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2003

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Articles 1 - 30 of 177

Full-Text Articles in Legal History

Progressivist Origins Of The 2003 California Gubernatorial Recall, Kira L. Klatchko Dec 2003

Progressivist Origins Of The 2003 California Gubernatorial Recall, Kira L. Klatchko

ExpressO

Progressivist Origins of the 2003 California Gubernatorial Recall, was written in Sacramento in the midst of the first statewide recall of an elected official in California. The paper explores the nature of the recall procedure and its implementation in the state, and is chiefly an inquiry into the relatedness of the current incarnation and its Progressivist root. It focuses particularly on the recall of Governor Gray Davis, and details how shifting attitudes towards public participation have altered the procedure over time.


Habeas Corpus Reform In El Salvador, Mary Holper Dec 2003

Habeas Corpus Reform In El Salvador, Mary Holper

Law and Justice in the Americas Working Paper Series

In this paper I compare the habeas corpus systems of El Salvador, the United States and Argentina. My purpose is to develop a general understanding of the procedure for bringing the writ in each country and analyze the substantive law governing the rights of habeas corpus petitioners in each country. I evaluate the systems against the backdrop of each country’s political and legal history with respect to the writ of habeas corpus. The ultimate aim of this paper is to reform the habeas corpus law of El Salvador by analyzing the Salvadoran system as compared to the Argentine and ...


Compensation And Revenge, Emily Sherwin Dec 2003

Compensation And Revenge, Emily Sherwin

Cornell Law Faculty Publications

No abstract provided.


Why Judges Applying The Daubert Trilogy Need To Know About The Social, Institutional, And Rhetorical - And Not Just The Methodological - Aspects Of Science, David S. Caudill, Lewis H. Larue Dec 2003

Why Judges Applying The Daubert Trilogy Need To Know About The Social, Institutional, And Rhetorical - And Not Just The Methodological - Aspects Of Science, David S. Caudill, Lewis H. Larue

Boston College Law Review

In response to the claim that many judges are deficient in their understanding of scientific methodology, this Article identifies in recent cases (1) a pragmatic perspective on the part of federal appellate judges when they reverse trial judges who tend to idealize science (i.e., who do not appreciate the local and practical goals and limitations of science), and (ii) an educational model of judicial gatekeeping that results in reversal of trial judges who defer to the social authority of science (i.e., who mistake authority for reliability). Next, this Article observes that courts (in the cases it analyzes) are ...


Ethnography In The Realm Of The Pragmatic: Studying Pragmatism In Law And Politics, Annelise Riles Nov 2003

Ethnography In The Realm Of The Pragmatic: Studying Pragmatism In Law And Politics, Annelise Riles

Cornell Law Faculty Publications

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All The Lizards Stand And Say “Yes Yes Yes” : The Element Of Play In Legal Actions Against Animals And Inanimate Objects, Anna Pervukhin Oct 2003

All The Lizards Stand And Say “Yes Yes Yes” : The Element Of Play In Legal Actions Against Animals And Inanimate Objects, Anna Pervukhin

ExpressO

Legal actions against non-humans (whether animals or objects) were once widespread. They were viewed seriously and undoubtedly served important social functions. This article considers the possibility that some of these actions may have been playful as well. Certain aspects of legal actions against animals and objects-- occasional moments of levity, a preoccupation with formal rules, and a strong emphasis on imaginative transformation-- suggest that these actions had elements of play. The possibility is worth considering for two reasons. First, it may shed some light on a practice that has perplexed and disturbed commentators for centuries. Second, an examination of play ...


Fall 2003 Oct 2003

Fall 2003

Bill of Particulars

No abstract provided.


Toward A Unifying Theory Of The Separation Of Powers, Bruce G. Peabody, John D. Nugent Oct 2003

Toward A Unifying Theory Of The Separation Of Powers, Bruce G. Peabody, John D. Nugent

American University Law Review

No abstract provided.


In Defense Of Chief Justice Roy S. Moore, Jeffrey C. Tuomala Oct 2003

In Defense Of Chief Justice Roy S. Moore, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.


In Defense Of Chief Justice Roy S. Moore, Jeffrey C. Tuomala Oct 2003

In Defense Of Chief Justice Roy S. Moore, Jeffrey C. Tuomala

Jeffrey C. Tuomala

No abstract provided.


The Evolution Of Equality In American Law, Gerald Torres Oct 2003

The Evolution Of Equality In American Law, Gerald Torres

Cornell Law Faculty Publications

No abstract provided.


"On The Chastity Of Women All Property In The World Depends" : Injury From Sexual Slander In The Nineteenth Century, Lisa R. Pruitt Oct 2003

"On The Chastity Of Women All Property In The World Depends" : Injury From Sexual Slander In The Nineteenth Century, Lisa R. Pruitt

Indiana Law Journal

In this Article, Professor Pruitt discusses conceptions of the injury associated with defamation law, focusing in particular on sexual slander cases that were brought in the early nineteenth century, before statements that impugned a woman's chastity were deemed slander per se. During this time, women had to prove so-called "special damages" in order to state a cause of action. Courts showed some flexibility in what they recognized as constituting "special damages," even stretching to recognize pecuniary harm in damaged personal relationships. Nevertheless, courts refused to recognize injuries stemming from and related to emotional distress injuries, and they were often ...


The Law Book In Colonial America: A History Of The Book In America: The Colonial Book In The Atlantic World, Alfred L. Brophy Oct 2003

The Law Book In Colonial America: A History Of The Book In America: The Colonial Book In The Atlantic World, Alfred L. Brophy

Buffalo Law Review

Book review of A History of the Book in America: The Colonial Book in the Atlantic World, David Hall & Hugh Amory, eds.


The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster Oct 2003

The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

UF Law Faculty Publications

This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial ...


The (Un)Favorable Judgment Of History: Deportation Hearings, The Palmer Raids, And The Meaning Of History, Harlan G. Cohen Oct 2003

The (Un)Favorable Judgment Of History: Deportation Hearings, The Palmer Raids, And The Meaning Of History, Harlan G. Cohen

Scholarly Works

As Americans respond to the events of September 11, 2001, they are being forced to contemplate their place in American history-past, present, and future. This has become particularly stark in the fight over secret deportation hearings. Following September 11, Attorney General John Ashcroft announced that the deportation hearings of "special interest" aliens would be closed to the public. Applying Richmond Newspapers's two-pronged logic-and-experience test, the Third and Sixth Circuits subsequently split over the constitutionality of the blanket closure. At the heart of their disagreement was the scarce history of deportation hearings and whether such hearings had been closed in ...


Killing The Non-Willing: Atkins, The Volitionally Incapacitated, And The Death Penalty, John H. Blume, Sheri Lynn Johnson Oct 2003

Killing The Non-Willing: Atkins, The Volitionally Incapacitated, And The Death Penalty, John H. Blume, Sheri Lynn Johnson

Cornell Law Faculty Publications

Jamie Wilson, nineteen years old and severely mentally ill, walked into a school cafeteria and started shooting. Two children died, and Jamie was charged with two counts of capital murder. Because he admitted his guilt, the only issue at his trial was the appropriate punishment. The trial judge assigned to his case, after hearing expert testimony on his mental state, found that mental illness rendered Jamie unable to conform his conduct to the requirements of law at the time of the crime—not impaired by his mental illness in his ability to control his behavior, but unable to control his ...


W & M Law School Came First. Why Care?, W. Taylor Reveley Iii Oct 2003

W & M Law School Came First. Why Care?, W. Taylor Reveley Iii

Faculty Publications

No abstract provided.


Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property -- Part I, Michael W. Carroll Sep 2003

Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property -- Part I, Michael W. Carroll

Working Paper Series

Many participants in the music industry consider unauthorized downloading of music files over the Internet to be “theft” of their “property.” Many Internet users who exchange music files reject that characterization. Prompted by this dispute, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing musicmaking in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some exclusive rights in the Middle ...


James Madison, John Witherspoon, And Oliver Cowdery: The First Amendment And The 134th Section Of The Doctrine And Covenants, Rodney K. Smith Sep 2003

James Madison, John Witherspoon, And Oliver Cowdery: The First Amendment And The 134th Section Of The Doctrine And Covenants, Rodney K. Smith

BYU Law Review

No abstract provided.


Secularism's Laws: State Blaine Amendments And Religious Persecution, Kyle Duncan Aug 2003

Secularism's Laws: State Blaine Amendments And Religious Persecution, Kyle Duncan

ExpressO

The State Blaine Amendments are provisions in thirty-seven state constitutions that restrict persons’ and organizations’ access to public benefits on religious grounds. They arose largely in the mid- to late-1800s in response to bitter strife between an established Protestant majority and a growing Catholic minority that sought equal access to public funding for Catholic schools. After the failure to pass a federal constitutional amendment—the "Blaine Amendment"—that would have sealed off public school funds from "sectarian" institutions, similar provisions proliferated in state constitutions. These "State Blaines" have often been interpreted, under their plain terms, as erecting religion-sensitive barriers to ...


The Perils Of "Consensus": Hans Kelsen And The Legal Philosophy Of The United Nations, J. Peter Pham Aug 2003

The Perils Of "Consensus": Hans Kelsen And The Legal Philosophy Of The United Nations, J. Peter Pham

ExpressO

Recently the United States and a number of its traditional allies have clashed over a variety of foreign policy issues that are profoundly juridical: the authority for war and peace, the International Criminal Court, etc. The source of these recent tensions is to be located at a level deeper than that of narrow national interests and specific policies. Rather, they arise from significant differences concerning the nature of "consensus" and, ultimately, legal philosophy. While the United Nations and many other international organizations derive their legal visions from the philosophy of law of Hans Kelsen (1881-1973), one of the most important ...


Why Europe Rejected American Judicial Review - And Why It May Not Matter, Alec Stone Sweet Aug 2003

Why Europe Rejected American Judicial Review - And Why It May Not Matter, Alec Stone Sweet

Michigan Law Review

In this Article, I explore the question of why constitutional review, but not American judicial review, spread across Europe. I will also argue that, despite obvious organic differences between the American and European systems of review, there is an increasing convergence in how review actually operates. I proceed as follows. In Part I, I examine the debate on establishing judicial review in Europe, focusing on the French. In Parts II and III, I contrast the European and the American models of review, and briefly discuss why the Kelsenian constitutional court diffused across Europe. In Part IV, I argue that despite ...


How The Uncharged Misconduct Rule Was Born, Thomas J. Reed Jul 2003

How The Uncharged Misconduct Rule Was Born, Thomas J. Reed

ExpressO

An examination of People v. Molineux a 1901 New York landmark case in evidence which gave rise to what is now Rule 404(b) of the Federal Rules of Evidence, the history and background of the common law uncharged misconduct rule, and a legal history of this fascinating criminal prosecution


The Rhetorical Uses Of Marbury V. Madison: The Emergence Of A "Great Case", Davison M. Douglas Jul 2003

The Rhetorical Uses Of Marbury V. Madison: The Emergence Of A "Great Case", Davison M. Douglas

Faculty Publications

Marbury v. Madison is today indisputably one of the "great cases" of American constitutional law because of its association with the principle of judicial review. But for much of its history, Marbury has not been regarded as a seminal decision. Between 1803 and 1887, the Supreme Court never once cited Marbury for the principle of judicial review, and nineteenth century constitutional law treatises were far more likely to cite Marbury for the decision's discussion of writs of mandamus or the Supreme Court's original jurisdiction than for its discussion of judicial review. During the late nineteenth century, however, the ...


Class Schedule - Summer 2003, Office Of Registrar Jul 2003

Class Schedule - Summer 2003, Office Of Registrar

Semester Schedules and Information

No abstract provided.


Factless Jurisprudence, Darren Lenard Hutchinson Jul 2003

Factless Jurisprudence, Darren Lenard Hutchinson

UF Law Faculty Publications

Professor Terry Smith has written a very important work on the inadequacy of juridical approaches to antidiscrimination law in the context of Title VII litigation. Smith argues that the anti-retaliation provisions of Title VII can serve more broadly as a mechanism for protecting workers of color from prohibited racial discrimination. Smith contends that contemporary equality jurisprudence, however, impedes the protective scope of the anti-retaliation provision because courts fail to appreciate the broader context of racial antagonism in which persons of color live. Particularly, courts often misinterpret lawful racial protest in the workplace as disruptive and appropriately regulated to the detriment ...


Approaches To Statutory Interpretation And Legislative History In France, Claire M. Germain Jul 2003

Approaches To Statutory Interpretation And Legislative History In France, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.


Speech: The Bill Of Rights, Garrett Epps Jul 2003

Speech: The Bill Of Rights, Garrett Epps

All Faculty Scholarship

The Bill of Rights is a much more fortuitous addition to the Constitution than many people imagine. The tired delegates at Philadelphia were unable to make the final effort to frame a bill of rights, and their failure nearly caused the collapse of ratification. When the First Congress met, James Madison took responsibility for making the new government live up to the implied pledge made during ratification to provide a partial list, drawn from the historic rights on English subjects. Not all Madison's proposed amendments were adopted however. The work of adumbrating the full scope of liberty under the ...


The Legal History Of The Twentieth Century, Daniel R. Coquillette Jul 2003

The Legal History Of The Twentieth Century, Daniel R. Coquillette

Boston College Law School Faculty Papers

No abstract provided.


First Amendment Equal Protection: On Discretion, Inequality, And Participation, Daniel P. Tokaji Jun 2003

First Amendment Equal Protection: On Discretion, Inequality, And Participation, Daniel P. Tokaji

Michigan Law Review

The tension between equality and discretion lies at the heart of some of the most vexing questions of constitutional law. The considerable discretion that many official decisionmakers wield raises the spectre that violations of equality norms will sometimes escape detection. This is true in a variety of settings, whether discretion lies over speakers' access to public fora, implementation of the death penalty, or the recounting of votes. Is the First Amendment violated, for example, when a city ordinance gives local officials broad discretion to determine the conditions under which political demonstrations may take place? Is equal protection denied where the ...