Legal History Commons^™

The Support-Or-Advocacy Clauses, Richard Primus, Cameron O. Kistler

Articles

Two little known clauses of a Reconstruction-era civil rights statute are potentially powerful weapons for litigators seeking to protect the integrity of federal elections. For the clauses to achieve their potential, however, the courts will need to settle correctly a contested question of statutory interpretation: do the clauses create substantive rights, or do they merely create remedies for substantive rights specified elsewhere? The correct answer is that the clauses create substantive rights.

Thurgood Marshall In Tennesee: His Defense Of Accused Rioters, His Near-Miss With A Lynch Mob, David L. Hudson Jr.

Law Faculty Scholarship

n “Thurgood Marshall in Tennessee: His Defense of Accused Rioters, His Near-Miss with a Lynch Mob,” David L. Hudson Jr. examines a pivotal yet lesser-known episode in the early career of Thurgood Marshall arising from the 1946 Columbia Race Riot in Columbia, Tennessee. The article recounts how a dispute between an African-American Navy veteran and a white store employee escalated into racial violence, mass arrests of more than 100 African Americans, and sweeping law enforcement actions in the Black community. Marshall, working alongside attorneys Z. Alexander Looby, Maurice Weaver, and others, joined the defense of 25 African-American men charged with …

Man’S Best Friend? How Dogs Have Been Used To Oppress African Americans, Shontel Stewart

Michigan Journal of Race and Law

The use of dogs as tools of oppression against African Americans has its roots in slavery and persists today in everyday life and police interactions. Due to such harmful practices, African Americans are not only disproportionately terrorized by officers with dogs, but they are also subject to instances of misplaced sympathy, illsuited laws, and social exclusion in their communities. Whether extreme and violent or subtle and pervasive, the use of dogs in oppressive acts is a critical layer of racial bias in the United States that has consistently built injustices that impede social and legal progress. By recognizing this pattern …

Burying Mcculloch?, David S. Schwartz

Arkansas Law Review

Kurt Lash is a superb constitutional historian trapped inside the body of an originalist. He is one of the few originalists bold enough to acknowledge that McCulloch v. Maryland needs to be ejected from the (conservative) originalist canon of great constitutional cases. While he attributes to me an intention “not to praise the mythological McCulloch, but to bury it,” it is Lash who seeks to bury McCulloch, which he views as a fraudulent “story of our constitutional origins.”

Mcculloch V. Madison: John Marshall's Effort To Bury Madisonian Federalism, Kurt Lash

Arkansas Law Review

In his engaging and provocative new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David S. Schwartz challenges McCulloch’s canonical status as a foundation stone in the building of American constitutional law. According to Schwartz, the fortunes of McCulloch ebbed and flowed depending on the politics of the day and the ideological commitments of Supreme Court justices. Judicial reliance on the case might disappear for a generation only to suddenly reappear in the next. If McCulloch v. Maryland enjoys pride of place in contemporary courses on constitutional law, Schwartz argues, then this …

What Is "Appropriate" Legislation?: Mcculloch V. Maryland And The Redundancy Of The Reconstruction Amendments, Franita Tolson

Arkansas Law Review

I am thankful for the opportunity to review Professor David Schwartz’s really thoughtful and incisive critique of McCulloch v. Maryland. The book is a creative and masterful reinterpretation of a decision that I thought I knew well, but I learned a lot of new and interesting facts about McCulloch and the (sometimes frosty) reception that the decision has received over the course of the last two centuries. Professor Schwartz persuasively argues that modern views of McCulloch as a straightforward nationalist decision that has always had a storied place in the American constitutional tradition are flat-out wrong. The Spirit of the …

Mcculloch And The American Regime, Mark A. Graber

Arkansas Law Review

Professor David S. Schwartz’s magnificent The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland explicitly challenges how we teach government powers in first weeks or semester of constitutional law and implicitly challenges how we teach civil rights and liberties in later weeks or second semester of constitutional law. Contrary to the impression given in many classes on the constitutional law of national powers, no straight line exists from the Marshall opinion in McCulloch v. Maryland to the New Deal and beyond. Schwartz meticulously details how, for two-hundred years, different aspects of McCulloch have been …

Marshalling Mcculloch, Richard Primus

Arkansas Law Review

David Schwartz’s terrific new book is subtitled John Marshall and the 200-Year Odyssey of McCulloch v. Maryland. But the book is about much more than Marshall and McCulloch. It’s about the long struggle over the scope of national power. Marshall and McCulloch are characters in the story, but the story isn’t centrally about them. Indeed, an important part of Schwartz’s narrative is that McCulloch has mattered relatively little in that struggle, except as a protean symbol.

Does Importance Equal Greatness? Reflections On John Marshall And Mcculloch V. Maryland, Sanford Levinson

Arkansas Law Review

David S. Schwartz’s The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, is a truly excellent book, for which I was happy to contribute the following blurb appearing on the back jacket: "David Schwartz has written an indispensable study of the single most important Supreme Court case in the canon. As such, he delineates not only the meaning and importance of the case in 1819, but also the use made of it over the next two centuries as it became a central myth and symbol of the very meaning of American constitutionalism.”

Mcculloch's "Perpetually Arising" Questions, David S. Schwartz

Arkansas Law Review

I’m truly honored to have my book be the subject of a symposium on Balkinization, and I’m deeply grateful to Jack Balkin and John Mikhail for organizing and hosting it. Among its many gratifications for me personally, the symposium guaranteed that at least eight people would read the book. That these readers have engaged with it so closely and insightfully is icing on the cake. My first article on McCulloch four years ago, which became the basis for a couple of the early chapters in the book, insisted that McCulloch was properly interpreted as far less nationalistic than we were …

Scholarship In Review: A Response To David S. Schwartz's The Spirit Of The Constitution: John Marshall And The 200-Year Odyssey Of Mcculloch V. Maryland, Law Review Editors

Arkansas Law Review

We are elated to introduce, and the Arkansas Law Review is honored to publish, this series discussing and applauding David S. Schwartz’s new book: The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland. Schwartz sets forth meticulous research, coupled with unparalleled insight, into the opinion penned by Chief Justice John Marshall and details the winding path Marshall’s words have traveled over the past 200 years. Schwartz argues that the shifting interpretations of McCulloch, often shaped to satisfy the needs of the time, echoes the true spirit of the Constitution.

Freedom Of Expression Within The Schoolhouse Gate, Justin Driver

Arkansas Law Review

In the late 1960s, the Supreme Court began contemplating how the First Amendment’s commitment to “the freedom of speech” should protect the right of students to introduce their own ideas into the schoolhouse. This constitutional question extended well beyond the matter addressed in West Virginia State Board of Education v. Barnette, because that opinion—momentous though it was—held simply that students could refuse to recite the Pledge of Allegiance. But Barnette did not establish that students possessed an affirmative right to advance their own opinions, on topics of their own selection, much less in the face of school officials’ objections. The …

Comments On Mcgahn "A Brief History Of Judicial Appointments From The Last 50 Years Through The Trump Administration", Russell Wheeler

William & Mary Law Review Online

Donald McGahn is a respected member of the Washington D.C. legal community, known especially for his expertise in election law. He served as White House counsel in the Trump administration until October 2018 and was a key player in the Trump administration’s judicial appointments process.His article is witty, sometimes revealing, but above all a description, as he sees it, of the decades-long deterioration of the process for Senate confirmation of federal judicial nominees, with some blame assigning. He also provides a few behind-the-scenes looks at Trump administration confirmation battles, and some recommendations for easing contentiousness in— or at least, speeding …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Securities Regulation And Social Media, Seth C. Oranburg

Law Faculty Scholarship

Federal securities regulation originally divided corporate finance into two neat categories, public and private. In 1933, private financing was limited to “sophisticated” investors but otherwise lightly regulated. Public financing became heavily regulated. In 1982, the SEC introduced Reg D, which introduced the concept of “general solicitation” to clarify the distinction between public and private offerings. Reg D is well understood to prohibit newspaper advertisements and permit direct solicitations to venture capital investors. This enabled great wealth consolidation in regions like Silicon Valley while effectively banning general solicitations in private offerings.

Now, social media communication challenges the definition of “general solicitation.” …

Designing Analog Learning Games: Genre Affordances, Limitations And Multi-Game Approaches, Owen Gottlieb, Ian Schreiber

Articles

This chapter explores what the authors discovered about analog games and game design during the many iterative processes that have led to the Lost & Found series, and how they found certain constraints and affordances (that which an artifact assists, promotes or allows) provided by the boardgame genre. Some findings were counter-intuitive. What choices would allow for the modeling of complex systems, such as legal and economic systems? What choices would allow for gameplay within the time of a class-period? What mechanics could promote discussions of tradeoff decisions? If players are expending too much cognition on arithmetic strategizing, could that …

Les Deux Constitutions De John Marshall : Une Relecture De L’Arrêt Marbury V. Madison, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

Herein Of 'Herein Granted': Why Article I'S Vesting Clause Does Not Support The Doctrine Of Enumerated Powers, Richard A. Primus

Articles

Article I of the United States Constitution begins as follows: “All legislative Powers herein granted shall be vested in a Congress of the United States[.]” That text is sometimes called the Vesting Clause, or, more precisely, the Article I Vesting Clause, because Articles II and III also begin with Vesting Clauses. And there is a feature of those three clauses, when compared, to which twenty-first century constitutional lawyers commonly attribute considerable significance. Although the three Clauses are similar in other ways, the syntax of Article I’s Vesting Clause is not fully parallel to that of the other two. The Vesting …

Law School News: Judge Rogeriee Thompson, Legal Pioneer Dorothy Crockett Among Influential "Women Of The Century" 08/19/2020, Eryn Dion, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Discerning A Dignitary Offense: The Concept Of Equal 'Public Rights' During Reconstruction, Rebecca J. Scott

Articles

The mountain of modern interpretation to which the language of the Fourteenth Amendment of the United States Constitution has been subjected tends to overshadow the multiple concepts of antidiscrimination that were actually circulating at the time of its drafting. Moreover, as authors on race and law have pointed out, Congress itself lacked any African American representatives during the 1866–68 moment of transitional justice. The subsequent development of a “state action doctrine” limiting the reach of federal civil rights enforcement, in turn, eclipsed important contemporary understandings of the harms that Reconstruction-era initiatives sought to combat. In contrast to the oblique language …

Marshaling Mcculloch, Richard A. Primus

Reviews

David Schwartz’s terrific new book is subtitled John Marshall and the 200-Year Odyssey of McCulloch v. Maryland. But the book is about much more than Marshall and McCulloch. It’s bout the long struggle over the scope of national power. Marshall and McCulloch are characters in the story, but the story isn’t centrally about them. Indeed, an important part of Schwartz’s narrative is that McCulloch has mattered relatively little in that struggle, except as a protean symbol.

Is Solitary Confinement A Punishment?, John F. Stinneford

Northwestern University Law Review

The United States Constitution imposes a variety of constraints on the imposition of punishment, including the requirements that the punishment be authorized by a preexisting penal statute and ordered by a lawful judicial sentence. Today, prison administrators impose solitary confinement on thousands of prisoners despite the fact that neither of these requirements has been met. Is this imposition a “punishment without law,” or is it a mere exercise of administrative discretion? In an 1890 case called In re Medley, the Supreme Court held that solitary confinement is a separate punishment subject to constitutional restraints, but it has ignored this …

Winks, Whispers, And Prosecutorial Discretion In Rural Iowa, 1925-1928, Emily Prifogle

Articles

Through the eyes of Charles Pendleton’s memoirs, this article walks through a rural community with a county attorney to consider how race, religion, gender, and sexuality influenced rural prosecutorial discretion in the early twentieth century. Rural communities like those in Buena Vista County, Iowa, where the article is centered, experienced “the law” through distinctly isolated geographies and social networks that lacked anonymity and thus shaped available methods of conflict resolution. But anonymity did not mean homogeneity. Ethnic, racial, and religious diversity created divisions within a community where social distance between individuals was small. Both onymity and diversity shaped who should …

Flexibly Fluid & Immutably Innate: Perception, Identity, And The Role Of Choice In Race, Emily Lamm

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

A More Perfect Union: The Emoluments Clause, Grant C. Rasak

Pepperdine Law Review

America’s Framers crafted the Emoluments Clause to preserve institutional integrity, mitigate undue influences, and best serve the American People. The Emoluments Clause influenced the course of the Constitutional Convention, as the Pennsylvania Delegation championed resolute reforms. Benjamin Franklin, working alongside James Wilson, advocated for strengthening domestic and international practices by crafting the Emoluments Clause. The Framers proposed a system of self-government which sought to establish public trust, mitigate corrupt practices, and promote institutional integrity. The Pennsylvania Delegation summoned Wilson, under the tutelage of Franklin, to champion the Emoluments Clause. Wilson proposed a new notion of national unity by placing profound …

"She Was Surprised And Furious": Expatriation, Suffrage, Immigration, And The Fragility Of Women's Citizenship, 1907-1940, Felice Batlan

All Faculty Scholarship

This article stands at the intersection of women’s history and the history of citizenship, immigration, and naturalization laws. The first part of this article proceeds by examining the general legal status of women under the laws of coverture, in which married women’s legal existence was “covered” by that of their husbands. It then discusses the 1907 Expatriation Act, which resulted in women who were U.S. citizens married to non-U.S. citizens losing their citizenship. The following sections discuss how suffragists challenged the 1907 law in the courts and how passage of the Nineteenth Amendment—and with it a new concept of women’s …

Flipping The Script On Brady, Ion Meyn

Indiana Law Journal

Brady v. Maryland imposes a disclosure obligation on the prosecutor and, for this

reason, is understood to burden the prosecutor. This Article asks whether Brady also

benefits the prosecutor, and if so, how and to what extent does it accomplish this?

This Article first considers Brady’s structural impact—how the case influenced

broader dynamics of litigation. Before Brady, legislative reform transformed civil

and criminal litigation by providing pretrial information to civil defendants but not

to criminal defendants. Did this disparate treatment comport with due process?

Brady arguably answered this question by brokering a compromise: in exchange for

imposing minor obligations on …

Chevron As Construction, Lawrence B. Solum, Cass R. Sunstein

Faculty Scholarship

In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. In cases that involve statutory construction, the argument on …

Boldly Marching Through Closed Doors: The Experiences Of The Earliest Female Attorneys In Their Own Words, Nicole P. Dyszlewski

Law Faculty Scholarship

No abstract provided.

History Of The First Women Project, Nicole P. Dyszlewski

Law Faculty Scholarship

No abstract provided.