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False Witness: A Lawyer's History Of The Law Of Perjury, Richard H. Underwood

Law Faculty Scholarly Articles

From Cain to Potiphar's Wife to the pig and chicken laws of the Lex Salica of Clovis I, Professor Underwood examines the role of the false witness throughout history. Take a voyage extraordinaire and encounter some of history's most notorious perjurers.

On Misreading John Bingham And The Fourteenth Amendment, Richard L. Aynes

Akron Law Faculty Publications

Nearly fifty years ago, Professor Charles Fairman published his seminal article, Does the Fourteenth Amendment Incorporate the Bill of Rights? According to Fairman, it does not. Fairman's analysis of the congressional debates and other historical data on the Fourteenth Amendment led him to conclude that the Privileges or Immunities Clause of the Amendment does not make the Bill of Rights applicable to the states. Instead, Fairman argued that the intent of the Amendment's framers is most nearly realized by the use of the Due Process Clause to enforce against the states only those rights “ ‘implicit in the concept of …

Baseline Problems In Assessing Chapter 11, Theodore Eisenberg

Cornell Law Faculty Publications

Dealing with failing businesses is like dealing with failing marriages. It is messy. The bigger the business the messier the process is likely to be. Many big business failures in the United States go through their death throes or cure their ills in reorganizations under Chapter 11 of the Bankruptcy Act. As the vehicle in which big business messes travel, Chapter 11 is viewed as unnecessarily complex, time-consuming, and costly. The justification for Chapter 11's very existence has been challenged.

This article suggests that we are blaming the vehicle for the mess that it carries. Much of what is problematic …

The Booth Cases: Final Step To The Civil War, Jenni Parrish

Faculty Scholarship

No abstract provided.

A Tasty Tidbit (Review Essay), John Henry Schlegel

Book Reviews

Reviewing Martin J. Horwitz, The Transformation of American Law 1870-1960: The Crisis of Legal Orthodoxy (1992).

Book Review: Mapping Legal History’S Middle Ground, Richard B. Bernstein

Articles & Chapters

No abstract provided.

South Carolina's Largest Slave Auctioneering Firm, Thomas D. Russell

Sturm College of Law: Faculty Scholarship

This article presents the original finding that South Carolina's legal system conducted a majority of the state's slave auctions during the antebellum years.Courts conducted slave auctions in several circumstances. Sheriffs sold the property of debtors; and courts also conducted or supervised sales in order to divide estates. Drawing upon extensive empirical analysis of primary sources in various South Carolina archives, this article compares the total number of slaves sold at court-ordered or court-supervised sales with the best empirical estimates for private slave sales - whether at auction or not. The conclusion is that the courts acted as the state's greatest …

Did The First Justice Harlan Have A Black Brother?, James W. Gordon

Faculty Scholarship

This Article summarizes the careers of James, John, and Robert Harlan. It then examines the evidence of the blood relationship between Robert Harlan and James Harlan, and speculates on the influence that John Harlan's contact with Robert Harlan might have had in shaping John's views on race. Finally, the Article reflects on the implications of the careers of John and Robert Harlan for our understanding of race in late nineteenth century America.

Imagining Justice: Aesthetics And Public Executions In Late Eighteenth-Century England, Steven Wilf

Faculty Articles and Papers

No abstract provided.

Foreword: The Challenge Of Rio, David H. Getches

Publications

No abstract provided.

Charles Evans Hughes And The Blaisdell Decision: A Historical Study Of Contract Clause Jurisprudence, 72 Or. L. Rev. 513 (1993), Samuel R. Olken

UIC Law Open Access Faculty Scholarship

No abstract provided.

Foreword: The Law Of Federal Judicial Discipline And The Lessons Of Social Science, Stephen B. Burbank, Sheldon Jay Plager

All Faculty Scholarship

No abstract provided.

Historical Framework For Reviving Constitutional Protection For Property And Contract Rights , James L. Kainen

Faculty Scholarship

Post-New Deal constitutionalism is in search of a theory that justifies judicial intervention on behalf of individual rights while simultaneously avoiding the charge of "Lochnerism."' The dominant historical view dismisses post-bellum substantive due process as an anomalous development in the American constitutional tradition. Under this approach, Lochner represents unbounded protection for economic rights that permitted the judiciary to read laissez faire, pro-business policy preferences into the constitutional text. Today's revisionists have mounted a substantial challenge to the dismissive views of traditionalists. Indeed, some claim Lochner reached the right result, but for the wrong reason. The revisionists characterize substantive due process …

Caesar Would Have Arbitrated, Hugh D. Spitzer

Articles

With the recent increase in mandatory arbitration for small civil disputes and voluntary arbitration for much larger cases, it is easy to suppose that dispute resolution by someone other than a government- appointed judge is a novel, imaginative creation of the modern legal system.

But for the Romans who lived in Julius Caesar's time, indeed from several hundred years B.C. to at least 300 A.D., most civil matters never went to an official "judge." Instead, almost all such disputes were resolved by a lay arbitrator under a remarkably flexible and enduring system of civil procedure that worked as effectively as …

Thinking Property At Rome, Alan Watson

Scholarly Works

It is a commonplace among writers on slavery that there is an inherent contradiction or a necessary confusion in regarding slaves as both human beings and things. In law there is no such contradiction or confusion. Slaves are both property and human beings. Their humanity is not denied but (in general) they are refused legal personality, a very different matter.

Things as property may be classed in various ways, and the classification may then have an impact on owners' rights and duties. A thing may be corporeal or incorporeal, immoveable or moveable. Some moveables may be classed as res se …

A Contemporary Definition Of The International Norm Of Self-Determination, S. James Anaya

Publications

No abstract provided.

"Mastering The Lawless Science Of Our Law": A Story Of Legal Citation Indexes, Patti J. Ogden

Journal Articles

Ms. Ogden presents a history of American legal citation indexes, covering early nineteenth-century attempts, the development of modern citator systems by Frank Shepard and others, online citation systems, and the potential for future improvements in an essential tool of legal research.

Confirming The Constitution: The Role Of The Senate Judiciary Committee, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Federalist Papers: The Framers Construct An Orrery, Harold H. Bruff

Publications

No abstract provided.

Negotiated Sovereignty: Intergovernmental Agreements With American Indian Tribes As Models For Expanding First Nations’ Self-Government, David H. Getches

Publications

Constitutional issues related to First Nations sovereignty have dominated Aboriginal affairs in Canada for a considerable period. The constitutional entrenchment of Aboriginal self-government has, however, received a setback with the recent failure of the Charlottetown Accord in October of 1992. Nonetheless, day-to-day issues must be accommodated, even while this more fundamental constitutional question remains unresolved. This paper illustrates the American experience with negotiated intergovernmental agreements between tribes and individual states. These agreements have, for example, resolved jurisdictional disputes over taxation, solid waste disposal, and law enforcement between state governments and tribal authorities. The author suggests that these intergovernmental agreements in …

Land Of Fire, Land Of Conquest: The Colorado Plateau And Some Questions For Its Future, Charles F. Wilkinson

Publications

No abstract provided.

Book Review. Utopianism, Epistemology, And Feminist Theory, Susan H. Williams

Articles by Maurer Faculty

No abstract provided.

Equality And Diversity: The Eighteenth-Century Debate About Equal Protection And Equal Civil Rights, Philip A. Hamburger

Faculty Scholarship

Living, as we do, in a world in which our discussions of equality often lead back to the desegregation decisions, to the Fourteenth Amendment, and to the antislavery debates of the 1830s, we tend to allow those momentous events to dominate our understanding of the ideas of equal protection and equal civil rights. Indeed, historians have frequently asserted that the idea of equal protection first developed in the 1830s in discussions of slavery and that it otherwise had little history prior to its adoption into the U.S. Constitution. Long before the Fourteenth Amendment, however – long before even the 1830s …

Margery Hunter Brown: Teacher, Scholar, And First Citizen Of Montana, Charles F. Wilkinson

Publications

No abstract provided.

From Askhabad, To Wellton-Mohawk, To Los Angeles: The Drought In Water Policy, David H. Getches

Publications

No abstract provided.

Rethinking The Rule Of Law: A Demonstration That The Obvious Is Plausible, Francis J. Mootz Iii

Scholarly Works

In this Article, I defend the Rule of Law from its detractors in the academy by uncovering and criticizing the unsound presuppositions driving their critiques. I acknowledge that these critiques raise two different problems for those who defend the plausibility of the Rule of Law: The problem of ensuring legal innovation and the problem of supplying effective constraint. In response to these problems, I locate our faith in the Rule of Law in the hermeneutical practice in which we are engaged as lawyers. Jurisprudential characterizations of the problems of constraint and innovation are misguided reactions to the narrow Enlightenment conception …

Is The Rule Of Law Possible In A Postmodern World?, Francis J. Mootz Iii

Scholarly Works

The Rule of Law is the core of our political and legal ideology, but the Rule of Law increasingly is attacked as an unattainable goal. Postmodern theorists challenge whether it makes sense to believe that rules can be formulated for general application and then later neutrally applied by decision makers. Postmodern theorists reject the Enlightenment world view and its political corollary, classical liberalism. The author agrees with the spirit of the postmodern critique, but argues that we can understand the Rule of Law in a manner consonant with postmodern thought. Drawing on the Continental tradition of hermeneutics, or the philosophy …

Book Review Of Legal Hermeneutics: History, Theory And Practice, Edited By G. Leyh, Edward A. Purcell Jr.

Other Publications

No abstract provided.

Using Comparative Fault To Replace The All-Or-Nothing Lottery Imposed In Intentional Torts Suits In Which Both Plaintiff And Defendant Are At Fault , Gail D. Hollister

Faculty Scholarship

All or nothing. For years this idea of absolutes has been a hallmark of tort law despite the inequities it has caused. Plaintiffs must either win a total victory or suffer total defeat. In recent years courts and legislatures have begun to recognize the injustice of the all-or-nothing approach and to replace it with rules that permit partial recoveries that are more equitably tailored to the particular facts of each case. The most dramatic example of this more equitable approach is the nearly universal rejection of contributory negligence in favor of comparative fault in negligence cases. Almost all jurisdictions, however, …

The Right To Privacy In The Pennsylvania Constitution, Seth F. Kreimer

All Faculty Scholarship

No abstract provided.