Legal History Commons^™

Reshaping Washington's Public Lands Trust Doctrine, Audrey Bell

Selected Articles on Washington State Constitution History

In this paper, I will discuss how Washington state’s trust duties related to federally-granted public lands management have and have not been reconciled with article XVI, section 1 of the Washington constitution. First, I will provide a foundation for the management of federally-granted public lands and the storied history of Congress's intent in providing land grants to the states. Next, I will examine the provisions of the Enabling Act of 1889 ("Enabling Act") and the Washington constitution that govern the management of those granted lands. Third, I will chart the historical treatment of Washington state trust duties related to the …

A Taxonomy Of Silencing: The Law’S 100 Year Suppression Of The Tulsa Race Massacre, Suzette Malveaux

Scholarly Articles

Over one hundred years have passed since the 1921 brutal massacre of Tulsa’s African American community. This notorious attack came at the hands of a white mob and with the government’s blessing. With numerous centennial commemorations behind us, what has been learned? The answer to this question is crucial to preventing similar atrocities in the future.

One lesson is how important it is to tell the story—to honor the voices of those who lived through one of the most infamous government-sanctioned racial attacks in U.S. history. Knowledge is power.

Another lesson is how pernicious the law can be in silencing …

Towards A Dramaturgical Theory Of Constitutional Interpretation, Jessica Rizzo

Seattle University Law Review

Like legal texts, dramatic texts have a public function and public responsibilities not shared by texts written to be appreciated in solitude. For this reason, the interpretation of dramatic texts offers a variety of useful templates for the interpretation of legal texts. In this Article, I elaborate on Jack Balkin and Sanford Levinson’s neglected account of law as performance. I begin with Balkin and Levinson’s observation that both legal and dramatic interpreters are charged with persuading audiences that their readings of texts are “authoritative,” analyzing the relationship between legal and theatrical authority and tradition. I then offer my own theory …

Apartheid-Era Chicago, 55 Uic L. Rev. 219 (2022), Karl Muth

UIC Law Review

No abstract provided.

Black Women & Women's Suffrage: Understanding The Perception Of The Nineteenth Amendment Through The Pages Of The Chicago Defender, Tamar Anna Alexanian

Michigan Journal of Gender & Law

Susan B. Anthony once famously stated, “I will cut off this right arm of mine before I will ever work for or demand the ballot for the Negro and not the woman.” The racism of many early suffragettes has been well documented and discussed; Black suffragettes and other suffragettes of color were, at best, relegated to the margins of the movement and, at worst, scorned and turned away by white suffragettes. Moreover, part of white suffragettes’ strategy for passage of the Nineteenth Amendment was based on racist appeals to white men; white suffragettes claimed that passage of the Nineteenth Amendment …

Citizenship, Race, And Statehood, Kristina M. Campbell

Journal Articles

This Article will discuss the interplay between citizenship, race, and ratification of statehood in the United States, both historically and prospectively. Part II will discuss the development and history of the Insular Cases and the creation of the Territorial Incorporation Doctrine (“TID”), focusing on the Territory of Puerto Rico and how the issues of citizenship, race, and statehood have evolved in shadow of empire as a result. Part III will look back on the admission to the Union of New Mexico and Arizona—the forty-seventh and forty-eighth states—and discuss the substantial difficulties these territories had in getting admitted for statehood due …

Repairing Our System Of Constitutional Accountability: Reflections On The 150th Anniversary Of Section 1983, David H. Gans

Cardozo Law Review de•novo

Section 1983 is a landmark statute that provides the foundation for holding state and local governments and their agents accountable when they violate constitutional rights. Unfortunately, rather than enforce the statute’s text and ensure the accountability that its drafters passed it to achieve, the Supreme Court has created four interlocking doctrines that squelch its promise of accountability: qualified immunity, absolute immunity, strict limits on local governmental liability, and the exclusion of states from Section 1983. This Article, written to mark the 150th anniversary of Section 1983, does a deep dive into the text and history of Section 1983 and recovers …

On The Meaning Of Color And The End Of White(Ness), William J. Aceves

Faculty Scholarship

This Article explores the history of the term “people of color” and its current status in a country struggling to overcome its racist origins. The murders of Trayvon Martin, Michael Brown, George Floyd, Breonna Taylor, and so many other victims of state violence have generated profound anger, calls for action, and demands for dialogue. It is undoubtedly simplistic to assert that words matter. But accurate descriptions are essential for honest conversations, and words convey meanings beyond their syntax. In discussions about race and racial identity, the term “people of color” is routinely used as the antipode to the white community. …

The Complex Dualisms Of Corporations And Democracy, Franklin A. Gevurtz

McGeorge School of Law Scholarly Articles

These are perilous times for American democracy. Among the threats, many point to the power of corporations. This article examines that threat by considering a series of dualisms characterizing the relationship between corporations and democracy. This begins with a look at the anti- as well as the pro-democratic impacts of the earliest corporations and the paradoxes with respect to democracy created during the evolution of corporate law. The article then looks at internal corporate governance (so-called “corporate” or “shareholder democracy”) to show how, on the one hand, it contains features addressing some of the greatest current threats to American democracy, …

Rennard Strickland: Legal Historian And Leader, Charles Wilkinson

Publications

No abstract provided.

Less Restrictive Alternatives And The Ancillary Restraints Doctrine, Thomas B. Nachbar

Seattle University Law Review

In Ohio v. American Express, both the majority and dissent introduced into Supreme Court antitrust jurisprudence a new test for evaluating restraints under the rule of reason: a less restrictive alternatives test. Occasionally appearing in circuit court cases, less restrictive alternatives tests have not been part of Supreme Court’s approach to the rule of reason, which generally evaluates restraints of trade by balancing their anticompetitive and procompetitive effects.

American Express was the first Supreme Court case to mention a less restrictive alternatives test, potentially representing a major shift in antitrust law, but it was not the last. In 2021’s …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Foreword, Seattle University Law Review

Seattle University Law Review

Foreward

Keynote Address, Justin Hansford

Seattle University Law Review

Keynote Address by Justin Hansford

Putting The Bar Exam On Constitutional Notice: Cut Scores, Race & Ethnicity, And The Public Good, Scott Johns

Seattle University Law Review

Nothing to see here. Season in and season out, bar examiners, experts, supreme courts, and bar associations seem nonplussed, trapped by what they see as the facts, namely, that the bar exam has no possible weaknesses, at least when it comes to alternative licensure mechanisms, that the bar exam is not to blame for disparate racial impacts that spring from administration of this ritualistic process, and that there are no viable alternatives in the harsh cold world of determining minimal competency for the noble purpose of protecting the public from legal harms. All a lie, of course.

But rather than …

The Fall Of An American Lawyer, Michael Ariens

Faculty Articles

John Randall is the only former president of the American Bar Association to be disbarred. He wrote a will for a client, Lovell Myers, with whom Randall had been in business for over a quarter-century. The will left all of Myers’s property to Randall, and implicitly disinherited his only child, Marie Jensen. When Jensen learned of the existence of a will, she sued to set it aside. She later filed a complaint with the Iowa Committee on Professional Ethics and Conduct. That complaint was the catalyst leading to Randall’s disbarment.

Randall had acted grievously in serving as Lovell Myers’s attorney. …

Of Rights And Regulation, Stephen W. Sawyer, William J. Novak

Book Chapters

This chapter explores the development of social provisioning as a matter not of right but of democratic administration in France and the United States in the nineteenth century. The authors take issue with conventional chronologies of rights development, which see civil and political rights being developed in the eighteenth and nineteenth centuries, with social rights appearing in the twentieth. Such categories and sequencing obscure the ways in which democratic administrations took the problem of social provisioning seriously. A history of socio-economic rights cannot be distinguished from the less formal technologies of socio-economic regulation that were an integral part of the …

Kermit Roosevelt Iii, The Nation That Never Was: Reconstructing America's Story, Ainslee Johnson-Brown

Akron Law Student Publications

This review summarizes the key thesis of the book, The Nation That Never Was, which argues for a reset of the Constitutional baseline of principles. The book argues that the Gettysburg Address should be considered a key part of modern constitutional guarantees of equality and liberty. The review explains this thesis, and notes the questions it leaves open.

In Celebration Of Dissents (And Lengthy Textbooks): How Digital Became Different For The Fourth Amendment And Why It Is Time For A Real Warrant Default, Stephen E. Henderson

Faculty Articles

The last decade has brought tremendous change to the Fourth Amendment, finally resulting in a ‘digital is different’ norm. We stand at an inflection point between a monolithic, analog past and a murky future of yet-unarticulated constitutional digital policing rules. It is a good time, then, to reflect upon how we came to be here and where we ought to go. This Essay first looks back to a monumental, majestic dissent: that of Justice Louis Brandeis in the 1928 decision of Olmstead v. United States. Every American, and especially every law student, ought to know that opinion, and judges …

The Public Trust And The Chicago Lakefront: Review Of Kearney & Merrill’S Lakefront: Public Trust And Private Rights In Chicago (Cornell U. Press, 2021), Michael C. Blumm

Michigan Journal of Environmental & Administrative Law

Joseph Kearney and Thomas Merrill’s brilliantly illustrated LAKEFRONT is sure to win American legal history awards for its riveting history of the machinations behind the preservation of the magnificent Chicago lakefront, now dominated by public spaces. The authors weave together a compelling account of how the law affected the development of the post-fire Chicago in the late 19th and 20th centuries—largely made by lawyers and courts and only ratified by legislatures. The book’s title suggests that the story is largely about the public trust doctrine (PTD). But the doctrine is hardly the centerpiece of the authors’ story. What they have …

Anti-Discrimination Ethics Rules And The Legal Profession, Michael Ariens

Faculty Articles

“Reputation ought to be the perpetual subject of my Thoughts, and Aim of my Behaviour. How shall I gain a Reputation! How shall I Spread an Opinion of myself as a Lawyer of distinguished Genius, Learning, and Virtue.” So wrote twenty-four-year-old John Adams in his diary in 1759. He had been a licensed lawyer for just three years at that time and had already believed himself to be hounded by “Petty foggers” and “dirty Dablers in the Law”—unlicensed attorneys who, Adams claimed, fomented vexatious litigation for the fees they might earn.

Adams believed his embrace of virtue, along with genius …

Fifty More Years Of Ineffable Quo? Workers’ Compensation And The Right To Personal Security, Michael C. Duff

All Faculty Scholarship

During the days of Covid-19, OSHA has been much in the news as contests surface over the boundaries of what risks of workplace harm are properly regulable by the federal government. Yet the original statute that created OSHA—the Occupational Safety and Health Act of 1970—was not exclusively concerned with front-end regulation of workplace harm. Just over fifty years ago, the same Act mandated an investigation of the American workers’ compensation system, which consists of a loose network of independent state workers’ compensation systems. The National Commission created by the Act to carry out the investigation issued a report of its …

The Lost Cause Of Free Speech, Mary Anne Franks

Articles

No abstract provided.

Let’S Talk About Grading, Maybe: Using Transparency About The Grading Process To Aid In Student Learning, Deshun Harris

Seattle University Law Review

Talking about grades and grading in law school can feel as taboo, if not more, than talking about sex. Among law faculty, there is often no training and no discussions about how to grade other than being asked to moderate final grades to meet a curve. Students often seek information from each other or online sources where numerous blogs provide them with advice on how to talk to professors about grades, how not to disclose grades to others, and other advice about dealing with grades. What is not as forthcoming for many students is how exactly their professors evaluate their …

Air Pollution As Public Nuisance: Comparing Modern-Day Greenhouse Gas Abatement With Nineteenth-Century Smoke Abatement, Kate Markey

Michigan Law Review

Public nuisance allows plaintiffs to sue actors in tort for causing environmental harm that disrupts the public’s use and enjoyment of the land. In recent years, state and local governments have filed public nuisance actions against oil companies, hoping to hold them responsible for the harm of climate change. Since no plaintiff has prevailed on the merits so far, whether these lawsuits are worth bringing, given the other legal avenues available, remains an open question. This Comment situates these actions in their appropriate historical context to show that these lawsuits are neither unprecedented nor futile. In particular, it examines the …

Originalism And Personal Jurisdiction: Several Questions And A Few Answers, Lawrence B. Solum, Max Crema

Faculty Scholarship

The modern constitutional law of personal jurisdiction is largely the product of living constitutionalism. International Shoe's minimum-contacts and fairness standard was not derived from the constitutional text, and it cannot be supported by the original meaning of the Due Process of Law Clauses of the Fifth and Fourteenth Amendments. This Article explores the implications of that fact for the constitutional law of personal jurisdiction, with a focus on the federal courts.

The Article proceeds in six steps. First, it lays out the theoretical framework provided by Public Meaning Originalism, including the Fixation Thesis, the Constraint Principle, and the interpretation-construction …

Back To The Sources? What’S Clear And Not So Clear About The Original Intent Of The First Amendment, John Witte Jr.

Faculty Articles

This Article peels through these layers of founding documents before exploring the final sixteen words of the First Amendment religion clauses. Part I explores the founding generation’s main teachings on religious freedom, identifying the major principles that they held in common. Part II sets out a few representative state constitutional provisions on religious freedom created from 1776 to 1784. Part III reviews briefly the actions by the Continental Congress on religion and religious freedom issued between 1774 and 1789. Part IV touches on the deprecated place of religious freedom in the drafting of the 1787 United States Constitution. Part V …

Equity's Federalism, Kellen R. Funk

Faculty Scholarship

The United States has had a dual court system since its founding. One might expect such a pronouncement to refer to the division between state and federal courts, but in the early republic the equally obvious referent would have been to the division between courts of common law and the court of chancery — the distinction, that is, between law and equity. This Essay sketches a history of how the distinction between law and equity was gradually transformed into a doctrine of federalism by the Supreme Court. Congress’s earliest legislation jealously guarded federal equity against fusion with common law at …

Dedication To Ronald B. Lansing, 1932–2021

Lewis & Clark Law Review

No abstract provided.

Constellating History: An Investigation Into The Supreme Court’S Treatment Of Congressional Consent Under The Compact Clause, Rohan Koosha Hiatt

Lewis & Clark Law Review

The Supreme Court cases of U.S. Steel Corp. v. Multistate Tax Commission and Wharton v. Wise, decided over 80 years apart, set forth different narratives for the evolution of the nonliteral test for consent under the Compact Clause. This Note investigates these competing historical claims in order to reconcile incompatible understandings of how the test evolved, ultimately identifying a more complex origin of the test than the one articulated in U.S. Steel. In so doing, this Note sheds light on the ability of the Court to not only bring history to light, but also to obscure it.