Category Archives: Legal History

Barton Beebe, ‘Bleistein, the Problem of Aesthetic Progress, and the Making of American Copyright Law’

Abstract: This Article presents a revisionist account of the 1903 Supreme Court case Bleistein v Donaldson Lithographic Co and the altogether decisive and damaging influence it has exerted on the making of modern American copyright law. Courts and commentators have long misunderstood Justice Holmes’s celebrated opinion for the majority in Bleistein in two fundamental ways. […]

Jill Fraley, ‘The Uncompensated Takings of Nuisance Law’

Abstract: This article argues that nuisance law transformed in significant and largely unnoticed ways during the mid-to-late twentieth century. This transformation of nuisance law generates uncompensated takings by depriving plaintiffs of access to compensatory damages for nuisance claims for the sole reason that the nuisance generates external public and private benefits. Remarkably, modern courts adopted […]

Elizabeth Rosenblatt, ‘The Great Game and the Copyright Villain’

Abstract: This essay explores the reactions of Sherlock Holmes fans and enthusiasts to assertions of intellectual property ownership and infringement by putative rights holders in two eras of Sherlockian history. In both the 1946-47 and 2013-15 eras, Sherlock Holmes devotees villainized the entities claiming ownership of intellectual property in Holmes, distancing those entities from Sir […]

Xiaobo Zhai, ‘Bentham’s Exposition of Common Law’

Abstract: Bentham is a severe critic of common law, denouncing it as ‘sham law’. Bentham’s denunciation of common law as ‘sham law’ is, however, an evaluative censure, not a descriptive account. A realistic account of the nature of common law can be constructed from his writings. According to this account, first, common law is a […]

Daniel Klein, ‘Commutative, Distributive, and Estimative Justice In Adam Smith’

Abstract: In Smith there is something of a contrariety, or double doctrine, on justice: Much of his writing leaves us with the impression that we should use justice and its cognates to mean commutative justice, and only that. But much also authorizes the conclusion that we should embrace and talk of three different senses of […]

Ajay Mehrotra, ‘A Bridge Between: Law and the New Intellectual Histories of Capitalism’

Abstract: The American historical profession has in recent years witnessed a significant revival of two subfields that were once thought to be nearly dead. Both intellectual history and what is often referred to today as the history of capitalism are flourishing. In some cases, the two fields have converged. What role has law and legal […]

Ewan McGaughey, ‘The Social Role of Private Law’

Abstract: ‘The Social Role of Private Law’ was a public lecture given by Otto von Gierke in 1889 as a leading critique of the codification of private law in the German Civil Code. Although highly influential in German legal theory and history, this is the first English translation of Gierke’s work. The English translation is […]

David Williams, ‘The Role of Legal History in Developing New Zealand Common Law Following Paki (No 2)

Abstract: This article considers the role of legal history in the future development of New Zealand common law in the light of the range of views expressed in obiter dicta by Supreme Court judges in Paki v Attorney-General (No 2) in 2014. It discusses the relevance of Canadian precedents on the fiduciary duty owed by […]

Liam O’Melinn, ‘The Ghost of Millar v Taylor: The Mythical Origins of Copyright’

Abstract: The Ghost of Millar v Taylor walks abroad once more, relishing the prospect of ‘the next great copyright act’ and tempting us to ask again whether the origins of copyright are to be found in the common law. Despite being answered time and again in the negative, this question preys upon modern sensibilities predisposed […]

Halberstam and Simard, ‘Fiduciary Law and Economic Development: Attorneys As Trusted Agents in Nineteenth Century American Commerce’

Abstract: This article is the first to demonstrate the important role that fiduciary principles, and the attorneys who adopted them, played in American economic development. Our original historical research shows that: (1) lawyers were heavily involved as trusted agents in US commerce during the nineteenth century, and that (2) their profession’s devotion to fiduciary principles, […]