Legal History Commons^™

Remarks By An Idealist On The Realism Of 'The Limits Of International Law', Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

This paper is a response to Jack L. Goldsmith and Eric A. Posner, 'The Limits of International Law' (Oxford 2005), part of a symposium on the book held at the University of Georgia Law School in October 2005. The review views 'The Limits of International Law' sympathetically, and focuses on the intersection between traditional and new methodologies of international law scholarship, on the one hand, and the substantive political commitments that differing international law scholars hold, on the other. The paper notes that some in the symposium claim that the problem with 'The Limits of International Law' is that it …

Repraesentatio In Classical Latin, Alan Watson

Scholarly Works

The Romans knew well the twin concepts of representation and representatives in law suits and in the relationships between father and son, and owner and slave. But for these concepts they did not use the terms repraesentare or any cognate.

To Tertullian, it seems, goes the credit of first using repraesentare and repraesentator in their modern senses of <> and <>. That his context is theological probably should not surprise since he is, above all, a theologian.

Thus he uses repraesentare to mean that the one larger and more important may represent the many and less important. This usage had a …

The Dictionary And The Man: Garner’S Black’S Law Dictionary, Jeanne Price, Roy M. Mersky

Scholarly Works

The 7th and 8th editions of Black's Law Dictionary were the first edited by Bryan Garner.  This review of the 8th edition of Black's Law Dictionary focuses on the approach taken by Garner in thoroughly revising the dictionary and places his work in the context of the recent history of legal dictionaries and lexicography.

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

ExpressO

This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

Adjusting The Rear-View Mirror: Rethinking The Use Of History In Supreme Court Jurisprudence, Mitchell Gordon

ExpressO

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree

ExpressO

The article explores the rhetorical strategies deployed in both legal and cultural narratives of Mormon polygamy in nineteenth-century America. It demonstrates how an understanding of that unique communal experience, and the narratives by which it was represented, informs the classic paradox of community and autonomy – the tension between the collective and the individual. The article concludes by using the Mormon polygamy analysis to illuminate a contemporary social situation that underscores the paradox of community and autonomy – homosexuality and the so-called culture wars over family values and the meaning of marriage.

The Medieval Blood Sanction And The Divine Beneficence Of Pain: 1100 - 1450, Trisha Olson

ExpressO

No abstract provided.

The Effect Of Myth On Primitive And Ancient Justice , Stuart Madden

ExpressO

THE EFFECT OF MYTH ON PRIMITIVE AND ANCIENT JUSTICE M. Stuart Madden

Abstract In primitive and civilized cultures alike, myth has served as a foundational component of social structure and societal cultural self-image. For peoples with limitation on their skills of scientific inquiry and/or detached social observation, myth has served purposes ranging from explanation of the natural world to early visions of civil justice and a moral ethos. Such application of myth has necessarily and simultaneously provided adherents with the means of rationalizing the caprice and harshness of the natural world, as well as giving a means of accepting, even …

Law’S Box: Law, Jurisprudence And The Information Ecosphere, Paul D. Callister

ExpressO

For so long as it has been important to know “what the law is,” the practice of law has been an information profession. Nonetheless, just how the information ecosphere affects legal discourse and thinking has never been systematically studied. Legal scholars study how law attempts to regulate information flow, but they say little about how information limits, shapes, and provides a medium for law to operate.

Part I of the paper introduces a holistic approach to “medium theory”—the idea that methods of communication influence social development and ideology—and applies the theory to the development of legal thinking and institutions. Part …

Florida's Request For Admission Rule: 150 Years On The Road To Inconsistency, Ineffectiveness And Appellate Nullification, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Legal Realism As Theory Of Law, Michael S. Green

William & Mary Law Review

No abstract provided.

Book Review: Forensic Linguistics, Dru Stevenson

ExpressO

Review of John Gibbons' text "Forensic Linguistics"

A Brief Look At Broward County Lawyers’ And Judges’ Attitudes Toward Plea Bargaining As A Tool Of Courtroom Efficiency, Mohammad A. Faruqui

ExpressO

Even the most rigidly ideological prosecutors acknowledge that they need to plea out most of the less serious criminal charges to ensure justice without incurring an unmanageable backlog of cases. But what do most criminal lawyers and judges think about the plea arrangment system? Is it fair to defendants? Do lawyers use plea bargains to better serve their clients by finding the best deal, or do they use plea bargains to cut their case load for what some call "garbage cases?" This paper surveys a small sample to see how 21st century Broward County criminal lawyers feel about the plea …

The Internationalism Of Justice Harry Blackmun, Margaret E. Mcguinness

Faculty Publications

(Excerpt)

Throughout the symposium we have heard a host of adjectives to describe Justice Harry Blackmun and his jurisprudence, among them "willful," "liberal," "conservative," and "humble." Added to this list is what Professor Ruger calls "the ultimate compound taxonomy" for Justice Blackmun, a "'White Anglo-Saxon Protestant Republican Rotarian Harvard Man from the Suburbs.'" One adjective that is conspicuously missing is "internationalist," a term that describes an important, though less discussed, dimension of Justice Blackmun and his jurisprudence. Internationalism is, in part, reflected in Justice Blackmun's "preference change" or shift from "relatively conservative to relatively liberal." At the same time, internationalism …

A Brief Survey Of Deconstruction, Pierre Schlag

Publications

No abstract provided.

On Commonplace Punishment Theory, Kyron J. Huigens

Articles

No abstract provided.

Montesquieu's Mistakes And The True Meaning Of Separation, Laurence Claus

University of San Diego Public Law and Legal Theory Research Paper Series

“The political liberty of the subject,” said Montesquieu, “is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man needs not be afraid of another.” The liberty of which Montesquieu spoke is directly promoted by apportioning power among political actors in a way that minimizes opportunities for those actors to determine conclusively the reach of their own powers. Montesquieu’s constitution of liberty is the constitution that most plausibly establishes the rule of law. Montesquieu concluded that this constitution could …

The Tenuous Case For Conscience, Steven D. Smith

University of San Diego Public Law and Legal Theory Research Paper Series

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …

The Birth Of A Logical System: Thurman Arnold And The Making Of Modern Administrative Law, Mark Fenster

ExpressO

Much of what we recognize as contemporary administrative law emerged during the 1920s and 1930s, a period when a group of legal academics attempted to aid Progressive Era and New Deal regulatory efforts by crafting a legitimating system for the federal administrative state. Their system assigned competent, expert institutions—most notably administrative agencies and the judiciary—well-defined roles: Agencies would utilize their vast, specialized knowledge and abilities to correct market failures, while courts would provide a limited but crucial oversight of agency operations. This Article focuses both on this first generation of administrative law scholarship, which included most prominently Felix Frankfurter and …

Textual Harassment: A New Historicist Reappraisal With Gender In Mind, Hila Keren

ExpressO

No abstract provided.

Textual Harassment: A New Historicist Reappraisal, Hila Keren

ExpressO

This year marks the four hundredth anniversary of the Parol Evidence Rule, the rule that dictates that the interpretation of a written contract should be determined solely according to its text and not influenced by prior contradictory external information. This article uses the occasion to offer a fresh interdisciplinary view of the Rule. The analysis presents a unique contribution to the heated debate regarding the desired levels of formalism and textualism in present-day contract law, by using New-Historicist tools.

Unexplored aspects of the roots of the Rule are illuminated through an in-depth investigation of the first case of the contractual …

The Embarassing Rule Against Perpetuities, Peter A. Appel

Journal of Legal Education

No abstract provided.

Overview Of Legal Systems In The Asia-Pacific Region: India, Navoneel Dayanand

Overview of Legal Systems in the Asia-Pacific Region (2004)

This article provides a general description of the legal system of India. It further discusses aspects of legal education and legal practice in that country.

Gentleman's Agreement: The Antisemitic Origins Of Restrictions On Stockholder Litigation, Lawrence E. Mitchell

ExpressO

A deeply ingrained, seemingly ineradicable, hostility to plaintiffs’ lawyers and especially to plaintiffs’ lawyers in stockholder suits seems to have existed for most of the past century. This hostility is manifest not only in the tone of judicial opinions but in law review articles, the popular press, and, often, in legislation. This article analyzes the circumstances under which the first security-for-expense statute was adopted in New York in 1944, including the contemporaneous justification for the statute, focusing on the demographics of the New York bar at the time and the ethnic sociology of New York. In so doing, it concludes …

Citizens Of An Enemy Land: Enemy Combatants, Aliens, And The Constitutional Rights Of The Pseudo-Citizen, Juliet P. Stumpf

ExpressO

No abstract provided.

Beyond Reparations: An American Indian Theory Of Justice, William C. Bradford

ExpressO

The number of states, corporations, and religious groups formally disowning past records of egregious human injustice is mushrooming. Although the Age of Apology is a global phenomenon, the question of reparations—a tort-based mode of redress whereby a wrongdoing group accepts legal responsibility and compensates victims for the damage it inflicted upon them—likely consumes more energy, emotion, and resources in the U.S. than in any other jurisdiction. Since the final year of the Cold War, the U.S. and its political subdivisions have apologized or paid compensation to Japanese-American internees, native Hawaiians, civilians killed in the Korean War, and African American victims …

The Disenchantment Of Logically Formal Legal Rationality Or Max Weber's Sociology In The Genealogy Of The Contemporary Mode Of Western Legal Thought, Duncan Kennedy

ExpressO

Max Weber began his sociology of law with a description of the then present of Western legal thought, along with a brief summary of its previous stages. This appreciation begins with a summary description of the Western legal thought of Weber's time, as it looks from our present 100 years later, emphasizing the contrast between the mainstream of his time, now called Classical Legal Thought, and its critics in the social current. Part II presents Weber's sociology of law, comparing and contrasting his approach with that of the social current. The most striking thing about Weber's sociology of law, from …

My Dinner At Langdell's, Pierre Schlag

Publications

This essay begins on one of those cold wet April Cambridge mornings. It was too wet for fog, but too indifferent for rain. My head ached. My lips were dry and my tongue felt bloated. The fever had surely come back. Worse - the laudanum was wearing off. Tonight would be dinner at Langdell's. It occurred to me that not everyone is invited to Langdell's for dinner - certainly not wayward law professors from the provinces. This was an extraordinary opportunity. Blackstone would be there. Duncan Kennedy perhaps. Certainly the early Llewellyn. I knocked on the door.

On The Historical School Of Jurisprudence, Robert E. Rodes

Journal Articles

Legal theory has tended to treat the Historical School as a poor relation, but it has important contributions to make. Developed in opposition to the one-size-fits-all form of natural law that eventuated in the Code Napoleon, it attributes law to a Volksgeist, the spirit of a people, as developed in the peculiar historical experience of that people. The original German proponents of the school had trouble explaining the reception of Roman law in Germany, but despite the importation of technical elements from without, a people's laws are in fact part of their culture and of their spiritual heritage as these …