Legal History Commons^™

Playing With Words: Amar’S Nationalist Constitution, Robert J. Pushaw Jr.

Washington and Lee Law Review Online

This essay provides a balanced critique of Akhil Amar’s important book on early constitutional theory and practice. On the one hand, Amar’s work has three unique virtues. First, unlike other constitutional historians, he does not examine a particular clause or a brief time period (such as 1787‑1789), but rather analyzes the Constitution as a whole from 1760 to 1840. This holistic and longitudinal approach enables him to trace in detail the evolving constitutional views of America’s leading Founders—John Adams, Alexander Hamilton, Thomas Jefferson, James Madison, John Marshall, and George Washington—and the personal relationships among those men that helped shape those …

From Four Horsemen To The Rule Of Six: The Deconstruction Of Judicial Deference, Keith W. Rizzardi

Michigan Journal of Environmental & Administrative Law

In its tumultuous 2022 term, the Supreme Court rebalanced the separation of powers, again. A tradition of self-restraint has evolved through case law and statutes when the judiciary reviews the actions of the other branches of government. The judiciary often accepts congressional judgments as to whether laws are necessary and proper and defers to executive agency interpretations of those congressional acts. The historical notion of judicial deference, however, earned criticism due to concerns about the potential unchecked decision-making power of unelected executive agency bureaucrats. The emerging alternative system might be worse.

History offers parallels. During the New Deal, a core …

The Rise And Fall Of Group Libel: The Forgotten Campaign For Hate Speech Laws, Samantha Barbas

Journal Articles

It is well-known that there is no “hate speech” law in the United States. This has been criticized, especially given the existence of robust hate speech laws in other nations. The absence of hate speech laws in American law has been attributed to legal, cultural, and historical factors, including speech protective First Amendment jurisprudence and long-standing skepticism of group reputation as an interest worthy of legal protection.

This Article presents another reason for the absence of hate speech laws in America: the failure of a large-scale social movement in the 1940s to pass hate speech laws or “group libel” laws, …

American Courts' Image Of A Tenant, Nadav Shoked

Northwestern University Law Review

What is the core of current American residential landlord–tenant law, and how was that core formed? This Essay argues that in the past few decades courts have settled on a two-pronged landlord–tenant law regime. The law provides tenants with assurances respecting the quality of the units they rent. It does not, conversely, provide them with any assurances respecting the price of the rental units—and, therefore, respecting their ability to remain in those units.

The first component of the regime was established through the well-known judicial creation and endorsement of the warranty of habitability. The second component’s entrenchment is often attributed …

The Missing U.S. Vat: Economic Inequality, American Fiscal Exceptionalism, And The Historical U.S. Resistance To National Consumption Taxes, Ajay K. Mehrotra

Northwestern University Law Review

Since the 1970s, economic inequality has soared dramatically across the globe and particularly in the United States. In that time, one of the obstacles of using fiscal policy to address inequality has been the growing myth of the “overtaxed American”—the misguided notion that U.S. taxpayers pay more in taxes than residents of other advanced, industrialized countries. This myth has persisted, in part, because of the peculiar and distinctive nature of the fractured American fiscal and social welfare state. Even a cursory review of comparative tax data shows that the United States, by most measures, is a low-tax country compared to …

Compulsory Terms In Property, Timothy M. Mulvaney

Northwestern University Law Review

The state’s imposition of compulsory terms in property relations—such as habitability warranties binding landlords and tenants and minimum wages binding employers and employees—has long been conceived by analysts generally situated on the political right as an affront to individual freedom and inevitably harmful to the terms’ intended beneficiaries. This critique, though, seems to have special purchase in public discourse today not only within its traditional circle of supporters on the right but, at least in some instances, for a sizable number on the left as well. The bipartisan acceptance of this critique is serving as a substantial roadblock to a …

The Concept Of Amateurism: How The Term Became Part Of The College Sport Vernacular, Robert J. Romano Esq.

UNH Sports Law Review

No abstract provided.

Compulsory Terms In Property, Timothy M. Mulvaney

Faculty Scholarship

The state’s imposition of compulsory terms in property relations—such as habitability warranties binding landlords and tenants and minimum wages binding employers and employees—has long been conceived by analysts generally situated on the political right as an affront to individual freedom and inevitably harmful to the terms’ intended beneficiaries. This critique, though, seems to have special purchase in public discourse today not only within its traditional circle of supporters on the right but, at least in some instances, for a sizable number on the left as well. The bipartisan acceptance of this critique is serving as a substantial roadblock to a …

The Supreme Court Decisions On Guns And Abortion Relied Heavily On History. But Whose History?, Allison Orr Larsen

Popular Media

No abstract provided.

Wesley Newcomb Hohfeld: On The Difficulty Of Becoming A Law Professor, John Henry Schlegel

Contributions to Books

Published as Chapter 18 in Wesley Hohfeld A Century Later: Edited Major Works, Select Personal Papers, and Original Commentaries, Shyam Balganesh, Ted Sichelman & Henry Smith, eds.

Wesley Hohfeld (1879 - 1918) is well known to legal philosophers and to property teachers for his table of fundamental conceptions, a terminological framework for understanding legal doctrine and reasoning. This work was also substantively important for some members of the American Legal Realist movement and Critical Legal Studies. More personally he was part of the generation of law teachers who had to figure out how to become a professional academic in the …

Upaya Pemerintah Terhadap Perlindungan Ekspresi Budaya Tradisional Batik Motif Parang Sebagai Warisan Budaya Dunia, Raden Zulfikar Supinarko Putra

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

Batik is not just a design on a piece of cloth, more than that, batik is a soul that blends in the procession of Indonesian society. Since the baby has been carried with a batik cloth, weddings wear batik cloth until when they die they will be covered with batik cloth too usually. This fact become a consideration for UNESCO to establish Indonesian Batik as a Masterpieces of the Oral and Intangible Heritage of Humanity in the Fourth Session of The Intergovernmental Committee. This research uses a normative legal research method that is descriptive and analytical using a statutory …

Perbedaan Akad Wakalah Bil Ujrah Dan Akad Qard Terhadap Permasalahan Akad Pembelian Barang Dalam Kehidupan Sehari-Hari, Zendy Sellyfio Ardiana

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

The wakalah bil ujrah and qard contract are contracts that often cause difficulties in implementing the purchase of goods in everyday life, both in safekeeping for purchasing goods and for buying and selling in general. Where if it is wrong in its application, it can cause income in a sale and purchase to be haraam due to an error in understanding the contract used and not describing benefit as the core of maqashid al-sharia which has an important role in determining Islamic law. The purpose of this paper is to find out how the solution to the application of …

Tinjauan Yuridis Dalam Penyelesaian Pelanggaran Ham Berat Melalui Komisi Kebenaran Dan Rekonsiliasi Di Afrika Selatan Dan Indonesia, Tshana Erfandi

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

Several countries are currently developing a solution to the problem by establishing a particular commission. The commission works outside the courts, parliament and executive. In Indonesia, In Indonesia. The People's Consultative Assembly set a stipulation regarding the establishment of the National Center for Truth and Reconciliation: (NCTR) in 2000. This stipulation has the intent and purpose for national unity to identify existing problems, determine the conditions that must be made in order to achieve national reconciliation and establish policy direction as a guide to carry out the consolidation of unity of a nation. Whereas in South Africa, the National …

Eli-Tpitahatomek Tpaskuwakonol Waponahkik (How We, Native People, Reflect On The Law In The Dawnland), Michael-Corey F. Hinton, Erick J. Giles

Maine Law Review

Multiple nations within the Wabanaki Confederacy, including the Maliseet Nation, Mi’kmaq Nation, Passamaquoddy Tribe, and Penobscot Nation, were signatories to the July 19, 1776 Treaty of Watertown, which was the first ever treaty entered into by the United States of America following the Declaration of Independence. Following the Treaty of Watertown, Wabanaki warriors served directly under General George Washington and made critical contributions in support of the Americans’ Revolutionary War. Such contributions were made based on the Americans’ promise that the Wabanaki Nations’ lands, natural resources, and traditional ways of life would be forever protected by the fledgling United States. …

New Directions In Judicial Biography: More Humane, More Transnational, More Comparative, Philip Girard

Articles & Book Chapters

No abstract provided.

Book Review: Before Memory Fades... An Autobiography, Amit Kumar

Journal of Research Initiatives

Title: Before Memory Fades…. An Autobiography

Author: Fali S. Nariman

Language: English

Year: 2010

Publisher: Hay House India

Total Pages: 454

The Apostrophic Impasse: Diacritical Remarks On The Stories Of International Law, Legal Decolonial Genealogy And Antony Anghie’S Historiography, Britt L.A.Q. (Haadiya) Hendrix

Theses and Dissertations

The (hi)stories of international law have strengthened the tentacles of coloniality in the legal regime as they continue to taunt the precarious lifeworlds of people, our planet and social imaginaries of an otherwise. The flow of coloniality has similarly rematerialized in decolonial legal theories and the postcolonial historiographical accounts of international law. I intend to demonstrate this colonial revival in the groundbreaking text of Antony Anghie Imperialism, Sovereignty and the Creation of International Law (2005) which challenged the (hi)stories of traditional jurisprudence. The latter was not necessarily a rejection nor negation of Western thought, because I argue that postcolonial historiography …

Growing Up Marshall: Life, Legacy & Lessons Learned, John W. Marshall

Buffalo Law Review

No abstract provided.

Legislating Against Liberties: Congress And The Constitution In The Aftermath Of War, Harry Blain

Dissertations, Theses, and Capstone Projects

How far can a democracy go to protect itself without jeopardizing the liberties upon which democracy depends? This dissertation examines why wartime restrictions on civil liberties outlive their original justifications. Through a comparative historical analysis of five major American wars, it illustrates the decisive role of the U.S. Congress in preserving these restrictions during peacetime. This argument challenges the prevailing consensus in the literature, which identifies wartime executive power as the main threat to postwar freedoms. It also reveals broader narratives of American constitutional development, including the rise and fall of intrusive congressional investigations, the decline of sedition legislation since …

Natural Transplants, Vanessa Casado-Pérez, Yael R. Lifshitz

Faculty Scholarship

Policymakers are constantly faced with the complex task of managing novel challenges. At times, these challenges result from new technologies: Consider fights over allocating air rights for drones or decisions about how to share scarce vaccines in a pandemic. Other times the resources are old, but the challenges are new, such as how to fairly allocate water in times of unprecedented drought or previously undesirable rare earth minerals that are in demand for modern manufacturing and energy production. Often, instead of carefully tailoring a regime to the new resource, decisionmakers simply rely on mechanisms they are familiar with. When jurisdictions …