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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.


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.


"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 ...


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 ...


Lincoln, Presidential Power, And The Rule Of Law, Daniel A. Farber 2018 Northwestern Pritzker School of Law

Lincoln, Presidential Power, And The Rule Of Law, Daniel A. Farber

Northwestern University Law Review

Every era has its unique challenges, but history may still offer lessons on how law empowers and restrains presidents. This Essay examines how President Lincoln negotiated the tension between crisis authority and the rule of law. This analysis requires an appreciation of the wartime imperatives, institutions, and political forces confronting Lincoln, as well as the legal framework in which he acted. Similar issues unexpectedly arose in our times in the aftermath of the 9/11 attacks, providing a new point of comparison with Lincoln’s era. We need to better understand how political actors and institutions, the media, and public ...


Amazing Facts About The Jfk Assassination, Donald E. Wilkes Jr. 2018 University of Georgia School of Law

Amazing Facts About The Jfk Assassination, Donald E. Wilkes Jr.

Popular Media

During the past half century, resourceful scholars, journalists and private researchers within the JFK assassination research community, to their enormous credit, repeatedly have uncovered relevant evidence unavailable or overlooked during the official investigations. The members of this research community are the persons who have been the most active in examining the millions of pages of previously secret government documents relating to the assassination that have been declassified and released to the public since 1992.

While many key factual questions about the JFK assassination remain answered, we now, in 2018, know more of the facts surrounding the assassination than ever before ...


Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, A.C. Pritchard, Robert B. Thompson 2018 University of Michigan

Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, A.C. Pritchard, Robert B. Thompson

Notre Dame Law Review

This Article analyzes the Supreme Court’s leading securities cases from 1962 to 1972—SEC v. Capital Gains Research Bureau, Inc.; J.I. Case Co. v. Borak; Mills v. Electric Auto-Lite Co.; Superintendent of Insurance v. Bankers Life & Casualty Co.; and Affiliated Ute of Utah v. United States—relying not just on the published opinions, but also the Justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws ...


The Canon Wars, Anita S. Krishnakumar, Victoria Nourse 2018 St. John's University School of Law

The Canon Wars, Anita S. Krishnakumar, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Canons are taking their turn down the academic runway in ways that no one would have foretold just a decade ago. Affection for canons of construction has taken center stage in recent Supreme Court cases and in constitutional theory. Harvard Dean John Manning and originalists Will Baude and Stephen Sachs have all suggested that principles of “ordinary interpretation” including canons should inform constitutional interpretation. Given this newfound enthusiasm for canons, and their convergence in both constitutional and statutory law, it is not surprising that we now have two competing book-length treatments of the canons—one by Justice Scalia and Bryan ...


Appearing Unbiased About Presidential War Powers, Jide Nzelibe 2018 University of St. Thomas, Minnesota

Appearing Unbiased About Presidential War Powers, Jide Nzelibe

University of St. Thomas Law Journal

No abstract provided.


Legislative Committee Systems: A Design Perspective, Chase Stoddard 2018 Indiana University Maurer School of Law

Legislative Committee Systems: A Design Perspective, Chase Stoddard

Indiana Journal of Constitutional Design

Committees are the defining characteristic of the modern legislature. While the centrality and study of party politics goes back further than committee politics, the focus on committee systems emerged over the course of the twentieth century, and legislatures could not function as we understand them without this mechanism. The United States Congressional committee system is the most studied system, yet virtually every country utilizes a committee system of some sort within its legislature. Despite their ubiquity in and centrality to the operations of legislatures, committees remain insufficiently studied, especially outside of the United States. The existing body of work tends ...


Cracking Down On Cages: Feminist And Prison Abolitionist Considerations For Litigating Solitary Confinement In Canada, Winnie Phillips-Osei 2018 Western University

Cracking Down On Cages: Feminist And Prison Abolitionist Considerations For Litigating Solitary Confinement In Canada, Winnie Phillips-Osei

Master of Laws Research Papers Repository

Guided by prison abolition ethic and intersectional feminism, my key argument is that Charter section 15 is the ideal means of eradicating solitary confinement and its adverse impact on women who are Aboriginal, racialized, mentally ill, or immigration detainees. I utilize a provincial superior court’s failing in exploring a discrimination analysis concerning Aboriginal women, to illustrate my key argument. However, because of the piecemeal fashion in which courts can effect developments in the law, the abolition of solitary confinement may very well occur through a series of ‘little wins’. In Chapter 11, I provide a constitutional analysis, arguing that ...


Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher W. Schmidt 2018 Chicago-Kent College of Law

Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher W. Schmidt

Washington and Lee Law Review Online

In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial ...


Roger Williams University School Of Law And The Women's Law Society Present Women In Robes 10-4-2018, Roger Williams University School of Law 2018 Roger Williams University

Roger Williams University School Of Law And The Women's Law Society Present Women In Robes 10-4-2018, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.


The Uncertain Status Of The Manifest Disregard Standard One Decade After Hall Street, Stuart M. Boyarsky 2018 Penn State Dickinson Law

The Uncertain Status Of The Manifest Disregard Standard One Decade After Hall Street, Stuart M. Boyarsky

Dickinson Law Review

The Federal Arbitration Act (FAA) enables parties to obtain quick and final resolution to disputes without incurring the costs, delays, and occasional publicity of litigation. Indeed, section 10 of the FAA enumerates four specific grounds on which courts may vacate arbitral awards: corruption, fraud, impartiality, and misconduct or incompetence. Yet over the past 60 years, a debate has raged over the existence of an additional ground: the arbitrator’s manifest disregard of the law.

The Supreme Court first enounced this standard in dicta in its 1953 decision in Wilko v. Swan. Over next four decades, every federal circuit court slowly ...


State Action And The Constitution's Middle Band, Louis Michael Seidman 2018 Georgetown University Law Center

State Action And The Constitution's Middle Band, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.

It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there ...


The Security Court, Matt Steilen 2018 University of Maryland Francis King Carey School of Law

The Security Court, Matt Steilen

Maryland Law Review Online

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 Constitution To The Constitution, Mary Sarah Bilder 2018 Boston College Law School

The Constitution To The Constitution, Mary Sarah Bilder

Boston College Law School Faculty Papers

An overview of the reasons that the 1787 Constitution lacked the historical and legal assumptions that underlie our contemporary idea of "The Constitution." Appropriate for constitutional law courses and American history courses at the university and secondary levels.

Excerpted from essay originally published in The New England Quarterly as "The Ordeal and the Constitution" and lightly edited for coherence.


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