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Full-Text Articles in Law

“To Assemble Together For Their Common Good”: History, Ethnography, And The Original Meanings Of The Rights Of Assembly And Speech, Saul Cornell Dec 2015

“To Assemble Together For Their Common Good”: History, Ethnography, And The Original Meanings Of The Rights Of Assembly And Speech, Saul Cornell

Fordham Law Review

The Whiskey Rebellion is not generally a major focus in constitutional histories or casebooks. Given this fact, it is hardly surprising that the 1795 case Respublica v. Montgomery seldom figures as more than a minor footnote in scholarly writing about early American constitutional development, if it receives any attention at all. The case has little precedential value for modern First Amendment doctrine and only obliquely implicates larger jurisprudential questions about the rights of assembly and freedom of expression. In strictly doctrinal terms, Montgomery is primarily about the obligation of a justice of the peace to put down a riot, not …


Historians And The New Originalism: Contextualism, Historicism, And Constitutional Meaning, Martin S. Flaherty Dec 2015

Historians And The New Originalism: Contextualism, Historicism, And Constitutional Meaning, Martin S. Flaherty

Fordham Law Review

Toward that end, this Foreword addresses three matters. First, it considers why the use of history in constitutional interpretation is inescapable. Next, it suggests that the Essays in this forum do not go far enough in debunking the idea of “public meaning” originalism as a serious alternative to previous approaches. Finally, the balance of this Foreword reviews the also perhaps inescapable misuses of history that constitutional interpretation invites and considers the type of misuse that public meaning originalism represents.


Historicism And Holism: Failures Of Originalist Translation, Jonathan Gienapp Dec 2015

Historicism And Holism: Failures Of Originalist Translation, Jonathan Gienapp

Fordham Law Review

For as long as the U.S. Constitution has existed, Americans have appealed to the history of its creation to interpret its meaning. But only since the advent of originalism—the well-known constitutional theory that requires interpreting the Constitution today in accordance with its original meaning—has historical study been so immediately implicated by constitutional interpretation. Despite potential, though, for meaningful exchange between originalists and historians, little has taken place. That originalism plays an ever-growing role in contemporary political culture only makes the lack of dialogue all the more unfortunate.


Outsourcing The Law: History And The Disciplinary Limits Of Constitutional Reasoning, Helen Irving Dec 2015

Outsourcing The Law: History And The Disciplinary Limits Of Constitutional Reasoning, Helen Irving

Fordham Law Review

Debates about the use of history in constitutional interpretation find their primary nourishment in the originalism debate. This has generated a vast amount of literature, but also narrowed the terms of the debate. Originalism is a normative commitment wrapped in a questionable methodological confidence. Regardless of the multiple forms originalism takes, originalists are confident that the meaning (in the sense of intention) that animated the framing of the Constitution can be ascertained and, indeed, that they can ascertain it. The debate has largely focused, then, on whether modern-day scholars and jurists can ascertain original historical meaning or, alternatively, whether they …


Tone Deaf To The Past: More Qualms About Public Meaning Originalism, Jack Rakove Dec 2015

Tone Deaf To The Past: More Qualms About Public Meaning Originalism, Jack Rakove

Fordham Law Review

With some apologies for a vast degree of oversimplification, let us stipulate that there are two main forms of originalism. One is known as “semantic” or “public meaning” originalism. Its leading advocates include Lawrence Solum, Keith Whittington, and Randy Barnett (professional friends, all). The leading premise of semantic originalism is that the meaning of the constitutional text—or, more specifically, of its individual clauses—was fixed at the moment of its adoption. Under this view, the goal of constitutional interpretation is to recover that original meaning, and the best way to do that pivots on reconstructing how an informed reader, whether a …


History, Governmental Structure, And Politics: Defining The Scope Of Local Board Of Health Power, Pekham Pal Nov 2015

History, Governmental Structure, And Politics: Defining The Scope Of Local Board Of Health Power, Pekham Pal

Fordham Law Review

Local boards of health often issue regulations that have broad effects that surpass the borders of the city or county to which they apply. Promulgation of such rules by board of health members appointed by the executive branch implicates separation of powers concerns; because such regulations may so extensively burden a locality’s citizens, it may be more appropriate for elected officials to adopt these regulations. Indeed, local businesses or other interested parties often bring suit challenging local board of health actions. Courts apply different analytical methodologies to review these challenges, which often leads to incongruent local health agency discretion for …


"Bound Fast And Brought Under The Yokes": John Adams And The Regulation Of Privacy At The Founding, Allison L. Lacroix Jan 2004

"Bound Fast And Brought Under The Yokes": John Adams And The Regulation Of Privacy At The Founding, Allison L. Lacroix

Fordham Law Review

No abstract provided.


Fighting Fire With Fire: A Refllection On The Ethics Of Clarence Darrow, Gerald F. Uelmen Jan 2003

Fighting Fire With Fire: A Refllection On The Ethics Of Clarence Darrow, Gerald F. Uelmen

Fordham Law Review

No abstract provided.


A View Of The Legal Profession From A Mid-Twelfth-Century Monastery, Amelia J. Uelmen Jan 2003

A View Of The Legal Profession From A Mid-Twelfth-Century Monastery, Amelia J. Uelmen

Fordham Law Review

No abstract provided.


Border Patrol: Reflections On The Turn To History In Legal Scholarship, Laura Kalman Jan 1997

Border Patrol: Reflections On The Turn To History In Legal Scholarship, Laura Kalman

Fordham Law Review

No abstract provided.


Thomas Jefferson, Equality, And The Creation Of A Civil Society, Gordon S. Wood Jan 1996

Thomas Jefferson, Equality, And The Creation Of A Civil Society, Gordon S. Wood

Fordham Law Review

No abstract provided.


The Sleeper Wakes: The History And Legacy Of The Twenty-Seventh Amendment Jan 1992

The Sleeper Wakes: The History And Legacy Of The Twenty-Seventh Amendment

Fordham Law Review

No provision of the United States Constitution has a more drawn-out, tortured history than the Twenty-seventh Amendment, which was ratified more than two centuries after Representative James Madison introduced it in the First Congress. In this Article; Professor Bernstein traces the Amendment's origins to the legislative political culture of the late eighteenth century, as influenced by the controversy over ratifying the Constitution. He then examines the perennial controversies over congressional compensation in American historiy elucidating how in the 1980s and 1990s public anger at Congress reached critical mass sufficient to propel the 1789 compensation amendment into the Constitution. Finally, this …


The Condominia Of Morgan: A Family Of Bankers And A Family Of Banks, Michael P. Malloy Jan 1991

The Condominia Of Morgan: A Family Of Bankers And A Family Of Banks, Michael P. Malloy

Fordham Law Review

The House of Morgan, By R. Chernow. Atlantic Monthly Press, 1990. Pp. 812. $14.95


The History And Purposes Of Rule 11, Robert L. Carter Jan 1985

The History And Purposes Of Rule 11, Robert L. Carter

Fordham Law Review

No abstract provided.


The History And Purposes Of Rule 11, John F. Cannon Jan 1985

The History And Purposes Of Rule 11, John F. Cannon

Fordham Law Review

No abstract provided.


Some Further Reflections On The Problem Of Adequacy Of Trial Counsel , Warren E. Burger Jan 1980

Some Further Reflections On The Problem Of Adequacy Of Trial Counsel , Warren E. Burger

Fordham Law Review

No abstract provided.


In Accordance With Usage: The Authority Of Custom, The Stamp Act Debate, And The Coming Of The American Revolution , John Phillip Reid Jan 1976

In Accordance With Usage: The Authority Of Custom, The Stamp Act Debate, And The Coming Of The American Revolution , John Phillip Reid

Fordham Law Review

No abstract provided.


In Banc Procedures In The United States Courts Of Appeals, Peter Michael Madden Jan 1974

In Banc Procedures In The United States Courts Of Appeals, Peter Michael Madden

Fordham Law Review

No abstract provided.


Conscription, The Constitution, And The Framers: An Historical Analysis, Michael J. Malbin Jan 1972

Conscription, The Constitution, And The Framers: An Historical Analysis, Michael J. Malbin

Fordham Law Review

No abstract provided.


Judicial Removal In New York: A New Look, Edwin L. Gasperini, Arnold S. Anderson, Patrick W. Mcginley Jan 1971

Judicial Removal In New York: A New Look, Edwin L. Gasperini, Arnold S. Anderson, Patrick W. Mcginley

Fordham Law Review

No abstract provided.


Book Reviews Jan 1966

Book Reviews

Fordham Law Review

No abstract provided.


Lord Mansfield Revisited-- A Modern Assessment, Bernard L. Shientag Jan 1941

Lord Mansfield Revisited-- A Modern Assessment, Bernard L. Shientag

Fordham Law Review

No abstract provided.


Injunction Versus Indictment Jan 1939

Injunction Versus Indictment

Fordham Law Review

No abstract provided.


The Surrogates' Court And The New Law, Robert Ludlow Fowler Jan 1916

The Surrogates' Court And The New Law, Robert Ludlow Fowler

Fordham Law Review

No abstract provided.