Category Archives: Legal History

Colin Mayer, ‘Ownership, Agency and Trusteeship’

ABSTRACT This article argues that the two dominant concepts of theory of the firm and the bases of modern management education, business practice, and public policy towards the firm, namely shareholder primacy and agency theory, are at best incomplete and at worst erroneous. They omit what was a substantial basis of discourse on the company […]

Chris Dent, ‘The Introduction of Duty into English Law and the Development of the Legal Subject’

ABSTRACT ‘Duty’ is a term that is used in several areas of the law – notably the ‘duty of care’ and ‘fiduciary duty’. This article considers the introduction of the term ‘duty’ itself to the law, before it became part of the compound terms. In order to do so, the article surveys a range of […]

Sarath Sanga, ‘On the Origins of the Market for Corporate Law’

ABSTRACT I study the origins of the market for corporate charters and the emergence of Delaware as the leader of this market. Specifically, I assemble new data on 19th and 20th-century corporations to evaluate two widely-held beliefs: (1) the US Supreme Court is responsible for enabling a national market for corporate charters in the 19th […]

Harwick and Root, ‘The Feudal Origins of the Western Legal Tradition’

ABSTRACT This paper draws a distinction between ‘communitarian’ and ‘rationalist’ legal orders on the basis of the implied political strategy. We argue that the West’s solution to the paradox of governance – that a government strong enough to protect rights cannot itself be restrained from violating those rights – originates in certain aspects of the […]

Skorup and Huddleston, ‘The Erosion of Publisher Liability in American Law, Section 230, and the Future of Online Curation’

ABSTRACT As internet businesses started to emerge in the 1990s, online content distributors were taken to court for defamatory material they published or republished. While one court found in Cubby v CompuServe (1991) that the internet-based company was not liable, a second court trying Stratton Oakmont v Prodigy (1995) arrived at the opposite conclusion. Congress […]

Mark McKenna, ‘Property and Equity in Trademark Law’

ABSTRACT This essay, delivered as the Nies Lecture at Marquette Law School, focuses on changes in the doctrinal structure of trademark law over the course of the last century – specifically with respect to the relationship between trademark law’s limits and the broader common law of unfair competition. Changes in that relationship, I will argue, […]

Stephen Sugarman, ‘Justice Roger J Traynor, Pragmatism, and the Current California Supreme Court’

ABSTRACT California Supreme Court Justice Roger J Traynor entered the debated between pragmatists and formalists, siding with the former in both his scholarly writings and in his judicial opinions,especially in torts. In this article, I explore what I have identified as the leading torts decisions of the California Supreme Court involving personal injury or death […]

Susan Keifel, ‘Just How Common is the Common Law? A Historical and Comparative Perspective’

“In the days of the British Empire, the colonies were expected to maintain consistency with the common law of England as expounded by the English courts and the Judicial Committee of the Privy Council in particular. The Privy Council was the final appellate court for the colonies. In 1879, Sir Montague E Smith, delivering the […]

‘The Roman public trust doctrine’

“I’ve often expressed impatience with the throwaway references to Justinian (often misconstrued as an adjective!) that are so ubiquitous in discussions of the public trust doctrine. Now comes Bruce Frier’s review of Domenico Dursi’s Res Communes Omnium. Dalle necessità economiche alla disciplina giuridica (Jovene, 2017) to make some order for those of us for whom […]

‘Hartog on property in land and water’

“As part of his stint as a guest blogger at Legal History Blog, Dirk Hartog recently blogged about his own early work on waterfront development in New York City and his encounter with Debjani Bhattacharyya’s Empire and Ecology in the Bengal Delta: The Making of Calcutta. Some excerpts, followed by a quibble of mine …” […]