Table of Contents

Debt of Honor: A Sabine Hall Gamester Comes to Ruin in Fredericksburg

Thomas Katheder, Independent

Incomplete Organizations: Legal Entities and Asset Partitioning in Roman Commerce

Henry Hansmann, Yale Law School, European Corporate Governance Institute (ECGI)
Reinier Kraakman, Harvard Law School, European Corporate Governance Institute
Richard Squire, Fordham University School of Law

Justifying a Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule

Gabriel J. Chin, University of California, Davis - School of Law

History in Law, Mythmaking, and Constitutional Legitimacy

Patrick J. Charles, Government of the United States of America - Air Force

The 'Gift' of Liberty: Testamentary Manumission in New Jersey - 1791-1805

Stuart Gold, Rutgers, The State University of New Jersey - Rutgers University, Newark

Megillath Esther and the Rule of Law: Disobedience and Obligation

Craig A. Stern, Regent University School of Law


LEGAL HISTORY eJOURNAL

"Debt of Honor: A Sabine Hall Gamester Comes to Ruin in Fredericksburg" Free Download

THOMAS KATHEDER, Independent
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In October 1791, Sabine Hall scion George Carter (1762-1802), so inebriated and exhausted from “three days & three whole nights� of play that he could barely hold up his cards — or his head — lost £1,893 to John Cooper in a final late-night round of the game Twenty-One at Benson’s Tavern in Fredericksburg, Virginia. Though Virginia newspapers discretely omitted mention of Carter’s shocking loss (out of respect for his powerful, elite family), tongues wagged with the sordid story in Fredericksburg and beyond, and the question of how to deal with Cooper’s demand for payment presented a profound crisis of family honor for the Carters. This paper will examine the culture of gaming in eighteenth-century Virginia and the clash between family honor, as it was understood by Virginia's elite at the time, and the law. It will illustrate how at least one family would sooner render themselves insolvent than breach their notion of family honor.

"Incomplete Organizations: Legal Entities and Asset Partitioning in Roman Commerce" Free Download

HENRY HANSMANN, Yale Law School, European Corporate Governance Institute (ECGI)
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REINIER KRAAKMAN, Harvard Law School, European Corporate Governance Institute
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RICHARD SQUIRE, Fordham University School of Law
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In this chapter we analyze ancient Rome’s law of business entities from the perspective of asset partitioning, by which we mean the delimiting of creditor collection rights based on the distinction between business assets and personal assets. Asset partitioning, which is an essential legal attribute of modern business forms such as the partnership and the business corporation, reduces borrowing costs by simplifying credit-risk assessment and expediting insolvency proceedings. We find that ancient Roman business arrangements, such as the societas (very loosely, “partnership�) and the slave-run business endowed by the slaveowner with a peculium (a sum of capital), did not give business creditors the first claim to business assets, making these forms of organization non-entities according to the criterion of asset partitioning. It appears that the only true legal entity used to form profit-seeking firms was the societas publicanorum, which roughly resembled the modern limited partnership. But use of that form was generally limited to firms providing services contracted out by the state. Moreover, the societas publicanorum was largely a creature of the Republic, and was largely abandoned during the Empire. Although Rome had a complex economy and sophisticated commercial law, and was familiar with most of the types of asset partitioning we see in modern legal systems, it ultimately failed to develop legal entities for general use in commerce. Apparent reasons include the Roman aristocracy’s disparagement of commerce, the emperors’ wariness of strong organizations outside the state, and the society’s continuing reliance on the family -- a durable and complex legal entity in its own right -- to handle many of the needs of commerce.

"Justifying a Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule" Free Download
Boston University Law Review, Vol. 94, No. 5, 2014

GABRIEL J. CHIN, University of California, Davis - School of Law
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In Shelby County v. Holder, the Supreme Court invalidated Section 4 of the Voting Rights Act of 1965, which required certain jurisdictions with histories of discrimination to “preclear� changes to their voting practices under Section 5 before those changes could become effective. This Article proposes that Congress ground its responsive voting rights legislation in the Constitution’s Guarantee Clause, in addition to the Fourteenth and Fifteenth Amendments. The Court has made clear that the Guarantee Clause is a power granted exclusively to Congress and that questions of its exercise are nonjusticiable. It is also clear from the Federalist Papers and from scholarly writing – as well as from what little the Court has said – that the purpose of the Guarantee Clause is to protect majority rule. That is precisely what was at issue after the Civil War when Congress first used the Guarantee Clause to protect African American votes. As an absolute majority in three states and over forty percent of the population in four others, African Americans possessed political control when allowed to vote; when disenfranchised, they were subjected to minority rule. African Americans are no longer the majority in any state. But in a closely divided political environment, whether African Americans and other minorities can vote freely may be decisive in many elections. For this reason, Congress could legitimately ground a revised Voting Rights Act in the Guarantee Clause, and the Court should treat its validity as a nonjusticiable political question committed by the Constitution to Congress.

"History in Law, Mythmaking, and Constitutional Legitimacy" Free Download
Cleveland State Law Review, Vol. 62, 2014

PATRICK J. CHARLES, Government of the United States of America - Air Force
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Defining what constitutes myth and history has been an ongoing debate among historians for over a century. The debate centers as to whether there can truly ever be such a thing as an objective historical account. Given that all historical inquiries grow out of the respective historian’s ideological mind, it is argued the writing of history is not so much about truth-seeking as it is about the ideological leanings of the respective historian. In other words, critics of objective history frequently claim that one historian’s truth is another’s falsity.

In any case there is an argument to be made that all history is myth and all myth is history. No matter how much of the evidentiary record is uncovered, no historian can ever fully reconstruct the past as it was. In their totality, those moments in history are lost forever. The best any historian can do is build upon those evidentiary remnants which remain. Still, at one level or another, historians will have to make a number of assumptions about the past. In some instances the assumptions will be small or minute because the evidentiary record is rich with information about the past, allowing the respective historian to recreate an event or time period in excruciating detail. In other instances the assumptions can be substantial, especially when the evidentiary record is barren, requiring the respective historian to fill the evidentiary gaps. But whenever historians make any assumptions about the past — whether they be minor or substantial — they are perpetuating myth in some form or another.

Given these problems, this article builds upon a previous work — "Historicism, Originalism and the Constitution" — and argues that history is much better suited as a philosophical and moral guide towards understanding the law’s development. This in turn minimizes mythmaking and the creation of poor constitutional constructs. This does not mean, however, that to legally reason from subjective historical accounts or myth can never be a legitimate enterprise. As this article outlines, there is at least two scenarios (and perhaps others) where the acceptance of myth is constitutionally legitimate.

"The 'Gift' of Liberty: Testamentary Manumission in New Jersey - 1791-1805" Free Download
Rutgers Race and the Law Review, Vol. 15, No. 1, 2014

STUART GOLD, Rutgers, The State University of New Jersey - Rutgers University, Newark
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This paper explores the process of manumission by will in Early Republic New Jersey between 1791 and 1805. The paper reviews the legal mechanisms available for manumission in New Jersey during this period, and places New Jersey's manumission process in context with its sister states of New York and Pennsylvania. The primary focus of the paper is a detailed analysis of the various schemes of manumission employed by testators, as well as geographical and gender differences in detecting patterns for manumission.

"Megillath Esther and the Rule of Law: Disobedience and Obligation" Free Download

CRAIG A. STERN, Regent University School of Law
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Strange is Megillath Esther, the Scroll of Esther. It mentions God not once, yet it is second only to the Torah, the Five Books of Moses, for wealth of rabbinic commentary. It recounts part of the sacred history of the Jews, yet it is set in Persia. It emphasizes the obligation of Jews to observe the holiday of Purim, yet it emphasizes at the same time the importance of violating legal obligations. Perhaps no other book of the Bible offers such a mix of plotting and ironic reversals, of mass partying and mass killing, of folly and deadly earnest.

All the same, perhaps no other book of the Bible offers wisdom on the legal order of more importance to contemporary America. The Scroll of Esther — often called simply, “the Megillah� — supports a fundamental rule of law while observing that some laws may be foolish and more honored in the breach. If America has become a land where it may be expected that the typical resident commits, in the words of Harvey Silverglate, “[t]hree [f]elonies a [d]ay,� and where the Executive Branch uses prosecutorial discretion as a dispensing power, it may welcome a lesson on how the rule of law might endure such a time. Perhaps the Megillah was written “for such a time as this.� (Esther 4:14.)

The Megillah exists to commemorate both God’s deliverance of the Jews and also the annual celebration of that deliverance, Purim. The record of the Jewish community’s taking upon itself the obligation to keep the festival of Purim culminates the Megillah. That obligation is one of law. But the story of the Megillah turns repeatedly upon instances when the heroes of the story disobey law, sometimes without penalty, and sometimes even with great advantage. And so arises the biggest irony in a work noted for its ironies: The Megillah imposes the obligation to obey a law founded indirectly upon disobedience to laws. To do so successfully requires that it distinguish between laws to be kept and laws not to be kept. Furthermore, it must make the distinction clear and authoritative enough that the two categories marked by the distinction do not bleed into one another. This distinction is essential to the Megillah. It also is essential to the health of a legal system of the sort now to be found in America.

This article explores the jurisprudence of the Megillah, focusing on the question of obedience and the rule of law. Part I summarizes the story of Esther. Part II takes a closer look at how law figures in the story. Part III poses the tension between law in the Megillah and the very purposes of the Megillah. Part IV explains how the Megillah resolves that tension in its teaching on legal obligation. Part V concludes with reflections on the significance of that teaching for the rule of law. This article presents the jurisprudence of the Megillah as a fundamental lesson of this book of the Bible.

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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