Legal History Commons^™

Can International Law Survive The 21st Century - Yes: With Patience, Persistence, And A Peek At The Past, Dana Zartner Falstrom

San Diego International Law Journal

With the end of the Cold War-the principal international political framework that shaped the international system since the end of WWII-an increasing number of global tensions have arisen which have brought to the fore questions about the ability of existing international law to provide a guiding framework for state behavior. Debates over the limits of state sovereignty, the appropriateness of humanitarian intervention, the justness of pre-emptive war, the definition of self-defense, the legality of replacing a government in the interests of your ideals, and how to deal with terrorism have dominated discussions around the world. Moreover, these discussions have caused …

Algunos Apuntes En Torno A La Prescripción Extintiva Y La Caducidad, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.

Criminal Law Beyond The State: Popular Trials On The Frontier, Andrea Mcdowell

BYU Law Review

No abstract provided.

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).

A Modest Proposal For Regulating Unpublished, Non-Precedential Federal Appellate Opinions While Courts And Litigants Adapt To Federal Rule Of Appellate Procedure 32.1, Sarah E. Ricks

The Journal of Appellate Practice and Process

No abstract provided.

When Is Oral Argument Important? A Judicial Clerk's View Of The Debate, Michael Duvall

The Journal of Appellate Practice and Process

No abstract provided.

Seeking Best Practices Among Intermediate Courts Of Appeal: A Nascent Journey, W. Warren H. Binford, Preston C. Greene, Maria C. Schmidlkofer

The Journal of Appellate Practice and Process

No abstract provided.

Experience Matters: The Rise Of A Supreme Court Bar And Its Effect On Certiorari, Joseph W. Swanson

The Journal of Appellate Practice and Process

No abstract provided.

Deconstructing Thinking Like A Lawyer: Analyzing The Cognitive Components Of The Analytical Mind, Larry O. Natt Gantt Ii

Campbell Law Review

This article ... tackles the task of identifying the cognitive components of legal thinking. The article begins this task by discussing the development of modern law school pedagogy, which gave rise to the emphasis on thinking like a lawyer. The article then considers current conceptions of legal thinking which have divided the skill into cognitive and practical components, and it examines why the cognitive components remain at the center of the skill. The article then surveys empirical research on legal thinking by examining recent research on personality and learning styles as well as research on law student and lawyer surveys. …

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. …

The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg

West Virginia Law Review

No abstract provided.

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, …

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

Michigan Law Review

In the 1888 novel Looking Backward, Edward Bellamy dreamed up a twentieth century America that was a socialist utopia, a vision invoked four years later by the conservative Justice David J. Brewer as a warning against government regulation. In How Progressives Rewrote the Constitution, Richard Epstein, looking back at the twentieth century through an interpretive lens much more similar to Brewer's than Bellamy's, sees and bemoans the growth of a dominant big government of which the novelist could only dream. Epstein pulls no punches in his attack on those he deems responsible for the shift in the American …

The Origins Of A Coming Crisis: Renewal Of The Churchill Falls Contract, James P. Feehan, Melvin Baker

Dalhousie Law Journal

The 1969 Churchill Falls contract between Hydro-Quebec and the Churchill Falls Labrador Corporation has been the subject of political controversy. It has also been challenged in the courts, with appeals reaching to the Supreme Court of Canada. Yet, despite the scrutiny of those court cases, the political rhetoric, and the literature that has been spawned by this matter, an extraordinary element of that contract remains remarkably obscure. It is the contract's renewal clause. At the expiry of the contract's forty-four-year term in 2016, that clause requires an automatic renewal for twenty-five additional years at a fixed nominal price that is …

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 …

Conflict Of Interest, Duress And Unconscionability In Quebec Civil Law: Comment On "The Origins Of A Coming Crisis: Renewal Of The'churchill Falls Contract", Sarah P. Bradley

Dalhousie Law Journal

As Professor James Feehan and archivist-historian Melvin Baker describe the circumstances in which the fateful renewal provision of the 1969 Churchill Falls hydro contract was negotiated, they suggest that the legal doctrines of conflict of interest or economic duress might offer a basis upon which the contract, or perhaps the renewal provision, could be impugned. In addition to interesting historical insights, their analysis offers the intriguing possibility that the government of Newfoundland may yet succeed in its long-standing battle to rid itself of its obligations under the grossly disadvantageous Churchill Falls contract.

Property, Contracts, And Politics, Mark Tushnet

Michigan Law Review

Rebecca Scott is a historian, not an economist. Describing how a dispute over a mule's ownership was resolved, Professor Scott reproduces a receipt two claimants left when they took the mule from the plantation whose manager claimed it as well (p. 185). By contrast, analyzing property relations in the pre-Civil War American South, economic historian Jenny Wahl observes, "[E]conomic historians tend to [use] ... frequency tables, graphs, and charts." The differences in visual aids to understanding indicate the various ways historians and economists approach a single topic-the relation between markets and politics, the latter defined to include the deployment of …

Keeping The State Out: The Separation Of Law And State In Classical Islamic Law, Lubna A. Alam

Michigan Law Review

The implementation and enforcement of Islamic law, especially Islamic criminal law, by modem-day Muslim nation-states is fraught with controversy and challenges. In Pakistan, the documented problems and failures of the country's attempt to codify Islamic law on extramarital sexual relations have led to efforts to remove rape cases from Islamic law courts to civil law courts. In striking contrast to Pakistan's experience, the Republic of the Maldives recently commissioned a draft of a penal law and sentencing guidelines based on Islamic law that abides by international norms. The incorporation of Islamic law into the legal systems of various countries around …

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. …

Mandatory Guidelines: The Oxymoronic State Of Sentencing After United States V. Booker, Hon. Graham C. Mullen, J. P. Davis

University of Richmond Law Review

No abstract provided.

Bureaucratization And Balkanization: The Origins And Effects Of Decision-Making Norms In The Federal Appellate Courts, Stefanie A. Lindquist

University of Richmond Law Review

No abstract provided.

Black, White, Brown, Green, And Fordice: The Flavor Of Higher Education In Louisiana And Mississippi, Alfreda S. Diamond

ExpressO

"Black, White, Brown, Green, and Fordice: The Flavor of Higher Education in Louisiana and Mississippi" chronicles the higher education desegregation sagas in Louisiana and Mississippi. The Article specifically compares the histories of the higher education desegregation lawsuits in the two states and their subsequent experiences and progress under Settlement Agreements. The statistical populations of many universities in both states are still largely identifiable as “white” or “black,” and so the Article will pose questions not only respecting the implementation of United States v. Fordice in both states, but also respecting the value, desirability, or possibility of the “integrative ideal” converting …

Paying Eliza: Comity, Contracts, And Critical Race Theory, Or 19th Century Choice Of Law Doctrine And The Validation Of Antebellum Contracts For The Purchase And Sale Of Human Beings, Diane J. Klein

ExpressO

During the period before the Civil War, courts in non-slave-holding states were sometimes called upon to enforce contracts for the purchase and sale of human beings (or contracts whose consideration otherwise consisted of human beings), and sometimes did so, for reasons arguably having more to do with inter-state contract law than with the “peculiar institution” itself. What may be more surprising, and more difficult to understand, is that some “Union” courts went on doing so even after the Civil War ended, when substantive changes of law, together with well-established exceptions to general principles favoring out-of-state contract enforcement, made the contrary …

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 …

A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash

ExpressO

Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment’s actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. No matter how narrowly one construes the Fourteenth, the Ninth merely demands that such enumerated rights not be construed to deny or disparage other rights retained by the people. The standard …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …