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Full-Text Articles in Law
The Jury And Criminal Responsibility In Anglo-American History, Thomas A. Green
The Jury And Criminal Responsibility In Anglo-American History, Thomas A. Green
Articles
Anglo-American theories of criminal responsibility require scholars to grapple with, inter alia, the relationship between the formal rule of law and the powers of the lay jury as well as two inherent ideas of freedom: freedom of the will and political liberty. Here, by way of canvassing my past work and prefiguring future work, I sketch some elements of the history of the Anglo-American jury and offer some glimpses of commentary on the interplay between the jury—particularly its application of conventional morality to criminal judgments—and the formal rule of law of the state. My central intent is to pose questions …
The Multiple Common Law Roots Of Charitable Immunity: An Essay In Honor Of Richard Epstein's Contributions To Tort Law, Jill R. Horwitz
The Multiple Common Law Roots Of Charitable Immunity: An Essay In Honor Of Richard Epstein's Contributions To Tort Law, Jill R. Horwitz
Articles
Professor Epstein has long promoted replacing tort-based malpractice law with a new regime based on contracts. In Mortal Peril, he grounded his normative arguments in favor of such a shift in the positive, doctrinal history of charitable immunity law. In this essay, in three parts, I critique Professor Epstein’s suggestion that a faulty set of interpretations in charitable immunity law led to our current reliance on tort for malpractice claims. First, I offer an alternative interpretation to Professor Epstein’s claim that one group of 19th and early 20th century cases demonstrates a misguided effort to protect donor wishes. Rather, I …
Face To Face': Rediscovering The Right To Confront Prosecution Witnesses, Richard D. Friedman
Face To Face': Rediscovering The Right To Confront Prosecution Witnesses, Richard D. Friedman
Articles
The Sixth Amendment to the United States Constitution protects the right of an accused 'to confront the witnesses against him'. The United States Supreme Court has treated this Confrontation Clause as a broad but rather easily rebuttable rule against using hearsay on behalf of a criminal prosecution; with respect to most hearsay, the exclusionary rule is overcome if the court is persuaded that the statement is sufficiently reliable, and the court can reach that conclusion if the statement fits within a 'firmly rooted' hearsay exception. This article argues that this framework should be abandoned. The clause should not be regarded …
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Articles
When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions …
Confrontation Confronted, Richard D. Friedman, Margaret A. Berger, Steven R. Shapiro
Confrontation Confronted, Richard D. Friedman, Margaret A. Berger, Steven R. Shapiro
Articles
The following article is an edited version of the amicus curiae brief filed with the Supreme Court of the United States in the October Term, 1998, in the case of Benjamin Lee Lilly v. Commonwealth of Virginia (No. 98-5881). "This case raises important questions about the meaning of the confrontation clause, which has been a vital ingredient of the fair trial right for hundreds of years," Professor Richard Friedman and his co-authors say. "In particular, this case presents the Court with an opportunity to reconsider the relationship between the confrontation clause and the law of hearsay." On June 10 the …
Sociological Interpretation Of Law, Joseph H. Drake
Sociological Interpretation Of Law, Joseph H. Drake
Articles
It is not the purpose of this paper to essay a definition of either of the formidable words in the title. The object is rather to call attention away from the metaphysical question, what is law? to the sociological question, how may we best attain justice in the administration of law? and, by the aid of some examples from history and comparative law, to justify as legal and constitutional the sociological method of interpretation. That such justification is necessary is evident from the fact that although the dictum of Mr. Justice. HOLMES in the dissenting opinion in Lochner v. New …
Some Aspects Of Fifteenth Century Chancery, Willard T. Barbour
Some Aspects Of Fifteenth Century Chancery, Willard T. Barbour
Articles
IT is now more than thirty years since Justice Holmes in a brilliant and daring essay set on foot an inquiry which has revealed the remote beginnings of English equity. Equity and common law originated in one and the same procedure and existed for a long time, not only side by side, but quite undifferentiated from each other. Their origin is to be found in the system of royal justice which the genius of Henry II converted into the common law; but this royal justice was in the beginning as much outside of, or even antagonistic to, the ordinary judicial …
Corporations And Express Trusts As Business Organizations, Horace Lafayette Wilgus
Corporations And Express Trusts As Business Organizations, Horace Lafayette Wilgus
Articles
PRESIDENT BUTLER of Columbia University is reported to have said in an address before the New York Chamber of Commerce in 1911, that "the limited liability corporation is the greatest single discovery of modem times, whether you judge it by its social, by its ethical, by its industrial, or, in the long run--after we understand it and know how to use it,--by its political, effects." 1
English Law As An Exponent Of English History, Edson R. Sunderland
English Law As An Exponent Of English History, Edson R. Sunderland
Articles
It is not my purpose to unduly emphasize the light which the study of the laws of a people throws upon its character and development. The teaching of history should be broad enough to recognize the importance of all sides of national life. But I believe there has never been a sufficient appreciation of the real wealth of suggestive and illuminating material which is contained in the history of English law. For the English have been pre-eminently a legal race. In the study of Roman History Roman Law has always occupied a prominent place. The Romans made their reputation, so …
Surface Water In Cities, John R. Rood
Surface Water In Cities, John R. Rood
Articles
It is evident that no one hard and fast rule could be applied to all cases, either in city or country, without producing injustice and impolitic results. The needs and conditions in city and country are different. They usually differ widely in different parts of the same city. These considerations have induced the Supreme Court of New Hampshire to adopt the flexible rule, that: "In determining this question all the circumstances of the case would, of course, be considered; and among them the nature and importance of the improvements sought to be made, the extent of the interference with the …
Statute Of Uses And The Modern Deed, John R. Rood
Statute Of Uses And The Modern Deed, John R. Rood
Articles
To what extent does the modem conveyance of estates in land in the United States by deed derive its validity from the English Statute of Uses, 27 Hen. 8, c. IO? No doubt the student, and especially the teacher, is inclined to magnify the importance of mere matters of history, because it is so much easier to understand or explain many of the terms and doctrines of real property law by approaching them historically, and, indeed, many of them cannot otherwise be understood at all. And yet we all have this constant, serious, and often difficult task, of separating matter …
The "Law Reports", Nathan Abbott
The "Law Reports", Nathan Abbott
Articles
The period between the years 1860 and 1870 marks an interesting stage in the history of law reporting. Within this period a system of reporting that had existed for upward of three centuries came to an end, and an experiment was begun whereby it was hoped to produce reports not merely in a new way, but reports that were to be materially different in form and substance from those of the previous system. The conception of the enterprise and its successful accomplishment is due to the energy and discretion of one man, whose history of the affair, after twenty years …
Limits To State Control Of Private Business, Thomas M. Cooley
Limits To State Control Of Private Business, Thomas M. Cooley
Articles
The present purpose is to inquire whether, in the matter of the regulation of property rights and of business, legislation has not of late been occupying doubtful, possibly unconstitutional grounds. The discussion in the main must be limited to fundamental.-principles, aided by such light as legal and constitutional history may throw upon them, since the express provisions of the constitutions can give little assistance. They always contain the general guaranty of due process of law to life, liberty, and property, but in other particulars they for the most part leave protection to principles which have come from the common law. …