Law Commons^™

Litigating The Meaning Of Emancipation: Reconstruction And Post Reconstruction Era Dilemmas Of Freed People And Property, Julie Novkov

Julie Novkov

This article explores how the southern courts managed the policy question of transferring property by bequest in the wake of the Civil War and emancipation. In the years when the infrastructure for Jim Crow was being assembled, many freedmen and freedwomen were able to gain access to property by bequest despite the system’s refusal to endorse broad based land reform. I argue, nonetheless, that these cases carried through a tradition of white patriarchal control of property, rather than heralding the uncertain dawn of a new era of racially egalitarian property rights.

Explaining The Spread Of At-Will Employment As An Inter-Jurisdictional Race-To-The-Bottom In Employment Standards, Richard A. Bales

Richard A. Bales

The at-will employment rule often is attributed to Horace Gay Wood, who described the rule in an 1877 treatise. Over the next forty years, the rule was judicially adopted in most American states. How and why the rule spread, however, has been the subject of considerable academic debate.

This essay argues that the underindustrialized states first adopting the at-will rule likely did so as a means of attracting capital. In any event, and more importantly, this essay argues that once the first underindustrialized states adopted the rule, other underindustrialized states would have been compelled to adopt the rule to remain …

Ex Aequo Et Bono: De-Mystifying An Ancient Concept, Leon E. Trakman

Leon E Trakman Dean

The ancient concept, ex aequo et bono, holds that adjudicators should decide disputes according to that which is “fair,” and in “good conscience”. Despite its long history in international adjudication and even though it is enshrined in the Charter of the Permanent Court of International Justice, the concept of ex aequo et bono is often avoided on grounds that it operates outside of law, or is deemed to be contrary to law. This article argues that the concept has a valuable and emerging significance in modern law. It is ideally suited to resolving disputes between parties who are engaged in …

’Including Trade In Counterfeit Goods’: The Origins Of Trips As A Gatt Anti-Counterfeiting Code, Christopher Wadlow

Christopher Wadlow

Like corruption, commercial counterfeiting has no apologists and no redeeming features. The World Trade Organisation (WTO) TRIPs Agreement incorporates provisions intended to address the problem of counterfeit goods in international trade, but these seem to have achieved little more than to slow the trajectory of its growth. However, the low profile of these provisions within TRIPs disguises the fact that TRIPs itself may ultimately be traced to a modest initiative by American business interests to include an “anti-counterfeiting code” within the GATT Tokyo round. This article describes the origins and history of the code, and its gradual metamorphosis into the …

Wyoming Prestatehood Legal Materials, Part Ii, Debora Person

Debora A. Person

No abstract provided.

Dangerous Bodies: Freak Shows, Expression, And Exploitation, Brigham A. Fordham

Brigham A Fordham

The freak shows of the late 1800s and early 1900s, which traveled the nation exhibiting “human oddities” for profit, are regaining popularity as an underground form of entertainment. While some non-legal scholars have investigated the meaning of freak shows in American culture, little attention has been paid to the laws that regulate freak shows or the legal rights of freak show participants. This Article seeks to introduce legal discourse into the discussion of freak shows and, in the process, to comment on legal approaches to preventing discrimination against persons who are physically different. Drawing upon the theories and analysis of …

Originalism & Early Civil Search Statutes: The Misunderstood History Of Suspicion & Probable Cause, Fabio Arcila, Jr.

Fabio Arcila Jr.

Originalist analyses of the Framers’ views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated. What attention has been paid, primarily as part of what I term the “conventional account,” has it that the Framers were divided about how accessible search remedies should be. This article explains why this conventional account is mostly wrong, and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law.

In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the …

Mandatory Gun Ownership, The Militia Census Of 1806, And Background Assumptions Concerning The Early American Right To Arms: A Cautious Response To Robert Churchill, William G. Merkel

William G. Merkel

The Inheritance Process In San Bernardino County, California, 1964: A Research Note, Lawrence M. Friedman, Christopher J. Walker, Ben Hernandez-Stern

Christopher J. Walker

Probate records are ubiquitous. Virtually every American county has records of estates of the dead. These records contain rich source material for any study of American legal and social history. They have a lot to tell us about family life, about the economy, about love and death and every aspect of life in America. Yet very few scholars have tried to tap these records. There are very few empirical studies that use as their main source probate records, probably no more than a dozen or so, and even fewer in California. This research note is a modest attempt to add …