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Legal History Commons

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2007

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Articles 1 - 30 of 208

Full-Text Articles in Legal History

The Rule Of Law, Democracy, And International Law - Learning From The Us Experience, Gianluigi Palombella Dec 2007

The Rule Of Law, Democracy, And International Law - Learning From The Us Experience, Gianluigi Palombella

Gianluigi Palombella

The general issue addressed in this paper is the relation between the rule of law as a matter of national law, and as a matter of international law. Different institutional conceptions of this relationship give rise to different attitudes towards international law. Nonetheless, questions arise that cast doubt on age-old tenets of certain Western countries concerning the radical separability between the rule of law within the domestic system and in the international realm. The article will start considering some recent developments in the United States' treatment of alien detainees. Then it shall address the relation between domestic constitutions and international ...


The Era Of Deference: Courts, Expertise, And The Emergence Of New Deal Administrative Law, Reuel E. Schiller Dec 2007

The Era Of Deference: Courts, Expertise, And The Emergence Of New Deal Administrative Law, Reuel E. Schiller

Michigan Law Review

The first two terms of Franklin Roosevelt's presidency (1933-1941) were periods of great administrative innovation. Responding to the Great Depression, Congress created scores of new administrative agencies charged with overseeing economic policy and implementing novel social welfare programs. The story of the constitutional difficulties that some of these policy innovations encountered is a staple of both New Deal historiography and the constitutional history of twentieth-century America. There has been very little writing, however, about how courts and the New Deal-era administrative state interacted after these constitutional battles ended. Having overcome constitutional hurdles, these administrative agencies still had to interact ...


Princípios-Tópicos De Hermenêutica Constitucional, Paulo Ferreira Da Cunha Nov 2007

Princípios-Tópicos De Hermenêutica Constitucional, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Houve tempo em que a Constituição servia para poisar ou charuto ou tirar um argumento político, como ironicamente afirmaria o grande escritor oitocentista Eça de Queiroz. Hoje a Constituição é a norma das normas. Daí há consequências hermenêuticas. Ao contrário das teorias que importam interpretação tradicional e, por vezes, em grande medida ultrapassada, para o Direito Constitucional, a tendência actual é a inversa: dada a supremacia da Constituição, deve ser a metodologia constitucional a exportar hermenêutica para o todo do Direito. Para isso, começamos neste artigo com grandes princípios de hermenêutica intra-constitucional. Depois se passará à exportação.


Petitioner's Observations (December 2007) For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala Nov 2007

Petitioner's Observations (December 2007) For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.


Petitioner's Observations (December 2007) For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala Nov 2007

Petitioner's Observations (December 2007) For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala

Jeffrey C. Tuomala

No abstract provided.


Blinking On The Bench: How Judges Decide Cases, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich Nov 2007

Blinking On The Bench: How Judges Decide Cases, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Cornell Law Faculty Publications

How do judges judge? Do they apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or do they rely on hunches and gut feelings, as the realists maintain? Debate has raged for decades, but researchers have offered little hard evidence in support of either model. Relying on empirical studies of judicial reasoning and decision making, we propose an entirely new model of judging that provides a more accurate explanation of judicial behavior. Our model accounts for the tendency of the human brain to make automatic, snap judgments, which are surprisingly accurate, but which ...


Co-Presenter At New England Clinician's Workshop, Work In Progress: Beyond The Ada: How Clinics Can Assist Law Students With 'Non-Visible' Disabilities To Bridge The Accommodations Gap Between Classroom And Practice, Alexis Anderson Oct 2007

Co-Presenter At New England Clinician's Workshop, Work In Progress: Beyond The Ada: How Clinics Can Assist Law Students With 'Non-Visible' Disabilities To Bridge The Accommodations Gap Between Classroom And Practice, Alexis Anderson

Alexis Anderson

No abstract provided.


A New Era For Corporate Law: Using Corporate Governance Law To Benefit All Stakeholders, Kent Greenfield Oct 2007

A New Era For Corporate Law: Using Corporate Governance Law To Benefit All Stakeholders, Kent Greenfield

Kent Greenfield

No abstract provided.


The Accidental Elegance Of Aronson V. Lewis, David A. Skeel Jr. Oct 2007

The Accidental Elegance Of Aronson V. Lewis, David A. Skeel Jr.

Faculty Scholarship at Penn Law

Unlike many key corporate law decisions, the 1984 Delaware Supreme Court decision in Aronson v. Lewis was not heralded by stories in the Wall Street Journal and New York Times, nor in any other newspaper of note. Even now, few people other than corporate law experts are likely to recognize the name. Yet Aronson plays a pivotal role in many corporate law decisions that do get a lot more attention. Aronson established the parameters for filing derivative litigation against the directors of a corporation (or a third party, but derivative suits against third parties are now rare). A shareholder who ...


Regulating The Poor And Encouraging Charity In Times Of Crisis: The Poor Laws And The Statute Of Charitable Uses, James J. Fishman Oct 2007

Regulating The Poor And Encouraging Charity In Times Of Crisis: The Poor Laws And The Statute Of Charitable Uses, James J. Fishman

Pace Law Faculty Publications

National crises such as September 11th and Hurricane Katrina resulted in an unprecedented outpouring of charitable generosity by Americans, which was encouraged by the government through tax incentives. This paper examines an earlier period of crisis, Tudor England (1485-1603), where the state encouraged philanthropy as a tool of social and political policy. Certain charitable activities were favored and others disadvantaged to spur private sector resources to resolve public problems.

The article discusses the evolution of the laws regulating the poor, which culminated in the Poor Law Legislation of 1601, a process that developed attitudes toward the poor and concepts of ...


Bringing Light To The Halls Of Shadow, Richard J. Peltz-Steele Oct 2007

Bringing Light To The Halls Of Shadow, Richard J. Peltz-Steele

Faculty Publications

Appellate judges operate in the shadows. Though they don’t see it that way. “We are judged by what we write,” said U.S. Supreme Court Justice Anthony Kennedy. True too, court proceedings and records are presumptively open to the public. The West Wing of the White House is certainly not so vulnerable to public scrutiny, and the backrooms of legislative chambers are famously smoke-filled. Yet the parts of court activity that we see and hear seem only to whet our appetite for the rest of the process. In this Preface, the author introduces the subject of the journalist and ...


Embracing The Living Constitution: Justice Anthony M. Kennedy's Move Away From A Conservative Methodology Of Constitutional Interpretation, Lisa K. Parshall Oct 2007

Embracing The Living Constitution: Justice Anthony M. Kennedy's Move Away From A Conservative Methodology Of Constitutional Interpretation, Lisa K. Parshall

North Carolina Central Law Review

No abstract provided.


Odious Debts Or Odious Regimes?, Patrick Bolton, David A. Skeel Jr. Oct 2007

Odious Debts Or Odious Regimes?, Patrick Bolton, David A. Skeel Jr.

Faculty Scholarship at Penn Law

Current odious debt doctrine– using the term “doctrine” loosely, since it has never formally been adopted by a court or international decision maker– dates back to a 1927 treatise by a wandering Russian academic named Alexander Sack. Sack suggested that debt obligations are odious and therefore unenforceable if 1) they were incurred without the consent of the populace; 2) they did not benefit the populace; and 3) the lender knew or should have known about the absence of consent and benefit. The tripartite Sack definition, which quickly became the foundation of odious debt analysis, contemplates a debt-by-debt approach to questionable ...


Constitutional Law—Equal Protection & Due Process—Is The Arkansas Supreme Court Abandoning Judicial Federalism?, Alexander Justiss Oct 2007

Constitutional Law—Equal Protection & Due Process—Is The Arkansas Supreme Court Abandoning Judicial Federalism?, Alexander Justiss

University of Arkansas at Little Rock Law Review

This note examines the history of judicial federalism by discussing the history of its use, as well as the analytical models that have been produced by its various adoptive jurisdictions. The development of these models has given courts much authority in determining the scope of individual rights within their respective jurisdictions. Further, a discussion follows that explores the criticisms directed at the use of such authority.

This note also examines the Arkansas Supreme Court's adoption and use of judicial federalism as a necessary safeguard against governmental infringements on individual rights, particularly those involving the right to privacy. Although such ...


Religious Liberty That Almost Wasn't: On The Origin Of The Establishment Clause Of The First Amendment, Gregory C. Downs Oct 2007

Religious Liberty That Almost Wasn't: On The Origin Of The Establishment Clause Of The First Amendment, Gregory C. Downs

University of Arkansas at Little Rock Law Review

The purpose of this article is to briefly examine the origin of the Establishment Clause in the event sometimes referred to as the "Virginia Experience," and to consider the possibility that the significant "leading roles" in the First Amendment's creation were not limited to Jefferson and Madison. Further, Madison's leading role in the actual sponsorship of the First Amendment may not have been entirely voluntary. With the ever-present litigation and controversies revolving around the extent and meaning of the First Amendment's Establishment Clause, the overlooked history of the creation of the First Amendment is both interesting and ...


Looking Ahead: The Future Of Child Welfare Law, Donald N. Duquette Oct 2007

Looking Ahead: The Future Of Child Welfare Law, Donald N. Duquette

University of Michigan Journal of Law Reform

Introduction to a 2007 Symposium held to mark the Thirtieth Anniversary of the Child Advocacy Clinic.


The Harvard And Chicago Schools And The Dominant Firm, Herbert J. Hovenkamp Sep 2007

The Harvard And Chicago Schools And The Dominant Firm, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The Chicago School has produced many significant contributions to the antitrust literature of the last half century. Thanks in part to Chicago School efforts today we have an antitrust policy that is more rigorously economic, less concerned with protecting noneconomic values that are impossible to identify and weigh, and more confident that markets will correct themselves without government intervention. This Chicago School revolution came at the expense of the Harvard structural school, which flourished from the 1930s through the 1950s. That school rested on a fairly rigid theory of Cournot oligopoly, exaggerated notions about barriers and impediments to entry, and ...


La Cultura De La Ilegalidad En México, Juan Pablo Pampillo Sep 2007

La Cultura De La Ilegalidad En México, Juan Pablo Pampillo

Juan Pablo Pampillo Baliño

No abstract provided.


The Adulterous Wife: A Cross-Historical And Interdisciplinary Approach, Meghan E.B. Norton Sep 2007

The Adulterous Wife: A Cross-Historical And Interdisciplinary Approach, Meghan E.B. Norton

Buffalo Women's Law Journal

No abstract provided.


Contemplating The Meaning Of "The Rule Of Law", Rodney A. Smolla Sep 2007

Contemplating The Meaning Of "The Rule Of Law", Rodney A. Smolla

University of Richmond Law Review

No abstract provided.


The Bridge At Jamestown: The Virginia Charter Of 1606 And Constitutionalism In The Modern World, A.E. Dick Howard Sep 2007

The Bridge At Jamestown: The Virginia Charter Of 1606 And Constitutionalism In The Modern World, A.E. Dick Howard

University of Richmond Law Review

No abstract provided.


Rule Of Law Conference: Global Issues And The Rule Of Law, Lord Chief Justice Nicholas Phillips Of Worth Matravers Sep 2007

Rule Of Law Conference: Global Issues And The Rule Of Law, Lord Chief Justice Nicholas Phillips Of Worth Matravers

University of Richmond Law Review

No abstract provided.


Social Justice And The Law, Elaine R. Jones Sep 2007

Social Justice And The Law, Elaine R. Jones

University of Richmond Law Review

No abstract provided.


Brief Of Legal Historians As Amici Curiae In Support Of Petitioners, Boumediene V. Bush, Nos. 06-1195, 06-1196 (U.S. Aug. 24, 2007), James Oldham Aug 2007

Brief Of Legal Historians As Amici Curiae In Support Of Petitioners, Boumediene V. Bush, Nos. 06-1195, 06-1196 (U.S. Aug. 24, 2007), James Oldham

U.S. Supreme Court Briefs

No abstract provided.


Mixed Contracts And The U.C.C.: A Proposal For A Uniform Penalty Default To Protect Consumers, Jesse M. Brush Jul 2007

Mixed Contracts And The U.C.C.: A Proposal For A Uniform Penalty Default To Protect Consumers, Jesse M. Brush

Student Scholarship Papers

Although Article 2 of the Uniform Commercial Code provides a standard set of rules for goods transactions, it is silent on the treatment of mixed goods and services contracts. Without guidance from the Code, courts have taken a number of different approaches to such contracts. These varied tests encourage opportunistic behavior: sellers withhold information about implied warranties during negotiations, and can later claim they do not apply. Uninformed buyers must either forfeit their warranty protection or resort to an expensive court determination of the Code’s applicability. This Article proposes a “penalty default” of applying the Code in consumer contracts ...


La Cesión De Derechos En El Código Civil Peruano, Edward Ivan Cueva Jul 2007

La Cesión De Derechos En El Código Civil Peruano, Edward Ivan Cueva

Edward Ivan Cueva

La Cesión de Derechos en el Código Civil Peruano


Rescuing Burke, Carl Bogus Jul 2007

Rescuing Burke, Carl Bogus

Law Faculty Scholarship

No abstract provided.


New Principles For Company Law, Kent Greenfield Jul 2007

New Principles For Company Law, Kent Greenfield

Boston College Law School Faculty Papers

No abstract provided.


Walking The Beach To The Core Of Sovereignty: The Historic Basis For The Public Trust Doctrine Applied In Glass V. Goeckel, Robert Haskell Abrams Jul 2007

Walking The Beach To The Core Of Sovereignty: The Historic Basis For The Public Trust Doctrine Applied In Glass V. Goeckel, Robert Haskell Abrams

University of Michigan Journal of Law Reform

In 2004, a split panel of the Michigan Court of Appeals announced its conclusion that Michigan littoral owners of property owned to the water's very edge and could exclude members of the public from walking on the beach. In that instant almost 3300 miles of the Great Lakes foreshore became, in theory and in law, closed to public use. The case became the leading flash point of controversy between the vast public and ardent private property rights groups. A little more than one year later, the Michigan Supreme Court reversed that ruling as errant on public trust grounds and ...


Bespeaking Justice: A History Of Indigent Defense In Montana, James Park Taylor Jul 2007

Bespeaking Justice: A History Of Indigent Defense In Montana, James Park Taylor

Montana Law Review

Indigent Defense in Montana