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Articles 1 - 9 of 9
Full-Text Articles in Legal History
Introducción Al Análisis Económico Del Derecho Administrativo / Introduction To Administrative Law And Economics, Andres Palacios Lleras
Introducción Al Análisis Económico Del Derecho Administrativo / Introduction To Administrative Law And Economics, Andres Palacios Lleras
Andrés Palacios Lleras
El estudio y la enseñanza del derecho administrativo colombiano dejan mucho que desear, especialmente en lo que respecta al estudio del derecho como fenómeno social. Éste tiende a ser presentado como un cuerpo de normas políticamente neutrales, construido a partir de categorías conceptuales muy abstractas, y coherente. Como resultado de ello, asume una posición “normativista” que ignora el contexto social en el que lleva a la producción e interpretación de las normas jurídicas. Este artículo sugiere que un cambio conceptual puede ser muy útil para “curar” al análisis del derecho administrativo de los males que lo aquejan. Sugiere que el …
Global Threads: Weaving The Rule Of Law And The Balance Of Legal Software, Gianluigi Palombella
Global Threads: Weaving The Rule Of Law And The Balance Of Legal Software, Gianluigi Palombella
Gianluigi Palombella
The article shows how the global legal sphere attempts to compensate the lack of a system (hardware) and faces the proliferation of legal normativities (software). The author elaborates on the role of the rule of law: after stressing the ambiguities and the contestability of its current uses in the confrontations between legal orders and regulatory regimes, it is explained that the persistence and promise of the rule of law in the global setting depend on the weaving of a set of meta-rules (a special kind of software) developed through various areas and sources of legalities in the international environment. Eventually, …
The Original Meaning Of The Constitution's “Executive Vesting Clause”—Evidence From Eighteenth Century Drafting Practice, Robert G. Natelson
The Original Meaning Of The Constitution's “Executive Vesting Clause”—Evidence From Eighteenth Century Drafting Practice, Robert G. Natelson
Robert G. Natelson
Advocates of presidential power from the days of George Washington at least to the time of George W. Bush have claimed that the Constitution’s so-called “Executive Vesting Clause,” the first sentence of Article II, not only designates the President as chief executive, but also confers broad authority. Some commentators support that view, while others maintain that the President’s powers are limited to those enumerated elsewhere in the Constitution. This study addresses the previously-overlooked question of which interpretation is more consistent with contemporaneous drafting customs. It concludes that treating the “Executive Vesting Clause” as a mere designation is consistent with those …
The Original Meaning Of The Privileges And Immunities Clause, Robert G. Natelson
The Original Meaning Of The Privileges And Immunities Clause, Robert G. Natelson
Robert G. Natelson
This article explains the meaning of the U.S. Constitution's Privileges and Immunities Clause of Article IV, as the Founders understood it. It explains that the terms "privileges" and "immunities" had well-understood content in 18th century law---as benefits created by government. The Clause protects states from discriminating against visitors as to the benefits of citizenship (such as access to the courts), but does not address "natural rights" such as freedom of speech and religion.
Full Faith And Credit In The Early Congress, Stephen E. Sachs
Full Faith And Credit In The Early Congress, Stephen E. Sachs
Stephen E. Sachs
After more than 200 years, the Full Faith and Credit Clause remains poorly understood. The Clause first issues a self-executing command (that "Full Faith and Credit shall be given"), and then empowers Congress to prescribe the manner of proof and the "Effect" of state records in other states. But if states must accord each other full faith and credit-and if nothing could be more than full-then what "Effect" could Congress give state records that they wouldn't have already? And conversely, how could Congress in any way reduce or alter the faith and credit that is due? This Article seeks to …
Deliberative Democracy And Weak Courts: Constitutional Design In Nascent Democracies, Edsel F. Tupaz
Deliberative Democracy And Weak Courts: Constitutional Design In Nascent Democracies, Edsel F. Tupaz
Edsel F Tupaz
This Article addresses the question of constitutional design in young and transitional democracies. It argues for the adoption of a “weak” form of judicial review, as opposed to “strong” review which typifies much of contemporary adjudication. It briefly describes how the dialogical strain of deliberative democratic theory might well constitute the normative predicate for systems of weak review. In doing so, the Article draws from various judicial practices, from European supranational tribunals to Canadian courts and even Indian jurisprudence. The Article concludes with the suggestion that no judicial apparatus other than the weak structure of judicial review can better incite …
The Failure Of Adversary Process In The Administrative State, Bryan T. Camp
The Failure Of Adversary Process In The Administrative State, Bryan T. Camp
Bryan T Camp
In a series of hearings in 1997 and 1998, Congress heard allegations that the Internal Revenue Service (“IRS” or “Service”) was abusing taxpayers during the process of collecting taxes. The resulting distrust of the tax bureaucracy led Congress to create a special adversary proceeding providing for judicial review of IRS collection decisions. The proceeding is beguilingly titled “Collection Due Process” (and commonly referred to as “CDP”). My study of CDP’s structure, operation, and of 976 court decisions issued through the end of 2006 demonstrates that it has failed to fulfill its promise. Of the over 15 million collection decisions made …
The Assault On Classical Legal Thought In Colombia (1886-1920), Jorge Gonzalez-Jacome
The Assault On Classical Legal Thought In Colombia (1886-1920), Jorge Gonzalez-Jacome
Jorge Gonzalez-Jacome
The topic of this paper is the tensions among classical legal thought (CLT) and other modes of legal thought in Colombia between 1886 and 1920. My main claim is that, during this period, CLT was attacked by a version of traditionalism and by a social-based legal thought. The former was evident in the constitutional discussions around the 1886 Colombian Constitution, while the latter became apparent in the interpretation of the Civil Code in areas such as property, contracts and torts. My goal is to tell a story that gives a sense of the fall of CLT as a process crossed …
Book Review: Henry J. Richardson Iii, The Origins Of African-American Interests In International Law, D. A. Jeremy Telman
Book Review: Henry J. Richardson Iii, The Origins Of African-American Interests In International Law, D. A. Jeremy Telman
D. A. Jeremy Telman
This short review evaluates Professor Richardson's book both as a contribution to the history of the Atlantic slave trade and as contribution to critical race theory.Professor Richardson has read innumerable historical monographs, works of legal and sociological theory, international law and critical race theory. Armed with this store of knowledge, he is able to recount a detailed narrative of African-American claims to, interests in and appeals to international law over approximately two centuries spanning, with occasional peeks both forward and backward in time, from the landing of the first African slaves at Jamestown in 1619 to the 1815 Treaty of …