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Articles 31 - 60 of 1334
Full-Text Articles in Law
A Perfect Storm: Race, Ethnicity, Hate Speech, Libel And First Amendment Jurisprudence, Michael J. Cole
A Perfect Storm: Race, Ethnicity, Hate Speech, Libel And First Amendment Jurisprudence, Michael J. Cole
South Carolina Law Review
No abstract provided.
Racialized Bankruptcy Federalism, Rafael I. Pardo
Racialized Bankruptcy Federalism, Rafael I. Pardo
Scholarship@WashULaw
Notwithstanding the robust national power conferred by the U.S. Constitution’s Bankruptcy Clause, the design and administration of federal bankruptcy law entails choices about the extent to which non-bankruptcy-law entitlements will remain un-displaced. When such entitlements sound in domestic nonfederal law (i.e., state or local law), displacing them triggers federalism concerns. Considerations regarding the relationship between the federal government and the nation’s smaller political subdivisions might warrant preserving nonfederal-law entitlements even though their displacement would be authorized pursuant to the bankruptcy power. But such considerations might also suggest replacing those entitlements with bankruptcy-specific ones. Some scholarship has theorized about the principles …
Legal Pluralism Across The Global South: Colonial Origins And Contemporary Consequences, Brian Z. Tamanaha
Legal Pluralism Across The Global South: Colonial Origins And Contemporary Consequences, Brian Z. Tamanaha
Scholarship@WashULaw
This essay conveys past and present legally plural situations across the Global South, highlighting critical issues. It provides readers with a deep sense of legal pluralism and an appreciation of its complexity and the consequences that follow. A brief overview of colonization sets the stage, followed by an extended discussion of colonial indirect rule, which formed the basis for political and legal pluralism. Thereafter, showing the continuity from past to present, I discuss the transformation-invention of customary law, socially embedded village tribunals, enhancement of the power of traditional elites, uncertainty and conflict over land, clashes between customary and religious law …
The Lost Promise Of Progressive Formalism, Andrea Scoseria Katz
The Lost Promise Of Progressive Formalism, Andrea Scoseria Katz
Scholarship@WashULaw
Today, any number of troubling government pathologies—a lawless presidency, a bloated and unaccountable administrative state, the growth of an activist bench—are associated with the emergence of a judicial philosophy that disregards the “plain meaning” of the Constitution for a loose, unprincipled “living constitutionalism.” Many trace its origins to the Progressive Era
(1890–1920), a time when Americans turned en masse to government as the solution to emerging problems of economic modernity—financial panics, industrial concentration, worsening workplace conditions, and skyrocketing unemployment and inequality—and, the argument goes, concocted a flexible, new constitutional philosophy to allow the federal government to take on vast, new …
Rabbi Lamm, The Fifth Amendment, And Comparative Jewish Law, Samuel J. Levine
Rabbi Lamm, The Fifth Amendment, And Comparative Jewish Law, Samuel J. Levine
Scholarly Works
Rabbi Norman Lamm’s 1956 article, “The Fifth Amendment and Its Equivalent in the Halakha,” provides important lessons for scholarship in both Jewish and American law. Sixty-five years after it was published, the article remains, in many ways, a model for interdisciplinary and comparative study of Jewish law, drawing upon sources in the Jewish legal tradition, American legal history, and modern psychology. In so doing, the article proves faithful to each discipline on its own terms, producing insights that illuminate all three disciplines while respecting the internal logic within each one. In addition to many other distinctions, since its initial publication, …
On Bankruptcy’S Promethean Gap: Building Enslaving Capacity Into The Antebellum Administrative State, Rafael I. Pardo
On Bankruptcy’S Promethean Gap: Building Enslaving Capacity Into The Antebellum Administrative State, Rafael I. Pardo
Scholarship@WashULaw
As the United States contends with the economic crisis triggered by the COVID-19 pandemic, federal bankruptcy law is one tool that can be used to resolve the financial distress suffered by individuals and businesses. When implementing this remedy, the question arises whether the law’s application should be viewed as limited to addressing private debt matters, without regard for the public interest. This Article answers the question by looking to modern U.S. bankruptcy law’s first forebear, the 1841 Bankruptcy Act, which Congress enacted in response to the depressed economic conditions following the Panic of 1837. That legislation created a judicially administered …
Complicity And Lesser Evils: A Tale Of Two Lawyers, David Luban
Complicity And Lesser Evils: A Tale Of Two Lawyers, David Luban
Georgetown Law Faculty Publications and Other Works
Government lawyers and other public officials sometimes face an excruciating moral dilemma: to stay on the job or to quit, when the government is one they find morally abhorrent. Staying may make them complicit in evil policies; it also runs the danger of inuring them to wrongdoing, just as their presence on the job helps inure others. At the same time, staying may be their only opportunity to mitigate those policies – to make evils into lesser evils – and to uphold the rule of law when it is under assault. This Article explores that dilemma in a stark form: …
Disruptive Implications Of Legal Positivism’S Social Efficacy Thesis, Brian Z. Tamanaha
Disruptive Implications Of Legal Positivism’S Social Efficacy Thesis, Brian Z. Tamanaha
Scholarship@WashULaw
The social efficacy thesis holds that for law to exist it must be generally obeyed by the populace. Accepted by virtually all legal positivists, this is the most neglected thesis of legal positivism. Despite its nigh universal acceptance by theorists, however, the efficacy thesis is surrounded with unanswered questions with significant implications. Several questions immediately come to mind: How widespread must conformity to law be? What must people conform to (all areas of law)? Who must conform (legal officials, government officials, the entire populace, significant groups)? What does conformity entail (normatively, knowingly, behaviorally)? This essay explores these issues and a …
Unifying The Field: Mapping The Relationship Between Work Law Regimes In Ontario, Then And Now, Claire Mumme
Unifying The Field: Mapping The Relationship Between Work Law Regimes In Ontario, Then And Now, Claire Mumme
Dalhousie Law Journal
Since the mid-20th century in Canada, labour and employment law have been treated as two separate but related fields. In 1981 Brian Langille argued in “Labour Law is a Subset of Employment Law” for the unification of the fields, so that all forms of waged work were understood as matters of public policy, rather than leaving some types of work to private law regulation. Taking up Langille’s argument, this paper argues that employment contracts, individual and collective, are structured through the overlap, interaction and gaps between work law regimes. The creation of a unified field moves from studying the regimes …
Foreign-Born Children Of Disloyal Parents: Adam Muthana, Mary Arcedeckne, And The Natural-Born, John Vlahoplus
Foreign-Born Children Of Disloyal Parents: Adam Muthana, Mary Arcedeckne, And The Natural-Born, John Vlahoplus
St. John's Law Review
(Excerpt)
Can Adam Muthana, the foreign-born child of an alien Islamic State of Iraq and Syria (“ISIS”) combatant and a New Jersey-born ISIS adherent, grow up to be president of the United States? He can if he attains the age of thirty-five, resides in the United States for fourteen years, and is a natural-born citizen. He has a facial claim to statutory derivative citizenship at birth through his mother, and some scholars argue that anyone who is a citizen at birth is a natural-born citizen. Nevertheless, there are significant disputes over whether he will be allowed to reside here, whether …
Were Justices Lawyers?, Thomas J. Mcsweeney
Evaluating Originalism: Commerce And Emoluments, John Vlahoplus
Evaluating Originalism: Commerce And Emoluments, John Vlahoplus
St. John's Law Review
(Excerpt)
This Article suggests that originalist theories share a core focus that meaningfully competes with pluralist theories. The contest is real and appears in centuries of debates within Anglo-American and civil law. The Article locates the Anglo-American origins of originalism in a novel seventeenth-century method of legal interpretation used to achieve a specific political end: to stifle opposition to the union of Scottish and English subjects of King James after his accession to the English crown in 1603. It details the novel method and the competing traditional method of English legal interpretation. It then evaluates originalist interpretations of the Commerce …
Legal Genres, Thomas J. Mcsweeney
Who Are The "We"?, Thomas J. Mcsweeney
Putting The People Into Legal History, Thomas J. Mcsweeney
Putting The People Into Legal History, Thomas J. Mcsweeney
Popular Media
No abstract provided.
The Overly Familiar Treatise, Thomas J. Mcsweeney
#Livingwhileblack: Blackness As Nuisance, Jamila Jefferson-Jones, Taja-Nia Y. Henderson
#Livingwhileblack: Blackness As Nuisance, Jamila Jefferson-Jones, Taja-Nia Y. Henderson
Law Faculty Research Publications
No abstract provided.
When Plea Bargaining Became Normal, William Ortman
When Plea Bargaining Became Normal, William Ortman
Law Faculty Research Publications
No abstract provided.
Small Claims Disputes In Nova Scotia And Access To Justice, William H. Charles
Small Claims Disputes In Nova Scotia And Access To Justice, William H. Charles
Dalhousie Law Journal
The author examines, in some detail, the current operations of the Nova Scotia Small Claims Court to determine whether the court, established forty years ago, is still fulfilling its legislative mandates of providing ready access to speedy, informal and inexpensive justice. After reviewing historical attempts by the legal system to provide an effective mechanism to adjudicate minor disputes, and the various factors that eventually resulted in the creation of the present court in 1980, the author identifies a number of other factors that historically had a negative impact on the operation of the court. Many of these, involving court jurisdiction, …
Reconstructing Racially Polarized Voting, Travis Crum
Reconstructing Racially Polarized Voting, Travis Crum
Scholarship@WashULaw
Racially polarized voting makes minorities more vulnerable to discriminatory changes in election laws and therefore implicates nearly every voting rights doctrine. In Thornburg v. Gingles, the Supreme Court held that racially polarized voting is a necessary—but not a sufficient—condition for a vote dilution claim under Section 2 of the Voting Rights Act. The Court, however, has recently questioned the propriety of recognizing the existence of racially polarized voting. This colorblind approach threatens not only the Gingles factors but also Section 2’s constitutionality.
The Court treats racially polarized voting as a modern phenomenon. But the relevant starting point is the 1860s, …
The Genius Of Hamilton And The Birth Of The Modern Theory Of The Judiciary, William M. Treanor
The Genius Of Hamilton And The Birth Of The Modern Theory Of The Judiciary, William M. Treanor
Georgetown Law Faculty Publications and Other Works
In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern …
Acceptance Speech For Lifetime Achievement Award From Canadian Prison Lawyers Association, Michael Jackson Qc
Acceptance Speech For Lifetime Achievement Award From Canadian Prison Lawyers Association, Michael Jackson Qc
Dalhousie Law Journal
Acceptance Speech for Lifetime Achievement Award from Canadian Prison Lawyers Association
Nuclear Weapons, The War Powers, And The Constitution: Mutually Assured Destruction?, John M. Dipippa
Nuclear Weapons, The War Powers, And The Constitution: Mutually Assured Destruction?, John M. Dipippa
South Carolina Law Review
No abstract provided.
'Great Variety Of Relevant Conditions, Political, Social And Economic': The Constitutionality Of Congressional Deadlines On Amendment Proposals Under Article V, Danaya C. Wright
'Great Variety Of Relevant Conditions, Political, Social And Economic': The Constitutionality Of Congressional Deadlines On Amendment Proposals Under Article V, Danaya C. Wright
UF Law Faculty Publications
Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing …
Book Review Of Sarah Barringer Gordon's The Mormon Question: Polygamy And Constitutional Conflict In Nineteenth-Century America, Nathan B. Oman
Book Review Of Sarah Barringer Gordon's The Mormon Question: Polygamy And Constitutional Conflict In Nineteenth-Century America, Nathan B. Oman
Nathan B. Oman
No abstract provided.
Magna Carta, Civil Law, And Canon Law, Thomas J. Mcsweeney
Magna Carta, Civil Law, And Canon Law, Thomas J. Mcsweeney
Thomas J. McSweeney
No abstract provided.
Magna Carta And The Right To Trial By Jury, Thomas J. Mcsweeney
Magna Carta And The Right To Trial By Jury, Thomas J. Mcsweeney
Thomas J. McSweeney
No abstract provided.
Creating A Literature For The King’S Courts In The Later Thirteenth Century: Hengham Magna, Fet Asaver, And Bracton, Thomas J. Mcsweeney
Creating A Literature For The King’S Courts In The Later Thirteenth Century: Hengham Magna, Fet Asaver, And Bracton, Thomas J. Mcsweeney
Thomas J. McSweeney
The early common law produced a rich literature. This article examines two of the most popular legal treatises of the second half of the thirteenth century, Hengham Magna and Fet Asaver. It has long been recognized that these two treatises bear some relationship to each other. This article will attempt to establish that relationship, arguing that Hengham Magna and Fet Asaver were written by different people; that Fet Asaver borrows from Hengham Magna; and that the authors of both texts had independent access to the Bracton treatise. The article concludes by suggesting a new way to think about the legal …
Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney
Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney
Thomas J. McSweeney
One of the major branches of the field of law and literature is often described as "law as literature." Scholars of law as literature examine the law using the tools of literary analysis. The scholarship in this subfield is dominated by the discussion of narrative texts: confessions, victim-impact statements, and, above all, the judicial opinion. This article will argue that we can use some of the same tools to help us understand non-narrative texts, such as law codes and statutes. Genres create expectations. We do not expect a law code to be literary. Indeed, we tend to dissociate the law …
Between England And France: A Cross-Channel Legal Culture In The Late Thirteenth Century, Thomas J. Mcsweeney
Between England And France: A Cross-Channel Legal Culture In The Late Thirteenth Century, Thomas J. Mcsweeney
Thomas J. McSweeney
No abstract provided.