Legal History Commons^™

Federalist Politics And The Elusive Original Meaning Of The Free Exercise Clause, Jack Thorlin

Catholic University Law Review

Originalism requires interpreting the Constitution by reference to a provision’s original public meaning. But there is very little evidence of original public meaning for some constitutional provisions, most notably the Free Exercise Clause. Originalists have splintered into several different methodological approaches toward the Clause. Justices Scalia and O’Connor staked out opposing originalist views on the Clause thirty years ago in Employment Division v. Smith and City of Boerne v. Flores. In the Roberts Court, some of the conservative justices have attempted to apply a simple textualist interpretation of the Clause, but those efforts have not attracted most of the …

Commonsense And Convoluted: Revisiting Scott V. Harris And Its Effect On Summary Judgment, Zachary P. Novak

Catholic University Law Review

The traditional summary judgment standard across state and federal courts has long been that facts are viewed in the light most favorable to the nonmovant; this has developed as both a baseline measure to test whether the claims are even fit for a trial, but also as a measure of fairness – it is the movant who wants to dispose of the case before trial, so this standard gives the nonmovant a more level playing field. However, the Supreme Court decision of Scott v. Harris carved out a unique exception to this standard: when there is video evidence that so …

The Great Depression And Canada's Major Originalist Decade, Preston Jordan Lim

Faculty Publications

Few periods of Canadian history have been as momentous or terrible as the Great Depression. The Dominion and provincial governments’ inability to combat financial and environmental catastrophe led many Canadians to openly question the appropriateness of their constitutional framework. As legal historians have since documented, many leading jurists of the time believed that a strong central government could, through the institution of national programs, contain the Great Depression; in the eyes of these 1930s jurists, the Judicial Committee of the Privy Council—then Canada’s apex court—had sapped the federal government of its powers by misinterpreting the British North America Act, 1867 …

Citizenship As Control: Lessons From Athenian Democracy And Modern U.S. Immigration Practices, Máire Sullivan

Northwestern Law Journal des Refusés

No abstract provided.

Breaking The Stigma: The Law And Supreme Court Cases Behind Gender Discrimination Legislation, Camille M. Ogden

Undergraduate Theses

Pauli Murray and Ruth Bader Ginsburg were extremely influential attorneys due to their groundbreaking legal work on sexual discrimination. Murray’s legal work heavily influenced and inspired Ginsburg and this work explored that connection between them. This research asked the question, ““How did case law evolve from 1964-1982 in the United States of America and how did Pauli Murray influence and inspire Ruth Bader Ginsburg?” This thesis examined how Murray influenced Ginsburg and her legal work in the United States from 1966 until 1979. It looked at how case law and precedent changed and evolved mainly focusing on the influence these …

The Hypocrisy Of The Wizards—A Proposal To Correct Incentives In Higher Education Loan Financing, Caden Benedict

School of Public Policy Capstones

This paper explores the origins of the student loan debt crisis and proposes tying university incentives to graduates' repayment plans and disclosing median earnings for degrees before students apply. Specifically, while there are numerous factors explaining why the price of education has increased dramatically since the 1970s, this paper proposes solutions that will specifically target university moral hazards by requiring universities fund: (1) the current subsidies to federal student loan repayments under income-driven plans as the House of Representatives intended before the Senate removed "risk-sharing," and (2) bankruptcy law discharge amounts. Moreover, requiring universities to disclose the median earnings of …

The Constitution Of 1787 Had No Bill Of Rights: What Were The Framers Thinking?, James L. Huffman

Mercer Law Review

In this Article, I recount the brief history from the Philadelphia Convention, during which scant attention was paid to a bill of rights, to the ratification of the Bill of Rights only four years later. Although the delegates to the convention made frequent reference to individual liberty as central to their mission, and several of the newly enacted state constitutions included bills of rights, there was no serious consideration given to including a bill of rights in the constitution proposed for ratification by the states. In response to the occasional suggestions during the convention for specific rights guarantees, most of …

The Nondiscrimination Principle, Zephyr Teachout

Fordham Law Review

No abstract provided.

"Under The Fig-Tree": Anti-Federalist Conceptions Of American National Identity, Clara Kernodle

Tenor of Our Times

The constitutional convention of 1787 gave America some of her most energetic and exciting few months in American history. The Federalists proposed the Constitution as a replacement for existing government, opposed by Anti-Federalists on principled grounds. Thus ensued a mountain of political writing and propaganda that historians still study today. The Anti-Federalists lost the debate, and then were lost to history. Few Americans have even heard of the Anti-Federalists and even fewer scholars study their writings. But reading and evaluating Anti-Federalist writing is an important part of studying the Founding era and Constitutional debates. The Anti-Federalists, as much as their …

The Racial Implications For Black Claimants At The Federal Arbitration Act's Centennial, Michael Z. Green

Faculty Scholarship

On February 12, 1925, when President Calvin Coolidge signed into law an Act to make arbitration agreements "valid, irrevocable, and enforceable," no person could have expected that this new statute would ever apply to claims by Black litigants. A century later, that law, now referred to as the Federal Arbitration Act (FAA), has evolved to encompass disputes involving a broad array of claimants and processes where businesses enforce pre-dispute agreements to arbitrate. In examining whether Black claimants (businesses, consumers, and importantly, workers) may benefit from using arbitration, this Article investigates how the FAA, as enacted, never intended to address their …

An Elegy For The Hereditary Peers, Declan M. Hurley

Notre Dame JLEPP: In Limine

Declan Hurley reflects on the role of the hereditary peers, and what is lost with their demise.

Decline And Fall Of The House Of Lords, Thomas H. Schacht

Notre Dame JLEPP: In Limine

Thomas Schacht recounts the inevitable momentum of the last one hundred years, which has rendered the House of Lords impotent

Precedent-Based Antitrust Law, Anca Daniela Chirita

William & Mary Business Law Review

This contribution revisits the authentic origins of antitrust law and the U.K.’s legacy of EU precedent rulings, spanning an eclectic and holistic analysis of the wider contemporary objectives of antitrust law, the versatile doctrine of vertical restraints of trade applied in the context of the online resale price maintenance, and the abuse theory of monopoly power applied in the context of excessive pricing and, more recently, of data-driven digital market competition. This contribution offers an original legal interpretation of precedent-based antitrust law: First, sustaining as principal narrative streams of evolutionary development, the rise of authentic precedent, which has had a …

Forever Young: Student Employee Unionization In Higher Education, William A. Herbert

Publications and Research

This article presents history and data about unionization among graduate and undergraduate student employees in the United States. It demonstrates that student employee unionization is not a new phenomenon and is part of a second curriculum for higher education students, which provides first-hand experience in workplace representational democracy and citizenship, including maintaining a majority coalition and making hard necessary compromises

A Comparative Legal Analysis Of The English And Scottish Reformations, Erin Hanson

Honors Theses

This thesis examines the legal and institutional mechanism that contributed to the decline in Catholicism in early modern England and Scotland during the Reformation period. By analyzing statutory developments, ecclesiastical court structures, and enforcement practices, it compares how each kingdom implemented religious reform and regulated religious conformity. Rather than focusing solely on theological differences, this study emphasizes the role of legal structure and legal institutions in shaping religious governance.

Chapter I outlines the historical and legal background of the English and Scottish Reformations. Chapter II examines prior literature, and Chapter III states the methodology used in this study. Chapter IV …

The Territorial Continuum: American Samoa, Criminal Adjudication, And Territorial Administration, Emmanuel Hiram Arnaud

Cardozo Law Review

The standard account of American territorial expansion posits that territorial acquisition moved along a spectrum of sovereignty. The federal government acquired new inhabited land through conquest or purchase, and the Constitution tasked Congress with organizing and administering the new territories until they were ready to become states. That pattern came to an abrupt halt in 1898 when, at the conclusion of the Spanish-American War, the Supreme Court, fearing the extension of citizenship to and the permanent integration of non-White populations into the American polity, suddenly pronounced that the Constitution authorized the holding of colonies. The Court thus sentenced new territories, …

The Evolution Of The Supreme Court's Second Amendment Jurisprudence, Kermit V. Lipez

Maine Law Review

We live in the shadow of an epidemic of gun violence. We dread the next report of an inevitable mass shooting. We no longer feel secure in public places. We fear for the safety of our children and our grandchildren at their schools. We shake our heads in disbelief at the empty ritual of "thoughts and prayers" for victims and their families. As one commentator put it, we suffer from the "[u]nbearable [m]onotony of [g]rief." Why must we live like this? Why are there no solutions? In conversations posing these questions, there are often references to the Supreme Court's Second …

Lowering Of The Lowered: The ‘Spectacular’ Construction Of ‘Humiliation’ In The Indian Prevention Of Atrocities Act 1989, Ashna Singh

National Law School of India Review

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is the only law in India that explicitly recognises caste-based insults or hate speech as an offence. In doing so, it captures the distinctive harm of such speech as humiliation. This article focuses on Section 3(1)(r) of the Act and argues that this recognition is significantly qualified by the “public view” requirement. Drawing on socio-political scholarship on humiliation, I show that judicial interpretation of this requirement has produced an extra-legislative condition of spectacularity. Courts tend to read caste-based humiliation through the paradigm of visible, overt, and collective atrocity, …

Donative Freedom, Disrupted, Carla Spivack, Deborah S. Gordon

Brooklyn Law Review

You can do what you want with your property at death—and after—because it is “yours.” This is the “fundamental guiding principle” of American succession law. Despite occasional criticism over the years, legal scholars, courts, law reformers, legislators, and practitioners accept donative freedom as succession law’s unshakeable foundation. Every proposal for change – securing a child’s inheritance, protecting surviving spouses, taxing wealthy estates – meets with that refrain. But the ideology of donative freedom has left us a legacy of wealth inequality, disinherited children and spouses, dynastic wealth, and thousand-year trusts that grow tax-free for generations. The ideology of donative freedom …

Law School News: From Textbooks To Truth: A Civil Rights Journey 3-23-2026, Naomi Zhang

Life of the Law School (1993- )

No abstract provided.