Law and Society Commons^™

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

Catharine P. Wells

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

Daniel M Katz

No abstract provided.

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

Alev Dudek

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 …

Hegelian Dialectical Analysis Of United States Election Laws, Charles E. A. Lincoln Iv

Charles E. A. Lincoln IV

This Article uses the dialectical ideas of German philosopher Georg Wilhelm Friedrich Hegel (1770-1833) in application to the progression of United States voting laws since the founding. This analysis can be used to interpret past progression of voting rights in the US as well as a provoking way to predict the future trends in US voting rights. First, Hegel’s dialectical method is established as a major premise. Second, the general accepted history of United States voting laws from the 1770s to the current day is laid out as a minor premise. Third, the major premise of Hegel’s dialectical method weaves …

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …

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 …

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 …

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

Christopher Tomlins

No abstract provided.

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.

From Reynolds To Lawrence To Brown V. Buhman: Antipolygamy Statutes Sliding On The Slippery Slope Of Same-Sex Marriage, Stephen L. Baskind

Stephen L Baskind

In 2003 in Lawrence v. Texas (striking Texas’ sodomy law), Justice Scalia predicted in his dissent the end of all morals legislation. If Justice Scalia is correct most, if not all, morals-based legislation may fall. For example, in recent years state laws prohibiting same-sex marriage have fallen to constitutional challenges. Ten years after Lawrence in 2013, a Utah Federal District Court in Brown v. Buhman, though feeling constrained by the 1878 Reynolds case (which rejected a First Amendment challenge to an antipolygamy law), nevertheless at the request of a polygamous family concluded that the cohabitation prong of Utah’s anti-bigamy …

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

Peter L. Lindseth

No abstract provided.

The Hypocrisy Of "Equal But Separate" In The Courtroom: A Lens For The Civil Rights Era, Jaimie K. Mcfarlin

Jaimie K. McFarlin

This article serves to examine the role of the courthouse during the Jim Crow Era and the early stages of the Civil Rights Movement, as courthouses fulfilled their dual function of minstreling Plessy’s call for “equality under the law” and orchestrating overt segregation.

The Interwoven Destinies Of The United States, Colombia And Panama: On Friendship, Commerce And Navigation Treaties And International Legal Imperialism, Marco Velásquez-Ruiz

Marco A. Velásquez-Ruiz

Based on the general contention that International Law can (and has) served imperialist purposes – that is to say, extend a nation’s authority over another by establishing an effective influence on its political and economic affairs –, this paper intends to illustrate how the 1846 Friendship, Commerce and Navigation Treaty concluded between the United States and Colombia – commonly known as the Mallarino-Bidlack Treaty –was eventually used by the former as a neocolonial device on the latter. Essentially, the suggested tale on which this paper is built goes as follows: to a great extent, the United States consolidated its global …

Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence

Michael Anthony Lawrence

This Article looks back to the United States Supreme Court’s jurisprudence during the years 1953-1969 when Earl Warren served as Chief Justice, a period marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association and religion, voting rights, and more. The Article further discusses the constitutional bases for the Warren Court’s decisions, principally the Fourteenth Amendment equal protection and due process clauses.

The Article explains that the Warren Court’s equity-based jurisprudence closely resembles, at its root, the “justice-as-fairness” approach promoted in John Rawls’s monumental 1971 work, A Theory of …

The Secret Economy Of Charitable Giving, Allison Anna Tait

Allison Anna Tait

Charitable giving is big business. In 2009, the Internal Revenue Service reported close to 100,000 private foundations, almost double the number from fifteen years earlier. Some of these charitable trusts, like the Gates Foundation, are multi-billion dollar enterprises. Trust instruments and other governing documents set forth the terms that control these gifts. Because charitable trusts can exist in perpetuity, however, changing circumstances sometimes render the terms difficult to fulfill. Courts can apply cy pres, a saving doctrine that allows for the modification of gift restrictions, but in the past courts have tended to apply cy pres narrowly and privilege donor …

Deception In Morality And Law, Larry Alexander, Emily Sherwin

Emily L Sherwin

No abstract provided.

Compensation And Revenge, Emily Sherwin

Emily L Sherwin

No abstract provided.

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 …

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

Gerald Torres

No abstract provided.

The End Of Law Schools, Ray Worthy Campbell

Ray W Campbell

Law schools as we know them are doomed. They continue to offer an educational model originally designed to prepare lawyers to practice in common law courts of a bygone era. That model fails to prepare lawyers for today’s highly specialized practices, and it fails to provide targeted training for the emerging legal services fields other than traditional lawyering.

This article proposes a new ideology of legal education to meet the needs of modern society. Unlike other reform proposals, it looks not to tweaking the training of traditional lawyers, but to rethinking legal education in light of a changing legal services …

Lessons In Fiscal Activism, Mirit Eyal-Cohen

Mirit Eyal-Cohen

This article highlights an anomaly. It shows that two tax rules aimed to achieve a similar goal were introduced at the same time. Both meant to be temporary and bring economic stimuli but received a dramatically different treatment. The economically inferior rule survived while its superior counterpart did not. The article reviews the reasons for this paradox. It shows that the causes are both political and an agency problem. The article not only enriches an important and ongoing debate that has received much attention in recent years, but also provides important lessons to policymakers.

Nothing To Do With Personhood: Corporate Constitutional Rights And The Principle Of Confiscation, Paul Kens Dr.

Paul Kens Dr.

In its 2010 decision Citizens United v. Federal Election Commission the Supreme Court overruled a federal statute that limited a corporation’s ability to pay for political advertising out of its general treasury funds. Those limits, it ruled, violated the corporation’s right to freedom of speech. The case has since become notorious for the widely held belief that, in doing so, the Court declared that corporations are “persons,” possessing the same constitutional rights as flesh and blood human beings. Four years later the Court seemed to expand on this conclusion when it ruled in Burwell v. Hobby Lobby that a general …

Book Review, Unintended Consequences Of Constitutional Amendment, Neil Kinkopf

Neil J. Kinkopf

No abstract provided.

Dogging Darwin: America's Revolt Against The Teaching Of Evolution, J. Herbie Difonzo, Ruth C. Stern

J. Herbie DiFonzo

Abstract

More than four in ten Americans believe that God created humans in their present form 10,000 years ago. American antagonism toward the teaching of evolution is deeply rooted in fundamentalist tradition and an aversion to intellectualism. These forces have combined to demonize Charles Darwin to such an extent that sectarian-based legal and political attacks on evolution show no signs of abating. Darwin’s day in court began in 1925 with the famous Scopes Monkey Trial. It continued into the 21^st century with Kitzmiller v. Dover Area Schools. Throughout, the core creationist agenda has remained the same, although an …

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

Felice J Batlan

No abstract provided.

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

Karen M. Tani

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

Elizabeth R. Carter

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, …