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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 ...


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


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

The Two Militaries: Operational And Administrative, 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 ...


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.


Building On The Professionalism Foundation Of Best Practices For Legal Education, Paula Schaefer 2018 University of St. Thomas, Minnesota

Building On The Professionalism Foundation Of Best Practices For Legal Education, Paula Schaefer

University of St. Thomas Law Journal

No abstract provided.


Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger 2018 Northwestern Pritzker School of Law

Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger

Northwestern University Law Review

The litigation campaign that led to McCleskey v. Kemp did not begin as an anti-death-penalty effort. It grew in soil long washed in the blood of African-Americans, lynched or executed following rude semblances of trials and hasty appeals, which had prompted the NAACP from its very founding to demand “simple justice” in individual criminal cases. When the Warren Court signaled, in the early 1960s, that it might be open to reflection on broader patterns of racial discrimination in capital sentencing, the NAACP Legal Defense & Educational Fund, Inc. (LDF) began to gather empirical evidence and craft appropriate constitutional responses. As that effort built, other deficiencies in state capital states became apparent, and LDF eventually asserted a broader constitutional critique of state capital structures and processes. By 1967, LDF and its allies had developed a nationwide “moratorium” campaign that challenged death sentencing statutes in virtually every state.

Though the campaign appeared poised for partial success in 1969, changes in Court personnel and shifts in the nation’s mood dashed LDF’s initial hopes. Yet unexpectedly, in 1972, five Justices ruled in Furman v. Georgia that all death sentences and all capital statutes nationwide would fall under the Eighth Amendment’s prohibition against cruel and unusual punishments. Each of the nine Furman Justices wrote separately, without a single governing rationale beyond their expressed uneasiness that the death penalty was being imposed infrequently, capriciously, and in an arbitrary manner. Thirty-five states promptly enacted new and revised capital statutes. Four years later, a majority of the Court held that three of those new state statutes met Eighth and Fourteenth Amendment standards. The 1976 Court majority expressed confidence that the states’ newly revised procedures should work to curb the arbitrariness and capriciousness that had earlier troubled the Furman majority.

The McCleskey case emerged from subsequent review of post-Furman sentencing patterns in the State of Georgia. A brilliant and exhaustive study by Professor David Baldus and his colleagues demonstrated that the Court’s assumptions in 1976 were wrong; strong racial disparities in capital sentencing continued to persist statewide in Georgia—especially in cases in ...


Southern Slavery And Antebellum Law: Modifications Suited To The State And Master Class, Steven J. Casement 2018 Le Moyne College

Southern Slavery And Antebellum Law: Modifications Suited To The State And Master Class, Steven J. Casement

#History: A Journal of Student Research

This paper deals with the complexity of the legal system in the American South during the Antebellum period. The laws put in place by the various Southern states during this era were constructed locally, and were a delicate balance of planters’ property rights, the need for slave regulation, and evangelical desire to defend their own way of life. But, the resulting outcome was the same in each case. The Southern states continuously pushed laws that reinforced the authority of the master with the help of political economists, judges, lawmakers, and of course the master class itself. Therefore, this paper emphasizes ...


Sky Is The Limit: Protecting Unaccompanied Minors By Not Subjecting Them To Numerical Limitations, Deborah S. Gonzalez Esq. 2018 Roger Williams University School of LAw

Sky Is The Limit: Protecting Unaccompanied Minors By Not Subjecting Them To Numerical Limitations, Deborah S. Gonzalez Esq.

St. Mary's Law Journal

Abstract forthcoming


Whistleblowers—A Case Study In The Regulatory Cycle For Financial Services, Ronald H. Filler, Jerry W. Markham 2018 Brooklyn Law School

Whistleblowers—A Case Study In The Regulatory Cycle For Financial Services, Ronald H. Filler, Jerry W. Markham

Brooklyn Journal of Corporate, Financial & Commercial Law

The Securities and Exchange Commission and the Commodity Futures Trading Commission were directed by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) to create whistleblower protection programs that reward informants with massive bounty payments. At the time of its passage, the Dodd-Frank Act was a highly controversial statute that was passed on partisan lines. Its whistleblowing authority was one of its “most contentious provisions.” As the result of the 2016 elections, the Dodd-Frank Act has come under renewed attack in Congress and by the new Trump administration. The stage is being set for possible repeal of ...


Living The World War - A Retrospective, Donald N. Zillman, Elizabeth Elsbach 2018 University of Maine School of Law

Living The World War - A Retrospective, Donald N. Zillman, Elizabeth Elsbach

Maine Law Review

Living the World War is a 1200-page, two volume study of America’s participation in World War I. The week-by-week review tries to place the reader in the position of an American citizen of a century ago who “lived” the War years without knowing what might come next. The authors’ sources are the daily editions of the New York Times and the pages of the Congressional Record—two documents available to the informed citizen of 1916 to 1919. The crucial issues of a century ago have helped shape American law and policy that is relevant today to such issues as ...


Distant Voices Then And Now: The Impact Of Isolation On The Courtroom Narratives Of Slave Ship Captives And Asylum Seekers, Tara Patel 2018 University of Michigan Law School

Distant Voices Then And Now: The Impact Of Isolation On The Courtroom Narratives Of Slave Ship Captives And Asylum Seekers, Tara Patel

Michigan Journal of Race and Law

Part I compares the nineteenth century cases of the Antelope and the Amistad to identify why they resulted in different outcomes despite having similar fact patterns. The Antelope concerned the fate of approximately 280 African captives discovered on a slave trade ship upon its interception by a U.S. revenue cutter. Since the slave trade in the United States was illegal at the time, the captives were transported to Savannah for trial through which their status—free or slave—would be determined. After a lengthy trial and appeals process in which Spain and Portugal laid claim to the captives, the ...


Syria Under Pinheiro: Reformulating Syrian Domestic Law For Decentralized Reconstruction, George Somi 2018 Brooklyn Law School

Syria Under Pinheiro: Reformulating Syrian Domestic Law For Decentralized Reconstruction, George Somi

Brooklyn Journal of International Law

According to the United Nations High Commissioner for Refugees; since 2011; the Syrian conflict has generated roughly 5.4 million refugees; while approximately 6.5 million people are internally displaced within the country; making it the largest internally displaced population in the world. Rebuilding Syria’s infrastructure; homes; and businesses will be an immense task; with cost estimates ranging between $250–$350 billion USD. The Syrian government and the international community have already started to contemplate postwar reconstruction and even wartime reconstruction; despite the ongoing fighting. This Note operates under the assumption that the Syrian government of President Bashar al-Assad ...


The Architecture Of Law: Building Law In The Classical Tradition, Brian M. McCall 2018 University of Oklahoma

The Architecture Of Law: Building Law In The Classical Tradition, Brian M. Mccall

Brian M McCall

The Architecture of Law explores the metaphor of law as an architectural building project, with eternal law as the foundation, natural law as the frame, divine law as the guidance provided by the architect, and human law as the provider of the defining details and ornamentation. Classical jurisprudence is presented as a synthesis of the work of the greatest minds of antiquity and the medieval period, including Cicero, Artistotle, Gratian, Augustine, and Aquinas; the significant texts of each receive detailed exposition in these pages.
Along with McCall’s development of the architectural image, he raises a question that becomes a ...


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