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Articles 31 - 60 of 260
Full-Text Articles in Law
Some Varieties And Vicissitudes Of Lochnerism, Barry Cushman
Some Varieties And Vicissitudes Of Lochnerism, Barry Cushman
Barry Cushman
This article is a contribution to the Lochner Centennial Symposium at Boston University School of Law. Until recently, a consensus appeared to be emerging among constitutional historians concerning how best to interpret Lochner-era decisions involving Fifth and Fourteenth Amendment challenges to state and federal economic regulation. After decades during which the Court's jurisprudence had been characterized as the product of a reactionary judiciary's commitments to Social Darwinism and laissez-faire economics, more recent scholars had come to see the Court's police powers decisions as animated by what Professor Howard Gillman has called the principle of neutrality. On this view, the Court's …
The Structure Of Classical Public Law, Barry Cushman
The Structure Of Classical Public Law, Barry Cushman
Barry Cushman
Duncan Kennedy's The Rise and Fall of Classical Legal Thought circulated in manuscript for three decades before it was formally published in 2006. This essay reviews the book's treatment of Classical public law, focusing on its two principal contributions to the historiography of the subject: the concept of legal consciousness, and the structural analysis of constitutional doctrine.
The Secret Lives Of The Four Horsemen, Barry Cushman
The Secret Lives Of The Four Horsemen, Barry Cushman
Barry Cushman
"Outlined against red velvet drapery on the first Monday of October, the Four Horsemen rode again. In dramatic lore they are known as Famine, Pestilence, Destruction, and Death. These are only aliases. Their real names are Van Devanter, McReynolds, Sutherland, and Butler. They formed the crest of the reactionary cyclone before which yet another progressive statute was swept over the precipice yesterday morning as a packed courtroom of spectators peered up at the bewildering panorama spread across the mahogany bench above." Or so Grantland Rice might have written, had he been a legal realist. For more than two generations scholars …
Courting Power, Anil Kalhan
Table Annexed To Article: Secrecy Broken: Reports Of The Delegates Following The Federal Convention, Peter J. Aschenbrenner
Table Annexed To Article: Secrecy Broken: Reports Of The Delegates Following The Federal Convention, Peter J. Aschenbrenner
Peter J. Aschenbrenner
Despite the measures taken to ensure the secrecy of the proceedings during the federal convention, many delegates made reports to their states and explained the choices behind various clauses. However, no delegate had access to the official journal of the constitutional convention.
Table Annexed To Article: Our Constitutional Kinesis: Words That Can Go Like A Machine, Peter J. Aschenbrenner
Table Annexed To Article: Our Constitutional Kinesis: Words That Can Go Like A Machine, Peter J. Aschenbrenner
Peter J. Aschenbrenner
Constitution II, the Philadelphia constitution (1787), inspired many ‘machine/ry’ references. OCL catalogs, with the help of acknowledged secondary sources, a working list of metaphors which were deployed to credit and discredit our second constitution.
Table Annexed To Article: Congress And Parliament Deploy Appraisives (1801-1802), Peter J. Aschenbrenner
Table Annexed To Article: Congress And Parliament Deploy Appraisives (1801-1802), Peter J. Aschenbrenner
Peter J. Aschenbrenner
Parliament (primary text writer, the House of Commons) produced 24,647 words beginning in 1801; in in a comparable interval, Congress produced 27,123 words. By coincidence, this was the first year that Parliament served as the text-writer for the newly-minted United Kingdom of Great Britain and Ireland. Appraisives in the English language, numbering 3,683 have been tested against the Early Constitution. Appraisives in the Early Constitution, 2 OCL 193. This investigation tests the known class of appraisives in these target vocabularies employed by Congress and Parliament. Mean words between ‘hits’ are returned.
Book Review Of Arnold H. Leibowitz, An Historical-Legal Analysis Of The Impeachments Of Presidents Andrew Johnson, Richard Nixon, And William Clinton: Why The Process Went Wrong, Jeffrey B. Morris
Jeffrey B. Morris
No abstract provided.
A New Introduction To American Constitutionalism, Mark Graber
A New Introduction To American Constitutionalism, Mark Graber
Mark Graber
A New Introduction to American Constitutionalism is the first text to study the entirety of American constitutionalism, not just the traces that appear in Supreme Court decisions. Mark A. Graber both explores and offers original answers to such central questions as: What is a Constitution? What are fundamental constitutional purposes? How are constitutions interpreted? How is constitutional authority allocated? How do constitutions change? How is the Constitution of the United States influenced by international and comparative law? and, most important, How does the Constitution work? Relying on an historical/institutional perspective, the book illustrates how American constitutionalism is a distinct form …
Gentleness-Suddenness, Lotte Latukefu
The Natural Relationship Of Church And State Within The Kingdom Of Christ Based On The Encyclical Immortale Dei Of Pope Leo Xiii, Brian M. Mccall
The Natural Relationship Of Church And State Within The Kingdom Of Christ Based On The Encyclical Immortale Dei Of Pope Leo Xiii, Brian M. Mccall
Brian M McCall
This lecture addresses the natural relationship between Church and State and explains Catholic Social Teaching regarding the organization of civil society.
Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram
Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram
David Ingram
It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …
Of Sweatshops And Human Subsistence: Habermas On Human Rights, David Ingram
Of Sweatshops And Human Subsistence: Habermas On Human Rights, David Ingram
David Ingram
In this paper I argue that the discourse theoretic account of human rights defended by Jürgen Habermas contains a fruitful tension that is obscured by its dominant tendency to identify rights with legal claims. This weakness in Habermas’s account becomes manifest when we examine how sweatshops diminish the secure enjoyment of subsistence, which Habermas himself (in recognition of the UDHR) recognizes as a human right. Discourse theories of human rights are unique in tying the legitimacy of human rights to democratic deliberation and consensus. So construed, their specific meaning and force is the outcome of historical political struggle. However, unlike …
Poverty Knowledge, Coercion, And Social Rights: A Discourse Ethical Contribution To Social Epistemology, David Ingram
Poverty Knowledge, Coercion, And Social Rights: A Discourse Ethical Contribution To Social Epistemology, David Ingram
David Ingram
In today’s America the persistence of crushing poverty in the midst of staggering affluence no longer incites the righteous jeremiads it once did. Resigned acceptance of this paradox is fueled by a sense that poverty lies beyond the moral and technical scope of government remediation. The failure of experts to reach agreement on the causes of poverty merely exacerbates our despair. Are the causes internal to the poor – reflecting their more or less voluntary choices? Or do they emanate from structures beyond their control (but perhaps amenable to government remediation)? If both of these explanations are true (as I …
Does Political Islam Conflict With Secular Democracy? Philosophical Reflections On Religion And Politics, David Ingram
Does Political Islam Conflict With Secular Democracy? Philosophical Reflections On Religion And Politics, David Ingram
David Ingram
Abstract: This paper rebuts the thesis that political Islam conflicts with secular democracy. More precisely, it examines three sorts of claims that ostensibly support this thesis: (a) The Muslim religion is incompatible with secular democracy; (b) No Muslim country has instituted secular democracy; and (c) No movement seeking to advance its agenda as aggressively as political Islam does can do so with the degree of moderation required of a political party that is committed to secular democracy. Theologians, philosophers, and political scientists have debated (a) through (c) within the jurisdiction of their respective fields. I propose to combine these debates …
Order Of Delegate Arrival At Philadelphia Tabled Against Support/Opposition To Constitution, Peter J. Aschenbrenner, David Kimball
Order Of Delegate Arrival At Philadelphia Tabled Against Support/Opposition To Constitution, Peter J. Aschenbrenner, David Kimball
Peter J. Aschenbrenner
Fifty-five delegates were appointed by twelve states to attend the federal convention in May, 1787. Arrival of the delegates is matched with support/opposition for the Constitution.
Table Annexed To Article: Deployment Of ‘Constitution’ Surveyed In Farrand’S Records Of The Federal Convention, Vols. 1 And 2, Peter J. Aschenbrenner
Table Annexed To Article: Deployment Of ‘Constitution’ Surveyed In Farrand’S Records Of The Federal Convention, Vols. 1 And 2, Peter J. Aschenbrenner
Peter J. Aschenbrenner
Excluding Farrand’s apparatus, the convention’s speech events as recorded by any note-taking total 386,049 words. The word ‘constitution’ was deployed 147 times in Vol. 1 and 411 times in Vol. 2 for a grand total of 558 hits. Of these 558 hits, 74.91% were assigned the semantic value of ‘text,’ 17.03% value ‘government,’ 1.61% could have been taken by a reader to refer to either value, and 6.45% of these instances referred to a foreign constitution. OCL surveys and cumulates this data.
Delegate Arrivals At Philadelphia Compared To Voting Records At The Ratification Conventions By State, Peter J. Aschenbrenner, David Kimball
Delegate Arrivals At Philadelphia Compared To Voting Records At The Ratification Conventions By State, Peter J. Aschenbrenner, David Kimball
Peter J. Aschenbrenner
Fifty-five delegates were appointed by twelve states to attend the federal convention in May, 1787. Eleven states ratified the Constitution between December 7, 1787 and July 26, 1788. When delegate arrival dates are compared with the order in which their respective state ratification conventions completed their business, a significant number of delegates supporting the constitution are missing in action.
Table Annexed To Article: Delegate Arrivals In Philadelphia Compared To Voting Records, Peter J. Aschenbrenner, David Kimball
Table Annexed To Article: Delegate Arrivals In Philadelphia Compared To Voting Records, Peter J. Aschenbrenner, David Kimball
Peter J. Aschenbrenner
Fifty-five delegates were appointed by twelve states to attend the federal convention in May, 1787. Eleven states ratified the Constitution between December 7, 1787 and July 26, 1788. When delegate arrival dates are compared with the order in which their respective state ratification conventions completed their business, a significant number of delegates supporting the constitution are missing in action.
Table Annexed To Article: A Detailed Breakdown Of Note-Takers Surveyed From Farrand’S Records Vols. 1 And 2 (1937), Peter J. Aschenbrenner
Table Annexed To Article: A Detailed Breakdown Of Note-Takers Surveyed From Farrand’S Records Vols. 1 And 2 (1937), Peter J. Aschenbrenner
Peter J. Aschenbrenner
Eleven of the fifty-five delegates that attended the Federal Convention took notes during the proceedings. These notes, along with Jackson’s official journal and available committee drafts, are assembled in Farrand’s Records of the Federal Convention of 1787 at volumes 1 and 2. OCL provides a page-by-page breakdown of the text [of their notes] which appears in the Farrandian presentation.
Towards Respecting Indigenous Rights In Development Policy: The Case Of A Community-Based Forest Management Project In Panama, Benjamin Goodman
Towards Respecting Indigenous Rights In Development Policy: The Case Of A Community-Based Forest Management Project In Panama, Benjamin Goodman
Benjamin Goodman
As Latin American countries reach new heights of development, perched on the shoulders of an increasingly globalized economy, their local indigenous communities continue to be the most marginalized and impoverished people in the world. Sustainable development initiatives present themselves as a way to contribute to global economic development, while at the same time, respecting the livelihoods of rural peoples and preserving natural resources for future generations. However, unsustainable exploitation of natural resources continues to threaten the livelihoods and identities of many rural indigenous communities. As the economic, legal and political marginalization of indigenous peoples persists, the inevitable result of these …
Adjudication Of Things Past: Reflections On History As Evidence, Daniel A. Farber
Adjudication Of Things Past: Reflections On History As Evidence, Daniel A. Farber
Daniel A Farber
No abstract provided.
The 200,000 Cards Of Dimitri Yurasov: Further Reflections On Scholarship And Truth, Daniel A. Farber, Suzanna Sherry
The 200,000 Cards Of Dimitri Yurasov: Further Reflections On Scholarship And Truth, Daniel A. Farber, Suzanna Sherry
Daniel A Farber
No abstract provided.
Blog: Skewed View Of Alp Obscures Reality, Anthony Ashbolt
Blog: Skewed View Of Alp Obscures Reality, Anthony Ashbolt
Anthony Ashbolt
As the Labor government lies embattled, ready for a substantial defeat at the polls today, facts about the Australian economy and overseas understandings of Australia's performance over the last six years are emerging. Far from being the basket-case fashioned by the opposition and much of the media, the Australian economy's growth has actually lifted the average standard of living. A study by Ben Phillips from the National Centre for Social and Economic Modelling (NATSEM) shows wage growth has outstripped inflation and produced an economic benefit for the average Australian family that is quite significant. We do not hear much about …
Blog: Petty Politics Overshadows Policy, Anthony Ashbolt
Blog: Petty Politics Overshadows Policy, Anthony Ashbolt
Anthony Ashbolt
The coming federal election is already highlighting aspects of Australian politics that are cause for concern. The "mock menu" (which initially was thought to be for a Liberal Party fundraising dinner) with its vulgar and demeaning reference to our Prime Minister is not only ample confirmation of Julia Gillard’s argument about misogyny but also a further signal of the decline of civility in Australian political life. When school children see it as somehow natural to throw sandwiches at the Prime Minister, we can sense this decline vividly. The media are partly responsible for this, whipping up hysteria around all sorts …
Blog: Costings Become A Guessing Game, Anthony Ashbolt
Blog: Costings Become A Guessing Game, Anthony Ashbolt
Anthony Ashbolt
Labor’s “Gotcha” moment seemed to have backfired badly with Treasury and Finance Secretaries, together with the head of the Parliamentary Budget Office, distancing their units from claims about a $10 billion black hole. Labor’s advice from these Departments was provided with regard to policies outlined prior to the period of caretaker Government. Rather than point to a specific mistake related to earlier policy calculations, Labor could have just kept hammering the point about costings in general. Nonetheless, as Crikey correspondent Bernard Keane observed: ‘‘I’m of the view that the costings imbroglio doesn’t matter a jot: voters are aware that the …
Blog: Australia's Rude, Crude Election Debate, Anthony Ashbolt
Blog: Australia's Rude, Crude Election Debate, Anthony Ashbolt
Anthony Ashbolt
Tony Abbott's spin on the de Niro catchphrase reveals the depths to which we have sunk, writes Anthony Ashbolt. Like Robert de Niro in Taxi Driver, Abbott turned to his sparring partner and said, in an admittedly less than menacing voice, “Does this guy ever shut up?” Abbott’s tame version of “You talkin’ to me?” sent a jarring note through the debate on Wednesday night and was a reminder of the lack of civility in politics I discussed in my first blog. This is simply not the stuff of genuine debate and in an ordinary contest might have sent Abbott …
Blog: Parlous State Of Politics, Anthony Ashbolt
Blog: Parlous State Of Politics, Anthony Ashbolt
Anthony Ashbolt
Two events in the last week serve to highlight both the parlous state of politics and the importance of investigative journalism. First, the revelations of the NSW Independent Commission Against Corruption (ICAC) hearings; second, the verdict finding Bradley Manning guilty of espionage. These decisions both have profound ramifications not only for journalism but also for federal politics. The stench of corruption surrounding the NSW Labor Party has become stronger following the ICAC recommendations that Eddie Obeid and Ian Macdonald be charged with criminal offences.
Blog: Refugees A 'Political Whipping Boy', Anthony Ashbolt
Blog: Refugees A 'Political Whipping Boy', Anthony Ashbolt
Anthony Ashbolt
Kevin Rudd has taken up where he left off, but the vexing question of asylum seekers is yet to be answered by either party, writes Anthony Ashbolt. It is almost as if Kevin Rudd never stopped being Prime Minister. Such is the surreal nature of politics I referred to in the last piece. I noted also the Hollywood-like imagery the leadership battle evoked. Yet I did not mention the most glaring instance of this. Gillard marched into the caucus room that would decide her fate surrounded by a posse of loyal colleagues, only to be followed by the lone ranger …
Blog: Campaign Dull And Boring, Anthony Ashbolt
Blog: Campaign Dull And Boring, Anthony Ashbolt
Anthony Ashbolt
The Federal election week started with a non-debate and didn't really improve after that, writes Anthony Ashbolt. The prelude to this week in federal politics was provided by a non-debate on Sunday evening. The debate failed not only because there was no real engagement and exchange between the Prime Minister and Leader of the Opposition but also because the format itself was so managed and staged that even the press gallery questioners appeared awkward and unsure of where they were meant to be.