Open Access. Powered by Scholars. Published by Universities.®

Legal History Commons™

Open Access. Powered by Scholars. Published by Universities.®

University of Michigan Law School

Discipline
Keyword
Publication Year
Publication
Publication Type
File Type

Articles 391 - 420 of 1162

Full-Text Articles in Legal History

When Interests Diverge, Robert S. Chang, Peter Kwan Jan 2002

When Interests Diverge, Robert S. Chang, Peter Kwan

Michigan Law Review

In her recent book Cold War Civil Rights, Professor Mary L. Dudziak, sets forth "to explore the impact of Cold War foreign affairs on U.S. civil rights reform" (p. 14). Tracing "the emergence, the development, and the decline of Cold War foreign affairs as a factor in influencing civil rights policy" (p. 17), she draws "together Cold War history and civil rights history" (pp. 14-15), two areas that are usually treated as distinct subjects of inquiry. In mixing the two together, she shows that "the borders of U.S. history are not easily maintained." Perhaps it is fitting that the field …

Go to article

Contract Rights And Civil Rights, Davison M. Douglas Jan 2002

Contract Rights And Civil Rights, Davison M. Douglas

Michigan Law Review

Have African Americans fared better under a scheme of freedom of contract or of government regulation of private employment relationships? Have court decisions striking down regulation of employment contracts on liberty of contract grounds aided black interests? Many contemporary observers, although with some notable dissenters, would respond that government regulation of freedom of contract, particularly the antidiscrimination provisions of Title VII of the Civil Rights Act of 1964, has benefited African Americans because it has restrained discriminatory conduct by private employers. Professor David E. Bernstein challenges the view that abrogation of freedom of contract has consistently benefited African Americans by …

Go to article

Marriage And Belonging, Ann Laquer Estin Jan 2002

Marriage And Belonging, Ann Laquer Estin

Michigan Law Review

Marriage is a quintessentially private institution. Justice Douglas put the point this way in 1965, writing for the Supreme Court in Griswold v. Connecticut: "We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association …

Go to article

The Electrical Deregulation Fiasco: Looking To Regulatory Federalism To Promote A Balance Between Markets And The Provision Of Public Goods, Jim Rossi Jan 2002

The Electrical Deregulation Fiasco: Looking To Regulatory Federalism To Promote A Balance Between Markets And The Provision Of Public Goods, Jim Rossi

Michigan Law Review

Over the last thirty years, regulators have deregulated just about every regulated industry. In no industry has deregulation raised as much fear and concern as in electric power markets. Even before the Enron debacle, a crisis that is more about the failures of corporate than regulatory law, it was clear that something had gone seriously wrong in the turn towards deregulation of electric power. Recent events in California are illustrative. In early 2000, consumers in California, the first state to deregulate retail power markets on a mass scale, saw repeated months of power interruptions. Many utility customers experienced a risk …

Go to article

How The Corporation Conquered John Bull, A.W. Brian Simpson Jan 2002

How The Corporation Conquered John Bull, A.W. Brian Simpson

Michigan Law Review

This is a study of the evolution of the forms of business organization during the industrial revolution. Historians never fully agree about anything at all, and often with good reason, but there is really no doubt that the period covered by this book is one that saw major changes in agricultural and industrial production, and in commercial practice and organization. It is convenient to refer broadly to the changes which took place in terms of a revolution, industrial, agricultural, or less commonly, commercial in nature. Long before the starting date for this study, which is the date of the Bubble …

Go to article

Property In Writing, Property On The Ground: Pigs, Horses, Land, And Citizenship In The Aftermath Of Slavery, Cuba, 1880-1909, Rebecca J. Scott, Michael Zeuske Jan 2002

Property In Writing, Property On The Ground: Pigs, Horses, Land, And Citizenship In The Aftermath Of Slavery, Cuba, 1880-1909, Rebecca J. Scott, Michael Zeuske

Articles

In the most literal sense, the abolition of slavery marks the moment when one human being cannot be held as property by another human being, for it ends the juridical conceit of a "person with a price." At the same time, the aftermath of emancipation forcibly reminds us that property as a concept rests on relations among human beings, not just between people and things. The end of slavery finds former masters losing possession of persons, and former slaves acquiring it. But it also finds other resources being claimed and contested, including land, tools, and animals-resources that have shaped former …

Go to article

The Once And Future Labor Act: Myths And Realities, Theodore J. St. Antoine Jan 2002

The Once And Future Labor Act: Myths And Realities, Theodore J. St. Antoine

Other Publications

In this provocative article Professor St. Antoine laments, "I cannot believe that a private-sector workforce that is only one-tenth organized is ultimately good for labor, for management, or for the whole of our society." His speech to the College of Labor and Employment Lawyers outlines the original purposes of the National Labor Relations Act, the reasons for the drastic decline in the percentage of the workforce that is unionized, and his suggestions for changes in the law that would encourage and promote collective bargaining.

Go to article

The Constitution And The New Deal, Richard D. Friedman Jan 2002

The Constitution And The New Deal, Richard D. Friedman

Reviews

The Supreme Court of the New Deal era continues to captivate American lawyers and historians. Constitutional jurisprudence changed rapidly during the period. Moreover, some of the most significant changes appeared - whatever the reality - to result from pressure imposed in 1937 by President Franklin Roosevelt's plan to pack the Court with Justices amenable to his programme. The structure of constitutional law that emerged within a few years of Roosevelt's death remains intact in significant respects today.

Go to article

Civil War Pension Attorneys And Disability Politics, Peter Blanck, Chen Song Dec 2001

Civil War Pension Attorneys And Disability Politics, Peter Blanck, Chen Song

University of Michigan Journal of Law Reform

Professor Blanck and Dr. Song provide a detailed examination of the pension disability program established after the Civil War for Union Army Veterans. They use many original sources and perform several statistical analyses as the basis for their summary. They draw parallels between this disability program and the ADA, and they point out that current ADA plaintiffs encounter many of the same social, political and even scientific issues that Union Army veterans dealt with when applying for their disability pensions. The Article demonstrates that history can help predict the trends within, and evolution of the ADA--essentially leading to a better …

Go to article

A Political History Of The Establishment Clause, John C. Jeffries Jr., James E. Ryan Nov 2001

A Political History Of The Establishment Clause, John C. Jeffries Jr., James E. Ryan

Michigan Law Review

Now pending before the Supreme Court is the most important church-state issue of our time: whether publicly funded vouchers may be used at private, religious schools without violating the Establishment Clause. The last time the Court considered school aid, it overruled precedent and upheld a government program providing computers and other instructional materials to parochial schools. In a plurality opinion defending that result, Justice Thomas dismissed as irrelevant the fact that some aid recipients were "pervasively sectarian." That label, said Thomas, had a "shameful pedigree." He traced it to the Blaine Amendment, proposed in 1875, which would have altered the …

Go to article

When Constitutional Worlds Colide: Resurrecting The Framers' Bill Of Rights And Criminal Procedure, George C. Thomas Iii Oct 2001

When Constitutional Worlds Colide: Resurrecting The Framers' Bill Of Rights And Criminal Procedure, George C. Thomas Iii

Michigan Law Review

For two hundred years, the Supreme Court has been interpreting the Bill of Rights. Imagine Chief Justice John Marshall sitting in the dim, narrow Supreme Court chambers, pondering the interpretation of the Sixth Amendment right to compulsory process in United States v. Burr. Aaron Burr was charged with treason for planning to invade the Louisiana Territory and create a separate government there. To help prepare his defense, Burr wanted to see a letter written by General James Wilkinson to President Jefferson. In ruling on Burr's motion to compel disclosure, Marshall departed from the literal language of the Sixth Amendment - …

Go to article

Taking Aim At An American Myth, Paul Finkelman May 2001

Taking Aim At An American Myth, Paul Finkelman

Michigan Law Review

Every American had a musket hanging over his fireplace at night, and by his side during the day. Like Cincinnatus, time and again Americans dropped their plows to shoulder their arms, to fight the Indians, the French, the Indians, the British, the Indians, the Mexicans, the Indians yet again, and then, from 1861 to 1865, each other. American men were comfortable with guns; they needed them and wanted them. They felt at home in woods, in search of food, or in defense of their homesteads. It is a story as old as our first pulp novels and earliest movies. It …

Go to article

Morgan Kousser's Noble Dream, Heather K. Gerken May 2001

Morgan Kousser's Noble Dream, Heather K. Gerken

Michigan Law Review

J. Morgan Kousser, professor of history and social science at the California Institute of Technology, is an unusual academic. He enjoys the respect of two quite different groups - historians and civil rights litigators. As a historian, Kousser has written a number of important works on the American South in the tradition of his mentor, C. Vann Woodward, including a foundational book on southern political history, The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910. Many of his writings have become seminal texts among election law scholars. Kousser has also used his historical skills …

Go to article

Finding Gold In The Rainbow Rights Movement, Shayna S. Cook May 2001

Finding Gold In The Rainbow Rights Movement, Shayna S. Cook

Michigan Law Review

In her history of the past fifty years of the gay and lesbian civil rights movement, Patricia Cain recounts the litigation successes and failures that contributed to the legal status of gays and lesbians in the Untied States today. Clearly an insider who has marched with the movement every step of the way, Cain provides a comprehensive account of all fronts of the battle in state and federal courts since 1950. But while Rainbow Rights serves as a good primer on the legal challenges and the key themes uniting them, the book reads like an account of a struggle ending …

Go to article

Are We Protecting The Wrong Rights?, Jennifer L. Saulino May 2001

Are We Protecting The Wrong Rights?, Jennifer L. Saulino

Michigan Law Review

Elizabeth Bartholet, in her book Nobody's Children, takes a strong step toward beginning a new kind of dialogue about abused and neglected children. She positions herself as a liberal who has come to terms with the fact that traditional liberal ideals are in conflict with the needs of abused and neglected children (p. 5). In doing so, she tries to convince her readers that, regardless of ideology, we all should have a different focus in the area of child abuse and neglect law. She uses Sabrina as one of several examples of how programs for abused and neglected children that …

Go to article

The Unsettling Of The West: How Indians Got The Best Water Rights, David H. Getches May 2001

The Unsettling Of The West: How Indians Got The Best Water Rights, David H. Getches

Michigan Law Review

A single, century-old court decision affects the water rights of nearly everyone in the West. The Supreme Court's two-page opinion in Winters v. United States sent out shock waves that reverberate today. By formulating the doctrine of reserved water rights, the Court put Indian tribes first in line for water in an arid region. Priority is everything where water law typically dictates that the senior water rights holder is satisfied first, even if it means taking all the water and leaving none for anyone else. In the West, water rights belong to "prior appropriators." The earliest users of water secure …

Go to article

Laws As Treaties?: The Constitutionality Of Congressional-Executive Agreements, John C. Yoo Feb 2001

Laws As Treaties?: The Constitutionality Of Congressional-Executive Agreements, John C. Yoo

Michigan Law Review

Only twice in the last century, in 1919 with the Treaty of Versailles, and two years ago with the comprehensive Nuclear Test-Ban Treaty, has the Senate rejected a significant treaty sought by the President. In both cases, the international agreement received support from a majority of the Senators, but failed to reach the two-thirds supermajority required by Article II, Section 2, of the Constitution. The failure of the Versailles Treaty resulted in a shattering defeat for President Wilson's vision of a new world order, based on collective security and led by the United States. Rejection of the Test-Ban Treaty amounted …

Go to article

Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel Jan 2001

Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel

Articles

When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions …

Go to article

The Second Amendment: Structure, History, And Constitutional Change, David Yassky Dec 2000

The Second Amendment: Structure, History, And Constitutional Change, David Yassky

Michigan Law Review

A fierce debate about the Second Amendment has been percolating in academia for two decades, and has now bubbled through to the courts. The question at the heart of this debate is whether the Amendment restricts the government's ability to regulate the private possession of firearms. Since at least 1939 - when the Supreme Court decided United States v. Miller, its only decision squarely addressing the scope of the right to "keep and bear Arms" - the answer to that question has been an unqualified "no." Courts have brushed aside Second Amendment challenges to gun control legislation, reading the Amendment …

Go to article

The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman Oct 2000

The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman

Michigan Law Review

The constitutional law of state criminal procedure was born between the First and Second World Wars. Prior to 1920, the Supreme Court had upset the results of the state criminal justice system in just a handful of cases, all involving race discrimination in jury selection. By 1940, however, the Court had interpreted the Due Process Clause of the Fourteenth Amendment to invalidate state criminal convictions in a wide variety of settings: mob-dominated trials, violation of the right to counsel, coerced confessions, financially-biased judges, and knowingly perjured testimony by prosecution witnesses. In addition, the Court had broadened its earlier decisions forbidding …

Go to article

The Treaty Power And American Federalism, Part Ii, Curtis A. Bradley Oct 2000

The Treaty Power And American Federalism, Part Ii, Curtis A. Bradley

Michigan Law Review

In an article published in this Review two years ago, I described and critiqued what I called the "nationalist view" of the treaty power. Under this view, the national government has the constitutional power to enter into treaties, and thereby create binding national law by virtue of the Supremacy Clause, without regard to either subject matter or federalism limitations. This view is reflected in the writings of a number of prominent foreign affairs law scholars, as well as in the American Law Institute's Restatement (Third) of Foreign Relations Law of the United States. In my article, I argued that this …

Go to article

Pleading Under Section 11 Of The Securities Act Of 1933, Krista L. Turnquist Jun 2000

Pleading Under Section 11 Of The Securities Act Of 1933, Krista L. Turnquist

Michigan Law Review

The Securities Act of 1933 ("Securities Act") requires full and fair disclosure of the nature of securities sold in interstate and foreign commerce. Section 11 of the Securities Act prohibits false or misleading registration statements. It also provides buyers a private remedy for false or misleading statements against any signer of the registration statement, any partner or director of the issuer, any professional involved in preparing or certifying the statement, and any underwriter. The rule appears simple: if there is a material misstatement or omission in the registration statement, the buyer may sue the seller. Courts disagree, however, over how …

Go to article

Because We Love You, Rosemary B. Quigley May 2000

Because We Love You, Rosemary B. Quigley

Michigan Law Review

I remember the impotence I felt on the eve of the Gulf War in January 1991. No one could have known at that moment what a brief conflict it would be. We had every reason to believe that the Middle East would be hurled into turmoil. And if protracted war ensued, a draft would surely follow. I watched my college boyfriend sink into despair, with the help of a Bob Mould CD, at the prospect of being called to give his life for his country. I remained uncharacteristically mute. In the face of this battle, our positions were too unequal …

Go to article

Healing The Blind Goddess: Race And Criminal Justice, Mark D. Rosenbaum, Daniel P. Tokaji May 2000

Healing The Blind Goddess: Race And Criminal Justice, Mark D. Rosenbaum, Daniel P. Tokaji

Michigan Law Review

Once again, issues of race, ethnicity, and class within our criminal justice system have been thrust into the public spotlight. On both sides of the country, in our nation's two largest cities, police are being called to account for acts of violence directed toward poor people of color. In New York City, a West African immigrant named Amadou Diallo was killed by four white police officers, who fired forty-one bullets at the unarmed man as he stood in the vestibule of his apartment building in a poor section of the Bronx. Did race influence the officers' decisions to fire the …

Go to article

Franco's Spain, Queer Nation?, Gema Pérez-Sánchez Apr 2000

Franco's Spain, Queer Nation?, Gema Pérez-Sánchez

University of Michigan Journal of Law Reform

This Article discusses how, through its juridical apparatus, the Spanish dictatorship of Francisco Franco sought to define and to contain homosexuality, followed by examples of how underground queer activism contested homophobic laws. The Article concludes by analyzing a literary work to illustrate the social impact of Francoism's homophobic law against homosexuality.

Go to article

Querying A Queer Spain Under Franco, Peter Kwan Apr 2000

Querying A Queer Spain Under Franco, Peter Kwan

University of Michigan Journal of Law Reform

There should be more articles in the legal journals such as Professor Gema Pérez-Sánchez's. In Franco's Spain, Queer Nation?, Professor Pérez-Sánchez has done a great service to legal scholarship in four respects. Firstly, she has written an appropriately far-ranging piece. In a discipline that has as one of its central missions the broadening of critical legal discourse, LatCrit can sometimes appear to suffer from symptoms of parochialism in its understandable emphasis on the Latina/o experience within American borders, or on the experience of its Latina/o immigrants once they have reached these shores. To be sure, this is not a problem …

Go to article

Hegemony, Coercion, And Their Teeth-Gritting Harmony: A Commentary On Power, Culture, And Sexuality In Franco's Spain, Ratna Kapur, Tayyab Mahmud Apr 2000

Hegemony, Coercion, And Their Teeth-Gritting Harmony: A Commentary On Power, Culture, And Sexuality In Franco's Spain, Ratna Kapur, Tayyab Mahmud

University of Michigan Journal of Law Reform

Professor Gema Pérez-Sánchez's article, Franco's Spain, Queer Nation? focuses on the last years of Francisco Franco's fascist dictatorship and the early years of the young Spanish democracy, roughly from the late 1960's to the early 1980's. The centerpiece of her article looks at how, through law, Franco's regime sought to define and contain what it considered dangerous social behavior, particularly homosexuality. She traces how the state not only exercised hegemonic control over definitions of gender and sexuality, but also established well-defined roles for women and drew clear lines between what constituted legitimate and illegitimate sexualities, namely, the line between heterosexuality …

Go to article

Treaty-Making And The Nation: The Historical Foundations Of The Nationalist Conception Of The Treaty Power, David M. Golove Mar 2000

Treaty-Making And The Nation: The Historical Foundations Of The Nationalist Conception Of The Treaty Power, David M. Golove

Michigan Law Review

Characteristic of the most enduring constitutional controversies is a clash between fundamental but ultimately irreconcilable principles. Unable to synthesize opposing precepts, we visit and revisit certain issues in an endless cycle. Each generation marches forward heedless, and sometimes only dimly aware, of how many times the battle has already been fought. Even the peace of exhaustion achieves only a temporary respite. The abiding controversy over the relationship between the treaty power of the national government and the legislative powers of the states is paradigmatic in this respect. Beginning as early as in the first debate over ratification of the Articles …

Go to article

Judicial Review & The Policy Of Federal Abstention: A Juvenile's Right To Ensure The Existence Of A "Substantial Federal Interest", Matthew Drexler Feb 2000

Judicial Review & The Policy Of Federal Abstention: A Juvenile's Right To Ensure The Existence Of A "Substantial Federal Interest", Matthew Drexler

Michigan Law Review

The problem of juvenile delinquency must be dealt with in an effective and meaningful manner if we are to reduce the ever increasing levels of crime and improve the quality of life in America. With these words, the United States Senate opened its report in support of the first major federal juvenile delinquency statute in almost forty years. The goal of the statute and of federal involvement in juvenile delinquency proceedings was to give the highest attention to preventing juvenile crime and to minimizing the involvement of juveniles in the juvenile and criminal justice systems. Until 1974, the federal government …

Go to article

Antitrust Beyond Competition: Market Failures, Total Welfare, And The Challenge Of Intramarket Second-Best Tradeoffs, Peter J. Hammer Feb 2000

Antitrust Beyond Competition: Market Failures, Total Welfare, And The Challenge Of Intramarket Second-Best Tradeoffs, Peter J. Hammer

Michigan Law Review

Should antitrust law ever sanction the accumulation of market power or permit other restraints of trade if such conduct would increase social welfare? This is the challenge raised by intramarket second- best tradeoffs. The lesson of second-best analysis is that one market failure can sometimes counteract the effects of another market failure. In the presence of multiple market failures, it is conceivable that mergers or other restraints traditionally viewed as anticompetitive may be welfare-enhancing. A social planner, given the mandate of maximizing total welfare, would permit such restraints. Could an antitrust judge come to the same result under a defensible …

Go to article

First Prev Next Last