Legal History Commons^™

Rejecting The Legal Process Theory Joker: Bill Nelson's Scholarship On Judge Edward Weinfeld And Justice Byron White, Brad Snyder

Chicago-Kent Law Review

My contribution to this tribute places Bill Nelson’s scholarship about Judge Edward Weinfeld and Justice Byron White within several contexts. It is a personal history of Nelson the law student, law clerk, and young scholar; an intellectual history of legal theory since the 1960s; an examination of the influence of legal theory on Nelson’s scholarship based on his writings about Weinfeld and White; and an example of how legal historians contend with the subject of judicial reputation. Nelson was one of many former Warren Court and Burger Court clerks who joined the professoriate and rejected the legal process theory that …

A Response: The Impact Of War On Justice In The History Of American Law, William E. Nelson

Chicago-Kent Law Review

The foundational claim of this essay is that judges at most points in time should act with restraint and should not attempt to resolve contested issues of policy. They should incorporate new policies into the law only when the polity as a whole has already adopted a particular policy or when it is in the process of adopting one. The essay then maintains that there have been three periods in American history—the Revolution and the subsequent decades of constitution-making, the Civil War and Reconstruction, and World War II and its aftermath—when the American public as an entity did adopt policies …

The Federal Rules At 75: Dispute Resolution, Private Enforcement Or Decisions According To Law?, James R. Maxeiner

Georgia State University Law Review

This essay is a critical response to the 2013 commemorations of the75th anniversary of the Federal Rules of Civil Procedure.The Federal Rules of Civil Procedure were introduced in 1938 to provide procedure to decide cases on their merits. The Rules were designed to replace decisions under the “sporting theory of justice”with decisions according to law.

By 1976, at midlife, it was clear that they were not achieving their goal. America’s proceduralists split into two sides about what to do. One side promotes rules that control and conclude litigation: e.g.,plausibility pleading, case management, limited discovery, cost indemnity for discovery, and summary …

William E. Nelson's The Roots Of American Bureaucracy And The Resuscitation Of The Early American State, Gautham Rao

Chicago-Kent Law Review

In 1983, William E. Nelson published The Roots of American Bureaucracy, 1830–1900. Nelson traced the somewhat unlikely emergence and victory of the bureaucratic model in American political and legal thought. This article summarizes the book’s argument and describes its reception. It also seeks to assess the scholarly legacy of The Roots of American Bureaucracy. I argue that the book was ahead of its time because it contradicted prevailing scholarly trends in identifying a significant federal state in nineteenth-century America. In particular, during the past two decades, historians and political scientists have built on Nelson’s insights to develop a consensus about …

Law For The Empire: The Common Law In Colonial America And The Problem Of Legal Diversity, Lauren Benton, Kathryn Walker

Chicago-Kent Law Review

In laboring to uncover the legal origins of the American Revolution, historians of law in early America often separated the field from the comparative legal history of empires. William E. Nelson does not explicitly set out to place American colonial legal history in a global context in The Common Law in Colonial America. But in analyzing legal diversity and identifying elements of early legal convergence, Nelson does address key questions within the comparative history of empire and law. This article surveys Nelson’s contributions and places them alongside two other approaches to the study of colonial legal diversity and the constitution …

Semi-Wonderful Town, Semi-Wonderful State: Bill Nelson's New York, Edward A. Purcell Jr.

Chicago-Kent Law Review

This article examines Bill Nelson’s two major books on the history of New York law and politics, The Legalist Reformation (2001) and Fighting for the City (2008). The former deals with developments in New York State from the late nineteenth to the late twentieth century; the latter with New York City starting somewhat earlier but concentrating on the same later period. The Legalist Reformation argues that the election of Alfred E. Smith as Governor of New York in 1922 began a transformation of the state’s legal and political culture that brought new and more egalitarian social policies to the state …

Nevada Public Policy And Higher Education: The Roles Of The Legislature And The Board Of Regents Under The Nevada Constitution, Thomas B. Mcaffee, Justin James Mcaffee

Nevada Law Journal

No abstract provided.

53rd Henry J. Miller Distinguished Lecture Series, The Hon. Justice John Paul Stevens

Georgia State University Law Review

Remarks by the Honorable John Paul Stevens, Retired Associate Justice of the Supreme Court of the United States, at the 53rd Henry J. Miller Distinguished Lecture Series.

Historical Antecedents Of Challenges Facing The Georgia Appellate Courts, Michael B. Terry

Georgia State University Law Review

The Georgia appellate courts face challenges common to many courts in these days of reduced governmental resources. At the same time, the Georgia appellate courts face unusual challenges that can be traced to their historical antecedents and one unique constitutional provision: the “Two-Term Rule.” Just as “[t]he law embodies the story of a nation’s development through many centuries,” the current rules and practices of both the Supreme Court of Georgia and the Court of Appeals of Georgia embody the story of the development of those courts since their founding.

Several aspects of the history of the courts directly impact the …

Symposium: Nevada Law At 150, Jeffrey W. Stempel

Nevada Law Journal

No abstract provided.

Civil Rulemaking In Nevada: Contemplating A New Advisory Committee, Thomas O. Main

Nevada Law Journal

No abstract provided.

Making Liquor Immunity Worse: Nevada's Undue Protection Of Commercial Hosts Evicting Vulnerable And Dangerous Patrons, Jeffrey W. Stempel

Nevada Law Journal

No abstract provided.

America’S Legal History Started In Williamsburg, Paul Hellyer

Library Staff Publications

No abstract provided.

The Great Power Origins Of Human Rights, Seth Mohney

Michigan Journal of International Law

For years, historians depicted the history of human rights as the inexorable triumph of universal norms. This account underestimates both the historical and contemporary uncertainty surrounding many international human rights. As even casual observers must note, the tale of human rights progress is not littered with beneficent heads of state persuaded to pursue progress by the moral charge of universal norms. Instead, this history’s primary scenes feature struggles among great powers, peoples, and movements advancing diverse interests. Recognizing the complexity of human rights history, a new generation of historians has emphasized that human rights progress is not preordained, but rather …

Incarceration And Reintegration: How It Impacts Mental Health, April M. Marier, Alex Alfredo Reyes

Electronic Theses, Projects, and Dissertations

ABSTRACT

Background: Previous criminal justice policies have been non-effective leading to overpopulated prisons and unsuccessful reintegration. There is a lack of effective supportive and/or rehabilitative services resulting in high rates of recidivism and mental health implications. Objective: This study investigated the perceived impact that incarceration and reintegration with little to no supportive and/or rehabilitative services has on the mental health status of an individual. The emphasis was on participant perception and not on professional reports because of underreporting and lack of attention to mental health in the criminal justice system. Methods: Focus groups in the Inland Empire and Coachella Valley …

Two Decades Of Therapeutic Jurisprudence, David B. Wexler

Touro Law Review

No abstract provided.

The Jurisprudence Of The Hughes Court: The Recent Literature, Barry Cushman

Journal Articles

The balance of this Article is devoted, after a fashion, to an exploration of the extent to which the recent literature on the Hughes Court seeks to incorporate the internal point of view. In Part I, I seek to identify the historiographical premises undergirding each author’s treatment of the subject. In Part II, I explore how those historiographical premises are reflected in each author’s treatment of the substantive development of constitutional doctrine during the period. In Part III, I examine the ways in which those historiographical premises inform each author’s analysis of the causal forces driving that doctrinal development. Part …

Constitutional Exaptation, Political Dysfunction, And The Recess Appointments Clause, Jay D. Wexler

Faculty Scholarship

The so-called Recess Appointments Clause of the Constitution provides that: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”1 As of only a few years ago, I considered this clause so minor and quirky that I included it in a book about ten of the Constitution’s “oddest” clauses, right alongside such clearly weird provisions as the Title of Nobility Clause and the Third Amendment.2 Though I recognized that the Recess Appointments Clause was probably the least odd …

The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt

All Faculty Scholarship

Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Essay explains how this differentiation arose and considers its consequences.

Although there is a certain inherent logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech …

The Rapid Rise Of Delayed Notice Searches, And The Fourth Amendment “Rule Requiring Notice”, Jonathan Witmer-Rich

Pepperdine Law Review

This article documents the rapid rise of covert searching, through delayed notice search warrants, and argues that covert searching in its current form presumptively violates the Fourth Amendment’s “rule requiring notice.” Congress authorized these “sneak and peek” warrants in the USA Patriot Act, in 2001, and soon after added a reporting requirement to monitor this invasive search technique. Since 2001, the use of delayed notice search warrants has risen dramatically, from around 25 in 2002 to 5,601 in 2012, suggesting that “sneak and peek” searches are becoming alarmingly common. In fact, it is not at all clear whether true “sneak …

Some Reflections On The Past, Present And State-Dependent Future Of Lotteries In American Gaming Law, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Dressing And Addressing The Kenyan Judiciary: Reflecting On The History And Politics Of Judicial Attire And Address, Willy Mutunga

Buffalo Human Rights Law Review

No abstract provided.

Beyond Backlash: Legal History, Polarization, And Roe V. Wade, Mary Ziegler

Scholarly Publications

On its fortieth anniversary, Roe v. Wade serves as the most prominent example of the damage judicial review can do to the larger society. Scholars from across the ideological spectrum have related how Roe helped to entrench the ideological positions held by those on either side of the abortion issue, precluding any form of productive compromise. This criticism, which the Article calls the “beyond backlash” argument, has profound legal consequences, serving as both a justification for overruling Roe and as a case study of the benefits of varying interpretive methods.

This Article reevaluates the beyond backlash claim through a careful …

The Infringement Continuum, Bernard Chao

Cardozo Law Review

For many years, patent law has struggled with the issue of permissible claim scope. A patent's specification and its claims often suffer from a surprising disconnect. The specification generally describes an invention in terms of one or more specific implementations, suggesting a relatively narrow invention. But claims are drafted far more broadly. They frequently encompass unforeseen variations and even cover after-arising technology.

Although there are numerous existing doctrines that try to prevent claims from straying too far from their specification, these doctrines offer binary outcomes ill suited for patent law. Under these doctrines, as a claim encompasses subject matter further …

The War Powers Resolution Of 1973 And Its Relevance In The “War On Terror”, Samuel Day

Political Science Theses and Capstones

In September of 2013, President Obama asked Congress to take a vote that would authorize the United States to use military drones against the Syrian army and provide support for the Syrian rebels. This action by President Obama raised the question that many have been wondering since the creation of our country, who has the power to declare war and initiate hostilities against those who threaten the United States? My thesis focuses on the War Powers Resolution of 1973 and the arguments surrounding its Constitutionality, specifically the arguments supporting the Executive or Legislative branches. For my research supporting the argument …

The Necessary And Proper Clauses, John Mikhail

Georgetown Law Faculty Publications and Other Works

The Article's main purpose is to provide a new and more accurate account of the origins of the Necessary and Proper Clauses. I refer to the Necessary and Proper “Clauses” rather than to the Necessary and Proper “Clause” to emphasize that the relevant constitutional text is comprised of three distinct provisions, only the first of which concerns the enumerated powers in Article I, Section 8:

1. “Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”
2. “Congress shall have Power . . . To make all Laws …

Racial Templates, Richard Delgado, Juan F. Perea

Michigan Law Review

This riveting tale of greed, international skullduggery, and behind-the-scenes heroism recounts the events that led up to America’s “wicked war” with Mexico. It depicts how expansionist ambitions in high circles fueled jingoistic propaganda (pp. 25, 34–35, 58), fed a public eager for national muscle flexing (pp. 57, 103, 108), and set the stage for a military skirmish in a disputed region between two rivers (pp. 75–77, 95, 100, 138) that provided the pretext for a savage and short-lived military campaign against the weak new nation of Mexico in which the U.S. Army, under General Scott, marched all the way to …

Targeted Killing: United States Policy, Constitional Law, And Due Process, Mark Febrizio

Senior Honors Theses

The increased incorporation of targeted killing, primarily through the use of unmanned aerial vehicles, into United States policy raises salient questions regarding its consistency with the U.S. Constitution. This paper contrasts interpretations of constitutional due process with the current legal framework for conducting targeted killing operations. The Fifth Amendment to the Constitution establishes the due process owed to U.S. citizens. This paper determines that the killing of Anwar al-Awlaki, an American citizen, was accomplished in a manner inconsistent with constitutional due process and demonstrates an over-extension of executive branch power. This paper examines one scholarly recommendation that seeks to increase …

A Pragmatic Republic, If You Can Keep It, William R. Sherman

Michigan Law Review

These things we know to be true: Our modern administrative state is a leviathan unimaginable by the Founders. It stands on thin constitutional ice, on cracks between the executive, legislative, and judicial branches. It burdens and entangles state and local governments in schemes that threaten federalism. And it presents an irresolvable dilemma regarding democratic accountability and political independence. We know these things to be true because these precepts animate some of the most significant cases and public law scholarship of our time. Underlying our examination of administrative agencies is an assumption that the problems they present would have been bizarre …

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

Scholarly Works

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 …