Legal History Commons^™

Retail Rebellion And The Second Amendment, Darrell A. H. Miller

Faculty Scholarship

When, if ever, is there a Second Amendment right to kill a cop? This piece seeks to answer that question. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment codifies a natural right to keep and bear arms for self-defense. That right to self-defense extends to both private and public threats, including self-defense against agents of a tyrannical government. Moreover, the right is individual. Individuals -- not just communities -- have the right to protect themselves from public violence. Individuals -- not just militias -- have the right to defend themselves against tyranny. In McDonald …

The Extraordinary Mrs. Shipley: How The United States Controlled International Travel Before The Age Of Terrorism, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

Terrorist watchlists used to restrict travel into and out of the United States owe their conceptual origins to Mrs. Ruth B. Shipley, the Chief of the State Department’s Passport Division from 1928 to 1955. Mrs. Shipley was one of the most powerful people in the federal government for almost thirty years, but she is virtually unknown today. She had the unreviewable discretion to determine who could leave the United States, for how long, and under what conditions.

This article examines how Mrs. Shipley exercised her power through a detailed study of original documents obtained from the National Archives. It then …

On The Incompatibility Of Political Virtue And Judicial Review: A Neo-Aristotelean Perspective, Ralph F. Gaebler

Articles by Maurer Faculty

Part I of this essay outlines a neo-Aristotelean theory of political virtue, an instance of virtue generally, that serves as the basis of excellent citizenship in the polis. As such, political virtue contributes its share to the achievement of eudaimonia, or the fulfillment of an individual’s natural, human function. In fact, political virtue is especially important because people are political beings, i.e. they seek the good most comprehensively in the context of association with others. Therefore, Aristotle describes politics as the master science of the supreme good, because politics orders the community of the polis and thereby establishes the norms …

What Happened In Iowa?, David Pozen

Faculty Scholarship

Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …

Privileges Or Immunities, Philip A. Hamburger

Faculty Scholarship

What was meant by the Fourteenth Amendment's Privileges or Immunities Clause? Did it incorporate the U.S. Bill of Rights against the states or did it do something else? In retrospect, the Clause has seemed to have the poignancy of a path not taken – a trail abandoned in the Slaughter-House Cases and later lamented by academics, litigants, and even some judges. Although wistful thoughts about the Privileges or Immunities Clause may seem to lend legitimacy to incorporation, the Clause actually led in another direction. Long-forgotten evidence clearly shows that the Clause was an attempt to resolve a national dispute about …

Trust And Fiduciary Duty In The Early Common Law, David J. Seipp

Faculty Scholarship

Trust is an expectation that others will act in one’s own interest. Trust also has a specialized meaning in Anglo-American law, denoting an arrangement by which land or other property is managed by one party, a trustee, on behalf of another party, a beneficiary.1 Fiduciary duties are duties enforced by law and imposed on persons in certain relationships requiring them to act entirely in the interest of another, a beneficiary, and not in their own interest.2 This Essay is about the role that trust and fiduciary duty played in our legal system five centuries ago and more.

Jewish Law From Out Of The Depths: Tragic Choices In The Holocaust, Samuel J. Levine

Scholarly Works

No abstract provided.

Rlt: A Preliminary Examination Of Religious Legal Theory As A Movement, Samuel J. Levine

Scholarly Works

No abstract provided.

The Jurisprudential Turn In Legal Ethics, Katherine R. Kruse

Scholarly Works

When legal ethics developed as an academic discipline in the mid-1970s, its theoretical roots were in moral philosophy. The early theorists in legal ethics were moral philosophers by training, and they explored legal ethics as a branch of moral philosophy. From the vantage point of moral philosophy, lawyers’ professional duties comprised a system of moral duties that governed lawyers in their professional lives, a “role-morality” for lawyers that competed with ordinary moral duties. In defining this “role-morality,” the moral philosophers accepted the premise that “good lawyers” are professionally obligated to pursue the interests of their clients all the way to …

The Hermeneutical And Rhetorical Nature Of Law, Francis J. Mootz Iii

Scholarly Works

In its most venal manifestation, scholarly writing betrays the anxiety of influence by claiming to offer a radically new solution to age-old conundrums. The goal is to make a clean break from a traditional path of thought that has become trapped in a cul-de-sac, to make progress by finding a new way forward. Not so with Jean Porter’s work, and particularly her most recent book. Professor Porter demonstrates that thinking through an established tradition – one that has responded to numerous challenges within very different contexts over several millennia – can sometimes offer the most productive response to contemporary dilemmas. …

Philosophical Legal Ethics: Ethics, Morals, And Jurisprudence, Katherine R. Kruse

Scholarly Works

The authors and moderator David Luban participated in a plenary session of the International Legal Ethics Conference IV, held at Stanford. Each author answered and discussed questions arising from short papers they had written about the principal concern of legal ethics was the morality of lawyers, the morality of clients, or the morality of laws.

Book Review. Louis D. Brandeis And The Making Of Regulated Competition, 1900-1932 By Gerald Berk, Ajay K. Mehrotra

Articles by Maurer Faculty

No abstract provided.

Sacrifice And Sacred Honor: Why The Constitution Is A "Suicide Pact", Peter Brandon Bayer

Scholarly Works

Most legal scholars and elected officials embrace the popular clich6 that "the Constitution is not a suicide pact." Typically, those commentators extol the "Constitution of necessity," the supposition that Government, essentially the Executive, may take any action-may abridge or deny any fundamental right-to alleviate a sufficiently serious national security threat. The "Constitution of necessity" is wrong. This Article explains that strict devotion to the "fundamental fairness" principles of the Constitution's Due Process Clauses is America's utmost legal and moral duty, surpassing all other considerations, even safety, security and survival.

The analysis begins with the most basic premises: the definition of …

A Trusting Public: How The Public Trust Doctrine Can Save The New York Forest Preserve, Katherine R. Leisch

Elisabeth Haub School of Law Student Publications

The public trust doctrine was instituted in England as a permanent limitation on the powers of the Crown. The well-established doctrine was brought to America and applied equally in the states even after the states seceded from England. The doctrine has since served as an indestructible check on the government. Article XIV of the New York State Constitution ensures protection of its wilderness in perpetuity, solidifying the forest preserve as part of the public trust. The paper traces the beginnings of the public trust doctrine and its eventual application Article XIV. The author contemplates the indestructibility of the Forest Preserve …

Collective Action Federalism: A General Theory Of Article I, Section 8, Robert D. Cooter, Neil S. Siegel

Faculty Scholarship

The Framers of the United States Constitution wrote Article I, Section 8 in order to address some daunting collective action problems facing the young nation. They especially wanted to protect the states from military warfare by foreigners and from commercial warfare against one another. The states acted individually when they needed to act collectively, and Congress lacked power under the Articles of Confederation to address these problems. Section 8 thus authorized Congress to promote the “general Welfare” of the United States by tackling many collective action problems that the states could not solve on their own.

Subsequent interpretations of Section …

Cheaters Shouldn't Prosper And Consumers Shouldn't Suffer: The Need For Government Enforcement Against Economic Adulteration Of 100% Pomegranate Juice And Other Imported Food Products, Michael T. Roberts

Journal of Food Law & Policy

In the modern global food system - marked by the trade flow of a variety of food products and ingredients from multiple locations in the world - economically motivated adulteration has emerged as a growing menace that threatens the health and wellbeing of consumers, the economic livelihoods of honest purveyors of food in the global marketplace, and the integrity and viability of national food regulatory systems. Economic adulteration is a form of cheating that includes the padding, diluting, and substituting of food product. Although this cheating is rooted in past food systems, the new paradigm for economic adulteration - a …

Reconsidering Federalism And The Farm: Toward Including Local, State And Regional Voices In America's Food System, Margaret Sova Mccabe

Journal of Food Law & Policy

Why is the relationship between our food system and federalism important to American law and health? It is important simply because federal law controls the American food system. This essay considers how federal law came to structure our food system, and suggests that though food is an essential part of our national economy, the dominating role of the federal government alienates citizens from their food system. It does so by characterizing food as a primarily economic issue, rather than one that has ethical, health, and cultural components. However, state and local governments have much to offer in terms of broadening …

Much Ado About Nothing Much: Protestant Episcopal Church In The Diocese Of Virginia V. Truro Church, Henry L. Chambers Jr., Isaac A. Mcbeth

University of Richmond Law Review

This essay reviews the issues the Supreme Court of Virginia resolved in Truro and notes important issues it did not resolve. Part II supplies the factual background and procedural history ofthe dispute. Part III summarizes the court's opinion and the reasoning underlying its determination that Virginia Code section57-9(A) is not applicable to this particular action. Part IV critiques the opinion, noting the issues the court resolved and how it resolved them. Part V briefly addresses issues that remain unresolved by the court's decision and discusses the implications of leaving those issues unresolved. Part VI presents the authors' conclusions.

Politics As Usual? The Political Question Doctrine In Holocaust Restitution Litigation, Sarah Willig

Cardozo Law Review

No abstract provided.

Celebrating The Twenty-Fifth Issue Of The Annual Survey Of Virginia Law, Marguerite R. Ruby, Sarah Warren S. Beverly

University of Richmond Law Review

No abstract provided.