Law Commons^™

Bork Was The Beginning: Constitutional Moralism And The Politics Of Judicial Selection, Gary L. Mcdowell

Law Faculty Publications

On October 23, 1987, the United States Senate committed what many considered then-and what many still consider today-to be an unforgivable political and constitutional sin. Wielding its power to advise and consent on nominations to the Supreme Court of the United States, the upper house voted 58-42 not to confirm Judge Robert H. Bork. The vote, which was the largest margin of defeat in history for a nominee to the Supreme Court, concluded one of the most tumultuous political battles in the history of the republic, a battle that would transform the process of judicial selection for years to come.

Implications Of A Uniracial Worldview: Race And Rights In A New Era, Jonathan K. Stubbs

Law Faculty Publications

This article begins by asking, "What is Race: Some Modem Western Perspectives?" Section I surveys race from various vantage points, including views associated with social and natural scientists, jurists, and members of the general public. In short, Section I grapples with what we currently mean when we use the term race.

Many people, especially westerners, believe that the human family consists of multiple races. Such thinking flows from and reinforces multi-racial worldviews. Thus, Section II asks: "What Does a Multi-racial Worldview Look Like?" Here, using graphic symbols we attempt to communicate some sense of what a multi- racial perspective involves. …

The Lost Original Meaning Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

This article presents previously unrecognized evidence regarding the original meaning of the Ninth Amendment. Obscured by the contemporary assumption that the Ninth Amendment is about rights while the Tenth Amendment is about powers, the historical roots of the Ninth Amendment can be found in the state ratification convention demands for a constitutional amendment prohibiting the constructive enlargement of federal power. James Madison's initial draft of the Ninth Amendment expressly adopted the language suggested by the state conventions and he insisted the final draft expressed the same rule of construction desired by the states. In an episode previously unnoticed by scholars, …

In Search Of Themis: Toward The Meaning Of The Ideal Legislator--Senator Edmund S. Muskie And The Early Development Of Modern American Environmental Law, 1965-1968, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

Self-Organizing Legal Systems: Precedent And Variation In Bankruptcy, Bernard Trujillo

Law Faculty Publications

Models of legal ordering are frequently hierarchical. These models do not explain two prominent realities: (1) variation in the content of a legal system, and (2) patterns of non-hierarchical ordering that we observe. As a supplement to hierarchical explanations of legal order, this Article, drawing from physical and social science research on complex systems, offers a self-organizing model. The self-organizing model focuses on variation in the content of legal systems and attempts to explain the relationship between that variation and patterns of ordering. The self-organizing model demonstrates that variation and ordering are not opposite categories, but rather constitute one continuous …

Judicial Independence In Virginia Dedicated To Chief Justice Harry L. Carrico, William Hamilton Bryson

Law Faculty Publications

The political will of the people of the Commonwealth of Virginia is expressed in the Constitution of Virginia, which created the government of Virginia. Every Constitution of Virginia from 1776 to the present has divided the government among the General Assembly of Virginia, the legislature; the governor, who is the chief executive officer; and the judiciary, a system of courts. Each of these three branches of the government was created as a separate, independent branch of the government. However, they are not totally independent; they must of necessity interact. Furthermore, each Constitution of Virginia has put into place various checks …

Some Old Problems In England And Some New Solutions From Virginia, William Hamilton Bryson

Law Faculty Publications

The fundamental ideal to which we aspire in the field of civil procedure is the perfect balance between expeditious results and correct results in the administration of justice. Two famous quotations from two famous English Equity judges come to mind. John Scott, Lord Eldon, the Lord Chancellor of Great Britain from 1801 to 1827 who was often criticized for being excessively dilatory, said, 'sat cito si sat bene'. Sir George Jessel, Master of the Rolls from 1873 to 1883, once said, 'I may be wrong and sometimes am, but I never have any doubts'. Jessel had his docket under firm …

The Presidential Oath, The American National Interest And A Call For Presiprudence, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

Advocacy As History? That Takes The Prize! Gulag: A History [Book Review], Dana Neacsu

Law Faculty Publications

Gulag: A History, the recipient of the 2004 Pulitzer Prize for general non-fiction, may be particularly well received by lawyers and law students because they can appreciate author Anne Applebaum's writing skills. Gulag reads like a lawyer's product: a conclusion replete with facts and arguments. Those who enjoy perfecting their legal skills while reading for pleasure should read this review. Gulag is, in essence, a successful legal brief.

The Winchester Law School, 1824-1831, William Hamilton Bryson

Law Faculty Publications

On March 5, 1824, Henry St. George Tucker was elected by the General Assembly of Virginia to be the judge of the circuit superior court of chancery to sit in Winchester and Clarksburg. Tucker had built up a very successful law practice in Winchester, where he had settled in 1802 upon his admission to the bar. He had also built up a large family; he had six sons and two daughters as well as three children who died young. The elevation to the bench resulted in an increase in professional status, but it also resulted in a substantial decrease in …

Foreword, Azizah Y. Al-Hibri

Law Faculty Publications

Recent world events have also underlined the fact that the shrinking global village is not moving automatically towards increased democracy, peace and cooperation. The use of force continues to be the preferred tool for conflict resolution, despite all claims to the contrary. To complicate matters, the new technological innovations are bringing violence instantaneously to our doorstep. Conflicts in far away regions of the world can no longer be ignored. They have cast their shadow over our cities. The dream of the global village has become a nightmare, with no apparent exit. What can we do about it?

The Constitutional Convention Of 1937: The Original Meaning Of The New Jurisprudential Deal, Kurt T. Lash

Law Faculty Publications

The paper traces the dramatic jurisprudential innovations of the New Deal Revolution, including the articulation of incorporation theory, the abandonment of judicial construction of state common law, and the ascension of textual originalism as the Court's method of constitutional interpretation. I argue that the New Deal Court transcended the political goals of the Roosevelt administration and attempted to restructure the nature of legitimate judicial review in a post-Lochner world. Acting, in effect, as a constitutional convention, the Court not only changed the nature of judicial review, it altered the shape of the Constitution in ways that cut across modern political …

The Politics Of Meaning: Law Dictionaries And The Liberal Tradition Of Interpretation, Gary L. Mcdowell

Law Faculty Publications

At least since John Cowell's Interpreter was adjudged by the Committee on Grievances of the House of Commons in 1610 to be "very unadvised, and undiscreet, tending to the disreputation of the honour and power of the common laws" have law dictionaries been objects of occasional controversy. Yet legal dictionaries, as well as dictionaries more generally, have remained a constant resource in American law for those seeking to give meaning to the words of both statutes and constitutional provisions. They have appeared in the pages of the reports since the beginning of the republic; a majority of the justices of …

What Is Past Is Prologue: Senator Edmund S. Muskie's Environmental Policymaking Roots As Governor Of Maine, 1955-58, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

"High Crimes And Misdemeanors": Recovering The Intentions Of The Founders, Gary L. Mcdowell

Law Faculty Publications

Such serious charges by so many distinguished historians demand a careful consideration of what the Founders meant by "high Crimes and Misdemeanors": Were they only indictable crimes or did they include what one of the Framers called "political crimes and misdemeanors?" Were they offenses that a President would commit only in "the exercise of executive power" or did they also include a President's malfeasance committed in his private capacity? Were they subject to a reasonably fixed meaning or were they to be determined simply by the exercise of the "awful discretion" of those in Congress called upon to impeach and …

Virginia Law Reports And Records, 1776-1800, William Hamilton Bryson

Law Faculty Publications

In 1607 Virginia was settled by a London-based corporation, and the English settlers brought with them the municipal law and legal institutions of England. It was specifically required by the instructions to the Virginia Company that litigation was to be settled "as near to the common laws of England and the equity thereof as may be". In 1632 when commissioners were appointed to hold the monthly courts (later renamed the county courts), their commissions required them to execute the office of justice of the peace and to act "as near as may be after the laws of the realm of …

The Federalism Pendulum, Ronald J. Bacigal

Law Faculty Publications

Following Franklin's example, this essay takes a protracted view of the federalization of criminal procedure. It is important to review how the federalism pendulum has swung over the years to reflect concepts of what the Constitution was meant to mean, what it has come to mean, and what it ought to mean.

The Aall And Its Government Relations Program: Part I And Ii, Timothy L. Coggins

Law Faculty Publications

The Government Relations Policy [hereinafter Policy] of the AALL outlines the objectives of its government relations program. The Policy emphasizes that a primary goal of this Association's program is to ensure timely and equitable access to government and legal information. This Policy represents the views of an association with more than 5,000 members who provide law library services to government officials, the bench, the bar, legal scholars and the public in nearly 1,900 libraries. AALL, its members and its users are affected by a broad span of public policy concerns "ranging from the development of the National Information Infrastructure and …

The Business Of The Supreme Court Revisited, John Paul Jones

Law Faculty Publications

Nearly seventy years after its publication, Prof. Jones revisits Felix Frankfurter and James McCauley Landis' seminal 1928 book.

Review Of Notaries Public In England Since The Reformation, William Hamilton Bryson

Law Faculty Publications

A book review on Notaries Public in England Since the Reformation by Christopher W. Brooks, Richard H. Helmholz, and Peter G. Stein.

Sin, Scandal, And Substantive Due Process, Wendy Collins Perdue

Law Faculty Publications

For students of civil procedure, the names Pennoyer and Neff evoke these dry facts: In an initial suit, one J.H. Mitchell sued Neff in Oregon state court. Because Neff could not be found within Oregon, he was served by publication. Neff never appeared, and a default judgment was entered against him. To satisfy the judgment, Mitchell attached Neff's Oregon real estate. The property was sold at auction, and Pennoyer later acquired it. Nearly a decade later, Neff returned to Oregon and brought suit in federal court to evict Pennoyer from the land, claiming that the original judgment was invalid. The …

Virginia Manuscript Law Reports, William Hamilton Bryson

Law Faculty Publications

Case law, including published cases and cases that have never been published, is the basis of the common law. Professor Bryson discusses the use of manuscript law reports in Virginia during the eighteenth and nineteenth centuries.

Review Of Bench And Bureaucracy: The Public Career Of Sir Julius Caesar, William Hamilton Bryson

Law Faculty Publications

A book review of Bench and Bureaucracy: The Public Career of Sir Julius Caesar by Lamar M. Hill.

The Roman Law Of Trusts, William Hamilton Bryson

Law Faculty Publications

A book review on The Roman Law of Trusts by David Johnston.

Equity And Equitable Remedies, William Hamilton Bryson

Law Faculty Publications

Encyclopedia entry on Equity and Equitable Remedies in the Encyclopedia of the American judicial system : studies of the principal institutions and process of law.

English Common Law In Virgina, William Hamilton Bryson

Law Faculty Publications

By statute the common law of England is the basis of the common law of modern Virginia. This reception statute refers to the customary, unwritten law of the kingdom of England, but only that part which was general and common to all parts of England. That the English common law is the foundation of the law of Virginia is a matter not merely of a modern statute but also of history and reason.

Legal Growth Through Evolution: Comment On Puritan Revolution And English Law, William Hamilton Bryson

Law Faculty Publications

Professor Harold Berman has presented the fascinating thesis that a people's religion influences their laws and that the Puritan religious revolution of seventeenth century England introduced Calvinist ideas into Anglo-American jurisprudence. I fully agree with Professor Berman's observations that religious beliefs and a sense of moral obligation to others are some of the motivations of, or at least influences upon, legal growth. Economic aggrandizement is not the only motivation of the human race. Religion has had a direct effect upon social and political institutions.

The Use Of Roman Law In Virginia Courts, William Hamilton Bryson

Law Faculty Publications

By statute, the courts of Virginia are required to decide cases according to the principles of the English common law. However, they are not forbidden to resort to any other legal system where the common law of England is silent. Moreover, when the English courts themselves have no English law on a particular point, they often look to the Roman law in its ancient or its current form for guidance. Therefore, it is not unreasonable for Virginia courts to do likewise, and in the eighteenth and nineteenth centuries, in fact, they did. The purpose of this essay is to consider …

The Abolition Of The Forms Of Action In Virginia, William Hamilton Bryson

Law Faculty Publications

The common law procedure for initiating actions at law in the English courts required a plaintiff to obtain a writ invoking the jurisdiction of the court and to file a declaration setting forth the facts that justified instigation of the suit and established the cause of the action. This clumsy and archaic system of litigation was abolished by a single chop of the legislative guillotine in New York in 1848. England followed suit in 1875, and the United States federal courts in 1938. Writs and declarations were replaced by simple forms which were copied from the practice of the equity …

Das Profil Des Juristen In Der Europiiischen Tradition, William Hamilton Bryson

Law Faculty Publications

A book review on, Das Profil des Juristen in der europiiischen Tradition, by Klaus Luig and Detlef Liebs, eds.,