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Understanding Political Systems: A Comment On Methods Of Comparative Research, T. Koopmans 2015 Court of Justice of the European Communities

Understanding Political Systems: A Comment On Methods Of Comparative Research, T. Koopmans

Georgia Journal of International & Comparative Law

No abstract provided.


The Bank-Centered View Of The Money Market, Part I: Why Banks Are Different, Carolyn Sissoko 2015 University of Southern California

The Bank-Centered View Of The Money Market, Part I: Why Banks Are Different, Carolyn Sissoko

University of Southern California Legal Studies Working Paper Series

This paper introduces modern readers to the basic understanding of the banking system that was held by academics and practitioners in the early years of the 20th century – that is, to traditional banking theory. This theory is completely inconsistent with the theoretic framework that views banks as financial intermediaries that receive deposits and invest those deposits in assets. Thus, this paper first sets forth in detail the basic elements of traditional banking theory and then relates those elements to the modern network effects literature. From this a bank-centered view of the money market is derived: all demand and short-term bank ...


Originalism And The Ratification Of The Fourteenth Amendment, Thomas B. Colby 2015 Northwestern University School of Law

Originalism And The Ratification Of The Fourteenth Amendment, Thomas B. Colby

Northwestern University Law Review

No abstract provided.


Procedure And Pragmatism, Stephen B. Burbank 2015 University of Pennsylvania Law School

Procedure And Pragmatism, Stephen B. Burbank

Faculty Scholarship

In this essay, prepared as part of a festschrift for the Italian scholar, Michele Taruffo, I portray him as a pragmatic realist of the sort described by Richard Posner in his book, Reflections on Judging. Viewing him as such, I salute Taruffo for challenging the established order in domestic and comparative law thinking about civil law systems, the role of lawyers, courts and precedent in those systems, and also for casting the light of the comparative enterprise on common law systems, particularly that in the United States. Speaking as one iconoclast of another, however, I also raise questions about Taruffo ...


Dogging Darwin: America's Revolt Against The Teaching Of Evolution, J. Herbie DiFonzo, Ruth C. Stern 2015 Hofstra University Law School

Dogging Darwin: America's Revolt Against The Teaching Of Evolution, J. Herbie Difonzo, Ruth C. Stern

J. Herbie DiFonzo

Abstract

More than four in ten Americans believe that God created humans in their present form 10,000 years ago. American antagonism toward the teaching of evolution is deeply rooted in fundamentalist tradition and an aversion to intellectualism. These forces have combined to demonize Charles Darwin to such an extent that sectarian-based legal and political attacks on evolution show no signs of abating. Darwin’s day in court began in 1925 with the famous Scopes Monkey Trial. It continued into the 21st century with Kitzmiller v. Dover Area Schools. Throughout, the core creationist agenda has remained the same, although ...


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

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 School

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 University of Michigan

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 ...


Systemic Lying, Julia Simon-Kerr 2015 The University of Connecticut School of Law

Systemic Lying, Julia Simon-Kerr

Julia Simon-Kerr

This Article offers the foundational account of systemic lying from a definitional and theoretical perspective. Systemic lying involves the cooperation of multiple actors in the legal system who lie or violate their oaths across cases for a consistent reason that is linked to their conception of justice. It becomes a functioning mechanism within the legal system and changes the operation of the law as written. By identifying systemic lying, this Article challenges the assumption that all lying in the legal system is the same. It argues that systemic lying poses a particular threat to the legal system. This means that ...


Twenty-Nine Events In Ten Projects (Or Discrete Event States) 1781-1846, Peter J. Aschenbrenner 2015 Purdue University

Twenty-Nine Events In Ten Projects (Or Discrete Event States) 1781-1846, Peter J. Aschenbrenner

Peter J. Aschenbrenner

From 1781 through 1846 American public officials wrestled with the problem of creating and managing a national banking institution that would serve the needs of the federal government. The twenty-nine relevant official events (legislation, presidential approvals/vetoes, court cases) are divided into ten separate Discrete Event States, as the national government attempted to charter or recharter these institutions, along with the relevant sources and dates.


Apellate Division, Third Department, People V. Kelley, Elyssa Lane 2014 Touro College Jacob D. Fuchsberg Law Center

Apellate Division, Third Department, People V. Kelley, Elyssa Lane

Touro Law Review

No abstract provided.


Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz 2014 Touro Law Center

Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz

Touro Law Review

No abstract provided.


Book Review: Studies In Roman Law In Memory Of A. Arthur Schiller, Leiden, E.J. Brill, 1986. By Roger S. Bagnall And William V. Harris. Leiden, Netherlands: E.J. Brill Co., 1986., Richard J. Cummins 2014 University of Georgia School of Law

Book Review: Studies In Roman Law In Memory Of A. Arthur Schiller, Leiden, E.J. Brill, 1986. By Roger S. Bagnall And William V. Harris. Leiden, Netherlands: E.J. Brill Co., 1986., Richard J. Cummins

Georgia Journal of International & Comparative Law

No abstract provided.


Book Review: Stalking Phaedrus: International Legal Structures. David Kennedy. Baden-Baden: Nomos Verlagsgesellschaft, 1987. Pp. 294. 69,-Dm., David J. Bederman 2014 Iran-United States Claims Tribunal, The Hague

Book Review: Stalking Phaedrus: International Legal Structures. David Kennedy. Baden-Baden: Nomos Verlagsgesellschaft, 1987. Pp. 294. 69,-Dm., David J. Bederman

Georgia Journal of International & Comparative Law

No abstract provided.


Forum Selling, Daniel M. Klerman, Greg Reilly 2014 USC Law School

Forum Selling, Daniel M. Klerman, Greg Reilly

University of Southern California Legal Studies Working Paper Series

Forum shopping is problematic because it may lead to forum selling. For diverse motives, such as prestige, local benefits, or re-election, some judges want to hear more cases. When plaintiffs have wide choice of forum, such judges have incentives to make the law more pro-plaintiff, because plaintiffs choose the court. While only a few judges may be motivated to attract more cases, their actions can have large effects, because their courts will attract a disproportionate share of cases. For example, judges in the Eastern District of Texas have distorted the rules and practices relating to case assignment, joinder, discovery, transfer ...


Handcuffed Nation, Francois Quintard-Morenas 2014 Dechert LLP

Handcuffed Nation, Francois Quintard-Morenas

Francois Quintard-Morenas

Across the nation, children, teenagers, women, men, and elderly posing no threat or risk of escape are handcuffed by police officers upon arrest for minor offenses. This phenomenon has received little attention from legal scholars.

Since the nineteenth century, the common law has been that police officers cannot handcuff arrestees absent special circumstances. This principle prevails in most common law jurisdictions, but it has nearly vanished in the United States.

A close examination of the judicial response to the handcuffing of arrestees reveals that judges apply selective case memory rather than fundamental principles of justice in their adjudication. This has ...


Judicial Review And Judicial Supremacy, Jeremy Waldron 2014 NYU Law School

Judicial Review And Judicial Supremacy, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

This paper attempts to identify a particular constitutional evil -- namely, judicial supremacy -- and to distinguish the objection to judicial supremacy from the broader case that can be made against judicial review. Even if one supports judicial review, one ought to have misgivings about the prospect of judicial supremacy. The paper associates judicial supremacy with three distinct tendencies in constitutional politics: (1) the temptation of courts to develop and pursue a general program (of policy and principle of their own) rather than just to intervene on a piecemeal basis; (2) the tendency of the highest court to become not only supreme ...


What Do The Philosophers Have Against Dignity?, Jeremy Waldron 2014 NYU Law School

What Do The Philosophers Have Against Dignity?, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

Among analytic philosophers, there is considerable antipathy towards the concept of human dignity. It is not always expressed, but the impression is conveyed that this is a rather disreputable idea and that its trumpeting in legal and political theory is to be deplored. The present paper tries to get to grips with the sources of this antipathy. Is it based on the unclarity of the concept, its religious overtones, its speciesism, or its redundancy as a moral idea. The paper makes a case for dignity as a status-concept -- denoting a particular sort of moral/legal status that all humans have.


Duty-Bearers For Positive Rights, Jeremy Waldron 2014 NYU Law School

Duty-Bearers For Positive Rights, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

Claims about social and economic rights (as a kind of human right) are often criticized because they fail to specify who are the bearers of the corresponding duties. We usually say that states are the duty-bearers, but it may not be possible for a poor state to bear the burden of these rights. And anyway it may be a mistake to focus exclusively on states in an age of globalization. This paper uses some analytic ideas from the 1970s and 1980s to address this problem. Drawing on the work of Neil MacCormick and Joseph Raz, it argues that it is ...


Building Legal Order In Ancient Athens, Federica Carugati, Gillian K. Hadfield, Barry R. Weingast 2014 Independent

Building Legal Order In Ancient Athens, Federica Carugati, Gillian K. Hadfield, Barry R. Weingast

University of Southern California Legal Studies Working Paper Series

How do societies establish and maintain internal order and stability? Contemporary scholarship associates stability, order, and growth with modern, centralized legal institutions–-including formal courts, public prosecutors, and expert judges. These institutions have proven hard to establish in most developing countries. Democratic Athens in the classical period (ca. 508-323 BC) was remarkably stable and prosperous, but the polis never developed modern, centralized legal institutions. How, then, did Athens establish and maintain order and stability? In this paper, we investigate ancient Athens using the theoretically grounded “what-is-law” account of legal order elaborated by Hadfield and Weingast (HW, 2012). The model shows ...


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