Legal History Commons^™

New Light On The History Of Free Exercise Exemptions: The Debates In Two Eighteenth-Century State Legislatures, Stanton D. Krauss

Catholic University Law Review

As Justice Gorsuch pointed out in his concurring opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719, 1734 (2018), there is an ongoing debate about whether the First Amendment ever requires the recognition of religion-based exemptions to neutral and generally applicable laws. The leading proponent of such exemptions has argued that the original understanding of the Free Exercise Clause supports his claim, and that the existence of such exemptions in preconstitutional American statutes – which he believed to have been granted because legislators thought them mandated by “the free exercise principle” – is one factor …

Democracy's Forgotten Possessions: U.S. Territories' Right To Statehood Through Constitutional Liquidation, Joshua Stephen Ebiner

Notre Dame Law Review

This Note argues that the Territories must be granted statehood consistent with the equal footing doctrine. This thesis does not challenge Congress’s power to acquire or govern territory, or its constitutional authority to admit (and place reasonable conditions on the admission of) territory into the Union as states. These matters have long been settled through constitutional practice. Neither does this thesis suggest that acquired territory must be immediately annexed into the Union, since there are valid reasons to delay such a decision. Instead, the claim is that permanently inhabited territories that have longstanding, constitutionally significant relationships with the United States …

“That Little Girl Was Me”: Kamala Harris And The Civil Whites Of 1964 And Beyond, Maureen Johnson

Cardozo Law Review

No abstract provided.

Africana Legal Studies: A New Theoretical Approach To Law & Protocol, Angi Porter

Michigan Journal of Race and Law

“African people have produced the same general types of institutions for understanding and ordering their worlds as every other group of human beings. Though this should be obvious, the fact that we must go to great lengths to recognize and then demonstrate it speaks to the potent and invisible effect of the enslavement and colonization of African people over the last 500 years.” – Greg Carr

Delegation At The Founding: A Response To Critics, Julian Davis Mortenson, Nicholas Bagley

Articles

This essay responds to the wide range of commentary on Delegation at the Founding, published previously in the Columbia Law Review. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive effect. To the contrary: Depending on the relationships you chose to emphasize, a given act could properly be classified as both legislative (from the perspective of the immediate actor) and also executive (from the perspective …

Dean’S Desk: The Iu Maurer School Of Law And The Indiana Supreme Court, Christiana Ochoa

Christiana Ochoa (7/22-10/22 Acting; 11/2022-)

On Nov. 1, my first day as the 17th dean of the Indiana University Maurer School of Law, I attended the robing ceremony for Derek Molter, Indiana’s 111th Supreme Court justice. This public ceremony was an opportunity for those in attendance to celebrate Justice Molter’s formal swearing in, which had occurred privately on Sept. 1. For the IU Maurer School of Law, it was also an opportunity to celebrate Justice Molter joining three other IU Maurer alumni on the five-person court.

Established in 1816, the court precedes our law school by about 30 years. Still, for most of Indiana’s history, …

Moral Nuisance Abatement Statutes, Scott W. Stern

Northwestern University Law Review

On May 19, 2021, Texas enacted S.B. 8—also known as the Texas Heartbeat Act—which prohibits almost any abortion of a fetus once a heartbeat can be detected, effectively banning abortions after only six weeks of pregnancy. Just as controversially, S.B. 8 also specifies that it is enforceable exclusively through private civil actions, and it allows any private person to sue anyone who “performs,” “induces,” or “knowingly . . . aids or abets the performance or inducement of an abortion,” seeking injunctive relief and statutory damages of $10,000 per violation. The passage of S.B. 8 immediately led to calls for, and …

The Presidential Succession Act At 75 | Presidential And Vice Presidential Illness And The Presidential Succession Act Of 1947, Rose Mcdermott

Fordham Law Review Online

These remarks were delivered as part of the program entitled The Presidential Succession Act at 75: Praise It or Bury It?, which was held on April 6, 2022, and hosted by the Fordham University School of Law. The Presidential Succession Act sets out the presidential line of succession and other procedures for situations in which the president and vice president have both died, resigned, been removed, or become unable to discharge the presidency’s powers and duties. The Act also addresses succession scenarios before Inauguration Day. In light of the statute’s seventy-fifth anniversary, this program explored relevant history and analyzed …

The Presidential Succession Act At 75 | Carl Albert, Bipartisanship, And Presidential Succession: Lessons From Watergate, Joseph J. Fins

Fordham Law Review Online

These remarks were delivered as part of the program entitled The Presidential Succession Act at 75: Praise It or Bury It?, which was held on April 6, 2022, and hosted by the Fordham University School of Law. The Presidential Succession Act sets out the presidential line of succession and other procedures for situations in which the president and vice president have both died, resigned, been removed, or become unable to discharge the presidency’s powers and duties. The Act also addresses succession scenarios before Inauguration Day. In light of the statute’s seventy-fifth anniversary, this program explored relevant history and analyzed …

The Presidential Succession Act At 75 | How Close Has The United States Come To Having Lawmakers Succeed To The Presidency?, Roy E. Brownell Ii

Fordham Law Review Online

These remarks were delivered as part of the program entitled The Presidential Succession Act at 75: Praise It or Bury It?, which was held on April 6, 2022, and hosted by the Fordham University School of Law. The Presidential Succession Act sets out the presidential line of succession and other procedures for situations in which the president and vice president have both died, resigned, been removed, or become unable to discharge the presidency’s powers and duties. The Act also addresses succession scenarios before Inauguration Day. In light of the statute’s seventy-fifth anniversary, this program explored relevant history and analyzed …

The Presidential Succession Act At 75 | History Of The Legislative Succession Provisions In The Presidential Succession Act Of 1947, Joel K. Goldstein

Fordham Law Review Online

These remarks were delivered as part of the program entitled The Presidential Succession Act at 75: Praise It or Bury It?, which was held on April 6, 2022, and hosted by the Fordham University School of Law. The Presidential Succession Act sets out the presidential line of succession and other procedures for situations in which the president and vice president have both died, resigned, been removed, or become unable to discharge the presidency’s powers and duties. The Act also addresses succession scenarios before Inauguration Day. In light of the statute’s seventy-fifth anniversary, this program explored relevant history and analyzed …

The Presidential Succession Act At 75 | Opening Address, John D. Feerick

Fordham Law Review Online

These remarks were delivered as part of the program entitled The Presidential Succession Act at 75: Praise It or Bury It?, which was held on April 6, 2022, and hosted by the Fordham University School of Law. The Presidential Succession Act sets out the presidential line of succession and other procedures for situations in which the president and vice president have both died, resigned, been removed, or become unable to discharge the presidency’s powers and duties. The Act also addresses succession scenarios before Inauguration Day. In light of the statute’s seventy-fifth anniversary, this program explored relevant history and analyzed …

Interring The Unitary Executive, Christine Kexel Chabot

Notre Dame Law Review

The President’s power to remove and control subordinate executive officers has sparked a constitutional debate that began in 1789 and rages on today. Leading originalists claim that the Constitution created a “unitary executive” President whose plenary removal power affords her “exclusive control” over subordinates’ exercise of executive power. Text assigning the President a removal power and exclusive control appears nowhere in the Constitution, however, and unitary scholars have instead relied on select historical understandings and negative inferences drawn from a supposed lack of independent regulatory structures at the Founding. The comprehensive historical record introduced by this Article lays this debate …

While Waiting For Rain: Community, Economy, And Law In A Time Of Change, John Henry Schlegel

Books

What might a sensible community choose to do if its economy has fallen apart and becoming a ghost town is not an acceptable option? Unfortunately, answers to this question have long been measured against an implicit standard: the postwar economy of the 1950s. After showing why that economy provides an implausible standard—made possible by the lack of economic competition from the European and Asian countries, winners or losers, touched by the war—John Henry Schlegel attempts to answer the question of what to do.

While Waiting for Rain first examines the economic history of the United States as well as that …

Demons & Droids: Nonhuman Animals On Trial, Gerrit D. White

PANDION: The Osprey Journal of Research and Ideas

Nonhuman animal trials are ridiculous to the modern sensibilities of the West. The concept of them is in opposition to the idea of nonhuman animals—entities without agency, incapable of guilt by nature of irrationality. This way of viewing nonhuman animals is relatively new to the Western mind. Putting nonhuman animals on trial has only become unacceptable in the past few centuries. Before this shift, nonhuman animal trials existed as methods of communities policing themselves. More than that, these trials were part of legal systems ensuring they provided justice for all. This shift happened because the relationship between Christian authorities and …

Round Table (Part 5): What’S Raphaël Lemkin Got To Do With Genocide Studies?, Douglas Irvin-Erickson

Genocide Studies and Prevention: An International Journal

No abstract provided.

Taking Care With Text: "The Laws" Of The Take Care Clause Do Not Include The Constitution, And There Is No Autonomous Presidential Power Of Constitutional Interpretation, George Mader

Law Faculty Scholarship

“Departmentalism” posits that each branch of the federal government has an independent power of constitutional interpretation—all branches share the power and need not defer to one another in the exercise of their interpretive powers. As regards the Executive Branch, the textual basis for this interpretive autonomy is that the Take Care Clause requires the President to “take Care that the Laws be faithfully executed” and the Supremacy Clause includes the Constitution in “the supreme Law of the Land.” Therefore, the President is to execute the Constitution as a law. Or so the common argument goes. The presidential oath to “execute …

Off-Reservation Treaty Hunting Rights, The Restatement, And The Stevens Treaties, Ann E. Tweedy

Washington Law Review

The underdevelopment of the law of off-reservation treaty hunting and gathering poses challenges for treatises like the groundbreaking Restatement of the Law of American Indians (“Restatement”). With particular attention to sections 83 and 6 of the Restatement, this Article explores those challenges and offers some solutions for dealing with them in subsequent editions of the Restatement. Specifically, this Article explores the potential usefulness of historical law in interpreting treaties, the need to tie treaty interpretation to the language of the treaty when an explicit right is at issue, the proper application of the reserved rights doctrine and the Indian canons, …

Humor, A Meditation, John Henry Schlegel

Journal Articles

Republished at 47 Dalhousie J.L. 1 (2024).

A Comparative Look At The Response To Organized Crime In The Ports Of New York-New Jersey And Vancouver, Julia Pjevach

Cardozo International & Comparative Law Review

The note examines the influence of organized crime in ports, focusing on the Port of New York/New Jersey and the Port of Vancouver. It highlights the effectiveness of the Waterfront Commission of New York Harbor in reducing crime through centralized regulation and contrasts it with Vancouver's decentralized approach, which lacks a unified policing mechanism. The analysis underscores the need for stronger regulatory measures and adaptive strategies to combat evolving criminal activities in both ports.