Legal History Commons^™

The Resilient Foundation Of Democracy: The Legal Deconstruction Of The Washington Posts's Condemnation Of Edward Snowden, Hanna Kim

Indiana Law Journal

On September 17, 2016, The Washington Post (“the Post”) made history by being the first paper to ever call for the criminal prosecution of its own source —Edward Snowden. Yet, two years prior to this editorial, the Post accepted the 2014 Pulitzer Prize in Public Service for its “revelation of widespread secret surveillance by the National Security Agency”—an honor which would not have been bestowed had Snowden not leaked the documents through this news outlet. The other three major media outlets that received and published Snowden’s documents and findings—The Guardian, The New York Times, and The Intercept—all have taken the …

Love For Sale: Book Review Of Marcia A. Zug, Buying A Bride: An Engaging History Of Mail-Order Matches, Jeanne L. Schroeder

Cardozo Law Review

No abstract provided.

Pro Se Appellants: Opportunities For Law Libraries, Liz Reppe

Dickinson Law Review (2017-Present)

This article is part of the 2018 Dickinson Law Review Symposium entitled “Access to Justice: Innovations and Challenges in Providing Assistance to Pro Se Litigants.” The author is the state law librarian for Minnesota who reports to the Minnesota Supreme Court. This article surveys various resources that Minnesota provides to unrepresented clients, including the website resources found here: https://perma.cc/R2DP-K9YB. The bulk of the article, however, focuses on Minnesota’s innovative in-person “Appeals Self-Help Clinics.” See https://perma.cc/Y2VN-H2L3.

The article’s discussion of Minnesota’s Appeals Self-Help Clinics begins by highlighting some of the factors that provided the impetus for the development …

Educating The New Lawyer: Teaching Lawyers To Offer Unbundled And Other Client-Centric Services, Forrest S. Mosten, Julie Macfarlane, Elizabeth Potter Scully

Dickinson Law Review (2017-Present)

In this article, Forrest Mosten and Julie Macfarlane build a new bridge in their 30-year professional relationship by linking their separate but complementary work in access to legal services, helping the self-represented litigant (“SRL”), transforming the lawyer from gladiator to problem-solver and conflict resolver, and using interdisciplinary team triage in Collaborative Law and preventive conflict wellness to better serve the public. The New Lawyer and Unbundled Legal Services are independent concepts that the three co-authors link in proposing new topics (including the concept of Legal Coaching, which is evolving from the unbundled model) and pedagogical approaches to teaching law students …

Utah’S Online Dispute Resolution Program, Deno Himonas

Dickinson Law Review (2017-Present)

This article by Utah Supreme Court Justice Deno Himonas describes Utah’s Online Dispute Resolution or ODR system. Launched in September 2018, Utah’s ODR system is available to litigants who have small claims disputes that involve $11,000 or less. The ODR system has been designed to provide “simple, quick, inexpensive and easily accessible justice” that includes “individualized assistance and information that is accessible across a multitude of electronic platforms.”

This article describes the history and philosophy behind Utah’s ODR system and includes a number of screen shots that show what an ODR litigant will see. Utah is the first U.S. state …

It’S Not The Thought That Counts: Pennsylvania Quietly Made Rape And Idsi Strict Liability Crimes, Jordan E. Yatsko

Dickinson Law Review (2017-Present)

In 1982, the Pennsylvania Superior Court decided Commonwealth v. Williams, wherein the court held that a defendant charged with rape or involuntary deviate sexual intercourse (IDSI) cannot use a mistake of fact defense as to the victim’s consent. The court relied on the reasoning that a defendant’s mens rea is not an element of either rape or IDSI. Section 302 of the Pennsylvania Crimes Code, however, requires that where the legislature has failed to expressly require a finding of mens rea in the text of the statute, at least recklessness must be imputed to each material element.

This Comment …

The Limits Of Pro Se Assistance In Immigration Proceedings: Discussion Of Nwirp V. Sessions, Ryan D. Brunsink, Christina L. Powers

Dickinson Law Review (2017-Present)

This Article discusses issues regarding assistance of pro se litigants in the context of immigration law. In particular, Part II of this Article highlights programs such as the Legal Orientation Program (LOP) and Immigration Court Helpdesk (ICH) that attempt to alleviate some of the inherent difficulties non-citizen detainees face in immigration proceedings. Part III of this Article focuses on a 2008 Regulation by the Executive Office of Immigration Review (EOIR), which calls for discipline against attorneys that engage in a pattern or practice of failing to enter a Notice of Appearance when engaged in practice or preparation. Lastly, Part IV …

“Pfa” Record Expungement As A Tool For Settlement: Due Process And The Pennsylvania Protection From Abuse Act, Kyle Semroc

Dickinson Law Review (2017-Present)

The Pennsylvania Protection from Abuse Act (PFAA) empowers victims of domestic violence to obtain protection orders through a hearing process. Once the Protection from Abuse (PFA) process is initiated, a statewide registry system automatically generates a civil record. Currently, no statutory language governing the expungement of a PFA record exists in Pennsylvania, and courts have decided that a right to expungement exists only in limited circumstances. The courts are silent, however, on whether a protection order by consent of the parties with no admission of abuse is available for expungement.

This Comment begins by describing the procedure by which a …

Jurisdiction, The Internet, And The Good Faith Exception: Controversy Over The Government’S Use Of Network Investigative Techniques, Maureen Weidman

Dickinson Law Review (2017-Present)

In February 2015, the FBI discovered a website dedicated to child pornography located on the Tor Network, a network designed to protect its users’ identities on the Internet. Due to the structure of the Tor Network, the FBI could not take down the website and identify users who previously accessed the website. Instead, the FBI kept the website operational for 30 days and applied for a search warrant in the Eastern District of Virginia to use a device called a Network Investigative Technique (“NIT”). This device operated similarly to malware and “attached” to computers accessing the website, allowing the government …

Hls 200: A Latina's Story About The Bicentennial, Margaret E. Montoya

Faculty Scholarship

This essay sketches an arc from my childhood to being an Harvard Law School student to my academic work and professional commitments as a law professor and an alumna of Harvard Law School, working to increase access and success in the legal and medical professions for students and faculty of color. I compare aspects of legal and medical education using demographic data as well as some observations about how diverse faculty have transformed the two professions in their respective approaches to and rationales for diversifying the professions and examine the work being done by diverse faculty in law and health. …

Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney

Faculty Publications

One of the major branches of the field of law and literature is often described as "law as literature." Scholars of law as literature examine the law using the tools of literary analysis. The scholarship in this subfield is dominated by the discussion of narrative texts: confessions, victim-impact statements, and, above all, the judicial opinion. This article will argue that we can use some of the same tools to help us understand non-narrative texts, such as law codes and statutes. Genres create expectations. We do not expect a law code to be literary. Indeed, we tend to dissociate the law …

Sex And Religion: Unholy Bedfellows, Mary-Rose Papandrea

Michigan Law Review

A review of Geoffrey R. Stone, Sex and the Constitution: Sex, Religion, and Law from America's Origins to the Twenty-First Century.

The Cunning Of Reason: Michael Klarman's The Framers' Coup, Charles Fried

Michigan Law Review

A review of Michael J. Klarman, The Framers' Coup: The Making of the United States Constitution.

Be Careful What You Wish For? Reducing Inequality In The Twenty-First Century, Reuven S. Avi-Yonah, Orli K. Avi-Yonah

Michigan Law Review

A review of Walter Scheidel, The Great Leveler: Violence and the History of Inequality from the Stone Age to the Twenty-First Century.

Why The Burger Court Mattered, David A. Strauss

Michigan Law Review

A review of Michael J. Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right.

A History Of Law And Lawyers In The Gatt/Wto. Edited By Gabrielle Marceau., Meredith Kolsky Lewis

Book Reviews

No abstract provided.

Some Form Of Punishment: Penalizing Women For Abortion, Mary Ziegler

William & Mary Bill of Rights Journal

In 2016, Donald Trump ignited a political firestorm when he suggested that women should be punished for having abortions. Although he backtracked, Trump’s misstep launched a debate about whether women have been or should be punished for having abortions. At the same time, Trump’s comments revealed that punishing women has become far more than an abstraction. In 2016, Indiana resident Purvi Patel became just the most recent visible example when she was sentenced to twenty years for feticide and child neglect for inducing an abortion.

But in spite of the furor created by Trump’s comment and Patel’s conviction, the history …

Being Seen Like A State: How Americans (And Britons) Built The Constitutional Infrastructure Of A Developing Nation, Daniel J. Hulsebosch

William & Mary Law Review

This Article develops the argument that the Federal Constitution of 1787 was conceptualized, drafted, and put into operation not only for American citizens but also for foreign audiences. In a world without supranational governing institutions, a constitution—at least, the Federal Constitution—might serve to promote peaceable international relations based on reciprocal trade and open credit. That at least was the Enlightenment-inflected hope.

Did it work? If early Americans engaged in constitution-making in large part to demonstrate their capacity for self-government, selfdiscipline, and commercial openness to foreign audiences, did anyone notice? Or was it all, regardless of diplomatic purposes and consistent with …

The Canon Of Rational Basis Review, Katie R. Eyer

Notre Dame Law Review

The modern constitutional law canon fundamentally misdescribes rational basis review. Through a series of errors—of omission, simplification, and recharacterization—we have largely erased a robust history of the use of rational basis review by social movements to generate constitutional change. Instead, the story the canon tells is one of dismal prospects for challengers of government action—in which rational basis review is an empty, almost meaningless form of review.

This Article suggests that far from the weak and ineffectual mechanism that most contemporary accounts suggest, rational basis review has, in the modern era, served as one of the primary equal protection entry …

The Attorney General And Early Appointments Clause Practice, Aditya Bamzai

Notre Dame Law Review

This Article proceeds as follows. In Part I, I provide an overview of the Appointments Clause and the officer-employee line as it currently stands in caselaw and in executive branch practice. I also summarize the Appointments Clause practices of the First Congress. In Part II, I address the opinions of the Attorneys General, and their attempt to rationalize and to explain the statutes enacted by the First Congress and the appointments practices of the nation. In Part III, I derive some implications and conclusions, generally for the Appointments Clause and specifically for the Administrative Law Judge controversy that is currently …