History Commons^™

All Things To All People, Part One, Peter J. Aschenbrenner

Peter J. Aschenbrenner

Our Constitutional Logic has identified the fundamental predicate of Government I, which operated, more or less, under Constitution I, the Constutiton of the year One, as a disposable government. See The Standard Model at War, 17 OCL 350. if government asserts, affirmatively, that it is disposable, isn’t it also asserting that it can replicate its systems (= structures political society) at will? OCL builds on its assertion of political society as a three-goaled contrivance. See Why Do Political Societies Exist? 2 OCL 883. Isn’t such a government asserting the primacy of the needs of civil society? By offering to dispose …

Youth Activism, Art And Transitional Justice: Emerging Spaces Of Memory After The Jasmine Revolution, Arnaud Kurze

Arnaud Kurze

This chapter explores the creation of alternative transitional justice spaces in post-conflict contexts, particularly concentrating on the role of art and the impact of social movements to address human rights abuses. Drawing from post-authoritarian Tunisia, it scrutinizes the work of contemporary youth activists and artists to deal with the past and foster sociopolitical change. Although these vanguard protesters provoked the overthrow of President Zine El Abdine Ben Ali in 2011, the power vacuum was quickly filled by old elites. The exclusion of young revolutionaries from political decision-making led to unprecedented forms of mobilization to account for repression and injustice under …

Third Time's The Charm: The History Of The Merger Between The University Of Louisville And Jefferson Schools Of Law, Marcus Walker

Marcus Walker

The daytime University of Louisville School of Law and evening Jefferson School of Law existed as separate programs from the latter school's founding in 1905 until their merger in 1950. This article highlights two earlier attempts at combining the legal programs and highlights some perhaps lesser-known details of the successful attempt that extend the history of the "Ben Washer School" a bit farther than it might otherwise seem.

A Railway, A City, And The Public Regulation Of Private Property: Cpr V. City Of Vancouver, Douglas C. Harris

Douglas C Harris

The doctrine of regulatory or constructive taking establishes limits on the public regulation of private property in much of the common law world. When public regulation becomes unduly onerous — so as, in effect, to take a property interest from a private owner — the public will be required to compensate the owner for its loss. In 2000, the City of Vancouver passed a by-law that limited the use of a century-old rail line to a public thoroughfare. The Canadian Pacific Railway, which owned the line, claimed the regulation amounted to a taking of its property for which the city …

Third Time's The Charm, Marcus Walker

Marcus Walker

Brief Of Scholars Of Mormon History & Law As Amici Curiae In Support Of Neither Party, Anna-Rose Mathieson, Ben Feuer, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Amici Curiae Brief Of Scholars Of Mormon History & Law In Support Of Neither Party, Anna-Rose Mathieson, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Amici Curiae Brief Of Scholars Of American Religious History & Law In Support Of Neither Party, Nathan B. Oman, Anna-Rose Mathieson

Nathan B. Oman

No abstract provided.

English Justices And Roman Jurists: The Civilian Learning Behind England's First Case Law, Thomas J. Mcsweeney

Thomas J. McSweeney

Article looks at a historical problem—the first use of case law by English royal justices in the thirteenth century—and makes it a starting point for thinking about the ways legal reasoning works in the modern common law. In the first Part of the Article, I show that, at its origin, the English justices’ use of decided cases as a source of law was inspired by the work civil and canon law scholars were doing with written authorities in the medieval universities. In an attempt to make the case that English law was on par with civil law and canon law, …

No Witness, No Case: An Assessment Of The Conduct And Quality Of Icc Investigations, Dermot Groome

Dermot M Groome

The conduct and quality of investigations pursued by the Office of the Prosecutor of the International Criminal Court have come under increasing scrutiny and criticism from judges on the Court. Criticism is directed at the time and length of investigations; the quality of the evidence advanced in court; the inappropriate delegation of investigative functions, and the failure to interview witnesses in a way that is consistent with the Prosecution’s obligation to conduct investigations fairly under Article 54 of the Rome Statute. This essay explores these criticisms and concludes that the judges are justified in their concerns regarding the Prosecution’s investigative …

Examining Entrenched Masculinities In The Republican Government Tradition, Jamie R. Abrams

Jamie R. Abrams

No abstract provided.

Translating Scholarship Into Policy, Scott Sigmund Gartner, Amy C. Gaudion

Amy C. Gaudion

There is an ever widening gap between conflict resolution policy makers and scholars—a tragedy given practitioners’ dire need for new ideas to help resolve deadly conflicts and the growing knowledge researchers have to share. Research tends to swing like a pendulum between analytic and rigorous methods and accessible and relevant approaches. We reject this tradeoff. We believe that research can be simultaneously rigorous and relevant, and analytic and accessible. Given the devastating loss of life associated with armed conflict, the need for translating research results into policy prescriptions is especially strong in peacemaking. The goal of this issue of the …

Youth Activism, Art And Transitional Artist: Emerging Spaces Of Memory After The Jasmin Revolution, Arnaud Kurze

Arnaud Kurze

This project explores the creation of alternative transitional justice spaces in post-conflict contexts, particularly concentrating on the role of art and the impact of social movements to address human rights abuses. Drawing from post-authoritarian Tunisia, it scrutinizes the work of contemporary youth activists and artists to deal with the past and foster sociopolitical change. Although these vanguard protesters provoked the overthrow of President Zine El Abidine Ben Ali in 2011, the power vacuum was quickly filled by old elites. The exclusion of young revolutionaries from political decision-making led to unprecedented forms of mobilization to account for repression and injustice under …

Building A Regime Of Restrictive Immigration Laws, 1840-1945, Felice Batlan

Felice J Batlan

Occupation During And After The War (China), Lukas K. Danner

Dr. Lukas K. Danner

No abstract provided.

The Riccobono Seminar Of Roman Law In America: The Lost Years, Timothy G. Kearley

Timothy G. Kearley

Indefinite Detention, Colonialism, And Settler Prerogative In The United States, Natsu Taylor Saito

Natsu Taylor Saito

The primacy accorded individual civil and political rights is often touted as one of the United States' greatest achievements. However, mass incarcerations of indefinite duration have occurred consistently throughout U.S. history and have primarily targeted people of color. The dominant narrative insists that the United States is a political democracy and portrays each instance of indefinite detention in exceptionalist terms. This essay argues that the historical patterns of indefinite detention are better explained by recognizing the United States as a settler colonial state whose claimed prerogative to expand its territorial reach and contain/control populations over which it exercises jurisdiction inevitably …

Nineteenth-Century Ohio Literature, Vol. 1, Jon Miller

Jon Miller

No abstract provided.

Unconscionability, Freedom, And The Portrait Of A Lady, Jennifer Nadler

Jennifer Nadler

The doctrine of unconscionability allows a court to refuse to enforce a contract because of its unfairness. Although well settled in contract law, the doctrine remains controversial. Critics of the doctrine argue that it is impermissibly paternalistic: it rescues responsible agents from the consequences of their own mistakes.' Defenders of the doctrine admit its paternalism but insist that the unfairness in cases of unconscionability makes paternalist intervention legitimate. Critics say that the doctrine is sentimental and wonder if the resort to expressions such as "shocks the conscience" conceals the defenders' inability to articulate the standard these agreements supposedly transgress.' Defenders …

Syllabus Cpo 3103 (Rvbb): Politics Of Western Europe (Summer B 2018)

Dr. Lukas K. Danner

No abstract provided.

Outsourcing Sacrifice: The Labor Of Private Military Contractors, Mateo Taussig-Rubbo

Mateo Taussig-Rubbo

Numerous scandals arising from the United States government's increased use of armed private military contractors have drawn attention to the contractors' legally ill-defined position. But the complexity of the contractors' relation to various bodies of law and doctrine - including military law, international law, state tort law, employment law, and sovereign immunity - is not the only salient issue. The contractors are also awkwardly positioned in relation to the traditional understanding of sacrifice, which has structured Americans' imaginings about those who kill and are killed on behalf of the nation. In this understanding, there is a mutually constitutive relationship between …

The Josiah Philips Attainder And The Institutional Structure Of The American Revolution, Matthew Steilen

Matthew Steilen

This Article is a historical study of the Case of Josiah Philips. Philips led a gang of militant loyalists and escaped slaves in the Great Dismal Swamp of southeastern Virginia during the American Revolution. He was attainted of treason in 1778 by an act of the Virginia General Assembly, tried for robbery before a jury, convicted and executed. For many years, the Philips case was thought to be an early example of judicial review, based on a claim by St. George Tucker that judges had refused to enforce the act of attainder. Modern research has cast serious doubt on Tucker’s …

Glorious Precedents: When Gay Marriage Was Radical, Michael Boucai

Michael Boucai

In the years immediately following the Stonewall riots of June 1969, a period when "gay liberation" rather than "gay rights" described the ambitions of a movement, at least ten same-sex couples across the United States applied or attempted to apply for marriage licenses. All were refused except for two men in Texas, one of whom apparently looked convincing in a miniskirt, a wig, and false eyelashes. Lawsuits ensued in five states, and four made their way to and beyond trial.'

The Death Of The Public Disclosure Tort: A Historical Perspective, Samantha Barbas

Samantha Barbas

In 1890, Samuel Warren and Louis Brandeis, in their famous Harvard Law Review article The Right to Privacy, called for a new legal right that would allow the victims of truthful but embarrassing press publicity to sue in tort and recover damages for emotional harm. Currently, in most states, it constitutes a tort if the disclosure of "matter concerning the private life of another" would be highly offensive to a reasonable person and the matter is not "of legitimate concern to the public." If the disclosed subject matter is of legitimate public concern, the newsworthiness privilege immunizes the disclosure. However, …

Laws Of Image: Privacy And Publicity In America, Samantha Barbas

Samantha Barbas

Americans have long been obsessed with their images—their looks, public personas, and the impressions they make. This preoccupation has left its mark on the law. The twentieth century saw the creation of laws that protect your right to control your public image, to defend your image, and to feel good about your image and public presentation of self. These include the legal actions against invasion of privacy, libel, and intentional infliction of emotional distress. With these laws came the phenomenon of "personal image litigation"—individuals suing to vindicate their image rights. Laws of Image tells the story of how Americans came …

Response: Interpretation Is Not A Theoretical Issue, Stanley Fish

Stanley Fish

Let me begin by taking up three issues raised by Professor Seaton: (1) the relationship between interpretation and intention; (2) the relationship between literary and legal study; and (3) the relationship between theoretical accounts of a practice-law, literature, or anything else-and the performance of that practice. For Professor Seaton, these and related topics fall under the general rubric of "theories of interpretation," and he promises at the beginning of his paper to explore the theories of interpretation articulated by Dworkin, Fish, and Posner. The first thing to say is that I don't have a theory of interpretation, or, rather, my …

Authors At Work: The Origins Of The Work-For-Hire Doctrine, Catherine L. Fisk

Catherine Fisk

The death of the author was announced in literary circles quite some time ago. Rumors of the author's demise were, in my view, premature. The author isn't dead; he just got a job. Unfortunately, as if in a company-man dystopia, he has been subsumed into the identity of his corporate employer. His disappearance is by now almost complete. Although he has gone on writing, the corporation has become the author of his oeuvre. Yet the desire both to create and to be recognized as a creator is irrepressible. The creative process is both inherently individual and inescapably social. So even …

From Paper To Electronic Order: The Digitalization Of The Check In The Usa*, Benjamin Geva

Benjamin Geva

No abstract provided.

From Rome To The Restatement: S.P. Scott, Fred Blume, Clyde Pharr, And Roman Law In Early Twentieth Century America, Timothy G. Kearley

Timothy G. Kearley

Bibliography Of Books On Muslims And Islam In The United States (1970-2015), Sahar Aziz, Cynthia Burress

Cynthia Burress