Legal History Commons^™

The Twist Of Long Terms: Judicial Elections, Role Fidelity, And American Tort Law, Jed Handelsman Shugerman

Faculty Scholarship

The received wisdom is that American judges rejected strict liability through the nineteenth and early twentieth centuries. To the contrary, a majority of state courts adopted Rylands v. Fletcher and strict liability for hazardous or unnatural activities after a series of flooding tragedies in the late nineteenth century. Federal judges and appointed state judges generally ignored or rejected Rylands, while elected state judges overwhelmingly adopted Rylands or a similar strict liability rule.

In moving from fault to strict liability, these judges were essentially responding to increased public fears of industrial or man-made hazards. Elected courts were more populist: they were …

Gender And Justice: The Experience Of Female Lawyers In Indiananapolis, Jessica Louise Nelson

Undergraduate Honors Thesis Collection

"Gentleman M.B". is recorded in United States history as far back as 1638, and was a successful landowner, local leader, and attorney to the governor. What is not translated is that this gentleman was, in fact, a woman: Margaret Brent was the first known female attorney, and would be the only one allowed entrance to the Bar for more than 200 years. Even though centuries later, in 1869, Myra Bradwell (Illinois), Mary Magoon (Iowa) and Belle Mansfield (Iowa) gained access to the legal community, women remained an outcast minority until very recently. A mere two percent of the profession was …

The Case Against Taxing Citizens, Reuven S. Avi-Yonah

Articles

The bipartisan tax reform bill recently introduced by Sens. Ron Wyden, D-Ore., and Judd Gregg, R-N.H., proposes to abolish IRC section 911. That section, which exempts U.S. citizens living overseas from tax on the first $80,000 of earned income, is indeed anomalous in the context of a tax on all income "from whatever source derived," and has been subjected to criticism. However, there is a reason section 911 has been in the code since the 1920s: In its absence, citizenship-based taxation becomes completely unadministrable. Rather than continuing the long argument over section 911, Congress should therefore reexamine the basic premise: …

The Unsung Empathy Of Justice Stevens, Sonja R. West, Dahlia Lithwick

Popular Media

Justice John Paul Stevens' announcement of his retirement this morning has his many admirers at a loss: Liberals are already bemoaning the absence of a true liberal leader at the court—a man who could still manage to "count to five" to forge a majority on the sometimes fractious center-left of the court.

Book Review. Joan Biskupic, An American Original: The Life And Constitution Of Supreme Court Justice Antonin Scalia, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Beyond Rules, Larry A. Dimatteo, Samuel Flaks

UF Law Faculty Publications

Our article, in contrast to the predominant scholarly view, contends that the influential Legal Realist Movement of the 1930s was actually two movements—radical legal realism and conservative legal realism (CLR). CLR is best understood through the works of Nathan Isaacs. This article will investigate the legitimacy and determinacy of the legal order through the lens of CLR as represented by Isaacs.

Isaacs and CLR are especially worthy subjects for study given the current economic crisis. It is a crisis, much like the Great Depression, that has spurred many people to question core capitalistic premises, such as the superiority of minimal …

Taking The Long View, Nancy Bellhouse May

The Journal of Appellate Practice and Process

No abstract provided.

Dilemmas Of Modernity: Bolivian Encounters With Law And Liberalism (Book Review), Jan Hoffman French

Sociology and Anthropology Faculty Publications

Recent scholarship on Bolivia has focused primarily on indigenous rights, multiculturalism, political and cultural issues surrounding the growing of coca, and the election of Evo Morales. Mark Goodale's project is different. By taking a "telescopic" view, Goodale steps away from ethnographic detail in a remote district of Bolivia to examine the sweep of "liberal legality" since independence in 1825. Setting the stage, Goodale takes the position that neither neoliberal economic policies of the 1980s nor the election of Morales are breaks with the past. Rather, the "patterns of intention" initiated with the early constitutions of the new republic, the ethos …

Law Versus Ideology: The Supreme Court And The Use Of Legislative History, David S. Law, David Zaring

William & Mary Law Review

Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court’s use of a particular interpretive technique— namely, the use of legislative history to determine the purpose and meaning of a statute. We analyzed …

The Price Of Conflict: War, Taxes, And The Politics Of Fiscal Citizenship, Ajay K. Mehrotra

Michigan Law Review

This Review proceeds in four parts, paralleling the chronological organization of War and Taxes. It focuses mainly on the book's analysis of the leading modern American wars, from the Civil War through the global conflicts of the twentieth century, up to the recent war on terror. Part I contrasts the tax policies of the Union and Confederacy during the Civil War to show how the Lincoln Administration was able to overcome Yankee resistance to wartime tax hikes to wage a war against a Southern Confederacy that resolutely resisted any type of centralized taxation until, of course, it was too late. …

Keep Negroes Out Of Most Classes Where There Are A Large Number Of Girls': The Unseen Power Of The Ku Klux Klan And Standardized Testing At The University Of Texas, 1899-1999, Thomas D. Russell

Sturm College of Law: Faculty Scholarship

The draft of this paper created controversy, garnered a great deal of media interest, and led the Regents of The University of Texas to remove a Klansman's name from a UT dormitory.

Two amicus briefs to the United States Supreme Court in Fisher v. University of Texas cite the published article, which appeared in the South Texas Law Review. These are the Brief of the Advancement Project and the Brief of the Black Student Alliance at the University of Texas at Austin, the Black Ex-Students of Texas, Inc., and the NAACP Legal Defense & Educational Fund, Inc.

The article appears …

Justice As Play, Jack L. Sammons

Mercer Law Review

I am interested here in using Johannes Huizinga's work on play, Homo Ludens, to explore a strange, yet civilizing, phenomenon. Why do we take those social disputes in our ordinary lives that often seem most serious and therefore most divisive, turn them over to playful participants in a legal game, and then choose, more or less, to call the outcome of this game justice and to trust it as such even to the point of preferring it to the political? Why, that is, do we think that it is justice that arises from this play?

This inquiry is not …

Law And Humor In Johnnie To's Justice, My Foot!, Marco Wan

Cardozo Law Review

No abstract provided.

Energy Independence And Climate Change: The Economic And National Security Consequences Of Failing To Act, Mark E. Rosen

University of Richmond Law Review

This article draws heavily from the works of the CNA MAB, namely the twin and interrelated challenges arising from imprudent reliance on fossil fuels by developed and developing countries, as well as the serious environmental and national security"externalities" that directly result from current consumptive trends.

"Undead" Wartime Cases: Stare Decisis And The Lessons Of History, Harlan G. Cohen

Scholarly Works

References to the “lessons of history” are ubiquitous in law. Nowhere has this been more apparent than in recent debates over U.S. counterterrorism policy. In response to the Bush Administration’s reliance on World War II-era decisions - Johnson v. Eisentrager, Ex Parte Quirin, Hirota v. MacArthur, and In re Yamashita - opponents have argued that these decisions have been rejected by the “lessons of history.” They argue that the history of wartime cases is one marked by executive aggrandizement, panic-driven attacks on civil liberties, and overly quiescent courts - none of which should be repeated.

But what does it really …

Rwanda 94: Theater, Film, And Intervention, Christian Biet

Cardozo Law Review

No abstract provided.

The Opinion Volume 48 Issue 1 – February 1, 2010, The Opinion

The Opinion Newspaper (all issues)

The Opinion newspaper issue dated February, 1, 2010

John Paul Stevens And Equally Impartial Government, Diane Marie Amann

Scholarly Works

This article is the second publication arising out of the author's ongoing research respecting Justice John Paul Stevens. It is one of several published by former law clerks and other legal experts in the UC Davis Law Review symposium edition, Volume 43, No. 3, February 2010, "The Honorable John Paul Stevens."

The article posits that Justice Stevens's embrace of race-conscious measures to ensure continued diversity stands in tension with his early rejections of affirmative action programs. The contrast suggests a linear movement toward a progressive interpretation of the Constitution’s equality guarantee; however, examination of Stevens's writings in biographical context reveal …

Law And Development: The Way Forward Or Just Stuck In The Same Place?, D. Daniel Sokol

UF Law Faculty Publications

This Essay does three things. First, it provides an overview of Law and Development issues. Second, it responds to other pieces in the symposium "The Future of Law and Development". Third, it suggests that to measure success, Law and Development needs clearer goals.

Aspects Of Deconstruction: The Failure Of The Word "Bird", Anthony D'Amato

Faculty Working Papers

Lawyers and judges often become impatient with those who dispute what they regard as the clear meaning of words. The meaning of words derives from the contexts in which they are employed, and we can never be certain of the context because we cannot enter into the minds of other persons to see the contexts to which their minds are adverting.