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Articles 1 - 30 of 428
Full-Text Articles in Law
Does The Second Amendment Protect Firearms Commerce?, David B. Kopel
Does The Second Amendment Protect Firearms Commerce?, David B. Kopel
David B Kopel
The Second Amendment protects the operation of businesses which provide Second Amendment services, including gun stores. Although lower federal courts have split on the issue, the right of firearms commerce is demonstrated by the original history of the Second Amendment, confirmed by the Supreme Court in District of Columbia v. Heller, and consistent with the Court's precedents on other individual rights.
What Notice Did, Jessica Litman
What Notice Did, Jessica Litman
Jessica Litman
In this article, I explore the effect of the copyright notice prerequisite on the law's treatment of copyright ownership. The notice prerequisite, as construed by the courts, encouraged the development of legal doctrines that herded the ownership of copyrights into the hands of publishers and other intermediaries, notwithstanding statutory provisions that seem to have been designed at least in part to enable authors to keep their copyrights. Because copyright law required notice, other doctrinal developments were shaped by and distorted by that requirement. The promiscuous alienability of U.S. copyrights may itself have been an accidental development deriving from courts' constructions …
The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt
The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt
Mark P Nevitt
Climate change is the world’s greatest environmental threat. And it is increasingly understood as a threat to domestic and international peace and security. In recognition of this threat, the President has taken the initiative to prepare for climate change’s impact – in some cases drawing sharp objections from Congress. While both the President and Congress have certain constitutional authorities to address the national security threat posed by climate change, the precise contours of their overlapping powers are unclear. As Commander in Chief, the President has the constitutional authority to repel sudden attacks and take care that the laws are faithfully …
"Fusiles E Ideas" Por Raúl Chaname, Raul Chaname Orbe
"Fusiles E Ideas" Por Raúl Chaname, Raul Chaname Orbe
Raúl Chanamé Orbe
No abstract provided.
Hegelian Dialectical Analysis Of United States Election Laws, Charles E. A. Lincoln Iv
Hegelian Dialectical Analysis Of United States Election Laws, Charles E. A. Lincoln Iv
Charles E. A. Lincoln IV
This Article uses the dialectical ideas of German philosopher Georg Wilhelm Friedrich Hegel (1770-1833) in application to the progression of United States voting laws since the founding. This analysis can be used to interpret past progression of voting rights in the US as well as a provoking way to predict the future trends in US voting rights. First, Hegel’s dialectical method is established as a major premise. Second, the general accepted history of United States voting laws from the 1770s to the current day is laid out as a minor premise. Third, the major premise of Hegel’s dialectical method weaves …
The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan
Trevor J Calligan
No abstract provided.
Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra
Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra
Thiago Luís Santos Sombra
With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …
El Juicio A Sócrates, Raul Chaname Orbe
El Juicio A Sócrates, Raul Chaname Orbe
Raúl Chanamé Orbe
Sócrates (470-399 a.n.e.) es un mito del pensamiento occidental. Su magisterio intelectual fue fecundo en la antigua Grecia y su método mayeútico sentó las bases de la racionalidad europea; su vida fue austera y su polémica muerte lo hizo un ícono de la moral postsocrática.
Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra
Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra
Thiago Luís Santos Sombra
This essay propose an analysis about how Warren Court became one of the most particular in American History by confronting Jim Crow law, especially by applying the Bill of Rights. In this essay, we propose an analysis of how complex the unwritten Constitution is. Cases like Brown vs. Board of Education will be analyzed from a different point of view to understand the methods of the Court.
The 100-Plus Year Old Case For A Minimalist Criminal Law (Sketch Of A General Theory Of Substantive Criminal Law), Mike C. Materni
The 100-Plus Year Old Case For A Minimalist Criminal Law (Sketch Of A General Theory Of Substantive Criminal Law), Mike C. Materni
Mike C Materni
Criminal law defines the system of government of which it is the political expression; thus having a normative theory of substantive criminal law is paramount. U.S. criminal law has developed in the absence of such overarching theory, and is now plagued by overcriminalization. This article advances a model of a minimalist criminal law grounded on strong normative principles that are presented and defended not from the perspective of metaphysics or moral philosophy; but rather, in a historical and comparative perspective, as a matter of political choice. Core among those principles is the idea that in a liberal democracy the criminal …
Free Exercise For Whom? -- Could The Religious Liberty Principle That Catholics Established In Perez V. Sharp Also Protect Same-Sex Couples' Right To Marry?, Eric Alan Isaacson
Free Exercise For Whom? -- Could The Religious Liberty Principle That Catholics Established In Perez V. Sharp Also Protect Same-Sex Couples' Right To Marry?, Eric Alan Isaacson
Eric Alan Isaacson
Recent discussions about the threat that same-sex couples hypothetically pose to the religious freedom of Americans whose religions traditions frown upon same-sex unions have largely overlooked the possibility that same-sex couples might have their own religious-liberty interest in being able to marry. The General Synod of the United Church of Christ brought the issue to the fore with an April 2014 lawsuit challenging North Carolina laws barring same-sex marriages. Authored by a lawyer who represented the California Council of Churches and other religions organizations as amici curiae in recent marriage-equality litigation, this article argues that although marriage is a secular …
The Hypocrisy Of "Equal But Separate" In The Courtroom: A Lens For The Civil Rights Era, Jaimie K. Mcfarlin
The Hypocrisy Of "Equal But Separate" In The Courtroom: A Lens For The Civil Rights Era, Jaimie K. Mcfarlin
Jaimie K. McFarlin
This article serves to examine the role of the courthouse during the Jim Crow Era and the early stages of the Civil Rights Movement, as courthouses fulfilled their dual function of minstreling Plessy’s call for “equality under the law” and orchestrating overt segregation.
The Interwoven Destinies Of The United States, Colombia And Panama: On Friendship, Commerce And Navigation Treaties And International Legal Imperialism, Marco Velásquez-Ruiz
The Interwoven Destinies Of The United States, Colombia And Panama: On Friendship, Commerce And Navigation Treaties And International Legal Imperialism, Marco Velásquez-Ruiz
Marco A. Velásquez-Ruiz
Based on the general contention that International Law can (and has) served imperialist purposes – that is to say, extend a nation’s authority over another by establishing an effective influence on its political and economic affairs –, this paper intends to illustrate how the 1846 Friendship, Commerce and Navigation Treaty concluded between the United States and Colombia – commonly known as the Mallarino-Bidlack Treaty –was eventually used by the former as a neocolonial device on the latter. Essentially, the suggested tale on which this paper is built goes as follows: to a great extent, the United States consolidated its global …
An Invisible Hand Behind: The Myth Of The Chinese Tax System, Yan Xu
An Invisible Hand Behind: The Myth Of The Chinese Tax System, Yan Xu
Yan XU
To the casual observer, China in 2014 bears little resemblance to imperial society in place two thousand years ago. The agrarian rural society that dominated until recently has shifted to an urbanized services and manufacturing society. The emperor is long dead, along with the Republic government that followedand the subsequent Communist regime has morphed into Party led oligarchy guiding a state controlled market economy. A closer look, however, reveals a remarkable continuity of features. It seems that some aspects of life in China are more resistant to change and the continuity of these features to today indicates that some fundamental …
Lessons In Fiscal Activism, Mirit Eyal-Cohen
Lessons In Fiscal Activism, Mirit Eyal-Cohen
Mirit Eyal-Cohen
This article highlights an anomaly. It shows that two tax rules aimed to achieve a similar goal were introduced at the same time. Both meant to be temporary and bring economic stimuli but received a dramatically different treatment. The economically inferior rule survived while its superior counterpart did not. The article reviews the reasons for this paradox. It shows that the causes are both political and an agency problem. The article not only enriches an important and ongoing debate that has received much attention in recent years, but also provides important lessons to policymakers.
Jurisdictional Complexity In The Ecclesiastical State. Discussions Of Diversity Of Laws In Legal Education And In Legal Practice, Adolfo Giuliani
Jurisdictional Complexity In The Ecclesiastical State. Discussions Of Diversity Of Laws In Legal Education And In Legal Practice, Adolfo Giuliani
Adolfo Giuliani
This essay focuses on the multinormativity (diversitas legum) of the Ecclesiastical State, perhaps the most complicated legal system of the early-modern period.
Such multinormative environment is studied in two contexts: legal education and legal practice; the first in a lecture on the differentiae between canon and civil law by G.P. Lancellotti (1573), and the second in an account of the sources of law given by G.B. De Luca (1670s).
The Lost Due Process Doctrines, Paul J. Larkin Jr.
The Lost Due Process Doctrines, Paul J. Larkin Jr.
Paul J Larkin Jr.
In order to render manageable the doctrinal development of the Due Process Clause, the Supreme Court over the last fifty years has attempted to fit its decisions into one of two distinct categories: procedural requirements that the government must satisfy before depriving someone of life, liberty, or property, and substantive limitations on exactly what deprivations the government may accomplish. Unfortunately, neither the law nor life can be so easily classified. The Court has decided numerous cases that defy its recent attempts to divide Gaul into two parts, not three (or more). Several due process doctrines seem to have been isolated …
Global Administrative Law And Deliberative Democracy, Benedict Kingsbury, Megan A. Donaldson, Rodrigo Vallejo
Global Administrative Law And Deliberative Democracy, Benedict Kingsbury, Megan A. Donaldson, Rodrigo Vallejo
Megan A Donaldson
An early framing of ‘global administrative law’ (GAL) provisionally ‘bracket[ed] the question of democracy’ as too ambitious an ideal for global administration. To many, the bracketing of democracy has appeared analytically unpersuasive and normatively dubious. This essay is an initial attempt to open the brackets and bring GAL and democracy into conversation. It addresses two separate observations: first, that democracy currently lacks tools to respond to the globalization and diffusion of political authority; and secondly, that GAL is not presently democratic — it has no room for democratic concerns in its emerging norms. The juxtaposition of democracy and GAL yields …
Silent Similarity, Jessica Litman
Silent Similarity, Jessica Litman
Jessica Litman
From 1909 to 1930, U.S. courts grappled with claims by authors of prose works claiming that works in a new art form -- silent movies -- had infringed their copyrights. These cases laid the groundwork for much of modern copyright law, from their broad expansion of the reproduction right, to their puzzled grappling with the question how to compare works in dissimilar media, to their confusion over what sort of evidence should be relevant to show copyrightability, copying and infringement. Some of those cases – in particular, Nichols v. Universal Pictures – are canonical today. They are not, however, well-understood. …
Applying Software Development Techniques To Statutory Drafting, Hyun G. Lee
Applying Software Development Techniques To Statutory Drafting, Hyun G. Lee
Hyun G Lee
This note will examine three characteristics common in poor statutory drafting: legalese, ambiguity, and poor conceptual organization. Legalese is the arcane, lawyerly language that is hard to understand for the layperson. Some common-sense solutions can counter the use of legalese. Ambiguity, which can be either semantic or syntactic, is the uncertainty due to the multiple valid interpretations of the statute. Normalization technique, adapted from the mathematical notation of symbolic logic, can eliminate most ambiguities. Poor conceptual organization results in conceptually related topics physically scattered throughout the statute. Hypertext, legal dialectic, and object-oriented analysis and design are possible solutions to this …
The Posse Comitatus And The Office Of Sheriff: Armed Citizens Summoned To The Aid Of Law Enforcement, David B. Kopel
The Posse Comitatus And The Office Of Sheriff: Armed Citizens Summoned To The Aid Of Law Enforcement, David B. Kopel
David B Kopel
Posse comitatus is the legal power of sheriffs and other officials to summon armed citizens to aid in keeping the peace. The posse comitatus can be traced back as least as far as the reign of Alfred the Great in ninth century England. The institution thrives today in the United States; a study of Colorado finds many county sheriffs have active posses. Like the law of the posse comitatus, the law of the office of sheriff has been remarkably stable for over a millennium. This Article presents the history and law of the posse comitatus and the office of sheriff …
The Widespread Handcuffing Of Arrestees In The United States, Francois Quintard-Morenas
The Widespread Handcuffing Of Arrestees In The United States, Francois Quintard-Morenas
Francois Quintard-Morenas
Handcuffing in the United States has become ubiquitous, regardless of age, offense, or circumstances. Across the nation, children, teenagers, women, men, and elders are handcuffed upon arrest for the most minor offenses. Their ages range from five to ninety-seven. This phenomenon has received little attention from legal scholars, despite its dramatic reversal of a long-standing common law rule.
At common law, police officers were prohibited from handcuffing arrestees absent special circumstances, such as a threat to safety, resistance, or risk of escape. Established in nineteenth-century England and embraced early by U.S. courts, this principle still prevails in most common law …
La Rebeldía De J.Waldron: ¿Es Democrático El Control Judicial Constitucional?, Joshimar De La Cruz Aroni
La Rebeldía De J.Waldron: ¿Es Democrático El Control Judicial Constitucional?, Joshimar De La Cruz Aroni
Joshimar De la cruz Aroni
Constitutional Law
Unintended Consequences: The Posse Comitatus Act In The Modern Era, Mark P. Nevitt
Unintended Consequences: The Posse Comitatus Act In The Modern Era, Mark P. Nevitt
Mark P Nevitt
America was born in revolution. Outraged at numerous abuses by the British crown—to include the conduct of British soldiers in the colonists’ daily lives— Americans declared their independence, creating a new republic with deep suspicions of a standing Army. These suspicions were intensely debated at the time of the nation’s formation and enshrined in the Constitution. But congressional limitations on the role of the military in day-to-day affairs would have to wait. They were not put in place until after the Civil War when southern congressmen successfully co- opted the framers’ earlier concerns of a standing Army and passed a …
The Origins Of Affirmative Fiscal Action, Mirit Eyal-Cohen
The Origins Of Affirmative Fiscal Action, Mirit Eyal-Cohen
Mirit Eyal-Cohen
This article highlights an anomaly. It shows that two tax rules aimed to achieve a similar goal were introduced at the same time. Both meant to be temporary and bring economic stimuli, but received a dramatically different treatment. The less efficient or economically inferior survived. Its superior counterpart did not. The article reviews the reasons for this paradox. It shows that the reason is both political and an agency problem. The article not only enriches an important and ongoing debate that has received much attention in recent years, but also provides important lessons to policymakers.
Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman
Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman
Lawrence J. Trautman Sr.
Effective corporate governance is critical to the productive operation of the global economy and preservation of our way of life. Excellent governance execution is also required to achieve economic growth and robust job creation in any country. In the United States, the premier director membership organization is the National Association of Corporate Directors (NACD). Since 1978, NACD plays a major role in fostering excellence in corporate governance in the United States and beyond. The NACD has grown from a mere realization of the importance of corporate governance to become the only national membership organization created by and for corporate directors. …
Balancing The Scales: Adhuc Sub Judice Li Est Or Trial By Media, Casey J. Cooper
Balancing The Scales: Adhuc Sub Judice Li Est Or Trial By Media, Casey J. Cooper
Casey J Cooper
The right to freedom of expression and free press is recognized under almost all major human rights instruments and domestic legal systems—common and civil—in the world. However, what do you do when a fundamental right conflicts with another equally fundamental right, like the right to a fair trial? In the United States, the freedom of speech, encompassing the freedom of the press, goes nearly unfettered: the case is not the same for other common law countries. In light of cultural and historic facts, institutional factors, modern realities, and case-law, this Article contends that current American jurisprudence does not take into …
An Other History Of Knowledge And Decision In Precautionary Approaches To Sustainability, Saptarishi Bandopadhyay
An Other History Of Knowledge And Decision In Precautionary Approaches To Sustainability, Saptarishi Bandopadhyay
Saptarishi Bandopadhyay
In this paper, I offer an alternative reading of precaution with the hope of recovering the capacity of this ethic to facilitate legal and political decisions. Despite being a popular instrument of international environmental governance, decision-makers continue to understand this principle as reflecting an immemorial and natural instinct for preserving the environment in cases of scientific uncertainty. Such a reading, however, ignores the history and moral basis underlying this principle and thereby renders it obvious, and automatically adaptable to the politics of Sustainable Development. By offering a thicker history of precautionary governance at exemplary moments of ecological crisis I trace …
Remembering George Michaely, Lawrence J. Trautman, Stanley Sporkin, John A. Dudley
Remembering George Michaely, Lawrence J. Trautman, Stanley Sporkin, John A. Dudley
Lawrence J. Trautman Sr.
This short essay is a memorial tribute about George P. Michaely, Jr. (1926 to 2014). After graduating from both the University of Notre Dame and its law school, he began his legal career, serving for approximately seven years as attorney in the Office of General Counsel. He was then appointed Chief Counsel of the Commission’s Division of Corporation Finance, where he served for approximately the next four years and was responsible for advising the Commission and the public concerning the interpretation of the statutory provisions and rules relating to the registration provisions of the Securities Act of 1933 and the …
A Legal-Historical Review Of The Eu Competition Rules, Anca Daniela Chirita
A Legal-Historical Review Of The Eu Competition Rules, Anca Daniela Chirita
Anca Daniela Chirita
This article aims to review EU competition rules by undertaking a historical purposive interpretation of the drafting process of the Treaty of Rome. It reveals new insights based on a consideration of several historical archives starting with the Schuman plan, the Founding Treaty establishing the European Coal and Steel Community and the negotiations of the Treaty of Rome. Questions of contemporary relevance are explored, relating to the goals of competition law, the historical distinction between ‘object’ and ‘effect’ under Article 101 TFEU, the possibility of an enforcement gap under Article 102 TFEU, the relationship between unfair competition and the prohibition …