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A Structual Etiology Of The U.S. Constitution, Charles Lincoln 2016 Notre Dame Law School

A Structual Etiology Of The U.S. Constitution, Charles Lincoln

Journal of Legislation

This article offers an interpretation of the problems addressed by and the eventual purpose of the United States government. Simultaneously, it seeks to analyze and explain the continued three-part structure of the United States federal government as outlined in the Constitution. Subsequently I define the three parts of the federal government—judiciary, executive, and legislative—as explained through the lens of the Platonic paradigm of (logos = word = law), (thymos = external driving spirit = executive), and (eros = general welfare = legislative) extrapolated from Plato’s dialogues.

First, the article establishes Plato’s theory of the three-part Platonic soul as a major premise, as ...


Tragedy, Outrage & Reform Crimes That Changed Our World: 1911 – Triangle Factory Fire – Building Safety Codes, Paul H. Robinson, Sarah M. Robinson 2016 University of Pennsylvania Law School

Tragedy, Outrage & Reform Crimes That Changed Our World: 1911 – Triangle Factory Fire – Building Safety Codes, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

They offer some incredible stories about how people, good and bad, change the world around ...


State-Action Immunity And Section 5 Of The Ftc Act, Daniel A. Crane, Adam Hester 2016 University of Michigan Law School

State-Action Immunity And Section 5 Of The Ftc Act, Daniel A. Crane, Adam Hester

Michigan Law Review

The state-action immunity doctrine of Parker v. Brown immunizes anticompetitive state regulations from preemption by federal antitrust law so long as the state takes conspicuous ownership of its anticompetitive policy. In its 1943 Parker decision, the Supreme Court justified this doctrine, observing that no evidence of a congressional will to preempt state law appears in the Sherman Act’s legislative history or context. In addition, commentators generally assume that the New Deal court was anxious to avoid re-entangling the federal judiciary in Lochner-style substantive due process analysis. The Supreme Court has observed, without deciding, that the Federal Trade Commission ...


Law And Modernization In China: The Juridical Behavior Of The Chinese Communists, Daniel J. Hoffheimer 2016 University of Georgia School of Law

Law And Modernization In China: The Juridical Behavior Of The Chinese Communists, Daniel J. Hoffheimer

Georgia Journal of International & Comparative Law

No abstract provided.


Beyond Punks In Empty Chairs: An Imaginary Conversation With Clint Eastwood’S Dirty Harry—Toward Peace Through Spiritual Justice, Mark L. Jones 2016 University of Massachusetts School of Law

Beyond Punks In Empty Chairs: An Imaginary Conversation With Clint Eastwood’S Dirty Harry—Toward Peace Through Spiritual Justice, Mark L. Jones

University of Massachusetts Law Review

This Article is based on a presentation at the 2012 conference on “Struggles for Recognition: Individuals, Peoples, and States” co-sponsored by Mercer University, the Concerned Philosophers for Peace, and the Carnegie Council for Ethics in International Affairs, and it seeks to help combat our human tendency to demonize the Other and thus to contribute in some small way to the reduction of unnecessary conflict and violence. The discussion takes the form of a conversation in a bar between four imagined protagonists, who have participated in the conference, and Clint Eastwood’s Dirty Harry, who is having a bad day questioning ...


Lawyers And Biblical Prophets, Thomas L. Shaffer 2016 Notre Dame Law School

Lawyers And Biblical Prophets, Thomas L. Shaffer

Thomas L. Shaffer

This is part of a broader exploration of the suggestion that the biblical prophets-Moses, Isaiah, Jeremiah, Amos, Nathan, and the others-are sources of ethical reflection and moral example for modern American lawyers. The suggestion appears to be unusual; I am not sure why. The Prophets were, more than anything else, lawyers-as their successors, the Rabbis of the Talmud, were. They were neither teachers nor bureaucrats, not elected officials or priests or preachers. And the comparison is not an ancient curiosity: Much of what admirable lawyer-heroes have done in modern America has been prophetic in the biblical sense-that is, what they ...


John Brown's Constitution, Robert L. Tsai 2016 Selected Works

John Brown's Constitution, Robert L. Tsai

Robert L Tsai

It will surprise many Americans to learn that before John Brown and his men briefly captured Harpers Ferry, they authored and ratified a Provisional Constitution. This deliberative act built upon the achievements of the group to establish a Free Kansas, during which time Brown penned an analogue to the Declaration of Independence. These writings, coupled with Brown’s trial tactics after his arrest, cast doubts on claims that the man was a lunatic or on a suicide mission. Instead, they suggest that John Brown aimed to be a radical statesman, one who turned to extreme tactics but nevertheless remained committed ...


The Appropriations Power And Sovereign Immunity, Paul F. Figley, Jay Tidmarsh 2016 Washington College of Law, American University

The Appropriations Power And Sovereign Immunity, Paul F. Figley, Jay Tidmarsh

Paul Figley

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence-or nonexistence-of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690- 1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English ...


"Within The Limits Of The Constitutional Grant": Constitutional Limitations On The Patent Power, Edward C. Walterscheid 2016 University of Georgia School of Law

"Within The Limits Of The Constitutional Grant": Constitutional Limitations On The Patent Power, Edward C. Walterscheid

Journal of Intellectual Property Law

No abstract provided.


Smith And Hogan At Villanova: Reflections On Anglo-American Criminal Law, The Definition Of Rape, And What America Still Needs To Learn From England, Michelle Madden Dempsey 2016 Villanova University Charles Widger School of Law

Smith And Hogan At Villanova: Reflections On Anglo-American Criminal Law, The Definition Of Rape, And What America Still Needs To Learn From England, Michelle Madden Dempsey

Villanova Law Review

No abstract provided.


The Armstrong Evolution, Michael Pappas 2016 University of Maryland Francis King Carey School of Law

The Armstrong Evolution, Michael Pappas

Endnotes

No abstract provided.


The Law (?) Of The Lincoln Assassination, Martin S. Lederman 2016 Georgetown University Law Center

The Law (?) Of The Lincoln Assassination, Martin S. Lederman

Georgetown Law Faculty Publications and Other Works

Shortly after John Wilkes Booth killed Abraham Lincoln, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theater. Johnson’s decision implicated a fundamental constitutional question that had been a source of heated debate throughout the Civil War: When, if ever, may the federal government circumvent Article III’s requirements of a criminal trial by jury, with an independent, tenure-protected judge presiding, by trying individuals other than members of the armed forces in a ...


On The Incoherence Of Legal Positivism, John M. Finnis 2016 Notre Dame Law School

On The Incoherence Of Legal Positivism, John M. Finnis

John M. Finnis

No abstract provided.


The Environmentalist Attack On Environmental Law, John Copeland Nagle 2016 Notre Dame Law School

The Environmentalist Attack On Environmental Law, John Copeland Nagle

John Copeland Nagle

This essay reviews two books written by leading scholars that express profound dissatisfaction with the ability of environmental law to actually protect the environment. Mary Wood’s “Nature’s Trust: Environmental Law for a New Ecological Age” calls for “deep change in environmental law,” emphasizing the roles that agency issuance of permits to modify the environment and excessive deference to agency decisions play in ongoing environmental destruction. Wood proposes a “Nature’s Trust” built on the public trust doctrine to empower courts to play a much more aggressive role in overseeing environmental decisionmaking. In “Green Governance: Ecological Survival, Human Rights ...


Auctioning Class Settlements, Jay Tidmarsh 2016 Notre Dame Law School

Auctioning Class Settlements, Jay Tidmarsh

Jay Tidmarsh

Although they promise better deterrence at a lower cost, class actions are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class (the class representative and class counsel) advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class-action reform proposals. This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea ...


A Process Theory Of Torts, Jay Tidmarsh 2016 Notre Dame Law School

A Process Theory Of Torts, Jay Tidmarsh

Jay Tidmarsh

No abstract provided.


Lost Fidelities, Barry Cushman 2016 Notre Dame Law School

Lost Fidelities, Barry Cushman

Barry Cushman

Owen Roberts was accused of a variety of things in 1937, but “fidelity” was not among them. Justice Harlan Fiske Stone and Professor Felix Frankfurter were among many who accused Roberts of performing, as Frankfurter put it, a jurisprudential “somersault” “incapable of being attributed to a single factor relevant to the professed judicial process.” To Frankfurter, it was “all painful beyond words,” and gave him “a sickening feeling which is aroused when moral standards are adulterated in a convent.” Yet when Roberts announced his retirement from the Court eight years later, Chief Justice Stone, along with now-Justices Frankfurter and Robert ...


If George Washington Did It, Does That Make It Constitutional? : History's Lessons For Wartime Military Tribunals, Martin S. Lederman 2016 Georgetown University Law Center

If George Washington Did It, Does That Make It Constitutional? : History's Lessons For Wartime Military Tribunals, Martin S. Lederman

Georgetown Law Faculty Publications and Other Works

Congress has recently authorized military commissions to try individuals for domestic-law offenses—such as providing material support to terrorism, and conspiring to commit law-of-war offenses—in addition to offenses against the international laws of war. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution guarantees. The constitutionality of such an abrogation of Article III’s criminal-trial guarantees has been debated in many of the Nation’s wars, without clear resolution. The Article III question is now the subject of a potentially landmark case, al Bahlul v. United States, that the Supreme Court may ...


A “Second Magna Carta”: The English Habeas Corpus Act And The Statutory Origins Of The Habeas Privilege, Amanda L. Tyler 2016 University of California Berkeley Law School

A “Second Magna Carta”: The English Habeas Corpus Act And The Statutory Origins Of The Habeas Privilege, Amanda L. Tyler

Notre Dame Law Review

In my own scholarship, Fallon and Meltzer’s work on habeas models prompted me to dig deeper into the historical backdrop that informed ratification of the Suspension Clause and think harder about the relevance of that history for questions of constitutional interpretation. This, in turn, has spurred work that has occupied me for many years since. In the spirit of engaging with my federal courts professor one more time, this Article tells the story of the statutory origins of the habeas privilege—what Blackstone called a “second magna carta”—and argues that any explication of the constitutional privilege and discussion ...


Newsroom: Time: Bogus On Second Amendment 09/28/2016, Arica L. Coleman, Roger Williams University School of Law 2016 TIME Magazine

Newsroom: Time: Bogus On Second Amendment 09/28/2016, Arica L. Coleman, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


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