Legal History – Page 28 – Marquette University Law School Faculty Blog

The Interstate Commerce Act: A Final Convocation

Post author:Joseph D. Kearney
Post published:August 13, 2012
Post category:Business Regulation Legal History Public

Earlier this year I observed the 125th anniversary of the Interstate Commerce Act, among the most important statutes that Congress has ever enacted. I allowed that a future issue of the Marquette Law Review would publish essays by a number of leading scholars concerning the Act and its legacy. With the summer issue of the Marquette Law Review now out, that future is now.

The remembrance is titled “125 Years Since the Interstate Commerce Act: A Symposium in the Form of a Final Convocation.” As I explain in my Foreword (“The Last Assembly of Interstate Commerce Act Lawyers”), the essays, collectively available at the link at the beginning of this paragraph, are by an impressive collection of scholars:

James W. Ely, Jr., the emeritus Milton R. Underwood Professor of Law and emeritus Professor of History at Vanderbilt University, recalls “The Troubled Beginning of the Interstate Commerce Act”;
Randal C. Picker, the Paul and Theo Leffmann Professor of Commercial Law at the University of Chicago Law School, writes of the interplay between the Act and the antitrust law enacted only three years later, in “The Interstate Commerce Act and the Sherman Act: Playing Railroad Tycoon”;
Thomas W. Merrill, who is Columbia University’s Charles Evans Hughes Professor of Law, discusses the unusual phenomenon of administered contracts in the Act’s regulatory scheme, suggesting that the form of regulation was more impressive than the fact (in “The Interstate Commerce Act, Administered Contracts, and the Illusion of Comprehensive Regulation”);
Paul Stephen Dempsey, Tomlinson Professor of Global Governance in Air & Space Law and Director of the Institute of Air & Space Law at McGill University, focuses on the ICC as an agency, taking us broadly from its creation to its demise, in “The Rise and Fall of the Interstate Commerce Commission: The Tortuous Path from Regulation to Deregulation of America’s Infrastructure”;
Richard D. Cudahy, Senior Judge of the U.S. Court of Appeals for the Seventh Circuit (whose scholarly and judicial career was recently celebrated by the Yale Journal on Regulation, but no link is available), points us to the future, sketching the possible relevance of the Interstate Commerce Act’s paradigm for modern debates over regulation (“The Interstate Commerce Act as a Model of Regulation”); and
James B. Speta, Professor of Law at Northwestern University (and my fellow editor of this symposium), concludes the project with a critical assessment of the Act’s pertinence in an area—namely, telecommunications—with almost as much importance to the twenty-first century as the railroads (which the Act was passed to control) possessed in the nineteenth: “Supervising Discrimination: Reflections of the Interstate Commerce Act in the Broadband Debate.”

Most of these essays are short, and each is an engaging assessment of an act whose legacy can be felt today, not only in the general fact of the administrative state whose creation began with the Interstate Commerce Act but also in specific debates (as Prof. Speta demonstrates) about regulation today. We invite you to read the essays.

Parking Garage Quietly Marks the 225th Anniversary of the Northwest Ordinance

Post author:J. Gordon Hylton
Post published:August 5, 2012
Post category:Constitutional Law Federal Law & Legal System Legal History Marquette Law School Public

This post is authored by J. Gordon Hylton and Jane Casper.

July 13, 2012 marked the 225th anniversary of the signing of the Northwest Ordinance.

As some users of the Eckstein Hall Parking Garage know, excerpts from the text of the 1787 Northwest Ordinance are transposed on the walls of the Tory Hill/Clybourn Street floor of the garage and on the elevator doors on the same level. (The Magna Charta excerpts are on the walls of the underground garage’s other level.)

The Northwest Ordinance was one of the first landmarks of constitutional government in the United States. It “organized” the Northwest Territory, the first United States territory, and it set down a series of guidelines that would dramatically affect the development of the “western” United States.

The Northwest Territory included the present day states of Ohio, Indiana, Illinois, Michigan, Wisconsin, and part of Minnesota, and its passage was made possible by the willingness of eastern states, particularly Virginia, to cede their western land claims to the national government.

The Ordinance dictated that new states would be created from the Territory when the population warranted; it abolished African-American slavery in the region during the territorial stage; it propagated the first bill of rights issued by the United States government; it committed the policy of the United States to the support of public schools (and religion generally); and it established the “gridded township” system of development advocated by Thomas Jefferson that defines to political organization of states like Wisconsin to this very day.

At the same time the Congress was enacting the Northwest Ordinance in New York City, our so-called “Founding Fathers” were meeting in Philadelphia and were in the process of drafting the Constitution that would replace the Articles of Confederation. That the Northwest Ordinance was unaffected by the ratification of the new Constitution was confirmed on August 7, 1789, when new President George Washington signed into law a re-enacted Northwest Ordinance (which contained only minor alterations).

Plans are in the works for a festive event in the summer of 2014 to celebrate the 225th anniversary of the signing of the re-enacted Ordinance.

Reviewing John Nichols’ Uprising: How Wisconsin Renewed the Politics of Protest, from Madison to Wall Street

Post author:Lisa A. Mazzie
Post published:August 1, 2012
Post category:Civil Rights Constitutional Law First Amendment Labor & Employment Law Legal History Public

What is it that is swelling the ranks of the dissatisfied? Is it a growing conviction in state after state, that we are fast being dominated by forces that thwart the will of the people and menace representative government?

Robert M. LaFollette, July 4, 1897, Mineral Point, Wis.

With that quote, John Nichols begins the first chapter of his unapologetically biased book Uprising: How Wisconsin Renewed the Politics of Protest, from Madison to Wall Street (2012). Nichols, The Nation’s Washington correspondent and an associate editor of Madison’s Capital Times newspaper, recounts the protests in Madison and around the state in early 2011 and analyzes their importance in renewing a spirit of protest that spread from Madison to, ultimately, Manhattan.

Just as Nichols is not an unbiased author, I am not an unbiased reader. What Nichols writes about brings back vivid memories of weekends around the capitol square, in sun as well as in snow and cold, as part of the massive, diverse, palpably energetic crowds that marched around the square in February and March 2011. Uprising is not a chronological account of the protests; rather, Nichols organizes thematically, beginning with the beginning: the cold mid-February day, one day after Governor Scott Walker announced his 144-page budget repair bill that contained provisions that went far beyond repairing the budget to stripping collective bargaining rights of public employees. On that day, Nichols says, fifty members of UW Madison’s Teaching Assistants’ Association (TAA) gathered in front of UW Madison’s Memorial Union and protested (4). Two days later, Nichols tells us, more than 1,000 TAA members marched to the capitol. They were joined each day thereafter by hundreds and then thousands of others from all walks of life – union and non-union members, public and private employees alike – and they continued marching.

How and why what fifty or so students started became an incredible historical event is chronicled in Nichols’ subsequent chapters.