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Articles 1 - 30 of 42
Full-Text Articles in Law
Talking About Difference: Meanings And Metaphors Of Individuality, Gregory S. Alexander
Talking About Difference: Meanings And Metaphors Of Individuality, Gregory S. Alexander
Cornell Law Faculty Publications
This paper discusses the relationship between communitarianism and difference theory. Specifically, it focuses on the rhetorical practices that have created an apparent conflict between difference theory and communitarianism. My purpose is to suggest why this conflict dissolves when community and difference are understood as strategic rhetorics that share a common political vision.
Roman Law And English Law: Two Patterns Of Legal Development, Alan Watson
Roman Law And English Law: Two Patterns Of Legal Development, Alan Watson
Scholarly Works
It is commonplace among scholars to link in thought the growth of Roman law and of English law. S.F.C. Milsom begins his distinguished Historical Foundations of the Common Law with the words: "It has happened twice only that the customs of European peoples were worked up into intellectual systems of law; and much of the world today is governed by laws derived from the one or the other." More strikingly, some scholars see an essential similarity in legal approaches in the two systems. Fritz Pringsheim entitled a well-known article The Inner Relationship Between English and Roman Law. W.W. Buckland and …
Chapter 5 - Matrimonial Bonds: Slavery And Divorce In Nineteenth-Century America (Previously Published Article), Elizabeth B. Clark
Chapter 5 - Matrimonial Bonds: Slavery And Divorce In Nineteenth-Century America (Previously Published Article), Elizabeth B. Clark
Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America
In the covenant of marriage, woman is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master -- the law giving him power to deprive her of her liberty, and to administer chastisement. He has so framed the law of divorce . . . as to be wholly regardless of the happiness of women -- the law, in all cases, going upon a false supposition of the supremacy of man, and giving all power into his hands.
Matrimonial Bonds: Slavery And Divorce In Nineteenth-Century America, Elizabeth B. Clark
Matrimonial Bonds: Slavery And Divorce In Nineteenth-Century America, Elizabeth B. Clark
Publications
In the covenant of marriage, woman is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master -- the law giving him power to deprive her of her liberty, and to administer chastisement. He has so framed the law of divorce . . . as to be wholly regardless of the happiness of women -- the law, in all cases, going upon a false supposition of the supremacy of man, and giving all power into his hands.
Virginia Manuscript Law Reports, William Hamilton Bryson
Virginia Manuscript Law Reports, William Hamilton Bryson
Law Faculty Publications
Case law, including published cases and cases that have never been published, is the basis of the common law. Professor Bryson discusses the use of manuscript law reports in Virginia during the eighteenth and nineteenth centuries.
"Our Real Need": Not Explanation, But Education, Thomas D. Eisele
"Our Real Need": Not Explanation, But Education, Thomas D. Eisele
Faculty Articles and Other Publications
Wittgenstein wrote nothing on legal theory or law, so there is no obvious textual basis on which to draw possible connections between Wittgenstein and legal theory. And Wittgenstein abhorred theorizing in philosophy. So the odds are slim that Wittgenstein would have accommodated himself or his work to similar activity in the law. Where does this leave us?
At sea, which is where we normally are in life and, thus, where Wittgenstein wants us to recognize ourselves as being when doing philosophy too. But theory can disguise this fact from us, as it also can make us think that we have …
Wittgenstein's Instructive Narratives: Leaving The Lessons Latent, Thomas D. Eisele
Wittgenstein's Instructive Narratives: Leaving The Lessons Latent, Thomas D. Eisele
Faculty Articles and Other Publications
Philosophical Investigations is one of the great works about instruction, as Stanley Cavell says, because it is a great work of instruction. It dot::s not simply tell us about instruction; it shows us instruction in action-by instructing us. But it does this in a disconcerting way; it instructs us indirectly or latently. And often it uses stories to do this.
Wittgenstein rarely states a thesis or a conclusion that he then wants us simply to approve or accept. Rather, he directs our attention to some fact or phenomenon and invites our response to it, sometimes by giving us his response …
Never Mind The Manner Of My Speech: The Dilemma Of Socrates' Defense In The Apology, Thomas D. Eisele
Never Mind The Manner Of My Speech: The Dilemma Of Socrates' Defense In The Apology, Thomas D. Eisele
Faculty Articles and Other Publications
What might we learn from reading Plato's Apology? Socrates, the foremost teacher in Western culture, is on trial for his life, and he defends the way he has lived by describing how he has conducted himself; this means describing how he has taught and what he has taught and why he teaches as he does. The charge against Socrates is that he does not believe in the traditional deities of Athens and instead has introduced new deities (an apparent reference to his inner voice, his daimonion).This impiety on his part has led him to corrupt Athenian youths influenced by his …
Creative Writers And Criminal Justice: Confronting The System (1890–1920), Maxwell Bloomfield
Creative Writers And Criminal Justice: Confronting The System (1890–1920), Maxwell Bloomfield
Scholarly Articles
By the early twentieth century the modernization of American criminal law had become an issue of widespread public concern, both in professional circles and in the popular press. Bar leaders, such as Roscoe Pound and William Howard Taft, proposed to improve the machinery of criminal justice by tightening procedural rules and enhancing the authority of trial judges. Their efforts at “scientific” law reform led to the creation of the American Institute of Criminal Law and Criminology in 1909.
Creative writers, on the other hand, influenced by the rise of literary realism, tended to produce popular novels and plays that sympathized …
The Marshall Court And The Writing Of Law And History (Review Of G. Edward White, The Marshall Court And Cultural Change, 1815-35, Vols. 3 And 4. The Oliver Wendell Holmes Devise History Of The Supreme Court Of The United States), Alfred S. Konefsky
Book Reviews
No abstract provided.
How To Govern A City On A Hill: The Early Puritan Contribution To American Constitutionalism, John Witte Jr.
How To Govern A City On A Hill: The Early Puritan Contribution To American Constitutionalism, John Witte Jr.
Faculty Articles
This Article explores briefly the constitutional ideas and institutions of seventeenth-century Puritan New England. It analyzes the constitutional ideas that the Puritans derived from their theological doctrines of covenant, church and state, and sin, and it examines the forms and functions of political and ecclesiastical government they devised in implementation of these ideas.
The Role Of The States In The First Century Of The Sherman Act And The Larger Picture Of Antitrust History, James May
Articles in Law Reviews & Other Academic Journals
No abstract provided.
The Maryland Context Of Dred Scott: The Decline In The Legal Status Of Maryland Free Blacks 1776-1810, David S. Bogen
The Maryland Context Of Dred Scott: The Decline In The Legal Status Of Maryland Free Blacks 1776-1810, David S. Bogen
Faculty Scholarship
No abstract provided.
Review Of Bench And Bureaucracy: The Public Career Of Sir Julius Caesar, William Hamilton Bryson
Review Of Bench And Bureaucracy: The Public Career Of Sir Julius Caesar, William Hamilton Bryson
Law Faculty Publications
A book review of Bench and Bureaucracy: The Public Career of Sir Julius Caesar by Lamar M. Hill.
The Roman Law Of Trusts, William Hamilton Bryson
The Roman Law Of Trusts, William Hamilton Bryson
Law Faculty Publications
A book review on The Roman Law of Trusts by David Johnston.
Falling Off The Vine: Legal Fictions And The Doctrine Of Substituted Judgment, Louise Harmon
Falling Off The Vine: Legal Fictions And The Doctrine Of Substituted Judgment, Louise Harmon
Scholarly Works
No abstract provided.
Habeas Corpus And The Penalty Of Death, Michael E. Tigar
Habeas Corpus And The Penalty Of Death, Michael E. Tigar
Faculty Scholarship
No abstract provided.
Foreword: Nonjudicial Statutory Interpretation, William D. Popkin
Foreword: Nonjudicial Statutory Interpretation, William D. Popkin
Articles by Maurer Faculty
In the past decade the study of statutory interpretation has gone from benign neglect to intense scrutiny, but the emphasis has remained on interpretation by courts. This symposium takes a different approach. The major theme is that interpretation depends on the interpreter and that we can gain insight into statutory interpretation, even by courts, from analyzing the strengths and weaknesses of nonjudicial interpreters. Part I of this Foreword places the symposium in the broader setting of recent literature on statutory interpretation, briefly reviewing the major schools of thought and explaining the contributors' perspectives. Part II sets forth my own views …
Reception Of English Law In Singapore: Problems And Proposed Solutions, Andrew B.L. Phang
Reception Of English Law In Singapore: Problems And Proposed Solutions, Andrew B.L. Phang
Research Collection Yong Pung How School Of Law
The problems pertaining to the reception of English law in Singapore are both numerous and complex. The academic literature generated in the local sphere alone is relatively large. It must, however, be conceded that, from apractical point of view, there has been very little interest or at least discussion. One cannot, of course, be sure about this observation, save for the very strong indication that takes the form of the overwhelming lack of litigation in the area, thus rendering it merely (so it appears) an academic monopoly. It should, however, be pointed out that this rather phlegmatic approach in practice …
Municipal Issues And The Charter Of Rights: The Impact At The Grass Roots, A. Wayne Mackay, Kathryn Heckaman
Municipal Issues And The Charter Of Rights: The Impact At The Grass Roots, A. Wayne Mackay, Kathryn Heckaman
Articles, Book Chapters, & Popular Press
Municipal institutions are the forgotten partners in the Canadian confederation. This is true in both political and legal terms. In political terms the agencies of local government are often under-valued. With respect to the law, the municipal level of government has too often been ignored. Both municipal councils and their related boards and tribunals have an important impact on the lives of citizens at the grass roots level. In carrying out their duties, municipal authorities exercise a wide range of discretionary powers and it is becoming increasingly important that they recognize the legal limits on their powers. The first and …
Common-Law Background Of Nineteenth-Century Tort Law, The , Robert J. Kaczorowski
Common-Law Background Of Nineteenth-Century Tort Law, The , Robert J. Kaczorowski
Faculty Scholarship
A century ago Oliver Wendell Holmes, Jr., examined the history of negligence in search of a general theory of tort. He concluded that from the earliest times in England, the basis of tort liability was fault, or the failure to exercise due care. Liability for an injury to another arose whenever the defendant failed "to use such care as a prudent man would use under the circumstances.” A decade ago Morton J. Horwitz reexamined the history of negligence for the same purpose and concluded that negligence was not originally understood as carelessness or fault. Rather, negligence meant "neglect or failure …
Culture And Certainty: Legal History And The Reconstructive Project, Joan C. Williams
Culture And Certainty: Legal History And The Reconstructive Project, Joan C. Williams
Faculty Scholarship
No abstract provided.
'Were There No Appeal': The History Of Review In American Criminal Courts, David Rossman
'Were There No Appeal': The History Of Review In American Criminal Courts, David Rossman
Faculty Scholarship
The contemporary criminal justice system is guided, in large part, from the top down. A great deal of the force that drives the "terrible engine" of the criminal law is supplied by courts that consider cases on review after a defendant has been convicted.
The Dispossession Of The Kansas Shawnee, John W. Ragsdale Jr
The Dispossession Of The Kansas Shawnee, John W. Ragsdale Jr
Faculty Works
No abstract provided.
The Transformation Of American Property Law: A Comparative Law Approach, Alan Watson
The Transformation Of American Property Law: A Comparative Law Approach, Alan Watson
Scholarly Works
This Article looks at aspects of a particular societal problem as it was approached at different historical periods in Roman, French, and American property law. The main point of the Article is to clarify understanding of the American course of development through an awareness of how the problem was dealt with elsewhere. This awareness will cast doubt on the simplicity of the American course of development as explained in a distinguished book, and on the relationship of the legal development to economic change. In THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, Morton J. Horwitz seeks "to show that one of the …
The First Great Law & Economics Movement, Herbert J. Hovenkamp
The First Great Law & Economics Movement, Herbert J. Hovenkamp
All Faculty Scholarship
Beginning in the 1880s American economists turned their attention to the law in a way unprecedented in American thought. Some legal academics in turn incorporated economics into their thinking about the law. Whether their output or its impact were great enough to warrant calling their efforts a law and economics "movement" is worth debating. This essay argues that there was such a movement.
Four things account for the increasing interest in law and economics at the turn of the century: (1) the widespread application of evolutionary models to the development of both law and economic theory; (2) the influence of …
Scots Law In Post-Revolutionary And Nineteenth-Century America: The Neglected Jurisprudence, C. Paul Rogers Iii
Scots Law In Post-Revolutionary And Nineteenth-Century America: The Neglected Jurisprudence, C. Paul Rogers Iii
Faculty Journal Articles and Book Chapters
No abstract provided.
Book Review. Inventing The Industrial Revolution: The English Patent System, 1660-1800, Marshall A. Leaffer
Book Review. Inventing The Industrial Revolution: The English Patent System, 1660-1800, Marshall A. Leaffer
Articles by Maurer Faculty
No abstract provided.
The Third Best Choice: An Essay On Law And History, Theodore Y. Blumoff
The Third Best Choice: An Essay On Law And History, Theodore Y. Blumoff
Articles
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
The Public Domain, Jessica D. Litman
Articles
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," …