Digital Commons Network^™

Attorney Papers, History And Confidentiality: A Proposed Amendment To Model Rule 1.6, Patrick Shilling

Fordham Law Review

No abstract provided.

Listening For A Change: The Courts And Oral Tradition, John Borrows

Osgoode Hall Law Journal

Aboriginal oral history is a valuable source of information about a people's past. It can constitute important evidence as proof of prior events, and/or it can shed light on meanings groups give to their past. Despite its value, however, oral tradition presents particular challenges of admissibility and interpretation because of its unique source and transmission. This article outlines and discuses these challenges and suggests various approaches to better understand the insights contained within aboriginal history.

Aha? Is Creativity Possible In Legal Problem Solving And Teachable In Legal Education?, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

This article continues and expands on my earlier project of seeking to describe how legal negotiation should be understood conceptually and undertaken behaviorally to produce better solutions to legal problems. As structured problem solving requires interests, needs and objectives identification, so too must creative solution seeking have its structure and elements in order to be effectively taught. Because research and teaching about creativity and how we think has expanded greatly since modern legal negotiation theory has been developed, it is now especially appropriate to examine how we might harness this new learning to how we might examine and teach legal …

The Language Of Law And The Language Of Business, Spencer Weber Waller

Case Western Reserve Law Review

No abstract provided.

Irish Legal History: An Overview And Guide To The Sources, Janet Sinder

Faculty Scholarship

No abstract provided.

The Idea Of Adoption: An Inquiry Into The History Of Adult Adoptee Access To Birth Records, Elizabeth Samuels

All Faculty Scholarship

There has been in recent years and there continues to be intense debate around the country about whether to open original birth records to adult adoptees. Our understanding of the legal history relevant to the debate has been incomplete and inaccurate. According to this understanding, the state laws that closed court and birth records to the parties to adoptions generally closed these records for all time to all parties; the laws had a primary purpose of insuring lifelong anonymity for birth parents; and the laws became nearly universal by about the middle of the twentieth century. In fact, the history …

Two Views Of The River: A Critique Of The Liberal Defense Of Affirmative Action, Charles R. Lawrence Iii

Georgetown Law Faculty Publications and Other Works

In response to the attack on affirmative action at educational institutions, the argument that the benefits of diversity necessitate keeping affirmative action has emerged as the dominant defense of race-conscious admissions policies. Describing this argument as the “liberal defense of affirmative action,” Professor Lawrence critiques the liberal defense because it fails to challenge the manner in which traditional standards of merit perpetuate race and class privilege, and pushes aside more radically, substantive defenses of affirmative action which articulate the need to remedy past and ongoing discrimination. While recognizing the difficulties and ambivalence inherent in advancing a new vision for defending …

The Emperor's New Clothes: The Shocking Truth About Digital Signatures And Internet Commerce, Jane K. Winn

Articles

This Article critiques a specific set of assumptions about specific application of digital signature technology: that contracts will be formed over the Internet among parties with no prior relationships through reliance on digital signature certificates issued by trusted third parties to establish the identity of the parties. This application for digital signature technology was once seen as both its most ambitious and most promising application because, for parties with no prior knowledge of each other, there is not yet a reliable system of online identities in Internet commerce.

Parties with an ongoing commercial relationship can absorb the cost of offline …

The History Of The Judicial Review Of Administrative Power And The Future Of Regulatory Governance, John J. Coughlin

Journal Articles

Traditionally, judicial review has afforded an important check on the exercise of administrative power. First, judicial review functions to protect the legislative intent behind the statutory authorization of the exercise of administrative power. Pursuant to the conventional model, an administrative agency exercises restricted legislative and judicial functions under judicial scrutiny to insure compliance with congressional intent. Judicial review insures that "a congressional delegation of power . . . must be accompanied by discernible standards, so that the delegatee's action can be measured for its fidelity to the legislative will." Additionally, the opportunity for judicial review of administrative action corrects and …

Divorce And The Catholic Lawyer, John J. Coughlin

Journal Articles

On January 28, 2002, Pope John Paul II focused his annual address to the officials of the Roman Rota on the topic of the indissolubility of marriage. At the conclusion of this theological and canonical analysis, the Holy Father made a few short statements cautioning civil lawyers about divorces cases. The following day, a story in The New York Times carried the headline "John Paul Says Catholic Bar Must Refuse Divorce Cases." The article construed the pope's reference as a blanket prohibition against Catholic lawyers handling divorce cases. It further questioned whether the prohibition contradicted the Pontiff's prior emphasis on …

The Coptic Church In Egypt: A Comment On Protecting Religious Minorities Fiom Nonstate Discrimination, Scott Kent Brown Ii

BYU Law Review

No abstract provided.

Community Building In Ethically Restructured States: The Baltics, Dovile Budryte

Graduate Program in International Studies Theses & Dissertations

Drawing on democratic theory, this dissertation explores a thesis that the experience of ethnic restructuring significantly effects the ability of a democratizing state to successfully consolidate its emerging democracy. Ethnically restructured states, it is hypothesized, have an especially hard time creating inclusive democratic political communities, which is a necessary prerequisite for a consolidated democracy.

To test the thesis, the comparative case study method is applied to the ethnically restructured states of Latvia, Lithuania, and Estonia. The goal of the case studies is to examine the approaches that the Baltic states used to reduce polarization. The historical background to the case …

Gramsci, Hegemony, And The Law, Douglas Litowitz

BYU Law Review

No abstract provided.

Carl Schmitt: The Defective Guidance For The Critique Of Political Liberalism, Emanuel Richter

Cardozo Law Review

No abstract provided.

Franco's Spain, Queer Nation?, Gema Pérez-Sánchez

University of Michigan Journal of Law Reform

This Article discusses how, through its juridical apparatus, the Spanish dictatorship of Francisco Franco sought to define and to contain homosexuality, followed by examples of how underground queer activism contested homophobic laws. The Article concludes by analyzing a literary work to illustrate the social impact of Francoism's homophobic law against homosexuality.

International Citizenship: The Future Of Nationality In A Globalized World, Kim Rubenstein, Daniel Adler

Indiana Journal of Global Legal Studies

No abstract provided.

Culture, Nationhood, And The Human Rights Ideal, Berta Esperanza Hernández-Truyol, Sharon Elizabeth Rush

University of Michigan Journal of Law Reform

This Symposium on nation and culture illustrates these LatCrit goals and advances them. The two main works and the commentaries on them are rich explorations and representations of the voices and concerns of LatCrit theory. This Foreword engages all the works by focusing on the concept of voice and silence. Part I locates the works in the axis of silence and power. Part II explores how critical theory and international human rights norms can be used to develop a progressive methodology to analyze and detect the exclusion or silencing of myriad voices. This Part develops a LatCritical Human Rights paradigm …

Financial Liberalization, International Monetary Dis/Order, And The Neoliberal State, Timothy A. Canova

Faculty Scholarship

This article started as a plenary paper that was presented to the annual International Economic Law conference of the American Society of International Law. The conference itself posed the question of whether the new international economic order was leading to greater peace, stability, fairness and justice. At a time when American post-Cold War triumphalism was perhaps at its zenith, Canova answered with an unequivocal indictment of the global order for failing to deliver peace or justice. The first part of the article critiques the international monetary system, and argues that the primary negative consequence of capital liberalization is the undermining …

Savigny, Holmes, And The Law And Economics Of Possession, Richard A. Posner

Articles

No abstract provided.

Past-Dependency, Pragmatism, And Critique Of History In Adjudication And Legal Scholarship, Richard A. Posner

Articles

Using Nietzsche's great essay on the uses and disadvantages of history for life as his jumping-off point, Judge Posner examines the utility of the study of history for adjudication and legal scholarship. He argues, following Nietzsche; that the wrong kind of historical study can be very bad for "life " including law, while the right kind-the kind deployed by a pragmatic judge or a policy-oriented legal scholar-may deviate from literal accuracy in the direction of a rhetorical and imaginative narrative of historical events that can be constructively employed in a forward-looking approach to legal problems.

The Heavy Burden Of The State: Revisiting The History Of Labor Law In The Interwar Period, Christopher L. Tomlins

Seattle University Law Review

This Article reflects on possible conclusions to be drawn from this symposium. The article concludes that individually, these authors have demonstrated the returns to be gained by pushing labor law history into new empirical and conceptual areas. Collectively, however, their achievement is somewhat different, for collectively they recommend that we revisit what is ostensibly familiar to us.

Financial Liberalization, International Monetary Dis/Order, And The Neoliberal State, Timothy A. Canova

American University International Law Review

No abstract provided.

Taking Stock: New Views Of American Labor Law Between The World Wars, Daniel R. Ernst

Seattle University Law Review

This Article provides an introduction to the symposium. This symposium originated in a session at the annual meeting of the American Society for Legal History held in Seattle in October 1998. Entitled "Labor, Law, and the State in the Interwar Period," the panel provided four different views of a decisive period in the development of labor law in the United States. In the 1980s the panel's chair, Katherine Van Wezel Stone, and commentator, Christopher L. Tomlins, published works that helped spark a modern revival in the historical study of U.S. labor law. The authors of the four papers presented at …

The Marshall Court And Property Rights: A Reappraisal, 33 J. Marshall L. Rev. 1023 (2000), James W. Ely Jr.

UIC Law Review

No abstract provided.

War And Spending Prerogatives: Stages Of Congressional Abdication, Louis Fisher

Saint Louis University Public Law Review

No abstract provided.

Culture, Nationhood, And The Human Rights Ideal, Berta E. Hernández-Truyol, Sharon E. Rush

UF Law Faculty Publications

This paper was written as a part of a Symposium on Culture, Nation, and LatCrit (Latina/o Communities and Critical Race) Theory and focuses on the concept of voice and silence. Part I locates the works in the axis of silence and power. Part II explores how critical theory and international human rights norms can be used to develop a methodology to analyze and detect the exclusion or silencing of voices. A paradigm is developed that, by internationalizing voice, serves as a useful tool to explore power-based silencing. In Part III, the article illustrates how the proposed paradigm can focus the …

"We Do Not Preach, We Teach.": Religion Professors And The First Amendment, Leslie C. Griffin

Scholarly Works

No abstract provided.

Religion/Religions In The United States: Changing Perspectives And Prospects, Stephen J. Stein

Indiana Law Journal

Symposium: Religious Liberty at the Dawn of a New Millennium held at Indiana University School of Law-Bloomington on April 9, 1999.

Taking Stock: New Views Of American Labor Law Between The World Wars, Daniel R. Ernst

Georgetown Law Faculty Publications and Other Works

This symposium originated in a session at the annual meeting of the American Society for Legal History held in Seattle in October 1998. Entitled "Labor, Law, and the State in the Interwar Period," the panel provided four different views of a decisive period in the development of labor law in the United States. In the 1980s the panel's chair, Katherine Van Wezel Stone, and commentator, Christopher L. Tomlins, published works that helped spark a modern revival in the historical study of U.S. labor law. The authors of the four papers presented at the session were more recent entrants into the …

Environmental Law In Postcolonial Societies: Straddling The Local-Global Institutional Spectrum, Benjamin J. Richardson

Colorado Environmental Law Journal

No abstract provided.