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If the Fourteenth Amendment didn’t exist, could Obama still be President? (Yes)
Periodically various lay people attempt to interpret the law in ways that fit their version of (un)reality. While I appreciate the mainstream media simply ignoring these people (in general), it can occasionally be educational to refute its points as if they were logical and rational.
February 2012 / 7 min.
Protecting vested interests in the face of new technology: the case of the Charles River Bridge
In the case of Charles River Bridge v. Warren Bridge, 36 U.S. 420 (1837), Justice Roger Taney – most known for his opinion in Dred Scott – decided against the owners and investors in the original bridge over the Charles River in Massachusetts. That bridge had been built by a company granted a charter in 1785 for the […]
February 2012 / 3 min.
Federal common law in the nineteenth century
What happened to federal common law in the nineteenth century?
February 2012 / 6 min.
Federal vs. State Power in Antebellum America
The Reconstruction Amendments (13th, 14th, and 15th Amendments to the Constitution) represented a fundamental shift in the balance of power between the states and the federal government, even though their full effect took a century to fully emerge.
February 2012 / 4 min.
Lecture on 19th-Century Legal History Before the Civil War
I gave a lecture the other day to an undergraduate history class on the topic of 19th-century legal history, mostly before the start of the Civil War (with hints to the future, of course).
February 2012 / 1 min.
Ben Bratman on the First Amendment and Brandeis & Warren’s “The Right to Privacy”
Ben Bratman’s 2002 law review article, “Brandeis & Warren’s ‘The Right to Privacy and the Birth of the Right to Privacy’” discusses the background of this issue in light of “the considerable focus that Brandeis and Warren placed on the print media and its alleged violations of privacy.”
December 2011 / 2 min.
“The Right to Privacy” by Warren and Brandeis
The modern “right to privacy” is frequently attributed to Warren and Brandeis’ groundbreaking 1890 law review essay of that same name. Its initial purpose, according to Steven Childress, was to recognize, within the traditional common law, “a civil and non-contractual right of protection against invasions of privacy.”
December 2011 / 4 min.
Civil law’s influence on early United States law
It is a law-school maxim today that the United States is a common-law country, while most of Europe uses civil law: English-derived common law has as its most basic tenet the binding nature of judicial precedent, while Roman-derived civil law privileges statutes. But the more I investigate the history and details of each, the more clear it becomes to me that the United States, at least, owes (almost?) as much of its legal system to civil law as it does to “pure” common law.
December 2011 / 5 min.
The (scientific) development of common-law precedent
One of the defining characteristics of common law (as opposed to civil law) is the binding nature of precedent, sometimes referred to by its Latin name of stare decisis. But before the seventeenth century, the defining characteristic of English common law was not this one, but rather that common law reflected universal and customary law, and as such the goal was for judges to utilize previous decisions as merely guides to help them get closer to the true (unwritten) laws of England, not as binding in themselves.
December 2011 / 4 min.
Common law originalism: the common law was not so common
One reason to examine the reception of English common law in the American colonies is the reliance by modern originalists (like Antonin Scalia) on the generalized understandings of what the Constitution meant in light of its common-law context. But finding that stability may not be as easy as it might seem, at least in part because jurists of the time were, in many ways, as sophisticated as we are today in arguing with, against, and around precedent-which itself was hardly either stable or fixed.
November 2011 / 6 min.