Law Commons^™

Public Rights And Private Commerce: A Nineteenth-Century Atlantic Creole Itinerary, Rebecca J. Scott

Articles

Tracing the history of a family across three generations, from enslavement in eighteenth-century West Africa through emancipation during the Haitian Revolution and subsequent resettlement in New Orleans, then France, then Belgium, can shed light on phenomena that are Atlantic in scope. A business letter written in 1899 by the cigar merchant Edouard Tinchant to General Máximo Gómez in Cuba frames an inquiry that opens out onto a family itinerary that spanned the long nineteenth century. Rosalie Vincent’s achievement of freedom in the shadow of slavery in Saint-Domingue in 1793–1803 can be seen as linked to her grandson Edouard Tinchant’s participation …

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.

Race Nuisance: The Politics Of Law In The Jim Crow Era, Rachel D. Godsil

ExpressO

This article explores a startling and previously unnoticed line of cases in which state courts in the Jim Crow era ruled against white plaintiffs trying to use common law nuisance doctrine to achieve residential segregation. These “race-nuisance” cases complicate the view of most legal scholarship that state courts during the Jim Crow era openly eschewed the rule of law in service of white supremacy. Instead, the cases provide rich social historical detail showing southern judges wrestling with their competing allegiance to precedent and the white plaintiffs’ pursuit of racial exclusivity. Surprisingly to many in the academy, the allegiance to precedent …

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

NYLS Law Review

No abstract provided.

Le 'Droit D'Avoir Des Droits': Les Revendications Des Ex-Esclaves À Cuba (1872-1909), Rebecca J. Scott, Michael Zeuske

Articles

In Cuba, a distinctive process of gradual emancipation brought a large number of enslaved and recently-freed men and women into the legal culture. What earlier might have remained oral or physical challenges now took legal form, as slaves and former slaves built alliances with those who could assist them in their appeals. The assertions of former slaves suggest an emerging conviction of a "right to have rights", going well beyond the immediate refusal of their own bondage. In this light, the office of the notary and the courts of first instance became places where freedom itself was constituted through the …

Whose Music Is It Anyway? How We Came To View Musical Expression As A Form Of Property, Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

Many participants in the music industry consider unauthorized transmissions of music files over the Internet to be theft of their property. Many Internet users who exchange music files reject this characterization. Prompted by the dispute over unauthorized music distribution, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing music making in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some …

"Well-Behaved Women Don't Make History": Rethinking English Family, Law, And History, Danaya C. Wright

UF Law Faculty Publications

In 1857 Parliament finally succumbed to public and political pressure and passed a bill creating a domestic relations court: the Court for Divorce and Matrimonial Causes. This new court for the first time in common-law history, combined the following jurisdictions: the ecclesiastical court's jurisdiction over marital validity and separation; the Chancery court's jurisdiction over child custody and equitable estates; the common-law court's jurisdiction over property; and Parliament's jurisdiction over divorce and marital settlements. Wives were given the legal right to seek a divorce or judicial separation in a court of law, receive custody of the children of the marriage, and …

"On The Chastity Of Women All Property In The World Depends" : Injury From Sexual Slander In The Nineteenth Century, Lisa R. Pruitt

Indiana Law Journal

In this Article, Professor Pruitt discusses conceptions of the injury associated with defamation law, focusing in particular on sexual slander cases that were brought in the early nineteenth century, before statements that impugned a woman's chastity were deemed slander per se. During this time, women had to prove so-called "special damages" in order to state a cause of action. Courts showed some flexibility in what they recognized as constituting "special damages," even stretching to recognize pecuniary harm in damaged personal relationships. Nevertheless, courts refused to recognize injuries stemming from and related to emotional distress injuries, and they were often skeptical …

Of Property And Anti-Property, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Private property is widely perceived as a potent prodevelopment and anticonservationist force. The drive to accumulate wealth through private property rights is thought to encourage environmentally destructive development; legal protection of such property rights is believed to thwart environmentally friendly public measures. Indeed, property rights advocates and environmentalists are generally described as irreconcilable foes. This presumed clash often leads environmentalists to urge public acquisition of private lands. Interestingly, less attention is paid to the possibility that the government may prove no better a conservator than private owners. Government actors often mismanage conservation properties, collaborating with private developers to dispose of …

Property In Writing, Property On The Ground: Pigs, Horses, Land, And Citizenship In The Aftermath Of Slavery, Cuba, 1880-1909, Rebecca J. Scott, Michael Zeuske

Articles

In the most literal sense, the abolition of slavery marks the moment when one human being cannot be held as property by another human being, for it ends the juridical conceit of a "person with a price." At the same time, the aftermath of emancipation forcibly reminds us that property as a concept rests on relations among human beings, not just between people and things. The end of slavery finds former masters losing possession of persons, and former slaves acquiring it. But it also finds other resources being claimed and contested, including land, tools, and animals-resources that have shaped former …

Property Ownership By Married Women In Victorian Ontario, Susan Ingram, Kris Inwood

Dalhousie Law Journal

This paper reports patterns of property holding by women and men in late nineteenth-century Ontario. We focus on the town of Guelph immediately before and after legislation in 1872 and 1884 which permitted married women to hold property in their own name. The female-held share of all property and the female share of all owners in the town increased sharply. The gains were made by married women, and even more strongly by single women and widows. However, there was little or no shift of property in nearby rural townships. We argue that an induced change in inheritance practice amplified the …

When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

The Boundaries Of Private Property, Michael A. Heller

Articles

If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive …

Caste, Class, And Equal Citizenship, William E. Forbath

Michigan Law Review

There is a familiar egalitarian constitutional tradition and another we have largely forgotten. The familiar one springs from Brown v. Board of Education; its roots lie in the Reconstruction era. Court-centered and countermajoritarian, it takes aim at caste and racial subordination. The forgotten one also originated with Reconstruction, but it was a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts. Aimed against harsh class inequalities, it centered on decent work and livelihoods, social provision, and a measure of economic independence and democracy. Borrowing a phrase from its Progressive Era proponents, I will call it the social …

Rationing Justice—What Thomas More Would Say, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Toward A Constitutional Kleptocracy: Civil Forfeiture In America, Stephan B. Herpel

Michigan Law Review

Leonard Levy, the legal historian who has written a number of highly regarded historical studies on various provisions of the United States Constitution, has added to his impressive oeuvre a new study of civil and criminal forfeiture. A License to Steal brings together a discussion of English legal history, a review of a number of Nineteenth Century and late Twentieth Century Supreme Court forfeiture decisions, accounts of actual applications of civil and criminal forfeiture, and a summary and critique of legislative proposals that have been made for reform of the civil forfeiture provisions of the federal drug statute. There is …

"Public Use" And The Independent Judiciary: Condemnation In An Interest-Group Perspective, Donald J. Kochan

Donald J. Kochan

This Article reexamines the doctrine of public use under the Takings Clause and its ability to impede takings for private use through an application of public choice theory. It argues that the judicial validation of interest-group capture of the condemnation power through a relaxed public use standard in Takings Clause review can be explained by interest group politics and public choice theory and by institutional tendencies inherent in the independent judiciary. Legislators can sell the eminent domain power to special interests for almost any use, promising durability in the deal given the low probability that the judiciary will invalidate it …

Stories About Property, William W. Fisher Iii

Michigan Law Review

A Review of Carol M. Rose, Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership

A New Image Of The Slave Auction: An Empirical Look At The Role Of Law In Slave Sales And A Conceptual Reevaluation Of Slave Property, Thomas D. Russell

Sturm College of Law: Faculty Scholarship

This legal history article presents a new understanding of the nature of slave property. Slave property was divided and fragmented into many different interests including those with application to real property such life estates, remainders, shifting and spring interests, and leasehold interests. With regard to these interests, the article overlays the first-year, law-school property course onto slaves as property. Property interests in slaves were also divided by credit mechanisms including mortgages and secured credit transactions. Warranties are another example of divided property interests in slaves.

The fragmented, Hohfeldian nature of slave property distributed the stake that southerners had in the …

Thinking Property At Rome, Alan Watson

Scholarly Works

It is a commonplace among writers on slavery that there is an inherent contradiction or a necessary confusion in regarding slaves as both human beings and things. In law there is no such contradiction or confusion. Slaves are both property and human beings. Their humanity is not denied but (in general) they are refused legal personality, a very different matter.

Things as property may be classed in various ways, and the classification may then have an impact on owners' rights and duties. A thing may be corporeal or incorporeal, immoveable or moveable. Some moveables may be classed as res se …

Chapter 5 - Matrimonial Bonds: Slavery And Divorce In Nineteenth-Century America (Previously Published Article), Elizabeth B. Clark

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

In the covenant of marriage, woman is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master -- the law giving him power to deprive her of her liberty, and to administer chastisement. He has so framed the law of divorce . . . as to be wholly regardless of the happiness of women -- the law, in all cases, going upon a false supposition of the supremacy of man, and giving all power into his hands.

Matrimonial Bonds: Slavery And Divorce In Nineteenth-Century America, Elizabeth B. Clark

Publications

In the covenant of marriage, woman is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master -- the law giving him power to deprive her of her liberty, and to administer chastisement. He has so framed the law of divorce . . . as to be wholly regardless of the happiness of women -- the law, in all cases, going upon a false supposition of the supremacy of man, and giving all power into his hands.

Transfers Of Property In Eleventh-Century Norman Law, William John Gallagher

Michigan Law Review

A Review of Transfers of Property in Eleventh-Century Norman Law by Emily Zack Tabuteau

Chapter 4 - Self-Ownership And The Political Theory Of Elizabeth Cady Stanton (Previously Published Article), Elizabeth B. Clark

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

The emphasis on freedom or enslavement of the body, and the issues that sprang from that focus, were feminists' contribution to nineteenth-century American liberalism, as well as their link to radical thought. Elizabeth Cady Stanton drew arguments from the realm of political liberty and religious tolerance to make the case for choice in private life. But the vision of individual autonomy in sexual and domestic matters served also as the basis for her definition of citizenship and as a paradigm for relations among citizens and between citizens and the state. Self-ownership was the unifying theme that ran through Stanton's political …

Self-Ownership And The Political Theory Of Elizabeth Cady Stanton, Elizabeth B. Clark

Publications

The emphasis on freedom or enslavement of the body, and the issues that sprang from that focus, were feminists' contribution to nineteenth-century American liberalism, as well as their link to radical thought. Elizabeth Cady Stanton drew arguments from the realm of political liberty and religious tolerance to make the case for choice in private life. But the vision of individual autonomy in sexual and domestic matters served also as the basis for her definition of citizenship and as a paradigm for relations among citizens and between citizens and the state. Self-ownership was the unifying theme that ran through Stanton's political …

Eminent Domain Law, Riparian Doctrine, And Early American Land Settlement: An Evolutionary History Of Vested Property Rights From The Late 18th Through The 19th Century, Scott Beckstead

Undergraduate Honors Capstone Projects

This paper is an effort to present a synopsis of the jurisprudence of eminent domain law and riparian doctrine and their place in the history of American property law. Both areas are vast and complicated bodies of law, and both are still undergoing scrutiny and change. We therefore will concentrate on those cases and doctrines that culminated in the eminent domain jurisprudence of the early West. In the context of early American land settlement and development, the paper will define what is known among legal and historical scholars as "takings," expounding on different aspects of that concept. We will examine …

Some Aspects Of Householding In The Medieval Icelandic Commonwealth, William I. Miller

Articles

There has been much, mostly inconclusive, discussion about how to define the household in a manner suitable for comparative purposes. Certain conventional criteria are not very useful in the Icelandic context, where it appears that a person could be attached to more than one household, where the laws suggest it was possible for more than one household to be resident in the same uncompartmentalised farmhouse; and where headship might often be shared. Definitions, for example, based on co residence or on commensalism do not jibe all that well with the pastoral transhumance practised by the Icelanders. Sheep were tended and …

The Right Of Property And The Law Of Theft, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Liberty And Property In The Supreme Court: A Defense Of Roth And Perry, Peter N. Simon

Publications

No abstract provided.

A Conflict Over Land, Francis E. Ackerman

American Indian Law Review

No abstract provided.