Category Archives: Legal History

Luke Taylor, ‘Marriage, Work, and the Invention of Family Law in English Legal Thought’

ABSTRACT This article traces the emergence of family law as an autonomous legal domain within English scholarly legal thought. It provides a genealogy of conceptual and taxonomical change spanning a nearly two-hundred-year period via close readings of a range of legal texts beginning with Blackstone’s Commentaries. The article shows how the invention of English family […]

Rebecca Zietlow, ‘Slavery, Liberty and the Right to Contract’

ABSTRACT This article explores what the right to contract meant to slaves, free blacks and northern workers before and after the Civil War, to uncover the lost history of liberty of contract under the Thirteenth Amendment. By abolishing slavery and involuntary servitude, the Thirteenth Amendment transformed United States labor law and expanded rights for all […]

Eric Alston, ‘Private Ordering as the Foundation for Frontier Law’

ABSTRACT Legal transitions are by definition costly, and are salient in frontier contexts where a public legal authority is imposed for the first time. Such transitions illuminate likely economic and legal outcomes as a function of the heterogeneity of resource users and substantive relationships between private and public systems of ordering. I develop these insights […]

Robert Gomulkiewicz, ‘Contracts Mattered as Much as Copyrights’

ABSTRACT Scholars have begun to appreciate the fundamental role that contracts played in the development of copyrights. This article explores the network of book publishing contracts that formed the legal infrastructure for a pre-modern ‘internet’ at the dawn of copyright law in Great Britain in the eighteenth century. Drawing on insights from new archival research, […]

Christian Burset, ‘Why Didn’t the Common Law Follow the Flag?’

ABSTRACT This Article considers a puzzle about how different kinds of law came to be distributed around the world. The legal systems of some European colonies largely reflected the laws of the colonizer. Other colonies exhibited a greater degree of legal pluralism, in which the state administered a mix of different legal systems. Conventional explanations […]

Cai, Murtazashvili and Murtazashvili, ‘The Politics of Land Property Rights’

ABSTRACT Legal reforms that improve the security of private property rights to land have characteristics of a public good with dispersed benefits. However, nothing ensures that the state will provide property protection as a public good. Some states provide property protection selectively to powerful groups. Others are unable to provide property protection. In this paper, […]

‘New From NYU Press: Kathryn D Temple, Loving Justice: Legal Emotions in William Blackstone’s England (NYU Press, 2019)’

“… Loving Justice contends that Blackstone’s work extends beyond making sense of English law to invoke emotions such as desire, disgust, sadness, embarrassment, terror, tenderness, and happiness. By enlisting an affective aesthetics to represent English law as just, Blackstone created an evocative poetics of justice whose influence persists across the Western world. In doing so, […]

Elizabeth Rosenblatt, ‘“What One Man Can Invent Another Can Discover”: The British Patent Controversy and the Sherlock Holmes Canon’

ABSTRACT Over the course of the 19th Century in Great Britain, patent law and policy developed quickly in an atmosphere of heated debate. In the first half of the century, some advocated for a patent system that provided greater ownership to inventors, while others advocated for abolition of patents altogether. The one thing people could […]

Rod Thomas, ‘Constructive Trusts up to Lord Eldon – A Consent Issue’

ABSTRACT This paper looks at the development of constructive trust liability up to the retirement of Lord Eldon in 1827. It suggests liability over this period was imposed to enforce performance of expectations in a way not possible under an executed model of contractual liability. With advent of the Industrial Revolution such grounds became difficulty […]

Just Published: Gonçalo de Almeida Ribeiro, The Decline of Private Law: A Philosophical History of Liberal Legalism

This book is a large-scale historical reconstruction of liberal legalism, from its inception in the mid-nineteenth century, the moment in which the jurists forged the alliance between political liberalism and legal expertise embodied in classical private law doctrine, to the contemporary anxiety about the possibility of both a liberal solution to the problem of political […]