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Abstract:
In this article I unpack a murder trial from Pennsylvania in 1843, using it to explore how people in the first half of the nineteenth century could and did lay claim to the right to be sovereign by asserting the right to take the law into their own hands. The possibility that the people asserted sovereign power in the first half of the nineteenth century runs counter to the standard constitutional history of the United States. According to that narrative, the people, having delegated their sovereign power to their governments with the ratification of the Constitution, became observers, not participants in the constitutional order. They would not return to active participation in that order until the rights talk revolution of the late nineteenth and early twentieth centuries gave them a means of challenging and limiting the power of the state. And even then, their sovereignty only gave them a check, a right of reaction that fell short of taking actual control of the law. But this study follows a handful of recent works that have begun to reclaim the peoples constitutional role in that earlier period. To do so this article looks at both social practices and ideas, and considers the specific problem of how people exercised their constitutional power over the common law.

popular sovereignty, popular constitutionalism, the people, the state, constitutional theory, legal history, constitutional history, extralegal justice, jury nullification

Abstract:
The last decades of the nineteenth century and the first decades of the twentieth century are typically characterized as the era in which the criminal jury trial came to an end. Although criminal juries did not completely disappear, their role became smaller and smaller across that time frame. Most studies of this phenomenon attribute that decline to the rise of plea bargains in that same period. Specifically, these studies lead to the conclusion that institutional factors, such as case loads and the political pressure on elected prosecutors to be "tough on crime," made plea bargains an increasingly attractive option for the State. They are based on the assumption that the rise of plea bargains caused the decline of criminal juries. Yet this explanation does not appear to fit the case of late nineteenth-, early twentieth-century Chicago. In that period the felony courts in Chicago, like felony courts in Los Angeles, Philadelphia, and Boston, did make increasing use of plea bargains and jury trials declined, as well. But the data suggests that the greater use of pleas did not lead to the decline of criminal juries, so much as result from efforts to avoid jury trials. To explore this possibility, this article begins with a review of studies of plea bargaining in the Chicago and Cook County felony courts. The data in that scholarship suggests that the desire to avoid trials prompted the resort to plea agreements. Then, to consider why that might be so, this article explores the contemporary views of criminal juries by unpacking a trial from late nineteenth-century Chicago, People v. Coughlin, and the various objections to the jury that arose at different moments in that trial. These objections, made by new accounts, judges, lawyers, legal scholars and political figures, reveal the full range of ambivalence about criminal juries in Chicago at the end of the nineteenth century. Yet as deep as that unhappiness was, Illinois law failed to respond to those concerns, in part because they were challenges to fundamental aspects of the Anglo-American common law tradition. That resistance to reform may have reflected an abiding commitment to the ideal of the jury, but it made plea agreements an attractive alternative.

jury, plea bargain, jurors as judges of law, criminal law

Abstract:
In the years since the decision came down, courts and commentators generally have agreed that the Supreme Court's decision in Garcetti v. Ceballos sharply limited the First Amendment rights of public employees. In this Article, I argue that this widely shared interpretation overstates the case. The Court in Garcetti did not dramatically change the way it analyzed public employees' First Amendment rights. Instead, it restated the principles on which those claims rest, emphasizing management rights and the unconstitutional conditions doctrine. By making those two theories the centerpiece of the decision, the Court in Garcetti defined public employee speech rights in a way that may ultimately strengthen the hand of public employees.

First Amendment, public employee rights, unconstitutional conditions doctrine, public sector employment

Abstract:
From 1894 to 1949 Chinese reformers, radicals, political theorists and party leaders pushed for the creation of a constitutional order in China. To that end, they borrowed (and often modified) constitutional principles, doctrines, and even history from other countries, using those tools first to craft different models of constitutions and then to persuade others to support their goals. The result was a complex, and international, exchange, one that involved the development of ideas and the deployment of social movements. My current research explores that history with the intent of tracing out the intellectual and social exchanges that occurred while the Chinese around the world debated their constitutional order. As I unpack China's rich constitutional history, I hope to add to our general understanding of how constitutional movements arise and function. This paper is an initial sketch of the project and my methodology.

constitutional history, constitutional borrowing, social movements, social networks, transnationalism

Abstract:
In the aftermath of the Supreme Court's decisions in Grutter and Gratz a number of commentators argued that the Court had begun to embrace a new constitutional doctrine that required deference to the decisions of some institutions. Most notably they asserted that the Court would defer within the field of education. But even as they suggested that the Court was more willing to explore the doctrine, those two opinions left several large questions unanswered: Did the Court's embrace of institutional autonomy extend beyond higher education, into the K-12 realm? If so, what were its bounds? Was the doctrine only relevant to efforts to achieve a diverse student body or could it be extended further, to have an impact on claims of right under the First, or other, Amendments? Two cases from the Roberts Court's October 2006 Term, Parents Involved v. Seattle School District and Morse v. Frederick, answered those questions. At first glance, the cases seem to indicate that a clear majority of the Court rejects the idea that educational autonomy should be extended to elementary and secondary schools. But in this article I argue that the Court's response in those cases was more complicated: A narrow majority of the Court believes that the principle of educational autonomy articulated in Grutter may sometimes extend to cases involving K-12 schools. At the same time, a slightly different, but still narrow, majority believes that principles of educational autonomy cannot limit the First Amendment rights of K-12 students.

Institutional autonomy, First Amendment, school desegregation, educational autonomy, Equal Protection Clause, Fourteenth Amendment

Abstract:
This article uses a civil rights case, brought under a state statute in Chicago in 1888, to explore the ideas of equality, particularly social equality, prevalent at the time. The article also considers why the jury’s decision for the plaintiff, confirmed on appeal by the Illinois Appellate Court and the Illinois Supreme Court, had no lasting impact. In doing so, the article considers the relationship between the power of law and public opinion.

civil rights, race relations, social equality, legal history, law and society, microhistory, rule of law, popular justice

Abstract:
The historically high homicide rates in the United States have often been treated as an evidence of a violent national character. This article suggests that those rates should be considered from a different perspective, one that looks not only at rates of homicide but also at the lenient way the criminal justice system treated many homicide cases. What was it about American justice that led juries acquit so often? Why did juries or judges sentence convicted killers more leniently than law required? This article looks at some 19th century cases from South Carolina to raise some questions for future research.

criminal justice, class, criminal jury, jury nullification, extralegal justice, criminal trials, legal history, rule of law, law and society

Abstract:
Studies of nineteenth century legal history assume that the antebellum South, and antebellum South Carolina in particular, had a legal culture shaped by honor culture and marked by the hierarchical assumptions and extralegal violence that honor culture engendered. In this article, I offer a modification of that well-established account. While I do not question the influence of honor on South Carolina's antebellum legal culture, I suggest that the state had a second, shame-based system of popular justice, in which women played a prominent role. As was the case with honor culture, this second form of extralegal justice, which I have dubbed the informal courts of public opinion, sometimes intersected with formal law, and other times worked independent of it.

public opinion, legal history, gender, legal culture

Abstract:
Until the early twentieth century juries in Illinois had the power to decide the law as well as the facts in criminal law cases. This power allowed them to apply their own sense of what was just, rather than follow the rule of law. The result was a legal system responsive to a popular sense of justice, and often guided by public opinion or prejudice.

criminal trial, criminal jury, jury nullification, rule of law, popular justice, insanity defense, legal history, law and society