Legal History Commons^™

Petitioner's Observations (December 2007) For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Blinking On The Bench: How Judges Decide Cases, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Cornell Law Faculty Publications

How do judges judge? Do they apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or do they rely on hunches and gut feelings, as the realists maintain? Debate has raged for decades, but researchers have offered little hard evidence in support of either model. Relying on empirical studies of judicial reasoning and decision making, we propose an entirely new model of judging that provides a more accurate explanation of judicial behavior. Our model accounts for the tendency of the human brain to make automatic, snap judgments, which are surprisingly accurate, but which …

Integrating Investment Treaty Conflict And Dispute Systems Design, Susan Franck

Articles in Law Reviews & Other Academic Journals

With the debate on the renewal of the Trade Promotion Authority Act, the proper terms of investment treaties - including dispute resolution provisions - have become an issue of public scrutiny. In a so-called litigation explosion, investors resolve disputes against host governments through international arbitration mechanisms in investment treaties; and there is little evidence of reliance on other processes like mediation. This escalation has lead to a teething period where parties and non-parties have expressed divergent views as to the efficacy, efficiency and fairness of the dispute resolution process. With billions of dollars and sovereignty at stake, the dispute resolution …

Shareholder Litigation: The Accidental Elegance Of Aronson V. Lewis, David A. Skeel Jr.

All Faculty Scholarship

Unlike many key corporate law decisions, the 1984 Delaware Supreme Court decision in Aronson v. Lewis was not heralded by stories in the Wall Street Journal and New York Times, nor in any other newspaper of note. Even now, few people other than corporate law experts are likely to recognize the name. Yet Aronson plays a pivotal role in many corporate law decisions that do get a lot more attention. Aronson established the parameters for filing derivative litigation against the directors of a corporation (or a third party, but derivative suits against third parties are now rare). A shareholder …

Regulating The Poor And Encouraging Charity In Times Of Crisis: The Poor Laws And The Statute Of Charitable Uses, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

National crises such as September 11th and Hurricane Katrina resulted in an unprecedented outpouring of charitable generosity by Americans, which was encouraged by the government through tax incentives. This paper examines an earlier period of crisis, Tudor England (1485-1603), where the state encouraged philanthropy as a tool of social and political policy. Certain charitable activities were favored and others disadvantaged to spur private sector resources to resolve public problems.

The article discusses the evolution of the laws regulating the poor, which culminated in the Poor Law Legislation of 1601, a process that developed attitudes toward the poor and concepts of …

Bringing Light To The Halls Of Shadow, Richard J. Peltz-Steele

Faculty Publications

Appellate judges operate in the shadows. Though they don’t see it that way. “We are judged by what we write,” said U.S. Supreme Court Justice Anthony Kennedy. True too, court proceedings and records are presumptively open to the public. The West Wing of the White House is certainly not so vulnerable to public scrutiny, and the backrooms of legislative chambers are famously smoke-filled. Yet the parts of court activity that we see and hear seem only to whet our appetite for the rest of the process. In this Preface, the author introduces the subject of the journalist and the court, …

Odious Debts Or Odious Regimes?, Patrick Bolton, David A. Skeel Jr.

All Faculty Scholarship

Current odious debt doctrine– using the term “doctrine” loosely, since it has never formally been adopted by a court or international decision maker– dates back to a 1927 treatise by a wandering Russian academic named Alexander Sack. Sack suggested that debt obligations are odious and therefore unenforceable if 1) they were incurred without the consent of the populace; 2) they did not benefit the populace; and 3) the lender knew or should have known about the absence of consent and benefit. The tripartite Sack definition, which quickly became the foundation of odious debt analysis, contemplates a debt-by-debt approach to questionable …

Brief Of Legal Historians As Amici Curiae In Support Of Petitioners, Boumediene V. Bush, Nos. 06-1195, 06-1196 (U.S. Aug. 24, 2007), James Oldham

U.S. Supreme Court Briefs

No abstract provided.

Rescuing Burke, Carl Bogus

Law Faculty Scholarship

No abstract provided.

Class Schedule - Summer 2007, Office Of Registrar

Semester Schedules and Information

No abstract provided.

The Intersection Of Gender And Early American Historic Preservation: A Case Study Of Ann Pamela Cunningham And Her Mount Vernon Preservation Effort, Jill Teehan

Georgetown Law Historic Preservation Papers Series

American historic preservationists universally credit Ann Pamela Cunningham, the woman who saved George Washington's Mount Vernon home, as the chief architect of the historic preservation movement in the United States. However, little scholarship has considered how Cunningham's social position as a woman significantly contributed to her ability to save Mount Vernon, and thus jumpstart a national movement to save historically significant places. Using Cunningham and the organization she formed, the Mount Vernon Ladies' Association of the Union (MVLA), widely regarded as the nation's first historic preservation society, this paper considers the intersection of gender and early historic preservation in the …

Understanding Buffalo's Economic Development (Review Essay), Thomas E. Headrick, John Henry Schlegel

Book Reviews

Reviewing Diana Dillaway, Power Failure: Politics, Patronage, and the Economic Future of Buffalo, New York (2006).

2008-09 Curriculum, Office Of Registrar

Semester Schedules and Information

No abstract provided.

On The Very Idea Of Transitional Justice, Jens David Ohlin

Cornell Law Faculty Publications

The phrase "transitional justice" has had an amazingly successful career at an early age. Popularized as an academic concept in the early 1990s in the aftermath of apartheid's collapse in South Africa, the phrase quickly gained traction in a variety of global contexts, including Rwanda, Yugoslavia, Cambodia, and Sierra Leone. A sizeable literature has been generated around it, so much so that one might even call it a sub-discipline with inter-disciplinary qualities. Nonetheless, the concept remains an enigma. It defines the contours of an entire field of intellectual inquiry, yet at the same time it hides more than it illuminates. …

Race And Wealth Disparity: The Role Of Law And The Legal System, Beverly Moran, Stephanie Wildman

Faculty Publications

In response to the prevalent view that American law and legal institutions are class and color blind, this Article provides examples of how legal institutions sometimes do create and maintain racialized wealth disparities. The Article offers examples of this phenomenon by examining a sequence of federal judicial decisions, the federal taxing statutes, the role of legal education, and access to legal services. These examples are instructive because they cut across a broad spectrum of components of the American legal system. By revisiting issues of race and wealth in different legal settings from the Constitution to federal cases, the tax system, …

Harmonizing Plural Societies: The Cases Of Lasallians, Families, Schools – And The Poor, Patrick Mckinley Brennan

Working Paper Series

The modern state characteristically assumes or asserts a monopoly over “group persons” and their right to exist; group persons are said to exist at the pleasure or concession of the state. According to Catholic social teaching, by contrast, these unities of order -- such as church and family, as well as corporations and schools and the like -- are, at least in potency, ontologically prior to the state. Such group persons both constitute conditions of the possibility of human flourishing and, correlatively, impose limitations on the “sovereign” state. Such group persons are not mere concessions of an unbounded state: They …

A Quandary In Law? A (Qualified) Catholic Denial, Patrick Mckinley Brennan

Working Paper Series

A contribution to the second law review symposium dedicated to Steven Smith’s Law’s Quandary (Harvard 2004), this paper asks whether the “quandary” in which Smith finds modern law and jurisprudence is not, at least in part, the consequence of misunderstanding the classical natural law jurisprudence. The paper advances an interpretation of natural law according to which the natural law is the human person’s “participation” in the eternal law itself, with literally cosmic consequences for how we understand the ends and measures of human lawmaking. Mounting an argument against Justice Scalia’s thesis that “God applies the natural law,” the paper goes …

Looking Backward: Richard Epstein Ponders The “Progressive” Peril, Michael Allan Wolf

UF Law Faculty Publications

In "How Progressives Rewrote the Constitution," Richard Epstein bemoans the growth of a dominant big government. How Progressives should receive a warm reception from the audience, lawyers and laypeople alike, who view the New Deal as a mistake of epic proportions. For the rest of us, significant gaps will still remain between, on the one hand, our understanding of the nation’s past and of the complex nature of constitutional lawmaking and, on the other, Epstein’s version of the nature of twentieth-century reform and Progressive jurisprudence.

Heuristics And Biases In Bankruptcy Judges, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich

Cornell Law Faculty Publications

Do specialized judges make better decisions than judges who are generalists? Specialized judges surely come to know their area of law well, but specialization might also allow judges to develop better, more reliable ways of assessing cases. We assessed this question by presenting a group of specialized judges with a set of hypothetical cases designed to elicit a reliance on common heuristics that can lead judges to make poor decisions. Although the judges resisted the influence of some of these heuristics, they also expressed a clear vulnerability to others. These results suggest that specialization does not produce better judgment.

Comments On The Comments, Robert S. Summers

Cornell Law Faculty Publications

The paper replies to Bix and Soper (Bix 2007; Soper 2007). Bix’s paper raises methodological questions, especially whether a form-theorist merely needs to reflect on form from the arm-chair so to speak. A variety of methods is called for, including conceptual analysis, study of usage, “education in the obvious,” general reflection on the nature of specific functional legal units, empirical research on their operation and effects, and still more. Further methodological remarks are made in response to Soper’s paper. Soper suggests the possibility of substituting “form v. substance” of a unit as the central contrast here rather than form v. …

Petitioner's Observations (February 2007) For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Law In The Time Of Cholera: Disease, State Power, And Quarantine Past And Future, Felice J. Batlan

All Faculty Scholarship

No abstract provided.

Christianity And The Large Scale Corporation, David A. Skeel Jr.

All Faculty Scholarship

Ask most people what they associate with “Christianity and the corporation” and, at least in the US, they may mention activist nuns calling for shareholder votes on sweatshop labor, nuclear weapons or divestment from South Africa, or perhaps a newspaper story about mutual funds that invest only in “faith friendly” corporations. Each is a contemporary manifestation of relations that run far deeper, and date back well over a thousand years. The early church spawned many of the largest corporate enterprises of the middle ages, and tenaciously promoted the concept of a collective entity distinct from the state. When the modern …

The (Futile) Search For A Common Law Right Of Confrontation: Beyond Brasier's Irrelevance To (Perhaps) Relevant American Cases, Randolph N. Jonakait

Articles & Chapters

After Crawford v. Washington asserted that the Confrontation Clause constitutionalized the common law right of confrontation, cases have been suggested that illustrate that right. This short essay considers whether the 1779 English case Rex v. Brasier is such a decision, as some contend. The essay concludes that Brasier says nothing about the right of confrontation and points to a comparable framing-era, American case that indicates that general rules about hearsay and confrontation were not at issue. The essay maintains that if the historical understandings of the right of confrontation and hearsay are to control the Confrontation Clause, then framing-era, American …

The Era Of Deference: Courts, Expertise, And The Emergence Of New Deal Administrative Law, Reuel E. Schiller

Faculty Scholarship

No abstract provided.

Reconsidering Procedural Conformity Statutes, Thomas O. Main

Scholarly Works

No abstract provided.

Scholarship And Teaching After 175 Years, Gordon A. Christenson

Faculty Articles and Other Publications

A quarter century ago, I presided at the 150th anniversary celebration of the founding of the Cincinnati Law School. Newly appointed Justice Sandra Day O'Connor came to dedicate the radically refurbished Taft Hall in the spring of 1983 and to say good things about our long history. This year we begin to celebrate the College's 175th anniversary. For its dedicatory issue, the editor-in-chief of the Law Review, Matthew Singer, invited me to write an introduction as well as to reflect on those twenty-five years and the challenges and opportunities I see ahead for us. Especially as an emeritus dean and …

Responding To Nietzsche: The Constructive Power Of Destruktion, Francis J. Mootz Iii

Scholarly Works

As a student of Hans-Georg Gadamer, and later a translator and important commentator on Gadamer’s philosophy, P. Christopher Smith is widely acknowledged to be a leading hermeneutical philosopher. In a series of works, Smith has argued that Gadamer provides an important corrective to Nietzsche’s caustic critical challenges, but that Gadamer’s hermeneutics has no relevance for legal theory because law is just the manifestation of will to power. In this paper I argue that Smith misunderstands the nature of legal practice. Starting with a re-reading of the debate between Gadamer and Jacques Derrida about the legacy of Nietzsche’s philosophy, I argue …

Mark Curthoys' Governments, Labour, And The Law In Mid-Victorian Britain: The Trade Union Legislation Of The 1870s, Robert J. Steinfeld

Book Reviews

No abstract provided.

Douglas Hay And Paul Craven's Masters, Servants, And Magistrates In Britain And The Empire, 1562–1955, Robert J. Steinfeld

Book Reviews

No abstract provided.