Legal History Commons^™

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.

Civil Rights And Civil Liberties In A Crisis: A Few Pages Of History, Thomas E. Baker

Faculty Publications

Tribute to Judge Procter Hug of the United States Court of Appeals for the 9th Circuit, based on a talk adapted from Thomas E. Baker's At War With the Constitution: A History Lesson from the Chief Justice, 14 BYU J. Pub.L. 69 (1999).

It is but a truism that the powers of the government are greatest when the Nation is at war. All of our wartime Commanders-in-Chief have conducted themselves based on this belief. For its part, the Supreme Court has acquiesced in draconian measures undertaken by the Executive that would not be permitted during peacetime. The lasting problem …

Compelled Expression And The Public Forum Doctrine, Howard M. Wasserman

Faculty Publications

This Article analyzes the theory underlying the Fist Amendment protection against being compelled by government to utter, present, or fund unwanted expression. The author creates a three-part model for determining when the fire speech rights of an objecting payer have been triggered. Under that model, First Amendment rights are implicated when there has been an actual government compulsion requiring an individual to give money to, or for the express benefit of, a specific private speaker for some use that, in itself, should be understood as expressive. This model strikes a necessary balance between the important theoretical underpinnings of the protection …

The Paradox Of Auxiliary Rights: The Privilege Against Self-Incrimination And The Right To Keep And Bear Arms, Michael S. Green

Faculty Publications

According to Locke's theory of the social contract, which was widely accepted by the Founders, political authority is limited by those natural moral rights that individuals reserve against the government. In this Article, I argue that Locke's theory generates paradoxical conclusions concerning the government's authority over civil disobedients, that is, people who resist the government because they believe it is violating reserved moral rights. If the government lacks the authority to compel the civil disobedient to abide by its laws, the result is anarchism: The limits on governmental authority are whatever each individual says they are. If the government has …

Congress As Culprit: How Lawmakers Spurred On The Court's Anti-Congress Crusade, Neal Devins

Faculty Publications

No abstract provided.

Latin American Legal History: Some Essential Spanish Terms, M C. Mirow

Faculty Publications

Terms related to Latin American legal history translated into English.

Editor's Observations: The 2001 Economic Crime Package: A Legislative History, Frank O. Bowman Iii

Faculty Publications

On April 6, 2001, the U.S. Sentencing Commission approved a group of amendments to guidelines governing the sentencing of economic crimes. These measures, collectively known to as the “economic crime package,” are the culmination of some six years of deliberations by both the Conaboy and Murphy Sentencing Commissions working together with interested outside groups such as the defense bar, the Justice Department, probation officers, and the Criminal Law Committee of the U.S. Judicial Conference, The package contains three basic components. First, the now-separate theft and fraud guidelines, Sections 2B1.1 and 2F1.1, will be consolidated into a single guideline. Second, the …

The Power Of Codification In Latin America: Simón Bolívar And The Code Napoléon, M C. Mirow

Faculty Publications

Codification can be an effective means to centralize and to consolidate state power. The use of codification in this manner runs against the commonly perceived notion that it promotes republican and egalitarian values. As Simon Bolivar's dictatorship quickly crumbled around him, he turned to codification based on the Code Napoleon as part of an attempt to unify Gran Colombia. Factors leading him to this undertaking and source were the need for legal reform, his emulation of Napoleon, his exposure to the works of Jeremy Bentham, and, speculatively, the influence of Andres Bello. Boivar's attempt at codification was not to complete …

On The Evolution Of The Canonical Dissent, Anita S. Krishnakumar

Faculty Publications

Legal theorists increasingly have come to recognize and study the existence of a constitutional canon composed of highly authoritative legal texts that command special reverence in the law. Among these highly authoritative texts are a series of dissenting opinions—e.g., Justice Holmes's in Lochner v. New York, and Justice Harlan's in Plessy v. Ferguson—that ironically are more famous than the majority opinions in most other cases. This Article examines the evolution of the dissenting canon, seeking to explain both the methods by which various dissenting opinions became canonized and the motivating factors behind these canonizations.

Specifically, the Article argues that the …

The Riddle Of Harmless Error In Michigan, Elizabeth Price Foley, Robert M. Filiatrault

Faculty Publications

Examines the harmless error rule as interpreted by Michigan case law.

Sovereignty, Compliance, And The World Trade Organization: Lessons From The History Of Supreme Court Review, Mark L. Movsesian

Faculty Publications

One of the World Trade Organization’s (WTO's) more remarkable and controversial innovations is its mechanism for resolving trade disputes among member states. Traditionally, states have resolved such disputes in "pragmatic" fashion, through negotiation and compromise informed by the relative power of the parties involved. But no longer: the WTO's Understanding on Rules and Procedures Governing the Settlement of Disputes (the DSU) provides that disputes between member states are to be resolved in adversary proceedings before impartial panels of experts." Under the DSU, panels have authority to decide whether members' laws violate international trade norms; panel decisions are essentially binding, though …

Bastardy And The Statute Of Wills: Interpreting A Sixteenth-Century Statute With Cases And Readings, M C. Mirow

Faculty Publications

The Statute of Wills of 1540 created a tax loophole for transfers of property to illegitimate children. Assessments for wardships that would normally be imposed on certain transfers of land to children could be effectively avoided by establishing that the donee was illegitimate, and therefore a stranger to the donor for the purposes of the statute. English lawyers in the sixteenth and seventeenth centuries educated their colleagues about this newly available loophole. In the inns of court, lawyers discussed the statutory provisions and recent revenue cases from the Court of Wards. This article sets out the loophole, examines how the …

The Privilege's Last Stand: The Privilege Against Self-Incrimination And The Right To Rebel Against The State, Michael S. Green

Faculty Publications

No abstract provided.

Defending Truth, Cynthia V. Ward, Peter A. Alces

Faculty Publications

No abstract provided.

The Street Locations: Downtown Cleveland, October 31, 1963, John Q. Barrett

Faculty Publications

This appendix to Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court’s Conference, 72 St. John’s L. Rev. 749 (1998), consists of a map drawn by Jill Dinneen (SJU Law '99), based on Sanborn maps from the 1950s and 1960s, photographs and eyewitness descriptions of downtown Cleveland then and now; and a key to marked locations on the map.

State Of Ohio V. Richard D. Chilton And State Of Ohio V. John W. Terry: The Suppression Hearing And Trial Transcripts, John Q. Barrett

Faculty Publications

This appendix to Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court’s Conference, 72 St. John’s L. Rev. 749 (1998), includes Biographical Information on the Participants in the Case; and transcripts of the complete pretrial and trial proceedings in the 1964 criminal prosecutions of Richard Chilton and John Terry, arranged by Prof. Barrett to create the organization reflected in the Table of Contents at the beginning of the appendix. Footnotes were added to provide citations and, in a few instances, to clarify the text. Bracketed material was added to correct obvious slips of the tongue or the …

The Laws Of Complexity & The Complexity Of Laws: The Implications Of Computational Complexity Theory For The Law, Eric Kades

Faculty Publications

No abstract provided.

Quality Of Mercy Must Be Restrained, And Other Lessons In Learning To Love The Federal Sentencing Guidelines, Frank O. Bowman Iii

Faculty Publications

In the remarks that follow, I do four things. First, for those unfamiliar with the Federal Sentencing Guidelines, I begin by explaining briefly how the Guidelines work. Second, I endeavor to show why Judge Cabranes is wrong, absolutely wrong in declaring the Guidelines a failure, and mostly wrong in the specific criticisms he and others level against the Guidelines. Third, after jousting with Judge Cabranes a bit, I discuss some problems with the current federal sentencing system, most notably the sheer length of narcotics sentences. Finally, I comment briefly on some of the implications of the Guidelines, and the principles …

Government Lawyers And The New Deal, Neal Devins

Faculty Publications

No abstract provided.

The Limits Of Quantitative Legal Analyses: Chaos In Legal Scholarship And Fdic V. W.R. Grace & Co., Royce De R. Barondes

Faculty Publications

This Article identifies a few of those techniques by examining a number of quasi-quantitative legal analyses that have addressed a range of legal relationships. The methodology of this Article consists of reviewing the relationship between those legal analyses and their associated non-legal disciplines. The unifying theme of the discussed examples is that a useful, well constructed quantitative analysis or approach has been improperly extended into a legal context.

Legal Realism, Lex Fori, And The Choice-Of-Law Revolution, Michael S. Green

Faculty Publications

No abstract provided.

The Evolution Of American Probate Courts And Emerging Standards To Guide Their Progress, Thomas L. Hafemeister, Paula Hannaford-Agor

Faculty Publications

Courts with probate jurisdiction are an excellent example of the evolu­tion of American courts. Despite the fact that they are direct descendants of the English judicial system, the structure, jurisdiction, and procedures of the probate courts assumed a uniquely American flavor soon after their initial establishment in the colonies. From the beginning, American probate courts have shown considerable diversity from state to state. State courts exercising probate jurisdiction have continued to evolve over time in response to the various demands placed upon them. This article describes the historical evolution of American courts exer­cising jurisdiction over probate matters, with specific attention …

The Rhetoric Of Moderation: Desegregating The South During The Decade After Brown, Davison M. Douglas

Faculty Publications

No abstract provided.

Harlot's Ghost And Jfk: A Fictional Conservation With Norman Mailer, Oliver Stone, Earl Warren, And Hugo Black, Rodney A. Smolla

Faculty Publications

No abstract provided.

Correspondence: The Stuff Of Constitutional Law, Neal Devins

Faculty Publications

No abstract provided.

The Constitution Of 1787: A Meditation, Jonathan Van Patten

Faculty Publications

No abstract provided.

Standing In The Need Of Prayer? The Supreme Court On James Madison And Religious Liberty, Jonathan Van Patten

Faculty Publications

No abstract provided.

Notes On A Bicentennial Constitution: Part Ii, Antinomial Choices And The Role Of The Supreme Court, William W. Van Alstyne

Faculty Publications

Continuing the examination of judicial review conducted around the Constitution’s bicentennial, this article lays bare the inconsistencies in the expected tasks of the Supreme Court. Where some roles of the Court have traditionally been treated as indivisible, examining those same roles separate from one another produces an incoherent view of the Court that is difficult to compromise.