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Legal History Commons

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2013

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Articles 1 - 30 of 512

Full-Text Articles in Legal History

Judicial Activism: An (Un)Expected Result Of Legal Interpretation In Complex Societies?, Fabio P L Almeida Mr, Alexandre A. Costa Dr Dec 2013

Judicial Activism: An (Un)Expected Result Of Legal Interpretation In Complex Societies?, Fabio P L Almeida Mr, Alexandre A. Costa Dr

Fabio P L Almeida

Judicial activism has been accused of being an undue activity of judges, who should restrict themselves to the interpretation of the law. In this article, we argue that this conception is wrong: judicial activism does not imply a distortion in political and judicial structures, but it should be understood as an expected feature of legal interpretation in complex political systems. In contemporary liberal democracies, legislation cannot regulate all situations, and thus the only way to affirm its universality is through flexible interpretation, which grants to society the ability to adapt its legal system to new circumstances without the need to ...


Anatomy Of Dissent In Islamic Societies, Ahmed Souaiaia Dec 2013

Anatomy Of Dissent In Islamic Societies, Ahmed Souaiaia

Ahmed E SOUAIAIA

The 'Arab Spring' that began in 2011 has placed a spotlight on the transfer of political power in Islamic societies, reviving old questions about the place of political dissent and rebellion in Islamic civilization and raising new ones about the place of religion in modern Islamic societies.

In Anatomy of Dissent in Islamic Societies, Ahmed E. Souaiaia examines the complex historical evolution of Islamic civilization in an effort to trace the roots of the paradigms and principles of Islamic political and legal theories. This study is one of the first attempts at providing a fuller picture of the place of ...


Hope In The Life Of Thomas More, Thomas L. Shaffer, Stanley Hauerwas Dec 2013

Hope In The Life Of Thomas More, Thomas L. Shaffer, Stanley Hauerwas

Thomas L. Shaffer

No abstract provided.


Learning The Law-Thoughts Toward A Human Perspective, Thomas L. Shaffer, Robert S. Redmount Dec 2013

Learning The Law-Thoughts Toward A Human Perspective, Thomas L. Shaffer, Robert S. Redmount

Thomas L. Shaffer

No abstract provided.


“A Chinaman’S Chance” In Court: Asian Pacific Americans And Racial Rules Of Evidence, Gabriel J. Chin Dec 2013

“A Chinaman’S Chance” In Court: Asian Pacific Americans And Racial Rules Of Evidence, Gabriel J. Chin

UC Irvine Law Review

No abstract provided.


Critical Ethnic Legal Histories: Unearthing The Interracial Justice Of Filipino American Agricultural Labor Organizing, Marc-Tizoc González Dec 2013

Critical Ethnic Legal Histories: Unearthing The Interracial Justice Of Filipino American Agricultural Labor Organizing, Marc-Tizoc González

UC Irvine Law Review

No abstract provided.


Ownership Without Citizenship: The Creation Of Noncitizen Property Rights, Allison Brownell Tirres Dec 2013

Ownership Without Citizenship: The Creation Of Noncitizen Property Rights, Allison Brownell Tirres

Michigan Journal of Race and Law

At the nation’s founding, the common law of property defined ownership as an incident of citizenship. Noncitizens were unable lawfully to hold, devise, or inherit property. This doctrine eroded during the course of the eighteenth and nineteenth centuries, but few scholars have examined its demise or the concommittant rise of property rights for foreigners. This Article is the first sustained treatment of the creation of property rights for noncitizens in American law. It uncovers two key sources for the rights that emerged during the nineteenth century: federal territorial law, which allowed for alien property ownership and alien suffrage, and ...


La Dialettica Di Principî E Regole Nel Diritto Europeo Deicontratti: Dal Pecl Al Cesl, E Oltre, Pietro Sirena Nov 2013

La Dialettica Di Principî E Regole Nel Diritto Europeo Deicontratti: Dal Pecl Al Cesl, E Oltre, Pietro Sirena

Pietro Sirena

The article aims at challenging the current definitions of the principles of law from the point of view of the European legal system. Its multi-levelled structure and its constitutional architecture, strongly based on the subsidiarity of the European Union, call for a new understanding of its principles. The authors of the article assume that the principles of European law are to be identified with the common core of the national legal orders, i.e. with the ius commune Europaeum, and with the constitutional condition of its application by the European Court of Justice. Such principles should be obtained through the ...


Legal History Seminar: Leading Maryland Cases, Edward C. Papenfuse, Garrett Power Nov 2013

Legal History Seminar: Leading Maryland Cases, Edward C. Papenfuse, Garrett Power

Garrett Power

For the past decade, we have collaborated in presenting "Legal History Seminar: Leading Maryland Cases" at the University of Maryland Francis King Carey School of Law. In recent years, the seminar has paid particular attention to legal cases and controversies arising in Baltimore, Maryland - a city rich with historic tumult and beset with urban problems. The 2010 offering considered the city's environmental controversies; the 2011 offering addressed the administration of justice in Baltimore during the Civil War; and the 2012 offering looked at Baltimore in the War of 1812. While the focus of the seminar has changed from year ...


Constitutionalism And Coercion, Frederick Schauer Nov 2013

Constitutionalism And Coercion, Frederick Schauer

Boston College Law Review

A common understanding of constitutionalism sees a constitution as a device for keeping self-serving, corrupt, misguided, incompetent, power-hungry, or otherwise bad officials from doing bad things. But an alternative vision of constitutionalism recognizes the role of a constitution in imposing second-order constraints on the well-intended and often wise policies and decisions of even good officials, and doing so in the service of a range of longer-term values often likely to be slighted given the incentives of day-to-day politics and policy making. Using a series of prominent Supreme Court cases as a springboard, this Article, the written version of the Clough ...


Bridging The (Liability) Gap: The Shift Toward § 271(B) Inducement In Akamai Represents A Partial Solution To Divided Infringement, Brett M. Jackson Nov 2013

Bridging The (Liability) Gap: The Shift Toward § 271(B) Inducement In Akamai Represents A Partial Solution To Divided Infringement, Brett M. Jackson

Boston College Law Review

In recent years, the U.S. Court of Appeals for the Federal Circuit made it increasingly difficult for patentees of method patents to hold any party liable for infringement in divided infringement cases. As such, the Federal Circuit failed to adequately protect method patentees, leaving a glaring liability loophole in patent infringement jurisprudence. In 2012, however, in Akamai Technologies, Inc. v. Limelight Networks, Inc., the en banc Federal Circuit marked a fundamental shift in its divided infringement jurisprudence, holding that claims practiced by multiple actors could be resolved through an application of inducement infringement. Under this new standard, parties may ...


The Citizenship Line: Rethinking Immigration Exceptionalism, Rachel E. Rosenbloom Nov 2013

The Citizenship Line: Rethinking Immigration Exceptionalism, Rachel E. Rosenbloom

Boston College Law Review

It is not possible to police the movement of “aliens” without first determining who is and is not a citizen. Yet little scholarly attention has been devoted to the nature of citizenship determinations or their implication for our understanding of immigration enforcement as a whole. Thousands of U.S. citizens are caught up in immigration enforcement actions every year, and dozens of cases have come to light in which erroneous deportations can be traced to the lack of procedural protections within the deportation system, manifested in summary proceedings, lengthy detention, and lack of access to counsel. Such cases compel us ...


Due Process And Social Legislation In The Supreme Court--A Post Mortem, Robert Rodes Nov 2013

Due Process And Social Legislation In The Supreme Court--A Post Mortem, Robert Rodes

Robert Rodes

No abstract provided.


Pound's Century, And Ours, Jay Tidmarsh Nov 2013

Pound's Century, And Ours, Jay Tidmarsh

Jay Tidmarsh

No abstract provided.


The Jurisprudence Of John Howard Yoder, Thomas L. Shaffer Nov 2013

The Jurisprudence Of John Howard Yoder, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.


The Gift Of Milner Ball, Thomas L. Shaffer Nov 2013

The Gift Of Milner Ball, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.


Lawyers As Prophets, Thomas L. Shaffer Nov 2013

Lawyers As Prophets, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.


Discretion In Making Legal Decisions: A Frances Lewis Law Center Colloquium, Thomas L. Shaffer Nov 2013

Discretion In Making Legal Decisions: A Frances Lewis Law Center Colloquium, Thomas L. Shaffer

Thomas L. Shaffer

Colloquium papers, pp. 1161-1311, edited by Professor Shaffer.


Advocacy As Moral Discourse, Thomas L. Shaffer Nov 2013

Advocacy As Moral Discourse, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.


Levinson Builds The Kingdom: Comment On "Professing Law", Thomas L. Shaffer Nov 2013

Levinson Builds The Kingdom: Comment On "Professing Law", Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.


David Hoffman's Law School Lectures, 1822-1833, Thomas L. Shaffer Nov 2013

David Hoffman's Law School Lectures, 1822-1833, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.


Overcoming Impediments To Information Sharing, Avishalom Tor, Amitai Aviram Nov 2013

Overcoming Impediments To Information Sharing, Avishalom Tor, Amitai Aviram

Avishalom Tor

When deciding whether to share information, firms consider their private welfare. Discrepancies between social and private welfare may lead firms excessively to share information to anti-competitive ends - in facilitating of cartels and other harmful horizontal practices - a problem both antitrust scholarship and case law have paid much attention to. On the other hand, legal scholars have paid far less attention to the opposite type of inefficiency in information sharing among competitors - namely, the problem of sub-optimal information sharing. This phenomenon can generate significant social costs and is of special importance in network industries because the maintenance of compatibility, a key ...


Closing Argument, James H. Seckinger Nov 2013

Closing Argument, James H. Seckinger

James H. Seckinger

No abstract provided.


Presenting Expert Testimony, James H. Seckinger Nov 2013

Presenting Expert Testimony, James H. Seckinger

James H. Seckinger

No abstract provided.


Secular Cases In The Church Courts: A Historical Survey, Robert Rodes Nov 2013

Secular Cases In The Church Courts: A Historical Survey, Robert Rodes

Robert Rodes

No abstract provided.


An Overview Of The Scholarship In Law And Religion Of Judge John T. Noonan, Jr., Robert E. Rodes Nov 2013

An Overview Of The Scholarship In Law And Religion Of Judge John T. Noonan, Jr., Robert E. Rodes

Robert Rodes

No abstract provided.


On The Historical School Of Jurisprudence, Robert E. Rodes Nov 2013

On The Historical School Of Jurisprudence, Robert E. Rodes

Robert Rodes

Legal theory has tended to treat the Historical School as a poor relation, but it has important contributions to make. Developed in opposition to the one-size-fits-all form of natural law that eventuated in the Code Napoleon, it attributes law to a Volksgeist, the spirit of a people, as developed in the peculiar historical experience of that people. The original German proponents of the school had trouble explaining the reception of Roman law in Germany, but despite the importation of technical elements from without, a people's laws are in fact part of their culture and of their spiritual heritage as ...


Non-Representational Jurisprudence: A Centennial Reading Of "The Path Of The Law", Robert E. Rodes Nov 2013

Non-Representational Jurisprudence: A Centennial Reading Of "The Path Of The Law", Robert E. Rodes

Robert Rodes

This paper analyzes particular passages in Holmes's famous lecture, and notes important inconsistencies and failings in his approach. After arguing strongly that moral considerations should not enter into legal judgments, he criticizes legal judgments in the light of moral considerations. After defining law as a prediction of what the courts will do, he seems to criticize courts for getting the law wrong in their decisions. His advice to learn the legal profession by studying law from the standpoint of a bad man leaves out of account the numerous potential clients who wish to be law abiding citizens and to ...


Trademark Use And The Problem Of Source, Mark P. Mckenna Nov 2013

Trademark Use And The Problem Of Source, Mark P. Mckenna

Mark P. McKenna

This Article mediates a scholarly debate regarding the existence and desirability of a "trademark use" doctrine. It argues that trademark use is a predicate of liability under the Lanham Act, but those who advocate treating trademark use as a threshold question put much more weight on that concept than it can bear. Courts cannot consistently apply trademark use as a distinct element of the plaintiff's prima facie case because trademark use can be determined only from the perspective of consumers. Specifically, courts can determine whether a defendant has made trademark use of a plaintiff's mark only by asking ...


Erastian And High Church Approaches To The Law: The Jurisprudential Categories Of Robert E. Rodes, Jr., M. Kaveny Nov 2013

Erastian And High Church Approaches To The Law: The Jurisprudential Categories Of Robert E. Rodes, Jr., M. Kaveny

M. Cathleen Kaveny

It is a great honor for me to have been asked to contribute to this issue of the Journal of Law and Religion focusing on the work of my colleague and friend, Robert E. Rodes, Jr. In June 2006, Professor Rodes celebrated his fiftieth anniversary as a member of the faculty of Notre Dame Law School. His long career has marked him as a founding father of interdisciplinary scholarship at the intersection of faith, law, and morality—the very sort of scholarship which this journal is dedicated to fostering and preserving.

The topics that Professor Rodes has considered over the ...