Legal History Commons^™

Constitutional Backdrops, Stephen E. Sachs

Stephen E. Sachs

The Constitution is often said to leave important questions unanswered. These include, for example, the existence of a congressional contempt power or an executive removal power, the role of stare decisis, and the scope of state sovereign immunity. Bereft of clear text, many scholars have sought answers to such questions in Founding-era history. But why should the historical answers be valid today, if they were never codified in the Constitution's text? This Article describes a category of legal rules that weren't adopted in the text, expressly or implicitly, but which nonetheless have continuing legal force under the written Constitution. These …

Constitutional Backdrops, Stephen E. Sachs

Faculty Scholarship

The Constitution is often said to leave important questions unanswered. These include, for example, the existence of a congressional contempt power or an executive removal power, the role of stare decisis, and the scope of state sovereign immunity. Bereft of clear text, many scholars have sought answers to such questions in Founding-era history. But why should the historical answers be valid today, if they were never codified in the Constitution's text?

This Article describes a category of legal rules that weren't adopted in the text, expressly or implicitly, but which nonetheless have continuing legal force under the written Constitution. These …

Law And Lawyers In The U.S.: The Hero-Villain Dichotomy, Judith A. Mcmorrow

Judith A. McMorrow

Lawyers in U.S. culture are often presented in either an extremely positive or extremely negative light. Although popular culture exaggerates and oversimplifies the 'good v. bad' dynamic of lawyers, this dichotomy provides important insights into the role attorneys play in the U.S. legal system, the boundaries of legal ethics, and the extent to which the U.S. legal system is relied upon to address our society's great moral and social dilemmas.

Rudolf Callmann And The Misappropriation Doctrine In The Common Law Of Unfair Competition, Christopher Wadlow

Christopher Wadlow

Rudolf Callmann (1892-1976) is a central figure for unfair competition lawyers in both the German civil law and the Anglo-American common law traditions. When he emigrated from Germany to America in the 1930s he was already the author of substantial works on trade marks, unfair competition, and cartel law. In the United States he composed the monumental Callmann on Unfair Competition, Trademarks and Monopolies. This article examines his invocation of the 1918 decision of the Supreme Court in International News Service v Associated Press as the basis for a reformulated common law of unfair competition, eschewing a purely tortious conception …

Adoption Of English Law In Maryland, Garrett Power

Garrett Power

It served as an axiom of Maryland’s constitutional history that settlers carried with them the “rights of Englishmen” when they crossed the Atlantic. In 1642 the Assembly of Maryland Freemen declared Maryland’s provincial judges were to follows the law of England. Maryland’s 1776 Declaration of Independence left a legal lacuna--- what were to be the laws and public institutions of this newly created sovereign entity? This paper considers the manner in which the sovereign state of Maryland filled the void.

Adoption Of English Law In Maryland, Garrett Power

Legal History Publications

It served as an axiom of Maryland’s constitutional history that settlers carried with them the “rights of Englishmen” when they crossed the Atlantic. In 1642 the Assembly of Maryland Freemen declared Maryland’s provincial judges were to follows the law of England. Maryland’s 1776 Declaration of Independence left a legal lacuna--- what were to be the laws and public institutions of this newly created sovereign entity? This paper considers the manner in which the sovereign state of Maryland filled the void.

Trust And Fiduciary Duty In The Early Common Law, David J. Seipp

Faculty Scholarship

Trust is an expectation that others will act in one’s own interest. Trust also has a specialized meaning in Anglo-American law, denoting an arrangement by which land or other property is managed by one party, a trustee, on behalf of another party, a beneficiary.1 Fiduciary duties are duties enforced by law and imposed on persons in certain relationships requiring them to act entirely in the interest of another, a beneficiary, and not in their own interest.2 This Essay is about the role that trust and fiduciary duty played in our legal system five centuries ago and more.

Law "In" And "As" History: The Common Law In The American Polity, 1790-1900, Kunal Parker

Articles

No abstract provided.

Acouple Of Generations Ahead Of Popular Demand': The First National Law Program At Mcgill University, 1918-1924, John Hobbins

Dalhousie Law Journal

Following the First World War, Dean Robert Warden Lee introduced some radical changes to the curriculum at the McGill Law Faculty Three-year courses were instituted leading to either a civil law degree or a common law degree, and a four-year course in which both degrees could be obtained. The program was extremely controversial, running into opposition within the part-time faculty the Montreal legal community and the bar societies of several provinces. Difficulties in obtaining professional accreditation for the common law graduates led to a decline in enrollment, and the common law option was discontinued in 1926. Lee's vision of a …

Procedural Common Law, Amy Coney Barrett

Journal Articles

Debates about the common lawmaking power of the federal courts focus exclusively on substantive common law. But federal common law is not limited to matters of substance; it reaches matters of procedure as well. Federal law includes a robust body of what might be called procedural common law - common law primarily concerned with the regulation of internal court processes rather than substantive rights and obligations. This body of law includes many doctrines that are fixtures in the law of procedure and federal courts. For example, abstention, forum non conveniens, remittitur, stare decisis, and preclusion can all fairly be characterized …

The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg

West Virginia Law Review

No abstract provided.

Sosa, Federal Question Jurisdiction, And Historical Fidelity, Anthony J. Bellia

Journal Articles

In his paper "International Human Rights in American Courts," Judge Fletcher concludes that Sosa v. Alvarez-Machain “has left us with more questions than answers.” Sosa attempted to adapt certain principles belonging to the "general law" to a post-Erie positivistic conception of common law while maintaining fidelity to certain historical expectations. “[I]t would be unreasonable,” the Court thought, “to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism.” The Court was unwilling, however, out …

Why The Supreme Court Lied In Plessy, David S. Bogen

Villanova Law Review

No abstract provided.

Beyond Mitigation: Towards A Theory Of Allocution, Kimberly A. Thomas

Articles

THE COURT: I don't think I have time to listen .... I am not going to reexamine your guilt or innocence here. That is not the purpose of a sentence.. THE DEFENDANT: I did not have the chance to tell you .... THE DEFENDANT: But, your Honor, listen to me-1 Should the court hear this defendant? Is the story of innocence relevant at allocution-the defendant's opportunity to speak on his or her own behalf at the sentencing hearing prior to the imposition of sentence? Or, is the purpose of allocution something different, as the judge suggests? The answers depend on …

Justice And The Evolution Of The Common Law, Richard O. Zerbe

ExpressO

Empirical evidence shows, and theory suggests, that the common law tends toward economic efficiency. While various theories attempt to explain this phenomenon, no single one is well accepted. This article provides a simple explanation. It suggests that efficiency arises as a matter of justice. Justice is sought because justice-seeking is a social norm with its own sanctioning force. Justice is sought and efficiency achieved because they substantially overlap. Limitations in the traditional definition of efficiency, however, ensure that efficiency is not congruent with justice. This paper suggests that it can be: the congruence of justice and efficiency will be greater …

From St. Ives To Cyberspace: The Modern Distortion Of The Medieval ‘Law Merchant’, Stephen E. Sachs

Faculty Scholarship

Modern advocates of corporate self-regulation have drawn unlikely inspiration from the Middle Ages. On the traditional view of history, medieval merchants who wandered from fair to fair were not governed by domestic laws, but by their own lex mercatoria, or "law merchant. " This law, which uniformly regulated commerce across Europe, was supposedly produced by an autonomous merchant class, interpreted in private courts, and enforced through private sanctions rather than state coercion. Contemporary writers have treated global corporations as descendants of these itinerant traders, urging them to replace conflicting national laws with a transnational law of their own creation. The …

What Appellate Judges Do, Rick Sims

The Journal of Appellate Practice and Process

No abstract provided.

The Origins Of American Felony Murder Rules, Guyora Binder

Journal Articles

Contemporary commentators continue to instruct lawyers and law students that England bequeathed America a sweeping default principle of strict liability for all deaths caused in all felonies. This Article exposes the harsh "common law" felony murder rule as a myth. It retraces the origins of American felony murder rules to reveal their modern, American, and legislative sources, the rationality of their original scope, and the fairness of their original application. It demonstrates that the draconian doctrine of strict liability for all deaths resulting from all felonies was never enacted into English law or received into American law. This Article reviews …

Canadian Law Teachers In The 1930s: "When The World Was Turned Upside Down", Richard Risk

Dalhousie Law Journal

During the 1930s. scholars in the Canadian common law schools introduced fundamental changes in ways of thinking about law, changes that made one of them. John Willis, say 'the world was turned upside down." These scholars rejected the past, especially the English legal thought of the late nineteenth century Instead, they were influenced by changes in the United States, which began early in the century, and by the emerging regulatory and welfare state. In private law subjects, Caesar Wright was central, using American ideas to challenge the dominant English authority, especially in his writing about torts. In public law subjects, …

Some Old Problems In England And Some New Solutions From Virginia, William Hamilton Bryson

Law Faculty Publications

The fundamental ideal to which we aspire in the field of civil procedure is the perfect balance between expeditious results and correct results in the administration of justice. Two famous quotations from two famous English Equity judges come to mind. John Scott, Lord Eldon, the Lord Chancellor of Great Britain from 1801 to 1827 who was often criticized for being excessively dilatory, said, 'sat cito si sat bene'. Sir George Jessel, Master of the Rolls from 1873 to 1883, once said, 'I may be wrong and sometimes am, but I never have any doubts'. Jessel had his docket under firm …

Law As Interpretation, Charles W. Collier

UF Law Faculty Publications

In this Article, I shall trace out separate professional narratives in common law, constitutional law, and in legal cases turning on the distinction between community and society (Part III). But first I should like to situate these legal-professional narratives within a broader interdisciplinary framework (Part II).

United States V. O'Hagan: Agency Law And Justice Powell's Legacy For The Law Of Insider Trading, Adam C. Pritchard

Articles

The law of insider trading is judicially created; no statutory provision explicitly prohibits trading on the basis of material, non-public information. The Supreme Court's insider trading jurisprudence was forged, in large part, by Justice Lewis F. Powell, Jr. His opinions for the Court in United States v. Chiarella and SEC v. Dirks were, until recently, the Supreme Court's only pronouncements on the law of insider trading. Those decisions established the elements of the classical theory of insider trading under § 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act"). Under this theory, corporate insiders and their tippees who …

Discrimination, The Right To Seek Redress And The Common Law: A Century-Old Debate, Béatrice Vizkelety

Dalhousie Law Journal

Does discrimination law have anything in common with the common law? This question, which may have been reworded from time to time in deference to the age in which it was raised, is one which has recurred with remarkable tenacity throughout most of this century. It is also a question which continues, despite initial impressions, to be relevant to the manner in which adjudicatots interpret and apply anti-discrimination legislation today.

Exchange Loss Damages And The Uniform Foreign-Money Claims Act: The Emperor Hasn't All His Clothes, Ronald A. Brand

Articles

In 1989, the National Conference of Commissioners on Uniform State Laws approved a new Uniform Foreign-Money Claims Act. This Act is designed to change and clarify the law regarding judgments on obligations denominated in a foreign currency. It does so by recognizing that old rules preventing judgment in a foreign currency - developed in times of a strong dollar - are inappropriate. Unfortunately, in seeking fairness for plaintiffs when the U.S. dollar is weak, the Act replaces rigid old rules with stiff new rules that fail to address the basic issue of appropriate damages for exchange rate losses. While the …

Faultless Reasoning: Reconstructing The Foundations Of Civil Responsibility In Quebec Since Codification, David Howes

Dalhousie Law Journal

In The Civil Law System of the Province of Quebec, Jean-Gabriel Castel writes, To know the Quebec law of contract, it is sufficient to read the articles of the Civil Code dealing with this topic and the cases decided since its enactment. If in the common-law system it is absolutely necessary to know history to understand, for instance, the essential division between law and equity ... this is not the case in France or in Quebec. There, the civil law is logically organized, it is not the product of a historical evolution or of a long line of decided cases. …

The Genesis Of The Canadian Criminal Code Of 1892, Keith Jobson

Dalhousie Law Journal

Brown gives an interesting and readable account of the background of the 1892 Code and its genesis in the politics of the day. His preface and six short chapters are followed by an epilogue, a short biographical note and footnotes. Chapter One deals with the ambiguity of the term "code". Clearly, the 1892 Code was not a codification in the civilian tradition as exemplified, for example, in the Napoleonic Code, nor was it even a code such as Bentham might have drafted. It was a "code" only in the loose sense in which.the word was used by English and Canadian …

The Matrix Of The Common Law, George L. Haskins

Cleveland State Law Review

Great men have admonished us never to forget the continuing relevance of history in the Anglo-American legal system. We are cautioned to remember that the highly individualistic character of much of our law is explained by its Germanic rather than its Roman roots and, further, that the Anglo-American system has built upon countervailing concepts of relationships which are feudal in origin, and to which rights and duties attach without regard to the will of individuals, which is the underlying principle of classical Roman law. Thus, in our law, powers, rights, and duties stem from relationships such as principal-agent, vendor-purchaser, landlord-tenant …

Doorkeepers: Legal Education In The Territories And Alberta, 1885-1928, Peter M. Sibenik

Dalhousie Law Journal

Legal education has been subjected to greater scrutiny in common law jurisdictions since the publication of Lawyers and the Courts in 1967.2 Most of the recent literature has addressed the issue of who received a legal education and became entitled to practise law. It has also examined how a conservative-minded profession regenerated itself, and whether it equipped new recruits with the proper tools to meet the challenges of a changing society.

Virginia Manuscript Law Reports, William Hamilton Bryson

Law Faculty Publications

Case law, including published cases and cases that have never been published, is the basis of the common law. Professor Bryson discusses the use of manuscript law reports in Virginia during the eighteenth and nineteenth centuries.

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

Scholarly Articles

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 …