Legal History Commons^™

Our Law, Their Law, History, And The Citation Of Foreign Law, David J. Seipp

Faculty Scholarship

The objection to citation of foreign law in U.S. Supreme Court decisions is bad history and bad law. First, let me briefly review how the objection has come to prominence recently. On June 26, 2003, the U.S. Supreme Court decided Lawrence v. Texas, striking down a same-sex sodomy statute. Justice Antonin Scalia, in the course of his dissenting opinion, wrote that the majority's citation of foreign law was "meaningless dicta," "[d]angerous dicta."' He added that the majority's opinion was "the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda."

Environmental Law In The Supreme Court: Highlights From The Blackmun Papers, Robert V. Percival

Faculty Scholarship

The papers of the late Justice Harry A. Blackmun provide a remarkably rich archive that documents how the Court, for nearly a quarter century, handled environmental cases during a period crucial to the development of environmental law. This Article reviews highlights of what the Blackmun papers reveal about the U.S. Supreme Court’s handling of environmental cases during Justice Blackmun’s service on the Court from 1970 to 1994. The Article first examines what new light the Blackmun papers shed on some of the principal findings of the author’s October 1993 article Environmental Law in the Supreme Court: Highlights from the Marshall …

A Theory In Search Of A Court, And Itself: Judicial Minimalism At The Supreme Court Bar, Neil S. Siegel

Faculty Scholarship

Cass Sunstein has prominently and provocatively advocated a theory of judicial minimalism. He has claimed that minimalism provides both an accurate descriptive account of how the Supreme Court decides constitutional cases and a persuasive normative theory of how the Justices should exercise their power of judicial review. In fact, he has written that the October 2003 Term demonstrates the Court's commitment to judicial minimalism.

In this Article, I demonstrate a deep tension between Professor Sunstein's aspiration that minimalism serve as an empirically testable (and thus descriptively accurate) account of the Supreme Court's work, and his ambition that minimalism provide a …

Review Essay: A Prescription For Perilous Times, Neil S. Siegel

Faculty Scholarship

It seldom happens that a scholar makes a lasting contribution both to legal history and to the most pressing constitutional issues of the day in the same work. It is more rare that an academic does so in a book accessible to a general audience. Perilous Times accomplishes that feat. For these reasons, and for another as well, the book should be regarded as a triumph.

Florida's Request For Admission Rule: 150 Years On The Road To Inconsistency, Ineffectiveness And Appellate Nullification, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Calvert Versus Carroll: The Quit-Rent Controversy Between Maryland's Founding Families, Garrett Power

Faculty Scholarship

This essay examines the historical background behind the 1826 U.S. Supreme Court case of Cassell v. Carroll. The legal merits in the case concerned arcane questions of feudal property law which the Court avoided and left unanswered. Today the case is of little jurisprudential significance. It is the historical record behind Cassell v. Carroll that tells a story that continues to be of interest and importance today. It provides a window on the economic and social life in provincial Maryland. It tells the tale of two dysfunctional dynasties—the Barons of Baltimore (the Calverts), who lost their faith, their fortune …

Hadley V. Baxendale And Other Common Law Borrowings From The Civil Law, Wayne Barnes

Faculty Scholarship

In 1854, the English Exchequer Court delivered the landmark case of Hadley v. Baxendale. That case provided, for the first time in the common law, a defined rule regarding the limitations on recovery of damages for breach of contract. It has been widely celebrated as a landmark in the law of contracts, and more widely as a triumph of the common law system. A little over a decade after it was decided, it had already become highly regarded, for Chief Baron Pollock stated in 1866: “[A] more extensive and accurate knowledge of decisions in our law books, and a more …

The Heightened Standard Of Judicial Review In Cases Of Governmental Gender-Based Discrimination: Ruth Bader Ginsburg's Influence On The U.S. Supreme Court In Craig V. Boren, Carlo A. Pedrioli

Faculty Scholarship

This paper argues that, as an amicus curiae who was working for the American Civil Liberties Union, Ruth Bader Ginsburg influenced the U.S. Supreme Court’s decision-making in the landmark 1976 case of Craig v. Boren. Craig, which received national news coverage from the New York Times, provided women, and men, with greater protection against governmental gender-based discrimination. In making the argument, this paper initially provides a brief, but essential note on heightened scrutiny in equal protection cases. Next, the paper compares the arguments of Ginsburg and Justice William Brennan, who wrote the opinion of the Court. Finally, the paper explains …

Under A Critical Race Theory Lens -- Brown V. Board Of Education: A Civil Rights Milestone And Its Troubled Legacy, Carlo A. Pedrioli

Faculty Scholarship

This critical book review argues that James T. Patterson’s narrative in, "Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy," is a mostly balanced historical reflection. Here, the term balanced will refer to giving consideration to both the negative and positive aspects of the phenomenon in question. To advance its thesis, the book review initially offers an overview of Patterson’s historical narrative and evaluation of the Brown legacy. Then the book review analyzes Patterson’s conclusions through a Critical Race Theory lens. Given the focus of Critical Race Theory on race and the law, especially on how …

Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski

Faculty Scholarship

Professor Robert Kaczorowski argues for an expansive originalist interpretation of Congressional power under the Fourteenth Amendment. Before the Civil War Congress actually exercised, and the Supreme Court repeatedly upheld plenary Congressional power to enforce the constitutional rights of slaveholders. After the Civil War, the framers of the Fourteenth Amendment copied the antebellum statutes and exercised plenary power to enforce the constitutional rights of all American citizens when they enacted the Civil Rights Act of 1866 and then incorporated the Act into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the plenary power the Rehnquist Court claims the …

Supermajoritarianism And The American Criminal Jury, Ethan J. Leib

Faculty Scholarship

I argue in this article that supermajority decision rules would be more appropriate than unanimity or majority rule for criminal jury convictions and that majority decision rules would be more appropriate than either unanimity or supermajoritarian rules for acquittals. I first summarize some of the advantages and disadvantages of various decision rules as a matter of general democratic theory. I next outline the arguments made for various decision rules in the context of the criminal jury. Finally, I offer an argument for supermajoritarian requirements for conviction rooted in our general constitutional commitment to supermajoritarianism. I present a coherentist account for …

Celebrating Stanley Lubman, Benjamin L. Liebman, R. Randle Edwards

Faculty Scholarship

On April 15, 2005 more than sixty scholars from China, North America, and Europe gathered at Columbia Law School for a conference in honor of Stanley Lubman. The conference celebrated Stanley's seventieth year-and more importantly, his tremendous contribution to the field of Chinese legal studies. This special edition of the Columbia Journal of Asian Law includes a selection from the twenty papers presented at the conference.

Sacred Visions Of Law, Robert L. Tsai

Faculty Scholarship

Around the time of the Bicentennial Celebration of the U.S. Constitution's framing, Professor Sanford Levinson called upon Americans to renew our constitutional faith. This article answers the call by examining how two legal symbols - Marbury v. Madison and Brown v. Board of Education - have been used by jurists over the years to tend the American community of faith. Blending constitutional theory and the study of religious form, the article argues that the decisions have become increasingly linked in the legal imagination even as they have come to signify very different sacred visions of law. One might think that …

Questioning The Rule Of Capture Metaphor For Nineteenth Century Public Land Law: A Look At R.S. 2477, James R. Rasband

Faculty Scholarship

No abstract provided.

Law And Letters: A Detailed Examination Of David Hoffman's Life And Career, Bill Sleeman

Faculty Scholarship

David Hoffman (1784-1854) has been cast as America's first legal ethicist and as the founder of one of the nation’s first original methods of legal instruction. While these interpretations of his life are certainly true, Hoffman’s life and career encompassed so much more than that. With few exceptions researchers have focused on Hoffman’s legal career and have left historians to wonder about his other pursuits. This article will review, in individual sections, the many facets of Hoffman's life and career in an effort to provide a more complete picture than has previously existed.

Tributes To Professor Alice Brumbaugh, Alan D. Hornstein, Abraham Dash, Frederic N. Smalkin, Lynne A. Battaglia, Karen H. Rothenberg, David S. Bogen

Faculty Scholarship

Tributes to Professor Alice Brumbaugh upon her retirement from the University of Maryland School of Law.

Resolving Political Questions Into Judicial Questions: Tocqueville's Thesis Revisited, Mark A. Graber

Faculty Scholarship

This paper explores whether national political questions during the second party system were resolved into questions adjudicated by the Supreme Court of the United States. The essay details an appropriate test for Tocqueville’s thesis, demonstrates that most national political questions that excited Jacksonians were not resolved into judicial questions, and explains why Tocqueville’s thesis does not accurately describe national constitutional politics during the three decades before the Civil War. That most political questions were not resolved into judicial questions during the three decades before the Civil War given common political science claim that “(v)irtually any issue the Court might wish …

Setting The Record Straight: Maryland's First Black Women Law Graduates, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

A Key Influence On The Doctrine Of Actual Malice: Justice William Brennan's Judicial Philosophy At Work In Changing The Law Of Seditious Libel, Carlo A. Pedrioli

Faculty Scholarship

In light of the historical change in the law of seditious libel that New York Times v. Sullivan (1964) prompted and the need for further exploration of the human factors behind the case, this article gives attention to William Brennan’s judicial philosophy at work in the case. The article defines judicial philosophy as a system of guiding principles upon which a judge calls in the process of legal decision-making. Specifically, the article explains how, through Times v. Sullivan, Brennan’s instrumentalist judicial philosophy had an important influence on changing the course of legal protection for criticism of the government in the …

Edith Wharton, Privacy, And Publicity, Jessica Bulman-Pozen

Faculty Scholarship

"It's the woman's soul, absolutely torn up by the roots-her whole self laid bare .... I don't mean to read another line; it's too much like listening at a keyhole." When Mrs. Touchett speaks these words in Edith Wharton's early novella, The Touchstone, we may wonder whether Wharton is mocking her own voyeuristic readership and grappling with her tenuous privacy as a professional female author. Despite her protestations, Mrs. Touchett has relished reading the letters of Mrs. Aubyn, a deceased novelist whose former lover, Stephen Glennard, has published her correspondence. It is precisely because these love letters (or "unloved letters" …

Precursors Of Rosa Parks: Maryland Transportation Cases Between The Civil War And The Beginning Of World War I, David S. Bogen

Faculty Scholarship

When Rosa Parks refused to move to a seat in the back of the bus in Montgomery, it sparked the boycott and was a critical event in the Civil Rights movement. But Mrs. Parks was the culmination of a long tradition of resistance to segregation. Many teachers, ministers, businessmen and ordinary citizens refused to accept second class treatment on the railways and waterways of Maryland between the end of the Civil War and the beginning of World War I, and took their protest to the courts. Facing hostile state courts after the Civil War, African-American plaintiffs needed to access the …

Meade V. Dennistone: The Naacp's Test Case To "...Sue Jim Crow Out Of Maryland With The Fourteenth Amendment.", Garrett Power

Faculty Scholarship

In 1936, Edmond D. Meade, an African-American pastor at Israel Baptist Church in Baltimore, contracted to purchase a home in an almost exclusively white block of Baltimore City. Meade’s purchase was followed by a suit by the white residents to block the use of the home by the new buyers. This work examines the legacy of Meade v. Dennistone, the effect of the decision on “free market forces” and concludes by considering the impact of the decision – and the community response – on the final judicial rejection of the “separate but equal” treatment of the races.

Madisonian Equal Protection, James S. Liebman, Brandon L. Garrett

Faculty Scholarship

James Madison is considered the "Father of the Constitution," but his progeny disappointed him. It had no effective defense against self-government's "mortal disease" – the oppression of minorities by local majorities. This Article explores Madison's writings in an effort to reclaim the deep conception of equal protection at the core of his constitutional aspirations. At the Convention, Madison passionately advocated a radical structural approach to equal protection under which the "extended republic's" broadly focused legislature would have monitored local laws and vetoed those that were parochial and "unjust." Rejecting this proposal to structure equal protection into the "interior" operation of …

Nine Justices, Ten Years: A Statistical Retrospective, Robert J. Jackson Jr., Thiruvendran Vignarajah

Faculty Scholarship

The 2003 Term marked an unprecedented milestone for the Supreme Court: for the first time in history, nine Justices celebrated a full decade presiding together over the nation's highest court.' The continuity of the current Court is especially striking given that, on average, one new Justice has been appointed approximately every two years since the Court's expansion to nine members in 1837.2 Although the Harvard Law Review has prepared statistical retrospectives in the past,3 the last decade presents a rare opportunity to study the Court free from the disruptions of intervening appointments.

Presented here is a review of the 823 …

Monogamy's Law: Compulsory Monogamy And Polyamorous Existence, Elizabeth F. Emens

Faculty Scholarship

Right now, marriage and monogamy feature prominently on the public stage. Efforts to lift prohibitions on same-sex marriage in this country and abroad have inspired people on all sides of the political spectrum to speak about the virtues of monogamy's core institution and to express views on who should be included within it. The focus of this article is different. Like an "unmannerly wedding guest," this article invites the reader to pause amidst the whirlwind of marriage talk and to think critically about monogamy and its alternatives.

What Caused Enron? A Capsule Social And Economic History Of The 1990s, John C. Coffee Jr.

Faculty Scholarship

The sudden explosion of corporate accounting scandals and related financial irregularities that burst over the financial markets between late 2001 and the first half of 2002 – Enron, WorldCom, Tyco, Adelphia and others – raises an obvious question: Why now? What explains the concentration of financial scandals at this moment in time? Much commentary has rounded up the usual suspects and placed the blame on a decline in business morality, an increase in "infectious greed," or other similarly subjective trends that cannot be reliably measured. Although none of these possibilities can be dismissed out of hand, approaches that simply reason …

The Emporium Capwell Case: Race, Labor Law, And The Crisis Of Post-War Liberalism, Reuel E. Schiller

Faculty Scholarship

No abstract provided.

Book Review: Decreeing Women's Equality: Using Women's History To Create Legal Parity, Denise D. J. Roy

Faculty Scholarship

This article critiques the feminist view Ute Gerhard offers in “Debating Women's Equality: Toward a Feminist Theory of Law from a European Perspective”. Throughout Debating Women's Equality, Gerhard appears to have three ambitious objectives in mind: (1) to decry the paucity of research into women's legal history while beginning to do the needed work, focusing primarily on Germany but also broadly exploring European trends, (2) to demonstrate that German/European women's legal history ultimately vindicates reliance on “equal rights” as a political strategy for women, and (3) to develop an understanding of legal equality that can serve as a meaningful tool …

Law And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

Two hundred years ago, in Marbury v. Madison, Chief Justice Marshall delivered an opinion that has come to dominate modern discussions of constitutional law. Faced with a conflict between an act of Congress and the U.S. Constitution, he explained what today is known as "judicial review." Marshall described judicial review in terms of a particular type of "superior law" and a particular type of "judicial duty." Rather than speak generally about the hierarchy within law, he focused on "written constitutions."

He declared that the U.S. Constitution is "a superior, paramount law" and that if "the constitution is superior to any …

The (Un)Favorable Judgment Of History: Deportation Hearings, The Palmer Raids, And The Meaning Of History, Harlan G. Cohen

Faculty Scholarship

As Americans respond to the events of September 11, 2001, they are being forced to contemplate their place in American history-past, present, and future. This has become particularly stark in the fight over secret deportation hearings. Following September 11, Attorney General John Ashcroft announced that the deportation hearings of "special interest" aliens would be closed to the public. Applying Richmond Newspapers's two-pronged logic-and-experience test, the Third and Sixth Circuits subsequently split over the constitutionality of the blanket closure. At the heart of their disagreement was the scarce history of deportation hearings and whether such hearings had been closed in the …