Legal History Commons^™

The Patent Office Meets The Poison Pill: Why Legal Methods Cannot Be Patented, Andrew A. Schwartz

Publications

In 2003, for the first time in its 170-year history, the United States Patent Office began awarding patents for novel legal innovations, in addition to traditional inventions such as the telephone or airplane. Commentators have accepted the Patent Office's power to grant legal method patents, but at the same time have criticized this new type of patent on policy grounds. But no one has suggested that the Patent Office exceeded its authority by awarding patents for legal methods, until now.

In the Patent Act of 1952, which is still in effect today, Congress established certain requirements for patentability, including a …

John Locke And The Meaning Of The Takings Clause, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

ohn Locke, political philosopher and all around polymath, stands as a central figure in the development of Western conceptions of property rights and democratic institutions. If not the sole voice that is echoed in the American revolution and the Constitutional Convention, he clearly influenced the founders, particularly James Madison, and he thus represents an intellectual force that is a legitimate part of the current debate over the relationship between government power and individual property rights.

The purpose of this article is to provide both a detailed analysis of Locke to aid the Takings debate and a particular reading of the …

Gambling And The Law In The Nineteenth Century South: Evidence From Nacogdoches County, Texas, 1838-1839, Joshua C. Tate

Faculty Journal Articles and Book Chapters

No abstract provided.

Gambling, Commodity Speculation, And The 'Victorian Compromise', Joshua C. Tate

Faculty Journal Articles and Book Chapters

This Essay examines two major strands of nineteenth-century jurisprudence related to gambling: Southern cases defining public and private space for the purpose of state gambling statutes, and Northern cases applying the intent to deliver test to speculative contracts. The Essay argues that both lines of cases reflect what Lawrence Friedman has termed the Victorian compromise: A strong official stance against immoral behavior is conjoined with de facto acceptance of many questionable practices, provided that they are conducted in a manner acceptable to the elite. The Essay concludes that nineteenth-century judges sought to preserve the semblance of a strict prohibition against …

Joel R. Pruce On The Human Rights Reader: Major Political Essays, Speeches And Documents From Ancient Times To The Present (Second Edition), By Micheline R. Ishay. New York, Ny: Routledge, 2007. 592pp., Joel R. Pruce

Human Rights & Human Welfare

A review of:

The Human Rights Reader: Major Political Essays, Speeches and Documents from Ancient Times to the Present (Second Edition), by Micheline R. Ishay. New York, NY: Routledge, 2007. 592pp.

Journal Of The House Of Representatives Of The Commonwealth Of Kentucky, 2007, Volume 2, Kentucky. General Assembly. House Of Representatives.

Journals of the General Assembly of the Commonwealth of Kentucky

No abstract provided.

Revealing Zion's Daughters: Women In Puritan Jurisprudence, Brett Jackson

The Gettysburg Historical Journal

The legal status of American women has consistently been portrayed as a linear progression flowing from a colonial jurisprudential repression and exclusion to a modern-day legal equity and a female influence within every aspect of justice. In this narrative of sequentially gained status, seventeenth-century Puritan law has stood as the exemplar of America’s most repressive jurisprudential treatment of women. However, when its characteristics are triangulated and its subordination of women is juxtaposed with its inclusion of a female voice, a new conception of America’s first legal system is seen. The notion of a linear progression is thus replaced with an …

Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow

Faculty Publications

In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the United States. Using this surprising fact as a central example, this article makes several important contributions to the field of comparative constitutional law. The work demonstrates that through constitutional migration, novel readings of constitutional sources can arise in foreign fora. In an era when the United States Supreme Court may be accused of parochialism in its constitutional analysis, the article addresses the current controversy …

Custody, Maintenance, And Succession: The Internalization Of Women's And Children's Rights Under Customary Law In Africa, Allison D. Kent

Michigan Journal of International Law

In this Note, the author examines the process of international human rights norm internalization into areas traditionally governed exclusively by customary law, and the resulting evolution of customary law. Assuming, arguendo, that customary law is to be modified, I argue that a societal norm internalization approach is the most effective means to bring customary law into conformity with international human rights law. After a brief discussion of the fieldwork on which I rely, this Note describes the historical influence of colonialism on the development of customary law in Africa, with a particular focus on the repugnancy clauses of the …

Escape From The Battle Of The Forms: Keep It Simple, Stupid, Corneill A. Stephens

Faculty Publications By Year

This Article reviews the history of the "battle of the forms" issue arising when contracting parties submit conflicting terms to each other in attempting to form a contract and how courts have resolved issues arising from this, both under the original Uniform Commercial Code (UCC) Article 2 and the Revised Article 2. The author reviews the economic circumstances that gave rise to the current use of standard form contracts, such as lower transaction costs and the ability of a company to control the terms and the discretion of its personnel. He discusses how battle of the forms issues were resolved …

Foreign Direct Investment, Investment Treaty Arbitration, And The Rule Of Law, Susan Franck

Scholarly Articles in Law Reviews & Journals

In the last decade, there has been a surge in the number of multi-lateral and bilateral investment treaties governments have signed; meanwhile there have been dramatic increases in the amount of foreign direct investment (FDI); and, more recently, the number of claims brought under investment treaties has spiked. This Article examines the relationship amongst these factors and is the first to review the emerging empirical economic literature investigating whether investment treaties achieve their goal of promoting FDI. The Article then specifically evaluates the impact that the procedural right to arbitrate investment claims plays in the process of promoting FDI and …

Langdell Upside-Down: James Coolidge Carter And The Anticlassical Jurisprudence Of Anticodification, Lewis Grossman

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The (Futile) Search For A Common Law Right Of Confrontation: Beyond Brasier's Irrelevance To (Perhaps) Relevant American Cases, Randolph N. Jonakait

Articles & Chapters

After Crawford v. Washington asserted that the Confrontation Clause constitutionalized the common law right of confrontation, cases have been suggested that illustrate that right. This short essay considers whether the 1779 English case Rex v. Brasier is such a decision, as some contend. The essay concludes that Brasier says nothing about the right of confrontation and points to a comparable framing-era, American case that indicates that general rules about hearsay and confrontation were not at issue. The essay maintains that if the historical understandings of the right of confrontation and hearsay are to control the Confrontation Clause, then framing-era, American …

Learning To Love After Learning To Harm: Post-Conflict Reconstruction, Gender Equality And Cultural Values, Penelope Andrews

Articles & Chapters

The question that the Jacob Zuma rape trial and its aftermath raised was how a country like South Africa, with such a wonderful Constitution and expansive Bill of Rights, could generate such negative and retrogressive attitudes towards women. In line with this inquiry, this article raises three issues: The first focuses on the legacy of apartheid violence and specifically the cultures of masculinity, the underbelly of apartheid violence. Second, the article explores the findings of the Truth and Reconciliation Commission (TRC), a vital part of the post-apartheid transformation agenda, to examine how the TRC pursued violations of women's human rights. …

Roscoe Pound And The Future Of The Good Government Movement, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Book Review. All Politics Is Global: Explaining International Regulatory Regimes By Daniel W. Drezner, David Fidler

Articles by Maurer Faculty

No abstract provided.

Originalism And The Natural Born Citizen Clause, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The enigmatic phrase "natural born citizen" poses a series of problems for contemporary originalism. New originalists, like Justice Scalia, focus on the public meaning of the constitutional text, but the notion of a "natural born citizen" was likely a term of art, derived from the idea of a "natural born subject" in English law--a category that most likely did not extend to persons, like John McCain, who were born outside sovereign territory. But the constitution speaks of "citizens" and not "subjects," introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.

What was the original …

Why Not A Justice School? On The Role Of Justice In Legal Education And The Construction Of A Pedagogy Of Justice, Peter L. Davis

Scholarly Works

Why are law schools not named schools of justice, or, at least, schools of law and justice? Of course, virtually every law school will reply that this is nit-picking; all claim to be devoted to the study of justice. But our concern is not so easily dismissed. The names of institutions carry great significance; they deliver a political, social, or economic message. . . This Article contends that not only do law schools virtually ignore justice – a concept that is supposed to be the goal of all legal systems – they go so far as to denigrate it and …

Truth, Deterrence, And The Impeachment Exception , James L. Kainen

Faculty Scholarship

James v. Illinois permits illegally-obtained evidence to impeach defendants, but not defense witnesses. Thus far, all courts have construed James to allow impeachment of defendants' hearsay declarations. This article argues against allowing illegally-obtained evidence to impeach defendants' hearsay declarations because doing so unduly diminishes the exclusionary rule's deterrent effect. The distinction between impeaching defendants and defense witnesses disappears when courts allow prosecutors to impeach defendants' hearsay declarations. Because defense witnesses report exculpatory conduct of a defendant who always has a substantial interest in disguising his criminality, their testimony routinely incorporates defendant hearsay. Defense witness testimony thus routinely paves the way …

Joe Stell's Life, Career, & Contributions, Susan Kelly

Water Matters!

Representative Joe Stell's retirement after 20 years in the New Mexico Legislature has many people wondering: How will we fare without his knowledge and history ofNew Mexico water matters? Stell viewed one of his most important roles as that of helping new legislators get up to speed on w ater issues. We hope that Water Matters! may assist in this role by providing legislators with background information on some of the issues they will encounter. The Utton Center also wanted to acknowledge Joe Stell's outstanding service to New Mexico, and we have therefore included a brief sketch about his career, …

Erastian And High Church Approaches To The Law: The Jurisprudential Categories Of Robert E. Rodes, Jr., M. Cathleen Kaveny

Journal Articles

It is a great honor for me to have been asked to contribute to this issue of the Journal of Law and Religion focusing on the work of my colleague and friend, Robert E. Rodes, Jr. In June 2006, Professor Rodes celebrated his fiftieth anniversary as a member of the faculty of Notre Dame Law School. His long career has marked him as a founding father of interdisciplinary scholarship at the intersection of faith, law, and morality—the very sort of scholarship which this journal is dedicated to fostering and preserving.

The topics that Professor Rodes has considered over the years …

On Hart's Ways: Law As Reason And As Fact, John M. Finnis

Journal Articles

This address at the Hart Centenary Conference in Cambridge in July 2007 reflects on foundational elements in Hart's method in legal philosophy. It argues that his understanding of what it is to adopt an internal point of view was flawed by (a) inattention to the difference between descriptive history (or biography or detection) and descriptive general theory of human affairs, (b) inattention to practical reason as argument from premises, some factual but others normative (evaluative) in their content, and (c) relative inattention to the deliberations of law-makers as distinct from subjects of the law. These flaws contributed to a concept …

The Judicial Treatment Of Noneconomic Compensatory Damages In The 19th Century, Ronald J. Allen, Alexia Brunet

Publications

Do high verdicts for tort cases containing noneconomic damages have historical precedent? We present the results of our empirical inquiry into the treatment of noneconomic compensatory damages by the courts from 1800-1900. Using 1,175 tort cases from this era, we show that, notwithstanding constant reiteration of jury discretion over damages, courts tightly controlled awards. In fact, no case prior to 1900 permitted a noneconomic compensatory damages award exceeding $450,000 in current dollars. Logistic regression results reveal that an increase in total monetary damages is positively and significantly related to the probability of reversal when noneconomic damages were claimed, and that …

Arbitration Of International Oil, Gas, And Energy Disputes In Latin America, Alexia Brunet, Juan Agustin Lentini

Publications

No abstract provided.

The Feminist War On Crime, Aya Gruber

Publications

One of the most celebrated successes of the feminist movement is its lasting impact on domestic violence criminal laws. Today, society has moved from discourse characterizing domestic abuse as legitimate or merely a private problem to a belief that battering is a heinous crime, more egregious than garden-variety assault. I know all too well how far the pendulum has swung, having practiced as a public defender in the District of Columbia domestic violence system. Day after day, prosecutors proceeded with cases against the wishes of victims, resulting in the mass incarceration of young black men. Could this have been the …

An External Perspective On The Nature Of Noneconomic Compensatory Damages And Their Regulation, Ronald J. Allen, Alexia Brunet, Susan Spies Roth

Publications

No abstract provided.

"Remarkable Stratagems And Conspiracies": How Unscrupulous Lawyers And Credulous Judges Created An Exception To The Hearsay Rule, Marianne Wesson

Publications

This paper, a companion piece to the author's earlier exploration of the case of Mutual Life Insurance Company v. Hillmon, describes the remarkable record of unethical conduct compiled by the eminent and respectable attorneys for the insurance companies in the course of that litigation. When married with the Supreme Court Justices' uncritical willingness to accept the false narrative thus contrived, these attorneys' misconduct led to the creation of an important rule of evidence - a rule of questionable merit. This article aims to remind us that lawyers who are willing to distort the process of litigation have the power …

Patents On Legal Methods? No Way!, Andrew A. Schwartz

Publications

An “invention,” as used in the United States patent laws, refers to anything made by man that employs or harnesses a law of nature or a naturally occurring substance for human benefit. A watermill, for instance, harnesses the power of gravity to run machinery. But legal methods, such as tax strategies, are not inventions in this sense, because they employ “laws of man” — not laws of nature to produce a useful result.

Foreword: A Symposium Exploring The Modern Legacy Of William Jennings Bryan, Susan Franck

Scholarly Articles in Law Reviews & Journals

William Jennings Bryan, known as "The Great Commoner," is one of the most controversial lawyers to hail from Nebraska.' While he may be best-known as a failed three-time Democratic nominee for U.S. President and the legal defender of creationism at the Scopes Monkey Trial, fundamental aspects of Bryan's life have been overlooked.

In a new biography, A Godly Hero: The Life of William Jennings Bryan, Professor Michael Kazin re-evaluates Bryan's legacy and charges us to consider the profound impact Bryan had upon the political, economic and legal reality of the United States. The book has been the subject of controversy. …

Empiricism And International Law: Insights For Investment Treaty Dispute Resolution, Susan Franck

Scholarly Articles in Law Reviews & Journals

While scholars in the United States increasingly focus on the empirical dimension of legal scholarship, there have been challenges in using empiricism to explore international legal issues. Rather than relying on logic or instinct alone, empirical methodologies can provide scholars with tools to gain new facts, see existing ideas through a different lens, and engage in a more nuanced analysis of international law phenomena. There appears to be a natural synergy between empiricism and international investment treaty dispute resolution. With calls for trade time outs by U.S. presidential candidates, there is interest in how investment treaties function, whether they achieve …