Law Commons^™

Codification Of Late Roman Inheritance Law: Fideicommissa And The Theodosian Code, Joshua C. Tate

Faculty Journal Articles and Book Chapters

It has long been known that most of the private law content of the Theodosian Code has not been preserved independently of the Lex Romana Visigothorum, or Breviary of Alaric. Certain constitutions, not contained in the Breviary but dating to the period covered by the Theodosian Code, have survived in the Code of Justinian. There has been debate, however, as to whether all of these constitutions were contained in the Theodosian Code.

This Article discusses this problem with respect to a particular topic: fideicommissa. The Article considers whether a particular constitution, CJ 6.37.21, might have been included in the Theodosian …

Gambling, Commodity Speculation, And The 'Victorian Compromise', Joshua C. Tate

Faculty Journal Articles and Book Chapters

This Essay examines two major strands of nineteenth-century jurisprudence related to gambling: Southern cases defining public and private space for the purpose of state gambling statutes, and Northern cases applying the intent to deliver test to speculative contracts. The Essay argues that both lines of cases reflect what Lawrence Friedman has termed the Victorian compromise: A strong official stance against immoral behavior is conjoined with de facto acceptance of many questionable practices, provided that they are conducted in a manner acceptable to the elite. The Essay concludes that nineteenth-century judges sought to preserve the semblance of a strict prohibition against …

Just Say 'No Fishing': The Lure Of Metaphor, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

The phrase "fishing expedition" is widely used in popular culture and in the law. In the case of metaphorical "fishing" in the law, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence a result. When used by the court, it is uninformative. Worse, the fishing metaphor may itself shape the way the court thinks about the kind of issue or claim involved. Accusations of "fishing" also affect the language and position of the litigants. Parties arguing against pleadings or discovery use the metaphor as a rhetorical weapon, stigmatizing their opponents, instead of …

The Unitary Executive In The Modern Era, 1945-2004, Anthony J. Colangelo, Christopher S. Yoo, Steven G. Calabresi

Faculty Journal Articles and Book Chapters

Since the impeachment of President Clinton, there has been renewed debate over whether Congress can create institutions such as special counsels and independent agencies that restrict the president's control over the administration of the law. Initially, debate centered on whether the Constitution rejected the executive by committee used by the Articles of Confederation in favor of a unitary executive, in which all administrative authority is centralized in the president. More recently, the debate has focused on historical practices. Some scholars suggest that independent agencies and special counsels are such established features of the constitutional landscape that any argument in favor …