Legal History Commons^™

Professor Kingsfield Goes To Delhi: American Academics, The Ford Foundation, And The Development Of Legal Education In India, Jayanth K. Krishnan

Articles by Maurer Faculty

No abstract provided.

All The Lizards Stand And Say “Yes Yes Yes” : The Element Of Play In Legal Actions Against Animals And Inanimate Objects, Anna Pervukhin

ExpressO

Legal actions against non-humans (whether animals or objects) were once widespread. They were viewed seriously and undoubtedly served important social functions. This article considers the possibility that some of these actions may have been playful as well. Certain aspects of legal actions against animals and objects-- occasional moments of levity, a preoccupation with formal rules, and a strong emphasis on imaginative transformation-- suggest that these actions had elements of play. The possibility is worth considering for two reasons. First, it may shed some light on a practice that has perplexed and disturbed commentators for centuries. Second, an examination of play …

The Perils Of "Consensus": Hans Kelsen And The Legal Philosophy Of The United Nations, J. Peter Pham

ExpressO

Recently the United States and a number of its traditional allies have clashed over a variety of foreign policy issues that are profoundly juridical: the authority for war and peace, the International Criminal Court, etc. The source of these recent tensions is to be located at a level deeper than that of narrow national interests and specific policies. Rather, they arise from significant differences concerning the nature of "consensus" and, ultimately, legal philosophy. While the United Nations and many other international organizations derive their legal visions from the philosophy of law of Hans Kelsen (1881-1973), one of the most important …

Civilization And The Two Faces Of Law: J. M. Coetzee's Waiting For The Barbarians, Sinkwan Cheng

Cardozo Law Review

No abstract provided.

Why Europe Rejected American Judicial Review - And Why It May Not Matter, Alec Stone Sweet

Michigan Law Review

In this Article, I explore the question of why constitutional review, but not American judicial review, spread across Europe. I will also argue that, despite obvious organic differences between the American and European systems of review, there is an increasing convergence in how review actually operates. I proceed as follows. In Part I, I examine the debate on establishing judicial review in Europe, focusing on the French. In Parts II and III, I contrast the European and the American models of review, and briefly discuss why the Kelsenian constitutional court diffused across Europe. In Part IV, I argue that despite …

Approaches To Statutory Interpretation And Legislative History In France, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.

Tres Vidas, Una Guerra Rafael Iznaga, Bárbara Pérez Y Gregoria Quesada Entre La Emancipación Y La Ciudadanía, Rebecca Scott

Book Chapters

In this article, Scott takes a microhistorian approach as she looks at the ways in which three Cubans of color (Rafael Iznaga, Bárbara Pérez and Gregoria Quesada), from the same rural neighborhood, sought to define and attain citizenship during and immediately after the Cuban War of Independence from 1895-1898. Juxtaposing oral and written sources, Scott shows how such evidence can be both complementary and contradictory, and how each source should be examined in light of the others.

Rafael Iznaga fought in the war as a soldier of the Liberation Army, and returned with prestige and status. While his life can …

Hans Kelsen And The Logic Of Legal Systems, Michael S. Green

Faculty Publications

No abstract provided.

Review Of Explaining The English Revolution: Hobbes And His Contemporaries, Donald J. Herzog

Reviews

The explosion of primary texts from seven- teenth-century England continues to trigger an explosion of scholarly treatments today. For good reason, too: Lots of the primary texts are amazing, and not just those tired old warhors- es, Hobbes's Leviathan and Locke's Second Treatise. As fun and challenging as the primary texts are, you are forgiven a touch of skepticism if you wonder just what the latest author has to add to our understanding. You might redouble your skepticism if you just glance at Mark Stephen Jendrysik's table of contents, offering chapters on Winstanley, Milton, Cromwell, Filmer, and Hobbes, and zeroing …

Civil Rights And Civil Liberties: Whose “Rule Of Law”?, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

Legal Orientalism, Teemu Ruskola

Michigan Law Review

Fifty years ago comparative law was a field in search of a paradigm. In the inaugural issue of the American Journal of Comparative Law in 1952, Myres McDougal remarked unhappily, "The greatest confusion continues to prevail about what is being compared, about the purposes of comparison, and about appropriate techniques." In short, there seemed to be very little in the field that was not in a state of confusion. Two decades later, referring to McDougal's bleak assessment, John Merryman saw no evidence of progress: "few comparative lawyers would suggest that matters have since improved." And only a few years ago, …

The Supreme Court Of Canada: Its History, Powers And Responsibilities, Frank Iacobucci

The Journal of Appellate Practice and Process

No abstract provided.

Maladroit Or Not? Learning To Be Of Two Minds In The New Bijural Law Curricula, David Howes

Journal of Legal Education

No abstract provided.

Constitutional Design: Proposals Versus Processes, Donald L. Horowitz

Faculty Scholarship

No abstract provided.

Comparing The Two Legal Realisms—American And Scandinavian, Gregory S. Alexander

Cornell Law Faculty Publications

Stakeholder Protection In Germany And Japan, Mark J. Loewenstein

Publications

This Essay considers the stakeholder debate in the context of the German and Japanese legal systems. Although, nominally, corporations in those countries must operate in the interests of shareholders, in fact nonshareholder constituencies have considerable influence on corporate decision makers. Of equal importance, weak securities markets and ineffective or nonexistent legal protections for shareholders are also important factors in strengthening the position of nonshareholder constituencies and freeing directors to consider their interests. Thus, the stakeholder debate is more of an issue in the United States and Britain, where more shareholder-centic models flourish.

The Rule Of Law And The Legitimacy Of Constitutional Democracy, Michel Rosenfeld

Articles

The rule of law is a foundational principle of constitutional democracy, requiring the state to govern through publicly promulgated laws, separate legislative and adjudicative functions, and ensure accountability for all. While the rule of law is essential for legitimate governance, its meaning and implementation remain contested, varying significantly across legal traditions such as the Anglo-American rule of law, German Rechtsstaat, and French état de droit. The article argues that while the rule of law in its narrow sense—emphasizing legal predictability and procedural fairness—is insufficient for legitimate constitutional democracy, it must also incorporate democratic accountability and substantive rights protection to address …

Irish Legal History: An Overview And Guide To The Sources, Janet Sinder

Faculty Scholarship

No abstract provided.

Globalization And Legal Education: Views From The Outside-In, W. Wesley Pue

All Faculty Publications

During the past two decades a new, global, legal professionalism has manifested itself in the field of legal education through a variety of programmes seeking to produce globally-aware or globally-connected lawyers. This paper explores the diverse meanings of globalization and legal education with particular attention to the differential effects of globalization and the varied experiences of it in different parts of the world. Taking its starting point from a Nigerian graduate student's insight that globalization means 'The White Man is Coming again'. What does he want this time?, he explores both American and international perspectives.

Puerto Rico: Cultural Nation, American Colony, Pedro A. Malavet

UF Law Faculty Publications

As a matter of law, Puerto Rico has been a colony for an uninterrupted period of over five hundred years. In modern times, colonialism—the status of a polity with a definable territory that lacks sovereignty because legal/political authority is exercised by a peoples distinguishable from the inhabitants of the colonized region—is the only legal status that the isla (island) has known. This Article posits that Puerto Rico's colonial status—particularly its intrinsic legal and social constructs of second-class citizenship for Puerto Ricans—is incompatible with contemporary law or a sensible theory of justice and morality.

Puerto Ricans, as United States citizens by …

Human Dignity: From Antiquity To Modern Israel's Constitutional Framework, Izhak Englard

Cardozo Law Review

No abstract provided.

Franco's Spain, Queer Nation?, Gema Pérez-Sánchez

University of Michigan Journal of Law Reform

This Article discusses how, through its juridical apparatus, the Spanish dictatorship of Francisco Franco sought to define and to contain homosexuality, followed by examples of how underground queer activism contested homophobic laws. The Article concludes by analyzing a literary work to illustrate the social impact of Francoism's homophobic law against homosexuality.

Querying A Queer Spain Under Franco, Peter Kwan

University of Michigan Journal of Law Reform

There should be more articles in the legal journals such as Professor Gema Pérez-Sánchez's. In Franco's Spain, Queer Nation?, Professor Pérez-Sánchez has done a great service to legal scholarship in four respects. Firstly, she has written an appropriately far-ranging piece. In a discipline that has as one of its central missions the broadening of critical legal discourse, LatCrit can sometimes appear to suffer from symptoms of parochialism in its understandable emphasis on the Latina/o experience within American borders, or on the experience of its Latina/o immigrants once they have reached these shores. To be sure, this is not a problem …

Hegemony, Coercion, And Their Teeth-Gritting Harmony: A Commentary On Power, Culture, And Sexuality In Franco's Spain, Ratna Kapur, Tayyab Mahmud

University of Michigan Journal of Law Reform

Professor Gema Pérez-Sánchez's article, Franco's Spain, Queer Nation? focuses on the last years of Francisco Franco's fascist dictatorship and the early years of the young Spanish democracy, roughly from the late 1960's to the early 1980's. The centerpiece of her article looks at how, through law, Franco's regime sought to define and contain what it considered dangerous social behavior, particularly homosexuality. She traces how the state not only exercised hegemonic control over definitions of gender and sexuality, but also established well-defined roles for women and drew clear lines between what constituted legitimate and illegitimate sexualities, namely, the line between heterosexuality …

Judicial Institutions In Emerging Federal Systems: The Marshall Court And The European Court Of Justice, 33 J. Marshall L. Rev. 1063 (2000), Herbert A. Johnson

UIC Law Review

No abstract provided.

The Marshall Court And The European Court Of Justice, 33 J. Marshall L. Rev. 1197 (2000), Charles F. Hobson

UIC Law Review

No abstract provided.

Making History: Israeli Law And Historical Reconstruction, Eben Moglen

Faculty Scholarship

As Asher Maoz insightfully points out, governmental involvement in the ascertainment of historical truth – whether in court, by commission of inquiry, or in other ways – is directed at securing approval of a particular historical narrative, as a step toward imposing that narrative, to a greater or lesser extent, on those who disagree with it. This "official version" exists not only for the sorts of questions presented by the cases Maoz discusses, but also with respect to auto accidents, crimes of passion, and all the other historical reconstructions that form the substrate of "facts" upon which legal conclusions and …

Fox Hunting, Pheasant Shooting And Comparative Law, Alan Watson, Khaled Abou El Fadl

Scholarly Works

The Roman jurists, ancient rabbis and Muslim jurists were very different people. Above all, the rabbis and Muslim jurists were engaged on a search for law as truth. And the Roman jurists were much more obviously upper-class gentlemen.91 But the similarities are great. All three had a passion for legal interpretation. They delighted in discussing hypothetical cases. They chased after solutions by ways of reasoning devised by themselves. Practical utility, while present, was in the background. At times, to outsiders, their opinions seem outr6, even callous, remote from reality. They have little interest in what actually happens in court: their …

The Importance Of Being Comparative: M. Dale Palmer Professorship Inaugural Lecture, Daniel H. Cole

Articles by Maurer Faculty

No abstract provided.

Note: English Child Custody Law, 1660-1839: The Origins Of Judicial Intervention In Parental Custody, Sarah Abramowicz

Law Faculty Research Publications

Many legal historians see pre-1839 English child custody law as consisting of near-absolute paternal rights. These historians believe that the weakening of fathers' rights began with the 1839 Custody of Infants Act, which created certain maternal custody rights. Other historians have noted that paternal custody was qualified even before 1839 by the Court of Chancerys application of the doctrine of parens patriae. This Note tells a different story and argues that the origin of incursions into the so-called "empire of the father" was the 1660 Tenures Abolition Act, a statute that ironically seemed designed to strengthen fathers' rights. The …