Legal History Commons^™

Book Review L Boats In A Storm: Law, Migration, And Decolonization In South And Southeast Asia, 1942–1962 By Kalyani Ramnath (Stanford University Press 2023), Anwesha Ghosh

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Kalyani Ramnath’s Boats in a Storm undertakes the formidable task of retelling the histories of decolonisation in India, Burma, Malaya, and Ceylon using characters who would rarely fit the description of conventional historical actors. Ramnath departs from the rich political and diplomatic histories that celebrate the independence of nation states from the yoke of imperial rule. Instead, she focuses on the ways in which these states, with their newly re-instituted legislative, juridical, and bureaucratic regimes, wreaked havoc on the lives of itinerant migrants who straddled between ‘homes’ and places of work across the Bay of Bengal and eastern Indian Ocean …

Unreasonable Risk: The Failure To Ban Asbestos And The Future Of Toxic Substances Regulation, Rachel Rothschild

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Every day, Americans are exposed to hundreds of chemicals in the air we breathe, the water we drink, and the products we use. The vast majority of these chemicals have never been tested far safety. Many have been shown to cause serious health harms, ranging.from cancer to autoimmune illness to IQ loss. They also have disproportionate effects on some of the most vulnerable populations in our society, such as children, minorities, and industrial workers.

The law that is supposed to protect Americans from dangerous chemical exposures-the Toxic Substances Control Act ("TSCA")-was long considered a dead letter after the Environmental Protection …

The Not-So-Standard Model: Reconsidering Agency-Head Review Of Administrative Adjudication Decisions, Rebecca S. Eisenberg, Nina A. Mendelson

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The Supreme Court has invalidated multiple legislative design choices for independent agency structures in recent years, citing Article II and the need for political accountability through presidential control of agencies. In United States v. Arthrex, Inc., the Court turned to administrative adjudication, finding an Appointments Clause violation in the assignment of certain final patent adjudication decisions to appellate panels of unconfirmed administrative patent judges. As a remedy, a different majority declared unenforceable a statutory provision that had insulated Patent and Trademark Office (PTO) administrative adjudication decisions from political review for almost a century. The Court thereby enabled the politically appointed …

Delegation At The Founding: A Response To Critics, Julian Davis Mortenson, Nicholas Bagley

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This essay responds to the wide range of commentary on Delegation at the Founding, published previously in the Columbia Law Review. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive effect. To the contrary: Depending on the relationships you chose to emphasize, a given act could properly be classified as both legislative (from the perspective of the immediate actor) and also executive (from the perspective …

Disaggregating Slavery And The Slave Trade, Jocelyn Getgen Kestenbaum

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International law prohibits slavery and the slave trade as peremptory norms, customary international law prohibitions and crimes, humanitarian law prohibitions, and non-derogable human rights. Human rights bodies, however, focus on human trafficking, even when slavery and the slave trade—and not human trafficking—are enumerated within their mandates. International human rights law has conflated human trafficking with slavery and the slave trade. Consequently, human trafficking has subsumed the slave trade and, at times, slavery prohibitions, increasing perpetrator impunity for slavery and the slave trade abuses and denying full expressive justice to survivors.

This Article disaggregates slavery from the slave trade and slavery …

Lawyering The Presidency, Deborah Pearlstein

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Among its many profound effects on American life, the Trump presidency has triggered a surge of interest in the project of law reform to better check the exercise of presidential power. Yet these reform efforts arise against a wholly unsettled debate about the function and effectiveness of existing checks, perhaps none more so than the role of executive branch legal counsel. With courts often deferential, and Congress hamstrung by partisan polarization, scholars have drawn on the experiences of executive branch lawyers to assess whether counsel functions as part of an “internal separation of powers” form of constraint. Yet while these …

The Lost Cause Of Free Speech, Mary Anne Franks

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No abstract provided.

Not Just The Historians: Anne Orford’S Insights And The Suspicion Between International Law And Philosophy, Steven R. Ratner

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International Law and the Politics of History is nothing short of cri de coeur directed at international lawyers and historians, the two disciplinary co-conspirators in international law's so-called turn to history. Rather than embracing what appears to be a mutually beneficial model of interdisciplinary collaboration, Anne Orford instead sees international lawyers as evading their responsibilities as decisionmakers-and indeed makers of both the discipline and its underlying norms-and historians as self-satisfied purveyors of truths that they themselves know are contested and instrumental. As much as she blames historians for acting with blinders, her main audience is international lawyers (mostly the academic …

Willard Hurst, Technological Changes, And The Transformation Of American Public Law, William J. Novak

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As Sociobiologist E.O. Wilson once famously framed the “problem of humanity”: “We have paleolithic emotions; medieval institutions; and god-like technology.” America’s greatest philosopher John Dewey similarly placed this yawning gap between rapidly expanding technological change and slowly evolving human emotions and institutions at the heart of what he called The Public and Its Problems. Indeed, Dewey traced the origins of the modern American state as well as what he termed “the Great Society” to the new and modern technologies in production and commerce and steam and electricity that “resulted in a social revolution.” Without warning, Dewey argued, traditional local communities …

Chapter Eight - Technology And The Law: The Automobile (By James Willard Hurst), Bj Ard, William J. Novak

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In this chapter we are going to talk about some of the automobile effects that it has had. Upon the law, and some of the effects that the law has had upon the automobile. We could undoubtedly open up some worthwhile lines of thought, if we talked about the automobile in relation to, certain brooder problems of which it is a part: for example, the effects of the internal combustion the growth engine, or of all types of communication. But we shall have enough on our hands if we stick to the automobile, and even so in the limits of …

The Future Of Securities Law In The Supreme Court, Adam C. Pritchard, Robert B. Thompson

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Since the enactment of the first federal securities statute in 1933, securities law has illustrated key shifts in the Supreme Court’s jurisprudence. During the New Deal, the Court’s securities law decisions shifted almost overnight from open hostility toward the newly-expanded administrative state to broad deference to agency expertise. In the 1940s, securities cases helped build the legal foundation for a broadly enabling administrative law. The 1960s saw the Warren Court creating new implied rights of action in securities law illustrative of the Court’s approach to statutes generally. The stage seemed set for the rise of “federal corporate law.” The Court …

Rural Social Safety Nets For Migrant Farmworkers In Michigan, 1942–1971, Emily A. Prifogle

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In the 1960s, farmers pressed trespass charges against aid workers providing assistance to agricultural laborers living on the farmers’ private property. Some of the first court decisions to address these types of trespass, such as the well-known and frequently taught State v. Shack (1971), limited the property rights of farmers and enabled aid workers to enter camps where migrants lived. Yet there was a world before Shack, a world in which farmers welcomed onto their land rural religious groups, staffed largely by women from the local community, who provided services to migrant workers. From the 1940s through the 1960s, federal, …

The Federalist Constitution: Foreword, David S. Schwartz, Jonathan Gienapp, John Mikhail, Richard A. Primus

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Over the past twenty years, constitutional law has taken a decidedly historical turn, both in academia and in the courts. The U.S. Supreme Court’s constitutional decisions are increasingly filled with extended historical inquiries, and not just by self-described originalists. Yet much of this historical inquiry is severely distorted. Twenty-first-century lawyers and judges enjoy improved and ever-widening access to a rich array of primary sources from the founding era and the early republic, but the ability of modern interpreters to make sense of these materials is pervasively affected by present biases. Many of these biases stem directly from long-standing received narratives …

Delegation At The Founding, Julian Davis Mortenson, Nicholas Bagley

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This article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power---let alone by empowering the judiciary to police legalized limits. To the contrary, the overwhelming majority of Founders didn’t see anything wrong with delegations as a matter of legal theory. The formal account just wasn’t that complicated: Any particular use of coercive rulemaking authority could readily be characterized as the exercise of either executive or legislative power, and was thus formally valid regardless …

Symposium: Diamond Anniversary: 75 Years Of The Lanham Act, Jessica Litman

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Thank you so much for inviting me. I think this is my fifth or sixth event with the Arts and Entertainment Law Journal. It’s always lots of fun, and I learn a lot. I’ve been spending the last couple of months doing a deep dive into everything Edward Sidney Rogers with no real agenda. I’m exploring what’s there, to see if there are any interesting stories I might tell. I found a few, so this afternoon I’ll tell one of them. I want to start with the mundane observation that intellectual prop-erty and intellectual property law are global. We’ve seen …

Labor’S New Localism, Andrew Elmore

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Millions of workers in the United States, disproportionately women, immigrants, and people of color, perform low-paid, precarious work. Few of these workers can improve their workplace standards because the National Labor Relations Act ("NLRA") does not sufficiently protect their right to form unions and collectively bargain. Lacking sufficient influence in federal and state government to strengthen labor and employment law, unions and worker centers have increasingly sought to build power in cities. The shift to local labor lawmaking has delivered local minimum wage, paid sick leave, and fair scheduling ordinances covering millions of low-wage workers, as well as groundbreaking unionization …

Stanley Surrey, The 1981 Us Model, And The Single Tax Principle, Reuven S. Avi-Yonah

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2021 marks the fortieth anniversary of the 1981 US Model Tax Treaty as well as the fifth anniversary of the 2016 US Model Tax Treaty. The first author has repeatedly argued that the 1981 Model gave life to the single tax principle (‘STP’). The 2016 Model updates effectively implemented the principle that cross-border income should be taxed once – that is not more and but also not less than once. For example, the 2016 Model does not reduce withholding taxes on payments of highly mobile income that are made to related persons that enjoy low or no taxation with respect …

Kings, Lords And Courts In Anglo-Norman England, Robert Hirshon

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This is an important book, filling a significant gap in scholarship on late Anglo-Saxon and Anglo-Norman law, lordship, and administration. Its primary focus is on the hundred court and its relationship to lords’ local courts. Nicholas Karn argues (204) that, following the creation of shires and hundreds across England in the tenth century, by the middle of the eleventh “the unitary model of the hundred was starting to break down, and decay accelerated and became general into the twelfth century.” Lords either “claimed whole hundreds themselves, or they created lesser units which were originally subsets of hundreds and which were …

Playing At The Crossroads Of Religion And Law: Historical Milieu, Context And Curriculum Hooks In Lost & Found, Owen Gottlieb

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This chapter presents the use of Lost & Found – a purpose-built tabletop to mobile game series – to teach medieval religious legal systems. The series aims to broaden the discourse around religious legal systems and to counter popular depiction of these systems which often promote prejudice and misnomers. A central element is the importance of contextualizing religion in period and locale. The Lost & Found series uses period accurate depictions of material culture to set the stage for play around relevant topics – specifically how the law promoted collaboration and sustainable governance practices in Fustat (Old Cairo) in twelfth-century …

The Executive Branch Anticanon, Deborah Pearlstein

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Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …

The Support-Or-Advocacy Clauses, Richard Primus, Cameron O. Kistler

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Two little known clauses of a Reconstruction-era civil rights statute are potentially powerful weapons for litigators seeking to protect the integrity of federal elections. For the clauses to achieve their potential, however, the courts will need to settle correctly a contested question of statutory interpretation: do the clauses create substantive rights, or do they merely create remedies for substantive rights specified elsewhere? The correct answer is that the clauses create substantive rights.

Designing Analog Learning Games: Genre Affordances, Limitations And Multi-Game Approaches, Owen Gottlieb, Ian Schreiber

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This chapter explores what the authors discovered about analog games and game design during the many iterative processes that have led to the Lost & Found series, and how they found certain constraints and affordances (that which an artifact assists, promotes or allows) provided by the boardgame genre. Some findings were counter-intuitive. What choices would allow for the modeling of complex systems, such as legal and economic systems? What choices would allow for gameplay within the time of a class-period? What mechanics could promote discussions of tradeoff decisions? If players are expending too much cognition on arithmetic strategizing, could that …

Herein Of 'Herein Granted': Why Article I'S Vesting Clause Does Not Support The Doctrine Of Enumerated Powers, Richard A. Primus

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Article I of the United States Constitution begins as follows: “All legislative Powers herein granted shall be vested in a Congress of the United States[.]” That text is sometimes called the Vesting Clause, or, more precisely, the Article I Vesting Clause, because Articles II and III also begin with Vesting Clauses. And there is a feature of those three clauses, when compared, to which twenty-first century constitutional lawyers commonly attribute considerable significance. Although the three Clauses are similar in other ways, the syntax of Article I’s Vesting Clause is not fully parallel to that of the other two. The Vesting …

Discerning A Dignitary Offense: The Concept Of Equal 'Public Rights' During Reconstruction, Rebecca J. Scott

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The mountain of modern interpretation to which the language of the Fourteenth Amendment of the United States Constitution has been subjected tends to overshadow the multiple concepts of antidiscrimination that were actually circulating at the time of its drafting. Moreover, as authors on race and law have pointed out, Congress itself lacked any African American representatives during the 1866–68 moment of transitional justice. The subsequent development of a “state action doctrine” limiting the reach of federal civil rights enforcement, in turn, eclipsed important contemporary understandings of the harms that Reconstruction-era initiatives sought to combat. In contrast to the oblique language …

Winks, Whispers, And Prosecutorial Discretion In Rural Iowa, 1925-1928, Emily Prifogle

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Through the eyes of Charles Pendleton’s memoirs, this article walks through a rural community with a county attorney to consider how race, religion, gender, and sexuality influenced rural prosecutorial discretion in the early twentieth century. Rural communities like those in Buena Vista County, Iowa, where the article is centered, experienced “the law” through distinctly isolated geographies and social networks that lacked anonymity and thus shaped available methods of conflict resolution. But anonymity did not mean homogeneity. Ethnic, racial, and religious diversity created divisions within a community where social distance between individuals was small. Both onymity and diversity shaped who should …

Missing In Action: The International Crime Of The Slave Trade, Patricia Viseur Sellers, Jocelyn Getgen Kestenbaum

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The slave trade prohibition is among the first recognized and least prosecuted international crimes. Deftly codified in, inter alia, the 1926 Slavery Convention, the 1956 Supplementary Convention, Additional Protocol II to the Geneva Conventions (AP II), the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, the norm against the slave trade — the precursor to slavery — stands as a peremptory norm, a crime under customary international law, a humanitarian law prohibition and a non-derogable human right. Acts of the slave trade remain prevalent in armed conflicts, including those committed under the Islamic State …

Acts Of Meaning, Resource Diagrams, And Essential Learning Behaviors: The Design Evolution Of Lost & Found, Owen Gottlieb, Ian Schreiber

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Lost & Found is a tabletop-to-mobile game series designed for teaching medieval religious legal systems. The long-term goals of the project are to change the discourse around religious laws, such as foregrounding the prosocial aspects of religious law such as collaboration, cooperation, and communal sustainability. This design case focuses on the evolution of the design of the mechanics and core systems in the first two tabletop games in the series, informed by over three and a half years’ worth of design notes, playable prototypes, outside design consultations, internal design reviews, playtests, and interviews.

A Hidden Technological Assumption In Patent Law: The Case Of Gene Patents And The Disclosure Requirement, Or Cohen Sasson

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The disclosure requirement in patent law is designed to reveal knowledge regarding a patented invention to allow proper understanding and utilization of that invention. The contention offered here is the presence of an inherent incompatibility between the disclosure requirement and genetic inventions. Genetic inventions are highly contingent on genetic statistical data (GSD), which is gathered during the commercial phase of a genetic invention. GSD are essential for various purposes, which at least some should be satisfied by the disclosure. However, since GSD can be gathered only at the postapplication period, GSD are not disclosed through the disclosure requirement. Therefore, there …

New Textualism And The Thirteenth Amendment, Leah Litman

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Michele Goodwin’s piece raises important questions about whether troubling modern-day labor practices in jails and prisons are consistent with the Thirteenth Amendment. In Goodwin’s telling, the ratification of the Thirteenth Amendment formally ended the institution of slavery, but the Amendment allowed practices resembling slavery to continue, perhaps reflecting the extant stereotypes and racism that formally amending the Constitution cannot root out. Indeed, Goodwin excavates historical materials that suggest the people who drafted and ratified the Amendment understood and expected that it would allow the perpetuation of slavery in another form. As Goodwin explains, most historians have argued that the Thirteenth …

E-Notice And Comment On Due Process, Sergio J. Campos

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No abstract provided.