Legal History Commons^™

Human Persons, Human Rights, And The Distributive Structure Of Global Justice, Robert C. Hockett

Robert C. Hockett

It is common for economically oriented transnational legal theorists to think and communicate mainly in maximizing terms. It is less common for them to notice that each time we speak explicitly of maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. Moreover, we effectively define ourselves and our fellow humans by reference to that which we equalize. For it is in virtue of the latter that our global welfare formulations treat us as "counting" for purposes of globally aggregating and maximizing. To analyze maximization language on the one hand, and equalization and identification language …

How The International Financial Institutions Can Help To Win Globalization Of More Stakeholders - By Making More Stockholders, Robert C. Hockett

Robert C. Hockett

No abstract provided.

Are Housekeepers Like Judges?, Stephen P. Garvey

Stephen P. Garvey

Professor Greenawalt proposes that we look at interpretation "from the bottom up." By taking a close look at informal relationships between an authority and his or her agent, and how the agent "faithfully performs" instructions within such relationships, he hopes to gain insight into the problems surrounding the interpretation of legal directives. The analysis of "faithful performance" in informal contexts which Professor Greenawalt presents in From the Bottom Up is the first step in a larger project. His next step is to see what lessons the interpretation of instructions in informal contexts has for law. This Comment tries to contribute …

Decisional Sequencing: Limitations From Jurisdictional Primacy And Intrasuit Preclusion, Kevin M. Clermont

Kevin M. Clermont

This Article treats the order of decision on multiple issues in a single case. That order can be very important, with a lot at stake for the court, society, and parties. Generally speaking, by weighing those various interests, the judge gets to choose the decisional sequence, although the parties can control which issues they put before the judge. The law sees fit to put few limits on the judge’s power, and properly so. The few limits are in fact quite narrow in application, and even narrower if properly understood. The Steel Co.-Ruhrgas rule generally requires a federal court to decide …

'In The Time Of A Woman, Which Sex Was Not Capable Of Mature Deliberation': Late Tudor Parliamentary Relations And Their Early Stuart Discontents, Josh Chafetz

Josh Chafetz

The English Civil War is one of the seminal events in Anglo-American constitutional history. Oceans of ink have been spilled in debating its causes, and historians have pointed to a number of salient divisions along economic, social, political, and religious lines. But a related, and equally important, question has gone largely ignored: what allowed the House of Commons, for the first time in English history, to play the lead role in opposing the Crown? How did the lower house of Parliament develop the constitutional self-confidence that would allow it to organize the rebellion against Charles I? This Article argues that …

The Development Of The Lutheran Theory Of Resistance: 1523-1530, Cynthia Grant Bowman

Cynthia Grant Bowman

It is frequently assumed, especially by political theorists, that the development of the modern theory of resistance to governmental authority was the accomplishment primarily of Huguenot writers of the late sixteenth century and that it was they who laid the foundations for the more famous seven- teenth-century English theories of a right of revolution. The corollary is that Lutheran writers made little contribution to the development of this theory, if not, indeed, a negative one. Contrary to this fairly common assumption, however, the justification of resistance was a major concern of German Protestants in the early sixteenth century, and I …

Women In The Legal Profession From The 1920s To The 1970s: What Can We Learn From Their Experience About Law And Social Change?, Cynthia Grant Bowman

Cynthia Grant Bowman

No abstract provided.

Race And Gender In The Law Review, Cynthia Grant Bowman, Dorothy E. Roberts, Leonard S. Rubinowitz

Cynthia Grant Bowman

No abstract provided.

Luther And The Justifiability Of Resistance To Legitimate Authority, Cynthia Grant Bowman

Cynthia Grant Bowman

No abstract provided.

Probing "Life Qualification" Through Expanded Voir Dire, John H. Blume, Sheri Lynn Johnson, A. Brian Threlkeld

John H. Blume

The conventional wisdom is that most trials are won or lost in jury selection. If this is true, then in many capital cases, jury selection is literally a matter of life or death. Given these high stakes and Supreme Court case law setting out standards for voir dire in capital cases, one might expect a sophisticated and thoughtful process in which each side carefully considers which jurors would be best in the particular case. Instead, it turns out that voir dire in capital cases is woefully ineffective at the most elementary task--weeding out unqualified jurors. Empirical evidence reveals that many …

The Legacy Of Ronald Dworkin (1931-2013): A Legal Theory And Methodology For Hedgehogs, Hercules, And One Right Answers, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this paper the author addresses Ronald Dworkin’s work and assesses his legacy to legal, moral and political philosophy. And so, considers among its merits having developed an original legal theory with its distinctive methodology, which not only has transcended the Natural Law and Legal Positivism dichotomy, but also has reintegrated law into a branch of political morality and defended as a corollary the one right answer thesis. Hence, commences by identifying the dworkininan challenge; continues by introducing some basic definitions and distinctions between jurisprudence, legal philosophy (or philosophy of law) and legal theory (or theory of law), on the …

The Widespread Handcuffing Of Arrestees In The United States, Francois Quintard-Morenas

Francois Quintard-Morenas

Handcuffing in the United States has become ubiquitous, regardless of age, offense, or circumstances. Across the nation, children, teenagers, women, men, and elders are handcuffed upon arrest for the most minor offenses. Their ages range from five to ninety-seven. This phenomenon has received little attention from legal scholars, despite its dramatic reversal of a long-standing common law rule.

At common law, police officers were prohibited from handcuffing arrestees absent special circumstances, such as a threat to safety, resistance, or risk of escape. Established in nineteenth-century England and embraced early by U.S. courts, this principle still prevails in most common law …

Dilemmas Of Group Autonomy: Residential Associations And Community, Gregory S. Alexander

Gregory S Alexander

We are a society of groups. De Tocqueville's observation that the principle of association shapes American society remains as valid today as it was in the mid-nineteenth century. For us, as for others, the vita activa is participation in a seemingly limitless variety of groups. The importance of group activity in our national character has strongly influenced the agenda of political questions that recur in American political and legal theory. One of the fundamental normative questions on this agenda concerns the proper relationship between groups and the polity. To what extent should the polity foster connections between associations and the …

A Cognitive Theory Of Fiduciary Relationships, Gregory S. Alexander

Gregory S Alexander

Is there anything special or distinctive about fiduciary relationships? Or is the term "fiduciary" nothing more than a label that obscures rather than clarifies? Recently, several law-and-economics scholars, building on the economic literature on agency costs, have argued that nothing categorically distinguishes fiduciary from nonfiduciary legal relationships. So-called fiduciary relationships, they argue, are nothing more or less than contractual relationships. This Essay hypothesizes that courts possess a fairly well-developed schema of the fiduciary role, but have not developed a comparable schema for ordinary contracting parties. The fiduciary role-schema often makes courts more likely to over-interpret behavior of fiduciaries than in …

Comparing The Two Legal Realisms—American And Scandinavian, Gregory S. Alexander

Gregory S Alexander

No abstract provided.

The Concept Of Property In Private And Constitutional Law: The Ideology Of The Scientific Turn In Legal Analysis, Gregory S. Alexander

Gregory S Alexander

In recent academic writing on the general problem of constitutional protection of property under the takings clause and due process clauses, a mode of analysis has emerged that is evidently different from the conventional analysis of constitutional property claims. In general terms, this new mode is characterized by an effort to analyze claims on an openly teleological and systematic basis. To be sure, this mode is not exclusively of recent origin. But it is a discernible trend in the body of scholarship that discusses constitutional protection of property in the context of previously unfamiliar sorts of private economic interests. Most …

Property As Propriety, Gregory S. Alexander

Gregory S Alexander

No abstract provided.

The Concept Of Function And The Basis Of Regulatory Interests Under Functional Choice-Of-Law Theory: The Significance Of Benefit And The Insignificance Of Intention, Gregory S. Alexander

Gregory S Alexander

Recent literature and judicial opinions have recognized the need for control and consistency in choice of law. Although the formulation of choice-of-law theory in terms of the states' interests in the conflicting rules at issue has gained wide acceptance, the courts have been unable to agree upon criteria for determining when a state has a valid interest in dispute resolution. Moreover, courts frequently appear all too eager to use contemporary choice-of-law analysis to justify local regulation of multistate disputes despite insubstantial local relationships. The inconsistency and local bias both stem from the lack of a coherent theory for discerning the …

A Pragmatic Critique Of Modern Evidence Scholarship, Michael L. Seigel

Michael L Seigel

This Article contends that strict adherence to optimistic rationalism has blinded evidence scholars to the reality that the law of evidence is as indeterminate as all other areas of the law. At its core is not a single goal -- the attainment of truth -- but a number of important, complex, and, alas, competing considerations. Answers to questions concerning the appropriate configuration of evidence doctrine cannot be deduced from a unitary principle; indeed, they cannot be deduced at all. Rather, arguments about evidence doctrine must be conducted in the realm of "practical reason." Practical reason is the process through which …

Defensor Fidei: The Travails Of A Post-Realist Formalist, Lyrissa Barnett Lidsky

Lyrissa Barnett Lidsky

This Article explores common formalist themes, asking not whether formalism's aspirations are attainable but why formalists still struggle to attain them in the face of sustained attacks by anti-formalists. After briefly sketching the tenets of formalism in Section I, this Article turns to an examination of Summers' "post-realist formalism." Finally, this Article probes the philosophical and psychological attractions of formalism and suggests that formalism's promise of stability and order may be essential to the effective functioning of the legal system, even if this promise can never be realized.

The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

Mark Fenster

This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial voice in Symbols and …

Beyond Rules, Larry A. Dimatteo, Samuel Flaks

Larry A DiMatteo

Our article, in contrast to the predominant scholarly view, contends that the influential Legal Realist Movement of the 1930s was actually two movements—radical legal realism and conservative legal realism (CLR). CLR is best understood through the works of Nathan Isaacs. This article will investigate the legitimacy and determinacy of the legal order through the lens of CLR as represented by Isaacs. Isaacs and CLR are especially worthy subjects for study given the current economic crisis. It is a crisis, much like the Great Depression, that has spurred many people to question core capitalistic premises, such as the superiority of minimal …

Awareness And The Legal Profession: An Introduction To The Mindful Lawyer Symposium, Leonard L. Riskin

Leonard L Riskin

This article introduces the Mindfulness Symposium, which includes five articles that developed out of the Mindful Lawyer Conference held at U. California-Berkeley in 2010. The article explains mindfulness and its growing importance in the legal profession, situates it among other curricular innovations, summarizes the articles in the symposium, describes other mindfulness curriculum developments, and offers resources.

The Santissima Trinidad: The Role Of Baltimore's Privateers With The Independence Of The United Provinces, Shannon Price

Legal History Publications

After the War of 1812, the maritime industry began to decline and merchants and mariners began serving as privateers for Latin American colonies ceding from Spain. This paper examines the Supreme Court decision in an action filed on behalf of the Spanish government seeking restitution for cargo seized from a Spanish vessel, the Santissima Trinidad, on the high seas by the Independencia Del Sud, a public vessel of Buenos Ayres. The Court holds that jurisdiction exists for neutrality violations as the goods were landed at Norfolk, Virginia and the public vessel had an illegal augmentation of force in a U.S. …

Livingston & Gilchrist V. The Maryland Insurance Co. (1813): A Testament To Judicial Flexibility, Kathleen Lord Fallon

Legal History Publications

Barely a month before Justice Brockholst Livingston joined the Supreme Court of the United States, a ship he commissioned with a cargo of $50,000, was captured by the British and condemned. The circumstances of the vessel’s voyage led to its capture; she sailed as an American merchant ship under a Spanish license with an American crew. When seized as a prize, the British found papers showing conflicting information concealed amongst the crew belongings. Justice Livingston tried to recoup his losses through an insurance policy with the Maryland Insurance Company, but was denied on the grounds that the voyage had been …

50 Years Of Legal Education In Ethiopia: A Memoir, Stanley Z. Fisher

Faculty Scholarship

In this paper I describe my experience as one of the early members of the Haile Selassie I University (H.S.I.U.), Law Faculty, and share my reflections on developments in the ensuing years.

La Rebeldía De J.Waldron: ¿Es Democrático El Control Judicial Constitucional?, Joshimar De La Cruz Aroni

Joshimar De la cruz Aroni

Constitutional Law

Panel Iii--General Discussion, Georgia Journal Of International And Comparative Law

Georgia Journal of International & Comparative Law

No abstract provided.

Panel I-- General Discussion, Georgia Journal Of International And Comparative Law

Georgia Journal of International & Comparative Law

No abstract provided.

The Process For United States Ratification Of Human Rights Instruments, Craig H. Baab

Georgia Journal of International & Comparative Law

No abstract provided.