Law Commons^™

Book Review Of Sarah Barringer Gordon's The Mormon Question: Polygamy And Constitutional Conflict In Nineteenth-Century America, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Magna Carta, Civil Law, And Canon Law, Thomas J. Mcsweeney

Thomas J. McSweeney

No abstract provided.

Magna Carta And The Right To Trial By Jury, Thomas J. Mcsweeney

Thomas J. McSweeney

No abstract provided.

Creating A Literature For The King’S Courts In The Later Thirteenth Century: Hengham Magna, Fet Asaver, And Bracton, Thomas J. Mcsweeney

Thomas J. McSweeney

The early common law produced a rich literature. This article examines two of the most popular legal treatises of the second half of the thirteenth century, Hengham Magna and Fet Asaver. It has long been recognized that these two treatises bear some relationship to each other. This article will attempt to establish that relationship, arguing that Hengham Magna and Fet Asaver were written by different people; that Fet Asaver borrows from Hengham Magna; and that the authors of both texts had independent access to the Bracton treatise. The article concludes by suggesting a new way to think about the legal …

Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney

Thomas J. McSweeney

One of the major branches of the field of law and literature is often described as "law as literature." Scholars of law as literature examine the law using the tools of literary analysis. The scholarship in this subfield is dominated by the discussion of narrative texts: confessions, victim-impact statements, and, above all, the judicial opinion. This article will argue that we can use some of the same tools to help us understand non-narrative texts, such as law codes and statutes. Genres create expectations. We do not expect a law code to be literary. Indeed, we tend to dissociate the law …

Between England And France: A Cross-Channel Legal Culture In The Late Thirteenth Century, Thomas J. Mcsweeney

Thomas J. McSweeney

No abstract provided.

Book Review Of The Oxford History Of The Laws Of England, Volume Ii, Thomas J. Mcsweeney

Thomas J. McSweeney

No abstract provided.

The Corpus Juris Civilis: A Guide To Its History And Use, Frederick W. Dingledy

Frederick W. Dingledy

The Corpus Juris Civilis is indispensable for Roman law research. It is a vital pillar of modern law in many European nations, and influential in other countries. Scholars and lawyers still refer to it today. This valuable publication, however, may seem impenetrable at first, and references to it can be hard to decipher or detect. This guide provides a history of the Corpus Juris Civilis and the forms it has taken, states why it is still an important resource today, and offers some tips and tools for research using it.

The Rhetoric Of Moderation: Desegregating The South During The Decade After Brown, Davison M. Douglas

Davison M. Douglas

No abstract provided.

Foreword: The Legacy Of St. George Tucker, Davison M. Douglas

Davison M. Douglas

No abstract provided.

Doctrinal Synergies And Liberal Dilemmas: The Case Of The Yellow-Dog Contract, Barry Cushman

Barry Cushman

The three decades spanning the years 1908 to 1937 saw a remarkable transformation of the Supreme Court's jurisprudence concerning the rights of workers to organize. In 1908, the Court held that a federal law prohibiting employers from discharging an employee because of his membership in a labor union violated the liberty of contract secured to the employer by the Fifth Amendment. In 1915, the Court similarly declared a state statute prohibiting the use of "yellow-dog" contracts unconstitutional. In 1937, by contrast, the Court upheld provisions of the Wagner Act prohibiting both discharges for union membership and the use of yellow-dog …

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Alexander Tsesis

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court has …

Theorizing American Freedom (Review Essay), Anthony O'Rourke

Anthony O'Rourke

This is a review essay of The Two Faces of American Freedom, by Aziz Rana. The book presents a new and provocative account of the relationship between ideas of freedom and the constitutional structure of American power. Through the nineteenth century, Rana argues, America’s constitutional structure was shaped by a racially exclusionary, yet economically robust, concept that he calls “settler freedom.” Drawing on the burgeoning interdisciplinary field of settler colonial studies, as well as on the vast historical literature on civic republicanism, Rana contends that the concept of settler freedom necessitated a constitutional framework that enabled rapid territorial expansion and …

Book Review: Choreographing Copyright: Race, Gender, And Intellectual Property Rights In American Dance By Anthea Kraut, Carys Craig

Carys Craig

Dance may be one of the world’s oldest art forms, but it is a relatively recent entrant into the sphere of copyright law—and remains something of an afterthought amongst copyright lawyers and scholars alike. For copyright scholars, at least, that should change with the publication of Anthea Kraut’s CHOREOGRAPHING COPYRIGHT: RACE, GENDER, AND INTELLECTUAL PROPERTY RIGHTS IN AMERICAN DANCE. Kraut performs a fascinating exploration of the evolution of choreographic copyright—sweeping, political, polemical—that should leave no one in doubt as to the normative significance of choreography as a subject matter of copyright law and policy. Nor should doubt remain as to …

The Supreme "Courts" Of The Roman Empire, C.G. Bateman

C.G. Bateman

Introduction To Legal History Symposium, John Bernard Corr

John (Bernie) Corr

No abstract provided.

Introduction To Legal History Symposium, John Bernard Corr

John (Bernie) Corr

No abstract provided.

The Letter Of Richard Wyche: An Interrogation Narrative, Christopher G. Bradley

Christopher Bradley

This is a translation, with introduction, of the Letter of Richard Wyche—one of only two heresy interrogation narratives from medieval England written from the perspective of the accused heretic. The Letter is an autobiographical account of Richard Wyche’s interrogation, in 1402-1403, at the hands of church officials. Wyche originally composed the Letter in (Middle) English but it survives only in a Latin translation, alongside other forbidden texts in a manuscript now in Prague. Wyche wrote and covertly sent away this Letter to an audience of intimates sympathetic to the cause (the so-called Wycliffite or Lollard heresy) before his interrogations ended. …

Understanding Crime Under Capitalism: A Critique Of American Criminal Justice And Introduction To Marxist Jurisprudence, Steven E. Gilmore

Steven E Gilmore

Just Cause Discipline For Social Networking In The New Gilded Age: Will The Law Look The Other Way?, William A. Herbert, Alicia Mcnally

William A. Herbert

A Case Ill Suited For Judgment: Constructing 'A Sovereign Access To The Sea' In The Atacama Desert, Christopher Rossi

christopher robert rossi

Abstract: In 2015, the International Court of Justice ruled that Bolivia’s claim against Chile could proceed to the merit stage, setting up this Article’s discussion of perhaps the most intractable border dispute in South American history – Bolivia’s attempt to reclaim from Chile a ‘sovereign access to the Pacific Ocean’. This Article investigates the international law and deeply commingled regional history pertaining to the Atacama Desert region, the hyperarid yet resource-rich region through which Bolivia seeks to secure its long-lost access to the sea. Investigating the factual circumstances (effectivités), the post-colonial international legal principle of uti possidetis …

Book Review: The Once And Future King: The Rise Of Crown Government In America, Ronald D. Rotunda

Ronald D. Rotunda

If you want to understand your own language, learn a foreign tongue. Similarly, if you want to understand the American system of government, learn what our intellectual kin—Great Britain and Canada—have done. As Professor F.H. Buckley notes, “He who knows only his own country knows little enough of that.” He is one of the few people who has thoroughly mastered the legal structure and history of all three countries.

Ex Post Modernism: How The First Amendment Framed Nonrepresentational Art, Sonya G. Bonneau

Sonya G Bonneau

Nonrepresentational art repeatedly surfaces in legal discourse as an example of highly valued First Amendment speech. It is also systematically described in constitutionally valueless terms: nonlinguistic, noncognitive, and apolitical. Why does law talk about nonrepresentational art at all, much less treat it as a constitutional precept? What are the implications for conceptualizing artistic expression as free speech?

This article contends that the source of nonrepresentational art’s presumptive First Amendment value is the same source of its utter lack thereof: modernism. Specifically, a symbolic alliance between abstraction and freedom of expression was forged in the mid-twentieth century, informed by social and …

The Emergence Of Classical American Patent Law, Herbert Hovenkamp

Herbert Hovenkamp

The Emergence of Classical Patent Law

Abstract

One enduring historical debate concerns whether the American Constitution was intended to be "classical" -- referring to a theory of statecraft that maximizes the role of private markets and minimizes the role of government in economic affairs. The most central and powerful proposition of classical constitutionalism is that the government's role in economic development should be minimal. First, private rights in property and contract exist prior to any community needs for development. Second, if a particular project is worthwhile the market itself will make it occur. Third, when the government attempts to induce …

A Mirror Crack'd? The Rule Of Law In American History, Christopher L. Tomlins

Christopher Tomlins

No abstract provided.

Legal Aid 1900 To 1930: What Happened To Law Reform?, Mark Spiegel

Mark Spiegel

The Paradox Of Parliamentary Supremacy: Delegation, Democracy And Dictatorship In Germany And France, 1920s-1950s, Peter Lindseth

Peter L. Lindseth

No abstract provided.

What The Constitution Means By “Duties, Imposts, And Excises”—And “Taxes” (Direct Or Otherwise), Robert G. Natelson

Robert G. Natelson

This Article recreates the original definitions of the U.S. Constitution’s terms “tax,” “direct tax,” “duty,” “impost,” “excise,” and “tonnage.” It draws on a greater range of Founding-Era sources than accessed heretofore, including eighteenth-century treatises, tax statutes, and literary source, and it corrects several errors made by courts and previous commentators. It concludes that the distinction between direct and indirect taxes was widely understood during the Founding Era, and that the term “direct tax” was more expansive than commonly realized. The Article identifies the reasons the Constitution required that direct taxes be apportioned among the states by population. It concludes that …

Redefining Professionalism, Rebecca Roiphe

Rebecca Roiphe

REdefining PRofessionalism

Abstract

Rebecca Roiphe*

Most scholars condemn professionalism as self-serving, anti-competitive rhetoric. This Article argues that professionalism can be a positive and productive way of thinking about lawyers’ work. While it is undoubtedly true that the Bar has used the ideology of the professional role to support self-interested and bigoted causes, professionalism has also served as an important way of developing and marshalling group identity to promote useful ends. The critics of professionalism tend to view it as an ideology, according to which professionals, unlike businessmen, are concerned not with their own financial gain but with the good …

The Freedom To Strike In Canada: A Brief Legal History, Judy Fudge, Eric Tucker

Eric M. Tucker

This paper looks at the "deep roots" of striking as a social practice in Canada, by providing an analytic framework for approaching the history of the right to strike, and then sketching the contours of that history. Focusing on the three key worker freedoms - to associate, to bargain collectively, and to strike - the authors trace the jural relations between workers, employers and the state through four successive regimes of industrial legality in Canada: master and servant; liberal voluntarism; industrial voluntarism; and industrial pluralism, the latter marked by the adoption of the Wagner Act model. On the basis of …