Legal History Commons^™

Ser Y Tiempo Jurídicos (Juridical Being And Time), Juan Carlos Riofrío Martínez-Villalba

Juan Carlos Riofrío Martínez-Villalba

El estudio contiene una profundización metafísica del análisis de la dinámica jurídica. Para explicarla se aplican los poderosos conceptos griegos de ser y potencia, con los que los antiguos pudieron resolver el problema del tiempo y del cambio cósmico. Por eso el artículo comienza modulando para el derecho estas nociones griegas, de los cuales resultan los conceptos metafísicos de “ser jurídico” y “potencia jurídica”, para luego arribar al concepto de “espacio jurídico”. Con esta triada de nociones se puede, entonces, resolver el tema del cambio y el tiempo jurídico, como se hace al final del trabajo.

This article contains a …

Progressive Legal Thought, Herbert Hovenkamp

Herbert Hovenkamp

A widely accepted model of American legal history is that classical legal thought, which dominated much of the nineteenth century, was displaced by progressive legal thought, which survived through the New Deal and in some form to this day. Within its domain, this was a revolution nearly on a par with Copernicus or Newton. This paradigm has been adopted by both progressive liberals who defend this revolution and by classical liberals who lament it. Classical legal thought is generally identified with efforts to systematize legal rules along lines that had become familiar in the natural sciences. This methodology involved not …

Professor Frank R. Kennedy, Jack F. Williams

Jack F. Williams

No abstract provided.

Decolonization, Development, And Denial, Natsu Taylor Saito

Natsu Taylor Saito

No abstract provided.

Punitive Injunctions, Nirej S. Sekhon

Nirej Sekhon

No abstract provided.

Auctioning Class Settlements, Jay Tidmarsh

Jay Tidmarsh

Although they promise better deterrence at a lower cost, class actions are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class (the class representative and class counsel) advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class-action reform proposals. This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea …

Inventing The Classical Constitution, Herbert Hovenkamp

Herbert Hovenkamp

One recurring call over a century of American constitutional thought is for return to a “classical” understanding of American federal and state Constitutions. “Classical” does not necessarily mean “originalist” or “interpretivist." Some classical views, such as the attempt to revitalize Lochner-style economic due process, find little support in the text of the federal Constitution or any of the contemporary state constitutions. Rather, constitutional meaning is thought to lie in a background link between constitution formation and classical statecraft. The core theory rests on the assumption of a social contract to which everyone in some initial position agreed. Like any …

Professionalism For The 21st Century: Independence In Context, Rebecca Roiphe

Rebecca Roiphe

Most scholars condemn professionalism as self-serving, anti-competitive rhetoric. This Article argues that professionalism can be a positive and productive way of thinking about lawyers’ work. While it is undoubtedly true that the Bar has used the ideology of the professional role to support self-interested and bigoted causes, professionalism has also served as an important way of developing and marshalling group identity to promote useful ends. The critics of professionalism tend to view it as an ideology, according to which professionals, unlike businessmen, are concerned not with their own financial gain but with the good of their clients and the community …

Historical Framework For Reviving Constitutional Protection For Property And Contract Rights , James L. Kainen

James L. Kainen

Post-New Deal constitutionalism is in search of a theory that justifies judicial intervention on behalf of individual rights while simultaneously avoiding the charge of "Lochnerism."' The dominant historical view dismisses post-bellum substantive due process as an anomalous development in the American constitutional tradition. Under this approach, Lochner represents unbounded protection for economic rights that permitted the judiciary to read laissez faire, pro-business policy preferences into the constitutional text. Today's revisionists have mounted a substantial challenge to the dismissive views of traditionalists. Indeed, some claim Lochner reached the right result, but for the wrong reason. The revisionists characterize substantive due process …

Impeachment Exception To The Exclusionary Rules: Policies, Principles, And Politics, The , James L. Kainen

James L. Kainen

The exclusionary evidence rules derived from the Fourth, Fifth, and Sixth Amendments continue to play an important role in constitutional criminal procedure, despite the intense controversy that surrounds them. The primary justification for these rules has shifted from an "imperative of judicial integrity" to the "deterrence of police conduct that violates... [constitutional] rights." Regardless of the justification it uses for the rules' existence, the Supreme Court continues to limit their breadth "at the margin," when "the acknowledged costs to other values vital to a rational system of criminal justice" outweigh the deterrent effects of exclusion. The most notable limitation on …

Truth, Deterrence, And The Impeachment Exception , James L. Kainen

James L. Kainen

James v. Illinois permits illegally-obtained evidence to impeach defendants, but not defense witnesses. Thus far, all courts have construed James to allow impeachment of defendants' hearsay declarations. This article argues against allowing illegally-obtained evidence to impeach defendants' hearsay declarations because doing so unduly diminishes the exclusionary rule's deterrent effect. The distinction between impeaching defendants and defense witnesses disappears when courts allow prosecutors to impeach defendants' hearsay declarations. Because defense witnesses report exculpatory conduct of a defendant who always has a substantial interest in disguising his criminality, their testimony routinely incorporates defendant hearsay. Defense witness testimony thus routinely paves the way …

Nineteenth Century Interpretations Of The Federal Contract Clause: The Transformation From Vested To Substantive Rights Against The State , James L. Kainen

James L. Kainen

During the early nineteenth century, the contract clause served as the fundamental source of federally protected rights against the state. Yet the Supreme Court gradually eased many of the restrictions on state power enforced in the contract clause cases while developing the doctrine of substantive due process after the Civil War. By the end of the nineteenth century, the due process clause had usurped the place of the contract clause as the centerpiece in litigation about individual rights. Most analyses of the history of federally protected rights against the state have emphasized the rise of substantive due process to the …

The Jurisprudence Of The Hughes Court: The Recent Literature, Barry Cushman

Barry Cushman

No abstract provided.

Law & Order Made Amusing: A Selection Of Law Books For Children From The Collection Of Morris L. Cohen, Karen S. Beck, Mary Sarah Bilder, Ann Mcdonald, Sharon Hambly O'Connor

Sharon Hamby O'Connor

Exhibition program from a Spring 1998 exhibit presented in the Daniel R. Coquillette Rare Book Room at the Boston College Law Library. The exhibit featured selections from Morris L. Cohen's collection of law books for children.

Law & Order Made Amusing: A Selection Of Law Books For Children From The Collection Of Morris L. Cohen, Karen S. Beck, Mary Sarah Bilder, Ann Mcdonald, Sharon Hambly O'Connor

Sharon Hamby O'Connor

Exhibition program from a Spring 1998 exhibit presented in the Daniel R. Coquillette Rare Book Room at the Boston College Law Library. The exhibit featured selections from Morris L. Cohen's collection of law books for children.

Justice Lewis F. Powell's Baffling Vote In Roe V. Wade, Samuel W. Calhoun

Samuel W. Calhoun

No abstract provided.

Judicial Broken-Field Running Perl V. St. Paul Fire & Marine Ins. Co., John F. Dobbyn

John Dobbyn

No abstract provided.

Court-Packing And Compromise, Barry Cushman

Barry Cushman

President Franklin D. Roosevelt’s 1937 Court-packing bill would have permitted him to appoint six additional justices to the Supreme Court, thereby expanding its membership to fifteen immediately. Throughout the ultimately unsuccessful campaign to enact the measure, Roosevelt was presented with numerous opportunities to compromise for a measure authorizing the appointment of fewer additional justices. The President rejected each of these proposals, and his refusal to compromise often has been attributed to stubbornness, overconfidence, or hubris. Yet an examination of the papers of Attorney General Homer S. Cummings reveals why FDR and his advisors believed that he required no fewer than …

Lochner, Liquor, And Longshoremen: A Puzzle In Progressive Era Federalism, Barry Cushman

Barry Cushman

In 1890, the Supreme Court shocked and thrilled the civilized world with the announcement that dry states could not prohibit the sale of liquor shipped in from outside the state. So long as the out-of-state goods remained in their "original packages," the Court held they retained their character as interstate commerce subject only to federal regulation. The consequences for the cause of local sobriety were, predictably, catastrophic. The proliferation in temperance territory of "original package saloons," at which one could purchase liquor free from the superintendence of local liquor authorities, was appalling to dry eyes. Members of Congress immediately proposed …

Mr. Dooley And Mr. Gallup: Public Opinion And Constitutional Change In The 1930s, Barry Cushman

Barry Cushman

Scholars interested in the development of political and constitutional culture during the 1930s sometimes draw inferences about popular preferences on various issues of social and economic policy from the results of presidential and congressional elections. A review of contemporary public opinion polls taken by George Gallup for the American Institute of Public Opinion and by Elmo Roper for the Fortune Magazine survey offers a more granular understanding of popular views on the public policy issues of the day. This article canvasses all of the public opinion polls taken by Gallup and Roper between 1935, when they began publishing their results, …

Comparative Law In A Time Of Globalization: Some Reflections, Thomas C. Kohler

Thomas C. Kohler

This piece discusses the tension between internationalization of legal ordering and the growing pressure against local and national ordering. Using Aristotle, Tocqueville, the Reception of Roman Law as forebears of the problem, I discuss three major European Court of Justice decisions (Laval, Viking and Schmidberger) as examples of the displacement of local ordering. I conclude that the task of comparative law is to focus on the importance of local ordering, keeping the human at the center and not vague principles generated by international bodies with no or little local ties.

Language Acculturation Processes And Resistance To In"Doctrine"Ation In The Legal Skills Curriculum And Beyond: A Commentary On Mertz's Critical Anthropology Of The Socratic, Doctrinal Classroom, 34 J. Marshall L. Rev. 131 (2000), Brook K. Baker

Brook K. Baker

No abstract provided.

Foreword: Conference On Religious Legal Theory: Rlt Iv: Expanding The Conversation, Samuel J. Levine

Samuel J. Levine

In this article, the author introduces the articles published in the Symposium Issue of the Touro Law Review, which is a compilation of selected excerpts from the fourth annual Conference on Religious Legal Theory (“RLT”) held April 10-12, 2013. By introducing each article, the author shows a sampling of the variety of topics and disciplines explored and the range of perspectives represented at the Conference, which revolved around the theme RLT IV: Expanding the Conversation. The author provides the background of the panelists to give context to each article, and then briefly discusses the relevance and main ideas.

Testimony To The Committee On Financial Institutions, Kansas House Of Representatives March 13, 2014, Brian M. Mccall

Brian M McCall

This document contains the text of testimony given before the Committee on Financial Institutions, Kansas House of Representatives March 13, 2014, in a hearing to address potential changes to the regulation of payday lending in Kansas.

The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt

Christopher W. Schmidt

Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Essay explains how this differentiation arose and considers its consequences.

Although there is a certain inherent logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech …

Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page

Cathren Page

Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s …

Nfib V. Sebelius And The Transformation Of The Taxing Power, Barry Cushman

Barry Cushman

In National Federation of Independent Business v. Sebelius, Chief Justice Roberts wrote for a majority of five Justices in holding that the “shared responsibility payment” required by the Patient Protection and Affordable Care Act (“ACA”) constituted an imposition of a “tax” rather than a “penalty.” Thus, even though the Chief Justice and four other Justices had concluded that the provision was not a legitimate exercise of the commerce power, the Court held that it was a valid exercise of the taxing power. The origin of the distinction between taxes and penalties in taxing power jurisprudence is found in the 1922 …

Introduction To Dodge V. Ford Motor Co.: Primary Source And Commentary Material, Linda Kawaguchi

Linda Kawaguchi

Original documents in historic cases provide a uniquely valuable perspective on the cases themselves and the surrounding circumstances and history that contribute to the development of legal principles.

Understanding that access to historical materials can be difficult, the Chapman Law Review has endeavored to collect source documents regarding the case of Dodge v. Ford Motor Co.

After a short introduction to this compilation, including a discussion of research methodologies, several key historical documents are reproduced and transcribed that we hope will aid future researchers.

The Scalpel And The Salve: Rekindling Romantic Realism, Daniel Farbman

Dan Farbman

Juridische Filatelie: Der Verbeelding Van Recht En Jurist Op Postzegels, Jan M. Smits

Jan M Smits

This illustrated contribution considers the representation of law, judges and lawyers on stamps.