The American Journal of Legal History

Print ISSN: 0002-9319
The electronic version of this book has been prepared by scanning TIFF 600 dpi bitonal images of the pages of the text. Original source: The Parlement of Paris after the Fronde, 1653-1673 / Albert N. Hamscher. --; Hamscher, Albert N.; xxii, 270 p. ; 24 cm.; Pittsburgh :; This electronic text file was created by Optical Character Recognition (OCR). No corrections have been made to the OCR-ed text and no editing has been done to the content of the original document. Encoding has been done through an automated process using the recommendations for Level 2 of the TEI in Libraries Guidelines. Digital page images are linked to the text file.
In the mid-eighteenth century the Irish Court of Admiralty formed one component in the network of courts of vice-admiralty - extending from Gibraltar to the colonies of America - commissioned by the Lord Admiral of England. Throughout the first part of the eighteenth century the Irish Court of Admiralty operated discretely, its activities confined to processing very modest quantities of instance work. Then unexpectedly, starting about 1745, there commenced a period of turbulence. The cause of this agitation was the appointment as judge of a highly combative and indiscrete Scots civilian émigré, Dr Hugh Baillie. This ‘pushing and somewhat multi-pated personality’ determined on extending the power of the Court: on expanding the Court’s instance jurisdiction past the limits set by the courts of common law; on obtaining prize jurisdiction (which had always been prohibited to it); and on converting the constitutional status of the Court from a mere court of vice-admiralty to an independent court of admiralty for Ireland. In the course of ten years of fighting Dr Baillie managed to provoke virtually every important interest group (the Commissioners of Admiralty in England, Dublin mercantile interests, the justices of the Irish Court of King’s Bench and the English Court of Admiralty) on which his success as judge depended. Eventually, the Admiralty, tired of its contentious and chaotic Irish judge, summoned the Attorney General, William Murray (later Lord Mansfield), to a crisis meeting on the state of the Irish Admiralty Court. In November 1756 judge Baillie was dismissed.
This article provides a comprehensive review of provisions for public education found in American state constitutions from 1776 through 1900, chronologically tracing the pedigrees of the different formulations. It concludes that most provisions merely provided hortatory guidelines for legislatures, not judicially-enforceable rights to specific levels of taxpayer-supported education, and that even the few state constitutional provisions that appeared to impose certain mandates on the state legislatures were not interpreted in that fashion. Instead of a rights-based jurisprudence, equal protection analysis took over following adoption of the Fourteenth Amendment, leading courts to focus on the equality of funding inputs rather than any particular substantive guarantee.
Many charges were made in the early decades of Virginia's adherence to the federal union that membership on the state's federal court grand juries was often granted for overt political reasons. By exploring three notorious instances - the 1797 grand jury presentment of Jeffersonian Congressman Samuel J. Cabell, the 1800 indictment of Jeffersonian propagandist James Thompson Callendar, and the 1807 indictment of former Jeffersonian Vice President Aaron Burr - it is shown that the charges were very likely true. The article also provides background information on the importance of petit and grand juries in the early Republic.
On July 14, 1798, the Federalist-controlled Congress passed the Sedition Act. This act, codifying the English common law of seditious libel, made it a federal crime to publish defamatory matter against the Congress, President, or government of the United States. Republican-party critics of the Act argued that it violated the free press clause of the recently adopted First Amendment. In supporting the Act, however, Federalists attempted to reconcile the old common law with the constitutional text. A closer examination of the Federalists' arguments shows that they were indeed able to impart a core common-law understanding to the freedom of the press that resonated in First Amendment jurisprudence until recent times.
Typescript; issued also on microfilm. Thesis (Ph. D.)--Columbia University. Includes bibliographical references (leaves 308-331).
Thesis (Ph. D.)--Miami University, 1987. Includes bibliographical references (leaves 157-172). Photocopy.
From the dawn of the twentieth century to the early 1960s, public-sector unions generally had no legal right to strike, bargain, or arbitrate, and government workers could be fired simply for joining a union. Public Workers is the first book to analyze why public-sector labor law evolved as it did, separate from and much more restrictive than private-sector labor law, and what effect this law had on public-sector unions, organized labor as a whole, and by extension all of American politics. The author shows how public-sector unions survived, represented their members, and set the stage for the most remarkable growth of worker organization in American history.
This article presents empirical data concerning trial-court, tort litigation in Alameda County, California from 1901-1910. The data analyze the entire universe of trial-court litigation during this decade and are NOT a sample.
Thesis (Ph. D.)--University of Virginia. Includes bibliographical references (leaves 260-276). Microfilm of typescript. Ann Arbor, Mich. : University Microfilms International, 1980. -- 1 reel ; 35 mm.
Constitutional issues were an integral part of the controversy over U.S. membership in the League of Nations. Opponents of membership contended that the League would diminish national sovereignty, violate principles of federalism, and interfere with the separation of powers between the president and Congress. In particular, opponents warned that the League would impair congressional and presidential war powers, restrict federal authority over many domestic issues – particularly labor regulations, tariffs, and immigration – and limit the police powers of the states. Proponents of the League contended that constitutional objections were no more than a pretext for political opposition and that Congress, the president, and the U.S. Supreme Court would never interpret the League’s covenant in a manner that brought it into conflict with the Constitution. This article examines these constitutional issues and considers the extent to which they contributed to the U.S. Senate’s rejection of the League. The article concludes that “irreconcilable” foes of the League were motivated mostly by political objections, but that the so-called “reservationists” raised serious constitutional questions that could have been resolved in favor of membership in League if President Wilson had been willing to compromise with the reservationists.
This study examines a major law-and-development project in Africa undertaken by the New York-based Ford Foundation in the decades following the Second World War. By the 1960s, many countries in Africa freed themselves of colonial rule, and Ford eagerly sought to assist these newly emerging states in the nation-building process. One area towards which Ford contributed considerable resources was legal education. Labeling its program “SAILER”—or the Staffing of African Institutions of Legal Education and Research—Ford engaged in a range of initiatives, including sending American lawyers to teach in several different African countries and bringing Africans to law schools in the United States to study.
INTRODUCTION: James W. Ely, Jr., and David J. Bodenhamer PART ONE: THE MYTH AND REALITY OF RIGHTS Rights Consciousness in American History: Daniel T. Rodgers The Explosion and Erosion of Rights: Gary L. McDowell PART TWO: MODERN RIGHTS IN CONTROVERSY Symbolic Speech and the First Amendment: Paul L. Murphy Church and State: The Religion Clauses: Melvin I. Urofsky Public Safety and the Right to Bear Arms: Robert J. Cottrol and Raymond T. Diamond The Engmatic Place of Property Rights in Modern Constitutional Thought: James W. Ely, Jr. Reversing the Resolution: Rights of the Accused in a Conservative Age: David J. Bodenhamer Police Practices and the Bill of Rights: Laurence A. Benner and Michal R. Belknap The Cruel and Unusual Punishment Clause: A Limit on the Power to Punish or Constitutional Rhetoric Joseph L. Hoffmann Equal Protection and Affirmative Action: Herman Belz PART THREE: RIGHTS REMEMBERED, REVISED, AND EXTENDED A Ninth Amendment for TodayOs Constitution: Randy E. Barnett Of Floors and Ceilings: The New Federalism and State Bills of Rights: Kermit L. Hall NOTES BIBLIOGRAPHIC ESSAYS CONTRIBUTORS TABLE OF CASES INDEX
This article focuses on the life of Esther Hobart Morris – the first female judge in the United States and a key figure in Wyoming’s pioneer women’s suffrage legislation. It attempts to sift through the myth, clarify her achievements as a judge, advocate, and family woman, and provide a picture into the life of the “Mother of Woman Suffrage.” Morris’ life and story as Justice of the Peace is necessarily told side-by-side with the realization of woman’s enfranchisement in the Equality State.
On January 26, 1950 the Constitution of India came into effect. Nearly two and one-half years after winning independence from Britain, India enacted one of the most detailed, rights-based constitutions ever seen in the history of the world. The passage of such a democratic constitution was inspirational - not just for a country that endured centuries' of both informal and formal colonial rule, but also for those in the West. Many American observers, in particular, looked upon with awe as this economically poor, yet fiercely independent nation sought to embrace political and legal principles that had long been valued within the United States. The Ford Foundation - one of the world's leading philanthropic institutions based in the U.S. - soon also became infatuated with the promise and overall idea of India. For Ford, India exhibited great potential: its political and military leaders opted for democracy rather than dictatorship; its first prime minister, Jawaharlal Nehru, was a dynamic, Western-educated figure committed to economic development and modernization; and it retained English as a main national language, thereby giving Americans, who so desired, a better opportunity to work more easily within the country. For these and as we shall see other reasons, the Ford Foundation began to take a serious interest in India. One area that Ford especially focused on involved the development of legal education. Policymakers at Ford Headquarters in New York as well as at Ford's New Delhi office believed that for Indian democracy to succeed, the country needed to have well-established, rule-based institutions administered by those educated in the legal principles of equity, due process, and individual rights. These officials consulted with a number of Indian legal elites, several of whom had studied in the United States, and together these Americans and Indians concluded that law schools in India would be the ideal place to promote such legal principles. After all, having Indians educated in Western legal doctrine was critical for maintaining Weberian, democratic institutions; and the hope was that this in turn would lead to greater public respect for the rule of law. Beginning in the 1950s, Ford thus began spending millions of dollars and decades of energy working with Indians to create strong schools of law. One of the first steps Ford took in its initiative was to hire a number of respected American law professors as consultants. These academics were charged with traveling to India, assessing the legal educational environment, and providing recommendations to both Ford and the government of India for how to improve the country's legal education system. Given that many of India's elite had routinely praised the American law school model, Ford worked under the reasonable assumption that U.S. academics would be in the best position to advise their Indian counterparts. As I will discuss, however, this assumption proved at best to be questionable. To date, no work has presented the views of the academic consultants hired by Ford. For decades these reports were confidential and the consultants were equally reluctant to talk about their opinions. But perhaps because enough time has passed and Ford's involvement in this area has waned, I was granted access to all of Ford's documents on legal education in India. I also was able to interview key American scholars who served as advisors to Ford. In this study I trace the role American academics played in shaping Indian legal education. As I show, the belief held by both Ford and its Indian partners that the American law school model could successfully be exported to India soon came to be rejected by many of these U.S. professor-consultants. A consensus developed among these American academics that India's distinctive history, traditions, and legal profession - not to mention its economic struggles and political climate - would make it difficult for the American law school model to thrive in this environment. And to their surprise, these consultants found that Indian legal scholars, who were not affiliated with Ford, had their own innovative ideas on how to improve the country's legal education system.
This short essay describes and explains a teaching method with four key elements: (1) telling students in advance the questions to be discussed in the next class, (2) requiring some students to submit written answers to the questions before class, (3) assigning only short, primary source readings, (4) banning laptops, recording classes, and distributing PowerPoint slides. This method enhances the quality of class discussion and helps students appreciate the importance of careful reading of primary sources. With minor modifications, this method can also be used for modern law classes.
Oliver Wendell Holmes, Jr., was a major figure in American law, philosophy, and social thought generally, and his influence is still felt in those fields. This article examines the influence of Thomas Hobbes on Holmes. The article examines Holmes's reading of Hobbes's works and Holmes's references to Hobbes in judicial opinions and other writings. It then considers several parallels between the views of Hobbes and Holmes, including their view of life as a ceaseless struggle for self-preservation and power; the absolute nature of sovereign power; and the positivist view of law, in contrast to natural law. The article closes with some observations about the role of literary style in the writings of Hobbes and Holmes.
This paper explores the judicial origins of alien land restrictions in the United States. Alien land restrictions originated in judge-made law, and until the later part of the nineteenth century continued to be dominated by the common law. Legislators and framers of Constitutions in the early American republic left to judges the task of enumeration of rights to accompany the status of "citizen". The gap in our understanding of this process is widened by the failure thus far to explore the importance of judicial decisions that restricted fee simple ownership of land to citizens. As a source of law, state and federal courts in the United States adopted an English common-law rule, seemingly oblivious to the incongruity of applying a rule by which a monarch governed subjects to the political context of the newly formed United States. Among other restrictions, the common law rule required that real property held by an alien automatically escheated to the state upon his death, even if his or her heirs were American citizens. Courts frequently enforced escheat of land following an alien's death, sometimes decades later, and often to the detriment of citizens who claimed title to the property. Judges continued to protect the common-law doctrine in the face of attempts to construct alternative landholding mechanisms, becoming stalwart protectors of their presumed ideal that all landholders should be citizens. This study of judicial enforcement of the common law of alien land rights leads to both general and specific observations about the nature and effect of judicial method in the nineteenth century. Among the general observations, I argue that these cases provide important evidence of the controversial paradigm of the "relative autonomy of law". Judges in this period were largely unconcerned that forfeitures could result in a chaotic market economy for land, especially in periods in which large percentages of the inhabitants were foreign-born. I suggest that the tenacity of a taught legal tradition helps to explain the staying power of legal doctrine in the face of social forces we might expect to lead to change; namely, that the underlying doctrine withstood social forces that tended toward rationalization of property law in other contexts.
Much of the literature discussing the original understanding of section one the Fourteenth Amendment takes one of two basic positions. One group of scholars, perhaps best exemplified by William E. Nelson, argues that the language of the equal protection, due process, and privileges and immunities clauses was not understood as distinctively legal concepts, but rather as expressing general political principles. By contrast, another school of thought, which can be traced to the work of scholars such as Howard Jay Graham and Jacobus Ten Broek, takes the view that the language of the Fourteenth Amendment embodied legal concepts that were derived specifically from abolitionist legal thought.This article, first published in 1988 in the American Journal of Legal History and later incorporated into a book entitled The Fourteenth Amendment and the Law of the Constitution, takes a different view. The article contends that the language of section one was derived from distinctively legal concepts that evolved in connection with issues that were unrelated to the dispute over slavery, and that both proslavery and antislavery legal theorist had made use of these concepts in making their arguments during the antebellum era..
The 1833 murder trial of Rev. Ephraim Avery was one of the great 19th century American criminal trials. Resulting in a nearly-unprecedented amount of media interest, it became one of the first trials of its kind to achieve national, and even international, coverage. Did the good Reverend seduce, impregnate and then murder the attractive, unmarried young woman who worked in a local factory, staging her death to look as a suicide? A jury acquitted him, but there is enough evidence to suggest that Rev. Avery was culpable. The narrative of the trial allows us a window into many defining issues common to the period, such as gender, religion, sexuality, and social mores.
Several years ago, the Honorable Joyce Bihary, a bankruptcy judge in Atlanta, Georgia, asked me why our country's first bankruptcy law specifically referred to debtors using "he" or "she" rather than a gender neutral noun (such as "bankrupts") or the male possessive pronoun "he." Implicitly, she was also asking whether there were any women debtors under our early bankruptcy laws. Although I had read the Bankruptcy Act of 1800 more than once, I did not recollect its use of these gender-inclusive pronouns. Nor did I know why the Act employed them. Despite having given considerable thought to contemporary women in debt, I too had no inkling as to whether there were women debtors under the Bankruptcy Act of 1800. And so I set out, with the help of my co-authors, to find the answers to Judge Bihary's two questions. Those answers led us to new questions and concerns, most particularly questions about how bankruptcy history has been told to date.
This Article scans the cultural history of an American tragedy: the Leopold and Loeb murder case. In what has widely been referred to as "the crime of the century," teenagers Richard Loeb and Nathan F. Leopold, Jr., under the counsel of the experienced and successful defense attorney Clarence Darrow, pled guilty to the 1924 abduction and murder of Bobby Franks, a child of a wealthy Chicago family. Due to Darrow's advocacy, both defendants were spared the death penalty, and given life sentences instead. Sensational details about the crime, the suspects, and the criminal proceedings were enthusiastically reported by the six daily newspapers published in Chicago during this time. This Articles focuses on the evolution of several distinct personas of the suspected killers, three of which were created by the print media as they covered the story from confession to sentencing. One of the personas developed by newspaper articles was that of both suspects, but particularly Leopold, as self-conceived Nietzschean supermen, exempt from normal moral, ethical, and legal standards. Later, this persona was more fully developed in popular novels and major motion pictures based on the Leopold and Loeb story. The second persona developed by the print media is that of the precocious teenage thrill-seekers. This persona, which was seen to exemplify the indulged, immoral youth culture of the 1920s that was enjoyed by wealthy young men, was also later developed in artistic interpretations of the story of the crime. The print media also presented a third persona in its stories about the criminal proceedings against Leopold and Loeb. With the assistance of East Coast alienists who adopted a Freudian approach to psychology, as well as two physicians, defense attorney Darrow created and developed this third persona during the hearing - that of deeply disturbed youth who were emotionally unable to control their actions. Darrow used this image of Leopold and Loeb as deeply troubled boys to persuade the judge to not sentence the defendants to death. It has reappeared in later artistic presentations of the episode. In addition to the three personas developed in the print media, the Article also discusses two other personas that have evolved since the original events took place in 1924. Toward the end of the twentieth century, the sexual aspect of Leopold's and Loeb's relationship was subject to increased scrutiny. With this came the development, through plays, movies and other artistic portrayals of the events leading up to the crime, of a gay persona for both Leopold and Loeb; particularly, a persona of repressed lovers. Finally, Leopold himself, in telling his own story through magazine articles and a popular autobiography, created for himself a new persona: that of a model prisoner who deserved parole. The highly publicized crime, prosecution, and punishment of Leopold and Loeb have served as a seemingly endless source of material and inspiration for American writers, dramatists, and social commentators. Because of continued interest in these events, they, together with attorney Clarence Darrow, have remained celebrities whose stories have inspired novelists, playwrights, poets, essayist and artists well into the new century. Perhaps more than any other trial in American history, the Leopold and Loeb case has served as an ongoing inspiration for the American imagination.
This article examines the intellectual origins of strict products liability in America. The author traces the intellectual roots of strict products liability to the constellation of ideas referred to in the article as “pragmatic instrumentalism” (pragmatism, institutional economics, and legal realism). Pragmatic instrumentalism played a significant role in changing the way tort law is viewed in America — transforming it from an individualist focus to being concerned with broader policy implications. This new intellectual perspective, combined with Progressive Era politics, led to the shift away from negligence to strict liability in products liability.
Famously dismissed by Roscoe Pound as useless antiquarianism, American colonial law has received increasing attention from scholars in recent years. This essay chronicles the rise of American colonial legal history as a field of study. The essay applauds this development, but recommends that the field remember its roots in intellectual history of the sort practiced by several giants of the past.
In my studying of American law – in its relation to religion and to privacy and to women – the current bookends of my readings consist of two sets of texts: the first, certain writings from the 17th-century Massachusetts Bay Colony; the second, certain writings from the United States Supreme Court of very recent years. The first set consists of reports and records generated in Massachusetts incident to the Antinomian Controversy of 1836-1838, particularly reports of the trials of Anne Hutchinson and Mary Dyer, and accounts of the “monstrous births” of each. The second set includes writings from year 2007: the United States Supreme Court’s opinion in Gonzales v. Carhart (its most recent abortion decision), and the amicus briefs filed therein.Examining and juxtaposing those sets of writings, this essay discloses striking resonances between the 17th-century and the 21st-century texts. It documents in each: religio-judicial prurience in examinations and constructions of female bodies; and disappearance of “privacy” as a protector of women’s autonomy and women’s liberty.
This is Professor Jennifer Anglim-Kreder's book review of Art as Plunder: The Ancient Origins of Debate About Cultural Property by Margaret M. Miles
This article presents an overview of trial-court civil practices in antebellum South Carolina. The docket was dominated - entirely during some sessions - by creditors. Creditors used the trial-court procedures to secure collateral by having debtors confess judgment in exchange for agreements by creditors that they would forgo execution and sale as long as the debtor remained in good standing. Today, Article 9 of the Uniform Commercial Code has replaced this system of debtors' confession of judgment. Southern courts were quite sophisticated in their legal facilitation of credit relationships.The article presents an analysis of primary, trial-court records of antebellum South Carolina. This piece presents foundational analysis for other empirical work that demonstrates that the antebellum courts conducted a majority of slave auctions and that the risk of family separation for slaves was higher when courts did the selling.
This article, published in late-2008, has two goals. First, it seeks to connect doctrinal histories of contract law with the political and social histories of contract ideology. In doing so I hope to show how the tales about the development of contract doctrine can be told more richly by considering the political and ideological developments of the period. Second, and more significantly, this article highlights the ambiguous strands of contract law that were part of the culture of contract surrounding Reconstruction, and shows how contract law was far more contextualized than historians of either free labor ideology or contract doctrine typically acknowledge. This failure to explore the rich context and ambiguity of mid-nineteenth century contract law produces, on the one hand, an inappropriately narrow view of Reconstruction-era conceptions of the potential role of contract, and, on the other hand, a general inattentiveness to the potential uses of contract law and ideas to challenge the otherwise dominant ideologies. The article proceeds through four topics: antebellum equity jurisprudence, antebellum labor law, inn and carrier law, and antebellum feminist uses and critiques of contract. By connecting contract-as-doctrine to contract-as-political-ideology through these four areas, I hope to show that during Reconstruction there was more possibility for both than often seems apparent to those looking back after the Lochner era.
This Article provides an overview of the arbitration reform movement and examines several ways how World War I influenced this movement and the enactment of the Federal Arbitration Act (“FAA”). It also discusses how WWI’s influence may inform our current understanding of the FAA and recent attempts to amend the FAA. Examining the FAA through the lens of the First World War sheds some light on the public dimension of arbitration. The war helps provide historical support for the public dimension value, and through this examination, one sees how this value has evolved over time. This historical perspective also suggests how the public dimension value should be reflected within the broader framework of arbitration law.
Relatively few people, even American legal historians, recognize the name Arthur W. Maclean. This article aims to change that by reconstructing the life of this fascinating individual. Arthur MacLean was a pioneer in the legal education of women, who founded Portia Law School in Boston in 1908. MacLean ran that school (now the large, co-educational New England School of Law) as the world’s only all-women law school until 1938. His venture was not only unique, but for the most part highly successful. Yet, MacLean died in near-obscurity and his story nearly vanished from the history books – at least until now.
Beginning in 1803, and continuing for several decades, the Ohio legislature enacted what came to be known as the Black Laws. These laws instituted barriers to blacks entering the state and placed limits on black testimony against whites. Stephen Middleton tells the story of this racial oppression in Ohio and provides chilling episodes of how blacks asserted their freedom from the enactment of the Black Laws until the adoption of the Fourteenth Amendment. The fastest-growing state in antebellum America and the destination of whites from the north and the south, Ohio also became the destination for thousands of southern blacks, free and fugitive. Thus, nineteenth-century Ohio became a legal battleground for two powerful and far-reaching impulses in the history of race and law in America. One was the use of state power to further racial discrimination and the other was the thirst of African Americans, and their white allies, for equality under the law for all Americans. The state could never stop the steady stream of blacks crossing the Ohio River to freedom. In time, black and white leaders arose to challenge the laws and by 1849 the firewall built to separate the races began to collapse. The last vestiges of Ohio's Black Laws were repealed in a bill written by a black legislator in 1886. Written in a clear and compelling style, this path-breaking study of Ohio's early racial experience will be required reading for a broad audience of historians, legal scholars, students, and those interested in the struggle for civil rights in America.Stephen Middleton is a member of the history department at North Carolina State University. He is the author of Ohio and the Antislavery Activities of Salmon P. Chase, The Black Laws in the Old Northwest: A Documentary History, and Black Congressmen During Reconstruction: A Documentary Sourcebook.
This article explores the role of the legal profession in urban development along the U.S.-Mexico border in the nineteenth century. It argues that lawyers, through their tripartite roles as land brokers, boosters, and social engineers, were one of the primary forces in social and legal transformation during this period. Drawing from research on one particular border town, that of El Paso, Texas, this article counters prior scholarship that has largely either underplayed the role of lawyers in western development all together, or treated them merely as instruments of capitalists and cattle ranchers. Lawyers in El Paso had a direct role in the conversion of El Paso from an isolated, frontier community to a burgeoning border metropolis. A key part of this change was the shift from a cooperative multiethnic community - where Anglo Americans, Mexican Americans, and Tigua Indians shared in the governance of the county and the disposition of the law - to one that was dominated by Anglo Americans only. This article demonstrates that as El Paso became more connected to other metropolitan areas, to state and federal governments, and to transnational commercial networks, it simultaneously became profoundly more stratified by race and national identity. By looking to El Paso's legal history and the changes in its legal culture during this time of transition, we can see how deeply involved were local lawyers not just in economic growth but also in racial and cultural boundary-drawing. These findings have repercussions for how we understand both the role of the legal profession and the mechanics of urban growth and development during the nineteenth century.
Many have questioned FDR's record on race, suggesting that he had the opportunity but not the will to advance the civil rights of African Americans. Kevin J. McMahon challenges this view, arguing instead that Roosevelt's administration played a crucial role in the Supreme Court's increasing commitment to racial equality—which culminated in its landmark decision in Brown v. Board of Education. McMahon shows how FDR's attempt to strengthen the presidency and undermine the power of conservative Southern Democrats dovetailed with his efforts to seek racial equality through the federal courts. By appointing a majority of rights-based liberals deferential to presidential power, Roosevelt ensured that the Supreme Court would be receptive to civil rights claims, especially when those claims had the support of the executive branch.
H. Jefferson Powell offers a powerful new approach to one of the central issues in American constitutional thinking today: the problem of constitutional law's historicity, or the many ways in which constitutional arguments and outcomes are shaped both by historical circumstances and by the political goals and commitments of various actors, including judges. The presence of such influences is often considered highly problematic: if constitutional law is political and historical through and through, then what differentiates it from politics per se, and what gives it integrity and coherence? Powell argues that constitutional theory has as its (sometimes hidden) agenda the ambition of showing how constitutional law can escape from history and politics, while much constitutional history seeks to identify an historically true meaning of the constitutional text that, once uncovered, can serve as a corrective to subsequent deviations from that truth. Combining history and theory, Powell analyzes a series of constitutional controversies from 1790 to 1944 to demonstrate that constitutional law from its very beginning has involved politically charged and ideologically divisive arguments. Nowhere in our past can one find the golden age of apolitical constitutional thinking that a great deal of contemporary scholarship seeks or presupposes. Viewed over time, American constitutional law is a history of political dispute couched in constitutional terms. Powell then takes his conclusions one step further, claiming that it is precisely this historical tradition of argument that has given American constitutional law a remarkable coherence and integrity over time. No matter what the particular political disputes of the day might be, constitutional argument has provided a shared language through which our political community has been able to fight out its battles without ultimately fracturing. A Community Built on Words will be must reading for any student of constitutional history, theory, or law.
This article addresses one of the central contemporary debates over the nature of the practice of law, reflected in the business/profession dichotomy. Specifically, the article presents an exploration of the discourse and underlying attitudes of early twentieth century legal professionalism, in the context of a close analysis of Cohen's 1916 classic, The Law: Business or Profession?, a highly influential work that is a standard citation in the contemporary debate. The article contrasts Cohen's rhetoric and underlying approach to professionalism against the anti-Semitism, nativism, classism, economic protectionism, and general elitism often expressed by leaders of the early twentieth century bar who, like Cohen, promoted the notion that law is a profession rather than a business. Although Cohen shared and relied upon many of the concerns of his contemporaries over the commercialization of legal practice, he offered a unique vision of professionalism, one that eschews notions of bias and self-interest in favor of intellectual honesty and a sincere concern for the good of society. The article suggests that, although Cohen's unique approach may have resulted largely from various ways in which his personal life and experiences differed from those of the typical member of the elite legal establishment, a more interesting and more important lesson may be found in Cohen's ability to maintain his own rhetorical integrity and intellectual independence while allying himself with many who shared his goals, if not his sensibilities and sensitivities.
In preventing the landing of Chinese ship passengers arriving in San Francisco in the late nineteenth century, federal officials triggered a series of challenges that would preoccupy California's federal courts for nearly a decade. This litigation produced overwhelming docket pressures, created an acrimonious breach within the Ninth Judicial Circuit, and brought the local federal judges under harsh public criticism for frustrating the demands of the anti-Chinese movement. Despite such pressures, San Francisco's federal judges sought to hear Chinese habeas corpus cases with judicial fairness and offered--for a time at least--protection from some of the most virulent opponents of the Chinese. A series of laws restricting Chinese immigration beginning in 1882, served as an immediate cause of disputes over the validity of detaining Chinese petitioners. Two Judges in particular, Ogden Hoffman of the Northern District of California, and Lorenzo Sawyer, the state's presiding circuit judge, played prominent roles in this habeas corpus litigation.
The Road Not Taken describes the history and animating themes of American Catholic legal education. The heart of The Road Not Taken is a now forgotten episode in the history of American legal education. In the late 1930s, a number of leading Catholic legal scholars issued a call for reform — a proposal which urged Catholic law schools to educate in a manner distinctive from their non-Catholic peers. While open to students from diverse faith backgrounds, the proponents of this reform argued that teaching and scholarship at Catholic law schools should be grounded in the Catholic intellectual tradition. As we demonstrate, however, this call for reform went unanswered. Had it succeeded, it could have profoundly changed both the landscape of legal education and the face of the legal profession.In this Article, we accomplish three goals. First, we describe the founding and early years of Catholic legal education. Second, we detail the national effort to reform Catholic legal education that began in the 1930s and which was driven, in large measure, by the rise of Legal Realism at home and the threat of totalitarianism abroad. Third, we explore the social, institutional, and historical reasons that explain why the reform effort failed.
Top-cited authors
Kevin Yuill
  • University of Sunderland
Johannes Morsink
  • Drew University
Christine Macleod
  • University of Bristol
Rogers M. Smith
  • University of Pennsylvania
Mary Odem
  • Emory University