Open Access. Powered by Scholars. Published by Universities.®

Legal History Commons

Open Access. Powered by Scholars. Published by Universities.®

8,027 Full-Text Articles 4,123 Authors 3,127,518 Downloads 163 Institutions

All Articles in Legal History

Faceted Search

8,027 full-text articles. Page 1 of 170.

Policing Narrative, Tal Kastner 2019 New York University Law School

Policing Narrative, Tal Kastner

SMU Law Review

Counter narrative, a story that calls attention to and rebuts the presumptions of a dominant narrative framework, functions as an essential tool to reshape the bounds of the law. It has the potential to shape the collective notion of what constitutes legal authority. Black Lives Matter offers a counter narrative that challenges the characterization of the shared public space, among other aspects of contemporary society, as the space of law. Using the concept of necropower—the mobilization and prioritization of the state’s power to kill—I analyze the contested physical and conceptual space of law exposed by the counter ...


Richard Posner: A Class Of One, Robert C. Farrell 2019 Quinnipiac University School of Law

Richard Posner: A Class Of One, Robert C. Farrell

SMU Law Review

Judge Richard Posner, best known for his contributions to the field of law and economics, has also made an outsized contribution to another area of the law—the equal protection class-of-one claim. By some combination of happenstance and design, Posner was able to shape the class-of-one doctrine even where his views were inconsistent with Supreme Court precedent. The Supreme Court’s initial exposition of the doctrine had identified an equal protection violation when there was intentionally different treatment of similarly situated persons without a rational basis for the difference in treatment. Posner insisted that this language included within it a ...


Second Redemption, Third Reconstruction, Richard A. Primus 2019 University of Michigan Law School

Second Redemption, Third Reconstruction, Richard A. Primus

Articles

In The Accumulation of Advantages, the picture that Professor Owen Fiss paints about equality during and since the Second Reconstruction is largely a picture in black and white. That makes some sense. The black/white experience is probably the most important throughline in the story of equal protection. It was the central theme of both the First and Second Reconstructions. In keeping with that orientation, the picture of disadvantage described by Fiss’s theory of cumulative responsibility is largely drawn from the black/white experience. Important as it is, however, the black/white experience does not exhaust the subject of ...


The Most Fundamental Right, Nicholas A. Robinson 2019 Elisabeth Haub School of Law at Pace University

The Most Fundamental Right, Nicholas A. Robinson

Pace Law Faculty Publications

The Magna Carta and successors recognize a right to the environment as central to human existence. Along with associated rule of law and due process, 193 national charters recognize such a right — but not the U.S. Constitution. This right does lie latent in America’s state constitutions, however, and can also be read into the federal document as well. Meanwhile, recognition of environmental rights is expanding globally.


Judging Well, Francis J. Mootz III 2019 University of the Pacific

Judging Well, Francis J. Mootz Iii

Washington University Jurisprudence Review

Can judges interpret the law in a manner that is objectively verifiable, or do judges necessarily – even if unconsciously – inject their own predispositions and biases into their decisions? It is difficult to decide whether such a question is frivolous in the post-Realist age, or whether it is the is the single most important question that we can ask about our legal system. I endorse both responses. The question, as phrased, is both vitally important and unanswerable on its own terms. Rather than seeking an elusive objective standard by which to measure the correctness of “a judgment,” I argue that we ...


Against Life Without Parole, Judith Lichtenberg 2019 Georgetown University

Against Life Without Parole, Judith Lichtenberg

Washington University Jurisprudence Review

We have many good reasons to abolish life without parole sentences (LWOP, known in some countries as whole life sentences) and no good reasons not to. After reviewing the current state of LWOP sentences in the United States, I argue that the only rationale for punishment that can hope to justify them is retributivism. But even if retributivism is a sound principle, it in no way entails life without parole. One reason is that unless one believes, like Kant, that appropriate punishments must be carried out whatever the circumstances, we must acknowledge that other considerations are relevant to determining punishments ...


Reconciling The Rule Of Law: Rights And Punishment, Benjamin L. Apt 2019 Washington University in St. Louis

Reconciling The Rule Of Law: Rights And Punishment, Benjamin L. Apt

Washington University Jurisprudence Review

There is an intractable paradox in the relation between rights and criminal punishment. Criminal punishment frequently conflicts with rights; people typically have identical rights within a legal system, yet the punished are unable to exercise the rights to the same extent as other people. But criminal punishment, in conjunction with criminal laws, also operates to protect rights. To clarify the tension between rights and punishment, I start by analyzing the content and purpose of rights. Next I discuss the nature of rules and the particular types of rules that make up a typical “systems of rules.” I then argue that ...


A Clash Of Principles: Personal Jurisdiction And Two-Level Utilitarianism In The Information Age, Wesley M. Bernhardt 2019 Washington University in St. Louis

A Clash Of Principles: Personal Jurisdiction And Two-Level Utilitarianism In The Information Age, Wesley M. Bernhardt

Washington University Jurisprudence Review

Utilitarianism provides the best analytic framework for “minimum contacts” analyses in multi-state mass tort litigation. Utilitarianism is a consequentialist ethical philosophy contending that one should act in a way that maximizes utility; that is, act in a way that maximizes pleasure and minimizes pain. This is often referred to as the “felicific calculus.”1 To maintain a civil lawsuit against a defendant, a court must have “personal jurisdiction” over that defendant, meaning that the defendant must have minimum contacts related to the suit such that maintenance of the suit does not offend traditional notions of fair play and substantial justice ...


Political Speech In The Armed Forces: Shouting Fire In A Crowded Cyberspace, Elliott Hughes 2019 Washington University in St. Louis

Political Speech In The Armed Forces: Shouting Fire In A Crowded Cyberspace, Elliott Hughes

Washington University Jurisprudence Review

A staple of the American version of democracy is civilian control of the military: we are uncomfortable with politicization of the Armed Forces, and military and other federal laws restrict the political expression of servicemembers (“SMs”) in the Armed Forces, whether they are active- duty members or National Guard or Reserves serving on active duty. These restrictions, while well-intentioned to prevent actual or apparent political partisanship or bias within the military, have the undesired effect of deterring SMs from otherwise healthy political expression. With the advent of the internet and proliferation of social media use, questions regarding SM status and ...


Ethnic Studies As Antisubordination Education: A Critical Race Theory Approach To Employment Discrimination Remedies, Theanne Liu 2019 Washington University School of Law, George Warren Brown School of Social Work

Ethnic Studies As Antisubordination Education: A Critical Race Theory Approach To Employment Discrimination Remedies, Theanne Liu

Washington University Jurisprudence Review

This Note will use a critical race theory lens to argue that most trainings on equal employment opportunity (“EEO”), diversity, or implicit bias operate as a restrictive remedy to Title VII race discrimination violations, and that incorporating an ethnic studies framework into these trainings can further an expansive view of antidiscrimination law. A restrictive view of antidiscrimination law treats discrimination as an individual instead of structural or societal wrong and looks to addressing future acts of discrimination instead of redressing past and present injustices. An expansive view of antidiscrimination law sees its objective as eradicating conditions of racial subordination. Ethnic ...


Finding Law, Stephen E. Sachs 2019 Duke Law School

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and ...


How The U.S. Supreme Court Deemed The Grand Bargain Adequate Without Defining Adequacy.Pdf, Michael C. Duff 2018 University of Wyoming College of Law

How The U.S. Supreme Court Deemed The Grand Bargain Adequate Without Defining Adequacy.Pdf, Michael C. Duff

Michael C Duff

During the second and third decades of the twentieth century, the U. S. Supreme Court issued a handful of opinions rejecting 14th Amendment constitutional challenges by employers to implementation of workers’ compensation statutes in the United States. Unknown to many, the statutes were largely the fruit of privately-sponsored investigations, principally by the Russell Sage Foundation and the National Association of Manufacturers, of European workers’ compensation systems during the first decade of the twentieth century. Some of those systems had been in existence since the 1870s and 1880s, and many employers preferred them to newly-emerging American employer liability statutes that retained ...


Gambling Under The Swastika: Casinos, Horse Racing, Lotteries, And Other Forms Of Betting In Nazi Germany, Robert M. Jarvis 2018 Nova Southeastern University - Shepard Broad College of Law

Gambling Under The Swastika: Casinos, Horse Racing, Lotteries, And Other Forms Of Betting In Nazi Germany, Robert M. Jarvis

Robert M. Jarvis

No abstract provided.


August 2017 - August 2018 Case Law On American Indians, Thomas P. Schlosser 2018 Seattle University School of Law

August 2017 - August 2018 Case Law On American Indians, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.


Rethinking The Federal Indian Status Test: A Look At The Supreme Court's Classification Of The Freedmen Of The Five Civilized Tribe Of Oklahoma, Clint Summers 2018 University of Tulsa College of Law

Rethinking The Federal Indian Status Test: A Look At The Supreme Court's Classification Of The Freedmen Of The Five Civilized Tribe Of Oklahoma, Clint Summers

American Indian Law Journal

No abstract provided.


Judicializing History: Mass Crimes Trials And The Historian As Expert Witness In West Germany, Cambodia, And Bangladesh, Rebecca Gidley, Mathew Turner 2018 Australian National University

Judicializing History: Mass Crimes Trials And The Historian As Expert Witness In West Germany, Cambodia, And Bangladesh, Rebecca Gidley, Mathew Turner

Genocide Studies and Prevention: An International Journal

Henry Rousso warned that the engagement of historians as expert witnesses in trials, particularly highly politicized proceedings of mass crimes, risks a judicialization of history. This article tests Rousso’s argument through analysis of three quite different case studies: the Frankfurt Auschwitz trial; the Extraordinary Chambers in the Courts of Cambodia; and the International Crimes Tribunal in Bangladesh. It argues that Rousso’s objections misrepresent the Frankfurt Auschwitz trial, while failing to account for the engagement of historical expertise in mass atrocity trials beyond Europe. Paradoxically, Rousso’s criticisms are less suited to the European context that represents his purview ...


"The Essential Characteristic": Enumerated Powers And The Bank Of The United States, Richard Primus 2018 University of Michigan Law School

"The Essential Characteristic": Enumerated Powers And The Bank Of The United States, Richard Primus

Michigan Law Review

The idea that Congress can legislate only on the basis of its enumerated powers is an orthodox proposition of constitutional law, one that is generally supposed to have been recognized as essential ever since the Founding. Conventional understandings of several episodes in constitutional history reinforce this proposition. But the reality of many of those events is more complicated. Consider the 1791 debate over creating the Bank of the United States, in which Madison famously argued against the Bank on enumerated-powers grounds. The conventional memory of the Bank episode reinforces the sense that the orthodox view of enumerated powers has been ...


Ethical Cannabis Lawyering In California, Francis J. Mootz III 2018 University of the Pacific

Ethical Cannabis Lawyering In California, Francis J. Mootz Iii

St. Mary's Journal on Legal Malpractice & Ethics

Cannabis has a long history in the United States. Originally, doctors and pharmacists used cannabis for a variety of purposes. After the Mexican Revolution led to widespread migration from Mexico to the United States, many Americans responded by associating this influx of foreigners with the use of cannabis, and thereby racializing and stigmatizing the drug. After the collapse of prohibition, the federal government repurposed its enormous enforcement bureaucracy to address the perceived problem of cannabis, despite the opposition of the American Medical Association to this new prohibition. Ultimately, both the states and the federal government classified cannabis as a dangerous ...


The War(S) On Christmas In The Law Books, Kurt X. Metzmeier 2018 University of Louisville Brandeis School of Law

The War(S) On Christmas In The Law Books, Kurt X. Metzmeier

Kurt X. Metzmeier

This piece takes a reference to a December 25, 1823, session of the Kentucky Senate as a starting point to discuss the legal history of Christmas in America and specifically Kentucky from the Puritan era when it was banned, to the early 1800s when it was officially ignored, to the late 19th century when it was raised to a legal holiday (and when many of the day's tradition were created).


Ike’S Constitutional Venturing: The Institutionalization Of The Cia, Covert Action, And American Interventionism, Jacob A. Bruggeman 2018 Miami University - Oxford

Ike’S Constitutional Venturing: The Institutionalization Of The Cia, Covert Action, And American Interventionism, Jacob A. Bruggeman

Grand Valley Journal of History

U.S. covert action from the 1950s onward was shaped, in part, by the success a CIA-orchestrated coup d'état in which the United States deposed the popular Iranian nationalist Mohammed Mossadegh. Ordered by president Eisenhower, the coup in Iran set the precedent for utilizing covert action as a means of achieving State goals. In so doing, President Eisenhower overturned the precedent set by his immediate predecessor, President Truman: that is, the precedent of using the CIA in its intended function, gathering and evaluating intelligence. The coup, then, is an exemplary case of venture constitutionalism. Eisenhower, in ordering the coup ...


Digital Commons powered by bepress