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Articles 1 - 11 of 11
Full-Text Articles in Legal History
The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii
The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii
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Choice of law is a mess. That much has become a truism. It is a "dismal swamp," a morass of confusion, a body of doctrine "killed by a realism intended to save it," and now "universally said to be a disaster." One way to demonstrate its tribulations would be to look at the academic dissensus and the hopelessly underdeterminative Restatement (Second) of Conflict of Laws. Another would be to examine the Supreme Court's abdication of the task of articulating constitutional constraints on state choice-of-law rules. This article will do both. At the outset, though, I want to suggest that one …
The Myth Of Private Ordering: Rediscovering Legal Realism In Cyberspace, Margaret Jane Radin, R. Polk Wagner
The Myth Of Private Ordering: Rediscovering Legal Realism In Cyberspace, Margaret Jane Radin, R. Polk Wagner
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While Cyberspace is, by now, well-recognized as a social and commercial environment of great promise, there is considerable debate about the form of governance that will best meet the needs of this new medium. Much of the present discussion casts this debate in stark terms?"top-down" hierarchical rules versus spontaneous "bottom-up" coordination?with self-ordering based on contracts and private agreements rather than public laws appearing both preferable and more likely to evolve. Following up on arguments presented by Professors Fisher and Elkin-Koren in this symposium, Radin and Wagner point out that the dichotomy between top-down and bottom-up obscures that a self-ordering regime …
The Architecture Of Judicial Independence, Stephen B. Burbank
The Architecture Of Judicial Independence, Stephen B. Burbank
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No abstract provided.
Not So Hard (And Not So Special), After All: Comments On Zimring's "The Hardest Of The Hard Cases", Stephen J. Morse
Not So Hard (And Not So Special), After All: Comments On Zimring's "The Hardest Of The Hard Cases", Stephen J. Morse
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No abstract provided.
A Little Theory Is A Dangerous Thing: The Myth Of Adjudicative Retroactivity, Kermit Roosevelt Iii
A Little Theory Is A Dangerous Thing: The Myth Of Adjudicative Retroactivity, Kermit Roosevelt Iii
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The article analyzes the question of the retroactive effect of judicial decisions. It surveys the history of retroactivity doctrine to demonstrate that the current approach to retroactivity jurisprudence is a consequence of the Warren Court's adoption of the principle that parties should be governed by the law in effect at the time of their actions. This principle leads to a theoretical framework that suffers from serious difficulties. In particular, it is unable to distinguish between cases presented on direct and collateral review, and consequently unable to reach a satisfactory treatment of habeas petitions based on changes in law. The article …
The Legalization Of The Presidencey: A Twenty-Five Year Watergate Retrospective, Michael A. Fitts
The Legalization Of The Presidencey: A Twenty-Five Year Watergate Retrospective, Michael A. Fitts
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No abstract provided.
The Genius Of The 1898 Bankruptcy Act, David A. Skeel Jr.
The Genius Of The 1898 Bankruptcy Act, David A. Skeel Jr.
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No abstract provided.
Filters And The First Amendment, R. Polk Wagner
Filters And The First Amendment, R. Polk Wagner
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Internet content filters -- promising a technological solution to the uniquely social problem of widespread availability of adults-only content on the Internet -- appear to shift the debate over control of "cyberporn" from the legislative to the technical. Yet a growing number of commentators are expressing serious reservations about the free speech implications of filters. In this Article, I note that the ever-changing relationship between technology, network economics, and legal doctrine in the new economic and ideological marketplace of Cyberspace will fundamentally impact any constitutional analysis. I argue that the existing literature's analytic reliance on expansive concepts of state action …
On Hate And Equality, Alon Harel, Gideon Parchomovsky
On Hate And Equality, Alon Harel, Gideon Parchomovsky
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Hate crime legislation has sparked substantial political controversy and scholarly discussion. Existing justifications for hate crime legislation proceed on the premise that the rationale supporting such legislation must be found either in the greater gravity of the wrongdoing involved or in the perpetrator's greater degree of culpability. This premise stems from a fundamental theory that dominates criminal law scholarship: the wrongfulness-culpability hypothesis. The wrongfulness-culpability hypothesis posits that the only two grounds that may justify disparate treatment of offenses are the greater wrongfulness of the act or the greater culpability of the perpetrator. Yet, all attempts to demonstrate that hate crimes …
Social Contract Theory In American Case Law, Anita L. Allen
Social Contract Theory In American Case Law, Anita L. Allen
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No abstract provided.
On The Obligation Of The State To Extend A Right Of Self-Defense To Its Citizens, Claire Oakes Finkelstein
On The Obligation Of The State To Extend A Right Of Self-Defense To Its Citizens, Claire Oakes Finkelstein
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No abstract provided.