Legal History Commons^™

Constructed Constraint And The Constitutional Text, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

In recent years, constitutional theorists have attended to the unwritten aspects of American constitutionalism and, relatedly, to the ways in which the constitutional text can be “constructed” upon by various materials. This Article takes a different approach. Instead of considering how various materials can supplement, implement, or interact with the constitutional text, the Article focuses on how the text itself is often partially constructed in American constitutional practice. Although interpreters typically regard clear text as controlling, this Article contends that whether the text is perceived to be clear is often affected by various “modalities” of constitutional interpretation that are normally …

Four Futures Of Legal Automation, Frank A. Pasquale, Glyn Cashwell

Faculty Scholarship

Simple legal jobs (such as document coding) are prime candidates for legal automation. More complex tasks cannot be routinized. So far, the debate on the likely scope and intensity of legal automation has focused on the degree to which legal tasks are simple or complex. Just as important to the legal profession, however, is the degree of regulation or deregulation likely in the future.

Situations involving conflicting rights, unique fact patterns, and open-ended laws will remain excessively difficult to automate for an extended period of time. Deregulation, however, may effectively strip many persons of their rights, rendering once-hard cases simple. …

Contract Law And Fundamental Legal Conceptions: An Application Of Hohfeldian Terminology To Contract Doctrine, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

A War For Liberty: On The Law Of Conscientious Objection, Jeremy K. Kessler

Faculty Scholarship

One common understanding of the Second World War is that it was a contest between liberty and tyranny. For many at the time – and for still more today – ‘liberty’ meant the rule of law: government constrained by principle, procedure, and most of all, individual rights. For those states that claimed to represent this rule-of-law tradition, total war presented enormous challenges, even outright contradictions. How would these states manage to square the governmental imperatives of military emergency with the legal protections and procedures essential to preserving the ancient ‘liberty of the subject’? This question could be and was asked …

Law Libraries And Laboratories: The Legacies Of Langdell And His Metaphor, Richard A. Danner

Faculty Scholarship

Law Librarians and others have often referred to Harvard Law School Dean C.C. Langdell’s statements that the law library is the lawyer’s laboratory. Professor Danner examines the context of what Langdell through his other writings, the educational environment at Harvard in the late nineteenth century, and the changing perceptions of university libraries generally. He then considers how the “laboratory metaphor” has been applied by librarians and legal scholars during the twentieth century and into the twenty-first. The article closes with thoughts on Langdell’s legacy for law librarians and the usefulness of the laboratory metaphor.

Originalism As A Theory Of Legal Change, Stephen E. Sachs

Faculty Scholarship

Originalism is usually defended as a theory of interpretation. This Article presents a different view. Originalism ought to be defended, if at all, not based on normative goals or abstract philosophy, but as a positive theory of American legal practice, and particularly of our rules for legal change.

One basic assumption of legal systems is that the law, whatever it is, stays the same until it's lawfully changed. Originalism begins this process with an origin, a Founding. Whatever rules we had when the Constitution was adopted, we still have today -- unless something happened that was authorized to change …

Habermas, The Public Sphere, And The Creation Of A Racial Counterpublic, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

In The Structural Transformation of the Public Sphere, Jürgen Habermas documented the historical emergence and fall of what he called the bourgeois public sphere, which he defined as “[a] sphere of private people come together as a public . . . to engage [public authorities] in a debate over the general rules governing relations in the basically privatized but publicly relevant sphere of commodity exchange and social labor.” This was a space where individuals gathered to discuss with each other, and sometimes with public officials, matters of shared concern. The aim of these gatherings was not simply discourse; these gatherings …

Legislation And Regulation In The Core Curriculum: A Virtue Or A Necessity?, James J. Brudney

Faculty Scholarship

The first-year curriculum at American law schools has been remarkably stable for more than 100 years. Many would say ossified. At Harvard, the First-Year Course of Instruction in 1879-80 consisted of Real Property, Contracts, Torts, Criminal Law and Criminal Procedure, and Civil Procedure. These five courses-focused heavily on judge-made common law-dominated Harvard's IL curriculum from the law school's founding into the 21st century. The same five subjects have long commanded the primary attention of first-year students at Fordham, founded in 1905, and at virtually every other U.S. law school throughout the 20th century. Starting in the 1990s, however, a growing …

More Than Decisions: Reviews Of American Law Reports In The Pre-West Era, Richard A. Danner

Faculty Scholarship

In the early nineteenth century, both general literary periodicals and the first American legal journals often featured reviews of new volumes of U.S. Supreme Court and state court opinions, suggesting their importance not only to lawyers seeking the latest cases, but to members of the public. The reviews contributed to public discourse through comments on issues raised in the cases and the quality of the reporting, and were valued as forums for commentary on the law and its role in American society, particularly during debates on codification and the future of the common law in the 1820s. James Kent saw …

Patent Confusion, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.

Reasonableness In And Out Of Negligence Law, Benjamin C. Zipursky

Faculty Scholarship

The word "reasonable" and its cognates figure prominently in innumerable areas of the law – from antitrust and contract law to administrative and constitutional law, from the common law of nuisance to an assortment of rules in statutes and regulations. While some thinkers have equated "reasonableness" with "rationality," others have looked to "justifiability," and others still have decided that "reasonableness" means virtually nothing at all, but serves the important function of allocating decisionmaking authority. The reality is that the term "reasonable" is both vague and ambiguous, and thus plays many different roles in the law. As with terms such as …

Agora: Reflections On Zivotofsky V. Kerry : Historical Gloss, The Recognition Power, And Judicial Review, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

The Uncertain Future Of The Corporate Contribution Ban, Richard Briffault

Faculty Scholarship

Concern about the role of corporate money in democracy has been a longstanding theme in American politics. In the late nineteenth century, the states began to adopt laws restricting the use of corporate funds in elections. The first permanent federal campaign finance law – the Tillman Act of 1907 – targeted corporations by prohibiting federally-chartered corporations from making contributions in any election and prohibiting all corporations from making contributions in federal elections. Subsequently amended, continued, and strengthened by the Federal Corrupt Practices Act of 1925, the Taft-Hartley Act of 1947, the Federal Election Campaign Act of 1971, and the Bipartisan …

The Struggle For Administrative Legitimacy, Jeremy K. Kessler

Faculty Scholarship

Nearly forty years ago, Professor James 0. Freedman described the American administrative state as haunted by a "recurrent sense of crisis." "Each generation has tended to define the crisis in its own terms," and "each generation has fashioned solutions responsive to the problems it has perceived." Yet "a strong and persisting challenge to the basic legitimacy of the administrative process" always returns, in a new guise, to trouble the next generation. On this account, the American people remain perennially unconvinced that administrative decisionmaking is "appropriate, proper, and just," entitled to respect and obedience "by virtue of who made the decision" …

50 Years Of Legal Education In Ethiopia: A Memoir, Stanley Z. Fisher

Faculty Scholarship

In this paper I describe my experience as one of the early members of the Haile Selassie I University (H.S.I.U.), Law Faculty, and share my reflections on developments in the ensuing years.

Angela Harris: The Person, The Teacher, The Scholar, Rachel F. Moran

Faculty Scholarship

Angela Harris has written eloquently about the creative tensions that define her as a person, a teacher, and a scholar. She has explored the challenges of maintaining a private identity when called upon to share her life experience with a public audience, whether in the classroom, at a conference, or in an essay. She has reflected on the ways in which legal teaching privileges reason over emotion, wondering whether this dynamic impoverishes the exchange of ideas and undervalues the joy that can motivate a caring advocate. And, she has explored the dialectic between identity politics and the structural forces that …

Constitutional Exaptation, Political Dysfunction, And The Recess Appointments Clause, Jay D. Wexler

Faculty Scholarship

The so-called Recess Appointments Clause of the Constitution provides that: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”1 As of only a few years ago, I considered this clause so minor and quirky that I included it in a book about ten of the Constitution’s “oddest” clauses, right alongside such clearly weird provisions as the Title of Nobility Clause and the Third Amendment.2 Though I recognized that the Recess Appointments Clause was probably the least odd …

Some Reflections On The Past, Present And State-Dependent Future Of Lotteries In American Gaming Law, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Still Drowning In Segregation: Limits Of Law In Post-Civil Rights America, Taunya L. Banks

Faculty Scholarship

Approximately 40% of the deaths attributed to Hurricane Katrina in 2005 were caused by drowning. Blacks in the New Orleans area accounted for slightly more than one half of all deaths. Some of the drowning deaths were preventable. Too many black Americans do not know how to swim. Up to seventy percent of all black children in the United States have no or low ability to swim. Thus it is unsurprising that black youth between 5 and 19 are more likely to drown than white youths of the same age. The Centers for Disease Control concludes that a major factor …

The Restatement (Second) Of Contracts Reasonably Certain Terms Requirement: A Model Of Neoclassical Contract Law And A Model Of Confusion And Inconsistency, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Contract Law And The Hand Formula, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

"So Help Me?": Religious Expression And Artifacts In The Oath Of Office And The Courtroom Oath, Frederick B. Jonassen

Faculty Scholarship

No abstract provided.

Critiquing Modern-Day U.S. Legal Education With Rhetoric: Frank's Plea And The Scholar Model Of The Law Professor Persona, Carlo A. Pedrioli

Faculty Scholarship

This article explains how, from 1920 to 1960, the role, or persona, of the law professor in the United States remained the situs of considerable rhetorical controversy that the role had been in the fifty years before 1920. On one hand, lawyers used rhetoric to promote a persona, that of a scholar, appropriate for the law professor situated within the university, a context suitable for the professionalization of law. On the other hand, different lawyers like Judge Jerome Frank used rhetoric to critique, often in a scathing manner, the scholar persona and put forth their own persona, that of a …

Social Hierarchies And The Formation Of Customary Property Law In Pre-Industrial China And England, Taisu Zhang

Faculty Scholarship

Comparative lawyers and economists have often assumed that traditional Chinese laws and customs reinforced the economic and political dominance of elites and, therefore, were unusually “despotic” towards the poor. Such assumptions are highly questionable: Quite the opposite, one of the most striking characteristics of Qing and Republican property institutions is that they often gave significantly greater economic protection to the poorer segments of society than comparable institutions in early modern England. In particular, Chinese property customs afforded much stronger powers of redemption to landowners who had pawned their land. In both societies, land-pawning occurred far more frequently among poorer households …

The Islamic Influence In (Pre-)Colonial And Early America: A Historico-Legal Snapshot, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Turnaround: Reflections On The Present Day Influence Of Negotiations On International Bankruptcy At The Fifth Session Of The Hague Conference On Private International Law In 1925, Susan Block-Lieb

Faculty Scholarship

In 1925, the British government sent a delegation to the Fifth Session of the Hague Conference on Private International Law. The Hague Conference had met sporadically since 1893,1 but this was the first time the British government sent a delegation to The Hague to discuss the possibility of a diplomatic convention to reach international agreement on uniform rules on what continental Europeans called “private international law” — matters of jurisdiction, applicable law and procedure. The British delegation held limited authority from the Home Office: it could participate only in deliberations on a possible convention on bankruptcy law, and then only …

Three Proposals For Regulating The Distribution Of Home Equity, Ian Ayres, Joshua Mitts

Faculty Scholarship

The Consumer Financial Protection Bureau’s recently-released “qualified mortgage” rules effectively discourage predatory lending but miss an equally important source of systemic risk: low-equity clustering. Specific “volatility-inducing” mortgage terms, when present in a substantial cluster of mortgage contracts, exacerbate macroeconomic risk by increasing the chance that the housing and lending markets will have to absorb a wave of simultaneous defaults after a downturn in housing prices. This Article shows that these terms became prevalent in a substantial proportion of residential mortgages in the years leading up to the home mortgage crisis. In contrast, during the earlier “amortization era” (when mortgagors were …

The Bond Court's Institutional Truce, Monica Hakimi

Faculty Scholarship

As many readers are aware, Bond v. United States is a quirky case. The federal government prosecuted under the implementing legislation for the Chemical Weapons Convention (CWC) a betrayed wife who used chemical agents to try to harm her husband’s lover. The wife argued that, as applied to her, the implementing legislation violated the Tenth Amendment. She thus raised difficult questions about the scope of the treaty power and of Congress’s authority to implement treaties through the Necessary and Proper Clause. The Bond Court avoided those questions with a clear statement rule: “we can insist on a clear indication that …

Beccaria's On Crimes And Punishments: A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt

Faculty Scholarship

Beccaria’s treatise On Crimes and Punishments (1764) has become a placeholder for the classical school of thought in criminology, for deterrence-based public policy, for death penalty abolitionism, and for liberal ideals of legality and the rule of law. A source of inspiration for Bentham and Blackstone, an object of praise for Voltaire and the Philosophes, a target of pointed critiques by Kant and Hegel, the subject of a genealogy by Foucault, the object of derision by the Physiocrats, rehabilitated and appropriated by the Chicago School of law and economics — these ricochets and reflections on Beccaria’s treatise reveal multiple dimensions …

Article 41 And The Right To Appeal, Benjamin L. Liebman

Faculty Scholarship

Extensive discussion of the Chinese Constitution focuses on the ways in which the Constitution is under-enforced or not implemented. This essay takes a different approach, examining one clause that is arguably at times over-enforced, providing for constitutional authorization for challenging legal determinations outside the legal system. This essay’s focus is Article 41 of the 1982 Constitution, which protects the rights of citizens to file complaints (shensu 申诉) against illegal conduct of state actors. My goal in this essay is to examine the ways in which the concept of shensu is used to provide a basis for challenges to state action …