"Exile, Choice, and Loyalism: Taking and Restoring Dignity in the American Revolution" Free Download
Symposium on “Dignity Takings,� in Law & Social Inquiry (2016)
NYU School of Law, Public Law Research Paper No. 16-25

DANIEL J. HULSEBOSCH, New York University School of Law

Taking a cue from Bernadette Atuahene’s concept of “dignity takings� and her insight that government expropriation inflicts more than economic injury, this essay analyzes how American revolutionaries defined political membership, penalized and expropriated British loyalists, and then allowed some to join the American polity in the decade after the Revolution. Many recovered their property, professions, and legal privileges. However, because most loyalists could choose to remain loyal or join the Revolution, they did not lose human dignity as Atuahene defines it. Case studies of two reintegrating lawyers, Richard Harison and William Rawle, explore loyalism, the loss of dignities that loyalists suffered, and some paths toward reintegration. Their appointment as federal attorneys helped make the government conversant in the common law, British statutes, and the law of nations, which in turn supported the Federalist goal of reintegrating the United States into the Atlantic World: achieving, in other words, national dignity.

"An Historical Overview of UCC Article 9" Free Download
Secured Transactions Law Reform: Principles, Policies and Practice, Oxford: Hart Publishing Ltd., Forthcoming
SMU Dedman School of Law Legal Studies Research Paper No. 310

PETER WINSHIP, Southern Methodist University - Dedman School of Law

This book chapter traces the history of Article 9 (Secured Transactions) of the U.S. Uniform Commercial Code. After setting out the pre-1940 legal setting in the United States for the use of movable property in secured transactions, the chapter studies three stages in the evolution of Article 9: (1) the drafting of the first “official� text (1947-1951), (2) the continuing revision of the text and its slow adoption by states (1952-1990), and (3) the thorough-going revision that lead to the present 1998 official text and subsequent minor amendments (1990-present). The chapter notes the growing complexity of the text and the importance of the institutional framework within which the text evolved.

"American Indians and the History of U.S. Foreign Relations" Free Download
Diplomatic History, Vol. 39(5), Article Review No. 620, Pp. 943-954, November 2015

ROBERT J. MILLER, Arizona State University (ASU) - Sandra Day O'Connor College of Law

Professor Miller agrees with the conclusions of these three professor-authors that U.S. foreign affairs scholars have almost completely overlooked Indian nations and individual Indian actors. It appears that this omission has occurred primarily because of the statement by the U.S. Supreme Court in 1831 that tribes are "domestic dependent nations." In contrast, though, foreign affairs and foreign relations scholars should focus intently on the relations between American Indian nations and the United States because they were truly "foreign relations." As Miller wrote in 1993, the "United States-tribal relations were the major foreign policy concern of the United States for many decades after the Revolution." Thus, the United States' diplomatic and government-to-government relationships with the Indian nations is most properly a matter of American foreign relations study rather than merely an issue of American domestic history.

"The Political Economy of 'Constitutional Political Economy'" Free Download
Texas Law Review, Forthcoming
Columbia Public Law Research Paper No. 14-521

JEREMY K. KESSLER, Columbia University - Law School

Joseph Fishkin and William Forbath’s book-in-progress, The Anti-Oligarchy Constitution, offers a radical alternative to the constitutional histories that emerged in the 1990s to defend the New Deal synthesis. Fishkin and Forbath’s new constitutional history promises to recast the New Deal as a contingent and incomplete resolution of a centuries-long struggle to achieve the political-economic conditions that the Constitution requires — “requires� in the double sense of “demands� and “depends upon.� This struggle is still ongoing and even accelerating, Fishkin and Forbath report, yet it has become increasingly “one-sided.� First, the post-WWII economic boom dissipated, taking with it much of the middle class that the New Deal and Great Society legal orders had hoped to create. Then, conservative lawyers and politicians stepped up their attacks on the New Deal and Great Society’s remaining achievements, trumpeting a constitutional political economy in which private property free of overweening public management is the pillar of constitutional democracy. Confronted by these dire conditions, legal liberals have forgotten how to fight back, rendered mute by the New Deal synthesis itself, which ironically and erroneously implied that political economy was no longer a matter of constitutional concern. Hoping to even the odds, Fishkin and Forbath offer liberals a grammar of egalitarian constitutional political economy — “the constitution of opportunity� — that was once spoken fluently and effectively by those Americans who argued that the Constitution prohibited oligarchic concentrations of wealth and mandated the political and judicial construction of a broad, inclusive middle class.

By placing the discourse of political economy back at the center of constitutional debate, Fishkin and Forbath have — by any fair measure — done more than enough. Yet scholarly innovators tend to find the ranks of their critics swelled by those who have benefited most from their labor. This Essay is no exception to the oedipal rule. It argues that Fishkin and Forbath could go further still in integrating political economy and constitutional history. At times, their detailed analysis of the discourse of “constitutional political economy� comes at the expense of a more fully materialist account of the political-economic conditions and effects of that discourse. Such a discursive emphasis, in turn, risks an overly optimistic assessment of the past virtues and present utility of “the constitution of opportunity,� the egalitarian dialect of constitutional political economy that Fishkin and Forbath commend to legal liberals today.

"Nuremberg Laws" 
In: The Lawyer Quarterly. - ISSN 1805-8396. - Vol. 5, no. 3 (2015), pp. 184-194

DANIEL KROSLAK, University of Trnava Law School

The Nuremberg Laws of 1935 were anti-Semitic laws in Nazi Germany introduced at the annual Nuremberg Rally of the Nazi Party. The article describes their ideological and legislative genesis and analyzes their content, as well as selected implementing regulations which were adopted in the coming years.

"'Interference in Churches Must Be Referred to the Rights of Property': Church Corporations and Conflict of Laws in Antebellum America" Free Download
Journal of Law and Religion, Vol. 33, No. 1, 2018

KELLEN R. FUNK, Princeton University, Students

Scholars frequently describe American religious disestablishment using commercial analogies, reckoning that states “privatized� religion or subjected churches to “free market competition� by making them more like commercial businesses, yet churches pioneered many of the corporate devices that came to define American enterprise after the Civil War. Such descriptions are thus anachronistic. Antebellum jurists were not concerned about the similarity of churches to businesses but rather their similarity to states, and the republican fear that churches could be rival sovereign states at first structured the law of disestablishment. In most states, churches gained rights of general incorporation but faced significant limitations on their corporate governance and property holdings. After the Marshall Court reasoned that churches did not govern and should not be considered rival sovereignties, state judges were left without a definite source of law to adjudicate church disputes. Given the vagueness of charters under general incorporation schemes, state courts allowed trust law to function as a conflict of law analysis: Judges treated religious doctrine as a foreign legal system with rules that could be ascertained and accorded respect in American courts. Such a move created a positive, corporate right of religious liberty that becomes obscured if one conceives of religious freedom only as an individual right to be asserted against the state.


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