Legal History Commons^™

Bork Was The Beginning: Constitutional Moralism And The Politics Of Judicial Selection, Gary L. Mcdowell

Law Faculty Publications

On October 23, 1987, the United States Senate committed what many considered then-and what many still consider today-to be an unforgivable political and constitutional sin. Wielding its power to advise and consent on nominations to the Supreme Court of the United States, the upper house voted 58-42 not to confirm Judge Robert H. Bork. The vote, which was the largest margin of defeat in history for a nominee to the Supreme Court, concluded one of the most tumultuous political battles in the history of the republic, a battle that would transform the process of judicial selection for years to come.

Content And Context: The Contributions Of William Van Alstyne To First Amendment Interpretation, Rodney A. Smolla

Law Faculty Publications

William Van Alstyne’s contributions to First Amendment interpretation, like his contributions to all of American constitutional law, are characterized by a piercing intellectual honesty and an impish play of intelligence. One feels relentlessly pulled by the elegant currents of Professor Van Alsytne’s arguments, yet, at the same time, restlessly resistant, a resistance borne of the vague but certain wariness that one is but an apprentice forever consigned to a level of awareness several moves behind the master, who almost certainly will produce surprises at the end. ...

Self-Organizing Legal Systems: Precedent And Variation In Bankruptcy, Bernard Trujillo

Law Faculty Publications

Models of legal ordering are frequently hierarchical. These models do not explain two prominent realities: (1) variation in the content of a legal system, and (2) patterns of non-hierarchical ordering that we observe. As a supplement to hierarchical explanations of legal order, this Article, drawing from physical and social science research on complex systems, offers a self-organizing model. The self-organizing model focuses on variation in the content of legal systems and attempts to explain the relationship between that variation and patterns of ordering. The self-organizing model demonstrates that variation and ordering are not opposite categories, but rather constitute one continuous …

Advocacy As History? That Takes The Prize! Gulag: A History [Book Review], Dana Neacsu

Law Faculty Publications

Gulag: A History, the recipient of the 2004 Pulitzer Prize for general non-fiction, may be particularly well received by lawyers and law students because they can appreciate author Anne Applebaum's writing skills. Gulag reads like a lawyer's product: a conclusion replete with facts and arguments. Those who enjoy perfecting their legal skills while reading for pleasure should read this review. Gulag is, in essence, a successful legal brief.

Some Old Problems In England And Some New Solutions From Virginia, William Hamilton Bryson

Law Faculty Publications

The fundamental ideal to which we aspire in the field of civil procedure is the perfect balance between expeditious results and correct results in the administration of justice. Two famous quotations from two famous English Equity judges come to mind. John Scott, Lord Eldon, the Lord Chancellor of Great Britain from 1801 to 1827 who was often criticized for being excessively dilatory, said, 'sat cito si sat bene'. Sir George Jessel, Master of the Rolls from 1873 to 1883, once said, 'I may be wrong and sometimes am, but I never have any doubts'. Jessel had his docket under firm …

Judicial Independence In Virginia Dedicated To Chief Justice Harry L. Carrico, William Hamilton Bryson

Law Faculty Publications

The political will of the people of the Commonwealth of Virginia is expressed in the Constitution of Virginia, which created the government of Virginia. Every Constitution of Virginia from 1776 to the present has divided the government among the General Assembly of Virginia, the legislature; the governor, who is the chief executive officer; and the judiciary, a system of courts. Each of these three branches of the government was created as a separate, independent branch of the government. However, they are not totally independent; they must of necessity interact. Furthermore, each Constitution of Virginia has put into place various checks …

In Search Of Themis: Toward The Meaning Of The Ideal Legislator--Senator Edmund S. Muskie And The Early Development Of Modern American Environmental Law, 1965-1968, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

The Presidential Oath, The American National Interest And A Call For Presiprudence, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

The Lost Original Meaning Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

This article presents previously unrecognized evidence regarding the original meaning of the Ninth Amendment. Obscured by the contemporary assumption that the Ninth Amendment is about rights while the Tenth Amendment is about powers, the historical roots of the Ninth Amendment can be found in the state ratification convention demands for a constitutional amendment prohibiting the constructive enlargement of federal power. James Madison's initial draft of the Ninth Amendment expressly adopted the language suggested by the state conventions and he insisted the final draft expressed the same rule of construction desired by the states. In an episode previously unnoticed by scholars, …

The Winchester Law School, 1824-1831, William Hamilton Bryson

Law Faculty Publications

On March 5, 1824, Henry St. George Tucker was elected by the General Assembly of Virginia to be the judge of the circuit superior court of chancery to sit in Winchester and Clarksburg. Tucker had built up a very successful law practice in Winchester, where he had settled in 1802 upon his admission to the bar. He had also built up a large family; he had six sons and two daughters as well as three children who died young. The elevation to the bench resulted in an increase in professional status, but it also resulted in a substantial decrease in …

Foreword, Azizah Y. Al-Hibri

Law Faculty Publications

Recent world events have also underlined the fact that the shrinking global village is not moving automatically towards increased democracy, peace and cooperation. The use of force continues to be the preferred tool for conflict resolution, despite all claims to the contrary. To complicate matters, the new technological innovations are bringing violence instantaneously to our doorstep. Conflicts in far away regions of the world can no longer be ignored. They have cast their shadow over our cities. The dream of the global village has become a nightmare, with no apparent exit. What can we do about it?

Terrorism And The Bill Of Rights, Rodney A. Smolla

Law Faculty Publications

This year is the Tenth Anniversary of the William & Mary Bill of Rights Journal, and the Journal is very fortunate and honored to have Professor Rodney Smolla publish an article in this year's volume. Professor Smolla played an integral role in the founding and organizing of not only the Journal, but also the Institute of Bill of Rights Law at William & Mary Law School. The J oumal extends its most appreciative thanks to Professor Smolla for all his help.

In this Article, Professor Smolla examines the right to free speech in the context of Black v. …

The Constitutional Convention Of 1937: The Original Meaning Of The New Jurisprudential Deal, Kurt T. Lash

Law Faculty Publications

The paper traces the dramatic jurisprudential innovations of the New Deal Revolution, including the articulation of incorporation theory, the abandonment of judicial construction of state common law, and the ascension of textual originalism as the Court's method of constitutional interpretation. I argue that the New Deal Court transcended the political goals of the Roosevelt administration and attempted to restructure the nature of legitimate judicial review in a post-Lochner world. Acting, in effect, as a constitutional convention, the Court not only changed the nature of judicial review, it altered the shape of the Constitution in ways that cut across modern political …

The Politics Of Meaning: Law Dictionaries And The Liberal Tradition Of Interpretation, Gary L. Mcdowell

Law Faculty Publications

At least since John Cowell's Interpreter was adjudged by the Committee on Grievances of the House of Commons in 1610 to be "very unadvised, and undiscreet, tending to the disreputation of the honour and power of the common laws" have law dictionaries been objects of occasional controversy. Yet legal dictionaries, as well as dictionaries more generally, have remained a constant resource in American law for those seeking to give meaning to the words of both statutes and constitutional provisions. They have appeared in the pages of the reports since the beginning of the republic; a majority of the justices of …

What Is Past Is Prologue: Senator Edmund S. Muskie's Environmental Policymaking Roots As Governor Of Maine, 1955-58, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

"High Crimes And Misdemeanors": Recovering The Intentions Of The Founders, Gary L. Mcdowell

Law Faculty Publications

Such serious charges by so many distinguished historians demand a careful consideration of what the Founders meant by "high Crimes and Misdemeanors": Were they only indictable crimes or did they include what one of the Framers called "political crimes and misdemeanors?" Were they offenses that a President would commit only in "the exercise of executive power" or did they also include a President's malfeasance committed in his private capacity? Were they subject to a reasonably fixed meaning or were they to be determined simply by the exercise of the "awful discretion" of those in Congress called upon to impeach and …

History Of The Court Reporter In The Appellate Courts Of Pennsylvania, Joel Fishman

Law Faculty Publications

States have traditionally published the decisions of their intermediate and highest courts.¹ Legal historians, in recent years, have written extensively on the history of court reporting and court reports.² These historical accounts have revealed that many famous judges and lawyers throughout the country gained prominent reputations stemming from the publishing of their decisions.³ In the "nineteenth century, the development of court reports received attention from the legal community through reviews in many of the leading periodicals of the day."⁴ By 1900, however, the periodical literature contained only a small number of reviews of individual state reports. …

Virginia Law Reports And Records, 1776-1800, William Hamilton Bryson

Law Faculty Publications

In 1607 Virginia was settled by a London-based corporation, and the English settlers brought with them the municipal law and legal institutions of England. It was specifically required by the instructions to the Virginia Company that litigation was to be settled "as near to the common laws of England and the equity thereof as may be". In 1632 when commissioners were appointed to hold the monthly courts (later renamed the county courts), their commissions required them to execute the office of justice of the peace and to act "as near as may be after the laws of the realm of …

"Compelled By Conscientious Duty": Village Of Euclid V. Ambler Realty Co. As Romance, Michael Allan Wolf

Law Faculty Publications

In early 1851, Nathaniel Hawthorne penned an intriguing preface to his latest work--The House of the Seven Gables. Hawthorne drew a meaningful (if rarely appreciated) distinction:

When a writer calls his work a Romance, it need hardly be observed that he wishes to claim a certain latitude, both as to its fashion and material, which he would not have felt himself entitled to assume, had he professed to be writing a Novel. The latter form of composition is presumed to aim at a very minute fidelity, not merely to the possible, but to the probable and ordinary course of man's …

The Federalism Pendulum, Ronald J. Bacigal

Law Faculty Publications

Following Franklin's example, this essay takes a protracted view of the federalization of criminal procedure. It is important to review how the federalism pendulum has swung over the years to reflect concepts of what the Constitution was meant to mean, what it has come to mean, and what it ought to mean.

The Aall And Its Government Relations Program: Part I And Ii, Timothy L. Coggins

Law Faculty Publications

The Government Relations Policy [hereinafter Policy] of the AALL outlines the objectives of its government relations program. The Policy emphasizes that a primary goal of this Association's program is to ensure timely and equitable access to government and legal information. This Policy represents the views of an association with more than 5,000 members who provide law library services to government officials, the bench, the bar, legal scholars and the public in nearly 1,900 libraries. AALL, its members and its users are affected by a broad span of public policy concerns "ranging from the development of the National Information Infrastructure and …

The Supreme Court In United States History: A New Appreciation, Michael Allan Wolf

Law Faculty Publications

From a perspective long removed in terms of time and experience, I can still recall my first encounter with Charles Warren's Pulitzer Prize winner that still serves as the standard institutional history of the Court. My undergraduate constitutional history professor and I were engaged in a lively discussion concerning the nature of sovereignty and states' rights in the wake of the Union victory in the Civil War.He pulled from an office shelf a well-worn volume from his set of Warren's time-honored narrative. ...

The Business Of The Supreme Court Revisited, John Paul Jones

Law Faculty Publications

Nearly seventy years after its publication, Prof. Jones revisits Felix Frankfurter and James McCauley Landis' seminal 1928 book.

Review Of Notaries Public In England Since The Reformation, William Hamilton Bryson

Law Faculty Publications

A book review on Notaries Public in England Since the Reformation by Christopher W. Brooks, Richard H. Helmholz, and Peter G. Stein.

Persuading Thy Neighbor To Be As Thyself: Constitutional Limits On Evangelism In The United States And India, Jonathan K. Stubbs

Law Faculty Publications

Religious belief is frequently a very personal concern. Accordingly, situations in which individuals discuss beliefs with one another can result in a wide range of consequences. Such consequences may include mutual gratitude and growth as well as mutual distrust and destruction. ...

Sin, Scandal, And Substantive Due Process, Wendy Collins Perdue

Law Faculty Publications

For students of civil procedure, the names Pennoyer and Neff evoke these dry facts: In an initial suit, one J.H. Mitchell sued Neff in Oregon state court. Because Neff could not be found within Oregon, he was served by publication. Neff never appeared, and a default judgment was entered against him. To satisfy the judgment, Mitchell attached Neff's Oregon real estate. The property was sold at auction, and Pennoyer later acquired it. Nearly a decade later, Neff returned to Oregon and brought suit in federal court to evict Pennoyer from the land, claiming that the original judgment was invalid. The …

Virginia Manuscript Law Reports, William Hamilton Bryson

Law Faculty Publications

Case law, including published cases and cases that have never been published, is the basis of the common law. Professor Bryson discusses the use of manuscript law reports in Virginia during the eighteenth and nineteenth centuries.

The Roman Law Of Trusts, William Hamilton Bryson

Law Faculty Publications

A book review on The Roman Law of Trusts by David Johnston.

Review Of Bench And Bureaucracy: The Public Career Of Sir Julius Caesar, William Hamilton Bryson

Law Faculty Publications

A book review of Bench and Bureaucracy: The Public Career of Sir Julius Caesar by Lamar M. Hill.

Equity And Equitable Remedies, William Hamilton Bryson

Law Faculty Publications

Encyclopedia entry on Equity and Equitable Remedies in the Encyclopedia of the American judicial system : studies of the principal institutions and process of law.