Law Commons^™

Family Law By The Numbers: The Story That Casebooks Tell, Laura T. Kessler

Utah Law Faculty Scholarship

This Article presents the findings of a content analysis of 86 family law casebooks published in the United States from 1960 to 2019. Its purpose is to critically assess the discipline of family law with the aim of informing our understandings of family law’s history and exposing its ideological foundations and consequences. Although legal thinkers have written several intellectual histories of family law, this is the first quantitative look at the field.

The study finds that coverage of marriage and divorce in family law casebooks has decreased by almost half relative to other topics since the 1960s. In contrast, pages …

Restoring The Historical Rule Of Lenity As A Canon, Shon Hopwood

Georgetown Law Faculty Publications and Other Works

In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation. Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant. But the rule is not always reliably used, and questions remain about its application. In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon.

First, I argue that federal courts should apply the historical rule of lenity (also known as the rule …

Burying Mcculloch?, David S. Schwartz

Arkansas Law Review

Kurt Lash is a superb constitutional historian trapped inside the body of an originalist. He is one of the few originalists bold enough to acknowledge that McCulloch v. Maryland needs to be ejected from the (conservative) originalist canon of great constitutional cases. While he attributes to me an intention “not to praise the mythological McCulloch, but to bury it,” it is Lash who seeks to bury McCulloch, which he views as a fraudulent “story of our constitutional origins.”

Mcculloch V. Madison: John Marshall's Effort To Bury Madisonian Federalism, Kurt Lash

Arkansas Law Review

In his engaging and provocative new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David S. Schwartz challenges McCulloch’s canonical status as a foundation stone in the building of American constitutional law. According to Schwartz, the fortunes of McCulloch ebbed and flowed depending on the politics of the day and the ideological commitments of Supreme Court justices. Judicial reliance on the case might disappear for a generation only to suddenly reappear in the next. If McCulloch v. Maryland enjoys pride of place in contemporary courses on constitutional law, Schwartz argues, then this …

Does Importance Equal Greatness? Reflections On John Marshall And Mcculloch V. Maryland, Sanford Levinson

Arkansas Law Review

David S. Schwartz’s The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, is a truly excellent book, for which I was happy to contribute the following blurb appearing on the back jacket: "David Schwartz has written an indispensable study of thesingle most important Supreme Court case in the canon. As such, he delineates not only the meaning and importance of the case in 1819, but also the use made of it over the next two centuries as it became a central myth and symbol of the very meaning of American constitutionalism.”

Mcculloch's "Perpetually Arising" Questions, David S. Schwartz

Arkansas Law Review

I’m truly honored to have my book be the subject of a symposium on Balkinization, and I’m deeply grateful to Jack Balkin and John Mikhail for organizing and hosting it. Among its many gratifications for me personally, the symposium guaranteed that at least eight people would read the book. That these readers have engaged with it so closely and insightfully is icing on the cake. My first article on McCulloch four years ago, which became the basis for a couple of the early chapters in the book, insisted that McCulloch was properly interpreted as far less nationalistic than we were …

Scholarship In Review: A Response To David S. Schwartz's The Spirit Of The Constitution: John Marshall And The 200-Year Odyssey Of Mcculloch V. Maryland, Law Review Editors

Arkansas Law Review

We are elated to introduce, and the Arkansas Law Review is honored to publish, this series discussing and applauding David S. Schwartz’s new book: The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland. Schwartz sets forth meticulous research, coupled with unparalleled insight, into the opinion penned by Chief Justice John Marshall and details the winding path Marshall’s words have traveled over the past 200 years. Schwartz argues that the shifting interpretations of McCulloch, often shaped to satisfy the needs of the time, echoes the true spirit of the Constitution.

Without Personhood: The Missing Point Of Slaves In Missouri's Emancipation-By-Residency Freedom Suit Jurisprudence, 1824-1837, Jacob Alfred Brandler

MSU Graduate Theses

From 1824 to 1837, the Supreme Court of Missouri developed a sophisticated caselaw establishing emancipation-by-residency—where a Missouri court could liberate an enslaved petitioner because of their residence in a free jurisdiction—as a basis of freedom suits. In 1852, however, the Court undermined the precedential value of those decisions and dismantled this basis when deciding Dred Scott’s case, Scott v. Emerson. Scholarship on Missouri’s freedom suits has highlighted how partisanship and the political atmosphere in Missouri as well as across the nation contributed to this outcome. This study adds to the historiography how the previous caselaw itself predisposed the result; …

Is Solitary Confinement A Punishment?, John F. Stinneford

Northwestern University Law Review

The United States Constitution imposes a variety of constraints on the imposition of punishment, including the requirements that the punishment be authorized by a preexisting penal statute and ordered by a lawful judicial sentence. Today, prison administrators impose solitary confinement on thousands of prisoners despite the fact that neither of these requirements has been met. Is this imposition a “punishment without law,” or is it a mere exercise of administrative discretion? In an 1890 case called In re Medley, the Supreme Court held that solitary confinement is a separate punishment subject to constitutional restraints, but it has ignored this …

Getting At The Root Instead Of The Branch: Extinguishing The Stereotype Of Black Intellectual Inferiority In American Education, A Long-Ignored Transitional Justice Project, Camille Lamar Campbell

Faculty Scholarship

No abstract provided.

Our English Legal Forebearers And Their Contributions To The Practice Of Law And American Jurisprudence: Sir Thomas More, Sir Edward Coke, And Sir William Blackstone, Heather R. Darsie

Northern Illinois University Law Review

This Article seeks to remind lawyers of the important duty to uphold the law, and how that was shown through the actions of several English and British attorneys from the sixteenth through eighteenth centuries. Beginning with Sir Thomas More, considered as a secular person in this Article, and his refusal to go against what he believed to be the law, to Sir Edward Coke, whose legal judgments assisted early Americans, and ending with Sir William Blackstone, whose careful thinking paved the way for the American legal system. This semi-biographical Article relays the legal changes occurring during the time periods mentioned …

Lost In Transplantation: Modern Principles Of Secured Transactions Law As Legal Transplants, Charles W. Mooney Jr.

All Faculty Scholarship

This manuscript will appear as a chapter in a forthcoming edited volume published by Hart Publishing, Secured Transactions Law in Asia: Principles, Perspectives and Reform (Louise Gullifer & Dora Neo eds., forthcoming 2020). It focuses on a set of principles (Modern Principles) that secured transactions law for personal property should follow. These Modern Principles are based on UCC Article 9 and its many progeny, including the UNCITRAL Model Law on Secured Transactions. The chapter situates the Modern principles in the context of the transplantation of law from one legal system to another. It draws in particular on Alan Watson’s pathbreaking …

Copyright In The Texts Of The Law: Historical Perspectives, Charles Duan

Articles in Law Reviews & Other Academic Journals

Recently, state governments have begun to claim a copyright interest in their official published codes of law, in particular arguing that ancillary materials such as annotations to the statutory text are subject to state-held copyright protection because those materials are not binding commands that carry the force of law. Litigation over this issue and a vigorous policy debate are ongoing.

This article contributes a historical perspective to this ongoing debate over copyright in texts relating to the law. It reviews the history of government production and use of annotations, commentaries, legislative debates, and other related information relevant to the law …

Mezei's Day In Court: Debtors' Prisons, Substance Abuse, And The Permissiveness Of Civil Detention In American Immigration Law, Conor Mcdonough

Northwestern University Law Review

American immigration law mandates the civil detention of certain classes of migrants while their legal cases proceed through the courts. Due to the peculiar nature of immigration law, many migrants find themselves detained for years on end without receiving the level of due process that normally attends imprisonment. This Note draws on historical and comparative analysis to argue that the mandatory detention provisions of American immigration law are not civil, but functionally criminal, and that detained migrants are therefore owed a modicum of due process that they do not currently receive.

This Note traces the history of immigration law in …

A Comprehensive Procedural Mechanism For The Poor: Reconceptualizing The Right To In Forma Pauperis In Early Modern England, Annie Prossnitz

Northwestern University Law Review

In early modern England, litigants could petition for in forma pauperis status in order to seek free legal services, including representation. Scholars have often invoked this history to bolster the claim for a reinforced in forma pauperis right today. This Note explores the origins of the right to in forma pauperis status from a different angle. At the core of this Note is an examination of ninety-two primary-source in forma pauperis petitions and court documents, filed in sixteenth- and seventeenth-century English courts of equity, namely Chancery, the Court of Requests, Star Chamber, and Exchequer. Rather than the mythical, rarely used, …

The Lost Unfair Competition Law, Christine Farley

Articles in Law Reviews & Other Academic Journals

The accepted metaphor that trademark law is a species of the genus of unfair competition law distorts both the actual history and the relationship between the two. Tracing the development of the law reveals a related sequence of significant events, some of which have been forgotten. This back-story suggests that a particularly innovative treaty incorporated by reference into the Lanham Act was meant to be the vehicle for unfair competition protection. As a result of this lost law, unfair competition law remains an enigma today.

Conquest And Slavery In The Property Law Course: Notes For Teachers, K-Sue Park

Georgetown Law Faculty Publications and Other Works

This piece contains ideas for teaching about the foundational place of the histories of conquest and slavery to American property law and the property law course. I begin by briefly reviewing how these topics have been erased and marginalized from the study of American property law, as mentioned by casebooks in the field published from the late nineteenth century to the present. I then show how the history of conquest constituted the context in which the singular American land system and traditional theories of acquisition developed, before turning to the history of the American slave trade and the long history …

Mcculloch V. Madison: John Marshall's Effort To Bury Madisonian Federalism, Kurt T. Lash

Law Faculty Publications

"In his engaging and provocative new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David S. Schwartz challenges McCulloch’s canonical status as a foundation stone in the building of American constitutional law. According to Schwartz, the fortunes of McCulloch ebbed and flowed depending on the politics of the day and the ideological commitments of Supreme Court justices. Judicial reliance on the case might disappear for a generation only to suddenly reappear in the next. If McCulloch v. Maryland enjoys pride of place in contemporary courses on constitutional law, Schwartz argues, then this …

Arthur C. Y. Yao (1906-2004): A Pioneer Chinese Professor At St. Mary's University School Of Law, Robert H. Hu

Faculty Articles

No abstract provided.

The Sherman Act Is A No-Fault Monopolization Statute: A Textualist Demonstration, Robert H. Lande, Richard O. Zerbe Jr.

All Faculty Scholarship

The drafters of the Sherman Act originally designed Section 2 to impose

sanctions on all monopolies and attempts to monopolize, regardless whether the

firm had engaged in anticompetitive conduct. This conclusion emerges from the

first ever textualist analysis of the language in the statute, a form of interpretation

originally performed only by Justice Scalia but now increasingly used by the

Supreme Court, including in its recent Bostock decision.

Following Scalia’s methodology, this Article analyzes contemporaneous

dictionaries, legal treatises, and cases and demonstrates that when the Sherman

Act was passed, the word “monopolize” simply meant that someone had acquired

a monopoly. …

Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux

Publications

No abstract provided.

Rules, Tricks And Emancipation, Jessie Allen

Book Chapters

Rules and tricks are generally seen as different things. Rules produce order and control; tricks produce chaos. Rules help us predict how things will work out. Tricks are deceptive and transgressive, built to surprise us and confound our expectations in ways that can be entertaining or devastating. But rules can be tricky. General prohibitions and prescriptions generate surprising results in particular contexts. In some situations, a rule produces results that seem far from what the rule makers expected and antagonistic to the interests the rule is understood to promote. This contradictory aspect of rules is usually framed as a downside …

The Patriation Of Canadian Corporate Law, Camden Hutchison

All Faculty Publications

Canadian corporate law belongs within a broader Anglo-American legal tradition, sharing many of the features of other common law jurisdictions, most notably England and the United States. Prior to Confederation, Canadian corporate law first emerged from nineteenth-century English legislation and continued to resemble English law – at least superficially – well into the twentieth century. Legislation is only one source of corporate law, however. Just as important is the creation of legal rules through the common law adjudicatory process. Thus, examining case law raises an important empirical question distinct from, though relevant to, the issue of legislative influence – namely, …

The Paradox Of Justice John Paul Stevens, Sonja R. West, Dahlia Lithwick

Scholarly Works

In the days following Justice John Paul Stevens’s death last year, numerous tributes and remembrances immediately poured forth. Former clerks, journalists, and legal scholars all grasped for the perfect words to capture the man and the justice we had just lost.

Yet many readers of these tributes and homages might have begun to wonder whether they were actually all talking about the same person. Because, taken together, the various portraits appeared to be full of contradictions. In one piece, for example, Justice Stevens is described as a frequent lone dissenter, while in another he is praised for his consensusbuilding leadership. …

The Chicago School’S Limited Influence On International Antitrust, Anu Bradford, Adam S. Chilton, Filippo Maria Lancieri

Faculty Scholarship

Beginning in the 1950s, a group of scholars primarily associated with the University of Chicago began to challenge many of the fundamental tenants of antitrust law. This movement, which became known as the Chicago School of Antitrust Analysis, profoundly altered the course of American antitrust scholarship, regulation, and enforcement. What is not known, however, is the degree to which Chicago School ideas influenced the antitrust regimes of other countries. By leveraging new datasets on antitrust laws and enforcement around the world, we empirically explore whether ideas embraced by the Chicago School diffused internationally. Our analysis illustrates that many ideas explicitly …

Marshall Shapo's "Constitutional Tort" Fifty-Five Years Later, Michael Wells

Scholarly Works

In 1965, Northwestern University Law Review published Professor Marshall Shapo’s article, Constitutional Tort: Monroe v. Pape and the Frontiers Beyond.1 Professor Shapo’s paper analyzed the origins of constitutional tort law, which consists of suits for damages for constitutional violations committed by government officials or the governments themselves. The article began with an account of the post-Civil War background of 42 U.S.C. § 1983, a statute enacted in 1871 to enforce the Fourteenth Amendment. After the Civil War, recalcitrant southerners, acting through groups like the Ku Klux Klan, intimidated the freedmen and their white supporters, organized lynch mobs, burned houses, and, …