Legal History Commons^™

International Terrorism: The Legitimization Of Safe Harbor States In International Law, Carol A. Bahan

NYLS Law Review

No abstract provided.

Comments On Roger Cotterrell's Essay, 'The Struggle For Law: Some Dilemmas Of Cultural Legality', Robin West

Georgetown Law Faculty Publications and Other Works

First, many thanks to Carrie Menkel-Meadow, the editors of The International Journal of Law In Context and the sponsors of this series for facilitating this lecture, and for inviting my participation. And a special thank you to Professor Roger Cotterrell for sharing with us such a generous, humanistic and hopeful account of law’s moral possibilities, when faced with multicultural conflict within a society governed by a liberal rule of law. I very much appreciate the opportunity to reflect on this set of claims, although I feel somewhat an outsider to the task, as I’ll explain below. I understand Professor Cotterrell …

Rebalancing The Scales: Restoring The Availability Of Disparate Impact Causes Of Action In Title Vi Cases, Victor Suthammanont

NYLS Law Review

No abstract provided.

Toward A Unified Theory Of Retroactivity, Steven W. Allen

NYLS Law Review

No abstract provided.

New York Recognition Of A Legal Status For Same-Sex Couples: A Rapidly Developing Story, Arthur S. Leonard

NYLS Law Review

No abstract provided.

Vico And Imagination: An Ingenious Approach To Educating Lawyers With Semiotic Sensibility, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

Law is a specialized semiotic realm, but lawyers generally are ignorant of this fact. Lawyers may manage meaning, but they also are managed by meaning. Seemingly trapped by the weight of pre-existing signs, their attempts to manage these meanings generally are limited to technical interventions and instrumentalist strategies. Signs have power over lawyers because they are embedded in narratives, a semiotic economy that confronts the lawyer as ‘‘given’’ even though it is dynamic and constantly under construction. Most lawyers do not make meaning through legal narratives; rather, they parrot bits of the controlling narratives in response to certain problems. Because …

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 …

Vico And Imagination: An Ingenious Approach To Educating Lawyers With Semiotic Sensibility, Francis J. Mootz Iii

Scholarly Works

Law is a specialized semiotic realm, but lawyers generally are ignorant of this fact. Lawyers may manage meaning, but they also are managed by meaning. Seemingly trapped by the weight of pre-existing signs, their attempts to manage these meanings generally are limited to technical interventions and instrumentalist strategies. Signs have power over lawyers because they are embedded in narratives, a semiotic economy that confronts the lawyer as ‘‘given’’ even though it is dynamic and constantly under construction. Most lawyers do not make meaning through legal narratives; rather, they parrot bits of the controlling narratives in response to certain problems. Because …

Medieval Law Should Be Taught, Thomas Lund

Journal of Legal Education

No abstract provided.

Originalism's Expiration Date, Adam M. Samaha

Cardozo Law Review

The Constitution of the United States declares itself supreme law, but even the amended document is ancient. By 2008, the predicted age of a randomly selected word in this text reached 178 years. The judiciary, for its part, might not interpret the text until decades after ratification. For Article V amendments, the average lag between ratification and Supreme Court interpretation has been about 40 years. The question is how these features of our supreme law might influence the choice of interpretive method and, ultimately, constitutional decision-making. In particular, some scholars indicate that originalism may be a strong force in adjudication …

Guarding The Guardians: Judges' Rights And Virginia's Judicial Inquiry And Review Commission, Jeffrey D. Mcmahan Jr.

University of Richmond Law Review

No abstract provided.

The Jews And Ius Commune, Kenneth Stow

Early Modern Workshop: Resources in Jewish History

From the sixteenth through eighteenth centuries, there was a gradually increasing integration of Jews into systems of ius commune, loosely, the law of the land, but actually a legal tradition based on Roman law, which subsumed local law, usually called ius proprium. The integration might be purely theoretical or in fact, as certainly occurred in the papal state and it seems elsewhere in Italy, too. This legal integration prepared the way for the major legal upheaval worked by the French Revolution. The implications are many. The details mostly unresearched. The Tractatus de Iudaeis of Giuseppe Sessa (Turin, 1713) is the …

Expanding Legal Horizons?, Edward Fram

Early Modern Workshop: Resources in Jewish History

Legal change was not only a result needs to adapt the law to new situations but could be stimulated by new information. New sources were not always accepted and this presentation will attempt to locate the point in time in which acceptance of a large number of new sources took place in the eastern European community of the early modern age.

This presentation is for the following text(s):

• Shulhan `arukh, Yoreh De'ah 19.1 (1567)
• Siftei Kohen-The Priest's Lips on Yoreh De'ah 19.1 (1647)
• Turei Zahab-The Golden Columns on Yoreh De'ah 19.1 (1646)

The Virtue Of Judicial Statesmanship, Neil S. Siegel

Faculty Scholarship

Some of America's most important judges have emphasized or embodied the practice of judicial statesmanship. Yet from the examples they set, it is not particularly clear what judicial statesmanship is or why it matters. In this Article, I conceptualize the elusive phenomenon of judicial statesmanship, and I defend statesmanship as a core, if under appreciated, dimension of judicial role.

I argue that judicial statesmanship defines a virtue in the role of a judge. Statesmanship charges judges with approaching cases so as to facilitate the capacity of the legal system to legitimate itself over the long run and with respect to …

Contested Morality: Judge Posner On Infanticide, Slavery, Suttee, Female Genital Mutilation, And The Holocaust, Anthony D'Amato

Faculty Working Papers

Judge Richard Posner locates his moral theory between moral absolutism and the "anything goes" kind of moral relativism. He analyzes whether five contested topics are subject to useful moral debate: infanticide, slavery, suttee, female genital mutilation, and the Holocaust. Each topic presents a different perspective on his own moral theory. But each one fails in a different way to place his own moral theory on a sound footing.

Chinese And Western Worldviews: Implications For Law, Policy,, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

The Bible And American Law: A Response To Dean Herbert W. Titus, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

A New (And Better) Interpretation Of Holmes's Prediction Theory Of Law, Anthony D'Amato

Faculty Working Papers

Holmes's famous 1897 theory that law is a prediction of what courts will do in fact slowly changed the way law schools taught law until, by the mid-1920s legal realism took over the curriculum. The legal realists argued that judges decide cases on all kinds of objective and subjective reasons including precedents. If law schools wanted to train future lawyers to be effective, they should be exposed to collateral subjects that might influence judges: law and society, law and literature, and so forth. But the standard interpretation has been a huge mistake. It treats law as analogous to weather forecasting: …

Punishment, Invalidation, And Nonvalidation: What H.L.A. Hart Did Not Explain, Richard Stith

Law Faculty Publications

Elaborating first upon H. L. A. Hart's distinction between imposing duties and imposing disabilities, this article explores the two senses mentioned (but not fully explained) by Hart in which power-holders may be legally disabled. Legal invalidation (nullification) of norms that have been generated by vulnerable power-holders is seen to reduce diversity or pluralism in every normative sphere, from the supranational to the intrafamilial. By contrast, mere legal nonvalidation (noncognizance) of such norms tends to preserve the autonomy of the power-holders that created the norms, thus enhancing legal pluralism. Punishment for creating forbidden norms amounts in principle to an in-between sort …

The Mission Of The Criminal Law Edit, Alignment And Reform Commission (Clear): An Introductory Commentary, 41 J. Marshall L. Rev. 611 (2008), John Decker

UIC Law Review

No abstract provided.

Dole’S Future: A Strategic Analysis, Neil S. Siegel

Faculty Scholarship

As the U.S. Supreme Court imposes federalism-based limits on congressional power under the Commerce Clause and Section Five of the Fourteenth Amendment, Congress may be tempted to turn to the conditional spending power in order to achieve goals that it may not accomplish directly. In this article, I address whether a danger exists, as some suggest, that such use of the Spending Clause would render the Court more likely to cut back on its scope, narrowing or overruling South Dakota v. Dole, 483 U.S. 203 (1987). Using doctrinal analysis and game theory, I conclude that Congress should proceed with …

Perelman In Legal Education: Recalling The Rhetorical Tradition Of Isocrates And Vico, Francis J. Mootz Iii

Scholarly Works

This paper was presented on October 14, 2008 as part of a panel addressing "The Influence of Perelman in Legal Philosophy" at a conference hosted by the Perelman Center for the Philosophy of Law, Free University of Brussels.

I argue that Perelman's philosophy is connected with legal practice, but that he never made the connections between his philosophy and legal education explicit. I refer to the work of Isocrates and Vico, and conclude that Perelman's philosophy can teach us much about contemporary legal education as we strive to address the questions raised by the Carnegie Report.

Interpretation, Francis J. Mootz Iii

Scholarly Works

In this chapter from "Law and the Humanities: An Introduction," published by Cambridge University Press, I first survey various theoretical approaches to interpretation, including natural law, analytical legal positivism, law as communication (originalism, intentionalism, and new textualism), and the hermeneutical turn. I then discuss the role of interpretation in contract law, statutory law and constitutional law, to situate the theories in practice.

Sandisk Corp. V. Stmicroelectronics, Inc., Patrick R. Colsher

NYLS Law Review

No abstract provided.

Constitutional Law And Values—Version ’08 (Not Necessarily An Upgrade), Nadine Strossen

NYLS Law Review

No abstract provided.

Perelman In Legal Education: Recalling The Rhetorical Tradition Of Isocrates And Vico, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

This paper was presented on October 14, 2008 as part of a panel addressing "The Influence of Perelman in Legal Philosophy" at a conference hosted by the Perelman Center for the Philosophy of Law, Free University of Brussels.

I argue that Perelman's philosophy is connected with legal practice, but that he never made the connections between his philosophy and legal education explicit. I refer to the work of Isocrates and Vico, and conclude that Perelman's philosophy can teach us much about contemporary legal education as we strive to address the questions raised by the Carnegie Report.

Petitioner's Observations (December 2007) For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Religious Liberty That Almost Wasn't: On The Origin Of The Establishment Clause Of The First Amendment, Gregory C. Downs

University of Arkansas at Little Rock Law Review

The purpose of this article is to briefly examine the origin of the Establishment Clause in the event sometimes referred to as the "Virginia Experience," and to consider the possibility that the significant "leading roles" in the First Amendment's creation were not limited to Jefferson and Madison. Further, Madison's leading role in the actual sponsorship of the First Amendment may not have been entirely voluntary. With the ever-present litigation and controversies revolving around the extent and meaning of the First Amendment's Establishment Clause, the overlooked history of the creation of the First Amendment is both interesting and instructive in the …

Theorizing The Law/Politics Distinction: Neutral Principles, Affirmative Action, And The Enduring Legacy Of Paul Mishkin, Robert C. Post, Neil S. Siegel

Faculty Scholarship

Paul Mishkin was a colleague and a teacher to us, and we each esteem him as a master craftsman of the law: learned, wise, and far-sighted. To re-read his publications is to enter an astonishing world of clarity and integrity, a world in which no word is wasted and insight is deep and revealing.

Early in his career Mishkin saw that the law could be apprehended from two distinct and in part incompatible perspectives: from the internal perspective of a faithful practitioner and from the external perspective of the general public. If the social legitimacy of the law as a …

Umpires At Bat: On Integration And Legitimation, Neil S. Siegel

Faculty Scholarship

During his confirmation hearings. Chief Justice Roberts captured the public's imagination when he offered an interpretation of the role that judges play in our society when interpreting the Constitution. Judges and Justices are servants of the law, not the other way around, he said. Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see an umpire.

In this inquiry, I identify some tensions between the …