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Disciplinary Evolution And Scholarly Expansion: Legal History In The United States, Steve Sheppard, Michael H. Hoeflich

Steve Sheppard

The study and teaching of legal history has flourished in the last few decades in the United States. This progression has been augmented by several key factors. First, digital sources have made legal and historical documents widely accessible. A chief difficulty scholars once faced while teaching legal history was a limited access to important documents; printed scholarly journals are expensive to produce, buy, and store. However, the advent of digital technology has provided greater ease of access to once difficult to obtain sources. For example, scholars at Yale Law School’s Avalon Project placed essential documents on the Internet, where they …

The Common Law And The Constitution: John Locke And The Missing Link In Law, Steve Sheppard

Steve Sheppard

Locke's concept of rights influenced the Framers of the Constitution, which has increased the stakes in later interpretation of what Locke’s model of rights entailed. “Lockean rights” now suggests a perfect right unlimitable by the state in the public interest. Such a right is theoretically interesting, but it is not what Locke had in mind, and it was not the model of rights Madison, Jefferson, Hamilton, and other inherited from Locke's Second Treatise.

This paper was an initial reconstruction of Locke's model of a right, locating it within the legal culture of his time and place. His model of what …

Revisiting A Classic: Duncan Kennedy's Legal Education And The Reproduction Of Hierarchy The Ghost In The Law School: How Duncan Kennedy Caught The Hierarchy Zeitgeist But Missed The Point, Steve Sheppard

Steve Sheppard

In his manifesto, Duncan Kennedy aptly identified hierarchies within legal scholarship and the legal profession, but his conclusion--hierarchies in law are wrong and must be resisted--is misplaced. Kennedy’s Legal Education and the Reproduction of Hierarchy: A Polemic Against the System, claims law schools breed a hierarchical system, where rank plays an important part in how law schools relate to each other; how faculty members relate to each other and to students; and how students relate to other students. This system trains students to accept and prepare for their place within the hierarchy of the legal profession. According to Kennedy, such …

Officials' Obligations To Children: The Perfectionist Response To Liberals And Libertarians, Or Why Adult Rights Are Not Trumps Over The State Duty To Ensure Each Child's Education, Steve Sheppard

Steve Sheppard

Lawmakers must care more to educate children than to cater to their parents. While parents and the state both have roles in childhood development, the difficulty is finding the proper balance. Lawmakers must decide who should determine exposure of children to new and different ideas. Arguments that limit exposure to ideas should be pursued with the good of a child as the desired end, and not the means to some other end. These arguments fall into two categories: negative arguments and affirmative arguments. Affirmative arguments are less likely to be made with ulterior motives in mind. In the spirit of …

The Metamorphoses Of Reasonable Doubt: How Changes In The Burden Of Proof Have Weakened The Presumption Of Innocence, Steve Sheppard

Steve Sheppard

The standard of proof beyond a reasonable doubt is commonly thought to be an important benefit to the accused. The history of the standard is much more complex and demonstrates lesser commitments to the truth and to the defendant.

This article develops the history of the reasonable doubt instruction in the United States and its English antecedents. Examining the development of the instruction in the seventeenth and eighteenth centuries and its evolution through the nineteenth and twentieth, this history reveals the dual nature of the instruction. It both encapsulated a theory of knowledge and articulated a level of confidence in …

The Perfectionisms Of John Rawls, Steve Sheppard

Steve Sheppard

John Rawls’s strict theory of perfectionism would have more appeal if it were reconstructed by balancing it with moderate cultural perfectionism. In his work, A Theory of Justice, John Rawls framed the modern idea of legal perfectionism. In his thought experiment, Rawls gave different players various theories of justice that contrast with his “original position,” in which principles of justice are decided from behind a veil of ignorance. The first of the theories, strict perfectionism, argued society should be structured in a way that produces the utmost levels of excellence in someone, but not everyone. The second theory, moderate perfectionism, …