THOUGHT 99, 104 (1978). 12 See id. at 116. '3 See id. at 117. " See id. Of course, as there was n... more THOUGHT 99, 104 (1978). 12 See id. at 116. '3 See id. at 117. " See id. Of course, as there was no absolute distinction between Progressive and New Deal thought, my division is overly general. Such a distinction, however, helps to highlight the unique aspects of the thought that influenced Llewellyn. See also RICHARD HOFSTADTER, THE AGE OF REFORM: FROM BRYAN TO FDR (1955) (discussing the period from 1890 to World War II as an age of reform with three main episodes, including the agrarian uprising and Populism of the 1890s, the Progressive movement which extended from 1900 to 1914, and the New Deal of the 1930s); OTIS L. GRAHAM. JR., AN ENCORE FOR REFORM: THE OLD PROGRES-SIVES AND THE NEW DEAL (1967) (discussing the origins of the New Deal and its continuity with American political history).
for research support during the author's tenure at that institution. 1. Chayes, The Role of the J... more for research support during the author's tenure at that institution. 1. Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976) [hereinafter cited as Chayes]. 2. Fiss, The Supreme Court, 1978 Term/Forward: The Forms of Justice, 93 HARV. L. REV. 1 (1979) [hereinafter cited as Fiss]. 3. See id., for a description of the Burger Court's reaction to "structural" litigation. 4. 445 U.S. 326 (1980).
Compare Alaska Packers' Ass'n v. Dominico, 117 Fed. 99, 103 (9th. Cir. 1902) (consideration neces... more Compare Alaska Packers' Ass'n v. Dominico, 117 Fed. 99, 103 (9th. Cir. 1902) (consideration necessary in exchange for modification) with Watkins & Son v. Carrig, 21 A.2d 591, 592 (N.H. 1941) (no consideration necessary in exchange for modification).
historical tradition of prohibiting the carrying of "dangerous and unusual weapons."' 0 Thus, the... more historical tradition of prohibiting the carrying of "dangerous and unusual weapons."' 0 Thus, the Heller majority purports to be based on pre-Amendment historical practice. We will see that its description of that practice is more mythical than real. II. THE ENGLISH RIGHT TO KEEP ARMS-A PREVIEW AND THE SOCIAL BACKGROUND A. The Whig Supremacy Before plunging into the histories of England in the eighteenth century, one should note that none of the histories of England examined for this Article mention the issue of gun rights per se. Gun ownership was an issue under the Game Laws and there were controversies over how inclusive the militia should be, but gun rights in themselves were simply not an issue. There was no National Rifle Association ("NRA"), no chronic incidents of mass shootings (because even a trained infantryman could shoot only three musket rounds per minute), no Brady organization, nor any legislation permitting open carry. There was no party split on gun issues because there was only the Whig Party. No one with any power wanted to arm the populace as a defense against the government, because those in power were happy with things as they were and did not want to rock the boat. As a member of Parliament perhaps expressed, "Reform, sir! Don't talk to one of reform-things are bad enough as they are." (Probably apocryphal.) The eighteenth century was known as the era of Whig Supremacy, in which a ruling oligarchy, a society of connections, controlled Parliament, the judiciary, local government, the established church, hunting, and the militia." The Whigs purged the opposition, the Tories, both at national and local office.' 2 For our study, it is important that the Justices of the Peace (key to the enforcement of the Game Laws) and the Militia officers were all Whigs." 10. Id. at 627 (citation omitted) (first quoting United States v. Miller, 307 U.S. 174, 179 (1939); and then quoting 4 BLACKSTONE, supra note 5, at 148-49). 11. To view the titles of two histories consulted by this Article, see GEOFFREY HOLMES &
My paper describes employer wellness programs and the governing law. It is a short essay on the t... more My paper describes employer wellness programs and the governing law. It is a short essay on the threat to employee privacy posed by employer wellness programs, ending with a critique of the central premise of libertarianism, that limiting the power of government necessarily increases human freedom.
This Article provides the factual background to Hansberry v. Lee, the famous class action case. D... more This Article provides the factual background to Hansberry v. Lee, the famous class action case. During the early 1900's, Chicago's black population was kept effectively segregated, primarily through the use of racially restrictive covenants. However, in the 1930's, this system began to break down. The growth of the black population caused an increased demand for black housing, while the Depression reduced the market for white housing. It was at this time that Carl Hansberry bought a house that was covered by a restrictive covenant, generating a lawsuit to have the covenant enforced and the Hansberrys evicted. Tracing the lawsuit as it progressed toward the Supreme Court, the author notes that the Court could have invalidated the Hansberry judgment for several reasons, including fraud, the then existing Illinois class action law, the constitutional validity of the restrictive covenants, and the lower court's improper use of res judicata. Surprisingly, however, the Supreme Court ignored these flaws, and the racism behind them, and instead focused on the due process considerations involved in binding an individual to a class action judgment. The author concludes that Hansberry's importance may be as a substantive decision leading directly to Shelley v. Kraemer. INTRODUCTION This Article, investigating Hansberry v. Lee's' factual background, grew out of a student's comment after a civil procedure class. In teaching class actions, Hansberry is a classic, usually the first case in the class action section of civil procedure textbooks. 2 My class session went
In Hamilton v. Nielsen,' a case which is interesting from an Erie 2 standpoint as well as from a ... more In Hamilton v. Nielsen,' a case which is interesting from an Erie 2 standpoint as well as from a jurisdictional one, the court upheld federal jurisdiction in a diversity action where the plaintiff beneficiary of a decedent's trust brought suit against the executors of the decedent's will alleging negligence in investment decisions on the part of the defendants. The court of appeals noted that federal courts do not have the power in the exercise of diversity jurisdiction to probate wills, 3 but held that principle not to apply in this case where all that was being sought
I. INTRODUCTION Although early commentators have focused on Ricci v. DeStefano's' discussion of d... more I. INTRODUCTION Although early commentators have focused on Ricci v. DeStefano's' discussion of disparate impact, 2 I see what Ricci is saying about disparate treatment as being more important. The majority and concurring opinions make proving disparate treatment much easier than under prior law. One
John Henry Schlegel describes the ALI: "That organization provided now tax deductible opportuniti... more John Henry Schlegel describes the ALI: "That organization provided now tax deductible opportunities for slightly left of center, upper-caste lawyers to socialize in an atmosphere that reinforced the notion that theirs was a learned profession and thus further separated them from the stench of the Untermenschen of the profession." JOHN HENRY SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE 212 (1995) [hereinafter SCHLEGEL, AMERICAN LEGAL REALISM]. For a different view of the ALI, which describes it as a force for positive change in the law, see N.E.H. Hull, Restatement
The paper describes and critiques the Association of American Law Schools hiring process, the mea... more The paper describes and critiques the Association of American Law Schools hiring process, the means by which a significant portion of law school professors are hired. It argues that the process focuses on certain narrow criteria and works against intellectual diversity in law school faculty.
The paper correlates various social data on a state basis, such as education and income, with the... more The paper correlates various social data on a state basis, such as education and income, with the state results of the 2000 and 2004 presidential elections. The paper concludes that Red States and Blue states do have definite statistical social differences.
The paper runs correlations btween state statistics, mostly taken from the Census,The data show t... more The paper runs correlations btween state statistics, mostly taken from the Census,The data show that there are significant differences between the Obama and McCain states in education, income, and income distribution.
Page 1. IN RE BORDEN: THE FTC GOES SOUR ON TRADEMARKS By ALLEN R.KAMP* A recent ... No. 79-3028. ... more Page 1. IN RE BORDEN: THE FTC GOES SOUR ON TRADEMARKS By ALLEN R.KAMP* A recent ... No. 79-3028. 2. Margulies, How the FTC Threatens Trademarks, NY Times, May 20, 1979, § 3 (Business and Finance), at 16, Col. 3 ...
Florida and Delaware courts reached opposite conclusions concerning the validity of an inter vivo... more Florida and Delaware courts reached opposite conclusions concerning the validity of an inter vivos trust). 5. Rules governing necessary and indispensable parties are m FED.
THOUGHT 99, 104 (1978). 12 See id. at 116. '3 See id. at 117. " See id. Of course, as there was n... more THOUGHT 99, 104 (1978). 12 See id. at 116. '3 See id. at 117. " See id. Of course, as there was no absolute distinction between Progressive and New Deal thought, my division is overly general. Such a distinction, however, helps to highlight the unique aspects of the thought that influenced Llewellyn. See also RICHARD HOFSTADTER, THE AGE OF REFORM: FROM BRYAN TO FDR (1955) (discussing the period from 1890 to World War II as an age of reform with three main episodes, including the agrarian uprising and Populism of the 1890s, the Progressive movement which extended from 1900 to 1914, and the New Deal of the 1930s); OTIS L. GRAHAM. JR., AN ENCORE FOR REFORM: THE OLD PROGRES-SIVES AND THE NEW DEAL (1967) (discussing the origins of the New Deal and its continuity with American political history).
for research support during the author's tenure at that institution. 1. Chayes, The Role of the J... more for research support during the author's tenure at that institution. 1. Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976) [hereinafter cited as Chayes]. 2. Fiss, The Supreme Court, 1978 Term/Forward: The Forms of Justice, 93 HARV. L. REV. 1 (1979) [hereinafter cited as Fiss]. 3. See id., for a description of the Burger Court's reaction to "structural" litigation. 4. 445 U.S. 326 (1980).
Compare Alaska Packers' Ass'n v. Dominico, 117 Fed. 99, 103 (9th. Cir. 1902) (consideration neces... more Compare Alaska Packers' Ass'n v. Dominico, 117 Fed. 99, 103 (9th. Cir. 1902) (consideration necessary in exchange for modification) with Watkins & Son v. Carrig, 21 A.2d 591, 592 (N.H. 1941) (no consideration necessary in exchange for modification).
historical tradition of prohibiting the carrying of "dangerous and unusual weapons."' 0 Thus, the... more historical tradition of prohibiting the carrying of "dangerous and unusual weapons."' 0 Thus, the Heller majority purports to be based on pre-Amendment historical practice. We will see that its description of that practice is more mythical than real. II. THE ENGLISH RIGHT TO KEEP ARMS-A PREVIEW AND THE SOCIAL BACKGROUND A. The Whig Supremacy Before plunging into the histories of England in the eighteenth century, one should note that none of the histories of England examined for this Article mention the issue of gun rights per se. Gun ownership was an issue under the Game Laws and there were controversies over how inclusive the militia should be, but gun rights in themselves were simply not an issue. There was no National Rifle Association ("NRA"), no chronic incidents of mass shootings (because even a trained infantryman could shoot only three musket rounds per minute), no Brady organization, nor any legislation permitting open carry. There was no party split on gun issues because there was only the Whig Party. No one with any power wanted to arm the populace as a defense against the government, because those in power were happy with things as they were and did not want to rock the boat. As a member of Parliament perhaps expressed, "Reform, sir! Don't talk to one of reform-things are bad enough as they are." (Probably apocryphal.) The eighteenth century was known as the era of Whig Supremacy, in which a ruling oligarchy, a society of connections, controlled Parliament, the judiciary, local government, the established church, hunting, and the militia." The Whigs purged the opposition, the Tories, both at national and local office.' 2 For our study, it is important that the Justices of the Peace (key to the enforcement of the Game Laws) and the Militia officers were all Whigs." 10. Id. at 627 (citation omitted) (first quoting United States v. Miller, 307 U.S. 174, 179 (1939); and then quoting 4 BLACKSTONE, supra note 5, at 148-49). 11. To view the titles of two histories consulted by this Article, see GEOFFREY HOLMES &
My paper describes employer wellness programs and the governing law. It is a short essay on the t... more My paper describes employer wellness programs and the governing law. It is a short essay on the threat to employee privacy posed by employer wellness programs, ending with a critique of the central premise of libertarianism, that limiting the power of government necessarily increases human freedom.
This Article provides the factual background to Hansberry v. Lee, the famous class action case. D... more This Article provides the factual background to Hansberry v. Lee, the famous class action case. During the early 1900's, Chicago's black population was kept effectively segregated, primarily through the use of racially restrictive covenants. However, in the 1930's, this system began to break down. The growth of the black population caused an increased demand for black housing, while the Depression reduced the market for white housing. It was at this time that Carl Hansberry bought a house that was covered by a restrictive covenant, generating a lawsuit to have the covenant enforced and the Hansberrys evicted. Tracing the lawsuit as it progressed toward the Supreme Court, the author notes that the Court could have invalidated the Hansberry judgment for several reasons, including fraud, the then existing Illinois class action law, the constitutional validity of the restrictive covenants, and the lower court's improper use of res judicata. Surprisingly, however, the Supreme Court ignored these flaws, and the racism behind them, and instead focused on the due process considerations involved in binding an individual to a class action judgment. The author concludes that Hansberry's importance may be as a substantive decision leading directly to Shelley v. Kraemer. INTRODUCTION This Article, investigating Hansberry v. Lee's' factual background, grew out of a student's comment after a civil procedure class. In teaching class actions, Hansberry is a classic, usually the first case in the class action section of civil procedure textbooks. 2 My class session went
In Hamilton v. Nielsen,' a case which is interesting from an Erie 2 standpoint as well as from a ... more In Hamilton v. Nielsen,' a case which is interesting from an Erie 2 standpoint as well as from a jurisdictional one, the court upheld federal jurisdiction in a diversity action where the plaintiff beneficiary of a decedent's trust brought suit against the executors of the decedent's will alleging negligence in investment decisions on the part of the defendants. The court of appeals noted that federal courts do not have the power in the exercise of diversity jurisdiction to probate wills, 3 but held that principle not to apply in this case where all that was being sought
I. INTRODUCTION Although early commentators have focused on Ricci v. DeStefano's' discussion of d... more I. INTRODUCTION Although early commentators have focused on Ricci v. DeStefano's' discussion of disparate impact, 2 I see what Ricci is saying about disparate treatment as being more important. The majority and concurring opinions make proving disparate treatment much easier than under prior law. One
John Henry Schlegel describes the ALI: "That organization provided now tax deductible opportuniti... more John Henry Schlegel describes the ALI: "That organization provided now tax deductible opportunities for slightly left of center, upper-caste lawyers to socialize in an atmosphere that reinforced the notion that theirs was a learned profession and thus further separated them from the stench of the Untermenschen of the profession." JOHN HENRY SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE 212 (1995) [hereinafter SCHLEGEL, AMERICAN LEGAL REALISM]. For a different view of the ALI, which describes it as a force for positive change in the law, see N.E.H. Hull, Restatement
The paper describes and critiques the Association of American Law Schools hiring process, the mea... more The paper describes and critiques the Association of American Law Schools hiring process, the means by which a significant portion of law school professors are hired. It argues that the process focuses on certain narrow criteria and works against intellectual diversity in law school faculty.
The paper correlates various social data on a state basis, such as education and income, with the... more The paper correlates various social data on a state basis, such as education and income, with the state results of the 2000 and 2004 presidential elections. The paper concludes that Red States and Blue states do have definite statistical social differences.
The paper runs correlations btween state statistics, mostly taken from the Census,The data show t... more The paper runs correlations btween state statistics, mostly taken from the Census,The data show that there are significant differences between the Obama and McCain states in education, income, and income distribution.
Page 1. IN RE BORDEN: THE FTC GOES SOUR ON TRADEMARKS By ALLEN R.KAMP* A recent ... No. 79-3028. ... more Page 1. IN RE BORDEN: THE FTC GOES SOUR ON TRADEMARKS By ALLEN R.KAMP* A recent ... No. 79-3028. 2. Margulies, How the FTC Threatens Trademarks, NY Times, May 20, 1979, § 3 (Business and Finance), at 16, Col. 3 ...
Florida and Delaware courts reached opposite conclusions concerning the validity of an inter vivo... more Florida and Delaware courts reached opposite conclusions concerning the validity of an inter vivos trust). 5. Rules governing necessary and indispensable parties are m FED.
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