LEGAL HISTORY eJOURNAL

"Seeing it Coming Since 1945: State Bans and Regulations of 'Crafty Sciences' Speech and Activity" Free Download
37 T. Jefferson L. Rev. 39 (2014).

CHRISTINE A. CORCOS, Louisiana State University, Baton Rouge - Paul M. Hebert Law Center
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After the Supreme Court’s decision in United States v. Ballard, Spiritualism’s adherents, like other members of minority belief systems, could qualify for the same First Amendment protections as members of mainstream religions. While Spiritualists could thus celebrate a certain level of victory, they still faced intolerance and outright persecution from some government officials and state legislatures who continued to believe that common Spiritualist practices, which included communication with the dead, divination, and in some cases, faith healing, were simply shams for frauds perpetrated on members of the public who were grieving over the loss of loved ones. In their grief, members of the public sought out Spiritualist practitioners who convinced them that their deceased relatives and friends could speak to them through Spiritualist intervention, and often with the assistance of donations to a Spiritualist church. In many cases, Spiritualist ministers did (and still do) offer assistance in the form of messages from loved ones to assist in guidance for the future.

Some prosecutors and police did not see such messages as legitimate spiritual guidance or genuine prophecy. They still labeled such communications as fortune telling. Under “rogue and vagabond? statutes, a type of disorderly person legislation enacted as early as the 1790s in the United States, fortune telling and like activities were considered fraudulent activity, not religious ministrations. The statutes defined those who carried them out as crafty sciences practitioners or “rogues and vagabonds,? not members of the clergy. However, both the ruling in Ballard and ministerial exemptions that state legislatures carved out of statutes before and after Ballard protected clergy from accusations of fraud. Beginning early in the twentieth century, but in growing numbers after the Second World War, members of minority religions could take advantage of ministerial exemptions to protect themselves from a charge of fraud, even if their activities resembled “crafty sciences practices,? if they could convince the police or the courts that they were clergy and the practices they followed were recognized by their churches.

However, crafty sciences practitioners who were not members of minority religions had more difficulty in escaping fraud accusations. Even if they spoke to willing clients, even if they did not request payment for their services (and some did not, although they accepted donations), and whether they performed their services in entertainment venues or in storefronts, they ran the risk that the police might arrest them and prosecutors might bring criminal charges against them. State statutes and local ordinances that banned fortune telling, palmistry, divination, phrenology, or other crafty sciences practices offered no defense because the First Amendment did not protect such speech. Law enforcement and prosecutors tended to bring fewer complaints of outright fraud against Spiritualists after 1945, and shifted their attention to claims of fraud against others who engaged in the same kinds of practices, including fortune tellers, and by extension, palmists, clairvoyants, and astrologers. At the same time, other minority religious practitioners, emboldened by the success of the Spiritualists as well as other non-traditional groups, began to argue that they too should be able to claim the protections of the First Amendment Free Exercise Clause for practices that included divination, prophesy, and other “crafty sciences? if those practices were part of religious rituals. This Article examines those claims and government responses, in the form of bans and regulations such as zoning and licensing, and tests whether these responses are constitutional under the First Amendment.

"Evolution and Future Trends of Copyright in Nigeria" Free Download
Journal of Open Access to Law, Vol 2, No 1 (2014)

KUNLE OLA, Australian Catholic University (ACU), Faculty of Law, Students
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This paper examines the development of copyright in Nigeria by looking at the different legal regimes that have existed within Nigeria’s copyright system. It provides an historical perspective of the development of Copyright law in Nigeria by tracing the introduction of the first indigenous copyright law in Nigeria and the current copyright legislation into the Nigerian legal system. The paper highlights the issues with the first indigenous copyright legislation, discusses some of the provisions of the Act, and the subsidiary legislations that have been issued. It also examines the role of the Nigerian Copyright Commission as the agency saddled with the responsibility of administering Nigeria’s Copyright Laws. The paper concludes with thoughts on the future for copyright in Nigeria.

"Psst! Wanna Buy a Bridge? IP Transfers of Non-Existent Property" Free Download
31 Georgia State University Law Review 523 (2015)

STEVE BLACK, Texas Tech University School of Law
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It is common practice when hiring a researcher at a university or a laboratory to require the new employee to sign a patent transfer agreement - essentially to agree to give to the employer any inventions that the employee may conceive of during his employment. However, the nature of that pre-invention agreement - which until 1991 was universally thought of as imposing an equitable duty but not as an actual transfer of legal title to an imaginary asset - has been changed by the Federal Circuit and the U.S. Supreme Court.

This Article reviews more than 170 years of legal history dealing with transfers of non-existent assets, and argues that the concept of an "automatic" assignment in patent law rests on shaky ground. Instead, our system of IP law is much better served by a return to common law principles-both "first in time, first in right" and "you may not give what you do not own."

"The Effect of Bankruptcy Law on Roman Credit Markets" Free Download
Business & Bankruptcy Law Journal, Vol. 2, 207

ZACHARY ROBERT HERZ, Columbia University, Students
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Given the importance of lending to economies both ancient and modern, and given the widely acknowledged relevance of creditor and debtor protections for nurturing a vibrant and productive credit market, a large critical literature has developed exploring the intersection of law and lending. However, little work has been done analyzing the role of default law in historical credit markets, particularly those in the ancient world. This article attempts to remedy that gap by considering the interaction between Imperial Rome’s famously pro-debtor default laws and its idiosyncratic credit practices. By constructing a hypothetical model derived from economic analysis of foreign and domestic credit markets and comparing that model’s predictions to literary, historical, and documentary evidence of late Republican and early Imperial lending behavior, this article demonstrates the applicability of a law-and-economics analysis to the Roman world and provides a historical study into the dangers of excessive debtor protection without highly sophisticated risk-sorting procedures on the part of creditors.

"Fanny Hill and the 'Laws of Decency': Investigating Obscenity in the Mid-Eighteenth Century" Free Download
Eighteenth-Century Life, vol. 40 (2016 Forthcoming)

SIMON STERN, University of Toronto - Faculty of Law
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This essay discusses John Cleland's novel The Memoirs of a Woman of Pleasure (1748/9, better known as Fanny Hill), in the context of eighteenth-century obscenity law and the law of search and seizure. To explain why obscenity could have been treated as a criminal offense at all, the essay discusses prosecutions against writers and actors from the later seventeenth century through Cleland's time, showing how the criminality of the offense was taken for granted (circa 1670-1700), then rejected (in 1708), and then rationalized (in 1727). Cleland's novel, notable for resorting to metaphorical and euphemistic language so as to avoid "rank words," was nevertheless easily covered by the rationale offered in Curll (1727), but his case was never brought to trial. While some have thought that this circumstance is mysterious and requires explanation, in fact obscene works were rarely prosecuted at this time, and the decision even to begin proceedings against Cleland is more notable than the decision not to go to trial. Cleland implied, in some of his letters, that he believed his circumlocutory language should have excused him from prosecution, but his stronger argument would have involved the process that led to his arrest: the investigation proceeded by means of a general warrant, a device that would be criticized in the litigation after the 1763 Wilkes prosecution, which in turn influenced the prohibition against unreasonable searches and seizures in the Fourth Amendment to the US Constitution. Along the way, the essay discusses several famous but inaccurate claims about the prosecution of Cleland and his publishers (e.g., that Cleland was paid to stop writing obscene novels, and that his publishers made a fortune from the book), and also includes a list of eighteenth-century editions of Fanny Hill.

"'Cold Legal Points into Points of Flame': Karl Llewellyn Attacks Lynching" Free Download

ALFRED L. BROPHY, University of North Carolina (UNC) at Chapel Hill - School of Law
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This essay puts into context a Foreword that Karl N. Llewellyn wrote for a NAACP brief urging the Department of Justice to prosecute an Alabama sheriff for permitting the lynching of two young men in July 1933. They were accused of assaulting and murdering a young white woman in Tuscaloosa County, Alabama. The lynchings took place in the wake of the Scottsboro, Alabama prosecutions and many saw the lynchings as a response to Scottsboro and also to the presence of lawyers from the International Labour Defence who tried to represent the Tuscaloosa defendants. The lynchings, it seemed, were designed to send a message to African Americans throughout the state.

Llewellyn’s long-forgotten Foreword, which no previous scholars have written about, expands our understanding of Llewellyn and of the role the methods of Legal Realism could play in the Civil Rights Movement. Llewellyn looked at the facts to argue that community members and government officials worked together to protect white supremacy from “challenge even in the courts of law.? Such facts turned “cold legal points into points of flame? and made the case for federal intervention.

The brief, thus reflecting the methods of Realism, focused on close examination of facts to see the world fresh and to make the case for reform. It also suggests that the Civil Rights Movement and Realism may have drawn inspiration from a common well of cultural ideas to go back, see the world as it is, and to hold up those facts to the public, and in that way to change the law and legal practices.

"A Response to Epstein: Honoré De Balzac's Rise and Fall of Cesar Birotteau and Literature's Relevance to Social Science" Free Download
Whittier Law Review, Vol. 36, No. 2, p. 283, 2015

DUSTIN A. ZACKS, King, Nieves & Zacks PLLC
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Richard Epstein has questioned whether the literature is useful to the social sciences. In his 2002 remarks considering George Orwell, Epstein rails against the utility of consulting literary accounts as authority to establish, both factually and scientifically, any specific state of affairs. Rather, he argues that authors tend to overgeneralize from their personal experiences that literary predictiveness is fatally non-falsifiable, and that literature, accordingly, cannot be trusted as a source of authority for lawyers or social scientists.

Although several of Epstein’s arguments are well-founded and may be appropriate in regards to certain authors, the works of Honoré de Balzac may disprove the universality of Epstein’s claims. Balzac’s compendium of dozens of novels and short stories known as the Comedie Humaine, documenting every conceivable aspect of life under the French Restoration, provides relevant points of interest to legal scholars, particularly in light of Balzac’s training as a lawyer.

Balzac’s tale of a bankrupt merchant, The Rise and Fall of Cesar Birotteau, is a uniquely valuable work to emphasize the value of literature to legal scholars. Birotteau’s encounters with the French bankruptcy process paint a historically accurate picture of the state of French law during the Restoration. Perhaps even more noteworthy than its value as a primer of legal history, though, is Balzac’s precise description of the social and physical effects of debt and bankruptcy. These empirically verified observations in narrative fiction directly contradict Epstein’s insistence that literature should not necessarily be considered accurate, normative, or otherwise relevant to legal theory.

This article’s case study of Balzac’s Cesar Birotteau demonstrates the accuracy of his French bankruptcy depictions and of his references to social and physical effects of bankruptcy that have been borne out by empirical literature. Furthermore, Balzac’s dissections of each side of bankruptcy debates foreshadowed questions that scholars continue to raise today. In this manner, Balzac’s forceful novel stands in direct contradiction to Epstein’s arguments that literature cannot, or perhaps should not, be trusted to contribute to legal scholarship and debates.

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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

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LSN SUBJECT MATTER EJOURNALS

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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)
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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, 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, Deceased , University of Chicago - Department of Political Science