Table of Contents

The Paths to Griswold

Ryan C. Williams, Columbia University - Law School

Is Confidentiality Really Forever -- Even If the Client Dies or Ceases to Exist?

Anne Klinefelter, University of North Carolina (UNC) at Chapel Hill - School of Law
Marc C. Laredo, Laredo & Smith, LLP

Native American Lands and the Supreme Court

Angela Riley, University of California, Los Angeles (UCLA)

From Bards to Search Engines: Finding What Readers Want from Ancient Times to the World Wide Web

Stephen M. Maurer, University of California, Berkeley

The Dutch East India Company's Tax Farming in 18th Century Malacca

Diane Kraal, Monash University - Department of Business Law and Taxation
Jeyapalan Kasipillai, Monash University - Sunway Campus


LEGAL HISTORY eJOURNAL

"The Paths to Griswold" Free Download
Notre Dame Law Review, Vol. 89, No. 5, 2014

RYAN C. WILLIAMS, Columbia University - Law School
Email:

This Essay, prepared for a Notre Dame Law Review symposium on the catalysts of constitutional change during the twentieth century, takes as its focus the Warren Court’s landmark decision in Griswold v. Connecticut, 381 U.S. 479 (1965). Existing scholarly accounts of Griswold tend to emphasize influences emanating from outside the Court, such as the social movement activism of birth control advocates and shifting public attitudes toward sexuality, contraception, and women’s rights. These influences are often presumed to account for the Justices’ decision to recognize an unenumerated constitutional right to marital privacy and procreative liberty. But any attempt to explain Griswold by focusing solely on such “external? factors risks missing important parts of the story.

This Essay seeks to develop a more complete picture of Griswold by situating the Court’s decision within a series of important doctrinal and jurisprudential debates and developments that were occurring during the period immediately surrounding the Court’s consideration of the case. In particular, the Essay focuses on: (1) the Supreme Court’s evolving attitudes toward Article III justiciability doctrines during the middle decades of the twentieth century, (2) the evolution of the Court’s thinking regarding substantive due process and the relationship between that doctrine and the “incorporation? of particular Bill-of-Rights guarantees against state governments, (3) the mid-twentieth century revival of academic interest in the Ninth Amendment’s original meaning, (4) the ascendance of strong purposivism as the dominant mode of legal interpretation, and (5) the emergence and rapid proliferation of “strict scrutiny? as a doctrinal test during the early 1960’s. Though often overlooked or downplayed in discussions of the case, these influences played an important role in shaping the timing, structure and enduring doctrinal significance of the Griswold decision.

"Is Confidentiality Really Forever -- Even If the Client Dies or Ceases to Exist?" Free Download
Litigation, Vol. 40, No. 3, pp. 47-51, Spring 2014

ANNE KLINEFELTER, University of North Carolina (UNC) at Chapel Hill - School of Law
Email:
MARC C. LAREDO, Laredo & Smith, LLP
Email:

The law firm of Lizzie Borden’s lead attorney continues to maintain her client files in a confidential manner. In contrast, the trove of notes kept by another attorney on the defense team were discovered by his grandson, who willed the client materials to the local Massachusetts historical society, making them generally accessible some 100 years after the murder trial.

Which is the right result? Does client confidentiality live forever? What if the client is an entity rather than an individual? Should there be some point in time -- 50 or 100 years -- when this right to confidentiality expires? Who will enforce the privilege once all the participants are dead? These questions have important implications for attorneys, law firms, and corporate entities. But they are also questions of importance to librarians whose libraries might be given papers that were protected by the attorney-client privilege, represented work product, or were the subject of an attorney’s ethical obligation to protect the confidentiality of client matters.

This short essay raises these questions and considers the legal, policy, and practical issues involved. Several approaches are outlined and briefly evaluated.

"Native American Lands and the Supreme Court" Free Download
Journal of Supreme Court History, 38: 369-385, 2013

ANGELA RILEY, University of California, Los Angeles (UCLA)
Email:

The Supreme Court has been instrumental in defining legal rights and obligations pertaining to Indian lands since its first path-making decision in the field in Johnson v. McIntosh in 1823. But the groundwork for the Court's contemplation of such cases predates Supreme Court jurisprudence, and it in fact predates the formation of the Court and the United States itself.

When Europeans first made contact with this continent, they encountered hundreds of indigenous, sovereign nations representing enormous diversity in terms of language, culture, religion, and governance. For those indigenous groups -- as is a common attribute of indignity of similarly situated indigenous groups around the world -- this land was and is holy land. Indigenous creation stories root Indian people in this continent -- Turtle Island to many -- as the focal point of life, creation, religion, culture, and language. In the settlement of the country, the colonial powers initially -- and the United States subsequently -- treated with Indian nations to negotiate the transfer of lands from Indians to Europeans, often in exchange for peace or protection.

"From Bards to Search Engines: Finding What Readers Want from Ancient Times to the World Wide Web" Free Download

STEPHEN M. MAURER, University of California, Berkeley
Email:

Copyright theorists often ask how incentives can be designed to create better books, movies, and art. But this is not the whole story. As the Roman satirist Martial pointed out two thousand years ago, markets routinely ignore good and even excellent works. The insight reminds us that incentives to find content are just as necessary as incentives to make it. Recent social science research explains why markets fail and how timely interventions can save deserving titles from oblivion. This article reviews society’s long struggle to fix the vagaries of search since the invention of literature. We build on this history to suggest policies for the emerging world of online media.

Homeric literature was produced and disseminated through direct interactions between audiences and authors. Though appealing in many ways, the process was agonizingly slow. By the 1st Century AD commercial publishers had moved to the modern model of charging readers above-cost prices to pay for search and marketing. Crucially, the new model was only sustainable so long as firms could suppress copying. We argue that Roman and early modern publishers developed remarkably successful self-help strategies to do this. However, their methods did little to suppress copying after the first edition. This seemingly modest defect made publishers profoundly risk averse. Ancient best-seller lists were invariably dominated by authors who had been dead for centuries.

Publishers’ self-help systems collapsed under a wave of piracy in the mid-17th Century. This led to the first modern copyright statutes. Crucially, the new laws extended protection beyond the first edition. This encouraged modern business models in which publishers gamble on a dozen titles for each that succeeds. The ensuing proliferation of titles helped fuel the Enlightenment. It also promoted a rich new ecosystem of search institutions including libraries, newspaper critics, and editors.

The Digital Age has changed everything. As copyright fades, the old institutions for finding titles are drying up. We explore several possible responses. First, society can shore up current publishing models by expanding copyright and technical protections. We argue that these methods cannot save book search but might be adequate for music and movies. Second, search engines could pay for editors. We argue that an on-line Digital Bookstore can suppress copyists long enough to fund reasonable search efforts. Finally, society can return to the Homeric pattern of harvesting advice directly from audiences. We explore various commercial and open source institutions for organizing the work.

"The Dutch East India Company's Tax Farming in 18th Century Malacca" Free Download
eJournal of Tax Research (2014) vol. 12, no. 1, pp. 253 - 281

DIANE KRAAL, Monash University - Department of Business Law and Taxation
Email:
JEYAPALAN KASIPILLAI, Monash University - Sunway Campus
Email:

This study concerns eighteenth century Dutch East India Company (VOC) tax farming practices in the Southeast Asian port town of Malacca. Empirical data from VOC archives are used to determine the value of VOC’s tax farming. Adopting a qualitative methodology, and drawing on perspectives from Adam Smith’s tax maxims, the study focuses on determining the impact of the VOC’s tax farming practices on Malacca’s taxpayers, whether they were inter-continental or local intra-island traders, townspeople, or Malay farmers. The study facilitates a further understanding of the global phenomenon of tax farming practice and its demise. Findings suggest that the impact of the VOC’s Malacca tax farming varied across groups of taxpayers, but more negatively affected minority and local Malay groups, demonstrating why Adam Smith’s governance maxims still guide government tax policy in many countries today. The study complements the paper published from the 2012 Tax History Conference in Cambridge, which covered the nineteenth century handover of Malacca by the Dutch to the British.

^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.

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 - Department of Political Science