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Full-Text Articles in Law

Admiralty, Abstention, And The Allure Of Old Cases, Maggie Gardner Apr 2024

Admiralty, Abstention, And The Allure Of Old Cases, Maggie Gardner

Notre Dame Law Review

The current Supreme Court has made clear that history matters. But doing history well is hard. There is thus an allure to old cases because they provide a link to the past that is more accessible for nonhistorian lawyers. This Article warns against that allure by showing how the use of old cases also poses methodological challenges. The Article uses as a case study the emerging doctrine of foreign relations abstention. Before the Supreme Court, advocates argued that this new doctrine is in fact rooted in early admiralty cases. Those advocates did not, however, canvass the early admiralty practice, relying …


The Road Not Taken: A Critical Juncture In Racial Preferences For Naturalized Citizenship, Ming Hsu Chen Apr 2024

The Road Not Taken: A Critical Juncture In Racial Preferences For Naturalized Citizenship, Ming Hsu Chen

William & Mary Law Review

In The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel Jack Chin and Paul Finkelman argue that racist results in naturalization have arisen despite, or maybe because of, the race neutral interpretation. This happened in a manner that could have been predicted by the federal government’s attitudes toward non-White persons in the Naturalization Act of 1790 and the nearly unbroken chain of legal developments. This leads them to think of the law as a “super-statute.” While I agree that this is the path actually taken in history, I view the mid-1960s civil rights era …


Paradoxical Citizenship, Amanda Frost Apr 2024

Paradoxical Citizenship, Amanda Frost

William & Mary Law Review

In their article, The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel J. Chin and Paul Finkelman make a powerful case that the Naturalization Act of 1790 is a “super-statute” that has shaped not only U.S. immigration law and policy, but also America’s conception of itself as a “White nation.”

[...]

This Comment explores the conflict between the Naturalization Act’s racial restrictions on citizenship (and its proponents’ vision of the United States as a White nation) and the Fourteenth Amendment’s Citizenship Clause (and its proponents’ vision of the United States as a multiracial …


A Matter Of Facts: The Evolution Of Copyright’S Fact-Exclusion And Its Implications For Disinformation And Democracy, Jessica Silbey Jan 2024

A Matter Of Facts: The Evolution Of Copyright’S Fact-Exclusion And Its Implications For Disinformation And Democracy, Jessica Silbey

Faculty Scholarship

The Article begins with a puzzle: the curious absence of an express fact-exclusion from copyright protection in both the Copyright Act and its legislative history despite it being a well-founded legal principle. It traces arguments in the foundational Supreme Court case (Feist Publications v. Rural Telephone Service) and in the Copyright Act’s legislative history to discern a basis for the fact-exclusion. That research trail produces a legal genealogy of the fact-exclusion based in early copyright common law anchored by canonical cases, Baker v. Selden, Burrow-Giles v. Sarony, and Wheaton v. Peters. Surprisingly, none of them …


Reports Of Cases In The Court Of Chancery From 1683 To 1688, William Hamilton Bryson Jan 2024

Reports Of Cases In The Court Of Chancery From 1683 To 1688, William Hamilton Bryson

Law Faculty Publications

This collection of law reports brings together in one place the reports of cases in the Court of Chancery from the short tenure of Sir Francis North, lord Guilford, and that of Sir George Jeffreys, Lord Jeffreys, who was the Lord Chancellor during the reign of King James II. These reports have been scattered heretofore, but it is hoped that, by reprinting them in one place, they can be more easily comprehended individually and the jurisprudence of this court can be better understood. They come from the reigns of King Charles II and King James II, and date from 1683 …


Institutional Antiracism And Critical Pedagogy: A Quantum Leap Forward For Legal Education And The Legal Academy, Danielle M. Conway Jan 2024

Institutional Antiracism And Critical Pedagogy: A Quantum Leap Forward For Legal Education And The Legal Academy, Danielle M. Conway

Faculty Scholarly Works

A fundamental launchpad for redeeming American society is to look to the historical and contextual goals of the Second Founding—the Reconstruction Amendments—and grasp the lessons about justice and equality for all by focusing on the principles of institutional antiracism. While our nation should deploy teaching and learning strategies at all levels of the American system of education, legal education must be out front leading the way to incorporate institutional antiracism through critical pedagogy.

This article provides the historical context in which legal education developed in the antebellum and postbellum periods and up to what might be deemed the “Third Founding” …


Consider Buffalo, Pierre Schlag Jan 2024

Consider Buffalo, Pierre Schlag

Publications

No abstract provided.


The Right To Trial By Jury Shall Remain Inviolate: Jury Trials In Civil Actions In Georgia’S Courts, David E. Shipley Jan 2024

The Right To Trial By Jury Shall Remain Inviolate: Jury Trials In Civil Actions In Georgia’S Courts, David E. Shipley

Scholarly Works

Trials, though rare, “shape almost every aspect of procedure,” and the jury trial is a distinctive feature of civil litigation in the United States. The Seventh Amendment of the U.S. Constitution ‘preserves’ the right to jury trial “[i]n suits at common law, where the value in controversy shall exceed twenty dollars.” Even though this amendment does not apply to the states, courts in the states “honor the right to the extent it is created in their constitutions or local statutes.”

The Georgia Constitution provides that “[t]he right to trial by jury shall remain inviolate,” and Georgia’s appellate courts have shown …


Appealing Magna Carta, Thomas J. Mcsweeney Dec 2023

Appealing Magna Carta, Thomas J. Mcsweeney

Faculty Publications

In 1999, Professor Richard Helmholz published Magna Carta and the Ius Commune, in which he argued that some of the ideas and language found in Magna Carta provide evidence that the early common law was engaging with the ius commune, the ancestor of modern civil law traditions. This Essay examines one piece of evidence highlighted by Helmholz and more recently by Professor Charles Donahue: that the Articles of the Barons, a preparatory document for Magna Carta, uses a phrase borrowed from canon law, appellatione remota (without possibility of appeal). Helmholz and Donahue pointed to its use as evidence that …


Pathways To Liberty: What Colonial, Antebellum, And Postbellum Education Can Teach Us About Today, Danielle Wingfield Dec 2023

Pathways To Liberty: What Colonial, Antebellum, And Postbellum Education Can Teach Us About Today, Danielle Wingfield

William & Mary Bill of Rights Journal

Education is a critical part of nation-building. More specifically, it can also be a powerful pathway to liberty and a tool for disseminating knowledge. However, historically it has been used to subjugate and censor vulnerable groups like women, socio-economically disadvantaged persons, as well as men of color. Therefore, to avoid subordinating members of such minoritized groups and suppressing uncomfortable historical facts, advocates must continually evaluate the purpose and method of education. Such persistent monitoring can provide a basis for constructive reform of public education in the United States. Such reform must also consider changing social conditions.

Presently, for example, public …


James Oakes's Treatment Of The First Confiscation Act In Freedom National: The Destruction Of Slavery In The United States, 1861-1865, Angi Porter Oct 2023

James Oakes's Treatment Of The First Confiscation Act In Freedom National: The Destruction Of Slavery In The United States, 1861-1865, Angi Porter

Articles in Law Reviews & Other Academic Journals

In his work, Freedom National: The Destruction of Slavery in the United States, 1861-1865, James Oakes provides an overview of several Civil War era legal instruments regarding enslavement in the United States. One of the statutes he examines is An Act to Confiscate Property Used for Insurrectionary Purposes, passed by the Thirty Seventh Congress in August, 1861. This law, popularly known as the First Confiscation Act (FCA), is one of the several "Confiscation Acts" that contributed to the weakening of legal enslavement during the War. Fortunately, scholars have contextualized and deemphasized President Lincoln's role as the "Great Emancipator" by examining …


Movement On Removal: An Emerging Consensus On The First Congress, Jed Handelsman Shugerman Aug 2023

Movement On Removal: An Emerging Consensus On The First Congress, Jed Handelsman Shugerman

Faculty Scholarship

What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees that there was not much consensus in the First Congress.

Two more questions follow: Is the “unitary executive theory” based on originalism, and if so, is originalism a reliable method of interpretation based on historical evidence?

The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning …


Freehold Offices Vs. 'Despotic Displacement': Why Article Ii 'Executive Power' Did Not Include Removal, Jed Handelsman Shugerman Jul 2023

Freehold Offices Vs. 'Despotic Displacement': Why Article Ii 'Executive Power' Did Not Include Removal, Jed Handelsman Shugerman

Faculty Scholarship

The Roberts Court has relied on an assertion that Article II’s “executive power” implied an “indefeasible” or unconditional presidential removal power. In the wake of growing historical evidence against their theory, unitary executive theorists have fallen back on a claim of a “backdrop” or default removal rule from English and other European monarchies. However, unitary theorists have not provided support for these repeated assertions, while making a remarkable number of errors, especially in the recent “The Executive Power of Removal” (Harvard L. Rev. 2023).

This Article offers an explanation for the difficulty in supporting this historical claim: Because …


Forum Fights And Fundamental Rights: Amenability’S Distorted Frame, James P. George Jun 2023

Forum Fights And Fundamental Rights: Amenability’S Distorted Frame, James P. George

Faculty Scholarship

Framing—the subtle use of context to suggest a conclusion—is a dubious alternative to direct argumentation. Both the brilliance and the bane of marketing, framing also creeps into supposedly objective analysis. Law offers several examples, but a lesser known one is International Shoe’s two-part jurisdictional test. The framing occurs in the underscoring of defendant’s due process rights contrasted with plaintiff’s “interests” which are often dependent on governmental interests. This equation ignores, both rhetorically and analytically, the injured party’s centuries-old rights to—not interests in—a remedy in an open and adequate forum.

Even within the biased frame, the test generally works, if not …


Reconstruction's Lessons, Susan D. Carle May 2023

Reconstruction's Lessons, Susan D. Carle

Articles in Law Reviews & Other Academic Journals

In the current moment in the legal struggle for racial justice in the United States, the Nation appears at risk of repeating its history. The country stands at a time of some hope but more cause for pessimism. The current United States Supreme Court has exhibited hostility towards key legal priorities of the racial justice movement, and all indications point to this trend continuing or getting even worse. Leading commentators on race issues have suggested that the United States is headed back to the post Reconstruction era, sometimes referred to as “Redemption” in reference to southern states’ reassertion of white …


The Role Of Law In U.S. History Textbooks, Russ Versteeg Apr 2023

The Role Of Law In U.S. History Textbooks, Russ Versteeg

Cleveland State Law Review

This Article analyzes the references to law found in three standard U.S. History textbooks: (1) ALAN BRINKLEY, AMERICAN HISTORY CONNECTING WITH THE PAST 745 (McGraw-Hill Educ., 15th ed. 2015); (2) ERIC FONER, GIVE ME LIBERTY! AN AMERICAN HISTORY 461 (Steve Forman et al. eds., 5th ed. 2017); and (3) DAVID GOLDFIELD ET AL., THE AMERICAN JOURNEY: A HISTORY OF THE UNITED STATES (7th ed. Combined vol. 2014, 2011, 2008). The Article includes a quantitative analysis of topics (i.e., tabulating the topics that appear most frequently in the texts arranged chronologically) as well as summaries of those topics. It also discusses …


The Indecisions Of 1789: Inconstant Originalism And Strategic Ambiguity, Jed Handelsman Shugerman Mar 2023

The Indecisions Of 1789: Inconstant Originalism And Strategic Ambiguity, Jed Handelsman Shugerman

Faculty Scholarship

The unitary executive theory relies on the First Congress and an ostensible "Decision of 1789" as an originalist basis for unconditional presidential removal power. In light of new evidence, the First Congress was undecided on any constitutional theory and retreated to ambiguity in order to compromise and move on to other urgent business.

Seila Law's strict separation-of-powers argument depends on indefeasibility (i.e., Congress may not set limits or conditions on the president's power of civil removal). In fact, few members of the First Congress defended or even discussed indefeasibility. Only nine of fifty-four participating representatives explicitly endorsed the presidentialist …


Property And Sovereignty In America: A History Of Title Registries & Jurisdictional Power, K-Sue Park Jan 2023

Property And Sovereignty In America: A History Of Title Registries & Jurisdictional Power, K-Sue Park

Georgetown Law Faculty Publications and Other Works

This Article tells an untold history of the American title registry—a colonial bureaucratic innovation that, though overlooked and understudied, constitutes one of the most fundamental elements of the U.S. property system today. Prior scholars have focused exclusively on its role in catalyzing property markets, while mostly ignoring their main sources in the colonies -- expropriated lands and enslaved people. This analysis centers the institution’s work of organizing and “proving” claims that were not only individual but collective, to affirm encroachments on tribal nations’ lands and scaffold colonies’ tenuous but growing political, jurisdictional power. In other words, American property and property …


Federal Rules Of Private Enforcement, Luke Norris, David L. Noll Jan 2023

Federal Rules Of Private Enforcement, Luke Norris, David L. Noll

Law Faculty Publications

The Federal Rules of Civil Procedure were made for a different world. Fast approaching their hundredth anniversary, the Rules reflect the state of litigation in the first few decades of the twentieth century and the then-prevailing distinction between "substantive" rights and the "procedure" used to adjudicate them. The role of procedure, the rulemakers believed, was to resolve private disputes fairly and efficiently. Today, a substantial portion of litigation in federal court is brought under regulatory statutes that deploy private lawsuits to enforce public regulatory policy. This type of litigation, which scholars refer to as "private enforcement," is the engine for …


The Mystery Of The Leavenworth Oaths, M H. Hoeflich, Stephen M. Sheppard Jan 2023

The Mystery Of The Leavenworth Oaths, M H. Hoeflich, Stephen M. Sheppard

Faculty Articles

Lawyers have sworn an oath to be admitted to the Bar since the beginnings of the Anglo-American legal profession. The oath serves several extremely important purposes. First, it is the formal act that admits an individual into the Bar and confers upon the oath taker the right to perform the duties of an attorney in the jurisdiction in which the oath is given. Second, the oath admits the new attorney to the broader world of the legal profession and signifies that the new attorney has been judged by the oath giver as worthy of the right to practice law. Third, …


Edward Barradall's Reports Of Cases In The General Court Of Virginia (1733-1741), William Hamilton Bryson Jan 2023

Edward Barradall's Reports Of Cases In The General Court Of Virginia (1733-1741), William Hamilton Bryson

Law Faculty Publications

Edward Barradall was born in London, the son of Henry Barradall and Catherine Blumfield Barradall. He was baptized on 17 October 1703 in the parish church of St. Paul's, Covent Garden. Both of his brothers and two of his sisters came to Virginia in the 1730s. Edward Barradall was in Virginia by February 1731. From at least then until about 1733, he practiced law in the county courts of Caroline County and the Northern Neck. His law reports begin in 1733, and so it is to be presumed that that is the year he moved his practice from the county …


Alexander Forrester's Chancery Reports, William Hamilton Bryson Jan 2023

Alexander Forrester's Chancery Reports, William Hamilton Bryson

Law Faculty Publications

This is a new edition of Alexander Forrester's Chancery reports. It is based upon the best manuscript copy that has survived, Lincoln's Inn MSS. Misc. 52 and Misc. 54, and the first printed edition. The edition that was first published in 1741 included only the cases from 1732 to 1739. Compared to the copy in Lincoln's Inn, they are not much different in quality from each other. The cases in the 1741 edition are the basis for this edition as far as they go. The learned apparatus of the third edition by John Griffith Williams (d. 1799) has not been …


The Purloined Debtor: Edgar Allan Poe’S Bankruptcy In Law And Letters, Erin L. Sheley, Zvi Rosen Jan 2023

The Purloined Debtor: Edgar Allan Poe’S Bankruptcy In Law And Letters, Erin L. Sheley, Zvi Rosen

Faculty Scholarship

This Article represents the first interdisciplinary case study of Edgar Allan Poe’s bankruptcy as an inflection point in the legal and cultural history of debt. Although Poe hardly leaps to mind for portrayals of legal procedure, much of his oeuvre reveals a terror of legal process as an interstitial principle. The anxiety around identity in Poe’s work reveals an ongoing struggle between an individual subject and two opposing yet equally degenerate legal statuses: possession and indebtedness. This opposition renders a distinct form of legal process legible in these texts: the then emerging law of bankruptcy. Poe declared bankruptcy at a …


Bridging The Gap In Lgbtq+ Rights Litigation: A Community Discussion On Bisexual Visibility In The Law, Nancy C. Marcus, Bendita Malakia, Ann E. Tweedy, Mya Reid Jan 2023

Bridging The Gap In Lgbtq+ Rights Litigation: A Community Discussion On Bisexual Visibility In The Law, Nancy C. Marcus, Bendita Malakia, Ann E. Tweedy, Mya Reid

Faculty Scholarship

This essay discusses the genesis of BiLaw, a coalition of Bi+ lawyers and law students, and highlights the importance of a 2021 Lavender Law session organized by BiLaw in which representatives of LGBT rights organizations discussed the erasure of Bi+ persons in jurisprudence and the importance of, and their commitment to, serving the needs of the Bi+ community, along with those of other stakeholders. A transcript of the groundbreaking discussion follows the essay.


Gouverneur Morris And The Drafting Of The Federalist Constitution, William M. Treanor Jan 2023

Gouverneur Morris And The Drafting Of The Federalist Constitution, William M. Treanor

Georgetown Law Faculty Publications and Other Works

The Salmon P. Chase Colloquium series has had two themes: One is great moments in constitutional law, and the other is people who have been forgotten but should not have been. This colloquium is primarily in the latter category—it is about a forgotten founder of the Constitution. But the Constitution has more than one forgotten founder. I did a Google search this afternoon for “Forgotten Founder” and there are a whole series of books on various people who are the Constitution’s Forgotten Founder. So the Chase Colloquium series has another decade of subjects: Luther Martin, George Mason, Charles Pinckney, Roger …


The Supreme Court Decisions On Guns And Abortion Relied Heavily On History. But Whose History?, Allison Orr Larsen Jul 2022

The Supreme Court Decisions On Guns And Abortion Relied Heavily On History. But Whose History?, Allison Orr Larsen

Popular Media

No abstract provided.


The Legacy Of Johnson V. Darr: The 1925 Decision Of The All-Woman Texas Supreme Court, Jeffrey D. Dunn May 2022

The Legacy Of Johnson V. Darr: The 1925 Decision Of The All-Woman Texas Supreme Court, Jeffrey D. Dunn

St. Mary's Law Journal

The Texas Supreme Court case of Johnson v. Darr,[1] the first case decided in any state by an all-woman appellate court, was a singular event in American legal history. On January 9, 1925, three women lawyers appointed by Texas Governor Pat Neff met at the state capitol in Austin to issue rulings solely on one case involving conflicting claims to several residential properties in El Paso. The special court was appointed because the three elected justices recused themselves over a conflict of interest involving one of the litigants, a popular fraternal organization called Woodmen of the World. The special …


Revisiting The History Of The Independent State Legislature Doctrine, Hayward H. Smith May 2022

Revisiting The History Of The Independent State Legislature Doctrine, Hayward H. Smith

St. Mary's Law Journal

In hopes of legitimizing the independent state legislature doctrine, its proponents have recently made two claims with respect to history, which this Article refers to as the Substance/Procedure Thesis and the Prevailing View Thesis. The former admits that the original understanding was that state “legislatures” promulgating election law pursuant to the Elector Appointment and Elections Clauses are required to comply with state constitutionally-mandated “procedural” lawmaking requirements (such as a potential gubernatorial veto), but asserts that they were otherwise understood to be independent of “substantive” state constitutional restraints. The latter asserts that the independent state legislature doctrine was the “prevailing view” …


Redressing The Past To Repair The Present: The Role Of Property Law In Creating And Exacerbating Racial Disparities In Wealth And Poverty In Nova Scotia, Melissa Marsman May 2022

Redressing The Past To Repair The Present: The Role Of Property Law In Creating And Exacerbating Racial Disparities In Wealth And Poverty In Nova Scotia, Melissa Marsman

LLM Theses

For over 200 years African Nova Scotians have been fighting to confirm legal title to the land on which their ancestors were settled. In 2020, the Nova Scotia Supreme Court remarked “the lack of clear title and the segregated nature of their land triggered a cycle of poverty for black families that persisted for generations.” Nova Scotia has a long history of obscure land titles; however, the ensuing cycle of poverty appears to have disproportionately impacted African Nova Scotians. This thesis reframes the African Nova Scotian land titles discourse into a broader understanding about systemic anti-Black racism and White supremacist …


Arkansas Law Review's 75th Anniversary Remarks, Steve Caple, Erron Smith Apr 2022

Arkansas Law Review's 75th Anniversary Remarks, Steve Caple, Erron Smith

Arkansas Law Review

It is an exciting time for the Arkansas Law Review, the School of Law, and the University of Arkansas. The journal is celebrating its 75th anniversary, the law school is approaching its 100th year of existence, and the university recently celebrated its 150th birthday.