LEGAL HISTORY eJOURNAL

"The Origins (And Fragility) of Judicial Independence" Free Download
Vanderbilt Law Review, Forthcoming

TARA LEIGH GROVE, William & Mary Law School
Email:

The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court’s size in order to pack it with like-minded Justices. And yet a closer look reveals that these “self-evident truths? of judicial independence are neither self-evident nor necessary implications of our constitutional text, structure, and history. This Article demonstrates that many government officials once viewed these court-curbing measures as not only constitutionally permissible but also desirable (and politically viable) methods of “checking? the judiciary. The Article tells the story of how political actors came to treat each measure as “out of bounds? and thus built what the Article calls “conventions of judicial independence.? But implicit in this story is a cautionary tale about the fragility of judicial independence. Indeed, this account underscores the extent to which judicial independence is politically constructed and historically contingent. Particularly at a time when government officials seem willing to depart from other longstanding norms, federal judges should take none of their current protections for granted.

"Dominance by Inaction: Delaware's Long Silence on Corporate Officers" Free Download
Can Delaware Be Dethroned? Evaluating Delaware's Dominance of Corporate Law, S. Bainbridge, ed., Cambridge University Press 2017
U of St. Thomas (Minnesota) Legal Studies Research Paper No. 17-09
Washington & Lee Legal Studies Paper No. 2017-11

LYMAN JOHNSON, Washington and Lee University - School of Law, University of St. Thomas, St. Paul/Minneapolis, MN - School of Law
Email:

With the adoption of Delaware's general incorporation statute in 1899, and New Jersey's ill-fated (and short-lived) turn toward a more regulatory approach to corporate law, Delaware triumphed in the corporate chartering business. Delaware's ascendance in the corporate law market has endured for over a century, notwithstanding state competitors and the looming presence of -- and occasional intervention by -- the federal government on certain corporate law subjects. Various explanations are provided as to why Delaware continues to dominate, and various assessments have been offered as to whether, overall, Delaware's corporate law jurisprudence is beneficial or detrimental for investors. These explanations and assessments typically focus on what Delaware has done well over the years to retain its prominence, not on what, deliberately or fortuitously, it has failed to do.

This chapter addresses Delaware's remarkable silence on a central aspect of corporate governance: the various legal issues associated with executive corporate officers. Unlike the case with corporate directors, where Delaware has resolved a host of issues over many decades, Delaware has yet to provide an answer to certain basic questions pertaining to officers. These include: whether the business judgment rule applies to officers; what the applicable standard of care is for officers; why, if officers are employees and agents of the company and not of shareholders, investors can bring direct actions; the nature and contours of officer disclosure and oversight duties; whether officers may consider noninvestor stakeholders; and whether the Unocal and Revlon standards apply to officers.

This statutory and case law silence, however puzzling and long-running, and whatever its reasons -- which are described -- has served Delaware well. By not articulating legal rules that some might regard as too lax and others as too severe, but instead saying very little at all, Delaware has allowed the subject of officers to largely be addressed in other ways. These include board of director interactions with officers via ex ante employment agreements and ex post severance arrangements, increased federal regulation and sanctioning of certain officer-related conduct, litigation conducted outside Delaware, but relatively little Delaware litigation that promulgates clear rules. This chapter addresses these various dimensions of Delaware's sparse law on officers, the reasons for the scarcity, and how silence on such an important subject has contributed, ironically, to Delaware's historical preeminence. At the same time, Delaware's eventual resolution of officer-related issues is unlikely to weaken its now long-established hegemony.

"The Eighth Amendment's Milieu: Penal Reform in the Late Eighteenth Century" Free Download
Journal of Criminal Law and Criminology, Vol. 106, No. 3, 2016

ERIN BRAATZ, New York University (NYU)
Email:

Conflicting interpretations of the history of the “cruel and unusual punishments? clause of the Eighth Amendment play a significant role in seemingly never-ending debates within the Supreme Court over the scope of that Amendment’s application. These competing histories have at their cores some conception of the specific punishments deemed acceptable at the time of the Amendment’s adoption. These narrow accounts fail, however, to seriously engage with the broader history of penal practice and reform in the eighteenth century. This is a critical deficiency as the century leading up to the adoption of the Eighth Amendment was a period in which penal practices underwent numerous changes and reforms.

This Article closely examines the experiments in penal reform that occurred in the American colonies immediately following the Revolution to elucidate what the Founding Generation thought about penal form, how and why it might change, and its relationship to the creation of the American republic. It argues that these penal reform movements, which have been ignored in discussions of the Eighth Amendment, were well known during the founding era. Furthermore, the salience of these reform movements at the time demonstrates a persistent concern among the Founders with adopting a more enlightened or civilized penal code in order to distinguish the American republic from monarchical practices in England and Europe. Foregrounding the content of both the experiments themselves and the debates over penal practice, they reflect yields important and previously unrecognized insights for our understanding of the Eighth Amendment’s meaning and its import at the time it was drafted.

This Article helps illuminate current debates over the interpretation and application of the Eighth Amendment, including the use of international comparisons, the idea of evolution or progress, and the concept of proportionality. It also exposes significant gaps and limitations in the historical accounts relied upon by the Court to date.

"Literary and Dramatic Disputes in Shakespeare's Time" Free Download
Journal of International Dispute Settlement, Forthcoming

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

Disputes over literary works and plays — between one authors and another, one publisher and another, and between authors and publishers — have arisen since the ancient world. This is to be expected, since publishing poems and plays and producing theatrical performances can have significant economic, political, and emotional implications all at the same time. The nature and legal frameworks governing these disputes have changed dramatically over the centuries, however, particularly with regard to the proprietary rights involved.

Though modern copyright law did not exist at the time, the Elizabethan age saw a high degree of professionalism of theatrical performance, book publishing, and dramatic authorship. When audiences are clamoring for novel entertainments, authorship is becoming a professional activity, and profits are to be made, customs and traditions inevitably arise — as do violations of those customs and traditions. This article discusses the framework of authorship and publishing in Shakespeare’s time and examines some of the disputes that arose and how they were resolved in a context where the legal remedies were limited. Methods from patronage to private guild “courts? to theft to public denunciation to outright violence were employed in attempts to maintain profitable businesses in publishing and theatre.

"‘A Woman of Strange, Unfathomable Presence’: Ida Platt's Lived Experience of Race, Gender, and Law, 1863-1939" Free Download

GWEN JORDAN, University of Illinois at Springfield
Email:

In 1894, Ida Platt became the first African-American woman lawyer in Illinois. She was one of only five black women lawyers in the country and the only one able to maintain a law practice. Throughout her thirty-three year career, Platt served as head of her household, providing for her mother and sisters, without marrying or having children. She accomplished these feats by employing a fluid racial identity, passing as white in her professional life, and by avoiding the dominant gender roles that excluded women from the masculine legal profession. In 1927, at the age of sixty-four, Ida Platt retired, married Walter Burke, a white man, and moved to England. Twelve years later, Ida Burke died. As is the practice in England, there was no race designation on her death certificate.

Platt’s choice to employ a fluid racial identity allowed her to pursue her career as a lawyer amidst a racist and sexist society that particularly discriminated against black women. She entered the law when Jim Crow was taking root, race lines were hardening, and elite, white, male lawyers were intensifying their opposition to women’s rise within the profession. Platt’s life and career offer insights into how law and the legal profession responded to the complexities of race and tender a new story of the lived experience of race as it intersects with gender. It suggests that Platt’s pragmatic strategy of changing her racial identity both contested and shaped the ways in which race, gender, and identity were constructed and represented in American society, as it exposed both the rigidity and permeability of these constructions. 

"Trump as the First Deal-Maker-In-Chief: Promise and Perils of the Model" Free Download
2017 University of Illinois Law Review Online: Trump 100 Days

ROBIN BRADLEY KAR, University of Illinois College of Law
Email:

Donald J. Trump ran for president on the claim that he was uniquely qualified to solve America’s problems because of his professed business acumen, outsider status, and mastery of the art of the deal. This profession contains a self-diagnosis of America’s problems: America is suffering because politicians who lack Trump’s business experience have been making bad deals on trade, foreign relations, and immigration. What America needs is the first Deal-Maker-in-Chief.

Few voters could have understood what Trump meant by this during the election. To a contract specialist, however, Trump’s first 100 days suggest an emerging approach to governance, rooted in his idiosyncratic business experience, which deserves closer scrutiny from all Americans. Trump’s model of executive governance through deal-making suggests that he may not be able to serve as a fully functional president. His governing style may also render him especially prone to intolerable forms of corruption.

"Narratives of Criminal Procedure from Doyle to Chandler to Burke" Free Download
New England Law Review, Vol. 51, No. 2, 2017

SIMON STERN, University of Toronto - Faculty of Law
Email:

Despite the considerable body of work aimed at showing that law is a form of narrative, these efforts have not found many adherents for the view that legal briefs and judicial opinions make better bedtime reading than mystery novels or courtroom dramas. This well-attested preference for fictional narrative suggests that the kind of satisfaction it offers is very different from the pleasures to be had from the genres of professional writing that we associate with forensic advocacy and decision-making. In the latter case, narrative serves the purpose of persuasion. Fiction may also seek to persuade, but more fundamentally it seeks to engage readers in the characters and the events, encouraging a kind of immersion in the story that is hardly necessary, and is rarely attainable, in legal writing.

Writers who have been successful in both areas are rare, because they have had to master a variety of skills that are often breezily assumed to be complementary or even cognate, but that turn out to have little in common once we look under the overarching label of “narrative? and try to specify them more concretely. Consider, for example, the roles of dialogue, characterization, and perspective (not to mention the orchestration of events so as to pique the reader’s curiosity, rather than simply to make the details readily comprehensible). The usual forms of legal writing offer no opportunity for cultivating these skills, whereas the novelist can hardly do without them. Alafair Burke is among the few writers who have pursued a truly successful literary career while also producing a significant amount of work in the legal arena. In what follows, I consider the place of the criminal justice system in her most recent novel, The Ex. To provide some context for that discussion, I first show how legal mechanisms for investigating and prosecuting crime have figured in British and American literature over the last three hundred years. Then, I turn to Burke's novel, showing how it uses techniques of literary narrative to conspire with its treatment of doctrinal questions in criminal procedure.

Bennett Capers's Re-Reading Alafair Burke's The Ex, also on SSRN, is a contribution to the same NELR Symposium.

^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
Carter Professor of General Jurisprudence Emeritus, 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