Table of Contents

Natural Resources Law: Private Rights and the Public Interest (Preface and Chapter 1)

Eric T. Freyfogle, University of Illinois College of Law
Michael C. Blumm, Lewis & Clark Law School
Blake Hudson, Louisiana State University, Baton Rouge - Paul M. Hebert Law Center, Louisiana State University, Baton Rouge - School of the Coast and Environment

Constitutional Interpretation and History: New Originalism or Eclecticism?

Stephen Matthew Feldman, University of Wyoming - College of Law

The Other Citizenship Clause

Rebecca E. Zietlow, University of Toledo College of Law

Lyman Trumbull: Author of the Thirteenth Amendment, Author of the Civil Rights Act, and the First Second Amendment Lawyer

David B. Kopel, Independence Institute, Denver University - Sturm College of Law

Of Sheepdogs and Ventriloquists: Government Lawyers in Two New Deal Agencies

Daniel R. Ernst, Georgetown University Law Center

Undead Statutes: The Rise, Fall, and Continuing Uses of Adultery and Fornication Criminal Laws

JoAnne Sweeny, University of Louisville Louis D. Brandeis School of Law


LEGAL HISTORY eJOURNAL

"Natural Resources Law: Private Rights and the Public Interest (Preface and Chapter 1)" Free Download
Natural Resources Law: Private Rights and the Public Interest, West Publishing Co., 2015

ERIC T. FREYFOGLE, University of Illinois College of Law
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MICHAEL C. BLUMM, Lewis & Clark Law School
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BLAKE HUDSON, Louisiana State University, Baton Rouge - Paul M. Hebert Law Center, Louisiana State University, Baton Rouge - School of the Coast and Environment
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This casebook offers a view of natural resources law rich in history, yet exposing students to the complexities of practicing natural resources law in the 21st century. Given that the focus of most Natural Resources Law casebooks is public lands and public law (often at the federal level), this casebook is unique in its primary focus on natural resource conflicts on private lands and its significant focus on private law (though public law is also a focus). While we include chapters on federal public lands and areas of federal primacy like wetlands regulation and endangered species protection, our focus is largely on natural resources law in states that are not dominated by federal public lands, since sixty percent of the land in the United States is privately owned. We therefore think the book is especially appropriate for students in states east of the 100th meridian.

Although we address particular resources separately -- including private and public rights in waterways (including the public trust doctrine), wetlands, wildlife, water, minerals, forests, grazing, recreation, and renewable resources -- we draw frequent comparisons of the law's treatment of natural resources to allow students to analyze the consistency or inconsistency of natural resources law across diverse subject areas. For example, with some regularity we offer comparisons of those natural resources that are allocated on a first-in-time principle as opposed to those dispensed according to notions of reasonable use. We also compare management regimes throughout, including non-governmental decision making.

We make an effort to build on the students' studies of common law doctrines like trespass, nuisance, and servitude law to show how they influence the use, development, and preservation of natural resources. The question of development vs. preservation is a persistent issue, and the constitutional takings issue is another repeated theme.

"Constitutional Interpretation and History: New Originalism or Eclecticism?" Free Download
28 BYU Journal of Public Law 283, 2014

STEPHEN MATTHEW FELDMAN, University of Wyoming - College of Law
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The goal of originalism has always been purity. Originalists claim that heir methods cleanse constitutional interpretation of politics, discretion, and indeterminacy. The key to attaining purity is history. Originalist methods supposedly discern in history a fixed constitutional meaning. Many originalists now claim that the most advanced method -- the approach that reveals the purest constitutional meaning -- is reasonable-person originalism. These new originalists ask the following question: When the Constitution was adopted, how would a hypothetical reasonable person have understood the text? This Article examines historical evidence from the early decades of nationhood to achieve two goals. First, it demonstrates that reasonable-person originalism is incoherent at its historical core. As an interpretive method, originalism cannot achieve its stated goal: to identify fixed and objective constitutional meanings. Contrary to originalist claims, historical research uncovers contingencies and contexts. More specifically, the evidence shows that reasonable-person originalim is historically unjustified. Early in the nation's history, neither lawyers nor laypersons would have suggested that constitutional interpretation should be based on the views of a hypothetical reasonable person. Second, the Article demonstrates that the historical evidence instead supports an alternative conception of constitutional interpretation. In the early decades, numerous Americans -- including framers, Supreme Court justices, and constitutional scholars -- used an eclectic or pluralist approach to constitutional interpretation. Depending on the case, an eclectic interpreter considered a shifting variety of factors, including original meaning, framers' intentions, practical consequences, and judicial precedents.

"The Other Citizenship Clause" Free Download
“THE GREATEST AND THE GRANDEST ACT:� THE CIVIL RIGHTS ACT OF 1866 FROM RECONSTRUCTION TO TODAY, Christian Samito, Ed. (Southern Illinois University Press), Forthcoming

REBECCA E. ZIETLOW, University of Toledo College of Law
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The first sentence of the Fourteenth Amendment declares that “all persons born or naturalized within the United States . . . are citizens of the United States.� This clause defined the criteria for United States citizenship and established birthright citizenship as a principle of constitutional law. Yet two years before the Fourteenth Amendment became law, the Reconstruction Congress had already declared “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed . . . to be citizens of the United States.� This other Citizenship Clause is the preamble to the 1866 Civil Rights Act. This statutory clause directly contravenes the United States Supreme Court’s ruling in Dred Scott v. Sanford that freed slaves could not be citizens. Yet the 1866 Act was based on Congress’ power to enforce the Thirteenth Amendment, and before the Fourteenth Amendment’s Citizenship Clause was ratified. How could the members of the Reconstruction Congress have believed that they had the power to enact the other Citizenship Clause? The answer to this question has implications for the original meaning of the Thirteenth Amendment and its enforcement clause. Scholars have generally linked citizenship rights to the Fourteenth Amendment, and not the Thirteenth. However, the other Citizenship Clause is evidence that either the Thirteenth Amendment established freed slaves as United States citizens, or the Amendment’s enforcement clause empowered Congress to overturn the Supreme Court’s interpretation of the Constitution in Dred Scott on its own.

The 1866 Civil Rights Act was based in Congress’ new power to enforce the Thirteenth Amendment pursuant to its enforcement clause, Section Two. Thus, the 1866 Civil Rights Act provides a glimpse of those fundamental rights which the members of the Reconstruction Congress believed to be inherent in freedom, and furthers our understanding of the original meaning of the Thirteenth Amendment and its enforcement clause. The Act’s citizenship clause is evidence that many members of the Reconstruction Congress believed that free Blacks were United States citizens with fundamental rights. In their view, the Thirteenth Amendment not only ended slavery, but recognized the citizenship rights of freed slaves. For those members of Congress who did not equate freedom with citizenship, the other Citizenship Clause reflects the scope of their power to enforce the Thirteenth Amendment with “appropriate� legislation. Did they believe that the Amendment empowered them to overturn Dred Scott with a statute? If so, they thought that their enforcement power was broad indeed.

"Lyman Trumbull: Author of the Thirteenth Amendment, Author of the Civil Rights Act, and the First Second Amendment Lawyer" Free Download

DAVID B. KOPEL, Independence Institute, Denver University - Sturm College of Law
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Illinois Senator and attorney Lyman Trumbull wrote the Thirteenth Amendment, outlawing slavery in the United States, and giving Congress the power to remove all badges of servitude “by appropriate legislation.� The appropriate legislation which Trumbull then introduced was the Civil Rights Act of 1886, the foundational civil rights statute in the United States. He also wrote the First Freedmen’s Bureau Bill, to protect the civil rights of freedmen nationally. The bills were the first federal legislation to protect Second Amendment rights.

Later, he brought Second Amendment test cases to the U.S. Supreme Court (Presser v. Illinois in 1886 ) and the Illinois Supreme Court (Dunne v. Illinois in 1879). These Second Amendment cases involved labor rights, in particular, the rights of organized groups of working men to defend themselves from company goons and other violence. The most famous case of the last part of Trumbull’s career was also a labor case, In re Debs; there, he brought a habeas corpus case to the Supreme Court in support of the labor leader Eugene Debs, who had defied a federal court injunction against continuing to encourage a railroad strike.

Trumbull was not a particularly “pro-Second Amendment� person. Other rights in the Constitution, such as habeas corpus, interested him much more. His legislation and litigation for the Second Amendment were derivative of the great cause to which he was devoted: “a fair chance� for “the poor who toil for a living in this world� — as Clarence Darrow remembered him.

This article examines Trumbull’s career as a lawyer and legislator. It pays particular attention to the themes which explain why he became involved in Second Amendment issues.

Part I of this article provides an overview of Trumbull’s political philosophy, as it remained mostly constant from his early days as an Andrew Jackson Democrat to Republican Senator to Populist. Part II then begins the narrative of Trumbull’s life, from earliest days through his service in the Illinois state legislature, on the Illinois Supreme Court, and as the leading anti-slavery advocate of that state. Part III details Trumbull’s three terms as United States Senator from Illinois — defending civil liberties during the war, authoring the first statute which freed slaves, the Thirteenth Amendment, and then major Reconstruction legislation. Finally, Part IV examines Trumbull’s career after the Senate, as a Chicago lawyer from 1873 until his death in 1896.

Trumbull was one of the “Founding Sons� who in the mid-19th century first eliminated slavery, and then set up the constitutional and statutory structures for national protection of civil rights. This structure continues to be vitally important today. So studying the full sweep of Trumbull’s political and legal career is important for the same reason as is studying the other Founding Sons, such as Salmon Chase, Jonathan Bingham, or Thaddeus Stevens. Trumbull has been the subject of three biographies, the first in 1913 by his friend the newspaper writer Horace White, and the last in 1979. None of these general biographies, however, were legal scholarship. Given Trumbull’s tremendous importance in the development of American law, this Article aims to fill that gap.

A second purpose of this Article is to explicate Trumbull’s heretofore-overlooked position as the leading pro-Second Amendment legislator and lawyer of the nineteenth century — or at least the part of the century after Founders such as Thomas Jefferson and James Madison had departed. Second Amendment rights were not among Trumbull’s major political or legal interests. So why did he end up doing so much on behalf of the Second Amendment? This Article suggests that the answer was Trumbull’s lifelong devotion to the rights of workers.

"Of Sheepdogs and Ventriloquists: Government Lawyers in Two New Deal Agencies" Free Download

DANIEL R. ERNST, Georgetown University Law Center
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From the neo-Weberian literature on state-building and the political sociology of the legal profession, one might expect government lawyers to be sheepdogs, nipping at the heels of straying administrators, supplying their agencies with the bureaucratic autonomy so often missing in American government. In this working paper, prepared for "Opportunities for Law's Intellectual History," a conference sponsored by Baldy Center for Law and Social Policy at the State University of New York at Buffalo, October 10-11, 2014, I report my preliminary findings for two agencies created during the Hundred Days of Franklin D. Roosevelt's presidency, the Agricultural Adjustment Administration and the National Recovery Administration. I suggest that the neo-Weberian model tends to minimize the lawyers' agency as political actors. In particular, the New Deal lawyers' projection of their own preferences upon general statutory delegations of legislative power, which they then interpreted authoritatively, could make them less the faithful agents of their master’s voice than ventriloquists in pursuit of their own political agenda.

"Undead Statutes: The Rise, Fall, and Continuing Uses of Adultery and Fornication Criminal Laws" Free Download
46 Loyola University Chicago Law Journal, 127 (2014)

JOANNE SWEENY, University of Louisville Louis D. Brandeis School of Law
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Cohabitation is a reality for a majority of Americans. Non-monogamous relationships are increasing over time, yet having a sexual relationship outside of marriage is illegal in a surprising number of states. Conservative groups or politicians also occasionally champion these laws, ensuring their longevity. This enduring conflict of values between the majority and a vocal minority is part of a cultural trend that has existed for centuries. From colonial times to the present, adultery and fornication laws have gone from being the most prolifically enforced to being virtually ignored by prosecutors and held to be unconstitutional invasions of privacy by judges. This Article traces that progression by looking at how American culture has changed over time, including judicial views on and changing evidentiary standards for the crimes of adultery and fornication, both of which have led to fewer prosecutions. The resulting picture indicates why these laws are no longer regularly enforced and why they still remain part of the criminal codes in several states, regardless of their uncertain constitutional pedigree.

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Legal History eJournal

KWAME ANTHONY APPIAH
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

KIMBERLE CRENSHAW
Columbia Law School

HENRY LOUIS GATES
Harvard University - Department of African-American Studies

THOMAS C. GREY
Nelson Bowman Sweitzer & Marie B. Sweitzer Professor of Law, Stanford Law School

DONNA HARAWAY
University of California, Santa Cruz - History of Consciousness

DUNCAN KENNEDY
Harvard Law School

MARGARET JANE RADIN
Henry King Ransom Professor of Law, University of Michigan Law School, Distinguished Research Scholar, University of Toronto Faculty of Law

REVA B. SIEGEL
Nicholas deB. Katzenbach Professor of Law, Yale University - Law School

KENDALL THOMAS
Columbia Law School

IRIS MARION YOUNG
University of Chicago - Department of Political Science