Legal History Commons^™

Modern Waste Law, Bankruptcy, And Residential Mortgages, Jill M. Fraley

Cardozo Law Review

Around the time of the subprime mortgage collapse, lenders began in earnest to sue borrowers by adapting the traditional law of waste. Today, these claims continue to rise in frequency and to expand to more jurisdictions. Lender waste claims provide a "work around" for state mortgage laws that prohibit personal deficiency judgments after foreclosure and are potentially non-dischargeable in bankruptcy.

While a recent wave of scholarship has addressed the problems of how the bankruptcy system handles mortgages, scholars have not yet explored the use of waste actions by lenders and how waste judgments intersect with bankruptcy and foreclosure. Using new …

"Remembering Betsy" By Her Two Professors And Editors, Thomas Green, Dirk Hartog

Tributes

On November 23, 2019, immediately following the conclusion of the annual meeting of the American Society for Legal History, Boston University School of Law held a ceremony marking the opening of an archive devoted to the scholarship of Elizabeth Clark. Betsy Clark, who taught at BU before her untimely death in 1997, was an important presence in the world of legal history in the 1980s and early 1990s. And the archive includes a number of short “responses” to her scholarship. Her colleagues David Seipp and Pnina Lahav were responsible for making the archive a reality.

Brett Kavanaugh Vs. The Exonerated Central Park Five: Exposing The President's "Presumption Of Innocence" Double Standard, Sofia Yakren

Journal of Civil Rights and Economic Development

(Excerpt)

In the service of Justice Brett Kavanaugh’s confirmation to the United States Supreme Court, the President of the United States (and Republican Senators) both misappropriated and further eroded the already compromised concepts of due process and presumption of innocence. This Essay uses the prominent “Central Park Five” case in which five teenagers of color were wrongly convicted of a white woman’s widely-publicized beating and rape to expose the President’s disparate use of the presumption along race and status lines. This narrative is consistent with larger systemic inequities that leave poor black and brown criminal defendants less likely to benefit …

"I Still Like Smear": The Senate Judiciary Committee's Obstructing Politics Surrounding The Kavanaugh Hearing And A Solution To The Chaos That Ensued, Frank J. Tantone

Journal of Civil Rights and Economic Development

(Excerpt)

The incredible events and raucous behavior by members of the Committee that colored Justice Kavanaugh’s confirmation process rose to a level of intensity and virulence never seen before in this specific area of American government and politics. Nevertheless, the most analogous situation that somewhat closely reflects the events that transpired in 2018 occurred seventeen years earlier. President George H.W. Bush, on July 1, 1991, nominated then District of Columbia Circuit Court Judge, Clarence Thomas, to replace Justice Thurgood Marshall on the Supreme Court. Thomas’s confirmation hearing was also opposed from the outset but by civil rights and feminist organizations …

Replaying The Past: Roles For Emotion In Judicial Invocations Of Legislative History, And Precedent, Emily Kidd White

Articles & Book Chapters

Legal reasoning in the common law tradition requires judges to draw on concepts, and examples that are meant to resonate with a particular emotional import and operate in judicial reasoning as though they do. Judicial applications of constitutional rights are regularly interpreted by reference to past violations (either through precedent, contextual framings, and/or legislative history), which in turn elicit a series of emotions which work to deepen and intensify judicial understandings of a right guarantee (freedom of association, freedom of expression, equality, security of the person, etc.). This paper examines the way in which invocations of past political histories, and …

A Hidden Technological Assumption In Patent Law: The Case Of Gene Patents And The Disclosure Requirement, Or Cohen Sasson

Articles

The disclosure requirement in patent law is designed to reveal knowledge regarding a patented invention to allow proper understanding and utilization of that invention. The contention offered here is the presence of an inherent incompatibility between the disclosure requirement and genetic inventions. Genetic inventions are highly contingent on genetic statistical data (GSD), which is gathered during the commercial phase of a genetic invention. GSD are essential for various purposes, which at least some should be satisfied by the disclosure. However, since GSD can be gathered only at the postapplication period, GSD are not disclosed through the disclosure requirement. Therefore, there …

City Of San Antonio Presents Official Congratulations On The 50th Anniversary Of The St. Mary’S Law Journal, Ron Nirenberg

St. Mary's Law Journal

City of San Antonio Presents Official Congratulations on the 50th Anniversary of the St. Mary’s Law Journal.

Contractual Communication, Lawrence B. Solum

Faculty Scholarship

In Pseudo-Contract and Shared Meaning Analysis, Professors Robin Bradley Kar and Margaret Jane Radin develop an important theory of the nature of contract that draws on Paul Grice’s influential theory of meaning. That theory has significant implications for contract doctrine, in particular for questions about the enforceability of so-called “contracts of adhesion” in particular and for “boilerplate” in general. But at the most fundamental level, Kar and Radin’s work is about the nature of contractual communication. They answer the question, “How do contracts mean?,” by proposing a theoretical structure, which they name “Shared Meaning Analysis.” This Essay focuses on …

My Friend—Lee H. Lytton, Leo Womack

St. Mary's Law Journal

Tribute to Lee H. Lytton, a professor at St. Mary's University School of Law in San Antonio, Texas.

Lee Hargis Lytton Iii: A Most Extraordinary, Interesting And Instructive Life, Robert Summers

St. Mary's Law Journal

Tribute to Lee Hargis Lytton III, a professor at St. Mary's University School of Law in San Antonio, Texas.

Why Robert Mueller’S Appointment As Special Counsel Was Unlawful, Steven Calabresi, Gary S. Lawson

Faculty Scholarship

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (“DOJ”) has had in place regulations providing for the appointment of Special Counsels who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17,2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.
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/="/">First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. …

American Legion V. American Humanist Association, Seth T. Bonilla

Public Land & Resources Law Review

The separation of church and state is a key element of American democracy, but its interpretation has been challenged as the country grows more diverse. In American Legion v. American Humanist Association, the Supreme Court adopted a new standard to analyze whether a religious symbol on public land maintained by public funding violated the Constitution’s Establishment Clause.

Timelords & Timelines: Four Web Apps For Storytelling In Libraries, Rachel S. Evans, Sharon Bradley, David Rutland

Presentations

From online embeds to interactive displays, timelines can serve many purposes and tell powerful stories. In this panel librarians discuss collaboration and how to bring history to life through displays, events and online platforms for engaging students and preserving community milestones. Four of our favorite tools for creating digital timelines and gathering content will be shared including Prezi, TikiToki, TimeToast, and Piktochart. Comparisons will be given based on cost, technical limitations, and general ease of use. Specific examples will also be shared and discussed.

Nuclear Weapons, The War Powers, And The Constitution: Mutually Assured Destruction?, John M. Dipippa

South Carolina Law Review

No abstract provided.

Latino Education In Texas: A History Of Systematic Recycling Discrimination, Albert H. Kauffman

St. Mary's Law Journal

Abstract forthcoming

The Future Of Dairy Cooperatives In The Modern Marketplace: Redeveloping The Capper-Volstead Act, Sarah K. Phillips

Dickinson Law Review (2017-Present)

Agriculture plays a fundamental role in the U.S. economy as a multibillion-dollar industry that feeds people all over the world. However, over the past decade, the dairy industry in particular has changed from a reliable sector of the greater agricultural industry into an unsettled, politically-charged, and fractured group. Dairy farmers’ consistently receiving low milk prices has facilitated this divide. Tired of being ignored and underpaid, dairy farmers are demanding change in the current dairy market structure.

Federal Milk Marketing Orders and a variety of statutes regulate the dairy industry, but the 1922 Capper-Volstead Act remains the most notable piece of …

Physical Presence Is In No Wayfair!: Addressing The Supreme Court’S Removal Of The Physical Presence Rule And The Need For Congressional Action, Claire Shook

Dickinson Law Review (2017-Present)

The Commerce Clause of Article I grants Congress the power to regulate commerce. In the past, an entity had to have a physical presence in a state for that state to impose taxes on the entity. Due to the changing landscape of online businesses, the U.S. Supreme Court decided in South Dakota v. Wayfair in June 2018 to remove the physical presence rule as it applied to the Commerce Clause analysis of state taxation. The Wayfair decision’s ramification is that states can now impose taxes on businesses conducting sales online without having any physical presence in those states. While the …

Death Be Not Strange. The Montreal Convention’S Mislabeling Of Human Remains As Cargo And Its Near Unbreakable Liability Limits, Christopher Ogolla

Dickinson Law Review (2017-Present)

This article discusses Article 22 of the Convention for the Unification of Certain Rules for International Carriage by Air (“The Montreal Convention”) and its impact on the transportation of human remains. The Convention limits carrier liability to a sum of 19 Special Drawing Rights (SDRs) per kilogram in the case of destruction, loss, damage or delay of part of the cargo or of any object contained therein. Transportation of human remains falls under Article 22 which forecloses any recovery for pain and suffering unaccompanied by physical injury. This Article finds fault with this liability limit. The Article notes that if …

Marshall As A Judge, Robert Post

Fordham Law Review

Marshall is a towering and inspirational figure in the history of American constitutional law. He changed American life forever and unquestionably for the better. But the contemporary significance of Marshall’s legacy is also, in ways that challenge present practices and beliefs, ambiguous.

Challenging Voting Rights And Political Participation In State Courts, Irving Joyner

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

Abstract forthcoming