Law Commons^™

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 …

An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez

Miguel Martínez

The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.

Castle Doctrine And Cohabitants: A Selective, Annotated Bibliography, Luis Debonopaula

Luis deBonoPaula

No abstract provided.

Lights! Camera! Law School?: Using Video Interviews To Enhance First Semester Writing Assignments, Ian Gallacher

Ian Gallacher

This short article discusses why the Legal Communication and Research program at Syracuse University College of Law has used video interviews between hypothetical clients and attorneys as an alternative to the traditional assignment memo. The article also discusses some of the technical issues related to this approach and suggests some techniques budding producers might use to develop effective and engaging videos to enhance traditional legal writing assignments.

Enigma: A Variation On The Theme Of Legal Writing's Place In Contemporary Legal Education, Ian Gallacher

Ian Gallacher

No abstract provided.

Behavioral International Law, Tomer Broude

Tomer Broude

Economic analysis and rational choice have in the last decade made significant inroads into the study of international law and institutions, relying upon standard assumptions of perfect rationality of states and decision-makers. This approach is inadequate, both empirically and in its tendency towards outdated formulations of political theory. This article presents an alternative behavioral approach that provides new hypotheses addressing problems in international law while introducing empirically grounded concepts of real, observed rationality. First, I address methodological objections to behavioral analysis of international law: the focus of behavioral research on the individual; the empirical foundations of behavioral economics; and behavioral …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

The Metacognitive Imperative, Paul D. Callister

Paul D. Callister

This book chapter elucidates why metacognition is a seminal pedagogical principle of legal research instruction and information literacy. This begins with a holistic definition of metacognition as the ability to assess, not only the result of a research activity, but the schemata, including the processes leading to the result; and then relating this to other concepts and principles applicable to legal education. It then explains why students’ development of metacognitive abilities is an imperative to legal information literacy and other signature pedagogies currently under development. The relationship of metacognition to the pedagogical underpinnings and objectives of the Carnegie Report is …

Erasing Boundaries: Inter-School Collaboration And Its Pedagogical Opportunities, Ian Gallacher, Amy Stein, Robin A. Boyle, David Thomson

Ian Gallacher

This short article is the product of a presentation the four authors gave at the 2014 AALS Conference in New York City. In it, we briefly examine some of the problems facing legal education and propose that legal writing programs across the country could enhance the quality and complexity of the assignments they set if they worked together. Even though each faculty would teach the problem in their own way, and grade their own students' work, the possibilities offered by this approach would allow each school to simulate more closely the reality of law practice. The article includes some suggestions …

Legal Writing As Good Writing; Tips From The Trenches, Michael A. Zuckerman, Andrey Spektor

Michael A. Zuckerman

No abstract provided.

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). Now over 36 years old, NACD plays a major role in fostering excellence in corporate governance in the United States and beyond. Over the past thirty-six years NACD has grown from a mere realization of the importance of corporate governance to become the only national membership …

A Beautiful Life: Some Lessons For Legal Scholars, F.E. Guerra-Pujol

F.E. Guerra-Pujol

The author reviews Jeremy Adelman's biography of Albert O. Hirschman (Adelman, Worldly Philosopher: The Odyssey of Albert O. Hirschman, Princeton University Press, 2013). In particular, the author considers three episodes in Hirschman's life that not only expose the secret life of the scholar but also offer important lessons about law and legal scholarship generally.

Ideological Voting Applied To The School Desegregation Cases In The Federal Courts Of Appeals From The 1960’S And 70’S, Joe Custer

Joe Custer

This paper considers a research suggestion from Cass Sunstein to analyze segregation cases from the 1960's and 1970's and whether three hypothesis he projected in the article "Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation," 90 Va. L. Rev. 301 (2004), involving various models of judicial ideology, would pertain. My paper considers Sunstein’s three hypotheses in addition to other judicial ideologies to try to empirically determine what was influencing Federal Court of Appeals Judges in regard to Civil Rights issues, specifically school desegregation, in the 1960’s and 1970’s.

Cyberlaw: The Unconscionability,/ Unenforceability Of Contracts (Shrinkwrap, Clickwrap, And Browsewrap) On The Internet: A Multijurisdictional Analysis Showing The Need For Oversight., Paul J. Morrow Sr

Paul J. Morrow Sr

This paper analyzes the differences between the common law of contracts and the way various jurisdictions in the United States have applied new contract law doctrine as applied to cyber contracts. The paper also has recommendations on how to reconcile those differences. These differences could lead to a very unfair application of contract precedent essentially overturning 200 years of contract common law. This is the age of cyberspace and cyberlaw. If we do not begin to reconcile these differences, it could change the way our society does business. Do we adhere to precedent or are the changes warranted under the …

Jesus Follows The Socratic Method, Kristopher Eugene Nichols

Kristopher Eugene Nichols

This article, Jesus Follow the Socratic Method, is a detailed analysis and comparison of the trials of Socrates and Jesus of Nazareth. An investigation of these men and trials, two of the most famous in Western history, uncovers truths about human nature, the justice systems of these two ancient societies, and the power and danger of the spoken word to a vocal critical thinker in his own society. This article is twenty-two pages long, contains footnotes and follows the Bluebook format.

Time To Blossom: An Inquiry Into Bloom’S Taxonomy As A Means To Ordered Legal Research Skills, Paul D. Callister

Paul D. Callister

Within law librarianship and legal education, there has been far too little scholarly engagement on the underlying pedagogy at the heart of legal research instruction. To correct this deficiency, law librarianship needs to open a dialogue and should consider adapting Bloom’s Taxonomy as a common schema for a collaborative effort. This paper was initially presented at the "Conference on Legal Information: Scholarship and Teaching," held at the University of Colorado Law School on June 21-22, 2009, as part of its Boulder Summer Conference Series. It follows the author's own recently published challenge to law librarianship and legal research instructors to …

The Bahd Of New England: Citing Shakespeare In The First Circuit, Eugene L. Morgulis

Eugene L. Morgulis

This paper explores the ways in which judges in federal and state courts within the geographical region of the First Circuit have used the works and words of William Shakespeare to enhance their opinions. It not only exhaustively catalogs the plays and quotations that judges have cited since the 19th century, but it also analyzes the ways in they are used, discusses how they add or detract from opinions, and compares the use of Shakespeare to other authors commonly cited.

On-Line Legal Research Workshops, Frederick B. Jonassen

Frederick B. Jonassen

Like riding a bicycle, playing tennis, or driving a car, legal research is a skill, and like any other skill it is learned by doing and not by listening to a lecture, though lectures are indispensable for introducing the skill. The mental processes applied in electronic legal research may differ from those applied to book legal research, but because both electronic and book research are skills, a guided workshop in electronic legal research may be based on similar principles to that underlying a workshop in book legal research with appropriate modifications.

The aspects of the electronic legal workshop proposed here …

Citing Outside The Law Reports: Citations Of Secondary Authorities On The Australian State Supreme Courts Over The Twentieth Century, Russell Smyth

Russell Smyth

The purpose of this study is to examine trends in citations of secondary authorities in the six Australian State Supreme Courts based on decisions reported in the official state reports at decade intervals between 1905 and 2005. The main conclusions from the study are that citations of secondary authorities have increased over time; the State Supreme Courts cite fewer secondary authorities than the High Court; most citations of secondary authorities are to legal sources; and of the legal secondary authorities cited, the State Supreme Courts cites far fewer journal articles than legal texts. The study considers the implications of these …

"Ph.D. Lite": A New Approach To Teaching Scholarly Legal Writing, Jacqueline Lipton

Jacqueline D Lipton

Most American law schools require the satisfaction of an upper level writing requirement, usually in the form of a seminar paper, or “Note”, for graduation. The problem for many students is that the J.D. is not generally geared towards learning scholarly writing. In recent years, the author has experimented with reformulating a seminar class as a “writing workshop” in order to focus on the scholarly writing process. In so doing, she has drawn from experiences supervising legal research degrees in other countries where research-based LL.M. degrees and Ph.D. degrees in law are the norm. This essay details her approach – …

Integrating Wholesale Restorative Justice Within Irish Society; Issues And Considerations Facing Policymakers, Martin G. Haverty

Martin G Haverty

Restorative Justice has grown from a few scattered experimental projects, into a social movement and an identifiable field of practice and study. While restorative justice is provided for within the Irish criminal justice system, its application is confined under statute to juvenile offenders. The National Commission on Restorative Justice are now in the process of evaluating how a national roll out of restorative justice might be achieved within the jurisdiction. In this article the main challenges facing the National Commission on Restorative Justice (Ireland) will be outlined, particularly having regard to their terms of reference. The article will also explore …

Thinking Like A Research Expert: Schemata For Teaching Complex Problem-Solving Skills, Paul D. Callister

Paul D. Callister

The difference between expert and novice problem-solvers is that experts have organized their thinking into schemata or mental constructs to both see and solve problems. This article demonstrates why schemata are important, arguing that schemata need to be made explicit in the classroom. It illustrates the use of schemata to understand and categorize complex research problems, map the terrain of legal research resources, match appropriate resources to types of problems, and work through the legal research process. The article concludes by calling upon librarians and research instructors to produce additional schemata and develop a common hierarchical taxonomy of skills, a …

Now You See It, Now You Don't: Addressing The Issue Of Websites Which Are "Lost In Space", Patricia A. Broussard

Patricia A Broussard

This article takes a "light-hearted" approach to dealing with vanishing websites that have been used as footnotes in legal scholarship. It pokes a bit of fun at scholarship, but ultimately offers some solutions to the problem of vanishing websites.

Modern Disparities In Legal Education: Emancipation From Racial Neutrality, David Mears

David Mears

Abstract

Wealth, leadership and political power within any democratic society requires the highest caliber of a quality legal education. The Black experience is not necessarily a unique one within legal education but rather an excellent example of either poor to substandard quality disseminated unequally among racial and socioeconomic stereotypes based upon expected outcomes of probable success or failure. It is often said, “Speak and so it will happen” – many within the halls of academia work hard to openly predict failure yet seemingly do very little to foster success internally within the academic procedures and processes based on the customer …

Workshop Presentation Of National Commission On Restorative Justice At The Fifth Conference Of The European Forum For Restorative Justice Entitled "Cooperation Between The Public,, Martin G. Haverty

Martin G Haverty

No abstract provided.

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 …

Delegating Discrimination: Why Discretionary Licensing Statutes Controlling Concealed Carry Weapons Permits Contravene The Rule Of Law, Robert J. Endorf

Robert J. Endorf Jr.

The most significant change in this nation's firearm regulation in almost fifty years is the majority of states adopting liberalized rules for the carrying of concealed firearms. The political debate surrounding theses new "shall issue" licensing laws has almost unanimously confused two distinct issues. The debate has centered on whether states should issue many licenses, or virtually no licenses; however, because many licensing statutes date back to the turn of the twentieth century and were originally passed for highly suspect motives, such as outright racism or xenophobia, the issue of how best to issue licenses has been buried under the …

Four Decades Of The Duquesne Law Review Volumes 1-40 (1963-2002): A History, Joel Fishman

Joel Fishman

This article celebrates forty years of publication of the Duquesne Law Review.

Beyond Training: Law Librarianship’S Quest For The Pedagogy Of Legal Research Instruction, Paul D. Callister

Paul D. Callister

The paper (I) outlines the nature and extent of the dissatisfaction with legal research instruction and demonstrates that the problem predates computer-assisted legal research, (II) presents the history of the debate (focusing on a heated exchange between advocates of a “process-oriented” approach and proponents of the traditional, “bibliographic” methods), and (III) presents the requisite elements of a satisfactory pedagogical model, discussing various issues surrounding each of these elements.

In part III, the paper proposes that a complete pedagogical model requires (A) an identifiable and fully understood objective in teaching legal research (which objective must distinguish between the kinds of research …

The Digests Of Pennsylvania, Joel Fishman

Joel Fishman

Pennsylvania has one of the largest collections of case law for which digests serve as an important research tool.