Category Archives: Legal History

John Fabian Witt, ‘The Historical Logics of Work Accident Law’

Nate Holdren, Injury Impoverished: Workplace Accidents, Capitalism, and the Law in the Progressive Era (New York: Cambridge University Press, 2020). Pp 300. $59.99 (hardcover). ISBN: 978-1108488709. If reading books like Nate Holdren’s new Injury Impoverished is what happens to mid-career scholars, then I’m all for aging. Holdren has written a brilliant, impassioned, and intellectually stimulating […]

Dana and Wiseman, ‘Fracking as a Test of the Demsetz Property Rights Thesis’

ABSTRACT Since its introduction in 1967, the account of property rights formation by Harold Demsetz has pervaded the legal and economic literature. Demsetz theorized that as a once-abundant, commonly shared resource becomes more valuable and sought-after, users will move to more clearly define property rights in the resource. Despite the high transaction costs of this […]

Edmund Ursin, ‘Roger Traynor, the Legal Process School, and Enterprise Liability’

ABSTRACT Roger Traynor, who served on the California Supreme Court from 1940 to 1970, the last five years as Chief Justice, was one of America’s great judges. This Article compares Traynor’s view of the lawmaking role of courts with the dominant jurisprudential perspective of mainstream legal scholars at time, that of the legal process school. […]

Dave de Ruysscher, ‘Conceptualizing Lex Mercatoria: Malynes, Schmitthoff and Goldman compared’

ABSTRACT This article compares the doctrines on transnational commercial customs in Malynes’ Lex Mercatoria (1622) and in the writings of Clive M Schmitthoff and Berthold Goldman. It is argued that core problems in conceptualizations of lex mercatoria are present in all these texts. Malynes unsuccessfully attempted to reconcile a new approach of considering law merchant […]

Ernest Metzger, ‘Roman Law’

ABSTRACT The Romans developed a sophisticated body of law over one thousand years. The law was consulted and used in medieval and modern Europe, and from Europe it was exported around the world. Many modern legal systems are based, or partly indebted to, Roman law. The Roman legal tradition endured, even as specific rules fell […]

‘Rediscovering Patents’ and Copyrights’ Common Origins Story’

Joseph Fishman, Originality’s Other Path, 109 California Law Review (forthcoming, 2021), available at SSRN. It is something of a received dogma among intellectual property scholars that, despite their common goal of incentivizing creativity, the copyright and patent regimes achieve this goal through wildly divergent legal structures. Professor Joseph Fishman’s excellent piece, ‘Originality’s Other Path’, sets […]

Rehana Cassim, ‘The Power to Remove Company Directors from Office: Historical and Philosophical Roots’

ABSTRACT The Companies Act 71 of 2008 introduced into South African law a provision that, for the first time, empowers the board of directors to remove a director from office. This article contends that the novel power conferred on the board to remove a director from office represents a fundamental shift in the balance of […]

Scott Keller, ‘Qualified and Absolute Immunity at Common Law’

ABSTRACT Qualified immunity has become one of the Supreme Court’s most controversial doctrines. But caselaw and scholarship has paid surprisingly little attention to how qualified immunity could be reformed – short of eliminating the doctrine altogether. While there has been plenty of commentary criticizing the Court’s existing ‘clearly established law’ test, there has been no […]

‘Mary Vezey, Sarah Chapone, and the Hardships of the English Laws in Relation to Wives (1732-35)’

“‘A good Husband would not desire the Power of Horse-whipping, confining, Half-starving his Wife, or squandering her Estate; a bad Husband should not be allowed it.’ So wrote Sarah Chapone in her Hardships of the English Laws in Relations to Wives, published in 1735. A remarkable but long unremarked work, Chapone’s text has started to […]

Irina Gvelesiani, ‘The trust and the waqf (comparative analysis)’

ABSTRACT The trust is an outstanding creature of common law of the Middle Ages. It has gained international recognition essentially for its tripartite structure and unique character. Bifurcation of rights became a label of the trust and made it flexible and adaptable to various transfers. There are numerous debates regarding the origin of the trust. […]