Tulsa Law Review最新文献

{"title":"Rudolf Von Jhering’s Influence on Karl Llewellyn","authors":"R. Whitman, Julie E. Wynns","doi":"10.2139/SSRN.1685883","DOIUrl":"https://doi.org/10.2139/SSRN.1685883","url":null,"abstract":"Karl Llewellyn and Jerome Frank are today considered co-founders of the American Legal Realist School. Although American legal realism is no longer the predominant school of jurisprudence in the United States, it still plays an important role in the formation of our legal traditions. Given the breath of Karl Llewellyn’s contributions to law in America, it would be unfathomable for such a varied body of work to have had only one or just a few significant influences. Several of the influences on the life and work of Karl Llewellyn have been suggested and expounded upon, including Arthur Corbin, Jerome Frank and Roscoe Pound. While these are certainly important influences on the life and work of Llewellyn, one major influence on his thinking has rarely been considered. The role of Rudolf von Jhering deserves further exploration.The purpose of this Article is to shed light on the influence of Rudolf von Jhering on the life and scholarship of Karl Llewellyn. Following a brief overview of Llewellyn’s life, education, major work, and jurisprudential philosophy, information is provided on the life of Rudolf von Jhering. Consideration is given to the influence of German jurisprudence on American jurisprudential theory and thought, as well as the recognized influences from German jurisprudence on Llewellyn’s work, including Jhering’s influence on the life and work of Llewellyn, with particular emphasis on the Uniform Commercial Code.","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116848036","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"DOJ's Attack on Federal Judicial Leniency, the Supreme Court's Response, and the Future of Criminal Sentencing","authors":"S. Klein, S. Thompson","doi":"10.2139/SSRN.1418622","DOIUrl":"https://doi.org/10.2139/SSRN.1418622","url":null,"abstract":"The last few years have brought some equilibrium to the power struggle in the federal system between prosecutors, judges, and Congress over criminal sentencing. Though pieces of this story have been shared and various Supreme Court sentencing cases analyzed, our unique contribution is to explain how and why a true sentencing reform movement that began in the mid-1980's was co-opted by conservative politics at the federal level at the turn of this century, thereby eliminating one avenue of change entirely for all federal and state actors. Part I belongs to Main Justice. (see Note below) It was during the early days of George W. Bush's administration that the Department of Justice began its all-out assault on the federal judiciary's sentencing powers as part of a campaign to consolidate central authority and to require the harshest possible sentences for all federal convictions. DOJ's campaign was played out in numerous arenas at the same time: (1) in Congress, where DOJ urged the adoption of laws addressing the problem of leniency of district court judges; (2) before the U.S. Sentencing Commission (Commission), which DOJ chided for not doing enough about the leniency problem; and (3) even among its own field offices by attempting to virtually eliminate the traditional charging discretion exercised by prosecutors and instead mandating that all federal prosecutors bring the most serious charges provable. Eventually, as the straw that broke the Court's back, the Department succeeded in prompting Congress to enact the Feeney Amendment, a piece of legislation that was viewed as a frontal assault on the discretion of federal judges in sentencing. Though the show is far from over, the Supreme Court regained the upper hand over both DOJ and Congress, as we explain in Part II, by trumping Congress's legislation (and DOJ's political agenda) on constitutional grounds. In United States v. Booker the Court upheld the overall constitutionality of the federal sentencing system but only on the condition that the Guidelines be applied in a purely advisory manner, subject to extremely weak appellate review for reasonableness. The Supreme Court gave the power over sentencing that Congress had transferred to DOJ back to judges. The Court reaffirmed that position in a series of additional Sixth Amendment cases decided in the October 2007 and 2008 Terms: Gall v. United States, Kimbrough v. United States, (both heard in the October 2007 Term) and Spears v. United States, (heard in the October 2008 Term) firmed federal district judge discretion through rigid limits on appellate reversals. The Court appeared far less concerned with the effects of its opinions on state criminal justice systems. This was sensible, as most states don't have mandatory sentencing guideline systems or presumptive sentencing systems, those states that do build more judicial flexibility in their systems, and state legislators are not at war with their judiciary, the Court's new constitutional rul","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117155755","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Beyond Judicial Minimalism","authors":"C. Sunstein","doi":"10.2139/SSRN.1274200","DOIUrl":"https://doi.org/10.2139/SSRN.1274200","url":null,"abstract":"Many judges are minimalists. They favor rulings that are narrow, in the sense that they govern only the circumstances of the particular case, and also shallow, in the sense that they do not accept a deep theory of the legal provision at issue. In law, narrow and shallow decisions have real advantages insofar as they reduce both decision costs and error costs; make space for democratic engagement on fundamental questions; and reflect a norm of civic respect. In many cases, however, minimalism is hard to justify in these ways. Sometimes small steps increase the aggregate costs of decisions; sometimes they produce large errors, especially when they export decision-making burdens to fallible people. Predictability is an important variable, and minimalist decisions can compromise predictability. Sometimes large, nonminimalist steps serve democratic values and do not compromise the norm of civic respect. It follows that the justifications for minimalism are unconvincing in many contexts. The debate between minimalists and their adversaries is closely related to the debate between those who prefer standards and those who prefer rules, though there are some important differences.","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"127 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122911418","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fiduciary Duties and Unincorporated Business Entities: In Defense of the 'Manifestly Unreasonable' Standard","authors":"Mark J. Loewenstein","doi":"10.2139/SSRN.893213","DOIUrl":"https://doi.org/10.2139/SSRN.893213","url":null,"abstract":"This article wades into the debate between contractarians and anti-contractarians over the extent to which statutes on unincorporated business entities should limit the ability of the participants in those entities to contract around fiduciary duties. Statutes enacted in the past several years provide considerable, but not complete, freedom to limit fiduciary duties. Contractarians argue that statutory limitations are inefficient and unnecessary, while anti-contractarians take the view that the statutes provide too much freedom of contract. This article stakes out a middle ground, arguing that the drafters of the statutes got it right and that in the absence of statutory limitations the courts would likely impose limitations. The middle ground chosen - that limitations cannot be \"manifestly unreasonable\" - should prove workable over time. By providing statutory guidance, lawyers and others advising unincorporated business entities will be better able to craft enforceable agreements. Finally, this article presents some ideas on how courts might interpret the term \"manifestly unreasonable.\"","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131043465","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Should History Lock in Lock-In?","authors":"Larry E. Ribstein","doi":"10.2139/SSRN.883648","DOIUrl":"https://doi.org/10.2139/SSRN.883648","url":null,"abstract":"The corporation does not allow owners, at least by default, to cash out their interests. This feature of \"capital lock-in\" facilitates durable and centralized management of corporate assets. It has been argued that capital lock-in is what has made the corporation the dominant business form and has enabled the modern firm. This argument for the historical significance of capital lock-in is intended to provide a rationale for rejecting reforms that would compromise lock-in. However, lock-in has costs, including inhibiting effective monitoring of managers. Moreover, the historical argument is inaccurate, since lock-in has always been available in the partnership form. Lock-in should be viewed as just one of many features of firms that evolve to meet business needs, not frozen in place by a dubious account of the past.","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129794208","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fighting the Lone Wolf Mentality: Twenty-First Century Reflections on the Paradoxical State of American Indian Law","authors":"B. Wildenthal","doi":"10.2139/SSRN.480885","DOIUrl":"https://doi.org/10.2139/SSRN.480885","url":null,"abstract":"What survives of American Indian tribal sovereignty rests largely on decisions of the U.S. Supreme Court, which rely in turn on constitutional principles, various Indian treaties, federal statutes, and what amounts to judge-made federal common law. But the Court has historically been an enemy as much as an ally of Indian sovereignty, and today it seems intent on undermining what remains of the basic principles of American Indian law. In a remarkable reversal, the political branches of the federal and even some state governments are now (sometimes) more friendly than federal and state courts to Indian tribal interests.This article is part of a symposium marking the centennial of the Court's decision in Lone Wolf v. Hitchcock (1903), often called the \"Dred Scott of Indian law.\" Lone Wolf upheld Congress's plenary power to seize Native American lands and abrogate Indian treaties. Later decisions qualified Lone Wolf's extreme abdication of judicial scrutiny and signalled a partial and tentative judicial defense of tribal rights. Yet the Lone Wolf mentality survives and has even undergone a revival on the modern Court, largely at the instigation of Chief Justice Rehnquist.The article begins by holding up as examples three cases decided in 1999, by the U.S. Supreme Court, the Navajo Nation Supreme Court, and the California Supreme Court. The first two reaffirmed Indian sovereignty and treaty rights. The California court, dealing with an Indian casino issue, went against tribal interests over a strong dissent, but the decision quickly boomeranged as the people of California overruled their judges to allow vastly expanded gaming on Indian lands.The article then goes back in time to review Lone Wolf and its progeny, pointing out how even the Warren Court, as late as 1955, outdid Lone Wolf in showing disregard for Indian property rights under the Constitution. The article surveys several key cases after 1955. Some of these countered the Lone Wolf mentality, but they also reveal Rehnquist's growing influence. The Court in 1999, for example, reaffirmed Indian treaty rights in a 5-4 decision barely noticed except by Indian law specialists. But Rehnquist's dissent, among other startling moves, sought to resurrect an anti-Indian rule of treaty interpretation so dated and extreme it was rejected in 1905 by the same Court that decided Lone Wolf. Instead of construing relevant law in favor of Indian treaty rights, as the Court has at least purported to do since long before Lone Wolf, Rehnquist strained to uphold the legality of an Indian removal order dating from 1850.The article closes by discussing two cases decided in 2001 (one unanimous and one over a notably weak dissent) in which Rehnquist wrote or joined the Court's opinion. Both cut back Indian sovereignty in terms suggesting a triumphal revival of the Lone Wolf mentality in the new millennium, and both suggest that this revival faces little effective opposition on the Court.","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"96 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123233688","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Idolatry and Faith: The Jurisprudence of Sanford Levinson","authors":"J. Balkin","doi":"10.2139/SSRN.397140","DOIUrl":"https://doi.org/10.2139/SSRN.397140","url":null,"abstract":"This essay discusses several of the themes of Sanford Levinson's work, focusing particularly on his comparison between law and religious faith, and his view of the United States Constitution as the nation's civic religion. The article argues that if faith in law is like religious faith, it must also respond to the dangers of idolatry and the problem of apology for the evils of the world. The article discusses the role of lawyers as rhetors, law as a performing art, and Levinson's well-known distinction between constitutional catholicism - belief in a central authority that determines the meaning of the Constitution - and constitutional protestantism - belief in the right and duty of individuals to determine for themselves what the Constitution means. The article concludes by deconstructing the catholicism/protestantism distinction, showing that although the distinction is not as clear-cut as Levinson originally imagined, it leads to an intriguing theory of what constitutional law is and how it is made by non-judicial actors.","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126145038","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fletcher on Offences and Defences","authors":"J. Gardner","doi":"10.1093/acprof:oso/9780199239351.003.0007","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199239351.003.0007","url":null,"abstract":"","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115089755","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Daubert, Schmaubert: Criminal Defendants and the Short End of the Science Stick","authors":"S. Rozelle","doi":"10.4324/9781315094205-22","DOIUrl":"https://doi.org/10.4324/9781315094205-22","url":null,"abstract":"This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized administrator of TU Law Digital Commons. For more information, please contact daniel-bell@utulsa.edu. Recommended Citation Susan D. Rozelle, Daubert, Schmaubert: Criminal Defendants and the Short End of the Science Stick, 43 Tulsa L. Rev. 597 (2007).","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127668575","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Supreme Court Superstars: The Ten Greatest Justices","authors":"B. Schwartz","doi":"10.4324/9781315053547-18","DOIUrl":"https://doi.org/10.4324/9781315053547-18","url":null,"abstract":"","PeriodicalId":170753,"journal":{"name":"Tulsa Law Review","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130616812","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}