Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 7 of 7

Full-Text Articles in Law

Making Law, Making War, Making America (Revised 12/6/06), Mary Dudziak Dec 2006

Making Law, Making War, Making America (Revised 12/6/06), Mary Dudziak

University of Southern California Legal Studies Working Paper Series

It is often said that “in times of war, law is silent,” but this essay argues that the experience of the twentieth century provides a sharp contrast to this old saying. It is not just that law was not silent during warfare, but that law provided a language within which war could be seen. War is not a natural category outside the law, but is in part produced by it. Across decades of conflict, law was a marker that defined for the nation some of those times when conflict would be contemplated as a “war,” and helped cabin other uses ...


The Corporate Origins Of Judicial Review, Mary Sarah Bilder Dec 2006

The Corporate Origins Of Judicial Review, Mary Sarah Bilder

Boston College Law School Faculty Papers

This Article argues that the origins of judicial review lie in corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or in the American structure of government, the Article argues that judicial review was the continuation of a longstanding English practice of constraining corporate ordinances by requiring that they be not repugnant to the laws of the nation. This practice of limiting legislation under the standard of repugnancy to the laws of England became applicable to American colonial law. The history of this repugnancy practice explains why the Framers of the Constitution presumed ...


Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy Nov 2006

Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy

Boston College Law School Faculty Papers

In this article the author explores how domestic violence prevention efforts have been adversely impacted by the Supreme Court’s new “testimonial” approach to the confrontation clause. Examining the Court’s trilogy of cases from Crawford to Davis and Hammon, the author argues that the introduction of certain forms of hearsay in criminal cases has been drastically limited by the court’s new originalist approach to the Sixth Amendment. The author explains how state spousal privilege statutes often present a significant barrier to obtaining live testimony from victims of domestic violence. The author then argues that state legislatures should reconsider ...


The Common Law As An Iterative Process: A Preliminary Inquiry, Lawrence A. Cunningham Jun 2006

The Common Law As An Iterative Process: A Preliminary Inquiry, Lawrence A. Cunningham

Boston College Law School Faculty Papers

The common law often is casually referred to as an iterative process without much attention given to the detailed attributes such processes exhibit. This Article explores this characterization, uncovering how common law as an iterative process is one of endless repetition that is simultaneously stable and dynamic, self-similar but evolving, complex yet simple. These attributes constrain the systemic significance of judicial discretion and also confirm the wisdom of traditional approaches to studying and learning law. As an iterative system, common law exhibits what physicists call sensitive dependence on initial conditions. This generates a path dependency from which it may be ...


You’Re So Vain, I’Ll Bet You Think This Song Is About You, Joseph W. Dellapenna Apr 2006

You’Re So Vain, I’Ll Bet You Think This Song Is About You, Joseph W. Dellapenna

Working Paper Series

Dispelling the Myths of Abortion History covers over 1,000 years of abortion history in England and America, with special emphasis on the nineteenth and twentieth centuries. It presents an accurate and thoroughly fresh look at that history, reaching several unorthodox conclusions without taking sides on the merits of the abortion debate. The true history of abortion in England and America is important because Justice Harry Blackmun, drawing on the work of law professor Cyril Means, structured the argument of the majority in Roe v. Wade around the history of abortion laws. Means’ argument was later buttressed by the work ...


Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg Mar 2006

Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg

Rutgers Law School (Newark) Faculty Papers

Judicial opinions typically rely on facts about a social group to justify or reject limitations on group members' rights, especially when traditional views about the status or capacity of group members are in contest. Yet the fact based approach to decision making obscures the normative judgments that actually determine whether restrictions on individual rights are reasonable. This article offers an account of how and why courts intervene in social conflicts by focusing on facts rather than declaring norms. In part, it argues that this approach preserves judicial flexibility to retain traditional justifications for restricting group members' rights in some settings ...


The Cost Of Good Intentions: Why The Supreme Court's Decision Upholding Affirmative Action Admission Programs Is Detrimental To The Cause, Leslie Yalof Garfield Jan 2006

The Cost Of Good Intentions: Why The Supreme Court's Decision Upholding Affirmative Action Admission Programs Is Detrimental To The Cause, Leslie Yalof Garfield

Pace Law Faculty Publications

This article provides an overview of the Federal Courts’ interpretation of equal protection challenges to affirmative action admission policies beginning with University of California v. Bakke through the recent Supreme Court decisions of Grutter v. Bollinger and Gratz v. Bollinger. The article then identifies and outlines the appropriate elements of a constitutionally sound affirmative action admission policy. Finally, the article concludes that the permissible policy is almost unattainable for schools other than small institutions.