Law Commons^™

The War(S) On Christmas In The Law Books, Kurt Metzmeier

Faculty Scholarship

This piece takes a reference to a December 25, 1823, session of the Kentucky Senate as a starting point to discuss the legal history of Christmas in America and specifically Kentucky from the Puritan era when it was banned, to the early 1800s when it was officially ignored, to the late 19th century when it was raised to a legal holiday (and when many of the day's tradition were created).

The Depravity Of The 1930s And The Modern Administrative State, Gary S. Lawson, Steven Calabresi

Faculty Scholarship

Gillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.

First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the normally unchallenged …

Centering Women In Prisoners' Rights Litigation, Amber Baylor

Faculty Scholarship

This Article consciously employs both a dignity rights-based framing and methodology. Dignity rights are those rights that are based on the Kantian assertion of “inalienable human worth.”29 This framework for defining rights spans across a number of disciplines, including medicine and human rights law.30 Disciplinary sanctions like solitary confinement or forced medication might be described as anathema to human dignity because of their degrading effect on an individual’s emotional and social well-being.

This Article relies on first-person oral histories where possible. Bioethics scholar Claire Hooker argues that including narratives in work on dignity rights “is both a moral and an …

Kentucky Criminal Law Reform In The Age Of Aquarius, Kurt Metzmeier

Faculty Scholarship

In Kentucky criminal law, it is useful to divide legal history into two broad eras: the years before the 1970s and those after that pivotal decade of reforms. The 1970s brought a new court system, a dramatic bail reform law which criminalized the hated bail-bondsmen and even a new court house. However, for the modern case law researcher the most significant change was the adoption of a statutory penal code—a code that marked a break between the two centuries of common-law crimes that preceded 1974 and the four decades afterwards.

Hls 200: A Latina's Story About The Bicentennial, Margaret E. Montoya

Faculty Scholarship

This essay sketches an arc from my childhood to being an Harvard Law School student to my academic work and professional commitments as a law professor and an alumna of Harvard Law School, working to increase access and success in the legal and medical professions for students and faculty of color. I compare aspects of legal and medical education using demographic data as well as some observations about how diverse faculty have transformed the two professions in their respective approaches to and rationales for diversifying the professions and examine the work being done by diverse faculty in law and health. …

Learned Hand's Seven Other Ideas About The Freedom Of Speech, Vincent A. Blasi

Faculty Scholarship

I say “other” because, regarding the freedom of speech, Learned Hand has suffered the not uncommon fate of having his best ideas either drowned out or credited exclusively to others due to the excessive attention that has been bestowed on one of his lesser ideas. Sitting as a district judge in the case of Masses Publishing Co. v. Patten, Hand wrote the earliest judicial opinion about the freedom of speech that has attained canonical status. He ruled that under the recently passed Espionage Act of 1917, writings critical of government cannot be grounds for imposing criminal punishment or the …

John Marshall’S Long Game. Review Of John Marshall: The Man Who Made The Supreme Court By Richard Brookhiser, Marc Arkin

Faculty Scholarship

No abstract provided.

Can The President Control The Department Of Justice?, Bruce A. Green

Faculty Scholarship

No abstract provided.

Finding Franklin, Marc Arkin

Faculty Scholarship

No abstract provided.

Martin, Ghana, And Global Legal Studies, H. Timothy Lovelace Jr.

Faculty Scholarship

This brief essay uses global legal studies to reconsider Dr. Martin Luther King, Jr.'s activism after Gayle v. Browder. During this undertheorized portion of King's career, the civil rights leader traveled the world and gained a greater appreciation for comparative legal and political analysis. This essay explores King's first trip abroad and demonstrates how King's close study of Kwame Nkrumah's approaches to law reform helped to lay the foundation for watershed moments in King's own life.

In To Redeem the Soul of America: The Southern Christian Leadership Conference and Martin Luther King, Jr., renowned civil rights scholar and author, Adam …

Corporate Personhood And The History Of The Rights Of Corporations: A Reflection On Adam Winkler’S Book We The Corporations: How American Businesses Won Their Civil Rights, Jack M. Beermann

Faculty Scholarship

Adam Winkler’s book We the Corporations: How American Businesses Won Their Civil Rights is an impressive work on several different levels. Because so much of the development of American constitutional law over the centuries has involved businesses, the book is a nearly comprehensive legal history of federal constitutional law. It certainly would be worthwhile reading for anyone interested in the constitutionality of economic regulation in the United States, spanning the controversies over the first and second Banks of the United States, through the Lochner era and present-day clashes over corporate campaign spending, and religiously-based exemptions to generally applicable laws such …

Centering Women In Prisoners' Rights Litigation, Amber Baylor

Faculty Scholarship

This Article consciously employs both a dignity rights-based framing and methodology. Dignity rights are those rights that are based on the Kantian assertion of “inalienable human worth." This framework for defining rights spans across a number of disciplines, including medicine and human rights law.30 Disciplinary sanctions like solitary confinement or forced medication might be described as anathema to human dignity because of their degrading effect on an individual’s emotional and social well-being.

This Article relies on first-person oral histories where possible. Bioethics scholar Claire Hooker argues that including narratives in work on dignity rights “is both a moral and an …

Text Over Intent And The Demise Of Legislative History, Thomas W. Merrill, Michael S. Paulsen, Saikrishna Prakash, Lawrence B. Solum, Sandra Segal Ikuta

Faculty Scholarship

The following is the transcript of a 2016 Federalist Society panel entitled: Text Over Intent and the Demise of Legislative History. The panel originally occurred on November 17, 2016 during the National Lawyers Convention in Washington, D.C. The participants were: Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School; Prof. Michael S. Paulsen, Distinguished University Chair and Professor, University of St. Thomas School of Law; Prof. Saikrishna Prakash, James Monroe Distinguished Professor of Law, University of Virginia School of Law; Prof. Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center. The moderator was …

The Legacy Of Civil Rights And The Opportunity For Transactional Law Clinics, Lynnise E. Pantin

Faculty Scholarship

At the end of the historic march from Selma to Montgomery in 1965, Reverend Dr. Martin Luther King Jr. famously paraphrased abolitionist and Unitarian minister Theodore Parker stating, “the arc of the moral universe is long, but it bends towards justice.” The implication of the phrase is that the social justice goals of the Civil Rights Movement would eventually be achieved. His prayer was that servants of justice would be rewarded in due time. In other words, that the goals of the Civil Rights Movement would be achievable at some point in the future. President Obama resurrected the phrase throughout …