"The Root of Title to Copyright in Works" Free Download
Intellectual Property Quarterly 289-327, 2015

DAVID J. BRENNAN, Federation University Australia

For real or chattel property that possession is at the root of title is clear as a matter of legal history. For copyright in works, the answer in legal history to the question of what is at the root of title is not so clear and that lack of clarity has rendered basic aspects of modern law contestable. This essay seeks to address a question that is not typically put: what is at the root of title to copyright in works? The contestability that swirls around this question, which in part is also a ‘history war’, can be distilled in a generalised way. One side perceives modern statutory copyright as having its provenance in common law, which places human authorship at the root of title. The competing view is premised on a public-regulation philosophy of copyright and argues that foundational common law copyright is apocryphal. An inquiry into the root of title to copyright involves the relationship between any authorial right at common law and statutory copyright. The essay commences with a temporal exposition of common law copyright, moving onto the related copyright questions of what amounted to publication and what lay at the root of statutory title – both of which emerged most acutely in the mid-19th Century. It concludes with some discussion about the extent to which the Berne Convention effectively triggered doctrinal resolution of these questions.

"The Illusion of Equality: The Failure of the Community Property Reform to Achieve Management Equality" Free Download
Indiana Law Review, Vol. 48, 2015

ELIZABETH RUTH CARTER, Louisiana State University, Baton Rouge - Paul M. Hebert Law Center

This Article argues that equal management does not exist in any important sense, and that the true goal of the equal management laws was never equality. Community property laws can no longer be honestly described as “a vehicle to ensure the devotion of the couple’s resources to this unique partnership’s purpose: the well-being and future prosperity of the family the couple creates? unless the wife and children are not considered a part of that family. Today, wives in community property states have no better rights than wives in separate property states. In some cases, their economic position may even be worse.

Part I describes the various allocative systems identified by sociologists and provides empirical support for the importance of egalitarian management. Part II describes the historical development of the two legally sanctioned management regimes in the United States: the separate property regime and the community property regime. Part II also examines how spouses actually managed their money in the pre-1970s era. Part III argues that equality was not achieved in fact or in law. First, Part III relies on quantitative and qualitative research to demonstrate that equality was not achieved in fact. Then, Part III examines the history of the reform era and argues that equality was not the primary goal of the legal reforms. Part IV elaborates on this thesis and examines how the laws in effect today perpetuate inequality.

"Prior Appropriation: A Reassessment" Free Download
Water Law Review, Vol 18, No. 2, 2015

LAWRENCE J. MACDONNELL, University of Colorado Law School

This paper provides an overview of the literature critiquing the Prior Appropriation Doctrine, examines the historical evolution of the doctrine, and offers recommendations for modernizing its major concepts.

"The History of Genres: Reaching for Reality in Law and Literature" Free Download
39 Law & Social Inquiry 1057

ANAT ROSENBERG, Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Genres are historical formations; their ability to generate knowledge depends on their interrelationships within a culture. Since law, too, can be viewed as a genre, studies of specific historical relationalities between law and other genres are necessary for law’s own history and theory. This essay discusses differentiations between Victorian law and literature, starting out from the recent publication of Ayelet Ben-Yishai’s Common Precedents: The Presentness of the Past in Victorian Law and Fiction (2013), which reveals some of that history. I examine two points: differentiations in legal and literary approaches to probabilistic knowledge, and differentiations in the author functions in law and literature. These differentiations bear multiple implications. I discuss implications for evidence-law debates about probabilistic evidence, for contract-law debates about the centrality of autonomy and self-authorship, and for understandings of legal reasoning itself — the elusive notion of “thinking like a lawyer.?

"The Myth of Magna Carta — Or, How a Failed Peace Treaty with French Aristocrats Was Reinvented as the Foundation of English (and American) Liberty" Free Download

SIMON CHESTERMAN, National University of Singapore (NUS) - Faculty of Law

Magna Carta bears an iconic status in legal history. Signed eight centuries ago by King John at Runnymede, near Windsor, it laid the foundations for constraints on arbitrary power — the basis for the rule of law, democracy, and human rights.

The only problem with the historical account is that almost none of it is true. The agreement at Runnymede was not a constitutional document intended to limit power but a peace treaty to preserve the King’s rule. Despite many paintings and a commemorative £2 coin showing him holding Magna Carta and a quill, King John never signed it.

Oh, and it was not called Magna Carta.

"Miranda v. Arizona: 50 Years of Judges Regulating Police Interrogation" Free Download
16 Insights on Law & Society 4, 2015

BROOKS HOLLAND, Gonzaga University School of Law

This article commemorates the 50th anniversary of Miranda v. Arizona (1966) by examining the history, meaning, and impact of the Miranda rule. The article's main audience is teachers of history, civics, government, social studies, and law at the high school and college levels. The article, however, also would be an effective introduction or review resource on Miranda for law students and legal professionals.


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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Legal History eJournal

Princeton University - Department of Philosophy

Andrew W. Mellon Foundation Scholar, Center for Human Values, Peter Brooks, Princeton University

University of California, Berkeley

Columbia Law School

Harvard University - Department of African-American Studies

Nelson Bowman Sweitzer & Marie B. Sweitzer Professor of Law, Stanford Law School

University of California, Santa Cruz - History of Consciousness

Harvard Law School

Henry King Ransom Professor of Law, University of Michigan Law School, Distinguished Research Scholar, University of Toronto Faculty of Law

Nicholas deB. Katzenbach Professor of Law, Yale University - Law School

Columbia Law School

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