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Senator Edmund Muskie's Enduring Legacy In The Courts, Richard J. Lazarus 2017 University of Maine School of Law

Senator Edmund Muskie's Enduring Legacy In The Courts, Richard J. Lazarus

Maine Law Review

More than any other legislator in the nation’s history, Senator Ed Muskie is environmental law’s champion. Over forty years ago, Muskie helped secure passage of an extraordinary series of ambitious and demanding air and water pollution control laws that sought no less than to redefine the relationship of humankind here in the United States to our natural environment. The upshot has been the nation’s enjoyment, for more than four decades, of enormous economic growth without the kind of accompanying environmental destruction witnessed during the same time period in the nations lacking such controls. While President Richard Nixon ...


Edmund S. Muskie: A Man With A Vision, Leon G. Billings 2017 University of Maine School of Law

Edmund S. Muskie: A Man With A Vision, Leon G. Billings

Maine Law Review

At Senator Muskie’s funeral I noted that I had been on his staff for fifteen years, but had worked for him for thirty. In a way I am still working for him, or at lease, because of him. This fall my colleague and minority counsel, Tom Jorling, and I are team-teaching a course entitled “Origins of Environmental Law” at Columbia University. Preparing for that course, reading old memos to the Senator, re-reading his floor statements, interrogatories, and speeches and going back to the transcripts of Subcommittee discussion has been revealing, inspiring, and refreshing. I am not sure that, at ...


Edmund S. Muskie: The Environmental Leader And Champion, Joel K. Goldstein 2017 University of Maine School of Law

Edmund S. Muskie: The Environmental Leader And Champion, Joel K. Goldstein

Maine Law Review

Leon Billings has referred to Edmund S. Muskie as America’s “most important environmental leader”1 and Richard Lazarus has called him “environmental law’s champion.”2 Indeed he was. Their essay in this volume make evident Muskie’s enormous and enduring legacy in shaping the environmental laws that have protected health and life for more than forty years and the remarkable extent to which executive agencies and courts continue to look and rely upon the work he did roughly four decades ago. To the extent there are inadequacies in the regulatory regime, Muskie cannot fairly be blamed. He left ...


Connecting Law And Legislature: The Legacy Of Ed Muskie, Samuel J. Baldwin 2017 University of Maine School of Law

Connecting Law And Legislature: The Legacy Of Ed Muskie, Samuel J. Baldwin

Maine Law Review

Edmund Muskie’s work impacts each of our lives, every day. The truth of this statement should become apparent as one explores the topics addressed in this symposium issue of the Maine Law Review, presented in honor of the centennial of Muskie’s birth. And yet, among the great American politicians, he may seem forgotten. His memory is in many ways confined to those who were present for his rise to national prominence in the 1960s, and to those steeped in environmental law, Maine political history, or one of the other fields in which he was most active. I will ...


United States V. The William And The Phenomena Of Jury Nullification In Early 19th Century America, Michael G. Lederman 2017 University of Maryland Francis King Carey School of Law

United States V. The William And The Phenomena Of Jury Nullification In Early 19th Century America, Michael G. Lederman

Legal History Publications

In September 1808, Judge John Davis upheld the constitutionality of the Embargo Act of 1807 under the Constitution’s Article I, Section 8, Clause 3 Interstate Commerce power. Judge Davis’s original opinion curiously lacks any reference to Marbury v. Madison. Judge Davis defends judicial review and rejects the notion of jury nullification. While Judge Davis upheld the embargo’s constitutionality, a subsequent jury trial on the facts resulted in the return of The William to its rightful owners. This case reflects the attempts by early American judges to carve out the power of judicial review and maintain the appearance ...


Appraising The Progressive State, Herbert J. Hovenkamp 2017 University of Pennsylvania Law School

Appraising The Progressive State, Herbert J. Hovenkamp

Faculty Scholarship

Since it origins in the late nineteenth century, the most salient characteristics of the progressive state have been marginalism in economics, greatly increased use of scientific theory and data in policy making, a commitment to broad participation in both economic and political markets, and a belief that resources are best moved through society by many institutions in addition to traditional markets.. These values have served to make progressive policy less stable than classical and other more laissez faire alternatives. However, the progressive state has also performed better than alternatives by every economic measure. One of the progressive state’s biggest ...


The History Of The Florida Supreme Court, M C. Mirow 2017 Florida International University College of Law

The History Of The Florida Supreme Court, M C. Mirow

Faculty Publications

This article describes the challenges to writing the history of Florida's colonial courts in the Spanish and British periods from 1513 to 1821. These courts are an important yet understudied aspect of Florida legal history.


Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff 2017 University of Pennsylvania Law School

Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff

Faculty Scholarship

For seventy-five years, Klaxon v. Stentor Electric Manufacturing has provided a one-line answer to choice-of-law questions in federal diversity cases: Erie Railroad v. Tompkins requires the federal court to employ the same law that a court of the state would select. The simplicity of the proposition likely accounts for the unqualified breadth with which federal courts now apply it. Choice of law doctrine is difficult, consensus in hard cases is elusive, and the anxiety that Erie produces over the demands of federalism tends to stifle any reexamination of core assumptions. The attraction of a simple answer is obvious. But Klaxon ...


Book Review, Justin R. Huckaby 2017 Mississippi College School of Law

Book Review, Justin R. Huckaby

Journal Articles

In Conventional Wisdom: The Alternate Article V Mechanism for Proposing Amendments to the U.S. Constitution, John R. Vile discusses the thus-far unused Article V convention method of amending the U.S. Constitution. The book focuses on what an Article V convention could be and what parameters it might entail. Could such a convention be limited in scope, or must it be general in nature? Vile considers these questions and the literature behind them to develop his own interpretation of an Article V convention and how it should be implemented.


Mother. Orator. Woman Suffrage Leader: The Feminist Legacy Of Elizabeth Cady Stanton, Paula A. Monopoli 2017 University of Maryland School of Law

Mother. Orator. Woman Suffrage Leader: The Feminist Legacy Of Elizabeth Cady Stanton, Paula A. Monopoli

Faculty Scholarship

No abstract provided.


Apple Of Gold And Picture Of Silver: How Abraham Lincoln Would Analyze The Fourteenth Amendment's Equal Protection Clause, Frank J. Williams, William D. Bader, Andrew Blais 2017 Rhode Island Supreme Court, Ret. Chief Justice

Apple Of Gold And Picture Of Silver: How Abraham Lincoln Would Analyze The Fourteenth Amendment's Equal Protection Clause, Frank J. Williams, William D. Bader, Andrew Blais

Roger Williams University Law Review

No abstract provided.


Contemplating Masterpiece Cakeshop, Terri R. Day 2017 Barry University

Contemplating Masterpiece Cakeshop, Terri R. Day

Faculty Scholarship

No abstract provided.


I Dissent: The Federal Circuit’S “Great Dissenter,” Her Influence On The Patent Dialogue, And Why It Matters, 19 Vand. J. Ent. & Tech. 873 (2017), Daryl Lim 2017 John Marshall Law School

I Dissent: The Federal Circuit’S “Great Dissenter,” Her Influence On The Patent Dialogue, And Why It Matters, 19 Vand. J. Ent. & Tech. 873 (2017), Daryl Lim

Faculty Scholarship

This Article is the first study to comprehensively explore the centrality of the patent dialogue at the Court of Appeals for the Federal Circuit, the nation’s principal patent court from empirical, doctrinal, and policy perspectives. It offers several insights into how the Federal Circuit reaches consensus and when it does not, serving as a window into its inner workings, a reference to academics, judges, and attorneys alike. More broadly, this Article provides a template to study the “legal dialogue” of other judges at the Federal Circuit, those in other Circuits, as well as those in other areas of the ...


Celebrating Masters & Johnson’S Human Sexual Response: A Washington University Legacy In Limbo, Susan Ekberg Stiritz, Susan Frelich Appleton 2017 Brown School of Social Work, Washington University in St. Louis

Celebrating Masters & Johnson’S Human Sexual Response: A Washington University Legacy In Limbo, Susan Ekberg Stiritz, Susan Frelich Appleton

Washington University Journal of Law & Policy

This Essay discusses how institutions devise traditions and celebrations within the context of protecting established hierarchies of power and privilege. Appleton and Stiritz bring to light the research of William Masters and Virginia Johnson and their publication of Human Sexual Response. The authors argue that Masters and Johnson’s work should be institutionally recognized and celebrated by Washington University. The Essay discusses how Washington University’s neglect has impacted Masters and Johnson’s narrative and reflects upon how their legacy was instead highlighted in the popular Showtime series Masters of Sex. Finally, the Essay reflects upon what might have been ...


Washington University School Of Law’S Global Trajectory, Leila Nadya Sadat 2017 Washington University School of Law

Washington University School Of Law’S Global Trajectory, Leila Nadya Sadat

Washington University Journal of Law & Policy

This Essay discusses the changing nature of legal education, focusing on the movement from national to global law schools, specifically within the context of globalization. Sadat details the development of international and comparative legal education at Washington University and reflects on their benefit to the School’s reputation. Sadat closes with a discussion of “Global Trumpism,” its potential impact on the Pax Americana, and the resulting effect on Washington University’s international and comparative legal education programs.


Universal Clinic Legal Education: Necessary And Feasible, Robert R. Kuehn 2017 Washington University School of Law

Universal Clinic Legal Education: Necessary And Feasible, Robert R. Kuehn

Washington University Journal of Law & Policy

This Essay analyzes the data surrounding clinical education in law schools. Kuehn compares the legal education experience to other professional schools, noting that the legal field does not take the steps to prepare law students for the professional field that other schools do. Kuehn argues that a mandated clinical experience for all students is both not costly to obtain and feasible to immediately implement. Kuehn concludes his argument by calling for required clinical training in ABA-approved law schools to ensure practice-ready professionals.


Embracing New (And Old) Ideas, James E. Daily 2017 Washington University School of Law

Embracing New (And Old) Ideas, James E. Daily

Washington University Journal of Law & Policy

This Essay, by James E. Daily, lecturer at Washington University School of Law, identifies current declines in the demand for legal education and the greater job market offers a possible solution—re-introducing the LL.B degree. Daily looks at the historical increases in demand that led to the acceptance of the J.D. as the standard law degree required for practice. Daily proposes law schools should re-organize the current J.D. program to become a research or theory-focused advanced degree, and re-introduce the LL.B undergraduate LL.B degree that integrates the use and creation of new technologies in legal ...


The Return Of The Self, Or Whatever Happened To Postmodern Jurisprudence, Stephen M. Feldman 2017 University of Wyoming

The Return Of The Self, Or Whatever Happened To Postmodern Jurisprudence, Stephen M. Feldman

Washington University Jurisprudence Review

Postmodern jurisprudence was all the rage in the 1990s. Two of the most renowned postmodernists, Stanley Fish and Pierre Schlag, both persistently criticized mainstream legal scholars for believing they were modernist selves—independent, sovereign, and autonomous agents who could remake the social and legal world merely by writing a law review article. Then Fish and Schlag turned on each other. Each attacked the other for making the same mistake: harboring a modernist self. I revisit this skirmish for two reasons. First, it helps explain the current moribund state of postmodern jurisprudence. If two of the leading postmodernists could not avoid ...


Do Criminal Background Checks In Hiring Punish?, Michael A. C. Lee 2017 Washington University School of Law

Do Criminal Background Checks In Hiring Punish?, Michael A. C. Lee

Washington University Jurisprudence Review

Criminal background checks in the hiring process make it more difficult for former offenders to obtain employment at their market skill level. As a result, many former offenders end up underemployed or unemployed altogether. This obstacle to finding gainful employment is a harm, and this harm directly follows from a former offender’s criminal conviction. The harm can therefore be thought of as part of the punishment imposed on criminal offenders. However, unlike the formal punishment that a criminal offender receives through his sentence, the harm that follows the offender as he seeks employment after he has completed his formal ...


Are We Adopting The Orphans, Or Creating Them? Medical Ethics And Legal Jurisprudential Guidance For Proposed Changes To The Orphan Drug Act, Lydia Raw 2017 Washington University School of Law

Are We Adopting The Orphans, Or Creating Them? Medical Ethics And Legal Jurisprudential Guidance For Proposed Changes To The Orphan Drug Act, Lydia Raw

Washington University Jurisprudence Review

This Note traces the subtle changes in the underlying purposes of the Orphan Drug Act, and evaluates those purposes from the perspectives of medical ethics and legal jurisprudence. Part I begins with the history of the Orphan Drug Act discussed issue by issue, to elucidate the subtle changes in the purpose of the Orphan Drug Act through its history. Part II explores the moral and ethical issues presented by the Orphan Drug Act to identify eleven guiding principles from medical ethics and legal jurisprudence. Lastly, Part III applies these guiding principles to the most common proposed amendments to the Orphan ...


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