Legal History Commons^™

Oh, The Treatise!, Richard A. Danner

Faculty Scholarship

This foreword to the Michigan Law Review’s 2013 Survey of Books Related to the Law considers the history of the American legal treatise in light of the well-known criticisms of legal scholarship published by Judge Harry Edwards in 1992. As part of his critique, Edwards characterized the legal treatise as “[t]he paradigm of ‘practical’ legal scholarship.” In his words, treatises “create an interpretive framework; categorize the mass of legal authorities in terms of this framework; interpret closely the various authoritative texts within each category; and thereby demonstrate for judges or practitioners what ‘the law’ requires.” Part I examines the origins …

Some Pluralism About Pluralism: A Comment On Hanoch Dagan’S “Pluralism And Perfectionism In Private Law”, Jedediah Purdy

Faculty Scholarship

No abstract provided.

Faithful Agency Versus Ordinary Meaning Advocacy, James J. Brudney

Faculty Scholarship

This Article contends that ordinary meaning analysis based on dictionaries and language canons cannot be reconciled with the faithful agent model. Fidelity to Congress as a principal entails fidelity to its lawmaking enterprise, not to words or sentences divorced from that enterprise. Congress has indicated that it does not value dictionaries as part of its lawmaking process, and it ascribes at most limited weight to language canons in that process. Further, Justices advocating ordinary meaning analysis too often use dictionary definitions, and language canons such as the rule against surplusage, the whole act rule, and ejusdem generis, in ways that …

Fundamental Unfairness: In Re Gault And The Road Not Taken, Robin Walker Sterling

Maryland Law Review

No abstract provided.

Dignité/Dignidade: Organizing Against Threats To Dignity In Societies After Slavery, Rebecca J. Scott

Book Chapters

This chapter is not an attempt to join the fractious debate over philosophical first principles or juridical first usages of the term 'dignity'. Instead, it explores the tight connection between the institution of slavery and the giving of specific meanings to the concept of dignity, in particular times and particular places. To explore the dynamics of the intertwined process of creating and drawing upon meaning for the terms 'dignity' and 'slavery', I examine two historical movements that emerged after formal abolition.

A Revisionist History Of Regulatory Capture, William J. Novak

Book Chapters

The idea of regulatory capture has controlled discussions of economic regulation and regulatory reform for more than two generations. Originating soon after World War II, the so-called capture thesis was an early harbinger of the more general critique of the American regulatory state that dominated the closing decades of the twentieth century. The political ramifications of that broad critique of government continue to be felt today both in the resilient influence of neoliberal policies such as deregulation and privatization as well as in the rise of more virulent and populist forms of anti-statism. Indeed, the capture thesis has so pervaded …

Roe's Race: The Supreme Court Decision, Legal History, And The Racial Politics Of Abortion, Mary Ziegler

Scholarly Publications

Questions of race and abortion have shaped current legal debates about defunding Planned Parenthood and banning race-selection abortion. In these discussions, abortion opponents draw a close connection between the eugenic or population-control movements of the twentieth century and the contemporary abortion-rights movement. In challenging legal restrictions on abortion, abortion-rights activists generally insist that their movement and its predecessors have primarily privileged reproductive choice.

Notwithstanding the centrality of race to abortion politics, there has been no meaningful history of the racial politics of abortion that produced or followed Roe v. Wade. This Article bridges this gap in the abortion discussion by …

An Incomplete Revolution: Reexaming The Law, History, And Politics Of Marital Property, Mary Ziegler

Scholarly Publications

Did the divorce revolution betray the interests of American women? While there has been considerable disagreement about the impact of divorce reform on women’s standard of living, many agree that judicial practices involving the division of marital property and the allocation of alimony have systematically disadvantaged women. Most often, in the courts and the academy, commentators see these practices as evidence of the need for family law reform.

These conclusions rely on a shared account of the history of divorce reform. According to this account, the transformation of divorce law in the 1970s and 1980s was a “silent revolution,” a …

Chief Justices And Chief Executives: Some Thoughts On Jim Simon’S Books, Akhil Reed Amar

NYLS Law Review

No abstract provided.

A Uniform Perpetuities Reform Act, 16 N.Y.U. J. Legis. & Pub. Pol'y 89 (2013), Scott Andrew Shepard

UIC Law Open Access Faculty Scholarship

For centuries the Rule Against Perpetuities provided protection against a pair of dangers: that important stocks of property would become, effectively, permanently inalienable as a result of perpetual conditional gifts; and that the dead would be permitted to control the destinies of the living by placing permanent conditions on the fixed stock of available wealth (i.e., land wealth). In recent decades, though, the states have increasingly abandoned the Rule and its protections. As of 2011 all states have migrated, at least in part, beyond the traditional "twenty-one-years- plus-life-in-being" rule, and more than half have actually or effectively abolished their rules, …

They Were Meant For Each Other: Professor Edward Cooper And The Rules Enabling Act, Mark R. Kravitz, David F. Levi, Lee H. Rosenthal, Anthony J. Scirica

University of Michigan Journal of Law Reform

This introduction to the essays in this Symposium illuminates Professor Ed Cooper's years as Reporter to the Civil Rules Committee by first briefly describing those who preceded him in the position and his own background. We then describe some of Ed Cooper's many contributions to the Civil Rules Committee, the Federal Rules, rulemaking, and civil procedure by examining the present state of the Rules Committees' work under the Rules Enabling Act. We conclude that after almost eighty years of experience under that Act, it is working well in large part because of the sound leadership provided by Ed Cooper over …

Ed Cooper, Rule 56, And Charles E. Clark's Fountain Of Youth, Steven S. Gensler

University of Michigan Journal of Law Reform

Nobody had a greater impact on the formulation of the original Civil Rules than Clark. His role as both the principal architect2 and the principal draftsman3 of the Civil Rules is well known. As Professor Wright once put it, although the Civil Rules were a joint effort, "the end product bears the unmistakable Clark stamp."4 But Clark started shaping the Civil Rules even before drafting began.5 Initially, Chief Justice Hughes thought the civil rules project should be limited to creating rules for actions at law (leaving in place-and separate-the existing equity rules).6 A passionate advocate for merging law and equity …

Edward Cooper As Curator Of The Civil Rules, Goeffrey C. Hazard Jr.

University of Michigan Journal of Law Reform

Ed Cooper has had a salient role in maintaining the Rules Committee process as a highly competent and stable element of lawmaking in this country. He is a consummate master of civil procedure and acutely understands the constitutional and political milieu in which the Rules process functions. Along with other similarly competent and observant Reporters, including the senior serving Reporter, Dan Coquillette, he has helped keep the Rules process and product as evenhanded as can be expected in our complicated legal system.

Iron Man Of The Rules, Patrick E. Higginbotham

University of Michigan Journal of Law Reform

To grasp Professor Cooper's contribution to rulemaking, it is helpful to review issues that the Advisory Committee confronted during his tenure. I will focus on the first four of his twenty years of service.

Some Very Personal Reflections On The Rules, Rulemaking, And Reporters, Arthur R. Miller

University of Michigan Journal of Law Reform

My entry into the world of federal rulemaking was one of those unpredictable but welcome fortuities of life. In early 1961, more than a half century ago, I was a happy and progressing associate in a prominent medium-sized, Wall Street, New York City law firm. Columbia Law School approached me to be the Associate Director of its newly formed Project on International Procedure. They dangled several attractive incentives: I could try my hand at teaching some civil procedure; hobnob with the giants of the Columbia faculty, like Herb Wechsler, Walter Gellhorn, Maury Rosenberg, and Jack Weinstein; and take my first …

Lost Options For Mutual Gain? The Layperson, The Lawyer, And Dispute Resolution In Early America, Carli N. Conklin

Faculty Publications

In 1786, legal reform activist Benjamin Austin undertook a campaign to promote the use of arbitration over litigation as the primary method of dispute resolution in Massachusetts. Although supported by a groundswell of anti-lawyer sentiment, Austin ultimately failed in securing the triumph of arbitration. Exploring Austin's pamphlet campaign in its historical context not only provides us with a snapshot of the arguments for and against dispute resolution in early America, but also serves as a corrective to the prevailing accounts of arbitration in American legal history. This article explores the context and content of Austin's pamphlet campaign and its implications …

Zizhu Chuangxin And China’S Self-Driven Innovation: Calling For A Holistic Perspective, Ken Shao

Cardozo Law Review de•novo

To present a holistic view approachable by both Western and Chinese audience, this Article will first discuss the forces operating against a holistic view of China and explain exactly what it means to employ a holistic view. Then, by emphasizing the historical, international, and developmental contexts, the Article aims to introduce the reader to real examples of a holistic perspective, and in turn, to reframe the discourse around China’s self-driven innovation.

A Good Step In The Right Direction: Illinois Eliminates The Conflict Between Attorneys And Guardians, 38 J. Legal Prof. 161 (2013), Alberto Bernabe

UIC Law Open Access Faculty Scholarship

No abstract provided.

Save Our Children: Overcoming The Narrative That Gays And Lesbians Are Harmful To Children, 21 Duke J. Gender L. & Pol'y 125 (2013), Anthony Niedwiecki

UIC Law Open Access Faculty Scholarship

This paper focuses on how gay rights activists had no real choice but to use the court system to advance marriage rights for same-sex couples because they were unable to use the political process to effectively rebut the claim that gays and lesbians were harmful to children. Part I begins with an overview of the ways in which the initiative process has been used to limit gay rights and prevent marriage equality. It then details how, in contrast to the political process, courts have been more receptive to advancing marriage rights for same-sex couples. Part II details Walter Fisher's narrative …

Losing All Sense Of Just Proportion: The Peculiar Law Of Accomplice Liability, 87 St. John’S Law Rev. 129 (2013), Michael G. Heyman

UIC Law Open Access Faculty Scholarship

No abstract provided.