Legal History Commons^™

The Civil Rights Litigation Clearinghouse: A New Digitized Archive At Washington University In St. Louis, Margo Schlanger

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In November 2006, Washington University School of Law launched a new internet resource, the Civil Rights Litigation Clearinghouse. Completely free and accessible to the public, its web address is . The Clearinghouse vastly expands tie availability of information about and documents from civil rights cases of many different types, allowing researchers to find and read source documents and litigation summaries for over eighteen hundred litigations (and counting). The collection is organized by case; it follows cases from their start to finish, however many courts or opinions are involved, and however long the case takes. For each entry, in the collection, …

A Cuban Connection: Edwin F. Atkins, Charles Francis Adams, Jr., And The Former Slaves Of Soledad Plantation, Rebecca J. Scott

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Edwin F. Atkins and Charles Francis Adams, Jr., stand out on this stage not as major players but as a particularly intriguing Boston connection. Among the truly major players, planters like Juli?n Zulueta and the Count of Casa More owned hundreds of slaves and shaped Spanish policy. On the Cuban nationalist side, few could equal the impact of Antonio Maceo, the mulato insurgent general who insisted on full emancipation at the end of the 1868-1878 war, or the thousands of rebels who fought under the orders of rebel generals Maceo and Maximo Gomez. As the master of some ninety-five patrocinados …

Public Rights And Private Commerce: A Nineteenth-Century Atlantic Creole Itinerary, Rebecca J. Scott

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Tracing the history of a family across three generations, from enslavement in eighteenth-century West Africa through emancipation during the Haitian Revolution and subsequent resettlement in New Orleans, then France, then Belgium, can shed light on phenomena that are Atlantic in scope. A business letter written in 1899 by the cigar merchant Edouard Tinchant to General Máximo Gómez in Cuba frames an inquiry that opens out onto a family itinerary that spanned the long nineteenth century. Rosalie Vincent’s achievement of freedom in the shadow of slavery in Saint-Domingue in 1793–1803 can be seen as linked to her grandson Edouard Tinchant’s participation …

Taxing Consumption And Other Sins, James R. Hines Jr.

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Federal and state governments in the United States use income and payroll taxes as their primary tools to collect revenue. In the rest of the world, governments also use income and payroll taxes, but rely much more heavily than does the United States on taxing consumption. Consumption taxes take many forms, including general sales taxes, value-added taxes, and excise taxes on the consumption of specific items including gasoline, alcohol, tobacco products, firearms, air travel, telephone communication, and others. The U.S. government does not use a value-added tax, making the United States unique among high-income countries and a rarity in the …

Lawful Personal Use, Jessica D. Litman

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Despite having sued more than 20,000 of its customers,2 the recording industry wants the world to know that it has no complaint with personal use. Copyright lawyers of all stripes agree that copyright includes a free zone in which individuals may make personal use of copyrighted works without legal liability.3 Unlike other nations, though, the United States hasn't drawn the borders of its lawful personal use zone by statute.4 Determining the circumstances under which personal use of copyrighted works will be deemed lawful is essentially a matter of inference and analogy, and differently striped copyright lawyers will differ vehemently on …

Copyright And Incomplete Historiographies: Of Piracy, Propertization, And Thomas Jefferson, Justin Hughes

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Because we learn from history, we also try to teach from history. Persuasive discourse of all kinds is replete with historical examples – some true and applicable to the issue at hand, some one but not the other, and some neither. Beginning in the 1990s, intellectual property scholars began providing descriptive accounts of a tremendous strengthening of copyright laws, expressing the normative view that this trend needs to be arrested, if not reversed. This thoughtful body of scholarly literature is sometimes bolstered with historical claims – often casual comments about the way things were. The claims about history, legal or …

Equality And The Dialectic Between Identity And Difference, Michel Rosenfeld

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Modern equality as derived from the Enlightenment has always had problems with difference. Whereas feudalism set inequality as the baseline, modern society sets equality as the baseline, but allows for unequal treatment based on differences. Thus, differences among the sexes have been invoked to treat women as inferiors and racial differences to deprive racial minorities of equal treatment. Liberalism has countered these moves by promoting a conception of equality as identity according to which race or gender-based differences are irrelevant for purposes of political participation or employment. More recent claims for equality based on identity politics which callfor a type …

The Religious Origins Of Disestablishment Principles, Marci A. Hamilton, Rachel Steamer

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The Riddle Of Hiram Revels, Richard A. Primus

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In 1870, a black man named Hiram Revels was named to represent Mississippi in the Senate. Senate Democrats objected to seating him and pointed out that the Constitution specifies that no person may be a senator who has not been a citizen of the United States for at least nine years. Before the ratification of the Fourteenth Amendment in 1868, the Democrats argued, Revels had not been a citizen on account of the Supreme Court's 1857 decision in Dred Scott v. Sandford. Thus, even if Revels were a citizen in 1870, he had held that status for only two years. …

Judicial Power And Mobilizable History, Richard A. Primus

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One contribution that law professors can make to constitutional discourse, I suggest, is the nurturing of new mobilizable histories. A "mobilizable history," as I will use the term, is a narrative, image, or other historical source that is sufficiently well-known to the community of constitutional decisionmakers so as to be able to support a credible argument in the discourse of constitutional law. It draws upon materials that are within the collective memory of constitutional interpreters; indeed, a necessary step in nurturing a new mobilizable history is to introduce new information into that collective memory or to raise the prominence of …

Using Court Records For Research, Teaching, And Policymaking: The Civil Rights Litigation Clearinghouse, Margo Schlanger, Denise Lieberman

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The National Archives and Records Administration (NARA) is, wisely, planning the future of its enormous collection of relatively recent court records. The pertinent regulation, a “records disposition schedule” first issued in 1995 by the Judicial Conference of the United States in consultation with NARA, commits the Archives to keeping, permanently, all case files dated 1969 or earlier; all case files dated 1970 or later in which a trial was held, and “any civil case file which NARA has determined in consultation with court officials to have historical value.” Other files may be destroyed 20 years after they enter the federal …

Grados De Libertad: Democracia Y Antidemocracia En Cuby Y Luisiana, 1898-1900, Rebecca J. Scott

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This comparative study between the quest for political racial inclusivity in 1890s Louisiana and the fight against state-sanctioned racialized violence in Cuba in the early 1900s exposes similarities, tensions, and differences between the two systems. The article traces the evolving contests for citizenship and suffrage in each climate at the end of the 19th century and into the beginning of the twentieth, juxtaposing the expression of race, suffrage, and citizenship in the constitution and political climate of each locale. In 1898, the new Louisiana state constitution disenfranchised African-Americans, while in 1900 Cuba was positioning itself for a grant of universal …

What Is Rehnquist Federalism?, Marci A. Hamilton

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No abstract provided.

On Legal Pragmatism: Where Does "The Path Of The Law" Lead Us?, Susan Haack

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No abstract provided.

Damage Caps: Recent Trends In American Tort Law, Mark K. Osbeck

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Damage caps and other limitations on damages have become increasingly important in American tort law during the past thirty years. This trend shows no signs of abating; in fact, it has gained increasing momentum since President Bush took office in 2001. This chapter traces the evolution of damage caps and other limitations on damages and provides a summary of recent developments in this area.

The Cyclical Transformations Of The Corporate Form: A Historical Perspective On Corporate Social Responsibility, Reuven S. Avi-Yonah

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This article describes the transformations underwent by the corporate form from its Roman origins to the present. It shows that every time there was a shift in the role of the corporation, three theories of the corporation (the aggregate, artificial, and real entity theories) were brought forward in cyclical fashion. Every time, however, the real entity theory prevailed, and it was the dominant theory during periods ofstability in the relationship between the corporation, the shareholders, and the state. The article describes this evolution in detail, and then attempts to derive normative consequences for the legitimacy of corporate social responsibility (CSR). …

The Priest-Penitent Privilege – An Hibernocentric Exercise In Postcolonial Jurisprudence, Walter J. Walsh

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Although much has been written on the history of the priest-penitent privilege, this Article will show that such writing tends toward an unconscious, but strong, anglocentric tilt. It seems that no scholar has tried to locate and interpret all the Irish and American sources that inspired this initially hibernocentric, later more generally American, postcolonial deviation from the English common law. Since the Second World War, the significance of Philips and its 1828 New York codification have gained widespread recognition, but the scholarly inquiry has never advanced in any truly historical fashion. This article is thus the first history of the …

On Commonplace Punishment Theory, Kyron J. Huigens

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No abstract provided.

Risk, Rents, And Regressivity: Why The United States Needs Both An Income Tax And A Vat, Reuven S. Avi-Yonah

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In this article, Prof. Avi-Yonah argues that the legal academic debate about fundamental tax reform from 1974 onward has been skewed by the assumption that a consumption tax must replace the income tax. He addresses three of the major issue in recent writings on the income/consumption tax debate, and shows how none of the arguments in favor of the consumption tax are conclusive. Avi-Yonah also addresses the various consumption tax proposals that have been made and shows that they are all deficient in comparison with a VAT, as well as failing to achieve the goals of an income tax. Finally, …

Anomalies, Warts And All: Four Score Of Liberty, Privacy And Equality, Francisco Valdes

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Lawrence was decided exactly eighty years after the first liberty-privacy case, and in the midst of a fierce kulturkampf striving to roll back civil rights generally. In this Article, Professor Valdes situates Lawrence in the context formed both by these four score of liberty-privacy jurisprudence that precede it as well as by the politics of backlash that envelop it today. After canvassing the landmark rulings from Meyer in 1923 to Lawrence in 2003, in the process acknowledging both their emancipatory strengths and their traditionalist instrumentalism, Professor Valdes concludes that Lawrence is a long overdue recognition of the prior precedents and …

The Confrontation Clause Re-Rooted And Transformed, Richard D. Friedman

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For several centuries, prosecution witnesses in criminal cases have given their testimony under oath, face to face with the accused, and subject to cross-examination at trial. The Confrontation Clause of the Sixth Amendment to the U.S. Constitution guarantees the procedure, providing that ‘‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him.’’ In recent decades, however, judicial protection of the right has been lax, because the U.S. Supreme Court has tolerated admission of outof- court statements against the accused, without cross-examination, if the statements are deemed ‘‘reliable’’ or ‘‘trustworthy.’’ …

Degrees Of Freedom: Building Citizenship In The Shadow Of Slavery, Rebecca J. Scott

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By seeing events in the past as part of a dynamically evolving system with a large, but not indefinite, number of degrees of freedom, we can turn our attention to the multiple possibilities for change, and to the ways in which societies that are initially similarly situated may go on to diverge very sharply. Thus it is, I will argue, with societies in the 19th century that faced the challenge of building citizenship on the ruins of slavery.

Chuck And Steve's Peccadillo (Symposium: Threats To Secured Lending And Asset Securitization), James J. White

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Are investors in securitized receivables to be treated as the owners of an asset whose sale has taken it beyond the reach of the trustee in bankruptcy of their sellers? O are they to be treated as holders of a security interest in the transferred asset who have left behind an interest in the sellers' hands that would cause the asset to be subject to claims and interference by the sellers' grasping trustee? By adopting contrasting-arguably conflicting-statements in two subsections of a single section, the drafters of 1999 Article 9 have thrust this issue in the faces of courts and …

Le 'Droit D'Avoir Des Droits': Les Revendications Des Ex-Esclaves À Cuba (1872-1909), Rebecca J. Scott, Michael Zeuske

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In Cuba, a distinctive process of gradual emancipation brought a large number of enslaved and recently-freed men and women into the legal culture. What earlier might have remained oral or physical challenges now took legal form, as slaves and former slaves built alliances with those who could assist them in their appeals. The assertions of former slaves suggest an emerging conviction of a "right to have rights", going well beyond the immediate refusal of their own bondage. In this light, the office of the notary and the courts of first instance became places where freedom itself was constituted through the …

The First Free Exercise Case, Walter J. Walsh

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Part I of this Article tells the colonial history of religious freedom in New York State from a minority perspective, with specific reference to the secrecy of the confessional-the very practice that would be constitutionally tested in Philips. Part II describes the immediate social and political issues raised by the influx of Irish Catholic refugees into New York City in the wake of the failed United Irish Rebellion of 1798. Part III treats the unfriendly 1811 ruling of the federalist Chief Justice James Kent in People v. Ruggles as representative of the dominant Anglocentric constitutional legacy of imperial Protestant …

Who Pays For Progress?: Accident Law In Florida, 1845-1886, James L. Hunt

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No abstract provided.

Se Battre Our Ses Droits Écritures, Litiges Et Discrimination Raciale En Louisiane (1888-1899), Rebecca J. Scott

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Title in English: Fighting for public rights: writing, lawsuits and racial segregation in Louisiana (1888-1889).

This article explores the links between the fight against compulsory racial segregation and the day–to–day operation of the law in nineteenth century Louisiana. Using the figure of Louis A. Martinet, one of the organizers of the test case that yielded the U.S. Supreme Court decision Plessy v. Ferguson, the essay argues that Martinet’s role as notary reflects the central importance to the community of color of questions of public standing and written records. The article also identifies the concepts of "public rights" and "public liberties" …

Justice Lewis F. Powell, Jr. And The Counterrevolution In The Federal Securities Laws, Adam C. Pritchard

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The confirmation of Lewis F. Powell, Jr., to the Supreme Court coincided with a dramatic shift in the Court's approach to securities law. This Article documents Powell's influence in changing the Court's direction in securities law. Powell's influence was the product of his extensive experience with the securities laws as a corporate lawyer, which gave him much greater familiarity with that body of law than his fellow Justices had. That experience also made him skeptical of civil liability, particularly class and derivative actions. Powell's skepticism led him to interpret the securities law in a consistently narrow fashion to reduce liability …

Harnessing Information Technology To Improve The Environmental Impact Review Process, Michael B. Gerrard, Michael Herz

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No abstract provided.

An Outcomes Analysis Of Scope Of Review Standards, Paul R. Verkuil

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No abstract provided.