Legal History Commons^™

Transnational Legal Process: An Evolving Theory And Methodology, Regina Jefferies

Brooklyn Journal of International Law

Harold Koh introduced Transnational Legal Process in 1996 as a constructivist theory of international legal compliance which draws lessons from international legal theory and the discourse between international law and international relations scholarship. This article situates Transnational Legal Process (TLP) within the broader literature on international legal compliance and traces the theory’s evolution over the years, highlighting scholarship which addresses three critical theoretical limitations: (1) insufficient description of the actors and processes of norm internalization; (2) insufficient explanation of why States internalize certain norms; and (3) insufficient identification and description of norm-creation processes. This article uses the legal origins of …

Copystrikes And Meme Bans: Social Media And Copyright Protections In The Digital Age, Angelina Sanchez

Brooklyn Journal of International Law

Social media is a pervasive and ever-present aspect of many peoples’ lives. Its use permeates nearly every aspect of our existence – there truly is an app for everything. Most notably, social media operates internationally both in scope and usage allowing for the creation of an astounding global society that shares cultures and perspectives in a way unprecedented in human history. Never before have societies been as interconnected as they are now. Unfortunately, such interconnectedness comes with the issue of globalizing enforcement of copyright laws. Infringement runs rampant online and forces creators to struggle against a seemingly faceless foe in …

Testing Privilege: Coaching Bar Takers Towards “Minimum Competency” During The 2020 Pandemic, Benjamin Afton Cavanaugh

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Justice For Venezuela: The Human Rights Violations That Are Isolating An Entire Country, Andrea Matos

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

A Guide To The 87th Texas Legislative Session, José Menéndez, Pearl D. Cruz

The Scholar: St. Mary's Law Review on Race and Social Justice

Challenges and potential solutions during the 87th Texas Legislative session.

Law And Empire, 1500–1812, Philip Girard, Catherine Evans

Articles & Book Chapters

When we think about law and empire, it is most accurate, if inelegant, to pluralize everything: empires, colonies, peoples, cultures, sources of law. The transnational turn has dramatic implications for the history of law in the Americas. Most obviously, especially for the period from 1500 to 1812, scholars have become increasingly sensitive to the role of European empires – including the British, French, and Spanish – in shaping America’s legal cultures. Groups of colonists from across Europe brought a multiplicity of understandings of law and social order with them, encountering Indigenous nations with their own rich legal traditions. Colonists used …

On Time, (In)Equality, And Death, Fred O. Smith Jr.

Michigan Law Review

In recent years, American institutions have inadvertently encountered the bodies of former slaves with increasing frequency. Pledges of respect are common features of these discoveries, accompanied by cultural debates about what “respect” means. Often embedded in these debates is an intuition that there is something special about respecting the dead bodies, burial sites, and images of victims of mass, systemic horrors. This Article employs legal doctrine, philosophical insights, and American history to both interrogate and anchor this intuition.

Law can inform these debates because we regularly turn to legal settings to resolve disputes about the dead. Yet the passage of …

Tribute To Professor Bonita K. Roberts, David A. Schlueter

St. Mary's Law Journal

A tribute to St. Mary's University School of Law Professor Bonita K. Roberts.

In Honor Of Professor Bonita K. Roberts, Linda L. Schlueter, Faye M. Bracey

St. Mary's Law Journal

A tribute to Professor Bonita K. Roberts of St. Mary's University School of Law.

There Is Only One Texas Constitution, Joshua Morrow

St. Mary's Law Journal

The pre-ratification text of the Texas Constitution appeared throughout the state in conflicting English-and foreign-language copies. Some commentators argue that it is impossible to know which copy the people ratified, or even that Texas does not have a constitution. These arguments create theoretical problems, because courts interpreting the constitution assume that it consists of fixed and determinable text. And the principle of popular sover­eignty precludes denying that the constitution exists. The conflicting copies also create practical problems. Are the legislature’s acts void for failing to include a Spanish-language enacting clause? May the state imprison citizens for debt, since the German …

Professor Bonita K. Roberts—A Colleague And A “Conscience”, Victoria Mather

St. Mary's Law Journal

A tribute to Bonita K. Roberts, a professor at St. Mary's University School of Law.

Nazi Germany's Race Laws, The United States, And American Indians, Robert J. Miller

St. John's Law Review

(Excerpt)

Most Americans would be shocked to learn that in the 1920s and 1930s Adolf Hitler and Nazi scholars, lawyers, and officials were studying United States law while developing Germany’s policies and laws concerning Jews and the conquest of Eastern Europe. Most Americans would also be surprised that, as the leaders of the Third Reich were turning racist ideas into official German policies, Nazis were carefully studying United States federal Indian law and state laws that discriminated against Indian nations and American Indians.

An Uncomfortable Truth: Indigenous Communities And Law In New England: Roger Williams University Law Review Symposium 10/22/2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Stepification, Mitchell Chervu Johnston

Northwestern University Law Review

Multistep tests pervade the law to the point that they appear to be a fundamental feature of legal reasoning. Famous doctrines such as Chevron or qualified immunity take this form, as do more obscure doctrinal formulas. But surprisingly, these doctrinal formulations as a class are relatively new. The reality is that the intellectual moment that gave rise to Chevron was one in which multiple older doctrines that relied on multifactor balancing were replaced by new tests formulated as multistep inquiries in which each step was a discrete inquiry.

This Article provides the first historical and normative account of this phenomenon—which …

Covid-19 Vaccine Mandates—A Wider Freedom, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

President Biden has required COVID-19 vaccinations across much of the US workforce, reaching nearly 100 million workers. Opponents call it unconstitutional, a violation of personal freedom, and even “un-American.” The truth is that vaccine mandates are lawful and deeply entrenched in US history and values. They constitute a “wider freedom” so that everyone in society can feel safer where they work, learn, worship, and live.

The Meaning, History, And Importance Of The Elections Clause, Eliza Sweren-Becker, Michael Waldman

Washington Law Review

Historically, the Supreme Court has offered scant attention to or analysis of the Elections Clause, resulting in similarly limited scholarship on the Clause’s original meaning and public understanding over time. The Clause directs states to make regulations for the time, place, and manner of congressional elections, and grants Congress superseding authority to make or alter those rules.

But the 2020 elections forced the Elections Clause into the spotlight, with Republican litigants relying on the Clause to ask the Supreme Court to limit which state actors can regulate federal elections. This new focus comes on the heels of the Clause serving …

"Send Freedom House!": A Study In Police Abolition, Tiffany Yang

Washington Law Review

Sparked by the police killings of George Floyd and Breonna Taylor, the 2020 uprisings accelerated a momentum of abolitionist organizing that demands the defunding and dismantling of policing infrastructures. Although a growing body of legal scholarship recognizes abolitionist frameworks when examining conventional proposals for reform, critics mistakenly continue to disregard police abolition as an unrealistic solution. This Essay helps dispel this myth of “impracticality” and illustrates the pragmatism of abolition by identifying a community-driven effort that achieved a meaningful reduction in policing we now take for granted. I detail the history of the Freedom House Ambulance Service, a Black civilian …

Court Packing As An Antidote, Rivka Weill

Cardozo Law Review

Court packing is considered the nuclear weapon that may unleash total chaos on the American constitutional system. Even in the face of a highly controversial appointment process to the U.S. Supreme Court during the 2020 presidential election season, scholars caution against the wisdom and utility of resorting to court packing. This Essay makes three bold arguments: First, a President may nominate a candidate to the Supreme Court at any time, including their last year in office; this is true both empirically and normatively. It is the Senate’s responsibility to ensure the people’s will is not frustrated. Second, never since the …

Court Packing Is A Chimera, Brian L. Frye

Cardozo Law Review

The dream of the 1930s is alive in Washington. Democrats see Republicans hemorrhaging voters as Trump struggles with the economy and the pandemic and are salivating at the prospect of retaking not only the White House, but also the Senate. Of course, you should never sell a bearskin until you’ve caught the bear. But even a blowout victory can’t get Democrats the prize they really want, a Supreme Court majority. So, in back-to-the-future fashion, many progressives are pushing the idea of court packing. After all, in politics, rules are made to be broken.

Against Court Packing, Or A Plea To Formally Amend The Constitution, Jill M. Fraley

Cardozo Law Review

No abstract provided.