Legal History Commons^™

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …

The Hypocrisy Of "Equal But Separate" In The Courtroom: A Lens For The Civil Rights Era, Jaimie K. Mcfarlin

Jaimie K. McFarlin

This article serves to examine the role of the courthouse during the Jim Crow Era and the early stages of the Civil Rights Movement, as courthouses fulfilled their dual function of minstreling Plessy’s call for “equality under the law” and orchestrating overt segregation.

Balancing The Scales: Adhuc Sub Judice Li Est Or Trial By Media, Casey J. Cooper

Casey J Cooper

The right to freedom of expression and free press is recognized under almost all major human rights instruments and domestic legal systems—common and civil—in the world. However, what do you do when a fundamental right conflicts with another equally fundamental right, like the right to a fair trial? In the United States, the freedom of speech, encompassing the freedom of the press, goes nearly unfettered: the case is not the same for other common law countries. In light of cultural and historic facts, institutional factors, modern realities, and case-law, this Article contends that current American jurisprudence does not take into …

It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …

It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

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 …

Cause Judging, Justin Hansford

Justin Hansford

Building on the framework of “cause lawyering” scholarship, this Article explores the fact that, in a similar tradition as a “cause lawyering” law practice animated by dedication to a cause, “cause judging” exists as well. This insight has implications for judicial ethics norms. The hyper-partisan nature of modern American life has already cast doubt on the possibility that politically appointed judges can ever truly attain the “appearance of impartiality” demanded by judicial recusal standards. Instead, judicial ethics norms should embrace the fact that judges have moral and political ideals that inform their rulings when they exercise judicial discretion, and that …

At&T V. Concepcion: The Problem Of A False Majority, Lisa Tripp, Evan R. Hanson

Lisa Tripp

The Supreme Court’s 2011 decision in AT&T v. Concepcion is the first case where the Supreme Court explores the interplay between state law unconscionability doctrine and the vast preemptive power of the Federal Arbitration Act (FAA). Although it is considered by many to be a landmark decision which has the potential for greatly expanding the already impressive preemptive power of the FAA, something is amiss with Concepcion.

AT&T v. Concepcion is ostensibly a 5-4 majority decision with a concurring opinion. However, the differences in the majority and concurring opinions are so profound that it appears that Justice Thomas actually …

Ideological Voting Applied To The School Desegregation Cases In The Federal Courts Of Appeals From The 1960’S And 70’S, Joe Custer

Joe Custer

This paper considers a research suggestion from Cass Sunstein to analyze segregation cases from the 1960's and 1970's and whether three hypothesis he projected in the article "Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation," 90 Va. L. Rev. 301 (2004), involving various models of judicial ideology, would pertain. My paper considers Sunstein’s three hypotheses in addition to other judicial ideologies to try to empirically determine what was influencing Federal Court of Appeals Judges in regard to Civil Rights issues, specifically school desegregation, in the 1960’s and 1970’s.

Costs Of Codification, Dru Stevenson

Dru Stevenson

Between the Civil War and World War II, every state and the federal government shifted toward codified versions of their statutes. Academia has so far ignored the systemic effects of this dramatic change. For example, the consensus view in the academic literature about rules and standards has been that precise rules present higher enactment costs for legislatures than would general standards, while vague standards present higher information costs for courts and citizens than do rules. Systematic codification – featuring hierarchical format and numbering, topical arrangement, and cross-references – inverts this relationship, lowering transaction costs for legislatures and increasing information costs …

The Risky Interplay Of Tort And Criminal Law: Punitive Damages, Daniel M. Braun

Daniel M Braun

The rise of modern mass tort litigation in the U.S. has transformed punitive damages into something of a “hot button” issue. Since the size of punitive damage awards grew so dramatically in the past half century, this private law remedy has begun to involve issues of constitutional rights that traditionally pertained to criminal proceedings. This has created a risky interplay between tort and criminal law, and courts have thus been trying to find ways to properly manage punitive damage awards. The once rapidly expanding universe of punitive damages is therefore beginning to contract. There remain, however, very serious difficulties. Despite …

University Of Baltimore Symposium Report: Debut Of “The Matthew Fogg Symposia On The Vitality Of Stare Decisis In America”, Zena D. Crenshaw-Logal

Zena Denise Crenshaw-Logal

On the first of each two day symposium of the Fogg symposia, lawyers representing NGOs in the civil rights, judicial reform, and whistleblower advocacy fields are to share relevant work of featured legal scholars in lay terms; relate the underlying principles to real life cases; and propose appropriate reform efforts. Four (4) of the scholars spend the next day relating their featured articles to views on the vitality of stare decisis. Specifically, the combined panels of public interest attorneys and law professors consider whether compliance with the doctrine is reasonably assured in America given the: 1. considerable discretion vested in …

Collective Choice, Justin Schwartz

Justin Schwartz

This short nontechnical article reviews the Arrow Impossibility Theorem and its implications for rational democratic decisionmaking. In the 1950s, economist Kenneth J. Arrow proved that no method for producing a unique social choice involving at least three choices and three actors could satisfy four seemingly obvious constraints that are practically constitutive of democratic decisionmaking. Any such method must violate such a constraint and risks leading to disturbingly irrational results such and Condorcet cycling. I explain the theorem in plain, nonmathematical language, and discuss the history, range, and prospects of avoiding what seems like a fundamental theoretical challenge to the possibility …

Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland

David R. Cleveland

While unpublished opinions are now freely citeable under Federal Rule of Appellate Procedure 32.1, their precedential value remains uncertain. This ambiguity muddles the already unclear law surrounding qualified immunity and denies courts valuable precedents for making fair and consistent judgments on these critical civil rights issues. When faced with a claim that they have violated a person’s civil rights, government officials typically claim qualified immunity. The test is whether they have violated “clearly established law.” Unfortunately, the federal circuits differ on whether unpublished opinions may be used in determining clearly established law. This article, Clear as Mud: How the Uncertain …