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Articles 1 - 26 of 26
Full-Text Articles in Legal History
The Poverty Law Education Of Charles Reich, Felicia Kornbluh, Karen Tani
The Poverty Law Education Of Charles Reich, Felicia Kornbluh, Karen Tani
All Faculty Scholarship
This essay, written for a symposium on the life and legacy of Charles Reich, explores how Reich came to be interested in the field of poverty law and, specifically, the constitutional rights of welfare recipients. The essay emphasizes the influence of two older women in Reich’s life: Justine Wise Polier, the famous New York City family court judge and the mother of one of Reich’s childhood friends, and Elizabeth Wickenden, a contemporary of Polier’s who was a prominent voice in social welfare policymaking and a confidante of high-level federal social welfare administrators. Together, Polier and Wickenden helped educate Reich about …
Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee
Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee
All Faculty Scholarship
This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that …
Foreword: Abolition Constitutionalism, Dorothy E. Roberts
Foreword: Abolition Constitutionalism, Dorothy E. Roberts
All Faculty Scholarship
In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. In Part I, I provide a summary of prison abolition theory and highlight its foundational tenets that engage with the institution of slavery and its eradication. I discuss how abolition theorists view the current prison industrial complex as originating in, though distinct from, racialized chattel slavery and the racial capitalist regime that relied on and sustained it, and their movement as completing the “unfinished liberation” sought by slavery abolitionists in the past. Part II considers whether the U.S. Constitution is an …
James Wilson As The Architect Of The American Presidency, Christopher S. Yoo
James Wilson As The Architect Of The American Presidency, Christopher S. Yoo
All Faculty Scholarship
For decades, James Wilson has been something of a “forgotten founder.” The area where commentators generally recognize Wilson’s influence at the Convention is with respect to Article II, which establishes the executive and defines its powers. Most scholars characterize him as a resolute advocate of an independent, energetic, and unitary presidency, and a particularly successful one at that. In this regard, some scholars have generally characterized Wilson’s thinking as overly rigid. Yet a close examination of the Convention reveals Wilson to be more flexible than sometimes characterized. With respect to many aspects of the presidency, including the appointment power, the …
Petitioning And The Making Of The Administrative State, Maggie Blackhawk
Petitioning And The Making Of The Administrative State, Maggie Blackhawk
All Faculty Scholarship
The administrative state is suffering from a crisis of legitimacy. Many have questioned the legality of the myriad commissions, boards, and agencies through which much of our modern governance occurs. Scholars such as Jerry Mashaw, Theda Skocpol, and Michele Dauber, among others, have provided compelling institutional histories, illustrating that administrative lawmaking has roots in the early American republic. Others have attempted to assuage concerns through interpretive theory, arguing that the Administrative Procedure Act of 1946 implicitly amended our Constitution. Solutions offered thus far, however, have yet to provide a deeper understanding of the meaning and function of the administrative state …
The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin
The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin
All Faculty Scholarship
The Loving Story (Augusta Films 2011), directed by Nancy Buirski, tells the backstory of the groundbreaking U.S. Supreme Court case, Loving v. Virginia, that overturned state laws barring interracial marriage. The article looks to the documentary to explain why the Lovings should be considered icons of racial and ethnic civil rights, however much they might be associated with marriage equality today. The film shows the Lovings to be ordinary people who took their nearly decade long struggle against white supremacy to the nation’s highest court out of a genuine commitment to each other and a determination to live in …
Intersectionality And The Constitution Of Family Status, Serena Mayeri
Intersectionality And The Constitution Of Family Status, Serena Mayeri
All Faculty Scholarship
Marital supremacy—the legal privileging of marriage—is, and always has been, deeply intertwined with inequalities of race, class, gender, and region. Many if not most of the plaintiffs who challenged legal discrimination based on family status in the 1960s and 1970s were impoverished women, men, and children of color who made constitutional equality claims. Yet the constitutional law of the family is largely silent about the status-based impact of laws that prefer marriage and disadvantage non-marital families. While some lower courts engaged with race-, sex-, and wealth-based discrimination arguments in family status cases, the Supreme Court largely avoided recognizing, much less …
Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee
Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee
All Faculty Scholarship
Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …
The Wires Go To War: The U.S. Experiment With Government Ownership Of The Telephone System During World War I, Michael A. Janson, Christopher S. Yoo
The Wires Go To War: The U.S. Experiment With Government Ownership Of The Telephone System During World War I, Michael A. Janson, Christopher S. Yoo
All Faculty Scholarship
One of the most distinctive characteristics of the U.S. telephone system is that it has always been privately owned, in stark contrast to the pattern of government ownership followed by virtually every other nation. What is not widely known is how close the United States came to falling in line with the rest of the world. For the one-year period following July 31, 1918, the exigencies of World War I led the federal government to take over the U.S. telephone system. A close examination of this episode sheds new light into a number of current policy issues. The history confirms …
The Classical American State And The Regulation Of Morals, Herbert J. Hovenkamp
The Classical American State And The Regulation Of Morals, Herbert J. Hovenkamp
All Faculty Scholarship
The United States has a strong tradition of state regulation that stretches back to the Commonwealth ideal of Revolutionary times and grew steadily throughout the nineteenth century. But regulation also had more than its share of critics. A core principle of Jacksonian democracy was that too much regulation was for the benefit of special interests, mainly wealthier and propertied classes. The ratification of the Fourteenth Amendment after the Civil War provided the lever that laissez faire legal writers used to make a more coherent Constitutional case against increasing regulation. How much they actually succeeded has always been subject to dispute. …
Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen
Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen
All Faculty Scholarship
In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in …
Book Review (Paul Frymer's Black And Blue: African Americans, The Labor Movement, And The Decline Of The Democratic Party)., Sophia Z. Lee
Book Review (Paul Frymer's Black And Blue: African Americans, The Labor Movement, And The Decline Of The Democratic Party)., Sophia Z. Lee
All Faculty Scholarship
No abstract provided.
A New E.R.A. Or A New Era? Amendment Advocacy And The Reconstitution Of Feminism, Serena Mayeri
A New E.R.A. Or A New Era? Amendment Advocacy And The Reconstitution Of Feminism, Serena Mayeri
All Faculty Scholarship
Scholars have largely treated the reintroduction of the Equal Rights Amendment (ERA) after its ratification failure in 1982 as a mere postscript to a long, hard-fought, and ultimately unsuccessful campaign to enshrine women’s legal equality in the federal constitution. This Article argues that “ERA II” was instead an important turning point in the history of legal feminism and of constitutional amendment advocacy. Whereas ERA I had once attracted broad bipartisan support, ERA II was a partisan political weapon exploited by advocates at both ends of the ideological spectrum. But ERA II also became a vehicle for feminist reinvention. Congressional consideration …
Hotspots In A Cold War: The Naacp's Postwar Workplace Constitutionalism, 1948-1964, Sophia Z. Lee
Hotspots In A Cold War: The Naacp's Postwar Workplace Constitutionalism, 1948-1964, Sophia Z. Lee
All Faculty Scholarship
No abstract provided.
The Strange Career Of Jane Crow: Sex Segregation And The Transformation Of Anti-Discrimination Discourse, Serena Mayeri
The Strange Career Of Jane Crow: Sex Segregation And The Transformation Of Anti-Discrimination Discourse, Serena Mayeri
All Faculty Scholarship
This article examines the causes and consequences of a transformation in anti-discrimination discourse between 1970 and 1977 that shapes our constitutional landscape to this day. Fears of cross-racial intimacy leading to interracial marriage galvanized many white Southerners to oppose school desegregation in the 1950s and 1960s. In the wake of Brown v. Board of Education, some commentators, politicians, and ordinary citizens proposed a solution: segregate the newly integrated schools by sex. When court-ordered desegregation became a reality in the late 1960s, a smattering of southern school districts implemented sex separation plans. As late as 1969, no one saw sex-segregated schools …
"A Question Which Convulses A Nation": The Early Republic's Greatest Debate About The Judicial Review Power, Theodore Ruger
"A Question Which Convulses A Nation": The Early Republic's Greatest Debate About The Judicial Review Power, Theodore Ruger
All Faculty Scholarship
No abstract provided.
The Unitary Executive During The Third Half-Century, 1889-1945, Christopher S. Yoo, Steven G. Calabresi, Laurence D. Nee
The Unitary Executive During The Third Half-Century, 1889-1945, Christopher S. Yoo, Steven G. Calabresi, Laurence D. Nee
All Faculty Scholarship
Recent Supreme Court decisions and the impeachment of President Clinton has reinvigorated the debate over Congress's authority to employ devices such as special counsels and independent agencies to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitution rejected the executive by committee employed by the Articles of the Confederation in favor of a unitary executive, in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features …
The Unitary Executive During The Second Half-Century, Steven G. Calabresi, Christopher S. Yoo
The Unitary Executive During The Second Half-Century, Steven G. Calabresi, Christopher S. Yoo
All Faculty Scholarship
Recent Supreme Court decisions and political events have reinvigorated the debate over Congress's authority to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitutional Convention rejected the executive by committee employed by the Articles of the Confederation in favor of a unitary executive in which all administrative authority is centralized in the President. More recently, the debate has turned towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features of the constitutional landscape as to preempt arguments in favor of the unitary executive. …
Where Shall We Live? Class And The Limitations Of Fair Housing Law, Wendell Pritchett
Where Shall We Live? Class And The Limitations Of Fair Housing Law, Wendell Pritchett
All Faculty Scholarship
This paper examines the effort to secure fair housing laws at the local, state and federal levels in the 1950s, focusing in particular on New York City and state. It will examine the arguments that advocates made regarding the role the law should play in preventing housing discrimination, and the relationship of these views to advocates' understanding of property rights in general. My paper will argue that fair housing advocates had particular conceptions about the importance of housing in American society that both supported and limited their success. By arguing that minorities only sought what others wanted - a single-family …
The Legalization Of The Presidencey: A Twenty-Five Year Watergate Retrospective, Michael A. Fitts
The Legalization Of The Presidencey: A Twenty-Five Year Watergate Retrospective, Michael A. Fitts
All Faculty Scholarship
No abstract provided.
Social Contract Theory In American Case Law, Anita L. Allen
Social Contract Theory In American Case Law, Anita L. Allen
All Faculty Scholarship
No abstract provided.
The Creation Of A Usable Judicial Past: Max Lerner, Class Conflict, And The Propagation Of Judicial Titans, Sarah Barringer Gordon
The Creation Of A Usable Judicial Past: Max Lerner, Class Conflict, And The Propagation Of Judicial Titans, Sarah Barringer Gordon
All Faculty Scholarship
No abstract provided.
The Federalist's Plain Meaning: Reply To Tushnet, Anita L. Allen
The Federalist's Plain Meaning: Reply To Tushnet, Anita L. Allen
All Faculty Scholarship
No abstract provided.
Discrimination, Jobs, And Politics, Anita L. Allen
Discrimination, Jobs, And Politics, Anita L. Allen
All Faculty Scholarship
No abstract provided.
Social Science And Segregation Before Brown, Herbert J. Hovenkamp
Social Science And Segregation Before Brown, Herbert J. Hovenkamp
All Faculty Scholarship
The courts must bear a heavy share of the burden of American racism. An outpouring of historical scholarship on racism and the American law reveals the outrageous and humiliating extent to which American lawyers, judges, and legislators created, perpetuated, and defended racist American institutions. The law is not autonomous, however, particularly in areas of explicit public policy making. Lawyers did not invent racism. Rather they created racist institutions because society was racist and racism was implicit in its values. The trend in scholarship on the legal history of American racism, however, has been to place most of the blame for …
James Wilson And The So-Called Yazoo Frauds, Margaret Center Klingelsmith
James Wilson And The So-Called Yazoo Frauds, Margaret Center Klingelsmith
University of Pennsylvania Law Review
No abstract provided.