The Sex Right: A Legal History of the Marital Rape Exemption

How did the American legal elite come to reject the husband's privilege to rape his wife. What is the significance of that rejection. This essay traces theories justifying the marital rape exemption from the 17th century, focusing on the period focusing World War II. The history illustrates how the postwar legal elite's limited progressivism created inconsistent arguments that left the exemption open for attack, an attack that came from within the 1970s feminist movement. Radical feminist rhetoric about sexuality, rape, and marriage pulled away the last layer of theoretical support for the exemption and denounced the sex right it left exposed underneath. Connections in the 1970s, both literal and conceptual, between radical feminists and the legal elite allowed the feminist movement to discredit the exemption within that elite. To interpret the significance of that rejection, I consider how legal language affects people's senses of self. I argue that legal words like "rape,""marriage," and "husband" validate and inform people's, specifically husbands', identities in marriage. By changing the meanings of those legal words, legal reform can eventually change human behavior.     

From Loss of Services to Loss of Support: The Wrongful Death Statutes, the Origins of Modern Tort Law, and the Making of the Nineteenth-Century Family

The wrongful death statutes enacted in most states during the mid-nineteenth century have long represented a classic moment in the narrative of American legal history. Historians have not observed, however, that American wrongful death statutes amended the English act on which they were modeled to introduce a gender asymmetry peculiar to the United States. Led by New York, most American jurisdictions limited wrongful death actions to "the widow and next of kin" of the decedent, categories that did not include husbands of deceased wives. Thus, a wife could bring a wrongful death action for the death of her husband, but a husband could not bring a wrongful death action on his own behalf for the death of his wife.
The wrongful death statutes represent a heretofore unrecognized conjuncture of the beginnings of the modem law of torts with the nineteenth-century legal reconstruction of the family. The statutes mowed accident litigation away from an eighteenth-century model of masters suing for loss of the services of a servant, slave, wife, or child, toward the now more familiar model of suits for loss of wages and support. Moreover, the gender asymmetry of the statutes embodied and reproduced a new nineteenth-century conception of the family in which men worked as free laborers and women were confined to relatively narrow domestic roles, removed from the market and dependent for their support on the wages of their husbands. Indeed, the statutes anticipated by over half a century the American welfare state's two-track approach to support for wage-earning men and dependent women.     

Coke in Context: Early Modern Legal Observation and Sir Edward Coke's Reports

Our understanding of Sir Edward Coke's Reports turn upon an appreciation of his methodology as a reporter; the strengths and limitations of the Reports as a source of legal and political commentary have implications for our reading of the early Stuart constitution. This article locates Coke's Reports within the broader habits of record-keeping and observation employed by common lawyers in the early seventeenth century. It argues that a conflation of personal observation and professional opinion, promoted through the educational techniques of English law, provided Coke with a unique opportunity to place his own views at the heart of the profession.     

From Empire to Law: Customs Collection in the American Founding

This essay investigates the eighteenth‐century origins of the federal administrative state through the prism of customs collection. Until recently, historians and legal scholars have not closely studied collection operations in the early federal custom houses. Gautham Rao's National Duties: Custom Houses and the Making of the American State (2016) offers the most important and thoroughly documented historical analysis to date. Joining a growing historical literature that explains the early development of the US federal political system with reference to imperial models and precedents, Rao shows that the seductive power of commerce over the state within eighteenth‐century imperial praxis required the early federal customs officials to “negotiate” their authority with the mercantile community. A paradigm of accommodation dominated American customs collection well into the nineteenth century until Jacksonian centralizers finally began to dismantle it in the 1830s. The book brings welcome light to a long‐neglected topic in American history. It offers a nuanced, historiographically attentive interpretation that rests on a broad archival source base. It should command the sustained attention of legal, social, economic, and constitutional historians for it holds the potential to change the way historians think about early federal administration. This essay investigates one of the central questions raised in National Duties : How were the early American custom houses able to successfully administer a comprehensive program of customs duties when their imperial predecessors had proved unable to collect even narrowly tailored ones? Focusing on the Federalist period (1789–1800), I develop an answer that complements Rao's, highlighting administrative change over continuity and finding special significance in the establishment of the first federal judicial system.     

Turning the Tables on Legal History: Parker's Common Law,History, and Democracy in America

Parker's Common Law, History, and Democracy in America joins an ongoing effort to turn the tables on “law and …” by replacing the familiar question “What can history, sociology, and cultural studies tell us about law?” with a new line of inquiry asking “What can law teach us about the reach and limits of disciplinary thinking?” In his study of the reception of common law into nineteenth‐century American jurisprudence, Parker unearths a notion of time based on stability and repetition that challenges the dominant modernist and historicist approach to the writing of law and history. Parker, however, shies away from drawing the full implications of this move and it remains unclear whether, in the final analysis, he escapes the spell of legal historicism.     

Legal Theory for Legal Empiricists

There is a widespread view that one does either theory or empirical work, and that theory and empiricism represent distant concerns, opposing worldviews, and perhaps distinct mentalities or personalities. This prevalent view has deep roots and is also the result of pragmatic and understandable tendencies toward division of intellectual labor. Against this view, this essay suggests that the relations between theory and empirical study ought to be understood as more intimate and that making legal theory an explicit focus can improve empirical scholarship. We pursue this claim by articulating a basis for legal theory and by showing how that basis illuminates both the application and design of empirical research on law. Legal theory, we argue, follows jurisprudence in interrogating the law as a set of coercive normative institutions. The upshot of this approach is a recognition that an interdisciplinary analysis of law must rely on both a theory (explicit or implicit) of the way law's power and its normativity align and an account of the way in which this discursive cohabitation manifests itself institutionally. We thus argue that legal theory is necessary in order to draw fruitfully on empirical research and further claim that legal theory provides guidance both for setting up an empirical research agenda on law and for designing research into specific topics.     

什么是法律现实主义——庞德、卢埃林、弗兰克之争

美国法律现实主义运动是上世纪初叶最引人瞩目的法律改革运动,其领军人物卢埃林和当时的法学鸿儒庞德之间的争论拉开了这一运动的序幕,作为庞德批判的主要对象弗兰克也加入了论战。论战的实际是关于如何适应社会发展进行法学研究的学者交流。通过论战,现实主义运动真正走到法学研究的前台,更清楚地展示了法律现实主义的真实面目,驱除法学界的曲解和误解。论战也展示了学者之间如何通过真诚的交流推动学术发展。     

法律英语特点及其应用

总结法律英语词汇的来源,词汇的特点及句式的特点,并对其特点及应用作详细的分析。法律英语作为一种深受法律职业影响的英语语言的变体,其词汇和语法具有明显不同于普通英语的特点。     

Jurisdictional Conflicts: A New Approach to the Development of the Legal Professions

This paper sketches a new theoretical approach to the study of professions and uses that approach to analyze differences that have emerged between the American and English legal professions since the late nineteenth century. Earlier studies have generally emphasized professional structure and organization while ignoring work and its control. I argue that control of work is central to professional development. Since work is central and since professions compete for it, interprofessional competition is the determining fact in the history of professions. This paper analyzes the work available to the legal profession, the numbers and types of legal personnel available to do that work, and the various competitors contesting it. Studying in detail complaints of unqualified practice in England (1870–1940) and two American states (1910–50), I locate the types of contested work and the competitors involved, using these to explain important aspects of the two legal prof essions today. Throughout, a variety of theoretical concepts are developed and applied to the particular case. One striking discovery is the contrast in competitors; American lawyers & rsquo;chief competitors were corporations, while British lawyers'chief competitor was the state. I close by evaluating the strengths and weaknesses of the particular methodology here used—the study of conflicts—and suggest alternative methods using the same theoretical framework.     

法律英语汉译中归化与异化之选择

法律英语汉译时应兼顾其语言转换和文化转换,但在具体转换时应采用不同的方法:从译文的可读性要求出发,应发挥译者的创造性和能动性,法律英语汉译中应在语言转换中使用归化方法;从法律英语汉译的目的、功能等角度出发,应在文化转换中使用异化方法,而异化的最终目的是为了实现真正的归化,从而对接受外国法律文化和丰富本土法律文化均不无裨益。     

Making Order Out of Trouble: Jurisdictional Politics in the Spanish Colonial Borderlands

Jurisdictional fluidity was a central feature of early modem Iberian law, and jurisdictional tensions were exacerbated by overseas conquest and colonization. Contests over the legal status of conquered peoples featured both jurisdictional jockeying among colonial factions and widespread preoccupation with the symbols and rituals marking cultural and legal difference. This article examines the dynamics of jurisdictional politics in seventeenth-century New Mexico, where church and state officials carried on a bitter feud over legal authority during most of the century. Rather than viewing this contest as either transparently political or a mask for deeper processes defining hegemony, the article argues that seemingly dry legal distinctions were the focus of passionate and persistent struggle precisely because they merged institutional and cultural concerns of missionaries, settler elites, and Indians. The analysis leads to broader, more speculative claims about the role of jurisdictional fluidity in creating an "orderly disorder" that spanned diverse regions within Spanish America and, more broadly, across colonial regimes in the early modern world.     

Legal Cultures in the European Union

The introductory part of the essay deals with the notion of legal culture and its categories. Later, the author sets forth the characteristics of the common law and the Roman- German legal cultures, including the legal families within them. He also touches upon the tendencies of the development of the German legal and political culture. With respect to the integration of the legal systems into the EU, the author argues as an advocate of convergence. Both basic legal cultures are being modified as, besides statutory law, judicial law becomes significant in the continental legal systems and statutory law complements case law in the common law systems. As to the integration of the Hungarian legal culture into the EU, the essay points to two principal considerations. On the one hand, when working on making our legal culture "euro-conform", we must not forget about maintaining our own legal culture. On the other hand, the Hungarian legal culture can contribute to the development of the legal system of the EU, e. g. with some of the regulations of our statute on the ethnic minorities. At the end, the author shows that the efficacy of the European law is heavily dependant upon the national legal systems.     

Influence and Issues in the Legal Community: The Role of a Legal Elite

This article is the third and last in a series that has focused on the corporate actor elite of Chicago's legal community—those attorneys who practice law with and for the major business, social, civic, cultural, and charitable organizations in the city. In this paper, the focus is on the participation of the members of that elite in a series of issues that have arisen in both the legal community and the larger society in the recent past.
The article first examines the resources for collective decision making which the members of the corporate actor legal elite bring to the process of community issue resolution. It then examines in detail elite issue preferences and the patterns of elite participation in five professional and political issues. From this analysis an interesting "paradox of power" emerges: the elite is most successful on those issues in which it is least interested and active and least successful on those which most heavily attract its participation. The article concludes with a discussion of the reason for this paradox, basing its answer in larger sociological theories of the activation of different types of resources in different types of community conflict.     

Comparative Sociology of Legal Professions: An Exploratory Essay

The author surveys and compares the legal professions of 15 nations, including both civil law and common law countries. The essay is organized around the ways that legal professionals control their markets—first by controlling "production of producers" or who and how many enter the profession (with formal education or apprenticeship requirements, examinations, access to entry-level positions). Legal professionals also control "production by producers"—both external competitors and lawyers themselves. This occurs, for example, through definition and defense of the professional monopoly, control of competition between licensed professionals, and creation of demand. The discussion takes place against the background of the legal profession's recent history—assessing changes in its composition (by race, age, gender), in lawyers' practice settings, in the categories of work they perform, and in the income and status associated with these categories and with the profession in general.     

Revolution and the Collective Action of the French, American, and English Legal Professions

The French, American, and English legal professions are compared in terms of four common goals: to control admission and training, to protect their jurisdiction, to regulate the behavior of their members, and to enhance their cooperative status. The varying ways in which revolutionary attacks affected their capacity to realize these goals is traced. It is argued that these attacks, and the way lawyers in these societies recovered from them, largely explain the differences between the three professions in the modem world.     

Women's Rights Issues Among Bombay Parsis: A Legal Anthropologist's Thoughts on Mitra Sharafi's Law and Identity in Colonial South Asia

I focus in this essay on legal issues related to women's rights in the British colonial period that are discussed in Mitra Sharafi's 2014 book, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772–1947. Beginning in the early nineteenth century, the Parsi leadership actively lobbied for laws related to intestate inheritance, women's property rights, divorce, and child marriage that were consistent with their community's customary values and practices. During the same period, legal reform movements were also underway on behalf of Hindu and Muslim women and, to a lesser extent, Christian women. This essay highlights some of the common themes in those movements and discusses, in particular, the similarities and differences in what was achieved for Parsi women and their Hindu sisters, as they and their respective male leaders traversed the road toward greater gender equality under the law.     

Translating Lexical Legal Terms Between English and Arabic

Legal translation between English and Arabic is under researched. However, the growing need for it, due to immigration and asylum seeking, among other reasons, necessitates the importance of more research. The asymmetry between English and Arabic poses many difficulties for legal translators, be they linguistic-based, culture-specific or system-based. The aim of this research is to discuss ways of translating lexical items between English and Arabic. In this current discussion I will present, exemplify and analyse the common difficult areas of translating English/Arabic legal texts and suggest ways of dealing with them. These areas involve culture-specific and system-based terms, archaic terms, specialised terms and doublets and triplets. With this aim in mind, the paper answers the following research questions:

1. 1.
   What are the common difficulties of translating legal texts between English and Arabic?
    
2. 2.
   What are the common lexical difficulties between English and Arabic legal texts?
    
3. 3.
   What are the procedures of translating lexical legal terms between English and Arabic?
    

The paper concludes that translating the above-mentioned lexical terms requires expertise, professional training, robust knowledge of the linguistic and legal systems of languages, as well as up-to-date electronic dictionaries and well-defined parallel corpora.

     

"If I lie, I tell you, may heaven and earth destroy me." Language and Legal Consciousness in Hong Kong Bilingual Common Law

Based on an ethnographic study of courtroom interactions in the bilingual (Chinese/English) common law system in Hong Kong, this article investigates how language plays a constitutive role in shaping the ways people use, argue, and think about law. While the use of English in Hong Kong prescribes by default the supposedly universal speech act of statement-making, the presence of Cantonese allows local speech acts to be brought into the courtrooms. Two local speech acts, "catching fleas in words" and "speaking bitterness," are discussed. The findings of this study suggest that by studying the local practices and beliefs in postcolonial settings, researchers can gain insights into the complex ways in which Anglo American–style legal institutions are reconstituted.     

法律英语课程设置和教学模式研究

世界经济一体化导致国际型法律人才的需求不断增大。法律英语教学作为一条必由之路,目前在教学目的、教材编写、师资配备、课程设置以及教学模式等方面仍存在许多问题和困难。应根据法律英语课程的特点,构建以"学科本位"为基础、以"能力本位"为导向的法律英语课程设置。法律英语教学应该根据不同模块的特点适用多种教学模式。     

Law's Strange Allure: The Power of Legal Lore beyond the Law-Politics Divide

American political culture is both seduced and repulsed by legal power, and this essay reviews Gordon Silverstein's contribution to understanding the causes and consequences of “law's allure.” Using interbranch analysis, Silverstein argues that law is dangerously alluring as a political shortcut, but ultimately he concludes that law offers no exit from “normal politics” and the hard work of “changing minds.” This essay suggests that Silverstein's framework—his dyadic focus on courts and Congress, constructive and deconstructive patterns, legal formality and normal politics—strips law from its animating context of interests, inequality, and ideology. Without consideration of these larger forces of power, Silverstein's framework misplaces law's ability to “change minds” in perverse and unexpected ways.