Legal History Commons^™

Principle And Politics In The New History Of Originalism, Logan E. Sawyer Iii

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The emergence of a new form of originalism has sparked an interest in the theory’s past that is particularly welcome as developments on the Supreme Court and in the Republican Party unsettle the theory’s place in American law and politics. Our understanding of the theory’s development, however, has been limited by an unfortunate and unnecessary division between what are now two separate histories of originalism. One history examines the theory’s development in academia and emphasizes the influence of principled argument. A second investigates its role in politics and highlights the role of conservative interests. This review essay identifies this division …

California Fair Trade: Antitrust And The Politics Of “Fairness” In U.S. Competition Policy, Laura Phillips Sawyer

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In the decades before World War II, U.S. antitrust law was anything but settled. Considerable pressure for antitrust revision came from the states. A perhaps unlikely leader, Edna Gleason, organized California’s retail pharmacists and coordinated trade networks to monitor and enforce Resale Price Maintenance (RPM) contracts, a system of price-fixing, then known as “fair trade.” Progressive jurists, including Louis Brandeis and institutional economist E. R. A. Seligman, supported RPM as a protection to independent proprietors. The breakdown of legal and economic consensus regarding what constituted “unfair competition” allowed businesspeople to act as intermediaries between heterodox economic thought and contested antitrust …

Juvenile Justice In Global Perspective: From Chicago To Shanghai And Back To First Principles, David S. Tanenhaus

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No abstract provided.

‘Let’S Change The Law’: Arkansas And The Puzzle Of Juvenile Justice Reform In The 1990s, David S. Tanenhaus, Eric C. Nystrom

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No abstract provided.

Political Dysfunction And The Election Of Donald Trump: Problems Of The U.S. Constitution's Presidency, David Orentlicher

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In this article, Professor Orentlicher examines the Constitution's design for the executive branch. He argues that by opting for a single executive rather than a multi-person executive, the Constitution causes two serious problems-it fuels the high levels of partisan polarization that we see today, and it increases the likelihood of misguided presidential decision making. Drawing on the experience in other countries with executive power shared by multiple officials, he proposes a bipartisan executive.

Why The Right Embraced Rights, Logan E. Sawyer Iii

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Book review of he Other Rights Revolution: Conservative Lawyers and the Remaking of American Government by Jefferson Decker (Oxford U. Press 2016).

One Of The Perfect People, Ann Puckett

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This Article eulogizes Nancy P. Johnson.

Andrew B. Arnold's Fueling The Gilded Age: Railroads, Miners, And Disorder In Pennsylvania Coal Country, Laura Phillips Sawyer

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Andrew Arnold’s Fueling the Gilded Age explores the struggles for managerial control and economic power that erupted among coal miners, coal operators, and railroad executives in central Pennsylvania between 1872 and 1902. Rather than presenting an unassailable triumph of the railroads’ interests over labor, Arnold argues that the “coal industry defied order” (p. 3) and laborers exhibited “unexpected agency ” (p. 4, emphasis in original) by thwarting the plans of railroad executives to impose managerial capitalism from the top down. Instead, wage earners “refused to accept their designated fate as commodities” (p. 222) and thereby exerted influence on the institutional …

Hearing Voices: Non-Party Stories In Abortion And Gay Rights Advocacy, Linda H. Edwards

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During the twelve years after Roe v. Wade, the Supreme Court considered a number of abortion issues, but Thornburgh v. American College of Obstetricians & Gynecologists was the first case to raise a direct call for Roe’s demise. The issues galvanized interests on all sides. Among the welter of amicus briefs was a remarkable brief destined to create a new, controversial, and potentially powerful form of appellate advocacy. Primarily authored by Lynn M. Paltrow, the brief was submitted on behalf of the National Abortion Rights Action League (NARAL). Like a Brandeis Brief, the NARAL brief relies on sources outside …

The Keyes To Reclaiming The Racial History Of The Roberts Court, Tom I. Romero Ii

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This Article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today.

The racial history of the Roberts Court is centrally informed by the context and …

Habeas Corpus Proceedings In The High Court Of Parliament In The Reign Of James I, 1603-1625, Donald E. Wilkes Jr.

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English parliamentary habeas corpus proceedings have been neglected by scholars. This Article ends that neglect. This Article focuses on the parliamentary habeas corpus proceedings that occurred in the reign of King James. The Article corrects several misunderstandings relating to the history of the writ of habeas corpus in England and to the history of the English Parliament (which in the seventeenth century commonly was referred to as the High Court of Parliament).

Part I of the Article provides answers to questions concerning the historical background and context of the parliamentary habeas corpus proceedings in the High Court of Parliament during …

The Trouble With Categories: What Theory Can Teach Us About The Doctrine-Skills Divide, Linda H. Edwards

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We might not need another article decrying the doctrine/skills dichotomy. That conversation seems increasingly old and tired. But like it or not, in conversations about the urgent need to reform legal education, the dichotomy’s entailments confront us at every turn. Is there something more to be said? Perhaps surprisingly, yes. We teach our students to examine language carefully, to question received categories, and to understand legal questions in light of their history and theory. Yet when we talk about the doctrine/skills divide, we seem to forget our own instruction.

This article does not exactly take sides in the typical skills …

Paul D. Moreno's The American State From The Civil War To The New Deal: The Twilight Of Constitutionalism And The Triumph Of Progressivism, Laura Phillips Sawyer

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Paul Moreno, the Grewcock Chair in Constitutional History at Hillsdale College, sets out to explain how the natural rights constitutionalism of the Founders was replaced by an ‘entitlement-based welfare state of modern liberalism’ by the late 1930s. The book is an ‘analytic narrative’, drawing on both constitutional theory and current ‘public choice’ law and economics, and contributes to recent scholarship by libertarian-minded legal scholars, such as David Bernstein and David Mayer, among others.

The Great Writ In The Peach State: Georgia Habeas Corpus, 1865-1965, Donald E. Wilkes Jr.

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There is a plenitude of scholarly writing on the Great Writ of Habeas Corpus, which is universally recognized as "one of the decisively differentiating factors between our democracy and totalitarian governments."' The overwhelming majority of these scholarly publications are concerned with the writ of habeas corpus as administered in the federal court system. There are far fewer scholarly publications on the writ of habeas corpus as administered in the courts of the State of Georgia, and most of these works are concerned with Georgia habeas corpus as a state postconviction remedy, past and present. Only one scholarly piece, a law …

Foreword: Conference On Religious Legal Theory: Rlt Iv: Expanding The Conversation, Samuel J. Levine

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In this article, the author introduces the articles published in the Symposium Issue of the Touro Law Review, which is a compilation of selected excerpts from the fourth annual Conference on Religious Legal Theory (“RLT”) held April 10-12, 2013. By introducing each article, the author shows a sampling of the variety of topics and disciplines explored and the range of perspectives represented at the Conference, which revolved around the theme RLT IV: Expanding the Conversation. The author provides the background of the panelists to give context to each article, and then briefly discusses the relevance and main ideas.

¿Con La Misma Vara? Los Altibajos De La Igual Protección De Las Leyes En Las Opiniones Del Juez Federico Hernández Denton, Jorge R. Roig

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La carrera del juez presidente Federico Hernández Denton como juez del Tribunal Supremo de Puerto Rico abarca cuatro distintas décadas durante las cuales la sociedad puertorriqueña ha experimentado dramáticos cambios. Desde los intentos por eliminar el hostigamiento sexual y la violencia doméstica hasta el desarrollo de los derechos civiles de los individuos y las parejas homosexuales; desde el cierre de las urbanizaciones adineradas y el enclaustre de la clase media hasta los despidos masivos en el gobierno y la constitucionalización de las escoltas de los ex gobernadores; los cambios experimentados por los puertorriqueños no nos han tocado a todos por …

The First Thing We Do, Jorge R. Roig

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There is currently a concerted effort to dumb down America. In the midst of this, the American Bar Association’s Council of the Section on Legal Education and Admissions to the Bar recently agreed to propose that tenure for law professors be eliminated as a requirement for accreditation of law schools. This article analyzes the arguments for and against tenure in legal academia, and concludes that the main proposed justifications for eliminating tenure are highly questionable, at best. A lawyer is more than a legal technocrat. Lawyers are policy makers and public defenders. They are prosecutors and activists. And the development …

Reclaiming The Equitable Heritage Of Habeas, Erica J. Hashimoto

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Equity runs through the law of habeas corpus. Throughout the seventeenth and eighteenth centuries, prisoners in England sought the Great Writ primarily from a common law court — the Court of King’s Bench — but that court’s exercise of power to issue the writ was built around equitable principles. Against this backdrop, it is hardly surprising that modern-day habeas law draws deeply on traditional equitable considerations. Criticism of current habeas doctrine centers on the risk that its rules — and particularly the five gatekeeping doctrines that preclude consideration of claims — produce unfair results. But in fact four of these …

Contested Meanings Of Freedom: Workingmen's Wages, The Company Store System, And The Godcharles V. Wigeman Decision, Laura Phillips Sawyer

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In 1886, the Pennsylvania Supreme Court struck down a law that prohibited employers from paying wages in company store scrip and mandated monthly wage payments. The court held that the legislature could not prescribe mandatory wage contracts for legally competent workingmen. The decision quashed over two decades of efforts to end the “truck system.” Although legislators had agreed that wage payments redeemable only in company store goods appeared antithetical to the free labor wage system, two obstacles complicated legislative action. Any law meant to enhance laborers’ rights could neither favor one class over another nor infringe any workingman’s ability to …

The Law's Mystery, Linda L. Berger, Jack L. Sammons

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What is the continuing significance of Cohen v. California, the 1971 U.S. Supreme Court decision holding that “Fuck the Draft” is a message protected by the First Amendment? Using Cohen as an exemplar, this article offers a new theory about how to understand the law and judicial opinions.

The theory begins in a recognition of the “law” as resting upon mystery and uncertainty, a mystery that is also the source of the law’s enchantment. It is this enchantment that we depend upon for the law to be authoritative rather than authoritarian and reducible to the political and thus to …

A Short Road To Statehood, A Long Road To Washington, Rachel J. Anderson

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This article documents the election in 2012 of the first African-American to represent Nevada in the U.S. Congress, Steven Horsford. It is part of "A Special Series on African Americans in Nevada Politics - Past and Present" on pages 16-21 of the issue." Sources are on page 21 of the issue.

Blacks And Voting Rights In Nevada, Rachel J. Anderson

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This article is a brief foray into black suffrage and equal rights in Nevada legal history. It is part of "A Special Series on African Americans in Nevada Politics - Past and Present" on pages 16-21 of the issue. Sources are on page 21 of the issue.

Blacks In The Nevada Legal Profession, Rachel J. Anderson

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This article discusses the history of African-Americans in the Nevada legal profession. It is part of "A Special Series on African Americans in Nevada Politics - Past and Present" on pages 16-21 of the issue. Sources are on page 21 of the issue.

Metaphor In Law As Poetic And Propositional Language, Linda L. Berger

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No abstract provided.

Legal History In Context, Logan E. Sawyer Iii

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The author examines the teaching methodologies involved in historical education and legal education.

Disentangling Conscience And Religion, Nathan Chapman

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What does “liberty of conscience” mean? Religious liberty? Freedom of strong conviction? Freedom of thought? Since the Founding Era, Americans have used liberty of conscience to paper over disputes about the proper scope of religious, moral, and philosophical liberty. This Article explores the relationship between conscience and religion in history, political theory, and theology, and proposes a conception of conscience that supports a liberty of conscience distinct from religious liberty. In doing so, it offers a theoretical basis for distinguishing between conscience and religion in First Amendment scholarship and related fields. Conscience is best understood, for purposes of legal theory, …

A Funhouse Mirror Of Law: The Entailment In Jane Austen's Pride And Prejudice, Peter A. Appel

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In this Essay, I will first outline the general development of different means used to hold property and keep it within a family in England. This discussion must of necessity be brief and schematic, and therefore readers should not rely on it as a completely accurate, nuanced, and detailed discussion of the historical development of English land law. I will then examine what Austen has to say about Longbourn, the principal property in Pride and Prejudice, which leads me to conclude that Austen probably conceived of Longbourn as being entailed and not secured under a strict settlement. I will also …

Reflections On The Life And Times Of Alan Watson, Camilla E. Watson

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The author summarizes the career of Alan Watson, J.D. and University of Georgia Law School faculty member.

Blacks In Nevada Elections, Rachel J. Anderson

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This article is a snapshot of challenges, contributions, and achievements of African Americans in Nevada elections. It is part of "A Special Series on African Americans in Nevada Politics - Past and Present" on pages 16-21 of the issue.

Creating Hammer V. Dagenhart, Logan E. Sawyer Iii

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Hammer v. Dagenhart is among the best known cases in the canon of constitutional law. It struck down the first federal child labor law on the grounds that Congress’s commerce power allowed it to prohibit the interstate shipment of harmful goods, like impure food and drugs, but not harmless goods, like the products of child labor. Withering criticism of the decision spread from Justice Holmes’s famous dissent to law reviews, treatises, casebooks, and constitutional law classes. For nearly a century the decision has been scorned as inconsistent with precedent, incoherent as policy, and driven solely by the Court’s reactionary commitment …