Law Commons^™

Echoes Of The Impact Of Webb V. Mcgowin On The Doctrine Of Consideration Under Contract Law: Some Reflections On The Decision On The Approach Of Its 75th Anniversary, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

James Buchanan As Savior? Judicial Power, Political Fragmentation, And The Failed 1831 Repeal Of Section 25, Mark A. Graber

Faculty Scholarship

James Buchanan is often credited with being the unlikely savior of judicial review in early Jacksonian America. In 1831, Buchanan, then a representative from Pennsylvania, issued a minority report criticizing the proposed repeal of Section 25 of the Judiciary Act of 1789 that is generally credited with convincing a skeptical Congress that fundamental constitutional norms required federal judicial oversight of state courts and state legislatures. This paper claims that federalism and political fragmentation were more responsible than James Buchanan for the failed repeal of Section 25, for the maintenance of judicial power in the United States during the transition from …

The Definitional Hub Of E-Commerce: "Record", Christina L. Kunz

Faculty Scholarship

This Article is a drafting history and a white paper on “record,” setting out the ABA's Working Group on Electronic Writings and Notices' (WG) deliberations and choices, the WG's interactions with concurrent and subsequent UCC redraft committees, the principles and policies underlying the WG's final decisions, and uses of “record” in subsequent statutes.

Justice Roger Traynor Professorship Acceptance, John E. Noyes

Faculty Scholarship

Acceptance of John Noyes for the inaugural Roger J. Traynor Professor of Law.

The Law And The Host Of The Canterbury Tales, Frederick B. Jonassen

Faculty Scholarship

No abstract provided.

The Warren Court, Legalism And Democracy: Sketch For A Critique In A Style Learned From Morton Horwitz, William H. Simon

Faculty Scholarship

Morton Horwitz's Transformation books developed a critical approach that elaborates the underlying premises of legal doctrine and compares them to suppressed or ignored alternative perspectives. However, Horwitz's Warren Court book is largely an appreciation of the Court's doctrine that accepts at face value its underlying premises and the judges' claim to vindicate democratic values. In this essay, I speculate on what a Transformation-style critique of the Warren Court might look like and suggest that the Court is vulnerable to criticisms analogous to those the Transformation books make of earlier doctrine. I suggest that book ignores an alternative perspective on social …

Why The Chinese Public Prefer Administrative Petitioning Over Litigation, Taisu Zhang

Faculty Scholarship

In recent years, the Chinese public, when facing disputes with government officials, have preferred a non-legal means of resolution, the Xinfang system, over litigation. Some scholars explain this by claiming that administrative litigation is less effective than Xinfang petitioning. Others argue that the Chinese have historically eschewed litigation and continue to do so habitually. This paper proposes a new explanation: Chinese have traditionally litigated administrative disputes, but only when legal procedure is not too adversarial and allows for the possibility of reconciliation through court-directed settlement. Since this possibility does not formally exist in modern Chinese administrative litigation, people tend to …

Guns As Smut: Defending The Home-Bound Second Amendment, Darrell A. H. Miller

Faculty Scholarship

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees a personal, individual right to keep and bear arms. But the Court left lower courts and legislatures adrift on the fundamental question of scope. While the Court stated in dicta that some regulation may survive constitutional scrutiny, it left the precise contours of the right, and even the method by which to determine those contours, for 'future evaluation."

This Article offers a provocative proposal for tackling the issue of Second Amendment scope, one tucked in many dresser drawers across the nation: Treat the Second Amendment …

A Convenient Constitution? Extraterritoriality After Boumediene, Christina Duffy Ponsa-Kraus

Faculty Scholarship

Questions concerning the extraterritorial applicability of the Constitution have come to the fore during the "war on terror." In Boumediene v. Bush, the Supreme Court held that noncitizens detained in Guantánamo have the right to challenge their detention in federal court. To reach this conclusion, the Court used the "impracticable and anomalous" test, also known as the 'functional" approach because of its reliance on pragmatic or consequentialist considerations. The test first appeared in a concurring opinion over fifty years ago; in Boumediene, it garnered the votes of a majority.

This Article argues that the Boumediene Court was right …

Assessing Chinese Legal Reforms, Benjamin L. Liebman

Faculty Scholarship

Over the past thirty years China has engaged in what is perhaps the most rapid development of any legal system in the history of the world. The Chinese legal system has been fundamentally transformed since 1978. At the beginning of the reform era there were few laws or trained personnel. Today, China has sophisticated legal institutions, thousands of laws and regulations, and the third largest number of lawyers in the world. Law has begun to regulate both state and individual behavior in ways that were inconceivable in 1978. Commitment to the rule of law has become an important part of …

Explaining The Sioux Military Commission Of 1862, Maeve Glass

Faculty Scholarship

Part I of this Note describes current scholarship on the history of military commissions and identifies a gap in the prevailing narrative, namely, an explanation for why the military favored a legal process over collective reprisals or summary executions. Part II seeks to address this gap, by examining the circumstances in which the military convened the commission and the context in which President Abraham Lincoln approved it. Part III concludes that this historical perspective helps clarify the original role of military commissions as articulated in the Supreme Court case of Hamdan v. Rumsfeld and calls into question whether an institution …