Law Commons^™

The Progressives: Economics, Science, And Race, Herbert J. Hovenkamp

All Faculty Scholarship

This essay is a brief review of Thomas C. Leonard, Illiberal Reformers: Race, Eugenics, and American Economics in the Progressive Era (Princeton Univ. Press 2016).

The Lewis F. Powell, Jr. Archives And The Contemporary Researcher, John Jacob

John Jacob

No abstract provided.

Foreword: Kratovil Symposium Issue Of The John Marshall Law Review, 38 J. Marshall L. Rev. 1 (2004), Celeste M. Hammond

Celeste M. Hammond

No abstract provided.

Foreword: Kratovil Symposium Issue Of The John Marshall Law Review, 38 J. Marshall L. Rev. 1 (2004), Celeste M. Hammond

Celeste M. Hammond

No abstract provided.

John A Sibley Lecture, The Shaping Of International Law, Louis B. Sohn

Georgia Journal of International & Comparative Law

No abstract provided.

The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt

Mark P Nevitt

Climate change is the world’s greatest environmental threat. And it is increasingly understood as a threat to domestic and international peace and security. In recognition of this threat, the President has taken the initiative to prepare for climate change’s impact – in some cases drawing sharp objections from Congress. While both the President and Congress have certain constitutional authorities to address the national security threat posed by climate change, the precise contours of their overlapping powers are unclear. As Commander in Chief, the President has the constitutional authority to repel sudden attacks and take care that the laws are faithfully …

When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas

Journal Articles

Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against …

Legal Epistemologies, Howard Schweber

Maryland Law Review

No abstract provided.

Privacy, Police Power, And The Growth Of Public Power In The Early Twentieth Century: A Not So Unlikely Coexistence, Carol Nackenoff

Maryland Law Review

No abstract provided.

Of Monsters & Lawyers, Milan Markovic

Milan Markovic

No abstract provided.

Magna Carta Then And Now: A Symbol Of Freedom And Equal Rights For All, Eugene K B Tan, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

Magna Carta became applicable to Singapore in 1826 when a court system administering English law was established in the Straits Settlements. This remained the case through Singapore’s evolution from Crown colony to independent republic. The Great Charter only ceased to apply in 1993, when Parliament enacted the Application of English Law Act to clarify which colonial laws were still part of Singapore law. Nonetheless, Magna Carta’s legacy in Singapore continues in a number of ways. Principles such as due process of law and the supremacy of law are cornerstones of the rule of law, vital to the success, stability and …

Temporary Insanity: The Strange Life And Times Of The Perfect Defense, Russell D. Covey

Russell D. Covey

The temporary insanity defense has a prominent place in the mythology of criminal law. Because it seems to permit factually guilty defendants to escape both punishment and institutionalization, some imagine it as the “perfect defense.” In fact, the defense has been invoked in a dizzying variety of contexts and, at times, has proven highly successful. Successful or not, the temporary insanity defense has always been accompanied by a storm of controversy, in part because it is often most successful in cases where the defendant’s basic claim is that honor, revenge, or tragic circumstance – not mental illness in its more …

The Corpus Juris Civilis, Frederick W. Dingledy

Library Staff Publications

The Corpus Juris Civilis, created by order of Byzantine Emperor Justinian I to compile the laws in force at the time, would become a vital foundation for both the civil law and common law traditions. Important figures in the development of the United States’ law used principles listed in the Corpus as a guide, and to this day legal scholars and historians still refer to it. As a system of law based on principles, not case law, the Corpus provided the framework upon which France built the Code Napoleon. The Corpus' influence can be seen in the legal systems …

Memorial: Nancy P. Johnson (1949-2014), Kristina L. Niedringhaus

Kristina L Niedringhaus

No abstract provided.

From Criminal Law To Urban Law And Policy: A Tribute To Professor Feridun Yenisey, Ryan Rowberry, Julian Juergensmeyer

Julian C. Juergensmeyer

No abstract provided.

The Opinion Volume 48 Issue 1 – November 1, 2015, The Opinion

The Opinion Newspaper (all issues)

The Opinion newspaper issue dated November, 1, 2015

Marriage (In)Equality And The Historical Legacies Of Feminism, Serena Mayeri

All Faculty Scholarship

In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so, the history …

Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey

Journal Articles

For a symposium on Teaching Ferguson, this essay considers how the standard introductory constitutional law course evades the history of legal struggle against institutionalized anti-black violence. The traditional course emphasizes the drama of anti-majoritarian judicial expansion of substantive rights. Looming over the doctrines of equal protection and due process, the ghost of Lochner warns of dangers of judicial leadership in substantive constitutional change. This standard narrative tends to lower expectations for constitutional justice, emphasizing the virtues of judicial modesty and formalism.

By supplementing the ghost of Lochner with the ghost of comparably infamous and influential case, United States v. Cruikshank …

Representing Interdisciplinarity, Kunal M. Parker

Villanova Law Review

No abstract provided.

Book Review: The Once And Future King: The Rise Of Crown Government In America, Ronald D. Rotunda

Ronald D. Rotunda

If you want to understand your own language, learn a foreign tongue. Similarly, if you want to understand the American system of government, learn what our intellectual kin—Great Britain and Canada—have done. As Professor F.H. Buckley notes, “He who knows only his own country knows little enough of that.” He is one of the few people who has thoroughly mastered the legal structure and history of all three countries.

On The Battlefield Of Merit, Daniel Coquillette

Daniel R. Coquillette

Session Ii: Historical Perspectives On Privacy In American Law, 29 J. Marshall J. Computer & Info. L. 319 (2012), Steven D. Schwinn, Alberto Bernabe, Kathryn Kolbert, Adam D. Moore, Marc Rotenberg

Alberto Bernabe

No abstract provided.

Response To Nicholas Boyle, O. Carter Snead

O. Carter Snead

Response to Nicholas Boyle’s talk “God, Sex, and America: From Decline of the Common Morality to the Emergence of a Global Ethical Life” at The Catholic University of America Center for Law, Philosophy and Culture’s Symposium “A Common Morality for the Global Age: In Gratitude for What We Are Given.”

Oliver Wendell Holmes, Jr., And The American Civil War, Catharine P. Wells

Catharine P. Wells

"Shouting 'Fire' In A Theater": The Life And Times Of Constitutional Law's Most Enduring Analogy, Carlton F.W. Larson

William & Mary Bill of Rights Journal

In 1919, Justice Oliver Wendell Holmes introduced the specter of a man falsely shouting “fire” in a theater into First Amendment law. Nearly one hundred years later, this remains the most enduring analogy in constitutional law. It has been relied on in hundreds of constitutional cases, and it has permeated popular discourse on the scope of individual rights.

This Article examines both the origins and the later life of Holmes’s theater analogy. Part I is a detective story, seeking to solve the mystery of how Holmes came up with this particular example. This story takes us to the forgotten world …

The Concept Of The State In American History, William J. Novak

Book Chapters

Debates about the state rage in contemporary America. On the right, libertarian and tea party rhetoric fulminates about shrinking the state or shutting down the government, frequently in hyperbolic terms like the Americans for Tax Reform notion of" drowning it in a bathtub." On the left, concern about the fate of the welfare state and an ever-expanding warfare and penal state produces equally impassioned retorts. Discussion of the American state-its nature, its size, and its uncertain future-dominates the political landscape as perhaps never before.

War, Dearth And Theft In The Eighteenth Century: The Record Of The English Courts, Douglas Hay

Douglas C. Hay

No abstract provided.

Archival Research In The History Of The Law: A User's Perspective, Douglas Hay

Douglas C. Hay

Legal history and the social history of law have become very active fields of research in Britain, the United States, and Canada in the past ten years. Moreover, they have begun to affect each other, so that social historians are now much more sensitive to doctrinal changes, shifts in legal rules, and legal concepts, while legal historians increasingly appreciate that explaining legal change – or the lack of it – may require extensive research outside the law library. In short, lawyers and historians are beginning to meet not only in law libraries, but also in archives. And, like all users, …

Four Concepts Of Validity: Further Reflections On The Inclusive/Exclusive Positivism Debate, Will Waluchow, Leslie Green, Michael Guidice, François Tanguay-Renaud

François Tanguay-Renaud

Wil Waluchow, McMaster University, discusses four concepts of legal validity and how these might help understand the role of constitutional moral tests for legal validity.

Respondent: Les Green Osgoode Hall Law School/Oxford University

Writing Canadian Legal History: Origins, Philip Girard

Philip Girard

No abstract provided.