Legal History Commons^™

How Patents Became Politics, Steven Wilf

Faculty Articles and Papers

Political mobilization in the digital age often coalesces around opposition to the far-reaching protection of intellectual property. Both copyright and patent have materialized as the centerpiece of major political and legal debates that take a variety of forms, including the European pirate parties, NGOs such as the Electronic Frontier Foundation in the United States, and the call for Open Source software. The commonplace narrative is that self-interested stakeholders over the past century successfully fashioned an ever-expanding intellectual property system, and that resistance to such legal control of knowledge only emerged in our times. By contrast, this article recovers a little-known …

Turnover Taxes: Their Origin, Fall From Grace, And Resurrection, Richard Pomp

Faculty Articles and Papers

The turnover tax, a hallmark of developing nations and even once blamed for Spain’s decline, has made a comeback in the states, starting with Ohio.

A turnover tax is a gross receipts tax that is applied every time a good or service “turns over,” that is, every time the good or service transfers from one entity to another for consideration. The tax base is therefore turnover, and the measure of the tax is gross receipts.

In this article, Professor Richard Pomp examines the turnover tax’s deep roots dating back to ancient Athens, and tracks its course from the time the …

Connecticut 1818: From Theocracy To Toleration, Mark Weston Janis

Faculty Articles and Papers

What accounts for the "new" 1818 Connecticut Constitution that repudiated the theocracy of the state and disestablished the Congregationalist Church? The answer is proof positive of Professor Richard Kay's proposition that a constitution, representing the foundation of legal system, is not based on law, but rather on politics, economics, and morality.

Connecticut was one of the last American states to separate church and state, and to provide for religious toleration. The 1818 religiously-tolerant Constitution resulted from three causes. First was the collapse of the political mainstay of the Congregational Church, the Federalist Party, which never recovered public support after sponsoring …

The (Joseph) Stories Of Newmyer And Cover: Hero Or Tragedy?, Jed Handelsman Shugerman

Connecticut Law Review

Kent Newmyer’s classics Supreme Court Justice Joseph Story: Statesman of the Old Republic and John Marshall and the Heroic Age of the Supreme Court are important stories about the architects and heroes of the rule of law in America. In Newmyer’s account, Story played a crucial role preserving the republic and building a legal nation out of rival states, and Newmyer’s Story is fundamentally important for students of American history. But in Robert Cover’s account in Justice Accused on northern judges’ deference to slavery, Story is an anti-hero. Sometimes Story stayed silent. In Prigg v. Pennsylvania, Story overvalued formalistic comity. …

The Emerging Genre Of The Constitution: Kent Newmyer And The Heroic Age, Mary Sarah Bilder

Connecticut Law Review

In written celebration of Kent Newmyer’s intellectual and collegial influence, this Essay argues that the written constitution was an emerging genre in 1787-1789. Discussions of the Constitution and constitutional interpretation often rest on a set of assumptions about the Constitution that arose in the years and decades after the Constitutional Convention. The most significant one involves the belief that a fixed written document was drafted in 1787 intended in our modern sense as A Constitution. This fundamental assumption is historically inaccurate. The following reflections of a constitutionalist first lay out the argument for considering the Constitution as an emerging genre …

Joseph Story’S Republics In A Minor Key: Dark Times And The Astonishing Relevance Of Kent Newmyer, Steven Wilf

Connecticut Law Review

No abstract provided.

American Duality: The Legal History Of Racial Slavery In The United States Of America, Conor A. Scalise

Dissertations and Honors Papers

This paper explores the duality of American law and American culture in the context of American Slavery. On the one hand, White Americans took great pride in the robust and progressive protection of individual liberties and rights guaranteed to them by documents like the Constitution. But, on the other, those same legal documents worked symbiotically with the cultural mores of the day to create and sustain a system that enslaved African Americans for generations. This paper starts with an analysis on the origins of racial slavery in colonial America, which emphasizes the insidious function of the law and preconceptions about …

Review Of Colin Calloway, Pen And Ink Witchcraft: Treaties And Treaty Making In American Indian History, Bethany Berger

Faculty Articles and Papers

No abstract provided.

Review, From Industrial To Legal Standardization, 1871-1914: Transnational Insurance Law And The Great San Francisco Earthquake, Sachin Pandya

Faculty Articles and Papers

No abstract provided.

The First Liability Insurance Cartel In America, 1896-1906, Sachin S. Pandya

Faculty Articles and Papers

This article studies the rise and fall of the first liability insurance cartel in the United States. In 1886, insurance companies in America began selling liability insurance for personal injury accidents, primarily to cover business tort liability for employee accidents at work and non-employee injuries occasioned by their business operations. In 1896, the leading liability insurers agreed to fix premium rates and share information on policyholder losses. In 1906, this cartel fell apart. Although largely forgotten until now, the rise and fall of this cartel confirms the expectations of both cartel theory and past studies of insurance cartels, largely in …

Copyright And Social Movements In Late Nineteenth-Century America, Steven Wilf

Faculty Articles and Papers

The cultural turn in copyright law identified authorship as a rhetorical construct employed by economic interests as a mechanism to establish claims to property rights. Grassroots intellectual property political movements have been seen as both a means of countering these interests’ ever-expanding proprietary control of knowledge and establishing a more public regarding copyright system. This Article examines one of the most notable intellectual property political movements, the emergence of late nineteenth-century agitation to provide copyright protection for foreign authors as a social movement. It places this political and legal activism within the larger framework of Progressive Era reform. During this …

Law/Text/Past, Steven Wilf

Faculty Articles and Papers

How might legal historians read text? What is particular about their modes of reading as opposed to those employed by readers in other disciplines? This essay will analyze the distinctive features of legal texts such as those stemming from the pervasive reliance upon conventions or boilerplate as part of a bricolage construction, the focus upon legitimizing gestures to official authority, and the normative, almost instrumental nature of many legal texts. While other sorts of texts might be more expressive, statutes, for example, always include a sanction. Drawing upon numerous examples, the paper identifies an expansive array of texts, including extra-official …

The United States And International Law: The United Nations Finds A Home, Mark Weston Janis

Faculty Articles and Papers

No abstract provided.

The Language Of Lives, Jill Anderson

Faculty Articles and Papers

No abstract provided.

The Invention Of Legal Primitivism, Steven Wilf

Faculty Articles and Papers

This Article addresses a different sort of legal transplant - one in which outside legal doctrines are imported in order to be cabined, treated as normative counterpoints, and identified as the legal other. Legal primitivism is a kind of anti-transplant. It heightens the persistent differences between a dominant legal system and its understanding of primitive rules. An often ignored legal literature depicting legal primitivism emerged in the second half of the nineteenth century and in the early twentieth century. Mapping the differences between America’s modern legal system and its antecedents, this immense literature, which included works by Oliver Wendell Holmes, …

Unchaste And Incredible: The Use Of Gendered Conceptions Of Honor In Impeachment, Julia Simon-Kerr

Faculty Articles and Papers

This paper demonstrates that the American rules for impeaching witnesses developed against a cultural background that equated a woman's honor, and thus her credibility, with her sexual virtue. The idea that a woman's chastity informs her credibility did not originate in rape trials and the confusing interplay between questions of consent and sexual history. Rather, gendered notions of honor so permeated American legal culture that attorneys routinely attempted to impeach female witnesses by invoking their sexual histories in cases involving such diverse claims as title to land, assault, arson, and wrongful death. But while many courts initially accepted the notion …

The Making Of The Post-War Paradigm In American Intellectual Property Law, Steven Wilf

Faculty Articles and Papers

During the New Deal period, intellectual property underwent a transformation. Copyright was recast from literary property to industrial property; trademark shifted from a common law tort of palming off to a regulatory regime for a mass consumer economy, and patent law was rethought to accommodate corporate invention. This essay begins by examining the advantages of looking at intellectual property as deeply situated in New Deal debates over political economy, and calls for a new history of intellectual property very different from conventional narratives moored in the introduction of new technologies. More broadly, it suggests that examining foundational past policy debates, …

How 'Wilsonian' Was Woodrow Wilson, Mark Weston Janis

Faculty Articles and Papers

This essay reveals how President Woodrow Wilson's passion for international law slowly developed over several stages in his life from his professorship at Princeton to his presidency. By exploring Wilson's conversion from a skeptic of international law to one of its greatest proponents, the author shows how Wilson's world view shaped American foreign policy and the political landscape.

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 …

Some Thoughts On Herb Johnson's Favorite Court, R. Kent Newmyer

Faculty Articles and Papers

No abstract provided.

The Transformation Of Modern Corporation Law: The Law Of Corporate Groups, Phillip Blumberg

Faculty Articles and Papers

No abstract provided.

Getting Right With The Great Chief Justice, R. Kent Newmyer

Faculty Articles and Papers

No abstract provided.

John Marshall, Mcculloch V. Maryland, And The Southern States' Rights Tradition, R. Kent Newmyer

Faculty Articles and Papers

No abstract provided.

Review, Inherent Rights, The Written Constitution, And Popular Sovereignty: The Founders' Understanding, Richard Kay

Faculty Articles and Papers

Reviewing Thomas B. McAffee, Inherent Rights, the Written Constitution, and Popular Sovereignty: The Founders' Understanding. Westport, Conn.: Greenwood Press, 2000

John Marshall As An American Original: Some Thoughts On Personality And Judicial Statesmanship, R. Kent Newmyer

Faculty Articles and Papers

No abstract provided.

Chief Justice Marshall In The Context Of His Times, R. Kent Newmyer

Faculty Articles and Papers

No abstract provided.

Dealing With Diversity: Changing Theories Of Discrimination, Deborah Calloway

Faculty Articles and Papers

No abstract provided.

Imagining Justice: Aesthetics And Public Executions In Late Eighteenth-Century England, Steven Wilf

Faculty Articles and Papers

No abstract provided.

Soia Mentschikoff And Karl Llewellyn: Moving Together To The University Of Chicago Law School, Robert Whitman

Faculty Articles and Papers

No abstract provided.

Review, Imperial Appeal: The Debate On The Appeal To The Privy Council, 1833-1986, Richard Kay

Faculty Articles and Papers

No abstract provided.