Table of Contents

Critical Junctures, Religion, and Personal Status Regulations in Israel and India

Hanna Lerner, Tel Aviv University - Department of Political Science

Genealogies of Lex Mercatoria

Nikitas Hatzimihail, University of Cyprus, Department of Law, Université Libre de Bruxelles (ULB)

When Dad Reached Across the Aisle: How Mario Cuomo Created a Bipartisan Court of Appeals

Benjamin Pieter Pomerance, New York State Division of Veterans’ Affairs

Antebellum Islam

Khaled A. Beydoun, Barry University - Dwayne O. Andreas School of Law

Fifty Years of New Zealand Family Law

Bill Atkin, Victoria University of Wellington - Faculty of Law
John Caldwell, University of Canterbury
Mark Henaghan, University of Otago, University of Otago
Pauline Tapp, University of Auckland - Faculty of Law

Historical Evolution of Conditionality Criteria in External Relations of the EU with CEEC. From the Cold War to the Accession: An Insider's Perspective

Carlos Puente, Independent


LEGAL HISTORY eJOURNAL

"Critical Junctures, Religion, and Personal Status Regulations in Israel and India" Free Download
Law & Social Inquiry, Volume 39, Issue 2, 387-415, Spring 2014

HANNA LERNER, Tel Aviv University - Department of Political Science
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The article aims at advancing our understanding of critical junctures in the evolution of religious/secular regulations, referring to those moments in history when one particular arrangement is adopted among several alternatives, establishing an institutional trajectory that is resistant to change in the following years. It traces the regulation of personal status laws in Israel and India, which, despite attempts by political leaders at time of independence to defer clear choices regarding the role of religious law, became generally entrenched in later decades. Based on the Israeli and Indian cases, and in contrast with common approaches, the article demonstrates how decisions made by influential political actors during the foundational stage of the state appear difficult to reform, regardless of the content of these decisions — whether they introduce a radical change or maintain existing practices — or the level of decision making — whether constitutional or ordinary parliamentary legislation.

"Genealogies of Lex Mercatoria" Free Download
Athens Faculty of Law, STUDIES IN MEMORIAM OF PROFESSOR ANTHONY M. ANTAPASIS (Athens, 2013: Ant. N. Sakkoulas), pp. 411-452

NIKITAS HATZIMIHAIL, University of Cyprus, Department of Law, Université Libre de Bruxelles (ULB)
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The historical study of mercantile law has, without a question, much to teach both business and private international lawyers. Such study requires a sophisticated methodology that combines the rigour of professional historians with understanding of doctrinal complexity. However, most of the popular historical narratives about the “old? law merchant have little to contribute to historical scholarship and appear instead primarily concerned with genealogy: their principal aim is to inspire their audience or to provide argumentative weapons to their party in the modern debates about lex mercatoria and the governance of transnational business activities. In comprehensive historical accounts and casual references to a common historical consciousness alike, the “ancient? law merchant is presented as an autonomous, cosmopolitan, transnational legal system. This imagery is also recurring in the modern conflict-of-laws literature, as well as domestic commercial law. It permeates historical narratives in comparative law and doctrinal legal history. The ancient law merchant even serves as case-study material for legal and economic theorists.

The power of this historical imagery masks its weak historical validation. Especially in recent years, a number of legal historians have refuted much of lex mercatoria genealogy, providing alternative stories about the legal treatment of commerce in medieval and early modern Europe. However, such historical revisionism has so far made few inroads among mercatorists or even in the mainstream of international business law: the romance of the law merchant still casts a powerful spell.

That the mercatorists’ historical imagery persists in spite of these refutations suggests that what matters, for the debate, is not so much what actually happened, but what projections into the past align best with present circumstances and what constructions of the past are used to justify explanations of the present. On the one hand, historical narratives as a whole support the notion of a transnational, cosmopolitan law merchant. On the other hand, when examined in detail or in contrast to each other they illustrate the internal divisions within the mercatorist alliance.

In an earlier study that illustrated this point [Hatzimihail, "The Many Lives - and Faces - of the Lex Mercatoria: History as Genealogy in International Business Law", 71 L. & CONTEMP. PROBS. 169 (2008)], I examined in detail two paradigmatic narratives of lex mercatoria historiography: the principal historical accounts provided by the two founding fathers of the modern lex mercatoria, Clive Schmitthoff and Berthold Goldman. Schmitthoff and Goldman were instrumental in the formation and shaping of the lex mercatoria discourse from its beginnings in the early 1960s until the late 1980s. More generally, they played important roles in the academic elaboration of international commercial law and international commercial arbitration. They are also regarded as emblematic of the two basic approaches to lex mercatoria—with Schmitthoff emphasizing the use of state and nonstate sources, and Goldman insisting on the stateless (a-national) character of lex mercatoria. Of their many works, I chose for my textual analysis two classic essays providing a comprehensive outlook of the authors’ respective worldviews and normative projects: genealogical narratives form a vital part of the argument in both essays.

The present essay largely reprises my previous examination of Schmitthoff’s and Goldman’s historical narratives, in Sections III and IV respectively. It also includes a third case study – the mercatorist historical narrative of Friedrich Juenger, a private international lawyer sympathetic to lex mercatoria (Section V). Unlike Schmitthoff and Goldman, Juenger is not a canonical figure of lex mercatoria, but his text is characteristic of his own discourse and relates to the two canonical narratives. The three texts considered are also separated by each other chronologically by a distance of around two decades: Schmitthoff in the early 1960s, Goldman in the early 1980s and Juenger in 2000.

The different point in time that each was written should probably be taken into account, as having somewhat influenced both the ideas expressed and their explicitness (indeed, the point in each author’s career at the time of writing must be also be considered), but the ideas expressed here continue to represent different streams of thought that remain alive – and distinct – to this day. It would be a mistake, therefore, to see the three texts as representing a unitary evolution of thinking about lex mercatoria, old and new.

The three case studies are preceded by another sort of genealogy in Section II: a survey of historical invocations from the early modern era to the early twentieth century, i.e. the period prior to the emergence of a new lex mercatoria.

"When Dad Reached Across the Aisle: How Mario Cuomo Created a Bipartisan Court of Appeals" Free Download
Albany Law Review, Vol. 77, p. 185, 2013/2014

BENJAMIN PIETER POMERANCE, New York State Division of Veterans’ Affairs
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Before he leaves office, New York State Governor Andrew Cuomo almost certainly will have appointed every sitting judge on the state's Court of Appeals. The only other Governor to hold this power over New York State's respected high court was Andrew Cuomo's father, Mario Cuomo, who re-made the Court of Appeals with an unprecedented eleven appointments during his terms in the Governor's Mansion. Many people feared that Mario Cuomo would turn the Court into a playland of his political cronies. However, Mario Cuomo surprised even his greatest skeptics by reaching across the aisle, coming up with a set of bipartisan appointments that left an enduring mark on New York State's caselaw.

This article closely examines the multi-faceted ways in which Mario Cuomo sculpted the Court of Appeals. For instance, he fulfilled campaign promises to appoint the first female judge and the first African-American judge to the Court of Appeals bench, appointing the first Hispanic Court of Appeals judge as well. To date, he remains the last New York State Governor to appoint a Court of Appeals judge from the opposing political party. However, he also found ways to appoint judges who represented key personal interests that he possessed, from opposing the death penalty to increasing the number of Italian-Americans in high judicial posts.

By "connecting the dots" of various factors, this article sheds some light on factors that Mario Cuomo likely considered important in selecting Court of Appeals judges. In doing so, this article illuminates key points about Mario Cuomo, about the Court of Appeals, and about the strategic machinations of high court judicial appointments overall.

"Antebellum Islam" Free Download
58:1 Howard L.J. (2015 Forthcoming)

KHALED A. BEYDOUN, Barry University - Dwayne O. Andreas School of Law
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Muslim-American identity today is deeply conflated with Arab-American identity. This conflation perpetuates stereotypes within legal scholarship, government agencies, and civil rights interventions seeking to combat the marginalization of Muslim Americans – victims of post-9/11 profiling and new, local policing surveillance programs (e.g., NYPD “Suspicious Activity? policing of Muslim-American identity, activity and religious institutions). This article examines the legal seeds of this conflation, and the consequent erasure of Black Muslim identity that still prevails today.

America’s first Muslims were slaves. Social scientists estimate that 15 to 30 percent of the Africans enslaved in the Antebellum South practiced Islam. Research indicates that the Muslim slave population could have been as high as 1.2 million. Despite their considerable presence in the Antebellum South, the history of Muslim slaves has been largely neglected within legal scholarship.

This Article argues that the omission of Muslim slaves from legal scholarship is a consequence of the legal segregation of Black and Muslim identity during the Antebellum Era. Two factors brought about this segregation. First, the law remade Africans into Black slaves, and state slave codes criminalized their religious activity and stripped slaves of their religious identities. Second, the state adopted a political conception of Muslim identity that converted it from a religious into a racial identity in the narrow profile of “Arabs? and “Turks? – a non-white class that racially restrictive naturalization laws barred from accessing citizenship. Muslim slaves lived at the intersection of these two irreconcilable racial configurations.

An intersectional approach enables investigation of the omitted history of Muslim slaves. In addition, intersectional examination facilitates analysis of modern narratives marginalized by the continued application of the antebellum binary that segregated Black and Muslim identity. Although Black Americans comprise the biggest plurality of Muslims in the US today, the modern re-deployment of this antebellum binary continues to separate Black and Muslim identity. As a result, limiting recognition of Black and Muslim identity as compatible, and following the September 11th terrorist attacks, undermining the focus on Black American Muslims as a specific community victimized by compounded racial and religious profiling, vilification and violence.

"Fifty Years of New Zealand Family Law" Free Download
(2013) 25 NZULR 645-666

BILL ATKIN, Victoria University of Wellington - Faculty of Law
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JOHN CALDWELL, University of Canterbury
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MARK HENAGHAN, University of Otago, University of Otago
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PAULINE TAPP, University of Auckland - Faculty of Law
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This collaborative article examines the significant changes to New Zealand family law during the last 50 years. The article canvasses three areas that have seen substantial changes during this time - what constitutes a legal family; changes in the exercise of judicial discretion in family law cases involving children; and the evolution of the financial and property consequences of family breakdown. The article initially focuses on the law's reaction to the changing New 'Zealand family and the important milestones in this legal evolution. This is accompanied by a detailed, historic analysis of the difficulties in deciding what is "best" for children involved in family law disputes and the degree of judicial discretion that should be exercised during this process. The article concludes by chronicling the significant legislative changes since 1963 concerning the financial implications of relationship breakdown and how this affects the children involved. This article illustrates how far New Zealand has come in the last 50 years regarding the increased legal recognition and protection of a wide variety of familial relationships. However, it argues that the recent debates surrounding adoption and marriage equality indicate that there is still a way to go before the law treats all New Zealand families equally.

"Historical Evolution of Conditionality Criteria in External Relations of the EU with CEEC. From the Cold War to the Accession: An Insider's Perspective" Free Download
Romanian Journal of European Affairs, Vol. 14, No. 4, December 2014

CARLOS PUENTE, Independent
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Conditionality is a concept frequently linked to funds received from international financial institutions by countries in trouble. Most cases depend on the financial support to developing countries of the IMF, but also of other institutions like the World Bank, ADB, IBD, EIB or the EBRD that are targeting the Central and Eastern European countries. Besides the financial framework there is another application of conditionality often used by organizations like the EU for applicant countries that are in the European integration process. Although no reference was made to any specific conditionality criteria in the Treaty of Rome, the EEC first and the EU afterwards applied a process of conditionality criteria during the commercial negotiations with Central and Eastern European countries (CEEC) in the 80’s. While general principles were developed in international forum, from the Helsinki Final Act signed in 1975, until the Copenhagen criteria for membership adopted during the June 1993 European Council, a great evolution has happened and even stricter conditions were established in the future when Bulgaria and Romania became applicant countries. All these topics will be the purpose of the present article from an introspective point of view, providing relevant information of very little known bureaucratic procedures.

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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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Nelson Bowman Sweitzer & Marie B. Sweitzer Professor of Law, Stanford Law School

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University of California, Santa Cruz - History of Consciousness

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Harvard Law School

MARGARET JANE RADIN
Henry King Ransom Professor of Law, University of Michigan Law School, Distinguished Research Scholar, University of Toronto Faculty of Law

REVA B. SIEGEL
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KENDALL THOMAS
Columbia Law School

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University of Chicago - Department of Political Science