Digital Commons Network^™

Cases And Case-Lawyers, Richard A. Danner

Faculty Scholarship

In the nineteenth century, the term “case-lawyer” was used as a label for lawyers who seemed to care more about locating precedents applicable to their current cases than understanding the principles behind the reported case law. Criticisms of case-lawyers appeared in English journals in the late 1820s, then in the United States, usually from those who believed that every lawyer needed to know and understand the unchanging principles of the common law in order to resolve issues not found in the reported cases. After the Civil War, expressions of concern about caselawyers increased with the significant growth in the amount …

When Judges Don't Follow The Law: Research And Recommendations, Michele Cotton

City University of New York Law Review

No abstract provided.

The Second Amendment Standard Of Review After Mcdonald: "Historical Guideposts" And The Missing Arguments In Mcdonald V. City Of Chicago, Patrick J. Charles

ConLawNOW

In this article, Patrick Charles addresses the first step in analyzing Second Amendment challenges – whether the challenged conduct was “publicly accepted” or “publicly understood” as within the scope of the Second Amendment, circa 1791. This article also analyzes two premises on which the McDonald plurality based its decision, ultimately concluding that those premises are inaccurate. In his opinion, Justice Alito asserted that State constitutions at the time of the founding generally protected an individual right to keep and bear arms. However, an in-depth examination of all State constitutional provisions suggests otherwise. Secondly, John Bingham’s understanding of what the Fourteenth …

Originalism And Its Tools: A Few Caveats, David T. Hardy

ConLawNOW

In District of Columbia v. Heller, the United States Supreme Court adopted original public understanding as an interpretative tool. While this approach has the virtue of establishing meaning independent of a court’s personal values and preferences, this article explores some hazards which courts should try to avoid. First, one must resist the temptation to see historians as invariably objective; some are apt to push a personal agenda, or get a reputation as a “debunker,” at the cost of distorting, overlooking, or even inventing the historical record. Historical studies of this type have misled the Ninth Circuit, and a dissent …

Historicism And Holism: Failures Of Originalist Translation, Jonathan Gienapp

Fordham Law Review

    For as long as the U.S. Constitution has existed, Americans have appealed to the history of its creation to interpret its meaning. But only since the advent of originalism—the well-known constitutional theory that requires interpreting the Constitution today in accordance with its original meaning—has historical study been so immediately implicated by constitutional interpretation. Despite potential, though, for meaningful exchange between originalists and historians, little has taken place. That originalism plays an ever-growing role in contemporary political culture only makes the lack of dialogue all the more unfortunate.

Indorsing Infant Immunity: An Argument For Criminalizing Parents' Refusal To Immunize Their Children, Megan Elyse Waterman

Tulsa Law Review

No abstract provided.

Does The Punishment Fit The Crime?: A Comparative Note On Sentencing Laws For Murder In England And Wales Vs. The United States Of America, Megan Elizabeth Tongue

Missouri Law Review

This Note explores the differences between the American legal system’s sentencing procedures for murder with the procedures of England and Wales. This Note attempts to determine how this divide occurred and whether the two countries chose the appropriate way to sentence their murderers. In particular, this Note focuses on England’s and Wales’s lack of degrees of murder and the United States’ practice of plea bargaining. Part II discusses the history of American and English criminal law and how these countries similarly evolved from their origins to the late nineteenth century. Part III explores modern criminal law theory progressing from the …

International Criminal Law’S Millennium Of Forgotten History, Ziv Bohrer

Faculty Colloquia

No abstract provided.

Book Reviews, Usawc Parameters

The US Army War College Quarterly: Parameters

No abstract provided.

Executive Privilege: A Review Of Berger, R. H. Clark

Akron Law Review

RAOUL BERGER HAS ONCE AGAIN placed within a solidly professional framework an issue of considerable public interest and debate. As was the case with impeachment,' Berger's scholarly study on executive privilege brings to the controversy surrounding the issue a much needed analytical construct and massing of evidence which can only result in a greater level of general understanding. Although it is not accurate to suggest that Berger is neutral on the topic, since he published a significant study as far back as 1965 attacking the concept, 2 his method of massing every conceivable argument and piece of evidence on both …

Assessing The Role Of History In The Federal Courts Canon: A Word Of Caution, Amanda L. Tyler

Notre Dame Law Review

In undertaking historical inquiry in the field of federal courts, one must be careful about assigning certain data points from the Founding period determinative weight, rather than treating them as part of a larger conversation about the role of the judicial power in our constitutional framework. This is because in studying the early years following ratification of the Constitution, one tends to find both examples of major principles that remained the subject of disagreement as well as examples of early legislation and practices that today we would reject as plainly inconsistent with the constitutional separation of powers. In support of …

Law's Acceleration Of Finance: Redefining The Problem Of High-Frequency Trading, Frank Pasquale

Cardozo Law Review

High-frequency traders automate stock trading, placing thousands of orders over fractions of a second. Their algorithmic strategies are all too often mere rule manipulation or methods of using brute speed to gain advantages over rivals. Normative evaluation of finance's algorithms must take into account the sector's social function: to spur efficient, fair, and sustainable investment practices. The complex modeling deployed in high-frequency trading does not reliably contribute to these goals. Therefore, rather than straining to accommodate high-frequency trading strategies, regulators should eliminate many of them.

International Trade V. International Property Lawyers: Globalization And The Brazilian Legal Profession, Vitor Martins Dias

Maurer Theses and Dissertations

This work analyzes a distinctive characteristic of the globalizing Brazilian legal profession. Namely, intellectual property (IP) lawyers who once were leaders in opening the Brazilian economy and were key players in cross-border transactions are now losing ground to their peers with an expertise in international trade. The thesis of this article is that the manner in which Brazilian lawyers are being educated is in shambles. Generally speaking, Brazilian legal education has, overall, become degraded and provincial. Yet, Brazilian international trade lawyers, unlike Brazilian IP-lawyers, have overcome their deficient legal training by seeking legal education abroad. By traveling overseas, especially to …

Law's Acceleration Of Finance: Redefining The Problem Of High-Frequency Trading, Frank Pasquale

Faculty Scholarship

No abstract provided.

The Process And Outcome Of Negotiations With Multinational Corporations: A Conceptual Framework For Analysis, T. M. Ocran

Akron Law Review

The essential purpose of this paper is to provide a conceptual framework for case studies aimed at outlining the main stages in the process of negotiations; indicating some of the main factors affecting the relative bargaining position of the parties to negotiations with multinational corporations; and providing indices for evaluating the resulting structure of the distribution of gains from the projects contemplated by such negotiations. The paper thus combines elements from the second, third and fourth categories of studies on negotiations.

Originalism As Thin Description: An Interdisciplinary Critique, Saul Cornell

Res Gestae

My essay was intended as a critique of originalism from the perspective of intellectual history. I pointed out that originalism lacked a rigorous empirical method for analyzing what texts meant in the past. I suppose in some sense it is flattering that Solum has devoted much of his recent article to an attack on my earlier essay. Of course, flattery aside, it would have been more useful if Solum had stated my thesis correctly. For purposes of clarity, I have juxtaposed Solum’s description of my argument with what my essay actually said. Readers will be able to judge for themselves …

The Problems Of Gender Inequality Raised By Unmarried Couples In Liberia, Yah-Yeplah Dolo-Barbu

Maurer Theses and Dissertations

No abstract provided.

Bridging The Gap: Rethinking Outreach For Greater Access To Justice, Rebecca L. Sandefur

University of Arkansas at Little Rock Law Review

No abstract provided.

A Triptych Of Regulators: A New Perspective On The Administrative State, Yair Sagy

Akron Law Review

In combining past and present perspectives, this Article makes an important contribution to the literature: by isolating the three general prototypes pervading the literature, it introduces a greater degree of theoretical precision to the understanding of public regulation, and goes on to demonstrate how current regulatory schemes can be better understood using the triad of prototypes. This Article also suggests why we can expect these types to persist in future public regulation. At the same time, this Article joins and contributes to the study of the intellectual history of U.S. regulation by identifying deep undercurrents running throughout that history.

A Triptych Of Regulators: A New Perspective On The Administrative State, Yair Sagy

Akron Law Review

In combining past and present perspectives, this Article makes an important contribution to the literature: by isolating the three general prototypes pervading the literature, it introduces a greater degree of theoretical precision to the understanding of public regulation, and goes on to demonstrate how current regulatory schemes can be better understood using the triad of prototypes. This Article also suggests why we can expect these types to persist in future public regulation. At the same time same time, this Article joins and contributes to the study of the intellectual history of U.S. regulation by identifying deep undercurrents running throughout that …

The Fourteenth Amendment And The Unconstitutionality Of Secession, Daniel A. Farber

Akron Law Review

To understand fully the relevance of the first two clauses of the Fourteenth Amendment to secession, we need to examine the antebellum disputes about citizenship and sovereignty, the subject of Part II below. Issues about citizenship arose in the context of specific disputes about naturalization, expatriation, and the rights of freedmen, but they implicated conflicts over the seat of allegiance and the nature of the Union. Part III turns to the Reconstruction debates and shows how they reflect a fundamentally nationalistic view of citizenship. The Reconstruction Amendments to the Constitution were connected with a powerful vision of national citizenship and …

I Hear America Suing: Music Copyright Infringement In The Era Of Electronic Sound, Charles Cronin

UC Law Journal

Twentieth-century developments in audio recording, copying, and broadcast technologies thoroughly altered not only how popular music is distributed and consumed, but also how it is created. By the 1960s, sound recording technologies had become so refined, ubiquitous, and economically accessible that they—and no longer music notation—had become the primary means by which popular songs were created and documented. Audio technologies democratized authorship of popular music, but also led to the gradual lessening of original primary musical parameters (melody in particular) in many popular genres. Paradoxically, despite this general diminishment in original musical expression, the number of music infringement claims has …

The Call To Witness: Historical Divides, Literary Narrative, And The Power Of Oath, Nancy Cook

Marquette Law Review

A decade ago, in her book, Narrative, Authority and Law, Robin West posed these questions: How might we develop a moral sensibility with which to criticize law that is independent of the influence of law? How should we criticize law from a moral point of view, given the influence of law over our moral beliefs? What is the role of narrative in this enterprise?

The “Call to Witness” is an entreaty to look to narratives as acts of witness for a partial answer to these questions. Narratives bring to light the real conflicts underlying court cases and law, the motives …

The Third Pillar Of Jurisprudence: Social Legal Theory, Brian Z. Tamanaha

William & Mary Law Review

No abstract provided.

The Normalising Power Of Marriage Law: An Irish Genealogy, 1945-2010, Deirdre Mcgowan

Other resources

Marriage law is often conceptualised as an instrument of power that illegitimately imposes the will of the State on its citizens. Paradoxically, marriage law is also offered as a route to liberation. In this thesis, I question the efficacy of this type of analysis by investigating the actual power effects of marriage law. Using Michel Foucault’s concepts of bio-power and government, and his genealogical approach to history, I identify the role played by marriage law in governing the social domain over a discrete period of Irish history. Drawing on this analysis I suggest that marriage law is part of a …

The Social Origins Of The Personality Torts, Samantha Barbas

Journal Articles

No abstract provided.

Mapping Coastal Risks And Social Vulnerability: Current Tools And Legal Risks, Lisa Schiavinato, Heather Payne

Virginia Coastal Policy Center

No abstract provided.

The "Wall Of Separation" Motif In Biblical Literature And Western Political And Legal Thought, Daniel L. Dreisbach

Liberty University Law Review

No abstract provided.

Progressive Legal Thought, Herbert Hovenkamp

Washington and Lee Law Review

No abstract provided.

The Fellowships At Auschwitz For The Study Of Professional Ethics And The Moral Formation Of Lawyers, Eric L. Muller

Journal of Legal Education

No abstract provided.