Category Archives: Legal History

Marcus Moore, ‘The HMCS Unconscionability: adrift in the Atlantic – Uber Technologies v Heller 2020 SCC 16′

ABSTRACT This paper traces the Canadian doctrine of unconscionability’s distant voyage in Uber Technologies v Heller 2020 SCC 16 from the familiar waters of the English ‘unconscionable bargains’ family of doctrines, found in various common law jurisdictions. Since the 19th century, those jurisdictions had included Canada. However, in this important decision of the Supreme Court […]

‘Seminar: The Edinburgh Centre for Private Law presents: Global legal comparisons: what can we compare, how, and to what purpose? – Professor Fernanda Pirie – Friday 29 October 2021, 16:00-17:30 (on Zoom)’

“Looking widely at different laws quickly raises questions about what we can compare. Legal systems have taken very different forms and have been created for very different purposes over the course of human history, so what and why should we try to compare? What, after all, counts as law? Rather than focusing on content and […]

‘The Recognition of a Substantive English Public Law through the Privileged Legal Treatment of Public Assets’

“Against the backdrop of French public law with its separate administrative and ordinary courts, French lawyers often assume that English law does not have a system of public law, nor a system of public property. This is inaccurate. Starting with the imposition of a feudal structure of property by William the Conqueror in the 11th […]

Sarah Seo, ‘Charles Reich and the Legal History of Privacy’

ABSTRACT This essay explores what legal scholars can learn from historians and what historians can learn from legal scholarship. It first highlights what legal scholars can learn from historians by reviewing Sarah Igo’s The Known Citizen. Then it provides an alternative legal account to Igo’s history of privacy, which clears up questions that Igo raised […]

Mark Roe, ‘Dodge v Ford: What Happened and Why?’

ABSTRACT Behind Henry Ford’s business decisions that led to the widely taught, famous-in-law-school Dodge v Ford shareholder primacy decision were three relevant industrial organization structures that put Ford in a difficult business position. First, Ford Motor had a highly profitable monopoly. Second, to stymie union organizers and to motivate his new assembly line workers, Henry […]

Emily Ireland and Cerian Griffiths, ‘Investigations in Fraud and Finance’, online, 28 October 2021

Emily Ireland (University of Liverpool): ‘Married Women, Equity, and the South Sea Crash: An examination of femes coverts’ management of stocks and shares, 1720-40’. Despite the infamy of the 1720 South Sea Bubble, relatively little is known about its impact on female investors. In particular, married women who held and managed South Sea Company stocks […]

Jessica Litman, ‘Edward S Rogers, the Lanham Act, and the Common Law’

ABSTRACT This book chapter is a deep dive into the story of Edward Sidney Rogers’s authorship of the legislation that became the Lanham Act. Because Rogers believed that Congress lacked the power to alter the substantive law of trademark and unfair competition, he crafted draft legislation that focused on registration and other procedural details rather […]

Andrew Burrows, ‘Professor Sir Guenter Treitel (1928-2019)’

INTRODUCTION Sir Guenter Treitel died at the age of 90 on 14 June 2019. As a law student at Oxford in the 1970s, I used his textbook on The Law of Contract (then in its fourth edition) and I attended his contract lectures (including no fewer than 16 lectures on the doctrine of frustration!). During […]

John Hart, ‘“A Less Proportion of Idle Proprietors”: Madison, Property Rights, and the Abolition of Fee Tail’

ABSTRACT James Madison actively supported Virginia’s abolition of fee tail in 1785, and he never receded from that position. Yet abolishing fee tail meant ‘extinguishing’ property rights of ‘the issue in taille, and those in reversion and remainder’ that the Virginia Assembly had long protected. Madison’s endorsement of abolishing fee tail therefore provides an important […]

David Kershaw, ‘Delaware’s Fiduciary Imagination: Going-Privates and Lord Eldon’s Reprise’

ABSTRACT What does it mean to be a fiduciary, and does it really matter whether the law labels a person a fiduciary or not? Until the late twentieth century Delaware corporate law could have given a singular, coherent answer to these questions; an answer that bore the deep imprint of fiduciary obligation fashioned in England […]