Legal History Commons^™

Aspects Of Deconstruction: Thought Control In Xanadu, Anthony D'Amato

Faculty Working Papers

Nearly every case in nearly every legal system is a case where the factfinder—that is, the judge or jury—must decide what was going on in the minds of the litigants. For example, every criminal case turns on mens rea—a guess that the defendant harbored thoughts amounting to criminal intent. Tort cases involve the intention of the defendant, or at least his reckless indifference to risk. Estate cases require the probate court to assess the intent of the testator. Antitrust cases involve the question whether there was an intent to form a combination in restraint of trade. I can't think of …

The Effect Of Legal Theories On Judicial Decisions, Anthony D'Amato

Faculty Working Papers

I draw a distinction in the beginning of this essay between judicial decision-making and a judge's decision-making. To persuade a judge, we should try to discover what her theories are. Across a range of theories, I offered well-known case examples typically cited as examples of each theory. Then I showed that the exact same theory used to justify or explain those case results could be used to justify or explain the opposite result in each of those cases.

The Injustice Of Dynamic Statutory Interpretation, Anthony D'Amato

Faculty Working Papers

How can we possibly plan our lives on the basis of the law of tomorrow when we can't predict what that law will be? Are courts that are attracted to dynamic statutory interpretation teaching us that we can no longer know and rely on the rule of law in our daily lives because months or years later they can use policy considerations to make new law and apply that law retroactively to us? Doesn't dynamic statutory interpretation amount to unconstitutional ex post facto legislation? Hasn't justice become impossible to get from courts if judges insist on upsetting both sides' expectations …

A Few Steps Toward An Explanatory Theory Of International Law, Anthony D'Amato

Faculty Working Papers

If any one sentence about international law has stood the test of time, it is Louis Henkin's: "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time." If this is true, why is this true? What makes it true? How do nations invent rules that then turn around and bind them? Are international rules simply pragmatic and expedient? Or do they embody values such as the need for international cooperation? Is international law a mixed game of conflict and cooperation because of its rules, or do its rules make …

Obligation To Obey The Law: A Study Of The Death Of Socrates, Anthony D'Amato

Faculty Working Papers

Do we have an obligation to obey any law, no matter how unjust or evil, provided only that it is in fact a valid rule of the legal system in which we happen to be physically located? Reassessment of the relation between law and ethics justifies a new look at the classic statement of legal obligation: the death of Socrates found in the dialogues of Plato. Three possible bases for an ethical obligation to obey the law are examined.

Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland

Law Faculty Publications

No abstract provided.

Florence Kelley And The Battle Against Laissez-Faire Constitutionalism, Felice J. Batlan

All Faculty Scholarship

The usual story of the demise of laissez-faire constitutionalism in the 1930’s features heroes such as Louis Brandeis, Felix Frankfurter and the great male legal progressives of the day who rose up from academia, the bench, and the bar, to put an end to what historians label "legal orthodoxy." In this essay, I seek to demonstrate that Florence Kelley was a crucially important legal progressive who was at the front lines of drafting and defending new legislation that courts were striking down as violating the Fourteenth Amendment and State constitutions. Looking at who was drafting and lobbying for path breaking …

The Birth Of Legal Aid: Gender Ideologies, Women, And The Bar In New York City, 1863-1910, Felice J. Batlan

All Faculty Scholarship

No abstract provided.

Race Treason: The Untold Story Of America's Ban On Polygamy, Martha M. Ertman

Faculty Scholarship

Legal doctrines banning polygamy grew out of nineteenth century Americans’ view that Mormons betrayed the nation by engaging in conduct associated with people of color. This article reveals the racial underpinnings of polygamy law by examining cartoons and other antipolygamy rhetoric of the time to demonstrate Sir Henry Maine’s famous observation that the move in progressive societies is “from status to contract.” It frames antipolygamists’ contentions as a visceral defense of racial and sexual status in the face of encroaching contractual thinking. Polygamy, they reasoned, was “natural” for people of color but so “unnatural” for whites as to produce a …

The Productive Tension Between Official And Unofficial Stories Of Fault In Contract Law, Martha M. Ertman

Faculty Scholarship

Officially Contract law ignores fault. However, an unofficial story complements the official one, and explains why fault occasionally slips into contract law through doctrines such as willful breach. This chapter of FAULT IN AMERICAN CONTRACT LAW (Omri Ben-Shahar & Ariel Porot, eds, Cambridge U. Press, forthcoming 2010) argues that the official and unofficial stories operate in productive tension to both facilitate ex ante planning and, when necessary, look backward at reasons for breach to reach a just result. The occasional presence of fault in contract law, in this view, represents merely one more instance of the common doctrinal pattern of …

The Baltimore Development Corporation: A Case Study Of Economic Development Corporations, Shadow Government, And The Fight For Public Transparency And Accountability, Maximilian Tondro

Legal History Publications

This paper explores the limited public accountability of local quasi-public development corporations in negotiating and implementing public redevelopment projects by examining the history of the Baltimore Development Corporation (BDC). For most of its two-decade existence the BDC has strenuously resisted all public inquiry and oversight, a tradition inherited from its predecessors that originated as private business-led entities performing tasks under contract with Baltimore City (City). Like other similar quasi-public local development corporations, the BDC justified its need for secrecy as necessary to ensure the BDC’s effectiveness and efficiency in negotiating with private businesses on redevelopment projects. This assertion that a …

State Of Maryland V. Louis Hyman: Did Progressivism, Concern For Public Health, And The Great Baltimore Fire Influence The Court Of Appeals?, Justin Haas

Legal History Publications

In the latter half of the nineteenth century, increased immigration from eastern Europe and a growing garment industry in Baltimore led to vast growth in so-called sweatshops: cramped workspaces in which clothing was partially or completely sewn for market. As the sweatshops grew, integrated clothing factories were also emerging, finally becoming a real force in the Baltimore garment industry around the turn of the twentieth century. As the integrated factories grew, the workers joined in the growing organized labor movement, and then began to push for greater protections for the health and safety of workers, as well as fair wages. …

Caretti V Broring Building Company: The Sewering And Planning Of A City, Sheba Newman-Blount

Legal History Publications

Caretti v Broring Building Company was a case decided by the Court of Appeals of Maryland in 1926. Louis and Lucia Caretti sued the Broring Building Company in 1925 to enjoin them from polluting a stream that flowed through the Carettis’ property with sewage from their sewer system. The Carettis sued for an injunction to stop the operation of the sewer and further pollution of the stream. The Court of Appeals reversed the trial court ruling and decided in the Carettis’s favor, granting them an injunction against Broring.

The Carettis’ case occurred at a time when Baltimore was undergoing several …

Green V. Garrett: How The Economic Boom Of Professional Sports Helped To Create, And Destroy, Baltimore’S Memorial Stadium, Jordan Vardon

Legal History Publications

Buildings, like people, have lives all their own. They have beginnings, middles, ends, and even good and bad years. This project is a study of a building known by many names, including Venable Park, Mud Stadium, The Great White Elephant of 33rd St., The Old Gray Lady, and the World’s Largest Outdoor Insane Asylum, although for most of its life it was officially referred to as Memorial Stadium, located in Baltimore, Maryland.

The story of Memorial Stadium is really the story of those in the community that surround it. As the use and popularity of the Stadium grew, so too …

Marbury V. Madison And The Foundation Of Law, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

The Kennedy Justice Department's Enforcement Of Civil Rights: A View From The Trenches, Brian K. Landsberg

McGeorge School of Law Scholarly Books

The Kennedy Justice Department's Enforcement of Civil Rights: A View from the Trenches, in The Kennedy Justice Department’s Enforcement of Civil Rights: A View from the Trenches, in John F. Kennedy History, Memory, Legacy: An Interdisciplinary Inquiry (John Delane Williams et al. eds., 2010) available at www.und.edu/instruct/jfkconference/.

Civil Rights Chronology, January 1961 -- November 1963, in The Kennedy Justice Department’s Enforcement of Civil Rights: A View from the Trenches, in John F. Kennedy History, Memory, Legacy: An Interdisciplinary Inquiry (John Delane Williams et al. eds., 2010) available at www.und.edu/instruct/jfkconference/.

Wittgenstein Tests Mr. Justice Holmes: On Holmes's Proposal To Separate Legal Concepts From Moral Concepts, Thomas D. Eisele

Faculty Articles and Other Publications

No abstract provided.

Crowdsourcing And Open Access: Collaborative Techniques For Disseminating Legal Materials And Scholarship, Timothy K. Armstrong

Faculty Articles and Other Publications

This short essay surveys the state of open access to primary legal source materials (statutes, judicial opinions and the like) and legal scholarship. The ongoing digitization phenomenon (illustrated, although by no means typified, by massive scanning endeavors such as the Google Books project and the Library of Congress's efforts to digitize United States historical documents) has made a wealth of information, including legal information, freely available online, and a number of open-access collections of legal source materials have been created. Many of these collections, however, suffer from similar flaws: they devote too much effort to collecting case law rather than …

All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies And The Rule Of Law, Keith J. Bybee

College of Law - Faculty Scholarship

This paper contains the introduction to the new book, All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (Stanford University Press, 2010).

The book begins with the observation that Americans are divided in their beliefs about whether courts operate on the basis of unbiased legal principle or of political interest. This division in public opinion in turn breeds suspicion that judges do not actually mean what they say, that judicial professions of impartiality are just fig leaves used to hide the pursuit of partisan purposes.

Comparing law to the practice of common courtesy, the …

Reminiscence On The 1984 Swan Falls Water Rights Negotiations, Patrick D. Costello

Articles

No abstract provided.