LEGAL HISTORY eJOURNAL

"‘The Sacredness of Private Property:’ State Constitutional Law and the Protection of Economic Rights Before the Civil War" Free Download
NYU Journal of Law & Liberty, Forthcoming
Vanderbilt Public Law Research Paper No. 15-21
Vanderbilt Law and Economics Research Paper No. 15-17

JAMES W. ELY, Vanderbilt University - Law School
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This essay explores state constitutional law before the Civil War pertaining to economic rights. It argues that antebellum state courts played a crucial and underappreciated role in defending property and contractual rights from legislative assault. Before the adoption of the Fourteenth Amendment most constitutional questions relating to property were handled in state courts and implicated state constitutional law. The essay considers how state courts shaped takings and due process jurisprudence, often anticipating subsequent decisions by the Supreme Court of the United States. They were the first, for example, to consider the scope of “public use? and the amount of “just compensation? when government sought to acquire property. Moreover, they grappled with the extent to which the due process guarantee in state constitutions conferred substantive protection to the rights of property owners. Despite the pivotal role of the Supreme Court in fashioning contract clause jurisprudence, state courts heard far more contract clause cases and significantly impacted the formation of law in this field as well. State constitutionalism was vitally important to the development of property owners.

"John Erskine and the Institute of the Law of Scotland" Free Download
John Erskine, An Institute of the Law of Scotland, Old Studies in Scots Law vol 5 (Edinburgh Legal Trust, 2014)
Edinburgh School of Law Research Paper No. 2015/26

KENNETH REID, University of Edinburgh - School of Law
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Published posthumously in 1773, John Erskine’s An Institute of the Law of Scotland is the most important work on Scots law of the eighteenth century. Even today, it is one of the small canon of ‘institutional’ writings which continues to be consulted and to be cited in court. This paper begins by examining what is known of Erskine’s career, first as an advocate and then, from 1737 to 1765, as Professor of Scots Law at Edinburgh University. Detailed consideration is given to the writing of the Institute, to its publication, to the later editions, and to the fluctuations in the work’s reputation. Finally, the text of the Institute itself is examined, with particular attention being given to its structure, the range and depth of treatment, the relationship to the earlier Principles of the Law of Scotland (intended as a student text), and to the sources used.

"The Last Preference: Refugees and the 1965 Immigration Act" Free Download
Forthcoming in The Immigration and Nationality Act of 1965: Legislating a New America (Gabriel J. Chin & Rose Cuison Villazor eds., 2015).
UC Davis Legal Studies Research Paper No. 446

BRIAN SOUCEK, University of California, Davis - School of Law
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The 1965 Immigration Act is remembered — and celebrated — for having replaced an immigration system driven by national origins with a preference system privileging family ties and occupational skills. But while the rest of the 1965 Act, in President Johnson’s words, welcomed immigrants “because of what they are, and not because of the land from which they sprung,? the last of its preferences, given to refugees, emphatically did not. Not only did the 1965 Act fail to embrace the 1951 U.N. Refugee Convention’s protection for refugees persecuted because of their nationality, the Act itself discriminated on the basis of refugees’ nationality. To qualify, those persecuted had to hail from a “Communist or Communist-dominated country? or “the general area of the Middle East.? A separate provision allowed for entry of those “uprooted by catastrophic natural calamity as defined by the President.?

By tying refugees’ status to “the land from which they sprung,? to America’s anti-Communist foreign policy and national security interests, and, importantly, to the discretion of the President, the 1965 Act’s refugee provision suggests a counter-narrative to descriptions of the Act as part the domestic anti-discrimination agenda of the mid-1960s, or as a reassertion of Congressional control over immigration. The 1965 Act turned refugee policy into another weapon of the Cold War, to be deployed largely as the President chose. It would be another fifteen years before Congress again attempted (or at least purported) to do for refugees what the 1965 Act did for most other immigrants: end national origin discrimination and formalize the criteria and procedures governing admission to the United States.

"Turmoil Surrounding the Self-Incrimination Clause: Why the Constitution Does Not Forbid Your Silence From Speaking Volumes" Free Download
Faulkner Law Review, Vol. 6, 2015. Pages 231-81

ZAUR D. GAJIEV, Pepperdine University - School of Law, U.S. District Court for the Eastern District of California
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This Article explores the detrimental impact of Griffin v. California (1965), in which the Supreme Court prohibited prosecutors from commenting on a defendant's trial silence. In doing so, the Court deviated from the traditional Fifth Amendment "compulsion"​ analysis, and invented a "penalty"​ rationale that has caused turmoil in self-incrimination doctrine. Specifically, the ruling has caused substantial inconsistency in criminal cases involving pre-arrest silence, as lower courts are presently split on whether the Griffin rule extends to bar prosecutors from commenting on a defendant's pre-arrest silence. This is particularly concerning because the admissibility of a defendant's pre-arrest silence as substantive evidence of his guilt often makes the difference between acquittal and conviction.

This Article argues that although the rule against adverse comments on trial silence is widely accepted today, Griffin's "penalty"​ doctrine lacks a constitutional basis. The text, history, and logic underlying the Fifth Amendment's Self-Incrimination Clause establish that the Constitution only prohibits the government from "compelling"​ a person to speak, not from imposing "penalties"​ upon a person's decision to remain silent. In fact, the Court has upheld numerous such penalties in the years after Griffin. As such, this Article argues that the Court's return to the compulsion analysis, especially on the issue of pre-arrest silence, will provide the judiciary with a much-needed framework for addressing present-day and future challenges surrounding the Self-Incrimination Clause.

"[Re]Integrating Community Space: The Legal and Social Meanings of Reclaiming Abandoned Space in New York's Lower East Side" Free Download
Andrea McArdle, Re]Integrating Community Space: The Legal and Social Meanings of Reclaiming Abandoned Space in New York's Lower East Side, 2 Savannah Law Review 247 (2015)

ANDREA L. MCARDLE, CUNY School of Law
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What understandings about property, the community concerns informing it, and the legal relationships that flow from it can we draw from a city’s buildings and spaces? What contending values and expectations underpin laws that both protect property interests and seek to advance public safety, health, and economic well-being in urban neighborhoods? What explanatory narratives can advocates, analysts, and policymakers discern from such laws? This Article argues that the meaning we can draw from these buildings and streetscapes as they have been constructed, abandoned, or refashioned over time is complex and multifaceted. Using New York City’s Lower East Side landscape as exemplary text, the Article identifies various narratives of regulatory burden, scarcity, abandonment, transgression, and renewal that recur in the discourse of property law, and it considers ways in which local government institutions contribute to the shape of those narratives as regulators, service providers, and owners of property.

The Article begins with a brief account of conditions in the late 1960s and early 1970s that contributed to public and private disinvestment in the storied Lower East Side, a site of intense immigrant settlement at the turn of the twentieth century, and, in the 1950s and 1960s, a space that attracted writers, artists, and political activists. The Article then addresses how these conditions also afforded an opportunity for reclaiming devalued land and distressed neighborhoods. Beginning in the mid-1970s, neighborhood-initiated cultivation of gardens in vacant, burnt- out lots and homesteading occupants’ refurbishing of buildings that had fallen into disrepair created a new source of investment in city-owned property, holding out the promise of community stabilization.

This Article examines the legal implications of these autonomous, self-help responses to disinvestment. Initially, the City supported and legitimized community gardeners’ and homesteaders’ efforts at reclamation. However, when land values rose in the 1980s and 1990s, the City reversed course and invoked laws limiting access to property as it sought to auction off community gardens and to evict homesteaders as trespassers. In response, local gardeners sought redress under legal theories alleging violations of environmental law and civil rights. Squatters and homesteaders asserted rights as adverse possessors. Although these legal claims proved unavailing, by 2002, agreements negotiated on behalf of these claimants permanently protected some community gardens from development and afforded occupants of eleven squatted buildings a new legal status as shareholders of limited-equity cooperative housing.

Drawing on these developments, this Article addresses how such community efforts to reengage with threatened urban landscapes generate legal meaning. It discusses how the recently opened Museum of Reclaimed Urban Space (MORUS), which is literally built into a formerly squatted building in New York’s Lower East Side, both portrays and adds to that meaning-making. By illuminating the particular ways in which the owners and users of these contested spaces invoked both property law and community norms, MORUS documents how the squatter and community garden movements helped reintegrate distressed city buildings and lots as community spaces. The Article concludes with reflection on how the impulse to reclaim space also inevitably transforms it.

"Denaturalizing Transparency in Drug Regulation" 
McGill Journal of Law and Health 2015; 8(2):S57-S143

MATTHEW HERDER, Dalhousie University, Faculties of Medicine and Law, Dalhousie University
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In the arena of pharmaceutical drug regulation, transparency is the favoured focus of many current policy initiatives. Transparency is predominantly understood in terms of information disclosure. Requirements to register clinical trials, publish summary results, share clinical trial data, and disclose physician-industry relationships as well as rationales behind regulatory decision making are each predicated upon this idea that imparting information will both inform and deter unwanted behaviours. In this paper, I argue that understanding transparency qua disclosure has clear limitations and suggest transparency can and should serve an additional function - namely, of enabling standard setting through a more participatory, public model of drug regulation. I turn to the history of Canadian drug regulation to demonstrate that such an alternative conception of transparency - transparency qua standard construction - is in fact possible. I document the regulator's extensive use of publicity practices to develop standards for assessing drug adulteration through the early years of Canadian drug regulation, from 1887 to 1920 when hundreds of analytical bulletins were publicly disseminated. I also show how, from the 1920s onwards, this participatory, public transparency transmogrified into a form of closed, insider transparency as the regulator constituted a collaborative relationship with industry. Given this shift, I suggest that an alternative conception of transparency is not only possible but also increasingly needed, and then begin to sketch how tying transparency to a revitalized concept of fraud in drug research and development might activate that participatory, public regulatory work.

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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

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LSN SUBJECT MATTER EJOURNALS

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Northwestern University - 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)
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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, Distinguished Research Scholar, University of Toronto Faculty of Law

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