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Articles 211 - 240 of 262
Full-Text Articles in Legal History
A Context For Legal History, Or, This Is Not Your Father’S Contextualism, Justin Deystone
A Context For Legal History, Or, This Is Not Your Father’S Contextualism, Justin Deystone
Publications
This short essay attempts a systematic rehearsal of the structuralist approach to legal historiography.
The American Legacy Of Public Land Rebellion, John W. Ragsdale Jr
The American Legacy Of Public Land Rebellion, John W. Ragsdale Jr
Faculty Works
The most recent manifestation of the Sagebrush Rebellion is a mind-bending, consciousness altering, looking glass version of logic and reality. The sight of Cliven Bundy with his big hat, massive silver belt buckle, and his equally sizeable paunch, his unemployable spawn, the late, doggedly litigious Wayne Hage and his dutiful descendants, the swat teams of heavily armed, confrontation-seeking acolytes, equipped with flak jackets, AK-47s, second amendment signage, and "patriot" bling is, to be charitable, cartoonish. This clown car has emerged, clad in the sackcloth of "injured innocence" and professing to be the beleaguered natives of the Great Basin's high desert. …
Ancient And Comely Order: The Use And Disuse Of Arbitration By New York Quakers, F. Peter Philips
Ancient And Comely Order: The Use And Disuse Of Arbitration By New York Quakers, F. Peter Philips
Articles & Chapters
From the late 17th century, the Religious Society of Friends (“Quakers”) observed a method of resolving disputes arising within congregations that was scripturally based, and culminated in final and binding arbitration. The practice of Quaker arbitration gradually disappeared during the late 19th and early 20th centuries, and few modern Quakers are even aware of it. This article traces that decline and notes similarities with mercantile arbitration. In both religious and mercantile arbitration, a defined community valued the goal of avoiding group disruption more than the goal of vindicating individual legal rights. In both cases, members of the community applied distinct …
Work And The Legal Person In Thomas More's Utopia, Andreea D. Boboc
Work And The Legal Person In Thomas More's Utopia, Andreea D. Boboc
University of the Pacific Law Review
No abstract provided.
All In The Family: A Legacy Of Public Service And Engagement - Edward And Thomas Fairchild, R. Nils Olsen Jr.
All In The Family: A Legacy Of Public Service And Engagement - Edward And Thomas Fairchild, R. Nils Olsen Jr.
Journal Articles
No abstract provided.
Joseph Story, Ralf Michaels
Joseph Story, Ralf Michaels
Faculty Scholarship
Joseph Story (1779-1845) was one of the greatest and most influential American lawyers of all time. Both as a Supreme Court Justice and as a professor at Harvard Law School, his work and thought were, and still are, of great importance. Today’s private international law would look different without him, both in the United States and in the rest of the world. At the same time, his approach to the field cannot be properly understood unless placed within his broader work on law, and the specific American background against which it was developed.
Inside The Taft Court: Lessons From The Docket Books, Barry Cushman
Inside The Taft Court: Lessons From The Docket Books, Barry Cushman
Journal Articles
For many years, the docket books kept by certain of the Taft Court Justices have been held by the Office of the Curator of the Supreme Court. Though the existence of these docket books had been brought to the attention of the scholarly community, access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the Taft Court docket books held by the Office of the Curator, which are the only …
Criminal Labor Law, Benjamin Levin
Criminal Labor Law, Benjamin Levin
Scholarship@WashULaw
This Article examines a recent rise in suits brought against unions under criminal statutes. By looking at the long history of criminal regulation of labor, the Article argues that these suits represent an attack on the theoretical underpinnings of post-New Deal U.S. labor law and an attempt to revive a nineteenth century conception of unions as extortionate criminal conspiracies. The Article further argues that this criminal turn is reflective of a broader contemporary preference for finding criminal solutions to social and economic problems. In a moment of political gridlock, parties seeking regulation increasingly do so via criminal statute. In this …
The President In His Labyrinth: Checks And Balances In The New Pan-American Presidentialism, Andrea Scoseria Katz
The President In His Labyrinth: Checks And Balances In The New Pan-American Presidentialism, Andrea Scoseria Katz
Scholarship@WashULaw
This dissertation presents a theory of the separation of powers centered on the President’s “power to persuade.” To meet the imperial public expectations placed on the office in the modern age, the President will reliably try to supplement his limited formal powers by convincing others to support his agenda, the people, party allies, and courts being the most important. The President’s techniques of persuasion fall into three regular categories. First, there is “going public,” or popular leadership, where the President turns the force of popular majorities into a tool for shaping policy or legislative outcomes. Second is executive law-making, whereby …
The Magna Carta And The Beginning Of Modern Legal Thought, Vincent R. Johnson
The Magna Carta And The Beginning Of Modern Legal Thought, Vincent R. Johnson
Faculty Articles
As the Magna Carta, England's Great Charter of Liberties, marks its eighth centennial, it is appropriate to ask what's in it. The answer, it turns out, lives up to the legend. What's in the Magna Carta is the beginning of modern legal thought. The Great Charter set the expectations that for 800 years have shaped the development of the law in England, America, and around the globe. Like a blazing light piercing the medieval darkness, the Magna Carta illuminated the importance of legal principles, fair procedures, proportional punishment, official accountability, and respect for human dignity. It was unlike any legal …
Debunking Humphrey's Executor, Daniel A. Crane
Debunking Humphrey's Executor, Daniel A. Crane
Articles
The Supreme Court’s 1935 Humphrey’s Executor decision paved the way for the modern administrative state by holding that Congress could constitutionally limit the President’s powers to remove heads of regulatory agencies. The Court articulated a quartet of features of the Federal Trade Commission’s (“FTC”) statutory design that ostensibly justified the Commission’s constitutional independence. It was to be nonpartisan and apolitical, uniquely expert, and performing quasi-legislative and quasi-judicial, rather than executive, functions. In recent years, the staying power of Humphrey’s Executor has been called into question as a matter of constitutional design. This Essay reconsiders Humphrey’s Executor from a different angle. …
Miscellaneous Reports Of Cases In The Court Of Delegates From 1670 To 1750, William Hamilton Bryson
Miscellaneous Reports Of Cases In The Court Of Delegates From 1670 To 1750, William Hamilton Bryson
Law Faculty Publications
In 1971, G. I. O. Duncan published a learned and useful book entitled The High Court of Delegates. This excellent treatise describes the jurisdiction, administration, procedures, and records of this court with exceptional clarity. In 2004, the substantive law of the Court of Delegates was fully and admirably expounded by R. H. Helmholz in The Oxford History of the Laws of England, Volume 1, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s. For the next step in the study of this court to be taken, more of the source materials from this court needs to be made …
Maitland, The Forms Of Action At Common Law, William Hamilton Bryson
Maitland, The Forms Of Action At Common Law, William Hamilton Bryson
Law Faculty Publications
This chapter gives a brief overview of the life and work of Frederick William Maitland (1850-1906), with particular attention to his The Forms of Action at Common Law.
Copyright In Pantomime, Brian L. Frye
Copyright In Pantomime, Brian L. Frye
Cardozo Arts & Entertainment Law Journal
Why does the Copyright Act specifically provide for the protection of "pantomimes"? This Article shows that the Copyright Act of 1976 amended the subject matter of copyright to include pantomimes simply in order to conform it to the Berne Convention for the Protection of Literary and Artistic Works. It further shows that the Berlin Act of 1909 amended the Berne Convention to provide for copyright protection of "les pantomimes" and "entertainments in dumb show" in order to ensure copyright protection of silent motion pictures. Unfortunately, the original purpose of providing copyright protection to '"pantomimes " was forgotten. This Article argues …
International Legal Structuralism: A Primer, Justin Deystone
International Legal Structuralism: A Primer, Justin Deystone
Publications
International legal structuralism arrived on the shores of international thought in the 1980s. The arrival was not well-received, perhaps in part, because it was not well-understood. This essay aims to reintroduce legal structuralism and hopefully pave the way for new, and more positive, receptions and understandings. This reintroduction is organized around two claims regarding the broader encounter between international lawyers and critical theory in the ‘80s. The first was a jurisprudential claim about how the critics sought to show how international law was nothing more than a continuation of international politics by other means. The second was a historical claim …
Inherent National Sovereignty Constitutionalism: An Original Understanding Of The U.S. Constitution, Robert J. Kaczorowski
Inherent National Sovereignty Constitutionalism: An Original Understanding Of The U.S. Constitution, Robert J. Kaczorowski
Faculty Scholarship
No abstract provided.
Customary International Law: A Reconceptualization, Roozbeh (Rudy) B. Baker
Customary International Law: A Reconceptualization, Roozbeh (Rudy) B. Baker
Brooklyn Journal of International Law
The current state of international law is one of deep confusion over the role of state practice and opinio juris within the customary element. The debate between adherents of “modern custom” versus those of “traditional custom” has resulted in deep uncertainty and confusion. New theories of customary international law have proved inadequate in clarifying the current state of the field. Confusions over the meanings and relationships between state practice and opinio juris aside, current approaches are all also flawed due to a heavily state-centric bias that fails to take into account the very real affects that norm-generating transnational actors have …
Taking Constitutional Identities Away From The Courts, Pietro Faraguna
Taking Constitutional Identities Away From The Courts, Pietro Faraguna
Brooklyn Journal of International Law
In federal states, constitutional identity is the glue that holds together the Union. On the contrary, in the European Union—not a fully-fledged federation yet—each Member state has its own constitutional identity. On the one hand, the Union may benefit from the particular knowledge, innovation, history, diversity, and culture of its individual states. On the other hand, identity-related claims may have a disintegrating effect. Constitutional diversity needs to come to terms with risks of disintegration. The Treaty on the European Union seeks a balance, providing the obligation to respect the constitutional identities of its Member states. Drawing from the European experience, …
A Tribute To Judge Kaye, Nicholas W. Allard
A Tribute To Judge Kaye, Nicholas W. Allard
Brooklyn Law Review
This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.
Confounding Ockham's Razor: Minilateralism And International Economic Regulation, Eric C. Chaffee
Confounding Ockham's Razor: Minilateralism And International Economic Regulation, Eric C. Chaffee
Brooklyn Journal of Corporate, Financial & Commercial Law
In Minilateralism: How Trade Alliances, Soft Law, and Financial Engineering Are Redefining Economic Statecraft, Professor Chris Brummer embraces the complexity of the global economic system and its regulation by exploring the emerging role and dominance of varying strands of economic collaboration and regulation that he collectively refers to as “minilateralism.” In describing the turn toward minilateralism, Brummer notes a number of key features of this new minilateral system, including a shift away from global cooperation to strategic alliances composed of the smallest group necessary to achieve a particular goal, a turn from formal treaties to informal non-binding accords and other …
The Challenge Of Fiduciary Regulation: The Investment Advisors Act After Seventy-Five Years, Roberta S. Karmel
The Challenge Of Fiduciary Regulation: The Investment Advisors Act After Seventy-Five Years, Roberta S. Karmel
Brooklyn Journal of Corporate, Financial & Commercial Law
Seventy-five years after its enactment the Investment Advisers Act of 1940 has advanced from a relatively weak statute merely registering advisers with the Securities and Exchange Commission (SEC) to a more robust law imposing fiduciary responsibilities on advisers. Over the years, the number of investment advisers and the number of their clients have increased greatly. The SEC therefore has been pressured by Congress to develop a harmonized fiduciary standard for broker-dealers and advisers and also to develop and enforce a greater degree of oversight over the advisory industry. These developments have raised the questions of how to fund such efforts …
Credit Discrimination Based On Gender: The Need To Expand The Rights Of A Spousal Guarantor Under The Equal Credit Opportunity Act, Allen Abraham
Credit Discrimination Based On Gender: The Need To Expand The Rights Of A Spousal Guarantor Under The Equal Credit Opportunity Act, Allen Abraham
Brooklyn Journal of Corporate, Financial & Commercial Law
This Note focuses on the definition of “applicant” as defined in the Equal Credit Opportunity Act (ECOA) and Regulation B. Specifically, this Note explores the expanded protections offered by the ECOA to spousal guarantors, after the Federal Reserve Board (FRB) expanded the definition of “applicant” by promulgating Regulation B. However, after a circuit split, where the Eighth Circuit, in Hawkins v. Community Bank of Raymore, held that a guarantor was not an “applicant” per the ECOA’s definition and the Sixth Circuit, in RL BB Acquisition, LLC v. Bridgemill Commons Development Group, LLC, followed Regulation B’s expansion of the definition of …
A Cautionary Look At A Cautionary Doctrine, Andrew W. Fine
A Cautionary Look At A Cautionary Doctrine, Andrew W. Fine
Brooklyn Journal of Corporate, Financial & Commercial Law
Optimism is an indispensable element of effective salesmanship. It is therefore quite natural for the directors of public companies to want to optimistically tout the potential long-term benefits of investing in their companies. After all, directors of public companies must be empowered to attract the attention and money of American investors. But what happens if these long-term projections fail to come true? Who is to blame for long-term projections that are simply unrealistic? A doctrine called the “bespeaks caution” doctrine has emerged in order to govern these inquiries, and holds that these optimistic forward-looking statements are legally immunized provided that …
Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton
Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton
Publications
No abstract provided.
From Apology To Utopia's Point Of Attack, Justin Deystone
From Apology To Utopia's Point Of Attack, Justin Deystone
Publications
This contribution to the Symposium celebrating the Twenty-fifth Anniversary of Martti Koskenniemi's From Apology to Utopia explores the relevance of the book for contemporary theorists of the international world. In doing so, the article puts Koskenniemi's classic in a contest with John Yoo's recent book, Point of Attack. The purpose in doing so is three-fold. First, it is to illustrate the contemporary use of Koskenniemi's structuralist method. Second, it is to show how the use of the method, with its attendant reliance on modes of legal thought, might give pause to international thinkers seeking to reinvigorate particular structures of …
How Presidents Interpret The Constitution, Harold H. Bruff
How Presidents Interpret The Constitution, Harold H. Bruff
Publications
No abstract provided.
The President's Faithful Execution Duty, Harold H. Bruff
The President's Faithful Execution Duty, Harold H. Bruff
Publications
No abstract provided.
Criminal Labor Law, Benjamin Levin
Criminal Labor Law, Benjamin Levin
Publications
This Article examines a recent rise in civil suits brought against unions under criminal statutes. By looking at the long history of criminal regulation of labor, the Article argues that these suits represent an attack on the theoretical underpinnings of post-New Deal U.S. labor law and an attempt to revive a nineteenth century conception of unions as extortionate criminal conspiracies. The Article further argues that this criminal turn is reflective of a broader contemporary preference for finding criminal solutions to social and economic problems. In a moment of political gridlock, parties seeking regulation increasingly do so via criminal statute. In …
Why Foreign Policy Principles Persist: Understanding The Reinterpretations Of Japan’S Article 9 And Switzerland’S Neutrality, Yuki Numata
Pomona Senior Theses
This study examines why Japan and Switzerland have chosen to keep the vocabulary of Article 9 and neutrality, respectively, and to reinterpret their definitions to suit their needs (policy reinterpretation), instead of simply abandoning the original policy and replacing it with a new, more suitably worded policy that clarifies the changing policy position of the government (policy abandonment). By analyzing the legal history of the overseas capabilities of the Japanese Self-Defense Forces and the Swiss Armed Forces, as well as the actions and influences of the government, political parties, and the public, this study finds the following trends. First, the …
Fighting To Lose The Vote: How The Solider Voting Acts Of 1942 And 1944 Disenfranchised America's Armed Forces, Molly Guptill Manning
Fighting To Lose The Vote: How The Solider Voting Acts Of 1942 And 1944 Disenfranchised America's Armed Forces, Molly Guptill Manning
Articles & Chapters
No abstract provided.