Legal History Commons^™

How Roe V. Wade Was Written, David J. Garrow

Washington and Lee Law Review

No abstract provided.

Beyond Backlash: Legal History, Polarization, And Roe V. Wade, Mary Ziegler

Washington and Lee Law Review

No abstract provided.

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …

Justice Lewis F. Powell's Baffling Vote In Roe V. Wade, Samuel W. Calhoun

Washington and Lee Law Review

No abstract provided.

Trans-Substantivity And The Processes Of American Law, David Marcus

BYU Law Review

The term “trans-substantive” refers to doctrine that, in form and manner of application, does not vary from one substantive context to the next. Trans-substantivity has long influenced the design of the law of civil procedure, and whether the principle should continue to do so has prompted a lot of debate among scholars. But this focus on civil procedure is too narrow. Doctrines that regulate all the processes of American law, from civil litigation to public administration, often hew to a trans-substantive norm. This Article draws upon administrative law, the doctrine of statutory interpretation, and the law of civil procedure to …

What Lies Beneath: Interpretive Methodology, Constitutional Authority, And The Case Of Originalism, Christopher J. Peters

BYU Law Review

No abstract provided.

An Introduction: The Richness Of Forgiveness Studies, Policy, And Practice, Calvin William Sharpe

Pepperdine Dispute Resolution Law Journal

The article offers information on the philosophical and scientific examination of the policies and practice of the forgiveness studies in the U.S. It informs about several philosophers who put in their efforts towards effectiveness of the scientific research on forgiveness including Jeffrie Murphy, Jean Hampton, and Everett L. Worthington. It also focuses on various theories of forgiveness.

Burwell V. Hobby Lobby Stores, Inc.: Brief Of Amici Curiae Historians And Legal Scholars Supporting Neither Party, William J. Novak

Appellate Briefs

Amici are scholars of history and law with an important interest in the question presented and particularly in the traditional treatment of corporations under American law.

Much of the research in this brief is drawn from papers by amici, developed through several meetings of the ongoing "Corporations and American Democracy" research initiative undertaken by the Tobin Project, a non-profit research organization.

Because amici have not examined the factual questions relating to the particular corporations at issue in these consolidated cases, they file this brief in support of neither party.

Integrating State (Georgia) And National Legal History, James L. Hunt

Books and Chapters

Chapter in Teaching Legal History: Comparative Perspectives, edited by Robert M. Jarvis, Wildy, Simmonds & Hill Publishing (2014).

Legal History And The Politics Of Inclusion, Felice J. Batlan

All Faculty Scholarship

No abstract provided.

Still Drowning In Segregation: Limits Of Law In Post-Civil Rights America, Taunya L. Banks

Faculty Scholarship

Approximately 40% of the deaths attributed to Hurricane Katrina in 2005 were caused by drowning. Blacks in the New Orleans area accounted for slightly more than one half of all deaths. Some of the drowning deaths were preventable. Too many black Americans do not know how to swim. Up to seventy percent of all black children in the United States have no or low ability to swim. Thus it is unsurprising that black youth between 5 and 19 are more likely to drown than white youths of the same age. The Centers for Disease Control concludes that a major factor …

The United States Tax Court: An Historical Analysis (2d Ed. 2014), Harold Dubroff, Brant J. Hellwig

Books and Chapters

The second edition leaves largely intact the first four Parts of the original text, which provide a remarkably detailed history of the creation of Board of Tax Appeals through the congressional chartering of the United States Tax Court as a court of record established under article I of the Constitution. Part V is a new chapter devoted to the judicial consideration of the Tax Court’s constitutional status that culminated in the Supreme Court’s 1991 decision in Freytag v. Commissioner.

Whereas the original text addressed procedural matters following the discussion of the historical development of the Court, the second edition …

Judicial Assistants Or Junior Judges: The Hiring, Utilization, And Influence Of Law Clerks, Chad Oldfather, Todd C. Peppers

Scholarly Articles

Law clerks have been part of the American judicial system since 1882, when Supreme Court Justice Horace Gray hired a young Harvard Law School graduate named Thomas Russell to serve as his assistant. Justice Gray paid for his law clerks out of his own pocket until Congress authorized funds for the hiring of “stenographic clerks” in 1886. The Gray law clerks, however, were not mere stenographers. Justice Gray assigned them a host of legal and non-legal job duties. His clerks discussed the record and debated the attendant legal issues with Justice Gray prior to oral argument, conducted legal research, and …

The Child Independence Is Born: James Otis And Writs Of Assistance, James M. Farrell

Communication

This chapter is a reexamination of the Writs of Assistance speech by James Otis. In particular, it is a reconsideration of the evidence upon which rests the historical reputation of Otis’s address. Are the claims by historians who credit Otis with sparking the Revolutionary movement in colonial America warranted or not? That reassessment begins with a detailed review of the nature and function of writs of assistance within the political, legal, and economic environment of colonial Massachusetts. It then turns to an analysis of the legal dispute over writs of assistance in the 1761 trial. From there we will reconstruct …

Manella, Pujals & Co. V. Barry, 7 U.S. 415 (1806), Nicole Whitecar

Legal History Publications

Manella v. Barry highlights issues of agency and contract interpretation in the international maritime trade context. In the midst of America’s entry into the Quasi-War with France, a Baltimore shipping merchant brokered a large tobacco trade with a Spanish firm and experienced the risks of conducting trade over the high seas during wartime. Three out of seven ships were captured, and the Spanish firm sought to recover from the Baltimore merchant for the price of the lost cargo. Both the Circuit Court of Maryland and John Marshall’s Supreme Court sided with James Barry, holding that the Baltimore merchant was not …

Maryland Insurance Co. V. Woods, Andrew Weissenberg

Legal History Publications

Maryland Insurance Company v. Woods, 10 U.S. 29 (1810). In 1803, Britain utilized France’s interference in the Civil Swiss Strife as a pretext to continue its occupancy of Malta, effectively ending the short-lived Treaty of Amiens. As the most impressive Naval Power in the world, Britain proceeded to blockade French, Spanish, and Dutch ports. In 1805, Williams Woods purchased two insurance policies from The Maryland Insurance Company, a successful and lucrative Baltimore marine insurance institution. The two policies covered the ship, The William and Mary, and its cargo. The policy assured the journey from Baltimore to Laguira, with “liberty at …

Sheppard V. Taylor, 5 Peters 675 (1831): Deception On The High Seas And The Quest For Lost Wages, Steven Zerhusen

Legal History Publications

This Article follows the case of the ship Warren, which set sail in 1806 to take part in illicit trade with the Spanish colonies, unbeknownst to all on board except for the supercargo. After dealing with the suicide of the captain and capture in Concepcion Bay, Chile, the crew languished for years in Spanish prison. After trying for almost 20 years the proceeds of the ship were finally returned to the owners, and the crew filed petition. Not until 1831 was their libel upheld, and wages from their voyage 25 years earlier to be paid to the crew. This article …

Baltimore's Piratical Patriot Privateers: The Arrogante Barcelones, 20 U.S. 496 (1822), Shannon Byrne

Legal History Publications

The case of The Arrogante Barcelones involved a complicated story of facts, due in part to the cunningness of one of the main players, Joseph Almeida. Almeida’s maneuvers make sense when viewed through the lens of nineteenth century Baltimore, the War of 1812, and U.S. citizens’ involvement in South American privateering. At first glance, this case seems to hinge on issues regarding the validity of Almeida’s commission, the authority of the condemnation, and the sufficiency of the documentation produced to prove it. However, the United States Supreme Court ultimately avoids untangling those maritime issues and instead bases its opinion in …

Orginalism Talk: A Legal History, Mary Ziegler

Scholarly Publications

Progressives have long recognized the tremendous political appeal of originalism. For many scholars, originalism appears to have succeeded because it achieves results consistent with conservative values but promises judicial neutrality to the public. By drawing on new historical research on anti-abortion constitutionalism, this Article argues for a radically different understanding of the originalist ascendancy. Contrary to what we often think, conservative social movements at times made significant sacrifices in joining an originalist coalition. These costs were built in to what this Article calls originalism talk—the use of arguments, terms, and objectives associated with conservative originalism.

Scholars have documented the costs …

The Age Of Constitutions In The Americas, M C. Mirow

Faculty Publications

The late eighteenth and nineteenth centuries have been aptly called the “Age of Codifications.” The same period was also the Age of Constitutions. Although a great deal is known about the migration of prenational and transnational legal sources and ideas that led to national codes of civil and criminal law in Europe and the Americas, much less is known about similar processes on the constitutional level. Constitutional historians have been more parochial than their private law counterparts, most likely because of the relationship between constitutions and nations. In the light of independence, nations immediately needed constitutions to solidify gains and …