Legal History Commons^™

Book Review: Much Ado About Nothing: The Brethren: Inside The Supreme Court, Richard L. Aynes

Akron Law Review

With such auspicious beginnings, The Brethren would appear to be a vital and important book which should be included upon the "required" reading list of those who wish to keep abreast of developments involving the Court and the evolution of constitutional law. Unfortunately, for anyone familiar with the decisions of the Court, the high expectations raised by The Brethren will not be met. Even when viewed in the most charitable light, the "insights" into the decision-making process to be gained from The Brethren are slight.2

Lawyers Without Rights: Jewish Lawyers In Germany Under The Third Reich: An Exhibition At Roger Williams University School Of Law, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Oral Argument In The Early Roberts Court: A Qualitative And Quantitative Analysis Of Individual Justice Behavior, James C. Phillips, Edward L. Carter

The Journal of Appellate Practice and Process

No abstract provided.

"As If Uttered By Our Own Inspired Mouth": Researching The Corpus Juris Civilis, Frederick W. Dingledy

Library Staff Publications

No abstract provided.

Litigating Time In America At The Turn Of The Twentieth Century, Jenni Parrish

Akron Law Review

Time may have become a television celebrity this season, but telling time is something taken for granted by most people alive in 2002. Telling time however, has not always been as easy, straightforward, and mechanical, as it is today. By the late nineteenth century, there was already sufficient conflict over how to tell time to force Americans to litigate the subject. The courts wrestled with this dilemma while legislatures reluctantly moved toward establishing a uniform method of telling time. Congress did not act until 1918.6 Why did it take so long to legally establish standard time in the United States? …

The Dubitante Opinion, Jason J. Czarnezki

Akron Law Review

This short Essay endeavors to shed some light on the use of the term dubitante in judicial opinions and spark discussion as to the merits of the dubitante opinion—What is a dubitante opinion? When was the term first used, and how often is the term used? Who uses it and how? What are the consequences of its use?

Implicit Bias And Capital Decision-Making: Using Narrative To Counter Prejudicial Psychiatric Labels, Sean O'Brien, Kathleen Wayland

Faculty Works

Overreliance on psychiatric diagnostic labels in the defense of death penalty cases risks triggering prejudicial associations in the minds of decision-makers. This article emphasizes the importance of developing a mitigating counter-narrative of the defendant’s life story, based on an extensive longitudinal and developmental investigation of the defendant and his family’s life trajectory. It is the client’s life story, not diagnostic labels, that reveals his humanity. Cognitive psychology provides a useful framework for explaining human perceptions, and how implicit or explicit biases can interfere with the objective interpretation of data in ways that affect judgment and behavior.

“Nede Hath No Law”: The State Of Exception In Gower And Langland, Conrad J. Van Dijk

Accessus

This article discusses the use of the legal maxim necessity knows no law in the works of William Langland and John Gower. Whereas Langland’s usage has stirred up great controversy, Gower’s unique application of the canon law adage has received hardly any attention. On the surface, it is difficult to think of two authors less alike, and the way in which they relate the concept of necessity to different subjects (the poverty debate, fin amour) seems to support that feeling. Yet this article argues that reading Langland and Gower side by side is mutually illuminating. Specifically, this article reveals …

The Nlrb, The Courts, The Administrative Procedures Act, And Chevron: Now And Then, Theodore J. St. Antoine

Articles

Decisions of the National Labor Relations Board (NLRB), like those of other administrative agencies, are subject to review by the federal judiciary. Standards of review have evolved over time. The Administrative Procedure Act of 1946 provides that administrative decisions must be in accord with law and required procedure, not arbitrary or capricious, not contrary to constitutional rights, within an agency's statutory jurisdiction, and supported by substantial evidence. In practice, more attention is paid to two Supreme Court decisions, Skidmore (1944) and Chevron (1984). For many years Chevron seemed the definitive test. A court must follow a clear intent of Congress, …

The Suez Crisis Of 1956 And Its Aftermath: A Comparative Study Of Constitutions, Use Of Force, Diplomacy And International Relations, Pnina Lahav

Faculty Scholarship

This article compares and juxtaposes constitutional war powers (deployed by the belligerents) and diplomacy (deployed by the US) as means of pursuing foreign policy during the 1956 Suez crisis.

In the fall of 1956 the United Kingdom, France and Israel launched a war against Egypt. It soon became clear that this was a coordinated effort. The war started a few days before the US presidential elections but the parties did not share their plans with President Eisenhower. The Hungarian rebellion and the Soviet invasion of Hungary occurred at the same time. Within weeks, the United States, in cooperation with the …

A Herculean Task For Judge Hercules: Analytical Avoidance In Iran V. Elahi, Anneliese Gryta

Akron Law Review

This Comment examines the history, development, and application of the FSIA’s terrorist state attachment exception through the lens of Iran v. Elahi, as well as the larger problems and ramifications which ripple forth from the case. Part II, Sections A, B, and C present the background of the FSIA, the terrorist state exception, explaining the difference between 1610(a)(7) attachment of a foreign state’s property and 1610(b)(2) attachment of the property of an agency or instrumentality of the foreign state. Part III explores the intractable problem of recovery in terrorist state exception cases and the unfortunate foreign policy and constitutional ramifications …

The Ladies' Health Protective Association: Lay Lawyers And Urban Cause Lawyering, Felice Batlan

Akron Law Review

By examining the LHPA, this Article seeks, however modestly, to extend the Hurstian project. The Article argues that the LHPA, composed of a group of middle-class women interacting with their environment, neighbors, the courts, private businesses, and city and state officials, on a deeply local and quotidian basis, had a significant impact in shaping a multitude of New York City laws and law had a profound affect in creating and molding the work and identity of the organization.

Revival: Toward A Formal Neutrality Approach To Economic Development Transfers To Religious Institutions, Ryan A. Doringo

Akron Law Review

Part I of this Note explores the contours of the complicated history of the Establishment Clause by examining the creation of the Lemon test and the inconsistencies of the test’s subsequent application. The Note then explores Justice O’Connor’s endorsement modification to that test. Part I concludes with a discussion of the Supreme Court’s move toward embracing a principle formal neutrality. Part II provides a factual history of the transfer at issue and a detailed summary of the District Court’s opinion in Wirtz. Part III of the Note explains that the Constitution does not preclude economic development transfers to religious institutions. …

Looking Back To The Future: The Curmudgeon's Guide To The Future Of Environmental Law, Denis Binder

Akron Law Review

This essay is not intended as a traditional law review article, but as an essay intended to raise questions about the current status and future of Environmental Law in light of the three and one-half centuries of a developmental, exploitative ethos in America.

Power To The People: Restoring The Public Voice In Environmental Law, Albert C. Lin

Akron Law Review

Although the last forty years of environmental law have witnessed some successes, they have also increasingly revealed the limitations of existing laws and regulatory structures. Congress has been unable to pass substantial environmental legislation in recent years, notwithstanding widespread recognition of the need for better tools for responding to climate change, toxic chemicals, non-point source water pollution, and other problems. In addition, the Environmental Protection Agency (“EPA”) has struggled in the wake of limited resources and politicization to effectively use the tools it has, and its rulemaking processes are often dominated by industry and other repeat players. To deal with …

Environmental Law And The Collapse Of New Deal Constitutionalism, Arthur F. Mcevoy

Akron Law Review

This Article, which is a précis for a book in progress about the history of late twentieth-century U.S. environmental law, argues that our modern environmental law is peculiarly a creature of the New Deal. Despite its obvious legacy from common-law nuisance and Progressive regulation, what makes modern environmental law different from anything that came before is the way in which reformers built it out of parts copied from New Deal reform projects: cooperative federalism, the tax-and-spend power, representation-reinforcing, rights trumps, and so on. Environmental law’s history, its character, its accomplishments, and its shortcomings thus entwined with those of the New …

States' Rights, Southern Hypocrisy, And The Crisis Of The Union, Paul Finkelman

Akron Law Review

The southern states did not leave the Union because the national government was trampling on their “rights.” The states that left the union never asserted that they were being denied their “states’ rights” —that the national government had obliterated the lines been between national power and state power. Nor did the southern states complain that the national government was too powerful and so it threatened the sovereignty of the state governments. On the contrary, as I set out below, the southern states mostly complained that the northern states were asserting their states’ rights and that the national government was not …

Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution, Stephen C. Neff

Akron Law Review

This discussion will briefly outline the legal arguments in favour of the secessionist position. The first section will survey four arguments that could, in theory, have been employed but which, in practice, were used either not at all or only marginally. The second section will survey, in greater detail, the principal argument which was advanced in 1860-61: that secession was a lawful remedy available to the Southern states in the face of material breaches of the Constitutional compact of 1787 by the free states. It will be observed that, in this argument, general considerations of natural law and of the …

Still Too Close To Call? Rethinking Stampp's "The Concept Of A Perpetual Union", Daniel W. Hamilton

Akron Law Review

In a classic article in the Journal of American History, which was based on his presidential address to the Organization of American Historians in 1978, the great Civil War historian Kenneth Stampp made the claim that the arguments in favor of the constitutionality of secession made by the Southern states were as strong, if not stronger than the constitutional arguments made, then and now, in opposition to secession. Stampp is to my mind the greatest Civil War historian of the 20th century and his views on secession remain required reading and are cited routinely today. This is not to say …

Symposium: Union And States' Rights: Secession, 150 Years After Sumter, Preface, Neil H. Cogan

Akron Law Review

A preface to the four papers presented at the Annual Meeting of the Section on Legal History, American Association of Law Schools, held on January 7, 2011, in San Francisco.

The American Jury System: A Synthetic Overview, Richard Lempert

Chicago-Kent Law Review

This essay is intended to provide in brief compass a review of much that is known about the American jury system, including the jury’s historical origins, its political role, controversies over its role and structure, its performance, both absolutely and in comparison to judges and mixed tribunals, and proposals for improving the jury system. The essay is informed throughout by 50 years of research on the jury system, beginning with the 1965 publication of Kalven and Zeisel’s seminal book, The American Jury. The political importance of the jury is seen to lie more in the jury’s status as a one …

Niccolò Machiavelli: Father Of Modern Constitutionalism, Mortimer N.S. Sellers

All Faculty Scholarship

Niccolò Machiavelli is the father of modern constitutionalism. Constitutionalism began anew in the modern world with the study of the ancient republics and it was Machiavelli who inaugurated this revived science of politics. Five hundred years after the composition of Il Principe and the Discorsi we are still working out the implications of applying reason to the structures of law and government in pursuit of justice and the common good. Modern constitutionalism and ancient republicanism share three central beliefs: first, that government should serve justice and the common good; second, that government should do so through known and stable laws; …

Colonialism And Constitutional Memory, Aziz Rana

Cornell Law Faculty Publications

The United States shares a number of basic traits with various British settler societies in the nonwhite world. These include longstanding histories in which colonists and their descendants divided legal, political, and economic rights between insiders and subordinated outsiders, be they expropriated indigenous groups or racial minorities. But Americans rarely think of themselves as part of an imperial family of settler polities and instead generally conceive of the country as quintessentially anti-imperial and inclusive. What explains this fact and what are its political consequences?

This Article offers an initial response, arguing that a significant reason is the symbolic power of …

Finding, Sharing And Risk Of Loss: Of Whales, Bees And Other Valuable Finds In Iceland, Denmark And Norway, William I. Miller, Helle Vogt

Articles

The focus of the paper is twofold: the first part is about how property rights were assigned and ranked in finds, both in those items such as bees, rings and other valuables which were previously owned, and also in those things, like whales, which were unowned. We focus on Icelandic, Danish and Norwegian laws from the twelfth and thirteenth centuries, yet most of the provisions were copied into later laws and were in force up until modern times, some even current now. The second part treats the question of how risks of loss were handled, and how simple forms of …

Dirks And The Genesis Of Personal Benefit, Adam C. Pritchard

Articles

In United States v. Newman, the Second Circuit overturned the insider trading convictions of two hedge fund managers who received material nonpublic information from public companies via an extended tipping chain. The Newman court interpreted the Supreme Court's decision in Dirks v. SEC as requiring that the government prove: (1) that the tippee knew that the tipper was disclosing the information in exchange for a personal benefit; and (2) that if the personal benefit does not involve a quid pro quo to the tipper, that the disclosure arise from a "meaningfully close personal relationship" with the recipient of the …

The Sweeping Domestic War Powers Of Congress, Saikrishna Bangalore Prakash

Michigan Law Review

With the Habeas Clause standing as a curious exception, the Constitution seems mysteriously mute regarding federal authority during invasions and rebellions. In truth, the Constitution speaks volumes about these domestic wars. The inability to perceive the contours of the domestic wartime Constitution stems, in part, from unfamiliarity with the multifarious emergency legislation enacted during the Revolutionary War. During that war, state and national legislatures authorized the seizure of property, military trial of civilians, and temporary dictatorships. Ratified against the backdrop of these fairly recent wartime measures, the Constitution, via the Necessary and Proper Clause and other provisions, rather clearly augmented …

The American Jury System: A Synthetic Overview, Richard O. Lempert

Articles

This essay is intended to provide in brief compass a review of much that is known about the American jury system, including the jury’s historical origins, its political role, controversies over its role and structure, its performance, both absolutely and in comparison to judges and mixed tribunals, and proposals for improving the jury system. The essay is informed throughout by 50 years of research on the jury system, beginning with the 1965 publication of Kalven and Zeisel’s seminal book, The American Jury. The political importance of the jury is seen to lie more in the jury’s status as a one …

Book Review: Jus Et Societas: Essays In Tribute To Wolfgang Friedmann. Eds. G. Wilner & Martinus Nijhoff. The Hague, Boston, London, 1979., Seymour J. Rubin

Georgia Journal of International & Comparative Law

No abstract provided.

The Third Pillar Of Jurisprudence: Social Legal Theory, Brian Z. Tamanaha

William & Mary Law Review

No abstract provided.

The Naming Of Baier Hall And The Jerome Hall Law Library Program

Law School Building

A video of the ceremony can be viewed here.