Legal History Commons^™

Reconstructing Richard Epstein, Eduardo M. Peñalver

Cornell Law Faculty Publications

Michelman As Doctrinalist, Gregory S. Alexander

Cornell Law Faculty Publications

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

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

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 in …

Copyright And Incomplete Historiographies: Of Piracy, Propertization, And Thomas Jefferson, Justin Hughes

Articles

Because we learn from history, we also try to teach from history. Persuasive discourse of all kinds is replete with historical examples – some true and applicable to the issue at hand, some one but not the other, and some neither. Beginning in the 1990s, intellectual property scholars began providing descriptive accounts of a tremendous strengthening of copyright laws, expressing the normative view that this trend needs to be arrested, if not reversed. This thoughtful body of scholarly literature is sometimes bolstered with historical claims – often casual comments about the way things were. The claims about history, legal or …

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

Cornell Law Faculty Publications

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 between two bodies …

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 …

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 …

Separating The Criminals From The Community: Procedural Remedies For “Innocent Owners” In Public Housing Authorities, Sarah N. Kelly

NYLS Law Review

No abstract provided.

Colorado Revisits The Rule Against Perpetuities, Wayne M. Gazur

Publications

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.

The Rose Theorem?, Michael Heller

Faculty Scholarship

Law resists theorems. We have hypotheses, typologies, heuristics, and conundrums. But, until now, only one plausible theorem – and that we borrowed from economics. Could there be a second, the Rose Theorem?

Any theorem must generalize, be falsifiable, and have predictive power. Law's theorems, however, seem to require three additional qualities: they emerge from tales of ordinary stuff; are named for, not by, their creators; and have no single authoritative form. For example, Ronald Coase wrote of ranchers and farmers. He has always shied away from the Theorem project. When later scholars formalized his parable, they created multiple and inconsistent …

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

Publications

No abstract provided.

Ownership And Possession In The Early Common Law, Joshua C. Tate

Faculty Journal Articles and Book Chapters

Much has been written on the possible influence of Roman or canon law on the early English common law of property. Maitland thought that the canonist's actio spolii was the inspiration for the assize of novel disseisin. Sutherland argued that the assize borrowed from the Roman interdict unde vi. Milsom, by contrast, thinks that the early common-law writs must be understood within a feudal framework, and that the early common law took nothing from Roman law than the Latin language.

This Article offers a new perspective on ownership and possession in the early common law. It examines the theoretical development …

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

Publications

No abstract provided.

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

UIC Law Review

No abstract provided.