Legal History Commons^™

Hampton L. Carson (1852-1929): Attorney General, Bar Leader, Writer And Collector, Joel Fishman

Law Faculty Publications

Hampton L. Carson (1852-1929) was a law professor, Pennsylvania Attorney General, President of the American, Pennsylvania and Philadelphia Bar Associations, noted orator and prolific writer of legal history and biography, and collector of the largest Anglo-American law books and manuscripts. This article will review his life and work.

Should Like Cases Be Decided Alike? A Formal Analysis Of Formal Equality, Benjamin B. Johnson, Richard Jordan

UF Law Faculty Publications

The idea of formal equality—the principle that we should treat like cases alike—is a cornerstone of political and legal theory that supporters have placed at the heart of theories of justice since Aristotle. Critics have rejected it as vacuous or a tool of oppression. Despite its central importance, formal equality has received little formal analysis. In this article, we formalize the like-cases maxim and explore its implications. We show that both Aristotle’s principle of proportionality and Dworkin’s principle of integrity can be directly derived from formal equality. It is therefore not vacuous, but formal equality is more demanding than its …

"May It Please Her Honor": The United States' First Women Judges, 1870-1930, Elizabeth D. Katz

UF Law Faculty Publications

Between 1870 and 1930, hundreds of women served as judges in the United States. While a small number compared to the men who served, these pathbreaking officials were particularly visible and influential in women's efforts to secure political rights and advance in the legal profession. Women's progress in obtaining judgeships developed in a regional pattern, with women in the Midwest and West able to secure earlier and broader jurisdiction positions than their counterparts in the Northeast and South. Seeking access to the judiciary, women in conservative states made gendered arguments about women's supposed superiority in overseeing cases involving women, children, …

May Federal Courts Answer Questions When Not Deciding Cases?, Benjamin B. Johnson

UF Law Faculty Publications

Conventional wisdom says that Article III’s case-or-controversy requirement prevents federal courts from answering legal questions when they are not deciding cases. This is only partially correct. This Article shows conditions under which a federal court may answer questions even when not deciding a case. To do so, it traces the appellate power back to its origins in English common law courts and through the early American judiciary. For centuries, common law judges have answered questions sent to them by lower courts when doing so would help those lower courts to decide pending cases. In England, the “case stated” procedure facilitated …

The Failings Of Post-War Japanese Antitrust Reforms, Gregory Hayes

Northwestern Journal of International Law & Business

This paper discusses the antitrust reform measures taken during the occupation of Japan following the end of World War II. These antitrust reforms included the dissolution of the zaibatsu business groups and the adoption of the Antimonopoly Act. However, the trust-busting and antitrust measures taken by Japan failed to prevent the eventual rise of keiretsu business groups and lower the concentration of corporate ownership in Japan. The primary reasons behind this failure were the inability of the reformers to fully dismantle the zaibatsu business groups and the changing priorities of the reformers due to the growing threat of the spread …

Original Discontent, William Magnuson

Faculty Scholarship

There are many theories of constitutional interpretation. Most, but not all, of them assert that, in interpreting the Constitution’s provisions, we should start by taking seriously the intentions of the enactors, meaning, roughly speaking, its drafters, defenders and ratifiers. This Article argues that, in doing so, judges, scholars and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Time and again, during the Philadelphia Convention of 1787, during the penning of the Federalist Papers, and during the state ratifying conventions, the enactors expressed deep reservations about …

The United States Healthcare System: From Medicare To Post-Pandemic Health Policy, William M. Sage

Faculty Scholarship

My purpose in this essay is to comment on national health policy in the United States over the past sixty years.  My conclusions are less optimistic than what I had hoped when I began my teaching and research career in the 1990s to be able to say in 2025.  In particular, the successful expansion of publicly supported health coverage via the passage of the Affordable Care Act (“ACA” or “Obamacare”) in 2010 seems to have triggered -- though I hesitate to say that it caused – a backsliding from broader commitments to clinical performance, population health, and social solidarity that …

Memory, Resistance, And Doubt, Richard Primus

Articles

Burroughs v. United States is not a famous case. But it could be. Its central character was a famous man. James Cannon, Jr., was a bishop in the Methodist church, a player in the worlds of business and banking, a ruthless political power broker, and a zealous Prohibitionist. In Virginia, where he lived, his role within the Democratic Party earned him the informal title of “the dry boss of the state,” and his influence extended well beyond the Old Dominion. Indeed, the essayist H.L. Mencken identified Cannon as the most important Prohibitionist in the country. “More than any other man,” …

Fiscal Citizenship And Taxpayer Privacy, Alex Zhang

Faculty Articles

Should individual tax data be public or confidential? Within the United States, secrecy has been the rule since the Tax Reform Act of 1976. But at three critical junctures—the Civil War, the 1920s, and the 1930s—Congress made individual tax records open for public inspection, and newspapers published the incomes of the billionaires of the time. Today, Finland, Norway, and Sweden all mandate significant transparency for individual tax information.

This Essay intervenes in the tax-confidentiality debate by building a new analytical framework of fiscal citizenship. Until now, scholars have focused on compliance—whether disclosure incentivizes honest reporting of income, and if it …

Qualified Immunity & Subjective Knowledge, John F. Preis

Law Faculty Publications

There is something weird going on within the doctrine of qualified immunity. The Supreme Court and lower courts routinely claim that officers who “knowingly violate the law” are not entitled to qualified immunity, but then—in almost the same breath—assert that an officer’s knowledge of the law is irrelevant to the qualified immunity analysis. What is even more strange is that these two opposing views can apparently be traced to the foundational case in the field: Harlow v. Fitzgerald.

This Article explores and proposes a resolution to this apparent contradiction. Beginning with Harlow itself, the Article explores the case using the …

In Search Of A State, Maeve Glass

Faculty Scholarship

This article offers a legal history of one of America’s earliest campaigns of state legislative resistance: the effort in Massachusetts to protest the national government’s perceived dismantling of an old Atlantic commercial order from 1803 to 1815. To date, scholars have either condemned this protest as a dangerous harbinger of the Civil War or vindicated it as an inevitable and salutary extension of the Founding. This article steers a different course. By focusing on the evolving language of protest and the complex hybrid of ideas and material realities from which this language emerged, this article illuminates how Federalist leaders who …

As They Think Best: A History Of The "One Crowded Hour" Autograph Manuscript, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.

War Courts: Fdr, National Security, And The War On Terrorism, Harvey Gee

Dickinson Law Review (2017-Present)

No abstract provided.

The Method Is The Message: Movement Law And The Social Change Commons, Raymond H. Brescia

Dickinson Law Review (2017-Present)

Legal scholars have long sought to understand the relationship between social movements and the law. A new group of such scholars has argued that to better understand this relationship, and to advance social change that is effective, sustainable, equitable, and just, they must engage in dialogue with such movements to generate ideas that will catalyze that change. For those interested in generating ideas that can spark meaningful and lasting social change, such developments in legal scholarship represent an exciting evolution in the relationship between legal scholarship, legal scholars, and social movements: a relationship that appears to be growing stronger, deeper, …

Lewd, Rude, Obscene, And… Violent? Analyzing Student Clothing Depicting Firearms Under The First Amendment’S Obscenity Test, Luke Gorman

Dickinson Law Review (2017-Present)

Today’s national news and social media have repeatedly exposed our school-age children to the effects of shootings occurring within their schools and communities. Each shooting brings with it commentary, sometimes from the students themselves. While in-school student speech is more limited than speech levied in the outside world, students do not shed their speech rights at the “schoolhouse gate.” As a result, courts have failed to outline a consistent approach for when a student will be punished for wearing a shirt depicting a firearm to school. This Comment addresses this delicate balance by proposing a consistent three-part test framed by …

Dobbs V. Brown, Benjamin H. Barton

Dickinson Law Review (2017-Present)

Dobbs v. Jackson Women’s Health Organization1is the most important and impactful Supreme Court decision since at least Roe v. Wade, and potentially since Brown v. Board of Education. Past survey data show that most Americans can only name two Supreme Court opinions: Roe and Brown. Dobbs will surely join that list. This Article compares the history, drafting, and opinions of Dobbs and Brown to show what a missed opportunity Dobbs represents. Regardless of whether you agree or disagree with the opinion, it should be clear that Dobbs was one of those unique times (like that of Brown) where the Court …

Pozen And The Puzzle Of Counterfactuals, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The Constitution and the War on Drugs, David Pozen’s carefully researched and brilliantly argued book, is both illuminating and disturbing: illuminating because it unearths forgotten moments when judicially formulated constitutional doctrine that could have ended or sharply restricted the War on Drugs were well within the Overton Window, and disturbing because it surfaces hard questions about historical contingency and the scope of the change that might have occurred in a counterfactual world. In this review, the author argues that the failure to specify both the nature of the counterfactual and the breadth of the alternative possibility have confused discussions …

Physicists As Environmental Experts, Rachel Rothschild

Articles

The question of which scientists are qualified to provide expert guidance in legal controversies is a perennial debate among scholars, judges, and lawyers. Scientists who participate in legal disputes can achieve enormous power and influence, not only over the case at hand but over long-term developments in legal doctrine. While these issues arise in many areas of the law, environmental litigation has been a particularly active site of contestations over epistemic authority. Courts have frequently relied on scientists to understand whether the government is justified in regulating pollution and who may be liable for environmental and public health harms.

This …

Procedural Political Economy, Luke P. Norris

Law Faculty Publications

When the Federal Rules of Civil Procedure came into being in 1938, a broad political economy discourse was driving significant legal and policy reform efforts. Legal scholars, economists, political leaders, and others placed questions of economic power and their relationship to democracy at the center of those reform efforts, honing and developing a political economy tradition that is a forebearer to today’s law-and-political economy (LPE) approach. Both then and today, the relationship of civil procedure to these trends has not been fully mined. This Article tells a vital part of that story, tracing the federal civil procedure system’s political economy …

Rev. Dr. Martin Luther King, Jr. Celebration Lecture January 24, 2025, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Perceptions And Treatment Decisions For A Drug Offender Based On Social Class, Cocaine Type, Personal Characteristics, And Compassionate Love: A Vignette Study, Yasmin A. Odeh

Theses and Dissertations

Problem: The shift from a focus on rehabilitation to the more punitive, “tough on crime” approach to illegal behavior in the U.S. has been enacted in no small way by policies connected to the use and abuse of drugs. The disparities between crack and powder cocaine—two chemically similar substances—have headlined this shift (Vagins and McCurdy 2006). However, research is scarce on laypeople’s approval of deterrence approaches for drug offenses, including as a function of types (e.g., powder vs. cocaine possession). This study examined people’s perceptions of prosecutorial decisions for drug offenders—whether they are punished, rehabilitated, or both—and whether people perceived …

Religious Police Forces With Public Powers, Jonathon J. Booth

Publications

No abstract provided.

Is Federal Question Jurisdiction Arising Or Setting, Lumen N. Mulligan

Faculty Works

In this essay, I respond to Professor Arthur D. Hellman. Hellman argues that "there is reason to be concerned that the [federal] judicial system falls short of the Framers' expectations--primarily by denying many litigants in cases presenting federal questions 'their real day in an Article III court,' but also by fostering 'balkanization' rather than uniformity in the interpretation of federal law." It is a privilege to comment upon Hellman's thoughtful piece. In doing so, I begin by questioning the value of originalist interpretations of Article III jurisdiction both descriptively and normatively. I then turn to an intra-originalist critique that paints …

Inconclusive History, Allen Roston

Faculty Works

No abstract provided.

“Forced Worship Stinks In God’S Nostrils”: The Inquisition, Sepharad, And The American Experiment, Isaac Amon

Touro Law Review

In December 1791, the Bill of Rights, comprising the first 10 amendments to the U.S. Constitution, enshrined fundamental protections for individual freedoms, with the First Amendment guaranteeing liberty of conscience. This milestone, however, was the culmination of centuries of struggle. The arrival of Iberian Jews, including conversos, in North America played a pivotal role in shaping the course of American history. The Founders referenced the Inquisition in their letters and debates, particularly in discussions on legal protections for criminal suspects and the broader issue of religious liberty. Founding assurances of religious freedom to Jews and Christians stand in stark contrast …

The Excluded: Where Did Our Rights Come From, Who Paid The Price Trying To Establish Them, And Who Is Trying To Take Them Away? The Centuries-Long Struggle For Inclusion, Jim Brosnahan

University of San Francisco Law Review

No abstract provided.

Internal Or External: An Exploration Of The United States Police Chief Hiring Process, Kayleigh Walker

Williams Honors College, Honors Research Projects

This paper explores the hiring processes of police chiefs across the United States, focusing on internal versus external hiring practices. The goal of this research was to identify common trends, legislative barriers, and the impact of leadership on the hiring process through historical context, legal analysis, and case studies. The findings suggest that internal hires dominate chief appointments, though external hires are often sought during crises. The paper concludes with recommendations for future research and highlights the need to more fully understand this phenomenon. Understanding the processes and limitations surrounding the appointment of new leadership is critical to reform and …

Ad Astra Per Aspera: Legal Revision Of Space Laws And Intellectual Property To Cultivate Global Alliance And Innovation, Jaiden E. Haggiag

Honors Undergraduate Theses

This thesis explores the inadequate nature of the current legal space regime and points out the gaps in outer space laws, including the following: Jurisdictional Challenges, Frameworks of Liability, and IP (Intellectual Property) Enforcement, utilizing laws such as the Outer Space Treaty (OST), the Liability Convention, the Registration Convention, the Moon Agreement, the Patent Cooperation Treaty (PCT), and TRIPS, along with national laws like the U.S. Commercial Space Launch Competitiveness Act and The Inventions in Outer Space Act (35 U.S.C. § 105.). Through analysis of current scholarly proposals and treaty evolution and synthesize to provide policy options, the goal of …

Transunion, Vermont Agency, And Statutory Damages Under Article Iii, Randy Beck

Scholarly Works

The Supreme Court concluded in TransUnion LLC v. Ramirez that a plaintiff may not sue to collect statutory damages under a statute like the Fair Credit Reporting Act (FCRA) simply because the defendant violated a right Congress conferred on the plaintiff. Instead, Article III requires the plaintiff to show that the statutory violation resulted in a “concrete” injury with “a ‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a lawsuit in American courts.” The TransUnion Court made no effort to explain how its conclusion could be reconciled with Vermont Agency of Natural Resources v. United States …

Opening The Channels And Speeding The Game: A Short History Of Transactional Forms, Laura M. Scott

Faculty Scholarship

Citators, digests, annotated codes. These standard legal research tools, developed by generations of lawyers and now adapted for the online era, tend to be the province of litigators. Transactional lawyers may also occasionally use these tools, but for the practitioner making and documenting commercial, corporate, real estate, or securities deals, legal forms are often a more useful tool. Used judiciously, these sample documents make drafting more efficient, guide junior business lawyers through unfamiliar transactions, and help identify legal issues to be researched.

For today’s dealmakers, online transactional forms are essential research and drafting tools in their own right, but examining …