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Looking Backward To Address The Future? Transitional Justice, Rising Crime And Nation Building, James L. Cavallaro 2017 University of Maine School of Law

Looking Backward To Address The Future? Transitional Justice, Rising Crime And Nation Building, James L. Cavallaro

Maine Law Review

This is not an Article about the Nazi regime’s war on crime, nor does it analyze the possible lawlessness of the Weimar Republic. It does, however, consider the role of crime in transitional states. As such, the observation above is relevant to the issues examined in the pages that follow. Crime and the manipulation of the fear it promotes were essential to the rise of Nazism, the fall of the Weimar Republic, and the historical record of both regimes. I contend that we must recognize the vital role of street crime in the stability and instability of newly democratic ...


The Legal Architecture Of Nation-Building: An Introduction, Charles H. Norchi 2017 University of Maine School of Law

The Legal Architecture Of Nation-Building: An Introduction, Charles H. Norchi

Maine Law Review

In the future, a historian studying the early twenty-first century will observe a trend: numerous lawyers applying their skill sets to the problems of pathological states. Our future historian will note that the topography of the post-Cold War international system was marked by weakly-governed states failing. Fragile states eroded, frayed, and disintegrated under stress, and their internal social processes became highly susceptible to external forces. Powerful non-state actors, including private armies, operated within the porous boundaries of entities that were once functioning polities. Legal authority became divorced from political control as non-state actors wielded naked power, challenging formal state structures ...


Women In The Legal Profession From The 1920s To The 1970s: What Can We Learn From Their Experience About Law And Social Change?, Cynthia Grant Bowman 2017 University of Maine School of Law

Women In The Legal Profession From The 1920s To The 1970s: What Can We Learn From Their Experience About Law And Social Change?, Cynthia Grant Bowman

Maine Law Review

I work in a law school building that is named for Jane M.G. Foster, who donated the money for its construction. It’s a lovely building, and my office overlooks a gorge so that I can hear the water fall as I write. So I’m grateful to Jane Foster. And curious. Who was she? Jane Foster graduated from Cornell Law School in 1918, having served as an editor of the law review and being elected to the Order of the Coif. But no law firm wanted her services. She obtained employment not as a lawyer but as a ...


Progressive Antitrust, Herbert J. Hovenkamp 2017 University of Pennsylvania Law School

Progressive Antitrust, Herbert J. Hovenkamp

Faculty Scholarship

Several American political candidates and administrations have both run and served under the “progressive” banner for more than a century, right through the 2016 election season. For the most part these have pursued interventionist antitrust policies, reflecting a belief that markets are fragile and in need of repair, that certain interest groups require greater protection, or in some cases that antitrust policy is an extended arm of regulation. This paper argues that most of this progressive antitrust policy was misconceived, including that reflected in the 2016 antitrust plank of the Democratic Party. The progressive state is best served by a ...


Gangs And The Culture Of Violence In El Salvador (What Role Did The Us Play?), Norma Roumie 2017 University of Windsor

Gangs And The Culture Of Violence In El Salvador (What Role Did The Us Play?), Norma Roumie

The Great Lakes Journal of Undergraduate History

Gang violence in El Salvador has resulted in conditions that have perpetuated an environment of terror and culture of violence. This paper aims to understand the emergence of transnational gangs in El Salvador and the US involvement in this process. The article is divided into the following subtitles; 1980s civil war and the repercussions of US involvement, Salvadorans migration to the US and reverse migration (with a focus on Los Angeles and San Salvador), and US exportation of heavy-handed policies to El Salvador’s institutionalized use of political violence. The paper concludes that US involvement in El Salvador created a ...


Rediscovering Senator Edmund Muskie, Kermit V. Lipez 2017 University of Maine School of Law

Rediscovering Senator Edmund Muskie, Kermit V. Lipez

Maine Law Review

I wish to begin my remarks by congratulating the Maine Law Review for sponsoring this important symposium on the legislative achievements of Senator Muskie. It is a well-deserved tribute during this 100th anniversary year of his birth. I also want to thank the Law Review for inviting me to give the opening remarks for the Symposium. It is a privilege to do so, and to speak in the presence of former Secretary of State Madeline Albright. We are all honored by her presence. I must acknowledge, however, that it is a daunting task to present these remarks in the presence ...


Textualism And The Problem Of Scrivener's Error, John David Ohlendorf 2017 University of Maine School of Law

Textualism And The Problem Of Scrivener's Error, John David Ohlendorf

Maine Law Review

Scrivener’s errors make easy prey for the gentle comedy of the bench and bar, much in the way that typographical errors in billboards, newspaper headlines, and church bulletins form an endless source of humor for late night talk show hosts. But theorists of legal interpretation have long seen that scrivener’s errors pose a more serious problem. The doctrine surrounding scrivener’s error stands considered as something of a cousin to the absurdity doctrine, which has roots extending to the earliest days of the American Republic. More recently, the post-legal-process revival of formalist approaches to statutory interpretation on the ...


Law In Books And Law In Action: The Problem Of Legal Change, Jean-Louis Halperin 2017 University of Maine School of Law

Law In Books And Law In Action: The Problem Of Legal Change, Jean-Louis Halperin

Maine Law Review

One hundred years ago, Roscoe Pound wrote his famous article, “Law in Books and Law in Action.” Considered an important step toward American legal realism, today this article is invoked more for its title than its content. I would argue that in the article, Pound did not clearly distinguish between two separate situations: (1) the departure of decisions of courts from statements of statutory (or constitutional) law, and (2) the discrepancy between doctrine in books and empirical data about law. This second observation has fed various strands of jurisprudence, if often only through the repetition of the well-quoted formula. It ...


The Progressives: Racism And Public Law, Herbert J. Hovenkamp 2017 University of Pennsylvania Law School

The Progressives: Racism And Public Law, Herbert J. Hovenkamp

Faculty Scholarship

American Progressivism inaugurated the beginning of the end of American scientific racism. Its critics have been vocal, however. Progressives have been charged with promotion of eugenics, and thus with mainstreaming practices such as compulsory housing segregation, sterilization of those deemed unfit, and exclusion of immigrants on racial grounds. But if the Progressives were such racists, why is it that since the 1930s Afro-Americans and other people of color have consistently supported self-proclaimed progressive political candidates, and typically by very wide margins?

When examining the Progressives on race, it is critical to distinguish the views that they inherited from those that ...


The Loving Analogy: Race And The Early Same-Sex Marriage Debate, Samuel W D Walburn 2017 Purdue University

The Loving Analogy: Race And The Early Same-Sex Marriage Debate, Samuel W D Walburn

The Purdue Historian

In the early same-sex marriage debates advocates and opponents of marriage equality often relied upon comparing mixed-race marriage jurisprudence and the Loving v Virginia decision in order to conceptualize same-sex marriage cases. Liberal commentators relied upon the analogy between the Loving decision in order to carve out space for the protection of same-sex marriage rights. Conservative scholars, however, denounced the equal protection and due process claims that relied on the sameness of race and sexuality as inexact parallels. Finally, queer and black radicals called the goal of marriage equality into question by highlighting the white supremacist and heterosexist nature of ...


Luther V. Borden: A Taney Court Mystery Solved, Louise Weinberg 2017 University of Texas Law School

Luther V. Borden: A Taney Court Mystery Solved, Louise Weinberg

Pace Law Review

It has not been generally remarked that Chief Justice Taney wrote surprisingly few of the Taney Court’s major opinions—those cases that tend to be anthologized and remembered by generalists. Those major cases which Taney did write are consistently about slavery (or states’ rights or state powers, which in Taney’s mind may have amounted to the same thing). There is a notable exception: Luther v. Borden—a case about the Guarantee Clause. This raises a question. Setting aside his opinions on slavery or states’ rights, what could have moved the author of Dred Scott, by consensus the worst ...


Eying The Body: The Impact Of Classical Rules For Demeanor Credibility, Bias, And The Need To Blind Legal Decision Makers, Daphne O’Regan 2017 Michigan State University College of Law

Eying The Body: The Impact Of Classical Rules For Demeanor Credibility, Bias, And The Need To Blind Legal Decision Makers, Daphne O’Regan

Pace Law Review

This Article focuses on law students and attorneys, not parties, witnesses, experts, and others. Part I briefly provides background: the pivotal role of classical rhetoric in western education, including the United States, the dispositive position of demeanor credibility in oral trial, and the persistent doubts about its reliability—doubts turned into certainty over two decades of research. Part II compares modern and ancient manuals to explain the rules of elite demeanor and its ideological claim to truth. Part III compares ancient and modern understanding of popular delivery; that is, choices in non-verbal communication that run counter to the elite rules ...


The Abraham Lincoln Lecture On Constitutional Law, Steven G. Calabresi 2017 Northwestern Pritzker School of Law

The Abraham Lincoln Lecture On Constitutional Law, Steven G. Calabresi

Northwestern University Law Review

These introductory remarks to the Inaugural Abraham Lincoln Lecture on Constitutional Law were delivered at Northwestern Pritzker School of Law on April 6, 2017.


Address At The Lincoln Charter Of The Forest Conference, Bishop Grosseteste University: The Charter Of The Forest: Evolving Human Rights In Nature, Nicholas A. Robinson 2017 Elisabeth Haub School of Law at Pace University

Address At The Lincoln Charter Of The Forest Conference, Bishop Grosseteste University: The Charter Of The Forest: Evolving Human Rights In Nature, Nicholas A. Robinson

Pace Law Faculty Publications

This conference is a singular event, long over due. It has been 258 years since William Blackstone celebrated “these two sacred charters,”1 Carta de Foresta and Magna Carta, with his celebrated publication of their authentic texts. In 2015, the Great Charter of Liberties enjoyed scholarly, political and popular focus. The companion Forest Charter was and is too much neglected.2 I salute the American Bar Association, and Dan Magraw, for the ABA’s educational focus of the Forest Charter, as well as Magna Carta. Today we restore some balance with this conference’s searching and insightful examination of the ...


Golden Gate University School Of Law: A Bridge To The Profession In The Heart Of San Francisco, Rachel A. Van Cleave 2017 Golden Gate University School of Law

Golden Gate University School Of Law: A Bridge To The Profession In The Heart Of San Francisco, Rachel A. Van Cleave

Golden Gate University Law Review

An over 115-year San Francisco institution devoted to opening legal education and the profession to people of diverse backgrounds and experiences, Golden Gate University School of Law (GGU Law) has been a cornerstone of the Bay Area legal community. GGU Law’s mission, graduates, and academic leaders have played an integral role to the fabric of the San Francisco Bay Area legal community and that has shaped a progressive use of the law that seeks to protect the rights of those who otherwise lack a strong political or legal voice. These contributions continue to reverberate throughout California and beyond. This ...


Tragedy, Outrage & Reform: Crimes That Changed Our World: 1983 – Thurman Beating - Domestic Violence, Paul H. Robinson, Sarah M. Robinson 2017 University of Pennsylvania Law School

Tragedy, Outrage & Reform: Crimes That Changed Our World: 1983 – Thurman Beating - Domestic Violence, 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 ...


Reasonable Patent Exhaustion, Herbert J. Hovenkamp 2017 University of Pennsylvania Law School

Reasonable Patent Exhaustion, Herbert J. Hovenkamp

Faculty Scholarship

A lengthy tug of war between the Supreme Court and the Federal Circuit Court of Appeals may have ended when the Supreme Court held that the sale of a patented article exhausts the patentee seller’s rights to enforce restrictions on that article through patent infringement suits. Further, reversing the Federal Circuit, the parties cannot bargain around this rule through the seller’s specification of conditions stated at the time of sale, no matter how clear. No inquiry need be made into the patentee’s market power, anticompetitive effects, or other types of harms, whether enforcement of the condition is ...


Trigger Crimes & Social Progress: The Tragedy-Outrage-Reform Dynamic In America, Paul H. Robinson, Sarah M. Robinson 2017 University of Pennsylvania Law School

Trigger Crimes & Social Progress: The Tragedy-Outrage-Reform Dynamic In America, 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. It is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of everyday existence but some crimes make people stop and take notice – because they are so outrageous or so heart-wrenching.

This brief essay explores the dynamic of tragedy, outrage, and reform, illustrating how certain kinds of crimes can trigger real social progress. Several dozen such “trigger crimes” are identified but four in particular are ...


The Changing View Of The “Bystander” In Holocaust Scholarship: Historical, Ethical, And Political Implications, Victoria J. Barnett 2017 Director of the United States Holocaust Memorial Museum’s Programs on Ethics, Religion, and the Holocaust

The Changing View Of The “Bystander” In Holocaust Scholarship: Historical, Ethical, And Political Implications, Victoria J. Barnett

Utah Law Review

The role of “bystanders” has been a central theme in discussions about the ethical legacy of the Holocaust. In early Holocaust historiography, “bystander” was often used as a generalized catchall term designating passivity toward Nazi crimes. “Bystander behavior” became synonymous with passivity to the plight of others, including the failure to speak out against injustice and/or assist its victims. More recent scholarship has documented the extent to which local populations and institutions were actively complicit in Nazi crimes, participating in and benefitting from the persecution of Jewish citizens, not only in Germany but across Europe. This newer research has ...


International Military Tribunals’ Genesis, Wwii Experience, And Future Relevance, Henry Korn 2017 SJ Quinney College of Law, University of Utah

International Military Tribunals’ Genesis, Wwii Experience, And Future Relevance, Henry Korn

Utah Law Review

Years after the prosecution of Nazi and Japanese war criminals, the United Nations created an International Criminal Tribunal as part of its commitment to bring to justice persons engaged in war crimes, as those crimes were defined during the WWII proceedings. Ultimately, specific tribunals, organized by the United Nations, were created to bring to justice war criminals. In 1993, a tribunal was formed to prosecute former Yugoslav officials and military personnel for atrocities committed during what is known as the Yugoslav wars. In 1994, a tribunal was formed to prosecute officials in Rwanda for evidence of ethnic genocides. There is ...


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