Table of Contents

Branding Identity

Kate Sablosky Elengold, American University - Washington College of Law

China in the Age of the World Picture

Teemu Ruskola, Emory University School of Law

'Impost Begat Convention': New York's Ratification of the Constitution

Calvin H. Johnson, University of Texas at Austin - School of Law

Company Law

Ross B. Grantham, The University of Queensland - T.C. Beirne School of Law


LEGAL HISTORY eJOURNAL

"Branding Identity" Free Download
Denver University Law Review, Vol. 93, No. 1, 2016
American University, WCL Research Paper No. 2016-05

KATE SABLOSKY ELENGOLD, American University - Washington College of Law
Email:

The Civil Rights Act of 1964 protects against discrimination on the basis of race, color, religion, sex, or national origin — the so-called “protected classes.? To make out a successful civil rights claim under the current legal structure, a plaintiff must first identify the protected class under which her claim arises (i.e., race or religion). She must then identify a subclass of that protected class (i.e., African American race or Christian religion) and assert that, due to her membership in or relationship to that subclass, she was treated differently in violation of the law. This Article explores the disconnect between self-identity and perceived identity in the context of assigning membership in protected classes and subclasses. Specifically, it analyzes the tension inherent in the protected class deemed “color.? By tracing the relevant legislative history of the Civil Rights Act of 1964 and the jurisprudence that has developed in the wake of its passage, this Article provides critical historical context for how identity has been assigned in civil rights jurisprudence. It finds that the institutional actors — the legislature and the courts — abdicated their responsibility to define the color protected class, differentiate color from race, and give clarity to the relevant subclasses of a color discrimination claim. Recognizing that gap, parties to civil rights actions have stepped into the void. Most recently, parties have begun inserting the concept of “people of color,? a term adopted by a modern progressive social movement to build solidarity and power among non-White minorities, into civil rights challenges. Such a shift in the language of civil rights law brings to the forefront the tension between a plaintiff’s self-identification and the plaintiff’s perceived identity that forms the basis of the defendant’s discriminatory action. This Article warns against adapting the people of color concept for civil rights litigation. It argues that the category people of color, undoubtedly important to developing cultural and political capacity and power, should not be inserted into civil rights litigation. Because of the history of conflating the terms color and “colored,? joined with the difficulty in disentangling color from race, the existing legal structure for establishing civil rights claims leaves little room for reimagining identity. Inserting the people of color construct into civil rights challenges will undercut the potential of the law to provide broad protection against discrimination and runs counter to the goal of achieving racial equality.

"China in the Age of the World Picture" Free Download
Florian Hoffman & Anne Orford eds., Oxford Handbook of the Theory of International Law, Oxford University Press, 2016, Forthcoming
Emory Legal Studies Research Paper No. 16-398

TEEMU RUSKOLA, Emory University School of Law
Email:

Most scholars of international law approach the topic from the vantage point of the North Atlantic, with China figuring at best as an example — or, more frequently, a counter-example — that illustrates a more central point about the history and character of the international legal order. This chapter insists on placing China at the center of international legal theory. Stated most broadly, it asks: How did the multiethnic Qing empire (1644-1911) on the eastern edge of the Eurasian landmass become “China,? a sovereign nation-state in a world of other, formally equal nation-states?

With the aid of Martin Heidegger’s essay “The Age of the World Picture,? this chapter approaches international law as a foundational aspect of the political ontology of the modern world — one that depends on and sustains a particular metaphysical conception of the world, with associated notions of political time and space. In this light, I analyze the law of nations at its origin as the constitution of Europe: a set of constitutive norms that governed the relationship among the so-called “Family of Nations.? As this historically specific legal order has become globalized by means of colonialism, it has become effectively the constitution of the world.

Where is China in the world made by modern international law? The Eurocentrism of mainstream scholarship aside, there is a growing literature on the colonial origins of international law. Much of it is concerned with the juridical implications of the “discovery? of the New World. A focus on Americas in this literature is obviously not unwarranted, yet the implications of the history of the New World cannot necessarily be extended globally. The Orient (to avoid anachronistic use of the term “Asia?) demands a theoretical account of its own, no less than America, and so does China as the dominant Oriental civilization on the eastern end of Eurasia.

This chapter contrasts the now global international law of European origin with the historically Confucian world of East Asia, structured around Chinese cultural and political hegemony. Both traditions pretended to universality while each in fact embodied a particular set of imperial norms — Eurocentric in one case, Sinocentric in the other. Set against this comparative frame, the chapter considers a few key episodes in the historic encounter between these two imperial formations. Throughout, I analyze the Sino-Western encounter not as a clash of civilizations in geographic space and in historical time, but as the collision of different conceptions of space and time. What was at stake in that collision was the constitution of the international legal order and, ultimately, modern world.

"'Impost Begat Convention': New York's Ratification of the Constitution" Free Download

CALVIN H. JOHNSON, University of Texas at Austin - School of Law
Email:

The meaning of the Constitution is said to be set by the ratification debates. The key issue in New York was nationalizing the tax on imports, called the “impost.? The sides as to ratification in New York were set by the debates over the 1783 proposal to give Congress power to impose the impost. The defeated proponents of the 1783 impost in New York became the Federalists in favor of the Constitution in 1788, and the party that had defeated the 1783 impost remained intact to become the Anti-Federalists in opposition to the Constitution in 1788.

Nationalizing the state imposts was the key economic necessity for the Constitution as a whole. The first mission of the Constitution, under proponents’ understanding, was to give Congress a tax of its own to make payments on the debts of the Revolutionary War. In the next and inevitable war, Congress would need to borrow from the Dutch again. The impost was considered across the nation as the easiest tax and most appropriate one under the mercantilist economics of the times.

If New York legislature had granted the general government the power over the impost, the confederation mode of government under the Articles probably would have survived. The confederate congress would not have been replaced by the self-sufficient, vigorous, supreme national government that the Constitution formed, or at least not until some future crisis. As Hamilton appropriately put it, “Impost Begat Convention.?

"Company Law" 
Grantham, Ross (2015). Company Law. In Russell, Mary-Rose and Barber, Matthew (Ed.), The Supreme Court of New Zealand 2004-2013 1st ed. (pp. 93-114) Wellington, New Zealand: Thomson Reuters.

ROSS B. GRANTHAM, The University of Queensland - T.C. Beirne School of Law
Email:

The modern registered company may fairly be described as one of humankind's greatest inventions. Indeed, the Economist of 18 December 1926 said: "The economic historian of the future may assign to the nameless inventor of the principle of limited liability, as applied to trading corporations, a place of honour with Watt and Stephenson, and other pioneers of the Industrial Revolution." As a vehicle for commence and a source of wealth, the company is both ubiquitous and unrivalled, being a more significant factor in the lives of most people than any other institution, including the state and arguably the charge. Although the modern company owes its immediate creation to the legislature, the nature of the corporate form and the content of company law has historically been a joint venture between parliament and the courts. It is thus the case that the decision of the House of Loads in Solomon v A Solomon & Co Ltd is more often cited as the foundation of modern company law than are the Joint Stock Companies Act 1844 (UK), the Limited Liability Act 1855 (UK), or, in New Zealand, the Joint Stock Companies Act 1860.

^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 - 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