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Full-Text Articles in Law

The Law Book: From Hammurabi To The International Criminal Court, 250 Milestones In The History Of Law (Sterling), Michael Roffer Nov 2015

The Law Book: From Hammurabi To The International Criminal Court, 250 Milestones In The History Of Law (Sterling), Michael Roffer

Books

The Law Book explores 250 of the most significant legal issues, cases, trials, and events that have profoundly changed our world. Although the heaviest emphasis is on American law it also touches on more than a dozen countries and the European Union, laws relating to Antarctica and Outer Space, and principles of international law. Among the topics it explores are the earliest legal codes, the role of juries, slavery and emancipation, civil rights, Native Americans, copyright, the press and free speech, immigration, censorship and obscenity, the environment, war and international relations, war crimes and trials, the insanity defense, taxation, prohibition ...


The History Of Firearm Magazines And Magazine Prohibitions, David B. Kopel Jan 2015

The History Of Firearm Magazines And Magazine Prohibitions, David B. Kopel

David B Kopel

In recent years, the prohibition of firearms magazines has become an important topic of law and policy debate. This Article details the history of magazines and of magazine prohibition.

Because ten rounds is an oft-proposed figure for magazine bans, Part I of the Article provides the story of such magazines from the earliest sixteenth century onward. Although some people think that multi-shot guns did not appear until Samuel Colt invented the revolver in the 1830s, multi-shot guns predate Col. Colt by over two centuries.

Especially because the Supreme Court’s decision in District of Columbia v. Heller considers whether arms ...


New York Times V. Sullivan And The Rhetorics Of Race: A Look At The Briefs, Oral Arguments, And Opinions, Carlo A. Pedrioli Jan 2015

New York Times V. Sullivan And The Rhetorics Of Race: A Look At The Briefs, Oral Arguments, And Opinions, Carlo A. Pedrioli

Carlo A. Pedrioli

Given the strife of the Civil Rights Movement that surrounded the case, this article looks back at the use of race in New York Times v. Sullivan. Specifically, the article examines how the advocates, led by Herbert Wechsler for the Times, I. H. Wachtel, William Rogers, and Samuel Pierce for the four ministers, and Roland Nachman for Sullivan, dealt with race in their rhetorics to the Court, both in their merits briefs and their oral arguments, and also how the justices used race in their opinions. Although Justice William Brennan did not explicitly focus on race in his opinion for ...


The Royal Proclamation Of 1763 And The Aboriginal Constitution, Brian Slattery Dec 2014

The Royal Proclamation Of 1763 And The Aboriginal Constitution, Brian Slattery

Brian Slattery

In Manitoba Metis Federation, the Supreme Court of Canada makes a valuable contribution to our understanding of Aboriginal law. Building on the foundations laid down in the Haida Nation case, the Court identifies three major pillars of the subject: the Royal Proclamation of 1763, the Honour of the Crown, and Aboriginal Treaties. These three, taken together, make up the framework of the Aboriginal Constitution, which parallels the Federal Pact between the Provinces and provides the Constitution of Canada with its most ancient roots.


Putting Progress Back Into Progressive: Reclaiming A Philosophy Of History For The Constitution, David Aram Kaiser Jan 2014

Putting Progress Back Into Progressive: Reclaiming A Philosophy Of History For The Constitution, David Aram Kaiser

Washington University Jurisprudence Review

No abstract provided.


The Origins And Meaning Of “Vacancies That May Happen During The Recess” In The Constitution’S Recess Appointments Clause, Robert G. Natelson Jan 2014

The Origins And Meaning Of “Vacancies That May Happen During The Recess” In The Constitution’S Recess Appointments Clause, Robert G. Natelson

Robert G. Natelson

There has been longstanding uncertainty about the meaning of “the Recess” and “Vacancies that may happen” in the Constitution’s Recess Appointments Clause. This Article finds that both “the Recess” and close variants of “Vacancies that may happen” were standard terms in Founding-Era legislative practice, and appear copiously in legislative records. Those records inform us that “the Recess” means only the intersession recess and that a vacancy “happens” only when it first arises.


Critiquing Modern-Day U.S. Legal Education With Rhetoric: Frank's Plea And The Scholar Model Of The Law Professor Persona, Carlo A. Pedrioli Jan 2014

Critiquing Modern-Day U.S. Legal Education With Rhetoric: Frank's Plea And The Scholar Model Of The Law Professor Persona, Carlo A. Pedrioli

Carlo A. Pedrioli

This article explains how, from 1920 to 1960, the role, or persona, of the law professor in the United States remained the situs of considerable rhetorical controversy that the role had been in the fifty years before 1920. On one hand, lawyers used rhetoric to promote a persona, that of a scholar, appropriate for the law professor situated within the university, a context suitable for the professionalization of law. On the other hand, different lawyers like Judge Jerome Frank used rhetoric to critique, often in a scathing manner, the scholar persona and put forth their own persona, that of a ...


Entender Los Males Económicos Modernos A La Luz De La Doctrina Social Católica, Brian M. Mccall Dec 2013

Entender Los Males Económicos Modernos A La Luz De La Doctrina Social Católica, Brian M. Mccall

Brian M McCall

In a general sense, St. Thomas Aquinas predicted the paralysis and chaos of the financial and economic systems in America and Europe which occurred in 2008, when he predicted that in a society where unjust exchanges dominate, eventually all exchanges will cease. St. Thomas also points out that although human law cannot prohibit all injustice, society cannot escape the consequences of transgressing the divine law which leaves “nothing unpunished.” Thus, at least part of the explanation for that crisis whose effects remain with us today lies in continuous violations of natural justice by our economic system. Neither one product nor ...


Entender Los Males Economómicos Modernos A La Luz De La Doctrina Social Cátolica (Understanding Modern Economic Woes In Light Of Catholic Social Doctrine), Brian M. Mccall Dec 2013

Entender Los Males Economómicos Modernos A La Luz De La Doctrina Social Cátolica (Understanding Modern Economic Woes In Light Of Catholic Social Doctrine), Brian M. Mccall

Brian M McCall

En sentido general, Santo Tomás Aquino predijo la parálisis y el caos del sistema financiero económico en Estados Unidos y Europa que ocurrió en 2008, cuando predijo que en una sociedad donde los intercambios injustos dominan, eventualmente todos los intercambios podrán cesar. Santo Tomás también señala que aunque la ley humana no pueda prohibir todas las injusticias, la sociedad no puede escapar de las consecuencias de trasgredir la ley divina que no deja nada en la impunidad. Así, al menos una parte de la explicación para esta crisis cuyos efectos permanecen con nosotros en la actualidad se encuentra en las ...


The Natural Relationship Of Church And State Within The Kingdom Of Christ Based On The Encyclical Immortale Dei Of Pope Leo Xiii, Brian M. Mccall Oct 2013

The Natural Relationship Of Church And State Within The Kingdom Of Christ Based On The Encyclical Immortale Dei Of Pope Leo Xiii, Brian M. Mccall

Brian M McCall

This lecture addresses the natural relationship between Church and State and explains Catholic Social Teaching regarding the organization of civil society.


Founding-Era Conventions And The Meaning Of The Constitution’S “Convention For Proposing Amendments”, Robert G. Natelson Jan 2013

Founding-Era Conventions And The Meaning Of The Constitution’S “Convention For Proposing Amendments”, Robert G. Natelson

Robert G. Natelson

Under Article V of the U.S. Constitution, two thirds of state legislatures may require Congress to call a “Convention for proposing Amendments.” Because this procedure has never been used, commentators frequently debate the composition of the convention and the rules governing the application and convention process. However, the debate has proceeded almost entirely without knowledge of the many multi-colony and multi-state conventions held during the eighteenth century, of which the Constitutional Convention was only one. These conventions were governed by universally-accepted convention practices and protocols. This Article surveys those conventions and shows how their practices and protocols shaped the ...


Ancient Hebrew Militia Law, David B. Kopel Jan 2013

Ancient Hebrew Militia Law, David B. Kopel

David B Kopel

The history of the laws of warfare and of arms possession in the ancient Hebrew kingdoms.


Constructing Modern-Day U.S. Legal Education With Rhetoric: Langdell, Ames, And The Scholar Model Of The Law Professor Persona, Carlo A. Pedrioli Jan 2013

Constructing Modern-Day U.S. Legal Education With Rhetoric: Langdell, Ames, And The Scholar Model Of The Law Professor Persona, Carlo A. Pedrioli

Carlo A. Pedrioli

This article explains how lawyers like Christopher Columbus Langdell and James Barr Ames, a disciple of Langdell, employed rhetoric between 1870, when Langdell assumed the deanship at Harvard Law School, and 1920, when law had emerged as a credible academic field in the United States, to construct a persona, that of a scholar, appropriate for the law professor situated within the university. To do so, the article contextualizes the rhetoric with historical background on the law professor and legal education, draws upon rhetorical theory to give an overview of persona theory and persona analysis as a means of conducting the ...


Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn Jan 2013

Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn

Akron Law Publications

People have a fundamental need to think of themselves as “good people.” To achieve this we tell each other stories – we create myths – about ourselves and our society. These myths may be true or they may be false. The more discordant a myth is with reality, the more difficult it is to convince people to embrace it. In such cases to sustain the illusion of truth it may be necessary to develop an entire mythology – an integrated web of mutually supporting stories. This paper explores the system of myths that sustained the institution of slavery in the antebellum United States.


Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn Dec 2012

Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn

Wilson R. Huhn

People have a fundamental need to think of themselves as “good people.” To achieve this we tell each other stories – we create myths – about ourselves and our society. These myths may be true or they may be false. The more discordant a myth is with reality, the more difficult it is to convince people to embrace it. In such cases to sustain the illusion of truth it may be necessary to develop an entire mythology – an integrated web of mutually supporting stories. This paper explores the system of myths that sustained the institution of slavery in the antebellum United States.


More Than Formulaic, Arthur Mitchell Fraas Oct 2012

More Than Formulaic, Arthur Mitchell Fraas

Unique at Penn

Contextual essay about an 18th-century American legal formulary created by Jared Ingersoll.


How Bad Were The Official Records Of The Federal Convention?, Mary Sarah Bilder Oct 2012

How Bad Were The Official Records Of The Federal Convention?, Mary Sarah Bilder

Mary Sarah Bilder

The official records of the Constitutional Convention of 1787 have been neglected and dismissed by scholars for the last century, largely to due to Max Farrand’s criticisms of both the records and the man responsible for keeping them - Secretary of the Convention William Jackson. This Article disagrees with Farrand’s conclusion that the Convention records were bad, and aims to resurrect the records and Jackson’s reputation. The Article suggests that the endurance of Farrand’s critique arises in part from misinterpretations of certain procedural components of the Convention and failure to appreciate the significance of others, understandable considering ...


In Memorium: Bernard Wolfman, Michael A. Fitts Jun 2012

In Memorium: Bernard Wolfman, Michael A. Fitts

Faculty Scholarship at Penn Law

No abstract provided.


How The British Gun Control Program Precipitated The American Revolution, David B. Kopel Jan 2012

How The British Gun Control Program Precipitated The American Revolution, David B. Kopel

David B Kopel

Abstract: This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.

From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least if ...


Bad News For John Marshall, David B. Kopel, Gary Lawson Dec 2011

Bad News For John Marshall, David B. Kopel, Gary Lawson

David B Kopel

In Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, we demonstrated that the individual mandate’s forced participation in commercial transactions cannot be justified under the Necessary and Proper Clause as the Clause was interpreted in McCulloch v. Maryland. Professor Andrew Koppelman’s response, Bad News for Everybody, wrongly conflates that argument with a wide range of interpretative and substantive positions that are not logically entailed by taking seriously the requirement that laws enacted under the Necessary and Proper Clause must be incidental to an enumerated power. His response is thus largely unresponsive to our actual ...


“Health Laws Of Every Description”: John Marshall’S Ruling On A Federal Health Care Law, David B. Kopel, Robert G. Natelson Jun 2011

“Health Laws Of Every Description”: John Marshall’S Ruling On A Federal Health Care Law, David B. Kopel, Robert G. Natelson

David B Kopel

If John Marshall, the greatest of Chief Justices, were to hear a challenge to the constitutionality of the Patient Protection and Affordable Care Act of 2010, how would he rule? Would the nationalist justice who, according to the New Deal Supreme Court, “described the Federal commerce power with a breadth never yet exceeded,” agree that federal control of health care was within that power?

In the fictional opinion below, Marshall rules on the constitutionality of a bill similar to the Patient Protection and Affordable Care Act.

We constructed this opinion chiefly from direct quotation and paraphrases of Marshall’s own ...


Elizabeth Cady Stanton And The Notion Of A Legal Class Of Gender, Tracy A. Thomas Mar 2011

Elizabeth Cady Stanton And The Notion Of A Legal Class Of Gender, Tracy A. Thomas

Akron Law Publications

In the mid-nineteenth century, Elizabeth Cady Stanton used narratives of women and their involvement with the law of domestic relations to collectivize women. This recognition of a gender class was the first step towards women’s transformation of the law. Stanton’s stories of working-class women, immigrants, Mormon polygamist wives, and privileged white women revealed common realities among women in an effort to form a collective conscious. The parable-like stories were designed to inspire a collective consciousness among women, one capable of arousing them to social and political action. For to Stanton’s consternation, women showed a lack of appreciation ...


Law, History, And Feminism, Tracy A. Thomas Mar 2011

Law, History, And Feminism, Tracy A. Thomas

Akron Law Publications

This is the introduction to the book, Feminist Legal History. This edited collection offers new visions of American legal history that reveal women’s engagement with the law over the past two centuries. It integrates the stories of women into the dominant history of the law in what has been called “engendering legal history,” (Batlan 2005) and then seeks to reconstruct the assumed contours of history.

The introduction provides the context necessary to appreciate the diverse essays in the book. It starts with an overview of the existing state of women’s legal history, tracing the core events over the ...


Law, History, And Feminism, Tracy A. Thomas Feb 2011

Law, History, And Feminism, Tracy A. Thomas

Tracy A. Thomas

This is the introduction to the book, Feminist Legal History. This edited collection offers new visions of American legal history that reveal women’s engagement with the law over the past two centuries. It integrates the stories of women into the dominant history of the law in what has been called “engendering legal history,” (Batlan 2005) and then seeks to reconstruct the assumed contours of history. The introduction provides the context necessary to appreciate the diverse essays in the book. It starts with an overview of the existing state of women’s legal history, tracing the core events over the ...


Elizabeth Cady Stanton And The Notion Of A Legal Class Of Gender, Tracy A. Thomas Feb 2011

Elizabeth Cady Stanton And The Notion Of A Legal Class Of Gender, Tracy A. Thomas

Tracy A. Thomas

In the mid-nineteenth century, Elizabeth Cady Stanton used narratives of women and their involvement with the law of domestic relations to collectivize women. This recognition of a gender class was the first step towards women’s transformation of the law. Stanton’s stories of working-class women, immigrants, Mormon polygamist wives, and privileged white women revealed common realities among women in an effort to form a collective conscious. The parable-like stories were designed to inspire a collective consciousness among women, one capable of arousing them to social and political action. For to Stanton’s consternation, women showed a lack of appreciation ...


Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, David B. Kopel, Gary Lawson Jan 2011

Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, David B. Kopel, Gary Lawson

David B Kopel

In "Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform," Professor Andrew Koppelman concludes that the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is constitutionally authorized as a law "necessary and proper for carrying into Execution" other aspects of the PPACA. However, the Necessary and Proper Clause rather plainly does not authorize the individual mandate. The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must ...


Advocacy Revalued, Geoffrey C. Hazard Jr., Dana A. Remus Jan 2011

Advocacy Revalued, Geoffrey C. Hazard Jr., Dana A. Remus

Faculty Scholarship at Penn Law

A central and ongoing debate among legal ethics scholars addresses the moral positioning of adversarial advocacy. Most participants in this debate focus on the structure of our legal system and the constituent role of the lawyer-advocate. Many are highly critical, arguing that the core structure of adversarial advocacy is the root cause of many instances of lawyer misconduct. In this Article, we argue that these scholars’ focuses are misguided. Through reflection on Aristotle’s treatise, Rhetoric, we defend advocacy in our legal system’s litigation process as ethically positive and as pivotal to fair and effective dispute resolution. We recognize ...


Card Check Labor Certification: Lessons From New York, William A. Herbert Dec 2010

Card Check Labor Certification: Lessons From New York, William A. Herbert

William A. Herbert

During the debate over the card check proposal in the Employee Free Choice Act of 2009 (EFCA), there has been a notable lack of discussion about New York’s fifty-year history and experience with card check certification. This article challenges and contradicts much of the prior scholarship and debate over EFCA by examining New York’s development and administration of card check procedures. The article begins with an overview of the history of New York public sector labor relations prior to the establishment of collective bargaining rights. As part of that historical overview, it examines the development of informal employee ...


Gender And Justice: The Experience Of Female Lawyers In Indiananapolis, Jessica Louise Nelson May 2010

Gender And Justice: The Experience Of Female Lawyers In Indiananapolis, Jessica Louise Nelson

Undergraduate Honors Thesis Collection

"Gentleman M.B". is recorded in United States history as far back as 1638, and was a successful landowner, local leader, and attorney to the governor. What is not translated is that this gentleman was, in fact, a woman: Margaret Brent was the first known female attorney, and would be the only one allowed entrance to the Bar for more than 200 years. Even though centuries later, in 1869, Myra Bradwell (Illinois), Mary Magoon (Iowa) and Belle Mansfield (Iowa) gained access to the legal community, women remained an outcast minority until very recently. A mere two percent of the profession ...


Book Review (Paul Frymer's Black And Blue: African Americans, The Labor Movement, And The Decline Of The Democratic Party)., Sophia Z. Lee May 2010

Book Review (Paul Frymer's Black And Blue: African Americans, The Labor Movement, And The Decline Of The Democratic Party)., Sophia Z. Lee

Faculty Scholarship at Penn Law

No abstract provided.