LEGAL HISTORY eJOURNAL

"The Returning Warrior and the Limits of Just War Theory" Free Download
Rutgers Journal of Law and Religion, 2014, Forthcoming
U of St. Thomas (Minnesota) Legal Studies Research Paper No. 14-15

ROBERT J. DELAHUNTY, University of St. Thomas School of Law (Minnesota)
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In this essay, I seek to explore a Christian tradition that is neither the just war theory nor pacifism. Unlike pacifism, this tradition teaches that war is a necessary and inescapable aspect of the human condition, and that Christians cannot escape from engaging in it. Unlike just war theory, this tradition holds that engaging in war is intrinsically sinful, however justifiable that activity may be considered to be in the light of human law, morality or reason. Michael Walzer captured the essence of this way of thinking in a celebrated essay on the problem of “dirty hands.? Although Walzer’s essay was chiefly about political rather than military action, he rightly observed that there was a strand in Christian reflection that saw killing, whether in a just or unjust war, as defiling or even sinful, even if it conformed to moral and legal standards. That tradition, though subordinate, still survives in Christian, especially Lutheran, thought.

The Church’s thought about war and peace went through several phases before finally settling on the just war theory. Throughout much of the Middle Ages, the Church’s approach to war was primarily pastoral and unsystematic. Although opinions varied widely depending on the circumstances, the early medieval Church was commonly skeptical of the permissibility of killing in warfare. Rather, the Church at that time tended to the view that killing – even in a just war – was sinful and required penance. The decisive change from that attitude towards a systematic just war theory took place during the great eleventh century Reform – some would say, Revolution -- under Pope Gregory VII (Hildebrand) and his immediate predecessors and twelfth century successors. These papacies marked the emergence of the Church as a prototype of the early modern European State, equipped with legislative authority, courts, a legal and administrative bureaucracy and even a military enforcement arm. As an essential part of this epochal transformation, the Papal program required the Church to abandon its earlier skepticism about war and to settle on the view that war could be justifiable, even sanctified.

"The Forgotten Jurisprudential Debate: Catholic Legal Thought's Response to Legal Realism" Free Download

JOHN M. BREEN, Loyola University Chicago School of Law
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LEE J. STRANG, University of Toledo College of Law
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Although countless journal articles and numerous books have described Legal Realism, The Forgotten Jurisprudential Debate: Catholic Legal Thought’s Response to Legal Realism, is the first to describe the widespread and thoughtful critique of Realism by an organized jurisprudential movement of Catholic legal scholars during the 1930s-1940s.

In this Article, we accomplish three goals. First, we describe the standard historical narrative in which the contributions by Catholic legal scholars are ignored or marginalized. This gap is surprising because the critique offered by Catholic legal scholars constituted the single largest body of criticism aimed at Realists. This gap is doubly-surprising because the arguments offered by Catholic legal scholars were generally thoughtful and nuanced, in large measure because they built on the world-wide Neo-Scholastic revival then taking place.

Second, we detail the neglected Catholic legal scholars’ critique of Legal Realism. We describe the major Catholic legal scholars and how their movement drew upon, reflected, and facilitated the world-wide revival of Thomistic philosophy. Like other intellectual movements, Catholic legal scholars sought to institutionalize their movement in various ways.

Third, we explore the oddness of historians’ neglect and marginalization of Catholic legal scholar contributions. We end by suggesting causes for the poverty of extant historical accounts.

"Blackstone's Legal Actors: The Passions of a Rational Jurist" Free Download
Nancy Johnson, ed., Impassioned Jurisprudence: Law, Literature and Emotion, 1660-1800 (Bucknell University Press, Aperçus series, 2014) Forthcoming

SIMON STERN, University of Toronto - Faculty of Law
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The success of Blackstone’s Commentaries is usually attributed to the ambition of his project: to give a synthetic and integrated overview of the common law. Blackstone’s effort, however strained, to display the law’s coherence, helps to explain why the Commentaries were taken up by so many generations of avid readers, but the book’s success also owes something to Blackstone’s method of showcasing this coherence and soliciting the reader’s enthusiasm for it. Blackstone does not simply methodize the law; he also personifies the law as an active force that produces consistency, and he similarly casts the reader as someone who partakes of the same sensibility and appreciates the same virtues. Blackstone places both the law and the law student in an affective relation to the rationalizing aims promoted in the Commentaries. By positing, within the text, a reader who attaches to the law in this fashion, Blackstone encourages his reader to take it for granted that this sense of attachment is part and parcel of the study of law.

The chapter begins by examining Blackstone’s figuration of the law and its passions, and the pattern in which he attributes the same dispositions to the reader. Next, the chapter considers Blackstone’s treatment of emotion in the criminal law, which describes the violent impulses of passionate actors – now presented as objects rather than subjects of legal thought – whose feelings are distinguished from the emotions that inform the law’s operations and that animate the law’s human exponent. Finally, the discussion turns to the place of emotion in Blackstone’s often-quoted paean to the imaginative power of the property right – a tribute that also positions the property-owner and his “affections? as the objects of legal thought. When this passage is considered in relation to Blackstone’s other accounts of legal passion, the property-owner emerges as a figure whose feelings might themselves be the product of a Blackstonian legal education.

"Who Rules, to What Ends, by What Means: Laws of Politics and Challenges to Political Science" Free Download

ALFRED G. CUZAN, University of West Florida
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At the core of the study of politics are three interrelated questions: who rules, to what ends, and by what means. To offer answers to these questions, along with their subsidiaries and sequels, with references to the political history of several countries, primarily the United States and Cuba, is the purpose of the present work. The answers suggest several laws of politics that present challenges to political science.

"From Kate Stoneman to Kate Stoneman Chair, Katheryn D. Katz: Feminist Waves and the First Domestic Violence Course at a United States Law School" Free Download
Albany Law Review, Vol. 77, 2014

MELISSA L. BREGER, Albany Law School
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MARY A. LYNCH, Albany Law School
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First-wave feminist, suffragette, and 1898 Albany Law School graduate, Katherine ― Kate Stoneman, pioneered the admission of women to the Bar of the State of New York. She led the charge against the statutory preclusion of women, overturning the statute in 1886 and winning legislative victory for non-discrimination in admission to the bar. Exactly one hundred years later, in 1986, second-wave feminist and Albany Law School graduate Katheryn D. Katz pioneered the teaching of violence against women in law schools by teaching the first documented Domestic Violence seminar course in a United States law school. In 2007, Albany Law School named Professor Katz the first Kate Stoneman Chair in Law and Democracy. The impact these two women made continues to be felt far beyond Albany Law School and New York State. This article positions the role of Albany Law School and two of its graduates in the struggle for equality of women under the law and within law schools. It also documents Professor Katz‘s historical place as a second-wave feminist and the impact her activism has had on the study of domestic violence law, family law, reproductive rights, juvenile rights, and the advancement of issues concerning women and children nationwide.

"Property Law in a Time of Transformation: The Record of the United States" Free Download
South African Law Journal, 2014 Forthcoming

ERIC T. FREYFOGLE, University of Illinois College of Law
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Over the century-long period from just before the American Revolution until the end of the Civil War the United States underwent a profound transformation, beginning with its political break from Britain and expanding rapidly to embrace political and economic liberalism and elements of equality and social justice. Importantly, this transformation was aided by fundamental changes to the received English common law of property. Several property-law changes enhanced economic freedom and facilitated industrialization. Other legal changes diminished the power of landowners to dominate the poor socially and economically. Yet further reforms stabilized land tenure and expanded easy public access to natural resources, on private as well as public lands. Along the way, American courts embraced a more instrumental conception of law and carved out greater space for legislatures to regulate uses of property. Many of these changes involved substantial shifts of wealth, yet none was accompanied by significant compensation. In its transformation, South Africa is differently situated from the US of two centuries ago. Nonetheless, the American record may prove instructive, both in its particulars and as an example of how a developing nation, committed to private property and the rule of law, can nonetheless reform the legal elements of ownership without diminishing the institution’s stability and widespread benefits.

"The Heredity Oath in Canada's Citizenship Act Must Be Declared Optional on Appeal: The Fatal Errors Made in McAteer v. Attorney General of Canada, 2013 ONSC 5895" Free Download

DEREK SMITH, Independent
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Canada's Citizenship Act requires aspiring citizens to express allegiance to the hereditary Queen and her heirs and successors as part of an oath of citizenship. In September 2013, Ontario's Superior Court of Justice ruled that the forced regal oath is a justifiable limit on free speech under Canada's Charter of Rights and Freedoms. An appeal of the decision is currently before Ontario's Court of Appeal. This paper examines the flaws in the lower court ruling in detail. First, the paper examines recent Canadian public opinion about the Charter and the monarchy. Second, the paper sets out the missing legislative history of the oath and similar Ontario oaths from 1945-2010, a crucial period that received insufficient attention from the lower court. This period includes the years after 1982, when the Charter became part of Canada's constitution and Ontario lawmakers across the political spectrum removed forced regal oaths in other noteworthy contexts to respect free speech under the Charter. Third, the paper sets out the key provisions of the Citizenship Act and Citizenship Regulations for the purpose of the appeal. Fourth, the paper methodically discusses each part of the Supreme Court of Canada's test for a justifiable limit on free speech, indicating at each stage why the forced regal oath is not justifiable. The paper concludes by explaining why the appropriate remedy is to declare the regal oath optional, effective immediately.

"Colombia Y La Doctrina Monroe: El Caso Del Ferrocarril De Panamá Y Las Intervenciones Estadounidenses En El Istmo (Colombia and the Monroe Doctrine: The Case of the Panama Railroad and U.S. Interventions in the Isthmus)" Free Download
Memorias, Revista Digital de Historia y Arqueología Desde el Caribe, Vol. 2, No. 22, pp. 107-132, April 2014

JUAN SANTIAGO CORREA, Colegio de Estudios Superiores de Administración-CESA
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Spanish Abstract: La construcción y puesta en marcha del Ferrocarril de Panamá se constituyó como uno de los procesos de inversión extranjera en América Latina durante el siglo XIX. Este ferrocarril, construido como una forma de superar las dificultades de navegación entre el mar Caribe y el Océano Pacífico, permite evidenciar el despliegue de la Doctrina Monroe sobre América Latina y el Caribe, la interrelación entre los intereses de las élites locales y los intereses internacionales, y la forma en que se estaba definiendo el concepto mismo de nación durante el siglo XIX.

English Abstract: The construction and operation of the Panama Railroad was one of the most successful processes of foreign investment in Latin America during the nineteenth century. This railway, built to overcome the difficulties of navigation between the Caribbean Sea and the Pacific Ocean, makes evident the deployment of the Monroe Doctrine in Latin America and the Caribbean, the relationship between the interests of localities and international powers, and how the concept of nation was defined in the nineteenth century.

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About this eJournal

This eJournal distributes working and accepted paper abstracts on the history of law and legal institutions, as well as other historical inquiries that relate to current legal issues.

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LSN SUBJECT MATTER EJOURNALS

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Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

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Advisory Board

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

KIMBERLE CRENSHAW
Columbia Law School

HENRY LOUIS GATES
Harvard University - Department of African-American Studies

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

DONNA HARAWAY
University of California, Santa Cruz - History of Consciousness

DUNCAN KENNEDY
Harvard Law School

MARGARET JANE RADIN
Henry King Ransom Professor of Law, University of Michigan Law School

REVA B. SIEGEL
Nicholas deB. Katzenbach Professor of Law, Yale University - Law School

KENDALL THOMAS
Columbia Law School

IRIS MARION YOUNG
University of Chicago - Department of Political Science