Legal History Commons^™

Abandoning Animus, Robert L. Tsai

Faculty Scholarship

This Essay presents a preliminary set of arguments against the legal concept of animus grounded in actual practice. After considering the major reasons advanced in support of the animus approach as well as the main objections, I argue that the end of animus may come once we confront the limits of judicial capacity. First, judges have not been willing or able to resort to the animus rationale to call out bigotry where the evidence of hostility is robust. These failures suggest that projects founded upon judicial review to reduce hateful motivations may be overly optimistic. Second, on the occasions the …

The Need For Restatement Of The Common Law: A Long Look Back, David J. Seipp

Faculty Scholarship

Restatements of the common law, the chief achievements of the American Law Institute (ALI), fulfilled a need that had long been expressed by lawyers and judges in England and America. Supreme Court Justice Joseph Story, responding in 1837 to the Massachusetts state legislature’s inquiry whether common law should and could be codified, reported that there could be tremendous saving of effort and time by lawyers and judges if a group of experts set out in written form the agreed principles and doctrines of common law. Story did not advise that the legislature should enact this written text of common law, …

Compulsory Terms In Property, Timothy M. Mulvaney

Faculty Scholarship

The state’s imposition of compulsory terms in property relations—such as habitability warranties binding landlords and tenants and minimum wages binding employers and employees—has long been conceived by analysts generally situated on the political right as an affront to individual freedom and inevitably harmful to the terms’ intended beneficiaries. This critique, though, seems to have special purchase in public discourse today not only within its traditional circle of supporters on the right but, at least in some instances, for a sizable number on the left as well. The bipartisan acceptance of this critique is serving as a substantial roadblock to a …

Natural Transplants, Vanessa Casado-Pérez, Yael R. Lifshitz

Faculty Scholarship

Policymakers are constantly faced with the complex task of managing novel challenges. At times, these challenges result from new technologies: Consider fights over allocating air rights for drones or decisions about how to share scarce vaccines in a pandemic. Other times the resources are old, but the challenges are new, such as how to fairly allocate water in times of unprecedented drought or previously undesirable rare earth minerals that are in demand for modern manufacturing and energy production. Often, instead of carefully tailoring a regime to the new resource, decisionmakers simply rely on mechanisms they are familiar with. When jurisdictions …

Vesting, Jed Handelsman Shugerman

Faculty Scholarship

"The executive Power shall be vested in a President of the United States of America." The Executive Vesting Clause is one of three originalist pillars for the unitary executive theory, the idea that the President possesses executive powers like removal without congressional limitations (that is, the powers are indefeasible). An underlying assumption is that "vest" connotes a formalist approach to separation of powers rather than a more functional system of Madisonian checks and balances. Assumptions about "vesting" for official powers are likely the result of semantic drift from property rights and ahistoric projections back from the later Marshall Court doctrine …

The Original Meaning Of “Due Process Of Law” In The Fifth Amendment, Max Crema, Lawrence B. Solum

Faculty Scholarship

The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text. The Supreme Court has embraced both substantive due process—a jurisprudence of unenumerated rights—and procedural due process—a grab bag of doctrines that touch upon almost every aspect of administrative and judicial procedures. We demonstrate that the original meaning of the Clause is much narrower. In 1791, “due process of law” had a narrow and technical meaning: the original sense of the word “process” was close to the modern sense that the word has when used in the phrase …

On The Meaning Of Color And The End Of White(Ness), William J. Aceves

Faculty Scholarship

This Article explores the history of the term “people of color” and its current status in a country struggling to overcome its racist origins. The murders of Trayvon Martin, Michael Brown, George Floyd, Breonna Taylor, and so many other victims of state violence have generated profound anger, calls for action, and demands for dialogue. It is undoubtedly simplistic to assert that words matter. But accurate descriptions are essential for honest conversations, and words convey meanings beyond their syntax. In discussions about race and racial identity, the term “people of color” is routinely used as the antipode to the white community. …

Originalism And Personal Jurisdiction: Several Questions And A Few Answers, Lawrence B. Solum, Max Crema

Faculty Scholarship

The modern constitutional law of personal jurisdiction is largely the product of living constitutionalism. International Shoe's minimum-contacts and fairness standard was not derived from the constitutional text, and it cannot be supported by the original meaning of the Due Process of Law Clauses of the Fifth and Fourteenth Amendments. This Article explores the implications of that fact for the constitutional law of personal jurisdiction, with a focus on the federal courts.

The Article proceeds in six steps. First, it lays out the theoretical framework provided by Public Meaning Originalism, including the Fixation Thesis, the Constraint Principle, and the interpretation-construction …

Equity's Federalism, Kellen R. Funk

Faculty Scholarship

The United States has had a dual court system since its founding. One might expect such a pronouncement to refer to the division between state and federal courts, but in the early republic the equally obvious referent would have been to the division between courts of common law and the court of chancery — the distinction, that is, between law and equity. This Essay sketches a history of how the distinction between law and equity was gradually transformed into a doctrine of federalism by the Supreme Court. Congress’s earliest legislation jealously guarded federal equity against fusion with common law at …

New Democracy: Finding Hope In The Past And Heavy Lifting For The Future, Kate Andrias

Faculty Scholarship

Bill Novak has written a remarkable book that debunks the myth that the American state was weak and unconcerned with providing for social welfare until it was transformed by the extraordinary leadership of President Franklin Delano Roosevelt. He shows with compelling detail that the New Deal was not a magical or anomalous moment, but rather came about because of legal, institutional, socioeconomic, and democratic “heavy lifting” that occurred over the course of the preceding seventy years.

Judge James A. Wynn, Originalism, And The Juridical/Judicial Role, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Navassa: Property, Sovereignty, And The Law Of The Territories, Joseph Blocher, Mitu Gulati

Faculty Scholarship

The United States acquired its first overseas territory—Navassa Island, near Haiti—by conceptualizing it as a kind of property to be owned, rather than a piece of sovereign territory to be governed. The story of Navassa shows how competing conceptions of property and sovereignty are an important and underappreciated part of the law of the territories—a story that continued fifty years later in the Insular Cases, which described Puerto Rico as “belonging to” but not “part of” the United States.

Contemporary scholars are drawn to the sovereignty framework and the public-law tools that come along with it: arguments about rights and …

Feminist Legal History And Legal Pedagogy, Paula A. Monopoli

Faculty Scholarship

Women are mere trace elements in the traditional law school curriculum. They exist only on the margins of the canonical cases. Built on masculine norms, traditional modes of legal pedagogy involve appellate cases that overwhelmingly involve men as judges and advocates. The resulting silence signals that women are not makers of law—especially constitutional law. Teaching students critical modes of analysis like feminist legal theory and critical race feminism matters. But unmoored from feminist legal history, such critical theory is incomplete and far less persuasive. This Essay focuses on feminist legal history as foundational if students are to understand the implications …

Gender, Voting Rights, And The Nineteenth Amendment, Paula A. Monopoli

Faculty Scholarship

One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that “there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment.” This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct …

Standing, Equity, And Injury In Fact, Ernest A. Young

Faculty Scholarship

This contribution to the Notre Dame Law Review's annual Federal Courts symposium on "The Nature of the Federal Equity Power" asks what the traditions of equity can tell us about Article III standing. I take as my point of departure the observation by Professors Sam Bray and Paul Miller, in their contribution to the symposium, that equity does not have causes of action as such--or at least not in the same way as actions at law. This is potentially important for standing, as many academic critiques of the Supreme Court's standing jurisprudence have argued that standing should turn on whether …

Constitutionalism And New Democracy: Two Questions, Ashraf Ahmed

Faculty Scholarship

Bill Novak’s New Democracy, like his first book The People’s Welfare, is a characteristically learned, conceptually sophisticated, and expansive history of the American regulatory state. This time, however, instead of defending a “strong” early American state operating largely through the common law, Novak chronicles the emergence of a recognizably modern, national administrative state. His story roughly spans the aftermath of the Civil War to the election of FDR in 1932; this means, Novak tells us, that “much of the heavy lifting in terms of the creation was done before the so-called Hundred Days.” (264). Importantly all of these …

Courts In Conversation, Thomas P. Schmidt

Faculty Scholarship

Ralph Waldo Emerson once suggested that we read not for instruction but for provocation. By that standard, in The Words That Made Us, Akhil Reed Amar has written a characteristically great book. This is not to deny that there is abundant instruction in its many pages: Amar offers a synoptic and yet still nuanced description of the great constitutional conversation that engulfed American political life in the eighty or so years around the founding. One of the chief values of the book, though, is that it will provoke a whole new set of additions to the constitutional conversation that …

Keeping Our Republic, Ashlee A. Paxton-Turner

Faculty Scholarship

No abstract provided.

The Public Meaning Thesis: An Originalist Theory Of Constitutional Meaning, Lawrence B. Solum

Faculty Scholarship

Public Meaning Originalism is the predominant form of constitutional originalism. What makes Public Meaning Originalism distinctive is the Public Meaning Thesis—the claim that the best understanding of constitutional meaning focuses on the meaning communicated by the constitutional text to the public at the time each constitutional provision was framed and ratified. This Article provides a precise formulation of the Public Meaning Thesis, supplies reasons for affirming the thesis, and answers objections. The constitutional record strongly supports the claim that the constitutional text was intended to communicate to the public. The Constitution begins with “We the People” and the ratification process …

Swords Into Plowshares: A Pilgrimage For The Css Alabama, William W. Park

Faculty Scholarship

During the American Civil War, Britain sold ships to the Southern Confederacy in breach of neutrality obligations, triggering a dispute with the United States carrying threats of armed conflict. Some American politicians saw the dispute as an opportunity to annex Canada, then a weak assemblage of British colonies. Ultimately, arbitration in Geneva averted war, opening an era of long Anglo-American cooperation. The historical consequence of this landmark 1872 arbitration remains difficult to overstate. In addition to its diplomatic importance, the case introduced significant procedural precedents for international arbitration, including dissenting options, reasoned awards, party-appointed arbitrators, collegial deliberations, and arbitrators’ declarations …

School Finance Reform And Professor Stephen D. Sugarman’S Lasting Legacy, Rachel F. Moran

Faculty Scholarship

Once, over lunch, I recall a law professor reflecting on scholarly work’s ephemeral nature. Legal academics, he thought, should consider themselves lucky if their articles sparked a discussion that lasted for even a few years. By that standard, Professor Stephen Sugarman’s seminal work on school finance reform, done in collaboration with John Coons and William Clune, must count as a Methuselah of academic concepts. Decades later, this research continues to prompt scholarly debate, legal advocacy, and legislative reform. In this essay, I first describe the origins of the theory of school finance reform. I then turn to the ongoing influence …

Legal Services Needs Assessment For Rio Grande Valley Residents In Texas: A Comprehensive T3 Report, Amber Baylor, Nandita Chaudhuri, Luz E. Herrera, Felipe Hinojosa

Faculty Scholarship

This report presents the findings of a legal needs assessment and oral history project that was simultaneously undertaken from August 2019 to September 2020 in the Rio Grande Valley region of Texas. The purpose of the research is to provide a detailed discussion about access to legal information and to document the pertinent legal needs in the Rio Grande Valley. The project documented respondents’ perceptions of the area’s legal assets and needs.

The report captured information from more than 600 individuals who participated in surveys, focus groups, and interviews to create an overview of the historic legal-resource environment that exists …

Constitutional Structure, Institutional Relationships And Text: Revisiting Charles Black's White Lectures, Richard C. Boldt

Faculty Scholarship

Fundamental questions about constitutional interpretation and meaning invite a close examination of the complicated origins and the subsequent elaboration of the very structure of federalism. The available records of the Proceedings in the Federal Convention make clear that the Framers entertained two approaches to delineating the powers of the central government relative to those retained by the states. The competing approaches, one reliant on a formalist enumeration of permissible powers, the other operating functionally on the basis of a broad dynamic concept of state incompetence and national interest, often are presented as mutually inconsistent narratives. In fact, these two approaches …

The Racial Reckoning Of Public Interest Law, Atinuke O. Adediran, Shaun Ossei-Owusu

Faculty Scholarship

No abstract provided.

Disaggregating Chevron, Lawrence B. Solum

Faculty Scholarship

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. is widely regarded as the most important administrative law decision in the history of the United States. The scholarly literature is vast and defies summary or cataloging. Moreover, Chevron is contested and criticized, defended and derided, lauded and lamented—the source of “angst and rancor” in the words of Professor Kristin E. Hickman and R. David Hahn in their article, Categorizing Chevron. One might think that when it comes to Chevron, there is “no new thing under the sun,” but in fact, Chevron is still full of surprises. When we turn …

Legal Internalism In Modern Histories Of Copyright, Shyamkrishna Balganesh, Taisu Zhang

Faculty Scholarship

Legal internalism refers to the internal point of view that professional participants in a legal practice develop toward it. It represents a behavioral phenomenon wherein such participants treat the domain of law (or a subset of it) as normative, epistemologically self-contained, and logically coherent on its own terms regardless of whether the law actually embodies those characteristics. Thus understood, legal internalism remains an important characteristic of all modern legal systems. In this Review, we examine three recent interdisciplinary histories of copyright law to showcase the working of legal internalism. We argue that while their interdisciplinary emphasis adds to the conversation …

Charles Reich And The Legal History Of Privacy, Sarah Seo

Faculty Scholarship

Historians’ interest in Reich offers a case study of the relationship between historical and legal studies. What can legal scholars learn from historians, and what can historians learn from legal scholarship? This Essay will explore these two questions by focusing on Igo’s The Known Citizen since she encountered Reich not with the dual citizenship of a legal historian but as an intellectual historian. I will first highlight what legal scholars can learn from historians by summarizing the main arguments in The Known Citizen. Then, I will provide an alternative legal account to Igo’s history of privacy, which may clear …

The Untold History Of Women’S Suffrage: Voting Rights Pre-Ratification, Hayley N. Lawrence

Faculty Scholarship

No abstract provided.

The (Joseph) Stories Of Newmyer And Cover: Hero Or Tragedy?, Jed H. Shugerman

Faculty Scholarship

Kent Newmyer’s classics Supreme Court Justice Joseph Story: Statesman of the Old Republic and John Marshall and the Heroic Age of the Supreme Court are important stories about the architects and heroes of the rule of law in America. In Newmyer’s account, Story played a crucial role preserving the republic and building a legal nation out of rival states, and Newmyer’s Story is fundamentally important for students of American history. But in Robert Cover’s account in Justice Accused on northern judges’ deference to slavery, Story is an anti-hero. Sometimes Story stayed silent. In Prigg v. Pennsylvania, Story overvalued formalistic comity. …

Slavery's Constitution: Rethinking The Federal Consensus, Maeve Glass

Faculty Scholarship

For at least half a century, scholars of the early American Constitution have noted the archival prominence of a doctrine known as the “federal consensus.” This doctrine instructed that Congress had no power to interfere with the institution of slavery in the states where it existed. Despite its ubiquity in the records, our understanding of how and why this doctrine emerged is hazy at best. Working from a conceptual map of America’s founding that features thirteen local governments coalescing into two feuding sections of North and South, commentators have tended to explain the federal consensus either as a vestige of …