Category Archives: Legal History

Shivprasad Swaminathan, ‘Dicey and the Brick Maker: An Unresolved Tension Between the Rational and the Reasonable in Common Law Pedagogy’

ABSTRACT In his inaugural address as the Vinerian Professor of English law in 1883, Albert Venn Dicey laid down the vision for a new pedagogy for the common law to replace the ‘unaccountable’ arrangement of apprenticeship that had hitherto served the common law. The latter, he likened to ‘brick making’. At the heart of Dicey’s […]

Bonica and Klein, ‘Adam Smith on Reputation, Commutative Justice, and Defamation Laws’

ABSTRACT We explore two issues in reading Smith. The first concerns whether he thought that ‘one’s own’ as covered by commutative justice included one’s reputation. Several passages point to the affirmative. But reputation is left out of Smith’s ‘most sacred laws’ description of commutative justice. Moreover, so much of reputation – eg, ‘Steve’s work stinks’ […]

F Scott Kieff, ‘Epstein’s Insights about Private Law and History for Intellectual Property and Trade of Today and Tomorrow’

ABSTRACT Richard Epstein’s work on private law emphasizes themes that have survived since Ancient Roman Law. This paper highlights two practical benefits that those themes can offer some flashpoints in modern debates about the interface between intellectual property (IP) and trade. Arguments grounded in private law may avoid the open-textured public policy debates between concern […]

Alix Rogers, ‘Unearthing the Origins of Quasi-Property Status’

ABSTRACT Under contemporary American law human corpses and some bodily parts are classified as quasi-property. Quasi-property is an American legal conception composed of limited interests that mimic some of the functions of property, but does not formally qualify as property. It is a uniquely American, idiosyncratic and misunderstood legal category. Quasi-property status is most typically […]

Alexander Wulf, ‘Insights From the Historical German Codification Debate With Relevance for the Development of a Uniform Civil Code for India’

ABSTRACT In this essay I present a summary of the historical German Codification debate between Thibaut and Savigny and discuss its relevance for the development of a Uniform Civil Code for India. In the nineteenth century the German jurists Thibaut and Savigny conducted a debate on the need for a common civil code for all […]

Emily Kadens, ‘The Dark Side of Reputation’

ABSTRACT Reputation is the foundation of theories of private ordering. These theories contend that commercial actors will act honestly because if they do not, they will get a bad reputation and others will not want to do business with them in the future. But economists and scholars of networks increasingly realize that reputation has its […]

CRG Murray, ‘Back to the Future: Tort’s Capacity to Remedy Historic Human Rights Abuses’

INTRODUCTION … Kenya became independent in 1963 and the violent colonial-era conflict receded from public memory, in the UK at least. Any subsequent attempts to challenge the Crown’s conduct during the colonial era in Kenya’s courts would have faced the insurmountable obstacle of state immunity. There thus appeared to be no viable route to redress […]

John Coyle, ‘A Short History of the Choice-of-Law Clause’

ABSTRACT In the field of conflict of laws, private actors are generally granted the power to choose the law to govern their contracts. This is the doctrine of party autonomy. In recent years, this doctrine has been the subject of several excellent histories that draw upon judicial opinions, scholarly writings, and legislative enactments to chronicle […]

‘File on the Telegraph and Libel in the Progressive era’

“Patrick C File, University of Nevada, Reno has published Bad News Travels Fast: The Telegraph, Libel, and Press Freedom in the Progressive Era with the University of Massachusetts Press. From the publisher: ‘At the turn of the twentieth century, American journalists transmitted news across the country by telegraph. But what happened when these stories weren’t […]

Michael Blumm, ‘A Dozen Landmark Nuisance Cases and Their Environmental Significance’

ABSTRACT … This paper traces the evolution of nuisance law through examining a dozen landmark cases. It suggests that where it is not federally displaced or preempted by state statutes, nuisance law remains a viable cause of action for injured landowners, particularly where the issue is left to juries. Given the hostility of the Supreme […]