Legal History Commons^™

Ownership And Possession In The Early Common Law, Joshua C. Tate

Faculty Journal Articles and Book Chapters

Much has been written on the possible influence of Roman or canon law on the early English common law of property. Maitland thought that the canonist's actio spolii was the inspiration for the assize of novel disseisin. Sutherland argued that the assize borrowed from the Roman interdict unde vi. Milsom, by contrast, thinks that the early common-law writs must be understood within a feudal framework, and that the early common law took nothing from Roman law than the Latin language.

This Article offers a new perspective on ownership and possession in the early common law. It examines the theoretical development …

Raising The Red Flag: The Continued Relevance Of The Japanese Internment In The Post-Hamdi World, Aya Gruber

Publications

In the years since the terrorist attacks of September 11th, the Japanese interment has re-emerged as a topic of serious discourse among legal scholars, politicians, civil libertarians, and society in general. Current national security policies have created concerns that the government has stepped dangerously close to the line crossed by the Roosevelt administration during World War II. Civil libertarians invoke the internment to caution policy-makers against two of the most serious dangers of repressive national security policies: racial decision-making and incarceration without process. Bush defenders advance several arguments in response to internment comparisons. The most conservative is an ardent defense …

The Crime Of Economic Radicalism: Criminal Syndicalism Laws And The Industrial Workers Of The World, 1917-1927, Ahmed A. White

Publications

No abstract provided.

A Brief History Of The U.S.-American Indian Nations Relationship, Richard B. Collins

Publications

No abstract provided.

The Salmon People, Judge Boldt, And The Rule Of Law, Charles F. Wilkinson

Publications

No abstract provided.

Assessing Internal Revenue Code Section 132 After Twenty Years, Wayne M. Gazur

Publications

In 1984, Congress enacted Internal Revenue Code section 132 to bring more certainty to the taxation of employee fringe benefits. This article examines the impact of the legislation from the standpoint of administrative pronouncements and taxpayer litigation. The article concludes that section 132 has produced little litigation, but primarily because it has played the role of increasing exclusions. It remains unclear whether section 132 has also contained the growth of new forms of nonstatutory fringe benefits.

Today's Indian Wars: Between Cyberspace And The United Nations, S. James Anaya

Publications

No abstract provided.

Judicial Activism And Its Critics, Kermit Roosevelt, Richard W. Garnett

Journal Articles

"Judicial activism," writes Professor Kermit Roosevelt, of Penn, has been employed as an "excessive and unhelpful" charge--one "essentially empty of content." As a substitute, Roosevelt reviews here the framework for analysis of Supreme Court opinions that receives fuller treatment in his recent book, The Myth of Judicial Activism. Professor Richard W. Garnett, of Notre Dame, is willing to go along with "much, though not all, of" Roosevelt's position. Ultimately, Garnett suggests "that 'judicial activism' might be salvaged, and used as a way of identifying and criticizing decisions...that fail to demonstrate th[e] virtue" of constitutional "humility."

Race Nuisance: The Politics Of Law In The Jim Crow Era, Rachel D. Godsil

Michigan Law Review

This Article explores a startling and previously unnoticed line of cases in which state courts in the Jim Crow era ruled against white plaintiffs trying to use common law nuisance doctrine to achieve residential segregation. These "race-nuisance" cases complicate the view of most legal scholarship that state courts during the Jim Crow era openly eschewed the rule of law in service of white supremacy. Instead, the cases provide rich social historical detail showing southern judges wrestling with their competing allegiances to both precedent and the pursuit of racial exclusivity. Surprisingly, the allegiance to precedent generally prevailed. The cases confound prevailing …

The Adventures Of Blackness In Western Culture: An Epistolary Exchange On Old And New Identity Wars, Robert S. Chang, Adrienne D. Davis

Faculty Articles

Through a series of letters, Professors Robert Chang and Adrienne Davis examine the politics of positionality in law and literary criticism. They use the scholarly debates and conversations around critical race theory and feminist legal theory as a starting point to formulate some thoughts about Critical Race Feminism ("CRF") and its future. The authors use the epistolary form as a literary device to allow them to collaborate on this project while maintaining their own voices. Thus, the letters are not dated. The letters pay particular attention to various border crossings: male attempts to engage in feminist literary criticism, white attempts …

Somerset’S Case And Its Antecedents In Imperial Perspective, George Van Cleve

Faculty Articles

The article offers a look on the Somerset's Case that served as a milestone in the campaign to abolish slavery in Great Britain. The case become famous in the Anglo-American law of slavery, with its proceedings widely circulated in periodicals. However, historians have argued about what the ruling was and its effects. It has been known in English slavery law that courts prior to the case generally agreed that English law governed status, but also limited slavery, for slaves who came to England.

Harry Potter, Ruby Slippers And Merlin: Telling The Client's Story Using The Characters And Paradigm Of The Archetypal Hero's Journey, Ruth Anne Robbins

Seattle University Law Review

This Article focuses on the relationship of mythology and folklore heroes to everyday lawyering decisions regarding case theory when the audience is a judge or panel of judges rather than a jury. This Article adds to the discourse by beginning a conversation about what might be termed “applied legal storytelling.” The term pertains to ideas of how everyday lawyers can utilize elements of mythology as a persuasive technique in stories told directly to judges--either via bench trials or via legal writing documents such as briefs--on behalf of an individual client in everyday litigation. Parts II and III of this Article …

The Value Of Government Tort Liability: Washington State's Journey From Immunity To Accountability, Debra L. Stephens, Bryan P. Harnetiaux

Seattle University Law Review

Part I of this Article traces Washington's history with the common law doctrine of government immunity from tort liability. It also identifies other distinct common law immunities protecting executive, legislative, and judicial functions-immunities that lay dormant during the reign of sovereign immunity. Part II discusses the legislature's broad waiver of sovereign immunity in 1961 and the legislature's subsequent reaffirmation of the waiver. It also notes isolated instances in which the legislature has partially restored immunity or otherwise limited tort liability. Part III addresses the development of case law interpreting the scope of government tort liability in light of the legislative …

Using Court Records For Research, Teaching, And Policymaking: The Civil Rights Litigation Clearinghouse, Margo Schlanger, Denise Lieberman

Articles

The National Archives and Records Administration (NARA) is, wisely, planning the future of its enormous collection of relatively recent court records. The pertinent regulation, a “records disposition schedule” first issued in 1995 by the Judicial Conference of the United States in consultation with NARA, commits the Archives to keeping, permanently, all case files dated 1969 or earlier; all case files dated 1970 or later in which a trial was held, and “any civil case file which NARA has determined in consultation with court officials to have historical value.” Other files may be destroyed 20 years after they enter the federal …

Grados De Libertad: Democracia Y Antidemocracia En Cuby Y Luisiana, 1898-1900, Rebecca J. Scott

Articles

This comparative study between the quest for political racial inclusivity in 1890s Louisiana and the fight against state-sanctioned racialized violence in Cuba in the early 1900s exposes similarities, tensions, and differences between the two systems. The article traces the evolving contests for citizenship and suffrage in each climate at the end of the 19th century and into the beginning of the twentieth, juxtaposing the expression of race, suffrage, and citizenship in the constitution and political climate of each locale. In 1898, the new Louisiana state constitution disenfranchised African-Americans, while in 1900 Cuba was positioning itself for a grant of universal …

The Naa Agora: What's Right With Labor Arbitration…And How To Keep It That Way., Theodore J. St. Antoine

Other Publications

Now it’s time for all of us to step into the Agora, the National Academy’s marketplace of ideas. Leading the discussion this morning and introducing the members of the First Circle will be Professor Roger Abrams. Roger’s not on the stage right now, for reasons that will become obvious in just a moment. By way of introduction, Roger, of course, is a National Academy member. He is the Richardson Professor of Law at Northeastern University Law School; and currently he is a visiting Professor of Law at Harvard Law School. Roger is the former dean of Northeastern Law, of Rutgers …

History, Human Nature, And Property Regimes: Filling In The Civilizing Argument, Jedediah S. Purdy

Faculty Scholarship

Carol Rose’s paper exemplifies qualities I have admired in Carol’s work since I first read her in 1999 and 2000. It also raises questions about her work and that of anyone who tries to follow in her footsteps. Because I am one of those chasers after methodological Rose petals, I am (at least) doubly interested in these questions.

The Rose Theorem?, Michael Heller

Faculty Scholarship

Law resists theorems. We have hypotheses, typologies, heuristics, and conundrums. But, until now, only one plausible theorem – and that we borrowed from economics. Could there be a second, the Rose Theorem?

Any theorem must generalize, be falsifiable, and have predictive power. Law's theorems, however, seem to require three additional qualities: they emerge from tales of ordinary stuff; are named for, not by, their creators; and have no single authoritative form. For example, Ronald Coase wrote of ranchers and farmers. He has always shied away from the Theorem project. When later scholars formalized his parable, they created multiple and inconsistent …

Lord Mansfield; Judicial Integrity Or Its Lack; Somerset's Case, Alan Watson

Scholarly Works

I write this after re-reading Steven M Wise's Though the Heavens May Fall. My argument, if convincing, undermines the basis of the book. Probably the most famous decision in English law is that of Lord Mansfield in Somerset v. Stewart in 1772. It is very short and very dramatic; indeed, it is so rhetorical that much of what is vital is overlooked -- as it was meant to be. Somerset was Stewart's slave in Virginia and was brought to England by his owner. Somerset travelled extensively in the service of his master, to Bristol and Edinburgh, for example. But two …

Justinian's Corpus Iuris Civilis: Oddities Of Legal Development, And Human Civilisation, Alan Watson

Scholarly Works

The most momentous event in secular legal history is also perhaps the weirdest: Justinian's compilation, now known as the Corpus Iuris Civilis. Unsurprisingly, scholars have avoided stressing how odd the Corpus Iuris is. The most likely explanation is that it is so highly regarded that they have not noticed. They accept its high reputation, hence for them high quality is a given. This is a theme to which I return and no doubt will continue to return. The Corpus Iuris is so central in history, for understanding how law develops, and is so important today.

Repraesentatio In Classical Latin, Alan Watson

Scholarly Works

The Romans knew well the twin concepts of representation and representatives in law suits and in the relationships between father and son, and owner and slave. But for these concepts they did not use the terms repraesentare or any cognate.

To Tertullian, it seems, goes the credit of first using repraesentare and repraesentator in their modern senses of <> and <>. That his context is theological probably should not surprise since he is, above all, a theologian.

Thus he uses repraesentare to mean that the one larger and more important may represent the many and less important. This usage had a …

Foreword: Why Open Access To Scholarship Matters, Joe Miller

Scholarly Works

On March 10, 2006, the Lewis & Clark Law Review sponsored a day-long symposium entitled Open Access Publishing and the Future of Legal Scholarship. That gathering led to eight papers that are forthcoming in Volume 10, Issue No. 4, of the Lewis & Clark Law Review. In this short Foreword, I offer some thoughts about why all law professors should take an interest in the movement promoting open access to scholarship. The principal reason, based in current circumstances, is the way that using an open access platform extends one's reach. The aspirational reason is that open access platforms enable us …

James Madison’S Celebrated Report Of 1800: The Transformation Of The Tenth Amendment, Kurt T. Lash

Law Faculty Publications

It has become commonplace to describe the Rehnquist Court as having staged a "Federalism Revolution." Although the current status of the Revolution is in dispute, historical treatment of the Supreme Court's jurisprudence under Chief Justice Rehnquist no doubt will emphasize a resurgence of federalism and limited construction of federal power. Cases like Gregory v. Ashcroft, New York v. United States, United States v. Lopez, Printz v. United States, Alden v. Maine, and United States v. Morrison all share a common rule of interpretation: Narrow construction of federal power to interfere with matters believed best left under state control. The textual …

Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Universal Rights And Wrongs, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Just Say 'No Fishing': The Lure Of Metaphor, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

The phrase "fishing expedition" is widely used in popular culture and in the law. In the case of metaphorical "fishing" in the law, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence a result. When used by the court, it is uninformative. Worse, the fishing metaphor may itself shape the way the court thinks about the kind of issue or claim involved. Accusations of "fishing" also affect the language and position of the litigants. Parties arguing against pleadings or discovery use the metaphor as a rhetorical weapon, stigmatizing their opponents, instead of …

Popular Constitutionalism And The Rule Of Recognition: Whose Practices Ground U.S. Law?, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Death Squads Or 'Directions Over Lunch': A Comparative Review Of The Independence Of The Bar, W. Wesley Pue

All Faculty Publications

Periodic crises around the conduct of lawyers provoke moves in the direction of constituting the organized legal profession as a regulated industry, much like any other. Such proposals, whether for regulation through Legal Services Commissions or other structures, abruptly confront the historically embedded constitutional notion that liberty itself rests on the independence of the bar. This paper engages in a comparative review of the notion of an independent legal profession. Its particular focus is on widely agreed international standards and on the experience of Commonwealth countries and especially Australia, Canada, and the United Kingdom. The paper draws on literatures from …

What Is Rehnquist Federalism?, Marci A. Hamilton

Articles

No abstract provided.

Mestizaje And The Mexican Mestizo Self: No Hay Sangre Negra, So There Is No Blackness, Taunya Lovell Banks

Faculty Scholarship

Many legal scholars who write about Mexican mestizaje omit references to Afromexicans, Mexico’s African roots, and contemporary anti-black sentiments in the Mexican and Mexican American communities. The reasons for the erasure or invisibility of Mexico’s African roots are complex. It argues that post-colonial officials and theorists in shaping Mexico’s national image were influenced two factors: the Spanish colonial legacy and the complex set of rules creating a race-like caste system with a distinct anti-black bias reinforced through art; and the negative images of Mexico and Mexicans articulated in the United States during the early nineteenth century. The post-colonial Mexican becomes …