Legal History Commons^™

Some Realism About Choice-Of-Law Statutes And The Common Law: The Oregon Example, John T. Parry

Lewis & Clark Law Review

Choice-of-law doctrine presents perpetual change. Common law doctrine is the primary driver of these changes, but change and reform need not come from common law alone. As Robert Leflar once observed, “it should not make much difference whether a governing choice-of-law rule . . . is found in the common law or in a statute. The same rule might be formulated in either way.” This Article assess the utility of choice-of-law statutes, on their own merits and as a substitute for common law reform. The Article begins by surveying the choice-of-law landscape, with its twin problems of multiplicity of methods …

Judicial Independence And The Rule Of Law, D. Brooks Smith

Lewis & Clark Law Review

No abstract provided.

Court Reform And The Promise Of Justice: Lessons From Reconstruction, David H. Gans

Lewis & Clark Law Review

The Supreme Court is broken. How should we fix it? This Article argues that Reconstruction, a period in American history when the role of the Supreme Court in American life was hotly debated and Congress repeatedly took steps to reform the courts, provides important and underappreciated lessons.

Reconstruction’s model makes clear that when the Supreme Court runs roughshod over constitutional rights, Congress need not sit on the sidelines. Rather, the Constitution gives it powerful tools of reform. Congress can (1) change the composition of the Court, (2) alter its jurisdiction and regulate its proceedings, and (3) use its express enforcement …

Recourse To Sages And Supermen: Interpreting The 1857 Oregon Constitution In Light Of The Convention’S Failure To Hire An Official Reporter, Nora Coon

Lewis & Clark Law Review

The lodestar of Oregon interpretive methodology is “legislative intent,” whether it is statutory or constitutional. But discerning that intent is often difficult and it is made even harder when there is a dearth of meaningful history. The Oregon Constitution is one such troublesome document. The Oregon Constitutional Convention of 1857 went against the trend of constitutional conventions in its era and failed to hire a reporter to document its proceedings, leaving that task to newspapers of varying political ideologies. The Oregon delegates, like their contemporaries, relied on four primary considerations: (1) the cost; (2) the importance of immediate publication; (3) …

Restating The Law In The Shadow Of Codes: The Ali In Its Formative Era, Deborah A. Demott

Faculty Scholarship

This chapter recounts the American Law Institute’s (ALI’s) history in its formative era (1923–1945), drawing from archival sources to deepen existing accounts of the ALI’s self-definition as an ongoing institution. The history is more complex than it appears in prior accounts because institutional necessities—including funding—as well as multiple contingencies shaped both the ALI and its work. Likewise, the ALI’s signal work in this period, the Restatement, departed in significant ways from its original plan. Generating the revenues requisite to its ongoing existence required that the ALI partner with commercial publishers and, at their urging, separately publish Annotations for each Restatement …

The Territories Under Text, History, And Tradition, Andrew Willinger

Faculty Scholarship

In two of its major decisions in the 2021–2022 Term, New York State Rifle & Pistol Ass’n v. Bruen and Dobbs v. Jackson Women’s Health Organization, the Court continued solidifying its originalist method of constitutional interpretation by looking increasingly to historical regulatory practice to construe how the Constitution protects individual rights. The Court is focused not only on the original public meaning of constitutional provisions, but also on historical practice. Historical laws and practices are now key to understanding how those who lived at the relevant time thought a constitutional provision might be applied and what regulatory approaches were consistent …

Ethical Lawyering: The Role Of Honor, Conscience, And Codes (Reviewing Michael S. Ariens, The Lawyer’S Conscience: A History Of American Lawyer Ethics), Vincent R. Johnson

Faculty Articles

Michael Ariens’ new book, The Lawyer’s Conscience: A History of American Lawyer Ethics, is a monumental work, rooted in his decades of excellent scholarship in the fields of attorney professional responsibility and legal history. The Lawyer’s Conscience captures the great sweep and key features of the roughly 250-year period in American legal ethics running from colonial times to the present day. Richly detailed and vividly presented, the story takes the reader on a grand tour of the landmark events and changing ideas that have defined the aspirations, responsibilities, and accountability of members of the American legal profession.

How Patents Became Politics, Steven Wilf

Faculty Articles and Papers

Political mobilization in the digital age often coalesces around opposition to the far-reaching protection of intellectual property. Both copyright and patent have materialized as the centerpiece of major political and legal debates that take a variety of forms, including the European pirate parties, NGOs such as the Electronic Frontier Foundation in the United States, and the call for Open Source software. The commonplace narrative is that self-interested stakeholders over the past century successfully fashioned an ever-expanding intellectual property system, and that resistance to such legal control of knowledge only emerged in our times. By contrast, this article recovers a little-known …

The American Tradition Of Self-Made Arms, Joseph G.S. Greenlee

St. Mary's Law Journal

No abstract provided.

Nestlé V. Doe: A Death Knell To Corporate Human Rights Accountability?, Phillip Ayers

Seattle University Law Review

The Supreme Court in Nestlé v. Doe held that foreign plaintiffs who claimed to be victims of overseas tortious conduct by corporate defendants had no jurisdiction to sue in federal courts using the Alien Tort Statute. This Comment looks at the history of the Alien Tort Statute, from its inspiration, long dormancy, and recent reinvigoration beginning in the 1980s. The Comment then explores the background of Nestlé and its issues with child slavery in its cocoa supply chain. From there, the Comment analyzes the Nestlé v. Doe decision, and posits an alternative outcome. Finally, this Comment looks for a new …

The Art Of International Law, Hilary Charlesworth

American University Law Review

International lawyers study international law primarily through its written texts—treaties, official documents, judgments, and scholarly works. Critical to being an international lawyer, it seems, is access to the written word, whether in hard copy or online. Indeed, as Jesse Hohmann observes, “the production of text can come to feel like the very purpose of international law.”

The Trial Of Thomas More - Robert Bolt's A Man For All Seasons, Jonathan Van Patten

Faculty Publications

The path from Magna Carta to the United States Constitution and the Bill of Rights runs through the trial of Thomas More. Robert Bolt's magnificent portrayal of that trial in A Man for All Seasons provides an opportunity to learn and reflect on how a political trial can teach us about the meaning of justice. The search for universals must be rooted in the particulars. The particulars in this case will also resonate with modern audiences who seek to understand their own politics in times of crisis.

Edward Barradall's Reports Of Cases In The General Court Of Virginia (1733-1741), William Hamilton Bryson

Law Faculty Publications

Edward Barradall was born in London, the son of Henry Barradall and Catherine Blumfield Barradall. He was baptized on 17 October 1703 in the parish church of St. Paul's, Covent Garden. Both of his brothers and two of his sisters came to Virginia in the 1730s. Edward Barradall was in Virginia by February 1731. From at least then until about 1733, he practiced law in the county courts of Caroline County and the Northern Neck. His law reports begin in 1733, and so it is to be presumed that that is the year he moved his practice from the county …

Pathways To Liberty: What Colonial, Antebellum, And Postbellum Education Can Teach Us About Today, Danielle Wingfield

Law Faculty Publications

Education is a critical part of nation-building. More specifically, it can also be a powerful pathway to liberty and a tool for disseminating knowledge. However, historically it has been used to subjugate and censor vulnerable groups like women, socio-economically disadvantaged persons, as well as men of color. Therefore, to avoid subordinating members of such minoritized groups and suppressing uncomfortable historical facts, advocates must continually evaluate the purpose and method of education. Such persistent monitoring can provide a basis for constructive reform of public education in the United States. Such reform must also consider changing social conditions.

Presently, for example, public …

Redemption, Marissa Jackson Sow

Law Faculty Publications

In 1987, civil rights activist and widow of the Rev. Dr. Martin Luther King, Jr., Coretta Scott King, sued Boston University for approximately 83,000 letters and other documents deposited by her late husband at the University from 1964 to 1965. Dr. King, a Boston University alumnus, chose to house his documents at Boston University over other institutions based on the belief that the documents would be safest there. He stipulated with the University that he was simply giving over custody of the letters, and not ownership thereof; however, he further stipulated that in the event of his death, all documents …

Fractional Sovereignty, Roger Michalski

Faculty Articles

The axiomatic beginning of every conflict of laws case is that a court must choose the law of one sovereign and disregard the law of all other sovereigns. One wins, gets to set the rules and regulate behavior, all others lose. This all-or-nothing scenario is the result of enshrining an old view of indivisible sovereignty into conflict of laws rules. The Article begins by explaining how this happened. Despite the importance of this assumption of indivisibility, no articles have examined why and how it became enshrined in conflict of laws doctrine. All too often it is treated as a truism …

Aba-Mandated Instruction On Racism And Recent State Legislation Banning Such Instruction In University Classrooms: “Jim Crow” Redux, Bernard K. Freamon

Roger Williams University Law Review

No abstract provided.

Bridging The Gap In Lgbtq+ Rights Litigation: A Community Discussion On Bisexual Visibility In The Law, Nancy C. Marcus, Bendita Malakia, Ann E. Tweedy, Mya Reid

Faculty Scholarship

This essay discusses the genesis of BiLaw, a coalition of Bi+ lawyers and law students, and highlights the importance of a 2021 Lavender Law session organized by BiLaw in which representatives of LGBT rights organizations discussed the erasure of Bi+ persons in jurisprudence and the importance of, and their commitment to, serving the needs of the Bi+ community, along with those of other stakeholders. A transcript of the groundbreaking discussion follows the essay.

Abortion Law As Protection Narrative, Lolita Buckner Inniss

Publications

No abstract provided.

Search And Seizure Budgets, Kiel Brennan-Marquez, Stephen E. Henderson

Faculty Articles

This article proposes a new means of restraining police power: quantitative limits on the number of law enforcement intrusions—searches and seizures—that may occur over a given period of time. Like monetary constraints, search and seizure budgets would aim to curb abusive policing and improve democratic oversight. But unlike their monetary counterparts, budgets would be indexed directly to the specific police activities that most enable escalation and abuse. What is more, budgets are a tool that finds support, conceptually, in the American framing experience. The Fourth Amendment has long been understood to require procedural limits, such as probable cause, on specific …