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Articles 241 - 270 of 300
Full-Text Articles in Legal History
Feminism Historicized: Medieval Misogynist Stereotypes In Contemporary Feminist Jurisprudence, Jeanne L. Schroeder
Feminism Historicized: Medieval Misogynist Stereotypes In Contemporary Feminist Jurisprudence, Jeanne L. Schroeder
Articles
The article argues that contemporary feminist theories are ahistorical and culturally narrow, often mirroring medieval misogynist stereotypes by assuming that late-twentieth-century, white, upper-middle-class American experiences represent universal truths about gender. By examining medieval canon law and societal norms, the analysis reveals that patriarchal structures have persisted across time, adapting to different cultural definitions of masculinity and femininity. The author advocates for a more historically and cross-culturally informed approach to jurisprudence and gender theory to avoid replicating past oppressions.
History's Challenge To Feminism, Jeanne L. Schroeder
The Third Best Choice: An Essay On Law And History, Theodore Y. Blumoff
The Third Best Choice: An Essay On Law And History, Theodore Y. Blumoff
Articles
The thesis of this Essay is that our use of history is as essential and unavoidable as conclusive answers are irretrievable. Irretrievability exists whether the historical reality sought results from a survey of traditional historical materials in an effort to recapture original understanding, or from a common-law effort to discover the Court's own history of an issue. In either case, however, the need to attempt to recover historical truths is perceived as essential. I subscribe, for the most part, to the contextualist premise that we cannot recover sufficient historical data on issues that matter to make history determinate in the …
The Public Domain, Jessica D. Litman
The Public Domain, Jessica D. Litman
Articles
This article examines the public domain by looking at the gulf between what authors really do and the way the law perceives them. Part I outlines the basics of copyright as a species of property and introduces the public domain's place within the copyright scheme. Copyright grants authors" ' rights modeled on real property in order to encourage authorship by providing authors with markets in which they can seek compensation for their creations. Because parcels of authorship are intangible, however, the law faces *problems in determining the ownership and boundaries of its property grants. In particular, the concept of "originality," …
Freedom Of Expression In A Pluralistic Society, James W. Nickel
Freedom Of Expression In A Pluralistic Society, James W. Nickel
Articles
No abstract provided.
Copyright Legislation And Technological Change, Jessica D. Litman
Copyright Legislation And Technological Change, Jessica D. Litman
Articles
Throughout its history, copyright law has had difficulty accommodating technological change. Although the substance of copyright legislation in this century has evolved from meetings among industry representatives whose avowed purpose was to draft legislation that provided for the future,6 the resulting statutes have done so poorly. The language of copyright statutes has been phrased in fact-specific language that has grown obsolete as new modes and mediums of copyrightable expression have developed. Whatever copyright statute has been on the books has been routinely, and justifiably, criticized as outmoded.7 In this Article, I suggest that the nature of the legislative process we …
Summary Of Tokugawa Criminal Justice, Daniel H. Foote
Summary Of Tokugawa Criminal Justice, Daniel H. Foote
Articles
The summary set forth below is derived principally from the late Professor Yoshiro Hiramatsu's-comprehensive study of Tokugawa criminal justice. Hiramatsu's work focusses on the period from the promulgation of the Osadamegaki by the Shogun Yoshimune in 1742 through the end of the Tokugawa era in 1867. (As described by Professor Dan F. Henderson, Conciliation and Japanese Law, Tokugawa and Modern (1965), Vol. 1, at 7, fn. 26, the Osadamegaki, which consisted of two books, constituted "a compilation and rough codification of prior decrees and precedents", and "was the only such official attempt to systematize the law in the Tokugawa period." …
Some Aspects Of Householding In The Medieval Icelandic Commonwealth, William I. Miller
Some Aspects Of Householding In The Medieval Icelandic Commonwealth, William I. Miller
Articles
There has been much, mostly inconclusive, discussion about how to define the household in a manner suitable for comparative purposes. Certain conventional criteria are not very useful in the Icelandic context, where it appears that a person could be attached to more than one household, where the laws suggest it was possible for more than one household to be resident in the same uncompartmentalised farmhouse; and where headship might often be shared. Definitions, for example, based on co residence or on commensalism do not jibe all that well with the pastoral transhumance practised by the Icelanders. Sheep were tended and …
Beating Up On Women And Old Men And Other Enormities: A Social Historical Inquiry Into Literary Sources, William I. Miller
Beating Up On Women And Old Men And Other Enormities: A Social Historical Inquiry Into Literary Sources, William I. Miller
Articles
The Icelandic sagas, besides being one of the most impressive literatures existing in any language, preserve detailed accounts of feud and legal action, and describe with intelligence and care the general techniques and strategies of dispute processing. They also contain, incidental to the narrative, information about values and law, marriage and death, householding arrangements and the systems of exchange, naming patterns, and so on, for those who care to coax such information from the texts.
Ordeal In Iceland, William I. Miller
Ordeal In Iceland, William I. Miller
Articles
Ordeal holds a strange fascination with us. It appalls and intrigues. We marvel at the mentality of those cultures that officialize it; we feel a sense of horror as we imagine ourselves intimately involved with boiling water or glowing irons. And we don't feel up to it. So our terror and cowardice becomes their brutality and irrationality. I am not about to urge to reinstitution of ordeals, although most practicing lawyers will tell you that that is still what going to law is, a crapshoot they say. What I want to do is call attention to the difficulty of not …
Promise Fulfilled And Principle Betrayed, James J. White
Promise Fulfilled And Principle Betrayed, James J. White
Articles
My responsibility in this paper is to address three questions. (1) How has the legal realist body of thought affected contract law and its application? (2) How will contract law and its application be affected in the future by realist thinking? (3) If the realist viewpoint were fully accepted, what kind of system would result and how would contract law be affected? Because my focus is upon a principal legislative monument to realism, Article Two of the Uniform Commercial Code (the "U.C.C."), and upon its drafter, Karl Llewellyn, I will not answer any of the three questions explicitly. By focusing …
Copyright, Compromise And Legislative History, Jessica D. Litman
Copyright, Compromise And Legislative History, Jessica D. Litman
Articles
Copyright law gives authors a "property right." But what kind of property right? Indeed, a property right in what? The answers to these questions should be apparent from a perusal of title seventeen of the United States Code-the statute that confers the "property" right.' Courts, however, have apparently found title seventeen an unhelpful guide. For the most part, they look elsewhere for answers, relying primarily on prior courts' constructions of an earlier and very different statute on the same subject. 2
Gift, Sale, Payment, Raid: Case Studies In The Negotiation And Classification Of Exchange In Medieval Iceland, William I. Miller
Gift, Sale, Payment, Raid: Case Studies In The Negotiation And Classification Of Exchange In Medieval Iceland, William I. Miller
Articles
Near the end of Eyrbyggja saga Porir asks Ospak and his men where they had gotten the goods they were carrying. Ospak said that they had gotten them at Pambardal. "How did you come by them?" said Porir. Ospak answered, "They were not given, they were not paid to me, nor were they sold either." Ospak had earlier that evening raided the house of a farmer called Alf and made away with enough to burden four horses. And this was exactly what he told Porir when he wittily eliminated the other modes of transfer by which he could have acquired …
Dreams, Prophecy And Sorcery: Blaming The Secret Offender In Medieval Iceland, William I. Miller
Dreams, Prophecy And Sorcery: Blaming The Secret Offender In Medieval Iceland, William I. Miller
Articles
An eminent legal historian once noted that the fundamental problem of law enforcement in primitive societies is that of the secret offender. The Icelandic legal and dispute processing systems depended on a wrongdoer publishing his deed, or at least committing it in an open and notorious manner. No state agencies existed to investigate and discover the non-publishing wrongdoer. But there were strong normative inducements to wrong openly; one's name was at stake. There was absolutely no honor in thievery, only the darkest shame; the ransmadr, on the other hand, suffered no shame for his successful raids, even if he did …
Teaching An Old Dog Old Tricks: Coppage V. Kansas And At-Will Employment Revisited, Kenneth M. Casebeer
Teaching An Old Dog Old Tricks: Coppage V. Kansas And At-Will Employment Revisited, Kenneth M. Casebeer
Articles
No abstract provided.
The Wagner Act: Labor Law's Signal Event, Theodore J. St. Antoine
The Wagner Act: Labor Law's Signal Event, Theodore J. St. Antoine
Articles
There's no fun in stating the obvious. Sophisticated professionals bestow few kudos on those who declaim the conventional wisdom. Even so, one would have to be far more perverse than I, in this fiftieth anniversary year of the National Labor Relations Act, to suggest that the Wagner Act, wasn't the most important (and at the time of it- passage the most controversial) development in the last half-century of labor law.
The Evolution Of Refugee Status In International Law: 1920-1950, James C. Hathaway
The Evolution Of Refugee Status In International Law: 1920-1950, James C. Hathaway
Articles
A refugee is usually thought of as a person compelled to flee his State of origin or residence due to political troubles, persecution, famine or natural disaster. The refugee is perceived as an involuntary migrant, a victim of circumstances which force him to seek sanctuary in a foreign country. Since Rome's reception of the fleeing Barbarians, States have opened their doors to many divergent groups corresponding in a general way to this description of what it means to be a refugee. During a period of more than four centuries prior to 1920, there was little concern to delimit the scope …
The Regulation Of Labor Unions, Theodore J. St. Antoine
The Regulation Of Labor Unions, Theodore J. St. Antoine
Articles
This year completes exactly a half century in the federalization and codification of American labor law. Before that the regulation of both the internal affairs and external relations of labor organizations was left largely to the individual states, usually through the application of common or nonstatutory law by the courts. One major exception was the railroad industry, whose patent importance to interstate commerce made it an acceptable subject for federal legislation like the Railway Labor Act.
Selective Incorporation Revisited, Jerold H. Israel
Selective Incorporation Revisited, Jerold H. Israel
Articles
In June 1960 Justice Brennan's separate opinion in Ohio ex re. Eaton v. Price' set forth what came to be the doctrinal foundation of the Warren Court's criminal procedure revolution. Justice Brennan advocated adoption of what is now commonly described as the "selective incorporation" theory of the fourteenth amendment. That theory, simply put, holds that the fourteenth amendment's due process clause fully incorporates all of those guarantees of the Bill of Rights deemed to be fundamental and thereby makes those guarantees applicable to the states. During the decade that followed Ohio ex re. Eaton v. Price, the Court found incorporated …
Constitutional Interpretation, Terrance Sandalow
Constitutional Interpretation, Terrance Sandalow
Articles
"[We] must never forget," Chief Justice Marshall admonished us in a statement pregnant with more than one meaning, "that it is a constitution we are expounding."' Marshall meant that the Constitution should be read as a document "intended to endure for ages.to come, and, consequently, to be adapted to the various crises of human affairs."'2 But he meant also that the construction placed upon the document must have regard for its "great outlines" and "important objects."'3 Limits are implied by the very nature of the task. There is not the same freedom in construing the Constitution as in constructing a …
The Distrust Of Politics, Terrance Sandalow
The Distrust Of Politics, Terrance Sandalow
Articles
In this Article, Dean Sandalow considers the justifications advanced by those who favor the removal of certain political issues from the political process by extending the reach of judicial review. He begins by examining the distrust of politics in a different context, discussing the proposals made by the Progressives for reforming municipal government, as a vehicle to expose the assumptions underlying the current debate. His comparison of the two historical settings reveals many similarities between the Progressives' reform proposals and the contemporary justiflcations.[or the displacement of politics with constitutional law. Dean Sandalow concludes that the distrust of politics rests not …
Does Rome Have A Lesson For Us?, Hugh D. Spitzer
Does Rome Have A Lesson For Us?, Hugh D. Spitzer
Articles
As the Roman Empire became more complex and centralized, so did its law and legal system. Is there a message here for us?
Does The Constitution Mean What It Always Meant?, James W. Nickel, Stephen R. Munzer
Does The Constitution Mean What It Always Meant?, James W. Nickel, Stephen R. Munzer
Articles
No abstract provided.
Escape From Liberalism: Fact And Value In Karl Llewellyn, Kenneth M. Casebeer
Escape From Liberalism: Fact And Value In Karl Llewellyn, Kenneth M. Casebeer
Articles
No abstract provided.
Trends In The Law Of Damages, John W. Reed
Trends In The Law Of Damages, John W. Reed
Articles
The law of damages deals with the process of translating harm into dollars. It is not, however, a coherent body of knowledge. Rather, it consists of an amalgam of many concepts and rules having to do with fundamental policy questions about loss-shifting, risk-spreading, and allocation of functions between judge and jury. Because damages is a "non-subject," little attention is paid to it in law school curricula and there is little writing about it. As one commentator put it, the law of damages "plods its way, ignored by academicians and 'accepted' by the courts. . . . The 'winds of change' …
The Jury And The English Law Of Homicide, 1200-1600, Thomas A. Green
The Jury And The English Law Of Homicide, 1200-1600, Thomas A. Green
Articles
The early English jury was self-informing and composed of persons supposed to have first-hand knowledge of the events and persons in question. The judge instructed the jury on the law, but was himself almost entirely dependent upon the jury for his knowledge of the case. By stating the evidence in a way that made the result it wanted a necessary conclusion, the medieval jury was able to alter the impact of formal rules of law to conform with prevailing social attitudes.
Kauper's 'Judicial Examination Of The Accused' Forty Years Later—Some Comments On A Remarkable Article, Yale Kamisar
Kauper's 'Judicial Examination Of The Accused' Forty Years Later—Some Comments On A Remarkable Article, Yale Kamisar
Articles
For a long time before Professor Paul Kauper wrote "Judicial Examination of the Accused" in 1932, and for a long time thereafter, the "legal mind" shut out the de facto inquisitorial system that characterized American criminal procedure. Paul Kauper could not look away. He recognized the "naked, ugly facts" (p. 1224) and was determined to do something about them -more than thirty years before Escobedo v. Illinois' or Miranda v. Arizona.2
Societal Concepts Of Criminal Liability For Homicide In Medieval England, Thomas A. Green
Societal Concepts Of Criminal Liability For Homicide In Medieval England, Thomas A. Green
Articles
THE early history of English criminal law lies hidden behind the laconic formulas of the rolls and law books. The rules of the law, as expounded by the judges, have been the subject of many studies; but their practical application in the courts, where the jury of the community was the final and unbridled arbiter, remains a mystery: in short, we know little of the social mores regarding crime and crimi- nals. This study represents an attempt to delineate one major aspect of these societal attitudes. Its thesis is that from late Anglo-Saxon times to the end of the middle …
Litigation Versus Mediation Under Title Vii Of The Civil Rights Act Of 1964, Theodore J. St. Antoine
Litigation Versus Mediation Under Title Vii Of The Civil Rights Act Of 1964, Theodore J. St. Antoine
Articles
Report of the 1969 Proceedings of the Section of Labor Relations Law, American Bar Association.
Evolving Judicial Attitudes Toward Local Government Land Use Control, Terrance Sandalow
Evolving Judicial Attitudes Toward Local Government Land Use Control, Terrance Sandalow
Articles
The year 1967 begins the second half-century of zoning in the United States. The first comprehensive zoning ordinance was adopted by New York City in 1916. In the fifty years that have elapsed, zoning has become, notwithstanding a growing disenchantment with it on the part of planners, the most widely employed technique of land use control in the United States. At the present time only Houston, of all the major cities in the United States, lacks a zoning ordinance. And, though I have not obtained precise figures, we are all familiar with the increasingly large per centage of small municipalities, …