Law Commons^™

Switching Time And Other Thought Experiments: The Hughes Court And Constitutional Transformation, Richard D. Friedman

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For the most part, the Supreme Court's decisions in 1932 and 1933 disappointed liberals. The two swing Justices, Chief Justice Charles Evans Hughes and Justice Owen J. Roberts, seemed to have sided more with the Court's four conservatives than with its three liberals. Between early 1934 and early 1935, however, the Court issued three thunderbolt decisions, all by five-to-four votes on the liberal side and with either Hughes or Roberts writing for the majority over the dissent of the conservative foursome: in January 1934, Home Building & Loan Ass'n v. Blaisdell' severely limited the extent to which the Contracts Clause …

A Reaffirmation: The Authenticity Of The Roberts Memorandum, Or Felix The Non-Forger (Justices Felix Frankfurter And Owen J. Roberts), Richard D. Friedman

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In the December 1955 issue of this Law Review, Justice Felix Frankfurter published a tribute to his late friend and colleague, Owen J. Roberts.' The tribute centered on what Frankfurter claimed was the text of a memorandum that Roberts wrote in 1945 to explain his conduct in the critical minimum wage cases of 1936 and 1937, Morehead v. New York ex rel. Tipaldo2 and West Coast Hotel Co. v. Parrish.' Scholars have often challenged the adequacy of Roberts's account of why he cast decisive votes for the conservatives in Tipaldo and for the liberals in West Coast Hotel.4 Until recently, …

Interpreting Oriental Cases: The Law Of Alterity In The Colonial Courtroom, Kunal Parker

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No abstract provided.

The Romance Of Revenge: Capital Punishment In America, Samuel R. Gross

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On February 17, 1992, Jeffrey Dahmer was sentenced to 15 consecutive terms of life imprisonment for killing and dismembering 15 young men and boys (Associated Press 1992a). Dahmer had been arrested six months earlier, on July 22, 1991. On January 13 he pled guilty to the fifteen murder counts against him, leaving open only the issue of his sanity. Jury selection began two weeks later, and the trial proper started on January 30. The jury heard two weeks of testimony about murder, mutilation and necrophilia; they deliberated for 5 hours before finding that Dahmer was sane when he committed these …

Caesar Would Have Arbitrated, Hugh D. Spitzer

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With the recent increase in mandatory arbitration for small civil disputes and voluntary arbitration for much larger cases, it is easy to suppose that dispute resolution by someone other than a government- appointed judge is a novel, imaginative creation of the modern legal system.

But for the Romans who lived in Julius Caesar's time, indeed from several hundred years B.C. to at least 300 A.D., most civil matters never went to an official "judge." Instead, almost all such disputes were resolved by a lay arbitrator under a remarkably flexible and enduring system of civil procedure that worked as effectively as …

Populism, Law, And The Corporation: The 1897 Kansas Supreme Court, James L. Hunt

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No abstract provided.

Exchange Loss Damages And The Uniform Foreign-Money Claims Act: The Emperor Hasn't All His Clothes, Ronald A. Brand

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In 1989, the National Conference of Commissioners on Uniform State Laws approved a new Uniform Foreign-Money Claims Act. This Act is designed to change and clarify the law regarding judgments on obligations denominated in a foreign currency. It does so by recognizing that old rules preventing judgment in a foreign currency - developed in times of a strong dollar - are inappropriate. Unfortunately, in seeking fairness for plaintiffs when the U.S. dollar is weak, the Act replaces rigid old rules with stiff new rules that fail to address the basic issue of appropriate damages for exchange rate losses. While the …

Law And Society In A New South Community: Durham County, North Carolina, 1898-1899, James L. Hunt

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No abstract provided.

Of Outlaws, Christians, Horsemeat, And Writing: Uniform Laws And Saga Iceland, William I. Miller

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Our word law is a loanword from Old Norse.1 It makes its earliest appearances in Old English manuscripts in the late tenth century. At that time the Old English word for law was, believe it or not, æ, written as a digraph called "ash." Now most readers, myself included, tend to experience anxiety when we confront a ligatured vowel like ae and so we untie it as a prelude to getting rid of it altogether: we turn an aesthete2 into an aesthete before finally humiliating him (or her) as an esthete, all to resolve our nervousness. King Æthelred the Unready …

Ex Proprio Vigore, James J. White

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The National Conference of the Commissioners on Uniform State Laws (NCCUSL) is a legislature in every way but one. It drafts uniform acts, debates them, passes them, and promulgates them, but that passage and promulgation do not make these uniform acts law over any citizen of any state. These acts become the law of the various states only ex proprio vigore - only if their own vitality influences the legislators of the various states to pass them.

Absolute Priority And New Value, James J. White

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This paper is based on a lecture given on December 6, 1990 ast the Second Annual Robert E. Krinock Lecture. The absolute priority rule is a specific application of the broader doctrine that reorganization plans must be "fair and equitable." Both have their origins in the railroad reorganization cases of the early 20th century. The general doctrine is now codified in section 1129(b)(2) of the Bankruptcy Code and the rule is codified in subsection 1129(b)(2)(B)(ii) which provides that the debtor must pay a nonconsenting class of unsecured creditors in full or "the holder of any claim or interest that is …

Redefining Radicalism: A Historical Perspective, Walter J. Walsh

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This Essay suggests that Unger's attack on formalism and objectivism is not so new. After noting the early contributions of Thomas Hobbes and Jeremy Bentham, it does so by particular reference to the critique of William Sampson (1764-1836), the banished Irish civil rights lawyer and political activist, who led an intellectual charge upon the American common law more than a century and a half ago. It also suggests that by depicting the common law as incompatible with the egalitarian ideal of a democratic republic, Sampson sowed the seeds of a distinct radical tradition of which the critical legal studies movement …

The Third Best Choice: An Essay On Law And History, Theodore Y. Blumoff

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The thesis of this Essay is that our use of history is as essential and unavoidable as conclusive answers are irretrievable. Irretrievability exists whether the historical reality sought results from a survey of traditional historical materials in an effort to recapture original understanding, or from a common-law effort to discover the Court's own history of an issue. In either case, however, the need to attempt to recover historical truths is perceived as essential. I subscribe, for the most part, to the contextualist premise that we cannot recover sufficient historical data on issues that matter to make history determinate in the …

The Public Domain, Jessica D. Litman

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This article examines the public domain by looking at the gulf between what authors really do and the way the law perceives them. Part I outlines the basics of copyright as a species of property and introduces the public domain's place within the copyright scheme. Copyright grants authors" ' rights modeled on real property in order to encourage authorship by providing authors with markets in which they can seek compensation for their creations. Because parcels of authorship are intangible, however, the law faces *problems in determining the ownership and boundaries of its property grants. In particular, the concept of "originality," …

Copyright Legislation And Technological Change, Jessica D. Litman

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Throughout its history, copyright law has had difficulty accommodating technological change. Although the substance of copyright legislation in this century has evolved from meetings among industry representatives whose avowed purpose was to draft legislation that provided for the future,6 the resulting statutes have done so poorly. The language of copyright statutes has been phrased in fact-specific language that has grown obsolete as new modes and mediums of copyrightable expression have developed. Whatever copyright statute has been on the books has been routinely, and justifiably, criticized as outmoded.7 In this Article, I suggest that the nature of the legislative process we …

Freedom Of Expression In A Pluralistic Society, James W. Nickel

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No abstract provided.

Summary Of Tokugawa Criminal Justice, Daniel H. Foote

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The summary set forth below is derived principally from the late Professor Yoshiro Hiramatsu's-comprehensive study of Tokugawa criminal justice. Hiramatsu's work focusses on the period from the promulgation of the Osadamegaki by the Shogun Yoshimune in 1742 through the end of the Tokugawa era in 1867. (As described by Professor Dan F. Henderson, Conciliation and Japanese Law, Tokugawa and Modern (1965), Vol. 1, at 7, fn. 26, the Osadamegaki, which consisted of two books, constituted "a compilation and rough codification of prior decrees and precedents", and "was the only such official attempt to systematize the law in the Tokugawa period." …

Some Aspects Of Householding In The Medieval Icelandic Commonwealth, William I. Miller

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There has been much, mostly inconclusive, discussion about how to define the household in a manner suitable for comparative purposes. Certain conventional criteria are not very useful in the Icelandic context, where it appears that a person could be attached to more than one household, where the laws suggest it was possible for more than one household to be resident in the same uncompartmentalised farmhouse; and where headship might often be shared. Definitions, for example, based on co residence or on commensalism do not jibe all that well with the pastoral transhumance practised by the Icelanders. Sheep were tended and …

Promise Fulfilled And Principle Betrayed, James J. White

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My responsibility in this paper is to address three questions. (1) How has the legal realist body of thought affected contract law and its application? (2) How will contract law and its application be affected in the future by realist thinking? (3) If the realist viewpoint were fully accepted, what kind of system would result and how would contract law be affected? Because my focus is upon a principal legislative monument to realism, Article Two of the Uniform Commercial Code (the "U.C.C."), and upon its drafter, Karl Llewellyn, I will not answer any of the three questions explicitly. By focusing …

Ordeal In Iceland, William I. Miller

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Ordeal holds a strange fascination with us. It appalls and intrigues. We marvel at the mentality of those cultures that officialize it; we feel a sense of horror as we imagine ourselves intimately involved with boiling water or glowing irons. And we don't feel up to it. So our terror and cowardice becomes their brutality and irrationality. I am not about to urge to reinstitution of ordeals, although most practicing lawyers will tell you that that is still what going to law is, a crapshoot they say. What I want to do is call attention to the difficulty of not …

Beating Up On Women And Old Men And Other Enormities: A Social Historical Inquiry Into Literary Sources, William I. Miller

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The Icelandic sagas, besides being one of the most impressive literatures existing in any language, preserve detailed accounts of feud and legal action, and describe with intelligence and care the general techniques and strategies of dispute processing. They also contain, incidental to the narrative, information about values and law, marriage and death, householding arrangements and the systems of exchange, naming patterns, and so on, for those who care to coax such information from the texts.

Copyright, Compromise And Legislative History, Jessica D. Litman

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Copyright law gives authors a "property right." But what kind of property right? Indeed, a property right in what? The answers to these questions should be apparent from a perusal of title seventeen of the United States Code-the statute that confers the "property" right.' Courts, however, have apparently found title seventeen an unhelpful guide. For the most part, they look elsewhere for answers, relying primarily on prior courts' constructions of an earlier and very different statute on the same subject. 2

Gift, Sale, Payment, Raid: Case Studies In The Negotiation And Classification Of Exchange In Medieval Iceland, William I. Miller

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Near the end of Eyrbyggja saga Porir asks Ospak and his men where they had gotten the goods they were carrying. Ospak said that they had gotten them at Pambardal. "How did you come by them?" said Porir. Ospak answered, "They were not given, they were not paid to me, nor were they sold either." Ospak had earlier that evening raided the house of a farmer called Alf and made away with enough to burden four horses. And this was exactly what he told Porir when he wittily eliminated the other modes of transfer by which he could have acquired …

Dreams, Prophecy And Sorcery: Blaming The Secret Offender In Medieval Iceland, William I. Miller

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An eminent legal historian once noted that the fundamental problem of law enforcement in primitive societies is that of the secret offender. The Icelandic legal and dispute processing systems depended on a wrongdoer publishing his deed, or at least committing it in an open and notorious manner. No state agencies existed to investigate and discover the non-publishing wrongdoer. But there were strong normative inducements to wrong openly; one's name was at stake. There was absolutely no honor in thievery, only the darkest shame; the ransmadr, on the other hand, suffered no shame for his successful raids, even if he did …

The Wagner Act: Labor Law's Signal Event, Theodore J. St. Antoine

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There's no fun in stating the obvious. Sophisticated professionals bestow few kudos on those who declaim the conventional wisdom. Even so, one would have to be far more perverse than I, in this fiftieth anniversary year of the National Labor Relations Act, to suggest that the Wagner Act, wasn't the most important (and at the time of it- passage the most controversial) development in the last half-century of labor law.

Teaching An Old Dog Old Tricks: Coppage V. Kansas And At-Will Employment Revisited, Kenneth M. Casebeer

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No abstract provided.

The Evolution Of Refugee Status In International Law: 1920-1950, James C. Hathaway

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A refugee is usually thought of as a person compelled to flee his State of origin or residence due to political troubles, persecution, famine or natural disaster. The refugee is perceived as an involuntary migrant, a victim of circumstances which force him to seek sanctuary in a foreign country. Since Rome's reception of the fleeing Barbarians, States have opened their doors to many divergent groups corresponding in a general way to this description of what it means to be a refugee. During a period of more than four centuries prior to 1920, there was little concern to delimit the scope …

Error Correction, Lawmaking, And The Supreme Court’S Exercise Of Discretionary Review, Arthur D. Hellman

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Controversies involving the United States Supreme Court generally center on the content of Court’s decisions, but in recent years, much attention has focused on the Court’s processes – in particular, two very different aspects of the Court’s modes of doing business. At one end of the spectrum, the number of cases receiving plenary consideration – full briefing, oral argument, and (almost invariably) a signed opinion – has shrunk to levels lower than any since the Civil War. At the other end, the Court has effectively resolved many high-profile disputes through unexplained orders granting or denying emergency relief in cases in …

Selective Incorporation Revisited, Jerold H. Israel

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In June 1960 Justice Brennan's separate opinion in Ohio ex re. Eaton v. Price' set forth what came to be the doctrinal foundation of the Warren Court's criminal procedure revolution. Justice Brennan advocated adoption of what is now commonly described as the "selective incorporation" theory of the fourteenth amendment. That theory, simply put, holds that the fourteenth amendment's due process clause fully incorporates all of those guarantees of the Bill of Rights deemed to be fundamental and thereby makes those guarantees applicable to the states. During the decade that followed Ohio ex re. Eaton v. Price, the Court found incorporated …

The Regulation Of Labor Unions, Theodore J. St. Antoine

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This year completes exactly a half century in the federalization and codification of American labor law. Before that the regulation of both the internal affairs and external relations of labor organizations was left largely to the individual states, usually through the application of common or nonstatutory law by the courts. One major exception was the railroad industry, whose patent importance to interstate commerce made it an acceptable subject for federal legislation like the Railway Labor Act.