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Full-Text Articles in Law
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 …
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 …
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 …
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 …
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 …