Legal History Commons^™

Apple Of Gold And Picture Of Silver: How Abraham Lincoln Would Analyze The Fourteenth Amendment's Equal Protection Clause, Frank J. Williams, William D. Bader, Andrew Blais

Roger Williams University Law Review

No abstract provided.

Law Library Blog (January 2017): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Blue Lives Have Always Mattered: The Usurping Of Hate Crime Laws For An Unintended And Unnecessary Purpose, Lisa M. Olson

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

The Persistence Of Memory: The Continuing Influence Of Antebellum Missouri Laws Regarding African Americans, Roy Dripps

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Administrative Dissents, Sharon B. Jacobs

Publications

Commissioners, like judges, dissent. They do so at length, with vigor, and with persistence. Yet while separate judicial decisions are the subject of a rich literature, their administrative counterparts have long languished in obscurity. A closer look is warranted, however, because studying administrative dissent can enhance our understanding of internal agency operations as well as the relationships between agencies and other actors. This Article presents the results of an original review of separate statements at the Federal Energy Regulatory Commission and the Nuclear Regulatory Commission dating back four decades. It uses these findings to move beyond two common generalizations about …

Government Speech And The War On Terror, Helen Norton

Publications

The government is unique among speakers because of its coercive power, its substantial resources, its privileged access to national security and intelligence information, and its wide variety of expressive roles as commander-in-chief, policymaker, educator, employer, property owner, and more. Precisely because of this power, variety, and ubiquity, the government's speech can both provide great value and inflict great harm to the public. In wartime, more specifically, the government can affirmatively choose to use its voice to inform, inspire, heal, and unite -- or instead to deceive, divide, bully, and silence.

In this essay, I examine the U.S. government's role as …

Book Review, Anna Spain Bradley

Publications

No abstract provided.

Book Review, Lea Vaughn

Book Reviews

This review essay will proceed in three parts followed by a conclusion that assesses the success and contribution of her work. The first section sketches her approach to legal history and her point of view. Professor Blumenthal takes on the monumental task of challenging the received wisdom of legal historians such as Willard Hurst.

Second, this review will paint a condensed portrait of Blumenthal’s methodology. Her book and its underlying analysis draw on a breathtaking base of source materials: Hundreds of cases, treatises, and biographical notes are woven into her observations. The careful depiction and analysis of these materials is …

Race, Rhetoric, And Judicial Opinions: Missouri As A Case Study, Brad Desnoyer, Anne Alexander

Faculty Works

This Essay studies the relationship between race, rhetoric, and history in three twentieth century segregation cases: State ex rel. Gaines v. Canada, Kraemer v. Shelley, and Liddell v. Board of Education. Part I gives a brief overview of the scholarship of Critical Race Theory, majoritarian narratives and minority counter-narratives, and the judiciary’s rhetoric in race-based cases. Part II analyzes the narratives and language of Gaines, Kraemer, and Liddell, provides the social context of these cases, and traces their historical outcomes.

The Essay contends that majoritarian narratives with problematic themes continue to perpetuate even though court opinions have evolved to use …

A Challenge To Bleached Out Professional Identity: How Jewish Was Justice Louis Brandeis?, Russell G. Pearce, Adam B. Winer, Emily Jenab

Faculty Scholarship

As an exemplar, Justice Louis D. Brandeis challenges the currently dominant conception that requires lawyers to, in Sanford Levinson's term, "bleach out" their personal identity from their professional identity. Under the dominant neutral partisan vision of the lawyer, clients will only receive the equal representation necessary to provide equal justice if lawyers exclude all personal and group identifications from their role. Brandeis, in contrast, asserted that his Jewish identity constructed his understanding of himself as a jurist. His distinguished career thereby provides a counter-narrative to bleaching-out that can serve as a model for all lawyers, whatever their personal and group …

The Nuremberg Trials: A Summary Introduction, John Q. Barrett

Faculty Publications

No abstract provided.

Legacies Of Nuremberg, John Q. Barrett

Faculty Publications

(Excerpt)

I am very grateful to the leaders and sponsoring organizations that have brought the Dialogs together for ten years, particularly this year in this very special place. I also thank, humbly, Germany and Nuremberg. We are seventy years out from a Nuremberg trial process that was filled with participants who could not have imagined the Germany, the Nuremberg city of human rights, and their sponsorship and teaching, that we all are beneficiaries of today. It is to the great credit of today's generations of German leaders that they have built this Nuremberg.

My topic, "The Legacy of Nuremberg," is …

The Judicial Legacy Of Louis Brandeis And The Nature Of American Constitutionalism, Edward A. Purcell Jr.

Articles & Chapters

No abstract provided.

The Josiah Philips Attainder And The Institutional Structure Of The American Revolution, Matthew J. Steilen

Journal Articles

This Article is a historical study of the Case of Josiah Philips. Philips led a gang of militant loyalists and escaped slaves in the Great Dismal Swamp of southeastern Virginia during the American Revolution. He was attainted of treason in 1778 by an act of the Virginia General Assembly, tried for robbery before a jury, convicted and executed. For many years, the Philips case was thought to be an early example of judicial review, based on a claim by St. George Tucker that judges had refused to enforce the act of attainder. Modern research has cast serious doubt on Tucker’s …

Franklin Delano Roosevelt As Lord Of The Admiralty 1913-1920, Joseph Sweeney

Faculty Scholarship

No abstract provided.

Living The Dream Of Adr: Reflections On Four Decades Of The Quiet Revolution In Dispute Resolution, Thomas J. Stipanowich

Cardozo Journal of Conflict Resolution

In the forty years since Chief Justice Warren Burger and Harvard Professor Frank Sander offered new visions and challenges for the administration of American justice at the 1976 Pound Conference, a Quiet Revolution in "ADR" has altered the landscape of public and private dispute resolution around the world. Its impact has been felt in the empowerment of individuals to intervene more effectively in conflict of all kinds for the betterment of disputing parties, of institutions, and society at large. It has inspired multitudes of local, regional, national, and international initiatives and fed into diverse realms of discourse, including public engagement, …

Dispute System Design And The Global Pound Conference, Lisa Blomgren Amsler

Cardozo Journal of Conflict Resolution

Since Roscoe Pound's famous 1906 speech to the American Bar Association on popular dissatisfaction with the administration of justice, the field of dispute resolution has taken up his cause. Frank Sander's speech at the 1976 Pound Conference marked a turning point in the field's growth and development within the United States. This symposium on its 40th Anniversary also marks a turning point: the globalization of alternative or appropriate dispute resolution ("ADR") in all its forms, in person and online, within and across national boundaries.

The History And Legacy Of The Pound Conferences, Lara Traum, Brian Farkas

Cardozo Journal of Conflict Resolution

In light of the GPC, it is useful to take a brief step back to consider the legacy of self-reflection that brings the field to this exciting moment. As we reflect, we find ourselves facing new challenges and raising new questions about the direction of alternative dispute resolution ("ADR") in the 21st century. In this Article, Sections II and III will introduce the "Framers" of the ADR industry's "Constitution," and Section IV will evaluate their 100-year legacy and consider the extent to which it now needs further amendments.

Rwanda And The Kigali International Arbitration Centre: The Future Faces Of East African Arbitration And Growth, Jeremy Cantor

Cardozo Journal of Conflict Resolution

Part I is a brief introduction to the Note. Part II is a brief background of Rwandan history and the country's push for economic growth. Furthermore, Part II elaborates on the history, the current status of Rwanda's judicial system, and on the KIAC. Part III explains why arbitration is fitting for Africa as a whole and why it is more fitting for East Africa specifically. In particular, the Note explains why Kigali is the proper choice of seat6 and KIAC the proper institution, and analyzes certain problems preventing the growth of African arbitration. Lastly, Part IV proposes how to effectuate …

Trade Association, State Building, And The Sherman Act: The U.S. Chamber Of Commerce, 1912-25, Laura Phillips Sawyer

Scholarly Works

The U.S. Chamber of Commerce (USCC), and "organization of organizations," was conceived in 1912 in coordination with administrators at the Department of Commerce and Labor to promote the collection of commercially valuable trade information. A critical though often neglected, aspect of administrative state building has been the information-gathering and dissemination practices spearheaded by the Department of Commerce and later the Federal Trade Commission (FTC) in conjunction with the USCC. Rather than a strictly adversarial relationship, in the early twentieth century business-government relations created mutually constitutive administrative capacities in both private trade associations and public administrative agencies.

Unlawful Assembly As Social Control, John D. Inazu

Scholarship@WashULaw

Recent public protests from Occupy to Ferguson have highlighted anew the offense of unlawful assembly. This Article advances the simple but important thesis that contemporary approaches to unlawful assembly cede too much discretion to law enforcement. Too many unlawful assembly provisions neglect important elements of earlier statutory formulations. They also ignore constitutional principles meant to constrain the scope and extent of discretionary enforcement of social control by public authorities. In doing so, they fall short of the aspirations of the First Amendment — stifling dissent, muting expression, and ultimately weakening the democratic experiment. We can do better. We can start …

Business Income And Business Taxation In The United States Since The 1950s, Conor Clarke, Wojciech Kopczuk

Scholarship@WashULaw

In theory, the U.S. tax system aims to attribute and tax all business income to individuals. But the tax treatment of this income varies. Pass-through income is taxed when earned; capital-gains income is taxed when realized; dividends when distributed; other forms of business income may escape taxation entirely. Business owners often have control over the timing and character of their income: They can often choose, for example, between reporting business income or deducting it as wages or fringe benefits. And laws change, changing the incentive and ability to shift income between the individual and corporate sectors.We integrate a wide variety …

The Other Rights Revolution: Conservative Lawyers And The Remaking Of American Government (Book Review), Michael Ariens

Faculty Articles

No abstract provided.

Panel 2: Comic Book Jurisprudence With Q&A, Karen Berger, Lillian Laserson, Paul Levitz, Robert Sikoryak, Brett Frischmann

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Toward A History Of The Democratic State, William J. Novak, Stephen W. Sawyer, James T. Sparrow

Articles

Over the past generation, the history of the state has been experiencing a much-noted renaissance, especially in France and the United States. In the United States as late as 1986, Morton Keller complained to William Leuchtenburg in the Journal of American History: “To say that ‘there is much still to be learned about the nature of the State in America’ is … a major understatement. There is close to everything to be learned about the State.” In France as late as 1990, Pierre Rosanvallon’s powerful introduction to L’État en France suggested that an ambitious history of the state could not …

One Country, Two Systems: Hong Kong's Unique Status And The Development And Growth Of Arbitration In China, Jiali (Keli) Huang

Cardozo Journal of Conflict Resolution

This Note evaluates the future of arbitration in China and Hong Kong as the two approach their twentieth year working toward reunification under the implications of the "one country, two systems" model, which was implemented in Hong Kong when Hong Kong's sovereignty was transferred back to China in 1997. First, this Note explains Hong Kong's unique identity, the factors that triggered the Umbrella Movement and the Fishball Revolution, and Hong Kong's current relationship with China. Second, this Note provides a broad overview of the development of arbitration in China. Third, this Note describes the arbitral history between China and Hong …

Fear And Firearms, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Is Miranda Good News Or Bad News For The Police: The Usefulness Of Empirical Evidence, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The U.S. Supreme Court’s landmark case of Miranda v. Arizona created a culture in which police officers regularly warn arrestees that they have a right to remain silent, that anything they say can and will be used against them in a court of law, that they have the right to an attorney, and that if they cannot afford one, an attorney will be appointed to them. These Miranda warnings have a number of possible effects. The warnings are meant to inform suspects about negative consequences associated with speaking to the police without the assistance of counsel. In this sense they …

Vital Tissues Of The Spirit: Constitutional Emotions In The Antebellum United States, Doni Gewirtzman

Articles & Chapters

This Chapter provides a framework for examining the ambivalent and reciprocal relationship between emotions and constitutional law through three interrelated lenses: text, instrument, and symbol. In the years before the Civil War, discourse about feelings impacted institutional struggles for interpretive supremacy over the constitutional text, affected the Constitution’s ability to function as a legal mechanism for emotion management, and shaped its status as a national symbol.

The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux

Publications

The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.

First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases. …