Legal History Commons^™

Supreme Neglect Of Text And History, William Michael Treanor

Michigan Law Review

Since his classic book Takings appeared in 1985, Richard Epstein's ideas have profoundly shaped debate about the Fifth Amendment's Takings Clause to a degree that no other scholar can even begin to approach. His broad, original, and stunningly ambitious reading of the clause has powerfully influenced thinking in academia, in the judiciary, and in the political arena. The firestorm of controvery that followed the Supreme Court's recent decision in Kelo - in which the Supreme Court upheld the constitutionality of a municipal urban renewal plan that displaced long-time homeowners and conveyed their land to developers - is in critical part …

St. George Tucker's Lecture Notes, The Second Amendment, And Originalist Methodology: A Critical Comment, Saul Cornell

NULR Online

No abstract provided.

The Opinion Volume 46 Issue 5 – March 1, 2009, The Opinion

The Opinion Newspaper (all issues)

The Opinion newspaper issue dated March 01, 2009

Judicial Independence In Excess: Reviving The Judicial Duty Of The Supreme Court, Paul D. Carrington, Roger C. Cramton

Cornell Law Faculty Publications

Independence from extrinsic influence is, we know, indispensable to public trust in the integrity of professional judges who share the duty to decide cases according to preexisting law. But such independence is less appropriate for those expected to make new law to govern future events. Indeed, in a democratic government those who make new law are expected to be accountable to their constituents, not independent of their interests and unresponsive to their desires. The Supreme Court of the United States has in the last century largely forsaken responsibility for the homely task of deciding cases in accord with preexisting law …

Preaching To The Court House And Judging In The Temple, Nathan B. Oman

BYU Law Review

No abstract provided.

Institutional Legitimacy And Counterterrorism Trials, Gregory S. Mcneal

University of Richmond Law Review

No abstract provided.

The Flight To New York: An Empirical Study Of Choice Of Law And Choice Of Forum Clauses In Publicly-Held Companies' Contracts, Theodore Eisenberg, Geoffrey P. Miller

Cardozo Law Review

We study choice of law and choice of forum in a data set of 2,882 contracts contained as exhibits in Form 8-K filings by reporting corporations over as six month period in 2002 for twelve types of contracts and a seven month period in 2002 for merger contracts. These material contracts likely are carefully negotiated by sophisticated parties who are well-informed about the contract terms. They therefore provide evidence of efficient ex ante solutions to contracting problems. In prior work examining merger contracts, acquiring firms incorporated in Delaware tended to select Delaware law or a Delaware forum to govern disputes …

"Airbrushed Out Of The Constitutional Canon": The Evolving Understanding Of Giles V. Harris, 1903-1925, Samuel Brenner

Michigan Law Review

Richard H. Pildes argued in an influential 2000 article that the U.S. Supreme Court's opinion in Giles v. Harris, which was written by Justice Oliver Wendell Holmes, was the "one decisive turning point" in the history of "American (anti)-democracy." In Giles, Holmes rejected on questionable grounds Jackson W. Giles's challenge to the new Alabama Constitution of 1901-a document which was designed to disfranchise and had the effect of disfranchising African Americans. The decision thus contributed significantly to the development of the all-white electorate in the South, and the concomitant marginalization of southern African Americans. According to Pildes, however, the …

The Detention Of Suspected Terrorists In Northern Ireland And Great Britain, Brice Dickson

University of Richmond Law Review

No abstract provided.

The Opinion Volume 46 Issue 4 – February 1, 2009, The Opinion

The Opinion Newspaper (all issues)

The Opinion newspaper issue dated February 01, 2009

Gabriel Franklin Hargo: Michigan Law 1870, Margaret A. Leary, Barbara J. Snow

Miscellaneous Law School History & Publications

A brief biographical sketch of Gabriel Franklin Hargo, the first African American graduate of the University of Michigan Law School.

The Story Of Bivens V. Six Unknown-Named Agents Of The Federal Bureau Of Narcotics, James E. Pfander

Faculty Working Papers

In Bivens v. Six Unknown-Named Agents of the Federal Bureau of Narcotics, the Supreme Court recognized the right of an individual to sue federal government officials for a violation of constitutional rights. Drawing on interviews with some of the participants, including Webster Bivens himself and one of the agents who conducted the search, this chapter in the forthcoming book Federal Courts' Stories describes the events that led to the litigation and the complex array of factors that informed the Court's approach to the case. After placing the Bivens decision in context, the chapter evaluates the competing narratives that have grown …

Book Review: Henry J. Richardson Iii, The Origins Of African-American Interests In International Law, D. A. Jeremy Telman

Law Faculty Publications

This short review evaluates Professor Richardson's book both as a contribution to the history of the Atlantic slave trade and as contribution to critical race theory.

Professor Richardson has read innumerable historical monographs, works of legal and sociological theory, international law and critical race theory. Armed with this store of knowledge, he is able to recount a detailed narrative of African-American claims to, interests in and appeals to international law over approximately two centuries spanning, with occasional peeks both forward and backward in time, from the landing of the first African slaves at Jamestown in 1619 to the 1815 Treaty …

Draining The Morass: Ending The Jurisprudentially Unsound Unpublication System, David R. Cleveland

Law Faculty Publications

No abstract provided.

Legal Taxonomy, Emily Sherwin

Cornell Law Faculty Publications

This essay examines the ambition to taxonomize law and the different methods a legal taxonomer might employ. Three possibilities emerge. The first is a formal taxonomy that classifies legal materials according to rules of order and clarity. Formal taxonomy is primarily conventional and has no normative implications for judicial decision-making. The second possibility is a function-based taxonomy that classifies laws according to their social functions. Function-based taxonomy can influence legal decision-making indirectly, as a gatekeeping mechanism, but it does not provide decisional standards for courts. Its objective is to assist in analysis and criticism of law by providing an overview …

James Buchanan As Savior? Judicial Power, Political Fragmentation, And The Failed 1831 Repeal Of Section 25, Mark A. Graber

Faculty Scholarship

James Buchanan is often credited with being the unlikely savior of judicial review in early Jacksonian America. In 1831, Buchanan, then a representative from Pennsylvania, issued a minority report criticizing the proposed repeal of Section 25 of the Judiciary Act of 1789 that is generally credited with convincing a skeptical Congress that fundamental constitutional norms required federal judicial oversight of state courts and state legislatures. This paper claims that federalism and political fragmentation were more responsible than James Buchanan for the failed repeal of Section 25, for the maintenance of judicial power in the United States during the transition from …

The Book Of Job And The Role Of Uncertainty In Religion And Law, Steven Goldberg

Georgetown Law Faculty Lectures and Appearances

The Book of Job depicts the radical uncertainty that results when people try to comprehend God. Job has had an extraordinary influence on philosophy and literature, and its message on the limits of human knowledge has even been echoed in the words of great scientists. Surprisingly, however, it has had little influence on the rhetoric or approach of lawyers and judges. The legal profession, which confronts uncertain outcomes daily, has reduced uncertainty to a mundane calculation of odds, while ignoring the more fundamental idea of the unknown because that idea would paralyze legal work.

A Golden-Age Of Civil Involvement: The Client-Centered Disadvantage For Lawyers As Law Makers, James E. Moliterno

Scholarly Articles

None available.

Isaiah And His Young Disciples: Justice Brandeis And His Law Clerks, Todd C. Peppers

Scholarly Articles

It cannot be said that Louis Dembitz Brandeis has suffered from a lack of scholarly attention. Brandeis is considered to be one of the most influential Justices in the history of the U.S. Supreme Court, and scores of books and law-review articles have been written about Brandeis the lawyer, the political insider, the Zionist, and the Justice. A case can be made, however, that history has not fully recognized the important and lasting contribution that Brandeis made to the development of the institutional rules and norms surrounding the Supreme Court law clerk, an oversight that this essay seeks to rectify.

Taylor V. Mayor And City Council Of Baltimore: Baltimore Sewerage And The City’S Agenda In The Early Twentieth Century, Christian Mann

Legal History Publications

Taylor v. Mayor and City Council of Baltimore was decided by the Court of Appeals in 1917. Nettie Taylor sued the city in 1914 because of the disagreeable smell coming from the newly constructed Back River Sewage Treatment Plant. She sued for damages done to her hotel property by the odor. Taylor’s hotel was situated on a tract of land on Back River, in the Essex area. The hotel Taylor owned was partly a brothel as well as a saloon, which was a common establishment in the surrounding area. The Court of Appeals ruled in Taylor’s favor, ordering the city …

Warren V. Fitzgerald, 189 Md. 476 (1947): A Crossroads In Baltimore’S Mass Transit History, Emily Jaskot

Legal History Publications

In 1943, trolley ridership was at an all time high in Baltimore. The Baltimore Transit Company experienced record profits, and company leadership expected to continue to expand trolley service in and around the city. By 1947, the company had completely changed course and was in the process of abandoning 170 of its 312 miles of trolley track line and nearly half of its trolley routes, at a loss of more than 21 million dollars. The trolleys were to be replaced with new diesel buses. In 1963 the last streetcar ran in Baltimore.

The Circuit Court and Court of Appeals case …

Jack Lewis: An Undertaker's Gamble, James Furgol, Rachel Granfield

Legal History Publications

On December 15, 1933, the case of Jack Lewis, Inc. v. Mayor and City Council of Baltimore concluded with a denial of certiorari from the United States Supreme Court. After over a year and a half of litigation, Jack Lewis, Inc. had to close the shutters on their newly acquired funeral parlor at 1804 Eutaw Place, in the Jewish community of Mount Royal.

The company had its roots in the “downtown” Eastern European Jewish neighborhood while Eutaw Place was home to a number of “uptown” German Jews who were integrated with wealthy gentiles. Not only did the Supreme Court’s decision …

Mayor V. Fairfield Improvement Company: The Public's Apprehension To Accept Nineteenth Century Medical Advancements, Ryan Wiggins, Daniella Einik

Legal History Publications

The following paper first outlines the story behind Mayor v. Fairfield and the procedural progression of the case through the court of equity and the Court of Appeals. Second, the paper discusses nineteenth century medical views on leprosy and infectious diseases and the reluctance of the public to accept these medical views. Finally, the paper analyzes how both medical opinion and public perception impacted public health laws and judicial opinions at the time.

Garitee V. Mayor And City Council Of Baltimore: A Gilded Age Debate On The Role And Limits Of Local Government, Kevin Attridge, James Risk

Legal History Publications

Politically, Garitee v. Mayor and City Council of Baltimore was part of the larger on-going debate on the role of government. During the Gilded Age, the Federal Government assumed a laissez-faire stance toward business, but the Progressive Era that immediately followed witnessed a restraint of business through the passage of the Sherman Antitrust Act and the trust-busting administration of President Theodore Roosevelt.

State and city government produced the same debate, but in a somewhat different fashion. Baltimore’s government expanded in the 1870’s with the creation of City Hall, the City Library, the harbor board and several other municipal services. The …

Island Here Today, Gone Tomorrow (H. Milton Wagner, Et Al. V. Mayor And City Council Of Baltimore, 1956), Brandy Reazer, Scott Yager

Legal History Publications

Court of Appeals of Maryland. H. Milton Wagner, Jr., Amelia W. Sutton, Florence C. Mulligan et al. v. City of Baltimore is an appeals case that started in Anne Arundel County, Maryland in 1916 over an island that was at one point in Maryland state history part of Anne Arundel County. A land patent was issued to John P. Bruns in 1909 and later sold to H. Milton Wager, Sr. The island in question, known as Reed Bird Island, was surveyed in 1908 by the County Surveyor of Anne Arundel County. The land was not found to be covered by …

Robert George’S The Clash Of Orthodoxies: Law, Religion, And Morality In Crisis, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Bitter Knowledge: Socrates And Teaching By Disillusionment Appendix A - The Protagoras, Thomas D. Eisele

Faculty Articles and Other Publications

It was been suggested (and here I am thinking in particular of comments made by Professor William Prior) that my book, Bitter Knowledge, would benefit from a more comprehensive attention to the argumentative details of the dialogues studied there. Professor Prior specifically suggests that, if we were to be given more of their argumentation, we might better appreciate the motivation or the disposition of the speakers in the dialogues under study.

The book as designed, as submitted in typescript, and as accepted for publication, included three appendices. These appendices comprised detailed outlines of the speakers and events portrayed in, respectively, …

The Rule Of Law Is Dead! Long Live The Rule Of Law!, Keith J. Bybee

College of Law - Faculty Scholarship

Polls show that a significant proportion of the public considers judges to be political. This result holds whether Americans are asked about Supreme Court justices, federal judges, state judges, or judges in general. At the same time, a large majority of the public also believes that judges are fair and impartial arbiters, and this belief also applies across the board. In this paper, I consider what this half-law-half-politics understanding of the courts means for judicial legitimacy and the public confidence on which that legitimacy rests. Drawing on the Legal Realists, and particularly on the work of Thurman Arnold, I argue …

The Death Of The American Trial, Robert P. Burns

Faculty Working Papers

This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social signficance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.

Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich

Faculty Working Papers

This Article spotlights some of the idiosyncratic features of admiralty law at the time of the founding. These features pose challenges for applying the original understanding of the Constitution to contemporary questions of foreign relations. Federal admiralty courts were unusual creatures by Article III standards. They sat as international tribunals applying international and foreign law, freely hearing cases that implicated sensitive questions of foreign policy, and liberally exercising universal jurisdiction over disputes solely between foreigners. However, these powers did not arise out of the basic features of Article III, but rather from a felt need to opt into the preexisting …