Legal History Commons^™

Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher W. Schmidt

Washington and Lee Law Review Online

In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial …

Separation Of Church And State: Jefferson, Lincoln, And The Reverend Martin Luther King, Jr., Show It Was Never Intended To Separate Religion From Politics, Samuel W. Calhoun

Washington and Lee Law Review Online

This Essay argues that it’s perfectly fine for religious citizens to openly bring their faith-based values to public policy disputes. Part II demonstrates that the Founders, exemplified by Thomas Jefferson, never intended to separate religion from politics. Part III, focusing upon Abraham Lincoln’s opposition to slavery, shows that religion and politics have been continuously intermixed ever since the Founding. Part IV, emphasizing the Reverend Martin Luther King, Jr., argues that no other reasons justify barring faith-based arguments from the public square.

Clerking For God’S Grandfather: Chauncey Belknap’S Year With Justice Oliver Wendell Holmes, Jr., Todd C. Peppers, Ira Brad Matetsky, Elizabeth R. Williams, Jessica Winn

Scholarly Articles

Most of what we know about law clerks comes from the clerks themselves, usually in the form of law review articles memorializing their Justices and their clerkships or in interviews with reporters and legal scholars. In a few instances, however, law clerks have contemporaneously memorialized their experiences in diaries. These materials provide a rare window into the insular world of the Court. While the recollections contained in the diaries are often infused with youthful hero worship for their employer—in contradistinction to Justice Oliver Wendell Holmes, Jr.’s claim that no man is a hero to his valet— they offer a real-time, …

Brief Of Scholars Of The History And Original Meaning Of The Fourth Amendment As Amici Curiae In Support Of Petitioner: Carpenter V. United States, Margaret Hu

Scholarly Articles

Law enforcement officials wanted to learn where Petitioner Timothy Carpenter was at the time of certain robberies. To figure that out, they obtained records from his cellular service provider showing the movements of his cell phone. Examining those records, they were able to track Carpenter’s whereabouts over a four-month period. Obtaining and examining those records was a “search” in any normal sense of the word—a search of documents and a search for Carpenter and one of his personal effects. It was therefore a “search” within the meaning of the Fourth Amendment. When the Amendment was ratified, to “search” meant to …

Progressive Legal Thought, Herbert Hovenkamp

Washington and Lee Law Review

No abstract provided.

Stepping Beyond Nuremberg’S Halo: The Legacy Of The Supreme National Tribunal Of Poland, Mark A. Drumbl

Scholarly Articles

The Supreme National Tribunal of Poland (Najwyzszy Trybunal Narodowy (Tribunal)) operated from 1946 to 1948. It implemented the 1943 Moscow Declaration in the case of suspected Nazi war criminals. This article unpacks two of the Tribunal’s trials, that of Rudolph Hoess (Kommandant of Auschwitz (Oswiecim) and Amon Goeth (commander of the Krakow-Plaszow labour camp). Following an introduction, the article proceeds in four sections. Section 2 sets out the Tribunal’s provenance and background, offering a flavour of the politics and pressures that contoured (and co-opted) its activities so as to recover its place within the imagined spaces of international criminal accountability. …

How Roe V. Wade Was Written, David J. Garrow

Washington and Lee Law Review

No abstract provided.

Beyond Backlash: Legal History, Polarization, And Roe V. Wade, Mary Ziegler

Washington and Lee Law Review

No abstract provided.

Justice Lewis F. Powell's Baffling Vote In Roe V. Wade, Samuel W. Calhoun

Washington and Lee Law Review

No abstract provided.

The United States Tax Court: An Historical Analysis (2d Ed. 2014), Harold Dubroff, Brant J. Hellwig

Books and Chapters

The second edition leaves largely intact the first four Parts of the original text, which provide a remarkably detailed history of the creation of Board of Tax Appeals through the congressional chartering of the United States Tax Court as a court of record established under article I of the Constitution. Part V is a new chapter devoted to the judicial consideration of the Tax Court’s constitutional status that culminated in the Supreme Court’s 1991 decision in Freytag v. Commissioner.

Whereas the original text addressed procedural matters following the discussion of the historical development of the Court, the second edition …

Judicial Assistants Or Junior Judges: The Hiring, Utilization, And Influence Of Law Clerks, Chad Oldfather, Todd C. Peppers

Scholarly Articles

Law clerks have been part of the American judicial system since 1882, when Supreme Court Justice Horace Gray hired a young Harvard Law School graduate named Thomas Russell to serve as his assistant. Justice Gray paid for his law clerks out of his own pocket until Congress authorized funds for the hiring of “stenographic clerks” in 1886. The Gray law clerks, however, were not mere stenographers. Justice Gray assigned them a host of legal and non-legal job duties. His clerks discussed the record and debated the attendant legal issues with Justice Gray prior to oral argument, conducted legal research, and …

Scaled Legislation & The Legal History Of The Common Good, Jill M. Fraley

Scholarly Articles

None available.

Invisible Histories & The Failure Of Protected Classes, Jill M. Fraley

Scholarly Articles

Our legal history suggests that the evolution of our discrimination law has been and likely should be the continuing enumeration of protected classes. There is, however, a counter-intuitive problem: protecting specific groups suggests to the public that everyone else is fair game, providing implicit legitimacy to other harmful stereotypes. To illustrate this problem this article constructs the legal history of stereotypes and prejudicial acts against Appalachians, a marginalized group that does not fit neatly in the protected categories. Considering then how our courts have treated the relationship between stereotypes and discrimination, along with recent sociological evidence, this article suggests that …

Recovering The Legal History Of The Confederacy, G. Edward White

Washington and Lee Law Review

Although the government of the Confederate States of America has been formally treated as a legal nullity since 1878, from February, 1861 to April, 1865 the Confederacy was a real government, with a Constitution, a Congress, district courts, and administrative offices. This Article seeks to recover the legal order of the Confederacy in its robust state, before the prospect of its obliteration came to pass. The Article explores the question why certain southern states would have considered seceding from the United States, and forming a separate nation, in late 1860 and early 1861. It then turns to the legal order …

Justice Hugo Black And His Law Clerks: Match-Making And Match Point, Todd C. Peppers

Scholarly Articles

Like other Justices on the Supreme Court, Justice Black hired law clerks to assist with the work of the Court. Each year, his law clerks would assist in reviewing cert. petitions, doing legal research, and editing opinion drafts. These job duties, however, were only one dimension of the Black clerkship. As the Justice himself once remarked to a law-clerk applicant, “I don’t pick my law clerks for what they can do for me, I pick my law clerks for what I can do for them.”

Till Death Do Us Part: Chief Justices And The United States Supreme Court, Todd C. Peppers, Chad M. Oldfather

Scholarly Articles

In this Essay, we identify and explore an additional institutional difficulty, which bridges these last two components of the proposed Act. Prior commentary has chronicled the phenomenon of Justices serving beyond the point at which they are able to perform their duties. It has also addressed the unique powers and responsibilities of the Chief Justice, with some arguing that the administrative aspects of the role should be divorced from the effectively life tenure associated with a position on the Court. We wish to highlight a connection. The unique powers and responsibilities of the center chair may make Chief Justices even …

A Golden-Age Of Civil Involvement: The Client-Centered Disadvantage For Lawyers As Law Makers, James E. Moliterno

Scholarly Articles

None available.

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.

William Thaddeus Coleman, Jr.: Breaking The Color Barrier At The U.S. Supreme Court, Todd C. Peppers

Scholarly Articles

The purpose of this essay is twofold: It will endeavor to succinctly summarize the important events of Coleman’s life and professional career, while making the argument that these achievements were as groundbreaking in the legal community as Robinson’s were to baseball. Admittedly, looking to our national pastime is hardly an original literary maneuver; The myriad similarities and links between baseball and the law have offered rich material for many legal writers.2 Moreover, this article does not wish to diminish Coleman’s accomplishments by comparing them to a mere “game.” By drawing upon the sixtieth anniversary of Robinson’s debut, my hope is …

Birth Of An Institution: Horace Gray And The Lost Law Clerks, Todd C. Peppers

Scholarly Articles

In a vault hidden away in a downtown Boston bank rests a large silver loving cup. The cup was presented to Associate Justice Horace Gray on March 22, 1902 by his law clerks, and engraved on its tarnished surface are the names of the nineteen Harvard Law School graduates who served as Justice Gray’s law clerks. While the details surrounding the presentation of the cup have been lost to history, the gift was likely prompted by the failing health of Justice Gray and his future departure from the Supreme Court. The loving cup is still held by the Gray family, …

Rediscovering Williston, Mark L. Movsesian

Washington and Lee Law Review

This Article is an intellectual history of classical contracts scholar Samuel Williston. Professor Movsesian argues that the conventional account of Williston's jurisprudence presents an incomplete and distorted picture. While much of Williston 's work can strike a contemporary reader as arid and conceptual, there are strong elements of pragmatism as well. Williston insists that doctrine be justified in terms of real-world consequences, maintains that rules can have only presumptive force, and offers institutional explanations for judicial restraint. As a result, his scholarship shares more in common with today's new formalism than commonly supposed. Even the undertheorized quality of Williston 's …

From The Xyz Affair To The War On Terror: The Justiciability Of Time Of War, John M. Hagan

Washington and Lee Law Review

No abstract provided.

More Than Segregation, Racial Identity: The Neglected Question In Plessy V. Ferguson, Thomas J. Davis

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Character Of Legal Reasoning, Brett G. Scharffs

Washington and Lee Law Review

No abstract provided.

"A Less Proportion Of Idle Proprietors": Madison, Property Rights, And The Abolition Of Fee Tail, John F. Hart

Washington and Lee Law Review

No abstract provided.

The Strange History Of "All Men Are Created Equal", Pauline Maier

Washington and Lee Law Review

No abstract provided.

The American Founders' Responsibility, Ralph Lerner

Washington and Lee Law Review

No abstract provided.

Remembering The Fourth Circuit Judges: A History From 1941 To 1998

Washington and Lee Law Review

No abstract provided.

Parental Law, Harmful Speech, And The Development Of Legal Culture: Russian Judicial Chamber Discourse And Narrative, Frances H. Foster

Washington and Lee Law Review

No abstract provided.

Constitutional Fictions And Meritocratic Success Stories, Robin West

Washington and Lee Law Review

No abstract provided.