Legal History Commons^™

Cornography: Perverse Incentives And The United States Corn Subsidy, Anthony Kammer

Journal of Food Law & Policy

Among the most important functions we have afforded to the U.S. Congress is the power to reshape social and economic incentive structures through legislation. Proceeding from the enumerated powers under the Constitution and using a complex toolbox of legislative and regulatory innovations, the federal legislature has enormous power to transform the types of behavior that people will perceive as self-interested throughout our economy and thus how those same people are likely to act. Congress can, among other things, create new forms of criminal and civil liability, establish entitlement systems, subsidize industries, encourage behavior through the tax code, regulate interactions among …

The Letter Of Richard Wyche: An Interrogation Narrative, Christopher G. Bradley

Law Faculty Scholarly Articles

This is a translation, with introduction, of the Letter of Richard Wyche—one of only two heresy interrogation narratives from medieval England written from the perspective of the accused heretic.

The Letter is an autobiographical account of Richard Wyche’s interrogation, in 1402-1403, at the hands of church officials. Wyche originally composed the Letter in (Middle) English but it survives only in a Latin translation, alongside other forbidden texts in a manuscript now in Prague. Wyche wrote and covertly sent away this Letter to an audience of intimates sympathetic to the cause (the so-called Wycliffite or Lollard heresy) before his interrogations ended. …

Awareness And The Legal Profession: An Introduction To The Mindful Lawyer Symposium, Leonard L. Riskin

UF Law Faculty Publications

This article introduces the Mindfulness Symposium, which includes five articles that developed out of the Mindful Lawyer Conference held at U. California-Berkeley in 2010. The article explains mindfulness and its growing importance in the legal profession, situates it among other curricular innovations, summarizes the articles in the symposium, describes other mindfulness curriculum developments, and offers resources.

Put A Cork In It: The Use Of H.R. 161 To End Direct Wine Shipping Throughout The States Once And For All, Victoria H. Jones

Journal of Food Law & Policy

Due to Congress' recent agenda, oenophiles throughout the country are up in arms about the possible threat to their beloved wine. Wine lovers and other alcohol enthusiasts face the very real fear that access to their favorite products may soon be heavily restricted. This is in large part attributed to the fact that House Resolution 1161 would effectively change the ways in which states regulate alcohol shipment. The possible implications of this bill range from the forced shutdown of many wineries and distilleries due to lack of funding, to the smaller effects of regulation such as the inability of customers …

"Extraordinary Circumstances": The Legacy Of The Gang Of 14 And A Proposal For Judicial Nominations Reform, Michael Gerhardt, Richard Painter

University of Richmond Law Review

No abstract provided.

Chief Justices Marshall And Roberts And The Non-Self-Execution Of Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article is a response to David L. Sloss, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties, 53 Harv. Int'l L L.J. 135 (2012).

David Sloss’s article, Executing Foster v. Neilson, is an important contribution to the literature on the judicial enforcement of treaties. The author agrees with much of it, as he agrees with much of Professor Sloss’ other writing on treaties. In particular, the author agrees that the two-step approach to treaty enforcement that Professor Sloss proposes is generally the right approach, and he agrees that the “intent-based” approach to the self-execution issue …

Due Process As Separation Of Powers, Nathan S. Chapman, Michael W. Mcconnell

Scholarly Works

From its conceptual origin in Magna Charta, due process of law has required that government can deprive persons of rights only pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether the Fifth or Fourteenth Amendments were understood to entail modern “substantive due process” have obscured the way that many American lawyers and courts understood due process to limit the legislature from the Revolutionary era through the Civil War. They understood due process to prohibit legislatures from directly depriving persons of rights, especially vested property rights, because it was …

Making The Modern American Legislative State, William J. Novak

Book Chapters

The essays in this volume are dedicated to two propositions. First, most generally, they aim to reinvigorate scholarly interest in the subject of legislation and bring a new level of analytical sophistication to the study of the legislature. Second, they are committed to looking at legislation developmentally, that is, legislation not as the simple static textual output of a law-drafting body, but as a dynamic social and political process-a living and breathing human activity with a distinct time dimension involving a complex pattern of beginnings, evolutions, maturations, mutations, emendations, and, of course, endings. These propositions nicely intersect with recent themes …

Forgotten Supreme Court Abortion Cases: Drs. Hawker & Hurwitz In The Dock & Defrocked, Roy Lucas

Pepperdine Law Review

No abstract provided.

Tortured History: Finding Our Way Back To The Lost Origins Of The Eighth Amendment, Celia Rumann

Pepperdine Law Review

No abstract provided.

The Philosophical Underpinning And General Workings Of Chinese Mediation Systems: What Lessons Can American Mediators Learn?, Kevin C. Clark

Pepperdine Dispute Resolution Law Journal

Of the various ADR processes available to the disputant seeking ADR, mediation has arguably become the "process choice of today" because -it is a very dynamic, user-friendly process" with a high success rate. Despite its recent successes, however, mediation is not a modern creation. It has been used for centuries in places all around the world. One of these places is China. This article introduces the reader to the philosophical underpinnings of the Chinese legal system as it relates to mediation and the general workings of the Chinese mediation model. It is the author's thesis that as western nations enthusiastically …

Public Sector Dispute Resolution In Local Governments: Lessons From The Scag Project , Alana Knaster, Gregory L. Ogden, Peter Robinson

Pepperdine Dispute Resolution Law Journal

This article seeks to share lessons from an ongoing six-year project to overcome the barriers to the use of facilitation and mediation (ADR) processes for addressing regional and interjurisdictional planning disputes throughout Southern California. The participants in this effort originally assumed that the successful use of mediation in high profile disputes would lead to greater acceptance of ADR processes by governmental officials. After several failed attempts, project leaders concluded that it would be appropriate to refocus the original methodology and strategy for promoting the use of ADR. The new strategy focuses on the establishment of mediation services for community-based disputes …

Making Peace The Old Fashioned Way: Infusing Traditional Tribal Practices Into Modern Adr , Matt Arbaugh

Pepperdine Dispute Resolution Law Journal

Native Americans have their own unique traditional method of resolving disputes. Their processes, called peacemaking by some tribes, place the emphasis not on the guilt of the wrongdoer, but on restoring relationships and finding a solution that is amenable to all involved. This emphasis on saving the relationship has many similarities to current practices of mediation. Among the similar goals between mediation and peacemaking are the use of ADR allows both sides to reach a better conclusion and the desire to spend less money and to satisfy more people. However, this approach has critics who see it as another attempt …

When Does Familiarity Breed Content? A Study Of The Role Of Different Forms Of Adr Education And Experience In Attorneys' Adr Recommendations , Roselle L. Wissler

Pepperdine Dispute Resolution Law Journal

This article first reviews proposed explanations for and solutions to the low rate of voluntary ADR use, as well as related empirical research. The article then reports the findings of a study that involved a survey of attorneys regarding their ADR education, experience with ADR as counsel or as a third-party neutral, and advice to clients about ADR. This study found that attorneys' direct experience with ADR, especially in their role as counsel but also as a neutral, was strongly related to whether they recommended ADR to clients. In contrast, ADR education had little or no relationship with attorneys' ADR …

Arbitration And Judicial Civil Justice: An American Historical Review And A Proposal For A Private/Arbitral And Public/Judicial Partnership , Roger S. Haydock, Jennifer D. Henderson

Pepperdine Dispute Resolution Law Journal

Dispute resolution systems historically have included three primary forums: the judicial process, administrative procedures, and the arbitral system. This article focuses on the modem and rapidly expanding third system - that of arbitration. The goal of everyone interested in maintaining a fair, accessible, and affordable civil justice system is to monitor, shape, and maintain arbitration as a fair, accessible, and affordable system. The purpose of this article is to provide information and ideas which will help make that goal a success. The first part of this article explains the historical development of arbitration in this country prior to and under …

Substituting Mediation For Arbitration: The Growing Market For Evaluative Mediation, And What It Means For The Adr Field , Robert A. Baruch Bush

Pepperdine Dispute Resolution Law Journal

The past decade has seen significant expansion in the acceptance and use of mediation as a process for handling disputes. Indeed, old hands in the ADR field observe that mediation has begun to replace arbitration as the "process of choice" in the ADR (Alternative Dispute Resolution) "market," including institutional users like courts and major private consumers of ADR like businesses. All this is seen by some as part of the "mainstreaming" of mediation discussed by Joseph Folger's lead article in this Symposium. The primary question examined in this essay is: How do we best understand and interpret this development in …

Clarifying The Theoretical Underpinnings Of Mediation: Implications For Practice And Policy , Dorothy J. Della Noce, Robert A. Baruch Bush, Joseph P. Folger

Pepperdine Dispute Resolution Law Journal

In this article we examine developments in explaining and understanding "the when and why" of mediation practice - from the "lay theories" that have informed much of the field, to Bush and Folger's articulation of three distinct and coherent ideologically based theoretical frameworks: the problemsolving framework, the harmony framework, and the transformative framework. We then trace the development of the transformative framework since its articulation in 1994, and share the insights we have gained along the way regarding the impact of increasing theoretical clarity and differentiation in the mediation field. We conclude with a discussion of the implications of ideologically …

Changing The Quality Of Conflict Interaction: The Principles And Practice Of Transformative Mediation , Robert A. Baruch Bush, Sally Ganong Pope

Pepperdine Dispute Resolution Law Journal

Many practitioners now identify themselves as transformative mediators, who practice from the transformative perspective in some or all of their work. This article explains the unique character of transformative mediation by offering answers to three basic questions: Why is transformative mediation being sought and used by parties in conflict? What is the basic nature of the mediation process, especially the mediator's role, according to this model? How does a mediator work with the parties in transformative mediation? Answering these three questions why, what and how-will provide the reader a good overview of the transformative model in theory and practice. We …

Finding Women In Early Modern English Courts: Evidence From Peter King's Manuscript Reports, Lloyd Bonfield

Chicago-Kent Law Review

This article constitutes a preliminary report on cases involving women that appear in a manuscript authored by Chief Justice Peter King during the first seven years of his tenure as Chief Justice of the Court of Common Pleas in early eighteenth century England. While the 327 cases he reported in the manuscript run the gamut of the procedural and substantive matters that vexed early modem Englishmen, the cases isolated and discussed hereinafter are the fifty-five cases in which women were a party to the litigation observed. By so doing, isolating cases in which women appeared as litigants, we may catalog …

Law, Land, Identity: The Case Of Lady Anne Clifford, Carla Spivack

Chicago-Kent Law Review

This article presents the case history of Lady Anne Clifford, a seventeenth century Englishwoman who spent most of her adult life fighting to regain her ancestral estates, which she felt her father had unjustly left to her uncle instead of to her. Although, as the article explains, she had the better of the legal argument, that was no match for the combined forces of her two husbands and of King James I, who sought to deprive her of her land. Finally, however, because Clifford outlived her uncle's son, the last male heir, she did inherit the estates.

The article examines …