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Full-Text Articles in Law

Embracing Unconscionability’S Safety Net Function, Amy J. Schmitz Oct 2008

Embracing Unconscionability’S Safety Net Function, Amy J. Schmitz

Faculty Publications

Despite courts' and commentators' denial of morality and focus on efficiency in contract law, fairness and flexibility have remained the bedrocks of the unconscionability doctrine. This Article therefore departs from the popular formalist critiques of unconscionability that urge for the doctrine's demise or constraint based on claims that its flexibility and lack of clear definition threaten efficiency in contract law. Contrary to this formalist trend, this Article proposes that unconscionability is necessarily flexible and contextual in order to serve its historical and philosophical function of protecting core human values. Unconscionability is not frivolous gloss on classical contract law. Instead, it …


Is A Burrito A Sandwich? Exploring Race, Class, And Culture In Contracts, Marjorie Florestal Jan 2008

Is A Burrito A Sandwich? Exploring Race, Class, And Culture In Contracts, Marjorie Florestal

Michigan Journal of Race and Law

A superior court in Worcester, Massachusetts, recently determined that a burrito is not a sandwich. Surprisingly, the decision sparked a firestorm of media attention. Worcester, Massachusetts, is hardly the pinnacle of the culinary arts-so why all the interest in the musings of one lone judge on the nature of burritos and sandwiches? Closer inspection revealed the allure of this otherwise peculiar case: Potentially thousands of dollars turned on the interpretation of a single word in a single clause of a commercial contract. Judge Locke based his decision on "common sense" and a single definition of sandwich-"two thin pieces of bread, …


Chapter 10: Reciprocity, Exchange, Gifts, Contracting, Trust (The Anthropology Of Commutative Justice), Wolfgang Fikentscher Jan 2008

Chapter 10: Reciprocity, Exchange, Gifts, Contracting, Trust (The Anthropology Of Commutative Justice), Wolfgang Fikentscher

Wolfgang Fikentscher

Inclusive online updates jan10. The anthropology of law borders at the anthropologies of religion and of economics. Interdisciplinary work in these three fields is essential. In the anthropology of economics, this raises the issue whether to approach the overlapping areas from the economic or the anthropological side. This chapter argues in favor of the latter, reporting on (I.). an overview of the mainstream results and ensuing remarks and, (II.) because of their special importance for modern political tasks, the anthropology of the market and of competition, including the anthropologies of giving thanks and corruption. As in all chapters, a bibliography …


Two Crises Of Confidence: Securing Non-Proliferation And The Rule Of Law Through Security Council Resolutions, Vik Kanwar Jan 2008

Two Crises Of Confidence: Securing Non-Proliferation And The Rule Of Law Through Security Council Resolutions, Vik Kanwar

Vik Kanwar

This timely article describes the powers of the United Nations Security Council as they have developed in the field of non-proliferation, and demonstrated in recent resolutions, and goes on to propose a normative framework based on the model of reciprocal “confidence-building” measures to ensure the legality and legitimacy of these resolutions.

Recent proliferation crises (concerning Iran, North Korea, and non-state proliferation networks) have led the Council draw upon various sources-- express and implied powers under the UN Charter, powers granted by specific treaties, and an unusual degree of international consensus-- to expand its powers. This paper attempts to transcend false …


The Fake Revolution: Understanding Legal Realism, Eric A. Engle Jan 2008

The Fake Revolution: Understanding Legal Realism, Eric A. Engle

Eric A. Engle

Abstract: Legal interpretation in the United States changed dramatically between 1930 and 1950. The Great Depression and World War II unleashed radical critique (particularly prior to the war). Legal realism proposed radical new methods of legal interpretation to try to meet the challenges of global depression and global war. The new legal methods proposed by realism at first seemed to indicate a new legal order. In fact, they only preserved the old order, protecting it from fundamental change. Thus, the same problem, cyclical economic downturn triggering war for resources and market share recurred in Vietnam. Just as the depression and …


The Reception Of Hans Kelsen's Legal Theory In The United States: A Sociological Model, D. A. Jeremy Telman Jan 2008

The Reception Of Hans Kelsen's Legal Theory In The United States: A Sociological Model, D. A. Jeremy Telman

D. A. Jeremy Telman

The Essay explores the reasons underlying opposition to Hans Kelsen's approach to the law within the U.S. legal academy. The vehemence with which legal scholars within the United States rejected Kelsen's philosophy of law is best understood as a product of numerous factors, some philosophical, some political and some having to do with professional developments within the legal academy itself. Because philosophical and political opposition to Kelsen's legal philosophy has been well-explored in earlier articles, this Essay discusses those topics briefly in Part I and then sets out in Part II a sociological model that grounds the academy's rejection of …


Reflections On The Nature Of Legal Scholarship In The Post-Realist Era, Marin Roger Scordato Jan 2008

Reflections On The Nature Of Legal Scholarship In The Post-Realist Era, Marin Roger Scordato

Scholarly Articles

This article presents a tightly organized and closely reasoned analysis of legal scholarship in the current post-realist era. Secure and well-defined within the formalist legal world of the nineteenth century, the practice of legal scholarship has been profoundly affected by the realist revolution of the early twentieth century and the instrumentalist view of law that now prevails in the twenty-first century. In response, legal scholars have been forced to dramatically alter the focus, the materials and the basic methods of their study. The practice of legal scholarship is currently occupied in a prolonged struggle to adapt to these changes and …


The Reception Of Hans Kelsen's Legal Theory In The United States: A Sociological Model, D. A. Jeremy Telman Jan 2008

The Reception Of Hans Kelsen's Legal Theory In The United States: A Sociological Model, D. A. Jeremy Telman

Law Faculty Publications

The Essay explores the reasons underlying opposition to Hans Kelsen's approach to the law within the U.S. legal academy. The vehemence with which legal scholars within the United States rejected Kelsen's philosophy of law is best understood as a product of numerous factors, some philosophical, some political and some having to do with professional developments within the legal academy itself. Because philosophical and political opposition to Kelsen's legal philosophy has been well-explored in earlier articles, this Essay discusses those topics briefly in Part I and then sets out in Part II a sociological model that grounds the academy's rejection of …


Formalism And Judicial Supremacy In Federal Indian Law, Alex Tallchief Skibine Jan 2008

Formalism And Judicial Supremacy In Federal Indian Law, Alex Tallchief Skibine

American Indian Law Review

No abstract provided.


You Say You Want A Revolution: Interpretive Communities And The Origins Of Islamic Finance, Haider Ala Hamoudi Jan 2008

You Say You Want A Revolution: Interpretive Communities And The Origins Of Islamic Finance, Haider Ala Hamoudi

Articles

Despite its currently conservative character, the modern practice of Islamic finance lies on a bedrock of social, cultural and economic revolution. Examination of these revolutionary origins and their attendant jurisprudential implications reveal much about the schizophrenia plaguing Islamic finance today, of a largely formalist practice repeating the functional aims of the early revolutionaries and falsely understood by substantial portions of the wider Muslim community to be achieving such aims. Though the revolution has not come to pass, some of the comparatively radical functional approaches conceived in the context of the anticipated upheaval, and in particular those of the Iraqi Shi'i …


From Langdell To Law And Economics: Two Conceptions Of Stare Decisis In Contract Law And Theory, Jody S. Kraus Jan 2008

From Langdell To Law And Economics: Two Conceptions Of Stare Decisis In Contract Law And Theory, Jody S. Kraus

Faculty Scholarship

In his classic monograph, The Death of Contract, Grant Gilmore argued that Christopher Columbus Langdell, Oliver Wendell Holmes, and Samuel Williston trumped up the legal credentials for their classical bargain theory of contract law. Gilmore's analysis has been subjected to extensive criticism, but its specific, sustained, and fundamental charge that the bargain theory was based on a fraudulent misrepresentation of precedential authority has never been questioned. In this Essay, I argue that Gilmore's case against the classical theorists rests on the suppressed premise that the precedential authority of cases resides in the express judicial reasoning used to decide them. In …


In Their Own Hand: An Analysis Of Holographic Wills And Homemade Willmaking, Stephen Clowney Dec 2007

In Their Own Hand: An Analysis Of Holographic Wills And Homemade Willmaking, Stephen Clowney

Stephen Clowney

Holographic wills - wills that are handwritten and unwitnessed - are traditionally thought of as a risky, do it yourself brand of estate planning. In the author's view, this is wrong. Using two years' of probate records from Pittsburgh, Pennsylvania, this Article demonstrates that holographs are an indispensable tool for testators who are either unwilling or unable to commission a traditional will. Homemade testaments provide a low-cost alternative to intestacy, improve the overall quantity of will-making, function as a safety-net for testators who fall suddenly ill, and rarely result in litigation. The triumph of holographic wills also suggests, strongly, that …