Legal History Commons^™

Secular Cases In The Church Courts: A Historical Survey, Robert Rodes

Robert Rodes

No abstract provided.

Still Drowning In Segregation: Limits Of Law In Post-Civil Rights America, Taunya L. Banks

Taunya Lovell Banks

Approximately 40% of the deaths attributed to Hurricane Katrina in 2005 were caused by drowning. Blacks in the New Orleans area accounted for slightly more than one half of all deaths. Some of the drowning deaths were preventable. Too many black Americans do not know how to swim. Up to seventy percent of all black children in the United States have no or low ability to swim. Thus it is unsurprising that black youth between 5 and 19 are more likely to drown than white youths of the same age. The Centers for Disease Control concludes that a major factor …

Scaled Legislation & The Legal History Of The Common Good, Jill M. Fraley

Jill M. Fraley

None available.

Corporate “Soul”: Legal Incorporation Of Catholic Ecclesiastical Property In The United States - A Historical Perspective, Vicenç Feliú

Vicenç Feliú

This work is a revision and update of a study carried out in 1933 by Monsignor Patrick J. Dignan. Dignan’s purpose in his study was to outline the history of how the Roman Catholic Church secured laws for the protection of church property in accordance with the hierarchical nature of the Church. The purpose of the present article is to bring up to date Dignan’s work and complete a survey of the law in its present state. The article analyzes the differences in the law since the original survey to determine if Dignan’s conclusion that the Church should operate to …

Antimonopoly And The Radical Lochean Origins Of Western Water Law, Michael Blumm

Michael Blumm

This review of David Schorr's book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier, maintains that the book is a therapeutic corrective to the standard history of the origins of western water law as celebration of economic efficiency and wealth maximization. Schorr's account convincingly contends that the roots of prior appropriation water law--the "Colorado Doctrine"--lie in distributional justice concerns, not in the supposed efficiency advantages of private property over common property. The goals of the founders of the Colorado doctrine, according to Schorr, were to advance Radical Lochean principles such as widespread distibution of water …

The Evolving Populisms Of Antitrust, Sandeep Vaheesan

Sandeep Vaheesan

Scholars often divide the eras of U.S. antitrust law into those of “populism” and “economics” and posit a fundamental conflict between the two concepts. Generally, the decisions of the current antitrust era are described as economic, and the mid-twentieth century period is labeled as populist. A review of Supreme Court decisions on antitrust reveals a more complex picture. From the enactment of the Sherman Act in 1890, the Court’s antitrust rulings have spoken of populist goals and aimed to advance these objectives through economically informed rules. Populism versus economics is thus a false dichotomy.

The populism and economics of antitrust …

The Evolving Populisms Of Antitrust, Sandeep Vaheesan

Sandeep Vaheesan

Scholars often divide the eras of U.S. antitrust law into those of “populism” and “economics” and posit a fundamental conflict between the two concepts. Generally, the decisions of the current antitrust era are described as economic, and the mid-twentieth century period is labeled as populist. A review of Supreme Court decisions on antitrust reveals a more complex picture. From the enactment of the Sherman Act in 1890, the Court’s antitrust rulings have spoken of populist goals and aimed to advance these objectives through economically informed rules. Populism versus economics is thus a false dichotomy.

The populism and economics of antitrust …

Why Do Europeans Ban Hate Speech? A Debate Between Karl Loewenstein And Robert Post, Robert Kahn

Robert Kahn

European countries restrict hate speech, the United States does not. This much is clear. What explains this difference? Too often the current discussion falls back on a culturally rich but normatively vacant exceptionalism (American or otherwise) or a normatively driven convergence perspective that fails to address historical, cultural and experiential differences that distinguish countries and legal systems. Inspired by the development discourse of historical sociology, this article seeks to record instances where Americans or Europeans have argued their approach to hate speech laws was more “advanced” or “modern.”

To that end this article focuses on two authors whose writing appears …

Patents And The University, Peter Lee

Peter Lee

This Article advances two novel claims about the internalization of academic science within patent law and the concomitant evolution of “academic exceptionalism.” Historically, relations between patent law and the university were characterized by mutual exclusion, based in part on normative conflicts between academia and exclusive rights. These normative distinctions informed “academic exceptionalism”—the notion that the patent system should exclude the fruits of academic science or treat academic entities differently than other actors—in patent doctrine. As universities began to embrace patents, however, academic science has become internalized within the traditional commercial narrative of patent protection. Contemporary courts frequently invoke universities’ commercial …

Positivism In The Historiography Of The Common Law, David K. Millon

David K. Millon

A great deal of important legal historical scholarship is doctrinal in focus, its objective being to chart the history of substantive common law rules. In this Article, Professor Millon suggests that doctrinal legal history is based implicitly on the modern positivist theory of law as a system of state-endorsed rules designed to resolve disputes in a consistent, predictable manner. He questions the validity of efforts to write the history of the premodern common law from this theoretical point of view. Focusing on pre-seventeenth century civil cases, he finds that trial procedure seems to have allowed or even encouraged juries to …

Circumspect Agatis Revisted, David K. Millon

David K. Millon

None available.

The Risky Interplay Of Tort And Criminal Law: Punitive Damages, Daniel M. Braun

Daniel M Braun

The rise of modern mass tort litigation in the U.S. has transformed punitive damages into something of a “hot button” issue. Since the size of punitive damage awards grew so dramatically in the past half century, this private law remedy has begun to involve issues of constitutional rights that traditionally pertained to criminal proceedings. This has created a risky interplay between tort and criminal law, and courts have thus been trying to find ways to properly manage punitive damage awards. The once rapidly expanding universe of punitive damages is therefore beginning to contract. There remain, however, very serious difficulties. Despite …

Positivism In The Historiography Of The Common Law, David K. Millon

David K. Millon

A great deal of important legal historical scholarship is doctrinal in focus, its objective being to chart the history of substantive common law rules. In this Article, Professor Millon suggests that doctrinal legal history is based implicitly on the modern positivist theory of law as a system of state-endorsed rules designed to resolve disputes in a consistent, predictable manner. He questions the validity of efforts to write the history of the premodern common law from this theoretical point of view. Focusing on pre-seventeenth century civil cases, he finds that trial procedure seems to have allowed or even encouraged juries to …

What The Actions Of Abe Lincoln Continue To Teach Us Today, Michael Slinger

Michael J. Slinger

No abstract provided.