Legal History Commons^™

Edward S. Rogers, The Lanham Act, And The Common Law, Jessica Litman

Book Chapters

This book chapter is a deep dive into the story of Edward Sidney Rogers's authorship of the legislation that became the Lanham Act. Because Rogers believed that Congress lacked the power to alter the substantive law of trademark and unfair competition, he crafted draft legislation that focused on registration and other procedural details rather than substantive rights and defenses. He sought to advance two incompatible goals: he hoped to preserve the robust common law of unfair competition while requiring, or at least encouraging, all trademark owners to register their marks. Both the supporters and the opponents of the bills that …

Of Rights And Regulation, Stephen W. Sawyer, William J. Novak

Book Chapters

This chapter explores the development of social provisioning as a matter not of right but of democratic administration in France and the United States in the nineteenth century. The authors take issue with conventional chronologies of rights development, which see civil and political rights being developed in the eighteenth and nineteenth centuries, with social rights appearing in the twentieth. Such categories and sequencing obscure the ways in which democratic administrations took the problem of social provisioning seriously. A history of socio-economic rights cannot be distinguished from the less formal technologies of socio-economic regulation that were an integral part of the …

Reading Terminology In The Sources For The Early Common Law: Seisin, Simple And Not So Simple, John G. H. Hudson

Book Chapters

According to F. W. Maitland, ‘the treatment of seisin in our oldest common law must be understood if ever we are to use the vast store of valuable knowledge that lies buried in the plea rolls and the Year Books’. In The History of English Law, Maitland stated firmly that ‘Seisin is possession’, and that ‘When we say that seisin is possession, we use the latter term in the sense in which lawyers use it, a sense in which possession is quite distinct from, and may be sharply opposed to, proprietary right.’ He added that ‘The idea of seisin …

The Confrontation Right, Richard D. Friedman

Book Chapters

This chapter examines the right of criminal defendants to be confronted with the witnesses against them. It first provides an overview of the nature, purposes, and costs of the confrontation right before discussing the history of the confrontation right. It then considers a range of issues that may arise in any jurisdiction (or in some cases, any common law jurisdiction) with regard to the confrontation right, using as a touchstone the current status of the right in the United States. In particular, it describes situations in which the question of whether a statement is testimonial typically arises, such as fresh …

Executive Power And National Security Power, Julian Davis Mortenson, Andrew Kent

Book Chapters

The constitutional text governing national security law is full of gaps, oversights, and omissions. In combination with the authorization principle -- which requires all federal actors to identify particularized authority for their actions -- these gaps have often presented an acute dilemma for Presidents charged with defending the nation. Focusing on three periods in American history, this chapter sketches the historical evolution of how the political branches have responded.

First, the early republic. During this period, presidents responded to the authorization dilemma by seeking highly particularized authorization from the two other constitutional branches of government. Throughout the era, presidents’ claims …

Corporate Governance, Capital Markets, And Securities Law, Adam C. Pritchard

Book Chapters

This chapter explores the dividing line between corporate governance and securities law from both historical and institutional perspectives. Section 2 examines the origins of the dividing line between securities law and corporate governance in the United States, as well as the efforts of the SEC to push against that boundary. That history sets the stage for section 3, which broadens the inquiry by examining the institutional connections between capital markets and corporate governance. Are there practical limits to the connection between securities law and corporate governance? The US again illustrates the point, as Congress has increasingly crossed the traditional boundary …

Putting The 'Public' In Public Administration: The Rise Of The Public Utility Idea, William J. Novak

Book Chapters

From the perspective of American legal history, one of the most important and lasting themes in the work of Jerry L. Mashaw is his definitive establishment of the long and deep historical origins of American administrative law and the administrative state. Mashaw's remarkable charting of “The Lost One Hundred Years of American Administrative Law” is a monumental achievement that forever alters the established chronology and history of the administrative regulatory state in the USA. Through his emphasis on what Bruce Wyman dubbed the “internal law” of administration, Mashaw identified a new route into a previously undiscovered (or at least underacknowledged) …

Democratic States Of Unexception: Towards A New Genealogy Of The American Political, William J. Novak, Stephen W. Sawyer, James T. Sparrow

Book Chapters

This chapter takes issue with the history and theory of exception along these three lines. The first section offers a critique of the idea of law at the heart of the theory of exception. By taking a closer look at the history and theory of law in early nineteenth-century America, it offers an alternative reading of the role of exception in Emerson’s America – a place and time in which the exception in law was anything but exceptional. The second section offers a critique of the idea of state and sovereignty at the heart of the theory of exception in …

The Administrative State In America, William J. Novak

Book Chapters

The purpose of this contribution is to examine the idea of the Continental State in a common-law context. To that effect, the focus of this essay is the American state. Typically, in comparing the American regime to the Continental idea of the state, much has been made of a so-called tradition of ‘American exceptionalism’. Alexis de Tocqueville perhaps started this trend when he observed in the United States distinctive qualities of individualism, associationalism, localism, and decentralization, but not many inklings of a modern state. ‘The federal government of the United States’, he mistakenly surmised in the early nineteenth century, ‘is …

The Law School (2013), Margaret A. Leary

Book Chapters

This chapter describes the growth and changes to the University of Michigan Law School for the period 1973-2013.

Legal Issues In Child Welfare Cases Involving Children With Disabilities, Joshua B. Kay, Frank E. Vandervort

Book Chapters

This chapter examines the legal framework applicable when child maltreatment and disability intersect. It begins with a brief description of the constitutional foundation forparent-child-state relations. It provides an overview of relevant federal child welfare laws, which today shape each state’s child protection system. It then considers the application of various federal laws governing work with children and families when a child has a disability. In doing so, we consider the Americans with Disabilities Act, the Individuals with Disabilities Education Act, and Section 504 of the Rehabilitation Act, and we touch upon Social Security benefits for children. This chapter does not …

Lights Hidden Under Bushel's Case, Thomas A. Green

Book Chapters

Some forty years ago, Charlie Donahue created a course which he titled "Law, Morals and Society." Designed for undergraduates, and situated among the offerings of the University of Michigan's interdisciplinary Medieval and Renaissance Collegium, the course reflected the approach to doing history that, as this volume recognizes, Charlie has followed throughout his long and enormously influential career as scholar, teacher, lecturer, and inepressible master of well-timed interventions during conference-panel discussion periods. "LMS" was composed of four units. Charlie, who taught two of them, led off with the legal basis for the deposition of Richard II; I followed with the law …

The Concept Of The State In American History, William J. Novak

Book Chapters

Debates about the state rage in contemporary America. On the right, libertarian and tea party rhetoric fulminates about shrinking the state or shutting down the government, frequently in hyperbolic terms like the Americans for Tax Reform notion of" drowning it in a bathtub." On the left, concern about the fate of the welfare state and an ever-expanding warfare and penal state produces equally impassioned retorts. Discussion of the American state-its nature, its size, and its uncertain future-dominates the political landscape as perhaps never before.

Teaching Legal History Through Legal Skills., Howard Bromberg

Book Chapters

I revolve my legal history courses around one methodology: teaching legal history by means of legal skills. I draw on my experience teaching legal practice and clinical skills courses to assign briefs and oral arguments as a means for law students to immerse themselves in historical topics. Without distracting from other approaches, I framed this innovation as teaching legal history not to budding historians but to budding lawyers.

A Revisionist History Of Regulatory Capture, William J. Novak

Book Chapters

The idea of regulatory capture has controlled discussions of economic regulation and regulatory reform for more than two generations. Originating soon after World War II, the so-called capture thesis was an early harbinger of the more general critique of the American regulatory state that dominated the closing decades of the twentieth century. The political ramifications of that broad critique of government continue to be felt today both in the resilient influence of neoliberal policies such as deregulation and privatization as well as in the rise of more virulent and populist forms of anti-statism. Indeed, the capture thesis has so pervaded …

Dignité/Dignidade: Organizing Against Threats To Dignity In Societies After Slavery, Rebecca J. Scott

Book Chapters

This chapter is not an attempt to join the fractious debate over philosophical first principles or juridical first usages of the term 'dignity'. Instead, it explores the tight connection between the institution of slavery and the giving of specific meanings to the concept of dignity, in particular times and particular places. To explore the dynamics of the intertwined process of creating and drawing upon meaning for the terms 'dignity' and 'slavery', I examine two historical movements that emerged after formal abolition.

Making The Modern American Legislative State, William J. Novak

Book Chapters

The essays in this volume are dedicated to two propositions. First, most generally, they aim to reinvigorate scholarly interest in the subject of legislation and bring a new level of analytical sophistication to the study of the legislature. Second, they are committed to looking at legislation developmentally, that is, legislation not as the simple static textual output of a law-drafting body, but as a dynamic social and political process-a living and breathing human activity with a distinct time dimension involving a complex pattern of beginnings, evolutions, maturations, mutations, emendations, and, of course, endings. These propositions nicely intersect with recent themes …

Under Color Of Law: Siliadin V. France And The Dynamics Of Enslavement In Historical Perspective, Rebecca J. Scott

Book Chapters

When is it appropriate to apply the term ‘slavery’—a concept that appears to rest on a property right—to patterns of exploitation in contemporary society, when no state extends formal recognition to the possibility of the ownership of property in a human being? Historians, who generally position themselves as enemies of anachronism, may be particularly resistant to the use of an ancient term to describe a twenty-first century reality. And jurists have often been understandably reluctant to employ a word whose historical meaning was so closely tied to a specific property relationship that has long since been abolished in Europe and …

Lindbergh Baby Kidnapping; And Nebbia V. New York, Howard Bromberg

Book Chapters

Contributions by Howard J. Bromberg to The Thirties in America, a collection of short essays.

Women Behind The Wheel: Gender And Transportation Law, 1860-1930, Margo Schlanger

Book Chapters

Gender difference is only infrequently mentioned in recent negligence cases. To contemporary (mostly non-essentialist) eyes, gender difference seems to appear only mildly relevant to tort law's area of concern: care and harm to others and self. But in the early days of modern tort law, when gender differences loomed larger in the consciousness of American jurists, and unabashedly so, judicial opinions more frequently grappled with how negligence doctrine ought to take account of female difference. This chapter explores opinions published between approximately 1860 and 1930 that illuminate this issue in cases involving women drivers and passengers of cars and wagons. …

Rosalie Of The Poulard Nation: Freedom, Law, And Dignity In The Era Of The Haitian Revolution, Rebecca J. Scott, Jean M. Hébrard

Book Chapters

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 make a proposal. Under the Congressional Reconstruction Acts of1867, the voters of Louisiana had elected ninety-eight delegates-half of them men of color-to a constitutional convention charged with drafting a founding document with which the state could reenter the Union. Edouard Tinchant was a twentysix- year-old immigrant to New Orleans, principal of a school for freed children on St. Claude Avenue. Having made something of a name for himself as a Union Army veteran …

Microhistory Set In Motion: A Nineteenth-Century Atlantic Creole Itinerary, Rebecca J. Scott

Book Chapters

Sidney Mintz’s Worker in the Cane is a model life history, uncovering the subtlest of dynamics within plantation society by tracing the experiences of a single individual and his family. By contrast, Mintz’s Sweetness and Power gains its force from taking the entire Atlantic world as its scope, examining the marketing, meanings, and consumption of sugar as they changed over time. This essay borrows from each of these two strategies, looking at the history of a single peripatetic family across three long-lived generations, from enslavement in West Africa in the eighteenth century through emancipation during the Haitian Revolution in the …

The Provincial Archive As A Place Of Memory: The Role Of Former Slaves In The Cuban War Of Independence (1895-98), Rebecca Scott

Book Chapters

Prof. Scott focuses on the study of the role of former slaves in the Cuban War of Independence, in light of the avoidance of the theme of race within this war in Cuban historiography. She discusses reasons for the silence on race issues, and for the historic construction of the "myth" of racial equality in this era.

Afterword: Elite Principles: The Ali Proposals And The Politics Of Law Reform, Carl E. Scheider

Book Chapters

The Reporters of the PRINCIPLES were distinguished legal scholars who produced a serious and ambitious document. The contributors to the present volume subject the PRINCIPLES to probing, thoughtful, and illuminating analysis. At the volume's beginning, Professor Glendon puts the problems of family law in a broader perspective by examining the challenges families today face in living good lives. Now, at the volume's close, I want to put both the PRINCIPLES and the essays in a broader perspective. I need not vivisect the PRINCIPLES; that is admirably done by the essayists. Rather, I proffer a tool for understanding the PRINCIPLES more …

The Story Of Crawford, Richard D. Friedman

Book Chapters

Michael Crawford had been charged with assault. At his trial, the prosecution offered a statement made in the police station on the night of the incident by Crawford's wife Sylvia, who did not testify at trial. He objected, in part on the ground that this violated his right under the Confrontation Clause. The trial court nevertheless admitted the statement, and Crawford was convicted. The Washington Supreme Court ultimately affirmed the judgment. In rejecting the Confrontation Clause challenge, that court purported to apply the then governing doctrine of Ohio v. Roberts, under which the Clause posed no obstacle to admissibility if …

The Story Of The Separate Corporate Income Tax: A Vehicle For Regulating Corporate Managers, Reuven S. Avi-Yonah

Book Chapters

The corporate income tax is under attack. The former Secretary of the Treasury has announced that it should be abolished, and the current drive to eliminate the taxation of dividends can be seen as the first step toward that goal. A significant number of tax academics have argued for repeal of the tax. Other academics have urged radical reform of the tax. And no serious academic has in recent years mounted a convincing normative defense of why this cumbersome tax should be retained.

And yet it does not seem likely that the corporate tax will be repealed any time soon. …

Corporate Income Tax Act Of 1909, Reuven S. Avi-Yonah

Book Chapters

The Corporate Tax Act of 1909 (36 Stat. 11, 112) imposed an excise tax on corporations for the privilege of doing business in corporate form. However, the excise tax was measured by corporate income. Thus the act was the origin of the current corporate income tax, which has been part of our federal tax system ever since and is currently the source of about 10 percent of federal revenues.

In 1895 the Supreme Court decided that Congress could not impose an income tax directly on individuals, because that would violate the constitutional requirement that all “direct” taxes be apportioned (that …

Home And Homelessness In The Middle Of Nowhere, William I. Miller

Book Chapters

In Iceland one must have a home; it is an offense not to-in some circumstances, a capital offense. A sturdy beggar was liable for full outlawry, which meant he could be killed with impunity. The laws are hard on vagrants. Fornication with a beggar woman was unactionable; it was lawful to castrate a vagabond, and he had no claim if he were injured or killed during the operation. One could take in beggars solely for the purpose of whipping them, nor was one to feed or shelter them at the Thing on pain of lesser outlawry. Their booths at 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 …

The Road To Glucksberg, Carl E. Scheider

Book Chapters

No abstract provided.