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Articles 1 - 14 of 14

Full-Text Articles in Legal History

Michelman As Doctrinalist, Gregory S. Alexander Dec 2006

Michelman As Doctrinalist, Gregory S. Alexander

Cornell Law Faculty Publications


Reconstructing Richard Epstein, Eduardo M. Peñalver Dec 2006

Reconstructing Richard Epstein, Eduardo M. Peñalver

Cornell Law Faculty Publications


A Complete Property Right Amendment, John H. Ryskamp Oct 2006

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.


Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court: Part I-A English Stories, Marc L. Roark Aug 2006

Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court: Part I-A English Stories, Marc L. Roark

ExpressO

This is part I-A of a Book I am working towards on the narratives and fictions of sovereign immunity. The goal in this part is to look before the American republic and towards the background in which American Sovereignty came to be shaped by -- the feudal notion of the sovereign; the Lockean response, and the Blackstonean doctrine. The first part looks at the legal fictions surrounding the kingship, their sources and their effects. The Second part looks to the specific ways of treating the sovereign in law, namely viewing King as Property owner or patriarch, Trustee, and Constitution.


Justice Thomas' Kelo Dissent, Or, "History As A Grab Bag Of Principles", David L. Breau Aug 2006

Justice Thomas' Kelo Dissent, Or, "History As A Grab Bag Of Principles", David L. Breau

ExpressO

In Kelo v. City of New London, the Supreme Court held 5-4 that creating jobs and increasing tax revenues satisfy the Fifth Amendment’s requirement that property be "taken for public use." Justice Thomas joined the dissenters, but authored a separate opinion arguing that the Public Use Clause was originally understood as a substantive limitation that allowed the government to take property only if the government owns, or the public actually uses, the taken property. This article demonstrates that much of the historical evidence that Justice Thomas provides in his dissent to support a narrow original understanding of public use ...


Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp Jun 2006

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.


Property Metaphors And Kelo V. New London: Two Views Of The Castle, Eduardo M. Peñalver May 2006

Property Metaphors And Kelo V. New London: Two Views Of The Castle, Eduardo M. Peñalver

Cornell Law Faculty Publications


Property And Empire: The Law Of Imperialism In Johnson V. M'Intosh, Jedediah S. Purdy Mar 2006

Property And Empire: The Law Of Imperialism In Johnson V. M'Intosh, Jedediah S. Purdy

ExpressO

Justice Marshall’s opinion in Johnson v. M’Intosh has long been a puzzle in both its doctrinal structure and in Marshall’s manifest ambivalence and long, strange dicta that are both triumphal and elegiac. In this article, I show that the opinion becomes newly intelligible when read in the context of the law and theory of colonialism, concerned, which, like the case itself, was concerned with the expropriation of continents and relations between dominant and subject peoples.

I examine several instances where the seeming incoherence of the opinion instead shows its debt imperial jurisprudence, which rested on a distinction ...


People As Property: On Being A Resource And A Person, Jedediah S. Purdy Feb 2006

People As Property: On Being A Resource And A Person, Jedediah S. Purdy

ExpressO

Property law facilitates the efficient use and allocation of scarce resources and recognizes and protects aspects of personhood – the bases of dignity and self-respect. Human beings, who are both resources for one another and the persons whose moral importance the legal system seeks to protect. This article explores how property law has addressed this paradox in the past and how might in the future.

I analyze two bodies of nineteenth-century law where the paradox was highlighted: the legal regimes of labor discipline for slaves in the antebellum South and for free workers in the laissez-faire Lochner era. The law struggled ...


Colorado Revisits The Rule Against Perpetuities, Wayne M. Gazur Jan 2006

Colorado Revisits The Rule Against Perpetuities, Wayne M. Gazur

Articles

The 2006 Colorado General Assembly passed legislation adopting a 1000-year limitation applicable to interests in trust, practically eliminating the Rule Against Perpetuities ("RAP"). This article discusses the legislation's impact on the RAP in trust and non-trust situations.


It's Not About The Fox: The Untold History Of Pierson V. Post, Bethany Berger Jan 2006

It's Not About The Fox: The Untold History Of Pierson V. Post, Bethany Berger

Faculty Articles and Papers

For generations, Pierson v. Post, the famous fox case, has introduced students to the study of property law. Two hundred years after the case was decided, this Article examines the history of the case to show both how it fits into the American ideology of property, and how the facts behind the dispute challenge that ideology. Pierson is a canonical case because it replicates a central myth of American property law, that we start with a world in which no one has rights to anything and the fundamental problem is how best to convert it to absolute individual ownership. The ...


Today's Indian Wars: Between Cyberspace And The United Nations, S. James Anaya Jan 2006

Today's Indian Wars: Between Cyberspace And The United Nations, S. James Anaya

Articles

No abstract provided.


Listening To All The Voices, Old And New: The Evolution Of Land Ownership In The Modern West, Charles Wilkinson Jan 2006

Listening To All The Voices, Old And New: The Evolution Of Land Ownership In The Modern West, Charles Wilkinson

Articles

No abstract provided.


The History Of Slave Marriage In The United States, 39 J. Marshall L. Rev. 299 (2006), Darlene C. Goring Jan 2006

The History Of Slave Marriage In The United States, 39 J. Marshall L. Rev. 299 (2006), Darlene C. Goring

The John Marshall Law Review

No abstract provided.