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Law and Linguistic Moves: Refugee Law and The Displaced Person’s Commission, 1948-1950
No full text35:2White’s Legal Imagination is a magnificent work within the law and humanities canon. It has long been hailed for its interdisciplinarity and the penetrating questions it asks law students, lawyers, and scholars about the process of writing, reading, lawyering, and the legal profession. Even with its stunning interdisciplinarity, it has been less overtly influential in the field of legal history. Yet, the Legal Imagination has much to say to the legal historian in terms of the process of writing legal history and the questions that legal historians might bring to their work, especially for those writing about the legal profession. White emphasizes how lawyers, like all of us, use language and tell stories that are always incomplete and capable of multiple meanings. Such resounding incompleteness is especially true for legal historians who are continually analyzing archival documents which convey vastly incomplete, even false, stories. Such documents are often only fragments which can be pieced together by the historian in multiple ways, forming different stories. Using such documents, legal historians then attempt to create our own always incomplete and lacking narratives that often only gesture at the “truth.” Legal historians are always trying to capture what is the unexpressed story in our primary documents. Often, it is the silences of our documents through which our stories emerge. Such stories are often illusive – a shadow or a ghost like one of those photographs of the paranormal – visible depending upon the viewer’s perspective, open to interpretation, deeply ambiguous. In fact, for the legal historian who studies the history of the legal profession – what lawyers do, how they think, how they understand themselves, the myths that they tell, and who might even be considered part of the legal profession – constructing such narratives can feel Herculean. The legal historian is searching for the type of interiority and intentionality, with which the Legal Imagination asks its readers to engage, and which lawyers seem to fight at every turn
"Arbitrary and Fortuitous"? The Revival of Territorialism in American Choice of Law
No full textMost Americans probably take it for granted that the United States is a
collection of territorially defined states. They would be surprised to hear
the opinion of certain legal academics-that when deciding which state's
law applied, it shouldn't matter where the plaintiff was injured or where
the contract was formed, because state boundaries are "arbitrary and
fortuitous." But this seems to be the opinion of a number of American
Conflict of Laws professors, who have spread this idea to American
judges over the last several decades. The time is ripe for the revival of
an important concept in American choice of law: territorialism
The Nondelegation Doctrine and the Structure of the Executive
No full textVol. 41:60In a series of recent opinions, the Supreme Court has threatened to
transform the nondelegation doctrine into a device for imposing sweeping
limits on congressional authority to empower the regulatory state. But, as a
matter of history and logic, the nondelegation doctrine has a quite different
purpose. This Article argues that the nondelegation doctrine plays an
underappreciated role in constitutional structure: encouraging the
segmentation of executive power. The nondelegation doctrine vindicates the
Article I Vesting Clause by preventing Congress from being divested of its
legislative power. Its purpose is to reinforce Congress’s legislative supremacy
in the realm of ordinary law, not to impede Congress’s ability to achieve
legislative objectives by delegating regulatory authority to administrative
agencies. The nondelegation doctrine accomplishes its distinctly structural
purpose by constraining the delegation of broad powers to the President
directly, a constraint that encourages legislative delegation of regulatory
authority to administrative agencies. The Article explains as a matter of
theory why broad delegations to the President, unlike the delegation of
substantial regulatory authority to administrative agencies, jeopardize
legislative supremacy and hence pose heightened nondelegation concerns,
and it finds strong support for this distinction in the history of nondelegation
decisions. It concludes that the diffuse departmental structure of the modern
administrative state is a testament to the great success of the nondelegation
doctrine, not evidence of its underenforcement. Indeed, the contemporary
push to reinvent the nondelegation doctrine in an indiscriminate way would
turn it into something closer to its opposite, a cudgel against legislative
supremacy rather than its guardian.
Sentence Modification in Connecticut: A Guide for Those Navigating the 53a-39 Process
No full textTitle 53a, Chapter 952, Section 53a-39 of the Connecticut General Statutes governs sentence
modifications across the state. The clinic’s guide details the 53a-39 sentence modification process and
includes information on gathering and organizing the materials necessary to create the most compelling
petition possible. It outlines the ways in which supporters can be most helpful to a person seeking a
sentence modification and provides the information, templates, and official forms necessary to navigate
the sentence modification process
Race, Rules, Reproduction: Lausanne Legal Modernists, Left and Right
No full textVol. 35:3In the spring of 1908, Berlin's Tugliche Rundschau made alarming allegations: German youngsters studying in Switzerland were at risk of ideological capture. Conditions at Lausanne were particularly worrisome, as faculty there, first and foremost Berlin-born jurist Theodor Sternberg, had started preaching" socialist-democratic-nihilist" ideas to imperial exchange students. Lest Lausanne's Germans should rebel, the anonymous author exhorted, the Empire had to intervene. Indignation surged across French-speaking Switzerland, and columnists at the Gazette de Lausanne put a new spin on the case. The Romandie, they insisted, was no anarchist bastion. Instead, disgruntled law professor Ludwig Kuhlenbeck had tried to throw mud at the city and its university. The conservative German jurist was having a hard time in libertine Lausanne
Sacrificial Punishment and the Penal Comedy of Innocence: Unveiling Family Resemblances Between Sacrifice and Criminal Law with James Whitman
No full textVol. 35:3In this paper, I will adduce a number of important arguments to prove the existence of a nexus between sacrifice and punishment. In order to achieve this objective, I will base my approach on the anthropology of religion, in the sense that I will take sacrifice as the conceptual lens or hermeneutical prism through which to observe and, more importantly, redescribe the history of criminal law from around the later Middle Ages until the fall of the ancien regime. In doing so, ample proof can be unearthed that an unmistakable sacrificial dimension pervades criminal history, at points becoming so tangible that the existence of a phenomenon I propose to call penal sacrifice or sacrificial punishment-ie a punishment that is for a variety of reasons to be situated on the threshold of indifference between sacrifice and punishment-is, at least to my mind, difficult to deny. The strength of my case, now, is to a considerable extent determined by the work of James Whitman. When one is out to trace the family resemblances between sacrifice and punishment, Whitman is remarkably" good to think with"-to use a celebrated Levi-Straussian expression. 2 In fact, some of the most telling structural parallels between criminal law and sacrifice I uncovered were virtually presented to me on a silver platter in Whitman's writings
Law and Political Power Structure: Justice in Early Imperial China and Rome
No full textVol. 35:3Law and politics are closely related. The differences and changes in
political factors have direct and profound impacts on law. As a fundamental
political element, the political power structure basically has two typical
forms, namely, a centralized system and a decentralized system. A
centralized system means concentration of political power in both
horizontal and vertical dimensions: horizontally, power is held in the hands
of chief officials, while vertically, in the central government. By contrast,
in a decentralized system, power is dispersed in a manner of pluralism in
both dimensions. Through an empirical study of the history of early imperial
law, this article compares the different facets of the judicial process that
were under the influence of these two typical forms of power structure in
ancient societies, tests the thesis in various forms, and thus explains the
close relationship between law and politics.
The Chinese Qin-Han and Roman Empires co-existed and developed in
parallel at the two ends of the Eurasia continent, leaving remarkable
legacies on human civilizations, including political and legal systems.
Meanwhile, the Roman regime, especially during its imperial period, covers
a vast territory comparable to that of early imperial China and shares
similarities in terms of size, population, and level of economic
development. Therefore, these two systems are ideally comparable in the
analysis of causation between politics and law as it is easier to control
variables by excluding potential influences from factors other than the
political system, which is presumably a key variable in this study
The Financial Inclusion Trilemma
No full textVol. 41:109The challenge of financial inclusion is among the most intractable
policy problems in banking. Despite living in the world’s wealthiest
economy, many Americans are shut out of the financial system. Five percent
of American households lack a bank account, and an additional thirteen
percent rely on expensive and sometimes predatory fringe financial services,
such as check cashers or payday lenders.
Financial inclusion presents a policy trilemma. It is possible to
simultaneously achieve only two of three goals: widespread availability of
services to low-income consumers, fair terms of service, and profitability of
service. Thus it is possible to provide fair and profitable services, but only to
a small, cherry-picked population of low-income consumers. Conversely, it
is possible to provide profitable service to a large population, but only on
exploitative terms. Or it is possible to provide fair services to a large
population, but not at a profit.
The financial inclusion trilemma is not a market failure. Instead, it is
the result of the market working. The market result, however, does not
accord with policy preferences. Rather than addressing that tension,
American financial inclusion policy still leads with market-based solutions,
soft government nudges, and the hope that technology will transform the
economics of small-balance deposit accounts and small-dollar loans.
It is time to recognize the policy failure in financial inclusion and
consider to a menu of stronger regulatory interventions: hard service
mandates, taxpayer subsidies, and public provision of financial services. In
particular, this Article argues for following the approach taken in Canada,
the European Union, and the United Kingdom. This approach—the
adoption of a mandate for the provision of free or low-cost basic banking
services to all qualified applicants—is the simplest solution to the problem
of the unbanked. Addressing small-dollar credit, however, remains an
intractable problem, largely beyond the scope of financial regulation
because the challenge many low-income consumers face is solvency, not
liquidity
Sparking The Legal Imagination in Theory and Practice: a Humanistic Approach to Law
No full text35:2James Boyd White’s The Legal Imagination has been with me since I first read it when I was working on my dissertation in the early 1990s. Perhaps this opening sentence does not augur well for an impartial reflection on the impact of The Legal Imagination on the study and practice of law that the editors of this special issue envisage. To justify it, I add that while I then thought that as an academic I understood the book theoretically, it wasn’t until I became a judge that I understood its lessons for legal, and more specifically judicial practice. That is why, by way of introduction, I indulge in a small archeological and archival exercise, privileged as I have been to have had many conversations with the man himself when writing my dissertation. For one trained in a continental European civil law jurisdiction with an emphasis in legal education on codified law, The Legal Imagination seemed odd to say the least. As one Dutch reviewer remarked, “This is the most unusual book in our field that I have ever had in my hands . . . The title does not explain anything, the subtitle not much more, and the rather detailed ‘Preface’ and ‘Introduction to the Student’ do not provide a clear presentation.”3 To me, The Legal Imagination seemed to me a rich but daunting Pandora’s Box of suggestions for making a life for oneself in and with law
Legal Reimaginations – Notes from the North on engaging with Indigenous Legal Orders
No full text35:2James Boyd White’s The Legal Imagination sits within reaching distance on my bookshelf. It is the original 1973 yellow hardcover version. The spine is a bit ripped, the binding loose in places, there are scribbles in the margins, and post-it notes are liberally scattered throughout the book. Some pages (oh, the horror!) even bear witness to an inappropriately close encounter with a coffee cup. It has the look of a book that has spent time in the hands of a student. And that is exactly what it is