Legal History Commons^™

Missing In Action: The International Crime Of The Slave Trade, Patricia Viseur Sellers, Jocelyn Getgen Kestenbaum

Articles

The slave trade prohibition is among the first recognized and least prosecuted international crimes. Deftly codified in, inter alia, the 1926 Slavery Convention, the 1956 Supplementary Convention, Additional Protocol II to the Geneva Conventions (AP II), the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, the norm against the slave trade — the precursor to slavery — stands as a peremptory norm, a crime under customary international law, a humanitarian law prohibition and a non-derogable human right. Acts of the slave trade remain prevalent in armed conflicts, including those committed under the Islamic State …

Were Justices Lawyers?, Thomas J. Mcsweeney

Popular Media

No abstract provided.

Evaluating Originalism: Commerce And Emoluments, John Vlahoplus

St. John's Law Review

(Excerpt)

This Article suggests that originalist theories share a core focus that meaningfully competes with pluralist theories. The contest is real and appears in centuries of debates within Anglo-American and civil law. The Article locates the Anglo-American origins of originalism in a novel seventeenth-century method of legal interpretation used to achieve a specific political end: to stifle opposition to the union of Scottish and English subjects of King James after his accession to the English crown in 1603. It details the novel method and the competing traditional method of English legal interpretation. It then evaluates originalist interpretations of the Commerce …

Legal Genres, Thomas J. Mcsweeney

Popular Media

No abstract provided.

Who Are The "We"?, Thomas J. Mcsweeney

Popular Media

No abstract provided.

Putting The People Into Legal History, Thomas J. Mcsweeney

Popular Media

No abstract provided.

The Overly Familiar Treatise, Thomas J. Mcsweeney

Popular Media

No abstract provided.

#Livingwhileblack: Blackness As Nuisance, Jamila Jefferson-Jones, Taja-Nia Y. Henderson

Law Faculty Research Publications

No abstract provided.

When Plea Bargaining Became Normal, William Ortman

Law Faculty Research Publications

No abstract provided.

Demystifying Unconscionability: An Historical And Empirical Analysis, Brian Mccall

Faculty Articles

The doctrine of unconscionability is encrusted with myths. First year law students are taught that the doctrine was created in the twentieth century. Unconscionability is often presented as a novel one, born in the Uniform Commercial Code’s adoption of Section 2-302 in the mid-twentieth century. Even those scholars who are willing to look a bit further afield than the twentieth century for the origins of the unconscionability doctrine typically only reach the mid eighteenth century. In addition to myths surrounding its origin, the doctrine has been presented as a dangerously vague and imprecise concept. Commentators and scholars have likewise characterized …

The Genius Of Hamilton And The Birth Of The Modern Theory Of The Judiciary, William M. Treanor

Georgetown Law Faculty Publications and Other Works

In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern …

Acceptance Speech For Lifetime Achievement Award From Canadian Prison Lawyers Association, Michael Jackson Qc

Dalhousie Law Journal

Acceptance Speech for Lifetime Achievement Award from Canadian Prison Lawyers Association

Nuclear Weapons, The War Powers, And The Constitution: Mutually Assured Destruction?, John M. Dipippa

South Carolina Law Review

No abstract provided.

Financial Oversight And Management Board For Puerto Rico V. Aurelius Investment, Llc, Rafael Cox Alomar

Court Briefs

No abstract provided.

Complicated Lives: Free Blacks In Virginia, 1619-1865, Sherri L. Burr

Faculty Book Display Case

Would the United States have developed differently if Virginia had not passed a law in 1670 proclaiming all subsequently arriving Africans as servants for life, or slaves? What if the state had not stripped all Free Blacks and Indians of voting rights in 1723, or outlawed interracial sex for 337 years?

Complicated Lives upends the pervasive belief that all Africans landing on the shores of Virginia beginning in late August 1619, became slaves. In reality, many of these kidnap victims received the status of indentured servants. Indeed, hundreds of thousands of free African Americans in the South and North owned …

Professionals, Politicos, And Crony Attorneys General: A Historical Sketch Of The U.S. Attorney General As A Case For Structural Independence, Jed Handelsman Shugerman

Faculty Scholarship

We assume that the nineteenth century was an era of patronage, and the twentieth century marked the rise of professionalization. But the Office of the Attorney General reveals an opposite pattern — a troubling rise of cronyism in the DOJ from the early twentieth century.

This Article uses the rough categories of “professional,” “politico,” and “insider” or “crony,” based on each attorney general's background and how he or she rose to the office (rather than based upon their performance in the office.) Most AGs in the nineteenth century were "politicos" (major established political figures) or "professionals" (experienced lawyers relatively separate …

Tenure Matters: The Anatomy Of Tenure And Academic Survival In American Legal Education, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Accommodating Competition: Harmonizing National Economic Commitments, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

This article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.

Immigration Unilateralism And American Ethnonationalism, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This paper arose from an invited symposium on "Democracy in America: The Promise and the Perils," held at Loyola University Chicago School of Law in Spring 2019. The essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the …

Acting Differently: How Science On The Social Brain Can Inform Antidiscrimination Law, Susan Carle

Scholarly Articles in Law Reviews & Journals

Legal scholars are becoming increasingly interested in how the literature on implicit bias helps explain illegal discrimination. However, these scholars have not yet mined all of the insights that science on the social brain can offer antidiscrimination law. That science, which researchers refer to as social neuroscience, involves a broadly interdisciplinary approach anchored in experimental natural science methodologies. Social neuroscience shows that the brain tends to evaluate others by distinguishing between "us" versus "them" on the basis of often insignificant characteristics, such as how people dress, sing, joke, or otherwise behave. Subtle behavioral markers signal social identity and group membership, …

Race, Slavery And Justice: A Justice System Case Study, Camille Cameron

Reports & Public Policy Documents

We do not have to look far today in Canada to see the legacies of slavery in their full effect. One of these legacies is the way in which we have chosen to forget slavery, or perhaps to deny it, and to create a different narrative. “Slavery is Canada’s best-kept secret, locked within the national closet,” asserts Afua Cooper. Ask many Canadians about the history of slavery in Canada and they will talk about the Underground Railroad. This is what many of us learned in school, that slavery existed in America, not in Canada, and that Canada’s heroic, romantic role …

Reality Check: The Need To Repair The Broken System Of Delegating Legislative Power Under The National Emergencies Act, Michael J. Pastrick

Cardozo Law Review de•novo

When the National Emergencies Act was enacted in 1976, Congress could revoke a national emergency declaration by the President by a simple majority vote. Following a major Supreme Court decision in 1983, Congress, to simply retain its own legislative authority, suddenly was required to muster the support of two-thirds of the members of each chamber to override such a declaration. This Article proposes a practical, simple, and sturdy repair to the National Emergencies Act that will limit the potential for executive abuses by requiring Congress to extend, rather than to revoke, a national emergency declaration.

Method And Dialogue In History And Originalism, Logan E. Sawyer Iii

Scholarly Works

There is a sharp separation between the scholarly literature of originalists and professional historians. Originalists cite one another, but regularly ignore recent work by historians. Historians are generally happy to return the favor. Engagement between the two communities is too often limited to methodological disputes and amicus briefs. As a result, historical inquiry offers less to constitutional law than it might, and constitutional lawyers offer less to history than they could. Some of this separation is due to unavoidable methodological tension, but those tensions have not always frustrated productive dialogue. Originalism, in fact, emerged as an important theory of constitutional …

Federally Funded Slaving, Rafael I. Pardo

Scholarship@WashULaw

This Article presents a new frame of reference for thinking about the federal government’s complicity in supporting the domestic slave trade in the antebellum United States. While scholars have accounted for several methods of such support, they have failed to consider how federal bankruptcy legislation during the 1840s functionally created a system of direct financial grants to slave traders in the form of debt discharges. Relying on a variety of primary sources, including manuscript court records that have not been systematically analyzed by any published scholarship, this Article shows how the Bankruptcy Act of 1841 enabled severely indebted slave traders …

Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney

Faculty Publications

One of the major branches of the field of law and literature is often described as "law as literature." Scholars of law as literature examine the law using the tools of literary analysis. The scholarship in this subfield is dominated by the discussion of narrative texts: confessions, victim-impact statements, and, above all, the judicial opinion. This article will argue that we can use some of the same tools to help us understand non-narrative texts, such as law codes and statutes. Genres create expectations. We do not expect a law code to be literary. Indeed, we tend to dissociate the law …

Some Form Of Punishment: Penalizing Women For Abortion, Mary Ziegler

William & Mary Bill of Rights Journal

In 2016, Donald Trump ignited a political firestorm when he suggested that women should be punished for having abortions. Although he backtracked, Trump’s misstep launched a debate about whether women have been or should be punished for having abortions. At the same time, Trump’s comments revealed that punishing women has become far more than an abstraction. In 2016, Indiana resident Purvi Patel became just the most recent visible example when she was sentenced to twenty years for feticide and child neglect for inducing an abortion.

But in spite of the furor created by Trump’s comment and Patel’s conviction, the history …

Being Seen Like A State: How Americans (And Britons) Built The Constitutional Infrastructure Of A Developing Nation, Daniel J. Hulsebosch

William & Mary Law Review

This Article develops the argument that the Federal Constitution of 1787 was conceptualized, drafted, and put into operation not only for American citizens but also for foreign audiences. In a world without supranational governing institutions, a constitution—at least, the Federal Constitution—might serve to promote peaceable international relations based on reciprocal trade and open credit. That at least was the Enlightenment-inflected hope.

Did it work? If early Americans engaged in constitution-making in large part to demonstrate their capacity for self-government, selfdiscipline, and commercial openness to foreign audiences, did anyone notice? Or was it all, regardless of diplomatic purposes and consistent with …

The Dual Lives Of The Emerging Right To Democratic Governance, Gregory H. Fox, Brad R. Roth

Law Faculty Research Publications

No abstract provided.

Community Dignity Takings: Dehumanization And Infantilization Of Communities Resulting From The War On Drugs, Jamila Jefferson-Jones

Law Faculty Research Publications

No abstract provided.

Fail To Comment At Your Own Risk: Does Issue Exhaustion Have A Place In Judicial Review Of Rules?, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

The classic version of the exhaustion-of-remedies requirement generally requires a party to go through all the stages of an administrative adjudication before going to court. However, the doctrine has developed a new permutation, covering situations where a petitioner for judicial review did follow all the steps of the administrative appeals process, but had failed to raise in that process the issues now sought to be litigated in court. In those cases, which have been called “issue exhaustion” cases, the thwarted petitioner will likely be out of luck since normally there is no further opportunity to raise the issue at the …