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Legal history

2018

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Institution
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Articles 1 - 30 of 35

Full-Text Articles in Law

Translation Of The Preliminary Discourse To The Teatro De La Legislación Universal De España E Indias, H. Barlow Holley Dec 2018

Translation Of The Preliminary Discourse To The Teatro De La Legislación Universal De España E Indias, H. Barlow Holley

Journal of Civil Law Studies

No abstract provided.


Dickinson Law Approved By American Bar Association, Pamela G. Smith Dec 2018

Dickinson Law Approved By American Bar Association, Pamela G. Smith

Perspectives on Law School History

No abstract provided.


Originalism As Fable (Reviewing Eric Segall, Originalism As Faith), Jeremy Telman Dec 2018

Originalism As Fable (Reviewing Eric Segall, Originalism As Faith), Jeremy Telman

Hofstra Law Review

Eric Segall's Originalism as Faith provides both a history of the originalist movement in constitutional interpretation and a critique of that movement from the perspective of legal realism. This Review Article summarizes Segall's main argument: as originalism has abandoned deference to the political branches, it has become indistinguishable from its nemesis, living constitutionalism. Emptied of substance, originalism becomes nothing more than an expression of faith. Segall makes his argument very convincingly, evidencing both his knowledge of originalism, in all its variants, and his mastery of constitutional doctrine.

This Article offers two ways in which Segall's exemplary work might be supplemented. …


Whatever Did Happen To The Antitrust Movement?, Herbert J. Hovenkamp Dec 2018

Whatever Did Happen To The Antitrust Movement?, Herbert J. Hovenkamp

All Faculty Scholarship

Antitrust in the United States today is caught between its pursuit of technical rules designed to define and implement defensible economic goals, and increasing calls for a new antitrust “movement.” The goals of this movement have been variously defined as combating industrial concentration, limiting the economic or political power of large firms, correcting the maldistribution of wealth, control of high profits, increasing wages, or protection of small business. High output and low consumer prices are typically unmentioned.

In the 1960s the great policy historian Richard Hofstadter lamented the passing of the antitrust “movement” as one of the “faded passions of …


The Depravity Of The 1930s And The Modern Administrative State, Gary S. Lawson, Steven Calabresi Dec 2018

The Depravity Of The 1930s And The Modern Administrative State, Gary S. Lawson, Steven Calabresi

Faculty Scholarship

Gillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.

First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the normally unchallenged …


Law & Laundry: White Laundresses, Chinese Laundrymen, And The Origins Of Muller V. Oregon, Emily Prifogle Nov 2018

Law & Laundry: White Laundresses, Chinese Laundrymen, And The Origins Of Muller V. Oregon, Emily Prifogle

Articles

This article uses the historian’s method of micro-history to rethink the significance of the Supreme Court decision Muller v. Oregon (1908). Typically considered a labor law decision permitting the regulation of women’s work hours, the article argues that through particular attention to the specific context in which the labor dispute took place — the laundry industry in Portland, Oregon — the Muller decision and underlying conflict should be understood as not only about sex-based labor rights but also about how the labor of laundry specifically involved race-based discrimination. The article investigates the most important conflicts behind the Muller decision, namely …


Behind The Velvet Curtain: Understanding Supreme Court Conference Discussions Through Justices' Personal Conference Notes, Ryan C. Black, Timothy R. Johnson Oct 2018

Behind The Velvet Curtain: Understanding Supreme Court Conference Discussions Through Justices' Personal Conference Notes, Ryan C. Black, Timothy R. Johnson

The Journal of Appellate Practice and Process

No abstract provided.


From Law To Legal Studies And Beyond: 50 Years Of Law And Legal Studies At Carleton University, Vincent Kazmierski, Darren Pacione Oct 2018

From Law To Legal Studies And Beyond: 50 Years Of Law And Legal Studies At Carleton University, Vincent Kazmierski, Darren Pacione

Dalhousie Law Journal

This paper considers the evolution of Carleton University's Department of Law and Legal Studies and its approach to the study of law and the legal within the context of the continuing growth of legal studies programs across the country. It starts by outlining the historical development of the Department and the evolution of its perspective of its role and purpose. Part II examines a number of aspects of the architecture of fourteen undergraduate legal studies programs across the country and the ways in which the roles of these programs are described. Part III provides a brief outline of the current …


The Forgotten Issue? The Supreme Court And The 2016 Presidential Campaign, Christopher W. Schmidt Aug 2018

The Forgotten Issue? The Supreme Court And The 2016 Presidential Campaign, Christopher W. Schmidt

Chicago-Kent Law Review

This Article considers how presidential candidates use the Supreme Court as an issue in their election campaigns. I focus in particular on 2016, but I try to make sense of this extraordinary election by placing it in the context of presidential elections over the past century.

In the presidential election of 2016, circumstances seemed perfectly aligned to force the Supreme Court to the front of public debate, but neither Donald Trump nor Hillary Clinton treated the Court as a central issue of their campaigns. Trump rarely went beyond a brief mention of the Court in his campaign speeches; Clinton basically …


The Rise Of Fiduciary Law, Tamar Frankel Aug 2018

The Rise Of Fiduciary Law, Tamar Frankel

Faculty Scholarship

The law that defines and regulates fiduciary relationships appears in many legal areas, such as family law, surrogate decision-making, international law, agency law, employment law, pension law, remedies rules, banking law, financial institutions' regulation, corporate law, charities law not for profit organizations law, and the law concerning medical services.

Fiduciary relationships, and the concepts on which they are grounded, appear not only in the law. They appear in other areas of knowledge: economics, psychology; moral norms and pluralism. Fiduciary law has a very long history. It was recognized in Roman law and the British common law and appeared decades ago …


Five Decades Of Intellectual Property And Global Development, Peter K. Yu Jul 2018

Five Decades Of Intellectual Property And Global Development, Peter K. Yu

Peter K. Yu

The 2016-2017 biennium marks the historical milestones of several major pro-development initiatives relating to intellectual property law and policy. These important milestones include the Intellectual Property Conference of Stockholm in 1967, the adoption of the Declaration on the Right to Development (UNDRD) in 1986 and the establishment of the WIPO Development Agenda in 2007.

On January 1, 2016, the UN Sustainable Development Goals (SDGs) also came into force. Adopted by the UN General Assembly in September 2015, the 2030 Agenda for Sustainable Development featured 17 SDGs and 169 targets. Prominently mentioned in Target 3.b of SDG 3 are the WTO …


The Never-Ending Assault On The Administrative State, Jack M. Beermann Jul 2018

The Never-Ending Assault On The Administrative State, Jack M. Beermann

Faculty Scholarship

This Article is an exploration of the twists and turns of the never-ending assault on the administrative state. Without attempting to resolve all of the separation of powers controversies that have existed since the beginning of the Republic, this Article examines and analyzes the fundamental constitutional challenges to the administrative state as well as the more peripheral constitutional difficulties involving the administrative state and the nonconstitutional legal challenges that have arisen over the decades. In my view, the legal and political arguments made in favor of major structural changes to the administrative state do not provide sufficient normative bases for …


Hipster Antitrust: New Bottles, Same Old W(H)Ine?, Christopher S. Yoo Apr 2018

Hipster Antitrust: New Bottles, Same Old W(H)Ine?, Christopher S. Yoo

All Faculty Scholarship

Although the debate over hipster antitrust is often portrayed as something new, experienced observers recognize it as a replay of an old argument that was resolved by the global consensus that antitrust should focus on consumer welfare rather than on the size of firms, the levels of industry concentration, and other considerations. Moreover, the history of the Federal Trade Commission’s Section 5 authority to prevent unfair methods of competition stands as a reminder of the dangers of allowing enforcement policy to be guided by vague and uncertain standards.


Unframing Legal Reasoning: A Cyclical Theory Of Legal Evolution, Larry A. Dimatteo Apr 2018

Unframing Legal Reasoning: A Cyclical Theory Of Legal Evolution, Larry A. Dimatteo

UF Law Faculty Publications

This article draws from legal history to inform a part of legal theory. The legal history examination focuses on two theories of legal development - Henry Sumner Maine's "progression thesis" and Nathan Isaacs's "cycle theory." After examining these two theories of legal development, the analysis shifts to how legal history informs theories of legal reasoning. There are numerous long-standing debates on how "law" should be interpreted. These debates are replicated in the question of how "contracts" should be interpreted. Contract law and contract interpretation will be the focus in examining how history informs legal theory, and more specifically, legal reasoning. …


Review Essay - The Consumption Of History In The Legal Academy: Science And Synthesis, Perils And Prospects, Christopher Tomlins Feb 2018

Review Essay - The Consumption Of History In The Legal Academy: Science And Synthesis, Perils And Prospects, Christopher Tomlins

Christopher Tomlins

No abstract provided.


Book Review Of The Inception Of Modern Professional Education: C.C. Langdell, 1826-1906, By Bruce A. Kimball, Christopher Tomlins Feb 2018

Book Review Of The Inception Of Modern Professional Education: C.C. Langdell, 1826-1906, By Bruce A. Kimball, Christopher Tomlins

Christopher Tomlins

No abstract provided.


Legislative History Is Dead; Long Live Legislative History, Genevieve B. Tung Jan 2018

Legislative History Is Dead; Long Live Legislative History, Genevieve B. Tung

Librarian Scholarship at Penn Law

Review of Victoria Nourse, Misreading Law, Misreading Democracy (Harvard 2016)


The Erie/Sears/Compco Squeeze: Erie’S Effects On Unfair Competition And Trade Secret Law, Sharon Sandeen Jan 2018

The Erie/Sears/Compco Squeeze: Erie’S Effects On Unfair Competition And Trade Secret Law, Sharon Sandeen

Faculty Scholarship

On the occasion of the 80th anniversary of the Supreme Court's famous decision in Erie Railroad v. Tompkins, this article explores the consequences of that decision on the development of unfair competition law in the United States. It details efforts by lawyers and legislators to grapple with those consequences and provides an overview of the evolution of unfair competition law in the U.S. since Erie, with a particular focus on trade secret law.


Between Economic Planning And Market Competition: Institutional Law And Economics In The Us, Laura Phillips Sawyer Jan 2018

Between Economic Planning And Market Competition: Institutional Law And Economics In The Us, Laura Phillips Sawyer

Scholarly Works

In 1926 John Maurice Clark published a seminal text in institutionalist economics, Social Control of Business, surveying the ways in which business was subject to control by a variety of formal and informal constraints. 1 The text rejected mainstream ideas in neoclassical political economy by explaining how individual self-interest and competition could be manipulated not only through legal rules but also by custom, habit, codes of ethics, and morals. Representative of the institutionalist movement, Clark discarded presumptions of an individualistic economy based on market competition. Instead, he posited that long-term public goals of prosperity and equity could be achieved through …


One Judge's Legacy And The New York Court Of Appeals: Mr. Justice Cardozo And The Law Of Contracts, Meredith R. Miller Jan 2018

One Judge's Legacy And The New York Court Of Appeals: Mr. Justice Cardozo And The Law Of Contracts, Meredith R. Miller

Touro Law Review

No abstract provided.


Invention Of A Slave, Brian L. Frye Jan 2018

Invention Of A Slave, Brian L. Frye

Law Faculty Scholarly Articles

On June 10, 1858, the Attorney General issued an opinion titled Invention of a Slave, concluding that a slave owner could not patent a machine invented by his slave, because neither the slave owner nor his slave could take the required patent oath. The slave owner could not swear to be the inventor, and the slave could not take an oath at all. The Patent Office denied at least two patent applications filed by slave owners, one of which was filed by Senator Jefferson Davis of Mississippi, who later became the President of the Confederate States of America. But …


The Rule Of Reason, Herbert J. Hovenkamp Jan 2018

The Rule Of Reason, Herbert J. Hovenkamp

All Faculty Scholarship

Antitrust’s rule of reason was born out of a thirty-year (1897-1927) division among Supreme Court Justices about the proper way to assess multi-firm restraints on competition. By the late 1920s the basic contours of the rule for restraints among competitors was roughly established. Antitrust policy toward vertical restraints remained much more unstable, however, largely because their effects were so poorly understood.

This article provides a litigation field guide for antitrust claims under the rule of reason – or more precisely, for situations when application of the rule of reason is likely. At the time pleadings are drafted and even up …


Corporate Law Federalism In Historical Context: Comparing Canada And The United States, Camden Hutchison Jan 2018

Corporate Law Federalism In Historical Context: Comparing Canada And The United States, Camden Hutchison

All Faculty Publications

Although American and Canadian corporate law share many similarities, they are also marked by important institutional differences. Among the most notable are the differing roles of federal versus state/provincial policymaking in the two countries: While American corporate law has been deeply influenced by jurisdictional competition among the states, Canadian law has instead been shaped by federal legislative activity, as seen today in the standardizing influence of the Canada Business Corporations Act. These different institutional histories have led to distinct evolutionary paths, with important substantive consequences for contemporary corporate law. Despite considerable academic attention to the subject of corporate law federalism, …


Corporate Personhood And The History Of The Rights Of Corporations: A Reflection On Adam Winkler’S Book We The Corporations: How American Businesses Won Their Civil Rights, Jack M. Beermann Jan 2018

Corporate Personhood And The History Of The Rights Of Corporations: A Reflection On Adam Winkler’S Book We The Corporations: How American Businesses Won Their Civil Rights, Jack M. Beermann

Faculty Scholarship

Adam Winkler’s book We the Corporations: How American Businesses Won Their Civil Rights is an impressive work on several different levels. Because so much of the development of American constitutional law over the centuries has involved businesses, the book is a nearly comprehensive legal history of federal constitutional law. It certainly would be worthwhile reading for anyone interested in the constitutionality of economic regulation in the United States, spanning the controversies over the first and second Banks of the United States, through the Lochner era and present-day clashes over corporate campaign spending, and religiously-based exemptions to generally applicable laws such …


Excavating The Forgotten Suspension Clause, Helen Norton Jan 2018

Excavating The Forgotten Suspension Clause, Helen Norton

Publications

No abstract provided.


The Right Of Publicity: Privacy Reimagined For New York?, Jennifer E. Rothman Jan 2018

The Right Of Publicity: Privacy Reimagined For New York?, Jennifer E. Rothman

All Faculty Scholarship

This essay is based on a featured lecture that I gave as part of the Cardozo Arts & Entertainment Law Journal’s 2 symposium on a proposed right of publicity law in New York. The essay draws from my recent book, The Right of Publicity: Privacy Reimagined for a Public World, published by Harvard University Press. Insights from the book suggest that New York should not upend more than one hundred years of established privacy law in the state, nor jeopardize its citizens’ ownership over their own names, likenesses, and voices by replacing these privacy laws with a new and independent …


The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin Jan 2018

The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin

All Faculty Scholarship

The Loving Story (Augusta Films 2011), directed by Nancy Buirski, tells the backstory of the groundbreaking U.S. Supreme Court case, Loving v. Virginia, that overturned state laws barring interracial marriage. The article looks to the documentary to explain why the Lovings should be considered icons of racial and ethnic civil rights, however much they might be associated with marriage equality today. The film shows the Lovings to be ordinary people who took their nearly decade long struggle against white supremacy to the nation’s highest court out of a genuine commitment to each other and a determination to live in …


Foreword: Bankruptcy’S New And Old Frontiers, William W. Bratton, David A. Skeel Jr. Jan 2018

Foreword: Bankruptcy’S New And Old Frontiers, William W. Bratton, David A. Skeel Jr.

All Faculty Scholarship

This Symposium marks the fortieth anniversary of the enactment of the 1978 Bankruptcy Code (the “1978 Code” or the “Code”) with an extended look at seismic changes that currently are reshaping Chapter 11 reorganization. Today’s typical Chapter 11 case looks radically different than did the typical case in the Code’s early years. In those days, Chapter 11 afforded debtors a cozy haven. Most everything that mattered occurred within the context of the formal proceeding, where the debtor enjoyed agenda control, a leisurely timetable, and judicial solicitude. The safe haven steadily disappeared over time, displaced by a range of countervailing forces …


The Empty Idea Of “Equality Of Creditors”, David A. Skeel Jr. Jan 2018

The Empty Idea Of “Equality Of Creditors”, David A. Skeel Jr.

All Faculty Scholarship

For two hundred years, the equality of creditors norm—the idea that similarly situated creditors should be treated similarly—has been widely viewed as the most important principle in American bankruptcy law, rivaled only by our commitment to a fresh start for honest but unfortunate debtors. I argue in this Article that the accolades are misplaced. Although the equality norm once was a rough proxy for legitimate concerns, such as curbing self-dealing, it no longer plays this role. Nor does it serve any other beneficial purpose.

Part I of this Article traces the historical emergence and evolution of the equality norm, first …


Doctrinal Reasoning As A Disruptive Practice, Jessie Allen Jan 2018

Doctrinal Reasoning As A Disruptive Practice, Jessie Allen

Articles

Legal doctrine is generally thought to contribute to legal decision making only to the extent it determines substantive results. Yet in many cases, the available authorities are indeterminate. I propose a different model for how doctrinal reasoning might contribute to judicial decisions. Drawing on performance theory and psychological studies of readers, I argue that judges’ engagement with formal legal doctrine might have self-disrupting effects like those performers experience when they adopt uncharacteristic behaviors. Such disruptive effects would not explain how judges ultimately select, or should select, legal results. But they might help legal decision makers to set aside subjective biases.