Legal History Commons^™

Color Of Creatorship - Author's Response, Anjali Vats

Articles

This essay is the author's response to three reviews of The Color of Creatorship written by notable intellectual property scholars and published in the IP Law Book Review.

L’Europe Face Aux Défis De Pluralismes Inattendu, Vivian Grosswald Curran

Book Chapters

This contribution to a Festschrift in honor of Mireille Delmas-Marty explores the challenges for Delmas-Marty’s aim of “ordered pluralism” within the EU, given the departures from fundamental EU values by some of its Member States in recent years. It touches on the divided pasts of the Western and Eastern members of the EU, building on work of C. Joerges and T. Snyder in that area, addressing how the different historical narratives may be understood. It also suggests the utility of Article 17 of the European Convention, as was done by the partially concurring, partially dissenting judges in the Navalny v. …

The Supreme Court’S Two Constitutions: A First Look At The “Reverse Polarity” Cases, Arthur D. Hellman

Articles

In the traditional approach to ideological classification, “liberal” judicial decisions are those that support civil liberties claims; “conservative” decisions are those that reject them. That view – particularly associated with the Warren Court era – is reflected in numerous academic writings and even an article by a prominent liberal judge. Today, however, there is mounting evidence that the traditional assumptions about the liberal-conservative divide are incorrect or at best incomplete. In at least some areas of constitutional law, the traditional characterizations have been reversed. Across a wide variety of constitutional issues, support for claims under the Bill of Rights or …

Law And Artifice In Blackstone's Commentaries, Jessie Allen

Articles

William Blackstone is often identified as a natural law thinker for whom property rights were preeminent, but reading the Commentaries complicates that description. I propose that Blackstone’s concept of law is more concerned with human invention and artifice than with human nature. At the start of his treatise, Blackstone identifies security, liberty and property as “absolute” rights that form the foundation of English law. But while security and liberty are “inherent by nature in every individual” and “strictly natural,” Blackstone is only willing to say that “private property is probably founded in nature.” Moreover, Blackstone is clear that there is …

Fundamental Norms, International Law, And The Extraterritorial Constitution, Jules Lobel

Articles

The Supreme Court, in Boumediene v. Bush, decisively rejected the Bush Administration's argument that the Constitution does not apply to aliens detained by the United States government abroad. However, the functional, practicality focused test articulated in Boumediene to determine when the constitution applies extraterritorially is in considerable tension with the fundamental norms jurisprudence that underlies and pervades the Court’s opinion. This Article seeks to reintegrate Boumediene's fundamental norms jurisprudence into its functional test, arguing that the functional test for extraterritorial application of habeas rights should be informed by fundamental norms of international law. The Article argues that utilizing international law’s …

Voices Saved From Vanishing, Vivian Grosswald Curran

Articles

Jurists Uprooted: German-speaking Émigré Lawyers in Twentieth-century Britain examines the lives of eighteen émigré lawyers and legal scholars who made their way to the United Kingdom, almost all to escape Nazism, and analyzes their impact on the development of English law.

Justice O'Connor And 'The Threat To Judicial Independence': The Cowgirl Who Cried Wolf?, Arthur D. Hellman

Articles

Sandra Day O'Connor retired from active service on the United States Supreme Court in early 2006. As her principal "retirement project," she has taken on the task of defending the independence of the judiciary. In speeches, op-ed articles, and public interviews, she has warned that "we must be ever vigilant against those who would strong-arm the judiciary into adopting their preferred policies." Justice O'Connor has done the nation a service by bringing the subject of judicial independence to center stage and by calling attention to the important values it serves. Unfortunately, however, in describing the threats to that independence, she …

Judicial Review And United States Supreme Court Citations To Foreign And International Law, Ronald A. Brand

Articles

Recent decisions by the United States Supreme Court and extracurricular discussions between some of the Justices have fueled a debate regarding whether and when it is appropriate for the Court to make reference to foreign law in cases involving the interpretation and application of the United States Constitution. This debate has, to some extent, paralleled the argument over whether the Constitution is best interpreted by looking at the intent of the original drafters - an originalist approach - or by considering it to be a "living" document that must be interpreted to take account of contemporary realities. This article considers …

Reining In The Supreme Court: Are Term Limits The Answer?, Arthur D. Hellman

Book Chapters

Once again, life tenure for Supreme Court Justices is under attack. The most prominent proposal for reform is to adopt a system of staggered non-renewable terms of 18 years, designed so that each President would have the opportunity to fill two vacancies during a four-year term. This book chapter, based on a presentation at a conference at Duke Law School, addresses the criticisms of life tenure and analyzes the likely consequences of moving to a system of 18-year staggered terms for Supreme Court Justices.

One of the main arguments for term limits is, in essence, that the Supreme Court should …

Preventive Detention: Prisoners, Suspected Terrorists And Permanent Emergency, Jules Lobel

Articles

Central to the United States government’s strategy after the September 11th attacks has been a shift from punishing unlawful conduct to pre-empting possible or potential dangers. This strategy threatens to undermine fundamental principles of both constitutional law and international law which prohibit certain government action based on mere suspicion or perceived threat. The law normally requires that the government wait until a person or nation has committed or is attempting to commit a criminal act before it may employ force in response. The dangers of a policy of preventive detention have been analyzed from a number of perspectives. Historians have …

Politicizing The Crime Against Humanity: The French Example, Vivian Grosswald Curran

Articles

The advantages of world adherence to universally acceptable standards of law and fundamental rights seemed apparent after the Second World War, as they had after the First. Their appeal seems ever greater and their advocates ever more persuasive today. The history of law provides evidence that caution may be in order, however, and that the human propensity to ignore what transpires under the surface of law threatens to dull and silence the ongoing self-examination and self-criticism required in perpetuity by the law if it is to be correlated with justice.

This Essay presents one side, the dark side, of the …

Sovereignty: The State, The Individual, And The International Legal System In The Twenty First Century, Ronald A. Brand

Articles

This essay proposes that an understanding of original concepts of sovereignty both helps explain twentieth century developments in international law and provides a proper context for coming changes in the ways in which persons relate to states, states relate to states within the international legal system, and ultimately and most importantly-the way international law affects and applies to persons. The most important developments in international law in the new century are likely not to be in state-state relationships but rather in the status and rights of the person in international law. The twentieth century process of globalization brought us back …

Judicial Activism: The Good, The Bad, And The Ugly, Arthur D. Hellman

Articles

No matter how judges are selected, sooner or later some unfortunate candidate will be labeled a "judicial activist." One has to wonder: Does the term have any identifiable core meaning? Or is it just an all-purpose term of opprobrium, reflecting whatever brand of judicial behavior the speaker regards as particularly pernicious? Implicit in this question are several important issues about the role of courts in our democratic society.

I take my definition from Judge Richard Posner, who describes activist decisions as those that expand judicial power over other branches of the national government or over state governments. Unlike other uses …

Corporate Governance Reform And The 'New' Corporate Social Responsibility, Douglas M. Branson

Articles

The history of corporate governance "reform" begins with Adolf Berle and Gardiner Means's "The Modern Corporation and Private Property," first published in 1932. That book posited the "separation of ownership from control," discussed in the first section of this essay.

The subsequent history of corporate governance reform has been the postulation, by academics and others, of solutions to problems posed by the separation of ownership from control.

One subset of proposed reforms, those of the 1970s, formed the "corporate social responsibility movement." During that era, reformers urged governmental intervention which, as a matter of general corporate law, would expand corporate …

Competing Frameworks For Assessing Contemporary Holocaust-Era Claims, Vivian Grosswald Curran

Articles

There are many angles from which to perceive the contemporary holocaust-era claims. In 1997, Time magazine quoted Elie Wiesel as saying that, [i]f all the money in all the Swiss banks were turned over, it would not bring back the life of one Jewish child. But the money is a symbol. It is part of the story. If you suppress any part of the story, it comes back later, with force and violence.

Wiesel touches on two perspectives: first, what has been described as litigating the holocaust, with all that that implies about the law's questionable capacity to adjudicate issues …

Error Correction, Lawmaking, And The Supreme Court’S Exercise Of Discretionary Review, Arthur D. Hellman

Articles

Controversies involving the United States Supreme Court generally center on the content of Court’s decisions, but in recent years, much attention has focused on the Court’s processes – in particular, two very different aspects of the Court’s modes of doing business. At one end of the spectrum, the number of cases receiving plenary consideration – full briefing, oral argument, and (almost invariably) a signed opinion – has shrunk to levels lower than any since the Civil War. At the other end, the Court has effectively resolved many high-profile disputes through unexplained orders granting or denying emergency relief in cases in …

The Business Of The Supreme Court Under The Judiciary Act Of 1925: The Plenary Docket In The 1970'S, Arthur D. Hellman

Articles

During the last decade, the Supreme Court has been deciding 65 to 70 cases a Term after oral argument. That represents a sharp decline from the 1970s and 1980s, the era of the Burger Court, when the Court was deciding about 150 cases a Term. The Burger Court’s docket, in turn, reflected a shift from the 1960s, when the docket was smaller. In short, what is “normal” for the plenary docket varies from one era to another. The period of the Burger Court retains a special interest in that regard because that was the only period after World War II …