Legal History Commons^™

The Uses Of History In Struggles For Racial Justice: Colonizing The Past And Managing Memory, Katherine M. Franke

Faculty Scholarship

In this Commentary, Professor Katherine Franke offers an analysis on Richard Delgado and Jean Stefancic's California's Racial History and Constitutional Rationales for Race-Conscious Decision Making in Higher Education and Rebecca Tsosie's Sacred Obligations: Intercultural Justice and the Discourse of Treaty Rights. These two Articles, she observes, deploy history for the purposes of justifying certain contemporary normative claims on behalf of peoples of color: affirmative action in higher education for Delgado and Stefancic, and sovereignty rights for native peoples in Tsosie's case. Franke explores the manner in which stories of past conquest and discrimination contribute to contemporary conceptions of racial …

Book Review: The Problematics Of Moral And Legal Theory, Matthew D. Adler

Faculty Scholarship

Reviewing, Richard A. Posner, The Problematics of Moral and Legal Theory (1999)

Linguistic Meaning, Nonlinguistic “Expression,” And The Multiplevariants Of Expressivism: A Reply To Professors Anderson And Pildes, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Expressive Theories Of Law: A Skeptical Overview, Matthew D. Adler

Faculty Scholarship

An "expressive theory of law" is, very roughly, a theory that evaluates the actions of legal officials in light of what those actions mean, symbolize, or express. Expressive theories have long played a role in legal scholarship and, recently, have become quite prominent. Elizabeth Anderson, Robert Cooter, Dan Kahan, Larry Lessig, and Richard Pildes, among others, have all recently defended expressive theories (or at least theories that might be characterized as expressive). Expressive notions also play a part in judicial doctrine, particularly in the areas of the Establishment Clause and the Equal Protection Clause.

This paper attempts to provide a …

The Man On The Moon, Immortality, And Other Millennial Myths: The Prospects And Perils Of Human Genetic Engineering, George J. Annas

Faculty Scholarship

The year 2000 provides an opportunity to reflect and speculate on human life in the year 3000. We cannot know what human life will be like a thousand years from now, but we can and should think seriously about what we would like it to be. What is unique about human beings and about being human? What makes humans human? What qualities of the human species must we preserve to preserve humanity itself? What would a "better human" be like? If genetic engineering techniques work, are there human qualities we should try to temper, and ones we should try to …

Enlarging The Administrative Polity: Administrative Law And The Changing Definition Of Pluralism, 1945-1970, Reuel E. Schiller

Faculty Scholarship

No abstract provided.

Free Speech And Expertise: Administrative Censorship And The Birth Of The Modern First Amendment, Reuel E. Schiller

Faculty Scholarship

No abstract provided.

Reflections On The Practice Of A Theory: Law, Teaching, And Social Change, Barbara L. Bezdek

Faculty Scholarship

No abstract provided.

Security For A Commercial Loan: Historical & International Perspectives, Edward A. Tomlinson

Faculty Scholarship

No abstract provided.

Rationing Justice—What Thomas More Would Say, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Porcupine Diplomacy Produces Summit (Ave.) Accord, Douglas R. Heidenreich

Faculty Scholarship

While William Mitchell College of Law was officially formed in 1956 through the merger of two local evening law schools, there had been discussion of a merger for years before 1956. Even after the merger, the two parts of the new institution continued to operate mostly separately. The acquisition of a building at 2100 Summit Avenue, in St. Paul, in 1958 finally allowed the two schools to become one and to enter the modern era of legal education.

Discontinuous Tradition Of Sentencing Discretion: Koon's Failure To Recognize The Reshaping Of Judicial Discretion Under The Guidelines, The, Ian Weinstein

Faculty Scholarship

Can a judge exercise discretion and follow the law? Some think it impossible, seeing discretion as the opposite of law. Others have harmonized the two ideas, viewing discretion as the exercise of judgment according to and within the bounds of the law. Those who decry judicial discretion urge legislatures to enact more specific laws and leave less room for the vice of inconsistent results. Those who defend discretion would channel it to achieve the virtue of individualized justice. The tension between individualization and uniformity in the law is often unnecessarily heightened by an inadequate analysis of judicial discretion. The exercise …

Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports

Faculty Scholarship

When Justice Blackmun was nominated to the Court in 1970, Americans were consumed with the idea of crime control. In the 1968 presidential campaign, Richard Nixon had called the Supreme Court "soft on crime" and had promised to "put 'law and order' judges on the Court." While sitting on the Eighth Circuit, the Justice had "seldom struck down searches, seizures, arrests or confessions," and most of his opinions in criminal cases had "affirmed guilty verdicts and sentences." Thus, according to one commentator, Justice Blackmun seemed to be "exactly what Nixon was looking for: a judge who believed in judicial restraint, …

The Cutting Edge Of Poster Law, Michael A. Heller

Faculty Scholarship

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?

Regionalism And The Religion Clauses: The Contribution Of Fisher Ames, Marc Arkin

Faculty Scholarship

On August 20, 1789, Massachusetts Federalist Fisher Ames rose to address the House of Representatives in one of his rare contributions to the debate on the Bill of Rights. 1 The day before, sitting as a Committee of the Whole, the House had concluded its brief discussion of the proposed religion amendment to the federal Constitution by agreeing to New Hampshire Representative Samuel Livermore's formula that "Congress shall make no laws touching religion, or infringing the rights of conscience." 2 Now, on the 20th, before the House could formally adopt Livermore's language, Representative Ames proposed a different wording. He moved …

The Federal Death Penalty: History And Some Thoughts About The Department Of Justice's Role, Rory K. Little

Faculty Scholarship

No abstract provided.

Precedential Cascades: An Appraisal, Eric Talley

Faculty Scholarship

About a half century ago, a handful of social scientists began to formalize what was to become the analytical heart of neoclassical economics. Under the broad rubric of "general equilibrium theory," these scholars demonstrated (in varying degrees of mathematical sophistication) the longstanding intuition behind the so-called "invisible hand": that is, that competitive markets could convert apparent disarray and fragmentation into order and harmony. More explicitly, general equilibrium theory demonstrated how a decentralized collection of self-interested individuals could, through competitive market transactions, allocate scarce goods and services in a socially efficient manner. An equally powerful corollary attended this central insight: that …

The Boundaries Of Private Property, Michael A. Heller

Faculty Scholarship

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 …

The Bill Of Rights As An Exclamation Point, Gary S. Lawson

Faculty Scholarship

Akhil Amar's The Bill of Rights: Creation and Reconstruction ("The Bill of Rights")' is one of the best law books of the twentieth century. That is not surprising, as it grows out of two of the best law review articles of the twentieth century' and was written by one of the century's premier legal scholars. I have been an unabashed Akhil Amar fan ever since our overlapping law school days more than fifteen years ago, and I am thrilled to have my perspicacity and good judgment vindicated by the publication of this remarkable work.

Chief Justice Holmes On The Science And Art (And Politics) Of Judging, David J. Seipp

Faculty Scholarship

Oliver Wendell Holmes, Jr. (1841-1935), twenty-fifth Chief Justice of Massachusetts, needs no introduction to the readers of this journal. Son and namesake of one of America's most popular writers, he was at twenty-four a Civil War hero wounded three times in battle, and at forty a lawyer-scholar whose book of lectures The Common Law would win him international renown. At sixtyone he began three decades as the Great Dissenter on the U.S. Supreme Court, where he exposed the economic theory underpinning the dominant freedom-of-contract ideology. Between 1882 and 1902-between early promise and later fame-he served on the Supreme Judicial Court …

From Group Rights To Individual Liberties: Post-War Labor Law, Liberalism, And The Waning Of Union Strength, Reuel E. Schiller

Faculty Scholarship

No abstract provided.

The Hubris Of The Master Chefs Of Diversity Stew, Michael K. Jordan

Faculty Scholarship

This article discusses the dangers of pursuing diversity, be it in the workplace, in a student body, or in a society, in a manner that puts a high level of control in the hands of a few experts using a specifc "recipe". These masters of diversity may pose serious threats to some basic principles that most Americans hold to be essential componenets of what it means to be free, self-determining individuals.

And Then There Was One, Douglas R. Heidenreich

Faculty Scholarship

In the twentieth century's second decade, Minneapolis lawyers created four night law schools, all of which William Mitchell College of Law numbers among its predecessor institutions. By 1940, a single law school remained, an amalgam of the original four. It would unite in 1956 with its St. Paul counterpart to form William Mitchell College of Law.

Recent Publications: Puerto Rico, Christina D. Ponsa-Kraus

Faculty Scholarship

Ask yourself why you are reading a review of a book about a colony called Puerto Rico in a journal on international law. Isn't Puerto Rico a self-governing Commonwealth? Isn't it part of the United States? If you decide to buy the book, ask yourself where in the bookstore you should look for it. In the international relations section? The U.S. history section? A turn-of-the-century Supreme Court case analyzing the status of Puerto Rico (and other territories "acquired" by the United States in 1901) may provide some guidance: Puerto Rico is "foreign in a domestic sense."' Perhaps the bookstore has …

The Courts And The Congress: Should Judges Disdain Political History?, Peter L. Strauss

Faculty Scholarship

In an earlier article in these pages, Professor John Manning argued that the use of legislative materials by courts in effect permits Congress to engage in delegation of its authority to subunits of the legislature, in violation of the separation of powers. Professor Strauss, acknowledging that the previous generation of courts may have excessively credited the minutiae of legislative history, responds that judicial attention to the political history of legislation is required, not forbidden, by considerations of constitutional structure. Only awareness of that history will promote interpretation reflective of the context and political moment of Congress's action. Our history of …

Some Effectual Power: The Quantity And Quality Of Decisionmaking Required Of Article Iii Courts, James S. Liebman, William F. Ryan

Faculty Scholarship

Did the Framers attempt to establish an effectual power in the national judiciary to void state law that is contrary tofederal law, yet permit Congress to decide whether or not to confer federal jurisdiction over cases arising under federal law? Does the Constitution, then, authorize its own destruction? This Article answers "yes" to the first question, and "no" to the second. Based on a new study of the meticulously negotiated compromises that produced the texts of Article HI and the Supremacy Clause, and a new synthesis of several classic Federal Courts cases, the Article shows that, by self-conscious constitutional design, …

The Great Transformation Of Regulated Industries Law, Joseph D. Kearney, Thomas W. Merrill

Faculty Scholarship

The nation's approach to regulating its transportation, telecommunications, and energy industries has undergone a great transformation in the last quarter-century. The original paradigm of regulation, which was established with the Interstate Commerce Act's regulation of railroads beginning in 1887, was characterized by legislative creation of an administrative agency charged with general regulatory oversight of particular industries. This approach did not depend on whether the regulated industry was naturally competitive or was a natural monopoly, and it was designed to advance accepted goals of reliability and, in particular, non-discrimination. By contrast, under the new paradigm, which is manifested most clearly in …

The Strawhorsemen Of The Apocalypse: Relativism And The Historian As Expert Witness, Reuel E. Schiller

Faculty Scholarship

No abstract provided.

Loyal Lieutenant, Able Advocate: The Role Of Robert H. Jackson In Franklin D. Roosevelt's Battle With The Supreme Court, Stephen R. Alton

Faculty Scholarship

This Article presents a chronological, narrative account of Jackson's participation in the court fight over Roosevelt's so-called "court packing plan." The larger history of that campaign and its players also are presented in order to illuminate Jackson's role. Although a number of secondary works-both old and new-review the history of the fight, the main purpose here is to relate Jackson's part in this larger history, drawing on. those secondary works only to the extent that they are helpful. This Article first recounts the historical background of the tension between the New Deal and the Supreme Court as well as the …

Hiram F. Stevens And The Founding Of The St. Paul College Of Law, Douglas R. Heidenreich

Faculty Scholarship

The St. Paul College of Law, one of William Mitchell College of Law's predecessor institutions, was established by five attorneys in 1900. Especially prominent among these attorneys was Hiram F. Stevens (1852-1904), who served as the first dean and was also a legislator, teacher, scholar, popular orator, and a founding member of the American Bar Association.