Legal History Commons^™

A Process Theory Of Torts, Jay Tidmarsh

Journal Articles

This article is meant to reconcile two schools of intellectual thought regarding tort law, the conceptualist and the anti-conceptualist. It argues that torts must be understood as a system in perpetual process--forever indefinite and infinitely malleable in its precise theoretical, doctrinal and practical manifestations--yet ultimately bounded in its possibilities. It then defines the limits of torts law as a process that constantly regenerates the old face of tort theory, doctrine and practice into the new.

The New Natural Law Theory: A Reply To Jean Porter, Gerard V. Bradley, Robert George

Journal Articles

The theory of practical reasoning and morality proposed by Germain Grisez, and developed by him in frequent collaboration with John Finnis and Joseph Boyle, is the most formidable presentation of natural law theory in this century. Although work by Finnis and others has brought this "new natural law theory" (NNLT) to the attention of secular philosophers, the theory is of particular interest to Catholic moralists. This is because NNLT provides resources for a fresh defense of traditional moral norms, including those forbidding abortion, euthanasia, and other forms of "direct" killing, as well as sexual immoralities such as fornication, sodomy, and …

"Mastering The Lawless Science Of Our Law": A Story Of Legal Citation Indexes, Patti J. Ogden

Journal Articles

Ms. Ogden presents a history of American legal citation indexes, covering early nineteenth-century attempts, the development of modern citator systems by Frank Shepard and others, online citation systems, and the potential for future improvements in an essential tool of legal research.

Presenting Expert Testimony, James H. Seckinger

Journal Articles

Mindful that the readers of this Commentary include both experienced advocates as well as lawyers embarking on new careers in the courtroom, this author has divided the Commentary into two parts. The first part considers the seven touchstones for a persuasive direct examination of an expert witness. This discussion should be useful for the experienced and inexperienced advocate alike. The second part of the paper is intended as a primer on practical matters surrounding the selection, preparation, and presentation of an expert as a witness at trial. Experienced advocates may find in these pages confirmation of their practice concerning the …

Natural Law And Legal Reasoning, John M. Finnis

Journal Articles

Much academic theory about legal reasoning greatly exaggerates the extent to which reason can settle what is greater good or lesser evil, and minimizes the need for authoritative sources which, so far as they are clear and respect the few absolute moral rights and duties, are to be respected as the only rational basis for judicial reasoning and decision, in relation to the countless issues which do not directly involve those absolute rights and duties. A natural law theory in the classical tradition makes no pretense that natural reason can determine the one right answer to those countless questions which …

Concluding Reflections, John M. Finnis

Journal Articles

A symposium to which one person contributes three extended papers is no unmixed pleasure for readers. This third contribution of mine will interest only those curious to see my response to other symposiasts' comments on my earlier efforts (in the symposium and elsewhere). To enable this curiosity to be satisfied as costlessly as possible, I divide these concluding reflections by authors rather than themes, though with priorities suggested by themes rather than authors.

The Constitutional Theory Of The Fourth Amendment, Gerard V. Bradley

Journal Articles

This Article will, in large part, present its thesis regarding fourth amendment doctrine by employing, as an illustration, a recent application of the current approach by the Seventh Circuit Court of Appeals. In United States v. Torres, the Seventh Circuit held video surveillance constitutional and further found that the judiciary had the authority to issue warrants for such a technique. Although welcomed by prosecutors and law enforcement officials, this decision highlights the absurdity of the current interpretation of the reasonableness clause. Moreover, Torres provides a vehicle through which this Article's historical interpretation can be brought into focus under the cold …

Some Reasons For A Restoration Of Natural Law Jurisprudence, Charles E. Rice

Journal Articles

The growing influence of utilitarianism and legal positivism in American jurisprudence today and the decline of natural law have produced an ominous shift in the foundation of our legal system. This shift is illustrated by various courts' approaches to momentous legal issues of the Twentieth Century such as abortion and euthanasia. Ultimately, legal positivism is unacceptable as a jurisprudential framework because it provides no inherent limits on the power of the state and no basis for determining what is just. In contrast, the natural law provides a jurisprudential framework that both guides and limits the civil law. It therefore is …

Secular Cases In The Church Courts: A Historical Survey, Robert E. Rodes

Journal Articles

When students of legal history think of church courts, they may conjure up thoughts of some odd and obsolete tribunal about which Dickens wrote, while students of popular history may think of the people who burned Joan of Arc. In contrast, when Roman Catholics think of Church courts, they may think of tribunals which do no more than grant marriage annulments, while American Protestants may think of nothing at all. Church courts encompass the whole range of institutions used by different churches, including Jewish communities, for authoritative intervention into affairs of individual church members. Institutions of this kind have had …

Practical Principles, Moral Truth, And Ultimate Ends, John M. Finnis, Germain Grisez, Joseph Boyle

Journal Articles

The natural-law theory on which we have been working during the past twenty-five years has stimulated many critical responses. We have restated the theory in various works, not always calling attention to developments. This paper reformulates some parts of the theory, taking into account the criticisms of which we are aware.

Law And The Experience Of Politics In Late Eighteenth-Century North Carolina: North Carolina Considers The Constitution, Walter F. Pratt

Journal Articles

In 1788, delegates assembled in North Carolina to decide whether to ratify the Constitution. A debate erupted between Federalists and Anti-federalists regarding each Article of the then-drafted Constitution. This Article analyzes the debate, and proposes that the key difference was the function of the role of the law.

Legal Enforcement Of "Duties To Oneself": Kant Vs. Neo-Kantians, John M. Finnis

Journal Articles

This Article considers writings by modern scholars including Rawls, Dworkin, and D.A.J. Richards on the topic of Kant's discussion of the neutrality principle and the harm principle.

Levinson Builds The Kingdom: Comment On "Professing Law", Thomas L. Shaffer

Journal Articles

This Article takes the perspective that the professed law is an idol. As such, it is false worship, which is led by false priests, and is rationalized by false prophets. Professor Shaffer proposes that those who believe in the will of God are presented with two tasks. First, one must tear down this idol, and secondly, one must then build the Kingdom. He focuses his discussion on how one can build the Kingdom, and examines the viability of a Kingdom built upon constitutionalism, citizenship, and community.

Discretion In Making Legal Decisions: A Frances Lewis Law Center Colloquium, Thomas L. Shaffer

Journal Articles

Colloquium papers, pp. 1161-1311, edited by Professor Shaffer.

Imagining The Past And Remembering The Future: The Supreme Court's History Of The Establishment Clause, Gerard V. Bradley

Journal Articles

Our Framers through the Establishment Clause sought to prevent the government from preferring one religious sect to another. However, the Supreme Court in Everson v. Board of Education abandoned that meaning of nonestablishment and created a general prohibition on all nondiscriminatory aid to religion, a decision later reinforced in Lemon v. Kurtzman. This Article discusses the Founder’s worldview and looks at other Establishment Clause cases to illustrate that the historical evidence is inconsistent with Everson. Rather, the founders intended to assure that religion would be aided only on a nondiscriminatory, or sect-neutral, basis and does not stand for …

The "Natural Law Tradition", John M. Finnis

Journal Articles

This "tradition of natural law theory" has three main features: First, critique and rejection of ethical scepticism, dogmatism and conventionalism; Second, clarification of the methodology of descriptive and explanatory social theories (e.g., political science, economics, jurisprudence .... ); Third, critique and rejection of aggregative conceptions of the right and the just (e.g., consequentialism, utilitarianism, wealth-maximization, "proportionalism"...).

Gaming, Lotteries, And Wagering: The Pre-Revolutionary Roots Of The Law Of Gambling, G. Robert Blakey

Journal Articles

Over the last several decades, there has been an increasing trend to move away from general prohibition against gambling and to move towards legalizing various forms of gambling. This Article traces the pre-revolutionary roots concerning the law of gambling and breaks the discussion into three types: gaming, lotteries, and wagering. In particular, the discussion focuses on the law and practice of the English prior to 1776 and the law and practice of the Early Colonial Period from 1929-1776. The Author proposes that an understanding of the past is needed in order to reform the law of gambling without succumbing to …

On 'Positivism' And 'Legal Rational Authority', John M. Finnis

Journal Articles

This Article critiques Anthony Kronman’s book Max Weber, which provides an interpretation of Weber’s social theory of law concerning positivism and legal rational authority. In particular, the three premises of Kronman’s thesis regarding social theory are considered and their weaknesses are explained. Through this critique, the Author argues that no good reason has been presented to accept that Weber’s positivist theory is of value.

David Hoffman's Law School Lectures, 1822-1833, Thomas L. Shaffer

Journal Articles

The Baltimore lawyer and teacher David Hoffman (1784-1854), the father of American legal ethics, was also the first of the systematic American legal educators. He held one of the first appointments in this country as a university law professor (at the University of Maryland, 1814-43) and wrote the first American outline of the study of law. Joseph Story, in a contemporary review of the 1817 Course, called Hoffman's work "an honour to our country[,] . . . by far the most perfect system for the study of the law that has ever been offered to the public. " Chancellor James …

The Problem Of Unjust Laws, Charles E. Rice

Journal Articles

John Finnis has contributed most significantly to our understanding of how "practical reasonableness"' has affected creation and evaluation of human law. The main objective of a theory of natural law is to show how sound laws are to be derived from principles based on reason. It is true, as Finnis points out, that "the affirmation that 'unjust laws are not law' . . is [generally] a subordinate theorem" of natural law theory. Nevertheless, the experience of the past half century requires that we examine seriously, as Finnis has, the moral obligation of the unjust law.

The Basic Principles Of Natural Law: A Reply To Ralph Mcinerny, John M. Finnis, Germain Grisez

Journal Articles

In the preceding volume of this journal, Prof. Mclnerny criticized certain theoretical positions of Finnis and Grisez as well as their interpretation of St. Thomas. In the present article Finnis and Grisez reply that Mclnerny's criticisms lack cogency, because he has misunderstood their theories, judged their exegesis by his own different interpretation assumed gratuitously to be correct, and mixed philosophical and historical criticism in a way which helps to clarify neither the problems of ethical theory nor those of Thomistic exegesis.

Thurgood Marshall And The Forgotten Legacy Of Brown V. Board Of Education, Kenneth F. Ripple

Journal Articles

On May 17, 1979, the United States celebrated, with relatively little public ceremony, the twenty-fifth anniversary of Brown v. Board of Education. Two years earlier, another anniversary was celebrated even more quietly as Thurgood Marshall, the principal architect of the school desegregation litigation, celebrated his first decade as a justice of the Supreme Court of the United States. Anniversaries are traditionally a time both of celebration and reflection. These particular anniversaries are appropriate occasions for celebration since each marks an important milestone in American life. At the same time, both present a unique opportunity for reflection upon and reassessment of …

Some Problems In Administration Of Justice In A Secularized Society, Thomas L. Shaffer, William Mclennon, Lois G. Forer

Journal Articles

In our complex society, the role of the lawyer has assumed unprecedented significance. People turn to the law for answers to all of the new questions involving social, moral, and ethical considerations, as well as for answers to many of the old problems which were not typically perceived as legal issues. Law students, faculty, lawyers, judges, the clergy, and even anthropologists-all of us need a much more sensitive and deeper understanding of a wide variety of problems. We must continually question the rightness of the law and the fairness and decency with which we treat all of the people who …

Rhetorical Styles On The Fuller Court, Walter F. Pratt

Journal Articles

"Formalism" is the label regularly used to describe judicial opinions of the late nineteenth century. The label is descriptive when used in contradistinction to "instrumentalism." Use of the label, however, has certain drawbacks. For example, there is little objective or empirical evidence to support the application of the two antithetical terms. In addition, a single term cannot reflect whatever diversity of styles may exist among the judges of a single court. This article describes the results of an attempt to rectify those two drawbacks and to determine whether the Justices of the Supreme Court at the turn of the century—while …

State Sovereignty--A Polished But Slippery Crown, Kenneth F. Ripple, Douglas W. Kenyon

Journal Articles

During the past decade, the Supreme Court has decided two notable cases which have had, it is certain, the effect of greatly enhancing both the theoretical and the practical significance of the tenth and eleventh amendment-based concept of "state sovereignty." As a consequence, there has been an acceptance, at least in the "conventional wisdom," of the proposition that the star of "state sovereignty"—long dulled since Mr. Justice Stone's famous remark in United States v. Darby—is now on a steadily ascending course at the hands of a Court clearly concerned about restoring a sense of balance in "Our Federalism." Analysis—and prognostication—in …

Hope In The Life Of Thomas More, Thomas L. Shaffer, Stanley Hauerwas

Journal Articles

The seduction of power is as perennial as the threat of power spurned. Power is a medium for good and evil. Lawyers and politicians and their victims—Nixon and his cronies, for examples—come and go; but the moral problems of how to use power, how to live with it and leave it behind, remain.

One way to look at the moral problem of power is to ask how a virtuous person uses power, and lives close to power, without losing the sense of self which is necessary to negotiate the temptations of power. We propose to ask that question with respect …

Advocacy As Moral Discourse, Thomas L. Shaffer

Journal Articles

Advocacy at its best is a form of reconciliation. It reconciles the advocate with those whose champion he proposes to be. It reconciles the advocate with his hearers. It reconciles the person whose cause is advocated with the persons who hear advocacy. It brings to community life a new sense of the interests of those the community neglects. It seeks to make things better. It is moral discourse.

This article will examine advocacy in two contexts. The first is advocacy to an institution, conducted in the name of justice or the welfare of the community; one might call this first …

Learning The Law-Thoughts Toward A Human Perspective, Thomas L. Shaffer, Robert S. Redmount

Journal Articles

The history of American legal education is notable for a sparsity of ideas on how to convey learning about law. There has been even less focal understanding of what learning is and what it takes to establish a process which will prepare lawyers for their profession. A window on this history was provided in historical survey by Alfred Z. Reed in 1921 and, more recently, by Professors Preble Stolz and Calvin Woodward. It is principally their accounts of eighteenth and nineteenth century developments that we here briefly integrate and summarize. The perspective-a consideration of legal education in terms of social …

Some Professorial Fallacies About Rights, John M. Finnis

Journal Articles

Why do students usually get into a muddle when analysing legal situations in Hohfeldian terms? What is the use of trying to straighten out the muddles, and of teaching Hohfeldian analysis at all? The short answer to the first question is that Hohfeld was clear-headed in applying his scheme, but because of his writing style and his odd views about definition was regrettably gnomic about the meaning and inter-relations of the terms of that scheme. The short answer to the second question is that clear-headed familiarity with Hohfeld's scheme can bring with it an awareness of the questions regularly begged …

Reflections On Professor Chroust's The Rise Of The Legal Profession In America, Donald P. Kommers

Journal Articles

A review of Anton-Herman Chroust’s 1965 study on lawyers and the status of the legal profession in the United States from early colonial days to 1830.

Though the review praises the wealth of facts and detail in the work it argues that Chroust is more interested in glorifying the early American legal profession rather than analyzing the conditions for its growth. It also contends that Chroust does not organize his material according to a coherent theory or conceptual scheme. The review, in addition, asserts that Chroust focuses too much on the pious and self-righteous rhetoric lawyers at the time, assuming …