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Legal History

2009

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Articles 1 - 30 of 121

Full-Text Articles in Law

The Sound Of Silence: Eligibility Qualifications And Article Iii, James F. Ianelli Dec 2009

The Sound Of Silence: Eligibility Qualifications And Article Iii, James F. Ianelli

James Ianelli

The Constitution’s eligibility qualifications in Articles I and II have drawn increased scrutiny in recent national elections. No scholarship to date, however, has examined why the Framers omitted any comparable qualifications from Article III. This paper presents the question of what made the judiciary unique relative to the other branches such that any nominated and confirmed candidate could sit on the federal bench.

The answer to this question sheds new light on the wisdom of eligibility qualifications in Articles I and II. Although no direct historical record details the basis for the omission, a number of factors appear relevant ...


Appeal To Heaven: On The Religious Origins Of The Constitutional Right Of Revolution, John M. Kang Dec 2009

Appeal To Heaven: On The Religious Origins Of The Constitutional Right Of Revolution, John M. Kang

William & Mary Bill of Rights Journal

No abstract provided.


Environmental Law In The Supreme Court: Highlights From The Marshall Papers, Robert V. Percival Nov 2009

Environmental Law In The Supreme Court: Highlights From The Marshall Papers, Robert V. Percival

Robert Percival

Justice Marshall served on the Court from 1967 until 1991. During that period, Congress passed all of the major federal environmental statutes and environmental regulation mushroomed. As a result, the Marshall papers reveal how the Court reached decisions that have shaped modern environmental law. The author, a former law clerk to former Justice Byron White and an associate professor of law at the University of Maryland, begins by describing the history of the Court's treatment of environmental disputes. He then discusses the steps the Justices take in deciding whether to accept cases for review; in reaching decisions on the ...


How The Courts, Along With Public Dissatisfaction With The Status Quo, Ironically Aided In The Creation Of New Hollywood, Which Promoted Films Of Lawlessness, Disorder And Instability, Sam A. Blaustein Nov 2009

How The Courts, Along With Public Dissatisfaction With The Status Quo, Ironically Aided In The Creation Of New Hollywood, Which Promoted Films Of Lawlessness, Disorder And Instability, Sam A. Blaustein

Sam A Blaustein

The period known as New Hollywood in American film was brought about by several seminal American legal decisions coupled with a growing dissatisfaction with the status quo. A series of First Amendment cases, along with the 1948 Paramount decision, forced Hollywood to produce graphic and existential films that showcased in unprecedented style the issues faced by the emerging disaffected youth generation.


Nicaea And Sovereignty, Craig G. Bateman Nov 2009

Nicaea And Sovereignty, Craig G. Bateman

C. G. Bateman

This research is concerned with the development of international law in so far as it relates to the historical background for the Peace of Westphalia, which itself is understood as a seminal event in the history of the growth of both the theoretical notion of sovereignty and, in its present milieu, as an attribute of states. This research gets behind Westphalia, to suggest a plausible nexus of ideology and events which led to these treaties, and to focus specifically on the event which I suggest was the sin qua non development which led to the Westphalian concord. I suggest that ...


The Clean Water Act And The Demise Of The Federal Common Law Of Interstate Nuisance, Robert V. Percival Nov 2009

The Clean Water Act And The Demise Of The Federal Common Law Of Interstate Nuisance, Robert V. Percival

Robert Percival

No abstract provided.


Who's Afraid Of The Precautionary Principle?, Robert V. Percival Nov 2009

Who's Afraid Of The Precautionary Principle?, Robert V. Percival

Robert Percival

The precautionary principle – the notion that lack of scientific certainty should not foreclose precautionary regulation – has become enormously popular in recent years, as reflected by its endorsement in many important international declarations and agreements. Despite its growing influence, the precautionary principle recently has come under fire by critics who argue that it is incoherent, potentially paralyzing, and that it will lead regulators to make bad choices. They maintain that society faces greater peril from overly costly regulations than from exposure to sources of environmental risks whose effect on human health and the environment is not fully understood at present. This ...


Who Sues For Divorce? From Fault Through Fiction To Freedom, Lawrence M. Friedman, Robert V. Percival Nov 2009

Who Sues For Divorce? From Fault Through Fiction To Freedom, Lawrence M. Friedman, Robert V. Percival

Robert Percival

No abstract provided.


A Tale Of Two Courts: Litigation In Alameda And San Benito Counties, Lawrence M. Friedman, Robert V. Percival Nov 2009

A Tale Of Two Courts: Litigation In Alameda And San Benito Counties, Lawrence M. Friedman, Robert V. Percival

Robert Percival

No abstract provided.


The Processing Of Felonies In The Superior Court Of Alameda County 1880-1974, Lawrence M. Friedman, Robert V. Percival Nov 2009

The Processing Of Felonies In The Superior Court Of Alameda County 1880-1974, Lawrence M. Friedman, Robert V. Percival

Robert Percival

No abstract provided.


Langdell And The Invention Of Legal Doctrine, Catharine Wells Nov 2009

Langdell And The Invention Of Legal Doctrine, Catharine Wells

University of Southern California Legal Studies Working Paper Series

This paper addresses two related questions.

The first relates to Langdell and his development of a doctrinal theory of contract law. The substance and method of Langdell’s work has not been well understood and this paper uses a variety of historical materials to remedy this problem. It begins with a review of contract law prior to Langdell. Contract law at this time was in a very primitive state. The available treatises were confusing and the cases themselves offered little guidance for predicting future case outcomes. The paper then proceeds to examine Langdell’s method by describing certain logic texts ...


Vietnam's Eligibility To Receive Trade Benefits Under The U.S. Generalized System Of Preferences, Alexander H. Tuzin Oct 2009

Vietnam's Eligibility To Receive Trade Benefits Under The U.S. Generalized System Of Preferences, Alexander H. Tuzin

Alexander H. Tuzin

Last year, Vietnam officially requested to receive trade benefits under the U.S. Generalized System of Preferences (GSP) as a beneficiary developing country. The accompanying article initially examines the role of GSP programs within the WTO system, and then provides a comprehensive analysis of Vietnam’s prospects for receiving trade benefits under the U.S. GSP system. Vietnam remains a very poor country, and it could benefit considerably from preferential treatment under the U.S. GSP program. However, Vietnam’s compliance with the GSP eligibility criteria is problematic. In particular, Vietnam’s protections for both intellectual property rights and worker ...


An Overview Of Tolls To Statutes Of Limitations On Account Of War: Are They Current And Relevant In The Post-September 11th Era?, Hon. Mark Dillon Sep 2009

An Overview Of Tolls To Statutes Of Limitations On Account Of War: Are They Current And Relevant In The Post-September 11th Era?, Hon. Mark Dillon

Hon. Mark C. Dillon

The devastation of the attacks that occurred at the World Trade Center on September 11, 2001 included costly disruption to the operation of courts in the City and State of New York. A court facility at Five World Trade Center was destroyed. Attorneys were among the 2,752 persons killed in the event. Law offices were destroyed. Key litigation witnesses and documents were lost forever. Thousands of attorneys were unable to access their work for days. State courts in Manhattan did not reopen for business until September 17, 2001. Amidst the turmoil and confusion, there was a defined set of ...


Refashioning Legal Pedagogy After The Carnegie Report: Something Borrowed, Something New, Debra M. Schneider Sep 2009

Refashioning Legal Pedagogy After The Carnegie Report: Something Borrowed, Something New, Debra M. Schneider

Debra M Schneider

The Carnegie Foundation published in 2007 its ground-breaking book titled Educating Lawyers: Preparation for the Profession of Law, in which it pointed out significant pedagogical imbalance in legal education. In particular, the Carnegie report said that law schools should infuse their curricula with more practical and ethical training. How a law school ought to accomplish the Carnegie aim is another challenge, one that this paper squarely addresses.

Traditional legal education is sorely imbalanced. A law student receives rigorous training in legal doctrine and analytical skills—he learns to “think like a lawyer”—but is left with little training in practical ...


The Bahd Of New England: Citing Shakespeare In The First Circuit, Eugene L. Morgulis Sep 2009

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.


Structure And Precedent, Jeffrey C. Dobbins Sep 2009

Structure And Precedent, Jeffrey C. Dobbins

Jeffrey C. Dobbins

The standard model of vertical precedent is part of the deep structure of our legal system. The rules governing that model are largely intuitive, often taught only in passing at law school, and rarely addressed by positive law. While the application of these rules of precedent can be difficult in practice, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. A Ninth Circuit opinion, for instance, is binding on district courts within the Ninth Circuit and on subsequent Ninth Circuit panels; it is not binding on Second Circuit panels ...


The Sit-Ins And The State Action Doctrine, Christopher W. Schmidt Aug 2009

The Sit-Ins And The State Action Doctrine, Christopher W. Schmidt

Christopher W. Schmidt

By taking their seats at “whites only” lunch counters across the South in the spring of 1960, African American students not only launched a dramatic new stage in the civil rights movement, they also sparked a national reconsideration of the scope of the constitutional equal protection requirement. The critical constitutional question raised by the sit-in movement was whether the Fourteenth Amendment, which after Brown v. Board of Education (1954) prohibited racial segregation in schools and other state-operated facilities, applied to privately owned accommodations open to the general public. From the perspective of the student protesters, the lunch counter operators, and ...


Shades Of Gray: The Life And Times Of An Antebellum Free Family Of Color, Jason A. Gillmer Aug 2009

Shades Of Gray: The Life And Times Of An Antebellum Free Family Of Color, Jason A. Gillmer

Jason A Gillmer

The history of race and slavery is often told from the perspective of either the oppressors or the oppressed. This Article takes a different tact, unpacking the rich and textured story of the Ashworths, an obscure yet prosperous free family of color who moved from Louisiana to Texas in the early 1830s, where they owned land, raised cattle, and bought and sold slaves. It is undoubtedly an unusual story; indeed in the history of the time there are surely more prominent names and more famous events. Yet their story reveals a tantalizing world in which—despite legal rules and conventional ...


Psychologising Jekyll, Demonising Hyde: The Strange Case Of Criminal Responsibility, Nicola Lacey Aug 2009

Psychologising Jekyll, Demonising Hyde: The Strange Case Of Criminal Responsibility, Nicola Lacey

Nicola Lacey

Psychologising Jekyll, Demonising Hyde: The Strange Case of Criminal Responsibility

Nicola Lacey

This paper puts the famous story of Jekyll and Hyde to work for a specific analytic purpose. The question of responsibility for crime, complicated by the divided subjectivity implicit in Mr. Hyde’s appearance, and illuminated by Robert Louis Stevenson’s grasp of contemporary psychiatric, evolutionary and medical thought as promising new technologies for effecting a distinction between criminality and innocence, is key to the interest of the story. I argue that Jekyll and Hyde serves as a powerful metaphor both for specifically late Victorian perplexities about criminality ...


Copyright After Death, Deven R. Desai Aug 2009

Copyright After Death, Deven R. Desai

Deven R. Desai

Should copyright extend after death? In the United States, the duration of copyright is the author’s life plus seventy years. Discussions of copyright often treat pre and post death copyright as equal, holding that the entire length of the term faces uniform problems and fulfills uniform goals. Copyright law operates with a hidden assumption: that copyright after death is the same as copyright during life. Numerous debates over copyright’s duration rely on this post-mortem assumption. In this article, Professor Deven Desai argues that this assumption is false and that copyright’s extension after the author’s death is ...


Bentham & Ballots: Tradeoffs Between Secrecy And Accountability In How We Vote, Allison Hayward Aug 2009

Bentham & Ballots: Tradeoffs Between Secrecy And Accountability In How We Vote, Allison Hayward

Allison Hayward

The way a group, jurisdiction, or nation votes, and makes decisions binding on their members and citizens, is fundamental and deceptively prosaic. Why do some groups (faculties, Congress, caucuses, HOAs) take public votes in most contexts, accompanied by debate, sometimes heated. Why do others (electorates, labor unions) take private votes (often by ballot cast in a secure setting where “heated debate” is not allowed) in most contexts? Moreover, what should we make of the exceptions to these general forms? This Article will demonstrate that the hybrid mode of voting – non-debated yet non-secret voting such as in contemporary absentee balloting, in ...


The History Of Wisconsin’S Alcohol Laws: A Drunk Culture Or Lobbyists Drunk With Power?, Mark Gaber Aug 2009

The History Of Wisconsin’S Alcohol Laws: A Drunk Culture Or Lobbyists Drunk With Power?, Mark Gaber

Mark Gaber

Wisconsin leads the nation in a bevy of alcohol consumption statistics—from binge drinking to admitted drunk drivers to liquor licenses—and has among the most lenient alcohol laws in the nation as well. It is the only state that does not criminalize the first offense of drunk driving, one of a handful that does not permit drunk driving checkpoints, and the only state where children can be served alcohol at bars with the consent of their parents. Many point to the state’s German heritage to explain its affinity for alcohol. While this might explain the genesis of the ...


Abuse Of Rights: The Continental Drug And The Common Law, Anna Di Robilant Aug 2009

Abuse Of Rights: The Continental Drug And The Common Law, Anna Di Robilant

anna di robilant

This article deploys a comparative approach to question a widely-shared understanding of the impact and significance of abuse of rights. First, it challenges the idea that abuse of rights is a peculiarly civilian “invention”, absent in the common law. Drawing on an influential strand of functionalist comparative law, the article identifies the “functional equivalents” of the doctrine in the variety of malice rules and reasonableness tests deployed by American courts in the late 19th and early 20th century in fields as diverse as water law, nuisance, tortious interference with contractual relations and labor law. The article investigates the reasons why ...


Science, Public Bioethics, And The Problem Of Integration, Orlando Carter Snead Aug 2009

Science, Public Bioethics, And The Problem Of Integration, Orlando Carter Snead

O. Carter Snead

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decisionmaking. It has captured the attention of officials in every branch of government, as well as the American public. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decisionmaking) continue to roil the public square.

This article examines the question of how scientific methods and principles can and should be ...


Science, Public Bioethics, And The Problem Of Integration, Orlando Carter Snead Aug 2009

Science, Public Bioethics, And The Problem Of Integration, Orlando Carter Snead

O. Carter Snead

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decisionmaking. It has captured the attention of officials in every branch of government, as well as the American public. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decisionmaking) continue to roil the public square.

This article examines the question of how scientific methods and principles can and should be ...


Looking Back, Moving Forward: The History And Future Of Refugee Protection, Shauna E. Labman Aug 2009

Looking Back, Moving Forward: The History And Future Of Refugee Protection, Shauna E. Labman

Shauna E. Labman

The origins of refugee protection are commonly associated with the aftermath of the Second World War and the huge outpouring of refugees that it sparked. The 1951 Refugee Convention, however, was in fact a revision and consolidation of previous international agreements relating to the status of refugees. In their own ways, all of the Convention’s predecessors responded to the refugee crises by facilitating the movement of refugees to safe states. With the 1951 Convention, in contrast, non-refoulement – the promise not to send people back to persecution – has come to be considered the core of refugee protection. While resettlement is ...


Reconciling Fair Use And Trademark Use, Margreth Barrett Aug 2009

Reconciling Fair Use And Trademark Use, Margreth Barrett

Margreth Barrett

This article looks to early common law, the legislative history of the Lanham Act, and public policy considerations to evaluate the relationship of the Lanham Act’s trademark use requirement to the trademark fair use defense. Although a number of commentators have suggested the contrary, I conclude that requiring infringement plaintiffs to demonstrate the defendant’s “trademark use” as part of its case-in-chief is consistent with the fair use defense, which waives liability if the defendant can demonstrate that its use was “in good faith” and “otherwise than as a trademark” only to describe its goods or services. These two ...


From Lily Bart To The Boom Boom Room: How Wall Street’S Social And Cultural Response To Women Has Shaped Securities Regulation, Christine Sgarlata Chung Aug 2009

From Lily Bart To The Boom Boom Room: How Wall Street’S Social And Cultural Response To Women Has Shaped Securities Regulation, Christine Sgarlata Chung

Christine Sgarlata Chung

In Edith Wharton’s 1905 novel House of Mirth, Lily Bart learns in one brutal moment what happens to women who get tangled up with the stock market. Though she is beautiful and well-born, Lily is vulnerable when she seeks salvation in the stock market – she has no family to support her, no fortune of her own, no training in business matters, and no socially acceptable means of acquiring money, save marriage. When the husband of a friend (Gus Treanor) offers to help Lily by speculating in the stock market, Lily agrees. And when Treanor begins presenting Lily with money ...


From Lily Bart To The Boom Boom Room: How Wall Street’S Social And Cultural Response To Women Has Shaped Securities Regulation, Christine Sgarlata Chung Aug 2009

From Lily Bart To The Boom Boom Room: How Wall Street’S Social And Cultural Response To Women Has Shaped Securities Regulation, Christine Sgarlata Chung

Christine Sgarlata Chung

In Edith Wharton’s 1905 novel House of Mirth, Lily Bart learns in one brutal moment what happens to women who get tangled up with the stock market. Though she is beautiful and well-born, Lily is vulnerable when she seeks salvation in the stock market – she has no family to support her, no fortune of her own, no training in business matters, and no socially acceptable means of acquiring money, save marriage. When the husband of a friend (Gus Treanor) offers to help Lily by speculating in the stock market, Lily agrees. And when Treanor begins presenting Lily with money ...


Pacifica Reconsidered: Implications For The Current Controversy Over Broadcast Indecency, Angela J. Campbell Aug 2009

Pacifica Reconsidered: Implications For The Current Controversy Over Broadcast Indecency, Angela J. Campbell

Angela J. Campbell

This article tells the story of how and why a single letter complaining about “dirty words” in a comedy routine broadcast by a radio station ended up in the Supreme Court and how a closely divided Court found that it was constitutional for the Federal Communications Commission to admonish the station for the broadcast even though the speech was protected by the First Amendment and its distribution by other means could not be could not be prohibited. This case, FCC v. Pacifica Foundation, was controversial when it was decided in 1978, and it has become more controversial because of the ...