Legal History Commons^™

It's The Hard Luck Life: Women's Moral Luck And Eucatastrophe In Child Custody Allocation, Lolita Buckner Inniss

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No abstract provided.

Placing Your Faith In The Constitution, Harold H. Bruff

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No abstract provided.

Propaganda For War And Transparency, Richard B. Collins

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No abstract provided.

The Last Indian Raid In Kansas: Context, Colonialism, And Philip P. Frickey's Contributions To American Indian Law, Sarah Krakoff

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To many, American Indian law is a remote and anomalous area of the law. To others, including Professor Phil Frickey, themes in American Indian law are central to our identity as a nation, and lessons from the field inform broader understandings of the competencies and limitations of the federal judiciary. One of Professor Frickey’s recurring scholarly arguments is that the federal courts are most within their areas of institutional competence when they approach contemporary Indian law questions as structural disputes between sovereigns, rather than as individual conflicts amenable to the application of mainstream public law values. An event described as …

A Critical Legal Rhetoric Approach To In Re African-American Slave Descendants Litigation, Lolita Buckner Inniss

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In this paper I apply critical legal rhetoric to the judicial opinion rendered in response to the Defendants' Motion to Dismiss Plaintiffs' Second Amended and Consolidated Complaint in 'In Re African American Slave Descendants', a case concerning the efforts of a group of modern-day descendants of enslaved African-Americans to obtain redress for the harms of slavery. The chief methodological framework for performing critical legal rhetorical analysis comes from the work of Marouf Hasian, Jr. particularly his schema for analysis which he calls substantive units in critical legal rhetoric. Critical legal rhetoric is a potent tool for exposing the …

The Depression Era Sit-Down Strikes And The Limits Of Liberal Labor Law, Ahmed A. White

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This paper explores the history of sit-down strikes from the New Deal Era and beyond and traces their influence on the substance of modern labor law. It argues that, even as the sit-down strikes proved essential to the development of a meaningful system of labor rights, the strikes also had a very different effect. As this paper undertakes to demonstrate, legal and political attacks on labor rights that were originally aimed at the sit-down strikes metastasized into a more general campaign to prohibit a range of militant strike practices, even those bearing little outward resemblance to the original sit-down strikes. …

Provoking Change: Comparative Insights On Feminist Homicide Law Reform, Carolyn B. Ramsey

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The provocation defense, which mitigates murder to manslaughter for killings perpetrated in the heat of passion, is one of the most controversial doctrines in the criminal law because of its perceived gender bias; yet most American scholars and lawmakers have not recommended that it be abolished. This Article analyzes trendsetting feminist homicide law reforms, including the abolition of the provocation defense in three Australian jurisdictions, places these reforms in historical context, and assesses their applicability to the United States. It ultimately advocates reintroducing the concept of justified emotion, grounded in modern equality principles and social values, as a requirement for …

A Defensible Defense?: Reexamining Castle Doctrine Statutes, Benjamin Levin

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Recent years have seen a proliferation of so-called “castle doctrine” statutes – laws that provide home dwellers with more expansive self-defense protections if they resort to lethal force in confrontations with intruders. The passage of such laws and subsequent uses of the defense have captured the public imagination, prompting significant media attention, as well as skeptical and critical scholarship from the legal academic community.

Considering the current prevalence of castle laws and the often polarized nature of the debate concerning their application, this Article argues that it is important to excavate the doctrine from the culture wars rhetoric in which …

Crises, Congress, And Cognitive Biases: A Critical Examination Of Food And Drug Legislation In The United States, Sharon B. Jacobs

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No abstract provided.

The Expanding Use Of The Res Gestae Doctrine, H. Patrick Furman, Ann England

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This article provides a brief history of the doctrine of res gestae and an analysis of its current usage in both Colorado state and federal courts.

Commentary: Was The Bill Of Rights Irrelevant To Nineteenth-Century State Criminal Procedure?, Carolyn B. Ramsey

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No abstract provided.

In The Sweat Box: A Historical Perspective On The Detention Of Material Witnesses, Carolyn B. Ramsey

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After the September 11 terrorist attacks, the Justice Department detained scores of allegedly suspicious persons under a federal material witness statute--a tactic that provoked a great deal of controversy. Most critics assume that the abuse of material witness laws is a new development. Yet, rather than being transformed by the War on Terror, the detention of material witnesses is a coercive strategy that police officers across the nation have used since the nineteenth century to build cases against suspects. Fears of extraordinary violence or social breakdown played at most an indirect role in its advent and growth. Rather, it has …

Colorado V. Connelly: What Really Happened, William T. Pizzi

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In 1986, the Supreme Court decided Colorado v. Connelly, a landmark case in due process and fifth amendment law. The case began when Francis Barry Connelly approached a police officer on the street in downtown Denver to confess to having killed a young woman several months earlier in southwest Denver. Because Connelly was suffering from acute schizophrenia and was hearing auditory hallucinations commanding him to confess, state courts suppressed his statements to the police on the grounds (1) that his statements before arrest were involuntary and inadmissible under the due process clause and (2) those statements post-arrest could not …

Created In Its Image: The Race Analogy, Gay Identity, And Gay Litigation In The 1950s-1970s, Craig J. Konnoth

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Existing accounts of early gay rights litigation largely focus on how the suppression and liberation of gay identity affected early activism. This Note helps complicate these dynamics, arguing that gay identity was not just suppressed and then liberated, but substantially transformed by activist efforts during this period, and that this transformation fundamentally affected the nature of gay activism. Gay organizers in the 1950s and 1960s moved from avoiding identity-based claims to analogizing gays to African-Americans. By transforming themselves in the image of a successful black civil rights minority, activists attempted to win over skeptical courts in a period when equal …

Interpretive Sovereignty: A Research Agenda, Kristen A. Carpenter

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In federal Indian law, the treaty operates as our foundational legal text. Reflecting centuries-old historical political arrangements between Indian nations and the United States, treaties remain vital legal instruments that decide dozens of legal cases each year. Yet, these treaties--originally drafted in English by the federal government, following negotiations with tribal representatives who usually spoke their own languages--present a number of ambiguities for contemporary courts. The dominant model of treaty interpretation is one in which judges interpret treaties in a manner they they believe to reflect Indians' understanding of treaty terms and, more generally, to promote the interests of Indian …

Indian Nations And The Federal Government: What Will Justice Require In The Future? Claims Against The Sovereign 20th Jusicial Conference Of The United States Court Of Federal Claims, Charles Wilkinson

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No abstract provided.

The Public Lands And The National Heritage, Charles F. Wilkinson

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The Early History Of The Colorado Court Of Appeals, Robert M. Linz, Claire E. Munger

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Back To The Future: Is Form-Based Code An Efficacious Tool For Shaping Modern Civic Life?, Lolita Buckner Inniss

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This Essay serves as a critique of the New Urbanism in general and of form-based code in particular as a tool of the New Urbanism. It may be true that form-based code offers more flexibility than traditional zoning schemes and thus may offer some respite from acknowledged ills such as social and racial divisions created by exclusionary zoning and other tools, and from the relative inutility of single or limited use districts. However, I will argue that these benefits are eclipsed by some of the problems of form-based code. Form-based code is frequently hailed as a back to the future …

The Incompatibility Principle, Harold H. Bruff

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No abstract provided.

Patents On Legal Methods? No Way!, Andrew A. Schwartz

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An “invention,” as used in the United States patent laws, refers to anything made by man that employs or harnesses a law of nature or a naturally occurring substance for human benefit. A watermill, for instance, harnesses the power of gravity to run machinery. But legal methods, such as tax strategies, are not inventions in this sense, because they employ “laws of man” — not laws of nature to produce a useful result.

The Judicial Treatment Of Noneconomic Compensatory Damages In The 19th Century, Ronald J. Allen, Alexia Brunet

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Do high verdicts for tort cases containing noneconomic damages have historical precedent? We present the results of our empirical inquiry into the treatment of noneconomic compensatory damages by the courts from 1800-1900. Using 1,175 tort cases from this era, we show that, notwithstanding constant reiteration of jury discretion over damages, courts tightly controlled awards. In fact, no case prior to 1900 permitted a noneconomic compensatory damages award exceeding $450,000 in current dollars. Logistic regression results reveal that an increase in total monetary damages is positively and significantly related to the probability of reversal when noneconomic damages were claimed, and that …

Arbitration Of International Oil, Gas, And Energy Disputes In Latin America, Alexia Brunet, Juan Agustin Lentini

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No abstract provided.

The Feminist War On Crime, Aya Gruber

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One of the most celebrated successes of the feminist movement is its lasting impact on domestic violence criminal laws. Today, society has moved from discourse characterizing domestic abuse as legitimate or merely a private problem to a belief that battering is a heinous crime, more egregious than garden-variety assault. I know all too well how far the pendulum has swung, having practiced as a public defender in the District of Columbia domestic violence system. Day after day, prosecutors proceeded with cases against the wishes of victims, resulting in the mass incarceration of young black men. Could this have been the …

A Perspective On Federal Corporation Law, Mark J. Loewenstein

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No abstract provided.

An External Perspective On The Nature Of Noneconomic Compensatory Damages And Their Regulation, Ronald J. Allen, Alexia Brunet, Susan Spies Roth

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No abstract provided.

From "Navigable Waters" To "Constitutional Waters": The Future Of Federal Wetlands Regulation, Mark Squillace

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Wetlands regulation in the United States has a tumultuous history. The early European settlers viewed wetlands as obstacles to development, and they drained and filled wetlands and swamps at an astounding rate, often with government support, straight through the middle of the twentieth century. As evidence of the ecological significance of wetlands emerged over the last several decades, programs to protect and restore wetlands became prominent. Most notable among these is the permitting program under § 404 of the Clean Water Act. That provision prohibits dredging or filling of "navigable waters," defined by law to mean "waters of the United …

"Remarkable Stratagems And Conspiracies": How Unscrupulous Lawyers And Credulous Judges Created An Exception To The Hearsay Rule, Marianne Wesson

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This paper, a companion piece to the author's earlier exploration of the case of Mutual Life Insurance Company v. Hillmon, describes the remarkable record of unethical conduct compiled by the eminent and respectable attorneys for the insurance companies in the course of that litigation. When married with the Supreme Court Justices' uncritical willingness to accept the false narrative thus contrived, these attorneys' misconduct led to the creation of an important rule of evidence - a rule of questionable merit. This article aims to remind us that lawyers who are willing to distort the process of litigation have the power …

The Patent Office Meets The Poison Pill: Why Legal Methods Cannot Be Patented, Andrew A. Schwartz

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In 2003, for the first time in its 170-year history, the United States Patent Office began awarding patents for novel legal innovations, in addition to traditional inventions such as the telephone or airplane. Commentators have accepted the Patent Office's power to grant legal method patents, but at the same time have criticized this new type of patent on policy grounds. But no one has suggested that the Patent Office exceeded its authority by awarding patents for legal methods, until now.

In the Patent Act of 1952, which is still in effect today, Congress established certain requirements for patentability, including a …

Listening To All The Voices, Old And New: The Evolution Of Land Ownership In The Modern West, Charles Wilkinson

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No abstract provided.