Legal History Commons^™

The History Of Religious Hiring At American Catholic Law Schools, John M. Breen, Lee J. Strang

Touro Law Review

A mission-driven institution requires personnel who are competent for the realization of the mission. The following article examines the practice of Catholic law schools hiring Catholics as law professors throughout the over 150-year history of Catholic legal education in the United States. This history shows that Catholic law schools alternately sought to hire Catholics as law professors or to hire individuals without regard to their religious affiliation as these schools’ self-understanding of mission changed over time.

The Restatement Of Property: The Curse Of Incompleteness, Thomas W. Merrill

Faculty Scholarship

The central feature of the American Law Institute’s Restatement of Property is that it remains incomplete after nearly seventeen volumes produced over nearly ninety years. The principal explanation for this is the proclivities of the Reporters who have been responsible for the first three iterations of this effort. Some of these proclivities, such as a commitment to meticulous research, have been commendable. But the incompleteness of the effort has reduced the influence of the property Restatement, relative to other Restatements like contracts and torts. The chapter concludes with a description of the Fourth Restatement of Property, now underway, and the …

American Religious Liberty Without (Much) Theory: A Review Of Religion And The American Constitutional Experiment, 5th Edition, Nathan S. Chapman

Scholarly Works

Book review of Religion and the American Constitutional Experiment, 5th ed. By John Witte Jr., Joel A. Nichols, and Richard W. Garnett. Oxford: Oxford University Press, 2022. Pp. 464. $150.00 (cloth); $39.95 (paper); $26.99 (digital). ISBN: 9780197587614.

The Right To Migrate, Matthew J. Lindsay

Lewis & Clark Law Review

Since the late-19th century, the Supreme Court has insisted that the preservation of national sovereignty requires a constitutional chasm between immigration law and ordinary law. If the Court is to bridge that chasm, it must reimagine the longstanding premise of the federal immigration power that the presence of noncitizens in U.S. territory menaces the nation’s sovereignty and security. This Article contributes to that reimagining by chronicling a compelling alternative worldview with a venerable historical pedigree—that of a quintessentially American right to migrate.

During the Founding Era, American statesmen described the impoverished subjects of Europe’s monarchies as protagonists in an unfolding …

Abortion Localism And Preemption In A Post-Roe Era, Kaitlin Ainsworth Caruso

Lewis & Clark Law Review

In Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court eliminated federal constitutional protections for abortion. Practically, a person’s access to abortion has long depended on where they live and where they can travel; that disparity is far worse now. In light of Dobbs, some states decisively changed their laws, often decimating abortion access. In other states, however, the law remains unclear; advocates are furiously lobbying and litigating to redefine their states’ standards. Amid this upheaval, one element of the new abortion landscape is underappreciated: how localities impact abortion access.

For decades, local governments have influenced access to abortion …

Frederick Douglass And The Original Originalists, Bradley Rebeiro

Faculty Scholarship

Constitutional scholars incessantly grapple over the significance of the Constitution’s original meaning. More specifically, they are preoccupied with, on the one hand, what that meaning is (if such meaning exists) and, on the other hand, the exact nature of that meaning’s authority (if any) over the Constitution and its interpreters. But this debate is hardly novel. In fact, one of the most compelling voices in U.S. history was immersed in similar debates and, out of the constitutional sparring of his time, forged an arresting theory of constitutional interpretation. Frederick Douglass, once a fierce opponent of the U.S. Constitution, evolved into …

Patent-Infringement Suits And The Right To A Jury Trial, H. Tomas Gomez-Arostegui, Sean Bottomley

American University Law Review

This Article analyzes whether the Seventh Amendment affords a right to a jury trial in suits in which the owner of a patent seeks only equitable relief against an accused infringer. The existence of jury rights carries important consequences for litigants. Like many issues involving application of the Constitution, the availability and scope of the right to a jury depends on eighteenth-century English legal history. Current doctrine holds that litigants in equity had no right to a jury in patent cases in England c.1791 and therefore that litigants today who seek only injunctive relief possess no such right either. But …

The Distribution Of Justices' Votes And Countering National Disunity, Nicholas L. Georgakopoulos

FIU Law Review

The estimation of the distribution that matches the voting of the justices of the Supreme Court shows that voting is correlated and reveals three phenomena: an outlier distribution produced by one composition of the Court, the surprising frequency of unanimous decisions, and the intensity with which the Court avoids 4–4 decisions. The intensity with which the Court avoids 4–4 splits and the strength of the drive to produce unanimous decisions seem sensitive to national disunity. At times of greater disunity, 1965 to 1975 and 2001 to 2020, the Court avoids 4–4 splits more intensely and has a greater fraction of …

Against Imperial Arbitrators: The Brilliance Of Canada's New Model Investment Treaty, Charles H. Brower Ii

FIU Law Review

Investment treaty arbitration has become politically “toxic” even in states that pioneered the development of investment treaties. There is consensus on the need for reform. But there is a dearth of historical research on what went wrong with investment treaties, when it happened, or how to find the way forward in light of the past. As a result, reform efforts have a stumbling quality. One can see this in multilateral fora, such as the United Nations Commission on International Trade Law (UNCITRAL), where over four years of study and negotiations have produced little consensus. One can also see it in …

Gender Inequality In Contracts Casebooks: Representations Of Women In The Contracts Curriculum, Deborah Zalesne

FIU Law Review

Gender has always explicitly or implicitly played a critical role in contracting and in contracts opinions—from the early nineteenth century, when married women lacked the legal capacity altogether to contract, through the next century, when women gained the right to contract but continued to lack bargaining power and to be disadvantaged in the bargaining process in many cases, to today, when women are present in greater numbers in business and commerce, but face continued, yet less overt, obstacles. Typical casebooks provide ample offerings for discussions of the ways in which parties can be and have been disadvantaged because of their …

The Application Of Law As A Key To Understanding Judicial Independence, Tahirih V. Lee

FIU Law Review

Judges across China recently declined to apply a law that the National People’s Congress had newly brought into effect. In this article, I describe this startling finding and explore the significance of it. I conclude that it represents an exercise of judicial independence. Using a thickly descriptive approach that focuses on textual analysis and institutional context, I demonstrate that judges in China have no legal duty to apply law and that it is professionally risky for them to apply law; that judges there operate within a professional culture that encourages restraint; and that the court system has developed a strong …

"Covid-19 Was The Publicist For Homeschooling" And States Need To Finally Take Homeschooling Regulations Seriously Post-Pandemic, Kristia Hoffman

FIU Law Review

Homeschooling was rapidly growing in the U.S. even before COVID-19. The pandemic accelerated this growth by quickly exposing nearly every American family to homeschooling in some form. The pandemic has ushered in a new age of homeschooling characterized by flexibility, technology, collaboration, and alternative forms of schooling beyond the traditional parent-teaching-child framework. Although the Supreme Court has never recognized a fundamental right of parents to homeschool their children, it has repeatedly recognized that parents have the right to direct their children’s education and to choose to educate them in the way they deem fit. There is debate as to what …

Remembering The Origins Of Modern Legal Education, Paula A. Monopoli

Faculty Scholarship

American legal education came under tremendous pressure in the wake of the 2008 financial crisis. That crisis precipitated a decline in law school applications and a concomitant decrease in the size of American law school enrollments during the 2011–2012 academic year. Commentators offered a myriad of proposals for reforming legal education during that period. Yet many of those proposals failed to gain traction, and a decade later legal education looks much the same, albeit with smaller enrollments. One of those proposals was to shorten the three-year course of study. In this Article, I revisit the origins of that long-standing feature …

Situating Dobbs, Paula A. Monopoli

Faculty Scholarship

The recent decision in Dobbs v. Jackson Women’s Health has been characterized as an outlier because its effect is to erase a previously recognized constitutional right. This paper situates Dobbs in a broader feminist constitutional history. It asks if this retrenchment is really such a unique turn in American jurisprudence when it comes to protections or “rights” that matter most to women’s lived experience. The paper argues that if one opens the aperture of constitutional history to embrace a more capacious view of rights, those afforded to women have often been eroded or erased by state legislatures, Congress, and courts. …

America’S Fraught Relationship With Privacy, Russell L. Weaver

FIU Law Review

No abstract provided.

Contemporary Crises In Cuba: Economic, Political, And Social, Silvia Pedraza, Carlos Romero

FIU Law Review

In this paper my co-author and I will present the various crises that are taking place in Cuba at present: economic, political, and cultural. We rely on published data, such as the GDP, as well as materials from in-depth interviews and participant observation.

The Public Defender Movement In The Age Of Mass Incarceration: Georgia's Experience, Robert L. Tsai

Faculty Scholarship

Focusing on the efforts of the Southern Center for Human Rights, this article offers a grassroots history of the creation of the first statewide public defender in the State of Georgia in 2003. Whereas federal court litigation to improve indigent defense failed to achieve lasting reform, a shift in tactics toward “rebellious localism,” characterized by state court lawsuits against county and city officials, succeeded in prodding lawmakers to create a new framework for delivering legal services to indigent defendants. This model of legal change was effective in documenting structural flaws and creating momentum for reform. Yet other conditions—such as front-end …

Abandoning Animus, Robert L. Tsai

Faculty Scholarship

This Essay presents a preliminary set of arguments against the legal concept of animus grounded in actual practice. After considering the major reasons advanced in support of the animus approach as well as the main objections, I argue that the end of animus may come once we confront the limits of judicial capacity. First, judges have not been willing or able to resort to the animus rationale to call out bigotry where the evidence of hostility is robust. These failures suggest that projects founded upon judicial review to reduce hateful motivations may be overly optimistic. Second, on the occasions the …

The Need For Restatement Of The Common Law: A Long Look Back, David J. Seipp

Faculty Scholarship

Restatements of the common law, the chief achievements of the American Law Institute (ALI), fulfilled a need that had long been expressed by lawyers and judges in England and America. Supreme Court Justice Joseph Story, responding in 1837 to the Massachusetts state legislature’s inquiry whether common law should and could be codified, reported that there could be tremendous saving of effort and time by lawyers and judges if a group of experts set out in written form the agreed principles and doctrines of common law. Story did not advise that the legislature should enact this written text of common law, …

The Color Of Equity: Observations Of A Brown Buffalo On Indigenous Water Rights, Japanese Internment, And The Socio-Legal History Of The Colorado River, Tom I. Romero Ii

Scholarly Works

No abstract provided.