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Showing papers in "American Journal of Legal History in 2006"



Journal ArticleDOI
TL;DR: In this article, the aftermath of Roe v. Wade affected fetuses, teenage girls, Prisoners, and Ordinary Women, 1980 to the present, and the Human Rights Era: The Rise of Choice, the Contours of Backlash, 1960-1980, Revitalizing Hierarchies.
Abstract: Introduction: What Is Reproductive Politics? 1 Racializing the Nation: From the Declaration of Independence to the Emancipation Proclamation, 1776-1865 2 Sex in the City: From Secrecy to Anonymity to Privacy, 1870s to 1920s 3 No Extras: Curbing Fertility during the Great Depression 4 Central Planning: Managing Fertility, Race, and Rights in Postwar America, 1940s to 1960 5 The Human Rights Era: The Rise of Choice, the Contours of Backlash, 1960-1980 6 Revitalizing Hierarchies: How the Aftermath of Roe v. Wade Affected Fetuses, Teenage Girls, Prisoners, and Ordinary Women, 1980 to the Present Notes Acknowledgments Index About the Author

116 citations


Journal ArticleDOI
TL;DR: In this article, the authors present a collection of non-academic sites of Nineteenth-Century Criminological Discourse: 1. The French Revolution and the origins of French criminology Marc Renneville 2. Unmasking counterhistory: an introductory exploration of criminality and the Jewish question Michael Berkowitz 4. The criminologists' gaze at the underworld: toward an archaeology of criminological writing Peter Becker Part II.
Abstract: Part I. Non-academic Sites of Nineteenth-Century Criminological Discourse: 1. The French Revolution and the origins of French criminology Marc Renneville 2. Murderers and 'reasonable men': the 'criminology' of the Victorian Judiciary Martin J. Wiener 3. Unmasking counterhistory: an introductory exploration of criminality and the Jewish question Michael Berkowitz 4. Moral discourse and reform in urban Germany, 1880s-1914 Andrew Lees 5. The criminologists' gaze at the underworld: toward an archaeology of criminological writing Peter Becker Part II. Criminology as Scientific and Political Practice in the Late Nineteenth and Early Twentieth Centuries: 6. Cesare Lombroso and Italian criminology: theory and politics Mary S. Gibson 7. Criminal anthropology: its reception in the United States and the nature of its appeal Nicole Hahn Rafter 8. From the 'atavistic' to the 'inferior' criminal type: the impact of the Lombrosian theory of the born criminal on German psychiatry Mariacarla Gadebusch Bondio 9. Criminology, hygienism, and eugenics in France, 1870-1914: the medical debates on the elimination of 'incorrigible' criminals Laurent Muccielli 10. Crime, prisons, and psychiatry: reconsidering problem populations in Australia, 1890-1930 Stephen Garton 11. Positivist criminology and state formation in modern Argentina, 1890-1940 Ricardo D. Salvatore 12. The birth of criminology in modern Japan Yoji Nakatani Part III. The Making of the Criminologist: 13. The international congresses of criminal anthropology: shaping the French and international criminological movement, 1886-1914 Martine Kaluszynski 14. Making criminologists: tools, techniques, and the production of scientific authority David G. Horn 15. 'One of the strangest relics of a former state': tattoos and the discourses of criminality in Europe, 1880-1920 Jane Caplan 16. What criminals think about criminology: French criminals and criminological knowledge at the end of the nineteenth century Philippe Artieres 17. Talk of the town: the murder of Lucie Berlin and the production of local knowledge Peter Fritzsche Part IV. Criminology in the First Half of the Twentieth Century: The Case of Weimar and Nazi Germany: 18. Criminology in Weimar and Nazi Germany Richard F. Wetzell 19. The Biology of mortality: criminal biology in Bavaria, 1924-33 Oliver Liang 20. Criminals and their analysts: psychoanalytic criminology in Weimar Germany and the first Austrian Republic Gabriel N. Finder 21. Drinking and crime in modern Germany Geoffrey J. Giles.

34 citations



Journal ArticleDOI
TL;DR: O'Neill as mentioned in this paper argued that recent appeals to the origin of the Constitution in Supreme Court decisions and commentary, especially by Justices Antonin Scalia and Clarence Thomas, continue an established pattern in American history.
Abstract: This book explains how the debate over originalism emerged from the interaction of constitutional theory, U.S. Supreme Court decisions, and American political development. Refuting the contention that originalism is a recent concoction of political conservatives like Robert Bork, Johnathan O'Neill asserts that recent appeals to the origin of the Constitution in Supreme Court decisions and commentary, especially by Justices Antonin Scalia and Clarence Thomas, continue an established pattern in American history. Originalism in American Law and Politics is distinguished by its historical approach to the topic. Drawing on constitutional commentary and treatises, Supreme Court and lower federal court opinions, congressional hearings, and scholarly monographs, O'Neill's work will be valuable to historians, academic lawyers, and political scientists.

23 citations



Journal ArticleDOI
Stephen Siegel1
TL;DR: In this paper, the authors argue that strict scrutiny did not originate in equal protection cases and migrated from the First Amendment to the Equal Protection Clause in the late 1960s, and that the compelling state interest standard was the last component to make the move.
Abstract: This article argues that strict scrutiny did not originate in equal protection cases. Rather, it originated in the First Amendment in the late 1950s and early 1960s and migrated from there to the Equal Protection Clause in the late-1960s. The Article begins by discussing strict scrutiny analytically, situating it as one of many doctrines through which the Supreme Court gives heightened protection to favored constitutional interests. It then traces the origin of strict scrutiny's compelling state interest requirement to the First Amendment. It shows that the compelling state interest test initially appeared in First Amendment litigation in 1957 and that its birthing process was not complete until 1963. At that time, the compelling interest standard coalesced with the First Amendment's narrow tailoring requirement, which was decades older, to form modern strict scrutiny. The Article also argues that it took another six years for the component parts of strict scrutiny to migrate from the First Amendment to the Equal Protection Clause. The compelling state interest standard was the last component to make the move. When it did, strict scrutiny rapidly blossomed into one of the late-twentieth century's most fundamental constitutional doctrines. In addition to establishing the First Amendment origin of the compelling state interest test and strict scrutiny, this Article discusses the revised history for the light it sheds on strict scrutiny's rationale, arguing that strict scrutiny began as a tool of cost-benefit analysis, not as a means to ferret out illicit governmental motive. It also says the revised history supports the view that over time the Court has shifted the Equal Protection Clause's ?core value? from a proscription of racial subordination to forbidding racial classification.

17 citations


Journal ArticleDOI
TL;DR: In this paper, the authors examined the theoretical development of proprietary and possessory concepts in the ius commune as it would have been understood in England in the late twelfth century, taking into account the Liber pauperum and the early ordines as well as reports of ecclesiastical court cases.
Abstract: Much has been written on the possible influence of Roman or canon law on the early English common law of property. Maitland thought that the canonist's actio spolii was the inspiration for the assize of novel disseisin. Sutherland argued that the assize borrowed from the Roman interdict unde vi. Milsom, by contrast, thinks that the early common-law writs must be understood within a feudal framework, and that the early common law took nothing from Roman law than the Latin language. This Article offers a new perspective on ownership and possession in the early common law. It examines the theoretical development of proprietary and possessory concepts in the ius commune as it would have been understood in England in the late twelfth century, taking into account the Liber pauperum and the early ordines as well as reports of ecclesiastical court cases. After surveying the current debate, the Article then turns to the advowson writs, which have not yet been studied as a possible example of Roman law influence. Finding some evidence of the ownership/possession distinction in the advowson writs, the Article comes to the conclusion that the possibility of influence from the ius commune is greater than Milsom thinks.

5 citations





Journal ArticleDOI
TL;DR: The first Justice John Marshall Harlan is famous for his preternatural ability to articulate the ideals inherent in the Constitution before the nation fully recognized them as mentioned in this paper, and none of his opinions better justifies his prophetic reputation than his most famous dissent in Plessy v. Ferguson.
Abstract: The first Justice John Marshall Harlan is famous for his preternatural ability to articulate the ideals inherent in the Constitution before the nation fully recognized them.1 Although the Supreme Court would later validate the principles Harlan expressed in many of his passionate dis sents in favor of the rights of freed slaves,2 none of his opinions better justifies his prophetic reputation than his most famous dissent in Plessy v. Ferguson? While the opinion of the Court endorsed the doctrine of "sepa rate but equal," Harlan predicted that the decision would one day be regarded as "more pernicious than... Dred Scott,,"4 In language later echoed during the Civil Rights Movement, he declared that the "Constitution is 'color-blind,' and neither knows nor tolerates classes among citizens."5 Hence it could not tolerate a doctrine which allowed the state to separate citizens on the basis of race. Less well known, however, is that near the end of a dissent which passionately endorsed racial equality in the eyes of the law, Harlan observed "[t]here is a race so different from our own that we do not per mit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race."6 Two legal scholars, Gabriel Chin and Earl Maltz have examined this seemingly anomalous phrase, as well as Harlan's jurisprudence regarding the rights of Chinese immigrants, and argued that Harlan's attitudes toward the Chinese was anything but "color-blind."7 Harlan approved or joined opinions which questionably




Journal ArticleDOI
TL;DR: Hobson et al. as mentioned in this paper published Correspondence and Papers, and Selected Judicial Opinions, Janaury 1820-December 1823, with addendum, June 1783-January 1829.
Abstract: Vol. 1. Correspondence and Papers, November 10, 1775-June 23, 1788, and Account Book, September 1783-June 1788. Edited by Herbert A. Johnson, Charles T. Cullen, and Nancy G. Harris. 1974. xlvi, 448 pp. $80.00 (cloth). Vol. 2. Correspondence and Papers, July 1788-December 1795, and Account Book, July 1788-December 1795. Edited by Charles T. Cullen, Herbert A. Johnson, Joanne M. Wood, and Susan H. Elias. 1977. xxxvi, 547 pp. $80.00 (cloth). Vol. 3. Correspondence and Papers, January 1796-December 1798. Edited by William C. Stinchcombe, Charles T. Cullen, and Leslie Tobias. 1979. xxx, 553 pp. $80.00 (cloth). Vol. 4. Correspondence and Papers, January 1799-October 1800. Edited by Charles T. Cullen and Leslie Tobias. 1984. xxx, 365 pp. $80.00 (cloth). Vol. 5. Selected Law Cases, 1784-1800. Edited by Charles F. Hobson, Fredrika J. Teute, George H. Hoemann, and Ingrid M. Hillinger. 1987. lxix, 583 pp. $80.00 (cloth). Vol. 6. Correspondence, Papers, and Selected Judicial Opinions, November 1800-March 1807. Edited by Charles F. Hobson, Fredrika J. Teute, and Laura S. Gwilliam. 1990. xlv, 567 pp. $80.00 (cloth). Vol. 7. Correspondence, Papers, and Selected Judicial Opinions, April 1807 December 1813. Edited by Charles F. Hobson, Suzanne E. Coffman, Mark A. Mastromarino, and Laura S. Gwilliam. 1993. xxxvii, 445 pp. $80.00 (cloth). Vol. 8. Correspondence, Papers, and Selected Judicial Opinions, March 1814-December 1819. Edited by Charles F. Hobson and Laura S. Gwilliam. 1995. xxxvii, 421 pp. $80.00 (cloth). Vol. 9. Correspondence, Papers, and Selected Judicial Opinions, Janaury 1820-December 1823. Edited by Charles F. Hobson, Laura S. Gwilliam, Susan Holbrooke Perdue, and Robert W. Smith. 1998. xxxviii, 396 pp. $80.00 (cloth). Vol. 10. Correspondence, Papers, and Selected Judicial Opinions, January 1824-April 1827. Edited by Charles F. Hobson, Susan Holbrooke Perdue, and Robert W. Smith. 2000. xlii, 454 pp. $80.00 (cloth). Vol. 11. Correspondence, Papers, and Selected Judicial Opinions, April 1827-December 1830. Edited by Charles F. Hobson, Susan Holbrook Perdue, and Joan S. Lovelace. 2002. xlii, 432 pp. $80.00 (cloth). Vol. 12. Correspondence, Papers, and Selected Judicial Opinions, January 1831-July 1835, with Addendum, June 1783-January 1829. Edited by Charles F. Hobson and Joan S. Lovelace. 2006.1, 603 pp. $80.00 (cloth).