Legal History Commons^™

Proportionalities, Youngjae Lee

Notre Dame Law Review Reflection

“Proportionality” is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …

The Jewel In The Crown: Can India’S Strict Liability Doctrine Deepen Our Understanding Of Tort Law Theory?, Deepa Badrinarayana

Deepa Badrinarayana

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

All Faculty Scholarship

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …

Criminal Prosecution And Section 1983, Barry C. Scheck

Touro Law Review

No abstract provided.

International Legal Structuralism: A Primer, Justin Desautels-Stein

Publications

International legal structuralism arrived on the shores of international thought in the 1980s. The arrival was not well-received, perhaps in part, because it was not well-understood. This essay aims to reintroduce legal structuralism and hopefully pave the way for new, and more positive, receptions and understandings. This reintroduction is organized around two claims regarding the broader encounter between international lawyers and critical theory in the ‘80s. The first was a jurisprudential claim about how the critics sought to show how international law was nothing more than a continuation of international politics by other means. The second was a historical claim …

A Context For Legal History, Or, This Is Not Your Father’S Contextualism, Justin Desautels-Stein

Publications

This short essay attempts a systematic rehearsal of the structuralist approach to legal historiography.

Foreword: Theorizing Contemporary Legal Thought, Justin Desautels-Stein, Duncan Kennedy

Publications

This is a co-authored foreword to a symposium in Law & Contemporary Problems titled "Theorizing Contemporary Legal Thought." It includes a discussion of the background of the project, a brief summary of the articles included in the issue, and a very short statement from Desautels-Stein and Kennedy on the "loss of faith" indicative of Contemporary Legal Thought.

Is The Law Hopeful?, Annelise Riles

Annelise Riles

This essay asks what legal studies can contribute to the now vigorous debates in economics, sociology, psychology, philosophy, literary studies and anthropology about the nature and sources of hope in personal and social life. What does the law contribute to hope? Is there anything hopeful about law? Rather than focus on the ends of law (social justice, economic efficiency, etc.) this essay focuses instead on the means (or techniques of the law). Through a critical engagement with the work of Hans Vaihinger, Morris Cohen and Pierre Schlag on legal fictions and legal technicalities, the essay argues that what is “hopeful” …

The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

Mark Fenster

This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial voice in Symbols and …

Restoring Constitutional Equilibrium, Adam Lamparello

Adam Lamparello

In areas such as the Fourteenth Amendment, the Supreme Court's lack of institutional restraint has affected citizens of every political persuasion. In Bush v. Gore, the Florida Supreme Court’s recount order was blocked. ‘Liberals,’ lost. In Roe v. Wade, the Court required state legislatures to allow most abortions in the first trimester. ‘Conservatives’ lost. In Clinton v. City of New York and Citizens United v. Federal Election Commission, the coordinate branch’s attempt to ensure a more efficient and fairer government was thwarted. Average citizens lost. The problem is not a liberal or conservative one, whatever those words mean. It is …

Law And Artifice In Blackstone's Commentaries, Jessie Allen

Articles

William Blackstone is often identified as a natural law thinker for whom property rights were preeminent, but reading the Commentaries complicates that description. I propose that Blackstone’s concept of law is more concerned with human invention and artifice than with human nature. At the start of his treatise, Blackstone identifies security, liberty and property as “absolute” rights that form the foundation of English law. But while security and liberty are “inherent by nature in every individual” and “strictly natural,” Blackstone is only willing to say that “private property is probably founded in nature.” Moreover, Blackstone is clear that there is …

Weeds In The Gardens Of Justice?The Survival Of Hyperpositivism In Polishlegal Culture As A Symptom/Sinthome, Rafal Manko

Dr. Rafał Mańko

After 1989, the Polish legal elites embraced a transform-ation discourse, presenting modern Polish legal history as a circular journey from Europe to the dystopia of “Communism” and back. As aconsequence, links with the state-socialist past are repressed from thecollective consciousness of the legal community and presented as post-Soviet “weeds” in the Polish gardens of justice. However, the repressedweeds return in the form of symptoms – legal survivals, which lawyerstend to ignore or conceal because they subvert the dominant ideologicalnarrative. In this paper, I focus on metanormative survivals of the So-cialist Legal Tradition in Poland which can all be brought under …

Weeds In The Gardens Of Justice? The Survival Of Hyperpositivism In Polishlegal Culture As A Symptom/Sinthome (Forthcoming), Rafal Manko

Dr. Rafał Mańko

After 1989, the Polish legal elites embraced a transformation discourse, presenting modern Polish legal history as a circular journey from Europe to the dystopia of “Communism” and back. As a con­sequence, links with the state-­socialist past are repressed from the col­lective consciousness of the legal community and presented as post­-Soviet “weeds” in the Polish gardens of justice. However, the repressed weeds return in the form of symptoms – legal survivals, which lawyers tend to ignore or conceal because they subvert the dominant ideological narrative. In this paper, I focus on metanormative survivals of the So­cialist Legal Tradition in Poland which …

‘Jogalkotási Javaslatok Megfogalmazása A Jogtudományban’ [Policy Proposals And Legal Scholarship], Péter Cserne, György Gajduschek

Péter Cserne

This is the manuscript of a chapter written for a Hungarian handbook on legal scholarship. It provides an historical overview and a theoretical defense of a policy oriented, in contrast to doctrinal, study of law. The chapter also provides an introduction to the foundations and methodological tools of public policy analysis, including regulatory impact assessment.

Conference Program -- Association For The Study Of Law, Culture, & The Humanities 14th Annual Conference, University Of Nevada, Las Vegas -- William S. Boyd School Of Law

Association for the Study of Law, Culture, & the Humanities 14th Annual Conference

The UNLV William S. Boyd School of Law hosted the Association for the Study of Law, Culture & the Humanities 14th Annual Conference from March 11-12, 2011. The Association brings together more than 275 interdisciplinary scholars from around the world each year to discuss law and legal issues from a broad perspective. Scholars attended the meeting at UNLV from Australia, Canada, England, Ireland, Italy, New Zealand and Sweden. The theme of the conference, drawing on the work of Nan Seuffert of the University of Waikato, was "Boundaries and Enemies."

The Association for the Study of Law, Culture and the Humanities …

The Effect Of Legal Theories On Judicial Decisions, Anthony D'Amato

Faculty Working Papers

I draw a distinction in the beginning of this essay between judicial decision-making and a judge's decision-making. To persuade a judge, we should try to discover what her theories are. Across a range of theories, I offered well-known case examples typically cited as examples of each theory. Then I showed that the exact same theory used to justify or explain those case results could be used to justify or explain the opposite result in each of those cases.

The Rule Of Law As An Institutional Ideal, Gianluigi Palombella

Gianluigi Palombella

This article aims at offering an innovative interpretation of the potentialities of the "rule of law" for the XXI Century. It goes beyond current uses and the dispute between formal and substantive conceptions, by reaching the roots of the institutional ideal. Also through historical reconstruction and comparative analysis, the core of the rule of law appears to be a peculiar notion, showing a special objective that the law is asked to achieve, on a legal plane, largely independent of political instrumentalism. The normative meaning is elaborated on and construed around the notions of institutional equilibrium, non domination and "duality" of …

Is The Law Hopeful?, Annelise Riles

Cornell Law Faculty Working Papers

This essay asks what legal studies can contribute to the now vigorous debates in economics, sociology, psychology, philosophy, literary studies and anthropology about the nature and sources of hope in personal and social life. What does the law contribute to hope? Is there anything hopeful about law? Rather than focus on the ends of law (social justice, economic efficiency, etc.) this essay focuses instead on the means (or techniques of the law). Through a critical engagement with the work of Hans Vaihinger, Morris Cohen and Pierre Schlag on legal fictions and legal technicalities, the essay argues that what is “hopeful” …

Szerződésértelmezés Hermeneutika És Jogpolitika Között. A Contra Proferentem Szabály [Contract Interpretation Between Hermeneutics And Policy: The Contra Proferentem Rule], Péter Cserne

Péter Cserne

This paper discusses why contract interpretation is substantially different from the interpretation of literary works and illustrates the argument with the analysis of the contra proferentem rule. It is a substantially revised version of my ‘Policy considerations in contract interpretation: the contra proferentem rule from a comparative law and economics perspective’ (2009)

Global Threads: Weaving The Rule Of Law And The Balance Of Legal Software, Gianluigi Palombella

Gianluigi Palombella

The article shows how the global legal sphere attempts to compensate the lack of a system (hardware) and faces the proliferation of legal normativities (software). The author elaborates on the role of the rule of law: after stressing the ambiguities and the contestability of its current uses in the confrontations between legal orders and regulatory regimes, it is explained that the persistence and promise of the rule of law in the global setting depend on the weaving of a set of meta-rules (a special kind of software) developed through various areas and sources of legalities in the international environment. Eventually, …

Jogelmélet Jog Nélkül? [Legal Theory Without Law?], Péter Cserne

Péter Cserne

No abstract provided.

The Rule Of Law, Democracy, And International Law - Learning From The Us Experience, Gianluigi Palombella

Gianluigi Palombella

The general issue addressed in this paper is the relation between the rule of law as a matter of national law, and as a matter of international law. Different institutional conceptions of this relationship give rise to different attitudes towards international law. Nonetheless, questions arise that cast doubt on age-old tenets of certain Western countries concerning the radical separability between the rule of law within the domestic system and in the international realm. The article will start considering some recent developments in the United States' treatment of alien detainees. Then it shall address the relation between domestic constitutions and international …

The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash

ExpressO

For the past several decades, the majority of courts and commentators have viewed the Ninth Amendment as a provision justifying judicial enforcement of unenumerated individual rights against state and federal abridgment. The most influential advocate of this libertarian reading of the Ninth has been Professor Randy Barnett who has argued in a number of articles and books that the Ninth was originally understood as guarding unenumerated natural rights. Recently uncovered historical evidence, however, suggests that those who framed and ratified the Ninth Amendment understood the Clause as a guardian of the retained right to local self-government. Recognizing the challenge this …

My Dinner At Langdell's, Pierre Schlag

Publications

This essay begins on one of those cold wet April Cambridge mornings. It was too wet for fog, but too indifferent for rain. My head ached. My lips were dry and my tongue felt bloated. The fever had surely come back. Worse - the laudanum was wearing off. Tonight would be dinner at Langdell's. It occurred to me that not everyone is invited to Langdell's for dinner - certainly not wayward law professors from the provinces. This was an extraordinary opportunity. Blackstone would be there. Duncan Kennedy perhaps. Certainly the early Llewellyn. I knocked on the door.

The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

UF Law Faculty Publications

This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial voice in Symbols and …

Negotiating The Jurisprudential Terrain: A Model Theoretic Approach To Legal Theory, Christopher Roederer

Seattle University Law Review

This paper explores borrowing a meta-theoretical approach to theory from the natural and social sciences in order to provide a framework within which to situate and evaluate the various theories one encounters in the field of law and jurisprudence. Often it is the case that students of jurisprudence go from one school or theory to another with one of three responses: (1) this makes no sense to me; (2) this makes some sense, but what is the point or relevance; or (3) this makes sense and seems true, but so do many of the schools, theories, and theorists we have …

The Limits Of Preference-Based Legal Policy, Herbert J. Hovenkamp

All Faculty Scholarship

America's political institutions are built on the principle that individual preferences are central to the formation of policy. The two most important institutions in our system, democracy and the market, make individual preference decisive in the formation of policy and the allocation of resources. American legal traditions have always reflected the centrality of preference in policy determination. In private law, the importance of preference is reflected mainly in the development and persistence of common-law rules, which are intended to facilitate private transactions over legal entitlements. In constitutional law, the centrality of preference is reflected in the high position we assign …

Jurisprudence And Gender, Robin West

Georgetown Law Faculty Publications and Other Works

What is a human being? Legal theorists must, perforce, answer this question: jurisprudence, after all, is about human beings. The task has not proven to be divisive. In fact, virtually all modern American legal theorists, like most modern moral and political philosophers, either explicitly or implicitly embrace what I will call the "separation thesis" about what it means to be a human being: a "human being," whatever else he is, is physically separate from all other human beings. I am one human being and you are another, and that distinction between you and me is central to the meaning of …

Book Review. Virtue, Commerce, And History: Essays On Political Thought And History, Chiefly In The Eighteenth Century By J.G.A. Pocock, Stephen A. Conrad

Articles by Maurer Faculty

No abstract provided.

The Future Of Legal Scholarship And The Search For A Modern Theory Of Law, Donald H. Gjerdingen

Articles by Maurer Faculty

In this Article, Professor Gjerdingen argues that the current crisis in legal scholarship can be traced to a change in the dominant concept of American law. He argues that virtually all of the significant schools of American legal thought during the last century, from Langdellian orthodoxy to realism to the legal process school, were dominated by a concept of law that separated law and politics. This concept of law, which he terms "conventionalism," presumed that law was an autonomous, apolitical discipline dominated by the study of adjudication and classical common law categories. In contrast, the new legal scholarship of the …