Law Commons^™

Strict Liability And The Liberal-Justice Theory Of Torts, Alan Calnan

Alan Calnan

Abstract Tort scholars disagree about the relative priority of fault and strict liability. Economists prefer the clearer and more efficient theory of strict liability to the vaguer and more complicated concept of fault. Moralists, by contrast, prefer the deep moral or deontological idea of fault to the more sterile rule of strict liability. Ironically, both economists and moralists often base their views on liberal principles. Economists rely on the political dimension of liberalism, arguing that tort law should interfere with free market transactions only rarely, and even then, only with clear rules that minimize accident costs. Not surprisingly, moralists rely …

Some Reflections On The Transplantation Of British Company Law In Post Ottoman Palestine, Ron Harris, Michael Crystal

Ron Harris

Company law is considered as a prime field for legal transplantation. Conventional wisdom is that company legislation in Palestine during the majority of the British Mandate was based on the simple importation of the English Companies Act 1929. Reliance is placed on the facts that the Palestine Companies Ordinance was enacted in the same year as the English Companies Act 1929, that the British Empire gave priority to commercial law transplantation and that the Palestine Companies Ordinance was the first in several commercial Ordinances that were considered as the climax of the legislative anglicization of Ottoman law in Mandatory Palestine. …

Why John Mccain Was A Citizen At Birth, Stephen E. Sachs

Stephen E. Sachs

Senator John McCain was born a citizen in 1936. Professor Gabriel J. Chin challenges this view in this Symposium, arguing that McCain’s birth in the Panama Canal Zone (while his father was stationed there by the Navy) fell into a loophole in the governing statute. The best historical evidence, however, suggests that this loophole is an illusion and that McCain is a "natural born Citizen" eligible to be president.

The Holocaust, Museum Ethics, And Legalism, Jennifer Kreder

Jennifer Kreder

The attached article is a provocative analysis of the “Holocaust art movement.” The movement has led to significant and controversial restitutions from museums. This article focuses on two emotionally driven claims refused by the Auschwitz-Birkenau State Museum: One to recover a suitcase stolen from a murdered man, and the other to recover watercolors a woman was forced to paint for Josef Mengele to document his pseudo-scientific theories of racial inferiority and his cruel medical experiments. These claims provide insightful case studies to examine the emotional and ethical aspects of such disputes uncomplicated by the monetary issues in many of the …

The Human Right Of Self-Defense, David B. Kopel, Paul Gallant, Joanne D. Eisen

David B Kopel

The United Nations Human Rights Council has declared that there is no human right to self-defense. Moreover, the Council has ordered all governments to enact very restrictive gun laws (more severe than those of Washington, D.C., or New York City, for example), and has declared that failure to enact such laws constitutes a human rights violation. Further, the HRC states that it is a human rights violation for a government to allow person to use a firearm in self-defense against a rapist or other criminal who is not attempting homicide.

This Article critically examines the HRC's claims by analyzing the …

Dhimmitude And Disarmament, David B. Kopel

David B Kopel

Under shari'a law, non-Muslims, known as dhimmi, have been forbidden to possess arms, and to defend themselves from attacks by Muslims. The disarmament is one aspect of the pervasive civil inferiority of non-Muslims, a status known as dhimmitude. This Essay examines the historical effects of the shari'a disarmament, based on three books by Bat Ye'or, the world's leading scholar of dhimmitude. As Ye'or details, the disarmament had catastrophic consequences, extending far beyond the direct loss of the dhimmi's ability to defend themselves. The essay concludes by observing how pretend gun-free zones on college campuses turn the adults there into 21st …

The Natural Right Of Self-Defense: Heller's Lesson For The World, David B. Kopel

David B Kopel

The U.S. Supreme Court's decision in District of Columbia v. Heller constitutionalized the right of self-defense, and described self-defense as a natural, inherent right. Analysis of natural law in Heller shows why Justice Stevens' dissent is clearly incorrect, and illuminates a crucial weakness in Justice Breyer's dissent. The constitutional recognition of the natural law right of self-defense has important implications for American law, and for foreign and international law.

The Peculiar Story Of United States V. Miller

Brian L. Frye

This article provides a comprehensive history and interpretation of United States v. Miller, the only Supreme Court case construing the Second Amendment. It presents evidence Miller was a test case designed by the government to test the constitutionality of federal gun control. It shows the holding in Miller is narrower than generally assumed. It argues Miller adopts neither the individual nor the collective right theory of the Second Amendment. It suggests the Supreme Court’s pragmatic, deferential approach in Miller remains appropriate.

Colonial Encounters In Modern [International] Law, Jorge Gonzalez-Jacome

Jorge Gonzalez-Jacome

This is an unpublished work in which I am still working. It argues how the idea of exception in modern law is the place where colonialism is still deploying a particular dynamic naming the 'other' as someone who must be dehumanized and eliminated. Comments are welcome in the email address provided in the text.

Hallowed Ground: The Gettysburg Battlefield In Historic Preservation Law, Peter Byrne

Peter Byrne

This article seeks to deepen legal analysis of historic preservation law by analyzing how contemporary presuppositions and legal tools shape changing preservation approaches. It is organized around legal disputes concerning the Gettysburg battlefield, a site of great national significance, which has been preserved in different forms for nearly 150 years. The paper describes the history of preservation at Gettysburg. It argues that the Supreme Court’s constitutional approval of federal acquisition of battlefield land in 1896 reflected contemporary conservative nationalism. It also analyzes how legal tools for preservation of land surrounding the battlefield have evolved from simple ownership to coordinated regulation …

The Internationalization Of The American Journal Of International Law: Reality Or Chimera? - A Survey, Christos A. Ravanides

Christos A. Ravanides

In 2006, the American Society of International Law ("ASIL") celebrated its centennial anniversary. In 2007, it is the turn of the Society’s flagship publication, the American Journal of International Law ("AJIL"), to celebrate the centennial year since its inception in 1907. This first-of-its-kind detailed survey dissects the Journal’s “international” attribute: how truly “international” and how “American” has this prestigious publication proved in the course of a century? How accommodating a host has it been to international lawyers with no U.S. affiliation or with “deviating” views on international law? The research has been multi-fold; we examine the content, the structure and …

The Multiracial Epiphany, Kevin Noble Maillard

Kevin Noble Maillard

The year 1967 becomes the temporal landmark for the beginning of an interracial nation. That year, the United States Supreme Court ruled state antimiscegenation laws unconstitutional in Loving v Virginia. In addition to outlawing interracial marriage, these restrictive laws had created a presumption of illegitimacy for historical claims of racial intermixture. Not all states had antimiscegenation laws, but the sting of restriction extended to other states to forge a collective forgetting of mixed race. Defenders of racial purity could depend on these laws to render interracial relationships illegitimate. Looking back to Loving as the official birth of Multiracial America reinforces …

Standing At The Crossroads: The Roberts Court In Historical Perspective, Maxwell L. Stearns

Faculty Scholarship

After eleven years, the longest period in Supreme Court history with no change in membership, the Roberts Court commenced in the year 2005 with two new justices. John Roberts replaced William Rehnquist as the seventeenth Chief Justice and Samuel Alito replaced Sandra Day O’Connor as Associate Justice. The conventional wisdom suggests that on the nine-justice Supreme Court, these two appointments have produced a single-increment move, ideologically, to the right. The two Chief Justices occupy roughly the same ideological position. In contrast, whereas O’Connor was generally viewed as occupying the Court’s centrist, or median, position, Alito has instead continued to embrace …

The Story Of Reynolds V. United States: Federal "Hell Hounds" Punishing Mormon Treason, Martha M. Ertman

Faculty Scholarship

Part of the “Law Stories” series published by Foundation Press, this chapter in Family Law Stories tells the back story of the 1878 US Supreme Court case Reynolds v. U.S.. While the case held that Mormon polygamy was not protected as the free exercise of religion, this chapter shifts our focus away from sex and religion and toward the Court’s language linking Mormon polygamy with “Asiatic and African” peoples as well as political despotism. This close examination of the historical record shows that 19th century concerns about Mormon separatism – commercial, social and political separatism as well was religious – …

Dangerous Woman: Elizabeth Key's Freedom Suit - Subjecthood And Racialized Identity In Seventheenth Century Colonial Virginia, Taunya Lovell Banks

Faculty Scholarship

Elizabeth Key, an African-Anglo woman living in seventeenth century colonial Virginia sued for her freedom after being classified as a negro by the overseers of her late master’s estate. Her lawsuit is one of the earliest freedom suits in the English colonies filed by a person with some African ancestry. Elizabeth’s case also highlights those factors that distinguished indenture from life servitude—slavery in the mid-seventeenth century. She succeeds in securing her freedom by crafting three interlinking legal arguments to demonstrate that she was a member of the colonial society in which she lived. Her evidence was her asserted ancestry—English; her …

In Good Times And In Debt: The Evolution Of Marital Agency And The Meaning Of Marriage, Marie T. Reilly

Journal Articles

A married person sometimes acts solely for herself and at other times on behalf of her spouse. If she incurs debt solely for herself, then only she is liable to the creditor. If, however, she incurs debt both for herself and on behalf of her spouse, both are liable – the debtor directly and the spouse indirectly by imputed liability. Before married women’s property reform, imputed marital liability followed from marital status. As marriage changed to recognize the legal individuality of both spouses, so too did the scope of a spouse’s imputed liability for the debts of the other spouse. …

The Multiracial Epiphany, Kevin Noble Maillard

College of Law - Faculty Scholarship

The year 1967 becomes the temporal landmark for the beginning of an interracial nation. That year, the United States Supreme Court ruled state antimiscegenation laws unconstitutional in Loving v Virginia. In addition to outlawing interracial marriage, these restrictive laws had created a presumption of illegitimacy for historical claims of racial intermixture. Not all states had antimiscegenation laws, but the sting of restriction extended to other states to forge a collective forgetting of mixed race. Defenders of racial purity could depend on these laws to render interracial relationships illegitimate. Looking back to Loving as the official birth of Multiracial America reinforces …

The New Face Of Women's Legal History: An Introduction To The Symposium, Tracy A. Thomas

Tracy A. Thomas

Women’s legal history is developing as a new and exciting field that provides alternative perspectives on legal issues both past and present. Feminist legal history seeks to examine the ways in which law historically has informed women’s rights and how feminist discourse has shaped the law. This short essay quickly traces the development of women's legal history as a field, and then introduces the papers from a symposium at the University of Akron School of Law. The Akron Constitutional Law Center oranized a conference in October 2007 entitled “The New Face of Women’s Legal History” to showcase many of the …

Belonging And Empowerment: A New "Civil Rights" Paradigm Based On Lessons From The Past, Rebecca Zietlow

Rebecca E Zietlow

Despite the advances that African Americans have made in our country as a result of the Civil Rights movement of the 1960s, poverty stubbornly persists in communities of color throughout our country. Our current civil rights paradigm, which is rooted in the Equal Protection Clause, and prohibits intentional state discrimination on the basis of immutable characteristics, simply is not working. This article suggests an alternative approach, one based not solely in equality norms but in facilitating the belonging of outsiders in our society. The subordination of people of color in our society has never been just about race. Rather, racism …

The Disaggregation Of Race And Class In United States Civil Rights Law, Rebecca Zietlow

Rebecca E Zietlow

Despite the advances that African Americans have made in our country as a result of the Civil Rights movement of the 1960s, poverty stubbornly persists in communities of color throughout our country. Our current civil rights paradigm, which is rooted in the Equal Protection Clause, and prohibits intentional state discrimination on the basis of immutable characteristics, simply is not working. This article suggests an alternative approach, one based not solely in equality norms but in facilitating the belonging of outsiders in our society. The subordination of people of color in our society has never been just about race. Rather, racism …

The Evolution Of Women's Rights In Inheritance, Kristine Knaplund

Kristine Knaplund

No abstract provided.

Politizando La Inter-Relación Entre Derecho E Historia, Jorge Gonzalez-Jacome

Jorge Gonzalez-Jacome

Hablar de interdisciplinariedad nos arroja a preguntas sobre la propia disciplina jurídica lo cual puede llevarnos a cuestionamientos internos sobre cuáles son nuestras esencias disciplinares mostrando que, por regla general, la investigación en derecho se debe ocupar solamente de algunas cuestiones y no de otras que hacen parte de otras disciplinas. Ello podría llevar a que nos enfrascáramos en una discusión sobre nuestro objeto de estudio que si bien no considero acabada, sí creo que no puede ser pensada en abstracto o solamente desde las esencias de la disciplina. Parto de la idea de la imposibilidad de pensar los problemas …

Problematic And Unnecessary? Issues With The Use Of The Theft Offence To Protect Intangible Property, Alex Steel

Alex Steel

This article questions whether misuse of intangible property should fall within the scope of theft — an issue on which Australian jurisdictions are currently divided. It provides an overview of the traditional limitation of larceny to moveable property and some of the difficult issues of interpretation of the modern theft offence that are related to the inclusion of intangible property. It then examines in detail a number of forms of intangible property to see if any of them are capable of forming the basis of a theft charge. The conclusion made is that intangible property is either unable to form …

The Institutional Dynamics Of Early Modern Eurasian Trade: The Commenda And The Corporation, Ron Harris

Ron Harris

The focus of this article is on legal-economic institutions that organized early-modern Eurasian trade. It identifies two such institutions that had divergent dispersion patterns, the corporation and the commenda. The corporation ended up as a uniquely European institution that did not migrate until the era of European colonization. The commenda that originated in Arabia migrated all the way to Western Europe and to China. The article explains their divergent dispersion based on differences in their institutional and geographical environments and on dynamic factors. It claims that institutional analysis errs when it ignores migration of institutions. It provides building blocks for …

Unprofitable Lending: Modern Credit Regulation And The Lost Theory Of Usury, Brian M. Mccall

Brian M McCall

With almost daily news stories about the crisis in our credit markets, it seems inevitable that a new political and academic debate about credit regulation is commencing. With Americans paying billions of dollars in finance charges every year and some loosing their homes, it is time to ask fundamental questions about the liberality of credit supply and terms. Rather than readjusting usury limits or tinkering with disclosure requirements, it is time to reassess America’s philosophy of lending. Although the current socio-economic belief that more credit is better has held dominance for several centuries, history offers an alternative theory. Surprisingly, a …

Stayton, Gaines, And The Capitol Court 1882-1900 (Book Chapter), William J. Chriss

William J Chriss

This chapter was commissioned by the Texas Supreme Court Historical Society for its multi-volume work on the history of the Texas Supreme Court. It deals with the personnel and jurisprudence of the Texas Supreme Court during the populist and early progressive eras.

In Good Times And In Debt: The Evolution Of Marital Agency And The Meaning Of Marriage, Marie T. Reilly

Marie T. Reilly

A married person sometimes acts solely for herself and at other times on behalf of her spouse. If she incurs debt solely for herself, then only she is liable to the creditor. If, however, she incurs debt both for herself and on behalf of her spouse, both are liable – the debtor directly and the spouse indirectly by imputed liability. Before married women’s property reform, imputed marital liability followed from marital status. As marriage changed to recognize the legal individuality of both spouses, so too did the scope of a spouse’s imputed liability for the debts of the other spouse. …