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Articles 1 - 30 of 93
Full-Text Articles in Law
Intestate Succession In A Polygamous Society, Barry Cushman
Intestate Succession In A Polygamous Society, Barry Cushman
Barry Cushman
The pursuit of polygamous unions by members of the Church of Jesus Christ of Latter-Day Saints in nineteenth-century Utah posed challenges for the law of the family unique in the annals of American legal history. The exotic familial relationships generated by plural marriages created novel and peculiar problems for the traditional law of intestacy. Mormon leaders, in an effort to avoid these problems, urged their polygamous brethren to make wills. Many polygamists, however, either neglected to plan their estates or were actively opposed to doing so. Mormon legislators accordingly sought to craft statutory schemes that would accommodate the peculiar inheritance …
Why Didn't The Common Law Follow The Flag?, Christian Burset
Why Didn't The Common Law Follow The Flag?, Christian Burset
Christian Burset
This Article considers a puzzle about how different kinds of law came to be distributed around the world. The legal systems of some European colonies largely reflected the laws of the colonizer. Other colonies exhibited a greater degree of legal pluralism, in which the state administered a mix of different legal systems. Conventional explanations for this variation look to the extent of European settlement: where colonizers settled in large numbers, they chose to bring their own laws; otherwise, they preferred to retain preexisting ones. This Article challenges that assumption by offering a new account of how and why the British …
Review Of A Final Accounting, Holocaust Survivors And Swiss Banks, Adeen Postar
Review Of A Final Accounting, Holocaust Survivors And Swiss Banks, Adeen Postar
Adeen Postar
No abstract provided.
Justice Jackson's 1946 Nuremberg Reflections At Buffalo: An Introduction, Alfred S. Konefsky, Tara J. Melish
Justice Jackson's 1946 Nuremberg Reflections At Buffalo: An Introduction, Alfred S. Konefsky, Tara J. Melish
Tara Melish
This Essay introduces the 2011 James McCormick Mitchell Lecture, “From Nuremberg to Buffalo: Justice Jackson’s Enduring Lessons of Morality and Law in a World at War,” a commemoration of Jackson’s 1946 centennial convocation speech at the University of Buffalo. It discusses Jackson’s speech, breaks down its thematic components, and situates the distinguished Mitchell Lecturers’ responses to it in context. Unlike Justice Jackson’s commanding and historic opening and closing statements as U.S. chief prosecutor at Nuremberg, Jackson’s 1946 speech, delivered just days after his return from Germany where he heard the Nuremberg Tribunal deliver its final judgment and verdicts, has largely …
When Caring Is Work: Home, Health, And The Invisible Workforce: Introduction, Dianne Avery, Martha T. Mccluskey
When Caring Is Work: Home, Health, And The Invisible Workforce: Introduction, Dianne Avery, Martha T. Mccluskey
Dianne Avery
This essay introduces the SUNY Buffalo Law School 2012 James McCormick Mitchell Lecture. The Lecture featured distinguished scholars Hendrik Hartog, Jennifer Klein, and Peggie R. Smith, who each contributed an essay to this volume. These three scholars give a richly detailed picture of home caretakers' struggles to gain visibility and support for their important work. Legal rulings and policy choices have made care workers distinctly vulnerable, treating care services as an expression of love rather than contract (as Hartog describes), or as social rehabilitation for marginal citizens rather than as skilled health care provision (as Klein explains), or as informal …
Five Decades Of Intellectual Property And Global Development, Peter K. Yu
Five Decades Of Intellectual Property And Global Development, Peter K. Yu
Peter K. Yu
The 2016-2017 biennium marks the historical milestones of several major pro-development initiatives relating to intellectual property law and policy. These important milestones include the Intellectual Property Conference of Stockholm in 1967, the adoption of the Declaration on the Right to Development (UNDRD) in 1986 and the establishment of the WIPO Development Agenda in 2007.
On January 1, 2016, the UN Sustainable Development Goals (SDGs) also came into force. Adopted by the UN General Assembly in September 2015, the 2030 Agenda for Sustainable Development featured 17 SDGs and 169 targets. Prominently mentioned in Target 3.b of SDG 3 are the WTO …
Review Essay - The Consumption Of History In The Legal Academy: Science And Synthesis, Perils And Prospects, Christopher Tomlins
Review Essay - The Consumption Of History In The Legal Academy: Science And Synthesis, Perils And Prospects, Christopher Tomlins
Christopher Tomlins
No abstract provided.
Book Review Of The Inception Of Modern Professional Education: C.C. Langdell, 1826-1906, By Bruce A. Kimball, Christopher Tomlins
Book Review Of The Inception Of Modern Professional Education: C.C. Langdell, 1826-1906, By Bruce A. Kimball, Christopher Tomlins
Christopher Tomlins
No abstract provided.
Formal And Informal Amendment Of The United States Constitution, Richard S. Kay
Formal And Informal Amendment Of The United States Constitution, Richard S. Kay
Richard Kay
Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey
Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey
Martha T. McCluskey
For a symposium on Teaching Ferguson, this essay considers how the standard introductory constitutional law course evades the history of legal struggle against institutionalized anti-black violence. The traditional course emphasizes the drama of anti-majoritarian judicial expansion of substantive rights. Looming over the doctrines of equal protection and due process, the ghost of Lochner warns of dangers of judicial leadership in substantive constitutional change. This standard narrative tends to lower expectations for constitutional justice, emphasizing the virtues of judicial modesty and formalism. By supplementing the ghost of Lochner with the ghost of comparably infamous and influential case, United States v. Cruikshank …
When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas
When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas
Samantha Barbas
Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against …
Creating The Public Forum, Samantha Barbas
Creating The Public Forum, Samantha Barbas
Samantha Barbas
The public forum doctrine protects a right of access - “First Amendment easements” - to streets and parks and other traditional places for public expression. It is well known that the doctrine was articulated by the Supreme Court in a series of cases in the 1930s and 1940s. Lesser known are the historical circumstances that surrounded its creation. Critics believed that in a modern world where the mass media dominated public discourse - where the soap box orator and pamphleteer had been replaced by the radio and mass circulation newspaper - mass communications had undermined the possibility of widespread participation …
The Prosser Letters: 1917-1948, Christopher Robinette
The Prosser Letters: 1917-1948, Christopher Robinette
Christopher J Robinette
From Rome To The Restatement: S.P. Scott, Fred Blume, Clyde Pharr, And Roman Law In Early Twentieth Century America, Timothy G. Kearley
From Rome To The Restatement: S.P. Scott, Fred Blume, Clyde Pharr, And Roman Law In Early Twentieth Century America, Timothy G. Kearley
Timothy G. Kearley
Book Review Of Five Chiefs: A Supreme Court Memoir, By John Paul Stevens, Thomas E. Baker
Book Review Of Five Chiefs: A Supreme Court Memoir, By John Paul Stevens, Thomas E. Baker
Thomas E. Baker
No abstract provided.
Latin American Legal History: Some Essential Spanish Terms, M C. Mirow
Latin American Legal History: Some Essential Spanish Terms, M C. Mirow
M. C. Mirow
Terms related to Latin American legal history translated into English.
Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow
Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow
M. C. Mirow
In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the United States. Using this surprising fact as a central example, this article makes several important contributions to the field of comparative constitutional law. The work demonstrates that through constitutional migration, novel readings of constitutional sources can arise in foreign fora. In an era when the United States Supreme Court may be accused of parochialism in its constitutional analysis, the article addresses the current controversy …
Measuring Merit: The Shultz-Zedeck Research On Law School Admissions, Kristen Holmquist, Marjorie Shultz, Sheldon Zedeck, David Oppenheimer
Measuring Merit: The Shultz-Zedeck Research On Law School Admissions, Kristen Holmquist, Marjorie Shultz, Sheldon Zedeck, David Oppenheimer
Marjorie M. Shultz
No abstract provided.
The Emergence Of Classical American Patent Law, Herbert Hovenkamp
The Emergence Of Classical American Patent Law, Herbert Hovenkamp
Herbert Hovenkamp
The Emergence of Classical Patent Law
Abstract
One enduring historical debate concerns whether the American Constitution was intended to be "classical" -- referring to a theory of statecraft that maximizes the role of private markets and minimizes the role of government in economic affairs. The most central and powerful proposition of classical constitutionalism is that the government's role in economic development should be minimal. First, private rights in property and contract exist prior to any community needs for development. Second, if a particular project is worthwhile the market itself will make it occur. Third, when the government attempts to induce …
Critical Junctures: Regulatory Failures, Ireland's Administrative State And The Office Of The Ombudsman, Fiona Donson, Darren O'Donovan
Critical Junctures: Regulatory Failures, Ireland's Administrative State And The Office Of The Ombudsman, Fiona Donson, Darren O'Donovan
Darren O'Donovan
Extract: In the aftermath of global financial crisis, the importance of effective regulatory interventions by government has come into sharp relief. The failure of public administration and political oversight that underwrote the collapse of the Irish economy in 2008 has provoked widespread reflection on the need for increased administrative review in the country. This has extended beyond the specific financial sphere, to broader public law reform targeting executive power by building an improved parliamentary culture, greater independent oversight and concentrating democratic participation. In this article, we critique the Irish regulatory state through the prism of the pressures, conflicts and reforms …
Book Review Of American Property: A History Of How, Why, And What We Own, By Stuart Banner, Laura S. Underkuffler
Book Review Of American Property: A History Of How, Why, And What We Own, By Stuart Banner, Laura S. Underkuffler
Laura S. Underkuffler
No abstract provided.
Everyday Law For Immigrants, Victor Romero
Everyday Law For Immigrants, Victor Romero
Victor C. Romero
Immigration is one of the most controversial topics of the decade. Citizens and pundits from across the political spectrum argue for major and disparate changes to American immigration law. Yet few know what American immigration law actually is and how it functions.
Everyday Law for Immigrants is an ideal guide for U.S. citizens who want a better understanding of our immigration laws as well as for migrants who make the United States their home. Romero deftly and comprehensively explains the basic challenges immigrants and foreign nationals face, not only within formal immigration policy, but also within American domestic law generally, …
What The Constitution Means By “Duties, Imposts, And Excises”—And “Taxes” (Direct Or Otherwise), Robert G. Natelson
What The Constitution Means By “Duties, Imposts, And Excises”—And “Taxes” (Direct Or Otherwise), Robert G. Natelson
Robert G. Natelson
This Article recreates the original definitions of the U.S. Constitution’s terms “tax,” “direct tax,” “duty,” “impost,” “excise,” and “tonnage.” It draws on a greater range of Founding-Era sources than accessed heretofore, including eighteenth-century treatises, tax statutes, and literary source, and it corrects several errors made by courts and previous commentators. It concludes that the distinction between direct and indirect taxes was widely understood during the Founding Era, and that the term “direct tax” was more expansive than commonly realized. The Article identifies the reasons the Constitution required that direct taxes be apportioned among the states by population. It concludes that …
The Classical Constitution, Herbert Hovenkamp
The Classical Constitution, Herbert Hovenkamp
Herbert Hovenkamp
Conservative and libertarian constitutional writers have often pined for return to a "classical" understanding of American federal and state Constitutions. "Classical" does not necessarily mean "originalist" or "interpretivist." Some classical views, such as the attempt to revitalize Lochner-style economic due process, find little support in the text of the federal Constitution or any of the contemporary state constitutions. Rather, constitutional meaning is thought to lie in a background link between constitution formation and classical statecraft. The core theory rests on the assumption of a social contract to which everyone in some initial position agreed. Like any contract, it would …
Foreword: Transdisciplinary Conflicts Of Law, Ralf Michaels, Karen Knop, Annelise Riles
Foreword: Transdisciplinary Conflicts Of Law, Ralf Michaels, Karen Knop, Annelise Riles
Annelise Riles
This introduction to our co-edited special issue of Law and Contemporary Problems addresses how interdisciplinary studies might contribute to the revitalization of the field of Conflict of Laws. The introduction surveys existing approaches to interdisciplinarity in conflict of laws - drawn primarily from economics, political science, anthropology and sociology. It argues that most of these interdisciplinary efforts have remained internal to the law, relating conflicts to other legal spheres and issue areas. It summarizes some of the contributions of these projects but also outlines the ways they fall short of the full promise of interdisciplinary work in Conflicts scholarship, and …
The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster
The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster
Mark Fenster
This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial voice in Symbols and …
The Folklore Of Legal Biography, Mark Fenster
The Folklore Of Legal Biography, Mark Fenster
Mark Fenster
This essay reviews Spencer Weber Waller's recent biography of the legal realist Thurman Arnold (NYU Press 2005). Arnold's academic and popular writings during the 1930s - which not only critiqued what he saw as the foolishness and ill effects of legal formalism and political conservatism, but also recognized the symbolic authority of legal forms and conservative beliefs and the need for any reform movement to respect and appropriate them - force us to reconsider the entire project of legal biography. Arnold's life and work reveal the ways in which the forces of modernity - forces that Arnold celebrated in his …
A Different Sort Of Justice: The Informal Courts Of Public Opinion In Antebellum South Carolina, Elizabeth Dale
A Different Sort Of Justice: The Informal Courts Of Public Opinion In Antebellum South Carolina, Elizabeth Dale
Elizabeth Dale
Studies of nineteenth century legal history assume that the antebellum South, and antebellum South Carolina in particular, had a legal culture shaped by honor culture and marked by the hierarchical assumptions and extralegal violence that honor culture engendered. In this article, I offer a modification of that well-established account. While I do not question the influence of honor on South Carolina's antebellum legal culture, I suggest that the state had a second, shame-based system of popular justice, in which women played a prominent role. As was the case with honor culture, this second form of extralegal justice, which I have …
Antitrust Energy, D. Daniel Sokol, Barak Orbach
Antitrust Energy, D. Daniel Sokol, Barak Orbach
D. Daniel Sokol
Marking the centennial anniversary of Standard Oil Co. v. United States, we argue that much of the critique of antitrust enforcement and the skepticism about its social significance suffer from “Nirvana fallacy” — comparing existing and feasible policies to ideal normative policies, and concluding that the existing and feasible ones are inherently inefficient because of their imperfections. Antitrust law and policy have always been and will always be imperfect. However, they are alive and kicking. The antitrust discipline is vibrant, evolving, and global. This essay introduces a number of important innovations in scholarship related to Standard Oil and its modern …
The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt
The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt
Christopher W. Schmidt
Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Essay explains how this differentiation arose and considers its consequences.
Although there is a certain inherent logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech …