Legal History Commons^™

A Year In Practice: The Journal Of A Reflective Clinician, Stacy Caplow

Faculty Scholarship

No abstract provided.

Lessons From The Past: Revenge Yesterday And Today, Tamar Frankel

Faculty Scholarship

Professor Seipp's Paper transports us to the Middle Ages to discover a society that views crime and tort quite differently from the way we view these categories today. Yet our discovery of that society offers a perspective about our own. In Professor Seipp's world the victim of a wrong had a choice: demand revenge by determining how the wrongdoer would be punished, or demand monetary compensation. These two entitlements were mutually exclusive. The victim could choose either one, but to some extent, especially in earlier times, the right of revenge was considered a higher right that the victim was expected …

The Innkeeper's Tale: The Legal Development Of A Public Calling, David S. Bogen

Faculty Scholarship

No abstract provided.

Democracy And Feminism , Tracy E. Higgins

Faculty Scholarship

Although feminist legal theory has had an important impact on most areas of legal doctrine and theory over the last two decades, its contribution to the debate over constitutional interpretation has been comparatively small. In this Article, Professor Higgins explores reasons for the limited dialogue between mainstream constitutional theory and feminist theory concerning questions of democracy, constitutionalism, and judicial review. She argues that mainstream constitutional theory tends to take for granted the capacity of the individual to make choices, leaving the social construction of those choices largely unexamined. In contrast, feminist legal theory's emphasis on the importance of constraints on …

Straying From The Path Of The Law After One Hundred Years, The, Tracy E. Higgins

Faculty Scholarship

What common ground can be found between modern feminist legal theory and a century-old essay advocating understanding the law from the perspective of the "bad man"? The question admits of no simple answer. Feminists, including myself, might agree with some irony that "[i]f you want to know the law and nothing else, you must look at it as a bad man" but would add that this is precisely the problem. Of course, Holmes does not use the concept of the bad man in a feminist sense to suggest that the law empowers the bad man at the expense of women. …

The Carpenter And The Crocodile, Garrett Power

Faculty Scholarship

Pre-revolutionary Baltimore Town grew rapidly in commerce and population. Its harbor on the Chesapeake Bay served a larger trading area than any other American seaport at the time. In the 17770s two young fortune seekers - Leonard Harbaugh, carpenter and Christopher Hughes, silversmith - arrived in Baltimore from Ireland. This paper explores the role that each played in developing Baltimore's physical, monetary and legal landscape.

Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski

Faculty Scholarship

A plurality on the Supreme Court seeks to establish a state-sovereignty based theory of federalism that imposes sharp limitations on Congress's legislative powers. Using history as authority, they admonish a return to the constitutional "first principles" of the Founders. These "first principles," in their view, attribute all governmental authority to "the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole." Because the people of each state are the source of all governmental power, they maintain, "where the Constitution is silent about the exercise of a particular power-that is, …

Reflections On From Slaves To Citizens Bondage, Freedom And The Constitution: The New Slavery Scholarship And Its Impact On Law And Legal Historiography, Robert J. Kaczorowski

Faculty Scholarship

The thesis of Professor Donald Nieman's paper, "From Slaves to Citizens: African-Americans, Rights Consciousness, and Reconstruction," is that the nation experienced a revolution in the United States Constitution and in the consciousness of African Americans. According to Professor Nieman, the Reconstruction Amendments represented "a dramatic departure from antebellum constitutional principles,"' because the Thirteenth Amendment reversed the pre-Civil War constitutional guarantee of slavery and "abolish[ed] slavery by federal authority." The Fourteenth Amendment rejected the Supreme Court's "racially-based definition of citizenship [in Dred Scott v. Sandford4], clearly establishing a color-blind citizenship” and the Fifteenth Amendment "wrote the principle of equality into the …

Holmes's Legacy And The New Constitutional History, Eben Moglen

Faculty Scholarship

The most significant collaborative effort in the literature of American constitutional history, the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, is nearing completion. A generation has passed since the appearance of the first volume, authored by Julius Goebel, Jr., and (after many vicissitudes affecting several of the works in the series) the appearance of this volume marks the antepenultimate stage. Though Professor Fiss's remarkable achievement deserves to be viewed primarily on the basis of its own merits as a study of the Fuller Court, a just appreciation of its contribution to the literature requires …

Democracy's Incursion Into The Eastern Shore: The 1870 Election In Chestertown, C. Christopher Brown

Faculty Scholarship

No abstract provided.

Toward A New Deal Legal History, Eben Moglen

Faculty Scholarship

With this article, Barry Cushman continues the project begun in earlier writings, leading ultimately to a thoroughgoing reconsideration of the legal history of the New Deal. The present work, perhaps the most important to appear so far, brings Cushman's evolving argument up against the most stable – if not altogether the most convincing – element of the traditional history of the New Deal Court. The "Constitutional Revolution of 1937" is now open for reconsideration or, more precisely, the famous "switch in time" that realigned the Supreme Court with the demands of the Roosevelt administration. Cushman argues powerfully – by and …

By Reason Of Their Sex: Feminist Theory Postmodernism And Justice , Tracy E. Higgins

Faculty Scholarship

Both the Supreme Court's jurisprudence of gender and feminist legal theory have generally assumed that some identifiable and describable category of woman exists prior to the construction of legal categories. For the Court, this woman-whose characteristics admittedly have changed over time-serves as the standard against which gendered legal classifications are measured. For feminism, her existence has served a different but equally important purpose as the subject for whom political goals are pursued. To the extent that the definitions of the category diverge, the differences among definitions are played out in feminist critiques of the Court's gender jurisprudence, and, occasionally, in …

Two Social Movements, Thomas W. Merrill

Faculty Scholarship

Two social movements in the last fifty years have had a profound impact on our understanding of law and the role of the courts in our system of government. One is the civil rights movement. The demand for greater racial and gender equality and other civil rights has changed the face of the law in countless ways. For example, it has called into question – or at least required a fundamental revision in – the traditional understanding that the courts should interpret the Constitution and laws in accordance with their original meaning. Decisions such as Brown v. Board of Education …

Considering Zenger: Partisan Politics And The Legal Profession In Provincial New York, Eben Moglen

Faculty Scholarship

History is the narration of the past, and not all valuable history is true. When William Smith, Jr. first wrote his much-admired and widely distributed History of the Province of New-York, in 1756, he ended his narration twenty-four years before his own time, with the arrival of Governor William Cosby in New York on August 1, 1732. In justification of his abrupt termination at this particular point, Smith wrote:

The history of our publick transactions, from this period, to the present time, is full of important and entertaining events, which I leave others to relate. A very near relation …

Revolution And Judicial Review: Chief Justice Holt's Opinion In City Of London V. Wood, Philip A. Hamburger

Faculty Scholarship

In 1702, in an opinion touching upon parliamentary power, Chief Justice Sir John Holt discussed limitations on government in language that has long seemed more intriguing than clear. Undoubtedly, the Chief Justice was suggesting limitations on government – limitations that subsequently have become quite prominent, particularly in America. Yet even the best report of his opinion concerning these constraints has left historians in some doubt as to just what he was saying and why it was significant.

The case in which Chief Justice Holt was so obscure about matters of such importance, City of London v. Wood, revived the …

A Guide To American Legal History Methodology With An Example Of Research In Progress, Jenni Parrish

Faculty Scholarship

No abstract provided.

The Transformation Of Morton Horwitz, Eben Moglen

Faculty Scholarship

In 1977, Morton Horwitz published his astonishing first book, The Transformation of American Law, 1780-1860. Looking back, two things could be said of the reception of the Transformation: the book was subjected to extremely searching and ultimately quite successful criticism, while at the same time it dominated the field of American legal history for more than a decade, as no book had before, or has since. Like almost all other historians of American law trained in the years following 1977, my education in the craft of legal history was decisively affected by the Transformation. My first published work was a …

Legal Realism And The Social Contract: Fuller’S Public Jurisprudence Of Form, Private Jurisprudence Of Substance, James Boyle

Faculty Scholarship

No abstract provided.

Using Comparative Fault To Replace The All-Or-Nothing Lottery Imposed In Intentional Torts Suits In Which Both Plaintiff And Defendant Are At Fault , Gail D. Hollister

Faculty Scholarship

All or nothing. For years this idea of absolutes has been a hallmark of tort law despite the inequities it has caused. Plaintiffs must either win a total victory or suffer total defeat. In recent years courts and legislatures have begun to recognize the injustice of the all-or-nothing approach and to replace it with rules that permit partial recoveries that are more equitably tailored to the particular facts of each case. The most dramatic example of this more equitable approach is the nearly universal rejection of contributory negligence in favor of comparative fault in negligence cases. Almost all jurisdictions, however, …

Historical Framework For Reviving Constitutional Protection For Property And Contract Rights , James L. Kainen

Faculty Scholarship

Post-New Deal constitutionalism is in search of a theory that justifies judicial intervention on behalf of individual rights while simultaneously avoiding the charge of "Lochnerism."' The dominant historical view dismisses post-bellum substantive due process as an anomalous development in the American constitutional tradition. Under this approach, Lochner represents unbounded protection for economic rights that permitted the judiciary to read laissez faire, pro-business policy preferences into the constitutional text. Today's revisionists have mounted a substantial challenge to the dismissive views of traditionalists. Indeed, some claim Lochner reached the right result, but for the wrong reason. The revisionists characterize substantive due process …

Did The First Justice Harlan Have A Black Brother?, James W. Gordon

Faculty Scholarship

This Article summarizes the careers of James, John, and Robert Harlan. It then examines the evidence of the blood relationship between Robert Harlan and James Harlan, and speculates on the influence that John Harlan's contact with Robert Harlan might have had in shaping John's views on race. Finally, the Article reflects on the implications of the careers of John and Robert Harlan for our understanding of race in late nineteenth century America.

What He Was For, Eben Moglen

Faculty Scholarship

It will be said frequently in the years to come that an era in American history died when Thurgood Marshall left us. It will take some time for us to absorb the truth, for our sadness to be replaced by desperation. More than an era closed when his gallant heart failed him at last; in every corner of our battered country, maimed as it is by years of recklessly cultivated hatred, we lost the voice that constantly called us to attend to the work of our salvation.

A Vigil For Thurgood Marshall, Eben Moglen

Faculty Scholarship

Three days after his death, on January 27th, Thurgood Marshall came to the Supreme Court, up the marble steps, for the last time. Congress had ordered Abraham Lincoln's catafalque brought to the Court, and on it the casket of Thurgood Marshall lay in state. His beloved Chief, Earl Warren, had been so honored in the Great Hall of the Court, and no one else. Congress made the right decision about the bier, and it spoke with the voice of the people: no other American, of any age, so deserved to lie where Lincoln slept.

To him, all day on Wednesday, …

Equality And Diversity: The Eighteenth-Century Debate About Equal Protection And Equal Civil Rights, Philip A. Hamburger

Faculty Scholarship

Living, as we do, in a world in which our discussions of equality often lead back to the desegregation decisions, to the Fourteenth Amendment, and to the antislavery debates of the 1830s, we tend to allow those momentous events to dominate our understanding of the ideas of equal protection and equal civil rights. Indeed, historians have frequently asserted that the idea of equal protection first developed in the 1830s in discussions of slavery and that it otherwise had little history prior to its adoption into the U.S. Constitution. Long before the Fourteenth Amendment, however – long before even the 1830s …

The Booth Cases: Final Step To The Civil War, Jenni Parrish

Faculty Scholarship

No abstract provided.

Ignoring History: The Liability Of Ships' Masters, Innkeepers And Stablekeepers Under Roman Law, David S. Bogen

Faculty Scholarship

No abstract provided.

"Legal Theory And Practice" Development At The University Of Maryland: One Teacher's Experience In Programmatic Context, Barbara L. Bezdek

Faculty Scholarship

No abstract provided.

Entail In Two Cities: A Comparative Study Of Long Term Leases In Birmingham, England And Baltimore, Maryland 1700-1900, Garrett Power

Faculty Scholarship

Urban planning is often thought of as a conscious collection of governmental choices made as to the shape and social structure of the city. Thoughtful and forward looking public policies are viewed as mapping out the future. Overlooked or understated in this estimation are the less purposeful influences on the urban morphology and city sociology. This paper examines one such influence, land tenure, by taking a comparative look at the residential development of Birmingham, England, and Baltimore, Maryland, between 1700 and 1900. Birmingham and Baltimore both housed their working class populations in densely-packed dwellings with shared party walls. And both …

Rediscovering The Republican Origins Of The Legal Ethics Codes, Russell G. Pearce

Faculty Scholarship

Many commentators wrongly assume that the hired gun ideal is the foundation of our legal ethics codes. This article explains that this assumption is based on an historical mistake that has consequences for interpreting the modern codes. Judge George Sharswood, the nineteenth century scholar whose work provided the basis for the 1908 A.B.A. Canons of Ethics, had a republican conception that rejected the adversarial ethic in favor of a more nuanced conception that combined loyalty to clients with a thick obligation to the public good that both bounded client representation and required lawyers to provide political leadership. Although the emphasis …

Proof In Law And Science, David H. Kaye

Faculty Scholarship

This article addresses proof in both science and law. Both disciplines utilize proof of facts and proof of theories, but for different purposes and, consequently, in different ways. Some similarities exist, however, in how both disciplines use a series of premises followed by a conclusion to form an argument, and thus constitute a logic. This article analyzes the ways in which legal logic and scientific logic differ. Finding facts in law involves the same logic but quite different procedures than scientific fact-finding. Finding, or rather constructing, the law is also very different from scientific theorizing. But such differences do not …