American Legal History

It has been proposed that the habeas process be streamlined by injecting § 2254 petitions directly into the federal appellate courts, without any preliminary federal district court proceeding.  This treatment of state prisoners’ habeas petitions is arguably appropriate because the modern law of habeas corpus effectively uses federal habeas proceedings for appellate supervision of the state criminal process.

There are a number of concerns which underlie the development of modern habeas law.  Once these are understood, it becomes possible to gain an understanding of modern § 2254 habeas doctrine that depends upon reference to an appellate model.  From this understanding, two practical proposals can be made: first, that there can be direct recourse from the state courts to the intermediate federal appeals courts; and second, that there should be a limited extension of the Powell Committee recommendation with a statutory refinement of Justice Harlan’s vision of habeas, essentially adopted by the Supreme Court in Teague v. Lane.

To recharacterize the modern writ as a right of appeal is radical at first glance.  Turning the flow of cases from United States District Courts to the Courts of Appeals may, in fact, be unwise for the sole reason that there are fewer Courts of Appeals.  The question becomes whether the advantages to the entire system are sufficient to justify the shift of the burden to the Courts of Appeals.

To ask the question, “Does evidence law matter?,” is often to assume that some sets or groups of people believe it is important while others are challenging that view.  However, another assumption regarding the nature of this question is possible—that the question is asked because legal academics believe that evidence law both does and does not matter, and that those academics also believe that these are irreconcilable beliefs.  What is of particular interest is how legal academics reached this point and why they believe that evidence law both does and does not matter. 

Consideration of these aspects of evidence law scholarship and study reveals that evidence law can be understood as something both rational, irrational, and non-rational.  It can be perceived as permitting practitioners and scholars to both accommodate paradox and accept the conflict of an abstract rule of law imposed by “concrete” persons.  This stands at odds with progressive reform efforts which attempt to define, codify, and ultimately reconcile the inherently dichotomous nature of evidence law.  In order to achieve real progress in the area of evidentiary reform, the idea of progress will have to be abandoned.

La presente monografía realiza un estudio pormenorizado de la filosofía del Derecho del jurista norteamericano Roscoe Pound (1870-1964). Tras presentar en un primer capítulo la vida y obra de Pound dentro del contexto intelectual de su época, se pasa a analizar su triple caracterización del Derecho como orden, conjunto de directrices y proceso, y su comprensión global del mismo como agencia de control social, bajo la cual entiende unificables los sentidos precedentes (capítulo II). El capítulo III está dedicado al estudio del objetivo inmediato que Pound asigna al Derecho: la armonización de los intereses humanos en una labor de “ingeniería social” por parte de los operadores jurídicos. Primero se aborda la clasificación de los intereses realizada por Pound, así como los medios y criterios que señala para su evaluación y protección en caso de conflicto. Después se recogen otras reflexiones suyas en torno al momento aplicativo del Derecho: teoría de la decisión judicial, estudio de las limitaciones de la acción jurídica, y programa de la “jurisprudencia sociológica”. El capítulo IV, por su parte, se centra en el tratamiento de los fines que Pound asigna al Derecho: la justicia, que define como un régimen imparcial resultante de la satisfacción de intereses, y la civilización, o máximo desarrollo posible de las capacidades humanas, al que el Derecho contribuye. Finalmente, el capítulo V ofrece una estimación global del pensamiento de Pound: se investiga en sus orígenes intelectuales; se defiende la coherencia interna de su evolución a lo largo del tiempo; y se evalúan algunas de sus notas más características (eclecticismo, actitud funcional y metodología pragmática), subrayando la necesidad de una fundamentación filosófica más estable para sus mejores intuiciones.

In defending Queen Caroline in the House of Lords, Henry Brougham declared, “[a]n advocate, by the sacred duty of his connection with his client, knows, in the discharge of that office, but one person in the world, that client and none other.” Brougham’s ethic of advocacy has been cited repeatedly as stating the American lawyer’s duty of zealous representation of a client. It has often been called the “classic statement” of zealous representation and representing the “traditional view of the lawyer’s role.”

This essay challenges these conclusions. Brougham’s rhetoric was neither a classic statement of the duty of loyalty to a client, nor did it represent a traditional view within the American legal profession. It was consciously rejected in nearly all writings of American lawyers for most of American history, and was not explicitly embraced until the 1970s. Reminding lawyers of the duty of zealous representation was promoted in the 1960s in part to solidify the Supreme Court’s Constitutional Criminal Procedure revolution, for only zealous lawyers could protect the rights of the criminally accused. Brougham’s ethic of advocacy was used to provide a historical justification for a revived zeal in criminal defense practice, an effort to make those lawyers more professional. This justification was transformed in the 1970s by two events: first, the American legal profession became enmeshed in a professionalism crisis as a consequence of the Watergate affair. Second, that professionalism crisis was exacerbated by a fear of diminishing economic prospects for American lawyers.

This essay is divided into three parts. First, it offers a full assessment of Brougham’s representation of Queen Caroline. Second, it traces the published and negative reaction of American lawyers to Brougham’s statement of the duty of zealous representation from the 1840s on. Third, the essay explains why the consistent rejection of Brougham by American lawyers became the “classic statement” of the duty of the advocate beginning in the 1970s.

Join My Mailing List. Joseph W. Dellapenna. Villanova University School of Law. Professor of Law; Contact Information; Curriculum Vitae [PDF]. Courses/Seminars. ... Dispelling the Myths of Abortion History. Joseph W. Dellapenna, 1567. Suggested Citation. Joseph W. Dellapenna. ...

This is a legal note on the history of capitalization in the United States Constitution. A brief review of the history of capital letters is considered together with the influence of eighteenth century British grammars on capitalization practices that would have been familiar to the Founding Fathers.

The corpus of the paper is a close comparison of drafts of the Constitutional Convention's Committee of Detail and Committee of Style and their particular deviations in capitalization, with a focus on what this might convey about the Constitution in relation to grammatical understandings at the time of the founding. Additional points of interest include the "Great Semicolon Debate of 1823." A close review of some capitalization provisions in the official, engrossed copy of the Constitution and their implications are also considered. Finally, this paper offers some thoughts on contemporary issues in originalism, with a particular assessment of the role that capitalization could play in understandings of drafters' intent originalism.

Program: Juris Doctor, William & Mary Law School

When testimony about the religiosity of a victim is elicited, a jury will likely become aware of the religious affiliation of the victim.  Any revelation to a jury of the religiosity of a victim can be an aid to the jury in assessing the punishment to be given to the defendant, since being religious and talking with people about religion is deemed a communal good.  However, prescribing a harsher punishment to a defendant because of the religious affiliation of a victim is a form of religious discrimination which is unconstitutional.  In light of this inherent difficulty of evidence of religion, it is unclear whether the legal system will resort to a formal neutrality which attempts to separate religion by categorically barring its admissibility. 

Courts faced with unusual problems of law and religion typically resort to a formal neutrality and separation in part because they are unable to articulate any alternative approach.  The legal system is unable to talk about religion any other way, and it is unlikely that this will change.  Beginning such a change would require a reevaluation of liberty of conscience and the permissibility of “exercising” one’s faith in both a secular and religiously pluralistic society, but American society lacks an understanding which would provide it with the capability of acknowledging religion without immediately returning to religious discrimination.  The longer American society lacks this ability to bridge the gap between the secular and the religious, the wider the chasm grows.

To ask the question, “Does evidence law matter?,” is often to assume that some sets or groups of people believe it is important while others are challenging that view. However, another assumption regarding the nature of this question is possible—that the question is asked because legal academics believe that evidence law both does and does not matter, and that those academics also believe that these are irreconcilable beliefs. What is of particular interest is how legal academics reached this point and why they believe that evidence law both does and does not matter. Consideration of these aspects of evidence law scholarship and study reveals that evidence law can be understood as something both rational, irrational, and non-rational. It can be perceived as permitting practitioners and scholars to both accommodate paradox and accept the conflict of an abstract rule of law imposed by “concrete” persons. This stands at odds with progressive reform efforts which attempt to define, codi...

The paper studies the history of Roman law in the United States along two lines:  (i)  the citation and influence of Roman law and the Roman law tradition in the production of American law; and (ii)  the scientific study of Roman law as an academic project (whether dogmatic or socio-historical), among professors of law and history.

The paper studies the history of Roman law in the United States along two lines:  (i)  the citation and influence of Roman law and the Roman law tradition in the production of American law; and (ii)  the scientific study of Roman law as an academic project (whether dogmatic or socio-historical), among professors of law and history.

This paper represents an English-language publication of a volume that first appeared in Italian in 2018.

The Texas Supreme Court from 1911–1921 is best known not for the law it made or the opinions it wrote, but for its failure to decide cases.  Although the supreme court’s difficulty in clearing its docket existed before 1911, the number of outstanding cases exploded during the second decade of the twentieth century. 

Arguably, the issue of statewide prohibition and the divergent views held on that issue by members of the Texas Supreme Court was the driving force behind the disharmony and dysfunctionality of the court during this decade.  Statewide prohibition explains why elections of candidates to the court were so fiercely contested, explains how the court’s membership was shaped, and suggests why the court was unable to properly perform its work.  The internal divisions of the court, exemplified by the inability of the members to work together to reduce the court’s docket, and by their differences in legal thought, contributed substantially to the view that the Texas appellate judicial system was broken. 

The eventual result of this tumultuous period of the Texas Supreme Court was the legislature’s creation of the Committee of Judges in 1917 and the Commission of Appeals in 1918 in an attempt to reduce the multi-year backlog of cases.  That Commission, designed to exist for just two years, remained in existence until the expansion of the membership of the Texas Supreme Court from three to nine in 1945.

One of the enduring myths of American history, including constitutional history, is that of the “Great Man” or “Great Woman.” The idea is that, to understand the history of America, one needs to understand the impact made by Great Men and Women whose actions affected the course of history. In political history, one assays the development of the United States through the lives of great Americans, from the “Founders” to Abraham Lincoln to John F. Kennedy. Similarly, in constitutional history, the story is told through key figures, the “Great Judges,” from John Marshall to Oliver Wendell Holmes to Earl Warren. Academics, pundits, and contestants for control of the Court contribute to this myth by continuously speaking of the importance of the Court and its members to American society. Yet, this belief in the importance of Supreme Court nominees and members is based on a misguided view of the Court, and the costs of this investment may prove great. In a highly legalistic society, any co...

Associate Supreme Court Justice William J. Brennan took the oath of office on October 16, 1956.  At the time of Justice Brennan’s appointment to the Supreme Court, the Court had decided only a few cases involving the religion clauses of the first amendment, and judicial interpretation of the religion clauses had been sparing. 

In the thirty-four years of Justice Brennan’s tenure, the Court worked several revolutions in religion clause jurisprudence—revolutions guided by a sense of the needs of a changing society.  Justice Brennan was one of several architects of a new order in establishment clause interpretation, and was the architect in reframing the constitutional view of the free exercise clause.  In particular, the all-embracing interpretation of the establishment clause eventually was a catalyst used by a revisionist Supreme Court in 1990 to complete a revolution in free exercise jurisprudence. 

However, that revolution returned the legal interpretation of the free exercise of religion to an older order of things, and the middle level of generality used to evaluate establishment clause claims neither fostered the higher level goals of the Court nor created a specific understanding for governmental officials to guide their conduct.  In other words, the good intentions by which the Supreme Court, including Justice Brennan, decided religion clause cases for much of the period between 1956 and 1990 have led to suspicion, misunderstanding, and confusion, not enlightenment, tolerance, and respect.

So while Justice Brennan’s religion clause opinions were calculated to work a revolution in the sense of creating a new order, ultimately, this revolution sowed the seeds of a return to an older order.  This revolution, which created Court-based protection for religious belief from legislative interference, appears destined to revolve into a situation in which religious belief is protected only through limited forms of legislative grace.

The injury of emotional distress is an interesting tort, which has long perplexed the Anglo-American system of jurisprudence.  While, originally, allegations of this kind did not constitute a cause of action, today, there is no question that an injured plaintiff may recover for the infliction of emotional distress.  The majority and minority positions differ now only on what must be alleged and proved.

Texas was the first jurisdiction in the United States to allow recovery for mental anguish.  However, in 1993 in the case of Boyles v. Kerr, the Texas Supreme Court appeared to depart from the majority view when it decided that negligent infliction of emotional distress alone was not compensable.  As a result, some practitioners, and indeed some courts, state that the tort is no longer recognized. 

This is, in fact, not true.  As a review of the Texas case history of emotional distress claims shows, the tort of negligently inflicted emotional distress is alive and well in Texas.  This review makes clear that the Texas Supreme Court never intended to completely eradicate negligent infliction of emotional distress as a cause of action.  Rather, to recover for this injury, plaintiffs must only show that they have endured the breach of some other duty owed to them.  Whether we think of this in terms of a parasitic recovery in the area of substantive law, or in terms of a requirement in pleading with regard to procedure, the result is the same.

The Protestant theological doctrine of the uses of the moral law had a striking analogue in the classic Anglo-American doctrine of the purposes of criminal law and punishment. Protestant theologians have long argued that God’s moral law was not a pathway to salvation, but it still had “uses” in this life: (1) a civil use that restrains person from sinful conduct by threat of divine punishment; (2) a theological use that condemns sinful persons in their consciences and drives them to repentance; and (3) an educational use that teaches those who have already been saved the good works that please God and induce others to come to God, too. Protestant jurists, in turn, developed an analogous theory of three purposes of why a state needs criminal law and punishment: (1) deterrence of individuals and groups through the threat of criminal punishment; (2) retribution, the necessary punishment needed to restore a convicted criminal within the community; and (3) rehabilitation, teaching a person the good works that become proper citizenship. This Article analyzes the close conceptual connections between these theological and legal doctrines and the historical evidence that each influenced the development of the other. The Article also calls for a proper balancing of the three uses of moral law and the three purposes of criminal law.

Capturing the spirit of a man in language is an elusive goal.  We cannot communicate a portrait.  At best, we can only evoke, draw from our memory, our own sense of Irving L. Goldberg, the man, lawyer, and jurist, of which Goldberg the husband, father, and mentor were inseparable parts.

In his years of private practice, Judge Goldberg was active throughout Dallas, Texas, in public causes, including an abiding interest in Democratic politics.  He had a devotion to individual worth forged somewhere in the mind of a Jewish lad in South Texas in the early part of the nineteenth century.  Even from these barren facts of the past, a composite of traits we call character is evident: tenacity, an agile mind, a love of family, a reverence for God and country, and an ability to be loyal and to inspire loyalty.

Judge Goldberg was a teacher, and his lessons were the most potent kind: teaching by example.  His most cutting lesson was intellectual honesty.  Because being true to one’s self requires self-knowledge, his lessons required an inward look.  He knew who he was and what he believed, and did not need to borrow from others his own identity.

Each of us can only hope that in the brief time given, we can in some small way leave a fingerprint on the pages of history; to have it said that he lived, he died, he was a judge, and have that mean something.  With Irving L. Goldberg, it does.

The Road to Brown is a film that deals with the transformative judicial ruling of Brown v. Board of Education.  Many regard this case as the most important holding ever made by a United States court.  The Road to Brown offers law professors a superb vehicle for bringing to the classroom the attention to persons, sense of history, and focus on litigation strategy that a great decision demands.

The Road to Brown provides a rich socio-legal-historical perspective on the events that culminated in the 1945 Supreme Court ruling barring racial segregation in public elementary schools.  The program blends together photographs, news footage, artistic renderings, and music of the times, recollections of participants in the litigation struggle, and present-day commentary by judges, historians, and others.  The result is a visual presentation that conveys more than information.  It reaches the viewer on an affective level, offering to renew the spirit as well as inform the mind.

The film does much to accurately locate a great case within its historical context, chart its litigation strategy, and vividly present its human dimensions.  Law professors who cover Brown should use the film in class or require students to view it as an out-of-class assignment.  The Road to Brown offers great potential for effectively teaching transformative jurisprudence.

David Hoffman was a successful Baltimore lawyer who wrote the first study of American
law in 1817 and authored the first maxims of American legal ethics. Yet for more than a century after his death, Hoffman was a forgotten figure to American lawyers. Beginning in the late 1970s, Hoffman was re-discovered, and his writings on legal ethics have been favorably cited.

How and why was Hoffman “lost” to American law for over a century, and why he was “found”? Hoffman was lost to history because his view of ethics was premised on republican virtue, specifically the concept of honor. A lawyer acted honorably if his actions were morally sanctioned. Thus, Hoffman concluded a lawyer should refuse to plead the statute of limitations because, though legal, such action was dishonorable. When Hoffman wrote his maxims of legal ethics, the concept of honor was being displaced by individualism. The test of lawyer behavior became private conscience rather than public honor. This turn was accompanied by a second shift, in which lawyers accepted that legal ethics differed from public morality. Though an “officer of the court,” the lawyer’s foremost duty was to serve his client’s private interests, and the lawyer was not morally accountable to the public for the client’s goals. One consequence of these changes was the profession’s agreement that lawyers owed a duty to their clients to plead all legal claims and defenses. This vision left Hoffman behind. 

Hoffman was found in response to a crisis within the modern American legal profession. By the late 1970s, many lawyers feared that the liberal ideal of the lawyer as a morally neutral, zealous agent (or “hired-gun”) effectuating a client’s goals ignored the lawyer’s duties to the public. This crisis was exacerbated by two events: Watergate, in which lawyers blindly followed the demands of their client, the President, to society’s detriment, and the ABA’s decision in 1978 to replace its 1969 Code of Professional Responsibility, because the Code embraced the “fiction” that ethical issues were “matters of ethics rather than law.” Because Hoffman concluded a lawyer’s duty to a client was limited by his duties to society, he was used as a relevant, historical example of an ethics of advocacy contrary to the “standard conception” of liberal neutrality. Hoffman was a touchstone justifying an ethics of virtue, of lawyers serving the ends of justice, not merely serving their client’s goals.

Much of the history of the American law of evidence, including its most contentious issue, hearsay, is the story of stasis and reform.  The case of Hoffman v. Palmer represents one of few cases concerning hearsay known by name, and illustrates that “false” evidence has often been used to caution against efforts proclaiming “radical reform” of the law of evidence. 

In this case involving a collision between a car and a train, the critical question was: Is the defendant railroad permitted to introduce into evidence the transcript of a question and answer session made two days after the accident between the engineer of the train and another railroad employee?  If believed, a statement made in this session would exonerate the railroad from liability. 

Writing for a divided court, Judge Jerome Frank held that the absence of a motive to lie on the part of the declarant (the railroad engineer who gave the statement) was required in order for the statement to be admissible.  Because such a motive could reasonably be presumed present, the engineer’s statement was therefore determined not admissible.  Frank’s opinion was unanimously affirmed by the Supreme Court in an opinion written by Justice William O. Douglas.  However, Edmund M. Morgan, Jr., law professor and prior member of both the Advisory Committee on the Federal Rules of Civil Procedure and the Committee on the Model Code of Evidence, vehemently disagreed with both Frank and Douglas’s opinions.

Frank and Douglas’s decisions in this case, and Morgan’s opposition to the precedent those decisions set, incited considerable debate over the law of evidence and the issue of hearsay, and launched significant reform efforts.  For these reasons, Hoffman v. Palmer is emblematic of the history of the American law of evidence, law reform, and the history of twentieth century American legal thought.

" Although the Lochner case has attracted substantial scholarly interest over the years, this article argues that the scholarship has been seriously flawed by over-attention to, and reliance upon, the ideas and arguments presented in the Lochner Court's written opinions (both majority and dissenting). At the same time, little or no attention has been paid to the crucial role played by the bakers of New York in agitating for passage of bakeshop reform. This article examines the intellectual self-activity of the journeymen bakers in their agitation for shorter hours and will argue that the bakers generated and sustained a perspective on the issues surrounding the case of Lochner v. New York that was decidedly different from that which informed the thinking of the Court and subsequent commentators. Dramatis Personae: Chief Justice Rufus Peckham, Oliver Wendell Holmes, John Marshall Harlan, Henry Weissman, George Block, Cyrus Edson, Ernst Freund, Roscoe Pound, Edward Corwin. Major Themes & Events: Lochner v. New York, Hours of labor, working class, bakeries, Supreme Court, overwork, Constitution, economics, political economy, rights, substantive due process. "

When the American Bar Association (ABA) adopted its Code of Professional Responsibility at its annual meeting in August 1969, the American legal profession was a publicly respected and economically vibrant body. Lawyers, though always more feared than loved, became increasingly important in post-World War II America. The demand for their services exploded for a quarter-century, and lawyers assumed an increased role in the economic and political life of the United States. During the 1950s and early 1960s, the Cold War led American lawyers and other public figures to re-emphasize the rule of law as defining the difference between the United States and the Soviet Union. Relatedly, American lawyers argued they possessed a central role in maintaining the rule of law. From the 1950s through the mid-1960s, the popular image of lawyers may have peaked. It was at this time that the ABA began its work to update the 1908 Canons of Ethics. The ABA’s adoption of the Code of Professional Responsi...

In this essay I examine the extent to which the scholarship of Morton J. Horwitz contributed to enriching legal education and scholarship in England, Canada, and Australia. My thesis is that Horwitz’s work (principally The Transformation of American Law, 1780–1860) provided an important stimulus at a critical time in the late 1970s and 1980s when legal education, legal scholarship, and legal history avowedly oriented toward anti-formalism and law and society were struggling to
be legitimized beyond the United States. For a short but crucial period that subsequently appears as law’s tipping point—manifested in the move from an obsession with legal doctrine and legal institutions to the treatment of law in its larger socioeconomic context—Horwitz was an inspiration to those seeking to treat law as part of society, to transcend both the traditional chasm between law and justice and the dominant ahistorical tendencies in law schools, and to challenge legal history’s almost exclusive preoccupation with the law and legal institutions of medieval England.  The reasons for Horwitz’s limited influence in England, Canada, and Australia are considered.  It is argued that the questions that Horwitz asked have in some ways increased rather than diminished in importance since they were first posed in the 1970s and 1980s. 

In Transformations in American Legal History II - Essays in Honor of Morton J. Horwitz.  Daniel W. Hamilton and Alfred L. Brophy (eds). Cambridge. Mass.: Harvard University Press.  ch. 30.  pp. 504-542.

The legal debate regarding the right to commit suicide requires a critical review of the relationship between the individual and the community in present liberal political thought.  Modern liberal political thought postulates that the government or community must be neutral about what is good both for members of the community and the community itself.  It also postulates that there exists a sphere of action which affects solely an individual. 

The neutrality postulate and the harm of self/harm to others dichotomy are best explicated by John Stuart Mill in his essay On Liberty, in which Mill separates and categorizes the individual and the community.  This separation and categorization has animated much of constitutional law discourse over the past twenty-five years.  In fact, the dichotomy has become an archetype for structuring a number of important constitutional law decisions.  However, in tort, criminal, and other nonconstitutional law areas, this model is being replaced by a more communitarian model.

The use of Millian thought in constitutional law is an attempt to alleviate the tension between claims of right by an individual and claims of community interest by the state.  Yet, review of legal responses to suicide will show that such an attempt (1) is in conflict with legal thought outside of constitutional law, and (2) cannot succeed in structuring a solution to a debate about a right to commit suicide, but can only result in exacerbating the tension found in American liberalism.  Such a review shows that, by creating a right of autonomy which purports to dignify the individual, such a right instead cuts off the individual from other members of the community.  In this situation, an ideal of reconciliation or hope for and from the community can no longer exist.

The legal debate regarding the right to commit suicide requires a critical review of the relationship between the individual and the community in present liberal political thought. Modern liberal political thought postulates that the government or community must be neutral about what is good both for members of the community and the community itself. It also postulates that there exists a sphere of action which affects solely an individual. The neutrality postulate and the harm of self/harm to others dichotomy are best explicated by John Stuart Mill in his essay On Liberty, in which Mill separates and categorizes the individual and the community. This separation and categorization has animated much of constitutional law discourse over the past twenty-five years. In fact, the dichotomy has become an archetype for structuring a number of important constitutional law decisions. However, in tort, criminal, and other nonconstitutional law areas, this model is being replaced by a more com...

El presente texto presenta al filósofo del Derecho Roscoe Pound, célebre decano de la Facultad de Derecho de Harvard entre 1916 y 1936, como caso paradigmático de jurista asociado al Progressivism, movimiento de liberalismo social que dominó la escena política e intelectual estadounidense en los años anteriores a la Primera Guerra mundial. Según se desprende de este estudio, la evolución de Pound en lo académico y en lo ideológico va en paralelo a la suerte de ese primer Progresismo liberal norteamericano, cuyo fin de trayecto vendría representado por la llegada al poder de Franklin D. Roosevelt en 1933. La tesis de fondo que se mantiene aquí es que el Progresismo original supuso solo un paso intermedio en la crisis del modelo liberal decimonónico en EE.UU., pues sus propuestas de reforma aún eran expresión de una confianza en la moral, la ciencia y la razón propia de cierta mentalidad victoriana residual. El New Deal de Roosevelt, en cambio, surgido en una época más relativista y experimentalista como fue el periodo de entreguerras, se habría separado ya de esas premisas, y por eso habría encontrado el rechazo de Pound y de otros tantos liberales progresistas de viejo cuño, que evolucionaron así hacia posiciones más conservadoras. El cuerpo central del capítulo va atravesando las diversas etapas de la biografía intelectual de Pound hasta principios de los años 40. En ese recorrido se destacan tres circunstancias que resultarían decisivas para decantar su evolución ideológica: el desenlace del juicio contra Sacco y Vanzetti en 1927, el surgimiento del realismo jurídico americano como movimiento iusfilosófico afín al nuevo progresismo –que se consolida, precisamente, a raíz de un debate académico entre Pound y Karl Llewellyn en 1931– y la ya mencionada reacción de Pound y otros intelectuales de su generación ante las medidas de la Administración Roosevelt, y muy en particular ante el intento de éste de alterar la composición del Tribunal Supremo en 1937.

"Making Indian Law" is an effort to explain the Hualapai case from a Hualapai perspective, but the book is more than that: It is an effort to position the Hualapai case as a turning point in federal Indian law. If McMillen had delved more deeply, he would have seen the case as a way station, not a turning point, and could have given us an example of what needs to be done to reach a true turning point.

Cambridge Studies in Medieval Life and Thought Canon Law and the Letters of Ivo of Chartres Ivo of Chartres was one of the most learned scholars of his time, a powerful bishop and a major figure in the so-called 'Investiture Contest'. Christof rolker here offers a major new study of ...

La presente disertación busca mostrar la aplicación del derecho indiano
por los tribunales de justicia chilenos, con posterioridad a la entrada en vigencia del Código Civil –1 de enero de 1857–, a partir de una primera selección de sentencias judiciales extraídas de la revista jurídica Gaceta de los Tribunales, con miras a ofrecer algunas observaciones desde la óptica de la cultura jurídica, para explicar la persistencia de lo indiano
en la praxis judicial, desde la formación jurídica de los letrados que resolvieron los conflictos jurídicos, como manifestación de su mentalidad jurídica.

In Go East Young Man: The Early Years, Justice Douglas reveals and gives definition to a powerful character in contemporary American history.  In this autobiography, Douglas relates his life from his early years to his appointment to the Supreme Court in 1939, and while Douglas the advocate occasionally gets in the way of the story, in the main, his advocacy is more subtle and probably unintended.  The book is an illuminating insight into this intriguing loner, and because his life has been so close to the heart of government, the book is perforce a man’s view of much recent history.  It is a commendable work.

La entrada de EE.UU. en la Primera Guerra Mundial en abril de 1917 fue el acontecimiento desencadenante de la crisis del progresismo político e intelectual que había dominado la escena pública de aquel país desde comienzos del siglo, y sería, a la postre, un factor clave en el inicio de la crisis de la opinión pública liberal. El acontecimiento jurídico más significativo en ese sentido fue la promulgación de la Espionage Act en junio de ese año. Inicialmente castigaba la interferencia y la insubordinación directas y deliberadas frente a operaciones militares –así como la obstrucción al alistamiento–, pero en una posterior reforma de mayo de 1918 coartaba la libertad de expresión de los ciudadanos de manera más intensa e indiscriminada. Aquella legislación, además, siguió en vigor tras el armisticio, y fue un arma decisiva para la caza de brujas anticomunista que el Departamento de Justicia estadounidense emprendió entre 1918 y 1920. Este trabajo realiza un análisis crítico de aquellos acontecimientos, y en particular de la Espionage Act y de su aplicación inicial por parte de los tribunales. Su examen se apoya principalmente en las reflexiones de Zechariah Chafee, profesor de Harvard en aquel momento y destacado experto en libertad de expresión, así como en la jurisprudencia que el Tribunal Supremo estableció en las sentencias Schenk v. United States y Abrams v. United States, ambas de 1919.

The entry of the United States into the First World War in April 1917 was the triggering event for the crisis of political and intellectual progressivism that had dominated the public scene in that country since the beginning of the century, and would ultimately be a key factor in the beginning of the crisis of liberal public opinion. The most significant legal event in this regard was the promulgation of the Espionage Act in June of that year. Initially it punished direct and deliberate interference and insubordination in the face of military operations –as well as obstruction of enlistment–, but in a subsequent reform of May 1918 it restricted the freedom of expression of citizens in a more intense and indiscriminate way. That legislation, moreover, remained in force after the armistice, and was a decisive weapon in the anti-communist witch hunt that the United States Department of Justice undertook between 1918 and 1920. This paper carries out a critical analysis of those events, and in particular of the Espionage Act and its initial application by the courts. Its examination is based primarily on the reflections of Zechariah Chafee, a Harvard professor at the time and a leading expert on freedom of expression, as well as the case law established by the Supreme Court in the Schenk v. United States and Abrams v. United States, both from 1919.

Exploration of destructive developments in American law and society show that family law is completely askew.  Although family law deals with the most intimate and basic personal relationships, it applies a legal process based on autonomous individual public and private economic rights to those intimate relational realities.  It is a hallowed expression of male virtues and a paradigmatic example of the use of the law to protect vested interests and shape society, rather than a reflection of reality.

The split between the private/family/female and the public/business/male spheres of the nineteenth century created the separation of competitive attributes, virtues, and vices from cooperative attributes, virtues, and vices.  This split has had a profound and negative effect on American society.  While public law and the public realm are congruent, the relationship between private law and the private realm is much less direct.  The interplay between these spheres and the bodies of law that govern them, together with the legitimization of male virtues through the ascendancy of law, has had deleterious societal effects.  It has helped weaken cooperative virtues, dilute differing cultural practices, change the perception of male and female roles, and establish the hegemony of consumerism. 

A society with a strong commitment to the preservation of the family cannot be modeled solely on the economic household of traditional history, or on a model that protects family by devaluing women.  Still, although most societies are male-dominated, there are numerous systems that value family structure, the nurturing of the young, and respect for elders, and that incorporate female virtues as important societal traits.  As a society, Americans can look to the strengths of our multiple cultural traditions and develop a balance that values the support and nurturing of individuals in all stages of development and through all stages of life.