Law Commons^™

A Different Sort Of Justice: The Informal Courts Of Public Opinion In Antebellum South Carolina, Elizabeth Dale

Elizabeth Dale

Studies of nineteenth century legal history assume that the antebellum South, and antebellum South Carolina in particular, had a legal culture shaped by honor culture and marked by the hierarchical assumptions and extralegal violence that honor culture engendered. In this article, I offer a modification of that well-established account. While I do not question the influence of honor on South Carolina's antebellum legal culture, I suggest that the state had a second, shame-based system of popular justice, in which women played a prominent role. As was the case with honor culture, this second form of extralegal justice, which I have …

Progressive Legal Thought, Herbert Hovenkamp

Herbert Hovenkamp

A widely accepted model of American legal history is that classical legal thought, which dominated much of the nineteenth century, was displaced by progressive legal thought, which survived through the New Deal and in some form to this day. Within its domain, this was a revolution nearly on a par with Copernicus or Newton. This paradigm has been adopted by both progressive liberals who defend this revolution and by classical liberals who lament it. Classical legal thought is generally identified with efforts to systematize legal rules along lines that had become familiar in the natural sciences. This methodology involved not …

Inventing The Classical Constitution, Herbert Hovenkamp

Herbert Hovenkamp

One recurring call over a century of American constitutional thought is for return to a “classical” understanding of American federal and state Constitutions. “Classical” does not necessarily mean “originalist” or “interpretivist." Some classical views, such as the attempt to revitalize Lochner-style economic due process, find little support in the text of the federal Constitution or any of the contemporary state constitutions. Rather, constitutional meaning is thought to lie in a background link between constitution formation and classical statecraft. The core theory rests on the assumption of a social contract to which everyone in some initial position agreed. Like any …

Professionalism For The 21st Century: Independence In Context, Rebecca Roiphe

Rebecca Roiphe

Most scholars condemn professionalism as self-serving, anti-competitive rhetoric. This Article argues that professionalism can be a positive and productive way of thinking about lawyers’ work. While it is undoubtedly true that the Bar has used the ideology of the professional role to support self-interested and bigoted causes, professionalism has also served as an important way of developing and marshalling group identity to promote useful ends. The critics of professionalism tend to view it as an ideology, according to which professionals, unlike businessmen, are concerned not with their own financial gain but with the good of their clients and the community …

Lochner, Liquor, And Longshoremen: A Puzzle In Progressive Era Federalism, Barry Cushman

Barry Cushman

In 1890, the Supreme Court shocked and thrilled the civilized world with the announcement that dry states could not prohibit the sale of liquor shipped in from outside the state. So long as the out-of-state goods remained in their "original packages," the Court held they retained their character as interstate commerce subject only to federal regulation. The consequences for the cause of local sobriety were, predictably, catastrophic. The proliferation in temperance territory of "original package saloons," at which one could purchase liquor free from the superintendence of local liquor authorities, was appalling to dry eyes. Members of Congress immediately proposed …

Testimony To The Committee On Financial Institutions, Kansas House Of Representatives March 13, 2014, Brian M. Mccall

Brian M McCall

This document contains the text of testimony given before the Committee on Financial Institutions, Kansas House of Representatives March 13, 2014, in a hearing to address potential changes to the regulation of payday lending in Kansas.

The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt

Christopher W. Schmidt

Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Essay explains how this differentiation arose and considers its consequences.

Although there is a certain inherent logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech …

Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page

Cathren Page

Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s …

Burden Of Decision: Judging Presidential Disability Under The Twenty-Fifth Amendment, Daniel J.T. Schuker

Daniel Schuker

This Article offers a new approach to understanding, classifying, and assessing cases of presidential disability. In constitutional terms, “presidential disability” refers to any condition that renders the President of the United States “unable to discharge the powers and duties” of the office. Remarkably, the existing legal infrastructure under the Twenty-Fifth Amendment provides no guidance for determining when a President has become constitutionally disabled. Nor does it explain when the President (under Section 3) should initiate the succession process, and when the Vice President and other senior officials (under Section 4) should take the lead instead. During crises of presidential disability, …

Danbury Hatters In Sweden: A U.S. Perspective On The Available Remedies And Sanctions For Employers Who Suffer Unfair Labor Practices By Labor Unions, César F. Rosado Marzán, Margot Nikitas

César F. Rosado Marzán

The European Court of Justice's ("ECJ") Laval quartet held that worker collective actions that impacted freedom of services and establishment in the E.U. violated E.U. law. After Laval, the Swedish Labor Court imposed exemplary or punitive damages on labor unions for violating E.U. law. These cases have generated critical discussions regarding not only the proper balance between markets and workers’ freedom of association, but also what should be the proper remedies for employers who suffer illegal actions by labor unions under E.U. law. While any reforms to rebalance fundamental freedoms as a result of the Laval quartet will have to …

Legal History And The Politics Of Inclusion, Felice Batlan

Felice J Batlan

Book Review: Larry Haeg, Harriman Vs. Hill: Wall Street's Great Railroad War, Sean M. Kammer

Sean Kammer

No abstract provided.

Decorating The Structure: The Art Of Making Human Law, Brian M. Mccall

Brian M McCall

Entender Los Males Económicos Modernos A La Luz De La Doctrina Social Católica, Brian M. Mccall

Brian M McCall

In a general sense, St. Thomas Aquinas predicted the paralysis and chaos of the financial and economic systems in America and Europe which occurred in 2008, when he predicted that in a society where unjust exchanges dominate, eventually all exchanges will cease. St. Thomas also points out that although human law cannot prohibit all injustice, society cannot escape the consequences of transgressing the divine law which leaves “nothing unpunished.” Thus, at least part of the explanation for that crisis whose effects remain with us today lies in continuous violations of natural justice by our economic system. Neither one product nor …

Gambling On Our Financial Future: How The Federal Government Fiddles While State Common Law Is A Safer Bet To Prevent Another Financial Collapse, Brian M. Mccall

Brian M McCall

Entender Los Males Economómicos Modernos A La Luz De La Doctrina Social Cátolica (Understanding Modern Economic Woes In Light Of Catholic Social Doctrine), Brian M. Mccall

Brian M McCall

En sentido general, Santo Tomás Aquino predijo la parálisis y el caos del sistema financiero económico en Estados Unidos y Europa que ocurrió en 2008, cuando predijo que en una sociedad donde los intercambios injustos dominan, eventualmente todos los intercambios podrán cesar. Santo Tomás también señala que aunque la ley humana no pueda prohibir todas las injusticias, la sociedad no puede escapar de las consecuencias de trasgredir la ley divina que no deja nada en la impunidad. Así, al menos una parte de la explicación para esta crisis cuyos efectos permanecen con nosotros en la actualidad se encuentra en las …

"No Trespassing": Railroad Land Grants, The Right Of Exclusion, And The Origins Of Federal Forest Conservation, Sean M. Kammer

Sean Kammer

The Forest Management Act of 1897 established a management model for public lands that, for the most part, remains intact. It embodies a balancing of control and conservation of forest resources such as timber, minerals, and forage with provisions for the exploitation of those resources for private gain. This article explores the historical context in which this landmark legislation arose. It examines the role of large railroad companies, particularly those that received extensive land subsidies, in first challenging the long-standing custom of timber as an open-access resource in the American West. By enforcing their right of exclusion against timber trespassers …

The Breakthrough: Human Rights In The 1970s (Book Review), Richard J. Wilson

Richard J. Wilson

Conceptions Of Agency In Social Movement Scholarship: Mack On African American Civil Rights Lawyers [Comments], Susan D. Carle

Susan D. Carle