Table of Contents

Entry on U.S. Constitution Article I, Section 9, Clause 8: Foreign Emoluments Clause

Seth Barrett Tillman, National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law
Zephyr Teachout, Fordham University School of Law

From Law in Blackletter to 'Blackletter Law'

Kasia Solon Cristobal, The University of Texas School of Law - Tarlton Law Library

European Extraterritoriality in Semicolonial Ethiopia

Hailegabriel Gedecho Feyissa, University of Melbourne, Law School, Students

Bureaucratic Agency: Administering the Transformation of LGBT Rights

Marie-Amelie George, Columbia University - Law School

Counting Framers & Counting Originalists

Seth Barrett Tillman, National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law


LEGAL HISTORY eJOURNAL

"Entry on U.S. Constitution Article I, Section 9, Clause 8: Foreign Emoluments Clause" Free Download
Zephyr Teachout & Seth Barrett Tillman, Entry on U.S. Constitution Article I, Section 9, Clause 8: Foreign Emoluments Clause, in The Interactive Constitution (National Constitution Center 2016), Forthcoming

SETH BARRETT TILLMAN, National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law
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ZEPHYR TEACHOUT, Fordham University School of Law
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The Interactive Constitution is a new treatise -- in an interactive, online style -- on the U.S. Constitution, specifically directed towards students. This is an entry on Article 1, Section 9, Clause 8: the Foreign Emoluments Clause.

"From Law in Blackletter to 'Blackletter Law'" Free Download
Law Library Journal, Vol. 108, No. 2, pp. 181-216 (2016)

KASIA SOLON CRISTOBAL, The University of Texas School of Law - Tarlton Law Library
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Where does the phrase “blackletter law? come from? Chasing down its origins uncovers not only a surprising turnabout from blackletter law’s original meaning, but also prompts examination of a previously overlooked subject: the history of the law’s changing appearance on the page. This history ultimately provides a cautionary tale of how appearances have hindered access to the law.

"European Extraterritoriality in Semicolonial Ethiopia" Free Download

HAILEGABRIEL GEDECHO FEYISSA, University of Melbourne, Law School, Students
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Scholarly discussions regarding European legal imperialism in semicolonial nations of the modern era have not considered Ethiopia. China, Japan and other Middle and Far Eastern nations have been the dominant, if not exclusive, objects of historical studies in European extraterritoriality. Furthermore, there appears to be a consensus that both the rise and decline of European extraterritoriality in the semicolonial world (effected through ‘mixed courts’) only form part of the history of the pre-Second World War international law system. Nonetheless, a forgotten strand of European extraterritoriality overstayed the Second World War in semicolonial Ethiopia. Apart from aiming to restore visibility to Ethiopia’s unknown experience with European extraterritoriality, this study tries to explain the late arrival, the gradual resurgence and the post-Second World War decline of European extraterritoriality in Ethiopia. It argues that European extraterritoriality in Ethiopia, which was weak during the first third of the 20th century, reached its zenith in the post-Second World War period, but was miscast as a modernisation project, rather than a colonial one.

"Bureaucratic Agency: Administering the Transformation of LGBT Rights" 

MARIE-AMELIE GEORGE, Columbia University - Law School
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In the 1940s and 1950s, the administrative state served as a powerful engine of discrimination against homosexuals, with agency officials routinely implementing anti-gay policies that reinforced gays’ and lesbians’ subordinate social and legal status. By the mid-1980s, however, many bureaucrats had become allies, subverting statutory bans on gay and lesbian foster and adoptive parenting and promoting gay-inclusive curricula in public schools. This Article asks how and why this shift happened, finding the answer not in legal doctrine or legislative enactments, but in the professional norms of social workers and other bureaucrats working in the administrative state.

This Article explores how changing psychiatric conceptions of homosexuality drove this legal transformation in unexpected ways, focusing on developments in criminal and family law. It traces these scientific evolutions and their impact on law through studies of sexual psychopath statutes, sodomy laws, custody cases, adoption and foster care legislation, and school curricular regulations. By the mid-1980s, mental health organizations had become vocal supporters of gay and lesbian rights, which resulted in bureaucrats undermining laws that contravened their professional judgment on these issues. The influence of professional norms on bureaucrats is not just a recent historical phenomenon, but continues today with transgender student bathroom access rights and custody cases involving BDSM practitioners.

This history reveals the powerful influence of professional norms on the implementation of law. It also sheds new light on how the executive branch is an important site of legal norm formation and highlights the dynamic role of administrative bureaucracy. As this Article explains, this mechanism of legal change has significant normative implications: civil servants are hired for their professional expertise, yet are also responsible for complying with potentially opposing legislative mandates, a conflict that raises complicated governance questions.

"Counting Framers & Counting Originalists" 

SETH BARRETT TILLMAN, National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law
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The modern succession statute, the Presidential Succession Act of 1947, like its 1792 predecessor, provides for legislative officer succession** in the event that the presidency and vice presidency go vacant. Notwithstanding that majorities in both houses of the Second Congress voted for legislative officer succession, some modern scholars have suggested that the members erred, that is, the Presidential Succession Act of 1792 was unconstitutional.

These scholars have “appealed? from the “verdict? of the members of the Second Congress to the Framers sitting in the Second Congress. For example, Paul Taylor asserts that the 1792 Act “was opposed as unconstitutional by James Madison and a majority of other former Delegates to the Constitutional Convention.? Similar claims are made by Professors Akhil Amar, Vikram Amar, Feerick, Goldstein, Kalt, and Silva. But this position is not correct. Hugh Williamson — convention delegate from North Carolina and subsequently a Representative — was the only Framer holding an elected federal position at the time Congress enacted the 1792 statute who we know opposed legislative officer succession on constitutional grounds. In other words, we cannot credibly say that several, many, a plurality, much less a “majority? of the Framers opposed legislative officer succession on constitutional grounds. Indeed, to argue that even as few as two Framers, who were also members of the Second Congress, opposed legislative officer succession on constitutional grounds would be error.

In 1995, the Amars (as have others before and since) argued that James Madison opposed legislative officer succession on constitutional grounds. This is a legal and historical meme or myth. Madison never stated that he thought that legislative officer succession was unconstitutional, at least as far as our historical records show. The original source involved indicates only that Congressman Madison was relaying news from the capital to Pendleton in Virginia — in private correspondence. Madison merely transmitted to Pendleton several arguments touching upon the constitutionality of the 1792 Act which had been made by others on the House floor during debate on the 1792 Act. There is no reason to believe that Madison agreed with any one or more of the particular arguments he transmitted to Pendleton.

There are those today who wish to impugn the constitutional bona fidés of the modern 1947 Act, which like its 1792 predecessor, provides for legislative officer succession. There are some policy grounds for objecting to the 1947 Act — I do not suggest that all the policy arguments go in one direction. But I do state that rooting a modern constitutional objection in Madison’s voice or that of the Framers as a group is entirely ahistorical. In these circumstances, one cannot appeal the judgement of the Second Congress (as a whole) to the Framers (as a group), and if that appeal — for whatever reason — has, in the past, convinced some unwary authors and consumers of prior legal scholarship, it is only because some originalists cannot count.

Our analysis will proceed in a plain and orderly fashion, starting with John Francis Mercer, Maryland delegate to the Constitutional Convention and member of the Second Congress....


**Legislative officer succession is a term of art. Generally, it refers to putting the presiding officers of the House and/or Senate--the Speaker of the House and Senate President Pro Tempore--in the line of statutory succession should the presidency and vice presidency go vacant.

[I intend to circulate a draft early in 2017]

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Legal History eJournal

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Princeton University - Department of Philosophy

PETER PRESTON BROOKS
Andrew W. Mellon Foundation Scholar, Center for Human Values, Peter Brooks, Princeton University

JUDITH BUTLER
University of California, Berkeley

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Columbia Law School

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Harvard University - Department of African-American Studies

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University of California, Santa Cruz - History of Consciousness

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Harvard Law School

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University of Chicago, Deceased , University of Chicago - Department of Political Science