Law Commons^™

Invention Of A Slave, Brian L. Frye

Law Faculty Scholarly Articles

On June 10, 1858, the Attorney General issued an opinion titled Invention of a Slave, concluding that a slave owner could not patent a machine invented by his slave, because neither the slave owner nor his slave could take the required patent oath. The slave owner could not swear to be the inventor, and the slave could not take an oath at all. The Patent Office denied at least two patent applications filed by slave owners, one of which was filed by Senator Jefferson Davis of Mississippi, who later became the President of the Confederate States of America. But …

Life And Death In Kentucky: Past, Present, And Future, Roberta M. Harding

Law Faculty Scholarly Articles

This article provides a historical survey of capital punishment in the Commonwealth of Kentucky, paying particular attention to gender and race. The author concludes that given the lack of recent executions that it is perhaps time to make legislative changes to the Commonwealth’s death penalty practice.

Americans' Unwillingness To Pay Taxes Before The American Revolution: An Uncomfortable Legacy, Richard A. Westin

Law Faculty Scholarly Articles

When one reflects on the sorry condition of America’s finances one has to wonder why there is such resistance to fiscal discipline. Is it merely because there is an obstreperous group in the US Congress who cannot abide any tax? Has the public been subtly lobbied into believing that American taxes are high, pointless and intolerable or is there some gene in the America’s body politic that has always been there that expresses itself from time to time in a pernicious cheapness? Perhaps all those things are true, or perhaps none. Nevertheless, a glance backward at Colonial days can stimulate …

The Peculiar Story Of United States V. Miller, Brian L. Frye

Law Faculty Scholarly Articles

On April 18, 1938, the Arkansas and Oklahoma state police stopped Jack Miller and Frank Layton, two washed-up Oklahoma bank robbers. Miller and Layton had an unregistered sawed-off shotgun, so the police arrested them for violating the National Firearms Act (“NFA”). Surprisingly, the district court dismissed the charges, holding the NFA violates the Second Amendment. The Supreme Court reversed in United States v. Miller, holding the Second Amendment does not guarantee the right to keep and bear a sawed-off shotgun as a matter of law.

Seventy years later, Miller remains the only Supreme Court opinion construing the Second Amendment. …

Not So Great Moments In Trial Advocacy: Clement Vallandigham, Richard H. Underwood

Law Faculty Scholarly Articles

The subject of this comment is "The Lawyer as Hero." Being the contrarian that I am, I thought I would present the story of someone who I do not consider to have been a hero—Clement L. Vallandigham. History has not been kind to him. I am sure those of you who do remember his name think of him as a traitor and a rascal—a loathsome individual. But to some, and for a time, he was a hero and a champion in court. This just goes to show that one person's hero is another person's goat.

The Limits Of Cross-Examination, Richard H. Underwood

Law Faculty Scholarly Articles

In this article, the author compiles the history and methodology of cross-examination from ancient Greece to the modern era. The reality and ethics of cross-examination are explored through anecdotes and detailed histories.

Perjury: An Anthology, Richard H. Underwood

Law Faculty Scholarly Articles

Professor Underwood takes an in-depth look at the occurrence of perjury from ancient Rome to the O.J. Simpson trial. This journey through time provides insight into the motives of perjurers, the difficulties involved in catching them; and the alarming frequency with which they succeed, unchastised.

Commercial Paper In Economic Theory And Legal History, Harold R. Weinberg

Law Faculty Scholarly Articles

Commercial-paper played a significant role in antebellum America by partially filling the void resulting from the shortage of gold and silver coinage and the absence of a reliable paper currency. Although most legal historians would agree with this premise, a controversy has arisen in recent years concerning negotiability, that collection of legal rules which greatly enhanced the usefulness of bills of exchange and promissory notes in commerce and finance.

Many scholars believe that negotiability, along with other pre-Civil War legal doctrines, was intended to facilitate the development of a national market system and economic growth. This view typically holds that …

Markets Overt, Voidable Titles, And Feckless Agents: Judges And Efficiency In The Antebellum Doctrine Of Good Faith Purchase, Harold R. Weinberg

Law Faculty Scholarly Articles

In considering American common law doctrines shaped during the nineteenth century, commentators have advanced differing theories on the primary judicial criteria employed by judges. Recent studies have argued that these doctrines reflect a criterion of economic efficiency. This work has been criticized for its failure to explain why there seems to be a correlation between efficiency and these decision rules or why judges might have preferred efficiency over other decisional criteria. Other studies have proposed that many judicial doctrines announced before the Civil War were intended to facilitate or ratify major shifts in the distribution of social wealth. This article …