Law Commons^™

Adaptation, Evolution And Symbiosis In Water Law, Sandi Zellmer

Sandi Zellmer

: This article traces the evolution of the laws governing the use of water for consumption, waste disposal, public purposes and environmental protection. It provides a unique integration of water resources law and environmental law, two fields that are otherwise highly fragmented in the United States. Both the historic tensions and the emerging collaborations among federal, state, tribal and private interests in managing water resources are assessed in an effort to illuminate future pathways for conservation and the restoration of degraded waterways. The article begins with colonial America and proceeds through five significant eras in U.S. history: the Gilded Age …

Extralegal Crimes, Extralegal Punishments: Justice On The Antebellum Plantation, Gerald J. Pierson

Gerald J Pierson

Most plantation slaves in the American South prior to the Civil War never encountered the ordinary, legally established criminal justice system in their communities. Instead, an ad hoc justice system, unique to each plantation and controlled by the slaves’ master and enforced by the master, overseer, and driver, constituted the mechanism of control. Each plantation was, in effect, a common law jurisdiction within the larger “federal” system composed of the ordinary Southern state legal systems. This justice system, extralegal and profoundly authoritarian, possessed the accouterments of any criminal justice system: rule-making authority, the establishment and “publishing” of statutory crimes, gradation …

"Honor Thy Father And Mother": Children’S Obligations To Honor & Support Parents - A Comparative Analysis Of Jewish And American Secular Law, Samuel Asher Blaustein

Sam A Blaustein

This article will contrast and compare the duties of children to their parents under traditional Jewish and modern secular American law. The focus is on the adult child’s duty to support parents. Whereas the mandates proscribed by Jewish law increase with age, American law focuses on emancipation and personal autonomy. That said, recent American law encourages children to provide care to elderly parents. The history and reasoning behind both sources will be addressed.

Speaking Of Inconvenient Truths -- A History Of The Public Trust Doctrine , James L. Huffman

James L. Huffman

In the nearly four decades since Professor Joe Sax published an article in the Michigan Law Review, there has been a flood of academic writing and court decisions on the public trust doctrine. The vast majority of these articles and judicial opinions give a brief synopsis of the doctrine’s Roman, English and early American roots. In a nutshell, the generally accepted history is that from Justinian’s Institutes through Magna Charta and Bracton, Hale and Blackstone reporting on English law and Chancellor Kent acknowledging the reception of English and Roman law in America, the public has deeply rooted rights in access …

The Antitrust Legacy Of Justice William O. Douglas And The Curse Of The Curse Of Bigness, C. Paul Rogers

C. Paul Rogers III

Justice William O. Douglas’s position as our leading antitrust hawk cannot be denied. He is also, of course, our longest sitting Supreme Court Justice. During his long tenure on the Court, he wrote more antitrust opinions than anyone in our history. Surprisingly, however, with all the scholarship on Douglas, including two full-length biographies, there exists no thorough or complete treatment of his lengthy and controversial antitrust record. This article seeks to fill that gap by critiquing Douglas’s antitrust opinions in the context of contemporary antitrust doctrine. It considers Douglas’s deep distrust of economic power, fueled in part by his legal …

Unlocking The Secrets Of Highly Successful Legal Writing Students, Anne Enquist

Anne M Enquist

Abstract Unlocking the Secrets of Highly Successful Legal Writing Students Anne M. Enquist Seattle University School of Law Why are some law students successful in their legal writing classes and others are not? To identify the secrets to success, I did a case study of six second-year law students as they wrote a motion brief and an appellate brief for their 2L legal writing course. Based on their 1L legal writing course, two of these students were predicted to be highly successful, two were predicted to be moderately successfully, and two were predicted to be only marginally successful. Through daily …

Interpreting The Fourteenth Amendment: Two Don’Ts And Three Dos, Garrett Epps

Garrett Epps

A sophisticated reading of the legislative record of the framing of the Fourteenth Amendment can provide courts and scholars with some general interpretive principles to guide their application of the Amendment to current legal problems. The author argues that two common legal conceptions about the Amendment are in fact, misconceptions. The first is that the Amendment was chiefly concerned with the immediate situation of freed slaves in the former slave states. Instead, he argues, the legislative record suggests that the framers were broadly concerned with the rights not only of freed slaves but of foreign-born immigrants in the North and …

Law In The Time Of Cholera: Disease, State Power, And Quarantine Past And Future, Felice J. Batlan

Felice J Batlan

Review: Calvin H. Johnson, Righteous Anger At The Wicked States: The Meaning Of The Founders’ Constitution, Kurt X. Metzmeier

Kurt X. Metzmeier

After nearly two centuries of scholarship, it is perhaps impossible to forward a new idea about the motivations behind the founding of the U.S. Constitution, but University of Texas law professor Calvin H. Johnson has brought a new emotion to the debate: “righteous anger.” This review examines his general thesis is that the Constitution was the result of a moral reaction to the inadequate funding of the national defense by the Continental Congress and the need for a strong central government with the power to tax. As the proponents of the “New Federalism” on the Supreme Court continue to read …

A Quandary In Law? A (Qualified) Catholic Denial, Patrick Mckinley Brennan

Patrick McKinley Brennan

A contribution to the second law review symposium dedicated to Steven Smith’s Law’s Quandary (Harvard 2004), this paper asks whether the “quandary” in which Smith finds modern law and jurisprudence is not, at least in part, the consequence of misunderstanding the classical natural law jurisprudence. The paper advances an interpretation of natural law according to which the natural law is the human person’s “participation” in the eternal law itself, with literally cosmic consequences for how we understand the ends and measures of human lawmaking. Mounting an argument against Justice Scalia’s thesis that “God applies the natural law,” the paper goes …

The Decreasing Ontological Density Of The State In Catholic Social Doctrine, Patrick Mckinley Brennan

Patrick McKinley Brennan

Over the last century-plus, Catholic social thought has gradually reduced the ontological density of the state, to the point that the state now appears to have only a tentative grasp on the natural law basis of its legitimacy. During the first part of the twentieth century, Catholic social doctrine tended to view the legitimate state as a participant in the divine rule; although draped in a sacred mantle, the state was subject to the limits imposed by the divine and natural law. In response to the totalitarian states’ transgressing of those limits at mid-century, Catholic thinkers reduced the scope and …

Judicial Review Of Special Interest Spending: The General Welfare Clause And The Fiduciary Law Of The Founders, Robert G. Natelson

Robert G. Natelson

This article surveys the principles of 18th century fiduciary law that the Founders incorporated into the U.S. Constitution-- principles they referred to as rules of "public trust." The article also suggests standards the courts can use to determine if particular congressional appropriations are within the "general welfare" limitation of the Constitution's so-called Spending Clause

Tempering The Commerce Power, Robert G. Natelson

Robert G. Natelson

The Supreme Court's modern interpretation of the Necessary and Proper Clause in the realm of interstate commerce is textually problematic, unfaithful to the Constitution's original meaning, and contains positive incentives for Congress to over-regulate. The Necessary and Proper Clause was intended to embody the common law doctrine of principals and incidents, and the Court should employ that doctrine as its interpretive benchmark. The common law doctrine contains less, although some, bias toward over-regulation, and it is flexible enough to adapt to changing social conditions. Adherence to the common law doctrine would markedly improve Commerce Power jurisprudence and reduce incentives for …

Las Milicias Novohispanas En La Segunda Mitad Del Siglo Xviii: El Reglamento Para Las Milicias De La Provincia De Tabasco, Óscar Cruz

Óscar Cruz Barney

No abstract provided.

Legal Reform And The English Industrial Revolution (In Hebrew), Ron Harris

Ron Harris

בשילוב מיוחד במינו של כלים הלקוחים מתחומי הכלכלה, המשפט וההיסטוריוגרפיה, בוחן רון חריס את אחת התמורות המרכזיות בתולדות המערב — המהפכה התעשייתית — ומציג תמיהה שהתעוררה בקרב חוקרים בעשורים האחרונים. דומה לכאורה, כי על אף ההתפתחויות הדרמטיות בייצור ובארגון של התעשייה והמסחר באנגליה בשלהי המאה השמונה-עשרה, לא חלו בהתאמה שינויים בחוקים הרלבנטיים ביותר להתפתחויות אלו, החוקים המסדירים את אופן הארגון של עסקים. אולם, לטענת המחבר, החוקרים שבחנו סוגיה זו חיפשו את השינויים בחוק האנגלי במקומות הלא-נכונים. התשובה לתעלומה מסתתרת לא בחקיקה של הפרלמנט ובכתיבה של בכירי המשפטנים, אלא בחקיקה ובפסיקה "מלמטה" — בדרכים שבהן הצליחו יזמים ועורכי-דין ליצור ארגונים עסקיים …

Article 106 Of The United Nations Charter, Theodore M. Cooperstein

Theodore M Cooperstein

Article 106 of the United Nations Charter began as an interim measure, designed to ensure that the Allies might continue to fight the Second World War and secure the post-war peace during the time that it took to make the new Organization fully operational. Althought the Organization never quite came into operation as expected, and Article 106 thereby remains in effect, the United Nations has not yet called upon Article 106 to justify any measure. Article 106's disappearance today would make little to no difference to the current arrangement. Its continued presence and valdity, however, does hold the potential of …

Book Review -- Making Indian Law: The Hualapai Land Case And The Birth Of Ethnohistory, Matthew L.M. Fletcher

Matthew L.M. Fletcher

No abstract provided.

Self-Defense In Asian Religions, David B. Kopel

David B Kopel

This Article investigates the attitudes of six Far Eastern religions - Confucianism, Taoism, Hinduism, Sikhism, Jainism, and Buddhism - towards the legitimacy of the use of force in individual and collective contexts. Self-defense is strongly legitimated in the theory and practice of the major Far Eastern religions. The finding is consistent with natural law theory that some aspects of the human personality, including the self-defense instinct, are inherent in human nature, rather than being entirely determined by culture.

Armed Resistance To The Holocaust, David B. Kopel

David B Kopel

Contrary to myth of Jewish passivity, many Jews did fight back during the Holocaust. They shut down the extermination camp at Sobibor, rose up in the Warsaw Ghetto, and fought in the woods and swamps all over Eastern Europe. Indeed, Jews resisted at a higher rate than did any other population under Nazi rule. The experience of the Holocaust shows why Jews, and all people of good will, should support the right of potential genocide victims to possess defensive arms, and refutes the notion that violence is necessarily immoral.

The Status Of Classical Natural Law: Plato And The Parochialism Of Modern Theory, Eric Heinze

Prof. Eric Heinze, Queen Mary University of London

The concept of modernity has long been central to legal theory. It is an intrinsically temporal concept, expressly or implicitly defined in contrast to pre-modernity.

Legal theorists sometimes draw comparisons between, on the one hand, various post-Renaissance positivist, liberal, realist or critical theories, and, on the other hand, the classical natural law or justice theories of antiquity or the middle ages, including such figures as Aristotle, Cicero, Augustine or Aquinas. Many theorists, however, while acknowledging superficial differences among the various classical theories, fail to appreciate the variety and complexity of pre-modern thought. Unduly simplifying pre-modern understandings of law, they end …

Epinomia: Plato And The First Legal Theory, Eric Heinze

Prof. Eric Heinze, Queen Mary University of London

In comparison to Aristotle, Plato’s general understanding of law receives little attention in legal theory, due in part to ongoing perceptions of him as a mystic or a totalitarian. However, some of the critical or communitarian themes that have guided theorists since Aristotle already find strong expression in Plato’s work. More than any thinker until the 19th and 20th centuries, Plato rejects the rank individualism and self-interest which, in his view, emerge within democratic legal culture. He rejects schisms between legal norms and community values, institutional separation of law from morals, intricate regimes of legislation and adjudication, and a culture …

The Original Understanding Of The Indian Commerce Clause, Robert G. Natelson

Robert G. Natelson

The United States Congress claims plenary and exclusive power over federal affairs with the Indian tribes, based primarily on the Constitution’s Indian Commerce Clause. This article is the first comprehensive analysis of the original meaning of, and understanding behind, that constitutional provision. The author concludes that, as originally understood, congressional power over the tribes was to be neither plenary nor exclusive.

In Defense Of The Roosevelt Court, Wilson R. Huhn

Wilson R. Huhn

The overriding purpose of the New Deal was to create opportunities for the common person to acquire a stake in society. The Roosevelt appointees to the Supreme Court were unwilling to allow either entrenched wealth or arbitrary governmental action to interfere with that objective. They remade the Constitution, but in so doing they returned the Constitution to its original purpose – the protection of personal liberty. The Roosevelt Court laid the foundation for a jurisprudence of human rights upon which the Warren Court and subsequent Supreme Courts have continued to build.

Two justices presently serving on the Supreme Court – …

Judicial Policy - Making And The Peculiar Function Of Law, Richard Kay

Richard Kay

While the nature of legal systems is a perpetually contested question, it is fairly uncontroversial that each must contain certain essential characteristics. First, each must suppose some picture of the appropriate way for human beings subject to it to live together in society. Second, to secure that proper arrangement, each must employ, to a greater or lesser degree, the device of general rules of conduct. Finally, in all but the simplest systems, the effectiveness of those rules must be guaranteed by some process of adjudication. The relationships among these three factors – social values, legal rules and judging – comprise …

The Inheritance Process In San Bernardino County, California, 1964: A Research Note, Lawrence M. Friedman, Christopher J. Walker, Ben Hernandez-Stern

Christopher J. Walker

Probate records are ubiquitous. Virtually every American county has records of estates of the dead. These records contain rich source material for any study of American legal and social history. They have a lot to tell us about family life, about the economy, about love and death and every aspect of life in America. Yet very few scholars have tried to tap these records. There are very few empirical studies that use as their main source probate records, probably no more than a dozen or so, and even fewer in California. This research note is a modest attempt to add …