Legal History Commons^™

New York Recognition Of A Legal Status For Same-Sex Couples: A Rapidly Developing Story, Arthur S. Leonard

NYLS Law Review

No abstract provided.

Where’S The Penalty Flag? The Unauthorized Practice Of Law, The Ncaa, And Athletic Compliance Directors, Megan Fuller

NYLS Law Review

No abstract provided.

Book Review: Martin Chanock, The Making Of South African Legal Culture, 1902-1936: Fear, Favour And Prejudice, W. Wesley Pue

All Faculty Publications

This review of Martin Chanock's work on South African legal culture, locates the work in the context of international scholarship on law and society, legal history, and law and colonialism. It appeared in 18:1 Canadian Journal of Law & Society, 177-181.

Introduction To Lawyers In Canadian History, W. Wesley Pue

All Faculty Publications

This paper "frames" the study of lawyers in Canadian history against major interpretations of the legal profession and legal professionalism including the historical self-understandings of organized legal professions in the common law world, market-control theorists, institutional, and cultural history approaches. The article serves as the introduction to a new book on The Promise And Perils Of Law: Lawyers In Canadian History, which includes essays on the history of legal education, the practice of law, Quebec's legal distinctiveness, constitutionalism and the rule of law, and issues in race, gender, and diversity.

Cowboy Jurists & The Making Of Legal Professionalism, W. Wesley Pue

All Faculty Publications

This paper identifies the origins of modern Canadian legal professionalism in the prairie west during the early twentieth century, arguing for the importance of human agency and emphasizing contingency where others assert trans-historical processes. Lawyers combined agendas which were explicitly moral and reforming with a profound restructuring of their profession. Their efforts to reform the curriculum of formal legal education was part of a cultural project, but so too was their desire to attain self-regulation, monopoly, professional independence, and plenary disciplinary powers. The substantive findings documented here direct our attention to questions of cultural agency and structural revolution that are …

39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes

Akron Law Faculty Publications

The 39th Congress (1865-1867) was one of the important Congresses in our history. It passed more legislation than any other Congress up to that time.

This preliminary examination of the 39th Congress begins with a look it composition. One of the critical factors was that while the 38th Congress contained a majority of unionists, the 39th Congress contained a super-majority which meant not only that they could override a Presidential veto, but also that they did not need to take the Democratic opposition seriously. This article also identifies the leadership of the 39th Congress. The 38th Congress was composed of …

Infinite Hope-- Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly

Akron Law Faculty Publications

The Fourteenth Amendment embodies hope. This article introduces the Symposium celebrating the 140th anniversary of its ratification, held at the University of Akron. The symposium was a fruitful occasion to reflect upon the meaning of the Amendment to its Framers in Congress and as it was initially interpreted by the United States Supreme Court and the public, and to examine the lasting impacts of both conceptions. Our participants especially examined three of the Supreme Court's earliest forays into applying the Fourteenth Amendment: The Slaughter House Cases, Bradwell v. Illinois, and Cruikshank v. United States. Those forays succeeded in cramping the …

Privacy And The Limits Of History, Neil M. Richards

Scholarship@WashULaw

A short review essay of Lawrence Friedman's "Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy" (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the "Victorian Compromise," a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. "Dark Secrets" undeniably advances our understanding of both the genesis of privacy law and the relationships between law and culture in the Gilded Age. As a work of legal history, it is an instant classic–a must-read for anyone interested …

The Forgotten Freedom Of Assembly, John D. Inazu

Scholarship@WashULaw

The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women's suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the civil rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the second Red Scare of 1950s McCarthyism. Abraham Lincoln once called 'the right of the people peaceably to assemble' part of 'the Constitutional substitute for revolution'. In 1939, the …

An Examination Of Strategic Anticipation Of Appellate Court Preferences By Federal District Court Judges, Christina L. Boyd, James F. Spriggs

Scholarship@WashULaw

This Essay tackles the complicated relationships within the federal judicial hierarchy with a focus on the relatively understudied connection between the Supreme Court and district courts.

Vico And Imagination: An Ingenious Approach To Educating Lawyers With Semiotic Sensibility, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

Law is a specialized semiotic realm, but lawyers generally are ignorant of this fact. Lawyers may manage meaning, but they also are managed by meaning. Seemingly trapped by the weight of pre-existing signs, their attempts to manage these meanings generally are limited to technical interventions and instrumentalist strategies. Signs have power over lawyers because they are embedded in narratives, a semiotic economy that confronts the lawyer as ‘‘given’’ even though it is dynamic and constantly under construction. Most lawyers do not make meaning through legal narratives; rather, they parrot bits of the controlling narratives in response to certain problems. Because …

A Failed Legal Periodical/Newspaper Of Mid-Nineteenth Century Pennsylvania: Olwine's Law Journal (December 29, 1849 To May 18, 1850), Joel Fishman

Law Faculty Publications

In reviewing the history of Pennsylvania legal periodicals, Olwine's Law Journal has one of the shortest publishing histories covering less than five months from late December 1849 to mid- May 1850.¹ The newspaper was published weekly on Saturday in quarto size, in twenty-one issues over the six-month period. Each issue consisted of eight pages, consecutively paginated, with 168 pages in the entire publication. Isaac Wayne Olwine (1827?- 1863) was the editor of the newspaper and served as Deputy Prothonotary of the Court of Common Pleas of Philadelphia County, whose father Anthony was prothonotary at the time.

An Imperfect Vocabulary Of Religious Liberty, Marci A. Hamilton

Articles

No abstract provided.

Alternative Dispute Resolution In Small Consensual Litigation: Too Much Of A Good Thing?, Mark S. Simms

Cardozo Journal of Conflict Resolution

The evolution of equity in tort has brought about the use of alternative methods of dispute resolution in reaching settlements in mass tort cases: "Indeed, equity is a progressive force in the law. When formal adjudication cannot provide a plain, adequate, and complete remedy, the system of ADR should be flexible enough to deliver individualized justice." It appears, however, that the use of ADR is not always a prudent exercise of the court's power, nor is it always conducive to individual justice. This Note examines the Gray case, in which the court appointed a special master, thereby assigning one man …

In The Sweat Box: A Historical Perspective On The Detention Of Material Witnesses, Carolyn B. Ramsey

Publications

After the September 11 terrorist attacks, the Justice Department detained scores of allegedly suspicious persons under a federal material witness statute--a tactic that provoked a great deal of controversy. Most critics assume that the abuse of material witness laws is a new development. Yet, rather than being transformed by the War on Terror, the detention of material witnesses is a coercive strategy that police officers across the nation have used since the nineteenth century to build cases against suspects. Fears of extraordinary violence or social breakdown played at most an indirect role in its advent and growth. Rather, it has …

Created In Its Image: The Race Analogy, Gay Identity, And Gay Litigation In The 1950s-1970s, Craig J. Konnoth

Publications

Existing accounts of early gay rights litigation largely focus on how the suppression and liberation of gay identity affected early activism. This Note helps complicate these dynamics, arguing that gay identity was not just suppressed and then liberated, but substantially transformed by activist efforts during this period, and that this transformation fundamentally affected the nature of gay activism. Gay organizers in the 1950s and 1960s moved from avoiding identity-based claims to analogizing gays to African-Americans. By transforming themselves in the image of a successful black civil rights minority, activists attempted to win over skeptical courts in a period when equal …

Popular Constitutionalism, Civic Education, And The Stories We Tell Our Children, Thomas G. Donnelly

Law Faculty Publications

This Note analyzes a set of constitutional stories that has not been the subject of focused study—the constitutional stories we tell our schoolchildren in our most widely used high school textbooks. These stories help reinforce a constitutional culture that is largely deferential to the Supreme Court, limiting references to popular resistance to the Court and often linking such popular resistance to the actions of self-interested politicians, at best, and historical villains, at worst. Our textbooks are especially critical of blunt institutional checks on the Court (like judicial impeachment and “court-packing”), but are sometimes receptive to subtler, longer-term checks (like social …

United States V. Hatahley: A Legal Archaeology Case Study In Law And Racial Conflict, Debora L. Threedy

American Indian Law Review

This article is a case study of United States v. Hatahley using the methodology of "legal archaeology" to reconstruct the historical, social, and economic context of the litigation. In 1953, a group of individual Navajos brought suit under the Federal Tort Claims Act for the destruction of over one hundred horses and burros. The first section of the article presents two contrasting narratives for the case. The first relates what we know about the case from the reported opinions, while the second locates the litigated case within the larger social context by examining the parties, the history of incidents culminating …

Trademark Use And The Problem Of Source, Mark P. Mckenna

Journal Articles

This Article mediates a scholarly debate regarding the existence and desirability of a "trademark use" doctrine. It argues that trademark use is a predicate of liability under the Lanham Act, but those who advocate treating trademark use as a threshold question put much more weight on that concept than it can bear. Courts cannot consistently apply trademark use as a distinct element of the plaintiff's prima facie case because trademark use can be determined only from the perspective of consumers. Specifically, courts can determine whether a defendant has made trademark use of a plaintiff's mark only by asking whether consumers …

The Union As It Wasn't And The Constitution As It Isn't: Section Five And Altering The Balance Of Power, Elizabeth Reilly

Akron Law Faculty Publications

The original prototype of Section One of the Fourteenth Amendment, as introduced by its primary Framer, John Bingham of Ohio, read: The Congress shall have the power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.

Bingham went on to note expressly that “save the words conferring the express grant of power to the Congress,” the principles of the rights were already in …

Banned From Lawyering: Gordon Martin, Communist, W. Wesley Pue

All Faculty Publications

This paper assesses the exclusion of Gordon Martin from the practice of law in 1948 solely on the grounds that his communist political commitment was inconsistent with the role of a lawyer. In so doing it canvasses understandings of the day regarding communism, constitutionalism, and American social thought (as embodied in Oliver Wendell Holmes, John Dewey, Charles Beard, James Harvey Robinson, and Thorstein Veblen). Issues relating to self-governance of the legal profession, character, and statutory interpretation under then-current administrative law doctrine are reviewed.

A Convenient Constitution? Extraterritoriality After Boumediene, Christina Duffy Ponsa-Kraus

Faculty Scholarship

Questions concerning the extraterritorial applicability of the Constitution have come to the fore during the "war on terror." In Boumediene v. Bush, the Supreme Court held that noncitizens detained in Guantánamo have the right to challenge their detention in federal court. To reach this conclusion, the Court used the "impracticable and anomalous" test, also known as the 'functional" approach because of its reliance on pragmatic or consequentialist considerations. The test first appeared in a concurring opinion over fifty years ago; in Boumediene, it garnered the votes of a majority.

This Article argues that the Boumediene Court was right …

"Neutral" Principles: Rethinking The Legal History Of Civil Rights, 1934-1964, Anders Walker

All Faculty Scholarship

This paper recovers Columbia Law Professor Herbert Wechsler's constitutional involvement in the long civilrights movement. Derided for criticizing Brown v. Board of Education in 1959, Wechsler first became involved in civil rights litigation in the 1930s, continued to be interested in civil rights issues in the 1940s, and argued one of the most important civil rights cases to come before the Supreme Court in the 1960s. His critique of Brown, this article maintains, derived not from a disinterest in the black struggle but from a larger conviction that racial reform should be process rather than rights-based. By recovering Wechsler's approach, …

Client Activism In Progressive Lawyering Theory, Eduardo R.C. Capulong

Faculty Law Review Articles

In this article the author argues that the aims, contexts, and methods of client activism are paramount in progressive lawyering theory, and as such precede and define the question of how progressives should lawyer. The author suggests precursory paradigms that 1) clarify the ultimate political goals to which activism is and should be directed; 2) analyze the social conditions shaping and defining grassroots activity; and 3) specify and systematize the myriad methods that can and should be used to further these ends. In critiquing prevailing theoretical formulations that relate to these considerations, the author argues that progressive lawyers need to …

The Appropriations Power And Sovereign Immunity, Paul F. Figley

Scholarly Articles in Law Reviews & Journals

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence - or nonexistence - of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers’ Case (1690–1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the …

Internal Displacement, The Guiding Principles On Internal Displacement, The Principles Normative Status, And The Need For Their Effective Domestic Implementation In Colombia, Robert K. Goldman

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The 60th Anniversary Of The Udhr, Juan E. Mendez

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Human Rights Hero - Sandra Day O'Connor, Stephen Wermiel, Michael S. Greco

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Rise Of The American Adversary System: America Before England, Randolph N. Jonakait

Articles & Chapters

The standard versions of the adversary system's development show that as more lawyers participated in English criminal trials in eighteenth century England criminal procedure became increasingly adversary. Those versions largely ignore American history which shows that the colonies and early America did not simply adopt the English adversary system but moved to an adversary system in advance of England. This article discusses data and developments indicating America's early adoption of an adversary system, including the American guarantee of a right of counsel, the routine presence of counsel in criminal cases in the colonies and the new United States, the American …

Fighting For The City In Context: William Nelson And The Legal History Of New York, William P. Lapiana

Articles & Chapters

Professor Ross Sandler has contributed a full review of Fighting for the City to this symposium issue. This short comment is meant to supplement that review by emphasizing topics that are of particular interest to an historian of the American legal profession, and of American legal education in particular and New York City in general. It is also meant to draw some connections between Fighting for the City and two of Professor William Nelson's other works: In Pursuit of Right and Justice, his biography of Edward Weinfeld, a lawyer and judge of the District Court for theSouthern District of New …