Legal History Commons^™

Introduction, Ronald F. Phillips

Pepperdine Law Review

No abstract provided.

Precedent: What It Is And What It Isn't; When Do We Kiss It And When Do We Kill It?, Ruggero J. Aldisert

Pepperdine Law Review

No abstract provided.

Post-Crisis Reconsideration Of Federal Court Reform, David R. Cleveland

Law Faculty Publications

No abstract provided.

Section 1983 Is Born: The Interlocking Supreme Court Stories Of Tenney And Monroe, Sheldon Nahmod

All Faculty Scholarship

No abstract provided.

"Public ... Since Time Immemorial": The Labor History Of Hague V. Cio, Kenneth M. Casebeer

Articles

No abstract provided.

The Rhetoric Of Recognition, Jeff Todd

McGeorge Law Review

No abstract provided.

Constructing Modern-Day U.S. Legal Education With Rhetoric: Langdell, Ames, And The Scholar Model Of The Law Professor Persona, Carlo A. Pedrioli

Faculty Scholarship

This article explains how lawyers like Christopher Columbus Langdell and James Barr Ames, a disciple of Langdell, employed rhetoric between 1870, when Langdell assumed the deanship at Harvard Law School, and 1920, when law had emerged as a credible academic field in the United States, to construct a persona, that of a scholar, appropriate for the law professor situated within the university. To do so, the article contextualizes the rhetoric with historical background on the law professor and legal education, draws upon rhetorical theory to give an overview of persona theory and persona analysis as a means of conducting the …

Instrumentalist And Holmesian Voices In The Rhetoric Of Reapportionment: The Opinions Of Justices Brennan And Frankfurter In Baker V. Carr, Carlo A. Pedrioli

Faculty Scholarship

In his autobiography, Chief Justice Earl Warren described Baker v.Carr as “the most important case of [his] tenure on the Court.” Following Brown v. Board of Education by eight years, Baker was the second “blockbuster” case of the Warren Court. Warren felt that, if the progeny of Baker had preceded Brown, Brown would have been unnecessary. As with other major Supreme Court cases, Baker featured rhetoric from highly influential justices, two of whom in this case were Justice William Brennan and Justice Felix Frankfurter. Justice Brennan would write the groundbreaking opinion for the Court that would be part of “the …

Patenting Nature: A Problem Of History, Christopher Beauchamp

Faculty Scholarship

No abstract provided.

Scaled Legislation & The Legal History Of The Common Good, Jill M. Fraley

Scholarly Articles

None available.

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

Michigan Journal of Gender & Law

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 ofintimate-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 womens movement in the 1970s is often presumed to …

Professor Edward Cooper: The Quintessential Reporter, Mary Kay Kane

University of Michigan Journal of Law Reform

Ed Cooper's twenty-year service as the Chief Reporter for the Civil Rules Advisory Committee deserves special recognition and tribute not only because of its longevity-which is remarkable in and of itself-but more particularly, because of the scope and depth of the rule changes he has helped to shepherd into law.

Teaching Legal History In The Age Of Practical Legal Education, Douglas E. Abrams

Faculty Publications

Historian Henry Steele Commager said, “History is useful in the sense that art is useful--or music or poetry or flowers; perhaps even in the sense that religion and philosophy is useful .... For without these things life would be poorer and meaner.” For law students who anticipate a career representing private and public clients and participating in public discussion, however, study of legal history carries rewards beyond intellectual stimulation and personal satisfaction. Law students contemplating client representation should ponder Justice Holmes's advice that “[h]istory must be a part of the study [of law], because without it we cannot know the …

The Secret "Kill List" And The President, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Maritime Piracy: A Sustainable Global Solution, Paul Williams, Lowry Pressly

Scholarly Articles in Law Reviews & Journals

Maritime piracy is a complex transnational security concern characterized by emerging international finance operations and organization, an oversupply of labor, and a low cost of market entry. This article provides a realistic picture of the driving forces behind maritime piracy in areas such as Southeast Asia, the Gulf of Aden, and the Gulf of Guinea. By examining some of the assumptions and proposed solutions in counter-piracy literature and policy, this article exposes some piracy illusions and proposes a sustainable, global response that addresses the persistent threat of modern maritime piracy. Today's manifold piracy challenges call for a multifaceted approach. Accordingly, …

International Law Weekend, American Branch Of The International Law Association Perspectives On Crimes Of Sexual Violence In International Law, Susana Sacouto

Scholarly Articles in Law Reviews & Journals

No abstract provided.

In Defense Of Scholars' Briefs: A Response To Richard Fallon, Amanda Frost

Scholarly Articles in Law Reviews & Journals

In a thoughtful and provocative essay, Richard Fallon criticizes law professors for lightly signing onto 'scholars’ briefs,' that is, amicus briefs filed on behalf of a group of law professors claiming expertise in the subject area. Fallon argues that law professors are constrained by the moral and ethical obligations of their profession from joining scholars’ briefs without first satisfying standards similar to those governing the production of scholarship, and thus he believes that law professors should abstain from adding their names to such briefs more often than they do now.

This response begins by describing the benefits of scholars’ briefs …

Introduction: China Re-Rising: Innovation And Collaboration For A Successful Twenty-First Century, Lindsay Korotkin

Cardozo Law Review de•novo

All eyes are on China in the twenty-first century, as it emerges as one of the fastest growing economies in the world. At the same time, losses in various industries are attributed to piracy—a substantial amount of which is alleged to occur within China’s borders—and the Chinese government is routinely criticized for its weak enforcement measures against counterfeiting activities and intellectual property infringement on its soil. Cardozo Law Review de•novo’s online symposium, “China Re-Rising: Innovation and Collaboration for a Successful Twenty-First Century” focuses on China’s overall transition from a manufacturing to an innovation economy and how this transition affects …

Docs Versus Glocks: N.R.A. Takes Aim At Florida Physicians’ Freedom Of Speech: Leaving Patients’ Health, Safety, And Welfare At Risk, Michelle Foody

Cardozo Law Review de•novo

Part I of this Note provides background on the Act at issue, its legislative history, the current status of the Supreme Court’s free speech jurisprudence, and it also introduces the constitutional interests at stake. Part II considers the constitutionality of the Act under the existing First Amendment standard and addresses the State’s assertions under the Second Amendment. Part III proposes that the Court’s standard ought to be recalibrated, taking into account the would-be listeners’ cognizable interest in the information. Part III goes on to legitimate the proposal by reconciling this new examination standard with existing free speech jurisprudence and justifications, …

Why Dennis?, Michal R. Belknap

Faculty Scholarship

This article briefs the legal history and significance of the Supreme Court case Dennis v. United States, 341 U.S. 494 (1951). In Dennis, the Supreme Court upheld the constitutionality of a federal criminal statute, officially known as the Alien Registration Act of 1940, but more commonly referred to as the Smith Act, after its sponsor, Representative Howard Smith (D. Va.). The Smith Act made it a crime to teach and advocate the violent overthrow of the government or to set up an organization that engaged in such teaching and advocacy. In other words, it criminalized a certain kind of …

Pharaohs, Nubians, And Antiquities: International Law Suggests It's Time For A Change In Egypt, Angi Porter

Scholarly Articles in Law Reviews & Journals

Part I of this Comment describes the history and structure of Egypt's antiquities laws. It also describes Egypt's relevant international obligations under the Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Economic, Social and Cultural Rights, and the United Nations Declaration on the Rights of Indigenous Peoples. In Part II, this Comment argues that the current state of Egypt's antiquities system is inconsistent with its international obligations. Part II considers whether Egypt's exclusion of the Nubians stems from Egyptological superiority narratives and analyzes which narratives Egypt could adopt without violating international law. Finally, Part …

The Dialectic Of Stare Decisis Doctrine, Colin Starger

All Faculty Scholarship

In the United States Supreme Court, the concept of stare decisis operates as both metadoctrine and doctrine. On the one hand, stare decisis functions as a generally applicable presumption in favor of adherence to precedent. This presumption is metadoctrinal because it provides a generic argument against overruling that applies independently of the substantive context of any given case. On the other hand, when the Court considers overruling a particularly controversial precedent, it usually weighs the constraining force of stare decisis by invoking factors and tests announced in its own prior caselaw. In other words, the Court has precedent about when …

The Unanimous Verdict According To The Talmud: Ancient Law Providing Insight Into Modern Legal Theory, Ephraim Glatt

Pace International Law Review Online Companion

Part I of this paper will provide background information regarding the current academic discussion surrounding the unanimous verdict. Part II will discuss the startling Talmudic passage on the unanimous verdict. It will additionally focus on one explanation that radically reinterprets this passage. Part IIIA will introduce two schools of thought on the rationale behind the anti-unanimity rule. Part IIIB will highlight two areas of modern legal theory affected by such rationales.

Surrender And Subordination: Birth Mothers And Adoption Law Reform, Elizabeth J. Samuels

Michigan Journal of Gender & Law

For more than thirty years, adoption law reform advocates have been seeking to restore for adult adoptees the right to access their original birth certificates, a right that was lost in all but two states between the late 1930s and 1990. The advocates have faced strong opposition and have succeeded only in recent years and only in eight states. Among the most vigorous advocates for access are birth mothers who surrendered their children during a time it was believed that adoption would relieve unmarried women of shame and restore them to a respectable life. The birth mother advocates say that …

An Incomplete Revolution: Feminists And The Legacy Of Marital-Property Reform, Mary Ziegler

Michigan Journal of Gender & Law

As this Article shows, the conventional historical narrative of the divorce revolution is not so much incorrect as incomplete. Histories of the divorce revolution have focused disproportionately on the introduction of no-fault rules and have correctly concluded that women's groups did not play a central role in the introduction of such laws. However, work on divorce law has not adequately addressed the history of marital-property reform or engaged with scholarship on the struggle for the Equal Rights Amendment to the federal Constitution. Putting these two bodies of work in dialogue with one another, the Article provides the first comprehensive history …

How Customary Is Customary International Law?, Emily Kadens, Ernest A. Young

Faculty Scholarship

No abstract provided.

Oh, The Treatise!, Richard A. Danner

Faculty Scholarship

This foreword to the Michigan Law Review’s 2013 Survey of Books Related to the Law considers the history of the American legal treatise in light of the well-known criticisms of legal scholarship published by Judge Harry Edwards in 1992. As part of his critique, Edwards characterized the legal treatise as “[t]he paradigm of ‘practical’ legal scholarship.” In his words, treatises “create an interpretive framework; categorize the mass of legal authorities in terms of this framework; interpret closely the various authoritative texts within each category; and thereby demonstrate for judges or practitioners what ‘the law’ requires.” Part I examines the origins …

Some Pluralism About Pluralism: A Comment On Hanoch Dagan’S “Pluralism And Perfectionism In Private Law”, Jedediah Purdy

Faculty Scholarship

No abstract provided.

Faithful Agency Versus Ordinary Meaning Advocacy, James J. Brudney

Faculty Scholarship

This Article contends that ordinary meaning analysis based on dictionaries and language canons cannot be reconciled with the faithful agent model. Fidelity to Congress as a principal entails fidelity to its lawmaking enterprise, not to words or sentences divorced from that enterprise. Congress has indicated that it does not value dictionaries as part of its lawmaking process, and it ascribes at most limited weight to language canons in that process. Further, Justices advocating ordinary meaning analysis too often use dictionary definitions, and language canons such as the rule against surplusage, the whole act rule, and ejusdem generis, in ways that …

Fundamental Unfairness: In Re Gault And The Road Not Taken, Robin Walker Sterling

Maryland Law Review

No abstract provided.