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Articles 3691 - 3720 of 10020

Full-Text Articles in Legal History

The Constitution Of Cádiz In Florida, M C. Mirow Jan 2012

The Constitution Of Cádiz In Florida, M C. Mirow

Faculty Publications

The article explores the vibrant constitutional community that existed in St. Augustine and the province of East Florida in the final decade of Spanish control of the area. Based on relatively unexplored primary sources, it reveals a great deal of unknown information about the importance of the Constitution in Florida immediately before the territory was transferred to the United States. The article provides full description of the Constitution's promulgation in 1812 and a second promulgation of the Constitution in 1820 (something unknown in the general literature). It also addresses the construction of the St. Augustine monument to the Constitution erected …

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Justice John Paul Stevens, Originalist, Diane Marie Amann Jan 2012

Justice John Paul Stevens, Originalist, Diane Marie Amann

Scholarly Works

Commentators, including the author of a recent book on the Supreme Court, often attempt to give each Justice a methodological label, such as “practitioner of judicial restraint,” “legal realist,” “pragmatist,” or “originalist.” This Essay first demonstrates that none of the first three labels applies without fail to Justice John Paul Stevens; consequently, it explores the extent to which Justice Stevens’s jurisprudence paid heed to the fourth method, “originalism.” It looks in particular at Justice Stevens’s opinions in recent cases involving firearms, national security, and capital punishment. Somewhat at odds with conventional wisdom, the Essay reveals Justice Stevens as a kind …

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Minnie Liddell's Forty-Year Quest For Quality Public Education Remains A Dream Deferred, Kimberly Jade Norwood Jan 2012

Minnie Liddell's Forty-Year Quest For Quality Public Education Remains A Dream Deferred, Kimberly Jade Norwood

Scholarship@WashULaw

This Article is a historic account of the hopes and dreams that a mother had for her children and her efforts to make those hopes and dreams come true. The mother, Minnie Liddell, never imagined, when she first became a mom in 1959, or years later after the birth of her fifth child, or even after she filed a lawsuit against a city school district, that she would become a pioneer and icon in the school desegregation history of St. Louis, Missouri. She really only wanted a quality public education for her children, for black children, for all children. This …

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The Demise Of The Federal Shield Law, William E. Lee Jan 2012

The Demise Of The Federal Shield Law, William E. Lee

Cardozo Arts & Entertainment Law Journal

No abstract provided.

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Love And War, Christina D. Ponsa-Kraus Jan 2012

Love And War, Christina D. Ponsa-Kraus

Faculty Scholarship

Legal historians: Find a window to read Rose Cuison Villazor’s “The Other Loving,” published in the NYU Law Review last fall. Although Villazor, Associate Professor of Law at Hofstra, does not identify primarily as a legal historian, she has written more than one historical work well worth a read. An earlier article examined alien land laws in the United States, telling the story of Oyama v. California (1948), which held unconstitutional a provision of California’s Alien Land Law that discriminated against owners of property bought by parents who were ineligible to become U.S. citizens. This more recent article, in …

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Experimental Pragmatism In The Third Globalization, Justin Deystone Jan 2012

Experimental Pragmatism In The Third Globalization, Justin Deystone

Publications

Pragmatism dominates contemporary legal thought, but knowing this isn’t knowing so much. Legal pragmatism means different things to different people, and as this essay argues, minimalist and experimentalist forms of regulation both share a broadly pragmatic sensibility about law and democracy. As a consequence, we need to tease out the various threads of legal pragmatism in the hope of distinguishing the pragmatisms that work from the ones that don’t, or less pragmatically, the ones that are just from the ones that are not. This knowledge will come from an ongoing assessment of the political stakes immanent in the pragmatisms, and …

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Blue-Collar Crime: Conspiracy, Organized Labor, And The Anti-Union Civil Rico Claim, Benjamin Levin Jan 2012

Blue-Collar Crime: Conspiracy, Organized Labor, And The Anti-Union Civil Rico Claim, Benjamin Levin

Publications

This Article provides an historically-rooted analysis of a recent spate of civil RICO complaints arising from labor union organizing campaigns. The Article historicizes contemporary civil RICO suits against labor unions by analogizing to nineteenth century conspiracy prosecutions of unions. In tracing this history of organized labor’s social standing, the Article addresses the cultural framing of the union and its place in political and cultural discourse over the past century. The civil RICO complaints have received limited scholarly attention mainly focusing on issues of federal preemption; this Article argues for a broad reading of the cases as a way to understand …

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Race As A Legal Concept, Justin Deystone Jan 2012

Race As A Legal Concept, Justin Deystone

Publications

Race is a legal concept, and like all legal concepts, it is a matrix of rules. Although the legal conception of race has shifted over time, up from slavery and to the present, one element in the matrix has remained the same: the background rules of race have always taken a view of racial identity as a natural aspect of human biology. To be sure, characterizations of the rule have oftentimes kept pace with developments in race science, and the original invention of race as a rationale for the subordination of certain human populations is now a rationale with little …

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Natural Law Theory: Its Past And Its Present, John M. Finnis Jan 2012

Natural Law Theory: Its Past And Its Present, John M. Finnis

Journal Articles

The past in which theory of this kind had its origins is notably similar to the present. For this is theory-practical theory-which articulates a critique of critiques, and the critiques it criticizes, rejects and replaces have much in common whether one looks at them in their fifth century B.C. Hellenic (Sophistic) or their modem (Enlightenment, Nietzschean or postmodern) forms.

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The Missing Jury: The Neglected Role Of Juries In Eighth Amendment Punishments Clause Determinations, Meghan J. Ryan Jan 2012

The Missing Jury: The Neglected Role Of Juries In Eighth Amendment Punishments Clause Determinations, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

A recent study of death penalty cases has revealed that judges, who are ordinarily thought of as the guardians of criminal defendants’ constitutional rights, are more likely to impose harsher punishments than jurors. This may be unsettling in its own right, but it is especially concerning because judges are the individuals charged with determining whether punishments are unconstitutionally cruel and unusual under the Eighth Amendment, and these determinations are supposed to be based on “the evolving standards of decency that mark the progress of a maturing society.” The study suggests that judges are out of step with society’s moral norms, …

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Against Theories Of Punishment: The Thought Of Sir James Fitzjames Stephen, Marc O. Degirolami Jan 2012

Against Theories Of Punishment: The Thought Of Sir James Fitzjames Stephen, Marc O. Degirolami

Scholarly Articles

This paper reflects critically on what is the near-universal contemporary method of conceptualizing the tasks of the scholar of criminal punishment. It does so by the unusual route of considering the thought of Sir James Fitzjames Stephen, a towering figure in English law and political theory, one of its foremost historians of criminal law, and a prominent public intellectual of the late Victorian period. Notwithstanding Stephen's stature, there has as yet been no sustained effort to understand his views of criminal punishment. This article attempts to remedy this deficit. But its aims are not exclusively historical. Indeed, understanding Stephen's ideas …

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Constitutional Implications Of Title Ix Compliance In Colleges And Universities, Michael Rosen Jan 2012

Constitutional Implications Of Title Ix Compliance In Colleges And Universities, Michael Rosen

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

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The Tokyo Trial At Richmond: Digitizing The Sutton Collection Of Documents From The International Military Tribunal For The Far East, Suzanne Corriell Jan 2012

The Tokyo Trial At Richmond: Digitizing The Sutton Collection Of Documents From The International Military Tribunal For The Far East, Suzanne Corriell

Law Faculty Publications

As an ongoing project, the effort to digitize and present the Sutton Collection is far from complete. Our effort has the potential to become a leading resource for materials relating to the Tokyo trial and, with the help of our faculty partners, to demonstrate relevancy of the trial to current issues in international criminal law and to the development of Japan’s role in modern East Asia. As the project team learns more about the collection, consults with similar projects, and continues to implement innovative applications, processes are constantly updated. The coming year should bring further progress, and we look forward …

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Book Review: Witches, Wife Beaters, And Whores: Common Law And Common Folk In Early America, John R. Pagan Jan 2012

Book Review: Witches, Wife Beaters, And Whores: Common Law And Common Folk In Early America, John R. Pagan

Law Faculty Publications

Book Review of Witches, Wife Beaters, and Whores: Common Law and Common Folk in Early America by Elaine Forman Crane

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A Railway, A City, And The Public Regulation Of Private Property: Cpr V. City Of Vancouver, Douglas C. Harris Jan 2012

A Railway, A City, And The Public Regulation Of Private Property: Cpr V. City Of Vancouver, Douglas C. Harris

All Faculty Publications

The doctrine of regulatory or constructive taking establishes limits on the public regulation of private property in much of the common law world. When public regulation becomes unduly onerous — so as, in effect, to take a property interest from a private owner — the public will be required to compensate the owner for its loss. In 2000, the City of Vancouver passed a by-law that limited the use of a century-old rail line to a public thoroughfare. The Canadian Pacific Railway, which owned the line, claimed the regulation amounted to a taking of its property for which the city …

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No History, No Certainty, No Legitimacy . . . No Problem: Originalism And The Limits Of Legal Theory, Gary S. Lawson Jan 2012

No History, No Certainty, No Legitimacy . . . No Problem: Originalism And The Limits Of Legal Theory, Gary S. Lawson

Faculty Scholarship

Professor Martin H. Redish is on the warpath. Like General Sherman marching toward Atlanta (or Justin Tuck marching toward Tom Brady), Professor Redish, together with Matthew Arnould,1 lays waste to every constitutional theory that he encounters. Originalism, with its “belief that constitutional interpretation should be characterized exclusively by an effort to determine the Constitution’s meaning by means of some form of historical inquiry,”2 generates “an often contrived and opaque veil of historical inquiry”3 that provides “an ideal smokescreen behind which judges may pursue their personal[,] moral, political[,] or economic goals with relative impunity.”4 Nontextual theories, for their part, “permit[] selective …

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Federalism As A Safeguard Of The Separation Of Powers, Jessica Bulman-Pozen Jan 2012

Federalism As A Safeguard Of The Separation Of Powers, Jessica Bulman-Pozen

Faculty Scholarship

States frequently administer federal law, yet scholars have largely overlooked how the practice of cooperative federalism affects the balance of power across the branches of the federal government. This Article explains how states check the federal executive in an era of expansive executive power and how they do so as champions of Congress, both relying on congressionally conferred authority and casting themselves as Congress's faithful agents. By inviting the states to carry out federal law, Congress, whether purposefully or incidentally, counteracts the tendency of statutory ambiguity and broad delegations of authority to enhance federal executive power. When states disagree with …

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On The American Paradox Of Laissez Faire And Mass Incarceration, Bernard E. Harcourt Jan 2012

On The American Paradox Of Laissez Faire And Mass Incarceration, Bernard E. Harcourt

Faculty Scholarship

In The Illusion of Free Markets (Harvard 2011), Professor Bernard Harcourt analyzes the evolution of a distinctly American paradox: in the country that has done the most to promote the idea of a hands-off government, we run the single largest prison complex in the entire world. Harcourt traces this paradox back to the eighteenth century and demonstrates how the presumption of government incompetence in economic affairs has been coupled with that of government legitimacy in the realm of policing and punishing. Harcourt shows how these linked presumptions have fueled the expansion of the carceral sphere in the nineteenth and twentieth …

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Racial Inclusion, Exclusion And Segregation In Constitutional Law, Michelle Adams Jan 2012

Racial Inclusion, Exclusion And Segregation In Constitutional Law, Michelle Adams

Articles

In Part I of the Article, I examine early cases in which the Court described segregation as a form of resource "lock-up." In several cases leading up to Brown, the Court detailed how racial segregation allows a more dominant group to hoard substantial societal resources. In these early cases, the Court's focus was on segregation as a mechanism for excluding individuals from valuable benefits on the basis of race; it did not speak explicitly to the harms associated with racial classification schemes. In this Part of the Article, I also return to Brown v. Board of Education and explore the …

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Forty Years Of Originalism, Joel Alicea Jan 2012

Forty Years Of Originalism, Joel Alicea

Scholarly Articles

While Professor Noah Feldman has underlined the role Justice Hugo Black played in the development of modern originalism, it was not until Bork's article in 197 1 that the modern originalist movement took flight. [...]having just passed the 40th anniversary of that landmark essay, it is appropriate that we survey how modern originalism began, how it has changed, and what challenges lie ahead. According to Bork, judicial review by the Warren Court was founded on a flawed premise: that courts must "'make fundamental value choices' in order to 'protect our constitutional rights and liberties.'" But if the Constitution already makes …

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Globalization Through The Lens Of Palace Wars: What Elite Lawyers' Careers Can And Cannot Tell Us About Globalization Of Law, Frank W. Munger Jan 2012

Globalization Through The Lens Of Palace Wars: What Elite Lawyers' Careers Can And Cannot Tell Us About Globalization Of Law, Frank W. Munger

Articles & Chapters

Yves Dezalay and Bryant Garth's three studies-Dealing in Virtue (1996), The Internationalization of Palace Wars (2002), Asian Legal Revivals (2010)-trace the globalization of law through "palace wars" among elites for positions in the "fields of state power." They conclude that globalization occurs through links among elites engaged in their domestic palace wars, which independently establish the symbolic power of law in each state. The article argues that while Dezalay and Garth provide an invaluable new starting point for further research, they do not adequately consider an emerging field of research documenting alternative pathways of legal development pursued by local activists …

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Notes Toward A Critical Contemplation Of Law, Sonia K. Katyal Jan 2012

Notes Toward A Critical Contemplation Of Law, Sonia K. Katyal

Faculty Scholarship

In this tribute to Professor Derrick Bell’s legacy, Professor Katyal reflects on one of Bell’s greatest gifts: the necessary, and perhaps unfinished gift of critical contemplation of law, along with its possibilities and its concomitant limitations. In her paper, Katyal reflects on two seemingly disparate areas of civil rights that might benefit from Bell’s critical vision: the area of LGBT rights and equality, and federal Indian law. Relying on some of Bell’s most valuable insights, Katyal calls for the creation of a “critical sexuality studies” and a “critical indigenous studies” that employs some of Bell’s groundbreaking lessons in reimagining broader …

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Heeding The Clarion Call For Sustainable, Spiritual Western Landscapes: Will The People Be Granted A New Forest Service?, Charles Wilkinson, Daniel Cordalis Jan 2012

Heeding The Clarion Call For Sustainable, Spiritual Western Landscapes: Will The People Be Granted A New Forest Service?, Charles Wilkinson, Daniel Cordalis

Publications

No abstract provided.

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More Than One Lane Wide: Against Hierarchies Of Helping In Progressive Legal Advocacy, Rebecca Sharpless Jan 2012

More Than One Lane Wide: Against Hierarchies Of Helping In Progressive Legal Advocacy, Rebecca Sharpless

Articles

Progressive legal scholars and practitioners have created a hierarchy within social justice lawyering. Direct service attorneys-nonprofit attorneys who focus on helping individuals in civil cases-sit at the bottom. In the 1960s, progressive theorists advanced a negative portrayal of direct service attorneys as a class. This discourse has continued through different phases in the development of progressive legal theory. Direct service work is done primarily by women in the service of women, has the aesthetic of traditional women's work, and can be understood as embodying the thesis that women have a greater existential and psychological connection to others than men. Like …

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Meaning, Purpose, And Cause In The Law Of Deception, Gregory Klass Jan 2012

Meaning, Purpose, And Cause In The Law Of Deception, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Laws designed to affect the flow of information take many forms: rules against misrepresentation, disclosure requirements, secrecy requirements, rules governing the formatting or packaging of information, and interpretive rules designed to give people new reasons to share information. Together these and similar rules constitute the law of deception: laws that aim to prevent or cure deception. One encounters similar problems of design, function and justification throughout the law of deception. Yet very little has been written about the category as a whole. This article begins to sketch a general theory. It identifies three regulatory approaches. Interpretive laws, such as common …

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Assessing The Impeachment Of President Bill Clinton From A Post 9/11 Perspective, Susan Low Bloch Jan 2012

Assessing The Impeachment Of President Bill Clinton From A Post 9/11 Perspective, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

The impeachment of President Clinton was more a circus than a serious effort to remove the President of the United States. The reason is simple: Few people--in the Congress or the country--wanted to remove him or believed the impeachment effort would actually result in his removal. Instead, it was a partisan political effort to embarrass Clinton and "send a message" of disapproval. Congress was attaching a "scarlet letter." But this was an indulgence that posed considerable danger that few in Congress considered. In particular, few tried to assess the potential impact this use of the process would have on the …

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Agricultural Revolutions And Agency Wars: How The 1950s Laid The Groundwork For "Silent Spring", Roger E. Meiners, Andrew P. Morriss Jan 2012

Agricultural Revolutions And Agency Wars: How The 1950s Laid The Groundwork For "Silent Spring", Roger E. Meiners, Andrew P. Morriss

Faculty Scholarship

This chapter from the book Silent Spring at 50 analyzes the 1950s struggle over US food policy between USDA and FDA and how that struggle set the stage for the impact of Rachel Carson’s Silent Spring. Using a public choice/interest group analysis, the chapter examines how the two agencies reacted to the large scale transformation of US agriculture and food production during and following World War II. Just as agriculture underwent a dramatic productivity revolution that changed the face of American farming, marketing, new home appliances, and increased participation in the labor force by women radically changed the kinds of …

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The Pragmatic Court: Reinterpreting The Supreme People’S Court Of China, Taisu Zhang Jan 2012

The Pragmatic Court: Reinterpreting The Supreme People’S Court Of China, Taisu Zhang

Faculty Scholarship

This Article examines the institutional motivations that underlie several major developments in the Supreme People's Court of China's recent policy-making. Since 2007, the SPC has sent off a collection of policy signals that escapes sweeping ideological labeling: it has publically embraced a populist view of legal reform by encouraging the use of mediation in dispute resolution and popular participation in judicial policy-making, while continuing to advocate legal professionalization as a long-term policy objective. It has also eagerly attempted to enhance its own institutional competence by promoting judicial efficiency, simplifying key areas of civil law, and expanding its control over lower …

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From Multiculturalism To Technique: Feminism, Culture And The Conflict Of Laws Style, Karen Knop, Ralf Michaels, Annelise Riles Jan 2012

From Multiculturalism To Technique: Feminism, Culture And The Conflict Of Laws Style, Karen Knop, Ralf Michaels, Annelise Riles

Faculty Scholarship

The German chancellor, the French president and the British prime minister have each grabbed world headlines with pronouncements that their state’s policy of multiculturalism has failed. As so often, domestic debates about multiculturalism, as well as foreign policy debates about human rights in non-Western countries, revolve around the treatment of women. Yet there is also a widely noted brain drain from feminism. Feminists are no longer even certain how to frame, let alone resolve, the issues raised by veiling, polygamy and other cultural practices oppressive to women by Western standards. Feminism has become perplexed by the very concept of “culture.” …

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Historical Gloss And The Separation Of Powers, Curtis A. Bradley, Trevor W. Morrison Jan 2012

Historical Gloss And The Separation Of Powers, Curtis A. Bradley, Trevor W. Morrison

Faculty Scholarship

Arguments based on historical practice are a mainstay of debates about the constitutional separation of powers. Surprisingly, however, there has been little sustained academic attention to the proper role of historical practice in this context. The scant existing scholarship is either limited to specific subject areas or focused primarily on judicial doctrine without addressing the use of historical practice in broader conceptual or theoretical terms. To the extent that the issue has been discussed, most accounts of how historical practice should inform the separation of powers require “acquiescence” by the branch of government whose prerogatives the practice implicates, something that …

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