Legal History Commons^™

Separation-Of-Powers Lochnerism, Andrea Scoseria Katz

Fordham Law Review

One hundred and twenty years ago, in 1905, the U.S. Supreme Court rendered one of the single most notorious opinions in history, striking down a New York labor law for violating the right to contract—a right found nowhere in the text of the Constitution. Though the era of Lochner v. New York is well past us, the judicial impulses that gave rise to the case remain. With a new champion in the Roberts Court, Lochnerism is alive and well, deployed in a new context to redefine the relationships between the president, Congress, federal agencies, and the courts.

Bringing together two …

Red, White-, And Blue-Collar Crime: Federal Sentencing Practices Among White-Collar And Blue-Collar Offenders, Henna Judge

Fordham Law Review

Under the current federal sentencing regime, district courts exercise immense amounts of discretion when sentencing. Though strict adherence to the U.S. Sentencing Commission Guidelines (the “Guidelines”) was once mandatory, courts must now use these Guidelines as an advisory starting point and make a series of fact-specific determinations when sentencing a defendant. Though judicial discretion in this realm aids in preventing undue reliance on Guidelines-range recommendations that can lack nuance, it also invites bias.

In recent years, scholars and courts alike have called attention to a potential disparity in the way blue-collar and white-collar offenders are sentenced. This Note examines relevant …

A Dangerous Challenge To The Constitutionality Of The Felon-In-Possession Statute: United States V. Bullock, Matthew Matherne

MC Law Review

In United States v. Bullock, Judge Carlton Reeves held that the federal felon-in-possession statute was unconstitutional as applied to Mr. Bullock. Although Mr. Bullock had been previously convicted of multiple violent felonies involving a firearm, including one that resulted in the death of an individual, Judge Reeves dismissed the charges because the government failed to establish a historical tradition of prohibiting felons from possessing firearms. Judge Reeves’ determination that § 922(g)(1) is unconstitutional as applied to Mr. Bullock is a decision that is not only “dangerous” to society, but it contradicts the historical tradition of firearm regulation in America. …

Mississippi Redistricting And The Voting Rights Act: An Historical Supplement, Leslie H. Southwick

MC Law Review

No abstract provided.

Codification In Mississippi: Nineteenth Century Efforts For A Mississippi Civil Code, Milton J. Hernandez Iv

MC Law Review

No abstract provided.

Quasi-Judicial: A History And Tradition, Beau J. Baumann, Jed Handelsman Shugerman

Faculty Scholarship

In challenging the historical assumptions underlying the unitary executive theory, scholars have made several seemingly unrelated discoveries. First, "judicial" power was conceived in English law as a subset of "executive" authority. Second, Congress at or near the Founding insulated certain court-like comissions from presidential control. Finally, the "quasi-judicial" and "quasi-legislative" powers that were central to the holding of Humphrey's Executor flowed from a forgotten nineteenth-century legal tradition was guiding Congress's construction of the modern state. This Essay connects these findings into a single claim: generations of American stretching back past the Founding have instinctively insulated administrators granted quasi-judicial functions from …

The Mississippi Court Of Appeals 30th Anniversary Commemoration And Panel Discussion, Donna M. Barnes

MC Law Review

No abstract provided.

Myth Busters: A Review Of “Debt’S Grip”, Susan Block-Lieb

Brooklyn Journal of Corporate, Financial & Commercial Law

Debt’s Grip follows a long line of literature that looks to combat legal and cultural myths about consumer debt and consumer bankruptcy with quantitative and qualitative analysis on these topics. Who files for bankruptcy and why? Fighting longstanding myths is tough work, but Pamela Foohey, Robert M. Lawless and Deborah Thorne have marshalled a strong set of tools, and strong intellectual allies, to support this epic battle.

Can The New Literature About Debt Make A Real Difference In The Real World?, Norman I. Silber

Brooklyn Journal of Corporate, Financial & Commercial Law

Thank you for inviting me to participate in this symposium organized around a group of new books about “Debt in the Real World.” My discussion in Part I considers from a historical perspective the place these books occupy as part of a long tradition of consumer reform which has combined popular literature with scholarship to promote change. Part II then explores themes common to this new wave. Part III closes by arguing that as in earlier periods the new wave can make headway notwithstanding attacks on governmental interventions; that there may be space in our political geography for some of …

Power, Tools, And Process: Some Reflections On Bankruptcy Minimalism, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

In Unjust Debts: How Our Bankruptcy System Makes America More Unequal, Melissa Jacoby offers a brilliant and sweeping indictment of the way in which bankruptcy law is currently practiced in the United States. As she puts it, “This book is a story of falling out of love. With a law.” Like me, Professor Jacoby came of professional age, at the close of the first age of the Bankruptcy Code. Enacted in 1978, we both learned the statute in the mid-1990s, at a time when the transformative power of the 1978 Code was reaching its peak. On the business side, corporations …

The Blackstone Ratio, Modified, Murat C. Mungan

Faculty Scholarship

In his discussion of evidentiary policies, Blackstone famously noted that ‘it is better that ten guilty persons escape than that one innocent suffer’ (Blackstone 1769). The conventional wisdom among lawyers, judges as well as academics holds that accepting this statement as a maxim necessitates the adoption of pro-defendant evidentiary rules. It is also commonly believed that costs associated with false convictions being greater than those associated with failures to punish offenders due to the presence of punishment costs provides a utilitarian rationale for Blackstonian principles. After formalizing Blackstone ratios (either as marginal rates of substitution or, alternatively, as the ratio …

Symbolic Justice: The Continued Limits Of International Criminal Justice Without A Permanent Prison System, Meg Penrose

Faculty Scholarship

Many people misremember Nuremberg, Tokyo, and the subsequent World War II tribunals. These seminal international tribunals gave the world convictions but largely failed to fully enforce the sentences imposed. Most people do not recall the mass clemency following the World War II tribunals. This Article seeks to fill a scholarly void by explaining why international criminal justice has never matured beyond Nuremberg and Tokyo. The modern ad hoc tribunals, as well as the permanent International Criminal Court (“ICC”), have failed to deliver lasting justice. Much like Nuremberg and Tokyo, the modern tribunals fixate on arrests and convictions and then seemingly …

Per Se Non-Takings, Nestor M. Davisdson, Timothy M. Mulvaney

Faculty Scholarship

In the discourse on the Takings Clause, disputes over methodology have long formed a kind of proxy war, with per se rules ordinarily underwriting strong constitutional protection for property rights and ad hoc standards more often vindicating public interests. At a moment when the Supreme Court is increasingly embracing the rules end of this rules-standards spectrum, this Article offers a novel perspective to challenge the conventional link between categorical reasoning and classical liberal conceptions of constitutional property.

To do so, the Article excavates a vast body of law denying takings liability through rule-like reasoning, an approach the Article calls per …

Surviving The Post–Biafran War By Navigating The Igbo People's Igba-Boi Apprenticeship Model Of Entrepreneurship, Chiemela Victor Amaechi, Ugo Pascal Onumonu, Salmia Binti Beddu, Ikechi Mgbeoji

Articles & Book Chapters

After the Nigerian Civil War, the Biafrans started from scratch through trades, mostly adopting the igba-boi apprenticeship system in Nigeria. This paper examines the impact of the igba-boi entrepreneurship system in post-Biafra for the survival of the Igbo identity. Historical–analytical and documentary methods were adopted in this investigation, through primary and secondary sources. This study found different phases of the igba-boi- apprenticeship model, which was adopted in entrepreneurship by the Igbos to survive after the war. This study found that economic towns in Eastern Nigeria, like Aba, Owerri, Enugu, Nnewi, Onitsha and Awka, have enhanced economic development. Also, it found …

"There Was Such An Array Of Circumstances Pointing To Defendant's Guilt…": Shepard V. United States And The Dying Declaration As A Legal, Social, And Political History Of People, Places, Times… And Utility, Joshua E. Kastenberg

Cleveland State Law Review

In 1933, the Court, in Shepard v. United States, limited the “dying declaration” exception to the prohibition against hearsay. Shepard has been cited over 500 times by courts of appeal, the decision appears in evidence casebooks, and scholars have challenged it as robbing the voice of victims. However, there has never been a legal history of the decision. The case arose from a criminal conviction that occurred in the last days of the “Roaring Twenties,” and the appeal transited through the courts in the first years of the Great Depression. The Court, in a unanimous decision authored by Justice …

Nonparty Protective Relief In The Early Republic: Judicial Power To Annul Letters Patent, James E. Pfander, Mary E. Zakowski

Northwestern University Law Review

Much of the debate over the constitutionality of universal or nonparty protective relief in the federal court system has focused on lessons drawn from historical practice. But with its emphasis on injunctive relief, the literature has largely ignored forms of adjudication that arose outside the courts of equity and led to judgments and decrees affecting the rights of nonparties. As a result, the story of nonparty protective relief has not yet been fully told.

This Article offers a more complete story, highlighting proceedings in which federal courts issued judgments that settled a matter once and for all. Some familiar examples …

Presidents, Opinions, And Independent Officers, Jed Handelsman Shugerman

Faculty Scholarship

The Opinions in Writing Clause is a persistent textual problem for the claim that Article II implies an indefeasible removal power: If the Framers believed they had given the president an unconditional removal power, why would they also specify a lesser power merely to ask for opinions? New historical research confirms this textual problem was also contextual: early state constitutions, the Ratification debates, and the First Congress indicate that the Opinions Clause’s original public meaning signaled independence of department heads, or at least the possibility of congressional requirements like good cause.

Legal scholars have already shown that the texts of …

The 1935 Nazi Nuremberg Laws In Historical And Legal Context, Menachem Z. Rosensaft

Cornell Law Faculty Working Papers

The core ideology of Hitler Germany — of the Third Reich — was the hardcore, unremittent antisemitism that in short order permeated German society and the German legal system before creating the necessary conditions for the genocide of all Jews under Nazi control.

Two preliminary observations. First, should we view the 1935 Nuremberg laws and other German anti-Jewish laws and measures of the 1930s as the first stages of a process designed culminate in the annihilation of Jews, or were they drafted and enacted by individuals who, at that point in time, were not envisioning a “Final Solution of the …

Reckoning With Antisemitism In History And Tradition, Nathaniel Shaw Hay, Isaac Barnes May

Pepperdine Law Review

“History and tradition” has become a watchword of modern constitutional interpretation, shaping Supreme Court jurisprudence and framing ongoing debates over the meaning of the Fourteenth Amendment. Yet this interpretive framework remains under-theorized in one critical respect: how should it grapple with the prejudices embedded in the very traditions it invokes? This Article examines that question through the lens of anti-Jewish discrimination in Anglo-American law, using this history as a case study to examine both the perils and promise of relying on history as a source of constitutional authority. For centuries, the common law excluded Jews from full civic participation in …

The Localist Roots Of Climate Litigation, Jonathan H. Adler

Popular Media

No abstract provided.