Open Access. Powered by Scholars. Published by Universities.®
- Publication
Articles 1 - 3 of 3
Full-Text Articles in Legal History
Sosa, Federal Question Jurisdiction, And Historical Fidelity, Anthony J. Bellia
Sosa, Federal Question Jurisdiction, And Historical Fidelity, Anthony J. Bellia
Anthony J. Bellia
In his paper "International Human Rights in American Courts," Judge Fletcher concludes that Sosa v. Alvarez-Machain “has left us with more questions than answers.” Sosa attempted to adapt certain principles belonging to the "general law" to a post-Erie positivistic conception of common law while maintaining fidelity to certain historical expectations. “[I]t would be unreasonable,” the Court thought, “to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism.” The Court was unwilling, however, out …
Positivism In The Historiography Of The Common Law, David K. Millon
Positivism In The Historiography Of The Common Law, David K. Millon
David K. Millon
A great deal of important legal historical scholarship is doctrinal in focus, its objective being to chart the history of substantive common law rules. In this Article, Professor Millon suggests that doctrinal legal history is based implicitly on the modern positivist theory of law as a system of state-endorsed rules designed to resolve disputes in a consistent, predictable manner. He questions the validity of efforts to write the history of the premodern common law from this theoretical point of view. Focusing on pre-seventeenth century civil cases, he finds that trial procedure seems to have allowed or even encouraged juries to …
Positivism In The Historiography Of The Common Law, David K. Millon
Positivism In The Historiography Of The Common Law, David K. Millon
David K. Millon
A great deal of important legal historical scholarship is doctrinal in focus, its objective being to chart the history of substantive common law rules. In this Article, Professor Millon suggests that doctrinal legal history is based implicitly on the modern positivist theory of law as a system of state-endorsed rules designed to resolve disputes in a consistent, predictable manner. He questions the validity of efforts to write the history of the premodern common law from this theoretical point of view. Focusing on pre-seventeenth century civil cases, he finds that trial procedure seems to have allowed or even encouraged juries to …