Category Archives: Legal History

‘Justice Oliver Wendell Holmes, Jr, was kind of a pompous ass’

“Justice Oliver Wendell Holmes, Jr, ‘the great dissenter’, was kind of a pompous ass. That probably should not have surprised me, given his birthright in Massachusetts aristocracy. And that probably should not have been my chief take-away from the book, The Great Dissent (2013) (Amazon; Macmillan), the impressive accomplishment of author and law professor Thomas […]

The Role of History in Tort Theory: AALS Torts Panel, San Diego, 5 January 2018

“Claims about the nature of tort law are often coupled with historical claims. Thus, many mid-twentieth century proponents of an expansive, compensation-oriented tort law argued strict liability was prevalent under the common law writ system. What is the purpose of such appeals to history? Are they necessary to tort theory, or merely tangential? Does the […]

R Blake Brown, ‘Canada’s First Malpractice Crisis: Medical Negligence in the Late Nineteenth Century’

Abstract: This article describes and explains the first Canadian medical malpractice crisis. While malpractice had emerged as a prominent legal issue in the United States by the mid nineteenth century, Canadian doctors first began to express concerns with a growth in malpractice litigation in the late nineteenth century. Physicians claimed that lawsuits damaged reputations and […]

Chris Dent, ‘The “Reasonable Man”, his Nineteenth-century “Siblings”, and their Legacy’

Abstract: The reasonable man is the best known, but not the only, legal construct to be born into the nineteenth-century common law. This article introduces the man’s siblings – including those from the areas of trust law, criminal law, contract law, and intellectual property law (both patents and trademarks). The fact that some of these […]

Christian Burset, ‘The Rise of Modern Commercial Arbitration and the Limits of Private Ordering’

Abstract: Debates about arbitration often assume that it is or can be a purely private way to resolve disputes. This paper challenges that assumption by offering a new account of how and why truly extralegal commercial arbitration declined during the eighteenth century. It argues that the rise of the modern credit economy altered the possibilities […]

Markus Dubber, ‘Legal History As Legal Scholarship: Doctrinalism, Interdisciplinarity, and Critical Analysis of Law’

Abstract: Legal history is having a methodological moment. So is law (and, as it turns out, history as well). And not just in one country or legal system but across the common law/civil law divide. In this essay I try to capture some aspects of this methodological moment – or moments – and then to […]

James Alexander, ‘Libel and Copyright in the Satire of Peter Pindar’

Abstract: In 1802, the English Chancery Court denied the satirical poet John Wolcot (‘Peter Pindar’) injunctive relief for copyright infringement claimed against his publisher John Walker. While the original agreement between the parties was ambiguous, the ruling was more procedural rather than interpretive. As Wolcot’s verse was always scandalous and arguably libelous, Eldon ruled that […]

‘Engstrom on Class Actions (x 2)’

“David Freeman Engstrom, Stanford Law School, has posted two papers on the history of class actions. The first, forthcoming in University of Pennsylvania Law Review 165 (2017), is ‘Revolution of 1978 and the Puzzle of American Procedural Political Economy’: ‘In 1978, top DOJ officials in the Carter Administration floated a revolutionary proposal that would have […]

‘A Call for Projects and Proposals from the American Society for Legal History’

“The Projects and Proposals Committee of the American Society for Legal History exists to encourage new initiatives in the study and presentation and production of legal historical scholarship and in the communication of legal history to all its possible publics and audiences. It is the mission of the committee to find ways to bring talented […]

‘Property law and flooding’

“Continuing our trend on water, the Osgoode Society recently announced that Jason Hall has won its Peter Oliver Prize for best published student writing for his article, ‘High Freshets and Low-Lying Farms: Property Law and St John River Flooding in Colonial New Brunswick’. The abstract: ‘ Although New Brunswick was founded on private land ownership, […]