Law Commons^™

Selection Biases, Mark A. Graber, Sanford Levinson

Mark Graber

No abstract provided.

Circumspect Agatis Revisted, David K. Millon

David K. Millon

None available.

Objectivity And Democracy, David K. Millon

David K. Millon

As a response to skepticism about the possibility of objectivity in legal decisionmaking conventionalism posits the shared understandings of the legal profession (about method and the implications of doctrine) as the source of constraint in legal interpretation. In this Article, Professor Millon argues that conventionalism's proponents have failed to offer an adequate account of interpretive constraint, but that conventionalism properly understood can nevertheless provide a useful perspective on the possibility of objectivity in legal interpretation. This account locates interpretive constraint in the practices of the legal profession as a whole, acting as an "interpretive community" or constituting a distinctive "language-game" …

Book Review, (Reviewing Norman Doe, Fundamental Authority In Late Medieval English Law (1990)), David K. Millon

David K. Millon

None available.

The First Antistrust Statute, David K. Millon

David K. Millon

None available.

Roger Groot, Legal Historian, David K. Millon

David K. Millon

No abstract provided.

Faith In The Republic: A Frances Lewis Law Center Conversation, Ann Maclean Massie, David K. Millon

David K. Millon

None available.

Brazil Begins To Investigate Its Dark Past, But Is It Too Little Too Late?, Thomas Thompson-Flores

Thomas L Thompson-Flores

This article analyzes the history of Brazil, the current legal battle over its Amnesty Law, and finally compares the transitional justice process chosen in Brazil versus other South American countries. An historical background of Brazil from 1964 to the present is given to illustrate the reasons behind the methods chosen by Brazil to implement transitional justice in the country. This historical summary begins with the military’s rise to power in 1964; then discusses the harsh policies implemented by the military in order to maintain its power; the process of democratic transition; and finally the steps taken by Brazil in recent …

Livingstone And The Law: Africa’S Greatest Explorer And The Abolition Of The Slave Trade, Jay Milbrandt

Jay Milbrandt

Few historical events have had such tragic, widespread, and lingering consequences as the exportation of slaves from Africa. While the abolition of western Africa’s transatlantic slave trade is well documented, the events and legal framework that led to the abolition of the slave trade in East Africa remain practically untold. There, an unlikely hero championed abolition: Missionary and explorer Dr. David Livingstone. His method: an ambitious publicity stunt to dramatically change international law.

This article will illustrate how explorer David Livingstone’s advocacy profoundly affected the legal landscape to restrict the slave trade in East Africa, and eventually dealt the deathblow …

Bush V. Gore: The Worst (Or At Least Second-To-The-Worst) Supreme Court Decision Ever, Mark S. Brodin

Mark S. Brodin

In the stiff competition for worst Supreme Court decision ever, two candidates stand heads above the others for the simple reason that they precipitated actual fighting wars in their times. By holding that slaves, as mere chattels, could not sue in court and could never be American citizens, and further invalidating the Missouri Compromise, which had prohibited slavery in new territories, Dred Scott v. Sanford charted the course to secession and Civil War four years later. By disenfranchising Florida voters and thereby appointing popular-vote loser George W. Bush as President, Bush v. Gore set in motion events which would lead …

The Oregon And California Railroad Grant Lands’ Sordid Past, Contentious Present, And Uncertain Future: A Century Of Conflict, Michael Blumm

Michael Blumm

This article examines the long, contentious history of the Oregon & California Land Grant that produced federal forest lands now managed by the Bureau of Land Management (“O&C lands”), including an analysis of how these lands re-vested to the federal government following decades of corruption and scandal, and the resulting congressional effort that created a management structure supporting local county governments through overharvesting the lands for a half-century. The article proceeds to trace the fate of O&C lands through the “spotted owl wars” of the 1990s, the ensuing Northwest Forest Plan (NWFP), the timber salvage rider of 1995, and the …

Federalist Or Friends Of Adams: The Marshall Court And Party Politics, Mark A. Graber

Mark Graber

No abstract provided.

Justice John Marshall Harlan I, Richard Maloy

Richard Maloy

No abstract provided.

Outing-- And Ousting-- The "Hidden" Hyde: Toward Repeal And Replacement Of The Hyde Amendment, Rebecca Stewart

Rebecca K Stewart

Poorly crafted statutes have always created interpretive quandaries for judges and litigants, and these problems naturally tend to be exacerbated when substantive legislation is passed as a result of less than substantive legislative processes, such as through limitations riders to appropriations bills. However, these issues become vastly more troublesome when Congress intentionally subverts measures intended to restrain such processes. This Article examines the passage of one such rider, commonly known as the Hyde Amendment, exploring its origins and curious subtextual codification, and analyzing its life in the federal courts over more than a dozen years.

The Article argues that early …

Dormancy Versus Innovation: A Next Generation Dormant Commerce Clause, Sam Kalen

Sam Kalen Mr.

The vitality of the dormant commerce clause is becoming increasingly suspect. Modern academic commentary questions the Supreme Court’s rationale for this negative aspect of the Commerce Clause. Yet the emphasis of the scholarship overlooks how our society has changed dramatically since the Court developed its present analysis, and it is the analysis perhaps more than the rationale that is bankrupt. The analysis the Court employs under the clause is cabining innovate state and local programs, such as responses to climate change. The article, therefore, traces the dynamic nature of the dormant commerce clause, how its modern formulation ignores societal changes …

The Emerging Restrictions Of Sovereign Immunity: Premptory Norms Of International Law, The Un Charter, And The Application Of Modern Communications Theory, Winston P. Nagan

Winston P Nagan

The article is titled The Emerging Restrictions on Sovereign Immunity: Peremptory Norms of International Law, the UN Charter, and the Application of Modern Communications Theory. The article provides a fresh re-examination of the conceptual foundations of the sovereign immunity doctrine in the light of the changing character of sovereignty itself. This is done in the context of the changing expectations in international law generated by the UN Charter, and the development of human rights and humanitarian law. The article applies the innovative communications theories generated by the New Haven School to provide a more realistic and relevant approach to the …

Classical Contract Law, Past And Present, Anat Rosenberg

Anat Rosenberg

This paper synthesizes and refocuses a wide range of histories of nineteenth-century contract law. It uncovers an inadvertent consensus among historians: despite significant controversies engaging rival historical schools of contract law, it is almost universally agreed that nineteenth-century law embodied an elaborate version of individualism; that the alternatives to its individualism were status and collectivism — but they functioned as external critiques and so left contract's conceptual link with individualism intact; and that the individualism grounded in contract law was in keeping with broad cultural mores. The consensus effectively entrenches a questionable historical artifact: the idea of a single meaning …

The Big Banks: Background, Deregulation, Financial Innovation And Too Big To Fail, Charles W. Murdock

Charles W. Murdock

Summary: The Big Banks: Background, Deregulation, Financial Innovation and Too Big to Fail

The U.S. economy is still reeling from the financial crisis that exploded in the fall of 2008. This article asserts that the big banks were major culprits in causing the crisis, by funding the non-bank lenders that created the toxic mortgages which the big banks securitized and sold to unwary investors. Paradoxically, banks which were then too big to fail are even larger today.

The article briefly reviews the history of banking from the Founding Fathers to the deregulatory mindset that has been present since 1980. It …

Towards Classical Legal Positivism, Dan Priel

Dan Priel

Open almost any textbook on jurisprudence and you will find it beginning with a discussion of natural law and legal positivism. Almost without exception one finds in them two claims. First, what sets legal positivism and natural law apart is a difference on the conceptual question of the relationship between law and morality. Natural lawyers believe that law or legality are necessarily connected to morality, whereas legal positivists deny that. The second claim tells a story about the historical development of legal positivism: according to the familiar story the classical legal positivists like Thomas Hobbes and Jeremy Bentham subscribed to …

The Failure And Promise Of Equity In Domestic Abuse Cases, Jeffrey Baker

Jeffrey R Baker

In a generation, American law has experienced dramatic reforms in response to domestic abuse, including innovative criminal law enforcement schemes, liberalized divorce standards and civil protection orders. Feminist activism prompted and drove these reforms and related cultural understanding of domestic abuse, and they have yielded more effective legal options for victims of domestic violence. Virtually all of these reforms built upon existing structures to afford specific process and remedies to victims of domestic abuse, but why were innovations necessary if existing legal structures could have intervened on their own extant authority? Customary, common law equity might have intervened effectively to …

The Evolution Of The Supreme Court’S Rule 10b-5 Jurisprudence: Protecting Fraud At The Expense Of Investors, Charles W. Murdock

Charles W. Murdock

Summary: The Evolution of the Supreme Court’s Rule 10b-5 Jurisprudence:

Protecting Fraud at the Expense of Investors

This article traces the evolution of Supreme Court jurisprudence over the past forty years through the prism of Rule 10b-5. It uses four “trilogies” to develop this evolution. At the start of the 1970s, the liberal trend characterized by the Warren Court still prevailed. An implied private cause of action was still in favor and litigators were viewed as private attorneys general, enforcing the securities laws to further the policy of protecting investors.

The expansion of Rule 10b-5 was slowed and more judicial …

Appeals To The Privy Council Before American Independence: An Annotated Digital Catalogue, Sharon Hamby O'Connor, Mary Sarah Bilder

Sharon Hamby O'Connor

Between the later seventeenth century and American independence, appeals from colonial high courts were taken to the Privy Council in England. These appeals are the precursors of today’s appeals to the U.S. Supreme Court. Their legal and policy issues can be reconstructed from the outcome of the appeals, the briefs of crown law officers, related Privy Council documents, and handwritten notations on these materials. This article describes Appeals to the Privy Council Before American Independence, an annotated digital catalogue of appeals from the thirteen colonies with links and digital images providing access to this material, now compiled from a variety …

Screaming To Be Heard: Black Feminism And The Fight For A Voice From The 1950s - 1970s, Preston D. Mitchum

Preston D. Mitchum

No abstract provided.

The Origins Of American Health Libertarianism, Lewis A. Grossman

Lewis A. Grossman

This Article examines the persistent American demand for freedom of therapeutic choice as a popular constitutional movement originating in the nation’s earliest years. It also shows how multiple concepts of freedom, in addition to bodily freedom, have contributed to the concept of a constitutional right to medical liberty.

There is a deep current of belief in the United States that people have a right to choose their preferred treatments without government interference. Cries of “Death Panels” are routinely directed against health care reform proposals that might limit patients’ access to medical products and procedures. FDA is furiously attacked, on freedom …

Literary Property And Copyright, Alina Ng

Alina Ng

Even when the first subject matter of copyright control was literary works, the specific rights of authors who produce these works had never been clearly articulated. Copyright laws have protected a statutory right to distribute the work to the public that may be broadly owned by both author and publisher while the common-law right of property over the work, which would have protected an author’s creative interest in the work, have been dismissed by the courts as a legitimate source of law. This paper examines literary property as a form of authorial rights, which authors may potentially have over works …

Hollow Hopes And Exaggerated Fears: The Canon/Anticanon In Context, Mark A. Graber

Mark Graber

Students of American constitutionalism should add constitutional decisions made by elected officials to the constitutional canon and the constitutional anticanon. Neither the canonical nor the anticanonical constitutional decisions by the Supreme Court have produced the wonderful results or horrible evils sometimes attributed to them. In many cases, elected officials made contemporaneous constitutional decisions that had as much influence as the celebrated or condemned judicial rulings. More often than not, judicial rulings matter more as a result of changing the political dynamics than by directly changing public policy. Law students and others interested in constitutional change, for these reasons, need to …

Plus Or Minus One: The Thirteenth And Fourteenth Amendments, Mark A. Graber

Mark Graber

The consensus that the Fourteenth Amendment incorporates the Thirteenth Amendment has come under sharp criticism in recent years. Several new works suggest that the Thirteenth Amendment, properly interpreted, protects some substantive rights not protected by the Fourteenth Amendment. Some of this scholarship is undoubtedly motivated by an effort to avoid hostile Supreme Court precedents. Nevertheless, more seems to be going on than mere litigation strategy. Scholars detected different rights and regime principles in the Thirteenth Amendment than they find in the Fourteenth Amendment. The 2011 Maryland Constitutional Law Schoomze, to which this is an introduction, provided an opportunity for law …

Moral Turpitude, Julia Simon-Kerr

Julia Simon-Kerr

This Article gives the first account of the moral turpitude standard, tracing its history from the early American law of defamation to evidence law, where it has been used for witness impeachment, and then to legal areas as diverse as voting rights, juror disqualification, professional licensing, and immigration law, where it is used as a collateral sanctioning mechanism. "Moral turpitude" was formalized as a legal standard by common law courts seeking a manageable test for slander per se. As the standard spread and was appropriated for use in other fields, it functioned as a standard that purported to judge character …

Renewing The Bayh-Dole Act As A Default Rule In The Wake Of Stanford V. Roche, Parker Tresemer

Parker Tresemer

Since its enactment in 1980, the Bayh-Dole Act has incentivized university and private industry investment in new technologies by granting them exclusive patent rights to their inventors’ federally funded technologies. The Supreme Court’s holding in Stanford v. Roche, however, threatens to stall American innovation by undermining the Act’s intended structure for disposition of intellectual property rights. Congress enacted the Bayh-Dole Act to solve a specific problem: stagnating technological innovation in the decades after World War II. Universities and private companies are unwilling to commercialize basic federally funded technologies without exclusive rights to those technologies. The Congressional record surrounding the Bayh-Dole …

Best Practices For Drafting University Technology Assignment Agreements After Filmtec, Stanford V. Roche, And Patent Reform, Parker Tresemer

Parker Tresemer

Since the end of World War II, federally funded universities and private companies have been an integral part of continued American innovation and technological production. However, like most rational economic actors, universities and private companies are only willing to invest in federally funded technologies if they are guaranteed some sort of exclusive return on their investment. By granting federal contractors exclusive patent rights to their employee’s federally funded inventions, the Bayh-Dole Act provided the necessary incentives for private sector investment in federally funded technologies. However, case law subsequent to Bayh-Dole’s enactment has significantly undermined the system of incentives Congress intended …