Legal History Commons^™

Democratic Policing Before The Due Process Revolution, Sarah Seo

Faculty Scholarship

According to prevailing interpretations of the Warren Court’s Due Process Revolution, the Supreme Court constitutionalized criminal procedure to constrain the discretion of individual officers. These narratives, however, fail to account for the Court’s decisions during that revolutionary period that enabled discretionary policing. Instead of beginning with the Warren Court, this Essay looks to the legal culture before the Due Process Revolution to provide a more coherent synthesis of the Court’s criminal procedure decisions. It reconstructs that culture by analyzing the prominent criminal law scholar Jerome Hall’s public lectures, Police and Law in a Democratic Society, which he delivered in 1952 …

The Role Of Pressure Groups And Problem Definition In Crafting Legislative Solutions To The Opioid Crisis, Taleed El-Sabawi

Faculty Publications

Organized interest groups and federal administrative agencies have historically been influential in defining problem drug use during nationwide crisis. As such, the manner in which these pressure groups defined the problem may have influenced or, at least, provided support for legislators’ decisions to shy away from a criminal justice approach and towards acceptance of a more “health-oriented” — one that did not comprehensively address demand factors or demonstrate a commitment to reforming U.S. drug policy to meet international standards of best practice. In an effort to provide a snapshot of what such involvement may look like, this article explores the …

The Union Of Law And Equity: The United States, 1800-1938, Kellen R. Funk

Faculty Scholarship

David Dudley Field was the architect of the union – or fusion or merger – of equity and law in New York state, and the Field Code was widely adopted in other states. Field’s vision of the union of law and equity has prevailed in the United States, including at the federal level, at least in theory. However, the practise of law and acts of the courts indicate that the reality is rather different. Equity was not sundered by the Field Code or its federal counterpart, the Federal Code of Civil Procedure 1938. Equity continues to operate distinctly in various …

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 …

Originalism And The Law Of The Past, William Baude, Stephen E. Sachs

Faculty Scholarship

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed.

This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of …

The Emergence Of The American Constitutional Law Tradition, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Commercial Speech Protection As Consumer Protection, Felix T. Wu

Articles

The Supreme Court has long said that “the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides.” In other words, consumers—the recipients or listeners of commercial speech—are the ones the doctrine is meant to protect. In previous work, I explored the implications of taking this view seriously in three contexts: compelled speech, speech among commercial entities, and unwanted marketing. In each of those contexts, adopting a listener-oriented approach leads to the conclusion that many forms of commercial speech regulation should receive far less First Amendment scrutiny than …

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and …

Immigration Unilateralism And American Ethnonationalism, Robert L. Tsai

Faculty Scholarship

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 …

Control Over Contemporary Photography: A Tangle Of Copyright, Right Of Publicity, And The First Amendment, Jessica Silbey

Faculty Scholarship

Professional photographers who make photographs of people negotiate a tense relationship between their own creative freedoms and the right of their subjects to control their images. This negotiation formally takes place over the terrain of copyright, right of publicity, and the First Amendment. Informally, photographers describe implied understandings and practice norms guiding their relationship with subjects, infrequently memorialized in short, boilerplate contractual releases. This short essay explores these formal and informal practices described by contemporary professional photographers. Although the evidence for this essay comes from professional photographic practice culled from interviews with contemporary photographers, the analysis of the evidence speaks …

The Ilc’S Past Practice On Progressive Development And Codification Of International Law—An Empirical Analysis Focusing On The Law Of The Sea, Law Of Treaties And State Responsibility, Patrícia Galvão Teles

FIU Law Review

No abstract provided.

Codification And Progressive Development Of International Law: A Legislative History Of Article 13(1)(A) Of The Charter Of The United Nations, Arnold N. Pronto

FIU Law Review

No abstract provided.

Revisionist History? Responding To Gun Violence Under Historical Limitations, Michael Ulrich

Faculty Scholarship

In the D.C. Circuit case Heller v. District of Columbia (Heller II), Judge Kavanaugh wrote that “Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Now Justice Kavanaugh, will he find support on the highest court for what was then a dissenting view? Chief Justice Roberts, during oral arguments for Heller I, asked “Isn’t it enough to…look at the various regulations that were available at the time…and determine how these—how this restriction and the scope of this …

Justifying Copyright In The Age Of Digital Reproduction: The Case Of Photographers, Jessica Silbey

Faculty Scholarship

This Article explores the justification for copyright from two sources: seminal court cases and accounts from photographic authors. It takes as its premise that copyright protection requires justification, not only because creative work is frequently made and disseminated without reliance on copyright, but because, in the age of digital technology, practices of creative production and dissemination have sufficiently changed to question the existing contours of the forty-year-old Copyright Act. Why read the photographers’ stories alongside the court cases? Each present contested views of copyright’s relation to creativity. At times, the photographers’ accounts and the case law strengthen and reinforce each …

An Appraisal Of Maqāsid Al-ShariʿAh Classic And Recent Literature: Systematic Analysis, Ahmad Syukran Baharuddin Asb, Wan Abdul Fattah Wan Ismail Wafwi, Lukman Abdul Mutalib Lam, Muhammad Hazim Ahmad Mha, Ruqayyah Razak Rr, Nurul Syahirah Saharudin Nss, Muhammad Aiman Abdull Rahim Maar

Library Philosophy and Practice (e-journal)

Maqāsid al-Shariʿah has been typically defined as the objectives behind the Islamic rulings or the Shariʿah higher intent. This knowledge is very important for the mujtahids and Islamic scholars not only to understand or interpret the Shariʿah legal texts, but also to deduce solutions for contemporary problems faced by Muslims. Maqāsid al-Shariʿah is traditionally divided into three levels of necessity, which are necessities (al-Ḍaruriyyāt), needs (al-Ḥajiyyāt), and luxuries (al-Taḥsiniyyāt). Extensive discussion of maqāsid al-shariʿah in Islamic jurisprudence has led to the classification of five elements of preservation, inter alia, protection of faith or …

Rethinking The Federal Indian Status Test: A Look At The Supreme Court's Classification Of The Freedmen Of The Five Civilized Tribe Of Oklahoma, Clint Summers

American Indian Law Journal

No abstract provided.

August 2017 - August 2018 Case Law On American Indians, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Dickinson Law Approved By American Bar Association, Pamela G. Smith

Perspectives on Law School History

No abstract provided.

Plus Ça Change: A Century-Old Removal For Cause, Michael E. Herz

Online Publications

Lots of ink has been spilled over when Congress can give federal officials for-cause protection. One would think that a necessary antecedent to that discussion would be a determination of exactly what for-cause protection entails. What is “inefficiency, neglect of duty, or malfeasance in office”? Yet no one knows; the debate over the permissibility of that restriction proceeds in blissful uncertainty as to its scope.

Second Class Citizenship? The Plight Of Naturalized Special Immigrant Juveniles, Irene Scharf

Cardozo Law Review

No abstract provided.

Judicializing History: Mass Crimes Trials And The Historian As Expert Witness In West Germany, Cambodia, And Bangladesh, Rebecca Gidley, Mathew Turner

Genocide Studies and Prevention: An International Journal

Henry Rousso warned that the engagement of historians as expert witnesses in trials, particularly highly politicized proceedings of mass crimes, risks a judicialization of history. This article tests Rousso’s argument through analysis of three quite different case studies: the Frankfurt Auschwitz trial; the Extraordinary Chambers in the Courts of Cambodia; and the International Crimes Tribunal in Bangladesh. It argues that Rousso’s objections misrepresent the Frankfurt Auschwitz trial, while failing to account for the engagement of historical expertise in mass atrocity trials beyond Europe. Paradoxically, Rousso’s criticisms are less suited to the European context that represents his purview, and apply more …

The War(S) On Christmas In The Law Books, Kurt Metzmeier

Faculty and Staff Scholarship

This piece takes a reference to a December 25, 1823, session of the Kentucky Senate as a starting point to discuss the legal history of Christmas in America and specifically Kentucky from the Puritan era when it was banned, to the early 1800s when it was officially ignored, to the late 19th century when it was raised to a legal holiday (and when many of the day's tradition were created).

Ethical Cannabis Lawyering In California, Francis J. Mootz Iii

St. Mary's Journal on Legal Malpractice & Ethics

Cannabis has a long history in the United States. Originally, doctors and pharmacists used cannabis for a variety of purposes. After the Mexican Revolution led to widespread migration from Mexico to the United States, many Americans responded by associating this influx of foreigners with the use of cannabis, and thereby racializing and stigmatizing the drug. After the collapse of prohibition, the federal government repurposed its enormous enforcement bureaucracy to address the perceived problem of cannabis, despite the opposition of the American Medical Association to this new prohibition. Ultimately, both the states and the federal government classified cannabis as a dangerous …

Prosecuting Chinese "Spies": An Empirical Analysis Of The Economic Espionage Act, Andrew Chongseh Kim

Cardozo Law Review

No abstract provided.

The Depravity Of The 1930s And The Modern Administrative State, Steven G. Calabresi, Gary Lawson

Faculty Scholarship

Gillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.

First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the normally unchallenged …

Resolving The Conflict Between The Temporarily Unavailable Juror And New York's Mandatory 24-Hour Limit On The Separation Of Jurors During Deliberations, Michael Pasinkoff

St. John's Law Review

(Excerpt)

Allowing defendants to move for and obtain mistrials based upon a delay in resuming jury deliberations does nothing to render the process fairer or to protect any right of a defendant. Granting these applications in the absence of prejudice to a defendant wastes scarce and valuable judicial resources, requires the state to unnecessarily retry a case, and makes witnesses again take time from their lives to testify in court. Indeed, in many cases, a defendant is afforded a tactical advantage by forcing the state to retry the case. There are of course occasions when the law accepts conferring a …

Ike’S Constitutional Venturing: The Institutionalization Of The Cia, Covert Action, And American Interventionism, Jacob A. Bruggeman

Grand Valley Journal of History

U.S. covert action from the 1950s onward was shaped, in part, by the success a CIA-orchestrated coup d'état in which the United States deposed the popular Iranian nationalist Mohammed Mossadegh. Ordered by president Eisenhower, the coup in Iran set the precedent for utilizing covert action as a means of achieving State goals. In so doing, President Eisenhower overturned the precedent set by his immediate predecessor, President Truman: that is, the precedent of using the CIA in its intended function, gathering and evaluating intelligence. The coup, then, is an exemplary case of venture constitutionalism. Eisenhower, in ordering the coup, extended his …

Lincoln, Presidential Power, And The Rule Of Law, Daniel A. Farber

Northwestern University Law Review

Every era has its unique challenges, but history may still offer lessons on how law empowers and restrains presidents. This Essay examines how President Lincoln negotiated the tension between crisis authority and the rule of law. This analysis requires an appreciation of the wartime imperatives, institutions, and political forces confronting Lincoln, as well as the legal framework in which he acted. Similar issues unexpectedly arose in our times in the aftermath of the 9/11 attacks, providing a new point of comparison with Lincoln’s era. We need to better understand how political actors and institutions, the media, and public opinion can …

Amazing Facts About The Jfk Assassination, Donald E. Wilkes Jr.

Popular Media

During the past half century, resourceful scholars, journalists and private researchers within the JFK assassination research community, to their enormous credit, repeatedly have uncovered relevant evidence unavailable or overlooked during the official investigations. The members of this research community are the persons who have been the most active in examining the millions of pages of previously secret government documents relating to the assassination that have been declassified and released to the public since 1992.

While many key factual questions about the JFK assassination remain answered, we now, in 2018, know more of the facts surrounding the assassination than ever before. …

From Sagebrush Law To A Modern Profession, Kristina J. Running

Articles

No abstract provided.