Law Commons^™

The Restatements And The Rule Of Law, Kristina Daugirdas

Book Chapters

This chapter explores the promotion of the rule of law. In drafting and publishing Restatements of Foreign Relations Law, both the American Law Institute and the reporters have understood the projects as contributing to the rule of law at the international level, at the domestic level, or both. There are at least three distinct ways that these Restatements might promote the rule of law. First, they might do so by clarifying the content of the law. Second, the Restatements might contribute to the development of new legal rules, specifically to the evolution and consolidation of customary international law. Finally, the …

Custom's Method And Process: Lessons From Humanitarian Law, Monica Hakimi

Book Chapters

A central question in the literature on customary international law (CIL) goes to method: what is the proper method for "finding" CIL - that is, for determining that particular norms qualify as ClL? The traditional method is to identify a widespread state practice, plus evidence that states believe that the practice reflects the law (opinio juris). That method has long been criticized as incoherent, unworkable, and out of touch with modern sensibilities. Thus, much of the CIL literature addresses its perceived problems. The principal goals of this literature are to help resolve whether norms that are claimed to be CIL …

The Filaments Of The Vicarious: Notes To The Authors Of This Book, Joseph Vining

Book Chapters

Forty years is the unit of work in focus here. You have or will have units of forty years of your own, a unit of work like this. I can best respond to your generosity with a look back at the course of this effort of mine and its internal and external connections over time, to illustrate and help us keep in mind the way we mutually influence each other in our thought and lives. Origins and influences can begin with a biology teacher in secondary school, J. C. Catt, for whom I wrote a long paper on a drop …

The Cultural Background Of The Legal Imagination, James Boyd White

Book Chapters

I want to speak in this essay about one aspect of the origins of what is often called the law and literature movement in the United States, namely, how it got going. I shall do this by explaining the aims and assumptions of my own early contribution to it in the form of The Legal Imagination (first published in 1973). What I say will thus have some of the features of autobiography, but I hope it will be plain that this story is not really about me but about the state of the culture in which modern law and literature …

The Provincial Archive As A Place Of Memory: The Role Of Former Slaves In The Cuban War Of Independence (1895-98), Rebecca Scott

Book Chapters

Prof. Scott focuses on the study of the role of former slaves in the Cuban War of Independence, in light of the avoidance of the theme of race within this war in Cuban historiography. She discusses reasons for the silence on race issues, and for the historic construction of the "myth" of racial equality in this era.

Meaning What You Say, James Boyd White

Book Chapters

In this essay I talk about a wide range of themes in the hope of establishing a connection among them: writing (including the teaching of writing) and what is at stake, for the writer and the rest of the world, in doing it well or badly; certain forces in our culture-hard to define and understandthat tend to reduce or trivialize human experience, indeed the very value of the human being; the conception of the human being, not trivial at all, that underlies our practices of self-government in general and constitutional democracy in particular; and the idea of justice at work, …

Fuller And Language, Joseph Vining

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His style made him distinctive. His substance made him distinctive. The two crossed, were genetically related as we now say. Style and substance each drew on and was implied by the other. One point of their crossing was his sense of the nature of human language; what language was and could be, what it was not and could never be. In 1930, early in his work, Fuller took up the problem of language in a series of articles. Toward the end of his time he republished this initial ground-establishing effort as the little book we now have, Legal Fictions, …

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 …

Imagining The Law, James Boyd White

Book Chapters

My aim in this paper is to trace out a certain line of thought about what it might mean to think of law rhetorically. In doing this I shall be resisting the impulse, quite common in our culture, to see the law from the outside, as a kind of intellectual and social bureaucracy; rather I am interested in seeing it from the inside, as it appears to one who is practicing or teaching it. Throughout I shall conceive of the law as a system of discourse that the lawyer and judge must learn and use, and of which we can …

Why Do Jury Research?, Richard O. Lempert

Book Chapters

Inside the Juror presents the most interesting and sophisticated work to date on juror decision making from several traditions - social psychology, behavioural decision theory, cognitive psychology, and behavioural modeling. The authors grapple with crucial questions, such as: why do jurors who hear the same evidence and arguments in the courtroom enter the jury room with disagreements about the proper verdict? how do biases and prejudices affect jurors' decisions? and just how 'rational' is the typical juror? As an introduction to the scientific study of juror decision making in criminal trials, Inside the Juror provides a comprehensive and understandable summary …

Some Steps Between Attitudes And Verdicts, Phoebe C. Ellsworth

Book Chapters

Most research that has attempted to predict verdict preferences on the basis of stable juror characteristics, such as attitudes and personality traits, has found that individual differences among jurors are not very useful predictors, accounting for only a small proportion of the variance in verdict choices. Some commentators have therefore concluded that verdicts are overwhelmingly accounted for by "the weight of the evidence," and that differences among jurors have negligible effects. But there is a paradox here: In most cases the weight of the evidence is insufficient to produce firstballot unanimity in the jury (Hans & Vidmar, 1986; Hastie, Penrod, …

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 …

Generalization In Interpretive Theory, Joseph Vining

Book Chapters

There are arguments at large about the nature of legal interpretation, proceeding from an implicit proposition that interpretation is the same phenomenon or experience whatever its setting. An assumption that there is one phenomenon can be found in discussions among lawyers of interpretation and in discussions among nonlawyers of legal interpretation -- and as often in the work of those who would deny there is any significance to theorizing about interpretation, as of those who think persuasion to a particular theory will have the utmost consequence for law and society.

Proceeding from such a proposition, rather than toward it, raises …

Automatic Generation Of A Legal Expert System, Layman E. Allen, Charles S. Saxon

Book Chapters

The use of the AUTOPROLOG system to generate automatically a legal expert system is described in this chapter. The interpretation of a statutory or other legal rule by one expert (or by the consensus of a group of experts) expressed in a normalized form is the only input needed by the AUTOPROLOG system (which includes Turbo Prolog, the AUTOPRO program, and some data files) to produce automatically a computer program that is an expert system for that legal rule. The process for producing a legal expert system for Section 213.1 of the Modal Penal Code, which deals with rape and …

Exploring Computer Aided Generation Of Questions For Normalizing Legal Rules, Layman E. Allen, Charles S. Saxon

Book Chapters

The process of normalizing a legal rule requires a drafter to indicate where the intent is to be precise and where it is to be imprecise in expressing both the between-sentence and within-sentence logical structure of that rule. Three different versions of a legal rule are constructed in the process of normalizing it: (1) the logical structure of the present version, (2) the detailed marker version, and (3) the logical structure of the normalized version. In order to construct the third version the analyst must formulate and answer specific questions about the terms that are used to express the logical …

Drafting The Arbitration Clause, Whitmore Gray

Book Chapters

Providing in the contract for ways to resolve disputes that may arise presents a substantial challenge to the lawyer. In one sense this is what he or she is doing in general in contract drafting--anticipating misunderstandings or problems which experience indicates are likely to arise, and trying to provide clear answers in advance. When it comes to drafting a specific clause for the resolution of further disputes which may arise, however, many lawyers are at a substantial disadvantage. The task comes at the end of the substantive negotiations. The client does not want to focus on or draw the other …

Language, Law, And Logic: Plain Legal Drafting For The Electronic Age, Layman E. Allen

Book Chapters

The achievement of current demands for clearer legal drafting in the United States (New York, 1973 and President's Executive Order, 1978) and Great Britain (Renton Report, 1975) can be aided by applying modern logic to improve the language of the law. In considering how the expression of legal norms can be clarified by using some formal language techniques, particular attention will be given to alternatives for dealing with problems of inadvertent imprecision in current legal drafting, alternatives that facilitate human understanding as well as enhance the possibilities for analysis by computer. A brief sketch of the imprecision of the expression …

Mobilizing Private Law, Richard O. Lempert

Book Chapters

The mobilization of law may be thought of as the process by which legal norms are invoked to regulate behavior. In the area of private law, mobilization has two distinct aspects. The first is the process by which existing disputes become engaged in the legal system. In theory this means that disputes are transferred from an arena where their resolution and the enforcement of resolutions depends on the relative power of the parties as enhanced or constrained by non-governmental normative systems to an arena where disputes are resolved by reference to governmental (legal) norms and resolutions enforced by the power …

Contract Clauses, James J. White

Book Chapters

Before he turns to the clauses below, the draftsman should consider a few points that apply to drafting in general. The suggestions that follow will not win the Galileo award for 1974, but they bear repeating nevertheless.

Computer Systems For Research, Layman E. Allen

Book Chapters

The legal communication network today is characterized by two features. Any communication network in this century is marked by a division between the extent to which there is a man involved and the extent to which there is a machine involved. And, in terms of emphasis at this stage of things, at least within law, the emphasis is heavily upon the man communicating messages and relatively less upon the machine. The interesting question is, What is going on within this network that is amenable to being handled by machine and what, among those things, is it wise to do that …

Right1, Right2, Right3, Right4 And How About Right?, Layman E. Allen

Book Chapters

Careful communication is frequently of central importance in law. The language used to communicate even with oneself in private thought profoundly influences the quality of that effort; but when one attempts to transmit an idea to another, language assumes even greater significance because of the possibilities for enormously distorting the idea. Word-skill is to be prized. Few have expressed this more aptly or succinctly than Wesley N. Hohfeld: ...[I]n any closely reasoned problem, whether legal or nonlegal, chameleon-hued words are a peril both to clear thought and to lucid expression.

Logic-Language-Law, Layman E. Allen

Book Chapters

One legal tool which is not machine operated but is helpful in the study of computer technology and its applications to law is symbolic logic. But this tool is also helpful to the attorney who is not at all interested in computers; it will help improve his understanding of the profession's basic tool: the English language.

When examined as a tool useful for lawyers, symbolic logic is perhaps best viewed as a language. It can be regarded as a carefully and precisely constructed language that has been expressly designed for explicit purposes, rather than one that has evolved haphazardly through …

The Problem Of Communications In Meeting The Information Requirements Of The Courts, Layman Allen

Book Chapters

My remarks are addressed to one aspect of the general problem of communication involved in meeting the information requirements of the courts. It transcends merely the court; however, it is a problem throughout the legal decision-making system. The efficiency of t:ourts in processing information is just one part of a larger picture of effective communication within the legal system. Phrased broadly, the question involves discerning the optimum man-machine mix in the processing of information. Nobody can reasonably quarrel with the goal of taking the fullest possible advantage of the benefits of emerging technology, as long as objectives of greater importance …

The Trial Brief, Edson R. Sunderland, Clifford W. Crandall

Book Chapters

From the chapter Introduction: "The object of the preceding chapters is to show the brief maker where to find the material for his brief, how to find it, and how to select out of the mass of material found that which will be suitable for his use.... The present purpose is to outline a course of investigation suitable to the preparation of a case for trial and to suggest methods of making the material collected during the search for authorities readily available." [p.417-418]

The Trial Brief, Edson R. Sunderland

Book Chapters

From the chapter Introduction: "The object of the preceding chapters is to show the brief maker where to find the material for his brief, how to find it, and how to select out of the mass of material found that which will be suitable for his use.... The purpose of this lesson is to outline a course of investigation suitable to the preparation of a case for trial, and to suggest methods of making the material collected during the search for authorities readily available." [p.353]

The Trial Brief, Edson R. Sunderland

Book Chapters

Professor Sunderland writes in introduction to his chapter: "As this is not a book of practice, an extended discussion of the general subject of 'Preparation for Trial' would manifestly be out of place.... The purpose of this part is to outline a course of investigation suitable in preparing a case for trial and to suggest methods for making the materials so obtained readily available." [p.207]

Local Government In Great Britain, Thomas M. Cooley

Book Chapters

Professor Cooley's brief overview of the subject as context for his editing of the Commentaries: "As the local institutions of Great Britain have very largely been remodeled in our day, it seems desirable to give some brief account of them, as they exist at the present time..."

The British Colonial System, Thomas M. Cooley

Book Chapters

Regarding the subject, Professor Cooley writes: "In a note to the first book of these Commentaries (p.109), the Colonial System of Great Britain is spoken of as the grandest in extent and power that the world has ever known. A more detailed account of the system, and of the countries and places embraced within it, than was given in the place referred to, will justify the statement there made, and at the same time will give us particulars of British Colonial government in all its varieties."

Local Government In The United States, Thomas M. Cooley

Book Chapters

Professor Cooley offers the readers of the Commentaries a brief statement regarding laws of the United States in local jurisdictions: "To present completely local government as it exists in the United States would require a volume.... What we shall say, therefore, will be aimed at an explanation of certain general features, which are to be met with in all the states, and of some of the most important peculiarities."

The Territories Of The United States, Thomas M. Cooley

Book Chapters

Writing to flesh out the comparisons between the United States and Great Britain following previous such chapters, Professor Cooley writes: "In the common acceptation of those terms the United States has no colonies and no foreign possessions." Professor Cooley then gives a relatively brief history of the admission of new states in constitutional philosophy and history. Later in the chapter he asserts, "Before any states can be admitted to the union, there must be a state ready to admit; and this implies that there shall be a state with a constitution and laws, so when admitted, it can proceed at …