Law Commons^™

Misreading The Williams Act, Lyman P.Q. Johnson, David K. Millon

Scholarly Articles

No abstract provided.

Missing The Point About State Takeover Statutes, Lyman P.Q. Johnson, David K. Millon

Scholarly Articles

No abstract provided.

Positivism In The Historiography Of The Common Law, David K. Millon

Scholarly Articles

A great deal of important legal historical scholarship is doctrinal in focus, its objective being to chart the history of substantive common law rules. In this Article, Professor Millon suggests that doctrinal legal history is based implicitly on the modern positivist theory of law as a system of state-endorsed rules designed to resolve disputes in a consistent, predictable manner. He questions the validity of efforts to write the history of the premodern common law from this theoretical point of view.

Focusing on pre-seventeenth century civil cases, he finds that trial procedure seems to have allowed or even encouraged juries to …

On Ripeness And 'Pragmatism' In Admininstrative Law, Brian C. Murchison

Scholarly Articles

None available.

Police Trespass And The Fourth Amendment: A Wall In Need Of Mending, Clifford S. Fishman

Scholarly Articles

Part I of this article provides an overview of basic Fourth Amendment principles. Part II analyzes the Oliver and Ciraolo cases which define and distinguish residential "curtilage," protected by the Fourth Amendment, and "open fields," which the Fourth Amendment does not protect. Part III reviews the Dow decision's discussion of whether an industrial facility, like a residence, might have constitutionally protected curtilage. Part IV focuses on the Dunn decision, which dramatizes the curtilage-open field dichotomy while at the same time blurring the line between the two. Finally, part V shows how these decisions may have invalidated the "commercial curtilage" concept …

Military Social Science Research And The Law, Michael F. Noone Jr.

Scholarly Articles

No abstract provided.

Aids: Perspective On The American Family, Raymond C. O'Brien

Scholarly Articles

This paper will focus on the probable impact of AIDS upon family law and family issues in America. Although it is still too early to tell precisely what effect AIDS will have in these areas, it is essential for lawyers and other professionals to begin a dialogue now in order to face the many challenges which lie ahead as the disease continues to spread and impact family relationships.

Among the many subjects discussed below is the likely trend that fear of infection and death will restrict the societal demand and acceptance of new definitions of family. In order to provide …

From Cutlass To Cat-O’-Nine Tails: The Case For International Jurisdiction Of Mutiny On The High Seas, George P. Smith Ii

Scholarly Articles

This article will first discuss the historical background of mutiny, describing several of the major mutinies at sea that have been of interest to legal historians. Then will come an analysis of the history of piracy and an exploration of its symbiotic relationship with mutiny. Subsequent analysis will be given over to municipal law provisions outlawing mutiny - with concentration placed on the postures taken by those nation-states which subscribe to or are guided by the common law. A study of those relevant principles of international law regarded as controlling, as a consequence of historical vectors of force and municipal …

State-Sponsored Domestic Terrorism: The Case Of Poland, Rett R. Ludwikowski

Scholarly Articles

No abstract provided.

Mandatory Securities Industry Arbitration: The Problems And The Solution, David A. Lipton

Scholarly Articles

Many of the perceived problems with the securities arbitration system do not reflect deficiencies in the operation of the current system, but rather are a result of the very qualities that make arbitration attractive. For example, participants in arbitration have a limited right of appeal from arbitration awards precisely because they contractually agreed to forego judicial litigation and instead have their disputes considered in a more expeditious and less expensive forum. It is reasonable to believe that if arbitration awards were appealable for the full range of reasons for which judicial decisions may be appealed, the efficiency of the arbitration …

The Powers And The Duties Of Government, John H. Garvey

Scholarly Articles

The government often tries to control people's behavior by the way it hands out benefits. The most common objection to this practice is that it violates the rights of beneficiaries.' I want to make a simple observation about these "rights" cases. We used to treat the violation of rights as a question about the government's power. Now we treat it as a question about the government's duty. This shift in perspective is an important change. If we attend to it, we will be less perplexed by the problem of unconstitutional conditions. Though my point is simple, I will go to …

Emerge For The Dark: A Grass Roots Program Teaches The First Step Toward Fighting Violence Toward Women, Stacy Brustin

Scholarly Articles

No abstract provided.

Constitutional Values And The Adjudication Of Taft-Hartley Act Dues Objector Cases, Roger C. Hartley

Scholarly Articles

The thesis of this Article is that, now conscripted into the fray, the NLRB must consider free speech and association values embodied in the Constitution and laws when deciding Taft-Hartley dues objector issues. Only then can the NLRB fulfill its congressional mandate, recently discovered and described in Beck, to develop a coherent body of law that accommodates potentially explosive confrontations between dues objectors' right of free expressive association and the union majority's statutory right to organize and bargain collectively on behalf of all represented employees, including dues objectors.

To develop this thesis, the threshold task is to demonstrate that although …

Opening The International Television Market To Greater Program Diversity, Donna Coleman Gregg

Scholarly Articles

This Article examines various national regulatory systems that govern television programming, their impact on the vitality and diversity of the entertainment program market, and their ability to withstand forces for change.

Distinction Without A Difference: A Reappraisal Of The Doctrine Of Prior Restraint, Marin Roger Scordato

Scholarly Articles

For nearly 60 years, the doctrine of prior restraint has held a central position in first amendment jurisprudence. A law that acts as a prior restraint on speech comes under such searching judicial scrutiny that it almost always is invalidated. Professor Marin Scordato makes a frontal attack on the existing prior restraint doctrine in this Article. ie first maintains that the traditional definition of prior restraint defies the common-sense meaning of the term. Then he examines the policy justifications for identifying prior restraints by their asserted tendency to produce constitutionally undesirable results compared with their definitional opposites, subsequent sanctions. He …

Can Corporate Masters Afford To Become Public Servants, Marshall J. Breger

Scholarly Articles

No abstract provided.

Developments In The Law Of Church-State Relations: The 1987 Term Of The United States Supreme Court, Robert A. Destro

Scholarly Articles

No abstract provided.

The Beginning Of The Constitutional Era: A Bicentennial Comparative Study Of The American And French Constitutions, Rett R. Ludwikowski

Scholarly Articles

This article is intended only to be introductory. The author is quite aware that the period surrounding the creation of the American Constitution has been profoundly studied; thorough analysis has been provided concerning both the origin and historical development of the American Constitution, as well as the intellectual background of the "founding generation." Characteristically, these studies have focused on the "American constitutional tradition," which means that they have been limited to little more than two centuries of colonial experience.

This essay follows a different vein of inquiry. The author's purpose is not to add another article to the numerous works …

Comment On Church And State In Seventeenth And Eighteenth Century America, John H. Garvey

Scholarly Articles

No abstract provided.

Essay: On Peacekeeping, Michael F. Noone Jr.

Scholarly Articles

No abstract provided.

Legal Theory And Linguistic Reality: A Critical Examination Of Modern Legal Scholarship, Marin Roger Scordato

Scholarly Articles

To establish a starting point for the analysis, I begin by identifying and discussing the possible functions served by scholarship in a legal environment defined by the classic jurisprudence of natural law. I then consider the intellectual challenge posed to natural law jurisprudence by the modern Legal Realist movement and the consequences of that challenge for legal scholarship in particular. Lastly, I attempt to characterize the mainstream of current legal scholarship as a series of variations on two very basic intellectual responses to the modern Realist critique of established legal process and traditional legal scholarship.