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History And Constitutional Interpretation: What’S Really “There”?, Thomas C. Galligan Jr.

The University of New Hampshire Law Review

In recent years, under the moniker originalism, the United States Supreme Court has relied heavily upon history to delineate the scope and contour of various constitutional rights.[1] The Court’s justification for that approach is that defining the meaning of the Constitution according to its original or historical meaning limits a judge from engaging in unbridled discretion when deciding a case. The Court’s focus on history continued in its 2023 term. Justice Breyer has called the history-heavy analytical approach a “rigid history-only approach.”

For a number of reasons, the history-only approach is flawed and does not, in fact, limit judicial …

The Founders’ Common Law And Bruen’S Text, History, And Tradition Test: From History ‘Lite’ To History Right, Saul Cornell

Buffalo Law Review

No abstract provided.

Physicists As Environmental Experts, Rachel Rothschild

DePaul Law Review

No abstract provided.

The Absurd Ballet Of American Indian Policy Or American Indian Struggling With Ape On Tropical Landscape: An Afterword, Rennard Strickland

Maine Law Review

On a recent visit to the National Gallery of Art in Washington, D. C., I was particularly struck by a painting that I encountered. Quite accidentally I came upon an Henri Rousseau primitive painting of a tropical landscape, in which, amidst abundant, lush foliage, was a tiny American Indian wrestling a giant ape. The plate identifying the work read: “‘Tropical Landscape: An American Indian Struggling With An Ape,’ Henri Rousseau, 1910." At that moment it occurred to me that this artist had captured an essential theme underlying the history of American Indian law and policy. This essay reflects upon and …

Humanist Copyright, Jane C. Ginsburg

Faculty Scholarship

This exploration of the role of authorship in copyright law proceeds in three parts: historical, doctrinal, and predictive. First, I will review the development of author-focused property rights in the pre-copyright regimes of printing privileges and in early Anglo-American copyright law through the 1909 U.S. Copyright Act. Second, I will analyze the extent to which the present U.S. copyright law does (and does not) honor human authorship. Finally, I will consider the potential responses of copyright law to the claims of proprietary rights in AI-generated outputs. I will explain why the humanist orientation of U.S. copyright law validates the position …

Some Realism About Originalism, William J. Novak

Michigan Law Review

A review of Memory and Authority: The Uses of History in Constitutional Interpretation. By Jack M. Balkin.

Mary Jane Mossman’S Quiet Rebels: A History Of Ontario Women Lawyers (Waterloo: Wilfrid Laurier University Press, 2024), Patricia Mcmahon

Journal of Law and Social Policy

ON AN APRIL EVENING IN 1927, a group of thirty-seven women came together for dinner in Toronto at the King Edward Hotel for the annual meeting of the Women’s Law Association of Ontario (WLAO). That night, they celebrated the 30th anniversary of Clara Brett Martin’s call to the bar and the 60th anniversary of Confederation.

The "Principles Of Equity" In Dewberry, Andres Sawicki

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Silver Tsunami Or Silver Rush? Extracting Value From Elders, Andrew Milne

Suffolk University Law School Faculty Works

I examine how the United States finances elder care, arguing that the legal processes structuring elder care tend to widen economic inequality and divide the interests of lower-income people against each other along generational, gendered, and racialized lines. I begin with two case narratives drawn from my practice experience as a poverty lawyer for older adults. One narrative involves an elder homeowner, while the other involves an elder renter. Both face crises of unmet care needs, the threat of homelessness, and ultimately the outcome that many older people dread most: institutionalization in a nursing home. I use these narratives as …

Book Review: Reclaiming Anishinaabe Law: Kinamaadiwin Inaakonigewin And The Treaty Right To Education By Leo Baskatawang, Karen Drake

Articles & Book Chapters

No abstract provided.

The Meaning Of Life, In Michigan: Mercy From Life Sentences Under The State Constitution, Molly Bernstein, David Shapiro

JCLC Online

Properly understood, the “cruel or unusual” punishment clause of the Michigan Constitution grants every person sentenced to life in prison a meaningful right to obtain release through rehabilitation. Today, however, Michigan has among the nation’s largest populations of people serving both formal and de facto life sentences without any meaningful possibility of release.

In 1850, Michigan revised its state constitution to prohibit “cruel or unusual punishment,” creating a contrast with the conjunctive “cruel and unusual punishments” clause of the federal Eighth Amendment. This disjunctive prohibition, which subsequent Michigan constitutional conventions retained, prohibits both “cruel” sentences and “unusual” sentences. We argue …

Musical Chairs: Vertical Antitrust Should Prevail Over Congressional Payola Prohibitions To Protect Musicians, Maria Stevenson

The University of Chicago Business Law Review

The music industry is highly concentrated at multiple stages along the production chain between the Big Three music group conglomerates (Universal, Sony, and Warner) and the three largest streaming services (Spotify, Apple, and YouTube). The Big Three and the streaming services have extensive vertical arrangements, from the Big Three having ownership stakes in the largest streaming services to their contracts for the streaming services’ algorithms to prioritize Big Three artists. This resembles historical radio era payola arrangements. This double layer of market concentration and the arrangements between music production and distribution primarily harm musicians, who lack the bargaining power to …

Historical Perspectives On Family Law: An Annotated Bibliography, Allen Roston

Faculty Works

This bibliography lists articles and books that provide historical perspectives on major aspects of family law. It focuses on legal history, but it includes some works that look at family relationships and issues through the broader lenses of social history, cultural history, or other historical approaches.

The Past May Be Uncomfortable: Frick V. Stevens, The Protection Of Scholarly Inquiry, Knowledge, And A Free Society As A Retrospective And Salient Study For Our Time, Joshua E. Kastenberg

Saint Louis University Law Journal

The past may be “uncomfortable,” the Washington Post pointed out on July 1, 1966, before adding a far more serious observation: “[t]he suppression of history—which is to say the judgment of historians—is an incongruity of a free society.” A year earlier, Helen C. Frick sued Professor Sylvester K. Stevens in Pennsylvania’s Cumberland County Court of Common Pleas to prevent the publication of his recent history book, Pennsylvania: Birthplace of a Nation. She claimed that the book libeled her deceased father and caused her a loss of standing in the public’s estimation and emotional distress. Judge Clinton R. Weidner indicated …

Affording Oral Tradition Evidence Due Weight Before The International Court Of Justice, Terrence Neal

Lewis & Clark Law Review

Oral traditions are irreplaceable sources of historical information, particularly with regard to Indigenous Peoples’ histories and cultures. However, when states have submitted oral traditions as evidence of historical practices, events, and circumstances in cases before the International Court of Justice (“Court”), the Court has been reluctant to afford them significant weight. This Article, which is the first detailed study on the Court’s treatment of oral traditions, examines whether the Court is failing to provide them due or appropriate weight. Based on historical, archaeological, and anthropological research, it establishes that oral traditions can be as reliable as written documents for reconstructing …

Hampton L. Carson (1852-1929): Attorney General, Bar Leader, Writer And Collector, Joel Fishman

Law Faculty Publications

Hampton L. Carson (1852-1929) was a law professor, Pennsylvania Attorney General, President of the American, Pennsylvania and Philadelphia Bar Associations, noted orator and prolific writer of legal history and biography, and collector of the largest Anglo-American law books and manuscripts. This article will review his life and work.

Algorithmic Selection Of Iconic Constitutions, Tejas Ramdas, Patrick Chung-Chia Huang, Nuno Garoupa, Martin T. Wells, Yun-Chien Chang, Tom Ginsburg

Public Law and Legal Theory Working Papers

This chapter examines the influence of pre-20th century constitutions using a quantitative approach, comparing expert-selected “iconic” constitutions with those identified algorithmically. In prior work, human experts identified four influential constitutions: the U.S. 1791, France 1791, Spain 1812, and France 1848. Here, we employ a genetic algorithm and Document Term Matrix (DTM) analysis to assess which one or four of 180 pre-1899 constitutions had the greatest textual impact on 581 post-1900 constitutions. Two criteria guide the selection: coverage and originality. Through iterative optimization, the algorithm identifies the most textually influential constitutions, allowing for a direct comparison with expert selections. This chapter …

The Color Of Carbon: Racial Capitalism, Climate Change, And Law, Sumudu Atapattu, Carmen G. Gonzalez

Faculty Publications & Other Works

Climate change is a direct consequence of capitalism’s drive to maximize profits through the unbridled extraction of wealth from humans and nature, aided and abetted at every turn by law. In its voracious demand for cheap labor, cheap raw materials, and cheap waste disposal, capitalism has created a treadmill of fossil fuel–dependent production and consumption that has triggered a planetary emergency. It has also produced extreme economic inequality—a racialized division of wealth grounded in colonialism that enables the ultrarich to capture the spoils of the capitalist global economy while billions of people continue to live in extreme poverty. The articles …

Essential But Unvalued: Incarcerated Workers Deserve The Same Standards And Protections As Free Workers., Lisa Roe

Student Works

No abstract provided.

De/Reconstructing Delinquency, Eduardo R. Ferrer

Georgetown Law Faculty Publications and Other Works

Hundreds of thousands of children are brought under the jurisdiction of delinquency courts every year in the United States. Despite the reality that most children engage in delinquent behavior during their adolescence, poor children, children of color, children with disabilities, and children who identify as LGBTQIA+ comprise a disproportionate number of those who become delinquency system-involved. These disparities exist by design. Their origins can be traced back to the flawed first principles upon which the juvenile court was built and, specifically, to the unduly expansive legal definition of delinquency that has undergirded the jurisdiction and power of the juvenile court …

Physicists As Environmental Experts, Rachel Rothschild

Articles

The question of which scientists are qualified to provide expert guidance in legal controversies is a perennial debate among scholars, judges, and lawyers. Scientists who participate in legal disputes can achieve enormous power and influence, not only over the case at hand but over long-term developments in legal doctrine. While these issues arise in many areas of the law, environmental litigation has been a particularly active site of contestations over epistemic authority. Courts have frequently relied on scientists to understand whether the government is justified in regulating pollution and who may be liable for environmental and public health harms.

This …

Assessing Government Transparency: An Analysis Of South Dakota's Open Records And Meeting Laws, Neil Fulton, Sarah Kammer, Patrick Garry

Faculty Publications

Government transparency is crucial for an effective and responsive democracy. The pursuit of such transparency underlies state open records and meetings laws. South Dakota’s open records law strives to open government records to the public. However, it also contains an array of exceptions that prevent the disclosure of certain records. When denied access to government records, the public possesses a statutory right of appeal. This article examines the workings of that appeal process. Open meetings laws also serve to give the public a role in government deliberations and to make those deliberations transparent. Those laws, including South Dakota’s law, provide …

Monarchy, Tom Ginsburg

Public Law and Legal Theory Working Papers

No abstract provided.

Medellín Manifesto On Transnational Value Chains And International Law, Diane Desierto

Journal Articles

Global Value Chains (GVCs) have been heralded as the ‘new world of trade’, yet they branch far beyond what has traditionally been considered ‘trade’—they interact with and are informed by multiple legal regimes often in ways unrelated to the theoretical and practical bases of those regimes. Building on the 2016 IGLP Manifesto, which sought to place law at the centre of GVC research, the Medellín Manifesto’s aspiration is to establish a research agenda that is specifically focused on international law: one that treats GVCs as amorphous and transnational legal creatures—they are transnational value chains (TVCs); one that recognises that the …

Algorithmic Selection Of Iconic Constitutions, Tejas Ramdas, Patrick Chung-Chia Huang, Nuno Garoupa, Martin T. Wells, Yun-Chien Chang, Tom Ginsburg

Coase-Sandor Institute for Law & Economics Research Paper Series

This chapter examines the influence of pre-20th century constitutions using a quantitative approach, comparing expert-selected “iconic” constitutions with those identified algorithmically. In prior work, human experts identified four influential constitutions: the U.S. 1791, France 1791, Spain 1812, and France 1848. Here, we employ a genetic algorithm and Document Term Matrix (DTM) analysis to assess which one or four of 180 pre-1899 constitutions had the greatest textual impact on 581 post-1900 constitutions. Two criteria guide the selection: coverage and originality. Through iterative optimization, the algorithm identifies the most textually influential constitutions, allowing for a direct comparison with expert selections. This chapter …

Navigating The Seas Of History In International Law, Valentina Vadi

South Carolina Journal of International Law and Business

Inquiries into questions of time, history, and international law have recently come to the fore. So far, however, many studies have only examined developments in international law from a temporally and thematically fragmented, brief, and narrow perspective. Due to international law’s growing normative and institutional fragmentation and emphasis on specific crises, episodes, and events, many analyses focus on transient trends and particular facets of international law. This study suggests an alternative to these constrained viewpoints: a thorough, multilayered, and broad perspective to questions of international law, drawing on Fernand Braudel’s tripartite theory of time.

Braudel’s theory of time provides valuable …

Assessing Government Transparency: An Analysis Of South Dakota's Open Records And Meetings Laws, Neil Fulton, Sarah Kammer, Patrick Garry

South Dakota Law Review

Government transparency is crucial for an effective and responsive democracy. The pursuit of such transparency underlies state open records and meetings laws. South Dakota’s open records law strives to open government records to the public. However, it also contains an array of exceptions that prevent the disclosure of certain records. When denied access to government records, the public possesses a statutory right of appeal. This article examines the workings of that appeal process. Open meetings laws also serve to give the public a role in government deliberations and to make those deliberations transparent. Those laws, including South Dakota’s law, provide …

Technological Change And The Evolution Of Patent Rights, Paul Rogerson

Chapman Law Review

The history of patent law is characterized by a striking pattern: dramatic, recurring cycles between eras of stronger and weaker patent rights. One theory is that patent law has been adapting to waves of technological change. In periods of rapid technological progress, following major breakthroughs (like the steam engine or the microprocessor), freely granting patents tends to create thickets of overlapping claims that block innovation, and courts have reacted by weakening rights (raising the standard to obtain and enforce a patent).

Existing histories, relying on qualitative methods, have argued that this theory explains certain nineteenth-century legal developments, but have questioned …

Josef Bohatec: The First Historian Of The Calvinist Reformation Of Rights, John Witte Jr., Thomas Jared Farmer

Emory International Law Review

This Article analyzes the pioneering work of the first great historian of Calvinist rights talk, Josef Bohatec (1876–1954), a Moravian-born and Vienna-based church historian. Bohatec built on the earlier efforts of several German scholars who were excavating pre-Enlightenment sources of human rights going back to antiquity. But Bohatec placed strong new emphasis on the original rights contributions of sixteenth-century Protestant reformer John Calvin (1509-1564) and his followers. Bohatec showed how Calvin’s legal training shaped the many new statutes and rights ordinances that he crafted for Geneva. He also showed how Calvin’s theological training shaped his highly innovative Protestant legal and …

Affording Oral Tradition Evidence Due Weight Before The International Court Of Justice, Terrence Neal

Faculty Scholarship

Oral traditions are irreplaceable sources of historical information, particularly with regard to Indigenous Peoples’ histories and cultures. However, when states have submitted oral traditions as evidence of historical practices, events, and circumstances in cases before the International Court of Justice (“Court”), the Court has been reluctant to afford them significant weight. This Article, which is the first detailed study on the Court’s treatment of oral traditions, examines whether the Court is failing to provide them due or appropriate weight. Based on historical, archaeological, and anthropological research, it establishes that oral traditions can be as reliable as written documents for reconstructing …