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Legal History Commons

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2006

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Articles 1 - 30 of 46

Full-Text Articles in Legal History

A Snapshot Of Briefs, Opinions, And Citations In Federal Appeals, Robert Timothy Reagan Oct 2006

A Snapshot Of Briefs, Opinions, And Citations In Federal Appeals, Robert Timothy Reagan

The Journal of Appellate Practice and Process

No abstract provided.


Austin's Intentions: A Critical Reconstruction Of His Concept Of Legal Science, Richard T. Bowser, J. Stanley Mcquade Oct 2006

Austin's Intentions: A Critical Reconstruction Of His Concept Of Legal Science, Richard T. Bowser, J. Stanley Mcquade

Campbell Law Review

No abstract provided.


The Temporal Dynamics Of Capable Of Substantial Noninfringing Uses, R. Anthony Reese Oct 2006

The Temporal Dynamics Of Capable Of Substantial Noninfringing Uses, R. Anthony Reese

Michigan Technology Law Review

The copyright issues raised by "dual-use" technologies--equipment that can be used both in ways that infringe copyright and in ways that do not--first gained prominence in connection with the litigation over videocassette recorders that culminated in the Supreme Court's decision in Sony in 1984. Copyright owners had asserted that Sony's manufacture and distribution of VCRs rendered it liable for copyright infringement committed by customers using their Sony VCRs. The Supreme Court in Sony concluded that copyright law did not impose such secondary liability where the device in question was capable of substantial noninfringing uses (and that the VCR ...


The Intent Element Of Inducement To Infringe Under Patent Law: Reflections On Grokster, Lynda J. Oswald Oct 2006

The Intent Element Of Inducement To Infringe Under Patent Law: Reflections On Grokster, Lynda J. Oswald

Michigan Technology Law Review

In June, 2005, the United States Supreme Court set forth an "inducement" rule in MGM Studios, Inc. v. Grokster, Ltd. that imposes secondary liability on "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement." The Court emphasized the limitations of the liability standard it was setting forth, stating that the target was only "purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise." Yet, the liability standard set forth in Grokster ...


Function Over Form: Reviving The Criminal Jury's Historical Role As A Sentencing Body, Chris Kemmitt Oct 2006

Function Over Form: Reviving The Criminal Jury's Historical Role As A Sentencing Body, Chris Kemmitt

University of Michigan Journal of Law Reform

This Article argues that the Supreme Court, as evinced by its recent spate of criminal jury decisions, has abandoned the criminal jury known to the Founders and, in so doing, has severely eroded the protections intended to inhere in the Sixth Amendment jury trial right. It then proposes one potential solution to this problem.

According to the Supreme Court, this recent line of cases has been motivated by the need to preserve the "ancient guarantee" articulated in the Sixth Amendment under a new set of legal circumstances. Unfortunately, the Court misinterprets the ancient guarantee that it is ostensibly attempting to ...


Trends In Protection For Informational Works Under Copyright Law During The 19th And 20th Centuries, Miriam Bitton Oct 2006

Trends In Protection For Informational Works Under Copyright Law During The 19th And 20th Centuries, Miriam Bitton

Michigan Technology Law Review

The debate over databases protection has failed to identify and discuss some of its most basic and preliminary assumptions, accepting instead many of the historical aspects involved as given. This Article therefore seeks to challenge these underlying assumptions by providing a fresh look at the historical dimension of the debate. One common argument regarding database protection is that the U.S. Supreme Court decision in Feist v. Rural Publications Inc. brought about a dramatic change in the legal landscape, displacing the then-accepted "sweat of the brow" rationale for protecting rights in databases. This Article's historical analysis therefore thoroughly examines ...


But What Will They Do Without Unpublished Opinions?: Some Alternatives For Dealing With The Ninth Circuit's Massive Caseload Post F.R.A.P. 32.1, Bryan Wright Sep 2006

But What Will They Do Without Unpublished Opinions?: Some Alternatives For Dealing With The Ninth Circuit's Massive Caseload Post F.R.A.P. 32.1, Bryan Wright

Nevada Law Journal

No abstract provided.


Constitutional Law—Commerce Clause—California Takes A Hit: The Supreme Court Upholds Congressional Authority Over The State-Approved Use Of Medicinal Marijuana. Gonzales V. Raich, 545 U.S. 1 (2005)., Rick Behring Jr. Jul 2006

Constitutional Law—Commerce Clause—California Takes A Hit: The Supreme Court Upholds Congressional Authority Over The State-Approved Use Of Medicinal Marijuana. Gonzales V. Raich, 545 U.S. 1 (2005)., Rick Behring Jr.

University of Arkansas at Little Rock Law Review

No abstract provided.


Legislative Delegation And Two Conceptions Of The Legislative Power, Robert C. Sarvis Jun 2006

Legislative Delegation And Two Conceptions Of The Legislative Power, Robert C. Sarvis

The University of New Hampshire Law Review

[Excerpt] "The current federal government, with its burgeoning administrative agencies, does not embody what most Americans would recognize as the constitutional doctrine of separation of powers. This is, in part, due to the Congress’s frequent practice of delegating legislative powers to the executive branch, i.e., giving administrative agencies the power to promulgate rules regulating private behavior and having the force of law. Legislative delegation has been the subject of academic, legal, and political wrangling since the early congresses and clearly calls into question whether modern practice adheres to constitutional norms. This article discusses legislative delegation in terms of ...


Same Old, Same Old: Scientific Evidence Past And Present, Edward K. Cheng May 2006

Same Old, Same Old: Scientific Evidence Past And Present, Edward K. Cheng

Michigan Law Review

For over twenty years, and particularly since the Supreme Court's Daubert decision in 1993, much ink has been spilled debating the problem of scientific evidence in the courts. Are jurors or, in the alternative, judges qualified to assess scientific reliability? Do courts really need to be concerned about "junk science"? What mechanisms can promote better decision making in scientific cases? Even a cursory scan of the literature shows the recent explosion of interest in these issues, precipitating new treatises, hundreds of articles, and countless conferences for judges, practitioners, and academics. To this literature, Professor Tal Golan adds Laws of ...


Facing Evil, Joseph E. Kennedy May 2006

Facing Evil, Joseph E. Kennedy

Michigan Law Review

It is no earthshaking news that the American public has become fascinated- some would say obsessed-with crime over the last few decades. Moreover, this fascination has translated into a potent political force that has remade the world of criminal justice. Up through the middle of the 1960s crime was not something about which politicians had much to say. What was there to say? "Crime is bad." "We do what we can about crime." "Crime will always be with us at one level or another." Only a hermit could have missed the transformation of crime over the last couple of decades ...


Introduction To The National Conference, Daniel J. Meador Apr 2006

Introduction To The National Conference, Daniel J. Meador

The Journal of Appellate Practice and Process

No abstract provided.


Reflections On The Role Of Appellate Courts: A View From The Supreme Court, Stephen G. Breyer Apr 2006

Reflections On The Role Of Appellate Courts: A View From The Supreme Court, Stephen G. Breyer

The Journal of Appellate Practice and Process

No abstract provided.


The Old Order Changes, Shirley S. Abrahamson Apr 2006

The Old Order Changes, Shirley S. Abrahamson

The Journal of Appellate Practice and Process

No abstract provided.


Planning And Conduct Of The National Conference, Arthur J. England Jr. Apr 2006

Planning And Conduct Of The National Conference, Arthur J. England Jr.

The Journal of Appellate Practice and Process

No abstract provided.


Precedent In The Federal Courts Of Appeals: An Endangered Or Invasive Species?, John B. Oakley Apr 2006

Precedent In The Federal Courts Of Appeals: An Endangered Or Invasive Species?, John B. Oakley

The Journal of Appellate Practice and Process

No abstract provided.


Building An Appellate System Worthy Of A Great Nation, Randall T. Shepard Apr 2006

Building An Appellate System Worthy Of A Great Nation, Randall T. Shepard

The Journal of Appellate Practice and Process

No abstract provided.


The View From The Trenches: A Report On The Breakout Sessions At The 2005 National Conference On Appellate Justice, Arthur D. Hellman Apr 2006

The View From The Trenches: A Report On The Breakout Sessions At The 2005 National Conference On Appellate Justice, Arthur D. Hellman

The Journal of Appellate Practice and Process

No abstract provided.


Foreword: The Legacy Of St. George Tucker, Davison M. Douglas Feb 2006

Foreword: The Legacy Of St. George Tucker, Davison M. Douglas

William & Mary Law Review

No abstract provided.


St. George Tucker's Law Papers, Charles F. Hobson Feb 2006

St. George Tucker's Law Papers, Charles F. Hobson

William & Mary Law Review

No abstract provided.


Titles Of Nobility, Hereditary Privilege, And The Unconstitutionality Of Legacy Preferences In Public School Admissions, Carlton F. W. Larson Jan 2006

Titles Of Nobility, Hereditary Privilege, And The Unconstitutionality Of Legacy Preferences In Public School Admissions, Carlton F. W. Larson

Washington University Law Review

This Article argues that legacy preferences in public university admissions violate the Constitution's prohibition on titles of nobility. Examining considerable evidence from the late eighteenth century, the Article argues that the Nobility Clauses were not limited to the prohibition of certain distinctive titles, such as “duke” or “earl,” but had a substantive content that included a prohibition on all hereditary privileges with respect to state institutions. The Article places special emphasis on the dispute surrounding the formation of the Society of the Cincinnati, a hereditary organization formed by officers of the Continental Army. This Society was repeatedly denounced by ...


Privacy Law In The New Millennium: A Tribute To Richard C. Turkington, Gregory P. Magarian Jan 2006

Privacy Law In The New Millennium: A Tribute To Richard C. Turkington, Gregory P. Magarian

Villanova Law Review

No abstract provided.


The Ghost Of Alan Freed: An Analysis Of The Merit And Purpose Of Anti-Payola Laws In Today's Music Industry, Kristen Lee Repyneck Jan 2006

The Ghost Of Alan Freed: An Analysis Of The Merit And Purpose Of Anti-Payola Laws In Today's Music Industry, Kristen Lee Repyneck

Villanova Law Review

No abstract provided.


The Value Of Government Tort Liability: Washington State's Journey From Immunity To Accountability, Debra L. Stephens, Bryan P. Harnetiaux Jan 2006

The Value Of Government Tort Liability: Washington State's Journey From Immunity To Accountability, Debra L. Stephens, Bryan P. Harnetiaux

Seattle University Law Review

Part I of this Article traces Washington's history with the common law doctrine of government immunity from tort liability. It also identifies other distinct common law immunities protecting executive, legislative, and judicial functions-immunities that lay dormant during the reign of sovereign immunity. Part II discusses the legislature's broad waiver of sovereign immunity in 1961 and the legislature's subsequent reaffirmation of the waiver. It also notes isolated instances in which the legislature has partially restored immunity or otherwise limited tort liability. Part III addresses the development of case law interpreting the scope of government tort liability in light ...


Valuation In The Cost-Benefit Analysis: Choosing Between Offer Prices And Asking Prices As The Appropriate Measure Of Willingness To Pay, 39 J. Marshall L. Rev. 429 (2006), Gregory Crespi Jan 2006

Valuation In The Cost-Benefit Analysis: Choosing Between Offer Prices And Asking Prices As The Appropriate Measure Of Willingness To Pay, 39 J. Marshall L. Rev. 429 (2006), Gregory Crespi

The John Marshall Law Review

No abstract provided.


Harry Potter, Ruby Slippers And Merlin: Telling The Client's Story Using The Characters And Paradigm Of The Archetypal Hero's Journey, Ruth Anne Robbins Jan 2006

Harry Potter, Ruby Slippers And Merlin: Telling The Client's Story Using The Characters And Paradigm Of The Archetypal Hero's Journey, Ruth Anne Robbins

Seattle University Law Review

This Article focuses on the relationship of mythology and folklore heroes to everyday lawyering decisions regarding case theory when the audience is a judge or panel of judges rather than a jury. This Article adds to the discourse by beginning a conversation about what might be termed “applied legal storytelling.” The term pertains to ideas of how everyday lawyers can utilize elements of mythology as a persuasive technique in stories told directly to judges--either via bench trials or via legal writing documents such as briefs--on behalf of an individual client in everyday litigation. Parts II and III of this Article ...


The Legislative Privilege To Judge The Qualifications, Elections, And Returns Of Members, Paul E. Salamanca, James E. Keller Jan 2006

The Legislative Privilege To Judge The Qualifications, Elections, And Returns Of Members, Paul E. Salamanca, James E. Keller

Kentucky Law Journal

No abstract provided.


Applying The Laws Of Logic To The Logic Of Laws, Hillel Bavli Jan 2006

Applying The Laws Of Logic To The Logic Of Laws, Hillel Bavli

Fordham Urban Law Journal

The article begins by discussing the difficulties of proving consistency within a formal legal system generally. After establishing the importance of a formalized legal model as a prerequisite of rigorous examination of consistency, it proceeds to investigate issues intrinsic to the current system of law that may prevent formalization of a just legal system as currently conceived. The article argues that flexibility inherent in a just legal system may foreclose the possibility of legal formalization or any comprehensive model thereof. The article concludes, however, that a model whose purpose is the examination of consistency within a system need not necessarily ...


Looking To The Past In Planning For The Future: Does The Modern Estate Tax Fit Within The Ideals Of The Founding Fathers?, Alicia Lerud Jan 2006

Looking To The Past In Planning For The Future: Does The Modern Estate Tax Fit Within The Ideals Of The Founding Fathers?, Alicia Lerud

Nevada Law Journal

No abstract provided.


The Original Intent Of The Fourteenth Amendment: A Conversation With Eric Foner, Eric Foner Jan 2006

The Original Intent Of The Fourteenth Amendment: A Conversation With Eric Foner, Eric Foner

Nevada Law Journal

No abstract provided.