Legal History Commons^™

Legal Pragmatism In The People's Republic Of China, Xingzhong Yu

Cornell Law Faculty Publications

No abstract provided.

Commentary On “On The Nature Of Bankruptcy”: Bankruptcy And Bargaining, Theodore Eisenberg

Cornell Law Faculty Publications

At a conference on bargaining, it should not be surprising that there is more than one perspective on the relationship between bankruptcy and bargaining. Dean Jackson and Professor Scott's article emphasizes a hypothetical bargain to be struck by idealized participants in a firm. It explores the relationship between bankruptcy and that bargain. By imagining what that bargain would look like, Jackson and Scott construct new justifications for bankruptcy law's distributional rules. Such a theory, however, is subject to reservations about the depth of insight that can be gained from examination of purely theoretical bargains. Stripped of real-world characteristics, hypothetical bargains …

The Crisis In Modern Contract Theory, Robert A. Hillman

Cornell Law Faculty Publications

No abstract provided.

The Transformation Of Trusts As A Legal Category, 1800-1914, Gregory S. Alexander

Cornell Law Faculty Publications

Sometimes we are least aware of that which most affects us. So it seems with respect to legal categories. Lawyers do not take legal categories very seriously today. But they should. Legal categories are central to legal reasoning; indeed it is almost impossible to imagine legal reasoning without the use of categories. Categorical thinking affects every area of law. The purpose of this article is to illuminate, through a case-study, the contingent and ideological character of legal categories. It focuses on the development of trusts into and then as a discrete legal category during the period between the beginning of …

Beyond The Ordinary Religion, Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.

Summers's Primer On Fuller's Jurisprudence – A Wholly Disinterested Assessment Of The Reviews By Professors Wueste And Lebel, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

Some Considerations Which May Lead Lawmakers To Modify A Policy When Adopting It As Law, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

The Role Of History In Constitutional Interpretation: A Case Study, Gary J. Simson

Cornell Law Faculty Publications

No abstract provided.

Liberalism, Radicalism, And Legal Scholarship, Steven H. Shiffrin

Cornell Law Faculty Publications

The Future Of Economics In Legal Education: Limits And Constraints, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

On Identifying And Reconstructing A General Legal Theory – Some Thoughts Prompted By Professor Moore’S Critique, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

The Concept Of Property In Private And Constitutional Law: The Ideology Of The Scientific Turn In Legal Analysis, Gregory S. Alexander

Cornell Law Faculty Publications

In recent academic writing on the general problem of constitutional protection of property under the takings clause and due process clauses, a mode of analysis has emerged that is evidently different from the conventional analysis of constitutional property claims. In general terms, this new mode is characterized by an effort to analyze claims on an openly teleological and systematic basis. To be sure, this mode is not exclusively of recent origin. But it is a discernible trend in the body of scholarship that discusses constitutional protection of property in the context of previously unfamiliar sorts of private economic interests.

Most …

Reply To Mr Mackie, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

Working Conceptions Of "The Law", Robert S. Summers

Cornell Law Faculty Publications

This exploratory essay is an admixture of amateur psychology, moral theory, and jurisprudence. It grows out of seminars I have given for judges, and reflects that focus. Co-theorists will now see some of what I have been telling practitioners. And error in my story may be exposed. But one can have no qualms about this. It is especially important to have things put right for judges.

The General Duty Of Good Faith – Its Recognition And Conceptualization, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

Pragmatic Instrumentalism In Twentieth Century American Legal Thought—A Synthesis And Critique Of Our Dominant General Theory About Law And Its Use, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

‘Economists’ Reasons' For Common Law Decisions - A Preliminary Inquiry, Robert S. Summers, Leigh B. Kelley

Cornell Law Faculty Publications

No abstract provided.

The Concept Of Function And The Basis Of Regulatory Interests Under Functional Choice-Of-Law Theory: The Significance Of Benefit And The Insignificance Of Intention, Gregory S. Alexander

Cornell Law Faculty Publications

Recent literature and judicial opinions have recognized the need for control and consistency in choice of law. Although the formulation of choice-of-law theory in terms of the states' interests in the conflicting rules at issue has gained wide acceptance, the courts have been unable to agree upon criteria for determining when a state has a valid interest in dispute resolution. Moreover, courts frequently appear all too eager to use contemporary choice-of-law analysis to justify local regulation of multistate disputes despite insubstantial local relationships. The inconsistency and local bias both stem from the lack of a coherent theory for discerning the …

Luther And The Justifiability Of Resistance To Legitimate Authority, Cynthia Grant Bowman

Cornell Law Faculty Publications

No abstract provided.

Professor Fuller's Jurisprudence And America's Dominant Philosophy Of Law, Robert S. Summers

Cornell Law Faculty Publications

The late Lon L. Fuller played an influential role in the development of American jurisprudence, but his views have not always prevailed. In this tribute to the memory of Professor Fuller, Professor Summers outlines the major tenets of what he perceives to be our dominant philosophy of law – “pragmatic instrumentalism” – by way of contrasting that philosophy with the views of Professor Fuller. Professor Summers concludes that these two philosophies differ in many important respects and that our dominant philosophy of law should accommodate, and may indeed already be in the process of accommodating, the thought of Professor Fuller.

Reflections On A Unified Theory Of Motive, Theodore Eisenberg

Cornell Law Faculty Publications

No abstract provided.

Defamatory Non-Media Speech And First Amendment Methodology, Steven H. Shiffrin

Cornell Law Faculty Publications

In the course of his eloquent commentary upon New York Times Co. v. Sullivan, the late Professor Kalven enthused that the Court had written "an opinion that may prove to be the best and most important it has ever produced in the realm of freedom of speech." This excitement was generated not by the Court's rather narrow holding but rather by the hope that Sullivan would serve as the opening wedge to dislodge the clear and present danger test, to dismantle the "two-level" approach to first amendment analysis (reflected in cases such as Chaplinsky, Beauharnais, and Roth …

Two Types Of Substantive Reasons: The Core Of A Theory Of Common-Law Justification, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

Disproportionate Impact And Illicit Motive: Theories Of Constitutional Adjudication, Theodore Eisenberg

Cornell Law Faculty Publications

Recent decisions of the Supreme Court have not been kind to those who favor an expansive reading of the equal protection clause. Last Term, in Washington v. Davis, the Court held that the disproportionate impact of governmental action on minority groups is not unconstitutional unless accompanied by proof of intentional discrimination. This Term, in Village of Arlington Heights v. Metropolitan Housing Development Corp., the Court reinforced the intent barrier to the finding of equal protection violations. Mr. Eisenberg argues in this Article that the Washington test is too harsh, and was required neither by practical necessity nor by …

The Development Of The Lutheran Theory Of Resistance: 1523-1530, Cynthia Grant Bowman

Cornell Law Faculty Publications

It is frequently assumed, especially by political theorists, that the development of the modern theory of resistance to governmental authority was the accomplishment primarily of Huguenot writers of the late sixteenth century and that it was they who laid the foundations for the more famous seven- teenth-century English theories of a right of revolution. The corollary is that Lutheran writers made little contribution to the development of this theory, if not, indeed, a negative one. Contrary to this fairly common assumption, however, the justification of resistance was a major concern of German Protestants in the early sixteenth century, and I …

Legal Lore - People V. Kief: A Sharp Quillet Of The Law, W. David Curtiss

Cornell Law Faculty Publications

No abstract provided.

Evaluating And Improving Legal Processes – A Plea For “Process Values”, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

The Constitutional History Of The Seventh Amendment, Charles W. Wolfram

Cornell Law Faculty Publications

No abstract provided.

The Technique Element In Law, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

A Critique Of Professor Fried’S Anatomy Of Values, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.