Law Commons^™

Selection Biases, Mark A. Graber, Sanford Levinson

Mark Graber

No abstract provided.

American Constitutionalism: Volume Ii: Rights & Liberties, Howard Gillman, Mark Graber, Keith Whittington

Mark Graber

Constitutionalism in the United States is not determined solely by decisions made by the Supreme Court. Moving beyond traditional casebooks, renowned scholars Howard Gillman, Mark A. Graber, and Keith E. Whittington take a refreshingly innovative approach in American Constitutionalism. Organized according to the standard two-semester sequence--in which Volume I covers Structures of Government and Volume II covers Rights and Liberties--this text is unique in that it presents the material in a historical organization within each volume, as opposed to the typical issues-based organization.

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.

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud At The Expense Of Investors, Charles W. Murdock

Charles W. Murdock

Summary: Janus Capital Group, Inc. v. First Derivative Traders: The Culmination of the Supreme Court’s Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud at the Expense of Investors

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The …

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud At The Expense Of Investors, Charles W. Murdock

Charles W. Murdock

Summary: Janus Capital Group, Inc. v. First Derivative Traders: The Culmination of the Supreme Court’s Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud at the Expense of Investors

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The …

The Role Of Religion In A Catholic Law School: A Century Of Experience At Loyola University Chicago, Thomas M. Haney

Thomas M. Haney

The purpose of this article is to examine the record of a Catholic law school, the School of Law of Loyola University Chicago, which a few years ago celebrated its centennial. This is a detailed study of how the Catholic identity of Loyola Chicago’s law school has manifested itself over the past century, during several distinct eras. The article concludes that the criteria chosen to identify a truly Catholic law school will determine the result of whether any particular law school is indeed Catholic, and that different scholars and commentators will choose different criteria, therefore arriving at different conclusions. The …

The Role Of Religion In A Catholic Law School: A Century Of Experience At Loyola University Chicago, Thomas M. Haney

Thomas M. Haney

The purpose of this article is to examine the record of a Catholic law school, the School of Law of Loyola University Chicago, which a few years ago celebrated its centennial. This is a detailed study of how the Catholic identity of Loyola Chicago’s law school has manifested itself over the past century, during several distinct eras. The article concludes that the criteria chosen to identify a truly Catholic law school will determine the result of whether any particular law school is indeed Catholic, and that different scholars and commentators will choose different criteria, therefore arriving at different conclusions. The …

The Role Of Religion In A Catholic Law School: A Century Of Experience At Loyola University Chicago, Thomas M. Haney

Thomas M. Haney

The purpose of this article is to examine the record of a Catholic law school, the School of Law of Loyola University Chicago, which a few years ago celebrated its centennial. This is a detailed study of how the Catholic identity of Loyola Chicago’s law school has manifested itself over the past century, during several distinct eras. The article concludes that the criteria chosen to identify a truly Catholic law school will determine the result of whether any particular law school is indeed Catholic, and that different scholars and commentators will choose different criteria, therefore arriving at different conclusions. The …

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 …

Hydropower: It's A Small World After All, Gina Warren

Gina Warren

Global warming is here. As exhibited by the recent droughts, heat waves, severe storms and floods, climate change is no longer a question for the future, but a problem for the present. Of the many ways to help combat climate change, this article discusses the use of the most abundant renewable energy source on the plant – water. While large-scale hydropower (think Hoover Dam) is unlikely to see increased development due to its negative impact on the environment, fish, and wildlife, small-scale hydropower (think a highly technologically-advanced water mill) is environmentally-friendly and would produce clean, renewable energy to benefit local …

Shaping The Disclosure Tort: Scholars' Early Importance And Modern Impotence, Jared A. Wilkerson

Jared A. Wilkerson

Legal scholars guided the creation and development of the disclosure tort for about seventy-five years (1890–1965), a period in which most states recognized a common law or statutory right to privacy. Since then, however, scholarly attempts to curb or modify the tort have yielded nothing. This article—beginning with the formalism-realism debate won by such sages as Brandeis, Pound, and Prosser and ending with modern experts like Chemerinsky, Posner, and Solove—shows that notwithstanding enormous efforts by some of America’s most respected contemporary academics, would-be reformers of the disclosure tort have not budged it since Prosser’s definition in the Restatement (Second). This …

An ‘All Of The Above’ Theory Of Legal Development, Larry A. Dimatteo

Larry A DiMatteo

The paper provides a brief background of Nathan Isaacs, his work, and his theory of legal development. Invariably, when analyzing Isaacs’ claim that history proves that law developments in cycles (status to contract to status) the role of Jewish legal history in the development of his thought will play an important role in understanding his theory. Isaacs’ was that rare scholar knowledgeable in the common law, as well as, civil law. A pragmatic realist, as well as a devote Jew. He was a legal historian and very much a man of the present. He possessed a Ph.D. in Economics, and …

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.

Book Review, Christian G. Samito (Ed.). Changes In Law And Society During The Civil War And Reconstruction: A Legal History Documentary Reader. Carbondale: Southern Illinois University Press, 2009. 352 Pages. $29.50 (Paper), Thomas Reed

Thomas J Reed

No abstract provided.

Justice John Marshall Harlan I, Richard Maloy

Richard Maloy

No abstract provided.

American Constitutionalism: Volume I: Structures Of Government, Howard Gillman, Mark Graber, Keith Whittington

Mark Graber

Constitutionalism in the United States is not determined solely by decisions made by the Supreme Court. Moving beyond traditional casebooks, renowned scholars Howard Gillman, Mark A. Graber, and Keith E. Whittington take a refreshingly innovative approach in American Constitutionalism. Organized according to the standard two-semester sequence--in which Volume I covers institutions and Volume II covers Rights and Liberties-- this text is unique in that it presents the material in a historical organization within each volume, as opposed to the typical issues-based organization.

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 …