) through a consideration of long ago precursor enterprise establishments—starting from the last Chinese imperial dynasty’s creation of “government promoted/supervised-merchant financed/operated” (guandu shangban) firms in the latter part of the nineteenth century. While analysts are tempted to see PRC corporations with listings on international exchanges that dominate the global economy and capital markets as expressions of “convergence,” this Article argues that such firms in fact show deeply embedded aspects of path dependency unique to the Chinese context …