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2019

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Articles 1 - 30 of 137

Full-Text Articles in Legal History

The Short History Of The Rule Of Law In The United States (1954-2016), Ryan Rowberry Jul 2019

The Short History Of The Rule Of Law In The United States (1954-2016), Ryan Rowberry

Ryan Rowberry

Many Americans and outside observers assume that the United States of America was founded upon a cluster of principles known as the "Rule of Law". Indeed, Articles I, II, and III of the United States Constitution of 1789, purportedly establish the rights and authorities of three co-equal branches of government: the legislative, executive, and judicial branches. Adherence to the Rule of Law in the United States, however, has a much shorter history. During the 18th, 19th and early 20th centuries, the President of the United States - leader of the executive branch - often ignored or contradicted decisions by the judiciary when ...


Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz Jul 2019

Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz

Arkansas Law Review

On July 10, 1832, President Andrew Jackson issued the most famous and controversial veto in United States history. The bill in question was “to modify and continue” the 1816 “act to incorporate the subscribers to the Bank of the United States. This was to recharter of the Second Bank of the United States whose constitutionality was famously upheld in McCulloch v. Maryland. The bill was passed by Congress and presented to Jackson on July 4. Six days later, Jackson vetoed the bill. Jackson’s veto mortally wounded the Second Bank, which would forever close its doors four years later at ...


Overruling Mcculloch?, Mark A. Graber Jul 2019

Overruling Mcculloch?, Mark A. Graber

Arkansas Law Review

Daniel Webster warned Whig associates in 1841 that the Supreme Court would likely declare unconstitutional the national bank bill that Henry Clay was pushing through the Congress. This claim was probably based on inside information. Webster was a close association of Justice Joseph Story. The justices at this time frequently leaked word to their political allies of judicial sentiments on the issues of the day. Even if Webster lacked first-hand knowledge of how the Taney Court would probably rule in a case raising the constitutionality of the national bank, the personnel on that tribunal provided strong grounds for Whig pessimism ...


M'Culloch In Context, Mark R. Killenbeck Jul 2019

M'Culloch In Context, Mark R. Killenbeck

Arkansas Law Review

M’Culloch v. Maryland is rightly regarded as a landmark opinion, one that affirmed the ability of Congress to exercise implied powers, articulated a rule of deference to Congressional judgments about whether given legislative actions were in fact “necessary,” and limited the ability of the states to impair or restrict the operations of the federal government. Most scholarly discussions of the case and its legacy emphasize these aspects of the decision. Less common are attempts to place M’Culloch within the ebb and flow of the Marshall Court and the political and social realities of the time. So, for example ...


The Confusing Language Of Mcculloch V. Maryland: Did Marshall Really Know What He Was Doing (Or Meant)?, Sanford Levinson Jul 2019

The Confusing Language Of Mcculloch V. Maryland: Did Marshall Really Know What He Was Doing (Or Meant)?, Sanford Levinson

Arkansas Law Review

All legal “interpretation” involves confrontation with inherently indeterminate language. I have distinguished in my own work between what I call the Constitution of Settlement and the Constitution of Conversation. The former includes those aspects of the Constitution that do indeed seem devoid of interpretive challenge, such as the unfortunate assignment of two senators to each state or the specification of the terms of office of representatives, senators, and presidents. I am quite happy to concede that “two,” “four,” and “six” have determinate meaning, though my concession is not based on a fancy theory of linguistics. It is, rather, a recognition ...


Mcculloch At 200, David S. Schwartz Jul 2019

Mcculloch At 200, David S. Schwartz

Arkansas Law Review

March 6, 2019 marked the 200th anniversary of the Supreme Court’s issuance of its decision in McCulloch v. Maryland, upholding the constitutionality of the Second Bank of the United States, the successor to Alexander Hamilton’s national bank. McCulloch v. Maryland involved a constitutional challenge by the Second Bank of the United States to a Maryland tax on the banknotes issued by the Bank’s Baltimore branch. The tax was probably designed to raise the Second Bank’s cost of issuing loans and thereby disadvantage it relative to Maryland’s own state-chartered banks. Marshall’s opinion famously rejected the ...


Belle La Follette’S Fight For Women’S Suffrage: Losing The Battle For Wisconsin, Winning The War For The Nation, Nancy C. Unger Jul 2019

Belle La Follette’S Fight For Women’S Suffrage: Losing The Battle For Wisconsin, Winning The War For The Nation, Nancy C. Unger

History

A century ago, on May 21, 1919, the US House of Representatives voted difinitively (304 to 89) in support of women’s suffrage. Two weeks later, Wisconsinite Belle La Follette sat in the visitors’ gallery of the US Senate chamber. She “shed a few tears” when it was announced that, by a vote of 56 to 25, the US Senate also approved the Nineteenth Amendment, sending it on to the states for ratification.1 For Belle La Follette, this thrilling victory was the culmination of a decades-long fight. Six days later, her happiness turned to elation when Wisconsin became the ...


Index To Butler Audio Recording Re The Impeachment Of Richard M. Nixon, John N. Jacob Jun 2019

Index To Butler Audio Recording Re The Impeachment Of Richard M. Nixon, John N. Jacob

Nixon Impeachment Audio Recording

No abstract provided.


The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis Jun 2019

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Alexander Tsesis

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court ...


The Declaration Of Independence As Introduction To The Constitution, Alexander Tsesis Jun 2019

The Declaration Of Independence As Introduction To The Constitution, Alexander Tsesis

Alexander Tsesis

No abstract provided.


Correspondence With The Chief Justice Of The Supreme Court Of The United States, Warren E. Burger, Lewis F. Powell, Jr. Jun 2019

Correspondence With The Chief Justice Of The Supreme Court Of The United States, Warren E. Burger, Lewis F. Powell, Jr.

Powell Correspondence

No abstract provided.


Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee Jun 2019

Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee

Faculty Scholarship at Penn Law

This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that ...


Texas Indian Holocaust And Survival: Mcallen Grace Brethren Church V. Salazar, Milo Colton Jun 2019

Texas Indian Holocaust And Survival: Mcallen Grace Brethren Church V. Salazar, Milo Colton

The Scholar: St. Mary's Law Review on Race and Social Justice

When the first Europeans entered the land that would one day be called Texas, they found a place that contained more Indian tribes than any other would-be American state at the time. At the turn of the twentieth century, the federal government documented that American Indians in Texas were nearly extinct, decreasing in number from 708 people in 1890 to 470 in 1900. A century later, the U.S. census recorded an explosion in the American Indian population living in Texas at 215,599 people. By 2010, that population jumped to 315,264 people.

Part One of this Article chronicles ...


'Race, Racism, And American Law': A Seminar From The Indigenous, Black, And Immigrant Legal Perspectives, Eduardo R.C. Capulong, Andrew King-Ries, Monte Mills Jun 2019

'Race, Racism, And American Law': A Seminar From The Indigenous, Black, And Immigrant Legal Perspectives, Eduardo R.C. Capulong, Andrew King-Ries, Monte Mills

The Scholar: St. Mary's Law Review on Race and Social Justice

Flagrant racism has characterized the Trump era from the onset. Beginning with the 2016 presidential campaign, Trump has inflamed long-festering racial wounds and unleashed White supremacist reaction to the nation’s first Black President, in the process destabilizing our sense of the nation’s racial progress and upending core principles of legality, equality, and justice. As law professors, we sought to rise to these challenges and prepare the next generation of lawyers to succeed in a different and more polarized future. Our shared commitment resulted in a new course, “Race, Racism, and American Law,” in which we sought to explore ...


Rwu Law News: The E-Newsletter Of Roger Williams University School Of Law (June 2019), Roger Williams University School Of Law Jun 2019

Rwu Law News: The E-Newsletter Of Roger Williams University School Of Law (June 2019), Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Nathan Roscoe Pound And The Nazis, Peter Rees May 2019

Nathan Roscoe Pound And The Nazis, Peter Rees

Boston College Law Review

When Roscoe Pound, Dean of Harvard Law School, accepted an honorary degree from a leading German university in 1934, it was interpreted as a gesture of support for the Nazi Party. Was this a naïve misstep, or something more sinister? This Article addresses that question. It highlights previously unknown encounters between Pound and senior Nazi figures at the time, and an unusual relationship between Pound and a suspected Nazi agent that lasted throughout the Second World War, and beyond. These revelations necessarily bring into question Pound’s personal ethics and his professional responsibilities as a lawyer.


Easy Money, Elite Anxiety And Rome's First Anti-Gambling Law, Suzanne B. Faris Phd May 2019

Easy Money, Elite Anxiety And Rome's First Anti-Gambling Law, Suzanne B. Faris Phd

International Conference on Gambling & Risk Taking

No abstract provided.


Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps May 2019

Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps

Jessica Owley

This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to “public” monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved—which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an ...


The Security Court, Matthew J. Steilen May 2019

The Security Court, Matthew J. Steilen

Matthew Steilen

The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security ...


The Hydraulic Dimension Of Reconstruction In Louisiana, 1863-1879, Matthew P. Carlin May 2019

The Hydraulic Dimension Of Reconstruction In Louisiana, 1863-1879, Matthew P. Carlin

University of New Orleans Theses and Dissertations

Louisiana developed an extensive system of levees throughout the Atchafalaya Basin and along its territorial Mississippi River. This system reached its zenith on the eve of the American Civil War. It went into dramatic decline following the conflict due to the confluence of military activity, protracted irregular warfare, and neglect stemming from labor and capital revolution. These shifts intensified with the 1863 Emancipation Proclamation and finally consolidated after the ratification of Louisiana’s Constitution of 1879. The shift of responsibility for the construction and maintenance of levees during the Reconstruction Era led to many significant changes in the character and ...


A Century In The Making: The Glorious Revolution, The American Revolution, And The Origins Of The U.S. Constitution’S Eighth Amendment, John D. Bessler May 2019

A Century In The Making: The Glorious Revolution, The American Revolution, And The Origins Of The U.S. Constitution’S Eighth Amendment, John D. Bessler

William & Mary Bill of Rights Journal

The sixteen words in the U.S. Constitution’s Eighth Amendment have their roots in England’s Glorious Revolution of 1688–89. This Article traces the historical events that initially gave rise to the prohibitions against excessive bail, excessive fines, and cruel and unusual punishments. Those three proscriptions can be found in the English Declaration of Rights and in its statutory counterpart, the English Bill of Rights. In particular, the Article describes the legal cases and draconian punishments during the Stuart dynasty that led English and Scottish parliamentarians to insist on protections against cruelty and excessive governmental actions. In describing ...


The Amazing Dorothy Crockett: How An African-American Woman From Providence Became, In 1932, The 7th Woman Ever Admitted To The Rhode Island Bar 05-14-2019, Michael M. Bowden May 2019

The Amazing Dorothy Crockett: How An African-American Woman From Providence Became, In 1932, The 7th Woman Ever Admitted To The Rhode Island Bar 05-14-2019, Michael M. Bowden

RWU Law

No abstract provided.


Conditionality And Constitutional Change, Felix B. Chang May 2019

Conditionality And Constitutional Change, Felix B. Chang

Faculty Articles and Other Publications

The burgeoning field of Critical Romani Studies explores the persistent subjugation of Europe’s largest minority, the Roma. Within this field, it has become fashionable to draw parallels to the U.S. Civil Rights Movement. Yet the comparisons are often one-sided; lessons tend to flow from Civil Rights to Roma Rights more than the other way around. It is an all-too-common hagiography of Civil Rights, where our history becomes a blueprint for other movements for racial equality.

To correct this trend, this Essay reveals what American scholars can learn from Roma Rights. Specifically, this Essay argues that the European Union ...


An Evolutionary Theory Of Administrative Law, Karrigan S. Bork May 2019

An Evolutionary Theory Of Administrative Law, Karrigan S. Bork

SMU Law Review

Law evolves to accommodate change—this is axiomatic in most academic legal traditions. But in the era of the administrative state, with congressional gridlock and a judiciary hesitant to address policy questions, evolution of statutory law has become much more difficult. This leads to pent up demand for change in legal regimes. If the legislature and the courts cannot provide an outlet for this pressure, where does it go? How does the law continue to change? Although other scholars have looked to agencies as engines of legal change, we lack a theoretical framework to understand how that change happens. I ...


John Reed's Advertisement, Pamela G. Smith May 2019

John Reed's Advertisement, Pamela G. Smith

Pamela G. Smith

No abstract provided.


John Reed: Dickinson Law's Founder, Pamela G. Smith May 2019

John Reed: Dickinson Law's Founder, Pamela G. Smith

Pamela G. Smith

No abstract provided.


Dickinson Law Approved By American Bar Association, Pamela G. Smith May 2019

Dickinson Law Approved By American Bar Association, Pamela G. Smith

Pamela G. Smith

No abstract provided.


Burton R. Laub: Dickinson Law's Fourth Dean, Pamela G. Smith May 2019

Burton R. Laub: Dickinson Law's Fourth Dean, Pamela G. Smith

Pamela G. Smith

No abstract provided.


Law Library Blog (May 2019): Legal Beagle's Blog Archive, Roger Williams University School Of Law May 2019

Law Library Blog (May 2019): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.


Rwu Law: The Magazine Of Roger Williams University School Of Law (Issue 10, 25th Anniversary Issue) (May 2019), Roger Williams University School Of Law May 2019

Rwu Law: The Magazine Of Roger Williams University School Of Law (Issue 10, 25th Anniversary Issue) (May 2019), Roger Williams University School Of Law

RWU Law

No abstract provided.