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Articles 31 - 60 of 125
Full-Text Articles in Legal History
Human Persons, Human Rights, And The Distributive Structure Of Global Justice, Robert C. Hockett
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
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
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
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
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
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.
Feminist Legal Theory, Feminist Lawmaking, And The Legal Profession, Cynthia Bowman, Elizabeth Schneider
Feminist Legal Theory, Feminist Lawmaking, And The Legal Profession, Cynthia Bowman, Elizabeth Schneider
Cynthia Grant Bowman
No abstract provided.
Race And Gender In The Law Review, Cynthia Grant Bowman, Dorothy E. Roberts, Leonard S. Rubinowitz
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
Luther And The Justifiability Of Resistance To Legitimate Authority, Cynthia Grant Bowman
Cynthia Grant Bowman
No abstract provided.
Killing The Non-Willing: Atkins, The Volitionally Incapacitated, And The Death Penalty, John Blume, Sheri Lynn Johnson
Killing The Non-Willing: Atkins, The Volitionally Incapacitated, And The Death Penalty, John Blume, Sheri Lynn Johnson
John H. Blume
Jamie Wilson, nineteen years old and severely mentally ill, walked into a school cafeteria and started shooting. Two children died, and Jamie was charged with two counts of capital murder. Because he admitted his guilt, the only issue at his trial was the appropriate punishment. The trial judge assigned to his case, after hearing expert testimony on his mental state, found that mental illness rendered Jamie unable to conform his conduct to the requirements of law at the time of the crime—not impaired by his mental illness in his ability to control his behavior, but unable to control his behavior. …
Probing "Life Qualification" Through Expanded Voir Dire, John H. Blume, Sheri Lynn Johnson, A. Brian Threlkeld
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 …
Dilemmas Of Group Autonomy: Residential Associations And Community, Gregory S. Alexander
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 …
The Transformation Of Trusts As A Legal Category, 1800-1914, Gregory Alexander
The Transformation Of Trusts As A Legal Category, 1800-1914, Gregory Alexander
Gregory S Alexander
Sometimes we are least aware of that which most affects us. So it seems with respect to legal categories. Lawyers do not take legal categories very seriously today. But they should. Legal categories are central to legal reasoning; indeed it is almost impossible to imagine legal reasoning without the use of categories. Categorical thinking affects every area of law. The purpose of this article is to illuminate, through a case-study, the contingent and ideological character of legal categories. It focuses on the development of trusts into and then as a discrete legal category during the period between the beginning of …
A Cognitive Theory Of Fiduciary Relationships, Gregory S. Alexander
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
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
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 …
Talking About Difference: Meanings And Metaphors Of Individuality, Gregory Alexander
Talking About Difference: Meanings And Metaphors Of Individuality, Gregory Alexander
Gregory S Alexander
This paper discusses the relationship between communitarianism and difference theory. Specifically, it focuses on the rhetorical practices that have created an apparent conflict between difference theory and communitarianism. My purpose is to suggest why this conflict dissolves when community and difference are understood as strategic rhetorics that share a common political vision.
Property As Propriety, Gregory S. Alexander
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
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
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
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
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
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
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.
A Different Sort Of Justice: The Informal Courts Of Public Opinion In Antebellum South Carolina, Elizabeth Dale
A Different Sort Of Justice: The Informal Courts Of Public Opinion In Antebellum South Carolina, Elizabeth Dale
Elizabeth Dale
Studies of nineteenth century legal history assume that the antebellum South, and antebellum South Carolina in particular, had a legal culture shaped by honor culture and marked by the hierarchical assumptions and extralegal violence that honor culture engendered. In this article, I offer a modification of that well-established account. While I do not question the influence of honor on South Carolina's antebellum legal culture, I suggest that the state had a second, shame-based system of popular justice, in which women played a prominent role. As was the case with honor culture, this second form of extralegal justice, which I have …
Piercing Pareto Superiority: Real People And The Obligations Of Legal Theory, Jeffrey L. Harrison
Piercing Pareto Superiority: Real People And The Obligations Of Legal Theory, Jeffrey L. Harrison
Jeffrey L Harrison
This essay has two purposes. The first is to demonstrate that the appearance of mutual assent and Pareto Superiority are weak bases for enforcing agreements. Pareto Superiority, as unassailable as it may seem, is paper-thin and frequently based on illusions and a normatively meaningless assessment of what it means to be better off. The approach here is one of piercing Pareto Superiority in order to examine the human factors that may determine whether an agreement occurs and its distributive consequences. Relative deprivation is the instrument used. The second purpose is to suggest that it is the obligation of legal theory …
Looking Backward: Richard Epstein Ponders The “Progressive” Peril, Michael Allan Wolf
Looking Backward: Richard Epstein Ponders The “Progressive” Peril, Michael Allan Wolf
Michael A Wolf
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.
Law And Development: The Way Forward Or Just Stuck In The Same Place?, D. Daniel Sokol
Law And Development: The Way Forward Or Just Stuck In The Same Place?, D. Daniel Sokol
D. Daniel Sokol
This Essay does three things. First, it provides an overview of Law and Development issues. Second, it responds to other pieces in the symposium "The Future of Law and Development". Third, it suggests that to measure success, Law and Development needs clearer goals.
Antitrust Energy, D. Daniel Sokol, Barak Orbach
Antitrust Energy, D. Daniel Sokol, Barak Orbach
D. Daniel Sokol
Marking the centennial anniversary of Standard Oil Co. v. United States, we argue that much of the critique of antitrust enforcement and the skepticism about its social significance suffer from “Nirvana fallacy” — comparing existing and feasible policies to ideal normative policies, and concluding that the existing and feasible ones are inherently inefficient because of their imperfections. Antitrust law and policy have always been and will always be imperfect. However, they are alive and kicking. The antitrust discipline is vibrant, evolving, and global. This essay introduces a number of important innovations in scholarship related to Standard Oil and its modern …