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Legal history

2012

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Articles 1 - 30 of 62

Full-Text Articles in Law

Circumspect Agatis Revisted, David K. Millon Dec 2012

Circumspect Agatis Revisted, David K. Millon

David K. Millon

None available.


Book Review, (Reviewing Norman Doe, Fundamental Authority In Late Medieval English Law (1990)), David K. Millon Dec 2012

Book Review, (Reviewing Norman Doe, Fundamental Authority In Late Medieval English Law (1990)), David K. Millon

David K. Millon

None available.


Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen Dec 2012

Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen

All Faculty Scholarship

In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in …


Common Ownership And Equality Of Autonomy, Anna Di Robilant Dec 2012

Common Ownership And Equality Of Autonomy, Anna Di Robilant

Faculty Scholarship

In recent years, common ownership has enjoyed unprecedented favour among policy-makers and citizens in the United States, Canada, and Europe. Conservation land trusts, affordable-housing co-operatives, community gardens, and neighborhood-managed parks are spreading throughout major cities. Normatively, these common-ownership regimes are seen as yielding a variety of benefits, such as a communitarian ethos in the efficient use of scarce resources, or greater freedom to interact and create in new ways. The design of common-ownership regimes, however, requires difficult trade-offs. Most importantly, successful achievement of the goals of common-ownership regimes requires the limitation of individual co-owners’ ability to freely use the common …


Austin's Intentions: A Critical Reconstruction Of His Concept Of Legal Science, Richard T. Bowser, J. Stanley Mcquade Nov 2012

Austin's Intentions: A Critical Reconstruction Of His Concept Of Legal Science, Richard T. Bowser, J. Stanley Mcquade

Richard T. Bowser

No abstract provided.


The Employment Relationship In Anglo-American Law: A Historical Perspective, Marc Linder Nov 2012

The Employment Relationship In Anglo-American Law: A Historical Perspective, Marc Linder

Marc Linder

No abstract provided.


Ideologies Of Professionalism And The Politics Of Self-Regulation In The California State Bar, William T. Gallagher Nov 2012

Ideologies Of Professionalism And The Politics Of Self-Regulation In The California State Bar, William T. Gallagher

Pepperdine Law Review

No abstract provided.


Austin's Intentions: A Critical Reconstruction Of His Concept Of Legal Science, Richard T. Bowser, J. Stanley Mcquade Nov 2012

Austin's Intentions: A Critical Reconstruction Of His Concept Of Legal Science, Richard T. Bowser, J. Stanley Mcquade

J. Stanley McQuade

No abstract provided.


Book Review Of Remaking Customs: Law And Identity In The Early American Republic, By Ellen Holmes Pearson, Steven J. Macias Nov 2012

Book Review Of Remaking Customs: Law And Identity In The Early American Republic, By Ellen Holmes Pearson, Steven J. Macias

Journal of Legal Education

No abstract provided.


Tinkering Around The Edges: The Supreme Court's Death Penalty Jurisprudence, John Bessler Oct 2012

Tinkering Around The Edges: The Supreme Court's Death Penalty Jurisprudence, John Bessler

All Faculty Scholarship

This Essay examines America's death penalty forty years after Furman and provides a critique of the Supreme Court's existing Eighth Amendment case law. Part I briefly summarizes how the Court, to date, has approached death sentences, while Part II highlights the incongruous manner in which the Cruel and Unusual Punishments Clause has been read. For instance, Justice Antonin Scalia-one of the Court's most vocal proponents of "originalism" conceded that corporal punishments such as handbranding and public flogging are no longer constitutionally permissible; yet, he (and the Court itself) continues to allow death sentences to be imposed. The American Bar Association …


The Haunting Of Abigail Fisher: Race, Affirmative Action, And The Ghosts Of Legal History, Hilary A. Leewong Sep 2012

The Haunting Of Abigail Fisher: Race, Affirmative Action, And The Ghosts Of Legal History, Hilary A. Leewong

Hilary A Leewong

What is race in 2012, and why does it matter?

At the end of the current term, the Supreme Court will decide Fisher v. University of Texas. In doing so, the Court revisits the role of affirmative action and the meaning of race much sooner than constitutional law scholars, and likely the average college applicant, expected it would.

The Court’s last definitive take on the subject was conveyed by Justice O’Connor in 2003’s Grutter v. Bollinger. Justice O’Connor’s opinion conveyed disappointment that race-based admissions in higher education was still necessary this long after Brown v. Board of Education, heralded the …


Shaping The Disclosure Tort: Scholars' Early Importance And Modern Impotence, Jared A. Wilkerson Aug 2012

Shaping The Disclosure Tort: Scholars' Early Importance And Modern Impotence, Jared A. Wilkerson

Jared A. Wilkerson

Legal scholars guided the creation and development of the disclosure tort for about seventy-five years (1890–1965), a period in which most states recognized a common law or statutory right to privacy. Since then, however, scholarly attempts to curb or modify the tort have yielded nothing. This article—beginning with the formalism-realism debate won by such sages as Brandeis, Pound, and Prosser and ending with modern experts like Chemerinsky, Posner, and Solove—shows that notwithstanding enormous efforts by some of America’s most respected contemporary academics, would-be reformers of the disclosure tort have not budged it since Prosser’s definition in the Restatement (Second). This …


Turbulence Ahead: The Future Of Law Schools In Japan, Shigenori Matsui Aug 2012

Turbulence Ahead: The Future Of Law Schools In Japan, Shigenori Matsui

Journal of Legal Education

No abstract provided.


Legal Education Reform In Taiwan: Are Japan And Korea The Models?, Thomas Chih-Hsiung Chen Aug 2012

Legal Education Reform In Taiwan: Are Japan And Korea The Models?, Thomas Chih-Hsiung Chen

Journal of Legal Education

No abstract provided.


Redeeming And Living With Evil, Mark A. Graber May 2012

Redeeming And Living With Evil, Mark A. Graber

Mark Graber

Jack Balkin’s Constitutional Redemption and Sandy Levinson’s Constitutional Faith understand the problem of constitutional evil quite differently than Dred Scott and the Problem of Constitutional Evil. Balkin and Levinson regard constitutional redemption and faith as rooted in the possibility that Americans will eventually defeat evil. Constitutional Evil takes the far more pessimistic view that evil will never be defeated. Constitutional faith and redemption in our permanently fallen state is rooted in the possibility that Americans will find ways of living with each other peaceably knowing that the price of union is the continual obligation to make what the abolitionist William …


A Business Lawyer's Bibliography: Books Every Dealmaker Should Read, Robert C. Illig May 2012

A Business Lawyer's Bibliography: Books Every Dealmaker Should Read, Robert C. Illig

Journal of Legal Education

No abstract provided.


The Oregon And California Railroad Grant Lands’ Sordid Past, Contentious Present, And Uncertain Future: A Century Of Conflict, Michael Blumm Apr 2012

The Oregon And California Railroad Grant Lands’ Sordid Past, Contentious Present, And Uncertain Future: A Century Of Conflict, Michael Blumm

Michael Blumm

This article examines the long, contentious history of the Oregon & California Land Grant that produced federal forest lands now managed by the Bureau of Land Management (“O&C lands”), including an analysis of how these lands re-vested to the federal government following decades of corruption and scandal, and the resulting congressional effort that created a management structure supporting local county governments through overharvesting the lands for a half-century. The article proceeds to trace the fate of O&C lands through the “spotted owl wars” of the 1990s, the ensuing Northwest Forest Plan (NWFP), the timber salvage rider of 1995, and the …


The Devil Made Me Do It: The Plenary Power Doctrine And The Myth Of The Chinese Exclusion Case, Deborah A. Leak, Earl Maltz Apr 2012

The Devil Made Me Do It: The Plenary Power Doctrine And The Myth Of The Chinese Exclusion Case, Deborah A. Leak, Earl Maltz

Deborah A Leak

No abstract provided.


The Long And Winding Road From Monroe To Connick, Sheldon Nahmod Apr 2012

The Long And Winding Road From Monroe To Connick, Sheldon Nahmod

All Faculty Scholarship

In this article, I address the historical and doctrinal development of § 1983 local government liability, beginning with Monroe v. Pape in 1961 and culminating in the Supreme Court’s controversial 2011 failure to train decision in Connick v. Thompson. Connick has made it exceptionally difficult for § 1983 plaintiffs to prevail against local governments in failure to train cases. In the course of my analysis, I also consider the oral argument and opinions in Connick as well as various aspects of § 1983 doctrine. I ultimately situate Connick in the Court’s federalism jurisprudence which doubles back to Justice Frankfurter’s view …


Justice Jackson's 1946 Nuremberg Reflections At Buffalo: An Introduction, Alfred S. Konefsky, Tara J. Melish Apr 2012

Justice Jackson's 1946 Nuremberg Reflections At Buffalo: An Introduction, Alfred S. Konefsky, Tara J. Melish

Buffalo Law Review

This Essay introduces the 2011 James McCormick Mitchell Lecture, “From Nuremberg to Buffalo: Justice Jackson’s Enduring Lessons of Morality and Law in a World at War,” a commemoration of Jackson’s 1946 centennial convocation speech at the University of Buffalo. It discusses Jackson’s speech, breaks down its thematic components, and situates the distinguished Mitchell Lecturers’ responses to it in context. Unlike Justice Jackson’s commanding and historic opening and closing statements as U.S. chief prosecutor at Nuremberg, Jackson’s 1946 speech, delivered just days after his return from Germany where he heard the Nuremberg Tribunal deliver its final judgment and verdicts, has largely …


Book Review, Christian G. Samito (Ed.). Changes In Law And Society During The Civil War And Reconstruction: A Legal History Documentary Reader. Carbondale: Southern Illinois University Press, 2009. 352 Pages. $29.50 (Paper), Thomas Reed Mar 2012

Book Review, Christian G. Samito (Ed.). Changes In Law And Society During The Civil War And Reconstruction: A Legal History Documentary Reader. Carbondale: Southern Illinois University Press, 2009. 352 Pages. $29.50 (Paper), Thomas Reed

Thomas J Reed

No abstract provided.


American Influence On Israeli Law: Freedom Of Expression, Pnina Lahav Mar 2012

American Influence On Israeli Law: Freedom Of Expression, Pnina Lahav

Faculty Scholarship

This chapter provides a historical overview of the American influence on Israel’s jurisprudence of freedom of expression from the 1950s to the first decade of the twenty first century. The chapter uses the format of decades, presenting representative cases for each decade, to record the process by which Israeli judges incorporated and sometimes rejected themes from the U.S. jurisprudence of freedom of expression. In the course of discussing the jurisprudential themes the chapter also highlights the historical context in which the cases were decided, from the war in Korea and McCarthyism in the 1950s, to the process of globalization which …


Antitrust Energy, D. Daniel Sokol, Barak Orbach Mar 2012

Antitrust Energy, D. Daniel Sokol, Barak Orbach

UF Law Faculty Publications

Marking the centennial anniversary of Standard Oil Co. v. United States, we argue that much of the critique of antitrust enforcement and the skepticism about its social significance suffer from “Nirvana fallacy” — comparing existing and feasible policies to ideal normative policies, and concluding that the existing and feasible ones are inherently inefficient because of their imperfections. Antitrust law and policy have always been and will always be imperfect. However, they are alive and kicking. The antitrust discipline is vibrant, evolving, and global. This essay introduces a number of important innovations in scholarship related to Standard Oil and its modern …


Americans' Unwillingness To Pay Taxes Before The American Revolution: An Uncomfortable Legacy, Richard A. Westin Mar 2012

Americans' Unwillingness To Pay Taxes Before The American Revolution: An Uncomfortable Legacy, Richard A. Westin

Law Faculty Scholarly Articles

When one reflects on the sorry condition of America’s finances one has to wonder why there is such resistance to fiscal discipline. Is it merely because there is an obstreperous group in the US Congress who cannot abide any tax? Has the public been subtly lobbied into believing that American taxes are high, pointless and intolerable or is there some gene in the America’s body politic that has always been there that expresses itself from time to time in a pernicious cheapness? Perhaps all those things are true, or perhaps none. Nevertheless, a glance backward at Colonial days can stimulate …


Unjustifiable Expectations: Laying To Rest The Ghosts Of Allotment-Era Settlers, Ann E. Tweedy Feb 2012

Unjustifiable Expectations: Laying To Rest The Ghosts Of Allotment-Era Settlers, Ann E. Tweedy

Ann E. Tweedy

When the Supreme Court decides whether a tribe has jurisdiction over non-members on its reservation or addresses the related issue of reservation diminishment, it often refers implicitly or explicitly to the non-Indians’ justifiable expectations. The non-Indians’ assumed expectations arise from the fact that, when Congress opened up reservations to non-Indians during the allotment era, its assumption, and presumably that of non-Indians who purchased lands on reservations during that period, was that the reservations would disappear due to the federal government’s assimilationist policies, along with the tribes who governed them. To refute the idea that such non-Indian expectations were justifiable, I …


Screaming To Be Heard: Black Feminism And The Fight For A Voice From The 1950s - 1970s, Preston D. Mitchum Feb 2012

Screaming To Be Heard: Black Feminism And The Fight For A Voice From The 1950s - 1970s, Preston D. Mitchum

Preston D. Mitchum

No abstract provided.


Screaming To Be Heard: Black Feminism And The Fight For A Voice From The 1950s - 1970s, Preston D. Mitchum Feb 2012

Screaming To Be Heard: Black Feminism And The Fight For A Voice From The 1950s - 1970s, Preston D. Mitchum

Preston D. Mitchum

No abstract provided.


Screaming To Be Heard: Black Feminism And The Fight For A Voice From The 1950s - 1970s, Preston D. Mitchum Feb 2012

Screaming To Be Heard: Black Feminism And The Fight For A Voice From The 1950s - 1970s, Preston D. Mitchum

Preston D. Mitchum

No abstract provided.


Screaming To Be Heard: Black Feminism And The Fight For A Voice From The 1950s - 1970s, Preston D. Mitchum Feb 2012

Screaming To Be Heard: Black Feminism And The Fight For A Voice From The 1950s - 1970s, Preston D. Mitchum

Preston D. Mitchum

No abstract provided.


Screaming To Be Heard: Black Feminism And The Fight For A Voice From The 1950s - 1970s, Preston D. Mitchum Feb 2012

Screaming To Be Heard: Black Feminism And The Fight For A Voice From The 1950s - 1970s, Preston D. Mitchum

Preston D. Mitchum

No abstract provided.