Legal History Commons^™

Representing Interdisciplinarity, Kunal Parker

Articles

No abstract provided.

Memorial: Nancy P. Johnson (1949-2014), Kristina L. Niedringhaus

Faculty Publications By Year

No abstract provided.

The Past, Present, And Future Of Canadian Environmental Law: A Critical Dialogue, Jason Maclean, Meinhard Doelle, Chris Tollefson

Articles, Book Chapters, & Popular Press

In the critical dialogue that follows, Jason MacLean, an assistant professor at the Bora Laskin Faculty of Law at Lakehead University whose research focuses on environmental law, explores some of the most salient aspects of the past, present, and future of Canadian environmental law with two of Canada’s leading environmental scholars and practitioners: Meinhard Doelle, professor of law and associate dean of research at the Schulich School of Law and director of the Marine & Environmental Law Institute at Dalhousie University; and Chris Tollefson, professor and Hakai Chair in Environmental Law and Sustainability and executive director of the Environmental Law …

A War For Liberty: On The Law Of Conscientious Objection, Jeremy K. Kessler

Faculty Scholarship

One common understanding of the Second World War is that it was a contest between liberty and tyranny. For many at the time – and for still more today – ‘liberty’ meant the rule of law: government constrained by principle, procedure, and most of all, individual rights. For those states that claimed to represent this rule-of-law tradition, total war presented enormous challenges, even outright contradictions. How would these states manage to square the governmental imperatives of military emergency with the legal protections and procedures essential to preserving the ancient ‘liberty of the subject’? This question could be and was asked …

John Merefield's Common Pleas Reports, William Hamilton Bryson

Law Faculty Publications

John Merefield of Crewkerne, Somerset, was admitted to the Inner Temple on 14 February 1612, and he was called to the bar on 15 October 1620. He gave readings in 1621 and 1641; on 4 November 1638, he was called to the bench. Merefield was created a serjeant in October 1660, and he died in October 1666.

How The Federal Cause Of Action Relates To Rights, Remedies, And Jurisdiction, John F. Preis

Law Faculty Publications

Time and again, the U.S. Supreme Court has declared that the federal cause of action is "analytically distinct" from rights, remedies, and jurisdiction. Yet, just pages away in the U.S. Reports are other cases in which rights, remedies, and jurisdiction all hinge on the existence of a cause of action. What, then, is the proper relationship between these concepts?

The goal of this Article is to articulate that relationship. This Article traces the history of the cause of action from eighteenth-century England to its modem usage in the federal courts. This history demonstrates that the federal cause of action is …

Introduction: War Measures And The Repression Of Radicalism, 1914-1939, Barry Wright, Eric Tucker, Susan Binnie

Articles & Book Chapters

This fourth volume in the Canadian State Trials series, Security, Dissent, and the Limits of Toleration in War and Peace, 1914–1939, brings readers to the period of the First World War and the inter-war years. it follows an approach similar to that of others in the series. the central concern remains the legal responses of Canadian governments to real and perceived threats to the security of the state. the aim is to provide a representative and relatively comprehensive examination of Canadian experiences with these matters, placed in broader historical and comparative context.

Law Libraries And Laboratories: The Legacies Of Langdell And His Metaphor, Richard A. Danner

Faculty Scholarship

Law Librarians and others have often referred to Harvard Law School Dean C.C. Langdell’s statements that the law library is the lawyer’s laboratory. Professor Danner examines the context of what Langdell through his other writings, the educational environment at Harvard in the late nineteenth century, and the changing perceptions of university libraries generally. He then considers how the “laboratory metaphor” has been applied by librarians and legal scholars during the twentieth century and into the twenty-first. The article closes with thoughts on Langdell’s legacy for law librarians and the usefulness of the laboratory metaphor.

Originalism As A Theory Of Legal Change, Stephen E. Sachs

Faculty Scholarship

Originalism is usually defended as a theory of interpretation. This Article presents a different view. Originalism ought to be defended, if at all, not based on normative goals or abstract philosophy, but as a positive theory of American legal practice, and particularly of our rules for legal change.

One basic assumption of legal systems is that the law, whatever it is, stays the same until it's lawfully changed. Originalism begins this process with an origin, a Founding. Whatever rules we had when the Constitution was adopted, we still have today -- unless something happened that was authorized to change …

Habermas, The Public Sphere, And The Creation Of A Racial Counterpublic, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

In The Structural Transformation of the Public Sphere, Jürgen Habermas documented the historical emergence and fall of what he called the bourgeois public sphere, which he defined as “[a] sphere of private people come together as a public . . . to engage [public authorities] in a debate over the general rules governing relations in the basically privatized but publicly relevant sphere of commodity exchange and social labor.” This was a space where individuals gathered to discuss with each other, and sometimes with public officials, matters of shared concern. The aim of these gatherings was not simply discourse; these gatherings …

Magna Charta: The Charter Of The Forest, And The Prerogatives Of Kings, Allen E. Shoenberger

Faculty Publications & Other Works

No abstract provided.

The Forgotten Jurisprudential Debate: Catholic Legal Thought’S Response To Legal Realism, John M. Breen, Lee J. Strang

Faculty Publications & Other Works

No abstract provided.

No College, No Prior Clerkship: How Jim Marsh Became Justice Jackson’S Law Clerk, John Q. Barrett

Faculty Publications

(Excerpt)

In his first four years on the Supreme Court, Justice Robert H. Jackson employed, in sequence, three young attorneys as his law clerks. The first, John F. Costelloe, was a Harvard Law School graduate and former Harvard Law Review editor who until summer 1941 was, like then attorney general Jackson, working at the U.S. Department of Justice. Costelloe became Justice Jackson’s first law clerk shortly after his July 1941 appointment to the Court and stayed for a little over two years. Jackson’s next law clerk, Phil C. Neal, came to Jackson in 1943 after graduating from Harvard Law School, …

Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey

Journal Articles

For a symposium on Teaching Ferguson, this essay considers how the standard introductory constitutional law course evades the history of legal struggle against institutionalized anti-black violence. The traditional course emphasizes the drama of anti-majoritarian judicial expansion of substantive rights. Looming over the doctrines of equal protection and due process, the ghost of Lochner warns of dangers of judicial leadership in substantive constitutional change. This standard narrative tends to lower expectations for constitutional justice, emphasizing the virtues of judicial modesty and formalism.

By supplementing the ghost of Lochner with the ghost of comparably infamous and influential case, United States v. Cruikshank …

The Law In Nazi Germany: Ideology, Opportunities And The Perversion Of Justice (Book Review), Thomas Simmons

Faculty Publications

Review of the book: The Law in Nazi Germany: Ideology, Opportunities and the Perversion of Justice (Alan E. Steinweis & Robert D. Rachlin eds., 2013).

A Survey Of The History Of The Death Penalty In The United States, Sheherezade C. Malik, D. Paul Holdsworth

Law Student Publications

Since the founding of Jamestown Colony in 1607, few topics in American life and culture have generated as much controversy, both in terms of persistence and volatility, as the death penalty. Foreign policy, economic recessions, and social movements come to the forefront of national discussion in their own respective ebbs and flows. Capital punishment, however, has been a staple of the American criminal justice system since the early inhabiting of the continent, and has remained a permanent vehicle through which we can enact retribution on the most heinous criminal offenders in our society, ridding ourselves of the worst among us.

Foreword: Theorizing Contemporary Legal Thought, Justin Deystone, Duncan Kennedy

Publications

This is a co-authored foreword to a symposium in Law & Contemporary Problems titled "Theorizing Contemporary Legal Thought." It includes a discussion of the background of the project, a brief summary of the articles included in the issue, and a very short statement from Desautels-Stein and Kennedy on the "loss of faith" indicative of Contemporary Legal Thought.

Acknowledgment Of Supporters, Utton Center, University Of New Mexico - School Of Law

Water Matters!

List of supporters.

Quintessential Intractability: Attractors And Barriers In The Palestinian-Israeli Conflict, Samuel (Muli) Peleg

Cardozo Journal of Conflict Resolution

Intractable conflicts are those that linger despite the parties' understanding that they would be better off resolving their disagreements in negotiation. The obvious ensuing question is why these conflicts persist when rational considerations indicate they should cease. A valuable way to examine this ostensible paradox is through the lens of Dynamical Systems Theory ("DST") and specifically by applying the concept of conflict attractors, which are "patterns of thinking, feeling and acting ... pulling ... toward a negative, destructive state that becomes self-organizing and selfperpetuating." The DST frame is particularly useful to observe intractable conflicts since it focuses on nonlinear, multi-dimensional …

One Of The Perfect People, Ann Puckett

Scholarly Works

This Article eulogizes Nancy P. Johnson.

More Than Decisions: Reviews Of American Law Reports In The Pre-West Era, Richard A. Danner

Faculty Scholarship

In the early nineteenth century, both general literary periodicals and the first American legal journals often featured reviews of new volumes of U.S. Supreme Court and state court opinions, suggesting their importance not only to lawyers seeking the latest cases, but to members of the public. The reviews contributed to public discourse through comments on issues raised in the cases and the quality of the reporting, and were valued as forums for commentary on the law and its role in American society, particularly during debates on codification and the future of the common law in the 1820s. James Kent saw …

Patent Confusion, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.

The Hughes Court Docket Books: The Early Terms, 1929-1933, Barry Cushman

Journal Articles

For many years, the docket books kept by a number of the Hughes Court Justices have been held by the Office of the Curator of the Supreme Court. Yet the existence of these docket books was not widely known, and access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the docket books that the Curator’s Office holds for the early Hughes Court, comprising the 1929-1933 Terms. Only one of …

Habermas, The Public Sphere, And The Creation Of A Racial Counterpublic, Guy-Uriel Charles, Luis Fuentes-Rohwer

Michigan Journal of Race and Law

In The Structural Transformation of the Public Sphere, Jürgen Habermas documented the historical emergence and fall of what he called the bourgeois public sphere, which he defined as “[a] sphere of private people come together as a public . . . to engage [public authorities] in a debate over the general rules governing relations in the basically privatized but publicly relevant sphere of commodity exchange and social labor.” This was a space where individuals gathered to discuss with each other, and sometimes with public officials, matters of shared concern. The aim of these gatherings was not simply discourse; these gatherings …

The Struggle For Administrative Legitimacy, Jeremy K. Kessler

Faculty Scholarship

Nearly forty years ago, Professor James 0. Freedman described the American administrative state as haunted by a "recurrent sense of crisis." "Each generation has tended to define the crisis in its own terms," and "each generation has fashioned solutions responsive to the problems it has perceived." Yet "a strong and persisting challenge to the basic legitimacy of the administrative process" always returns, in a new guise, to trouble the next generation. On this account, the American people remain perennially unconvinced that administrative decisionmaking is "appropriate, proper, and just," entitled to respect and obedience "by virtue of who made the decision" …

The Environmentalist Attack On Environmental Law, John Copeland Nagle

Journal Articles

This essay reviews two books written by leading scholars that express profound dissatisfaction with the ability of environmental law to actually protect the environment. Mary Wood’s “Nature’s Trust: Environmental Law for a New Ecological Age” calls for “deep change in environmental law,” emphasizing the roles that agency issuance of permits to modify the environment and excessive deference to agency decisions play in ongoing environmental destruction. Wood proposes a “Nature’s Trust” built on the public trust doctrine to empower courts to play a much more aggressive role in overseeing environmental decisionmaking. In “Green Governance: Ecological Survival, Human Rights, and the Law …

The Jury And Criminal Responsibility In Anglo-American History, Thomas A. Green

Articles

Anglo-American theories of criminal responsibility require scholars to grapple with, inter alia, the relationship between the formal rule of law and the powers of the lay jury as well as two inherent ideas of freedom: freedom of the will and political liberty. Here, by way of canvassing my past work and prefiguring future work, I sketch some elements of the history of the Anglo-American jury and offer some glimpses of commentary on the interplay between the jury—particularly its application of conventional morality to criminal judgments—and the formal rule of law of the state. My central intent is to pose questions …

Who Invented The Single Tax Principle?: An Essay On The History Of Us Treaty Policy, Reuven S. Avi-Yonah

Articles

In 1997, I wrote an article on the international tax challenges posed by the then-nascent electronic commerce, in which I suggested that the international tax regime is based on two principles: the benefits principle and the single tax principle. The benefits principle states that active (business) income should be taxed primarily by the country of source, and passive (investment) income should be taxed primarily by the country of residence. This is the famous compromise reached by the four economists at the foundation of the regime in 1923 and is not particularly controversial. It is embodied in every one of the …

The Rise And Fall Of The Consumption Tax, Reuven S. Avi-Yonah

Articles

The year 1974 was an eventful one in U.S. history. For the first time, a president resigned under threat of impeachment. Watergate and the Vietnam War shook Americans’ faith in their government. The economy was reeling from the first oil embargo, and the United States’ prospects seemed bleak. In that context, Professor William Andrews of Harvard Law School published an article that would revolutionize tax scholarship. Against the backdrop of widespread dissatisfaction with the government in general and the income tax in particular, Andrews suggested replacing the income tax with a consumption tax. That suggestion was ironic for anyone familiar …

Repatriation Of Korean Cultural Property Looted By Japan-Can A Sincere Apology Resolve The Centuries-Old Korea/Japan Disputes?, Melissa (Youngjae) Koo

Cardozo Journal of Conflict Resolution

This Note will focus on the disputes between Korea, both North and South Korea, and Japan surrounding Korean cultural property looted by Japan and will explore concrete solutions for resolving such issues through alternative dispute resolution-more specifically, an apology. It will consider two predominant exampies of cultural property looting, which occurred during Japanese invasions of Korea-first, at the end of the sixteenth century and, the second, from 1910 to 1945. Additionally, Japan has frequently been characterized as being a "significant market" for stolen cultural property. It is reported that there are at least 34,157 objects of Korean origin in Japan, …