Legal History Commons^™

Law, Politics, And The Erosion Of Legitimacy In The Delaware Courts, Kent Greenfield

NYLS Law Review

No abstract provided.

Failed Constitutional Metaphors: The Wall Of Separation And The Penumbra, Louis J. Sirico Jr.

University of Richmond Law Review

No abstract provided.

Specters Of Law: Why The History Of The Legal Spectacle Has Not Been Written, Peter Goodrich

Articles

The article examines the intersection of law, theology, and visual/performance elements, arguing that legal discourse often overlooks the significance of typography, imagery, and theatricality. It highlights how legal texts use formatting techniques like bold and italics to convey meaning and draws parallels with theological concepts, such as the duality of power and the role of images in governance. The analysis critiques the legal tradition for neglecting these performative aspects and emphasizes the need to recognize law as a theater that denies its own theatricality.

The Anti-Empathic Turn, Robin West

Georgetown Law Faculty Publications and Other Works

Justice, according to a broad consensus of our greatest twentieth century judges, requires a particular kind of moral judgment, and that moral judgment requires, among much else, empathy–the ability to understand not just the situation but also the perspective of litigants on warring sides of a lawsuit.

Excellent judging requires empathic excellence. Empathic understanding is, in some measure, an acquired skill as well as, in part, a natural ability. Some people do it well; some, not so well. Again, this has long been understood, and has been long argued, particularly, although not exclusively, by some of our most admired judges …

What Happened In Iowa?, David Pozen

Faculty Scholarship

Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …

Book Review. Louis D. Brandeis And The Making Of Regulated Competition, 1900-1932 By Gerald Berk, Ajay K. Mehrotra

Articles by Maurer Faculty

No abstract provided.

The Dictionary Is Not A Fortress: Definitional Fallacies And A Corpus-Based Approach To Plain Meaning, Stephen C. Mouritsen

BYU Law Review

No abstract provided.

Kate Chase, The "Sphere Of Women's Work," And Her Influence Upon Her Father's Dissent In Bradwell V. Illinois, Richard Aynes

Akron Law Faculty Publications

Kate Chase was said to be the most beautiful and the most intelligent woman of her age. Her father, Salmon P. Chase, is remembered today as Lincoln’s secretary of the treasury and as a chief judge of the U. S. Supreme Court. In his own time, Chase was considered one of the nation’s political giants; Abraham Lincoln described him as “one and a half times bigger than any other man” he had ever known. Carl Schurz’s summary still echoes today: “More than anyone else he looked the great man. Tall, broad-shouldered, and proudly erect, . . . he was a …

"Our Cities Institutions" And The Institution Of The Common Law, Bernadette Meyler

Cornell Law Faculty Publications

The audiences of early modern English drama were multiple, and they intersected with the legal system in various ways, whether through the cross-pollination of the theaters and the Inns of Court, the representations of the sovereign’s justice performed before him, or the shared evidentiary orientations of jurors and spectators. As this piece written for a symposium on “Reasoning from Literature” contends, Shakespeare’s Measure for Measure addressed to these various audiences the question of whether the King should judge in person. In doing so, it drew on extant political theories suggesting that the King refrain from exposing himself to public censure …

The Twist Of Long Terms: Judicial Elections, Role Fidelity, And American Tort Law, Jed Handelsman Shugerman

Faculty Scholarship

The received wisdom is that American judges rejected strict liability through the nineteenth and early twentieth centuries. To the contrary, a majority of state courts adopted Rylands v. Fletcher and strict liability for hazardous or unnatural activities after a series of flooding tragedies in the late nineteenth century. Federal judges and appointed state judges generally ignored or rejected Rylands, while elected state judges overwhelmingly adopted Rylands or a similar strict liability rule.

In moving from fault to strict liability, these judges were essentially responding to increased public fears of industrial or man-made hazards. Elected courts were more populist: they were …

Law And Humor In Johnnie To's Justice, My Foot!, Marco Wan

Cardozo Law Review

No abstract provided.

Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland

Law Faculty Publications

No abstract provided.

All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies And The Rule Of Law, Keith J. Bybee

College of Law - Faculty Scholarship

This paper contains the introduction to the new book, All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (Stanford University Press, 2010).

The book begins with the observation that Americans are divided in their beliefs about whether courts operate on the basis of unbiased legal principle or of political interest. This division in public opinion in turn breeds suspicion that judges do not actually mean what they say, that judicial professions of impartiality are just fig leaves used to hide the pursuit of partisan purposes.

Comparing law to the practice of common courtesy, the …

Watergate, Judge Sirica, And The Rule Of Law, Anthony J. Gaughan

McGeorge Law Review

No abstract provided.

Law As Hidden Architecture: Law, Politics, And Implementation Of The Burnham Plan Of Chicago Since 1909, 43 J. Marshall L. Rev. 375 (2010), Richard J. Roddewig

UIC Law Review

No abstract provided.

Introductory Note To The Supreme Court Of The United States: Noriega V. Pastrana, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

A Coase Theorem For Constitutional Theory, Neil S. Siegel

Faculty Scholarship

There is much to admire about Barry Friedman’s new book, The Will of the People. Explaining how the institution of judicial review was made safe for democracy in America, Friedman’s story is extensively researched, beautifully written, scrupulously nonpartisan about the modern Court, and frequently humorous. What is more, his primary claim - that the Supreme Court of the United States is very much a democratic institution because judicial review always has been responsive to public opinion - is, to a large extent, convincing. I have taught The Will of the People in my first-year constitutional law course, and I plan …

Ivan Rand's Ancient Constitutionalism, Jonathon Penney

Articles, Book Chapters, & Popular Press

Few names loom larger than Ivan Rand’s in the history of Canadian law. If anything, Rand has retained his image as a courageous judge willing to bend the law in creative ways to seek justice and protect the rights of oppressed minorities. But Rand’s legal ideas have not faired as well. Over the years, his theory of “implied rights,” and view of the judicial role, has been criticized as incoherent and indefensible. The central aim of this paper is to challenge these criticisms. I want to offer a solution by reconstructing an overlooked component of his legal thought: a form …

A Tale Of Two Paradigms: Judicial Review And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

What is the role of judges in holding government acts unconstitutional? The conventional paradigm is "judicial review." From this perspective, judges have a distinct power to review statutes and other government acts for their constitutionality. The historical evidence, however, reveals another paradigm, that of judicial duty. From this point of view, presented in my book Law and Judicial Duty, a judge has an office or duty, in all decisions, to exercise judgment in accord with the law of the land. On this understanding, there is no distinct power to review acts for their constitutionality, and what is called "judicial review" …

It's The Hard Luck Life: Women's Moral Luck And Eucatastrophe In Child Custody Allocation, Lolita Buckner Inniss

Publications

No abstract provided.

Judge Bell And Professional Courage, Larry D. Thompson

Scholarly Works

This article eulogizes Judge Griffin B. Bell, with an emphasis on the importance of professional standards in the legal field.

Introduction (Excerpt) In Justice Bertha Wilson: One Woman's Difference, Kim Brooks

Articles, Book Chapters, & Popular Press

Bertha Wilson was the first woman to be appointed to Canada's Supreme Court in 1982. Her appointment capped off a career of firsts. She had been the first woman lawyer and partner at a prominent Toronto law firm and the first woman appointed to the Ontario Court of Appeal. Her career and passing in 2007 have provoked reflection on her contributions to Canadian society and caused many to reflect on the question she herself posed: what difference do women judges make? What follows is an excerpt from the introduction to the book. The chapters of the book explore a broad …

Mothers And Sons: The Lloyd Schlup Story, Sean O'Brien

Faculty Works

This article tells the back story of the near-execution of Lloyd Schlup, condemned to die in Missouri for the 1984 murder of fellow Missouri State Penitentiary prisoner Arthur Dade, Jr. Mr. Schlup came within hours of execution before the Supreme Court granted certiorari on his case to decide whether a prisoner who is probably innocent can avail himself of the habeas corpus remedy. Mr. Schlup's and Mr. Dade's mothers played pivotal roles in the ultimate outcome of Schlup v. Delo, 513 U.S. 298 (1995). Dedicated to the memory of Nancy Slater.

'Equal Citizenship Stature': Justice Ginsburg’S Constitutional Visionq, Neil S. Siegel

Faculty Scholarship

In this essay, Professor Siegel examines the nature and function of constitutional visions in the American constitutional order. He argues that Associate Justice Ruth Bader Ginsburg possesses such a vision and that her vision is defined by her oft-stated commitment to “full human stature,” to “equal citizenship stature.” He then defends Justice Ginsburg’s characteristically incremental and moderate approach to realizing her vision. He does so in part by establishing that President Barack Obama articulated a similar vision and approach in his Philadelphia speech on American race relations and illustrated its capacity to succeed during the 2008 presidential election.

Isaiah And His Young Disciples: Justice Brandeis And His Law Clerks, Todd C. Peppers

Scholarly Articles

It cannot be said that Louis Dembitz Brandeis has suffered from a lack of scholarly attention. Brandeis is considered to be one of the most influential Justices in the history of the U.S. Supreme Court, and scores of books and law-review articles have been written about Brandeis the lawyer, the political insider, the Zionist, and the Justice. A case can be made, however, that history has not fully recognized the important and lasting contribution that Brandeis made to the development of the institutional rules and norms surrounding the Supreme Court law clerk, an oversight that this essay seeks to rectify.

The Rule Of Law Is Dead! Long Live The Rule Of Law!, Keith J. Bybee

College of Law - Faculty Scholarship

Polls show that a significant proportion of the public considers judges to be political. This result holds whether Americans are asked about Supreme Court justices, federal judges, state judges, or judges in general. At the same time, a large majority of the public also believes that judges are fair and impartial arbiters, and this belief also applies across the board. In this paper, I consider what this half-law-half-politics understanding of the courts means for judicial legitimacy and the public confidence on which that legitimacy rests. Drawing on the Legal Realists, and particularly on the work of Thurman Arnold, I argue …

The Living Constitution Of Ancient Athens: A Comparative Perspective On The Originalism Debate, 42 J. Marshall L. Rev. 463 (2009), Mark J. Sundahl

UIC Law Review

No abstract provided.

Two Decades After Beech: Confusion Over The Admissibility Of Expert Opinions In Public Records, 42 J. Marshall L. Rev. 925 (2009), Thomas J. Mccarthy, John M. Power

UIC Law Review

No abstract provided.

Human Rights Hero - Sandra Day O'Connor, Stephen Wermiel, Michael S. Greco

Scholarly Articles in Law Reviews & Journals

No abstract provided.

What's Left Of Solidarity? Reflections On Law, Race, And Labor History, Martha R. Mahoney

Articles

No abstract provided.