Legal History Commons^™

Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney

Faculty Publications

One of the major branches of the field of law and literature is often described as "law as literature." Scholars of law as literature examine the law using the tools of literary analysis. The scholarship in this subfield is dominated by the discussion of narrative texts: confessions, victim-impact statements, and, above all, the judicial opinion. This article will argue that we can use some of the same tools to help us understand non-narrative texts, such as law codes and statutes. Genres create expectations. We do not expect a law code to be literary. Indeed, we tend to dissociate the law …

Being Seen Like A State: How Americans (And Britons) Built The Constitutional Infrastructure Of A Developing Nation, Daniel J. Hulsebosch

William & Mary Law Review

This Article develops the argument that the Federal Constitution of 1787 was conceptualized, drafted, and put into operation not only for American citizens but also for foreign audiences. In a world without supranational governing institutions, a constitution—at least, the Federal Constitution—might serve to promote peaceable international relations based on reciprocal trade and open credit. That at least was the Enlightenment-inflected hope.

Did it work? If early Americans engaged in constitution-making in large part to demonstrate their capacity for self-government, selfdiscipline, and commercial openness to foreign audiences, did anyone notice? Or was it all, regardless of diplomatic purposes and consistent with …

Some Form Of Punishment: Penalizing Women For Abortion, Mary Ziegler

William & Mary Bill of Rights Journal

In 2016, Donald Trump ignited a political firestorm when he suggested that women should be punished for having abortions. Although he backtracked, Trump’s misstep launched a debate about whether women have been or should be punished for having abortions. At the same time, Trump’s comments revealed that punishing women has become far more than an abstraction. In 2016, Indiana resident Purvi Patel became just the most recent visible example when she was sentenced to twenty years for feticide and child neglect for inducing an abortion.

But in spite of the furor created by Trump’s comment and Patel’s conviction, the history …

The Supreme "Courts" Of The Roman Empire, C.G. Bateman

C.G. Bateman

Community Dignity Takings: Dehumanization And Infantilization Of Communities Resulting From The War On Drugs, Jamila Jefferson-Jones

Law Faculty Research Publications

No abstract provided.

The Dual Lives Of The Emerging Right To Democratic Governance, Gregory H. Fox, Brad R. Roth

Law Faculty Research Publications

No abstract provided.

Fail To Comment At Your Own Risk: Does Issue Exhaustion Have A Place In Judicial Review Of Rules?, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

The classic version of the exhaustion-of-remedies requirement generally requires a party to go through all the stages of an administrative adjudication before going to court. However, the doctrine has developed a new permutation, covering situations where a petitioner for judicial review did follow all the steps of the administrative appeals process, but had failed to raise in that process the issues now sought to be litigated in court. In those cases, which have been called “issue exhaustion” cases, the thwarted petitioner will likely be out of luck since normally there is no further opportunity to raise the issue at the …

The Uneasy History Of Experiential Education In U.S. Law Schools, Peter A. Joy

Dickinson Law Review (2017-Present)

This article explores the history of legal education, particularly the rise of experiential learning and its importance. In the early years of legal education in the United States, law schools devalued the development of practical skills in students, and many legal educators viewed practical experience in prospective faculty as a “taint.” This article begins with a brief history of these early years and how legal education subsequently evolved with greater involvement of the American Bar Association (ABA). With involvement of the ABA came a call for greater uniformity in legal education and guidelines to help law schools establish criteria for …

The Language Of Neutrality In Supreme Court Confirmation Hearings, Carolyn Shapiro

Dickinson Law Review (2017-Present)

At Justice Neil Gorsuch’s confirmation hearing, then-Judge Gorsuch repeatedly insisted that judging involves no more than examining the legal materials—like statutes and precedents— and applying them to the facts of the case. There is, he emphasized, no room for a Justice’s “personal views,” and he refused even to state his agreement (or disagreement) with such iconic cases as Loving v. Virginia and Griswold v. Connecticut. Instead, then Judge Gorsuch reiterated only that they were precedents of the Court and thus entitled to respect. Frustrating as his answers may have been to some senators, however, they differed from answers given …

It’S All Your Fault!: Examining The Defendant’S Use Of Ineffective Assistance Of Counsel As A Means Of Getting A “Second Bite At The Apple.”, Prentice L. White

Dickinson Law Review (2017-Present)

The United States Constitution provides individuals convicted of a crime with “a second bite at the apple.” The Sixth Amendment provides an avenue to appeal one’s conviction based on the claim of “ineffective assistance of counsel.” What were the Framers’ true intentions in using the phrase “effective assistance of counsel”? How does the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 affect habeas corpus appeals? This article answers these questions through the eyes of Thomas—a fictional character who is appealing his murder conviction.

This article first looks at the history surrounding effective assistance of counsel and discusses the difficulties …

Bankrupted Slaves, Rafael I. Pardo

Scholarship@WashULaw

Responsible societies reckon with the pernicious and ugly chapters in their histories. Wherever we look, there exist ever-present reminders of how we failed as a society in permitting the enslavement of millions of black men, women, and children during the first century of this nation’s history. No corner of society remains unstained. As such, it is incumbent on institutions to confront their involvement in this horrific past to fully comprehend the kaleidoscopic nature of institutional complicity in legitimating and entrenching slavery. Only by doing so can we properly continue the march of progress, finding ways to improve society, not letting …