LEGAL HISTORY eJOURNAL

"Styron's Nat: Or, the Metaphysics of Presence" Free Download
Forthcoming (in condensed draft) in Critical Analysis of Law
UC Berkeley Public Law Research Paper No. 2583226

CHRISTOPHER TOMLINS, University of California, Berkeley - Jurisprudence and Social Policy Program
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In 1967, the American novelist, William Styron, published his third major work of fiction, a book entitled The Confessions of Nat Turner. Styron’s Confessions represented itself as the autobiographical narrative of an African American slave, known as Nat Turner, who in August 1831 had led a slave revolt (the Turner Rebellion) in Southampton County Virginia, not far from the Virginia Tidewater region where Styron himself had grown up. Both Turner and the revolt that bore his name were real enough. But for Styron the Turner of record was “a person of conspicuous ghastliness? with whom he wished to have no connection. And so, claiming “a writer’s prerogative to transform Nat Turner into any kind of creature I wanted to transform him into,? Styron invented his own Nat, inspired by “subtler motives? than those manifested by the historical Turner. Why did the William Styron who had been obsessed by the story of Nat Turner since he was a boy make no attempt to comprehend the Turner whom he actually encountered in the sources he consulted (“I didn’t want to write about a psychopathic monster?)? Why “re-create? Turner in a persona that might be “better understood?? The answer seems to lie in what Styron represents as an act of self-expiation that is simultaneously an act of regional and even national expiation, an act that led him to claim that his Confessions was not a “historical novel? but a “meditation on history.? By re-creating Nat Turner and his motives, Styron seeks respite from American history’s bloody racial rampage in cathartic reconciliation with (through knowledge of) “the Negro.? The attempt was, of course, hopeless. Styron’s Nat is not a knowable Negro at all but the figment of an authorial imagination that, notwithstanding Styron’s insistence that he had respected “the known facts,? sedulously refused all of Turner’s own explanations of himself. Yet the attempt was neither uninfluential nor unimportant. As a published book Styron’s Confessions was a major commercial success. It became one of the principal channels through which white America, in the midst of its confrontation with civil rights agitators, Black Power, and the urban riots of 1967 and 1968, renewed its acquaintance with slavery and slave rebellion. It generated intense controversy within late 1960s academic and “public intellectual? circles. And it stimulated critical assessment of the novel’s fictive realities and their relationship to the representation of historical events. In this paper I ask what called Styron’s fictive realities into being, and how they were crafted. I ask what made his work a “meditation on history? – and why it failed. Finally, I ask whether it is possible to redeem Nat Turner from the effects of our attempts to “understand? him; whether, that is, he might achieve a historical presence of his own that is ever other than ghostly, or ever other than past.

"A Brief Assessment of Supreme Court Opinion Language" Free Download

ADAM SEAN FELDMAN, University of Southern California, Political Science
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The language of Supreme Court opinions is an often overlooked yet integral outcome of Supreme Court decision-making. Opinion language has significant implications for Supreme and lower court decisions as well as for public and social policy. This paper examines the relationship between Supreme Court opinion language and parties' merits briefs from 1946 through 2013. I developed an original dataset for this paper that includes the percent of overlapping language for each brief with its corresponding opinion as well as the attorney and law firm of record on each brief. I find factors including the types of parties, lawyers' experience in the Supreme Court, a case's importance and complexity, and the justices' ideological dispositions all have significant impacts on the amount of language opinions share with briefs.

"Text-Bound Originalism (And Why Originalism Does Not Strictly Govern Same Sex Marriage)" Free Download
University of Illinois College of Law Legal Studies Research Paper No. 15-19

SUJA A. THOMAS, University of Illinois College of Law
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Originalism has played a part in many court decisions including on the issue of whether states can ban same sex marriage. For the most part, the argument goes that the modern constitutional meaning trumpeted by supporters is not the original public meaning of the constitutional provision. Regarding same sex marriage, for example, originalists argue that the original public meaning of the Fourteenth Amendment's equal protection clause was the protection of African-Americans from discrimination by states, not the protection of gays and lesbians from discrimination by states. So, the equal protection clause did not and cannot protect gays and lesbians from such discrimination. These arguments assume that originalism should play a significant role in the interpretation of all provisions in the Constitution. This essay argues that this assumption is misplaced. The interpretation of the Constitution must begin with the text. The text of the Seventh Amendment is the only part of the Constitution that explicitly incorporates originalism, doing so through the use of the words "common law" and "preserved" in the context of limiting the authority of the judiciary and the jury. The express inclusion of originalism in the Seventh Amendment necessarily limits the use of originalism for the interpretation of the rest of the Constitution. Originalism must play a lesser role or no role in the interpretation of the rest of the Constitution, including the Fourteenth Amendment. While acknowledging that some role for originalism in the interpretation of the Constitution has been generally accepted, this essay argues that originalism does not strictly govern the Constitution outside of the Seventh Amendment, and nor should it same sex marriage.

"Exit, Adversarialism, and the Stubborn Persistence of Tort" Free Download
J. Tort Law (2015)

NORA FREEMAN ENGSTROM, Stanford Law School
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Serious tort reformers have long tried to divert certain claims from the tort system into no-fault or “replacement? regimes where, it is said, compensation can be more easily, expeditiously, predictably, and simply delivered. Yet while many continue to champion no-fault’s expansion, surprisingly few have stopped to ask how America’s various no-fault experiments, in place for over a century, have thus far fared. Taking up that challenge, this Essay, written in memory of no-fault pioneer Jeffrey O’Connell, canvasses America’s four boldest experiments with no-fault legislation. The investigation — of workers’ compensation, automobile no-fault, the Vaccine Injury Compensation Program, and birth injury funds in Florida and Virginia — reveals that all four of our most ambitious no-fault experiments have, in significant respects, failed. Seepage from no-fault regimes and into the tort system has been a persistent problem. Further, even when compensation has been provided within existing no-fault mechanisms, the mechanisms have become bogged down by adversarialism, marked by longer times to decision and increased combativeness, attorney involvement, and reliance on formal adjudicatory procedures. Showing how and why no-fault has repeatedly fallen short, this Essay seeks to complicate conventional wisdom concerning no-fault’s ostensible advantages. And, it seeks to honor O’Connell’s proud legacy, for only by identifying what’s gone wrong, might we start anew on a path toward the creation of better and more resilient reforms.

"Proportionality and the Limitation Clauses of the South African Bill of Rights" Free Download
Potchefstroom Electronic Law Journal, Vol. 17, No. 6, 2014

IM RAUTENBACH, University of Johannesburg
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"Proportionality" is a contemporary heavy-weight concept which has been described as an element of a globalised international grammar and as a foundational element of global constitutionalism. The article firstly describes the elements of proportionality as they are generally understood in foreign systems, namely whether the limitation pursues a legitimate aim, whether the limitation is capable of achieving this aim, whether the act impairs the right as little as possible and the so-called balancing stage when it must be determined whether the achievement of the aim outweighs the limitation imposed. The German academic Alexy (Theorie der Grundrechte (1986)) developed what he called a mathematical weight formula to deal with the balancing stage. An overview is provided of how the elements of proportionality were dealt with in the text of the South African interim Constitution of 1994, the early jurisprudence of the Constitutional Court, and in the text of the final Constitution of 1996. Contemporary South African academic criticism of the use of the concept is also analysed. The article then endeavours to relate the elements of Alexy’s weight formula to both the elements of the South African general limitation clause in section 36 of the Constitution and to the appearance of such elements in the formulation of specific rights in the Bill of Rights. Although the levels of abstraction reached in the debates on the Alexy formula are so daunting that it is most unlikely that South African courts and practitioners will ever use it, certain valuable insights can be gained from it for the purposes of dealing with proportionality within the context of the limitation of rights in South Africa. Despite opposition from certain academics, proportionality is a prominent feature of the application of the limitation clauses in the South African Constitution. The elements of proportionality provides a useful tool for the application, within the context of the limitation of rights, of general and wide concepts such as "fairness", "reasonableness", "rationality", "public interest" and, somewhat surprisingly, also of the general concept "proportionality" as such. South Africa’s participation in the global recognition and application of this way of dealing with the limitation of rights is worthwhile.

"Taking Care, or Prosecutorial Indiscretion? President Obama's Immigration Action in Historical Context" Free Download

JOHN IRA JONES, Regent University, School of Law, Students
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Though President Obama was reelected in 2012, Democrats lost the Senate and Republicans strengthened their majority in the House in the midterm election that followed in November 2014. Obama responded less than a month later with his magnum opus executive action to date, unilaterally lifting the threat of deportation from an estimated 5 million illegal immigrants living in the United States and granting them work privileges. Obama’s action set off a firefight over its legitimacy. Hecklers dubbed the president “King Obama,? and more thoughtful critics accused him of using executive fiat to circumvent laws he found distasteful and flouting his constitutional obligation to “take care that the laws are faithfully executed.? Defenders countered that the action was clearly (mostly) within his powers of prosecutorial discretion and that after all, Presidents Reagan and H.W. Bush made very similar orders without meeting threats of impeachment. Through the controversy, valuable historical guideposts are ignored, with most arguments reaching only as far back as Reagan’s order accompanying amnesty in the 1980s. One thing seems clear to this author: when only modern sources are consulted, the issue is clouded and heavily partisan. It often descends into altercations between (1) Republicans calling President Obama mean names based on vague references to somewhat ambiguous constitutional clauses and (2) Democrats finding support for his action in similar recent Republican presidential actions. In sum, the debate in popular media has all the authoritativeness and resolution of a political argument on Facebook.

This Paper examines the controversy in light of relevant history, clarifying the validity of President Obama’s immigration action immensely. Part I explores a historical understanding of the Take Care Clause of the Constitution. Part II examines the changes wrought by executive actions through the years. Part III covers the controversy at hand and argues that flaws in Obama’s immigration action demand its invalidation.

"Scientific Research in the Field of Penal Law at the 60th Anniversary" 

GEORGE ANTONIU, Independent
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In doing a deep analysis of the criminal law in force after 1943, Professor Dongoroz divided the transformations brought to the criminal law in this period into three parts: primary changes, meaning changes that were based on changing the nature of criminal law, from a law that protects the whole society into a law with a class character. The second transformation (general changes) referred to those who aimed to achieve in new ways the general and special prevention and the third category consists of specific changes to the criminal law by changing the content of specific penal institutions.

Making a review of the scientific contributions to the development of criminal science in 15 years of Institute of Legal Research, Professor Traian Ionaşcu, director of the institution, emphasized the contribution to improving the political and social character and of the normative content of the regulations adopted in the 15 years from it’s establishment.

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About this eJournal

This eJournal distributes working and accepted paper abstracts on the history of law and legal institutions, as well as other historical inquiries that relate to current legal issues.

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Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
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RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
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Advisory Board

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