Legal History Commons^™

Reflections On The Life And Times Of Alan Watson, Camilla E. Watson

Scholarly Works

The author summarizes the career of Alan Watson, J.D. and University of Georgia Law School faculty member.

The Fun Of Teaching American Legal History, Geoffrey R. Watson

Scholarly Articles

I teach a pair of two-credit legal history courses: History of Early American Law and History of Modern American Law. I teach a variety of other courses, but none is more fun to teach than legal history.

Presidential Power, Historical Practice, And Legal Constraint, Curtis A. Bradley, Trevor W. Morrison

Faculty Scholarship

The scope of the President’s legal authority is determined in part by historical practice. This Essay aims to better understand how such practice-based law might operate as a constraint on the presidency. Some scholars have suggested that presidential authority has become “unbounded” by law, and is now governed only or primarily by politics. At the same time, there has been growing skepticism about the ability of the familiar political checks on presidential power to work in any systematic or reliable fashion. Skepticism about law’s potential to constrain in this context is heightened by the customary nature of much of what …

The Anomaly Of Executions: The Cruel And Unusual Punishments Clause In The 21st Century, John Bessler

All Faculty Scholarship

This Article describes the anomaly of executions in the context of the U.S. Supreme Court’s Eighth Amendment jurisprudence. While the Supreme Court routinely reads the Cruel and Unusual Punishments Clause to protect prisoners from harm, the Court simultaneously interprets the Eighth Amendment to allow inmates to be executed. Corporal punishments short of death have long been abandoned in America’s penal system, yet executions — at least in a few locales, heavily concentrated in the South — persist. This Article, which seeks a principled and much more consistent interpretation of the Eighth Amendment, argues that executions should be declared unconstitutional as …

Shareholder Derivative Litigation’S Historical And Normative Foundations, Ann M. Scarlett

All Faculty Scholarship

Scholars and judges often say that the United States imported the shareholder derivative action from England, but that is not entirely accurate. What the United States imported from the English Court of Chancery was the necessary parties rule and its exceptions. During the 1800s, U.S. courts recognized an exception to the necessary parties rule that permitted representative lawsuits, but the contours of these actions differed from such actions in England. Today, these lawsuits would be classified as class actions and shareholder derivative actions in the United States. The shared history of these two forms of representative litigation has long been …

Pre-Constitutional Law And Constitutions: Spanish Colonial Law And The Constitution Of Cádiz, M C. Mirow

Faculty Publications

This article contributes to the intellectual and legal history of this constitutional document. It also provides a close study of how pre-constitutional laws are employed in writing constitutions. It examines the way Spanish colonial law, known as "derecho indiano" in Spanish, was used in the process of drafting the Constitution and particularly the way these constitutional activities and provisions related to the Americas. The article asserts that this pre-constitutional law was used in three distinct ways: as general knowledge related to the Americas and their institutions; as a source for providing a particular answer to a specific legal question; and …

Globalization And Law: Law Beyond The State, Ralf Michaels

Faculty Scholarship

The chapter provides an introduction into law and globalization for sociolegal studies. Instead of treating globalization as an external factor that impacts the law, globalization and law are here viewed as intertwined. I suggest that three types of globalization should be distinguished—globalization as empirical phenomenon, globalization as theory, and globalization as ideology. I go on to discuss one central theme of globalization, namely in what way society, and therefore law, move beyond the state. This is done along the three classical elements of the state—territory, population/citizenship, and government. The role of all of these elements is shifting, suggesting we need …

A Conversation With Justice Ruth Bader Ginsburg, Ruth Bader Ginsburg, Gillian E. Metzger, Abbe Gluck

Faculty Scholarship

Professor Gillian Metzger: Katherine, thank you for that wonderful overview of all that the Justice has achieved and the history of Columbia Law School. And I want to apologize for those to whom I am showing my back, but this will allow us to have more of a conversation with the Justice.

Justice, thank you so much for being with us today. It is a real privilege for us to get to talk to you this way, and we know for the entire audience. You have had – as you have now heard (LAUGHS) – an amazing and just tremendously …

Text, History, And Tradition: What The Seventh Amendment Can Teach Us About The Second, Darrell A. H. Miller

Faculty Scholarship

In District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court made seemingly irreconcilable demands on lower courts: evaluate Second Amendment claims through history, avoid balancing, and retain as much regulation as possible. To date, lower courts have been unable to devise a test that satisfies all three of these conditions. Worse, the emerging default candidate, intermediate scrutiny, is a test that many jurists and scholars consider exceedingly manipulable.

This Article argues that courts could look to the Supreme Court’s Seventh Amendment jurisprudence, and in particular the Seventh Amendment’s “historical test,” to help them devise a …

Young Again, Larry Yackle

Faculty Scholarship

This essay revisits an old problem in the law of federal courts: the source of the right of action in Ex parte Young. The core of the story underlying Young is familiar. Shareholders in railroad corporations filed suit in a federal circuit court, claiming that state established rail rates in Minnesota violated the Fourteenth Amendment and the (dormant) Commerce Clause. The circuit court issued a preliminary injunction barring adoption of the rates and prohibiting the defendants from attempting to enforce them. One of the defendants, Minnesota Attorney General Edward T. Young, nonetheless brought a state court mandamus action against the …

"Simple" Takes On The Supreme Court, Robert L. Tsai

Faculty Scholarship

This essay assesses black literature as a medium for working out popular understandings of America’s Constitution and laws. Starting in the 1940s, Langston Hughes’s fictional character, Jesse B. Semple, began appearing in the prominent black newspaper, the Chicago Defender. The figure affectionately known as “Simple” was undereducated, unsophisticated, and plain spoken - certainly to a fault according to prevailing standards of civility, race relations, and professional attainment. Butthese very traits, along with a gritty experience under Jim Crow, made him not only a sympathetic figure but also an armchair legal theorist. In a series of barroom conversations, Simple ably critiqued …

Micro-Symposium On Orin Kerr's 'A Theory Of Law', Laura Appleman, Shawn Bayern, Adam D. Chandler, Robert Cheren, Miriam A. Cherry, Ross E. Davies, Lee Anne Fennell, Paul A. Gowder, Caitlin Hartsell, Kieran Healy, Robert A. James, Jeffrey H. Kahn, Orin S. Kerr, Jacob T. Levy, Jeffrey M. Lipshaw, Orly Lobel, Geoffrey A. Manne, Chad M. Oldfather, Ronak Patel, Jeffrey A. Pojanowski, Alexandra J. Roberts, Kent Scheidegger, Arthur Stock, Anders Walker

All Faculty Scholarship

For more than a century, careful readers of the Green Bag have known that “[t]here is nothing sacred in a theory of law...which has outlived its usefulness or which was radically wrong from the beginning...The question is What is the law and what is the true public policy?” Professor Orin Kerr bravely, creatively, and eloquently answered that question in his article, “A Theory of Law,” in the Autumn 2012 issue of the Green Bag. Uniquely among all theories of law that I know of, Kerr’s answer to the fundamental question of law and true public policy enables all scholars to …

Blacks In Nevada Elections, Rachel J. Anderson

Scholarly Works

This article is a snapshot of challenges, contributions, and achievements of African Americans in Nevada elections. It is part of "A Special Series on African Americans in Nevada Politics - Past and Present" on pages 16-21 of the issue.

Occasional Publications Of The Bounds Law Library, Number Eight: Traveling The Beaten Trail: Charles Tait’S Charges To Federal Grand Juries, 1822-1825, Paul M. Pruitt Jr., David I. Durham, Sally E. Hadden.

Occasional Publications of the Bounds Law Library

Traveling the Beaten Trail, the eighth of the Occasional Publications of the Bounds Law Library, examines Tait’s career with particular emphasis upon his delivery of grand jury speeches in 1822, 1824, and 1825, followed by edited transcripts of those speeches. The author and editors conclude with a list of Tait’s law library in 1818, just prior to his migration to Alabama.

Ferlinghetti On Trial: The Howl Court Case And Juvenile Delinquency, Joel E. Black

Journal Articles

In spring 1957 the Juvenile Division of the San Francisco Police Department seized copies of Howl and charged the poem's publisher, Lawrence Felinghetti, with obscenity. Tried in summer 1957 and defended by the American Civil Liberties Union, Ferlinghetti was exonerated by a District Court judge. Scholars typically place the Howl trial at the beginning of a cultural and social revolution that flourished in the 1960s or place it amid the personal lives and rebellions of the actors composing the Beat Generation. However, these treatments do not fully consider the ways the prosecution reflected trends in law, shaped debates over juvenile …

Patents As Promoters Of Competition: The Guild Origins Of Patent Law In The Venetian Republic, Ted Sichelman, Sean O'Connor

San Diego Law Review

[T]his Article describes the artisan and merchant guild systems of the Venetian Republic. Part III explores the emergence of the patent system as a means for foreigners and Venetian citizens to compete with the guilds, as well as the eventual addition of negative exclusive rights to the basic license form of positive patent privileges. In so doing, contrary to the speculation of some scholars, we reject with near certainty the contention that the first patent law statute granting exclusionary rights for—in modern parlance—technological inventions was a silk-specific directive enacted by the Venetian Grand Council in the late fourteenth or early …

A First Amendment Right Of Access To A Juror's Identity: Toward A Fuller Understanding Of The Jury's Deliberative Process , Robert Lloyd Raskopf

Pepperdine Law Review

No abstract provided.

The Offender And The Victim, Edward Tromanhauser

Pepperdine Law Review

No abstract provided.

Crime Victims' Rights -- A Legislative Perspective, William Van Regenmorter

Pepperdine Law Review

No abstract provided.

Emerging Issues In Victim Assistance, Marlene A. Young

Pepperdine Law Review

No abstract provided.