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Finding Law, Stephen E. Sachs 2019 Duke Law School

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and ...


How The U.S. Supreme Court Deemed The Grand Bargain Adequate Without Defining Adequacy.Pdf, Michael C. Duff 2018 University of Wyoming College of Law

How The U.S. Supreme Court Deemed The Grand Bargain Adequate Without Defining Adequacy.Pdf, Michael C. Duff

Michael C Duff

During the second and third decades of the twentieth century, the U. S. Supreme Court issued a handful of opinions rejecting 14th Amendment constitutional challenges by employers to implementation of workers’ compensation statutes in the United States. Unknown to many, the statutes were largely the fruit of privately-sponsored investigations, principally by the Russell Sage Foundation and the National Association of Manufacturers, of European workers’ compensation systems during the first decade of the twentieth century. Some of those systems had been in existence since the 1870s and 1880s, and many employers preferred them to newly-emerging American employer liability statutes that retained ...


The Constitution To The Constitution, Mary Sarah Bilder 2018 Boston College Law School

The Constitution To The Constitution, Mary Sarah Bilder

Boston College Law School Faculty Papers

An overview of the reasons that the 1787 Constitution lacked the historical and legal assumptions that underlie our contemporary idea of "The Constitution." Appropriate for constitutional law courses and American history courses at the university and secondary levels.

Excerpted from essay originally published in The New England Quarterly as "The Ordeal and the Constitution" and lightly edited for coherence.


The Law Of Nations And The Constitution: An Early Modern Perspective, David M. Golove, Daniel Hulsebosch 2018 NYU School of Law

The Law Of Nations And The Constitution: An Early Modern Perspective, David M. Golove, Daniel Hulsebosch

New York University Public Law and Legal Theory Working Papers

Many American scholars, lawyers, and judges born in the latter half of the twentieth century have found it difficult to comprehend, or even recognize, the Founding generation’s commitment to the law of nations as a system of law, jurisprudence, and morality. Perhaps for similar reasons, that commitment tends to get lost in much modern historical writing. So, too, with respect to a related, but, from a legal perspective, more consequential aspect of the Founding: the prominent place of the law of nations in the constitutional reform project that culminated in the Philadelphia Convention. It was the uncertain struggle to ...


The Operational And Administrative Militaries, Mark P. Nevitt 2018 University of Pennsylvania Law School

The Operational And Administrative Militaries, Mark P. Nevitt

Faculty Scholarship

This Article offers a new way of thinking about the military. The U.S. military’s existing legal architecture arose from tragedy: in response to operational military failures in Vietnam, the 1980 failed Iranian hostage rescue attempt and other military misadventures, Congress revamped the Department of Defense (DoD)’s organization. The resulting law, the Goldwater-Nichols Act, formed two militaries within the DoD that endure to this day. These two militaries – the operational military and the administrative military – were once opaque to the outside observer but have emerged from the shadows in light of recent conflicts. The operational military remains the ...


A New Philosophy In The Supreme Court, Robert M. Sanger 2018 Santa Barbara College of Law

A New Philosophy In The Supreme Court, Robert M. Sanger

Robert M. Sanger

This is a positive article about the soon-to-be-newlyminted United States Supreme Court. No, this is not written by a guest columnist and, yes, the present author still holds progressive views regarding criminal justice. Assuming the Supreme Court and other branches of government continue to function – even if in less than an optimal fashion – we, as lawyers, have to work with what we have. We have a conservative Supreme Court with, presumably, conservative principles, and that is with which we must work. One of the characteristics often seen in individual Supreme Court Justices is the tendency to rise above the politics ...


The Forgotten Issue? The Supreme Court And The 2016 Presidential Campaign, Christopher W. Schmidt 2018 Chicago-Kent College of Law

The Forgotten Issue? The Supreme Court And The 2016 Presidential Campaign, Christopher W. Schmidt

Chicago-Kent Law Review

This Article considers how presidential candidates use the Supreme Court as an issue in their election campaigns. I focus in particular on 2016, but I try to make sense of this extraordinary election by placing it in the context of presidential elections over the past century.

In the presidential election of 2016, circumstances seemed perfectly aligned to force the Supreme Court to the front of public debate, but neither Donald Trump nor Hillary Clinton treated the Court as a central issue of their campaigns. Trump rarely went beyond a brief mention of the Court in his campaign speeches; Clinton basically ...


Will The Supreme Court Still “Seldom Stray Very Far”?: Regime Politics In A Polarized America, Kevin J. McMahon 2018 Trinity College

Will The Supreme Court Still “Seldom Stray Very Far”?: Regime Politics In A Polarized America, Kevin J. Mcmahon

Chicago-Kent Law Review

This Article examines the concept of a “minority Justice,” meaning a Supreme Court Justice appointed by a President who had failed to win the popular vote and confirmed with the support of a majority of senators who had garnered fewer votes in their most recent elections than their colleagues in opposition. Specifically, Neil Gorsuch was the first “minority Justice,” receiving the support of senators who had collected nearly 20 million fewer votes than those in opposition (54,098,387 to 73,425,062). From there, the Article considers the significance this development, first by examining some of the foundational work ...


The History, Meaning, And Use Of The Words Justice And Judge, Jason Boatright 2018 Texas Fifth Court of Appeals

The History, Meaning, And Use Of The Words Justice And Judge, Jason Boatright

St. Mary's Law Journal

The words justice and judge have similar meanings because they have a common ancestry. They are derived from the same Latin term, jus, which is defined in dictionaries as “right” and “law.” However, those definitions of jus are so broad that they obscure the details of what the term meant when it formed the words that eventually became justice and judge. The etymology of jus reveals the kind of right and law it signified was related to the concepts of restriction and obligation. Vestiges of this sense of jus survived in the meaning of justice and judge.

Although justice and ...


“Pernicious [E]Ffects”: Discretionary Decision-Making In Queer Immigration To Canada, Renata Colwell 2018 University of Victoria

“Pernicious [E]Ffects”: Discretionary Decision-Making In Queer Immigration To Canada, Renata Colwell

Western Journal of Legal Studies

Over the past sixty-five years, Canada’s official attitude towards queer immigration has undergone dramatic changes, from overt exclusion to ostensible welcome. However, discretionary decision-making has remained a constant component of the evolving immigration frameworks affecting queer immigrants, with negative repercussions for queer applicants. From 1952 to 2017, queer immigration to Canada has been plagued by arbitrariness, unaccountability, unpredictability, and administrative scope for discriminatory exercises of discretion by decision-makers, resulting in harms that range from stress and vulnerability to unjust exclusion. In charting future courses to improve immigration outcomes for queer applicants and refugee claimants who seek to join us ...


The Journey To Universal Legal Aid: Protecting The Criminally Accuseds' Charter Rights By Introducing A Public Defender System To Ontario, Benjamin D. Schnell 2018 Western University

The Journey To Universal Legal Aid: Protecting The Criminally Accuseds' Charter Rights By Introducing A Public Defender System To Ontario, Benjamin D. Schnell

Western Journal of Legal Studies

There is a significant gap between the demand for legal aid and Legal Aid Ontario (LAO)'s ability to fulfill that demand, meaning that there is a sizeable percentage of the population who, when facing criminal charges, neither qualify for legal aid nor can afford legal representation. This has the effect of denying the accused their Charter protected right to a fair trial and their ability to make full answer and defence, as studies show that a self-represented accused faces significant barriers at trial leading to negative outcomes. The few mechanisms available to help assist a self- represented accused with ...


50 Years Later—The State Of Civil Rights And Opportunity In America, Catherine E. Lhamon 2018 University of Minnesota Law School

50 Years Later—The State Of Civil Rights And Opportunity In America, Catherine E. Lhamon

Law & Inequality: A Journal of Theory and Practice

Abridged Transcript, The Summit for Civil Rights, November 9, 2017


A Conversation On Learning From The History Of The Civil Rights Movement, Walter F. Mondale 2018 University of Minnesota Law School

A Conversation On Learning From The History Of The Civil Rights Movement, Walter F. Mondale

Law & Inequality: A Journal of Theory and Practice

Introduction & Abridged Transcript, The Summit for Civil Rights, November 10, 2017


Of Queens, Incubi, And Whispers From Hell: Joan Of Arc And The Battle Between Orthopraxy And Theoretical Doctrine In Fifteenth Century France, Helen W. Tschurr 2018 University of Puget Sound

Of Queens, Incubi, And Whispers From Hell: Joan Of Arc And The Battle Between Orthopraxy And Theoretical Doctrine In Fifteenth Century France, Helen W. Tschurr

Honors Program Theses

This project focuses on examining the nuances of fifteenth century religious gender theory through an exploration of the Trial of Condemnation (unduly maligned in the historiography) against Joan of Arc. Employing a lens of the theological concept of the “Bride of Christ,” (as defined by Dylan Elliot, Johanne Chamberlyne, Gilbert of Hoyland, and Peter Abelard) in studying this text, as well as the contemporary pro-Joan propaganda texts of Christine de Pizan, Jacques Gelu, and Jean Gerson,suggest a departure from current historiographical positions on medieval perceptions of gender and sex identity. Both Joan (in the trial) and her popular supporters ...


The Nuremberg Trials Project At Harvard Law School: Making History Accessible To All, Judith A. Haran 2018 Harvard Law School

The Nuremberg Trials Project At Harvard Law School: Making History Accessible To All, Judith A. Haran

Journal of Contemporary Archival Studies

This article is primarily a case study of the Nuremberg Trials Project at the Harvard Law School Library in Cambridge, Massachusetts. It begins with an historical note about the war crimes trials and their documentary record, including the fate of the several tons of trial documents that were distributed in 1949. The second part of the article is a description of the Harvard Law School Nuremberg project, including its history, goals, logistical considerations, digitization process and challenges, and resulting impact. The structure and function of the project website is described, followed by a description of a typical user experience, the ...


The Library Of Robert Morris, Civil Rights Lawyer & Activist, Laurel Davis, Mary Sarah Bilder 2018 Boston College Law School

The Library Of Robert Morris, Civil Rights Lawyer & Activist, Laurel Davis, Mary Sarah Bilder

Boston College Law School Faculty Papers

This article analyzes the Robert Morris library, the only known extant, antebellum, African American-owned library. The seventy-five titles, including two unique pamphlet compilations, reveal Morris’s intellectual commitment to full citizenship, equality, and participation for people of color. The article provides a model for the interpretation of lawyers' libraries.


Eckart Otto, Das Deuteronomium: Politische Theologie Und Rechtsreform In Juda Und Assyrien, Steven W. Holloway 2018 James Madison University

Eckart Otto, Das Deuteronomium: Politische Theologie Und Rechtsreform In Juda Und Assyrien, Steven W. Holloway

Steven W Holloway

No abstract provided.


“Who Will Judge The Many When The Game Isthrough?”: Considering The Profound Differencesbetween Mental Health Courts And “Traditional”Involuntary Civil Commitment Courts, Michael L. Perlin 2018 Seattle University School of Law

“Who Will Judge The Many When The Game Isthrough?”: Considering The Profound Differencesbetween Mental Health Courts And “Traditional”Involuntary Civil Commitment Courts, Michael L. Perlin

Seattle University Law Review

For forty years, we have known that involuntary civil commitment hearings are—in most jurisdictions—“charades.” When the Supreme Court noted, in Parham v. J.R., that the average length of a civil commitment hearing ranged from 3.8 to 9.2 minutes, the reaction of many who had done these cases was, “What? So long?!” The characterization of such hearings as being a “greased runway” to a state institution has never been disputed. Lawyers representing these individuals were bored or contemptuous; judges simply wanted to get cases moving; opposing counsel looked at their wrist watches to see when the ...


What Can The Legal Profession Learn From The Medical Profession About The Next Steps?, Dr. Eric Holmboe, Dr. Robert Englander 2018 University of St. Thomas, Minnesota

What Can The Legal Profession Learn From The Medical Profession About The Next Steps?, Dr. Eric Holmboe, Dr. Robert Englander

University of St. Thomas Law Journal

No abstract provided.


After Ten Years: The Carnegie Report And Contemporary Legal Education, William M. Sullivan 2018 University of St. Thomas, Minnesota

After Ten Years: The Carnegie Report And Contemporary Legal Education, William M. Sullivan

University of St. Thomas Law Journal

No abstract provided.


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