Legal History Commons^™

'Struck' By Stereotype: Ruth Bader Ginsburg On Pregnancy Discrimination As Sex Discrimination, Neil S. Siegel, Reva B. Siegel

Faculty Scholarship

This is an attempt at recovery. This Essay hopes to call attention to then-Professor Ruth Bader Ginsburg's merits brief in Struck v. Secretary of Defense. The brief has been under appreciated in part because the Supreme Court declined to decide the case. But anyone seeking to understand the origins and nature of Justice Ginsburg's views on sex discrimination would be well advised to read this brief. So would anyone interested in reimagining the bounds of constitutional possibility in the realm of gender equality.

A Coase Theorem For Constitutional Theory, Neil S. Siegel

Faculty Scholarship

There is much to admire about Barry Friedman’s new book, The Will of the People. Explaining how the institution of judicial review was made safe for democracy in America, Friedman’s story is extensively researched, beautifully written, scrupulously nonpartisan about the modern Court, and frequently humorous. What is more, his primary claim - that the Supreme Court of the United States is very much a democratic institution because judicial review always has been responsive to public opinion - is, to a large extent, convincing. I have taught The Will of the People in my first-year constitutional law course, and I plan …

Another Early Pennsylvania Legal Periodical: Journal Of Jurisprudence (1821), Joel Fishman

Law Faculty Publications

In 1821, John Hall published the Journal of Jurisprudence, "a new series of The American Law Journal." It is sometimes cited under the former title or as volume seven of the American Law Journal^l that was the first law periodical published in the United States. The new volume had 542 pages, divided into three issues of 136, 136, and 270 pages. Mathew Carey & Son, one of the leading Philadelphia printers of early, nineteenth-century Philadelphia,² was the printer of the Journal. In antebellum Pennsylvania, Philadelphia served as a major printing center,³ hosting a number of …

The Vanity Of Dogmatizing, Marc O. Degirolami

Faculty Publications

(Excerpt)

The year 1661 saw the publication of Joseph Glanvill’s The Vanity of Dogmatizing, a polemic advocating an intellectual break from Aristotle and the Schoolmen in favor of the sort of empiricism that eventually came to fruition in the philosophy of David Hume. Glanvill was deeply irritated by what he perceived as the encrusted academic orthodoxies of his age: “The Disease of our Intellectuals,” he railed, “is too great, not to be its own [evidence]: And they that feel it not, are not less sick, but stupidly so.” What was needed was a skeptical cast of …

Elusive Equality: The Armenian Genocide And The Failure Of Ottoman Legal Reform, Mark L. Movsesian

Faculty Publications

I would like to thank the organizers for inviting me to deliver some remarks this morning. By way of background, I am not a historian or genocide scholar, but a law professor with an interest in comparative law and religion. Comparative law and religion is a relatively new field. It explores how different legal regimes reflect, and influence, the relationships that religious communities have with the state and with each other. My recent work compares Islamic and Christian conceptions of law, a subject that has engaged Muslims and Christians since their first encounters in the seventh century.

When I approach …

The Case Of The Black-Gloved Rapist: Defining The Public Defender's Role In The California Courts, 1913-1948, Sara Mayeux

Vanderbilt Law School Faculty Publications

This essay traces [these] two competing visions of the public defender in California from 1913 to 1948, and examines how and why the second view ultimately prevailed, at least doctrinally. On the ground, some public defenders may have continued to see themselves primarily as public servants, and some trial judges may have endorsed this view. But in the 1940s, California appellate judges rejected the Progressive ideal of the public defender. They constructed the public defender as an opponent of the state, leaving intact (at least in theory) the American adversary system of criminal justice.

In so doing, they followed the …

David Luban, Review Of Daniel Markovits, A Modern Legal Ethics: Adversary Advocacy In A Democratic Age, David Luban

Georgetown Law Faculty Publications and Other Works

Daniel Markovits offers a novel defense of the traditional partisan advocate’s role, based on the demands of personal integrity. Although he insists that the adversary system requires lawyers to lie and cheat (regardless of the particular ethics rules in place), it is possible to redescribe these lawyerly vices as the virtue of fidelity to a client, expressed through what John Keats called “negative capability”—a suppression of the self in order to allow someone else’s story to shine forth. These are first-personal moral ideals, and Markovits argues against the primacy of second- and third-personal moral ideals (such as Kantianism and utilitarianism) …

A Critical Legal Rhetoric Approach To In Re African-American Slave Descendants Litigation, Lolita Buckner Inniss

Publications

In this paper I apply critical legal rhetoric to the judicial opinion rendered in response to the Defendants' Motion to Dismiss Plaintiffs' Second Amended and Consolidated Complaint in 'In Re African American Slave Descendants', a case concerning the efforts of a group of modern-day descendants of enslaved African-Americans to obtain redress for the harms of slavery. The chief methodological framework for performing critical legal rhetorical analysis comes from the work of Marouf Hasian, Jr. particularly his schema for analysis which he calls substantive units in critical legal rhetoric. Critical legal rhetoric is a potent tool for exposing the …

The Depression Era Sit-Down Strikes And The Limits Of Liberal Labor Law, Ahmed A. White

Publications

This paper explores the history of sit-down strikes from the New Deal Era and beyond and traces their influence on the substance of modern labor law. It argues that, even as the sit-down strikes proved essential to the development of a meaningful system of labor rights, the strikes also had a very different effect. As this paper undertakes to demonstrate, legal and political attacks on labor rights that were originally aimed at the sit-down strikes metastasized into a more general campaign to prohibit a range of militant strike practices, even those bearing little outward resemblance to the original sit-down strikes. …

Provoking Change: Comparative Insights On Feminist Homicide Law Reform, Carolyn B. Ramsey

Publications

The provocation defense, which mitigates murder to manslaughter for killings perpetrated in the heat of passion, is one of the most controversial doctrines in the criminal law because of its perceived gender bias; yet most American scholars and lawmakers have not recommended that it be abolished. This Article analyzes trendsetting feminist homicide law reforms, including the abolition of the provocation defense in three Australian jurisdictions, places these reforms in historical context, and assesses their applicability to the United States. It ultimately advocates reintroducing the concept of justified emotion, grounded in modern equality principles and social values, as a requirement for …

A Defensible Defense?: Reexamining Castle Doctrine Statutes, Benjamin Levin

Publications

Recent years have seen a proliferation of so-called “castle doctrine” statutes – laws that provide home dwellers with more expansive self-defense protections if they resort to lethal force in confrontations with intruders. The passage of such laws and subsequent uses of the defense have captured the public imagination, prompting significant media attention, as well as skeptical and critical scholarship from the legal academic community.

Considering the current prevalence of castle laws and the often polarized nature of the debate concerning their application, this Article argues that it is important to excavate the doctrine from the culture wars rhetoric in which …

Civil Rites: The Gay Marriage Controversy In Historical Perspective, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

This short essay, written for a volume that celebrates and reflects on Lawrence M. Friedman’s work in legal history and legal culture, explores the modern controversy about same-sex marriage through a historical lens. The legalization of same-sex marriage by five states, and the express condemnation of it by more than forty others, has reintroduced the age-old problem of non-uniform marriage laws and the complicated interactions that follow. This modern story - a challenge to traditional marriage, a divisive moral debate, and the emergence of strong oppositional forces that are stuck, at least temporarily, but perhaps indefinitely, in a kind of …

Our Forgotten Founders: Reconstruction, Public Education, And Constitutional Heroism, Thomas G. Donnelly

Law Faculty Publications

Works on the Founding generation consistently inhabit national bestseller lists. For instance, David McCullough’s book 1776 placed fifth on Publishers Weekly’s 2005 list, beating out pop culture favorites Blink and Freakonomics. Over the last decade, other similarly successful titles have included His Excellency, Founding Brothers, and John Adams. In fact, McCullough’s hagiographic biography of our nation’s second President was later transformed into an Emmy Award-winning mini-series on HBO—to say nothing of President Obama’s decision to add it to his 2009 summer reading list. In short, Americans revere their eighteenth-century Founders. ...

Go West Young Woman!: The Mercer Girls And Legal Historiography, Kristin Collins

Faculty Scholarship

This essay is a response to Professor Kerry Abrams’s article The Hidden Dimension of Nineteenth-Century Immigration Law, published in Vanderbilt Law Review. The Hidden Dimension tells the story of Washington Territory’s entrepreneurial Asa Shinn Mercer, who endeavored to bring hundreds of young women from the East Coast to the tiny frontier town of Seattle as prospective brides for white men who had settled there. Abrams locates the story of the Mercer Girls, as they were called, in the history of American immigration law. My response locates The Hidden Dimension in American legal historiography, both that branch of American legal historiography …

The Third Time Is Not Always A Charm: The Troublesome Legacy Of A Dutch Art Dealer-The Limitation And Act Of State Defenses In Looted Art Cases, Bert Demarsin

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Right Of Publicity Licensing In A New Age: No Doubt V. Activision Publishing, Inc., Marta Baffy

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Judge Bell And Professional Courage, Larry D. Thompson

Scholarly Works

This article eulogizes Judge Griffin B. Bell, with an emphasis on the importance of professional standards in the legal field.

Copyright And The First Amendment: Comrades, Combatants, Or Uneasy Allies?, Joseph P. Bauer

Journal Articles

The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better, and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright laws afford to the creator of a work the exclusive right to reproduce, distribute, transform, and perform that work for an extended period of time. The First Amendment, on the other hand, proclaims that Congress "shall make no law...abridging the freedom of speech or of the press," thus at least nominally indicating that limitations on the reproduction …

Sharing The Stage: Using Title Vii To End Discrimination Against Female Playwrights On Broadway, Marisa Rothstein

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Ada Lois Sipuel Fisher: How A “Skinny Little Girl” Took On The University Of Oklahoma And Helped Pave The Road To Brown V. Board Of Education, Cheryl B. Wattley

Oklahoma Law Review

No abstract provided.

The Right To Confrontation Compromised: Monolingual Jurists Subjectively Assessing The English-Language Abilities Of Spanish-Dominant Accused, Lupe S. Salinas, Janelle Martinez

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Insiders Versus Outsiders: A Game-Theoretic Analysis Of The Puerto Rican Status Debate And Other “Legislative Wars Of Attrition” , F. E. Guerra-Pujol

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Shaking Out The Welcome Mat For An Enduring Latcrit Social Movement, Elvia R. Arriola

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Struggling Class: Replacing An Insider White Female Middle Class Dream With Struggling Black Female Reality, Angela Mae Kupenda

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Latina/O (Public/Legal) Intellectuals, Social Crises, And Contemporary Social Movements, Marc-Tizoc Gonzáles

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Trying A New Way: Barack Obama’S Tolerance Of Intolerance, Stephanie L. Phillips

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Engaged Intellectuals: Comments On The Crisis Of The Latina/O Public Intellectual, Martin Saavedra

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Beautifully Powerful: A Latcrit Reflection On Coming To An Epistemological Consciousness And The Power Of Testimonio, Lindsay Pérez Huber

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Latcrit Task Force Recommendations: Findings And Recommendations Of A Self-Study Of The Latcrit Board, 2009., Marc-Tizoc González, Yanira Reyes, Belkys Torres, Charles R. Venator-Santiago

American University Journal of Gender, Social Policy & the Law

No abstract provided.

How Must A Lawyer Be? A Response To Woolley And Wendel, David Luban

Georgetown Law Faculty Publications and Other Works

In Legal Ethics and Moral Character, 23 GEO. J. LEGAL Ethics, Alice Woolley and W. Bradley Wendel argue that theories of legal ethics may be evaluated by examining the kind of person a lawyer must be to conform to the normative demands of the theory. In their words, theories of legal ethics musts answer questions not only of what a lawyer must do, but how a lawyer must be. Woolley and Wendel examine three theories of legal ethics—those of Charles Fried, William Simon, and myself—and conclude that the theories they discuss impose demands on agency that are not realistic, functional, …