Legal History Commons^™

Pardon And Parole In Prohibition-Era New York: Discretionary Justice In The Administrative State, Carolyn Strange

Osgoode Hall Law Journal

Historians of early-modern England and British colonies have productively applied Douglas Hay’s germinal study of mercy. In contrast, historians of the United States have overlooked the utility of the conceptual tools Hay provided to prize open the mitigation of punishment across time and place. In the decade that followed the First World War, disputes over the proper role of mercy and administrative discretion were as heated as they were in Hanoverian England. In Jazz Age New York, fears of gangsterism and concern over the apparent laxity of parole regulations put the proponents of Progressive penology on the defensive. This article …

When Wage Theft Was A Crime In Canada, 1935-1955: The Challenge Of Using The Master’S Tools Against The Master, Eric Tucker

Osgoode Hall Law Journal

In recent years the term “wage theft” has been widely used to describe the phenomenon of employers not paying their workers the wages they are owed. While the term has great normative weight, it is rarely accompanied by calls for employers literally to be prosecuted under the criminal law. However, it is a little known fact that in 1935, Canada enacted a criminal wage theft law, which remained on the books until 1955. This article provides an historical account of the wage theft law, including the role of the Royal Commission on Price Spreads, the legislative debates and amendments that …

Promises Of Law: The Unlawful Dispossession Of Japanese Canadians, Eric M. Adams, Jordan Stanger-Ross

Osgoode Hall Law Journal

This article is about the origins, betrayal, and litigation of a promise of law. In 1942, while it ordered the internment of over twenty-one thousand Canadians of Japanese descent, the Canadian government enacted orders in council authorizing the Custodian of Enemy Property to seize all real and personal property owned by Japanese Canadians living within coastal British Columbia. Demands from the Japanese-Canadian community and concern from within the corridors of government resulted in amendments to those orders stipulating that the Custodian held that property as a “protective” trust and would return it to Japanese Canadians at the conclusion of the …

Sex, Race, And Motel Guests: Another Look At King V Barclay, Sarah E. Hamill

Osgoode Hall Law Journal

The 1961 case of King v Barclay is something of a footnote in the history of discrimination against Black Canadians. If it is cited at all, it is usually cited alongside the more famous racism cases, such as Christie v York, as proof of the widespread nature of racism in Canada. In this paper, I re-read the trial decision and examine the original case file to show that the facts of King and the racism in the case are more complex than usually realized. King emerged out of a series of errors from both King and Barclay’s Motel which resulted …

The Changing View Of The “Bystander” In Holocaust Scholarship: Historical, Ethical, And Political Implications, Victoria J. Barnett

Utah Law Review

The role of “bystanders” has been a central theme in discussions about the ethical legacy of the Holocaust. In early Holocaust historiography, “bystander” was often used as a generalized catchall term designating passivity toward Nazi crimes. “Bystander behavior” became synonymous with passivity to the plight of others, including the failure to speak out against injustice and/or assist its victims. More recent scholarship has documented the extent to which local populations and institutions were actively complicit in Nazi crimes, participating in and benefitting from the persecution of Jewish citizens, not only in Germany but across Europe. This newer research has sparked …

The Bystander In The Bible, The Reverend Doctor John C. Lenz Jr.

Utah Law Review

In this study I have set out to investigate the stories that Jews and Christians have told for over two thousand years. Surveying the Biblical literature, I have looked for verses, passages and stories related to the issue of the bystander’s duty to act on behalf of the victim. The issue of a person’s duty to help someone in need and to be proactively engaged on behalf of the most vulnerable is everywhere present in both the Hebrew and Christian scriptures. The Biblical proscriptions are not just suggestions to “do the right thing” but divine ethical demands to action on …

International Military Tribunals’ Genesis, Wwii Experience, And Future Relevance, Henry Korn

Utah Law Review

Years after the prosecution of Nazi and Japanese war criminals, the United Nations created an International Criminal Tribunal as part of its commitment to bring to justice persons engaged in war crimes, as those crimes were defined during the WWII proceedings. Ultimately, specific tribunals, organized by the United Nations, were created to bring to justice war criminals. In 1993, a tribunal was formed to prosecute former Yugoslav officials and military personnel for atrocities committed during what is known as the Yugoslav wars. In 1994, a tribunal was formed to prosecute officials in Rwanda for evidence of ethnic genocides. There is …

Examining The Role Of Law Of War Training In International Criminal Accountability, Laurie R. Blank

Utah Law Review

Training and dissemination of the fundamental rules and principles of law of armed conflict (LOAC) is the first step in any process to ensure lawful military operations. A soldier, a military unit, an entire military must know the rules and parameters for appropriate, lawful and effective action during armed conflict. In the same manner, accountability for violations of LOAC — whether individual criminal accountability or state responsibility — is an equally essential tool for enforcing the law. Exploring the intersection between these two endpoints of the spectrum of LOAC implementation highlights how training and accountability can actually work together to …

Masking Neo-Liberal Development: Polanyi, Rule Of Law And Dis-Embedding Dynamics, Mark Findlay

Research Collection Yong Pung How School Of Law

Purpose: Polanyi in his analysis of market dis-embedding suggests a drift in economic relations from the social to the fictitious. The purpose of this paper is to add two crucial components to the dis-embedding dynamic: rule of law discourse as a market force away from the social, and through suspension of imagination and of disbelief, the incongruous compatibility of actual and fictional markets that further works against embedding.Design/methodology/approach: Theory building through the application and testing of the Polanyian market dis-embedding analysis is a central concern for the paper. Through the example of foreign direct investment (FDI) and the manner in …

The Hounds Of Empire: Forensic Dog Tracking In Britain And Its Colonies, 1888-1953, Binyamin Blum

Faculty Scholarship

No abstract provided.

Today's Porn: Not A Constitutional Right; Not A Human Right, Patrick Trueman

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Philosophical Legal Ethics: An Affectionate History, David Luban, W. Bradley Wendel

Georgetown Law Faculty Publications and Other Works

The modern subject of theoretical legal ethics began in the 1970s. This brief history distinguishes two waves of theoretical writing on legal ethics. The “First Wave” connects the subject to moral philosophy and focuses on conflicts between ordinary morality and lawyers’ role morality, while the “Second Wave” focuses instead on the role legal representation plays in maintaining and fostering a pluralist democracy. We trace the emergence of the First Wave to the larger social movements of the 1960s and 1970s; in the conclusion, we speculate about possible directions for a Third Wave of theoretical legal ethics, based in behavioral ethics, …

It Can't Wait: Exposing The Connections Between Forms Of Sexual Exploitation, Dawn Hawkins

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

China's 'Corporatization Without Privatization' And The Late 19th Century Roots Of A Stubborn Path Dependency, Nicholas C. Howson

Law & Economics Working Papers

This Article analyzes the contemporary program of “corporatization without privatization” in the People’s Republic of China (PRC) directed at China’s traditional state-owned enterprises (SOEs) through a consideration of long ago precursor enterprise establishments—starting from the last Chinese imperial dynasty’s creation of “government promoted/supervised-merchant financed/operated” (guandu shangban) firms in the latter part of the nineteenth century. While analysts are tempted to see PRC corporations with listings on international exchanges that dominate the global economy and capital markets as expressions of “convergence,” this Article argues that such firms in fact show deeply embedded aspects of path dependency unique to the Chinese context …

Text Of Solicitor Opinions And A Presidential Letter Regarding National Monuments And The Antiquities Act Of 1906, Mark Squillace

Research Data

These five full-text documents are cited in Mark Squillace, The Monumental Legacy of the Antiquities Act of 1906, 37 Ga. L. Rev. 473 (2003), available at http://scholar.law.colorado.edu/articles/508; and/or Mark Squillace, Eric Biber, Nicholas S. Bryner & Sean B. Hecht, Presidents Lack the Authority to Abolish or Diminish National Monuments, 103 Va. L. Rev. Online 55 (2017), http://www.virginialawreview.org/sites/virginialawreview.org/files/Hecht%20PDF.pdf:

• U.S. Department of the Interior, Office of the Solicitor, Opinion of Apr. 20, 1915 (cited in Opinion of January 30, 1935, M-27657).

• U.S. Department of the Interior, Office of the Solicitor, Opinion of June 3, 1924, M-12501, M-12529 (cited …

The Legacy Of Slavery And The Continued Marginalization Of Communities Of Color Within The Legal System, Julia N. Alvarez

Dissertations, Theses, and Capstone Projects

The aim of this thesis paper is to demonstrate how the history of slavery in the United States continues to marginalize communities of color. The history of slavery in America was the result of various factors. Some of these factors included but were not limited to; economic, legal, and social. Slavery provided a reliable and self-reproducing workforce. The laws enacted during slavery ensured the continuation of the social order of the time. This social order was based on the generalized understanding that blacks were born into servitude. Those born into slavery were not given the same legal or economic status …

Adverse Interests And Article Iii: A Reply, James E. Pfander, Daniel Birk

Northwestern University Law Review

Scholars and jurists have long sought an explanation for why the Framers of Article III distinguished “Cases” from “Controversies.” In a previous article that cataloged the exercise of federal jurisdiction over uncontested matters, such as pension claims, warrant applications, and naturalization proceedings, we tried to provide an answer to this question. We suggested that, at least as to “cases” arising under federal law, the federal courts could exercise what Roman and civil lawyers called non-contentious jurisdiction or, in the words of Chief Justice Marshall, could hear uncontested claims of right in the form prescribed by law. As for “controversies,” by …

"The Engine Of Free Expression": The Political Economy Of Copyright In The Colonial British Atlantic And Early National United States, Nora Slonimsky

Dissertations, Theses, and Capstone Projects

In 1985, the Supreme Court of the United States concluded that copyright was included in the Constitution in order to serve as the “engine of free expression.” By providing economic incentive to drive artistic and scientific innovation, the nation received essential information and other tools of learning necessary to make sound political decisions. However, transnational copyright disputes, then and now, frequently resulted in complex and often contradictory understandings of free expression. The formation of copyright in America was thus a far more complex story, and it is that story that forms the basis of this project.

Amidst the many moving …

Emotions In The Early Common Law (C. 1166–1215), John Hudson

Articles

Beyond dealing with wrongdoing and litigation, law has many other functions. It can be designed to make life more predictable, it can facilitate and promote certain actions, it can seek to prevent disputes by laying down rules, and provide routes to solutions other than litigation should disputes arise. All of these can have connections to matters of emotion. Using both lawbooks and records of cases from the Angevin period, the present article begins by looking at issues of land law rather than crime, and at law outside rather than inside court. It then returns to crime and litigation before exploring …

An American Oddity: The Law, History, And Toll Of The School District, Nadav Shoked

Northwestern University Law Review

The school district is a staple of American law. As the local government tasked with controlling our public schools, the school district is so well-entrenched that lawmakers and commentators ignore its uniqueness as a legal institution. The school district is peculiar to American law, and it is a peculiarity within American law. General purpose governments—cities and counties—are the local governments controlling schools outside the United States. In the United States itself, these governments control almost all other major local functions. But they do not control education here. Why? Why does American law rely on a separate local government for the …

Adverse Interests And Article Iii, Ann Woolhandler

Northwestern University Law Review

In an important article in the Yale Law Journal, James Pfander and Daniel Birk claim that adverseness is not required by Article III for cases arising under federal law. This Article takes the position that Pfander and Birk have not made the case for reconsidering adversity requirements for Article III cases. Adverseness may be present when there is adversity of legal interests, even when adverse argument is not present. From this perspective, a number of Pfander and Birk’s examples of non-contentious jurisdiction manifested adverseness. In rem-type proceedings such as bankruptcy and prize cases required the determination of adverse interests, …

Morality, Law, And Judicial Ethics In The Western Legal Tradition, Mortimer N.S. Sellers

All Faculty Scholarship

No abstract provided.

A Court Pure And Unsullied: Justice In The Justice Trial At Nuremberg, Stephen J. Sfekas

University of Baltimore Law Review

In the immediate aftermath of World War II, the common understanding was that the Nazi regime had been maintained by a combination of instruments of terror, such as the Gestapo, the SS, and concentration camps, combined with a sophisticated propaganda campaign. Modern historiography, however, has revealed the critical importance of the judiciary, the Justice Ministry, and the legal profession to maintaining the stability of the regime.

As an example, although the number of persons confined to concentration camps from 1933 to 1934 rose to as many as 100,000 people, most were quickly released. The number of concentration camp inmates thereafter …

Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel

Faculty Scholarship

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …

Drawing Lines Of Sovereignty: State Habeas Doctrine And The Substance Of States' Rights In Confederate Conscription Cases, Withrop Rutherford

University of Richmond Law Review

No abstract provided.

Telling A Story, Changing The World: California Rural Legal Assistance, Jonathan J. Chavez

Capstone Projects and Master's Theses

This capstone project attempts to provide an in-depth view of how stories influence change in our lives as well as in the field of law.

From Grace To Grids: Rethinking Due Process Protections For Parole., Kimberly A. Thomas, Paul D. Reingold

Articles

Current due process law gives little protection to prisoners at the point of parole, even though the parole decision, like sentencing, determines whether or not a person will serve more time or will go free. The doctrine regarding parole, which developed mostly in the late 1970s, was based on a judicial understanding of parole as an experimental, subjective, and largely standardless art—rooted in assessing the individual “character” of the potential parolee. In this Article we examine the foundations of the doctrine, and conclude that the due process inquiry at the point of parole should take into account the stark changes …

Female Autonomy: An Analysis Of Privacy And Equality Doctrine For Reproductive Rights, Elizabeth Levi

Political Science Honors Projects

What is the constitutional basis for women’s equality? Recently, scholars have suggested that as the right to privacy has floundered against the political undoing of women's access to abortion, equal protection arguments have grown stronger. This thesis investigates the feminist utility and limits of the equality and privacy arguments. Taking liberal feminism and feminist legal theory as analytical lenses, I offer interpretations of gender discrimination, reproductive rights, and marriage equality case law. By this framework, I argue that while an equality argument is less inherently oppressive towards women than the privacy doctrine, equality doctrine has been constructed thus far to …

Grassy Knoll Shots? Limousine Slowdown?, Donald E. Wilkes Jr.

Popular Media

This article reviews the book Twenty-six Seconds by Alexandrea Zapruder. It also questions whether the only film of the JFK assassination was altered by the CIA.

The Vice Presidency In Five (Sometimes) Easy Pieces, Vikram David Amar

Pepperdine Law Review

The public perception of the Vice President is that of an individual with little actual authority, but who has the potential to be thrust into the most powerful office in the world. But the modern Vice President has additional responsibilities that many often forget. Contrary to public perception, the Vice President’s role as President of the Senate carries important Constitutional responsibilities, such as the ability to weigh-in with tie-breaking votes in the Senate or preside over impeachment trials. Though overlooked, these are important and powerful responsibilities. Additionally, the Vice President has assumed the role of Presidential “running mate” and with …