Open Access. Powered by Scholars. Published by Universities.®

Legal History, Theory and Process Commons

Open Access. Powered by Scholars. Published by Universities.®

4,960 Full-Text Articles 2,789 Authors 1,574,027 Downloads 104 Institutions

All Articles in Legal History, Theory and Process

Faceted Search

4,960 full-text articles. Page 1 of 80.

The 100-Plus Year Old Case For A Minimalist Criminal Law (Sketch Of A General Theory Of Substantive Criminal Law), Michele C. Materni 2015 Harvard University

The 100-Plus Year Old Case For A Minimalist Criminal Law (Sketch Of A General Theory Of Substantive Criminal Law), Michele C. Materni

Mike C Materni

Criminal law defines the system of government of which it is the political expression; thus having a normative theory of substantive criminal law is paramount. U.S. criminal law has developed in the absence of such overarching theory, and is now plagued by overcriminalization. This article advances a model of a minimalist criminal law grounded on strong normative principles that are presented and defended not from the perspective of metaphysics or moral philosophy; but rather, in a historical and comparative perspective, as a matter of political choice. Core among those principles is the idea that in a liberal democracy the ...


The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt 2015 SelectedWorks

The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt

Mark P Nevitt

Climate change is the world’s greatest environmental threat. It also is increasingly understood as a threat to domestic and international peace and security. In recognition of this threat, the President has taken the initiative to prepare for climate change’s impact – in some cases drawing sharp objections from Congress. While both the President and Congress have constitutional authorities to address the national security threat posed by climate change, the precise contours of their overlapping powers are not clear. As Commander in Chief, the President has the constitutional authority to repel sudden attacks and take care that the laws are ...


From The Shoals Of Ras Kaboudia To The Shores Of Tripoli: The Tunisia/Libya Continental Shelf Boundary Delimitation, Donna R. Christie 2015 Florida State University

From The Shoals Of Ras Kaboudia To The Shores Of Tripoli: The Tunisia/Libya Continental Shelf Boundary Delimitation, Donna R. Christie

Georgia Journal of International & Comparative Law

No abstract provided.


Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence 2015 Michigan State University College of Law

Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence

Michael Anthony Lawrence

This Article looks back to the United States Supreme Court’s jurisprudence during the years 1953-1969 when Earl Warren served as Chief Justice, a period marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association and religion, voting rights, and more. The Article further discusses the constitutional bases for the Warren Court’s decisions, principally the Fourteenth Amendment equal protection and due process clauses.

The Article explains that the Warren Court’s equity-based jurisprudence closely resembles, at its root, the “justice-as-fairness” approach promoted in John Rawls’s monumental 1971 ...


The Dean Rusk Award 1983-1984: The Export Trading Company Act Of 1982: Theory And Application, Mark Grambergs 2015 University of Georgia School of Law

The Dean Rusk Award 1983-1984: The Export Trading Company Act Of 1982: Theory And Application, Mark Grambergs

Georgia Journal of International & Comparative Law

No abstract provided.


The Changing International Law Framework For Exports: The General Agreement On Tariffs And Trade, John H. Jackson 2015 University of Michigan

The Changing International Law Framework For Exports: The General Agreement On Tariffs And Trade, John H. Jackson

Georgia Journal of International & Comparative Law

No abstract provided.


The Challenge Of “Equal But Separate” In The Courthouse: A Lens For The Civil Rights Era, Jaimie K. McFarlin 2015 Harvard University

The Challenge Of “Equal But Separate” In The Courthouse: A Lens For The Civil Rights Era, Jaimie K. Mcfarlin

Jaimie K. McFarlin

This article serves to examine the role of the courthouse during the Jim Crow Era and the early stages of the Civil Rights Movement, as courthouses fulfilled their dual function of minstreling Plessy’s call for “equality under the law” and orchestrating overt segregation.


What The Constitution Means By “Duties, Imposts, And Excises”—And “Taxes” (Direct Or Otherwise), Robert G. Natelson 2015 Independence Institute

What The Constitution Means By “Duties, Imposts, And Excises”—And “Taxes” (Direct Or Otherwise), Robert G. Natelson

Robert G. Natelson

This Article recreates the original definitions of the U.S. Constitution’s terms “tax,” “direct tax,” “duty,” “impost,” “excise,” and “tonnage.” It draws on a greater range of Founding-Era sources than accessed heretofore, including eighteenth-century treatises, tax statutes, and literary source, and it corrects several errors made by courts and previous commentators. It concludes that the distinction between direct and indirect taxes was widely understood during the Founding Era, and that the term “direct tax” was more expansive than commonly realized.

The Article identifies the reasons the Constitution required that direct taxes be apportioned among the states by population. It ...


Recovery Of Damages For Lost Profits: The Historical Development, Robert M. Lloyd, Nicholas J. Chase 2015 University of Tennessee, Knoxville

Recovery Of Damages For Lost Profits: The Historical Development, Robert M. Lloyd, Nicholas J. Chase

Robert M Lloyd

ABSTRACT

Recovery of Damages for Lost Profits: The Historical Development

The rule of Hadley v. Baxendale is widely considered the most important rule of contract damages. In fact, however, the rule that damages must be proven with reasonable certainty is far more important in the modern practice of law. The reasonable certainty rule originated in Roman law and came to the common law through the civil law of Western Europe, developing first in the United States and spreading from the United States to England.

The rule of Hadley v. Baxendale developed much in the same way, and, contrary to popular ...


Redefining Professionalism, Rebecca Roiphe 2015 New York Law School

Redefining Professionalism, Rebecca Roiphe

Rebecca Roiphe

REdefining PRofessionalism

Abstract

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 ...


Does It Matter How One Opposes Memory Bans? A Commentary On Liberte Pour L'Histoire, Robert Kahn 2015 University of St. Thomas School of Law

Does It Matter How One Opposes Memory Bans? A Commentary On Liberte Pour L'Histoire, Robert Kahn

Robert Kahn

This paper examines Liberté pour l'Histoire, a group of French historians who led the charge against that nation’s memory laws, in the process raising unique arguments not found elsewhere in the debate over hate speech regulation. Some of these arguments – such as a focus on how the constitutional structure of the Fifth Republic encouraged memory laws – advance our understanding of the connection between hate speech bans and political institutions. Other arguments, however, are more problematic. In particular, Liberté historians struggle to distinguish the Holocaust (which is illegal to deny) from the Armenian Genocide (which is not). The Liberté ...


An Invisible Hand Behind: The Myth Of The Chinese Tax System, Yan XU 2015 SelectedWorks

An Invisible Hand Behind: The Myth Of The Chinese Tax System, Yan Xu

Yan XU

To the casual observer, China in 2014 bears little resemblance to imperial society in place two thousand years ago. The agrarian rural society that dominated until recently has shifted to an urbanized services and manufacturing society. The emperor is long dead, along with the Republic government that followedand the subsequent Communist regime has morphed into Party led oligarchy guiding a state controlled market economy. A closer look, however, reveals a remarkable continuity of features. It seems that some aspects of life in China are more resistant to change and the continuity of these features to today indicates that some fundamental ...


The Secret Economy Of Charitable Giving, Allison Anna Tait 2015 Columbia Law School

The Secret Economy Of Charitable Giving, Allison Anna Tait

Allison Anna Tait

Charitable giving is big business. In 2009, the Internal Revenue Service reported close to 100,000 private foundations, almost double the number from fifteen years earlier. Some of these charitable trusts, like the Gates Foundation, are multi-billion dollar enterprises. Trust instruments and other governing documents set forth the terms that control these gifts. Because charitable trusts can exist in perpetuity, however, changing circumstances sometimes render the terms difficult to fulfill. Courts can apply cy pres, a saving doctrine that allows for the modification of gift restrictions, but in the past courts have tended to apply cy pres narrowly and privilege ...


Trading Police For Soldiers: Has The Posse Comitatus Act Helped Militarize Our Police And Set The Stage For More Fergusons?, Arthur Rizer 2015 West Virginia University

Trading Police For Soldiers: Has The Posse Comitatus Act Helped Militarize Our Police And Set The Stage For More Fergusons?, Arthur Rizer

Arthur L. Rizer III

The recent protests, police overreaction, and subsequent riots in Ferguson, Missouri, demonstrated to Americans and to the world the true extent of the militarization of police in communities across the United States. Deployed throughout Ferguson, in preemption and then in response to protesters’ actions, were ranks of heavily armed, flak-jacketed, camouflage uniformed police standing atop and around armored personnel carriers with machine guns mounted. Such a response evidences that the line between police and soldiers in communities is blurring, if not blurred. This militarization is, in part, a result of a principle Americans have held dear since our founding, that ...


Preemption In The Rehnquist And Roberts Courts: An Empirical Analysis, Michael Greve, Jonathan Klick, Michael A. Petrino, J. P. Sevilla 2015 George Mason University

Preemption In The Rehnquist And Roberts Courts: An Empirical Analysis, Michael Greve, Jonathan Klick, Michael A. Petrino, J. P. Sevilla

Faculty Scholarship

This article presents an empirical analysis of the Rehnquist Court’s and the Roberts Court’s decisions on the federal (statutory) preemption of state law. In addition to raw outcomes for or against preemption, we examine cases by subject-matter, level of judicial consensus, tort versus regulatory preemption, party constellation, and origin in state or federal court. We present additional data and analysis on the role of state amici and of the U.S. Solicitor General in preemption cases, and we examine individual justices’ voting records. Among our findings, one stands out: over time and especially under the Roberts Court, lawyerly ...


Forum Selling, Daniel M. Klerman, Greg Reilly 2015 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, including 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, and ...


The End Of Law Schools, Ray Worthy Campbell 2015 Peking University School of Transnational Law

The End Of Law Schools, Ray Worthy Campbell

Ray W Campbell

Law schools as we know them are doomed. They continue to offer an educational model originally designed to prepare lawyers to practice in common law courts of a bygone era. That model fails to prepare lawyers for today’s highly specialized practices, and it fails to provide targeted training for the emerging legal services fields other than traditional lawyering.

This article proposes a new ideology of legal education to meet the needs of modern society. Unlike other reform proposals, it looks not to tweaking the training of traditional lawyers, but to rethinking legal education in light of a changing legal ...


Lessons In Fiscal Activism, Mirit Eyal-Cohen 2015 University of Alabama School of Law

Lessons In Fiscal Activism, 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 economically inferior rule survived while its superior counterpart did not. The article reviews the reasons for this paradox. It shows that the causes are 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.


Entre El Poder Y La Obediencia: El Gobierno En La España De Franco, Miguel Ángel Giménez Martínez 2015 Universidad de Castilla La Mancha

Entre El Poder Y La Obediencia: El Gobierno En La España De Franco, Miguel Ángel Giménez Martínez

Bulletin for Spanish and Portuguese Historical Studies

Resumen: De entre las instituciones políticas levantas por la dictadura de Franco, solo una llegó a alcanzar auténtica sustantividad: el Gobierno. Ante la inexistencia de partidos políticos y de un Parlamento democrático, el Consejo de Ministros del franquismo concentró simbólica y efectivamente todos los poderes. Sin embargo, la lógica autoritaria del sistema impidió que se desarrollara autónomamente como órgano colegiado, al encontrarse bajo la dirección del Jefe del Estado, autoridad suprema del régimen. Partiendo de un enfoque multidisciplinar que combina la exégesis de los textos legales con la revisión de las aportaciones doctrinales, este artículo analiza la paradójica situación del ...


Solicitors' Right To Advertise: A Historical And Comparative Analysis, M. Catherine Harris 2015 University of Georgia School of Law

Solicitors' Right To Advertise: A Historical And Comparative Analysis, M. Catherine Harris

Georgia Journal of International & Comparative Law

No abstract provided.


Digital Commons powered by bepress