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2013

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Articles 1 - 30 of 71

Full-Text Articles in Legal History

Judicial Activism: An (Un)Expected Result Of Legal Interpretation In Complex Societies?, Fabio P L Almeida Mr, Alexandre A. Costa Dr Dec 2013

Judicial Activism: An (Un)Expected Result Of Legal Interpretation In Complex Societies?, Fabio P L Almeida Mr, Alexandre A. Costa Dr

Fabio P L Almeida

Judicial activism has been accused of being an undue activity of judges, who should restrict themselves to the interpretation of the law. In this article, we argue that this conception is wrong: judicial activism does not imply a distortion in political and judicial structures, but it should be understood as an expected feature of legal interpretation in complex political systems. In contemporary liberal democracies, legislation cannot regulate all situations, and thus the only way to affirm its universality is through flexible interpretation, which grants to society the ability to adapt its legal system to new circumstances without the need to ...


Table Annexed To Article: Counting ‘Sled Dog’ Adjectives Deployed In The Early Constitution (1787-1804), Peter Aschenbrenner Nov 2013

Table Annexed To Article: Counting ‘Sled Dog’ Adjectives Deployed In The Early Constitution (1787-1804), Peter Aschenbrenner

Peter J. Aschenbrenner

When a vocabulary of 49 adjectives – cardinals, ordinals, pronomials, and so forth – what OCL calls the ‘sled dog’ adjectives are tested against the target vocabulary – all 5,224 words in the Early Constitution (1787-1804), a total of 485 hits are recorded. OCL surveys these results and draws conclusions.


Table Annexed To Article: Color Me Adverb: How The Convention Painted The Text Of The Philadelphia Constitution, Peter Aschenbrenner Nov 2013

Table Annexed To Article: Color Me Adverb: How The Convention Painted The Text Of The Philadelphia Constitution, Peter Aschenbrenner

Peter J. Aschenbrenner

Adverbs are one of the principal – and most readily trackable – means by which writers of the English language color their output. Relying on ‘-ly’ adverbs (out of 3,732 total adverbs), adverb usage in the Philadelphia constitution is measured.


Table Annexed To Article: Counting Adjectives Deployed In The Early Constitution (1787-1804), Peter Aschenbrenner Nov 2013

Table Annexed To Article: Counting Adjectives Deployed In The Early Constitution (1787-1804), Peter Aschenbrenner

Peter J. Aschenbrenner

How many adjectives were deployed by the authors of the Early Constitution (1787-1804)? Counting adjectives in the target vocabulary, the computation returns 114 different adjectives with 531 total deployments in the 5,224 words of the Early Constitution. Why do adjectives matter in English (or in any IE language)? Why do these counts matter?


The Commons, Capitalism, And The Constitution, George Skouras Oct 2013

The Commons, Capitalism, And The Constitution, George Skouras

George Skouras

Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.


Presentation: Luke Beck, Under The Commonwealth: The Royal Succession And The Religious Tests Clause Of The Australian Constitution, After Williams Colloquium (University Of Southern Queensland Oct. 4, 2013), Citing Teachout-Tillman Exchange And Tillman's Interpreting Precise Constitutional Text, Seth Barrett Tillman Oct 2013

Presentation: Luke Beck, Under The Commonwealth: The Royal Succession And The Religious Tests Clause Of The Australian Constitution, After Williams Colloquium (University Of Southern Queensland Oct. 4, 2013), Citing Teachout-Tillman Exchange And Tillman's Interpreting Precise Constitutional Text, Seth Barrett Tillman

Seth Barrett Tillman

Extract from Luke Beck, Presentation, Under the Commonwealth: The Royal Succession and the Religious Tests Clause of the Australian Constitution, After Williams [v Cwlth] Colloquium (University of Southern Queensland Oct. 4, 2013) (on file with author), citing Teachout-Tillman Exchange and Tillman's Interpreting Precise Constitutional Text.

[October 17, 2013]


Legalized Lynch Mobs In The 21st Century: Racial Improprieties In The Death Penalty, Betsy A. Daniller Oct 2013

Legalized Lynch Mobs In The 21st Century: Racial Improprieties In The Death Penalty, Betsy A. Daniller

Betsy A Daniller

No abstract provided.


Fashion, Sexism, And The United States Federal Judiciary, Charles E. Colman Oct 2013

Fashion, Sexism, And The United States Federal Judiciary, Charles E. Colman

Charles E. Colman

The U.S. federal judiciary has frequently displayed a dismissive attitude toward "fashion," while simultaneously recognizing the great economic importance of clothing. As fashion was, from the formation of the United States until at least the late 1960s, associated primarily with the female sex, while judges during this time period were almost exclusively male, one naturally wonders whether the power dynamics of gender shaped the development of the law pertaining to fashion. There is good reason to believe that this has indeed been the case.


Slaves To Big Data. Or Are We?, Mireille Hildebrandt Oct 2013

Slaves To Big Data. Or Are We?, Mireille Hildebrandt

Mireille Hildebrandt

In this contribution the notion of Big Data is discussed in relation to the monetisation of personal data. The claim of some proponents as well as adversaries, that Big Data implies that ‘n = all’, meaning that we no longer need to rely on samples because we have all the data, is scrutinized and found both overly optimistic and unnecessarily pessimistic. A set of epistemological and ethical issues is presented, focusing on the implications of Big Data for our perception, cognition, fairness, privacy and due process. The article then looks into the idea of user centric personal data management, to investigate ...


Corporate “Soul”: Legal Incorporation Of Catholic Ecclesiastical Property In The United States - A Historical Perspective, Vicenç Feliú Sep 2013

Corporate “Soul”: Legal Incorporation Of Catholic Ecclesiastical Property In The United States - A Historical Perspective, Vicenç Feliú

Vicenç Feliú

This work is a revision and update of a study carried out in 1933 by Monsignor Patrick J. Dignan. Dignan’s purpose in his study was to outline the history of how the Roman Catholic Church secured laws for the protection of church property in accordance with the hierarchical nature of the Church. The purpose of the present article is to bring up to date Dignan’s work and complete a survey of the law in its present state. The article analyzes the differences in the law since the original survey to determine if Dignan’s conclusion that the Church ...


The Forgotten Nuremberg Hate Speech Case: Otto Dietrich And The Future Of Persecution Law, Gregory S. Gordon Aug 2013

The Forgotten Nuremberg Hate Speech Case: Otto Dietrich And The Future Of Persecution Law, Gregory S. Gordon

Gregory S. Gordon

Among international jurists, the conventional wisdom is that atrocity speech law sprang fully formed from two judgments issued by the International Military Tribunal at Nuremberg (IMT): the crimes against humanity conviction of Nazi newspaper editor Julius Streicher, and the acquittal on the same charge of Third Reich Radio Division Chief Hans Fritzsche. But the exclusive focus on the IMT judgments as the founding texts of atrocity speech law is misplaced. Not long after Streicher and Fritzsche, and in the same courtroom, the United States Nuremberg Military Tribunal (NMT) in the Ministries Case, issued an equally significant crimes against humanity judgment ...


The Three Waves Of Married Women’S Property Acts In The Nineteenth Century With A Focus On Mississippi, New York And Oregon, Joe Custer Aug 2013

The Three Waves Of Married Women’S Property Acts In The Nineteenth Century With A Focus On Mississippi, New York And Oregon, Joe Custer

Joe Custer

Paper starts with a brief section on early America and social reform that provides a background on why married women's property acts (MWPA's) passed when they did in nineteenth century America. After laying the foundation, the paper delves into the three waves in which the MWPA's were passed in the nineteenth century focusing for the first time in the literature on one specific state for each wave. The three states; Mississippi, New York and Oregon, are examined leading up to passage. Next, the paper will look into the judicial reaction of each State’s highest court. Were ...


Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman Aug 2013

Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman

Lewis M. Wasserman

Overcoming Obstacles to Religious Exercise in K-12 Education Lewis M. Wasserman Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court ...


The Battle For The Soul Of International Shoe, Eric H. Schepard Aug 2013

The Battle For The Soul Of International Shoe, Eric H. Schepard

Eric H Schepard

In 2011, Justice Kennedy’s plurality opinion in J. McIntyre Machinery, Ltd. v. Nicastro repeatedly cited International Shoe v. Washington, a 1945 decision that transformed the law of personal jurisdiction. Kennedy believed that International Shoe broadly supported his position that a state may hear a suit arising from a within-state workplace injury to its citizen only if the foreign (out-of-state) corporate defendant specifically markets its products to that state. This article reexamines the jurisprudence of International Shoe’s author, Chief Justice Harlan Fiske Stone, to argue that Kennedy hijacked International Shoe’s half-buried legacy of judicial restraint. Scholars have suggested ...


Remedies Unified In Nine Verses, Caprice Roberts Aug 2013

Remedies Unified In Nine Verses, Caprice Roberts

Caprice L. Roberts

An original substantive poem with footnotes that makes three bold claims: (i) Remedies shapes substantive rights, (ii) the scholarly quest for a unified theory of Remedies is ill-fated, and (iii) Remedies properly reasoned will unify across borders, doctrinal and geographic.


An Anachronism Too Discordant To Be Suffered: A Comparative Study Of Parliamentary And Presidential Approaches To Regulation Of The Death Penalty, Derek R. Verhagen Aug 2013

An Anachronism Too Discordant To Be Suffered: A Comparative Study Of Parliamentary And Presidential Approaches To Regulation Of The Death Penalty, Derek R. Verhagen

Derek R VerHagen

It is well-documented that the United States remains the only western democracy to retain the death penalty and finds itself ranked among the world's leading human rights violators in executions per year. However, prior to the Gregg v. Georgia decision in 1976, ending America's first and only moratorium on capital punishment, the U.S. was well in line with the rest of the civilized world in its approach to the death penalty. This Note argues that America's return to the death penalty is based primarily on the differences between classic parliamentary approaches to regulation and that of ...


Taming A Dragon: Legislative History In Legal Analysis, Mark Deforrest Aug 2013

Taming A Dragon: Legislative History In Legal Analysis, Mark Deforrest

Mark DeForrest

ARTICLE ABSTRACT

TAMING A DRAGON:

LEGISLATIVE HISTORY IN LEGAL ANALYSIS

Mark DeForrest

The use of legislative history in statutory interpretation and analysis has been an area of intensive inquiry since the 1980’s. The debate has been vigorous and has led to the development of sophisticated arguments by both the advocates of the use of legislative history and textualists critical of its use. While the debate has been ongoing, changes in technology have made it easier than ever to access detailed legislative history for both state and federal statutes. This article discusses the impact of both the debate and the ...


Snubbed Landmark: How United States V Cruikshank Shaped Constitutional Law And Racialized Class Politics In America, James G. Pope Aug 2013

Snubbed Landmark: How United States V Cruikshank Shaped Constitutional Law And Racialized Class Politics In America, James G. Pope

James G. Pope

No abstract provided.


Legal Mirrors Of Entrepreneurship, Mirit Eyal-Cohen Aug 2013

Legal Mirrors Of Entrepreneurship, Mirit Eyal-Cohen

Mirit Eyal-Cohen

Small businesses are regarded the engine of the economy. But just what is a “small” business? Depending on where one looks in the law, the definitions vary and they differ from one section to another. Unfortunately, what these various size classifications fail to assess, are the policy considerations and the legislative intent for granting regulatory preferences to small concerns to begin with.

In the last century, the U.S. government has been cultivating one such policy of fiscal and economic growth. Consequently, Congress and private institutions have been acting to incentivize, support and reward entrepreneurship through the law in order ...


Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman Jul 2013

Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Effective corporate governance is critical to the productive operation of the global economy and preservation of our way of life. Excellent governance execution is also required to achieve economic growth and robust job creation in any country. In the United States, the premier director membership organization is the National Association of Corporate Directors (NACD). Now over 36 years old, NACD plays a major role in fostering excellence in corporate governance in the United States and beyond. Over the past thirty-six years NACD has grown from a mere realization of the importance of corporate governance to become the only national membership ...


A Maelstrom Of International Law And Intrigue: The Remarkable Voyage Of The S.S. City Of Flint, Andrew J. Norris Jul 2013

A Maelstrom Of International Law And Intrigue: The Remarkable Voyage Of The S.S. City Of Flint, Andrew J. Norris

Andrew Norris

No abstract provided.


The Legacy Of Social Darwinism: From Railroads To The 'Reinvention' Of Regulation, Yair Sagy Jun 2013

The Legacy Of Social Darwinism: From Railroads To The 'Reinvention' Of Regulation, Yair Sagy

Yair Sagy

According to accepted wisdom, new paradigms of regulation are upon us. This Article challenges this conception. It revisits the work of the leading regulator and theoretician of regulation in post-Civil War U.S., Charles Francis Adams, Jr., and argues that contemporary regulation reverts to Adams' theory of regulation, rather than introducing a revolutionary chapter to the intellectual history of regulation in the United States. The Article operates on three levels. On one level, it offers a new interpretation of Adams' seminal theory by revealing the hold that Herbert Spencer and Social Darwinism had on his work. On another level, the ...


Wasting The Corporate Waste Doctrine: Why Waste Claims Are Obsolete In Delaware Corporate Law And Why The Waste Doctrine Is The Wrong Solution To The Problem Of Executive Compensation, Kris S. Swift May 2013

Wasting The Corporate Waste Doctrine: Why Waste Claims Are Obsolete In Delaware Corporate Law And Why The Waste Doctrine Is The Wrong Solution To The Problem Of Executive Compensation, Kris S. Swift

Kris S. Swift

Abstract

Kristen S. Swift

This Note makes several points, drawn from Delaware litigation history, on the futility of pleading corporate waste in Delaware. At inception, the waste doctrine was a tool for shareholder protection and empowerment; however, as calculated business risk became encouraged and later formally protected by the business judgment rule, the waste doctrine evolved to protect officers and boards and now sets a nearly impossible benchmark for misconduct that would allow shareholders to recover on a waste claim. The waste doctrine is inextricably tied to how business risk-taking is perceived by Delaware courts and shifting attitudes toward risk ...


Art And Legal History, Timothy J. Innes Mr. Apr 2013

Art And Legal History, Timothy J. Innes Mr.

Timothy J Innes Mr.

No abstract provided.


The Shield Of Rights, The Sword Of Disorder: Robert H. Jackson And Civil Liberties, George B. Crawford Apr 2013

The Shield Of Rights, The Sword Of Disorder: Robert H. Jackson And Civil Liberties, George B. Crawford

George B. Crawford

No abstract provided.


"Health Care For All:" The Gap Between Rhetoric And Reality In The Affordable Care Act, Vinita Andrapalliyal Apr 2013

"Health Care For All:" The Gap Between Rhetoric And Reality In The Affordable Care Act, Vinita Andrapalliyal

Vinita Andrapalliyal

The rhetoric of “universal health care” and “health care for all” that pervaded the health care debate which culminated in the Patient Protection and Affordable Care Act (ACA)’s passage. However, the ACA offers reduced to no protections for certain noncitizen groups, specifically: 1) recently-arrived legal permanent residents, 2) nonimmigrants, and 3) the undocumented. This Article explores how the Act fails to ensure “health care for all,” demonstrates the gap between rhetoric and reality by parsing the ACA’s legislative history, and posits reasons for the gap. The ACA’s legislative history suggests that legislators’ biases towards these noncitizen groups ...


Contra As 'Nulidades-Surpresa': A Nulidade Processual Diante Do Direito Fundamental Ao Contraditório, Renzo Cavani Apr 2013

Contra As 'Nulidades-Surpresa': A Nulidade Processual Diante Do Direito Fundamental Ao Contraditório, Renzo Cavani

Renzo Cavani

O presente ensaio pretende demonstrar a importância do contraditório diante da análise desenvolvida pelo juiz sobre vícios no processo. Sendo que o direito de influencia e o dever de diálogo são exigências próprias da estruturação do procedimento no marco do Estado Constitucional, ao juiz é absolutamente vedado pronunciar-se (favorável ou desfavoravelmente) sobre os vícios no processo sem antes permitir a participação das partes.

This essay intends to demonstrate the importance of the adversary system in face of the analysis made by the judge regarding procedural defects. Given that the right of influence and the duty of dialogue are requirements proper ...


Rediscovering Cumulative Creativity From The Oral Formulaic Tradition To Digital Remix: Can I Get A Witness?, Giancarlo Francesco Frosio Mar 2013

Rediscovering Cumulative Creativity From The Oral Formulaic Tradition To Digital Remix: Can I Get A Witness?, Giancarlo Francesco Frosio

Giancarlo Francesco Frosio

For most of human history the essential nature of creativity was understood to be cumulative and collective. This notion has been largely forgotten by modern policies regulating creativity and speech. As hard as it may be to believe, the most valuable components of our immortal culture were created under a fully open regime with regard to access to pre-existing expressions and reuse. From the Platonic mimēsis to the Roman imitatio, from Macrobius’ Saturnalia to the imitatio Vergili, from medieval auctoritas and Chaucer the compilator to Anon the singer and social textuality, from Chrétien’s art of rewriting to Shakespeare’s ...


The Duty To Make Amends To Victims Of Armed Conflict, Scott T. Paul Mar 2013

The Duty To Make Amends To Victims Of Armed Conflict, Scott T. Paul

Scott T Paul

In the past decade, calls for monetary payments by warring parties to the civilians they harm have become significantly louder and more prominent. The law of armed conflict permits parties to harm civilians, so long as the harm is not excessive to the concrete and direct military advantage they anticipate gaining through an attack. This paper examines the current state of international law regarding duties owed to victims suffering harm as a result of lawful combat operations and discusses the moral obligations owed to them by the parties who cause them harm. The paper notes that civilians who suffer incidental ...


Holmes And The Common Law: A Jury's Duty, Matthew P. Cline Mar 2013

Holmes And The Common Law: A Jury's Duty, Matthew P. Cline

Matthew P Cline

The notion of a small group of peers whose responsibility it is to play a part in determining the outcome of a trial is central to the common conception of the American legal system. Memorialized in the Constitution of the United States as a fundamental right, and in the national consciousness as the proud, if begrudged, duty of all citizens, juries are often discussed, but perhaps not always understood. Whatever misunderstandings have come to be, certainly many of them sprang from the juxtaposition of jury and judge. Why do we have both? How are their responsibilities divided? Who truly decides ...