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Legal History

2010

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Articles 1 - 30 of 33

Full-Text Articles in Legal History

Financing Innovation: Infrastructure Development In New Haven, 1750-1850, Thomas P. Schmidt Dec 2010

Financing Innovation: Infrastructure Development In New Haven, 1750-1850, Thomas P. Schmidt

Student Legal History Papers

The nineteenth century was a time of astonishing change in technologies of transportation. When the Constitution was ratified, to travel from New Haven to Hartford would require an arduous and uncertain trip on a rough road that could span more than a day. At the start of the twentieth century, railroads conveyed thousands of people daily along that route in a few hours, and the first automobiles were motoring over roads. The great progress in infrastructure development radically transformed the commercial, physical, and cultural landscape of America.

This transformation required great mobilizations of capital and human labor, which, in turn ...


A Sword And A Shield: The Uses Of Law In The Bush Administration, Mary L. Dudziak Oct 2010

A Sword And A Shield: The Uses Of Law In The Bush Administration, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

The Bush administration has been criticized for departures from the rule of law, but within the administration law was not ignored. Instead it was seen variously as a tool and as a potential threat to the operation of the executive branch. Two narratives compete for attention. In an era when the legality of torture was openly debated, the deployment of law in wartime seemed the most immediate issue. At the same time, however, a decades-long conservative movement to change American law was both significantly furthered and complicated, as Supreme Court appointments moved the Court to the right, but the lack ...


Unlimited War And Social Change: Unpacking The Cold War's Impact, Mary L. Dudziak Sep 2010

Unlimited War And Social Change: Unpacking The Cold War's Impact, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This paper is a draft chapter of a short book critically examining the way assumptions about the temporality of war inform American legal and political thought. In earlier work, I show that a set of ideas about time are a feature of the way we think about war. Historical progression is thought to consist in movement from one kind of time to another (from wartime to peacetime, to wartime, etc.). Wartime is thought of as an exception to normal life, inevitably followed by peacetime. Scholars who study the impact of war on American law and politics tend to work within ...


Kate Chase, The "Sphere Of Women's Work," And Her Influence Upon Her Father's Dissent In Bradwell V. Illinois, Richard Aynes Aug 2010

Kate Chase, The "Sphere Of Women's Work," And Her Influence Upon Her Father's Dissent In Bradwell V. Illinois, Richard Aynes

Akron Law Publications

Kate Chase was said to be the most beautiful and the most intelligent woman of her age. Her father, Salmon P. Chase, is remembered today as Lincoln’s secretary of the treasury and as a chief judge of the U. S. Supreme Court. In his own time, Chase was considered one of the nation’s political giants; Abraham Lincoln described him as “one and a half times bigger than any other man” he had ever known. Carl Schurz’s summary still echoes today: “More than anyone else he looked the great man. Tall, broad-shouldered, and proudly erect, . . . he was a ...


Kate Chase, The "Sphere Of Women's Work," And Her Influence Upon Her Father's Dissent In Bradwell V. Illinois, Richard Aynes Aug 2010

Kate Chase, The "Sphere Of Women's Work," And Her Influence Upon Her Father's Dissent In Bradwell V. Illinois, Richard Aynes

Richard L. Aynes

Kate Chase was said to be the most beautiful and the most intelligent woman of her age. Her father, Salmon P. Chase, is remembered today as Lincoln’s secretary of the treasury and as a chief judge of the U. S. Supreme Court. In his own time, Chase was considered one of the nation’s political giants; Abraham Lincoln described him as “one and a half times bigger than any other man” he had ever known. Carl Schurz’s summary still echoes today: “More than anyone else he looked the great man. Tall, broad-shouldered, and proudly erect, . . . he was a ...


Coasean Markets, Herbert J. Hovenkamp Aug 2010

Coasean Markets, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Coase’s work emphasized the economic importance of very small markets and made a new, more marginalist form of economic “institutionalism” acceptable within mainstream economics. A Coasean market is an association of persons with competing claims on a legal entitlement that can be traded. The boundaries of both Coasean markets and Coasean firms are determined by measuring not only the costs of bargaining but also the absolute costs of moving resources from one place to another. The boundaries of a Coasean market, just as those of the Coasean business firm, are defined by the line where the marginal cost of ...


Brief Of Amicus Curiae Wesley Macneil Oliver In Support Of The Petition For Writ Of Certiorari, Wesley Oliver Jul 2010

Brief Of Amicus Curiae Wesley Macneil Oliver In Support Of The Petition For Writ Of Certiorari, Wesley Oliver

Wesley M Oliver

The United States Court of Appeals for the Ninth Circuit recently held that a lawsuit could proceed against John Ashcroft in his individual capacity for the way he detained material witnesses after the Terror of September 11, 2001. Ashcroft allegedly used those he believed to be terrorist suspects as material witnesses when he lacked adequate suspicion to bring formal charges. All of these “witnesses” otherwise qualified for detention under the federal material witness detention statute. The Ninth Circuit concluded that this “pretextual” use of the material witness detention statute clearly violated the Fourth Amendment as it circumvented the probable cause ...


Just Say No: Birth Control In The Connecticut Supreme Court Before Griswold V. Connecticut, Mary L. Dudziak Jul 2010

Just Say No: Birth Control In The Connecticut Supreme Court Before Griswold V. Connecticut, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This essay examines the right to use birth control in Connecticut before Griswold v. Connecticut (1965). It is often assumed that the Connecticut birth control ban was not enforced, and consequently did not affect access to birth control in the state. Accordingly, the cases challenging the state statute have been viewed as not real cases or controversies deserving of court attention. This essay demonstrates that this view is erroneous. Connecticut law was enforced against the personnel of birth control clinics for aiding and abetting the use of contraceptives. Enforcement of the statute against those working in clinics kept birth control ...


The Case Of "Death For A Dollar Ninety-Five": Miscarriages Of Justice And Constructions Of American Identity, Mary L. Dudziak May 2010

The Case Of "Death For A Dollar Ninety-Five": Miscarriages Of Justice And Constructions Of American Identity, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This is a story about a case long forgotten. It was a case that needed to be forgotten, to safeguard the meaning of American justice. The case of “Death for a Dollar Ninety-Five” began one July night in Marion, Alabama, in 1957, and soon captured the attention of the world. It involved an African American man, a white woman, and the robbery of a small amount of change late in the evening. The conviction was swift and the penalty was death. International criticism soon rained down on the Alabama Governor and the American Secretary of State, leading to clemency and ...


Gender And Justice: The Experience Of Female Lawyers In Indiananapolis, Jessica Louise Nelson May 2010

Gender And Justice: The Experience Of Female Lawyers In Indiananapolis, Jessica Louise Nelson

Undergraduate Honors Thesis Collection

"Gentleman M.B". is recorded in United States history as far back as 1638, and was a successful landowner, local leader, and attorney to the governor. What is not translated is that this gentleman was, in fact, a woman: Margaret Brent was the first known female attorney, and would be the only one allowed entrance to the Bar for more than 200 years. Even though centuries later, in 1869, Myra Bradwell (Illinois), Mary Magoon (Iowa) and Belle Mansfield (Iowa) gained access to the legal community, women remained an outcast minority until very recently. A mere two percent of the profession ...


Book Review (Paul Frymer's Black And Blue: African Americans, The Labor Movement, And The Decline Of The Democratic Party)., Sophia Z. Lee May 2010

Book Review (Paul Frymer's Black And Blue: African Americans, The Labor Movement, And The Decline Of The Democratic Party)., Sophia Z. Lee

Faculty Scholarship at Penn Law

No abstract provided.


James Wilson And The Scottish Enlightenment, William Ewald Apr 2010

James Wilson And The Scottish Enlightenment, William Ewald

Faculty Scholarship at Penn Law

No abstract provided.


Comparative Studies Of Law, Slavery And Race In The Americas, Alejandro De La Fuente, Ariela J. Gross Feb 2010

Comparative Studies Of Law, Slavery And Race In The Americas, Alejandro De La Fuente, Ariela J. Gross

University of Southern California Legal Studies Working Paper Series

This critical essay surveys the historical research comparing U.S. and Latin American law and slavery. An earlier generation of comparative work on race and slavery, by Frank Tannenbaum and others, drew heavily on law to draw sharp contrasts between U.S. and Latin American slavery, emphasizing the relative harshness of U.S. slave law. Revisionist social historians criticized Tannenbaum for providing a misleading top-down history based on metropolitan codes, and pointed to demographic and economic factors to explain variations in slavery regimes. More recently, legal historians have begun to explore law “from the bottom up” -- slaves’ claims in court ...


Is Tax Law Culturally Specific? Lessons From The History Of Income Tax Law In Mandatory Palestine, Assaf Likhovski Jan 2010

Is Tax Law Culturally Specific? Lessons From The History Of Income Tax Law In Mandatory Palestine, Assaf Likhovski

Assaf Likhovski

Tax law is a technical area of law which does not seem to be culturally specific. It is thus seen as easily transferable between different societies and cultures. However, tax law is also based on definitions and notions which are not universal (the private sphere, the family, the gift etc.). So, is tax law universal or particular? Is it indeed easily transferable between different societies? And in what ways does tax law reflect ethnic or cultural rather than economic differences? This Article seeks to answer these questions by analyzing one specific example — the history of income tax legislation in Mandatory ...


Кризисный Период Развития Отечественного Юридического Образования (1917-1920 Г.Г.), Leonid G. Berlyavskiy Jan 2010

Кризисный Период Развития Отечественного Юридического Образования (1917-1920 Г.Г.), Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

In 1917-1920 Sovnarkom and Narkompros of the RSFSR have accepted the whole complex of the statutory acts directed on abolition of the Law faculties and simultaneously establishment of the new state high schools and scientific institutions network, under control to the power. The Socialist Academy of Social Studies has been founded as a counterbalance to the project of the Institute of Social Sciences developed within the limits of the Academy of Sciences for social studies, including, jurisprudence, began to be considered as the sphere of the Party apparatus priority interests


Constructing The Constitutional Canon: The Metonymic Evolution Of Federalist 10, Ian C. Bartrum Jan 2010

Constructing The Constitutional Canon: The Metonymic Evolution Of Federalist 10, Ian C. Bartrum

Ian C Bartrum

This paper is part of larger symposium convened for the 2010 AALS annual meeting. In it I adapt some of my earlier constitutional theoretical work to engage the topic of that symposium: the so-called “interpretation/construction distinction”. I make two related criticisms of the distinction: (1) it relies on a flawed conception of linguistic meaning, and (2) while these flaws may be harmless in the “easy” cases of interpretation, they are much more problematic in the difficult cases of most concern. Thus, I doubt the ultimate utility of the distinction as part of a “true and correct” model of constitutional ...


The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum Jan 2010

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum

Ian C Bartrum

This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. I examine the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. I contend that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of arguments that ...


The Right To Arms In The Living Constitution, David B. Kopel Jan 2010

The Right To Arms In The Living Constitution, David B. Kopel

David B Kopel

This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.

"Living constitutionalism" should be distinguished from "dead constitutionalism." Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect ...


State Court Standards Of Review For The Right To Keep And Bear Arms, David B. Kopel, Clayton Cramer Jan 2010

State Court Standards Of Review For The Right To Keep And Bear Arms, David B. Kopel, Clayton Cramer

David B Kopel

Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means. Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms). Even when formally applying "reasonableness," many courts have used reasonableness as a ...


The Keystone Of The Second Amendment: Quakers, The Pennsylvania Constitution, And The Questionable Scholarship Of Nathan Kozuskanich, David B. Kopel, Clayton Cramer Jan 2010

The Keystone Of The Second Amendment: Quakers, The Pennsylvania Constitution, And The Questionable Scholarship Of Nathan Kozuskanich, David B. Kopel, Clayton Cramer

David B Kopel

Historian Nathan Kozuskanich claims that the Second Amendment-like the arms provision of the 1776 Pennsylvania Constitution-is only a guarantee of a right of individuals to participate in the militia, in defense of the polity. Kozuskanich’s claim about the Second Amendment is based on two articles he wrote about the original public meaning of the right to arms in Pennsylvania, including the 1776 and 1790 Pennsylvania constitutional arms guarantees.

Part I of this Article provides a straightforward legal history of the right to arms provisions in the 1776 Pennsylvania Constitution and of the 1790 Pennsylvania Constitution. We examine Kozuskanich’s ...


Commerce In The Commerce Clause: A Response To Jack Balkin, David B. Kopel, Robert G. Natelson Jan 2010

Commerce In The Commerce Clause: A Response To Jack Balkin, David B. Kopel, Robert G. Natelson

David B Kopel

The Constitution’s original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island’s ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin’s article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution’s Commerce Clause a scope that virtually no one in the Founding Era believed it had.


Antonio Joaquín Pérez Martínez Y La Independencia En Puebla (1810-1821), Alejandro G. Escobedo Rojas, Juan Pablo Salazar Andreu Jan 2010

Antonio Joaquín Pérez Martínez Y La Independencia En Puebla (1810-1821), Alejandro G. Escobedo Rojas, Juan Pablo Salazar Andreu

Alejandro G Escobedo Rojas

No abstract provided.


Los Recursos De Casación Y Denegada Casación En Puebla, Alejandro G. Escobedo Rojas, Juan Pablo Salazar Andreu Jan 2010

Los Recursos De Casación Y Denegada Casación En Puebla, Alejandro G. Escobedo Rojas, Juan Pablo Salazar Andreu

Alejandro G Escobedo Rojas

No abstract provided.


El Seminario Palafoxiano De La Puebla De Los Ángeles. Su Mundo Jurídico En Los Albores Del Siglo Xix, Alejandro G. Escobedo Rojas Jan 2010

El Seminario Palafoxiano De La Puebla De Los Ángeles. Su Mundo Jurídico En Los Albores Del Siglo Xix, Alejandro G. Escobedo Rojas

Alejandro G Escobedo Rojas

No abstract provided.


A Fractured Establishment's Responses To Social Movement Agitation: The U.S. Supreme Court And The Negotiation Of An Outsider Point Of Entry In Walker V. City Of Birmingham, Carlo A. Pedrioli Jan 2010

A Fractured Establishment's Responses To Social Movement Agitation: The U.S. Supreme Court And The Negotiation Of An Outsider Point Of Entry In Walker V. City Of Birmingham, Carlo A. Pedrioli

Carlo A. Pedrioli

In classical social movement theory, scholars have identified the advocates of change as elements of agitation and the establishment as the entity that responds in an attempt to control the agitators. This classical approach has assumed that the establishment is a generally monolithic entity that responds in a unified manner to the efforts of the advocates of change.

While this approach may accurately characterize some rhetorical situations, it does not necessarily have to characterize all such situations. For example, one could describe the judiciary as a part of the establishment because judges are well-connected and powerful individuals who, in many ...


Charles Sumner: History's Misunderstood Idealist, Chad G. Marzen Jan 2010

Charles Sumner: History's Misunderstood Idealist, Chad G. Marzen

Chad G. Marzen

Few historical figures in the history of the United States have received such contrasting treatment by historians and scholars than Senator Charles Sumner. One view of Sumner mainly focuses on Sumner as a “Cardboard Yankee,” a figure who was arrogantly too tied to principle and was someone who seldom tried to understand others, was lacking in humor, was a pedant, lacked the judgment and self-control to be effective in settling disputes, and was unable to compromise.

A more recent “revised” interpretation of Sumner contends Sumner was driven into reform movements and politics for two reasons: first, that Sumner believed the ...


Race Treason: The Untold Story Of America's Ban On Polygamy, Martha M. Ertman Jan 2010

Race Treason: The Untold Story Of America's Ban On Polygamy, Martha M. Ertman

Martha M. Ertman

Legal doctrines banning polygamy grew out of nineteenth century Americans’ view that Mormons betrayed the nation by engaging in conduct associated with people of color. This article reveals the racial underpinnings of polygamy law by examining cartoons and other antipolygamy rhetoric of the time to demonstrate Sir Henry Maine’s famous observation that the move in progressive societies is “from status to contract.” It frames antipolygamists’ contentions as a visceral defense of racial and sexual status in the face of encroaching contractual thinking. Polygamy, they reasoned, was “natural” for people of color but so “unnatural” for whites as to produce ...


Exposing The Contradiction: An Originalist's Approach To Understanding Why Substantive Due Process Is A Constitutional Misinterpretation, Jason A. Crook Jan 2010

Exposing The Contradiction: An Originalist's Approach To Understanding Why Substantive Due Process Is A Constitutional Misinterpretation, Jason A. Crook

Nevada Law Journal

Few phrases in American jurisprudence have created more of a stir or inspired greater controversy than the seventeen words that comprise the due process clause of the Fourteenth Amendment. Drafted by the Reconstruction Congress in the aftermath of the Civil War, these words have been used to strike down maximum-hours legislation, permit the instruction of foreign languages in schools, and even establish the right of minors to purchase contraceptives. In light of its linguistic incongruity and the versatility of its judicial precedents, one could fairly state that the meaning of the Fourteenth Amendment's due process clause has been the ...


The Law Of Vertical Integration And The Business Firm: 1880-1960, Herbert J. Hovenkamp Jan 2010

The Law Of Vertical Integration And The Business Firm: 1880-1960, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Vertical integration occurs when a firm does something for itself that it could otherwise procure on the market. For example, a manufacturer that opens its own stores is said to be vertically integrated into distribution. One irony of history is that both classical political economy and neoclassicism saw vertical integration and vertical contractual arrangements as much less threatening to competition than cartels or other horizontal arrangements. Nevertheless, vertical integration has produced by far the greater amount of legislation at both federal and state levels and has motivated many more political action groups. Two things explain this phenomenon. First, while economists ...


Race, Sex, And Rulemaking: Administrative Constitutionalism And The Workplace, 1960 To The Present, Sophia Z. Lee Jan 2010

Race, Sex, And Rulemaking: Administrative Constitutionalism And The Workplace, 1960 To The Present, Sophia Z. Lee

Faculty Scholarship at Penn Law

No abstract provided.