Law Commons^™

The Concept Of Religion, Eduardo M. Peñalver

Cornell Law Faculty Publications

Roman Law And The Armenian Draft Civil Code, Alan Watson

Popular Media

Professor Watson served along with other eminent scholars as a consultant to the drafters of the Armenian Code. This article is condensed from his book: Ancient Law and Modern Understanding: At the Edges.

Curses, Oaths, Ordeals And Tials Of Animals, Alan Watson

Scholarly Works

To the outsider, a foreign legal system may at times appear irrational, with a belief in the efficacy, usually with supernatural assistance, of curses, oaths and ordeals, and that animals may properly be punished, even restrained from anti-human behaviour, after a criminal trial. But caution must be exercised. There may be little real belief that the deity will intervene-for instance, that the ordeal will reveal guilt or innocence. Rather, the society may be faced with an intolerable problem, with no reasonable solution, and the participants may resort to extraordinary legal measures as a "Last Best Chance", or "The Second Best". …

Are Housekeepers Like Judges?, Stephen P. Garvey

Cornell Law Faculty Publications

Professor Greenawalt proposes that we look at interpretation "from the bottom up." By taking a close look at informal relationships between an authority and his or her agent, and how the agent "faithfully performs" instructions within such relationships, he hopes to gain insight into the problems surrounding the interpretation of legal directives. The analysis of "faithful performance" in informal contexts which Professor Greenawalt presents in From the Bottom Up is the first step in a larger project. His next step is to see what lessons the interpretation of instructions in informal contexts has for law. This Comment tries to contribute …

Limited-Domain Positivism As An Empirical Proposition, Stewart J. Schwab

Cornell Law Faculty Publications

In his typically clear statement of a provocative thesis, Fred Schauer, along with his co-author, Virginia Wise, ask us to think about positivism in a new way. Their claim has two parts. First, Schauer and Wise redefine legal positivism as an empirical claim about the limited domain of information that legal decisionmakers use to make decisions. Second, they begin testing the extent to which our legal system in fact reflects this limited domain. Ironically, Schauer and Wise believe that positivism, so conceived, is "increasingly false." Thus, their two-part approach is, first, to declare that legal positivism should be conceived of …

Loyal Lieutenant, Able Advocate: The Role Of Robert H. Jackson In Franklin D. Roosevelt's Battle With The Supreme Court, Stephen R. Alton

Faculty Scholarship

This Article presents a chronological, narrative account of Jackson's participation in the court fight over Roosevelt's so-called "court packing plan." The larger history of that campaign and its players also are presented in order to illuminate Jackson's role. Although a number of secondary works-both old and new-review the history of the fight, the main purpose here is to relate Jackson's part in this larger history, drawing on. those secondary works only to the extent that they are helpful. This Article first recounts the historical background of the tension between the New Deal and the Supreme Court as well as the …

Recipe For Trouble: Some Thoughts On Meaning, Translation And Normative Theory, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

The Cathedral At Twenty-Five: Citations And Impressions, James E. Krier, Stewart J. Schwab

Cornell Law Faculty Publications

It was twenty-five years ago that Guido Calabresi and Douglas Melamed published their article on property rules, liability rules, and inalienability. Calabresi, then a law professor, later a dean, is now a federal judge. Melamed, formerly a student of Calabresi's, is now a seasoned Washington attorney. Their article—which, thanks to its subtitle, we shall call The Cathedral—has had a remarkable influence on our own thinking, as we tried to show in a recent paper.

This is not the place to rehash what we said then, but a summary might be in order. First, we demonstrated that the conventional wisdom …

Cultural Criticism Of Law, Guyora Binder, Robert Weisberg

Journal Articles

Professors Binder and Weisberg expound a "cultural criticism" of law that views law as an arena for composing, representing, and contesting identity, and that treats identity as constitutive of the interests that motivate instrumental action. They explicate this critical method by reference to "New Historicist" literary criticism, postmodern social theory, and Nietzchean aesthetics. They illustrate this method by reviewing recent scholarship of two kinds: First, they explore how legal disputes take on expressive meaning for parties and observers against the background of legal norms regulating or recognizing identities. Second, they examine "readings" of the representations of character, credit, and value …

Piercing Pareto Superiority: Real People And The Obligations Of Legal Theory, Jeffrey L. Harrison

UF Law Faculty Publications

This essay has two purposes. The first is to demonstrate that the appearance of mutual assent and Pareto Superiority are weak bases for enforcing agreements. Pareto Superiority, as unassailable as it may seem, is paper-thin and frequently based on illusions and a normatively meaningless assessment of what it means to be better off. The approach here is one of piercing Pareto Superiority in order to examine the human factors that may determine whether an agreement occurs and its distributive consequences. Relative deprivation is the instrument used. The second purpose is to suggest that it is the obligation of legal theory …

The Uses And Abuses Of Risk Management: How Men Learnt To Bet Against The Gods, Kenneth Anderson

Book Reviews

This 1997 review in the Times Literary Supplement (London) conjoins two books - the first, by investment banker turned finance historian Peter L. Berstein, is a history of the idea of risk, as it developed from Renaissance times through contemporary finance. The second, by the former editor of the derivatives journal Risk, Lillian Chew, is an account of contemporary financial derivatives and their uses and abuses. The point of linking these two books in a single review is to point out that the basic ideas behind today's financial derivatives - forms of forwards, options, swaps, and so on - are …

Virginia Law Reports And Records, 1776-1800, William Hamilton Bryson

Law Faculty Publications

In 1607 Virginia was settled by a London-based corporation, and the English settlers brought with them the municipal law and legal institutions of England. It was specifically required by the instructions to the Virginia Company that litigation was to be settled "as near to the common laws of England and the equity thereof as may be". In 1632 when commissioners were appointed to hold the monthly courts (later renamed the county courts), their commissions required them to execute the office of justice of the peace and to act "as near as may be after the laws of the realm of …

The Look Within: Property, Capacity, And Suffrage In Nineteenth-Century America, Jacob Katz Cogan

Faculty Articles and Other Publications

This Note looks at the trajectory of suffrage reform from the late eighteenth century to the adoption of the Fifteenth Amendment and argues that reformers were obsessed with the inner qualities of persons. Whereas the eighteenth century had located a person's capacity for political participation externally (in material things, such as property), the nineteenth century found these qualities internally (in innate and heritable traits, such as intelligence). To chart the transformation, this Note examines the debates over suffrage in the state constitutional conventions of the late eighteenth and nineteenth centuries, as well as contemporaneous commentaries.

Part I will describe the …

Review Of Reason And Rhetoric In The Philosophy Of Hobbes, Donald J. Herzog

Reviews

In the 1960s, Quentin Skinner wrote a series of polemical if terse papers arguing that the conventional approach to the history of political theory was confused. Using Hobbes as something of a vehicle for his position, Skinner enunciated what is now well known as the "Cambridge" approach to political theory. He urged that we situate authors in their intellectual contexts so that we can isolate what is distinctive, perhaps subversive, in their use of language: only then, he argued, can we have any valid historical understanding on what they are doing in writing these weird books in the first place. …

Comment On Maccormick, William Ewald

All Faculty Scholarship

No abstract provided.

Hearsay Evidence: A Comparison Of Two Jurisdictions: United States And Nigeria, Lawrence Okechukwu Azubuike

LLM Theses and Essays

Many jurisdictions have detailed rules of evidence which regulate the facts that are admissible in court. The hearsay rule is one such rule which excludes certain evidence. The hearsay rule has roots in an old common law principle and is featured in many jurisdictions today, but has endured heavy criticisms over time. This paper examines the application of the hearsay rule in the United States and in Nigeria. Both are common law countries, however, the United States’ legal system is more advanced than that of Nigeria. This comparison aims to inform and assist current reform efforts in Nigeria.

Dumping And Anti-Dumping In International Trade Origins, Legal Nature, And Evolution Developments In Brazil And In The United States, Luiz Claudio Duarte

LLM Theses and Essays

Dumping is when an exporting country sells their goods in the foreign market for less than the price of the goods in their own domestic market. Dumping has a negative connotation because it threatens domestic industries in the importing country. In response to harmful dumping situations, mechanisms of defense have been developed to protect nations from unfair trade practices. The General Agreement on Tariffs and Trade (GATT) recognizes in Article VI anti-dumping tariffs as a legitimate defense to protect domestic industries from foreign predatory pricing practices. This paper focuses on anti-dumping developments in international trade since the beginning of the …

Federal Reserve: History, Purposes And Functions - An Analysis, Mukunda Lakshamanarao

LLM Theses and Essays

On December 23, 1913, President Woodrow Wilson signed into law the Federal Reserve Act. With this law, Congress established a central banking system which would enable the world’s most powerful industrial nation to manage its money and credit more effectively than ever before. The political and legislative struggle to create the Federal Reserve System was long and often bitter, and this final product in 1913 was the result of a carefully crafted and somewhat tenuous political compromise between national and regional powers. Since its founding, the Federal Reserve System has evolved to meet the needs of a changing financial system …

Paperwork Redux: The (Stronger) Paperwork Reduction Act Of 1995, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Hiram F. Stevens And The Founding Of The St. Paul College Of Law, Douglas R. Heidenreich

Faculty Scholarship

The St. Paul College of Law, one of William Mitchell College of Law's predecessor institutions, was established by five attorneys in 1900. Especially prominent among these attorneys was Hiram F. Stevens (1852-1904), who served as the first dean and was also a legislator, teacher, scholar, popular orator, and a founding member of the American Bar Association.

Black And White (Book Review), Anthony V. Alfieri

Articles

No abstract provided.

Dutch Uncle Sam: Immigration Reform And Notions Of Family, Lolita Buckner Inniss

Publications

No abstract provided.

Justice George Sutherland And Economic Liberty: Constitutional Conservatism And The Problem Of Factions, 6 Wm. & Mary Bill Rts. J. 1 (1997), Samuel R. Olken

UIC Law Open Access Faculty Scholarship

Most scholars have viewed Justice George Sutherland as a conservative jurist who opposed government regulation because of his adherence to laissez-faire economics and Social Darwinism, or because of his devotion to natural rights. In this Article, Professor Olken analyzes these widely held misperceptions of Justice Sutherland's economic liberty jurisprudence, which was based not on socio-economic theory, but on historical experience and common law. Justice Sutherland, consistent with the judicial conservatism of the Lochner era, wanted to protect individual rights from the whims of political factions and changing democratic majorities. The Lochner era differentiation between government regulations enacted for the public …

Chapter 6 - "Organized Mother Love": Moral Governance And The Maternal State In Late Nineteenth-Century America, Elizabeth B. Clark

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

This draft comprises two sequential pieces of a work very much in progress. They are unreconstructed first drafts which represent an attempt to get primary sources down on paper; and to draw a philosophy of governance out of a wide range of materials from the woman's temperance movement, most of which do not purport to be formal or theoretical statements. The first describes how evangelical women developed theories of moral governance within the home; the second how they translated those precepts into canons of civil governance.

Two- And Three-Dimensional Property Rights, Emily Sherwin

Cornell Law Faculty Publications

No abstract provided.

How Law Is Formal And Why It Matters, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

The Civil Opinions Of Judge Phyllis A. Kravitch: A Tribute, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Accountability For Past Abuses, Juan E. Mendez

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Baltimore Bound: Article Xiii, Section 1, "New Counties," Of The Maryland Constitution And The Baltimore City Annexation Acts Of 1888 And 1918, Michele Lefaivre

Legal History Publications

This paper examines the extension of Baltimore's boundaries in the late nineteenth and early twentieth century within the legal process which authorized it.

Group Agency And Group Rights, James W. Nickel

Articles

No abstract provided.