Yale journal of law & the humanities最新文献

{"title":"After Midnight: The Circuit Judges and the Repeal of the Judiciary Act of 1801","authors":"Jed Glickstein","doi":"10.2139/SSRN.1809207","DOIUrl":"https://doi.org/10.2139/SSRN.1809207","url":null,"abstract":"A student of law or American history almost always encounters the midnight judges as a mere footnote to Marbury v. Madison. Yet despite an outpouring of work on the conflict between the Republicans and the federal judiciary in the wake of the Election of 1800, insufficient attention has been paid to the judges’ role in the crisis they served to precipitate. This Article aims to correct that oversight.Drawing on a wide variety of documentary evidence, including a cache of archival letters between the judges that has escaped notice to date, it sketches a comprehensive picture of the judges’ efforts in defense of their offices. It also adds important new details and contextualizes others, and corrects a persistent misconception in the existing literature. And, by taking a broader perspective than the standard Supreme Court-centered account of the repeal of the Judiciary Act of 1801, it highlights the ways in which practical, political, and constitutional factors shaped and constrained the (non)resolution of the episode’s core issue: the constitutionality of abolishing the office of a sitting judge. This new evidences argues for a revised understanding that puts the midnight judges, if not on the marquee, at least in a supporting role in working out the meaning of the repeal.","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"24 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2011-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67750927","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":"Nomos and Narrative Before Nomos and Narrative","authors":"S. Fraade","doi":"10.1163/EJ.9789004201095.I-628.8","DOIUrl":"https://doi.org/10.1163/EJ.9789004201095.I-628.8","url":null,"abstract":"This chapter demonstrates that what we might think of as a particularly modern tendency to separate law from narrative, if only for the economies of specialization, has itself an ancient history, and shows how that tendency, while recurrent, was as recurrently resisted from within Jewish tradition. In particular, at those cultural turning points in which laws are extracted or codified from previous narrative settings, the chapter shows that they are also renarrativized so as to address, both ideologically and rhetorically, changed socio-historical settings. The Mishnah constructs a nomian world of \"words of Torah\" which is both legal and narrative in mutually authorizing ways.Keywords: Mishnah; narrative; nomos","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"17 1","pages":"17-34"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64595765","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":"Toward a Theory of a Right to Health: Capability and Incompletely Theorized Agreements.","authors":"Jennifer Prah Ruger","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"18 2","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4190169/pdf/nihms586840.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32741556","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Property and the Public Domain","authors":"Hanoch Dagan","doi":"10.1093/acprof:oso/9780199737864.003.0013","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199737864.003.0013","url":null,"abstract":"Friends of the public domain are typically suspicious of property-talk. Property is perceived as the foe, epitomizing the threat of a shrinking public domain. I argue that this common view both misguided and unfortunate. It is misguided because the cleavage between property discourse and a thriving public domain is largely illusory: the form, the substance, and the history of property convey lessons that are rather helpful to the goal of revitalizing a rich and vibrant public domain. It is unfortunate because the concept of property has enormous rhetorical power in shaping people's expectations and therefore in the construction of what they deem normal, obvious, and thus clearly justified. For both reasons, friends of the public domain should embrace property, rather than fight it.","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"18 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2005-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60652683","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":"Theaters of Proof: Visual Evidence and the Law in Call Northside 777","authors":"Jennifer L. Mnookin, Nancy A West","doi":"10.2139/SSRN.292095","DOIUrl":"https://doi.org/10.2139/SSRN.292095","url":null,"abstract":"This Article, a collaboration between a law professor specializing in evidence and an English professor who writes about film, analyzes a film of the late 1940s - Call Northside 777 (henceforth Northside), directed by Henry Hathaway and starring Jimmy Stewart - as a study in evidence. We argue that the film, an explicit retelling of an actual Chicago wrongful conviction case, speaks powerfully to the question of what counts as proof and what persuades, both in the courtroom and in our cultural imagination. The film strongly suggests that legal conceptions of what constitutes good evidence may deviate from more broadly-held ideas of legitimate proof. Legal standards of evidence are portrayed as rigid and conservative, too willing to rely on the reliable and too resistant to novel forms of knowledge. The Article explores in detail how Northside sets up a hierarchy of evidence, with eyewitness evidence at the bottom, expert evidence in the middle, and photographic and visual evidence portrayed as the best evidence of all. We show, however, that in the end, Northside's hierarchy depends on a host of simplifications, both of the historical record on which Northside is based, and also of the ways that visual evidence is made and deployed. We also use Northside as a jumping-off point for a broader examination of the relation between films and legal evidence. We analyze the actual use of reenactments and other films as legal evidence in the period contemporaneous with Northside, and we show that for the most part, judges shared the vision set forth in Northside of film as a nearly transparent medium of truth. In addition, we look at Northside as a \"reenactment,\" a hybrid form that lies between drama and documentary, and show that dramatic reenactments and trials have a special relation: they are both, at heart, attempts to capture the past in an authentic and credible fashion. Neither claims to capture the past directly, but both verdicts and reenactments want to be seen as being true to the past in all of the ways that matters. The Article, therefore, suggests an important affinity between the trial and the filmed reenactment: Both are attempts to create believable stories of the past, stories not literally true that nonetheless become substitute depictions for what actually occurred.","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"13 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2001-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.292095","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68432954","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":"Telling a Less Suspicious Story: Notes Toward a Non-Skeptical Approach to Legal/Cultural Analysis","authors":"P. Berman","doi":"10.2139/SSRN.273517","DOIUrl":"https://doi.org/10.2139/SSRN.273517","url":null,"abstract":"In the generation of law and society research that emerged with the formation of the Law and Society Association, sociolegal scholars, building on the Legal Realist attack on formalism, told a story primarily about the possibility of social progress through law. Over the past two decades, however, sociolegal scholars have become increasingly disenchanted with the reformist project. These writers, influenced by Michel Foucault and other postmodern theorists, have begun to see law not as an instrument for dispensing justice, but as a constitutive societal force shaping social relations, constructing meaning, and defining categories of behavior. As part of the move to view law as a constitutive force in social relations, many sociolegal scholars have chosen to go even further and emphasize law's role as a pervasive form of social control. Law is seen as inherently implicated in the maintenance of inequality rather than its amelioration. Accordingly, the focus of sociolegal scholarship often involves uncovering how law's coercive power is inscribed in all legal discourse and practice. Such a move reflects, perhaps, the increasing skepticism of postmodern scholarship more generally. This article suggests that sociolegal scholars might benefit from taking a less skeptical approach to the study of law and might instead try to envision law as a useful forum for discourse in a post-postmodern society. In a multicultural country where there are more and more available narratives and no one narrative necessarily holds a privileged position as \"truth\", we need a societal practice such as law that emphasizes multiple perspectives and multiple viewpoints. Accordingly, we can view legal discourse (at least in its ideal state) as a constructive terrain of engagement among diverse populations and therefore a vital part of building a civil society. Such a vision provides a potential answer both to right-leaning communitarians who claim that \"law talk\" is destroying American community and left-wing academics who tend to portray law only as a tool of elites or a form of hegemonic power.","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"13 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2001-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.273517","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68279863","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":"Ethnography and Democracy: Texts and Contexts in the United States in the 1990s","authors":"C. Greenhouse","doi":"10.1515/9780822384755-006","DOIUrl":"https://doi.org/10.1515/9780822384755-006","url":null,"abstract":"In some respects, the decade of the 1990s was an anachronism even in its own times. The crossed preoccupations with \"posts\" (postmodern, postcolonial, postindustrial, post-Marxist, among others) and \"precedents\" (the impending millennium) made it paradoxically easy to miss the moment. The debates over constructionist and interpretivist approaches to ethnography and the cultural analysis of texts makes a case in point. Such theories gained widespread acceptance in the humanities and social sciences in the 1980s and 1990s (if always as counter-canons), but they never worked free of the persistent criticism that they lacked attention to power. What and where was this \"lack\"? In this Essay, I will suggest that it was not in the method, but in the object of inquiry-the public sphereas the civil rights era yielded to neoliberalism, and as the lines of confrontation took form, as both partisan divisions within the federal government and competition among the branches. Advocates and critics of constructionism and interpretivism alike took for granted these pragmatic circumstances; however, a reflexive analysis of interpretivism reveals assumptions about realism and readership (among other things) specific to the politics of that time and place. Interpretivism's power for projects of cultural critique is a power of association with the textual genres, tropes, and institutional practices of legal activism and citizens' movements of the previous generation-the civil rights era of the 1950s and 1960s. This remains part of their power, but in the places in the","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"13 1","pages":"6"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66815423","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":"Platonic Love in a Colorado Courtroom: Martha Nussbaum, John Finnis, and Plato's Laws in Evans v. Romer","authors":"R. B. Clark","doi":"10.4324/9781315089737-17","DOIUrl":"https://doi.org/10.4324/9781315089737-17","url":null,"abstract":"","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"12 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70628061","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":"Anthropomorphism in Lyric and Law","authors":"Barbara Johnson","doi":"10.1215/9780822399070-017","DOIUrl":"https://doi.org/10.1215/9780822399070-017","url":null,"abstract":"ions, has in fact permeated not only legal but also literary history. Nervousness about the agency of the personified corporation echoes the nervousness Enlightenment writers felt about the personifications dreamed up by the poets. As Steven Knapp puts it in his book Personification and the Sublime: Allegorical personification-the endowing of metaphors with the agency of literal persons-was only the most obvious and extravagant instance of what Enlightenment writers perceived, with a mixture of admiration and uneasiness, as the unique ability of poetic genius to give the force of literal reality to figurative \"inventions.\" More important than the incongruous presence of such agents was their contagious effect on the ostensibly literal agents with which they interacted.\"' The uncanniness of the personification, then, was derived from its way of putting in question what the \"natural\" or the \"literal\" might be. What the personification of the corporation ends up revealing, paradoxically enough, is that there is nothing \"natural\" about the natural person often taken as its model. The natural person, far from being a \"given,\" is always the product of a theory of what the given is. This point may be made more clearly through an extreme version of corporate personhood. In a study of corporate rights, Meir DanCohen goes so far as to create the notion of a \"personless corporation,\" a corporate \"person\" entirely controlled by computers, which would nevertheless still possess a \"will\" and a \"personhood\" of its own.\"2 Similarly, we might now ask how it has come to seem \"natural\" that the \"natural person\" with which the corporate person is compared is somehow always a \"genderless person\"; that unnatural genderless person who serves to ground both anthropomorphism and rational choice. We have finally come back to the question of whether there is a difference between anthropomorphism and personification, which arose at the end of the discussion of the essay by Paul de Man. It can now be seen that everything hangs on this question. Anthropomorphism, unlike personification, depends on the givenness of the essence 111. STEVEN KNAPP, PERSONIFICATION AND THE SUBLIME 2 (1985). 112. MEIR DAN-COHEN, RIGHTS, PERSONS, AND ORGANIZATIONS: A LEGAL THEORY FOR BUREAUCRATIC SOCIETY 46-51 (1986). 1998] 25 Johnson: Anthropomorphism in Lyric and Law Published by Yale Law School Legal Scholarship Repository, 1998 Yale Journal of Law & the Humanities [Vol. 10: 549 of the human; the mingling of personifications on the same footing as \"real\" agents threatens to make the uncertainty about what humanness is come to consciousness. Perhaps the loss of unconsciousness about the lack of humanness is what de Man was calling \"true 'mourning.\"'113 Perhaps the \"fallacious lyrical reading of the unintelligible\" is exactly what legislators count on lyric poetry to provide: the assumption that the human has been or can be defined. The human can then be presupposed without the question of its defi","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"10 1","pages":"15"},"PeriodicalIF":0.0,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66039363","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":"The Elusive Transformation","authors":"R. Gordon","doi":"10.1017/9781108147668.009","DOIUrl":"https://doi.org/10.1017/9781108147668.009","url":null,"abstract":"Morton Horwitz's new book is the sequel to his 1977 Bancroft Prize-winning The Transformation of American Law, 1780-1860. But as his Preface observes, \"it is a very different book.\"' Transformation I tells a story in the populist spirit of Charles Beard. It shows how ante-bellum judges and elite lawyers fashioned an \"instrumental\" view of law that recruited traditional common law doctrines of property, contract, tort and commercial law to the service of promoting commercial development. By such means the legal elites helped business interests to accumulate wealth, property and power at the expense of workers, farmers, and consumers. Transformation I ends with the legal establishment beginning to construct a novel orthodoxy,","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"6 1","pages":"14"},"PeriodicalIF":0.0,"publicationDate":"1994-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/9781108147668.009","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"56915196","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}