Table of Contents

‘Mere Evidence’? Why Customs Searches of Digital Devices Violate Section 8 of the Charter

Steven Penney, University of Alberta - Faculty of Law

Contractual Freedom and Corporate Governance in Britain in the Late Nineteenth and Early Twentieth Centuries

Timothy W. Guinnane, Yale University - Department of Economics, CESifo (Center for Economic Studies and Ifo Institute)
Ron Harris, Tel Aviv University - Buchmann Faculty of Law
Naomi R. Lamoreaux, Yale University, National Bureau of Economic Research (NBER)

Sovereignty and Migration in the Doctrine of the Law of Nations: An Intellectual History of Hospitality from Vitoria to Vattel

Vincent Chetail, Graduate Institute of International and Development Studies (HEI)

The Challenges of History in International Investment Law: A View from Legal Theory

Jörg Kammerhofer, University of Freiburg - Faculty of Law

Walter v. Lane (1900)

Barbara Lauriat, King's College London – The Dickson Poon School of Law


LEGAL HISTORY eJOURNAL

"‘Mere Evidence’? Why Customs Searches of Digital Devices Violate Section 8 of the Charter" Free Download
UBC Law Review, Vol. 49(1), pp. 485-519 (2016)

STEVEN PENNEY, University of Alberta - Faculty of Law
Email:

In the late 19th and early 20th Century, a rule emerged from interpretations of the Fourth and Fifth Amendments to the U.S. Constitution barring the taking of non-illicit property for evidentiary purposes. The “mere evidence? rule was unevenly applied, but for decades it often served to thwart governments’ attempts to search, seize, and compel self-incriminating evidence, even when they could demonstrate ample justification for doing so. By the late 20th Century, the rule was abandoned – condemned as a Lochnerian, formalist anachronism incompatible with both modern legal pragmatism and the modern regulatory and criminal justice systems.

I argue, however, that the rule should be revived to serve a specialized, contemporary purpose: the regulation of electronic border searches. In Canada, customs officials appear to have powers to seize electronic devices, search their digital contents, and demand device passwords without any degree of suspicion that they will uncover evidence of an offence. To date, courts have held that these intrusions are constitutionally justified by the state’s border security interests.

I argue, in contrast, that suspicionless digital customs searches are unreasonable under section 8 of the Charter. Because data travels freely over national borders through the internet, digital customs searches do not further legitimate border control objectives. They do, however, cause privacy intrusions that would not be tolerated outside of customs. By adopting a version of the mere evidence rule, courts can maintain the state’s capacity to control the entry of goods and persons into Canada without eviscerating the expectation of privacy that citizens have reasonably come to expect over the contents of their digital devices.

"Contractual Freedom and Corporate Governance in Britain in the Late Nineteenth and Early Twentieth Centuries" Free Download

TIMOTHY W. GUINNANE, Yale University - Department of Economics, CESifo (Center for Economic Studies and Ifo Institute)
Email:
RON HARRIS, Tel Aviv University - Buchmann Faculty of Law
Email:
NAOMI R. LAMOREAUX, Yale University, National Bureau of Economic Research (NBER)
Email:

British general incorporation law granted companies an extraordinary degree of contractual freedom to craft their own governance rules. It provided companies with a default set of articles of association, but incorporators were free to reject any part or all of the model and write their own rules instead. We study the uses to which incorporators put this flexibility by examining the articles of association filed by random samples of companies from the late nineteenth and early twentieth centuries, as well as by a sample of companies whose securities traded publicly. One might expect that companies that aimed to raise capital from external investors would adopt shareholder-friendly corporate governance rules. We find, however, that regardless of size or whether their securities traded on the market, most companies wrote articles that shifted power from shareholders to directors. We also find that there was little pressure — from the government, the financial press, shareholders, or the market — to adopt governance structures that afforded minority investors greater protection. Although there were certainly abuses, it seems that incorporators made an implicit bargain with investors that offered them the chance to earn high returns in exchange for their passivity. These findings have implications for the literature on corporate control, for the “law-and-finance? argument that corporate governance in common-law countries was more shareholder friendly than in civil-law countries, and for the debate about entrepreneurial failure in Britain during the late nineteenth and early twentieth centuries.

"Sovereignty and Migration in the Doctrine of the Law of Nations: An Intellectual History of Hospitality from Vitoria to Vattel" Free Download
European Journal of International Law, 2016, Vol. 27 No. 4, 901–922

VINCENT CHETAIL, Graduate Institute of International and Development Studies (HEI)
Email:

This intellectual history of hospitality from Vitoria to Vattel provides an alternative story to the prevailing narrative of migration control. Although migration control is frequently heralded as falling within the domestic jurisdiction of states, the movement of persons across borders is a permanent feature of history that has been framed by international law for ages. The early doctrine of the law of nations reminds us that migration was at the heart of the first reflections about international law through the enduring dialectic between sovereignty and hospitality. This long-standing debate was framed by early scholars following three main trends, which constitute the focus of this article. The free movement of persons was first acknowledged by Vitoria and Grotius as a rule of international law through the right of communication between peoples. By contrast, Pufendorf and Wolff insisted on the state’s discretion to refuse admission of aliens as a consequence of its territorial sovereignty. Yet, in-between these two different poles – sovereignty versus hospitality – Vattel counterbalanced the sovereign power of the state by a right of entry based on necessity. As exemplified by the founding fathers of international law, the dialectic between sovereignty and hospitality offers innovative ways for rethinking migration.

"The Challenges of History in International Investment Law: A View from Legal Theory" Free Download
Stephan W Schill, Christian J Tams, Rainer Hofmann (eds), International Investment Law and History (Cheltenham: Edward Elgar 2017, Forthcoming)

JÖRG KAMMERHOFER, University of Freiburg - Faculty of Law
Email:

This short essay highlights, from a legal theoretical perspective, both the risks and the potential benefits of instrumentalising the history (and historiography) of law in international investment law. Investment law scholars should study their field’s theoretical foundations and historical bases, but all of these fields of study should be kept separate. In other words, we need avoid abusing history and historiography, but we need not avoid instrumental uses of history altogether. This essay first discusses the dangers, using critical legal historians’ ideologisation of investment law as example. It then points to potential usefulness of historical research, in this case of the history of doctrines (Dogmengeschichte). It helps us to see that the historical lineage of customary investment law is in considerable doubt.

"Walter v. Lane (1900)" Free Download
Walter v. Lane (1900), Landmark Cases In Intellectual Property Law, ch. 7 (Jose Bellido ed., Hart Publishing 2017), Forthcoming
King's College London Law School Research Paper No. 2017-08

BARBARA LAURIAT, King's College London – The Dickson Poon School of Law
Email:

Originality is a cornerstone of contemporary copyright law; in order to receive protection, works must be ‘original’. One of the persistent challenges for the courts has been identifying when a copy of a work can itself be an original work. This question of protecting copies of other works arose before originality was even a statutory requirement. In the seminal case of Walter v. Lane (1900), the House of Lords decided that verbatim reports in The Times of speeches given by the politician Lord Rosebery were protected under the existing copyright legislation. Walter v. Lane is a seminal copyright case still cited in 21st-century judgments. But it was also a principled personal conflict, with the Bodley Head publisher John Lane (1854-1925) and Liberal editor Charles Geake (1867-1919) on one side and Charles Frederic Moberly Bell (1847-1911), the Managing Director of The Times, on the other. This feud caused embarrassment and upset to Lord Rosebery himself, a friend to both Moberly Bell and Geake, who found himself caught in the middle. This chapter examines the legal and personal context of Walter v. Lane and challenges other interpretations of its holding. It argues that the primary legacy of the case comes from the principle that the law should protect works that are products of editing, re-creation, preservation, conservation, or reconstruction where they are the result of intellectual skill and labour and there exists a public interest in the relevant acts of copying.

^top

About this eJournal

This eJournal distributes working and accepted paper abstracts on the history of law and legal institutions, as well as other historical inquiries that relate to current legal issues.

Editor: Reva B. Siegel, Yale University

Submissions

To submit your research to SSRN, sign in to the SSRN User HeadQuarters, click the My Papers link on left menu and then the Start New Submission button at top of page.

Distribution Services

If your organization is interested in increasing readership for its research by starting a Research Paper Series, or sponsoring a Subject Matter eJournal, please email: RPS@SSRN.com

Distributed by

Legal Scholarship Network (LSN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN)

Directors

LSN SUBJECT MATTER EJOURNALS

BERNARD S. BLACK
Northwestern University - Pritzker School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

Advisory Board

Legal History eJournal

KWAME ANTHONY APPIAH
Princeton University - Department of Philosophy

PETER PRESTON BROOKS
Andrew W. Mellon Foundation Scholar, Center for Human Values, Peter Brooks, Princeton University

JUDITH BUTLER
University of California, Berkeley

KIMBERLE CRENSHAW
Columbia Law School

HENRY LOUIS GATES
Harvard University - Department of African-American Studies

THOMAS C. GREY
Nelson Bowman Sweitzer & Marie B. Sweitzer Professor of Law, Stanford Law School

DONNA HARAWAY
University of California, Santa Cruz - History of Consciousness

DUNCAN KENNEDY
Harvard Law School

MARGARET JANE RADIN
Henry King Ransom Professor of Law, University of Michigan Law School

REVA B. SIEGEL
Nicholas deB. Katzenbach Professor of Law, Yale University - Law School

KENDALL THOMAS
Columbia Law School

IRIS MARION YOUNG
University of Chicago (Deceased) , University of Chicago - Department of Political Science