Legal History Commons^™

Independence Through Judicialization: The Politics Surrounding Administrative Adjudicators, 1929-1949, Lawrence J. Liu

Michigan Journal of Environmental & Administrative Law

One front in today’s battle to define the scope of the administrative state concerns the authority, status, and future of its 10,000-plus administrative adjudicators. Decisions by federal courts and the executive branch to increase the dependence of administrative adjudicators on the executive have sparked strong reactions from observers, with many advocating for measures to increase adjudicator “independence.” But who should administrative adjudicators be independent of, which ought to be independent, and why?

Calls for administrative adjudicator independence are not new. This Article draws on primary documents produced by private actors, congressional decisionmakers, and federal executive agents to present a political …

A Series Of Historical Accidents, Christopher S. Storm

Michigan Technology Law Review

The Patent Act of 1946 banned infringer profit awards in utility patent cases by restricting all compensatory awards, including reasonable royalties, to the value of actual damages suffered and by eliminating infringer profits from reasonable royalty estimations. In 1964, the Supreme Court confirmed in Aro Manufacturing v. Convertible Top Replacement Co. that the 1946 Act limits reasonable royalty awards to the amount of the patentee’s actual damages, which courts must assess without regard to the value gained by the infringer. Subsequent courts, however, have ignored the 1946 Act and its correct interpretation in Aro, opting instead to permit …

Book Review Of Spencer Headworth’S Rules Of The Road: The Automobile And The Transformation Of American Criminal Justice, Mark Fenster

UF Law Faculty Publications

No abstract provided.

"The Game" (Or How I Learned To Stop Worrying And Love The Major Questions Doctrine, Gary Lawson

UF Law Faculty Publications

No abstract provided.

A Theory Of Corporate Fiduciary Duties, Benjamin B. Johnson

UF Law Faculty Publications

Corporate law lacks a general theory of a board’s power as fiduciary, and consequently, the law governing corporate fiduciary duties is notably unstable. This Article offers a novel theory that grounds corporate fiduciary duties in stronger microeconomic and legal foundations. The theory, coined the Judicial Monitoring Model (JMM), shows that even imperfect judicial monitoring makes shareholders and boards better off, even when there is no claim of a breach of the duties of loyalty or care as currently understood. The JMM synthesizes the law governing corporate fiduciary duties and other doctrines that protect principals, beneficiaries, and creditors from the risk …

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

The Unreasonableness Of The Reasonable Woman Standard: Evaluating And Reforming Sexual Harassment Jurisprudence, Richa Parikh

CMC Senior Theses

The “Reasonable Woman Standard” was first used in the 1991 case of Ellison v. Brady and has been central in shaping legal responses to sexual harassment. However, as societal norms and understandings of gender dynamics continue to evolve, as we experienced with the #MeToo movement, this “Reasonable Woman” often fails to grow with the times. I argue that this “Reasonable Woman” fails to encapsulate the complexities of sexual harassment experiences across different genders and cultural backgrounds. In this thesis, I deconstruct the historical development of the “Reasonable Woman Standard,” analyzing its roots in the “Reasonable Person Standard.” Through a combination …

The American Antimonopoly Tradition: Origins, Contradictions, Transformations, Daniel A. Crane

Articles

Proponents of antitrust reform argue for the rediscovery of an American antimonopoly tradition that predated the Sherman Act by centuries and suggests the reimagination of a more robust contemporary policy against concentrated economic power. But historically there have been a number of distinct and often contradictory strands of American antimonopoly. The American colanists inherited a weak, recent, and largely invented antimonopoly common law tradition focused on exclusive grants of privilege from the crown. In the nineteenth century, antimonopoly became a generative and ubiquitous concept in state legislatures and courts, but one with multiple, inconsistent meanings that evolved in the decades …

Separation Of Structures, Alex Zhang

Faculty Articles

This Article makes three main contributions. First, it fleshes out the theory of separation of structures as distinct from contemporary scholarly approaches. Second, it writes the intellectual history of separation of structures, which has been an integral part of the separation of powers enterprise since its inception, including at the Founding. Third, it explores the scholarly and doctrinal implications of structural separation of powers. In particular, adjudicating the constitutionality of agency structures requires methodological pluralism that incorporates the normative values underlying the structural design. That is, under separation of structures, current doctrine should evolve beyond the formalism heavily criticized by …

The Past As A Colonialist Resource, Deepa Das Acevedo

Faculty Articles

Originalism’s critics have failed to block its rise. For many jurists and legal scholars, the question is no longer whether to espouse originalism but how to espouse it. This Article argues that critics have ceded too much ground by focusing on discrediting originalism as either bad history or shoddy linguistics. To disrupt the cycle of endless “methodological” refinements and effectively address originalism’s continued popularity, critics must do two things: identify a better disciplinary analogue for originalist interpretation and advance an argument that moves beyond methods.

Anthropology can assist with both tasks. Both anthropological analysis and originalist interpretation are premised on …

Reports Of Cases In The Court Of Chancery From 1683 To 1688, William Hamilton Bryson

Law Faculty Publications

This collection of law reports brings together in one place the reports of cases in the Court of Chancery from the short tenure of Sir Francis North, lord Guilford, and that of Sir George Jeffreys, Lord Jeffreys, who was the Lord Chancellor during the reign of King James II. These reports have been scattered heretofore, but it is hoped that, by reprinting them in one place, they can be more easily comprehended individually and the jurisprudence of this court can be better understood. They come from the reigns of King Charles II and King James II, and date from 1683 …

Renewing Study Into The Oldest Hatred: Introduction To The Law Vs. Antisemitism Symposium, David Schraub

Lewis & Clark Law Review

This short essay provides an introduction to the Lewis & Clark Law Review's "Law vs. Antisemitism" symposium, which grew out of the conference by the same name hosted at Lewis & Clark in the spring of 2023. In addition to overviewing the contributions to the symposium, the introduction provides some background on the relative paucity of legal scholarship that has addressed antisemitism, and the importance of including antisemitism in the otherwise robust legal academic conversation occurring around other forms of oppression and social discrimination.

The Anti-Defamation League And The Evolution Of Hate Crime Laws, Steven M. Freeman

Lewis & Clark Law Review

No abstract provided.

The Displaced Persons Act Of 1948 And Home-Grown Antisemitism, Felice Batlan

Lewis & Clark Law Review

This Article examines the 1948 Displaced Persons Act which provided for the ability of certain European refugees to immigrate to the United States following World War II. The 1948 Act discriminated against Jewish survivors of the Holocaust and imprinted Nazi racial laws and ideology upon U.S. law. Moreover, in debates over passage of such a law, a vast amount of overt antisemitism emerged, generated by politicians and ordinary citizens, which went well beyond the question of the admission of refugees to the United States. By examining the complex and transnational events leading up to the 1948 Displaced Persons Act, and …

Bruen's Enforcement Puzzle: Unearthing And Adjudicating The Historical Enforcement Record In Second Amendment Cases, Andrew Willinger

Faculty Scholarship

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations. The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced. In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue. Historical enforcement data appear to …

Freemen And The Constitution: Monstrous Decisions Of The United States Supreme Court, Allen E. Shoenberger

Faculty Publications & Other Works

No abstract provided.

Brown Now: The Surprising Possibility Of Progressive Reform, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

For four decades, the Supreme Court has engaged in a determined, systematic and successful effort to transform and tame Brown v. Board of Education. But in this article, written for a symposium on Brown at 70, I suggest a surprising counterweight to the standard narrative. If one takes modern doctrine seriously -- a big if, I concede-- it has the potential to support some progressive goals.

In particular, modern doctrine might provide progressives answers to three questions:

1. Are race-conscious but facially neutral means of increasing diversity at state institutions of higher education constitutional?
2. Are legacy admissions to state run institutions …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …