Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 10 of 10
Full-Text Articles in Law
Religious Rights In Historical, Theoretical And International Context: Hobby Lobby As A Jurisprudential Anomaly, S. I. Strong
Religious Rights In Historical, Theoretical And International Context: Hobby Lobby As A Jurisprudential Anomaly, S. I. Strong
Faculty Publications
The United States has a long and complicated history concerning religious rights, and the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., has done little to clear up the jurisprudence in this field. Although the decision will doubtless generate a great deal of commentary as a matter of constitutional and statutory law, the better approach is to consider whether and to what extent the majority and dissenting opinions reflect the fundamental principles of religious liberty. Only in that context can the merits of such a novel decision be evaluated free from political and other biases.
This …
Lost Options For Mutual Gain? The Layperson, The Lawyer, And Dispute Resolution In Early America, Carli N. Conklin
Lost Options For Mutual Gain? The Layperson, The Lawyer, And Dispute Resolution In Early America, Carli N. Conklin
Faculty Publications
In 1786, legal reform activist Benjamin Austin undertook a campaign to promote the use of arbitration over litigation as the primary method of dispute resolution in Massachusetts. Although supported by a groundswell of anti-lawyer sentiment, Austin ultimately failed in securing the triumph of arbitration. Exploring Austin's pamphlet campaign in its historical context not only provides us with a snapshot of the arguments for and against dispute resolution in early America, but also serves as a corrective to the prevailing accounts of arbitration in American legal history. This article explores the context and content of Austin's pamphlet campaign and its implications …
Teaching Legal History In The Age Of Practical Legal Education, Douglas E. Abrams
Teaching Legal History In The Age Of Practical Legal Education, Douglas E. Abrams
Faculty Publications
Historian Henry Steele Commager said, “History is useful in the sense that art is useful--or music or poetry or flowers; perhaps even in the sense that religion and philosophy is useful .... For without these things life would be poorer and meaner.” For law students who anticipate a career representing private and public clients and participating in public discussion, however, study of legal history carries rewards beyond intellectual stimulation and personal satisfaction. Law students contemplating client representation should ponder Justice Holmes's advice that “[h]istory must be a part of the study [of law], because without it we cannot know the …
Coconspirators, “Coventurers,” And The Exception Swallowing The Hearsay Rule, Ben L. Trachtenberg
Coconspirators, “Coventurers,” And The Exception Swallowing The Hearsay Rule, Ben L. Trachtenberg
Faculty Publications
In recent years, prosecutors - sometimes with the blessing of courts - have argued that when proving the existence of a “conspiracy” to justify admission of evidence under the Coconspirator Exception to the Hearsay Rule, they need show only that the declarant and the defendant were “coventurers” with a common purpose, not coconspirators with an illegal purpose. Indeed, government briefs and court decisions specifically disclaim the need to show any wrongful goal whatsoever. This Article contends that such a reading of the Exception is mistaken and undesirable. Conducted for this article, a survey of thousands of court decisions, including the …
Stories Of Crime, Trials, And Appeals In Civil War Era Missouri, Frank O. Bowman Iii
Stories Of Crime, Trials, And Appeals In Civil War Era Missouri, Frank O. Bowman Iii
Faculty Publications
This paper explores criminal appellate practice in Missouri from the time of statehood in 1821 until the 1870s, with particular focus on the decades before and after the Civil War. The article uses the stories of three trials in and around Columbia, Missouri - an attempted rape case against a slave that resulted in a lynching, a murder case against a white farmer that ended in his execution, and another murder case successfully appealed - to explore the legal culture of the period. All three trials involved two prominent central Missouri lawyers, James S. Rollins and Odon Guitar, who were …
Affirmative Refraction: Grutter V. Bollinger Through The Lens Of The Case "The Case Of The Speluncean Explorers", Rafael Gely, Paul L. Caron
Affirmative Refraction: Grutter V. Bollinger Through The Lens Of The Case "The Case Of The Speluncean Explorers", Rafael Gely, Paul L. Caron
Faculty Publications
What can a fifty year-old hypothetical about human cannibalism concocted by the late Lon Fuller teach us about the Supreme Court's recent foray into the affirmative action debate in twenty-first century America? Indeed, what can a tax law professor and a labor law professor add to the cacophony of voices of leading constitutional law scholars on the Court's most important pronouncement on race in a generation? We make a rather modest claim, based on teaching both of these cases in our one-week Introduction to Law classes for incoming first year students, that a helpful way to view Grutter v. Bollinger …
A Brief History Of 180-Day Exclusivity Under The Hatch-Waxman Amendments To The Federal Food, Drug, And Cosmetic Act, Erika Lietzan
A Brief History Of 180-Day Exclusivity Under The Hatch-Waxman Amendments To The Federal Food, Drug, And Cosmetic Act, Erika Lietzan
Faculty Publications
This article summarizes the history of the 180-day exclusivity provision in the Hatch- Waxman Amendments to the Federal Food, Drug, and Cosmetic Act (FDCA). Part II presents the statutory language, as amended in the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA), and summarizes the law that applies to new abbreviated new drug applications (ANDAs) (those filed after December 8, 2003, provided there was no paragraph IV certification to the listed drug prior to December 8), as well as the law that applies to all other ("old") ANDAs. Part III describes the legislative history of the original 1984 …
Dakota Civil Code: More Notes For An Uncelebrated Centennial, William B. Fisch
Dakota Civil Code: More Notes For An Uncelebrated Centennial, William B. Fisch
Faculty Publications
In an earlier article in this journal, I sketched and discussed the Dakota Civil Code as originally drafted for New York by David Dudley Field, the historical and conceptual background into which the work was cast, and some of the departures made in the Code from what appear to have been then generally accepted common law classifications, terminology and substantive rules. In this sequel I propose to consider the history of the Code after its completion in 1865 by Field's commission, concentrating on three jurisdictions: New York, where it was rejected after twenty-five years of wearying debate, amendment, parliamentary maneuver, …
Civil Code: Notes For An Uncelebrated Centennial, William B. Fisch
Civil Code: Notes For An Uncelebrated Centennial, William B. Fisch
Faculty Publications
This is the first installment of a projected study of the Dakota Civil Code. While this portion deals with the historical background of the Code and its content as drafted for New York by David Dudley Field, a subsequent article will deal with its fate in the hands of the bar, the legislature and the courts in New York, California, and especially the Dakotas.
Legal Aid Program For North Dakota, William B. Fisch
Legal Aid Program For North Dakota, William B. Fisch
Faculty Publications
Since the summer of 1965, the State Bar Association of North Dakota, through a special subcommittee on Legal Aid and Defense of Indigents and its standing committee on the same subject,1 has been investigating the need for legal aid in North Dakota, possible sources for funds to finance legal aid programs in the state, and possible forms which a program might take to meet the need. As a result of these investigations, a proposal has been prepared by the committee for submission to the Legal Services Program of the Office of Economic Opportunity (headed by Mr. Bamberger), for federal funds …