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Gambling On Our Financial Future: How The Federal Government Fiddles While State Common Law Is A Safer Bet To Prevent Another Financial Collapse, Brian M. McCall 2015 University of Oklahoma College of Law

Gambling On Our Financial Future: How The Federal Government Fiddles While State Common Law Is A Safer Bet To Prevent Another Financial Collapse, Brian M. Mccall

Brian M McCall

Many politicians and commentators agree that credit default swaps (CDS) played a significant role in the financial crisis of 2008. Yet, few who observe this role are aware that CDS were set loose on the economy by the federal pre-emption of thousands of years of public policy. Since the time of Aristotle law, philosophy and public policy have been hostile to gambling. Viewed as a socially unproductive zero sum wealth transfer, the law has generally refused to permit parties to use the courts to enforce wagers. Courts and legislatures worked in harmony to control and in some cases punish financial ...


Constructed Constraint And The Constitutional Text, Curtis A. Bradley, Neil S. Siegel 2015 Duke Law

Constructed Constraint And The Constitutional Text, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

In recent years, constitutional theorists have attended to the unwritten aspects of American constitutionalism and, relatedly, to the ways in which the constitutional text can be “constructed” upon by various materials. This Article takes a different approach. Instead of considering how various materials can supplement, implement, or interact with the constitutional text, the Article focuses on how the text itself is often partially constructed in American constitutional practice. Although interpreters typically regard clear text as controlling, this Article contends that whether the text is perceived to be clear is often affected by various “modalities” of constitutional interpretation that are normally ...


Silent Similarity, Jessica Litman 2015 SelectedWorks

Silent Similarity, Jessica Litman

Jessica Litman

From 1909 to 1930, U.S. courts grappled with claims by authors of prose works claiming that works in a new art form -- silent movies -- had infringed their copyrights. These cases laid the groundwork for much of modern copyright law, from their broad expansion of the reproduction right, to their puzzled grappling with the question how to compare works in dissimilar media, to their confusion over what sort of evidence should be relevant to show copyrightability, copying and infringement. Some of those cases – in particular, Nichols v. Universal Pictures – are canonical today. They are not, however, well-understood. In particular, the ...


Restoring Constitutional Equilibrium, Adam Lamparello 2014 SelectedWorks

Restoring Constitutional Equilibrium, Adam Lamparello

Adam Lamparello

In areas such as the Fourteenth Amendment, the Supreme Court's lack of institutional restraint has affected citizens of every political persuasion. In Bush v. Gore, the Florida Supreme Court’s recount order was blocked. ‘Liberals,’ lost. In Roe v. Wade, the Court required state legislatures to allow most abortions in the first trimester. ‘Conservatives’ lost. In Clinton v. City of New York and Citizens United v. Federal Election Commission, the coordinate branch’s attempt to ensure a more efficient and fairer government was thwarted. Average citizens lost. The problem is not a liberal or conservative one, whatever those words ...


Sherlock’S Admonition: Vindicatory Contempts As Criminal Actions For Purposes Of 11 U.S.C. § 362(B)(1), Amir Shachmurove 2014 SelectedWorks

Sherlock’S Admonition: Vindicatory Contempts As Criminal Actions For Purposes Of 11 U.S.C. § 362(B)(1), Amir Shachmurove

Amir Shachmurove

No abstract provided.


Economics Of Legal History, Daniel M. Klerman 2014 BLR

Economics Of Legal History, Daniel M. Klerman

University of Southern California Legal Studies Working Paper Series

This essay surveys economic analyses of legal history. In order to make sense of the field and to provide examples that might guide and inspire future research, it identifies and discusses five genres of scholarship.

1) Law as the dependent variable. This genre tries to explain why societies have the laws they do and why laws change over time. Early economic analysis tended to assume that law was efficient, while later scholars have usually adopted more realistic models of judicial and legislative behavior that take into account interest groups, institutions, and transactions costs.

2) Law as an independent variable. Studies ...


Professionalism For The 21st Century: Independence In Context, Rebecca Roiphe 2014 SelectedWorks

Professionalism For The 21st Century: Independence In Context, Rebecca Roiphe

Rebecca Roiphe

Most scholars condemn professionalism as self-serving, anti-competitive rhetoric. This Article argues that professionalism can be a positive and productive way of thinking about lawyers’ work. While it is undoubtedly true that the Bar has used the ideology of the professional role to support self-interested and bigoted causes, professionalism has also served as an important way of developing and marshalling group identity to promote useful ends. The critics of professionalism tend to view it as an ideology, according to which professionals, unlike businessmen, are concerned not with their own financial gain but with the good of their clients and the community ...


Free Exercise For Whom? -- Could The Religious Liberty Principle That Catholics Established In Perez V. Sharp. Also Protect Same-Sex Couples' Right To Marry?, Eric Alan Isaacson 2014 SelectedWorks

Free Exercise For Whom? -- Could The Religious Liberty Principle That Catholics Established In Perez V. Sharp. Also Protect Same-Sex Couples' Right To Marry?, Eric Alan Isaacson

Eric Alan Isaacson

Recent discussions about the threat that same-sex couples hypothetically pose to the religious freedom of Americans whose religions traditions frown upon same-sex unions have largely overlooked the possibility that same-sex couples might have their own religious-liberty interest in being able to marry. The General Synod of the United Church of Christ brought the issue to the fore with an April 2014 lawsuit challenging North Carolina laws barring same-sex marriages.

Authored by a lawyer who represented the California Council of Churches and other religions organizations as amici curiae in recent marriage-equality litigation, this article argues that although marriage is a secular ...


The Origins Of Affirmative Fiscal Action, Mirit Eyal-Cohen 2014 SelectedWorks

The Origins Of Affirmative Fiscal Action, Mirit Eyal-Cohen

Mirit Eyal-Cohen

This article highlights an anomaly. It shows that two tax rules aimed to achieve a similar goal were introduced at the same time. Both meant to be temporary and bring economic stimuli, but received a dramatically different treatment. The less efficient or economically inferior survived. Its superior counterpart did not. The article reviews the reasons for this paradox. It shows that the reason is both political and an agency problem. The article not only enriches an important and ongoing debate that has received much attention in recent years, but also provides important lessons to policymakers.


Representation In Context: Party Power And Lawyer Expertise, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark 2014 Georgetown University Law Center

Representation In Context: Party Power And Lawyer Expertise, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Georgetown Law Faculty Publications and Other Works

The questions when, why, and how legal representation makes a difference for parties in civil litigation remain largely unanswered, although recent scholarship raises compelling new questions and suggests new explanations and theoretical approaches. Understanding how legal representation operates, we argue, requires an appreciation for the context in which the representation actually takes place. This article examines two previously unexplored elements of the context of legal representation through empirical and theoretical analysis: the balance of power between the parties to a dispute and the professional, specifically strategic, expertise that a legal representative contributes. The results of a study of 1,700 ...


Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman 2014 SelectedWorks

Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Effective corporate governance is critical to the productive operation of the global economy and preservation of our way of life. Excellent governance execution is also required to achieve economic growth and robust job creation in any country. In the United States, the premier director membership organization is the National Association of Corporate Directors (NACD). Since 1978, NACD plays a major role in fostering excellence in corporate governance in the United States and beyond.

The NACD has grown from a mere realization of the importance of corporate governance to become the only national membership organization created by and for corporate directors ...


Balancing The Scales: Adhuc Sub Judice Li Est Or Trial By Media, Casey J. Cooper 2014 SelectedWorks

Balancing The Scales: Adhuc Sub Judice Li Est Or Trial By Media, Casey J. Cooper

Casey J Cooper

The right to freedom of expression and free press is recognized under almost all major human rights instruments and domestic legal systems—common and civil—in the world. However, what do you do when a fundamental right conflicts with another equally fundamental right, like the right to a fair trial? In the United States, the freedom of speech, encompassing the freedom of the press, goes nearly unfettered: the case is not the same for other common law countries. In light of cultural and historic facts, institutional factors, modern realities, and case-law, this Article contends that current American jurisprudence does not ...


False Persuasion, Superficial Heuristics, And The Power Of Logical Form To Test The Integrity Of Legal Argument, Stephen M. Rice 2014 Pace University

False Persuasion, Superficial Heuristics, And The Power Of Logical Form To Test The Integrity Of Legal Argument, Stephen M. Rice

Pace Law Review

This Article will generally describe philosophical logic, logical form, and logical fallacy. Further, it will explain one specific logical fallacy—the Fallacy of Negative Premises—as well as how courts have used the Fallacy of Negative Premises to evaluate legal arguments. Last, it will explain how lawyers, judges, and law students can use the Fallacy of Negative Premises to make and evaluate legal argument.


Riley V. California: Privacy Still Matters, But How Much And In What Contexts?, Adam Lamparello, Charles MacLean 2014 SelectedWorks

Riley V. California: Privacy Still Matters, But How Much And In What Contexts?, Adam Lamparello, Charles Maclean

Adam Lamparello

Private information is no longer stored only in homes or other areas traditionally protected from warrantless intrusion. The private lives of many citizens are contained in a digital device no larger than the palm of their hand—and carried in public places. But that does not make the data within a cell phone any less private, just as the dialing of a phone number does not voluntarily waive an individual’s right to keep their call log or location private. Remember that we are not talking about individuals suspected of committing violent crimes. The Government is recording the calls and ...


The Political Function Of Revelation: Lessons From The Hebrew Bible, Geoffrey P. Miller 2014 NELLCO

The Political Function Of Revelation: Lessons From The Hebrew Bible, Geoffrey P. Miller

New York University Public Law and Legal Theory Working Papers

This article examines the political theory of revelation in the narratives of the Hebrew Bible, particularly the theophany at Sinai. Revelation occurs when God communicates information to human beings. The biblical narratives use the modality of a revelation to signal the importance of the message being conveyed. They also identify techniques for limiting revelation’s destabilizing potential: embedding, which restricts God’s ability to change his mind; authentication, which tests the validity of revelations; and access rules which privilege political elites as recipients of God’s word.


Entender Los Males Economómicos Modernos A La Luz De La Doctrina Social Cátolica, Brian M. McCall 2014 University of Oklahoma College of Law

Entender Los Males Economómicos Modernos A La Luz De La Doctrina Social Cátolica, Brian M. Mccall

Brian M McCall

In a general sense, St. Thomas Aquinas predicted the paralysis and chaos of the financial and economic systems in America and Europe which occurred in 2008, when he predicted that in a society where unjust exchanges dominate, eventually all exchanges will cease. St. Thomas also points out that although human law cannot prohibit all injustice, society cannot escape the consequences of transgressing the divine law which leaves “nothing unpunished.” Thus, at least part of the explanation for that crises whose effects remain with us today lies in continuous violations of natural justice by our economic system. Neither one product nor ...


The Hearing Examiners And The Administrative Procedure Act, 1937-1960, Joanna L. Grisinger 2014 Pepperdine University

The Hearing Examiners And The Administrative Procedure Act, 1937-1960, Joanna L. Grisinger

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


The Emergence Of Constitutionalism As An Evolutionary Adaptation, Fabio P L Almeida 2014 SelectedWorks

The Emergence Of Constitutionalism As An Evolutionary Adaptation, Fabio P L Almeida

Fabio P L Almeida

The emergence of modern societies is an evolutionary puzzle. Homo sapiens is the only animal species capable of cooperating in large-scale societies consisting of genetically unrelated individuals. From a biological point of view, this feature leads to enormous questions. Social scientists typically assume that human life is lived in large-scale societies as a result of cultural, social and institutional history. In this perspective, social institutions such as law, economy and religion enhance cooperation to higher levels. Gene-culture coevolutionary theories have studied this issue in an integrated framework that accounts for social and biological theories of cooperation. These theoretical approaches have ...


Dred Scott: A Nightmare For The Originalists, Sol Wachtler 2014 Touro College Jacob D. Fuchsberg Law Center

Dred Scott: A Nightmare For The Originalists, Sol Wachtler

Touro Law Review

No abstract provided.


A Revolution At War With Itself? Preserving Employment Preferences From Weber To Ricci, Sophia Z. Lee 2014 University of Pennsylvania Law School

A Revolution At War With Itself? Preserving Employment Preferences From Weber To Ricci, Sophia Z. Lee

Faculty Scholarship

Two aspects of the constitutional transformation Bruce Ackerman describes in The Civil Rights Revolution were on a collision course, one whose trajectory has implications for Ackerman’s account and for his broader theory of constitutional change. Ackerman makes a compelling case that what he terms “reverse state action” (the targeting of private actors) and “government by numbers” (the use of statistics to identify and remedy violations of civil rights laws) defined the civil rights revolution. Together they “requir[ed] private actors, as well as state officials, to . . . realize the principles of constitutional equality” and allowed the federal government to “actually ...


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