Open Access. Powered by Scholars. Published by Universities.®

Law and Society Commons™

Open Access. Powered by Scholars. Published by Universities.®

Legal History

Selected Works

Selected Works

2015

Articles 1 - 18 of 18

Full-Text Articles in Law and Society

Oliver Wendell Holmes, Jr., And The American Civil War, Catharine P. Wells Oct 2015

Oliver Wendell Holmes, Jr., And The American Civil War, Catharine P. Wells

Catharine P. Wells

Oliver Wendell Holmes, Jr. spent three terrible years fighting in the Civil War. By any standard his experience was horrific. He was wounded three times, suffered a nearly fatal bout of dysentery, and endured the deaths of many of his closest friends. Without doubt, it was the most affecting period of his life. Unfortunately, however, the accounts of Holmes’ wartime experience have been notably superficial. Part of the problem has been the fact that, until recently, the chief source of information about these years was Holmes’ own diary and letters. The difficulty with these as a source has been twofold. …

Go to article

Hustle And Flow: A Social Network Analysis Of The American Federal Judiciary, Daniel Martin Katz Sep 2015

Hustle And Flow: A Social Network Analysis Of The American Federal Judiciary, Daniel Martin Katz

Daniel M Katz

No abstract provided.

Go to article

All Americans Not Equal: Mistrust And Discrimination Against Naturalized Citizens In The U.S., Alev Dudek Aug 2015

All Americans Not Equal: Mistrust And Discrimination Against Naturalized Citizens In The U.S., Alev Dudek

Alev Dudek

Approximately 13 percent of the U.S. population — nearly 40 million — is foreign-born, of which about 6 percent are naturalized U.S. citizens. Given the positive image associated with immigrants — the “nation of immigrants” or “the melting pot” — one would assume that all Americans in the U.S.A., natural born or naturalized, have equal worth as citizens. This, however, is not necessarily the case. Despite U.S. citizenship, naturalized Americans are seen less than equal to natural born Americans. They are often confused with “foreign nationals.” Moreover, their cultural belonging, allegiance, English-language skills, as well as other qualifications, are questioned.

Go to article

Ex Post Modernism: How The First Amendment Framed Nonrepresentational Art, Sonya G. Bonneau Aug 2015

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 …

Go to article

Turning Enemies Into Adversaries - T-Tip Negotiations And The Quest For A New Westphalia Momentum, Emanuela Matei, Horia Ciurtin Jul 2015

Turning Enemies Into Adversaries - T-Tip Negotiations And The Quest For A New Westphalia Momentum, Emanuela Matei, Horia Ciurtin

Emanuela A. Matei

Neither universalism, nor isolationism can be regarded as legitimate representations of a pluralist global society. Evidence can be brought that in economic terms the current paradigm engenders instability by enhancing inequality within and among diverse constituencies. The present-day factual reality denies the zero-sum game pattern and, together with that, the reliability of the Westphalian model. What type of legal processes should be used in order to ensure investor protection for the purpose of concluding free trade agreements between the EU and a sovereign of equal calibre? With this question in mind and against the factual reality of an enlarged EU …

Go to article

Incest In A Thousdand Acres: Cheap Trick Or Feminist Re-Vision, Susan Ayres Jul 2015

Incest In A Thousdand Acres: Cheap Trick Or Feminist Re-Vision, Susan Ayres

Susan Ayres

This article ultimately argues that the plot changes are not a cheap trick intended to manipulate the reader's emotions, but a feminist re-vision, which succeeds or not depending on the reader's critical feminist perspective. Thus, Part Two delineates several feminist stances, such as liberal feminism, radical feminism, social feminism, and postmodern feminism, and summarizes the plot changes Smiley has imposed on King Lear. Part Three considers one major plot change - the longing for the mother - in terms of patriarchy's suppression of a maternal genealogy and feminine language. This part argues that the novel successfully demonstrates the difficulty in …

Go to article

Demonic Ambiguities: Enchantment And Disenchantment In Nat Turner’S Virginia, Christopher Tomlins Jun 2015

Demonic Ambiguities: Enchantment And Disenchantment In Nat Turner’S Virginia, Christopher Tomlins

Christopher Tomlins

No abstract provided.

Go to article

Will The Constitution Survive Into The Twenty-First Century - Some Reflections On The Bicentennial Of The United States Constitution, 21 J. Marshall L. Rev. 79 (1987), Michael P. Seng Jun 2015

Will The Constitution Survive Into The Twenty-First Century - Some Reflections On The Bicentennial Of The United States Constitution, 21 J. Marshall L. Rev. 79 (1987), Michael P. Seng

Michael P. Seng

No abstract provided.

Go to article

The Paradox Of Parliamentary Supremacy: Delegation, Democracy And Dictatorship In Germany And France, 1920s-1950s, Peter Lindseth Apr 2015

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

Peter L. Lindseth

No abstract provided.

Go to article

Deception In Morality And Law, Larry Alexander, Emily Sherwin Feb 2015

Deception In Morality And Law, Larry Alexander, Emily Sherwin

Emily L Sherwin

No abstract provided.

Go to article

Compensation And Revenge, Emily Sherwin Feb 2015

Compensation And Revenge, Emily Sherwin

Emily L Sherwin

No abstract provided.

Go to article

Limited-Domain Positivism As An Empirical Proposition, Stewart J. Schwab Feb 2015

Limited-Domain Positivism As An Empirical Proposition, Stewart J. Schwab

Stewart J Schwab

In his typically clear statement of a provocative thesis, Fred Schauer, along with his co-author, Virginia Wise, ask us to think about positivism in a new way. Their claim has two parts. First, Schauer and Wise redefine legal positivism as an empirical claim about the limited domain of information that legal decisionmakers use to make decisions. Second, they begin testing the extent to which our legal system in fact reflects this limited domain. Ironically, Schauer and Wise believe that positivism, so conceived, is "increasingly false." Thus, their two-part approach is, first, to declare that legal positivism should be conceived of …

Go to article

Some Observations On The Role Of Social Change On The Courts, Gerald Torres Feb 2015

Some Observations On The Role Of Social Change On The Courts, Gerald Torres

Gerald Torres

No abstract provided.

Go to article

Book Review, Unintended Consequences Of Constitutional Amendment, Neil Kinkopf Jan 2015

Book Review, Unintended Consequences Of Constitutional Amendment, Neil Kinkopf

Neil J. Kinkopf

No abstract provided.

Go to article

Women And Justice For The Poor: A History Of Legal Aid, 1863–1945, Felice Batlan Dec 2014

Women And Justice For The Poor: A History Of Legal Aid, 1863–1945, Felice Batlan

Felice J Batlan

No abstract provided.

Go to article

Administrative Equal Protection: Federalism, The Fourteenth Amendment, And The Rights Of The Poor, Karen M. Tani Dec 2014

Administrative Equal Protection: Federalism, The Fourteenth Amendment, And The Rights Of The Poor, Karen M. Tani

Karen M. Tani


This Article intervenes in a burgeoning literature on “administrative constitutionalism,” the phenomenon of federal agencies—rather than courts—assuming significant responsibility for elaborating the meaning of the U.S. Constitution.  Drawing on original historical research, I document and analyze what I call “administrative equal protection”: interpretations of the Fourteenth Amendment’s Equal Protection Clause in a key federal agency at a time when the Clause’s meaning was fiercely contested.  These interpretations are particularly important because of their interplay with cooperative federalism—specifically, with states’ ability to exercise their traditional police power after accepting federal money.
The Article’s argument is based on a story of change …

Go to article

The Illusion Of Equality: The Failure Of The Community Property Reform To Achieve Management Equality, Elizabeth Carter Dec 2014

The Illusion Of Equality: The Failure Of The Community Property Reform To Achieve Management Equality, Elizabeth Carter

Elizabeth R. Carter

This Article argues that equal management does not exist in any important sense, and that the true goal of the equal management laws was never equality. Community property laws can no longer be honestly described as “a vehicle to ensure the devotion of the couple’s resources to this unique partnership’s purpose: the well-being and future prosperity of the family the couple creates” unless the wife and children are not considered a part of that family. Today, wives in community property states have no better rights than wives in separate property states. In some cases, their economic position may even be …

Go to article

Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan Dec 2014

Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan

Donald J. Kochan

Environmental protection and economic concerns are not mutually exclusive. This article explores some of the issues of economic analysis that might arise as we approach the fourth generation of environmental law. It explains ways that economic analysis can be employed to generate the best environmental rules, including measures under what this article terms as "economics-based environmentalism." Economics-based environmentalism contends that the advantages of using economic principles within a “polycentric toolbox” of environmental law come from the benefits available in private ordering, markets, property rights, liability regimes and incentives structures that will better protect the environment than alternatives like state-based interventionist, …

Go to article