Legal History Commons^™

Color Of Creatorship - Author's Response, Anjali Vats

Articles

This essay is the author's response to three reviews of The Color of Creatorship written by notable intellectual property scholars and published in the IP Law Book Review.

Citizenship, Race, And Statehood, Kristina M. Campbell

Journal Articles

This Article will discuss the interplay between citizenship, race, and ratification of statehood in the United States, both historically and prospectively. Part II will discuss the development and history of the Insular Cases and the creation of the Territorial Incorporation Doctrine (“TID”), focusing on the Territory of Puerto Rico and how the issues of citizenship, race, and statehood have evolved in shadow of empire as a result. Part III will look back on the admission to the Union of New Mexico and Arizona—the forty-seventh and forty-eighth states—and discuss the substantial difficulties these territories had in getting admitted for statehood due …

From Common Law To Constitution, Sanctioned Dispossession And Subjugation Through Otherization And Discriminatory Classification, Mobolaji Oladeji

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Color Of Creatorship: Intellectual Property, Race, And The Making Of Americans (Introduction), Anjali Vats

Book Chapters

INTELLECTUAL PROPERTY LAW, the body of legal doctrine and practice that governs the ownership of information, is animated by a dichotomy of creatorship and infringement. In the most often repeated narratives of creatorship/infringement in the United States, the former produces a social and economic good while the latter works against the production of that social and economic good. Creators, those individuals whose work is deemed protectable under copyright, patent, trademark, trade secret, and unfair competition law, create valuable products that contribute to economic growth and public knowledge. Infringers, those individuals who use the work of creators without their permission, steal …

Racial Purges, Robert L. Tsai

Michigan Law Review

Review of Beth Lew-Williams' The Chinese Must Go: Violence, Exclusion, and the Making of the Alien in America.

All Americans Not Equal: Mistrust And Discrimination Against Naturalized Citizens In The U.S., Alev Dudek

Alev Dudek

Cherokee Freedmen And The Color Of Belonging, Lolita Buckner Inniss

Publications

This article addresses the Cherokee tribe and their historic conflict with the descendants of their former black slaves, designated Cherokee Freedmen. This article specifically addresses how historic discussions of black, red and white skin colors, designating the African-ancestored, aboriginal (Native American) and European-ancestored people of the United States, have helped to shape the contours of color-based national belonging among the Cherokee. This article also suggests that Homi K. Bhabha’s notion of postcolonial mimicry offers a potent source for analyzing the Cherokee’s historic use of skin color as a marker of Cherokee membership. The Cherokee past practice of black slavery and …

Ownership Without Citizenship: The Creation Of Noncitizen Property Rights, Allison Brownell Tirres

Michigan Journal of Race and Law

At the nation’s founding, the common law of property defined ownership as an incident of citizenship. Noncitizens were unable lawfully to hold, devise, or inherit property. This doctrine eroded during the course of the eighteenth and nineteenth centuries, but few scholars have examined its demise or the concommittant rise of property rights for foreigners. This Article is the first sustained treatment of the creation of property rights for noncitizens in American law. It uncovers two key sources for the rights that emerged during the nineteenth century: federal territorial law, which allowed for alien property ownership and alien suffrage, and state …

An "Unintended Consequence": Dred Scott Reinterpreted, Sam Erman

Michigan Law Review

Austin Allen's monograph marks the 150th anniversary of the decision in Dred Scott v. Sandford with a revisionist interpretation of that oft-examined case. Many scholars have portrayed the case as a proslavery decision that fanned sectional fires. After all, the Court held that blacks were not U.S. citizens and that Congress was impotent to bar slavery in U.S. territories. Allen, by contrast, understands the case primarily as a judicial attempt to rationalize federal commerce and slavery jurisprudences. Part I argues that this ambitious reinterpretation enriches, but does not topple, existing Dred Scott historiography. In the case of the Court's citizenship …

Servitude, Liberté Et Citoyenneté Dans Le Monde Atlantique Des Xviiie Et Xixe Siècles: Rosalie De Nation Poulard…, Rebecca J. Scott, Jean Hebrard

Articles

On December 4, 1867, the ninth day of the convention to write a new post-Civil War constitution for the state of Louisiana, delegate Edouard Tinchant rose to propose that the convention should provide “for the legal protection in this State of all women” in their civil rights, “without distinction of race or color, or without reference to their previous condition.” Tinchant’s proposal plunged the convention into additional debates ranging from voting rights and equal protection to recognition of conjugal relationships not formalized by marriage.

This article explores the genesis of Tinchant’s conceptions of citizenship and women’s rights through three generations …

A Race Or A Nation? Cherokee National Identity And The Status Of Freedmen's Descendants, S. Alan Ray

Michigan Journal of Race and Law

This Article examines the Cherokee Freedmen controversy to assess whether law and biology can function as sufficient models for crafting Cherokee identity at this crucial moment in the tribe's history. The author will argue that while law and biology are historically powerful frames for establishing tribal self-identity, they are inadequate to the task of determining who should enjoy national citizenship. The wise use of sovereignty, the author suggests, lies in creating a process of sustained dialogical engagement among all stakeholders in the definition of Cherokee citizenship on the question of Cherokee identity. This dialogue should ideally have been undertaken before …

Grados De Libertad: Democracia Y Antidemocracia En Cuby Y Luisiana, 1898-1900, Rebecca J. Scott

Articles

This comparative study between the quest for political racial inclusivity in 1890s Louisiana and the fight against state-sanctioned racialized violence in Cuba in the early 1900s exposes similarities, tensions, and differences between the two systems. The article traces the evolving contests for citizenship and suffrage in each climate at the end of the 19th century and into the beginning of the twentieth, juxtaposing the expression of race, suffrage, and citizenship in the constitution and political climate of each locale. In 1898, the new Louisiana state constitution disenfranchised African-Americans, while in 1900 Cuba was positioning itself for a grant of universal …

The Riddle Of Hiram Revels, Richard A. Primus

Articles

In 1870, a black man named Hiram Revels was named to represent Mississippi in the Senate. Senate Democrats objected to seating him and pointed out that the Constitution specifies that no person may be a senator who has not been a citizen of the United States for at least nine years. Before the ratification of the Fourteenth Amendment in 1868, the Democrats argued, Revels had not been a citizen on account of the Supreme Court's 1857 decision in Dred Scott v. Sandford. Thus, even if Revels were a citizen in 1870, he had held that status for only two years. …

Le 'Droit D'Avoir Des Droits': Les Revendications Des Ex-Esclaves À Cuba (1872-1909), Rebecca J. Scott, Michael Zeuske

Articles

In Cuba, a distinctive process of gradual emancipation brought a large number of enslaved and recently-freed men and women into the legal culture. What earlier might have remained oral or physical challenges now took legal form, as slaves and former slaves built alliances with those who could assist them in their appeals. The assertions of former slaves suggest an emerging conviction of a "right to have rights", going well beyond the immediate refusal of their own bondage. In this light, the office of the notary and the courts of first instance became places where freedom itself was constituted through the …

Tres Vidas, Una Guerra Rafael Iznaga, Bárbara Pérez Y Gregoria Quesada Entre La Emancipación Y La Ciudadanía, Rebecca Scott

Book Chapters

In this article, Scott takes a microhistorian approach as she looks at the ways in which three Cubans of color (Rafael Iznaga, Bárbara Pérez and Gregoria Quesada), from the same rural neighborhood, sought to define and attain citizenship during and immediately after the Cuban War of Independence from 1895-1898. Juxtaposing oral and written sources, Scott shows how such evidence can be both complementary and contradictory, and how each source should be examined in light of the others.

Rafael Iznaga fought in the war as a soldier of the Liberation Army, and returned with prestige and status. While his life can …

Not Because They Are Brown, But Because Of Ea*: Why The Good Guys Lost In Rice V. Cayetano, And Why They Didn't Have To Lose, Gavin Clarkson

Michigan Journal of Race and Law

Part II of this Article therefore reviews the history of Native Hawaiians in the broader context of the history of federal Indian law, focusing on the vacillating congressional policies regarding Indians and how those policies almost always treated Indian tribes as political entities rather than ethnic communities. Part III reviews and analyzes the procedural history of the Rice case and its resolution by the Supreme Court. Part IV concludes with the argument that constitutionally-permissible alternative methodologies exist for accomplishing the same objective of self-determination for Native Hawaiians

Puerto Rico: Cultural Nation, American Colony, Pedro A. Malavet

Michigan Journal of Race and Law

This Article articulates a theory of Puerto Rican cultural nationhood that is largely based on ethnicity. In linking ethnicity and citizenship, it is imperative, however, to avoid the evils of ethnic strife and balkanization, while celebrating rather than imposing difference; community consciousness cannot degenerate into fascism.

Lynching Ethics: Toward A Theory Of Racialized Defenses, Anthony V. Alfieri

Michigan Law Review

So much depends upon a rope in Mobile, Alabama. To hang Michael Donald, Henry Hays and James "Tiger" Knowles tied up "a piece of nylon rope about twenty feet long, yellow nylon." They borrowed the rope from Frank Cox, Hays's brother-in-law. Cox "went out in the back" of his mother's "boatshed, or something like that, maybe it was in the lodge." He "got a rope," climbed into the front seat of Hays's Buick Wildcat, and handed it to Knowles sitting in the back seat. So much depends upon a noose. Knowles "made a hangman's noose out of the rope," thirteen …

The Maryland Context Of Dred Scott: The Decline In The Legal Status Of Maryland Free Blacks 1776-1810, David S. Bogen

Faculty Scholarship

No abstract provided.