Legal History Commons^™

La Protection Des Civils Dans Les Nouvelles Configurations Conflictuelles : Retour Au Droit Des Gens Ou Dépassement Du Droit International Humanitaire, Gregory Lewkowicz

Gregory Lewkowicz

In this paper, the development of alternative regulatory tools (codes of conduct, monitoring mechanisms, etc.) dealing with the protection of civilians during armed conflicts is scrutinized in the context of “new wars”. The paper analyses the connections between these alternative regulatory tools and classical international humanitarian law (IHL) instruments. The paper suggests that the profusion of alternative regulatory tools can help to disseminate classical IHL norms and to adapt them to contemporary warfare. The paper also envisages the possibility of a new “lex armorum” emerging from these new regulatory tools and challenging classical IHL.

From Objective Right To Subjective Rights: The Franciscans And The Interest And Will Conceptions Of Rights, Siegfried Van Duffel

Siegfried Van Duffel

What are subjective rights? And what makes Will and Interest conceptions of rights into conceptions of rights? I argue that they originate in two very different natural rights theories which are, however, grounded in the same philosophical anthropology.

Gay And Lesbian Elders: Estate Planning And End-Of-Life Decisionmaking, Nancy J. Knauer

Nancy J. Knauer

This Article addresses the three areas of core concern for gay and lesbian elders -- chosen family, financial insecurity, and anti-gay bias in the context of estate planning. The first section provides an overview of the current generation of gay and lesbian elders, including a summary of pre-Stonewall history and existing demographic information. The second section outlines the challenges associated with drafting an estate plan that favors chosen family over next of kin. The third section engages the topic of financial insecurity, discussing various benefits and government programs, such as social security and Medicaid planning. The fourth and final section …

The Invention Of Common Law Play Right, Jessica Litman

Jessica Litman

In this paper, written for Berkeley’s symposium on the 300th birthday of the Statute of Anne, I explore the history of the common law public performance right in dramatic works. Eaton Drone dubbed the dramatic public performance right “playright” in his 1879 treatise, arguing that just as “copyright” conferred a right to make and sell copies, “playright” conferred a right to perform or “play” a script. I examine case law and customary theatrical practice in England, and find no trace of a common law play right before 1833, when Parliament established a statutory public performance right for plays. Similarly, in …

Law As Referent, Craig G. Bateman

C. G. Bateman

In this article I suggest that “the Law,” (hereinafter the LAW) can be most functionally understood as a conglomeration of referent ideals which emanate from the minds of law creators, and are the source of what we regularly understand as laws. I separate from the concept of the LAW the usual suspects of constitutions, codes, acts, and charters, etc. I separate these from their inceptional ideals and suggest we ascribe a label to these familiar kinds of categories such as “lower order laws,” being careful to confine our discussions of them with the exclusive use of a small “l” (law), …

The Right To Arms In The Living Constitution, David B. Kopel

David B Kopel

This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.

"Living constitutionalism" should be distinguished from "dead constitutionalism." Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect …

State Court Standards Of Review For The Right To Keep And Bear Arms, David B. Kopel, Clayton Cramer

David B Kopel

Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means. Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms). Even when formally applying "reasonableness," many courts have used reasonableness as a …

Commerce In The Commerce Clause: A Response To Jack Balkin, David B. Kopel, Robert G. Natelson

David B Kopel

The Constitution’s original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island’s ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin’s article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution’s Commerce Clause a scope that virtually no one in the Founding Era believed it had.

Adam Smith's Historical Jurisprudence And The "Method Of The Civilians", Ernest Metzger

Ernest Metzger

Smith lectured in jurisprudence at the University of Glasgow from 1751 to 1764, and various records of these lectures survive. Since Smith never completed a treatise on law, these records are the principal source for his theory of lawmaking. In his final year at Glasgow, Smith undertook to reorganize the course of lectures: he began with a series of lectures on "forms of government," where formerly these lectures had fallen at the very end. He explained that his reorganized lectures followed the method of the civilians (i.e., contemporary writers on Roman law), and that this method was to be preferred. …

Remarks On David Daube’S Lectures On Sale, With Special Attention To The Liber Homo And Res Extra Commercium, Ernest Metzger

Ernest Metzger

This article discusses a collection of lecture notes on the Roman law of sale prepared by David Daube for an advanced course conducted at the University of Aberdeen from 1954 to 1955. The article considers in detail Daube’s lecture on the sale of the liber homo and res extra commercium in Roman law. An excerpt from that lecture is attached as an Appendix. His treatment of the subject is unfinished (and unpublished), though it is possible to see how his views might have developed. The final section offers an opinion on Daube’s approach to interpreting texts and its value to …

Civil Procedure In Classical Rome: Having An Audience With The Magistrate, Ernest Metzger

Ernest Metzger

During the classical period of Roman law, civil lawsuits were divided into two proceedings: a brief proceeding before the magistrate, who decided certain preliminary matters, and a longer proceeding before a judge, who tried the case. The first proceeding is said to take place “in iure,” which roughly means “in the magistrate’s court.” Unfortunately the figure “in court” has been understood too strictly to refer to the whole of the first phase, and this has given rise to the misunderstanding that the whole of the first phase took place in the magistrate’s presence. The better view is that the first …