Legal History Commons^™

"Seperation": From Epithet To Constitutional Norm, Marci A. Hamilton

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Religion, The Rule Of Law, And The Good Of The Whole: A View From The Clergy, Marci A. Hamilton

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The "Law"/"Politics" Distinction In The Colonial/Postcolonial Context, Kunal M. Parker

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Justice Frank Murphy And American Labor Law, Theodore J. St. Antoine

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Working people and disfavored groups were central concerns of Frank Murphy, the last Michigan Law School graduate to sit on the United States Supreme Court. In the pages of this Review, just over a half century ago, Archibald Cox wrote of him: "It was natural ...th at his judicial work should be most significant in these two fields [labor law and civil rights] and especially in the areas where they coalesce."' In this Essay, after a brief overview of Murphy the man, his days at the University of Michigan, and his career prior to the Court appointment, I shall review …

Reverberations From The Collision Of Tort And Warranty (Products Liability Law Symposium In Memory Of Professor Gary T. Schwartz), James J. White

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In his famous Stanford Law Review article, When Worlds Collide,' Professor Marc Franklin foretold the troubles for American law in the impending collision of the tort of strict liability with the warranty of merchantability.2 We daily suffer the reverberations from that collision as courts struggle with the proper application of strict tort liability and breach of warranty in products liability cases. Lawyers who have not studied Article 2 of the Uniform Commercial Code (U.C.C.) are surprised to learn that virtually every buyer who has a strict tort claim for an injury caused by a defective product also has a potential …

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

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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 …

The Rule Of Law And The Legitimacy Of Constitutional Democracy, Michel Rosenfeld

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The rule of law is a foundational principle of constitutional democracy, requiring the state to govern through publicly promulgated laws, separate legislative and adjudicative functions, and ensure accountability for all. While the rule of law is essential for legitimate governance, its meaning and implementation remain contested, varying significantly across legal traditions such as the Anglo-American rule of law, German Rechtsstaat, and French état de droit. The article argues that while the rule of law in its narrow sense—emphasizing legal predictability and procedural fairness—is insufficient for legitimate constitutional democracy, it must also incorporate democratic accountability and substantive rights protection to address …

Making Blacks Foreigners: The Legal Construction Of Former Slaves In Post-Revolutionary Massachusetts, Kunal Parker

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Latcrit At Five: Institutionalizing A Postsubordination Future, Elizabeth M. Iglesias, Francisco Valdes

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

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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 …

Carrington, Cooley, Kennedy, Klare, Patrick O. Gudridge

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Where Hannah Arendt Went Wrong, David Abraham

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Law, Business, And Politics: Liability For Accidents In Georgia, 1846-1880, James L. Hunt

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From Poor Law To Immigration Law: Changing Visions Of Territorial Community In Antebellum Massachusetts, Kunal Parker

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Weak Legs: Misbehavior Before The Enemy, William I. Miller

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Making cowardice a capital offense strikes us as a kind of barbaric survival from a rougher age, a time, that is, when few doubted that courage ranked higher than pity or prudence in the scale of virtues. And if many of us today believe that capital punishment cannot be justified even for the sadistic torturer, what a shock to discover that, as an official matter at least, Congress reserves it for the person who cannot kill at all.

"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar

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I think the great majority of judges, lawyers, and law professors would have concurred in Judge Friendly's remarks when he made them thirty-three years ago. To put it another way, I believe few would have had much confidence in the constitutionality of an anti-Miranda provision, usually known as § 3501 because of its designation under Title 18 of the United States Code, a provision of Title II of the Omnibus Crime Control and Safe Streets Act of 1968 (hereinafter referred to as the Crime Act or the Crime Bill), when that legislation was signed by the president on June 19, …

Rethinking The Penalty Phase, Kyron Huigens

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This article argues that the chaos of the US Supreme Court’s death penalty jurisprudence can be sorted with the use of a single point of clarification. That jurisprudence uses the term “culpability” – and similar terms, such as desert, responsibility, and blameworthiness – without regard to a critical ambiguity. We use “culpability” to refer to fault in wrongdoing, as reflected in “culpability elements” such as purpose or recklessness. We also use culpability to refer to eligibility for punishment, which is at issue in the defenses of insanity or minority. Death sentencing is structured around aggravating and mitigating factors, but aggravation …

Constitutional Federalism, Individual Liberty, And The Securities Litigation Uniform Standards Act Of 1998, Adam C. Pritchard

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This Article proceeds in four parts. Part I provides background on the historical development of constitutional federalism, the Supreme Court's decisions in this area, and the apparent demise of constitutional limits on federal power. Part II then reviews the Court's revival of constitutional federalism over the last decade. Based on this review, I argue that the Supreme Court's current federalism doctrine can be understood as a "constrained libertarianism" that attempts to use constitutional structure as a check on government interference with individual liberty. In this model, states are respected in our constitutional system because of the counterbalance that they provide …

Why Lawyers Have Often Worn Strange Clothes, Claimed To Work For Free--And Been Hated, Hugh D. Spitzer

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Why have lawyers and judges always adorned themselves in ancient regalia? Obviously, they must symbolically transform themselves from private individuals into "law speakers" for the community. They become tools of a longstanding legal system, and special clothes offer clues to others (and reminders to themselves) that they have special responsibilities, both to their clients and to the community at large. The "retro" clothes that lawyers and judges wear also remind everyone that law is old that it isn't meant to change rapidly, and that it offers stability and predictability in a changing world.

Amatory Jurisprudence And The Querelle Des Lois, Peter Goodrich

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It is my view, and here, no doubt, I am pre-empting my conclusion, that what literary and feminist historicism recognizes as the querelle des femmes, the debate as to the status and political role of women, is in fact underpinned and motivated by a much less explicit, yet nonetheless portentous, querelle des lois. The querelle des femmes, in other words, was always a polemic as to the legal status of women, as to their definition and role in theology and jurisprudence, canon and civil law. More than that, however, what the recovery of amatory jurisprudence can help to show is …

The Cutting Edge Of Poster Law, Michael A. Heller

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Students place tens of thousands of posters around law schools each year in staircases, on walls, and on bulletin boards. Rarely, however, do formal disputes about postering arise. Students know how far to go-and go no farther despite numerous avenues for postering deviance: blizzarding, megasigns, commercial or scurrilous signs. What is the history of poster law? What are its norms and rules, privileges and procedures? Is poster law effident? Is it just?

The Boundaries Of Private Property, Michael A. Heller

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If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive …

Pandora's Amphora: The Ambiguity Of Gifts, Jeanne L. Schroeder

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The law is notoriously suspicious of gifts, giving gratuitous promises less protection than contracts. An analysis based on the political philosophy of G.W.F. Hegel and the psychoanalytic theory of Jacques Lacan reveals that the law's ambivalence reflects the fundamental ambiguous nature of gifts.

The two dominant jurisprudential analyses of gift-utilitarianism and romanticism-share the single erroneous assumption that contract relations are characterized by atomistic rational behavior. The utilitarian, who views all human relations in terms of individual self-interest, analyzes gift as a primitive, incomplete, imperfect, and inferior form of contract. In contrast, the romantic, who believes that human relations can, and …

United States V. O'Hagan: Agency Law And Justice Powell's Legacy For The Law Of Insider Trading, Adam C. Pritchard

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The law of insider trading is judicially created; no statutory provision explicitly prohibits trading on the basis of material, non-public information. The Supreme Court's insider trading jurisprudence was forged, in large part, by Justice Lewis F. Powell, Jr. His opinions for the Court in United States v. Chiarella and SEC v. Dirks were, until recently, the Supreme Court's only pronouncements on the law of insider trading. Those decisions established the elements of the classical theory of insider trading under § 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act"). Under this theory, corporate insiders and their tippees who …

How The Wagner Act Came To Be: A Prospectus, Theodore J. St. Antoine

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The Wagner Act of 1935, the original National Labor Relations Act (NLRA), has been called "perhaps the most radical piece of legislation ever enacted by the United States Congress."' But Supreme Court interpretations supposedly frustrated the utopian aspirations for a radical restructuring of the workplace." Similarly, according to another commentator, unnecessary language in one of the Court's earliest NLRA cases "drastically undercut the new act's protection of the critical right to strike."'

Enlightenment, Donald J. Herzog

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It's a curious broadside, a work of austere graphics and polite prose far removed from the mischievous engravings and bawdy ballads usually appearing on such sheets. Drawn from an address that 345 printers had signed and 138 had presented to the queen, the original text was committed to parchment "and accompanied by a Copy surperbly printed on white Satin, edged with white Silk Fringe, backed with purple Satin, and mounted in an Ivory Roller with appropriate Devices." Even in the published version, the arch is full of intricately detailed work. The printers took pride in their craftmanship: "This Specimen of …

Freeing The Tortious Soul Of Express Warranty Law, James J. White

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I suspect that most American lawyers and law students regard express warranty as neither more nor less than a term in a contract, a term that is subject to conventional contract rules on formation, interpretation, and remedy. Assume, for example, that a buyer sends a purchase order to a seller and the purchase order specifies the delivery of 300 tons of "prime Thomas cold rolled steel." The acknowledgment also describes the goods to be sold as "prime Thomas cold rolled steel." Every American lawyer would agree that there is a contract to deliver such steel and furthermore would conclude that …

Injured Women Before Common Law Courts, 1860-1930, Margo Schlanger

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How did early American tort law treat women? How were they expected to behave, and how were others expected to behave towards them? What gender differences mattered, and how did courts deal with those differences? These are the issues this Article explores. My aim is to illuminate the common law of torts and its relation to and with ideas about gender difference, by focusing on three sets of cases involving injured women, spanning the time between approximately 1860 and 1930. My conclusions run counter to two approaches scholars have frequently taken in analyzing gender and the common law of torts. …

Law And Iconomics, Jeanne L. Schroeder, David G. Carlson

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Peter Goodrich's Oedipus Lex critically examines the English common law tradition through a psychoanalytic lens, revealing a 'legal unconscious' that underscores deep-seated repressions and contradictions. He argues that common law has historically attempted to exclude imagery and the feminine, yet these elements persist, leading to internal conflicts. By analyzing historical legal texts from the Elizabethan and Jacobean periods, Goodrich exposes violent rhetoric against enemies of the common law, such as Catholics and women, highlighting the law's struggle with its own unconscious structures.

Official Imaginations: Globalization, Difference, And State-Sponsored Immigration Discourses, Kunal M. Parker

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