Legal History Commons^™

Court Packing Is A Chimera, Brian L. Frye

Cardozo Law Review

The dream of the 1930s is alive in Washington. Democrats see Republicans hemorrhaging voters as Trump struggles with the economy and the pandemic and are salivating at the prospect of retaking not only the White House, but also the Senate. Of course, you should never sell a bearskin until you’ve caught the bear. But even a blowout victory can’t get Democrats the prize they really want, a Supreme Court majority. So, in back-to-the-future fashion, many progressives are pushing the idea of court packing. After all, in politics, rules are made to be broken.

Against Court Packing, Or A Plea To Formally Amend The Constitution, Jill M. Fraley

Cardozo Law Review

No abstract provided.

The Case Of The Dishonest Scrivener: Gouverneur Morris And The Creation Of The Federalist Constitution, William Michael Treanor

Michigan Law Review

At the end of the Constitutional Convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the Convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the Committee, and, with few revisions and little debate, the Convention adopted Morris’s draft. For more than two hundred years, questions have been raised as to whether Morris covertly altered the text in order to advance his constitutional vision, but modern legal scholars and historians studying the Convention have either ignored the issue or concluded that Morris …

“An Outrage Upon Our Feelings”: The Role Of Local Governments In Resistance Movements, Daniel Farbman

Cardozo Law Review

After the election of 2016, many who opposed President Trump and his policies argued that local governments and local power would be the best tools to resist those policies and strengthen democracy. Among the most prominent acts of local resistance in the last decade have been resolutions that declare a town or a city a “Sanctuary” and refuse to cooperate with federal authorities in the deportation of undocumented immigrants. This Article situates these resolutions in a long tradition of local opposition to state and federal laws that towns and cities deem unjust by examining local opposition to the Fugitive Slave …

Adding Context And Constraint To Corpus Linguistics, Jeffrey W. Stempel

Brooklyn Law Review

Corpus linguistics presents an exciting tool for improving interpretation of documentary language. But it would be a mistake to overvalue the tool or to use it as grounds for ejecting consideration of other data from the interpretative task. While properly operationalized corpus linguistics analysis represents an advancement over traditional textualism, it remains subject to the same problems that plague excessively rigid textualism that refuses to give consideration to contextual evidence of meaning. To be most effective in achieving accurate and just interpretative results, corpus linguistics, like traditional reading of documentary language, requires context. This includes not only the context of …

Blazing A Path To Wilderness: A Case Study Of Impact Litigation Through The Lens Of Legislative History, Neil Kagan

Michigan Journal of Environmental & Administrative Law

Litigation can be a catalyst for legislation. Legislative history can reveal just how influential litigation is. The legislative history of the laws to designate wilderness in the 1980s provides an object lesson. It demonstrates that litigation both pushed Congress to act and shaped the legislation Congress enacted. This is especially true of the watershed year of 1984. That year, Congress enacted more wilderness laws and added more wilderness areas to the National Wilderness Preservation System in more states than in any other year. The legislative history of the 1984 wilderness laws embedded in bills, hearings, committee meetings, committee reports, and …

The Founders' Multi-Purpose Chief Justice: The English Origins Of The American Chief Justiceship, Justin W. Aimonetti, Jackson A. Myers

West Virginia Law Review

During the founding era, the American Chief Justice was nearly unrecognizable to modern eyes. Rather than a purely judicial officer, the Chief Justice was a multi-purpose minister, serving as a judge, an administrator, a diplomat, and an advisor. He was what we call the “multi-purpose Chief Justice.” The multi-purpose Chief Justice of the Early Republic originated with the ancient English office of the Lord Chief Justice. English judges historically served as multi-purpose ministers to the king, engaging in administrative and even political tasks. This was especially true for the Lord Chief Justice. Even as other English judges settled into more …

Constitutional Court Landscape Post - Arab Spring: A Survey Of Design, Dane Kirchoff-Foster

Indiana Journal of Constitutional Design

This is a case study seeking to survey the landscape of constitutional courts in the MENA region after the Arab Spring. To accomplish this, the case study identifies the traditional functions of constitutional courts, then analyzes the design features present in post-Arab Spring constitutional courts to determine how and to what extent these design features help – or hinder – each court in fulfilling its traditional functions. Analysis of design features will focus on (1) which (and how many) constitutional matters the court is empowered to decide (court jurisdiction), (2) the processes by which a court is presented a …

“Meyoru-Т-Tadoyyun” As Religious And Moral Source, Naimov Ismat

The Light of Islam

In the second half of the 19th century, marked by intensive scientific researches, the educator and encyclopedist Ahmad Donish left behind a rich scientific legacy, particularly his work Me’yoru-t-tadoyun, which to this day remains poorly studied. Even though the name of this work is known to the scientific community, few people are still familiar with its content. The article analyzes the religious and moral factors that caused the creation of the work Me’yoru-t-tadoyun, the recommendations of Ahmad Donish regarding the coverage of the history of world religions, and the rights of representatives of different religions to consider their beliefs as …

Susan Bartie, Free Hands And Minds: Pioneering Australian Legal Scholars, John Henry Schlegel

Book Reviews

No abstract provided.

The Future Of Securities Law In The Supreme Court, Adam C. Pritchard, Robert B. Thompson

Articles

Since the enactment of the first federal securities statute in 1933, securities law has illustrated key shifts in the Supreme Court’s jurisprudence. During the New Deal, the Court’s securities law decisions shifted almost overnight from open hostility toward the newly-expanded administrative state to broad deference to agency expertise. In the 1940s, securities cases helped build the legal foundation for a broadly enabling administrative law. The 1960s saw the Warren Court creating new implied rights of action in securities law illustrative of the Court’s approach to statutes generally. The stage seemed set for the rise of “federal corporate law.” The Court …

Swords Into Plowshares: A Pilgrimage For The Css Alabama, William W. Park

Faculty Scholarship

During the American Civil War, Britain sold ships to the Southern Confederacy in breach of neutrality obligations, triggering a dispute with the United States carrying threats of armed conflict. Some American politicians saw the dispute as an opportunity to annex Canada, then a weak assemblage of British colonies. Ultimately, arbitration in Geneva averted war, opening an era of long Anglo-American cooperation. The historical consequence of this landmark 1872 arbitration remains difficult to overstate. In addition to its diplomatic importance, the case introduced significant procedural precedents for international arbitration, including dissenting options, reasoned awards, party-appointed arbitrators, collegial deliberations, and arbitrators’ declarations …

Partisan Or Precedent: The History Of Nominating Supreme Court Judges In Presidential Election Years, Hattie Jefferies

Helms School of Government Undergraduate Law Review

No abstract provided.

The Return Of A Judicial Artifact? How The Supreme Court Could Examine The Question Of The Nondelegation Doctrine’S Place In Future Cases, Dalton Davis

Helms School of Government Undergraduate Law Review

No abstract provided.

Law School News: Logan Article Central To Scotus Dissent, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Intolerable Histories And Imperfect Narratives: Nationhood, Identity, And The Integrity Of Law In Post-Vichy France And Beyond, Kaela S. Holmen

Foreign Languages & Literatures ETDs

The principal aim of this thesis project is to examine the socio-legal context of the Vichy regime in World War II France, and to provide an understanding of how that context informed, and continues to inform, the integrity of French nationhood. With Ernest Renan’s oubli serving as a framework for the solidification of nationhood, I will demonstrate that the betrayals to French law and custom that were committed in an attempt to right the wrongs of the Vichy resulted in an imperfect forgetting, and ultimately, a more fragmented national sense of self. I contend that this imperfect oubli resulting from …

The Other Ordinary Persons, Fred O. Smith, Jr.

Washington and Lee Law Review

If originalism aims to center the original public meaning of text, who constitutes “the public”? Are we doing enough to capture historically excluded voices: impoverished white planters; dispossessed Natives; silenced women; and the enslaved? If not, what more is required? And for those who are not originalists, how do we ensure that, as American law consults the wisdom of the ages, we do not sever entire sources of wisdom?

This brief symposium Article engages these themes, offering two modest, interrelated claims. The first is that important informational, ethical, and democratic benefits accrue when American legal doctrine includes the voices and …

The Clean Air Act Of 1963: Postwar Environmental Politics And The Debate Over Federal Power, Adam D. Orford

Scholarly Works

This Article explores the development of the Clean Air Act of 1963, the first law to allow the federal government to fight air pollution rather than study it. The Article focuses on the postwar years (1945-1963) and explores the rise of public health medical research, cooperative federalism, and the desire to harness the powers of the federal government for domestic social improvement, as key precursors to environmental law. It examines the origins of the idea that the federal government should "do something" about air pollution, and how that idea was translated, through drafting, lobbying, politicking, hearings, debate, influence, and votes, …

Law School News: Rwu Law Introduces Required Course On Race And The Law 06/28/2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Our Imperial Federal Courts, Matthew J. Steilen

Journal Articles

This essay is a response to Christian R. Burset, Advisory Opinions and the Problem of Legal Authority, 74VAND.L.REV.621(2021).

“The article is significant for the archival work alone. It is useful, as well, for the impressive synthesis of the existing secondary literature, collected in the footnotes, which makes a convenient reading list for us mere mortals. The argument of the article is ambitious. As the Table of Contents suggests, its structure is complex: the author asks us to visit three different jurisdictions (two British and one American, each thousands of miles apart), in three different decades, in three different political and …

The Original Meaning Of The Habeas Corpus Suspension Clause, The Right Of Natural Liberty, And Executive Discretion, John Harrison

William & Mary Bill of Rights Journal

The Habeas Corpus Suspension Clause of Article I, Section 9, is primarily a limit on Congress’s authority to authorize detention by the executive. It is not mainly concerned with the remedial writ of habeas corpus, but rather with the primary right of natural liberty. Suspensions of the privilege of the writ of habeas corpus are statutes that vest very broad discretion in the executive to decide which individuals to hold in custody. Detention of combatants under the law of war need not rest on a valid suspension, whether the combatant is an alien or a citizen of the United States. …

The United Nations And Human Rights Non-Governmental Organizations (Ngos) - Seventy-Five Years Of Consultations, Collaboration, And Contributions (1945-2000), George E. Edwards

Pace International Law Review

At the San Francisco Conference where the United Nations Charter was negotiated, participants and observers included representatives of “societies and organizations”—non-governmental organizations (NGOs). The precise number and identities of those NGOs is unclear, but 42 of the participants were consultants to the U.S. delegation that successfully lobbied for the Charter to include an official relationship between the U.N. and NGOs, and the promotion and protection of human rights. NGOs thus had a profoundly positive impact on the creation of the United Nations. For the first 75 years of the U.N.’s existence, NGOs have played an invaluable role in supporting the …

Fellow Citizens, James W. Fox Jr.

ConLawNOW

This article explores the idea of equal citizenship central to the reconstructed Constitution that originated in the crucible of African American experience and framed by the Black abolitionist movement of the antebellum North. It identifies some of the key concepts of this mid-nineteenth-century African American Constitutionalism embodied in the phrase used at the time of “Emancipate, Enfranchise, Educate.” These became the core principles of Black Reconstruction as Black leaders and their white allies sought to secure civil freedom, free labor, equal suffrage and political power, and access to education and economic and social advancement. The essay addresses primary source materials …

A-Void-Able Consequences: Void Sales & Subsequent Purchasers Under Arkansas’S Statutory Foreclosure Act, Hannah Hungate

Arkansas Law Notes

This Comment explores Arkansas’s Statutory Foreclosure Act and addresses the question of whether there can be a “subsequent purchaser for value” when a foreclosure sale is void from the outset. After a review of the Act itself, distinction between void and voidable foreclosures of property, findings of other state courts, and proper application of the Act, the author urges the Arkansas Supreme Court to make a formal declaration finding that purchasers of property foreclosed upon in a void sale are not “subsequent purchasers for value” under the meaning of the statute.

Marriage Or License To Rape? A Socio-Legal Analysis Of Marital Rape In India, Vidhik Kumar

Dignity: A Journal of Analysis of Exploitation and Violence

Rape exposes the failure of society’s institutions which were established to provide better security to an individual in a society. These institutions sometimes not only failed to protect an individual from such grave assaults on their autonomy and privacy, but also sanctioned them by either providing them legitimacy by law or not illegitimating them. States often have either provided legal sanctity to rapes within marriage or have refrained from declaring it a crime, on account of it being a private sphere not open to interference. Rape within marriage or marital rape is a global problem, and it is argued that …

Foreword, Patricia E. Roberts

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

Foreword written by Patricia E. Roberts upon her first year as the 10th dean of St. Mary's University School of Law in San Antonio, Texas.

The Ill-Treatment Of Their Countrywoman: Liberated African Women, Violence, And Power In Tortola, 1807–1834, Arianna Browne

Master's Theses

In 1807, Parliament passed an Act to abolish the slave trade, leading to the Royal Navy’s campaign of policing international waters and seizing ships suspected of illegal trading. As the Royal Navy captured slave ships as prizes of war and condemned enslaved Africans to Vice-Admiralty courts, formerly enslaved Africans became “captured negroes” or “liberated Africans,” making the subjects in the British colonies. This work, which takes a microhistorical approach to investigate the everyday experiences of liberated Africans in Tortola during the early nineteenth century, focuses on the violent conditions of liberated African women, demonstrating that abolition consisted of violent contradictions …

Victim Impact: The Manson Murders And The Rise Of The Victims’ Rights Movement, Merrill W. Steeg

LSU New Orleans Theses and Dissertations

No abstract provided.

The Jurisprudence Of The First Woman Judge, Florence Allen: Challenging The Myth Of Women Judging Differently, Tracy A. Thomas

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

This Article delves into the life and work of Judge [Florence] Allen to provide insight to the contributions and jurisprudence of the first woman judge. For history questions what difference putting a woman on the bench might have made. Part I explores Allen’s early influences on her intellectual development grounded in her progressive and politically active family, and her close network of female professional friends. Part II discusses her pivotal work with the women’s suffrage movement, working with the national organizations in New York and leading the legal and political efforts in Ohio. This proactive commitment to gender justice, however, …

Out Of Sight, Out Of Mind: Analyzing Inhumane Practices In Mississippi’S Correctional Institutions Due To Overcrowding, Understaffing, And Diminished Funding, Ariel A. Williams

Honors Theses

The purpose of this research is to examine the political, social, and economic factors which have led to inhumane conditions in Mississippi’s correctional facilities. Several methods were employed, including a comparison of the historical and current methods of funding, staffing, and rehabilitating prisoners based on literature reviews. State-sponsored reports from various departments and the legislature were analyzed to provide insight into budgetary restrictions and political will to allocate funds. Statistical surveys and data were reviewed to determine how overcrowding and understaffing negatively affect administrative capacity and prisoners’ mental and physical well-being. Ultimately, it may be concluded that Mississippi has high …