Legal History

Partial Unconstitutionality

Kevin C. Walsh - University of Richmond School of Law

What do some Reconstruction-Era civil rights laws, the first federal income tax, and various pieces of New Deal economic legislation have in common? These are all laws that the Supreme Court has held totally invalid after concluding that they were partially unconstitutional.
The doctrine through which the Supreme Court accomplished… Read More »

A Response to Professor Cuéllar’s “Securing” the Nation: Law, Politics, and Organization at the Federal Security Agency

David Zaring University of Pennsylvania Law School

Mariano-Florentino Cuéllar’s “Securing” the Nation: Law, Politics, and Organization at the Federal Security Agency   is both a work of history and a reminder of echoes of the past in contemporary policymaking.  It compares the great post-9/11 bureaucratic reorganization, which created the Department of Homeland Security (DHS), with one great… Read More »

The Origins of the Privileges or Immunities Clause, Part I: “Privileges and Immunities” as an Antebellum Term of Art

Kurt T. Lash University of Illinois College of Law

Constitutional scholars generally believe that the majority of the Supreme Court in The Slaughterhouse Cases erred in their narrow construction of the Privileges or Immunities Clause. Justice Samuel Miller’s attempt to distinguish the privileges and immunities of Article IV from the privileges or immunities of Section One is particularly vilified… Read More »

From Federal Security to Homeland Security: Law, Politics, and Organization in the American Security Agenda

Marianao-Florentio Cuéllar

Americans listening to one of President Franklin Roosevelt’s fireside chats on a cabinet-sized radio in the late 1930s could not have imagined the eventual birth of the Internet technology used to disseminate this Article. They would have been hard pressed to imagine the spectacular growth of East Asian economies, or… Read More »

The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law

Cary Franklin - Yale Law School

In 1970, Ruth Bader Ginsburg, soon-to-be head of the ACLU’s Women’s Rights Project (WRP), had a novel idea: She decided to challenge the constitutionality of sex-based state action by bringing cases featuring male plaintiffs. Up to that point, only women had brought sex discrimination claims under the Fourteenth Amendment. By… Read More »

Notice-and-Comment Judicial Decisionmaking

Michael Abramowicz & Thomas B. Colby

In this Article, we propose that courts should make draft opinions available to the public for comment (typically by posting them on the Internet) before issuing them in final form.  This proposal is not as wacky as it might first sound. A variant, in which draft opinions are distributed to… Read More »

Justice and Judgment Among the Whomever: An Anthropological Approach to Judging

John Conley - University of North Carolina Law School

Prior to the conference, the organizers asked me for my thoughts on how an anthropologist might approach the problem of studying judging.  Those thoughts follow.  I have subsequently reflected on the discussion at the conference itself, and I conclude this essay with those reflections.
When I think of “judging” as… Read More »

Quantitative Legal History—Empirics and the Rule of Law in the Antebellum Judiciary

Alfred L. Brophy - University of North Carolina Law School

I.
Introduction: The Conflict over the Rule of Law
This symposium asks how we can quantify and evaluate what judges do.  Some of the papers are skeptical of attempts at quantification. These questions are of importance to legal historians, who frequently seek to link judicial behavior to larger cultural, economic, and… Read More »

The Meaning of the Word “All” in Article III

William Fletcher - Ninth Circuit Court of Appeals

Samuel Adams, the Massachusetts patriot, was not enthusiastic about the newly proposed Constitution. He particularly did not like its introductory phrase, “We the People of the United States.” The phrase signaled a departure from the Articles of Confederation that the Constitution was to replace. The constituting authorities for the Articles… Read More »

The Constitutional Life of Legislative Instructions in America

Christopher Terranova

Under the Articles of Confederation, state legislatures often formally instructed their federal representatives on particular votes, continuing a practice common in England and the American colonies.  This occurred, to some later scholars’ dismay, even after James Madison argued that the Senate was designed to provide “a due sense of national… Read More »