Table of Contents

Reforming and Resisting the Criminal Law: Criminal Justice and the Tragically Hip

Kent Roach, University of Toronto - Faculty of Law

Progressive Antitrust

Herbert J. Hovenkamp, University of Iowa - College of Law

International Legal Structuralism: A Primer

Justin Desautels-Stein, University of Colorado Law School


LEGAL HISTORY eJOURNAL

"Reforming and Resisting the Criminal Law: Criminal Justice and the Tragically Hip" Free Download
Manitoba Law Journal, Vol. 39, No. 2, 2017

KENT ROACH, University of Toronto - Faculty of Law
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This paper examines two Tragically Hip songs, 38 Years Old and Wheat Kings, with a view to understanding how they can be interpreted as a call both to reform and resist criminal law. In a reformist spirit, 38 Years Old can be interpreted as an imaginary hypothetical that suggests that judges should be able to devise exemptions from all mandatory sentences, including life imprisonment for murder. The song can also be interpreted as a demonstration that imprisonment must be resisted and endured by offenders and their families because it will always be violent and destructive. Wheat Kings similarly can be interpreted as a call to reform remedies for the wrongly convicted and to make legal determinations of innocence. At the same time, Wheat Kings exonerated David Milgaard in 1992 long before the Canadian legal system did. In doing so, it illustrates how art, like media and science, can resist the coercive conclusions of the criminal law and can make normative conclusions that can be seen as a form of law.

"Progressive Antitrust" Free Download

HERBERT J. HOVENKAMP, University of Iowa - College of Law
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Several American political candidates and administrations have both run and served under the ‚Äúprogressive‚Ä? banner for more than a century, right through the 2016 election season. For the most part these have pursued interventionist antitrust policies, reflecting a belief that markets are fragile and in need of repair, that certain interest groups require greater protection, or in some cases that antitrust policy is an extended arm of regulation. This paper argues that most of this progressive antitrust policy was misconceived, including that reflected in the 2016 antitrust plank of the Democratic Party. The progressive state is best served by a fundamentally neoclassical antitrust policy whose principal goal is the preservation of market competition as measured by consumer welfare.

Overall, progressive administrations have produced an impressive economic record, at least when compared with real world alternatives. For example, economic growth and job creation during Democrat administrations has been roughly double that than during Republican administrations. But the progressive record in antitrust policy tells a different story, particularly prior to the Clinton administration. Not only have progressives been expansionist in antitrust policy, they also pursued policies that did not fit well into any coherent vision of the economy, often in ways that hindered rather than furthered competitiveness and economic growth. In fact, for much of its history progressive antitrust policy has exhibited fairly strong special interest protectionism.

What should be the role of antitrust in a progressive economy that is more intensively regulated than the one that existed when the antitrust laws were passed? Antitrust could pursue one of three very general routes. First, what it has historically done is develop interventionist approaches that recognize many of the same goals and interest group pressures as regulatory policy generally. Second, it could pursue internally a set of essentially neoclassical goals, limiting its own decision making to markets in which the government has not asserted conflicting regulatory policies. Or third, it could act as a ‚Äúsuper-enforcer‚Ä? of competition, actually limiting or disciplining regulation that conflicts with its own neoclassical principles. The approach suggested here is a version of the second, provided that care be taken to distinguish public from private conduct.

"International Legal Structuralism: A Primer" Free Download
International Theory, Vol 8(2), pp. 201-235 (2016)

JUSTIN DESAUTELS-STEIN, University of Colorado Law School
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International legal structuralism arrived on the shores of international thought in the 1980s. The arrival was not well received, perhaps in part, because it was not well understood. This essay aims to reintroduce legal structuralism and hopefully pave the way for new, and more positive, receptions and understandings. This reintroduction is organized around two claims regarding the broader encounter between international lawyers and critical theory in the 1980s. The first was a jurisprudential claim about how the critics sought to show how international law was nothing more than a continuation of international politics by other means. The second was a historical claim about how the critics wanted to show that international law had never been anything but politics, and that it always would be. In the view of this essay, both of these claims about international legal structuralism were wrong, and they are still wrong today. For despite the tendency to think of it as a cover for postmodern nihilism or relentless deconstruction or both, legal structuralism offers international theorists an enriching and edifying method for rethinking the relation between law and politics on the one hand, and law and history on the other. It is in the effort to carry a brief for a reawakened legal structuralism that the essay brings focus to some of the early works of Koskenniemi and Kennedy, identifies the semiotic foundations of that work, and ultimately suggests the possibility of a second generation of international legal structuralism.

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Legal History eJournal

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Princeton University - Department of Philosophy

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Columbia Law School

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Harvard University - Department of African-American Studies

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