Legal History Commons^™

Foreword: Theorizing Contemporary Legal Thought, Justin Deystone, Duncan Kennedy

Publications

This is a co-authored foreword to a symposium in Law & Contemporary Problems titled "Theorizing Contemporary Legal Thought." It includes a discussion of the background of the project, a brief summary of the articles included in the issue, and a very short statement from Desautels-Stein and Kennedy on the "loss of faith" indicative of Contemporary Legal Thought.

Did Multicultural America Result From A Mistake? The 1965 Immigration Act And Evidence From Roll Call Votes, Gabriel J. Chin, Douglas M. Spencer

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Between July 1964 and October 1965, Congress enacted the three most important civil rights laws since Reconstruction: The Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Immigration and Nationality Act Amendments of 1965. As we approach the 50th anniversary of these laws, it is clear that all three have fundamentally remade the United States; education, employment, housing, politics, and the population itself have irreversibly changed.

Arguably the least celebrated yet most consequential of these laws was the 1965 Immigration Act, which set the United States on the path to become a "majority minority" nation. In …

The Stereotyped Offender: Domestic Violence And The Failure Of Intervention, Carolyn B. Ramsey

Publications

Scholars and battered women's advocates now recognize that many facets of the legal response to intimate-partner abuse stereotype victims and harm abuse survivors who do not fit commonly accepted paradigms. However, it is less often acknowledged that the feminist analysis of domestic violence also tends to stereotype offenders and that state action, including court-mandated batterer intervention, is premised on these offender stereotypes. The feminist approach can be faulted for minimizing or denying the role of substance abuse, mental illness, childhood trauma, race, culture, and poverty in intimate-partner abuse. Moreover, those arrested for domestic violence crimes now include heterosexual women, lesbians, …

Cherokee Freedmen And The Color Of Belonging, Lolita Buckner Inniss

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This article addresses the Cherokee tribe and their historic conflict with the descendants of their former black slaves, designated Cherokee Freedmen. This article specifically addresses how historic discussions of black, red and white skin colors, designating the African-ancestored, aboriginal (Native American) and European-ancestored people of the United States, have helped to shape the contours of color-based national belonging among the Cherokee. This article also suggests that Homi K. Bhabha’s notion of postcolonial mimicry offers a potent source for analyzing the Cherokee’s historic use of skin color as a marker of Cherokee membership. The Cherokee past practice of black slavery and …

They Had Nothing, Charles Wilkinson

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No abstract provided.

Revoking Rights, Craig J. Konnoth

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In important areas of law, such as the vested rights doctrine, and in several important cases--including those involving the continued validity of same-sex marriages and the Affordable Care Act--courts have scrutinized the revocation of rights once granted more closely than the failure to provide the rights in the first place. This project claims that in so doing, courts seek to preserve important constitutional interests. On the one hand, based on our understanding of rights possession, rights revocation implicates autonomy interests of the rights holder to a greater degree than a failure to afford rights at the outset. On the other …

Structuralist Legal Histories, Justin Deystone

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This is a contribution to a symposium titled "Theorizing Contemporary Legal Thought." The central theme of the piece is the relation between legal structuralism and legal historiography.

My Coworker, My Enemy: Solidarity, Workplace Control, And The Class Politics Of Title Vii, Ahmed A. White

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No abstract provided.

"Greatest Good Of The Greatest Number In The Long Run": Tr, Pinchot, And The Origins Of Sustainability In America, Charles Wilkinson

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No abstract provided.

Cu Law Library Launches New Resource For Historical Colorado Statutory Research, Robert M. Linz

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No abstract provided.

Governing By Guidance: Civil Rights Agencies And The Emergence Of Language Rights, Ming Hsu Chen

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On the fiftieth anniversary of the Civil Rights Act of 1964, this Article asks how federal civil rights laws evolved to incorporate the needs of non-English speakers following landmark immigration reform (the 1965 Hart-Cellar Act) that led to unprecedented migration from Asia and Latin America. Based on a comparative study of the emergence of language rights in schools and workplaces from 1965 to 1980, the Article demonstrates that regulatory agencies used nonbinding guidances to interpret the undefined statutory term "national origin discrimination" during their implementation of the Civil Rights Act of 1964. Their efforts facilitated the creation of language rights, …

Workers Disarmed: The Campaign Against Mass Picketing And The Dilemma Of Liberal Labor Rights, Ahmed A. White

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In the late 1930s and early 1940s, mass picketing, characterized by large numbers of workers congregating in common protest at or near their employers' establishments, emerged as a crucial weapon in a historic campaign by American workers to realize basic labor rights and build an enduring labor movement in the face of strident resistance from a powerful business community. So potent a weapon did mass picketing prove that these business interests, aided by allies at all levels of government, moved quickly to ban the tactic. From the real-world complexities of labor conflict, this coalition forged a simplistic, analytically dubious, but …

Law, Violence, And The Neurotic Structure Of American Indian Law, Sarah Krakoff

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No abstract provided.

Language Rights As A Legacy Of The Civil Rights Act Of 1964, Ming Hsu Chen

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The fiftieth anniversary of the Civil Rights Act of 1964 offers an important opportunity to reflect on an earlier moment when civil rights evolved to accommodate new waves of immigration. This essay seeks to explain how civil rights laws evolved to include rights for immigrants and non-English speakers. More specifically, it seeks to explain how policy entrepreneurs in agencies read an affirmative right to language access.

Grazing In Wilderness Areas, Mark Squillace

Publications

Domestic livestock grazing is naturally in tension with wilderness. Wilderness areas are not truly "untrammeled by man" when they host managed livestock grazing. Yet the compromise that allowed livestock grazing in wilderness areas was surely one of the greatest in the history of the conservation movement. Without it, Congress might never have passed a wilderness bill or designated countless wilderness areas throughout the country. The grazing exception--and the Congressional Grazing Guidelines that afford specific protections for grazers--made it possible to secure bipartisan support for wilderness bills in even the most conservative western states.

Notwithstanding this success, the ecology of some …

The Human Rights Of Indigenous Peoples: United Nations Developments, S. James Anaya

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No abstract provided.

The Exit Myth: Family Law, Gender Roles, And Changing Attitudes Toward Female Victims Of Domestic Violence, Carolyn B. Ramsey

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This Article presents a hypothesis suggesting how and why the criminal justice response to domestic violence changed, over the course of the twentieth century, from sympathy for abused women and a surprising degree of state intervention in intimate relationships to the apathy and discrimination that the battered women' movement exposed. The riddle of declining public sympathy for female victims of intimate-partner violence can only be solved by looking beyond the criminal law to the social and legal changes that created the Exit Myth.

While the situation that gave rise to the battered women's movement in the 1970s is often presumed …

American Gangsters: Rico, Criminal Syndicates, And Conspiracy Law As Market Control, Benjamin Levin

Publications

In an effort to reexamine legal and political decisions about criminalization and the role of the criminal law in shaping American markets and social institutions, this Article explores the ways in which criminal conspiracy laws in the United States have historically been used to subdue nonstate actors and informal markets that threatened the hegemony of the state and formal market. To this end, the Article focuses primarily on the Racketeer Influenced and Corrupt Organizations Act (RICO) as illustrative of broader trends in twentieth-century criminal policy. Enacted in 1970, RICO provides criminal sanctions for individuals engaged in unacceptable organized activities and …

The Tragic Story Of The Federal Coal Leasing Program, Mark Squillace

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No abstract provided.

Never Construed To Their Prejudice: In Honor Of David Getches, Richard B. Collins

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This article reviews and analyzes the judicial canons of construction for Native American treaties and statutes. It discusses their theoretical justifications and practical applications. It concludes that the treaty canon has ready support in contract law and the law of treaty interpretation. Justification of the statutory canon is more challenging and could be strengthened by attention to the democratic deficit when Congress imposes laws on Indian country. Applications of the canons have mattered in disputes between Indian nations and private or state interests. They have made much less difference, and have suffered major failings, in disputes with the federal government. …

Duncan Kennedy's Third Globalization, Criminal Law, And The Spectacle, Aya Gruber

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No abstract provided.

Mrs. Dred Scott: A Genre Bender?, Lolita Buckner Inniss

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No abstract provided.

Experimental Pragmatism In The Third Globalization, Justin Deystone

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Pragmatism dominates contemporary legal thought, but knowing this isn’t knowing so much. Legal pragmatism means different things to different people, and as this essay argues, minimalist and experimentalist forms of regulation both share a broadly pragmatic sensibility about law and democracy. As a consequence, we need to tease out the various threads of legal pragmatism in the hope of distinguishing the pragmatisms that work from the ones that don’t, or less pragmatically, the ones that are just from the ones that are not. This knowledge will come from an ongoing assessment of the political stakes immanent in the pragmatisms, and …

Blue-Collar Crime: Conspiracy, Organized Labor, And The Anti-Union Civil Rico Claim, Benjamin Levin

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This Article provides an historically-rooted analysis of a recent spate of civil RICO complaints arising from labor union organizing campaigns. The Article historicizes contemporary civil RICO suits against labor unions by analogizing to nineteenth century conspiracy prosecutions of unions. In tracing this history of organized labor’s social standing, the Article addresses the cultural framing of the union and its place in political and cultural discourse over the past century. The civil RICO complaints have received limited scholarly attention mainly focusing on issues of federal preemption; this Article argues for a broad reading of the cases as a way to understand …

Race As A Legal Concept, Justin Deystone

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Race is a legal concept, and like all legal concepts, it is a matrix of rules. Although the legal conception of race has shifted over time, up from slavery and to the present, one element in the matrix has remained the same: the background rules of race have always taken a view of racial identity as a natural aspect of human biology. To be sure, characterizations of the rule have oftentimes kept pace with developments in race science, and the original invention of race as a rationale for the subordination of certain human populations is now a rationale with little …

Heeding The Clarion Call For Sustainable, Spiritual Western Landscapes: Will The People Be Granted A New Forest Service?, Charles Wilkinson, Daniel Cordalis

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No abstract provided.

Wilkes V. Springside Nursing Home, Inc.: A Historical Perspective, Mark J. Loewenstein

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No abstract provided.

Domestic Violence And State Intervention In The American West And Australia, 1860-1930, Carolyn B. Ramsey

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This Article calls into question stereotypical assumptions about the presumed lack of state intervention in the family and the patriarchal violence of Anglo-American frontier societies in the late nineteenth and early twentieth centuries. By analyzing previously unexamined cases of domestic assault and homicide in the American West and Australia, Professor Ramsey reveals a sustained (but largely ineffectual) effort to civilize men by punishing violence against women. Husbands in both the American West and Australia were routinely arrested or summoned to court for beating their wives in the late 1800s and early 1900s. Judges, police officers, journalists, and others expressed dismay …

A Diva Defends Herself: Gender And Domestic Violence In An Early Twentieth-Century Headline Trial, Carolyn B. Ramsey

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This short article was presented as part of a symposium on headline criminal trials, organized by St. Louis University School of Law in honor of Lawrence Friedman. It describes and analyzes the self-defense acquittal of opera singer Mae Talbot in Nevada in 1910 on charges of murdering her abusive husband. Based on extensive research into archival trial records and newspaper reports, the article discusses how the press, the court, and trial lawyers on both sides depicted the killing and Mae’s possible defenses. Without discounting the sensationalism and entertainment value, to a scandal-hungry public, of stories about violent marriages, I contend …

Industrial Terrorism And The Unmaking Of New Deal Labor Law, Ahmed A. White

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The passage of the Wagner (National Labor Relations) Act of 1935 represented an unprecedented effort to guarantee American workers basic labor rights--the rights to organize unions, to provoke meaningful collective bargaining, and to strike. Previous attempts by workers and government administrators to realize these rights in the workplace met with extraordinary, often violent, resistance from powerful industrial employers, whose repressive measures were described by government officials as a system of "industrial terrorism." Although labor scholars have acknowledged these practices and paid some attention to the way they initially frustrated labor rights and influenced the jurisprudence and politics of labor relations …