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Environmental Law In The Supreme Court: Highlights From The Marshall Papers, Robert V. Percival
Environmental Law In The Supreme Court: Highlights From The Marshall Papers, Robert V. Percival
Robert Percival
Justice Marshall served on the Court from 1967 until 1991. During that period, Congress passed all of the major federal environmental statutes and environmental regulation mushroomed. As a result, the Marshall papers reveal how the Court reached decisions that have shaped modern environmental law. The author, a former law clerk to former Justice Byron White and an associate professor of law at the University of Maryland, begins by describing the history of the Court's treatment of environmental disputes. He then discusses the steps the Justices take in deciding whether to accept cases for review; in reaching decisions on the merits …
The Clean Water Act And The Demise Of The Federal Common Law Of Interstate Nuisance, Robert V. Percival
The Clean Water Act And The Demise Of The Federal Common Law Of Interstate Nuisance, Robert V. Percival
Robert Percival
No abstract provided.
Who's Afraid Of The Precautionary Principle?, Robert V. Percival
Who's Afraid Of The Precautionary Principle?, Robert V. Percival
Robert Percival
The precautionary principle – the notion that lack of scientific certainty should not foreclose precautionary regulation – has become enormously popular in recent years, as reflected by its endorsement in many important international declarations and agreements. Despite its growing influence, the precautionary principle recently has come under fire by critics who argue that it is incoherent, potentially paralyzing, and that it will lead regulators to make bad choices. They maintain that society faces greater peril from overly costly regulations than from exposure to sources of environmental risks whose effect on human health and the environment is not fully understood at …
Who Sues For Divorce? From Fault Through Fiction To Freedom, Lawrence M. Friedman, Robert V. Percival
Who Sues For Divorce? From Fault Through Fiction To Freedom, Lawrence M. Friedman, Robert V. Percival
Robert Percival
No abstract provided.
A Tale Of Two Courts: Litigation In Alameda And San Benito Counties, Lawrence M. Friedman, Robert V. Percival
A Tale Of Two Courts: Litigation In Alameda And San Benito Counties, Lawrence M. Friedman, Robert V. Percival
Robert Percival
No abstract provided.
The Processing Of Felonies In The Superior Court Of Alameda County 1880-1974, Lawrence M. Friedman, Robert V. Percival
The Processing Of Felonies In The Superior Court Of Alameda County 1880-1974, Lawrence M. Friedman, Robert V. Percival
Robert Percival
No abstract provided.
Psychologising Jekyll, Demonising Hyde: The Strange Case Of Criminal Responsibility, Nicola Lacey
Psychologising Jekyll, Demonising Hyde: The Strange Case Of Criminal Responsibility, Nicola Lacey
Nicola Lacey
Psychologising Jekyll, Demonising Hyde: The Strange Case of Criminal Responsibility
Nicola Lacey
This paper puts the famous story of Jekyll and Hyde to work for a specific analytic purpose. The question of responsibility for crime, complicated by the divided subjectivity implicit in Mr. Hyde’s appearance, and illuminated by Robert Louis Stevenson’s grasp of contemporary psychiatric, evolutionary and medical thought as promising new technologies for effecting a distinction between criminality and innocence, is key to the interest of the story. I argue that Jekyll and Hyde serves as a powerful metaphor both for specifically late Victorian perplexities about criminality and criminal …
Science, Public Bioethics, And The Problem Of Integration, Orlando Carter Snead
Science, Public Bioethics, And The Problem Of Integration, Orlando Carter Snead
O. Carter Snead
Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decisionmaking. It has captured the attention of officials in every branch of government, as well as the American public. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decisionmaking) continue to roil the public square.
This article examines the question of how scientific methods and principles can and …
Reconciling Fair Use And Trademark Use, Margreth Barrett
Reconciling Fair Use And Trademark Use, Margreth Barrett
Margreth Barrett
This article looks to early common law, the legislative history of the Lanham Act, and public policy considerations to evaluate the relationship of the Lanham Act’s trademark use requirement to the trademark fair use defense. Although a number of commentators have suggested the contrary, I conclude that requiring infringement plaintiffs to demonstrate the defendant’s “trademark use” as part of its case-in-chief is consistent with the fair use defense, which waives liability if the defendant can demonstrate that its use was “in good faith” and “otherwise than as a trademark” only to describe its goods or services. These two “use” doctrines …
About Time: The Timeliness Of Habeas Corpus And An Exceptional Circumstance In Boumediene V. Bush, Benjamin Lozano
About Time: The Timeliness Of Habeas Corpus And An Exceptional Circumstance In Boumediene V. Bush, Benjamin Lozano
Benjamin J Lozano
In wartime states of emergency, the Supreme Court has historically held that a constitutional entitlement to habeas review is neither predicated on the length of detention nor the timeliness of due process, but rather is objective, concrete, and atemporal. The question of wartime habeas corpus has therefore always been an ontological question, exclusively determined by the corresponding categories of subject and space. However, this paper argues that a surreptitious shift in methodology buried inside the ostensible precedent of Boumediene v. Bush should not be overlooked, for the ruling signals the inaugural moment whereby the length and indefinite duration (i.e. the …
Fast-Fish, Loose-Fish: How Whalemen, Lawyers, And Judges Created The British Property Law Of Whaling, Robert Deal
Fast-Fish, Loose-Fish: How Whalemen, Lawyers, And Judges Created The British Property Law Of Whaling, Robert Deal
Robert C. Deal
Anglo-American whalemen in the eighteenth and nineteenth centuries used customs largely of their own creation to resolve disputes at sea over contested whales. These customs were remarkably effective as litigation was rare and violence even rarer. Legal scholars such as Robert Ellickson have correctly pointed to these customs as an example of how close knit communities settle disputes without recourse to formal legal institutions or even knowledge of the applicable law. Ellickson’s belief, however, that these whaling customs were universally followed at sea and were – in turn – adopted by courts, is not entirely accurate. While courts often deferred, …
How The Cleveland Bar Became Segregated: 1870-1930, Robert N. Strassfeld
How The Cleveland Bar Became Segregated: 1870-1930, Robert N. Strassfeld
Robert N. Strassfeld
Abstract
Paper Title: How the Cleveland Bar Became Segregated: 1900-1930
This article examines the changing perimeters of professional opportunity and the professional choices made by Cleveland’s African American lawyers in the early twentieth century. At the turn of the century, the Cleveland bar could fairly be described as racially integrated. The openness of the bar and the response of African American lawyers shaped the day-to-day professional lives of those lawyers. This openness manifested itself in a number of interracial law practices, in a client base for black lawyers that was predominantly white, in the court appointment practices of white judges, …
Behavioral Economic Issues In American And Islamic Marriage & Divorce Law, Ryan M. Riegg
Behavioral Economic Issues In American And Islamic Marriage & Divorce Law, Ryan M. Riegg
Ryan M. Riegg
A House Divided: Earl Caldwell, The New York Times, And The Quest For A Testimonial Privilege, Eric B. Easton
A House Divided: Earl Caldwell, The New York Times, And The Quest For A Testimonial Privilege, Eric B. Easton
Eric B Easton
In the 1972 case of Branzburg v. Hayes, the Supreme Court held that the First Amendment does not protect journalists who refuse to reveal their confidential sources or newsgathering product in response to a federal grand jury subpoena. That decision has remained vital for 35 years and has reverberated through a number of recent high-profile cases. Despite some form of protection in nearly every state court, reporters haled before a federal judge may have no recourse save prison. Devastating as Branzburg has been for the so-called “journalist’s privilege,” its negative impact has been far broader. Branzburg is one of Supreme …
The Innkeeper's Tale: The Legal Development Of A Public Calling, David S. Bogen
The Innkeeper's Tale: The Legal Development Of A Public Calling, David S. Bogen
David S. Bogen
No abstract provided.
Why The Supreme Court Lied About Plessy, David S. Bogen
Why The Supreme Court Lied About Plessy, David S. Bogen
David S. Bogen
This article examines the citation in Plessy of a dozen cases that the Court said held racial segregation statutes in transport to be constitutional. It argues that none of those twelve cases upheld a segregation statute, but were largely decisions upholding decisions by the carrier under the common law. Justice Brown knew that the cases did not uphold segregation statutes, but he went ahead and used them to bury opposition under the weight of precedent. He knew that he was unlikely to be challenged, and he believed that the common law and the Constitution involved the same principles. The conflation …
Neoclassicism And The Separation Of Ownership And Control, Herbert Hovenkamp
Neoclassicism And The Separation Of Ownership And Control, Herbert Hovenkamp
Herbert Hovenkamp
NEOCLASSICISM AND THE SEPARATION OF OWNERSHIP AND CONTROL Herbert Hovenkamp ABSTRACT The separation of ownership and control is a phrase that will forever be associated with Adolf A. Berle and Gardiner C. Means The Modern Corporation and Private Property (1932), as well as with Institutionalist economics, Legal Realism, and the New Deal. Neoclassical economists have generally been sharply critical, both of the historical facts that Berle and Means purported to describe and of the conclusions that they drew. In fact, however, the separation of ownership and control had already been an essential element of the neoclassical theory of corporate governance …
Free At Last! Anti-Subordination And The Thirteenth Amendment, Rebecca Zietlow
Free At Last! Anti-Subordination And The Thirteenth Amendment, Rebecca Zietlow
Rebecca E Zietlow
Notwithstanding the powerful symbolism that liberty has in the American psyche, liberty is largely absent from our late Twentieth Century understanding of civil rights, which instead is based in the Equal Protection Clause and its promise of formal equality. People of color and women of every race have made significant advances under the Equal Protection model of equality, but they continue to lag behind whites and men under virtually every economic index. This paper argues for an alternative model of equality, an anti-subordination model, which allows decision-makers to focus on the material conditions that contribute to inequality in our society, …
Learning From Our History: Evaluating The Modern Housing Finance Market In Light Of Ancient Principles Of Justice, Brian M. Mccall
Learning From Our History: Evaluating The Modern Housing Finance Market In Light Of Ancient Principles Of Justice, Brian M. Mccall
Brian M McCall
Since I first accepted an invitation to join this symposium, the subprime mortgage crisis has exploded into a systemic financial crisis. Analysis and pundits alike seem on a quest to outdo each other in using dramatic phrases to describe its historic proportions. The causes of a crisis so large must have a multiplicity of causes lying in the realms of bank regulation and supervision, the operation and regulation of the securitization market and the derivatives and insurance markets. Yet, the root and spark of the various financial reverberations initiated in the home mortgage finance market. My presentation will focus on …
Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian M. Mccall
Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian M. Mccall
Brian M McCall
This review essay examines the jurisprudence of Ronald Dworkin as presented in the anthology: Exploring Law's Empire: The Jurisprudence of Ronald Dworkin, edited by Scott Hershovitz. Notwithstanding the influence Dworkin's jurisprudence has had on the reconsideration of moral reasoning within legal reasoning, the essay concludes that at its foundation Dworkin's jurisprudence is based upon Legal Positivist principles. The essay first summarizes the jurisprudence of Dworkin and then contrasts his jurisprudence with traditional Natural Law Legal Theory and finally exposes the Positivist foundations of Dworkin's Legal Empire.
It's Just Secured Credit: The Natural Law Case In Defense Of Some Forms Of Secured Credit, Brian M. Mccall
It's Just Secured Credit: The Natural Law Case In Defense Of Some Forms Of Secured Credit, Brian M. Mccall
Brian M McCall
For decades scholars have been debating whether of not the institution of security can be explained and justified. After much discussion from varying points of view and hermeneutics, although some insights have been gained, the answer to the original question remains unresolved. This article attempts to bring new life to this debate by building on Professors Mooney and Harris’ idea of security interest as property right while taking account of the valid concerns of scholars such as Elizabeth Warren and Lyn Lopucki that certain results produced by the current system seem unjust. This reconciliation of these two strands of secured …
The Dramas Of Criminal Law: Chapter [?] Of The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster
The Dramas Of Criminal Law: Chapter [?] Of The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster
Mark Fenster
This essay is a chapter of a book-in-progress on the legal and cultural theory of the legal realist Thurman Arnold, who was prominent as a Yale law professor from 1932 until he joined the Justice Department as head of its antitrust division in 1938. Arnold's work focused on the symbolic role of law in governance, both as a means by which the state gains legitimacy and as a means by which those who oppose a political majority attempt to frame their opposition. As public law that defines and enforces substantive prohibitions, criminal law and procedure allowed Arnold to develop some …
Fitting Punishment, Juliet P. Stumpf
Fitting Punishment, Juliet P. Stumpf
Juliet P Stumpf
Proportionality is conspicuously absent from the legal framework for immigration sanctions. Immigration law relies on one sanction – deportation – as the ubiquitous penalty for any immigration violation. Neither the gravity of the violation nor the harm that results bears on whether deportation is the consequence for an immigration violation. Immigration law stands alone in the legal landscape in this respect. Criminal punishment incorporates proportionality when imposing sentences that are graduated based on the gravity of the offense; contract and tort law provide for damages that are graduated based on the harm to others or to society. This Article represents …