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Articles 1 - 9 of 9
Full-Text Articles in Legal History
Constitutional Backdrops, Stephen E. Sachs
Constitutional Backdrops, Stephen E. Sachs
Faculty Scholarship
The Constitution is often said to leave important questions unanswered. These include, for example, the existence of a congressional contempt power or an executive removal power, the role of stare decisis, and the scope of state sovereign immunity. Bereft of clear text, many scholars have sought answers to such questions in Founding-era history. But why should the historical answers be valid today, if they were never codified in the Constitution's text?
This Article describes a category of legal rules that weren't adopted in the text, expressly or implicitly, but which nonetheless have continuing legal force under the written Constitution. These …
Interpretive Contestation And Legal Correctness, Matthew D. Adler
Interpretive Contestation And Legal Correctness, Matthew D. Adler
Faculty Scholarship
No abstract provided.
From Multiculturalism To Technique: Feminism, Culture And The Conflict Of Laws Style, Karen Knop, Ralf Michaels, Annelise Riles
From Multiculturalism To Technique: Feminism, Culture And The Conflict Of Laws Style, Karen Knop, Ralf Michaels, Annelise Riles
Faculty Scholarship
The German chancellor, the French president and the British prime minister have each grabbed world headlines with pronouncements that their state’s policy of multiculturalism has failed. As so often, domestic debates about multiculturalism, as well as foreign policy debates about human rights in non-Western countries, revolve around the treatment of women. Yet there is also a widely noted brain drain from feminism. Feminists are no longer even certain how to frame, let alone resolve, the issues raised by veiling, polygamy and other cultural practices oppressive to women by Western standards. Feminism has become perplexed by the very concept of “culture.” …
The Aba, The Aall, The Aals, And The “Duplication Of Legal Publications”, Richard A. Danner
The Aba, The Aall, The Aals, And The “Duplication Of Legal Publications”, Richard A. Danner
Faculty Scholarship
Between 1935 and 1940, the American Bar Association, the Association of American Law Schools, and the American Association of Law Libraries joined forces to work on solutions to a problem often referred to as the “duplication of legal publications.” The need for practicing attorneys and law libraries to purchase multiple and duplicative versions of published law reports and other law books was burdensome in costs, complicated the research process, and contributed to what the American Law Institute identified as the two chief defects of American law: “its uncertainty and its complexity.” This article highlights the efforts of the ABA, the …
The Pragmatic Court: Reinterpreting The Supreme People’S Court Of China, Taisu Zhang
The Pragmatic Court: Reinterpreting The Supreme People’S Court Of China, Taisu Zhang
Faculty Scholarship
This Article examines the institutional motivations that underlie several major developments in the Supreme People's Court of China's recent policy-making. Since 2007, the SPC has sent off a collection of policy signals that escapes sweeping ideological labeling: it has publically embraced a populist view of legal reform by encouraging the use of mediation in dispute resolution and popular participation in judicial policy-making, while continuing to advocate legal professionalization as a long-term policy objective. It has also eagerly attempted to enhance its own institutional competence by promoting judicial efficiency, simplifying key areas of civil law, and expanding its control over lower …
A Jurisprudence Of Insurgency: Lawyers As Companions Of Unimagined Change, Michael E. Tigar
A Jurisprudence Of Insurgency: Lawyers As Companions Of Unimagined Change, Michael E. Tigar
Faculty Scholarship
No abstract provided.
Historical Gloss And The Separation Of Powers, Curtis A. Bradley, Trevor W. Morrison
Historical Gloss And The Separation Of Powers, Curtis A. Bradley, Trevor W. Morrison
Faculty Scholarship
Arguments based on historical practice are a mainstay of debates about the constitutional separation of powers. Surprisingly, however, there has been little sustained academic attention to the proper role of historical practice in this context. The scant existing scholarship is either limited to specific subject areas or focused primarily on judicial doctrine without addressing the use of historical practice in broader conceptual or theoretical terms. To the extent that the issue has been discussed, most accounts of how historical practice should inform the separation of powers require “acquiescence” by the branch of government whose prerogatives the practice implicates, something that …
Legal Medievalism In Lex Mercatoria Scholarship, Ralf Michaels
Legal Medievalism In Lex Mercatoria Scholarship, Ralf Michaels
Faculty Scholarship
This short reaction piece to an article by Emily Kadens asks why a long-refuted story of an alleged uniform medieval lex mercatoria is still being maintained. The answer is that the story serves not as an actual history but instead as a foundation myth. Attempts to falsify the myth with historical data are therefore futile: the myth derives its value not from its truth value but from its symbolic power.
Introduction, Paul Finkelman