Law Commons^™

Federal Indian Law As Method, Matthew L. M. Fletcher

Articles

Morton v. Mancari is well-known in Indian law circles as a foundation for the tribal self-determination era, which is generally understood to have begun in the late 1960s and early 1970s. The case involved an Act of Congress that required the federal “Indian Office” (now called the Bureau of Indian Affairs) to grant preference in employment to “Indians.” The case is typically understood as the basis for analyzing how federal statutes that apply exclusively to Indian people do not implicate the anti-discrimination principles of the United States Constitution. This understanding of the case, while correct, is too narrow.

Une Histoire Pragmatique Du Politique, William J. Novak, Stephen W. Sawyer

Articles

Comme le montre ce numero, nous ne sommes guere en manque de tentatives recentes de repenser l'histoire du politique. En effet, deux generations d'historiens ont deja produit un grand nombre de nouvelles approches et de perspectives a partir desquelles il est maintenant possible d'etudier l'histoire politique a nouveaux frais. Dans le contexte historiographique americain, nous avons ete temoins d'une serie de nouvelles approches allant de ce que l'on a appele la « nouvelle histoire sociale politique » des annees 1970 a l'effort des sciences sociales pour « repenser l'Etat » (Bringing the State Back In) dans les annees 1980 et …

Capograssi, Imperdonabile, Andrew J. Cecchinato

Fellow, Adjunct, Lecturer, and Research Scholar Works

When reviewing the history of early twentieth century thought, it is not uncommon to read reflections concerning the crisis of contemporary states. Less frequent – but not unheard of – is coming across meditations regarding the very end of the state. Among the latter, those of Giuseppe Capograssi (1889-1956) stand out like a lightning flash, for the eschatological meaning they flare upon the relationship between statehood and the law. «All true research on the state is a profound meditation on its ending», he writes concluding the introduction of his first book in 1918. Like a seal yet to be broken, …

Of Rights And Regulation, Stephen W. Sawyer, William J. Novak

Book Chapters

This chapter explores the development of social provisioning as a matter not of right but of democratic administration in France and the United States in the nineteenth century. The authors take issue with conventional chronologies of rights development, which see civil and political rights being developed in the eighteenth and nineteenth centuries, with social rights appearing in the twentieth. Such categories and sequencing obscure the ways in which democratic administrations took the problem of social provisioning seriously. A history of socio-economic rights cannot be distinguished from the less formal technologies of socio-economic regulation that were an integral part of the …

Lin-Manuel Miranda And The Future Of Originalism, Richard A. Primus

Book Chapters

This chapter discusses how Lin Manuel Miranda's Hamilton: An American Musical is changing the future of originalism. Originalism in constitutional law has recently had a generally conservative valence not because the Founders were an eighteenth-century version of the Federalist Society, but because readings of Founding era sources that favored right-leaning causes were generally predominant in the community of constitutional lawyers. Since 2015, however, the millions of Americans who have listened obsessively to Hamilton's cast album or packed theaters to see the show in person have been absorbing a new vision of the Founding. The blockbuster musical narrative has retold America's …

Commonsense Consent, Roseanna Sommers

Articles

Consent is a bedrock principle in democratic society and a primary means through which our law expresses its commitment to individual liberty. While there seems to be broad consensus that consent is important, little is known about what people think consent is. This Article undertakes an empirical investigation of people’s ordinary intuitions about when consent has been granted. Using techniques from moral psychology and experimental philosophy, it advances the core claim that most laypeople think consent is compatible with fraud, contradicting prevailing normative theories of consent. This empirical phenomenon is observed across over two dozen scenariosspanning numerous contexts in which …

International Law And Theories Of Global Justice: Remarks, Steven R. Ratner, James Stewart, Jiewuh Song, Carmen Pavel

Articles

International law (IL) and political philosophy represent two rich disciplines for exploring issues of global justice. At their core, each seeks to build a better world based on some universally agreed norms, rules, and practices, backed by effective institutions. International lawyers, even the most positivist of them, have some underlying assumptions about a just world order that predisposes their interpretive methods; legal scholars have incorporated concepts of justice in their work even as their overall pragmatic orientation has limited the nature of their inquiries. Many philospophers, for their part, have engaged with IL to some extent—at a minimum recognizing that …

Christianity And The International Economic Order, Daniel A. Crane

Book Chapters

The relationship between Christianity and the global economic order is murky. The influence of certain Christian thinkers can be seen in certain aspects of the international economic system, but it would be difficult to sustain the case that the system pervasively reflects a Christian character. There is little ongoing engagement between formal Christian institutions (churches or church groups) and formal political institutions such as the WTO, IMF, or World Bank, because the work of elite global political institutions has become technical, technocratic, and specialized. At a retail level, Christians of course exert influence on the global economy in their capacities …

Democratic States Of Unexception: Towards A New Genealogy Of The American Political, William J. Novak, Stephen W. Sawyer, James T. Sparrow

Book Chapters

This chapter takes issue with the history and theory of exception along these three lines. The first section offers a critique of the idea of law at the heart of the theory of exception. By taking a closer look at the history and theory of law in early nineteenth-century America, it offers an alternative reading of the role of exception in Emerson’s America – a place and time in which the exception in law was anything but exceptional. The second section offers a critique of the idea of state and sovereignty at the heart of the theory of exception in …

Toward A History Of The Democratic State, William J. Novak, Stephen W. Sawyer, James T. Sparrow

Articles

Over the past generation, the history of the state has been experiencing a much-noted renaissance, especially in France and the United States. In the United States as late as 1986, Morton Keller complained to William Leuchtenburg in the Journal of American History: “To say that ‘there is much still to be learned about the nature of the State in America’ is … a major understatement. There is close to everything to be learned about the State.” In France as late as 1990, Pierre Rosanvallon’s powerful introduction to L’État en France suggested that an ambitious history of the state could not …

The Concept Of The State In American History, William J. Novak

Book Chapters

Debates about the state rage in contemporary America. On the right, libertarian and tea party rhetoric fulminates about shrinking the state or shutting down the government, frequently in hyperbolic terms like the Americans for Tax Reform notion of" drowning it in a bathtub." On the left, concern about the fate of the welfare state and an ever-expanding warfare and penal state produces equally impassioned retorts. Discussion of the American state-its nature, its size, and its uncertain future-dominates the political landscape as perhaps never before.

The Creation Of Authority In A Sermon By Saint Augustine, James Boyd White

Book Chapters

My way of honoring Joe today will not be to describe or extol his achievements directly but to try to show something of what I have learned from him, particularly in the way I approach a new text and problem, in this case the creation of authority in one of Augustine's sermons.

Lindbergh Baby Kidnapping; And Nebbia V. New York, Howard Bromberg

Book Chapters

Contributions by Howard J. Bromberg to The Thirties in America, a collection of short essays.

Patent Law, U.S., History Of., Howard Bromberg

Book Chapters

Contribution by Howard J. Bromberg to Great Lives from History: Inventors & Inventions

Deceit In War And Trade, William I. Miller

Book Chapters

This chapter offers “a genealogy on deceit in war and trade”. It starts with deceit in Ovid and the Old Testament and works its way all the way up to the present day, considering the deceptions of such famous tricksters as Odysseus, David, the Vikings, Machiavelli, William the Conqueror, even Montaigne. It then considers the practices of some famous deceivers in contemporary business culture, such as Bernie Ebbers, Dennis Koslowski, and Kenneth Lay.

Authority And Reality, Joseph Vining

Book Chapters

Imagination has been introduced as a term of art in discussion of the social and political world. Some years ago James Boyd White turned to it in The Legal Imagination, his monumental work on the foundations of secular law and legal practice. A prominent example of its use today is Charles Taylor's Modern Social Imaginaries, tracing changes in the common mind leading to what we now call modernity. The term can have a large scope and at the same time a rather definite meaning. "Imagination" is at the center of Mark Massa's comments on the contrarian position of the Catholic …

Ennobling Direct Democracy, Sherman J. Clark

Articles

In this essay, Professor Clark argues that we should be attentive to the effect that direct democracy might have on our public character. Building upon earlier work, Clark suggests that the initiative in particular threatens to debase us by undercutting a crucial character trait which might best be called "responsibility-taking." The bulk of this essay is devoted to explaining what this means, and why it matters. Why should we care about the effect of political processes on public character? Why is this particular trait important and worth preserving? How is it threatened by direct democracy? In conclusion, and by way …

Perceiving Imperceptible Harms (With Other Thoughts On Transitivity, Cumulative Effects, And Consequentialism), Donald H. Regan

Book Chapters

Many writers believe there can be cases which satisfy the following description: starting from an initial state of affairs, it is possible to make a series of changes, none of which alters the value of the state of affairs in any way, but such that the final state of affairs that results from the series of changes is worse than the initial state of affairs. I shall call the claim that there can be such cases the "ex nihilo" claim, since in a sense it asserts that the bad effects of the complete series of changes arise ex nihilo. Proponents …

Couples: Marriage, Civil Union, And Domestic Partnership, David L. Chambers

Book Chapters

In this country, during the last decades of the twentieth century, thousands of lesbians married other women and thousands of gay men married other men. Many of these couples recited traditional vows in churches and synagogues. Others have pledged to each other in their own backyards in words that they wrote themselves. But not one of these thousands of solemn occasions was recognized as creating a legally valid marriage. In the United States, each state has its own statute defining who can marry, and as far as the states were concerned, these couples were playing dress up. One state has …

Writing And Reading In Philosophy, Law, And Poetry, James Boyd White

Book Chapters

In this paper I will treat a very general question, the nature of writing and what can be achieved by it, pursuing it in the three distinct contexts provided by philosophy, law, and poetry.

My starting-point will be Plato's Phaedrus, where, in a wellknown passage, Socrates attacks writing itself: he says that true philosophy requires the living engagement of mind with mind of a kind that writing cannot attain. Yet this is obviously a paradox, for Socrates' position is articulated and recorded by Plato in writing. How then can we make sense of what Plato is saying and doing? What …

A Populist Critique Of Direct Democracy, Sherman J. Clark

Articles

It is often assumed that direct democratic processes - referenda and initiatives - offer the people a chance to speak more clearly than is possible through representative processes. Courts, commentators, and political leaders have defended or described direct democratic outcomes as the voice of the "people themselves." Because plebiscites allow the people to speak directly, without the potential distortion inherent in representation, they seem ideally responsive to popular will. Indeed, even critics of direct democracy appear to grant as much. Critics are quick to point out, of course, that actual plebiscites often fall far short of the ideal. Uneven voter …

The Uses Of Art: Medieval Metaphor In The Michigan Law Quadrangle, Ilene H. Forsyth

About the Buildings

Within the architectural diversity of Michigan's Ann Arbor campus, a campus with a spread and a variety as extended as that of the university community itself, there is a place apart: the Cook Law Quad. The distinct ambiance created by the quad's buildings seems at variance with the melange that marks the rest of the campus where the free growth of the university over a long period of time has resulted in structures of various styles and uneven levels of distinction. Yet the quad's special character is not simply a matter of its architectural unity, as is often claimed. There …

The Constitution As Literature, James Boyd White

Book Chapters

Although presumably no one would say that the Constitution offers its readers an experience that cannot be distinguished from reading a poem or a novel, there is nonetheless a sense in which it is a kind of highly imaginative literature in its own right (indeed its nature as law requires that this be so), the reading of which may be informed by our experience of other literary forms. But to say this may be controversial, and the first step toward understanding how such a claim can be made may be to ask what it is we think characterizes imaginative literature …

Response To Roger Cramton's Article, James Boyd White

Articles

I want to direct attention to only one of the many important issues raised by Professor Cramton's article, namely the peculiar division between academic and religious thought in our culture. In the academic world we tend to speak as though all participants in our conversations were purely rational actors engaged in rational debate; perhaps some people out there in the world are sufficiently benighted that they turn to religious beliefs or other superstitions, but that is not true of us or, if it is true, we hide it, and it ought not be true of them. Ours is a secular …

Legal Theory And The Problem Of Definition, Philip E. Soper

Reviews

Natural Law and Natural Rights is a refreshingly direct book about some decidedly difficult matters. It is also a book that refuses to do homage to the complexity of its subject by limiting the topics covered. Here is virtually a mini-treatise in moral philosophy, with illuminating discussions on the whole range of human value and on a good part of the related range of metaethics, legal theory, political theory, and the problems of methodology in the descriptive social sciences.

Commercial Instruments, The Law Merchant And Negotiability, Ralph W. Aigler

Articles

“Until recently apparently no serious attempt had been to make a comprehensive examination into the origins and history of commercial instruments or to explain the special doctrines attached to negotiability….

“The bill of exchange, it is said, developed as a bit of machinery to give effect to the medieval contract of cambium which was concerned with the special case of the exchange of money for money. With the growth of foreign trade the difficulties and dangers of payments multiplied. Naturally those whose business it was to exchange monies were resorted to in this connection. They, in turn, out of necessities …

Roman Law In Modern Life And Education, Joseph H. Drake

Articles

"This discussion might be entitled, an experiment in classical education and how it failed... It is in a way an Apologia pro Mea Vita Paedagogica. The excess of ego dixi et meus filius respondit in it may, therefore, perhaps be pardoned by a confession at the outset that it is an account of failure on the part of the speaker to solve a troublesome pedagogical question and a very satisfactory solution of the same problem by one of his colleagues in the Latin Department."