Legal History Commons^™

Colonial Legislation Affecting Indigenous Peoples Of Southern New England As Organized By State, James D. Diamond

Roger Williams University Law Review

No abstract provided.

Keeping Our Republic, Ashlee A. Paxton-Turner

Law Faculty Publications

In championing the Constitution at a time when most Americans hardly felt any national allegiance, Alexander Hamilton insisted on “think[ing] continentally.” In other words, if the fledging nation were going to survive, the loose confederation of states formed under the Articles of Confederation was not the answer. For many Americans in 1787, the idea of abandoning  this loose confederation was a hard sell. But Hamilton, along with James Madison and John Jay, understood that a new structure of government was needed. And it is here—with this colonial trio—that our story begins. ...

America’S Racial Stain: The Taint Argument And The Limits Of Constitutional Law And Rhetoric, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

How should reformers respond to America’s racial stain? The problem is more complex than many imagine. Political activists usually attempt to promote change by taking advantage of a gap between current reality and a touchstone they use to measure the normative desirability of that reality. But what if the touchstone itself is infected by the reality that activists want to change?

Questions raised by this problem do not lend themselves to definitive answers, and this essay does not offer them. Instead, I suggest a variety of responses that attempt to grapple with the difficulty. I also offer tentative assessments of …

Remarks On My Mentor, Robert Cover, Hon. Guido Calabresi

Touro Law Review

No abstract provided.

Identifying The Plessy Remainder: State Exploitation Of Private Discriminatory-Impact Actions, Matthew Patrick Shaw

South Carolina Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Standing, Equity, And Injury In Fact, Ernest A. Young

Faculty Scholarship

This contribution to the Notre Dame Law Review's annual Federal Courts symposium on "The Nature of the Federal Equity Power" asks what the traditions of equity can tell us about Article III standing. I take as my point of departure the observation by Professors Sam Bray and Paul Miller, in their contribution to the symposium, that equity does not have causes of action as such--or at least not in the same way as actions at law. This is potentially important for standing, as many academic critiques of the Supreme Court's standing jurisprudence have argued that standing should turn on whether …

A New Report Of Entick V. Carrington (1765), Christian R. Burset, T. T. Arvind

Journal Articles

The Supreme Court has described Entick v. Carrington (1765) as “the true and ultimate expression of constitutional law” for the Founding generation. For more than 250 years, judges and commentators have read that case for guidance about the rule of law, executive authority, and the original meaning of the Fourth and Fifth Amendments. But we have been reading a flawed version. This Article publishes, for the first time, a previously unknown manuscript report of Entick v. Carrington. We explain why this version is more reliable than other reports of the case, and how this new discovery challenges prevailing assumptions about …

The Lawfulness Of The Fifteenth Amendment, Travis Crum

Scholarship@WashULaw

One of the most provocative debates in constitutional theory concerns the lawfulness of the Reconstruction Amendments’ adoptions. Scholars have contested whether Article V permits amendments proposed by Congresses that excluded the Southern States and questioned whether those States’ ratifications were obtained through unlawful coercion. Scholars have also teased out differences in how States were counted for purposes of ratifying the Thirteenth and Fourteenth Amendments. This debate has focused exclusively on the Thirteenth and Fourteenth Amendments, dismissing the Fifteenth Amendment as a mere sequel.

As this Essay demonstrates, the unique issues raised by the Fifteenth Amendment’s ratification adds important nuance to …

Copyright Neutrality? Lessons From Mein Kampf, Michal Shur-Ofry, Noy Lion

Cardozo Arts & Entertainment Law Journal

This Article explores the copyright story of Hitler's Mein Kampf over the past century and uses this case study to shed new light on one of copyright's foundational doctrines: the principle of copyright neutrality. Relying on primary archival materials from German archives, combined with legal proceedings from the 1930s onwards, secondary historical sources, and in-depth interviews, we trace the copyright trails of Mein Kampf across several jurisdictions and periods of time. This intricate inquiry unravels the surprisingly central role that copyright played in spreading the Nazi ideology and illuminates a structural imbalance within the neutrality principle, which may legitimize and …

Not Just The Historians: Anne Orford’S Insights And The Suspicion Between International Law And Philosophy, Steven R. Ratner

Articles

International Law and the Politics of History is nothing short of cri de coeur directed at international lawyers and historians, the two disciplinary co-conspirators in international law's so-called turn to history. Rather than embracing what appears to be a mutually beneficial model of interdisciplinary collaboration, Anne Orford instead sees international lawyers as evading their responsibilities as decisionmakers-and indeed makers of both the discipline and its underlying norms-and historians as self-satisfied purveyors of truths that they themselves know are contested and instrumental. As much as she blames historians for acting with blinders, her main audience is international lawyers (mostly the academic …

Willard Hurst, Technological Changes, And The Transformation Of American Public Law, William J. Novak

Articles

As Sociobiologist E.O. Wilson once famously framed the “problem of humanity”: “We have paleolithic emotions; medieval institutions; and god-like technology.” America’s greatest philosopher John Dewey similarly placed this yawning gap between rapidly expanding technological change and slowly evolving human emotions and institutions at the heart of what he called The Public and Its Problems. Indeed, Dewey traced the origins of the modern American state as well as what he termed “the Great Society” to the new and modern technologies in production and commerce and steam and electricity that “resulted in a social revolution.” Without warning, Dewey argued, traditional local communities …

The Truman Show: The Fraudulent Origins Of The Former Presidents Act, Paul F. Campos

Publications

When President Donald Trump was impeached for a second time, many commenters pointed out that, if Trump were to be convicted by the Senate, he would likely lose millions of dollars in future taxpayer-funded benefits. These benefits are provided to ex-presidents by the Former Presidents Act, a 1958 statute of considerable political significance and ongoing controversy, that nevertheless has to this point been ignored completely by the legal academic literature.

This Article represents the first sustained discussion of the FPA in that literature. It concludes that the statute should be revoked — and it centers its critique on the law’s …

The Imaginary Immigration Clause, Nikolas Bowie, Norah Rast

Michigan Law Review

The political convulsions of the past decade have fueled acute interest in constitutional For the past century, the Supreme Court has skeptically scrutinized Congress’s power to enact healthcare laws and other domestic legislation, insisting that nothing in the Constitution gives Congress a general power to “regulate an individual from cradle to grave.” Yet when Congress regulates immigrants, the Court has contradictorily assumed that Congress has “broad, undoubted power” to do whatever it thinks necessary—even though no clause of the Constitution gives Congress any specific immigration power. The Court has explained this discrepancy with reference to the Chinese Exclusion Case, …

A Cost To Bear—Environmental Contamination And Eminent Domain, Evan C. Heaney

Seattle University Law Review

This Note advocates for Washington courts to adopt a system that universally allows evidence of environmental contamination on the private property taken in eminent domain proceedings. Part I of this Note discusses the history and progression of eminent domain and the broader constitutional roots of the Takings Clause. Part II explores Washington’s environmental remediation statute. Part III details the various approaches jurisdictions around the county have formulated to deal with this issue. Part IV argues Washington courts should adopt the inclusionary approach, which allows the introduction of environmental evidence in eminent domain proceedings.

Constitutionalism And New Democracy: Two Questions, Ashraf Ahmed

Faculty Scholarship

Bill Novak’s New Democracy, like his first book The People’s Welfare, is a characteristically learned, conceptually sophisticated, and expansive history of the American regulatory state. This time, however, instead of defending a “strong” early American state operating largely through the common law, Novak chronicles the emergence of a recognizably modern, national administrative state. His story roughly spans the aftermath of the Civil War to the election of FDR in 1932; this means, Novak tells us, that “much of the heavy lifting in terms of the creation was done before the so-called Hundred Days.” (264). Importantly all of these …

Courts In Conversation, Thomas P. Schmidt

Faculty Scholarship

Ralph Waldo Emerson once suggested that we read not for instruction but for provocation. By that standard, in The Words That Made Us, Akhil Reed Amar has written a characteristically great book. This is not to deny that there is abundant instruction in its many pages: Amar offers a synoptic and yet still nuanced description of the great constitutional conversation that engulfed American political life in the eighty or so years around the founding. One of the chief values of the book, though, is that it will provoke a whole new set of additions to the constitutional conversation that …

Popular Enforcement Of Controversial Legislation, Randy Beck

Scholarly Works

Texas opted for popular enforcement of Senate Bill 8 (S.B. 8), prohibiting abortion once a fetal heartbeat can be detected. In an effort to prevent pre-enforcement judicial review, the legislature precluded enforcement of the statute by government officials. Instead, any member of the public may sue for statutory damages of at least $10,000 from any person who (1) performs an abortion violating the statute, (2) knowingly aids or abets such an abortion, or (3) “intends” to perform or aid and abet such an abortion.

The cause of action authorized by S.B. 8 is a “popular action,” a once common method …

Journeys Through Space And Time While Reading International Law And The Politics Of History, Found On A Palimpsest, Translated For You, The Reader, Harlan G. Cohen

Scholarly Works

I was invited to a symposium on Anne Orford’s book, International Law and the Politics of History. On my way there, my mind wandered, and I found myself lost in a forest of half-remembered stories and unfinished thoughts. Searching for a way out, this is what I discovered.

Fixing America's Broken Democracy, Erwin Chemerinsky

Lewis & Clark Law Review

No abstract provided.