CommentsA Robust History of Arbitration in Early America: Commentary on The New Federal Arbitration Law

2021 ◽  
pp. 207-211
Author(s):  
Carli N. Conklin
Keyword(s):  
Common Knowledge ◽  
Radical Innovation ◽  
Early America ◽  
Legal Tradition ◽  
Anglo Saxon ◽  
Early American ◽  
American Law ◽  
History Of ◽  
Anglo American ◽  
Rich History

Julius Henry Cohen and Kenneth Dayton’s 1926 article, The New Federal Arbitration Law, is primarily an apologetic in favor of the Federal Arbitration Act, which Congress passed in 1925. Cohen and Dayton drafted their article as a response to real or anticipated criticisms that the new Federal Arbitration Act was “a radical innovation.” What makes their article a formative article in the field of dispute resolution is not their argument that, instead of being “a radical innovation,” arbitration had a long-standing history in American law. In fact, their explicit claims on this point seem, at first glance, to be fairly anemic, with only passing references to arbitration’s Anglo-Saxon roots or its robust presence in more recent English and American legal history. The historical richness of this article is found not in what Cohen and Dayton explicitly assert, but in what they assume in their assertions. In other words, Cohen and Dayton could make seemingly anemic claims regarding the robust history of arbitration in the Anglo-American legal tradition convincing to their readers only if they were speaking to an audience whose understanding of that history was as rich as their own. In that context, each historic claim serves as a shorthand reference to a rich history of arbitration that Cohen and Dayton could fairly assume was common knowledge among their readers—including early twentieth-century arbitrators, lawyers, judges, and legal scholars—whose vantage point for understanding the history of early American arbitration was nearly a century closer in time than our own....

Why Diamonds Really are a Girl's Best Friend: Another American Narrative

Daedalus ◽  
2012 ◽  
Vol 141 (1) ◽  
pp. 89-100
Author(s):  
Linda K. Kerber
Keyword(s):  
The United States ◽  
Cultural Practice ◽  
Legal Tradition ◽  
Domestic Relations ◽  
Recent Developments ◽  
American Law ◽  
History Of ◽  
The Republic ◽  
1960S And 1970S ◽  
The 1960S

The old law of domestic relations and the system known as coverture have shaped marriage practices in the United States and have limited women's membership in the constitutional community. This system of law predates the Revolution, but it lingers in U.S. legal tradition even today. After describing coverture and the old law of domestic relations, this essay considers how the received narrative of women's place in U.S. history often obscures the story of women's and men's efforts to overthrow this oppressive regime, and also the story of the continuing efforts of men and some women to stabilize and protect it. The essay also questions the paradoxes built into American law: for example, how do we reconcile the strictures of coverture with the founders' care in defining rights-holders as “persons” rather than “men”? Citing a number of court cases from the early days of the republic to the present, the essay describes the 1960s and 1970s shift in legal interpretation of women's rights and obligations. However, recent developments – in abortion laws, for example – invite inquiry as to how full the change is that we have accomplished. The history of coverture and the way it affects legal, political, and cultural practice today is another American narrative that needs to be better understood.

scholarly journals PERBANDINGAN SISTEM HUKUM COMMON LAW, CIVIL LAW DAN ISLAMIC LAW DALAM PERSPEKTIF SEJARAH DAN KARAKTERISTIK BERPIKIR

2018 ◽  
Vol 25 (1) ◽  
pp. 98
Author(s):  
Farihan Aulia ◽  
Sholahuddin Al-Fatih
Keyword(s):  
Legal System ◽  
Legal History ◽  
Islamic Law ◽  
Common Law ◽  
Legal Systems ◽  
Legal Tradition ◽  
History Of ◽  
Legal Thinking ◽  
Anglo American ◽  
The Comparative Study

The legal system or commonly referred to as the legal tradition, has a wealth of scientific treasures that can be examined in more depth through a holistic and comprehensive comparative process. Exactly, the comparison of the legal system must accommodate at least three legal systems that are widely used by countries in the world today. The three legal systems are the Continental European legal system, Anglo American and Islamic Law. The comparative study of the three types of legal systems found that the history of the Continental European legal system is divided into 6 phases, while Anglo American legal history began in the feudalistic era of England until it developed into America and continues to be studied until now. Meanwhile, the history of Islamic law is divided into 5 phases, starting from the Phase of the Prophet Muhammad to the Resurrection Phase (19th century until nowadays). In addition to history, the authors find that the Continental European legal system has the characteristic of anti-formalism thinking, while the Anglo American legal thinking characteristic tends to be formalism and is based on a relatively primitive mindset. While the thinking character of Islamic Law is much influenced by the thought of the fuqoha (fiqh experts) in determining the law to solve a problem, so relatively dynamic and moderate.

Literary Indians

2018 ◽  
Author(s):  
Angela Calcaterra
Keyword(s):  
Cultural Exchange ◽  
New Wave ◽  
Literary Aesthetics ◽  
Nineteenth Century America ◽  
White American ◽  
Early American ◽  
Cultural Encounter ◽  
History Of ◽  
Anglo American ◽  
Political Negotiation

Although cross-cultural encounter is often considered an economic or political matter, beauty, taste, and artistry were central to cultural exchange and political negotiation in early and nineteenth-century America. Part of a new wave of scholarship in early American studies that contextualizes American writing in Indigenous space, Literary Indians highlights the significance of Indigenous aesthetic practices to American literary production. Countering the prevailing notion of the “literary Indian” as a construct of the white American literary imagination, Angela Calcaterra reveals how Native people’s pre-existing and evolving aesthetic practices influenced Anglo-American writing in precise ways. Indigenous aesthetics helped to establish borders and foster alliances that pushed against Anglo-American settlement practices and contributed to the discursive, divided, unfinished aspects of American letters. Focusing on tribal histories and Indigenous artistry, Calcaterra locates surprising connections and important distinctions between Native and Anglo-American literary aesthetics in a new history of early American encounter, identity, literature, and culture.

The Legal Status of Women in Early America: A Reappraisal

1983 ◽  
Vol 1 (1) ◽  
pp. 129-151 ◽  
Author(s):  
Marylynn Salmon
Keyword(s):  
New England ◽  
Women's Rights ◽  
Legal Status ◽  
Women’S Rights ◽  
Early American ◽  
American Law ◽  
History Of ◽  
Revolutionary America ◽  
The Republic ◽  
Status Of Women

In 1930 Richard B. Morris published Studies in the History of American Law: With Special Reference to the Seventeenth and Eighteenth Centuries. The monograph included a chapter on the legal status of colonial women that became extremely influential within a short time of its appearance. Morris's influence continues half a century later. Several books published in 1980 cite him as one of their primary authorities on women's rights: Linda K. Kerber, Women of the Republic: Intellect & Ideology in Revolutionary America; Lyle Koehler, A Search for Power: The ‘Weaker Sex’ in Seventeenth-Century New England; and Mary Beth Norton, Liberty's Daughters: The Revolutionary Experience of American Women, 1750–1800. Other influential books and articles also rely heavily on Morris, including A Little Commonwealth: Family Life in Plymouth Colony by John Demos, ‘The Illusion of Change: Women and the American Revolution,’ by Joan Hoff Wilson, and ‘The Lady and the Mill Girl: Changes in the Status of Women in the Age of Jackson, 1800–1840,’ by Gerda Lerner. In fact, almost every published sentence on women's rights in early American law is followed by a footnote citing chapter three of Studies in the History of American Law. In The Bonds of Womanhood (1977), Nancy F. Cott declared that Morris's chapter ‘has become the standard essay on colonial women under the common law.’

scholarly journals Precedent as a Core Component of Anglo-American Law and Its Penetration into the Legal System of Ukraine

2020 ◽  
pp. 119-127
Author(s):  
Nepyivoda Vasyl ◽  
Nepyivoda Ivanna
Keyword(s):  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Legal Tradition ◽  
Stare Decisis ◽  
Law System ◽  
American Law ◽  
Judicial Lawmaking ◽  
The Common ◽  
Anglo American

The Anglo-American law have a considerable amount of accomplishments, which have become a worldwide asset. In terms of globalization and interaction, to use these achievements would be beneficial for further development of Ukrainian legal system. However, the very philosophy and reasoning behind the precedent-based common law is different from that in the civil law tradition of which the Ukrainian law is a part. This paper is intended to contribute to the examination how the mechanism of Anglo-American law operates in view of the expediency to introduce some of its elements into the Ukrainian jurisdiction. The initial part devoted to the emergence of, and formation of, the common law. It is noted that in the case of common law the influence of Roman law should not be denied. Relying mostly on praetorium ius experience, it has manifested itself in other directions and forms compare to civil law system. Therefore, the both, common law and civil law, despite their differences have been formed on the common ground – the Roman legal tradition. Taking into consideration that throughout their history they exchanged fruitful ideas, there is no irreconcilable, "genetic" incompatibility between them. Thus, it would allow to successfully implant certain common law elements, first of all precedent as a source of law, in the body of Ukrainian law, a part of civil law system. The paper notes that issues of common law mechanism have never been a priority for scholarly research in Ukraine as in a country of civil law tradition. The inertial influence of the Soviet law has also contributed to this situation. According to the communist ideology and the positivist visions on which the Soviet law was based, the precedent has not been considered as an acceptable legal instrument. In order to clarify how the mechanism works, the paper provides an overview of precedent and stare decisis doctrine as key components of common law. While a principle of stare decisis binding courts to follow legal precedents in cases with similar circumstances is in the core of Anglo-American law, in civil law systems precedent is not considered as binding. This discussion is followed by an analysis of judicial lawmaking. The paper specifies that in the common law systems, courts are not absolutely bound by precedents. In terms of radical changes in political, social or legal areas, they are entitled to re-examine and apply the law differently without legislative intervention, to adapt it to new circumstances. Thus, the Anglo-American legal tradition provides much broader scope for judicial lawmaking than Romano-German law. However, there is no consensus on the range to which it should be extended and to which extent it should rely on precedent. Within the framework of this controversial issue judicial activism and judicial restraint, two opposite philosophies of making a ruling in common law, are addressed. In order to examine the multifaceted nature of correlation between stare decisis principle and judicial lawmaking, the latest experience of the Supreme Court of the United States' on overruling precedents is considered. The paper summarizes that, most likely, mixed legal system associated with Nordic countries should be set as the reference point for the movement of Ukraine in this area. Such approach would provide rather broad scope for the operation of the common law elements, while safeguarding its omissions such as unjustified judicial activism.

Habeas Corpus in Wartime

2017 ◽  
Author(s):  
Amanda L. Tyler
Keyword(s):  
United States ◽  
The United States ◽  
United States Constitution ◽  
Habeas Corpus ◽  
Legal Tradition ◽  
Early American ◽  
Before And After ◽  
Anglo American ◽  
Historical Resources

Habeas Corpus in Wartime unearths and presents a comprehensive account of the legal and political history of habeas corpus in wartime in the Anglo-American legal tradition. The book begins by tracing the origins of the habeas privilege in English law, giving special attention to the English Habeas Corpus Act of 1679, which limited the scope of executive detention and used the machinery of the English courts to enforce its terms. It also explores the circumstances that led Parliament to invent the concept of suspension as a tool for setting aside the protections of the Habeas Corpus Act in wartime. Turning to the United States, the book highlights how the English suspension framework greatly influenced the development of early American habeas law before and after the American Revolution and during the Founding period, when the United States Constitution enshrined a habeas privilege in its Suspension Clause. The book then chronicles the story of the habeas privilege and suspension over the course of American history, giving special attention to the Civil War period. The final chapters explore how the challenges posed by modern warfare during the twentieth and twenty-first centuries have placed great strain on the previously well-settled understanding of the role of the habeas privilege and suspension in American constitutional law. Throughout, the book draws upon a wealth of original and heretofore untapped historical resources to shed light on the purpose and role of the Suspension Clause in the United States Constitution, revealing all along that many of the questions that arise today regarding the scope of executive power to arrest and detain in wartime are not new ones.

THE LEDGER OF ANN DEWITT BEVIER (1762–1834), EARLY AMERICAN ESTATE MANAGER AND MOTHER

2008 ◽  
Vol 35 (1) ◽  
pp. 135-166 ◽  
Author(s):  
Sally M. Schultz ◽  
Joan Hollister
Keyword(s):  
Household Head ◽  
Primary Source ◽  
Economic Life ◽  
Educational Opportunities ◽  
Early America ◽  
Early American ◽  
The Social ◽  
Rental Property ◽  
History Of ◽  
American Nation

The ledger that Ann DeWitt Bevier kept from 1802 until 1813 represents a rich primary source that provides perspective on how a rural agriculturalist and household head interacted with the social and cultural environment in the young American nation. Her accounting records expand the gendered history of economic life by illustrating the life and work of a woman who managed a farm, family household, brick kiln, rental property, and investments in financial instruments. The costs of educating her children were also detailed in the ledger, helping to inform us about the educational opportunities for females in early America.

Introduction

2021 ◽  
pp. 1-6
Author(s):  
Amanda L. Tyler
Keyword(s):  
United States ◽  
Great Britain ◽  
Common Law ◽  
The United States ◽  
Habeas Corpus ◽  
American Law ◽  
History Of ◽  
The Common ◽  
Anglo American

The Introduction provides an overview of the history of the writ of habeas corpus and an overview of the book, which tells the story of what is sometimes known as “the Great Writ” as it has unfolded in Anglo-American law. The primary jurisdictions explored are Great Britain and the United States, yet many aspects of this story will ring familiar to those in other countries with a robust habeas tradition. The book chronicles the longstanding role of the common law writ of habeas corpus as a vehicle for reviewing detentions for conformity with underlying law, as well as the profound influence of the English Habeas Corpus Act of 1679 on Anglo-American law. The Introduction highlights how the writ has at times failed to live up to its glorification by Blackstone and others, while noting that at other times it has proven invaluable to protection of liberty, including as a vehicle for freeing slaves and persons confined solely based on a King’s whim.

Essays in the History of Early American Law

1970 ◽  
Vol 27 (1) ◽  
pp. 146
Author(s):  
Milton Cantor ◽  
David H. Flaherty
Keyword(s):  
Early American ◽  
American Law ◽  
History Of

The Use of Analogy in the Administrative Law

2013 ◽  
Vol 11 (3) ◽  
pp. 565-581
Author(s):  
Tomaz Kerestes ◽  
Martina Repas
Keyword(s):  
Special Problem ◽  
Case Law ◽  
Legal Framework ◽  
Administrative Law ◽  
Legal Tradition ◽  
Legal Method ◽  
Predominant Form ◽  
American Law ◽  
Anglo American ◽  
Open Question

Analogy means that one or more statutory provisions are stripped of their non-essential parts, and in this purified form are applied to cases which are different, but not essentially different from the cases regulated in the statute. This is an important legal method. In Anglo-American law it is relevant for the analysis of case law applicability. In Civilian legal tradition it is the predominant form of gap-filling. This method is of highest importance in the civil law and significantly curtailed in the criminal and administrative criminal law. The open question is the application of various forms of analogy in administrative law. Authors analyze the legal framework for application of analogy in administrative law and the methods of its application. Special problem of analogy in administrative law are the limits of application.

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