Legal History Commons^™

Dilemmas Of Modernity: Bolivian Encounters With Law And Liberalism (Book Review), Jan Hoffman French

Sociology and Anthropology Faculty Publications

Recent scholarship on Bolivia has focused primarily on indigenous rights, multiculturalism, political and cultural issues surrounding the growing of coca, and the election of Evo Morales. Mark Goodale's project is different. By taking a "telescopic" view, Goodale steps away from ethnographic detail in a remote district of Bolivia to examine the sweep of "liberal legality" since independence in 1825. Setting the stage, Goodale takes the position that neither neoliberal economic policies of the 1980s nor the election of Morales are breaks with the past. Rather, the "patterns of intention" initiated with the early constitutions of the new republic, the ethos …

Taking The Long View, Nancy Bellhouse May

The Journal of Appellate Practice and Process

No abstract provided.

Law Versus Ideology: The Supreme Court And The Use Of Legislative History, David S. Law, David Zaring

William & Mary Law Review

Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court’s use of a particular interpretive technique— namely, the use of legislative history to determine the purpose and meaning of a statute. We analyzed …

Keep Negroes Out Of Most Classes Where There Are A Large Number Of Girls': The Unseen Power Of The Ku Klux Klan And Standardized Testing At The University Of Texas, 1899-1999, Thomas D. Russell

Sturm College of Law: Faculty Scholarship

The draft of this paper created controversy, garnered a great deal of media interest, and led the Regents of The University of Texas to remove a Klansman's name from a UT dormitory.

Two amicus briefs to the United States Supreme Court in Fisher v. University of Texas cite the published article, which appeared in the South Texas Law Review. These are the Brief of the Advancement Project and the Brief of the Black Student Alliance at the University of Texas at Austin, the Black Ex-Students of Texas, Inc., and the NAACP Legal Defense & Educational Fund, Inc.

The article appears …

"Undead" Wartime Cases: Stare Decisis And The Lessons Of History, Harlan G. Cohen

Scholarly Works

References to the “lessons of history” are ubiquitous in law. Nowhere has this been more apparent than in recent debates over U.S. counterterrorism policy. In response to the Bush Administration’s reliance on World War II-era decisions - Johnson v. Eisentrager, Ex Parte Quirin, Hirota v. MacArthur, and In re Yamashita - opponents have argued that these decisions have been rejected by the “lessons of history.” They argue that the history of wartime cases is one marked by executive aggrandizement, panic-driven attacks on civil liberties, and overly quiescent courts - none of which should be repeated.

But what does it really …

Justice As Play, Jack L. Sammons

Mercer Law Review

I am interested here in using Johannes Huizinga's work on play, Homo Ludens, to explore a strange, yet civilizing, phenomenon. Why do we take those social disputes in our ordinary lives that often seem most serious and therefore most divisive, turn them over to playful participants in a legal game, and then choose, more or less, to call the outcome of this game justice and to trust it as such even to the point of preferring it to the political? Why, that is, do we think that it is justice that arises from this play?

This inquiry is not …

Energy Independence And Climate Change: The Economic And National Security Consequences Of Failing To Act, Mark E. Rosen

University of Richmond Law Review

This article draws heavily from the works of the CNA MAB, namely the twin and interrelated challenges arising from imprudent reliance on fossil fuels by developed and developing countries, as well as the serious environmental and national security"externalities" that directly result from current consumptive trends.

Law And Humor In Johnnie To's Justice, My Foot!, Marco Wan

Cardozo Law Review

No abstract provided.

Rwanda 94: Theater, Film, And Intervention, Christian Biet

Cardozo Law Review

No abstract provided.

John Paul Stevens And Equally Impartial Government, Diane Marie Amann

Scholarly Works

This article is the second publication arising out of the author's ongoing research respecting Justice John Paul Stevens. It is one of several published by former law clerks and other legal experts in the UC Davis Law Review symposium edition, Volume 43, No. 3, February 2010, "The Honorable John Paul Stevens."

The article posits that Justice Stevens's embrace of race-conscious measures to ensure continued diversity stands in tension with his early rejections of affirmative action programs. The contrast suggests a linear movement toward a progressive interpretation of the Constitution’s equality guarantee; however, examination of Stevens's writings in biographical context reveal …

The Opinion Volume 48 Issue 1 – February 1, 2010, The Opinion

The Opinion Newspaper (all issues)

The Opinion newspaper issue dated February, 1, 2010

Law And Development: The Way Forward Or Just Stuck In The Same Place?, D. Daniel Sokol

UF Law Faculty Publications

This Essay does three things. First, it provides an overview of Law and Development issues. Second, it responds to other pieces in the symposium "The Future of Law and Development". Third, it suggests that to measure success, Law and Development needs clearer goals.

Aspects Of Deconstruction: The Failure Of The Word "Bird", Anthony D'Amato

Faculty Working Papers

Lawyers and judges often become impatient with those who dispute what they regard as the clear meaning of words. The meaning of words derives from the contexts in which they are employed, and we can never be certain of the context because we cannot enter into the minds of other persons to see the contexts to which their minds are adverting.

Aspects Of Deconstruction: Thought Control In Xanadu, Anthony D'Amato

Faculty Working Papers

Nearly every case in nearly every legal system is a case where the factfinder—that is, the judge or jury—must decide what was going on in the minds of the litigants. For example, every criminal case turns on mens rea—a guess that the defendant harbored thoughts amounting to criminal intent. Tort cases involve the intention of the defendant, or at least his reckless indifference to risk. Estate cases require the probate court to assess the intent of the testator. Antitrust cases involve the question whether there was an intent to form a combination in restraint of trade. I can't think of …

The Effect Of Legal Theories On Judicial Decisions, Anthony D'Amato

Faculty Working Papers

I draw a distinction in the beginning of this essay between judicial decision-making and a judge's decision-making. To persuade a judge, we should try to discover what her theories are. Across a range of theories, I offered well-known case examples typically cited as examples of each theory. Then I showed that the exact same theory used to justify or explain those case results could be used to justify or explain the opposite result in each of those cases.

The Injustice Of Dynamic Statutory Interpretation, Anthony D'Amato

Faculty Working Papers

How can we possibly plan our lives on the basis of the law of tomorrow when we can't predict what that law will be? Are courts that are attracted to dynamic statutory interpretation teaching us that we can no longer know and rely on the rule of law in our daily lives because months or years later they can use policy considerations to make new law and apply that law retroactively to us? Doesn't dynamic statutory interpretation amount to unconstitutional ex post facto legislation? Hasn't justice become impossible to get from courts if judges insist on upsetting both sides' expectations …

A Few Steps Toward An Explanatory Theory Of International Law, Anthony D'Amato

Faculty Working Papers

If any one sentence about international law has stood the test of time, it is Louis Henkin's: "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time." If this is true, why is this true? What makes it true? How do nations invent rules that then turn around and bind them? Are international rules simply pragmatic and expedient? Or do they embody values such as the need for international cooperation? Is international law a mixed game of conflict and cooperation because of its rules, or do its rules make …

Obligation To Obey The Law: A Study Of The Death Of Socrates, Anthony D'Amato

Faculty Working Papers

Do we have an obligation to obey any law, no matter how unjust or evil, provided only that it is in fact a valid rule of the legal system in which we happen to be physically located? Reassessment of the relation between law and ethics justifies a new look at the classic statement of legal obligation: the death of Socrates found in the dialogues of Plato. Three possible bases for an ethical obligation to obey the law are examined.

Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland

Law Faculty Publications

No abstract provided.

Florence Kelley And The Battle Against Laissez-Faire Constitutionalism, Felice J. Batlan

All Faculty Scholarship

The usual story of the demise of laissez-faire constitutionalism in the 1930’s features heroes such as Louis Brandeis, Felix Frankfurter and the great male legal progressives of the day who rose up from academia, the bench, and the bar, to put an end to what historians label "legal orthodoxy." In this essay, I seek to demonstrate that Florence Kelley was a crucially important legal progressive who was at the front lines of drafting and defending new legislation that courts were striking down as violating the Fourteenth Amendment and State constitutions. Looking at who was drafting and lobbying for path breaking …