Table of Contents

'Lex Mercatoria' as an Independent Legal System

Mohammad Karimi, Islamic Azad University (IAU), Najafabad Branch, Students
Javad Kashani, Allameh Tabatabaei University
Dawood Nassiran, Islamic Azad University (IAU) - Najafabad Branch

Following Finality: Why Capital Punishment is Collapsing Under Its Own Weight

Corinna Lain, University of Richmond - School of Law

Reply to Ed Whelan on the Garland Affair

Robin Bradley Kar, University of Illinois College of Law, University of Chicago
Jason Mazzone, University of Illinois College of Law

The Family, the State, and American Political Development As a Big Tent: Asking Basic Questions About Basic Institutions

Linda C. McClain, Boston University - School of Law

Merchant Courts, Arbitration, and the Politics of Commercial Litigation in the Eighteenth-Century British Empire

Christian R. Burset, Yale University


LEGAL HISTORY eJOURNAL

"'Lex Mercatoria' as an Independent Legal System" Free Download

MOHAMMAD KARIMI, Islamic Azad University (IAU), Najafabad Branch, Students
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JAVAD KASHANI, Allameh Tabatabaei University
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DAWOOD NASSIRAN, Islamic Azad University (IAU) - Najafabad Branch
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The demands of the international commerce relationships necessitate that transnational rules govern the relationships of the active people in this field. On the one hand the differences between different legal systems, and on the other hand the increasing process of globalism of the relationships and sometimes lack of the suitable answer of national rules cause that litigation for a transnational commercial transaction becomes expensive from different aspects. Therefore in the society of merchants, a tendency was created to know a legal system on the basis of the common international commercial methods as “Lex Mercatoria� or merchants law especially after World War 2. However the dispute able subject about Lex Mercatoria is if “Lex Mercatoria� can interpreted as an independent legal system. Therefore this article will be considered the basic conditions in relation to abilities of a legal system about “Lex Mercatoria�.

"Following Finality: Why Capital Punishment is Collapsing Under Its Own Weight" Free Download
Forthcoming in Final Judgments: The American Death Penalty and the Law (Sarat, ed.)

CORINNA LAIN, University of Richmond - School of Law
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This essay, a chapter in the forthcoming book Final Judgements: The American Death Penalty and the Law (Austin Sarat, ed.), discusses the role of finality in the death penalty’s decline over the past two decades. Well before that decline, in the early years of the modern death penalty era, the Supreme Court’s recognition that death is different in its finality led to developments to ensure that we get the death penalty right — constitutional regulation, habeas litigation, and the rise of a specialized capital defense bar to navigate those complicated structures. Over time, these developments led to a massive time lag between death sentence and execution, and with it, the discovery of innocents among the condemned, skyrocketing costs, and concerns about the conditions of long-term solitary confinement on death row. These developments, in turn, have led to a number of cascading effects — falling death sentences and executions, penological justifications that no longer make sense, and a growing number of states concluding that capital punishment is more trouble than it is worth. In the end, the finality of capital punishment is what makes it so rarely final, and so costly, cumbersome, and slow that it is collapsing under its own weight.

"Reply to Ed Whelan on the Garland Affair" Free Download
The National Review, Forthcoming

ROBIN BRADLEY KAR, University of Illinois College of Law, University of Chicago
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JASON MAZZONE, University of Illinois College of Law
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In The Garland Affair, we present historical evidence to suggest that Senate Republicans’ current plan to prevent President Obama from appointing a replacement for Justice Scalia, regardless of the particular merits of his nominees, is historically unprecedented. The plan thus raises a set of pragmatic and constitutional risks that have not yet been fully appreciated and warrant reconsideration of this plan. In a six-part series of responses in the National Review, Ed Whelan promises to show that our essay “provide[s] no reason for Senate Republicans to reconsider their course on the Garland nomination� (emphasis added). But for reasons we explain here, Whelan does not deliver on this promise. Whelan brings his characteristic intelligence to bear on these issues, and he engages very carefully with our evidence and conclusions. As the leader of one of the nation’s preeminent conservative think tanks, Whelan has plenty of incentive to show we are wrong. Despite all of this, our analysis emerges undented — thus suggesting that the problem we describe in our original essay is perhaps even more acute than we initially posited.

"The Family, the State, and American Political Development As a Big Tent: Asking Basic Questions About Basic Institutions" 
48(2) Polity 224-242 (April 2016)
Boston Univ. School of Law, Public Law Research Paper No. 16-21

LINDA C. MCCLAIN, Boston University - School of Law
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This article, contributed to a symposium on “The Family, the State, and American Political Development�, evaluates the proposition that the relationship between the basic institutions of the family and the state should be more central to the study of American political development (“APD�). It argues that, happily, such relationship is no longer as neglected by scholars as it once was, but that much work remains to be done. The article begins by comparing parallel efforts by pioneering feminist political and legal theorists to put on the table such issues as the public/private distinction between the polity and the family, assumptions about the role of the family (and of women’s wifely and maternal labor) in the political order, and injustice within the family. With the emergence of the subfield of APD and of “historical institutionalism�, some political scientists and historians (particularly feminist historians) also produced valuable studies of the historical development of public policy concerning families and the welfare state, treating gender as a salient category of analysis. The article argues that legal scholars also regularly examine the evolution over time not only of family definitions, forms, and gender roles, but also of how various forms of the state have regulated and supported the family. It proposes that we view the study of APD as a “big tent� within which scholars from diverse disciplines may benefit from fruitful conversations about parallel inquiries. To indicate the importance of the contextual and temporal examination of the family and the state, the article analyzes the contrasting approaches to the institution of marriage and governmental interest in it in the majority and dissenting opinions in the Obergefell v. Hodges (2015), the landmark case holding that same-sex couples may exercise the fundamental right to marry in every state.

"Merchant Courts, Arbitration, and the Politics of Commercial Litigation in the Eighteenth-Century British Empire" 
Law and History Review, Volume 34, No. 3. DOI: 10.1017/S0738248016000183

CHRISTIAN R. BURSET, Yale University
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This article offers the first explanation of why Britain, unlike other major European economic powers, did not create merchant courts in the eighteenth century, and instead chose to resolve commercial disputes either through litigation in “ordinary� courts or through arbitration. From the Restoration until the 1750s, lawyers successfully resisted the development of merchant courts in order to protect their monopoly on litigation. (Such courts did emerge in the colonies, however, where the legal profession was less powerful.) In the 1760s, the need for a merchant court became more acute, as litigation levels rose, legal costs skyrocketed, and some merchants complained that existing methods of arbitration were inadequate. But just as merchant courts offered the greatest practical appeal, political polarization impeded institutional innovation, as radical Whigs became increasing unyielding in their opposition to any new court that might undermine civil juries. Meanwhile, various improvements in common law litigation, especially the expanded use of merchant juries, reduced pressure for more fundamental reform and allowed political concerns to predominate. As a result, an enduring fiction emerged that in the Anglo-American legal tradition, litigants resolved their disputes either privately or before courts of general jurisdiction — a fiction that continues to shape our assumptions about civil litigation.

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Legal History eJournal

KWAME ANTHONY APPIAH
Princeton University - Department of Philosophy

PETER PRESTON BROOKS
Andrew W. Mellon Foundation Scholar, Center for Human Values, Peter Brooks, Princeton University

JUDITH BUTLER
University of California, Berkeley

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Columbia Law School

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Harvard University - Department of African-American Studies

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University of California, Santa Cruz - History of Consciousness

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Harvard Law School

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REVA B. SIEGEL
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Columbia Law School

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University of Chicago, Deceased , University of Chicago - Department of Political Science