Legal History eJournal最新文献

{"title":"The Lincoln Administration and Freedom of the Press in Civil War Maryland","authors":"M. Schearer","doi":"10.2139/ssrn.3908746","DOIUrl":"https://doi.org/10.2139/ssrn.3908746","url":null,"abstract":"Across all of American history, the accumulation of state power during times of war and national emergency has been the most destructive threat to freedom of the press. Clashes between the government and the press have occurred as early as the Quasi-War with France and recently as the War on Terror. Freedom of the press came under sustained assault during World War I and again during the Vietnam War. But perhaps the most outrageous violations of freedom of the press came during the Civil War. Although suppression of freedom of the press by the Lincoln Administration took place across a broad swath of the Union, the battle between government and press was particularly acute in border states because of their slave populations and secessionist sentiments. In particular, Maryland presented a complex challenge to President Lincoln during the Civil War. The people of the slaveholding state were sympathetic to the South, but its economy was becoming increasingly integrated with the industrial North. Most importantly, Maryland's strategic location placed it on three sides of Washington, D.C.; and its secession would leave the national capital completely surrounded by the Confederacy. Deciding that the loss of the capital would be intolerable to the war effort, the Lincoln administration suspended the writ of habeas corpus as part of a larger, deliberate campaign to keep Maryland in the Union. The suspension was the foundation upon which the administration suppressed freedom of the press in Maryland. This strategy involved imprisonment without trial of journalists and publishers, seizing their property, deportation beyond the Federal lines, shuttering of their newspapers, and barring their publications from using the mails. These events represented among the most egregious violations of civil liberties in American history.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131645781","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Attractive Sources. Tax Havens’ Emergence: Mythical Origins versus Structural Evolutions","authors":"Christoph Farquet","doi":"10.2139/ssrn.3897377","DOIUrl":"https://doi.org/10.2139/ssrn.3897377","url":null,"abstract":"The article proposes a new interpretation of the development of tax havens in the 19th and 20th centuries. Few historians have addressed this issue, and the long-term narratives over the evolution of tax havens remain unconvincing and rely on several misconceptions and anachronisms. The article first examines the supposed origins of tax havens before the First World War. It contradicts the idea that the modern history of tax havens began during the financial globalization of the Belle Epoque. Indeed, movements of capital flight caused by taxation became significant only from 1914 onwards due to the rise in taxes in warring countries. The second part of the article thus focuses on the development of tax havens during the interwar years by demonstrating how offshore centres already played a crucial role in the functioning of the gold exchange standard in Europe at the time – a fact that financial history has overlooked. Finally, the article analyses the revival of the offshore economy that occurred after a period of decline from the end of the 1950s onwards. It challenges the thesis that this resurgence was deeply driven by decolonisation and highlights the process that connected the financial liberalization in rich countries to the regeneration of tax havens. This article provides the first serious long-term perspective on this subject based on extensive investigations into archives. As such, it offers a significant contribution to economic history.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"179 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125817135","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"„Sacrum Palatium“. Eine in der Gegenwart missbrauchte Konstruktion des 9. Jahrhunderts ('Sacrum Palatium'. A 9th Century Construction Abused in the Present Day)","authors":"C. Ehlers","doi":"10.2139/ssrn.3836591","DOIUrl":"https://doi.org/10.2139/ssrn.3836591","url":null,"abstract":"<b>German Abstract:</b> In dem kurzen Beitrag geht es um die Einordnung des Begriffspaares „Sacrum Palatium“ in die frühmittelalterlich-karolingischen Quellen. Es wird dessen Verwendung anhand der überschaubaren Anzahl von Belegstellen nachvollzogen und in einen historischen Kontext gestellt. Es kann gezeigt werden, dass sich dieser auf wenige, aber durchaus prominente Jahrzehnte der Herrschaft Ludwigs des Frommen eingrenzen lässt, und erst kürzlich ein Eigenleben entwickelt hat.<br><br><b>English Abstract:</b> The short article deals with the classification of the term \"Sacrum Palatium\" in the early medieval Carolingian sources. Its use is traced based on a manageable number of references and placed in a historical context. It can be shown that it can be confined to a few, but quite prominent decades of the reign of Louis the Pious, and has only recently developed a life of its own.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126011720","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Textualism and the Modern Explanatory Statute","authors":"Adam Crews","doi":"10.2139/ssrn.3820850","DOIUrl":"https://doi.org/10.2139/ssrn.3820850","url":null,"abstract":"The explanatory statute is a largely forgotten legislative tool. Once common, the explanatory statute was a retrospective act that identified an ambiguity or erroneous interpretation of a prior law and then directed the legislature’s view of the correct interpretation. Although now rare, the explanatory statute is not dead. Just a few years ago, Congress enacted an amendment to Section 230 of the Communications Decency Act—a now hotly contested topic—with the hallmarks of an explanatory statute. In the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”), Congress concluded that courts had over-extended Section 230 immunity to preclude claims by sex trafficking victims and so clarified that the immunity should not be construed to impair those claims. So far, however, courts and commentators have taken a narrow view of FOSTA and assumed that it preserves only those claims specifically enumerated in the statute. This view proceeds from an underappreciation for explanatory statutes and their proper application. Indeed, given their rarity, little has been written about how to approach statutes of this sort under the prevailing textualist methodology. This Article aims to fill that gap by proposing a generally applicable textualist framework for analyzing modern explanatory statutes. When applied to FOSTA, that framework yields a perhaps surprising result: A sound, textualist reading of FOSTA may invite federal courts to recalibrate the scope of Section 230 immunity, even outside the context of sex trafficking claims.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128720509","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Was Polllock V. Farmers’ Loan & Trust Co (1895) Decided Consistently with Existing Tax Principles?","authors":"Charles Edward Andrew Lincoln IV","doi":"10.2139/SSRN.3814973","DOIUrl":"https://doi.org/10.2139/SSRN.3814973","url":null,"abstract":"The foundation of the modern tax system in the United States is based on the 16th Amendment passed in 1909. The Amendment was Congress’s response to the Pollock v. Farmers' Loan & Trust Company, 157 U.S. 429 (1895), affirmed on rehearing, 158 U.S. 601 (1895). Pollock held that an income tax levied on the US population based on “dividends, royalties, and rents” was unconstitutional. Because of this, Pollock v. Farmers' Loan & Trust Company was a key case in the history of taxation and tax law in the United States. Theoretically, the key question is whether a tax on property is the same as “dividends, royalties, and rents” arising from that property. Understanding the reasoning of this case illuminates key concepts in taxation, the history of taxation, and has implications on Constitutional history and interpretation.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"294 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121263326","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Excepciones (DCH) (Exceptions (Historical Dictionary of Canon Law in Latin America and the Philippines))","authors":"Jesus Bogarin Diaz","doi":"10.2139/ssrn.3852741","DOIUrl":"https://doi.org/10.2139/ssrn.3852741","url":null,"abstract":"<b>Spanish Abstract:</b> La excepción, instrumento jurídico con que el demandado intentaba excluir la acción del demandante, nace en el derecho procesal romano, pasa al derecho canónico y el derecho castellano y se adapta de acuerdo con las condiciones locales del derecho canónico en Indias. Este artículo expone detalladamente la regulación de las excepciones procesales en el ordenamiento de la Iglesia católica en las Indias durante el periodo comprendido entre los siglos XVI al XVIII, según las fuentes normativas de mayor uso y circulación. El autor ofrece un análisis del concepto, sus clasificaciones y formas de tramitación, así como de la interacción entre el foro civil y el eclesiástico. La exposición abarca las normas aplicables, tanto en el campo del derecho canónico universal como las específicas de la Iglesia en Indias. En este último campo, la regulación de las excepciones tuvo en cuenta las enormes distancias geográficas en el Nuevo Mundo, que exigían medidas que atemperasen la prolongación y carestía de los pleitos; las dificultades de la Corona para conocer con certeza las circunstancias que rodeaban una decisión, como podía ser la concesión de una encomienda; y la necesidad de proteger a los indios, entre otros aspectos. El artículo finaliza con un balance historiográfico de la institución.<br><br><b>English Abstract:</b> The exception, a legal instrument by means of which the defendant tried to exclude the plaintiff's action, arose in Roman procedural law, it passed to canon law and Castilian law, and was adapted to the canon law for the Spanish territories according to local conditions. This paper analyses in detail the regulation of procedural exceptions in the legal system of the Catholic Church in Hispanic America and the Philippines between the 16th and 18th century, according to the most widely used and circulating normative sources. The author provides an analysis of the concept, its classifications and forms of processing, as well as the interaction between the civil and ecclesiastical forum. It covers the applicable norms, both in the field of universal canon law and those specific to the Church in Spanish America. In this respect, the regulation of exceptions took into account the enormous geographical distances in the New World, which demanded measures to mitigate the duration and costs of lawsuits. These exceptions also considered the difficulties of the Spanish Crown to know with certainty the circumstances of a decision such as the granting of an ‘encomienda’, as well as the need to protect indigenous people, among other topics. The paper concludes with a historiographic overview of this legal institution.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124697566","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Democratic Athens as an Experimental System: History and the Project of Political Theory","authors":"Josiah Ober","doi":"10.2139/ssrn.1426841","DOIUrl":"https://doi.org/10.2139/ssrn.1426841","url":null,"abstract":"Athens as a case study can be useful as an “exemplary narrative” for political science and normative political, on the analogy of the biologicial use of as certain animals (e.g. mice or zebrafish) as “model systems” subject to intensive study by many researchers.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115181382","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Histories of Bank Supervision","authors":"Sean H. Vanatta","doi":"10.2139/SSRN.3749116","DOIUrl":"https://doi.org/10.2139/SSRN.3749116","url":null,"abstract":"In this essay, I make the case for the historical study of bank supervision—both that historical methods are necessary to understanding the shape and structure of supervision in the present and that the study of supervision will contribute to active and important historiographical debates. First, I summarize how scholars—including my own work, with Peter Conti-Brown—are grappling with the definitional complexities of supervision as a set of layered, overlapping, and contingent governing practices. Then, I survey the extant sources of supervisory history; briefly because they are so few, largely comprised of institutional histories of supervisory institutions, as well as memoirs and biographies of practitioners. Finally, I offer a prospective historical agenda, in two parts. I narrate a history of supervision in the United States through the New Deal to demonstrate where the history of supervision, once further developed, will contribute to debates about the co-development of financial institutions and regulatory governance. Then, I suggest ways that supervisory history can also enrich—and be enriched by—histories of science, gender, race, and sexuality. In sum, this essay suggests paths forward for scholars for whom bank supervision is self-evidently important and for those who may have never encountered the term before.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125555494","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"General Average and All the Rest: The Law and Economics of Early Modern Maritime Risk Mitigation","authors":"Ron Harris","doi":"10.2139/ssrn.3739491","DOIUrl":"https://doi.org/10.2139/ssrn.3739491","url":null,"abstract":"The environment of pre-modern maritime trade activities was, in economists’ terms, one of uncertainties, high risks, vast information asymmetries, augmented agency problems, weak enforcement of contracts, and fragile protection of property rights. Dealing with such a tough environment was a foremost institutional challenge for pre-modern contemporary merchants, jurists, and rulers. Maritime trade is where the institutional cutting-edge could be found. This is where new and innovative organizational solutions, such as general average, insurance and the business corporation, were designed.<br><br>Traditional historical analysis is good at reconstructing the pattern of development of maritime trade institutions, but it is not as good at explaining the timing of origins and path of evolution of these institutions. I will use here a theoretical framework that combines insights from Frank Knight, Douglass North and Robert Scott. Knight calls attention to the role of information in the shift from uncertainty to risk and the development of insurance. North calls our attention to the role of information in reducing transaction costs and enhancing growth. Scott reminds us that institutions involve contractual drafting and that contracts can deal with information shortage and information generation. This framework focuses our attention on how to solve the informational challenges with respect to risk assessment and pricing and contractual. It takes us a long way forward in understanding the history of risk mitigation trade institutions.<br><br>The history of organizational solutions for mitigation of maritime uncertainties and risks, from general average and sea loan to insurance and the business corporation benefits from and contribute to the theory of institutional development more generally.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122766497","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Transformation of Debt: The Paper State and Paper Economy in Early America","authors":"Sarang Shah","doi":"10.2139/ssrn.3710898","DOIUrl":"https://doi.org/10.2139/ssrn.3710898","url":null,"abstract":"Debt underpins the modern global economy. Debt is also intimately tied to the function and form of the modern state. As a form of capital, debt is a combination of several legal modules and legal qualities that allow holders of debt to secure a future pecuniary return. The development of these legal modules and legal qualities may be observed in the emerging commercial society of the United States of America in the late eighteenth and early nineteenth century. By tracing the transformation of debt over this time period in the USA, we may gain insight into how debt, the economy, and the state could be re-envisioned for the future.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"172 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115448274","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}