Category Archives: Legal History
‘A vicious beating or a vicious lie? A fifteenth century Somerset case’
Carrying on the occasional posts relating to medieval ideas about the foetus, and about pregnancy (you can follow back from here to see earlier ones, should you so desire), here is an accusation within an accusation, which might have a couple of things to say to us on this topic. There is an entry on […]
Thomas Russell, ‘Claims on the Tracks’
ABSTRACT Using original empirical evidence, this Article challenges the prevailing conception of a ‘dispute pyramid’ – a smooth process of attrition from personal injury through claiming to litigation. Instead, I argue for the metaphor of a ‘salmon run’, with huge drop-offs from the levels of injuries to claims and, especially, to litigation. As support for […]
Zvi Rosen, ‘Who Framed Mickey Mouse?’
ABSTRACT In 1998, the United States passed a package of copyright reforms, including the extension of most copyright terms by 20 years. In the news at the time it was derisively called the Mickey Mouse Protection Act, and it was widely noted that it was passed with the expiration of copyright in the first Mickey […]
Jeffrey Helmreich, ‘True Defamation’
ABSTRACT Until the late 18th century, defamation was often treated as an actionable wrong even when the defamer’s claims were undeniably true (indeed, sometimes especially when true, as reflected in the slogan, ‘the greater the truth, the greater the libel’). In the following centuries, however, truth became a complete defense to defamation lawsuits. Even outside […]
Lucas Clover Alcolea, ‘Policy over Doctrine: A Brief History of US Trust Law’
ABSTRACT US trust law is unique because whereas in English law the settlor drops out of the picture once he has created the trust, in the US the settlor’s intentions remain paramount. This fundamental difference in turn permits the recognition of spendthrift trusts, whereby the beneficial interest cannot be alienated, in the US whereas in […]
‘Robinson and Roberts v Wheble (1771): A New “First” Trademark Case at Common Law’
The origins of trademark law have long been disputed; some legal scholars recognize JG v Samford or Sanford’s Case (1584), later described in Southern v How, 79 Eng Rep 1243 (1618) as a case in which a clothier had misappropriated his rival’s mark, as the first example of a trademark dispute in the English legal […]
‘A Cornish compensation claim’
“Here is another snippet on that vexed question: how did medieval law regard the foetus (something I have blogged about a bit. Much of the attention in this regard – including mine – has been on the law of homicide. That’s understandable, since we tend to think of the big question being ‘was it regarded […]
Marie-France Fortin, ‘Introduction to The King Can Do No Wrong – Constitutional Fundamentals, Common Law History, and Crown Liability’
ABSTRACT ‘The king can do no wrong’ remains one of the most fundamental yet misunderstood tenets of the common law tradition. Confusion over the phrase’s historical origins and differing meanings has had serious consequences, making it easier for the state to escape liability for the harm caused to individuals by governmental officials or institutions. This […]
Asaf Raz, ‘The Original Meaning of Equity’
ABSTRACT Equity is seeing a new wave of attention in scholarship and practice. Yet, as this Article argues, our current understanding of equity is divided between two distinct meanings: on one side, the federal courts, guided by the Supreme Court, tend to discuss equity as the precise set of remedies known at a fixed point […]
Dan Priel, ‘The Legal Realists on Political Economy’
ABSTRACT Alongside the well-known jurisprudential ideas associated with legal realism, some scholars have highlighted the realists’ political-economic ideas. Best known among them has been Morton Horwitz, who has argued that the realists launched an ‘attack on the legitimacy of the market’. Other scholars challenged this view and argued there was no significant connection between legal […]