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Full-Text Articles in Legal History

The Ministerial Exception And The Limits Of Religious Sovereignty, Ian C. Bartrum Jul 2012

The Ministerial Exception And The Limits Of Religious Sovereignty, Ian C. Bartrum

Ian C Bartrum

This paper explores the scope of independent religious sovereignty in the context of the ministerial exception.


University Of Baltimore Symposium Report: Debut Of “The Matthew Fogg Symposia On The Vitality Of Stare Decisis In America”, Zena D. Crenshaw-Logal Jan 2012

University Of Baltimore Symposium Report: Debut Of “The Matthew Fogg Symposia On The Vitality Of Stare Decisis In America”, Zena D. Crenshaw-Logal

Zena Denise Crenshaw-Logal

On the first of each two day symposium of the Fogg symposia, lawyers representing NGOs in the civil rights, judicial reform, and whistleblower advocacy fields are to share relevant work of featured legal scholars in lay terms; relate the underlying principles to real life cases; and propose appropriate reform efforts. Four (4) of the scholars spend the next day relating their featured articles to views on the vitality of stare decisis. Specifically, the combined panels of public interest attorneys and law professors consider whether compliance with the doctrine is reasonably assured in America given the: 1. considerable discretion vested in …


The Modalities Of Constitutional Argument: A Primer, Ian C. Bartrum Jan 2012

The Modalities Of Constitutional Argument: A Primer, Ian C. Bartrum

Ian C Bartrum

This piece is a contribution to Linda Edwards upcoming book Readings In Persuasion: Briefs That Changed the World (forthcoming Wolters Kluwer). In it I offer a short primer on the modalities of constitutional argument, as Philip Bobbitt has described them. As someone who teaches Constitutional Law with the primary goal of educating future practitioners, I have always brought Bobbitt’s very practical (while also very theoretical) work into my classroom discussions. I have regularly used the first chapter of Bobbitt’s Constitutional Interpretation as introductory text on the subject, but I have sometimes found the reading to be too long and/or theoretical …


Constitutional Value Judgments And Interpretive Theory Choice, Ian C. Bartrum Jan 2012

Constitutional Value Judgments And Interpretive Theory Choice, Ian C. Bartrum

Ian C Bartrum

Philip Bobbitt’s remarkable work describing the ‘modalities’ of constitutional argument is an immense contribution to the study of constitutional law. He describes a typology of six forms of argument alive in our interpretive practice, and offers a limited account of how these modalities interact, and sometimes conflict, in actual constitutional decisions. One of the persistent puzzles Bobbitt’s description leaves open, however, is how we should account for the choice between conflicting modalities in cases where that choice is likely outcome-determinative. Because the modalities are ‘incommensurable’—a term’s meaning in one modality may not be fully translatable into another—there is no internal …


My “Country” Lies Over The Ocean: Seasteading And Polycentric Law, Allen P. Mendenhall Dec 2011

My “Country” Lies Over The Ocean: Seasteading And Polycentric Law, Allen P. Mendenhall

Allen Mendenhall

This essay considers the implications of the Seasteading Institute upon notions of law and sovereignty and argues that seasteading could make possible the implementation or ordering of polycentric legal systems while providing evidence for the viability of private-property anarchism or anarchocapitalism, at least in their nascent forms. This essay follows in the wake of Edward P. Stringham’s edition Anarchy and the Law and treats seasteading and polycentric law as concrete realities that lend credence to certain anarchist theories. Polycentric law in particular allows for institutional diversity that enables a multiplicity of rules to coexist and even compete in the open …


What Piece Of Work Is Man: Frans De Waal And Pragmatist Naturalism, Wouter H. De Been, Sanne Taekema Dec 2011

What Piece Of Work Is Man: Frans De Waal And Pragmatist Naturalism, Wouter H. De Been, Sanne Taekema

Wouter H. de Been

Frans de Waal has questioned a central premise of liberal theory, i.e. that human beings are primarily defined by selfishness and rationality. This premise does not conform to what we know from research about our primate origins - namely that primates are gregarious and guided by sympathy and empathy. De Waal argues we should return to Adam Smith’s moral theory and his focus on sympathy and empathy. We believe a return to pragmatism would be more appropriate. Pragmatism largely conforms to the view of human nature that De Waal’s research now supports. We argue that pragmatism can provide a more …