Legal History Commons^™

St. Thomas More & Antebellum American Law And Lawyers, M.H. Hoeflich

University of the Pacific Law Review

No abstract provided.

Wächter, Carl Georg Von, Ralf Michaels

Faculty Scholarship

Carl Georg von Wächter (1797-1880) was once considered 'one of the greatest German jurists of all times’, but was all but forgotten in the 20th century, despite an excellent dissertation on his work in private international law by Nikolaus Sandmann. In private international law, he is known mainly for his critique of earlier theories, in particular the theory of statutes. Positively, Wächter is mainly (and not accurately) known as a proponent of a strong preference for the lex fori and as such mainly presented in opposition to Friedrich Carl von Savigny’s theory (Savigny, Friedrich Carl von). Only recently has there …

Writing The Social History Of Legal Doctrine, Cynthia Nicoletti

Faculty Scholarship

No abstract provided.

Causation, Legal History, And Legal Doctrine, Charles Barzun

Buffalo Law Review

No abstract provided.

On Absences As Material For Intellectual Historical Study, John Henry Schlegel

Buffalo Law Review

No abstract provided.

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Faculty Publications & Other Works

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court has …

The Declaration Of Independence As Introduction To The Constitution, Alexander Tsesis

Faculty Publications & Other Works

No abstract provided.

Transgressions Of A Timid Judiciary: Our Highest Court's Refusal To Overturn Abood V. Board Of Education—Harris V. Quinn, Joe E. Ling

Mitchell Hamline Law Review

No abstract provided.

The Rule Of Unanimity's Circuit Splitting Effect: The Problem With Consent—Griffioen V. Cedar Rapids & Iowa City Railway Co., Aaron P. Meland

Mitchell Hamline Law Review

No abstract provided.

Mr. Peabody's Improbable Legal Intellectual History, Mark Fenster

Buffalo Law Review

No abstract provided.

Writing The Social History Of Legal Doctrine, Cynthia Nicoletti

Buffalo Law Review

No abstract provided.

Reports Of Cases In The Court Of Chancery In The Middle Ages, William Hamilton Bryson

Law Faculty Publications

If the history of the law is to be properly written, it must be based upon the primary legal sources. One of the primary source materials of the law is the reports of cases. These are particularly important because here is the best evidence of the judges’ legal reasoning. The court records kept by the clerks of the courts do not give this information as, indeed, it is not their purpose to do any more than record the results of a particular lawsuit for future use. They primarily serve the purpose of res judicata; their value as judicial precedent …

Reports Of Cases In The Court Of Exchequer From 1604 To 1648, William Hamilton Bryson

Law Faculty Publications

Before the year 2000, there were in print only two modest collections of reports of cases in the Court of Exchequer dating before the accession of King George I in 1714. These are the reports of Sir Richard Lane (d. 1650) and those of Thomas Hardres (d. 1681). Combined, they cover only 28 years, and the number of cases is quite minuscule compared to the other high courts of justice at Westminster. This extreme paucity of printed materials has given a false impression of unimportance of the Court of Exchequer. While it is certainly true that this court did not …

Sir Robert Raymond's Common Law Reports (1694-1696), William Hamilton Bryson

Law Faculty Publications

Robert Raymond was born on 20 December 1673 in London. He was the only son of Sir Thomas Raymond (1627-1683), a judge and law reporter. He was formally admitted to Gray's Inn, his father's inn, at the age of nine in 1682. He was a student at Eton College and Christ's College, Cambridge. Raymond was called to the bar of Gray's Inn in November 1697, and he joined ad eundem Lincoln's Inn in 1710. He was the Solicitor General from 1710 until 1714 and Attorney General from 1720 to 1724. He was a member of Parliament from 1710 to 1724. …

A Context For Legal History, Or, This Is Not Your Father’S Contextualism, Justin Deystone

Publications

This short essay attempts a systematic rehearsal of the structuralist approach to legal historiography.

Work And The Legal Person In Thomas More's Utopia, Andreea D. Boboc

University of the Pacific Law Review

No abstract provided.

Inside The Taft Court: Lessons From The Docket Books, Barry Cushman

Journal Articles

For many years, the docket books kept by certain of the Taft Court Justices have been held by the Office of the Curator of the Supreme Court. Though the existence of these docket books had been brought to the attention of the scholarly community, access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the Taft Court docket books held by the Office of the Curator, which are the only …

Miscellaneous Reports Of Cases In The Court Of Delegates From 1670 To 1750, William Hamilton Bryson

Law Faculty Publications

In 1971, G. I. O. Duncan published a learned and useful book entitled The High Court of Delegates. This excellent treatise describes the jurisdiction, administration, procedures, and records of this court with exceptional clarity. In 2004, the substantive law of the Court of Delegates was fully and admirably expounded by R. H. Helmholz in The Oxford History of the Laws of England, Volume 1, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s. For the next step in the study of this court to be taken, more of the source materials from this court needs to be made …

International Legal Structuralism: A Primer, Justin Deystone

Publications

International legal structuralism arrived on the shores of international thought in the 1980s. The arrival was not well-received, perhaps in part, because it was not well-understood. This essay aims to reintroduce legal structuralism and hopefully pave the way for new, and more positive, receptions and understandings. This reintroduction is organized around two claims regarding the broader encounter between international lawyers and critical theory in the ‘80s. The first was a jurisprudential claim about how the critics sought to show how international law was nothing more than a continuation of international politics by other means. The second was a historical claim …

Inherent National Sovereignty Constitutionalism: An Original Understanding Of The U.S. Constitution, Robert J. Kaczorowski

Faculty Scholarship

No abstract provided.

A Tribute To Judge Kaye, Nicholas W. Allard

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

Confounding Ockham's Razor: Minilateralism And International Economic Regulation, Eric C. Chaffee

Brooklyn Journal of Corporate, Financial & Commercial Law

In Minilateralism: How Trade Alliances, Soft Law, and Financial Engineering Are Redefining Economic Statecraft, Professor Chris Brummer embraces the complexity of the global economic system and its regulation by exploring the emerging role and dominance of varying strands of economic collaboration and regulation that he collectively refers to as “minilateralism.” In describing the turn toward minilateralism, Brummer notes a number of key features of this new minilateral system, including a shift away from global cooperation to strategic alliances composed of the smallest group necessary to achieve a particular goal, a turn from formal treaties to informal non-binding accords and other …

A Cautionary Look At A Cautionary Doctrine, Andrew W. Fine

Brooklyn Journal of Corporate, Financial & Commercial Law

Optimism is an indispensable element of effective salesmanship. It is therefore quite natural for the directors of public companies to want to optimistically tout the potential long-term benefits of investing in their companies. After all, directors of public companies must be empowered to attract the attention and money of American investors. But what happens if these long-term projections fail to come true? Who is to blame for long-term projections that are simply unrealistic? A doctrine called the “bespeaks caution” doctrine has emerged in order to govern these inquiries, and holds that these optimistic forward-looking statements are legally immunized provided that …

Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton

Publications

No abstract provided.

From Apology To Utopia's Point Of Attack, Justin Deystone

Publications

This contribution to the Symposium celebrating the Twenty-fifth Anniversary of Martti Koskenniemi's From Apology to Utopia explores the relevance of the book for contemporary theorists of the international world. In doing so, the article puts Koskenniemi's classic in a contest with John Yoo's recent book, Point of Attack. The purpose in doing so is three-fold. First, it is to illustrate the contemporary use of Koskenniemi's structuralist method. Second, it is to show how the use of the method, with its attendant reliance on modes of legal thought, might give pause to international thinkers seeking to reinvigorate particular structures of …

Utopia And The Law And Literature Movement, Michael P. Malloy

McGeorge School of Law Scholarly Articles

The year 2016 marks the quincentennial of the publication of Thomas More’s novel Utopia. In addition to being an important literary milestone and cultural artifact, Utopiarepresentsa significant marker in the history of political and legal philosophy. I would argue that it also provides an important contribution to the law and literature movement that has flourished in recent decades. It is that contribution that I wish to explore.

This paper begins with a brief introduction to the law and literature movement, in which I identify some of the objectives of the movement and the relationship of More’s novel to those objectives. …

Overcoming The Great Forgetting: A Comment On Fishkin And Forbath, Jedediah S. Purdy

Faculty Scholarship

Fishkin and Forbath’s (F&F’s) manuscript is a project of recovery. It portrays the present as a time marked by a “Great Forgetting” of a tradition of constitutional political economy. F&F name what has been forgotten the “democracy of opportunity” tradition. Recovering it would mean again treating the following three principles as linked elements at the core of our Constitution: (1) an anti-oligarchy principle that works to prevent wealth from producing grossly unequal political power; (2) a commitment to a broad middle class with secure, respected work; and (3) a principle of inclusion that opens participation in both citizenship and the …

Creating Kairos At The Supreme Court: Shelby County, Citizens United, Hobby Lobby, And The Judicial Construction Of Right Moments, Linda L. Berger

The Journal of Appellate Practice and Process

No abstract provided.

The Keyes To Reclaiming The Racial History Of The Roberts Court, Tom I. Romero, Ii

Michigan Journal of Race and Law

This Article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today. The racial history of the Roberts Court is centrally informed by the context and …

The Third Pillar Of Jurisprudence: Social Legal Theory, Brian Z. Tamanaha

William & Mary Law Review

No abstract provided.