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Une Histoire Pragmatique Du Politique, William J. Novak, Stephen W. Sawyer

Articles

Comme le montre ce numero, nous ne sommes guere en manque de tentatives recentes de repenser l'histoire du politique. En effet, deux generations d'historiens ont deja produit un grand nombre de nouvelles approches et de perspectives a partir desquelles il est maintenant possible d'etudier l'histoire politique a nouveaux frais. Dans le contexte historiographique americain, nous avons ete temoins d'une serie de nouvelles approches allant de ce que l'on a appele la « nouvelle histoire sociale politique » des annees 1970 a l'effort des sciences sociales pour « repenser l'Etat » (Bringing the State Back In) dans les annees 1980 et …

A Revisionist History Of Products Liability, Alexandra D. Lahav

Michigan Law Review

Increasingly courts, including the Supreme Court, rely on ossified versions of the common law to decide cases. This Article demonstrates the risks of this use of the common law. The main contribution of the Article is to demonstrate that the traditional narrative about early products law—that manufacturers were not liable for injuries caused by their products because the doctrine of privity granted producers immunity from suit by the ultimate consumers of their goods—is incorrect. Instead, the doctrinal rule was negligence liability for producers of injurious goods across the United States in the nineteenth century. Courts routinely ignored or rejected privity …

Antitrust And The Corporate Tax, 1909–1928, Reuven S. Avi-Yonah

Book Chapters

In “Antitrust and the Corporate Tax, 1909–1928,” Reuven Avi-Yonah examines a twentieth-century antitrust measure that lay outside the Sherman Act per se—the corporate tax act of 1909. After the enactment of the Clayton Act and the creation of the FTC in 1914, the corporate tax’s antimonopoly reputation faded somewhat. Between 1919 and 1928 most of its antitrust features were eliminated, and they would not be revived during the New Deal. Nevertheless, Avi-Yonah argues that the corporate tax still retains some potential to contribute to limiting the power of monopolies, especially if the progressive corporate tax rate structure adopted in the …

Race, Gatekeeping, Magical Words, And The Rules Of Evidence, Bennet Capers --

Vanderbilt Law Review

Although it might not be apparent from the Federal Rules of Evidence themselves, or the common law that preceded them, there is a long history in this country of tying evidence-what is deemed relevant, what is deemed trustworthy-to race. And increasingly, evidence scholars are excavating that history. Indeed, not just excavating, but showing how that history has racial effects that continue into the present.

One area that has escaped racialized scrutiny-at least of the type I am interested in-is that of expert testimony. Even in my own work on race and evidence, I have avoided discussion of expert testimony. In …

Benjamin N. Cardozo Papers, Dr. Lillian & Dr. Rebecca Chutick Law Library

Finding Aids

This finding aid describes the Benjamin N. Cardozo papers, which include handwritten notes, manuscripts, speeches, essays, and correspondence created by or related to Benjamin N. Cardozo. Materials document his legal thought, professional activities, and correspondence, particularly with his secretary Joseph M. Paley. The collection also includes notes on legal concepts and petitions before the United States Supreme Court.

Repository: Dr. Lillian & Dr. Rebecca Chutick Law Library, Benjamin N. Cardozo School of Law, Yeshiva University

Extent: 3 linear feet (6 boxes)

Arrangement: The collection is arranged in three series: Writings, Speeches, and Notes; Correspondence; and Other Papers. …

Bureaucratic Overreach And The Role Of The Courts In Protecting Representative Democracy, Katie Cassady

Liberty University Journal of Statesmanship & Public Policy

The United States bureaucracy began as only four departments and has expanded to address nearly every issue of public life. While these bureaucratic agencies are ostensibly under congressional oversight and the supervision of the President as part of the executive branch, they consistently usurp their discretionary authority and bypass the Founding Fathers’ design of balancing legislative power in a bicameral Congress.

The Supreme Court holds an indispensable role in mitigating the overreach of executive agencies, yet the courts’ inability to hold bureaucrats accountable has diluted voters’ voices. Since the Supreme Court’s 1984 ruling in Chevron, U.S.A. v. Natural Resources Defense …

Brief Of Amicus Curiae Tax Professors In Support Of Respondent In Moore V. United States, Donald B. Tobin, Ellen P. Aprill

Faculty Scholarship

Petitioners in Moore v. United States have argued to the Supreme Court that the word “incomes” in the Sixteenth Amendment authorizes only the taxation of “realized” income. Thus, they assert, a repatriation tax (referred to as MRT) in the Tax Cuts and Jobs Act is invalid because it taxes unrealized gains. While other briefs in the case explain that, as properly understood, the tax at issue taxes only realized gains, this brief counters the petitioners’ Sixteenth Amendment argument. It explains that economists, accountants, and lawyers in the early twentieth century all defined income in broad terms, embracing the definition of …

The Assassination Of Dr. Martin Luther King: Understanding The Criminal Behavior And Prosecution Of James Earl Ray, Scott P. Johnson

Ohio Northern University Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Taking Aim At New York's Concealed Carry Improvement Act, Leo Bernabei

Fordham Law Review

In June 2022, the U.S. Supreme Court held in New York State Rifle & Pistol Ass’n v. Bruen that New York’s requirement, which mandated that applicants for concealed carry licenses show proper cause for carrying a handgun in public, violated the Second and Fourteenth Amendments. Responding to the likely increase in individuals licensed to carry handguns in the state, New York enacted the Concealed Carry Improvement Act (CCIA). This law bans all firearms from many places of public congregation, establishes a default rule that firearms are not allowed on private property without the owner or lessee’s permission, and sets additional …

Flourishing, Virtue, And The Common Good Constitutionalism, Lawrence B. Solum

Faculty Scholarship

In Common Good Constitutionalism, Professor Adrian Vermeule articulates a conception of the common good. Vermeule has much to say about the common good, but very little to say about the substantive component of his conception, which he describes as “happiness or flourishing.” This Article articulates a conception of the common good that is grounded in a virtue-centered conception of human flourishing. Humans are rational and social creatures, and therefore, flourishing for humans consists in rational and social activities that express the human excellence or virtues. The common good requires communities that facilitate human flourishing in three ways: (1) by creating …

Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum

Faculty Scholarship

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about …

Horace Binney (1780–1875): A Philadelphia Legend, Joel Fishman

Law Faculty Publications

Horace Binney was the leading lawyer of Philadelphia during the first three-quarters of the nineteenth century. As a practitioner before the State and Federal Courts, including the case of Vidal v. Girard’s Executors (the Girard Will Case) in the U.S. Supreme Court (1844), and for his numerous civic activities and legal writings, Binney was one of the most accomplished lawyers that ever graced the Philadelphia bar. This article will review his life and works.

Revisiting Rights-Talk In Magna Carta: Applying Hohfeld To The Problem, Jason Taliadoros

William & Mary Bill of Rights Journal

This Article attempts to resurrect rights-talk in Magna Carta and, in doing so, to revisit rights discourses in the histories of rights more generally. It does so by means of a rights discourse that is axiomatic and therefore arguably free from the contentious underpinnings that potentially beset many historical accounts of rights. This is the formalistic account of rights offered by influential legal theorist Wesley Hohfeld. Against charges that it is anachronistic to apply a modern formalist legal theory such as Hohfeld’s to pre-modern sources, it is contended that this same accusation could be levelled at any other attempt to …

A Crazy Quilt: Infanticide In The United States, Susan Ayres

Faculty Scholarship

This chapter builds on previous research to present a sampling of cases in the US, primarily in the twenty-first century, in order to show the harshness and disparity in criminal charges, defences and sentences. The broad term ‘infanticide’ is used for child-murder cases, and the more specific term ‘neonaticide’ is used for the killing of a child in the first 24 hours after birth. This chapter also describes the more recent use of genetic genealogy to solve cold cases of neonaticide. It concludes by considering how the absence of an infanticide offence and expanded defences results in an incoherent, unjust …

Navigating Campaign Finance Reform Through Publicly Funded Elections On The Local Level, Emily Bernstein

Cardozo Law Review

Despite the Constitution’s silence on the issue of campaign finance, the Supreme Court has had a considerable hand in shaping the campaign finance regulatory structure of the United States. There are countless criticisms of the campaign finance system the Court has constructed. On the one hand, some scholars stipulate that, though they are critical of the system, it is an intelligible “product” of the Constitution. On the other hand, others argue that the “vision of democracy” portrayed in money-in-politics decisions is not faithful to the Constitution.

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

Scholarly Articles in Law Reviews & 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 …

The Role Of U.S. Government Regulatioms, Bert Chapman

Libraries Faculty and Staff Presentations

Provides detailed coverage of information resources on U.S. Government information resources for federal regulations. Features historical background on these regulations, details on the Federal Register and Code of Federal Regulations, includes information on individuals can participate in the federal regulatory process by commenting on proposed agency regulations via https://regulations.gov/, describes the role of presidential executive orders, refers to recent and upcoming U.S. Supreme Court cases involving federal regulations, and describes current congressional legislation seeking to give Congress greater involvement in the federal regulatory process.

Counting To Four: The History And Future Of Wisconsin's Fractured Supreme Court, Jeffrey A. Mandell, Daniel J. Schneider

Marquette Law Review

Over the past decade, the Wisconsin Supreme Court has issued “fractured” opinions—decisions without majority support for any one legal rationale supporting the outcome—at an alarming clip. These opinions have confounded legal analysts, attorneys, and government officials due to their lack of majority reasoning, but also due to their length and the court’s particular procedures for assigning, drafting, and labelling opinions. This has become especially problematic where the court has issued fractured opinions in areas core to the basic functioning of state and local government, leaving the state without clear precedential guidance on what the law is. Yet, virtually no one …

Disparities On Judicial Conduct Commissions, Nino C. Monea

Marquette Law Review

Every state has a judicial conduct commission responsible for investigating complaints against judges and issuing sanctions where appropriate. But the judicial disciplinary system needs fixing. This Article examines 466 cases of public discipline from five states to illustrate the shortcomings of the present system. The status quo hides judicial misconduct from the public, fails to punish judges who abuse their office, and gives judges greater protections than criminal defendants, even when the stakes are lower.

Delegation Inside The Executive Branch, Stephen Migala

Nevada Law Journal

For nearly 200 years, legal authorities from the Supreme Court to the Restatements to several attorneys general, have relied on a legal maxim to consistently conclude that duties requiring judgment assigned to one officer by Congress cannot be redelegated to another without express statutory authority. As a result of this black-letter-law maxim, hundreds of statutes have been enacted to carefully grant express, targeted delegation authority to specific officers.

But particularly in the last twenty years, this once-solid maxim been flipped on its head. Now, instead of looking for an officer’s express authority to redelegate to a subordinate, also known as …

“Bending The Law” – Weimar Judiciary And The Political Bias Paradox Of The Legal System, Irit Bloch

Dissertations, Theses, and Capstone Projects

This interdisciplinary, microhistory project which draws on historical, legal and sociological methodologies, examines the relationship between a new and unstable democracy and a hostile judicial system in the Weimar Republic (Germany, 1919-1933). In particular, it asks how Weimar judges who were bound to codes of law and adhered to the rule of law were able to manipulate laws and to produce judgments along ideological lines while keeping a semblance of legality. By analyzing judicial decisions in three non-political, criminal cases, this research explains the mechanism of subversion and offers a nuanced explanation for the judiciary's motivations to abuse the law. …

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

The Persistent Limits Of Fraud Prevention In Historical Perspective, Emily Kadens

Northwestern University Law Review

Fraud has been ubiquitous throughout history, and so have the methods of fraud prevention. History demonstrates that no anti-fraud measures have fully succeeded in eliminating deceptive market behavior. Instead, this Essay uses evidence from premodern England to argue that societies and individual contracting parties balance tolerating a certain amount of fraud against the costs of fraud prevention.

Texans Shortlisted For The U.S. Supreme Court: Why Did Lightning Only Strike Once?, The Honorable John G. Browning

St. Mary's Law Journal

No abstract provided.

Texas Juvenile Justice: The Need For A “Second Look” At Juvenile Prison Sentences, Kyle Jenkins

St. Mary's Law Journal

No abstract provided.

The History Of Forensic-Science Evidence In Criminal Trials And The Role Of Early “Success” In Establishing Its Putative Reliability, Carrie Leonetti

St. Mary's Law Journal

This Article posits the history of forensic-science evidence plays a significant role in the unquestioning manner of its modern acceptance. It traces early high-profile forensic science “successes” and the public reactions to them. It argues the public perception of the “advances” of forensic science continues to play a role in the lack of scrutiny given to these disciplines in admissibility decisions today. It concludes, when it comes to forensic science, history should play a different role by serving as a critical warning rather than a congratulatory buttress.

The Lawyer’S Law School And The Metropolis: Two Law Schools’ Missions, Carlos R. Rosende

St. Mary's Law Journal

No abstract provided.

The Next Required Law School Course: History Of America’S Foundings, Kevin Frazier

St. Mary's Law Journal

No abstract provided.

Ethics At The Speed Of Business, James A. Doppke Jr.

DePaul Business & Commercial Law Journal

This paper discusses several ways in which the Illinois Rules of Professional Conduct, and the Illinois Supreme Court Rules, construct barriers that prevent lawyers and businesses from accomplishing reasonable commercial goals. Often, those barriers arise from outdated concepts, or terminology that does not reflect current business realities. The paper argues for the amendment of specific Rules to enhance lawyers’ and businesses’ respective abilities to conduct their affairs more efficiently, without sacrificing public protection in the process.