Law Commons^™

Historical Sketch Of The Indiana University, David Demaree Banta

David Banta (1889-1896)

Historical sketch of Indiana University from its founding until 1889. It is unknown when this piece was written or if it was published.

Deal Leaves Court Issues Unresolved, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Reforming High School American History Curricula: What Publicized Student Intolerance Can Teach Policymakers, Douglas E. Abrams

Faculty Publications

This article concerns the way public high schools teach American history under curricula and standards mandated by state law. “We’re raising young people who are, by and large, historically illiterate,” says David McCullough, the dean of American historians.

The article describes three recent nationally publicized incidents in which high school students belittled lynching and the Trail of Tears, evidently without appreciating the episodes’ legal and historical significance to African Americans and Native Americans respectively. Standards and textbooks typically recognize diversity and multiculturalism, but research and surveys indicate that classroom teachers frequently sanitize or avoid discomforting topics that might trigger complaints, …

September 11, 2014: National Motto Fails In Allegheny County, Bruce Ledewitz

Hallowed Secularism

Blog post, “National Motto Fails in Allegheny County“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 19, 2014: The Problem With Capitalism, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Problem With Capitalism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Gideon V. Wainwright--From A 1963 Perspective, Jerold H. Israel

Articles

Gideon v. Wainwright is more than a “landmark” Supreme Court ruling in the field of constitutional criminal procedure. As evidenced by the range of celebrators of Gideon’s Fiftieth Anniversary (extending far beyond the legal academy) and Gideon’s inclusion in the basic coverage of high school government courses, Gideon today is an icon of the American justice system. I have no quarrel with that iconic status, but I certainly did not see any such potential in Gideon when I analyzed the Court’s ruling shortly after it was announced in March of 1963. I had previously agreed to write an article for …

July 1, 2014: Another Reason To Hate Religion, Bruce Ledewitz

Hallowed Secularism

Blog post, “Another Reason to Hate Religion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

April 17, 2014: Cowardice And Hypocrisy At Brandeis, Bruce Ledewitz

Hallowed Secularism

Blog post, “Cowardice and Hypocrisy at Brandeis“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Pa. Gay Marriage With An Exemption, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …

Gideon V. Wainwright A Half Century Later, Yale Kamisar

Reviews

When he was nearing the end of his distinguished career, one of my former law professors observed that a dramatic story of a specific case "has the same advantages that a play or a novel has over a general discussion of ethics or political theory." Ms. Houppert illustrates this point in her very first chapter.

Magna Carta’S Freedom For The English Church, Dwight G. Duncan

Faculty Publications

Even after, eight centuries, this provision of Magna Carta is one of the few that remains in effect. A statement of principle that the Church in England should be free from outside domination, it is an ancestor of our American belief in separation of Church and State and the guarantee of free exercise of religion contained in the First Amendment. In English history, people died for this principle, on various sides of the denominational divides. It was not always vindicated in practice. But, since at least the end of the thirteenth century, it has ever been on the statute books …

Experimenting With Religious Liberty: The Quasi-Constitutional Status Of Religious Exemptions, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Legal Writing: A History From The Colonial Era To The End Of The Civil War, David R. Cleveland

Law Faculty Publications

No abstract provided.

Corporate Taxation And Corporate Social Responsibility, Reuven S. Avi-Yonah

Articles

This Article will address the question of whether publicly traded U.S. corporations owe a duty to their shareholders to minimize their corporate tax burden through any legal means, or if instead, strategic behaviors like aggressive tax-motivated transactions are inconsistent with corporate social responsibility (“CSR”). I believe the latter holds true, regardless of one’s view of the corporation. Under the “artificial entity” view, such behavior undermines the constitutive relationship between the corporation and the state. Under the “real view,” such behavior runs contrary to the normal obligation of citizens to comply with the law (even absent effective enforcement). And under the …

Feeling Another's Pain: Sympathy And Psychology Saga Style, William I. Miller

Articles

Progress is hardly a given in the humanities or the suspect sciences. In many ways we are not quite as astute as our grandparents, and they not as much as theirs, and so forth in an infinite entropic regress. Would I trade Montaigne or Stendhal’s psychological acumen for even the best work that comes from social psychology departments? In this short essay I want to show just how good some medieval people, medieval Icelanders to be exact, were at understanding the mental and emotional states of others, and if of others then presumably, though not necessarily, also of themselves. And …

The Vietnam Draft Cases And The Pro-Religion Equality Project, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Anti-Radicalism And History From Below, Rowan Cahill

Faculty of Law, Humanities and the Arts - Papers (Archive)

In 1969, American historian Jesse Lemisch was in his early thirties. His politics and approach to history were shaped by the Cold War, as well as his involvements in the civil rights and anti-war movements and other struggles against the power structures of the day. That year, his paper ‘Present-Mindedness Revisited: Anti-Radicalism as a Goal of American Historical Writing Since World War 11’ was the centrepiece of a controversial session of the American Historical Association in Washington, D.C.

Passionate, strident, scholarly and forensic, the Lemisch paper detailed the ways leading American historians variously claimed political neutrality even as they were …

Vinyl: A History Of The Analogue Record, Andrew Whelan

Faculty of Law, Humanities and the Arts - Papers (Archive)

This article presents a review of the book "Vinyl: A History of the Analogue Record" by Richard Osborne.

'Once Upon A Time There Was A Wonderful Country': Representations Of History In Rwanda, Deborah Mayersen

Faculty of Law, Humanities and the Arts - Papers (Archive)

In April 1994, genocide erupted in Rwanda with an unprecedented ferocity. Over the course of 100 days, more than 800,000 Tutsi and moderate Hutu were killed. A major contributor to the violence was an intense propaganda campaign that dehumanised and demonised the Tutsi minority prior to and during the genocide. This propaganda presented the Tutsi as foreign and feudal oppressors, who would again oppress the Hutu majority as they had in the past if they were not targeted for extermination. Such dubious representations of history have deep roots in Rwanda, which can be traced to the early colonial period. This …

History Foundation To Year 12 (In Review Of The Australian Curriculum - Supplementary Material), Gregory Melleuish

Faculty of Law, Humanities and the Arts - Papers (Archive)

The Australian history curriculum is compulsory for Years Foundation through to Year 10. It states that its rationale is as follows: ‘The curriculum generally takes a world history approach within which the history of Australia is taught.’ The curriculum is also defined, and limited, by its three cross-curriculum priorities:

* Aboriginal and Torres Strait Islander histories and cultures

* Asia and Australia’s engagement with Asia

* Sustainability.

The Future Of History, Rowan Cahill

Faculty of Law, Humanities and the Arts - Papers (Archive)

war in Iraq (2003) in the bloody search-and-destroy mission against non-existent Weapons of Mass Destruction (WMD) recently confessed to being a little embarrassed.

On the September 2014 eve of the release of The Menzies Era, his book of hero worship about conservative Australian PM Sir Robert Menzies, Howard told an interviewer that, when it became public knowledge, the US intelligence reports he based his decision on regarding WMD were faulty, well, he was embarrassed. Not ashamed, mind you, not distraught … which might be expected, since he has a huge amount of civilian blood on his hands … no, just …

Economics Hijackers Could Do With A History Lesson, Simon Ville

Faculty of Law, Humanities and the Arts - Papers (Archive)

Behind every economic policy initiative lies a narrative justifying that course of action: immigration increases unemployment; public debt is unsustainable; manufacturing is interminably declining; city growth is out of control.

We have many “narrators” driving these discussions of economics – the media, political parties, public sector bodies, business and indeed universities – each with their own set of interests and values.

Unfortunately, among these claimants, the voice of economic history has remained largely silent or selectively galvanised to prosecute a triumphalist or doomsayer interpretation: “the clever country’s many successes in policy and business”; or “the lucky country’s history has been …

'Fictional' History Opens New Front In War On Workers, Rowan Cahill

Faculty of Law, Humanities and the Arts - Papers (Archive)

At the Prime Minister’s Literary Awards on 8 December 2014, the joint winner of the Australian History Award was Hal G. P. Colebatch for his book Australia’s Secret War: How Unionists Sabotaged our Troops in World War II. The judging panel was chaired by right-wing think tanker Gerard Henderson of the Sydney Institute, a diehard fan of ‘Pig Iron’ Bob Menzies, and included Peter Coleman, variously author, journalist, former Liberal Party politician, and veteran Cold War warrior.

Colebatch’s book was published in October 2013 by the conservative Australian cultural journal Quadrant, founded during the Cold War as part of the …

Constitutional Skepticism: A Recovery And Preliminary Evaluation, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The aim of this article is to recover and reevaluate the American tradition of constitutional skepticism. Part I consists of a brief history of skepticism running from before the founding to the modern period. My aim here is not to provide anything like a complete description of the historical actors, texts, and events that I discuss. Instead, I link together familiar episodes and arguments that stretch across our history so as to demonstrate that they are part of a common narrative that has been crucial to our self-identity. Part II disentangles the various strands of skeptical argument. I argue that …

The Unrelenting Libertarian Challenge To Public Accommodations Law, Samuel R. Bagenstos

Articles

There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in “place[s] of public accommodation,” was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Article begins by discussing the controversy in the Reconstruction and Civil Rights Eras over the penetration of antidiscrimination principles into the realm of private businesses’ choice of customers. Although the …

The Trouble With Categories: What Theory Can Teach Us About The Doctrine-Skills Divide, Linda H. Edwards

Scholarly Works

We might not need another article decrying the doctrine/skills dichotomy. That conversation seems increasingly old and tired. But like it or not, in conversations about the urgent need to reform legal education, the dichotomy’s entailments confront us at every turn. Is there something more to be said? Perhaps surprisingly, yes. We teach our students to examine language carefully, to question received categories, and to understand legal questions in light of their history and theory. Yet when we talk about the doctrine/skills divide, we seem to forget our own instruction.

This article does not exactly take sides in the typical skills …