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Full-Text Articles in Legal History

Berle’S Vision Beyond Shareholder Interests: Why Investment Bankers Should Have (Some) Personal Liability, Claire Hill, Richard Painter Jan 2010

Berle’S Vision Beyond Shareholder Interests: Why Investment Bankers Should Have (Some) Personal Liability, Claire Hill, Richard Painter

Seattle University Law Review

This essay, published in a symposium on the work of Adolf Berle, approaches the Berle-Dodd debate from the perspective that corporate managers have responsibilities beyond pursuing the interests of shareholders. Stock based executive compensation, designed to align managers’ interests with those of shareholders, has, in the investment banking industry in particular, failed to avert, and may have caused, managers (in this case, bankers) to take excessive risks that in the present financial crisis inflicted great damage on creditors and on society as a whole. We describe here the broad outlines of a proposal that we will discuss in future publications …

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Enumerating Old Themes? Berle’S Concept Of Ownership And The Historical Development Of English Company Law In Context, Lorraine E. Talbot Jan 2010

Enumerating Old Themes? Berle’S Concept Of Ownership And The Historical Development Of English Company Law In Context, Lorraine E. Talbot

Seattle University Law Review

This paper offers some tentative suggestions as to why Berle’s work has been read and interpreted so selectively in the United Kingdom. I suggest that this must be partly attributable to the historical developments in English company law that entrenched the notion of shareholder ownership claims. Specifically, unincorporated associations’ normative values—that members are owners and there is no distinction between small organizations with no share dispersal and large organizations with wide share dispersal—have a continuing influence on this entrenched notion of shareholder ownership claims. First, I provide an overview of the origins of English company law. Next, I address how …

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Review Of Understanding Labor And Employment Law In China, By Ronald C.Brown, Nicholas C. Howson Jan 2010

Review Of Understanding Labor And Employment Law In China, By Ronald C.Brown, Nicholas C. Howson

Reviews

Any attempt to analyze China’s comprehensive labor reform over the past three decades faces at least two dilemmas. First, the analyst must confront the task of describing how the Chinese state has dismantled the “work unit” (or danwei)- based “iron rice bowl” employment and entitlements system, replacing that comforting but low-production employment and social security scheme with formally-proclaimed legal rights and institutions apparently designed to protect employees in a functioning labor market. Second, the analyst must track how the state’s commitment (at all levels of government) to implementation of proclaimed legal and institutional protections has waxed and waned, based upon …

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Ugly American Hermeneutics, Francis J. Mootz Iii Jan 2010

Ugly American Hermeneutics, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

No abstract provided.

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Perelman's Theory Of Argumentation And Natural Law, Francis J. Mootz Iii Jan 2010

Perelman's Theory Of Argumentation And Natural Law, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

No abstract provided.

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Is The Law Hopeful?, Annelise Riles Jan 2010

Is The Law Hopeful?, Annelise Riles

Cornell Law Faculty Working Papers

This essay asks what legal studies can contribute to the now vigorous debates in economics, sociology, psychology, philosophy, literary studies and anthropology about the nature and sources of hope in personal and social life. What does the law contribute to hope? Is there anything hopeful about law? Rather than focus on the ends of law (social justice, economic efficiency, etc.) this essay focuses instead on the means (or techniques of the law). Through a critical engagement with the work of Hans Vaihinger, Morris Cohen and Pierre Schlag on legal fictions and legal technicalities, the essay argues that what is “hopeful” …

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"The Sole Right ... Shall Return To The Authors": Anglo-American Authors' Reversion Rights From The Statute Of Anne To Contemporary U.S. Copyright, Lionel Bently, Jane C. Ginsburg Jan 2010

"The Sole Right ... Shall Return To The Authors": Anglo-American Authors' Reversion Rights From The Statute Of Anne To Contemporary U.S. Copyright, Lionel Bently, Jane C. Ginsburg

Faculty Scholarship

The rise in the seventeenth and eighteenth centuries of a professional class of writers stimulated authors' demands for better remuneration from their writings. The increase in authors who sought to live from their work, rather than from patronage or personal fortune, likely provided at least one impulse for the author-protective provisions of the 1710 Statute of Anne. Under the regime of printing privileges that preceded the Statute of Anne, authors generally received from publisher-booksellers a one-time payment, made when the authors surrendered their manuscripts for publication. Authors whose works enjoyed particularly high demand might negotiate additional payments for new editions …

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The Origin Of Citizen Genet’S Projected Attack On Spanish Louisiana: A Case Study In Girondin Politics, Jud Campbell Jan 2010

The Origin Of Citizen Genet’S Projected Attack On Spanish Louisiana: A Case Study In Girondin Politics, Jud Campbell

Law Faculty Publications

In 1792 the Girondin ministry decided to send Edmond Genet to the United States with plans to recruit western frontiersmen and invade Spanish Louisiana. The episode is well known in American history, but the literature on its French origin is sparse and overemphasizes the contribution of revolutionary leader Jacques- Pierre Brissot. This essay contextualizes the French decision within the debate between Brissot, Minister of Foreign Affairs Pierre Lebrun, and General Charles-François Dumouriez over whether France should send troops against Spanish colonies in South America. The essay argues that Lebrun promoted the western scheme in order to attack Spanish interests without …

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When The Supreme Court Came To Michigan, Leonard M. Niehoff Jan 2010

When The Supreme Court Came To Michigan, Leonard M. Niehoff

Articles

It is an arcane and curious chapter in the history of the federal courts. Under the terms of the Judiciary Act of 1789, the members of the Supreme Court of the United States were obligated to travel around the country and hear cases that were brought before the lower courts in their assigned circuits. This resulted in what the justices condemned as a "painful and improper situation. "

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The Functions Of Ethical Originalism, Richard A. Primus Jan 2010

The Functions Of Ethical Originalism, Richard A. Primus

Articles

Supreme Court Justices frequently divide on questions of original meaning, and the divisions have a way of mapping what we might suspect are the Justices’ leanings about the merits of cases irrespective of originalist considerations. The same is true for law professors and other participants in constitutional discourse: people’s views of original constitutional meaning tend to align well with their (nonoriginalist) preferences for how present constitutional controversies should be resolved. To be sure, there are exceptions. Some people are better than others at suspending presentist considerations when examining historical materials, and some people are better than others at recognizing when …

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A Tale Of Two Paradigms: Judicial Review And Judicial Duty, Philip A. Hamburger Jan 2010

A Tale Of Two Paradigms: Judicial Review And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

What is the role of judges in holding government acts unconstitutional? The conventional paradigm is "judicial review." From this perspective, judges have a distinct power to review statutes and other government acts for their constitutionality. The historical evidence, however, reveals another paradigm, that of judicial duty. From this point of view, presented in my book Law and Judicial Duty, a judge has an office or duty, in all decisions, to exercise judgment in accord with the law of the land. On this understanding, there is no distinct power to review acts for their constitutionality, and what is called "judicial review" …

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Blackstone's Ninth Amendment: A Historical Common Law Baseline For The Interpretation Of Unenumerated Rights, Jeffrey D. Jackson Jan 2010

Blackstone's Ninth Amendment: A Historical Common Law Baseline For The Interpretation Of Unenumerated Rights, Jeffrey D. Jackson

Oklahoma Law Review

No abstract provided.

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The Dean Takes His Stand: Julien Monnet’S 1912 Harvard Law Review Article Denouncing Oklahoma’S Discriminatory Grandfather Clause, Harry F. Tepker Jr. Jan 2010

The Dean Takes His Stand: Julien Monnet’S 1912 Harvard Law Review Article Denouncing Oklahoma’S Discriminatory Grandfather Clause, Harry F. Tepker Jr.

Oklahoma Law Review

No abstract provided.

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The Invention Of Common Law Play Right, Jessica D. Litman Jan 2010

The Invention Of Common Law Play Right, Jessica D. Litman

Articles

This Article explores playwrights' common law "play right." Since this conference celebrates the 300th birthday of the Statute of Anne, I begin in England in the 17th Century. I find no trace of a common law playwright's performance right in either the law or the customary practices surrounding 17th and 18th century English theatre. I argue that the nature and degree of royal supervision of theatre companies and performance during the period presented no occasion (and, indeed, left no opportunity) for such a right to arise. I discuss the impetus for Parliament's enactment of a performance right statute in 1833, …

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Wartime Prejudice Against Persons Of Italian Descent: Does The Civil Liberties Act Of 1988 Violate Equal Protection?, Joseph C. Mauro Jan 2010

Wartime Prejudice Against Persons Of Italian Descent: Does The Civil Liberties Act Of 1988 Violate Equal Protection?, Joseph C. Mauro

Michigan Journal of Race and Law

Most people know that the United States interned persons of Japanese descent during World War II. Few people know, however, that the government interned persons of German and Italian descent as well. In fact, the internment was part of a larger national security program, in which the government classified non-citizens of all three ethnicities as "enemy aliens" and subjected then to numerous restrictions, including arrest, internment, expulsion from certain areas, curfews, identification cards, loss of employment, and restrictions on travel and property. Four decades after the war, Congress decided to compensate persons of Japanese descent who had been "deprived of …

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"The Prejudice Of Caste": The Misreading Of Justice Harlan And The Ascendency Of Anticlassificaiton, Scott Grinsell Jan 2010

"The Prejudice Of Caste": The Misreading Of Justice Harlan And The Ascendency Of Anticlassificaiton, Scott Grinsell

Michigan Journal of Race and Law

This Article reconsiders the familiar reading of Justice Harlan's dissent in Plessy v. Ferguson as standing for the principle of constitutional colorblindness by examining the significance of Harlan's use of the metaphor "caste" in the opinion. By overlooking Harlan's invocation of "caste," it argues that conservative proponents of anticlassification have reclaimed the opinion for "colorblindness," and buried a powerful statement of the antisubordination principle that is at the heart of our equality law. The Article begins by examining the emergence of a reading of the opinion as articulating a view of equality law based in anticlassification. The Article then returns …

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Ugly American Hermeneutics, Francis J. Mootz Iii Jan 2010

Ugly American Hermeneutics, Francis J. Mootz Iii

Nevada Law Journal

This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the "ugly American" hermeneutics exemplified in Justice Scalia's opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia's hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud.

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The Third Wave's Break From Feminism, Bridget J. Crawford Jan 2010

The Third Wave's Break From Feminism, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Janet Halley proves that third-wave feminism is wrong - wrongly described, that is. Young feminists in the United States tout a "third wave" of feminism that is hip, ironic and playful - the supposed opposite of the dour and strident "second wave" of 1970's feminism. Goodbye frumpy sandals; hello sexy fishnets, according to third-wave feminism. Initially young women themselves (and now writers and scholars) embraced a pervasive wave metaphor to convey the belief that differences within feminism are generational. Youth crashes against (and ultimately overtakes) its elders. But rifts within feminism cannot be so neatly explained. The story is more …

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Monitoring To Reduce Agency Costs: Examining The Behavior Of Independent And Non-Independent Boards, Anita Anand, Frank Milne, Lynnette Purda Jan 2010

Monitoring To Reduce Agency Costs: Examining The Behavior Of Independent And Non-Independent Boards, Anita Anand, Frank Milne, Lynnette Purda

Seattle University Law Review

Berle and Means’s analysis of the corporation—in particular, their view that those in control are not the owners of the corporation—raises questions about actions that corporations take to counter concerns regarding management’s influence. What mechanisms, if any, do corporations implement to balance the distribution of power in the corporation? To address this question, we analyze boards of directors’ propensity to voluntarily adopt recommended corporate governance practices. Because board independence is one way to enhance shareholders’ ability to monitor management, we probe whether firms with independent boards of directors (which we define as boards with either an independent chair or a …

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Not Undertaking The Almost-Impossible Task: The 1961 Wire Act’S Development, Initial Applications, And Ultimate Purpose, David G. Schwartz Jan 2010

Not Undertaking The Almost-Impossible Task: The 1961 Wire Act’S Development, Initial Applications, And Ultimate Purpose, David G. Schwartz

Library Faculty Research

For a Camelot-era piece of legislation, the Wire Act has a long and unintended shadow. Used haltingly in the 1960s, when the Wire Act failed to deliver the death blow to organized crime, 1970’s Racketeer-Influenced and Corrupt Organizations Act (RICO) became a far better weapon against the mob. Yet starting in the 1990s, the Wire Act enjoyed a second life, when the Justice Department used to it prosecute operators of online betting Web sites that, headquartered in jurisdictions where such businesses were legal, took bets from American citizens. The legislative history of the Wire Act, however, suggests that it was …

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Decolonization, Development, And Denial, Natsu Taylor Saito Jan 2010

Decolonization, Development, And Denial, Natsu Taylor Saito

Faculty Publications By Year

No abstract provided.

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Another Early Pennsylvania Legal Periodical: Journal Of Jurisprudence (1821), Joel Fishman Jan 2010

Another Early Pennsylvania Legal Periodical: Journal Of Jurisprudence (1821), Joel Fishman

Law Faculty Publications

In 1821, John Hall published the Journal of Jurisprudence, "a new series of The American Law Journal." It is sometimes cited under the former title or as volume seven of the American Law Journall that was the first law periodical published in the United States. The new volume had 542 pages, divided into three issues of 136, 136, and 270 pages. Mathew Carey & Son, one of the leading Philadelphia printers of early, nineteenth-century Philadelphia,2 was the printer of the Journal. In antebellum Pennsylvania, Philadelphia served as a major printing center,3 hosting a number of …

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Researching Georgia Legislative History, Carol Watson Jan 2010

Researching Georgia Legislative History, Carol Watson

Articles, Chapters and Online Publications

Attorneys often seek Georgia legislative history when trying to clarify a vague statute, determine the intent of the legislature or trace a law’s amendments over time. Although sometimes difficult to compile, Georgia legislative history tidbits can be gathered by consulting a variety of resources.

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Securities Intermediaries And The Separation Of Ownership From Control, Jill E. Fisch Jan 2010

Securities Intermediaries And The Separation Of Ownership From Control, Jill E. Fisch

Seattle University Law Review

The Modern Corporation & Private Property is a paradigm-shifting analysis of the modern corporation. The book is perhaps best known for the insights of Berle and Means about the separation of ownership from control and the consequences of that separation for the allocation of power within the corporation. The Berle and Means story focuses on the shareholder as the owner of the corporation. Berle and Means saw the mechanism of centralized management—in which the shareholder retains the economic interest but not the control rights associated with ownership—as threatening the conception of shareholder interests in terms of property rights. In particular, …

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The Modern Corporation As Social Construction, Mark S. Mizruchi, Daniel Hirschman Jan 2010

The Modern Corporation As Social Construction, Mark S. Mizruchi, Daniel Hirschman

Seattle University Law Review

Classic works, Mark Mizruchi and Lisa Fein argued, share a particular fate. Authors often cite classic works without reading them—or without reading them carefully. . . . Yet perhaps no single work fits the above description better than one of the most important books on the large corporation ever published: Adolf Berle and Gardiner Means’s The Modern Corporation and Private Property. One can speculate that few works in the social sciences have been as often cited and as little read. As a consequence, we would expect The Modern Corporation to be a good candidate for either selective interpretation or …

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Law And The Social Control Of American Capitalism, William J. Novak Jan 2010

Law And The Social Control Of American Capitalism, William J. Novak

Articles

This Essay is part of a larger, ongoing investigation of the role of law in the creation of a modern American state from 1877 to 1932. That project charts the decline of an early nineteenth-century world of local, common law self government (what I called in a previous work a “well-regulated society”) and the rise of a distinctly modern administrative regulatory state in the United States. This new legal-political regime was rooted in three interlinked developments: the centralization of public power; the individualization of private right; and the constitutionalization of the rule of law. Beginning soon after the Civil War, …

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Mulieris Dignitatem And The Exclusivity Of Marriage Under Law, Howard Bromberg Jan 2010

Mulieris Dignitatem And The Exclusivity Of Marriage Under Law, Howard Bromberg

Articles

Jesus Christ established monogamy, the marriage of one man to one woman, as the canonical norm of his church and the juridical norm for all nations. This was a unique event in the history of the cultures and religions of the world. The Catholic Church has always defended its canonical norm of monogamy, often with great opposition. Through its influence, monogamy has been established as law in the Western world and in almost all cultures influenced by Western law and norms. The emerging jurisprudence of the United States, however, rejects any religious derivation as the basis of our laws. With …

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Did We Avoid Historical Failures Of Antitrust Enforcement During The 2008-2009 Financial Crisis?, Daniel A. Crane Jan 2010

Did We Avoid Historical Failures Of Antitrust Enforcement During The 2008-2009 Financial Crisis?, Daniel A. Crane

Articles

During both economic crises and wars, times of severe national anxiety, antitrust has taken a back seat to other political and regulatory objectives. Antitrust enforcement has often been a political luxury good, consumed only during periods of relative peace and prosperity. In 1890, the Sherman Act's adoption kicked off the era of national antitrust enforcement. Barely three years later, the panic of 1893 provided the first major test to the national appetite for antitrust enforcement. Perhaps 1893 should not be included in the story: antitrust was still young, and it was not even clear that the Sherman Act applied to …

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Ivan Rand's Ancient Constitutionalism, Jonathon Penney Jan 2010

Ivan Rand's Ancient Constitutionalism, Jonathon Penney

Articles, Book Chapters, & Popular Press

Few names loom larger than Ivan Rand’s in the history of Canadian law. If anything, Rand has retained his image as a courageous judge willing to bend the law in creative ways to seek justice and protect the rights of oppressed minorities. But Rand’s legal ideas have not faired as well. Over the years, his theory of “implied rights,” and view of the judicial role, has been criticized as incoherent and indefensible. The central aim of this paper is to challenge these criticisms. I want to offer a solution by reconstructing an overlooked component of his legal thought: a form …

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Ivan Rand's Ancient Constitutionalism, Jonathon Penney Jan 2010

Ivan Rand's Ancient Constitutionalism, Jonathon Penney

Articles, Book Chapters, & Popular Press

Few names loom larger than Ivan Rand’s in the history of Canadian law. If anything, Rand has retained his image as a courageous judge willing to bend the law in creative ways to seek justice and protect the rights of oppressed minorities. But Rand’s legal ideas have not faired as well. Over the years, his theory of “implied rights,” and view of the judicial role, has been criticized as incoherent and indefensible. The central aim of this paper is to challenge these criticisms. I want to offer a solution by reconstructing an overlooked component of his legal thought: a form …

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