Category Archives: Legal History

Andreas Blank, ‘Common usage, presumption and verisimilitude in sixteenth-century theories of juridical interpretation’

Abstract: The question of how common usage could be constitutive for the meaning of linguistic expressions has been discussed by Renaissance philosophers such as Lorenzo Valla, and it also played an important role in Renaissance theories of juridical interpretation. An aspect of the analysis of common usage in Renaissance theories of juridical interpretation that concerns […]

Anna Robilant, ‘A Research Agenda for the History of Property Law in Europe, Inspired by and Dedicated to Marc Poirier’

Introduction: … However, my driving commitment is towards understanding the development of property law and theory in the context of the larger, long-term social, economic, and political transformations of modern Europe and beyond. In the sections that follow, I will outline the main lines of this research agenda: (a) understanding the relation between property and […]

‘“Coke-Upon-Littleton of the Fist”: Law, Custom, and Complications’

Robert Deal, The Law of the Whale Hunt: Dispute Resolution, Property Law, and American Whalers, 1780-1880 (2016). Robert Deal is a historian at Marshall University. His book is a nuanced account of the nineteenth-century British and American whaling industry and how it was misunderstood by contemporary lawyers and judges and continues to be misunderstood by […]

Katharina Schmidt, ‘Henry Maine’s “Modern Law”: From Status to Contract and Back Again?’

Abstract: In this Article, I conduct a long overdue assessment of Henry Maine’s ‘from Status to Contract’ thesis in light of two essentially modern phenomena: contract standardization and relational contracting. Drawing on comparative legal history, classical sociological and anthropological literature, contemporary contract law theory, and recent works in the field of (behavioral) law and economics, […]

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 […]