Legal History Commons^™

The Triumph Of Gay Marriage And The Failure Of Constitutional Law, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The Supreme Court's much anticipated invalidation of gay marriage bans improved the personal lives of millions of ordinary Americans. It made the country a more decent place. Even Chief Justice Roberts, at the conclusion of his otherwise scathing dissent, acknowledged that the decision was a cause for many Americans to celebrate.

But although the Chief Justice thought that advocates of gay marriage should "by all means celebrate today's decision," he admonished them "not [to] celebrate the Constitution." The Constitution, he said, "had nothing to do with it".

Part I of this article quarrels with the Chief Justice's assertion that the …

Cherokee Freedmen And The Color Of Belonging, Lolita Buckner Inniss

Publications

This article addresses the Cherokee tribe and their historic conflict with the descendants of their former black slaves, designated Cherokee Freedmen. This article specifically addresses how historic discussions of black, red and white skin colors, designating the African-ancestored, aboriginal (Native American) and European-ancestored people of the United States, have helped to shape the contours of color-based national belonging among the Cherokee. This article also suggests that Homi K. Bhabha’s notion of postcolonial mimicry offers a potent source for analyzing the Cherokee’s historic use of skin color as a marker of Cherokee membership. The Cherokee past practice of black slavery and …

They Had Nothing, Charles Wilkinson

Publications

No abstract provided.

Revoking Rights, Craig J. Konnoth

Publications

In important areas of law, such as the vested rights doctrine, and in several important cases--including those involving the continued validity of same-sex marriages and the Affordable Care Act--courts have scrutinized the revocation of rights once granted more closely than the failure to provide the rights in the first place. This project claims that in so doing, courts seek to preserve important constitutional interests. On the one hand, based on our understanding of rights possession, rights revocation implicates autonomy interests of the rights holder to a greater degree than a failure to afford rights at the outset. On the other …

Structuralist Legal Histories, Justin Deystone

Publications

This is a contribution to a symposium titled "Theorizing Contemporary Legal Thought." The central theme of the piece is the relation between legal structuralism and legal historiography.

My Coworker, My Enemy: Solidarity, Workplace Control, And The Class Politics Of Title Vii, Ahmed A. White

Publications

No abstract provided.

"Greatest Good Of The Greatest Number In The Long Run": Tr, Pinchot, And The Origins Of Sustainability In America, Charles Wilkinson

Publications

No abstract provided.

Cu Law Library Launches New Resource For Historical Colorado Statutory Research, Robert M. Linz

Publications

No abstract provided.

Reflections On Freedom And Criminal Responsibility In Late Twentieth Century American Legal Thought, Thomas A. Green, Merrill Catharine Hodnefield

Articles

It is now a commonplace among historians that American criminal jurisprudence underwent a dramatic change something like two-thirds to three-quarters into the last century. Roughly, this development is understood as a shift (or drift) from a more-or-less pure consequentialism to a "mixed theory" wherein retributivism played a major-at times, dominant-role. As the new paradigm remains intact, now approaching a half-century, the development qualifies as a significant historical fact. The fact applies not only to the history of justification for punishment but also to conceptions of the underlying principle of (basis for) responsibility. The two are rightly distinguished: for many scholars …

The Overlooked French Influence On The Intellectual Property Clause, Sean M. O'Connor

Articles

The Intellectual Property Clause (“IP Clause”) of the US Constitution has long been a puzzle for courts and commentators. It authorizes Congress to secure exclusive property rights for authors and inventors, but it does not use the terms “patent” or “copyright,” and its objects of “Science” and “useful Arts” do not cleanly map onto the subject matter of current patent and copyright systems.

As the Supreme Court has noted, under popular usage of the terms “arts” and “science,” one would expect patents to promote science and copyrights to promote arts, yet we know from the historical record that exactly the …

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

Scholarly Works

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 …

Review Of Sovereign Defaults Before International Courts And Tribunals, John A. E. Pottow, Emily Iversen

Reviews

This book review probes Michael Waibel’s new book, Sovereign Defaults Before International Courts and Tribunals. Waibel's project is ambitious, exploring international attempts to address sovereign defaults over the past century and a half. Through painstaking and comprehensive historical analysis, Waibel shows how we've been here before -- a sober reminder for those thinking Argentina is simply part of a new fad in financial default. With the UN now turning its attention to sovereign debt issues, this study is especially timely. Although somewhat disappointing in the lightness of its normative content, the book should nevertheless prove helpful to those considering the …

Fourteen Cases From Herbert Jacob's Queen's Bench Reports, William Hamilton Bryson

Law Faculty Publications

Herbert Jacob was admitted to the Inner Temple on 3 June 1692, called to the bar on 28 June 1699, and called to the bench of the Inner Temple on 22 November 1721. He died in 1725.

Harvard Law School MS. 4081 [formerly MS. 2136] is a collection of Queen's Bench reports dating from 1702 to 1706. This manuscript consists of two books, which are attributed to Herbert Jacob, a barrister of the Inner Temple. The cases in volume one and volume two, ff. 1-71v, are the same reports as 2 Lord Raymond 755-1252, 92 E.R. 4-325. Volume two, ff. …

Thomas Bold's Chancery Reports, William Hamilton Bryson

Law Faculty Publications

Thomas Bold was born in 1695, the son of William Bold of St. Bride's Parish, London. He entered Westminster School in 1708 and Christ Church, Oxford, on 23 June 1713. Bold received his B.A. in 1718 and an M.A. in 1721. He was admitted as a law student at the Middle Temple on 15 June 1711 and called to the bar on 31 May 1717. He was admitted ad eundem at Lincoln's Inn on 23 November 1717.

Sir John Randolph's Reports Of Cases In The General Court Of Virginia (1729-1735), William Hamilton Bryson

Law Faculty Publications

This second edition of Sir John Randolph's Virginia reports was prompted by the discovery in the Library of Congress of another manuscript copy, which was heretofore unknown. I would like to thank Nathan Dorn, of the Law Department of the Library of Congress for bringing it to light. The importance of this discovery is the addition of three cases to the first edition, which was published over a hundred years ago.

In this new edition of these law reports, I have presented these cases in a more usable format for members of the legal profession by extending the abbreviations of …

Intellectual Property And Gender: Reflections On Accomplishments And Methodology, Kara W. Swanson

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Law In East Florida 1783-1821, M C. Mirow

Faculty Publications

Using primary sources from the East Florida Papers, this article explores colonial legality in St. Augustine and the Province of East Florida during the second Spanish period from 1783 to 1821. In addition to discussing the promulgation of the Constitution of Cádiz and its effects, the article reaches into legal records dealing with civil and testamentary cases to explore and to describe aspects of private law in this North American Spanish colony. Economic and social relations are revealed in the sources that are rich in legal information concerning slavery, family, religion, trade, and landholding. The article concludes that the sources …

Agora: Reflections On Zivotofsky V. Kerry : Historical Gloss, The Recognition Power, And Judicial Review, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

The Uncertain Future Of The Corporate Contribution Ban, Richard Briffault

Faculty Scholarship

Concern about the role of corporate money in democracy has been a longstanding theme in American politics. In the late nineteenth century, the states began to adopt laws restricting the use of corporate funds in elections. The first permanent federal campaign finance law – the Tillman Act of 1907 – targeted corporations by prohibiting federally-chartered corporations from making contributions in any election and prohibiting all corporations from making contributions in federal elections. Subsequently amended, continued, and strengthened by the Federal Corrupt Practices Act of 1925, the Taft-Hartley Act of 1947, the Federal Election Campaign Act of 1971, and the Bipartisan …

The Struggle For Administrative Legitimacy, Jeremy K. Kessler

Faculty Scholarship

Nearly forty years ago, Professor James 0. Freedman described the American administrative state as haunted by a "recurrent sense of crisis." "Each generation has tended to define the crisis in its own terms," and "each generation has fashioned solutions responsive to the problems it has perceived." Yet "a strong and persisting challenge to the basic legitimacy of the administrative process" always returns, in a new guise, to trouble the next generation. On this account, the American people remain perennially unconvinced that administrative decisionmaking is "appropriate, proper, and just," entitled to respect and obedience "by virtue of who made the decision" …

The Historical Origins Of The Debt-Equity Distinction, Camden Hutchison

All Faculty Publications

The U.S. tax code favors corporate debt over corporate equity, a distinction long criticized by economists, legal scholars, and other tax commentators as both theoretically and practically unsound. For decades, academics and policymakers from a variety of disciplinary and political backgrounds have argued that this so-called “debt-equity distinction” distorts corporate financing decisions, encourages excess borrowing, and invites troublesome tax-avoidance behavior. Surprisingly, despite widespread critical attention, the origins of this policy remain a mystery. Primarily focused on its contemporary significance, scholars have disregarded the distinction’s past. This article uses historical evidence to trace the debt-equity distinction’s origins, development, and continuing evolution. …

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

Scholarly Works

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

Scholarly Works

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 …