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- All Faculty Scholarship (5)
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- Articles in Law Reviews & Other Academic Journals (2)
- Daniel R. Coquillette (2)
- David B Kopel (2)
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- Tracy A. Thomas (2)
- William A. Herbert (2)
- Alejandro G Escobedo Rojas (1)
- Alfred C. Yen (1)
- Anna P. Hemingway (1)
- Brian M McCall (1)
- Christopher J. Truxler (1)
- Christopher W. Schmidt (1)
- David S. Bogen (1)
- Faculty Journal Articles and Book Chapters (1)
- James S. Rogers (1)
- Leonid G. Berlyavskiy (1)
- Mark Graber (1)
- Sanford N. Katz (1)
- Steven D. Smith (1)
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Articles 1 - 30 of 32
Full-Text Articles in Law
The Tenuous Case For Conscience, Steven D. Smith
The Tenuous Case For Conscience, Steven D. Smith
Steven D. Smith
If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …
Emerging Models For Alternatives To Marriage, Sanford N. Katz
Emerging Models For Alternatives To Marriage, Sanford N. Katz
Sanford N. Katz
Perhaps one of the most important changes in family law in the past thirty years has been the inclusion of certain kinds of friendships in the range of relationships from which rights and responsibilities can flow. Domestic partnership laws, a phenomenon of the 1990s, may be seen as a natural development from the judicial recognition of contract cohabitation and the legislative and judicial response to same-sex couples who, unable to meet statutory requirements for marriage, have sought official recognition of their relationships. This essay discusses an aspect of certain kinds of domestic partnership laws-their formal requirements and the extent to …
Encyclopedia Of The Supreme Court Of The United States, David Tanenhaus, Kay Kindred, Felice Batlan, Alfred Brophy, Mark Graber
Encyclopedia Of The Supreme Court Of The United States, David Tanenhaus, Kay Kindred, Felice Batlan, Alfred Brophy, Mark Graber
Mark Graber
This 5-volume set focuses on the substance of American law, the processes that produce its legal principles, and the history of the Supreme Court, from its creation to the present. One of the encyclopedia's distinguishing themes is the examination of case law, the essential texts that form the backbone of legal and pre-legal study in the United States. Overview essays address the history of such topics as citizenship, due process, Native Americans, racism, and contraception, emphasizing the social context of each and the social and political pressures that shaped interpretation. This approach plays directly into the cutting-edge field known as …
Restoring The Natural Law: Copyright As Labor And Possession, Alfred C. Yen
Restoring The Natural Law: Copyright As Labor And Possession, Alfred C. Yen
Alfred C. Yen
In this Article, Professor Yen explores the problems associated with viewing copyright solely as a tool for achieving economic efficiency and advocates for the restoration of natural law to copyright jurisprudence. The Article demonstrates that economics has not been solely responsible for copyright’s development and basic structure, but has rather developed along lines suggested by neutral law, despite modern copyright jurisprudence. The Article considers the consequences of extinguishing copyright’s natural law facets in favor of the blind pursuit of efficiency and concludes by exploring the implications of restoring natural law thinking to copyright jurisprudence.
The Legal Education Of A Patriot: Josiah Quincy Jr.'S Law Commonplace (1763), Daniel R. Coquillette
The Legal Education Of A Patriot: Josiah Quincy Jr.'S Law Commonplace (1763), Daniel R. Coquillette
Daniel R. Coquillette
This article is based on the exciting discovery of a never before printed Law Commonplace, written by the 18th-century lawyer and patriot, Josiah Quincy, Junior. Quincy was co-counsel with Adams in the famous Boston Massacre Trial, a leader of Committee on Correspondence and the Sons of Liberty, and author of the first American law reports. His Law Commonplace provides an exceptional window into the political, racial and gender controversies of the evolving American legal system, and profoundly challenges our conventional views on the origin of American legal education. In certain areas, particularly jury trial, it also has present constitutional significance, …
"The Purer Fountains": Bacon And Legal Education, Daniel R. Coquillette
"The Purer Fountains": Bacon And Legal Education, Daniel R. Coquillette
Daniel R. Coquillette
Today, the classical underpinnings of American legal education are under intense critical review. The dominant pedagogy, the case book and the Socratic method, were established by Christopher Columbus Langdell (1806-1906) at Harvard Law School more than a century ago. Together with Langdell's first year curriculum, which was exclusively focused on Anglo-American common law doctrine, and his emphasis on a competitive, anonymous graded meritocracy, this system still exercises an incredible grip on elite American law schools. But Langdell's 19th Century model has now been challenged by many rivals, including critical legal studies, law and economics empiricism, global curriculums, and clinical instruction. …
Review Of Industrializing English Law: Entrepreneurship And Business Organization, 1720-1844, James S. Rogers
Review Of Industrializing English Law: Entrepreneurship And Business Organization, 1720-1844, James S. Rogers
James S. Rogers
No abstract provided.
Private Rights Or Public Wrongs? The Crime Victims Rights Act Of 2004 In Historical Context, Christopher J. Truxler
Private Rights Or Public Wrongs? The Crime Victims Rights Act Of 2004 In Historical Context, Christopher J. Truxler
Christopher J. Truxler
Historically, crime victims served as policemen, investigators, and private prosecutors, and were regarded as law enforcement’s most dependable catalyst. The Crime Victim’s Rights Act of 2004 grants crime victims eight substantive and procedural rights and breathes new life into the common law idea that crime is both a public wrong and a private injury. The Act has, however, elicited ardent criticism. Opponents contend that the Act is both bad policy and, most likely, unconstitutional. Without commenting on the Act’s policy or constitutionality, this article places the Crime Victims’ Rights Act within a broader historical context where victims’ needs can be …
From Racial Discrimination To Separate But Equal: The Common Law Impact Of The Thirteenth Amendment, David S. Bogen
From Racial Discrimination To Separate But Equal: The Common Law Impact Of The Thirteenth Amendment, David S. Bogen
David S. Bogen
Many forces produced the shift in the United States from the acceptance of slavery and racial inequality to the doctrine of separate but equal. The 13th Amendment abolished slavery and authorized legislation to enforce that abolition, but these well-known direct effects are only part of the story. This paper examines the Amendment’s indirect impact on racial discrimination – furthering a standard of equality in public relationships without threatening the existing racial separation. The Amendment is evidence of a change in values that justified overturning prior decisions, and abolition created a new context for legislation and common law decisions. It reinforced …
The Marginalist Revolution In Corporate Finance: 1880-1965, Herbert J. Hovenkamp
The Marginalist Revolution In Corporate Finance: 1880-1965, Herbert J. Hovenkamp
All Faculty Scholarship
During the late nineteenth and early twentieth centuries fundamental changes in economic thought revolutionized the theory of corporate finance, leading to changes in its legal regulation. The changes were massive, and this branch of financial analysis and law became virtually unrecognizable to those who had practiced it earlier. The source of this revision was the marginalist, or neoclassical, revolution in economic thought. The classical theory had seen corporate finance as an historical, relatively self-executing inquiry based on the classical theory of value and administered by common law courts. By contrast, neoclassical value theory was forward looking and as a result …
“Health Laws Of Every Description”: John Marshall’S Ruling On A Federal Health Care Law, David B. Kopel, Robert G. Natelson
“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 words, …
The Tea Party And The Constitution, Christopher W. Schmidt
The Tea Party And The Constitution, Christopher W. Schmidt
All Faculty Scholarship
This Article considers the Tea Party as a constitutional movement. I explore the Tea Party’s ambitious effort to transform the role of the Constitution in American life, examining both the substance of the Tea Party’s constitutional claims and the tactics movement leaders have embraced for advancing these claims. No major social movement in modern American history has so explicitly tied its reform agenda to the Constitution. From the time when the Tea Party burst onto the American political scene in early 2009, its supporters claimed in no uncertain terms that much recent federal government action overstepped constitutionally defined limitations. A …
Elizabeth Cady Stanton And The Notion Of A Legal Class Of Gender, Tracy A. Thomas
Elizabeth Cady Stanton And The Notion Of A Legal Class Of Gender, Tracy A. Thomas
Akron Law Faculty 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 of their own …
Law, History, And Feminism, Tracy A. Thomas
Law, History, And Feminism, Tracy A. Thomas
Akron Law Faculty 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 past two …
Law, History, And Feminism, Tracy A. Thomas
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 past two …
Elizabeth Cady Stanton And The Notion Of A Legal Class Of Gender, Tracy A. Thomas
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 of their own …
The Gendered Lives Of Legal Aid: Lay Lawyers, Social Workers, And The Bar, 1863-1960, Felice J. Batlan
The Gendered Lives Of Legal Aid: Lay Lawyers, Social Workers, And The Bar, 1863-1960, Felice J. Batlan
All Faculty Scholarship
The Gendered Life of Legal Aid, 1863-1960 (manuscript in process) will be the first monograph on the history of civil legal aid in the United States. By closely examining the history of legal aid in New York, Chicago, and Boston, it presents a number of arguments with wide-ranging implications and it is animated by a host of conflicts. These include the relationship between legal aid and citizenship, the changing status of domestic relations law, the interactions between lawyers and social workers and their different understandings of the role and nature of law, what services legal aid should provide, and even …
Правовая Политика Советского Государства В Сфере Регулирования Научной Деятельности: Этапы И Особенности (1917 – 1929 Гг.), Leonid G. Berlyavskiy
Правовая Политика Советского Государства В Сфере Регулирования Научной Деятельности: Этапы И Особенности (1917 – 1929 Гг.), Leonid G. Berlyavskiy
Leonid G. Berlyavskiy
The Soviet state legal policy bases in the sphere of the scientific activities regulation have been founded in 1917-1929. In statutory acts the subjects circle of the management boards in research activities has been defined. The legal policy was carried out by attraction of the scientific institutes, separate scientists to performance researches for the purpose of the substantiation, creation and strengthening the State-legal system. It was provided by means of legislative regulating the creation order of the state research institutes and high schools, processes of their interaction and regulation of the scientific activity itself, scientific researches financing out from the …
Juvenile Justice Reform 2.0, Tamar R. Birckhead
Juvenile Justice Reform 2.0, Tamar R. Birckhead
Tamar R Birckhead
Before the 1954 decision in Brown v. Board of Education, the United States Supreme Court’s exercise of judicial review did not support the notion that constitutional litigation could be an effective instrument of social reform. The Court’s principled rejection of racially segregated public education, however, gave new legitimacy to the concept of judicial review, transforming it from an obstacle into a principal means of achieving social progress. Since then, federal courts have impacted public policy in many areas – from housing, welfare, and transportation to mental health institutions, prisons, and juvenile courts. Yet, there are inherent structural challenges to effecting …
Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, David B. Kopel, Gary Lawson
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 …
El Triunfo De La República Liberal Y La Constitución Poblana De 1861, Alejandro G. Escobedo Rojas, Juan Pablo Salazar Andreu
El Triunfo De La República Liberal Y La Constitución Poblana De 1861, Alejandro G. Escobedo Rojas, Juan Pablo Salazar Andreu
Alejandro G Escobedo Rojas
No abstract provided.
The Extraordinary Mrs. Shipley: How The United States Controlled International Travel Before The Age Of Terrorism, Jeffrey D. Kahn
The Extraordinary Mrs. Shipley: How The United States Controlled International Travel Before The Age Of Terrorism, Jeffrey D. Kahn
Faculty Journal Articles and Book Chapters
Terrorist watchlists used to restrict travel into and out of the United States owe their conceptual origins to Mrs. Ruth B. Shipley, the Chief of the State Department’s Passport Division from 1928 to 1955. Mrs. Shipley was one of the most powerful people in the federal government for almost thirty years, but she is virtually unknown today. She had the unreviewable discretion to determine who could leave the United States, for how long, and under what conditions.
This article examines how Mrs. Shipley exercised her power through a detailed study of original documents obtained from the National Archives. It then …
Acus 2.0 And Its Historical Antecedents, Jeffrey Lubbers
Acus 2.0 And Its Historical Antecedents, Jeffrey Lubbers
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Paul Verkuil's Projects For The Administrative Conference Of The U.S. 1974-1992, Jeffrey Lubbers
Paul Verkuil's Projects For The Administrative Conference Of The U.S. 1974-1992, Jeffrey Lubbers
Articles in Law Reviews & Other Academic Journals
I am really happy to be part of this tribute to Paul Verkuil. It may surprise those in the audience to learn that I am bringing some needed diversity to today's proceedings - I am the only other Dutch American on the program! But perhaps my twenty years at the "Administrative Conference" also qualifies me to say a few words about how thrilled I am that we have it back - "ACUS 2.0" we can call it, complete with a website this time- and that Paul is at its helm. And I want to thank Paul for bringing me back …
Advocacy Revalued, Geoffrey C. Hazard Jr., Dana A. Remus
Advocacy Revalued, Geoffrey C. Hazard Jr., Dana A. Remus
All Faculty Scholarship
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 that advocacy …
Coase, Institutionalism, And The Origins Of Law And Economics, Herbert J. Hovenkamp
Coase, Institutionalism, And The Origins Of Law And Economics, Herbert J. Hovenkamp
All Faculty Scholarship
Ronald Coase merged two traditions in economics, marginalism and institutionalism. Neoclassical economics in the 1930s was characterized by an abstract conception of marginalism and frictionless resource movement. Marginal analysis did not seek to uncover the source of individual human preference or value, but accepted preference as given. It treated the business firm in the same way, focusing on how firms make market choices, but saying little about their internal workings.
“Institutionalism” historically refers to a group of economists who wrote mainly in the 1920s and 1930s. Their place in economic theory is outside the mainstream, but they have found new …
America's First Wiretapping Controversy In Context And As Context, Wesley Oliver
America's First Wiretapping Controversy In Context And As Context, Wesley Oliver
Wesley M Oliver
No abstract provided.
The Tea Party And The Constitution, Christopher W. Schmidt
The Tea Party And The Constitution, Christopher W. Schmidt
Christopher W. Schmidt
This Article considers the Tea Party as a constitutional movement. I explore the Tea Party’s ambitious effort to transform the role of the Constitution in American life, examining both the substance of the Tea Party’s constitutional claims and the tactics movement leaders have embraced for advancing these claims. No major social movement in modern American history has so explicitly tied its reform agenda to the Constitution. From the time when the Tea Party burst onto the American political scene in early 2009, its supporters claimed in no uncertain terms that much recent federal government action overstepped constitutionally defined limitations. A …
Thurgood Marshall: The Writer, Anna P. Hemingway, Starla J. Williams, Jennifer M. Lear, Ann E. Fruth
Thurgood Marshall: The Writer, Anna P. Hemingway, Starla J. Williams, Jennifer M. Lear, Ann E. Fruth
Anna P. Hemingway
Public Sector Labor Law And History: The Politics Of Ancient History?, William A. Herbert
Public Sector Labor Law And History: The Politics Of Ancient History?, William A. Herbert
William A. Herbert
This article discuss three books that address various aspects of public sector labor history. It seeks to contextualize the current debate over public sector labor law and relations through the lessons of relevant history. The first book discussed is entitled The Man Who Saved New York: Hugh Carey and the Great Fiscal Crisis of 1975, by Seymour P. Lachman and Robert Polner. It recounts the leadership of Governor Carey and public sector labor leaders in reaching negotiated solutions through collective bargaining that helped solve New York City's fiscal crisis in 1975. The second book is a long-forgotten 1948 treatise Government …