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The Astonishing Year(S) Of 1996: A Confusion Of Tongues And Alphabetical Camels The First Time As Tragedy, Kenneth Lasson

All Faculty Scholarship

Such irreverence was nothing new to Nimrod. A half-century earlier he had encouraged [Abraham], who'd publicly renounced idolatry even though his father manufactured and sold graven images: how ridiculous, he reasoned, to worship clay figures that had been made the day before! Thus did Nimrod have Abraham thrown into a fiery furnace, from which, according to Midrashic legend, he emerged unscathed. Unlike Nimrod, Abraham eschewed power in favor of teaching ethics and morality to his people.

In the intervening years Nimrod concerned himself with the building of great cities as testimony to his own power and invincibility. And in 1996 …

The Opinion Volume 37 Number 6 – December 6, 1996, The Opinion

The Opinion Newspaper (all issues)

The Opinion newspaper issue dated December 06, 1996

The Essential Elements Of Judicial Independence And The Experience Of Pre-Soviet Russia, Thomas E. Plank

William & Mary Bill of Rights Journal

Judicial independence, which first developed in the Anglo-American legal system, is valued by many countries as an important condition for the rule of law. Its existence in any legal system, however, depends on concrete institutional arrangements. In this Article, Professor Plank identifies four institutional elements necessary to establish and maintain an independent judiciary: fixed tenure (with limited exceptions), fixed and adequate compensation, minimum qualifications, and limited civil immunity. The presence of these elements ensures an independent judiciary in many countries. The lack of permanent tenure for judges in most American states, however, raises serious questions about their independence.

To test …

The Opinion Volume 37 Number 5 – November 13, 1996, The Opinion

The Opinion Newspaper (all issues)

The Opinion newspaper issue dated November 13, 1996

A New Image Of The Slave Auction: An Empirical Look At The Role Of Law In Slave Sales And A Conceptual Reevaluation Of The Nature Of Slave Property, Thomas D. Russell

Sturm College of Law: Faculty Scholarship

This legal history article presents a new understanding of the nature of slave property. Slave property was divided and fragmented into many different interests including those with application to real property such life estates, remainders, shifting and spring interests, and leasehold interests. With regard to these interests, the article overlays the first-year, law-school property course onto slaves as property. Property interests in slaves were also divided by credit mechanisms including mortgages and secured credit transactions. Warranties are another example of divided property interests in slaves.

The fragmented, Hohfeldian nature of slave property distributed the stake that southerners had in the …

Roman Slave Law: An Anglo-American Perspective, Alan Watson

Cardozo Law Review

The most influential secular system of law in the West has been Roman private law. This is true even of its slave law, which was received not only in states of Europe where slavery survived, but also in European colonies in America, whether those of Spain, Portugal, France, or the Dutch West India Company. Though slavery had died out in France and the Dutch Republic, when slavery appeared in the colonies, recourse was had above all to Roman law.

The First Slave (And Why He Matters), Jonathan A. Bush

Cardozo Law Review

This Article has two purposes. The narrower, straight historical purpose is to explore in further detail the status of blacks in the earliest years of Britain's colonies in the New World. The second, more legal aim is to explore what is, for many of us, still the hardest question in American legal history: namely, to understand the route by which slavery came to be legal in the early seventeenth century, in a culture that had long rejected unfree status and that seemed to retain that view.

Gender In The Law Of Slavery In The Antebellum United States, Andrew T. Fede

Cardozo Law Review

In her thought-provoking paper Finding Sojourner's Truth: Race, Gender, and the Institution of Property, Cheryl I. Harris explores the connections between slavery, race, and gender in the law of the antebellum United States. Harris acknowledges that slaves alone were defined as property at law, and, therefore,*the legal status of slaves differed from free white women and free black women. She also acknowledges that "white women" were allowed property rights on "male-defined terms" but asserts, nevertheless, that free women could be considered as a form of property.

Comment On Hans Baade’S The Gens De Couleur Of Louisiana: Comparative Slave Law In Microcosm, Morris S. Arnold

Cardozo Law Review

Hans Baade invented colonial Louisiana legal history. Before he started doing research in the eighteenth-century records in New Orleans and elsewhere, virtually no serious historical work involving the judicial and notarial archives of colonial Louisiana had ever been done. Professor Baade also undertook years ago to trace the various French and Spanish statutory enactments that bore on Louisiana legal history, and this proved to be a virtually impenetrable mare's nest. Before Professor Baade began his work, most of what had been written about Louisiana's colonial legal past was both amateurish and antiquated. It should therefore come as no surprise that …

Abolitionist Feminism, Moral Slavery, And The Constitution: “On The Same Platform Of Human Rights”, David A.J. Richards

Cardozo Law Review

The analogy between race and gender plays an increasingly important role in the interpretation of the Equal Protection Clause of the Fourteenth Amendment. However, interpretive arguments about the analogy make little or no reference to the abolitionist historical background of the Reconstruction Amendments in general and the Fourteenth Amendment in particular. This might make some sense if the only legitimate interpretive appeal to history were Raoul Berger's version of originalism, namely, the specific denoted things (including persons and practices) to which the relevant drafters and ratifiers of the pertinent constitutional text would or would not have applied the language in …

The First Amendment Comes Of Age: The Emergence Of Free Speech In Twentieth-Century America, G. Edward White

Michigan Law Review

As the number of issues perceived as having First Amendment implications continues to grow, and the coterie of potential beneficiaries of First Amendment protection continues to widen - including not only the traditional oppressed mavericks and despised dissenters but some rich and powerful members from the circles of political and economic orthodoxy - alarms have been sounded. Another period of stocktaking for free speech theory appears to be dawning, and some recent commentators have proposed a retrenchment from the long twentieth- century progression of increasingly speech-protective interpretations of the First Amendment. At the heart of the retrenchment literature lies the …

Finding Sojourner’S Truth: Race, Gender, And The Institution Of Property, Cheryl I. Harris

Cardozo Law Review

This Article begins with the signature speech of Sojourner Truth, one of a handful of Black women of the nineteenth century who became an important figure in the abolitionist movement, a national figure in her own time, and an icon of both historical and contemporary feminism. As the emblematic Black woman of her time and as a Black woman that both suffered under and transcended slavery, Sojourner Truth was and is a critically situated subject through which to examine the crosscutting constructions of race and gender forged under slavery.

Comment On The First Slave (And Why He Matters) By Jonathan Bush, Peter Kolchin

Cardozo Law Review

In his Article The First Slave (And Why He Matters), Professor Jonathan Bush returns to a persistent question in the history of the colonial Chesapeake: the status of blacks in the seventeenth century. He frames this question, however, in a new way. Rather than seeking to determine whether or not blacks were slaves before the codification of slave law-a largely unanswerable question that revolves, at least in part, around what one means by "slaves"-he asks, how could the English have imposed slavery on blacks in America when slavery was non-existent in England and under English law? In response, he …

Roman Slave Law: An Anglo-American Perspective, Alan Watson

Scholarly Works

When one looks at Roman slave law from an Anglo-American perspective, what is striking is the apparent disinterest or lack of concern in the subject on the part of the state and the corresponding freedom of action allowed to slave owners. My claim is not that there was little law--indeed there was a great deal--but that the state did not get overly involved in laying down what owners could do with their slaves. For instance, though law decreed the methods by which slaves could be freed, the state imposed very few restrictions on manumission. This is all the more striking …

“So Tall Within” - The Legacy Of Sojourner Truth, Peggy Cooper Davis

Cardozo Law Review

I take my text from Professor Harris's rich discussion of Sojourner Truth's life narrative. I begin, as Professor Harris began, with Truth's assertion of parental right. When her five-year-old son, Peter, was sent by his owner from New York to Alabama, Truth agonized over the loss of contact between herself and her child. She feared that Peter would lose the opportunity, owed to him under New York law, of liberation at the age of twenty-one. Truth's insistent cry, "I'll have my child again," was initially dismissed by incredulous slaveholders. But it became a theme of struggle as she repeatedly walked …

Hegel’S Slaves, Blackstone’S Objects, And Hohfeld’S Ghosts: A Comment On Thomas Russell’S Imagery Of Slave Auctions, Jeanne L. Schroeder

Cardozo Law Review

Thomas Russell's wonderful paper A New Image of the Slave Auction is an example of how the best empirical work can result in conclusions that are so obviously "right" that they risk being mistaken as obvious. His paper serves as an important warning against a recurring problem in legal, as well as other scholarship: Picture thinking-in the sense of an unconscious (and as a result, unquestioning and uncritical) acceptance of familiar, traditional, comfortable imagery-so often blinds us.

Property, Parenthood, And Peonage: Reflections On The Return To Status Quo Antebellum, Margaret A. Burnham

Cardozo Law Review

Cheryl Harris demonstrates how intertwining racial and gender boundaries, whose shadows are long, longstanding, and ominous, were initially constructed around the legal principle of human chattel as personal property. She insightfully argues that slavery inextricably linked the concepts of race and property in the American legal imagination; that property originates from rules that are "racially coded" and determined. Cheryl Harris's contribution to this Symposium is a continuation of her project of illuminating how law ratifies and implements a racialized conception of property. This comment considers the application of Professor Harris's argument, that property, in the context of race-based slavery, is …

The Opinion Volume 37 Number 4 – October 30, 1996, The Opinion

The Opinion Newspaper (all issues)

The Opinion newspaper issue dated October 30, 1996

The Opinion Volume 37 Number 3 – October 9, 1996, The Opinion

The Opinion Newspaper (all issues)

The Opinion newspaper issue dated October 09, 1996

A Tribute To Professor Edward J. Littlejohn, John E. Mogk

Law Faculty Research Publications

No abstract provided.

Characterization Of Limitation Statutes In Canadian Private International Law: The Rocky Road Of Change, John P. Mcevoy

Dalhousie Law Journal

Prior to the Supreme Court of Canada's decision in Tolofson v. Jensen limitations statutes were characterized, prima facie, as procedural for purposes of Canadian private international law. The principal authority for this characterization was the 1835 case of Huber v. Steiner in which an action was brought on a promissory note made in France in 1813 and payable in 1817. The defendant argued that the French Code de commerce applied and that the right of action was extinguished by the provision that "all actions ... prescribe themselves by five years reckoning from the day of protest ..... Tindal C.J. recognized …

Notre Dame Lawyer - Fall/Winter 1996, Notre Dame Law School

Notre Dame Lawyer

Oh! To Be in England ...

Living and Learning Law in London

Law Can't Do Morality's Job

Keeping the Faith

Faculty Profile: John Mitchell Finnis

After Hours
Dean David T. Link and Habitat for Humanity

Alumni Profiles
Patrick McCartan and Scott Medlock

Student Profiles
The Road Less Travelled

The Kresge Law Library-Progress and Challenges

Perjury: An Anthology, Richard H. Underwood

Law Faculty Scholarly Articles

Professor Underwood takes an in-depth look at the occurrence of perjury from ancient Rome to the O.J. Simpson trial. This journey through time provides insight into the motives of perjurers, the difficulties involved in catching them; and the alarming frequency with which they succeed, unchastised.

Law Reports From A Non-Colony And A Penal Colony: The Australian Manuscript Decisions Of Sir Francis Forbes As Chief Justice Of Newfoundland, Bruce Kercher

Dalhousie Law Journal

The author reports on the existence and contents of a manuscript copy of a selection of judgments by Sir Francis Forbes while he was Chief Justice of Newfoundland from 1817-1822. The manuscript found its way into the State Library of New South Wales sometime after Forbes' translation to New South Wales as its first Chief Justice in 1823. The author comments on the insights these manuscript reports afford of the early legal history of Newfoundland as it developed into a British colony. In particular, he draws attention to the significance of twenty-nine judgments in the manuscript but not available in …

A Year In Practice: The Journal Of A Reflective Clinician, Stacy Caplow

Faculty Scholarship

No abstract provided.

Nuremberg - Fifty Years: Accountability And Responsibility, William G. Eckhardt

Faculty Works

No abstract provided.

Black Man, White Justice: The Extradition Of Matthew Bullock, An African-American Residing In Ontario, 1922, John C. Weaver

Osgoode Hall Law Journal

Canadian extradition law uncomfortably combines common law precepts with compromises deemed necessary for carrying out treaty obligations. In this context, for example, the substitution of affidavits for parol evidence has been an area where international courtesy has clashed with a valued means of testing an allegation, namely the cross-examination of witnesses. To reject an application for extradition because only documentary evidence is provided can amount to a censure of judicial proceedings in the state making the request; rejection may suggest that a fair trial cannot be secured. In 1922, in a sensational but hitherto uncited case, an Ontario extradition judge …

Securing Russia's Future: A Plea For Reform In Russian Secured Transactions Law, Jason J. Kilborn

Michigan Law Review

After many turbulent years of uneasy transition to a market economy, Russia is finally "open for business." Nonetheless, the transitional period remains far from over, and Russian enterprises are still starved for capital that they desperately need for retooling to convert from military to consumer production, for acquiring new equipment to replace old and worn machinery, and for undertaking new and lucrative projects. While Russian financial institutions may provide significant funding, their reserves are limited; they could not hope to finance independently the multitude of existing and potential enterprises within the expansive Russian territory. Therefore, much of the financing for …

Pretrial Publicity In Criminal Cases Of National Notoriety: Constructing A Remedy For The Remediless Wrong , Robert Hardaway, Douglas B. Tumminello

American University Law Review

No abstract provided.

The Opinion Volume 37 Number 2 – September 26, 1996, The Opinion

The Opinion Newspaper (all issues)

The Opinion newspaper issue dated September 26, 1996