Legal Commons^™

The Clerks Of The Four Horsemen (Part I), Barry Cushman

Journal Articles

The names of Holmes clerks such as Tommy Corcoran and Francis Biddle, of Brandeis clerks such as Dean Acheson and Henry Friendly, and of Stone clerks such as Harold Leventhal and Herbert Wechsler ring down the pages of history. But how much do we really know about Carlyle Baer, Tench Marye, or Milton Musser? This article follows the interesting and often surprising lives and careers of the men who clerked for the Four Horsemen - Justices Van Devanter, McReynolds, Sutherland, and Butler. These biographical sketches confound easy stereotypes, and prove the adage that law, like politics, can make for strange …

The Structure Of Classical Public Law, Barry Cushman

Journal Articles

Duncan Kennedy's The Rise and Fall of Classical Legal Thought circulated in manuscript for three decades before it was formally published in 2006. This essay reviews the book's treatment of Classical public law, focusing on its two principal contributions to the historiography of the subject: the concept of legal consciousness, and the structural analysis of constitutional doctrine.

Some Varieties And Vicissitudes Of Lochnerism, Barry Cushman

Journal Articles

This article is a contribution to the Lochner Centennial Symposium at Boston University School of Law. Until recently, a consensus appeared to be emerging among constitutional historians concerning how best to interpret Lochner-era decisions involving Fifth and Fourteenth Amendment challenges to state and federal economic regulation. After decades during which the Court's jurisprudence had been characterized as the product of a reactionary judiciary's commitments to Social Darwinism and laissez-faire economics, more recent scholars had come to see the Court's police powers decisions as animated by what Professor Howard Gillman has called the principle of neutrality. On this view, the Court's …

Symposium: States' Rights In The Twenty-First Century, Jay Tidmarsh, Mark Racicot, Robert Miller, Michael Greve

Journal Articles

My name is Jim Schueller and I'm the Symposium Editor of the Law School Journal of Legislation and every two years we organize a symposium to discuss relevant issue of public policy and the topic this year is States Rights in the 21st Century.

Well, way back in the 18th century when the framers drafted the Constitution they created a unique system of governing where power was shared between the states which already existed and the newly created federal government. The framers in their day debated the proper allocation of power between these two governments and today, two hundred eleven …

The Hughes Court And Constitutional Consultation, Barry Cushman

Journal Articles

This lecture, delivered to the Supreme Court Historical Society, details the ways in which justices of the Hughes Court provided guidance to members of the political branches in formulating constitutional solutions to the economic crisis of the 1930s. Among the policy areas considered are farm debt relief, energy policy, agricultural policy, civilian relief and public works, retirement pensions, and unemployment compensation.