Legal History Commons^™

The Interpretive Authority Of Consensus In The Lower Courts, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

How Should Elected Judges Interpret Statutes?, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

Natural Law And The Rhetoric Of Empire: Reynolds V. United States, Polygamy, And Imperialism, Nathan B. Oman

Faculty Publications

In 1879, the U.S. Supreme Court construed the Free Exercise Clause for the first time, holding in Reynolds v. United States that Congress could punish Mormon polygamy. Historians have interpreted Reynolds, and the anti-polygamy legislation and litigation that it midwifed, as an extension of Reconstruction into the American West. This Article offers a new historical interpretation, one that places the birth of Free Exercise jurisprudence in Reynolds within an international context of Great Power imperialism and American international expansion at the end of the nineteenth century. It does this by recovering the lost theory of religious freedom that the Mormons …

Law Versus Ideology: The Supreme Court And The Use Of Legislative History, David S. Law, David Zaring

William & Mary Law Review

Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court’s use of a particular interpretive technique— namely, the use of legislative history to determine the purpose and meaning of a statute. We analyzed …

Appeal To Heaven: On The Religious Origins Of The Constitutional Right Of Revolution, John M. Kang

William & Mary Bill of Rights Journal

No abstract provided.

Considering William And Mary's History With Slavery: The Case Of President Thomas Roderick Dew, Alfred L. Brophy

William & Mary Bill of Rights Journal

Amidst the recent apologies for slavery from the legislatures of Virginia, Maryland, North Carolina, Alabama, New Jersey, and Florida, there is significant controversy over the wisdom of investigations of institutions' connections to slavery and apologies for those connections.' The divide over attitudes toward apologies falls along racial lines. This Article briefly looks to the controversy on both sides of the apology debates. Among those questions about investigations of the past, universities occupy a special place. Efforts at recovery of their connections to slavery include a study released by graduate students at Yale University in 2001,2 a report by Brown University's …

The Reasonable Person In Trademark Law, Laura A. Heymann

Faculty Publications

No abstract provided.

Does Dworkin Commit Dworkin’S Fallacy?: A Reply To Justice In Robes, Michael S. Green

Faculty Publications

In an article entitled ‘Dworkin’s Fallacy, Or What the Philosophy of Language Can’t Teach Us about the Law’, I argued that in Law’s Empire Ronald Dworkin misderived his interpretive theory of law from an implicit interpretive theory of meaning, thereby committing ‘Dworkin’s fallacy’. In his recent book, Justice in Robes, Dworkin denies that he committed the fallacy. As evidence he points to the fact that he considered three theories of law—‘conventionalism’, ‘pragmatism’ and ‘law as integrity’—in Law’s Empire. Only the last of these is interpretive, but each, he argues, is compatible with his interpretive theory of meaning, which he describes …

Book Review Of Faiths Of The Founding Fathers, Davison M. Douglas

Faculty Publications

No abstract provided.

Dworkin V. The Philosophers: A Review Essay On Justice In Robes, Michael S. Green

Faculty Publications

In this review essay, Professor Michael Steven Green argues that Dworkin's reputation among his fellow philosophers has needlessly suffered because of his refusal to back down from his "semantic sting" argument against H. L. A. Hart. Philosophers of law have uniformly rejected the semantic sting argument as a fallacy. Nevertheless Dworkin reaffirms the argument in Justice in Robes, his most recent collection of essays, and devotes much of the book to stubbornly, and unsuccessfully, defending it. This is a pity, because the failure of the semantic sting argument in no way undermines Dworkin's other arguments against Hart.

Foreword: The Legacy Of St. George Tucker, Davison M. Douglas

William & Mary Law Review

No abstract provided.

St. George Tucker's Law Papers, Charles F. Hobson

William & Mary Law Review

No abstract provided.

The Discourse Of Law In Time Of War: Politics And Professionalism During The Civil War And Reconstruction, Norman W. Spaulding

William & Mary Law Review

This Article assesses the role of law and lawyering in time of war by examining how lawyers responded to and were affected by the Civil War and Reconstruction. Although the modern legal profession has its roots in the same time period (legal formalism, education in law schools rather than apprenticeships, Socratic instruction, bar associations, large firm practice, and a distinct brand of constitutional conservatism all emerge in the 1870s), historians of the legal profession have largely ignored the relationship between professional organization and lawyers' experience of the Civil War and Reconstruction.

Before the war period, many elite lawyers were committed …

Legal Realism As Theory Of Law, Michael S. Green

William & Mary Law Review

No abstract provided.

Legal Revolutions: Six Mistakes About Discontinuity In The Legal Order, Michael S. Green

Faculty Publications

A legal revolution occurs when chains of legal dependence rupture-causing one legal system to be replaced by a different and incommensurable legal system. For example, before the French Revolution chains of legal dependence ultimately led to Louis XVI, but after this legal revolution they led to the National Assembly (or the people of France it represented). The very possibility of legal revolutions depends upon laws being structured into legal systems in this fashion. And yet, despite substantial academic interest in legal revolutions, there has been a reluctance to examine the structure that makes them possible. The goal of this Article …

Halpin On Dworkin's Fallacy: A Surreply, Michael S. Green

Faculty Publications

No abstract provided.

Statutory Interpretation In Econotopia, Nathan B. Oman

Faculty Publications

Much of the debate in the recent revival of interest in statutory interpretation centers on whether or not courts should use legislative history in construing statutes. The consensus in favor of this practice has come under sharp attack from public choice critics who argue that traditional models of legislative intent are positively and normatively incoherent. This paper argues that in actual practice, courts look at a fairly narrow subset of legislative history. By thinking about the power to write that legislative history as a property right and legislatures as markets, it is possible to use Coase's Theorem and the concept …

W & M Law School Came First. Why Care?, W. Taylor Reveley Iii

Faculty Publications

No abstract provided.

The Rhetorical Uses Of Marbury V. Madison: The Emergence Of A "Great Case", Davison M. Douglas

Faculty Publications

Marbury v. Madison is today indisputably one of the "great cases" of American constitutional law because of its association with the principle of judicial review. But for much of its history, Marbury has not been regarded as a seminal decision. Between 1803 and 1887, the Supreme Court never once cited Marbury for the principle of judicial review, and nineteenth century constitutional law treatises were far more likely to cite Marbury for the decision's discussion of writs of mandamus or the Supreme Court's original jurisdiction than for its discussion of judicial review. During the late nineteenth century, however, the exercise of …

The Struggle For School Desegregation In Cincinnati Before 1954, Davison M. Douglas

Faculty Publications

No abstract provided.

Hans Kelsen And The Logic Of Legal Systems, Michael S. Green

Faculty Publications

No abstract provided.

The End Of The Hudson Valley's Peculiar Institution: The Anti-Rent Movement's Politics, Social Relations, & Economics, Eric Kades

Faculty Publications

No abstract provided.

John Marshall: Remarks Of October 6, 2000, William H. Rehnquist

William & Mary Law Review

No abstract provided.

Judicial Power In The Constitutional Theory Of James Madison, Jack N. Rakove

William & Mary Law Review

No abstract provided.

The Use That The Future Makes Of The Past: John Marshall's Greatness And Its Lessons For Today's Supreme Court Justices, Jack M. Balkin

William & Mary Law Review

No abstract provided.

John Marshall Through The Eyes Of An Admirer: John Quincy Adams, Michael Daly Hawkins

William & Mary Law Review

No abstract provided.

Some Alarming Aspects Of The Legacies Of Judicial Review And Of John Marshall, Stephen B. Presser

William & Mary Law Review

No abstract provided.

John Marshall, Mcculloch V. Maryland, And "We The People": Revisions In Need Of Revising, Martin S. Flaherty

William & Mary Law Review

No abstract provided.

A Judge For All Seasons, R. Kent Newmyer

William & Mary Law Review

No abstract provided.

The Lives Of John Marshall, Michael J. Gerhardt

William & Mary Law Review

No abstract provided.