LEGAL HISTORY eJOURNAL

"Constructing a Transatlantic Marketplace of Disputes on the Symbolic Foundations of International Justice" Free Download
Forthcoming in: Gregoire Mallard and Jerome Sgard, eds., Contracting Beyond Boundaries: Private Regulation of International Trade and Finance in the Twentieth Century, Cambridge University Press
UC Irvine School of Law Research Paper No. 2015-09

YVES M. DEZALAY, French National Center for Scientific Research (CNRS)
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BRYANT GARTH, University of California-Irvine, Southwestern Law School, American Bar Foundation
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This chapter revisits earlier work by the authors on international commercial arbitration. Drawing on new historical research, it suggests that the enduring success and legitimacy of the International Chamber of Commerce and international commercial arbitration relates to the type of alliances that European professors early in the twentieth century built with American lawyers -- who themselves had built strong connections with the U.S. state and with major commercial interests. The article first presents in broad terms the strategies of internationalization (including the import and export of norms and institutions) that elite corporate lawyers sought in order to build their position through the accumulation of international legal capital built in alliance with European law professors. These strategies of internationalization played a decisive role in building international justice as a hybrid system between common and civil law around a core of legal scholars/diplomats including learned Queens Counsel and continental law professors. Second, the chapter examines how the ICC Court of International Commercial Arbitration was established in the shadow of the Permanent Court of International Justice by borrowing its public visibility and the academic legitimacy of international law. The European professors who benefitted from the establishment of the Permanent Court and related institutions in The Hague were initially relatively peripheral to the ICC, because the ICC itself was relatively marginal in the interwar period. Yet a few of them extended their academic interest to issues of private law and international disputes. Third, when European law professors were given the opportunity to intervene in commercial disputes involving oil companies, after the tide of nationalistic fights over the appropriation of profits of the oil industry, they could use the value of the symbolic foundations of international justice, as well as their early academic investment, reinvigorated through a small diaspora of continental law professors with links to both the ICC and the American Arbitration Association, such as Martin Domke. Serving as arbitrators and scholars, they could apply and codify their doctrines and gain the recognition of international commercial arbitration as quasi-autonomous from economic and political interests.

"Diaspora, the West and the Law. The Birth of Christian Literature Through the Letters of Paul and the End of Diaspora." Free Download

P. G. MONATERI, SciencesPo, Ecole de Droit, Law School, University of Torino (Italy), University of Turin, Faculty of Law
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My approach, in this work, is to reappraise the birth of Christianity in diasporic terms: that’s to say that we need to use modern outcomes of diasporic studies to reinterpret even the Jewish Diaspora, and to settle her problems properly within the legal and political setting of the Greek cities of the time, through the emergence of new literary genres, as the gospels, and the active use of letterwriting, as a kind of stereotyped but evolving genre.

My claim is that the rise of a distinct christian literature emerged because of the impact of the Greek Polis on the Western Diaspora.

My conclusion is that if we keep the strong 'geopolitical' meaning of diaspora, in relation to concrete spaces and displacements, we may see at work in the literary production of Paul an antinomic effort to supersede the condition of diasporic life.

From this point of view the Greek city is to be thought as a "democratic but totalitarian device" dislocating all aspects of life, with such a strong impact on the Western Diaspora as to produce an onto-theological attempt to dismantle any distinction between Israel and the nations, reshaping the same "Geography of the Nomos" of the ancient world.

"Post-World War II. Hungarian Criminal Justice and International Law – The Legacy of the People's Tribunals" Free Download
The Historical Origins of International Criminal Law - Vol. II., Morten Bergsmo, Cheah Wui Ling and Yi Ping eds., Torkel Opsahl, 2014, pp. 735-763

TAM?S HOFFMANN, Corvinus University of Budapest
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This contribution aims to introduce the organization and jurisprudence of a post-Second World War Hungarian special tribunal that was established to try Hungarian war criminals. Relying in part on public international law, the People's Tribunals conducted probably the very first criminal proceedings in the history of international criminal justice for the crime of aggression, convicting former prime ministers, cabinet members and members of parliament. Moreover, the Hungarian tribunals created a special category of crimes - crimes against the people - that could be seen as a domestic version of crimes against humanity.

"The Italian Legal Recipe: Basic Ingredients and the Bustle of Time" Free Download
6(1) Journal of Comparative Law 70-85 (2011) (also published in European Journal of Comparative Law & Governance 1 (2014))

MARTA INFANTINO, University of Trieste School of Law
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Many legal systems beyond the classical common/civil law mixed world may show themselves as the result of a historical combination of different paradigms, and of ever changing legal blends. Allegedly 'pure' (i.e. unmixed) civil law systems are no exception, as the Italian legal experience demonstrates. The Italian legal system stands as an emblematic illustration of how, in a civil law context, original and foreign (both civil law and common law) inspired legal rules, institutions, and attitudes may interact, develop through time, and synthesize themselves in a complex, yet unified legal culture.

As is well-known, from a comparative perspective Italy is commonly conceived as a member of the civil law legal family, and, more in particular, as a mix of XIX-XXth century French and German influences. This is, however, only one side of the picture. Whatever their current respective zones of influences are, the point is that French and German legal models are no more (as they have never been) the only ingredient of the Italian recipe. As a matter of fact, the origin of many components stretches wider both in time and space. In some cases, it stretches back to the fragmented plurality of normative levels which characterized the peninsula’ legal edifice for centuries before political unification. In other cases, the origin of legal rules stretches up to the more recent borrowings from the United States experience: from the plea bargain to the ‘quasi’ adversary criminal trial, from securitization techniques to financial contracts models, from class action devices to the overarching patterns of judicial review.

Hence, far from being a purely civil law amalgam, the Italian legal framework presents itself as the fruit of an endless interaction of local patterns with foreign-inspired paradigms. This is why the 'mixed jurisdictions' lenses can prove extremely useful in looking at the Italian allegedly 'pure' legal experience, and in highlighting the multiple ingredients of its complex recipe. More generally, the 'mixed jurisdictions' perspective may help put countries belonging to civil law legal family in context, and lead to a better understanding not only of the dynamic relationships between this family and other legal families, but also of the cross-fertilization phenomena which endlessly take place within and beyond family borders.

"Genesis of Competition Law in India" Free Download

ARUN KUMAR SINGH, Noida International University
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ANIL KUMAR, Noida International University
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After the advent of Independence in 1947, India, for the better part of half a century thereafter, adopted and followed policies comprising what are known as “Command-and-Control? laws, rules, regulations and executive orders.

The Competition law of India, namely, the Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act) was one such. It was in 1991 that widespread economic reforms were undertaken and consequently the march from “Command-and-Control? economy to an economy based more on free market principles commenced its stride. As is true of many countries, economic liberalisation has taken root in India and the need for an effective competition regime has also been recognized.

In the context of the new economic policy paradigm, India has enacted a new competition law called the Competition Act, 2002 (Act, for brief). The MRTP Act has converted into the new law, Competition Act, 2002. The new law has repealed the extant MRTP Act. This paper, therefore, addresses both the enactments and also outlines the logic behind the development.

"Durkheim's Theory of Triangular Force Relations and Its Application to Christian Collegia in the Roman Empire" Free Download

THOMAS R. YOUNG, Independent
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Emile Durkheim, in his Professional Ethics and Civic Morals argues that individual freedom in a given society is the product of a triangular relation of forces composed of the State; secondary authorities like the family, church or guild; and the individual. The State, acting in its own interests, acts as a check upon the secondary authorities which, being closer to the individual, will tend toward tyranny if left unchecked. Likewise, the secondary authorities, through their collective force, provide safe harbor for the individual from the excesses of State power.

Both in the Roman Republic and into the Roman Empire, secondary associations known as collegia were to be found in abundance, representing a wide spectrum of economic classes and dedicated to advancing diverse causes. Senators to soldiers, slaves to tradesmen found camaraderie with others advancing everything from a fine meal, promoting religious observance, giving proper burial to the dead or providing mutual benevolence among members. Their relation with the Roman State was at times tenuous, subject to regulation which resulted in the dissolution of private association activities when the activities were deemed illicit. Collegia provided their membership opportunities to engage and shape Roman society through the promotion of commonly held values and to engage in social and professional activities without fear of State intervention.

The primary goal of this paper is to primarily examine the phenomena of the Roman collegia, and in particular those associations of the early Christian church, as a manifestation of this widespread phenomena in the social order of the Roman Empire between the first and fourth centuries. Particular attention will be paid to the interplay predicted by Durkheim between the Roman State and Christian associations to see in what way the State protected the individual from the secondary authority’s excesses as well as how such associations provided for the enhancement of the individual liberty of their membership. The secondary goal will be to critique Durkheim’s theory as it applies to Roman Christian collegia and to ascertain whether the triangular relation of forces did, as a historical fact, play out in the way that Durkheim had predicted.

"An 'Equal Sovereignty' Principle Born in Northwest Austin, Texas, Raised in Shelby County, Alabama" Free Download
Journal of Race, Gender and Ethnicity, Forthcoming
Berkeley Journal of African-American Law and Policy, Forthcoming

DAVID KOW, Independent
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The 1965 Voting Rights Act brought to a halt the regime of organized racial discrimination against voters in the South, by subjecting offending states and localities to federal oversight whenever they wanted to implement new voting procedures. But this renewable remedy as a viable solution to the historical and ongoing disenfranchisement of voters of color, would be short-lived. In 2009, the United States Supreme Court, in Northwest Austin Municipal Utility District No. One v. Holder, reinterpreted the mechanism used to identify the worst offending jurisdictions, as an infringement upon state sovereignty. This would mark the eventual undoing of the heart of the Act, by the Court's 2013 opinion in Shelby County v. Holder.

This essay examines how Chief Justice Roberts, over the course of two Supreme Court opinions, created and applied a new “fundamental principle of equal sovereignty? which became the basis for invalidating a key component of the Voting Rights Act. The principle is a derivative of the equal footing doctrine, whereby new states are to be admitted with the same rights, sovereignty and jurisdiction, equal to that of the original thirteen states. But the Court and others refer to the principle indistinguishably from references to the equal footing doctrine, adopting its case law history and thereby assuming a broader meaning for the underlying doctrine. Whereas the equal footing doctrine applies to the admission of new states to the Union on an equal footing with the existing states, the “equal sovereignty? principle stands for the notion of a perpetual equality of the states. The irony here is that most of the states were not admitted on an equal footing, but rather with conditions and stipulations other states were not subject to. Given the fact that the states were founded on unequal terms, the equal footing doctrine has existed more in form than substance. What the derivative “equal sovereignty? principle lacked in common law significance, the “fundamental? label would garner in constitutional credibility, for the Court to re-establish an ideology of the equality of the states.

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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.

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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 - Department of Political Science