Legal History eJournal最新文献

{"title":"Big Decisions in European Legal and Economic Integration: What Have We Learned?","authors":"K. Alter","doi":"10.2139/ssrn.3666792","DOIUrl":"https://doi.org/10.2139/ssrn.3666792","url":null,"abstract":"This is the concluding chapter of a book that revisits the European Court of Justice’s Cassis de Dijon ruling. The book’s many chapters engage and update the 1994 article I published with Sophie Meunier ‘Judicial Politics in the European Community: European Integration and the Path-Breaking Cassis de Dijon Decision,’ which was our first piece of scholarship. Part I explores how European law scholarship has evolved since the Cassis de Dijon ruling offering a different perspective on what the book’s various authors expect to have found compared to what they then found. In our original article, Sophie and I focused on how the Commission amplified the Cassis ruling. Part I argues that ‘integration through law’ activism more broadly amplified the Cassis ruling, and this amplification went beyond the launching of a conversation about mutual recognition. Part II discusses sensibilities that are still absent from the conversation, concluding with a set of challenges for scholars who want to revisit the history of European legal integration. We need to approach the development of EU law over time from a global perspective, a perspective that critically reflects on the sui generis elements of EU law and openly explores and discusses how forces beyond Europe shaped European legal and economic integration.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127331325","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":"Lost in Transplantation: Modern Principles of Secured Transactions Law as Legal Transplants","authors":"C. Mooney","doi":"10.5040/9781509926527.ch-002","DOIUrl":"https://doi.org/10.5040/9781509926527.ch-002","url":null,"abstract":"This manuscript will appear as a chapter in a forthcoming edited volume published by Hart Publishing, <i>Secured Transactions Law in Asia: Principles, Perspectives and Reform</i> (Louise Gullifer &amp; Dora Neo eds., forthcoming 2020). It focuses on a set of principles (Modern Principles) that secured transactions law for personal property should follow. These Modern Principles are based on UCC Article 9 and its many progeny, including the UNCITRAL Model Law on Secured Transactions. The chapter situates the Modern principles in the context of the transplantation of law from one legal system to another. It draws in particular on Alan Watson’s pathbreaking book, <i>Legal Transplants</i>.<br><br>After describing the Modern Principles and their antecedents, the chapter summarizes relevant aspects of Watson’s <i>Legal Transplants</i>, including the positions of significant adherents and critics of his theses and conclusions. It explains the potential relevance and utility of Watson’s rich historical perspectives for the practical transplantation of the Modern Principles. It considers the transplantation of the Modern Principles from several important perspectives, including the role of legal elites and legal culture, governmental and regulatory influences, opposition of entrenched interests, the role of insolvency law and proceedings, registration in public registries, descriptions of collateral in the context of registration and creation of security interests, and the market for business credit. In particular, it addresses various impediments to the adoption of the Modern Principles by States, obstacles to the use and acceptance of Modern Principles-based laws in the markets for business credit, and hurdles for both adoption and use. Finally, the chapter explains that the Modern Principles offer potential benefits beyond the more obvious goals of expanding access to credit and lowering the cost of credit. They harbor potential for coherence, certainty, and ease of application and use — considerations that generally have been overlooked or underappreciated.<br>","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"215 ","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120970370","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":"Trueque (DCH) (Barter (DCH))","authors":"P. Moutin","doi":"10.2139/ssrn.3559225","DOIUrl":"https://doi.org/10.2139/ssrn.3559225","url":null,"abstract":"<b>Spanish Abstract:</b> El artículo estudia el contrato de trueque en Hispanoamérica y Filipinas entre los siglos XVI y XVIII. Aborda el trueque de cosas propiamente dichas, el cambio de divisas, y por último, la permuta de cosas de la Iglesia y de beneficios eclesiásticos. Se analiza, dónde y quiénes podían trocar sus productos. Se estudia qué herramientas podían ejercerse ante el incumplimiento de una de las partes. Sumado a ello son revisados también, dos institutos vinculados a la licitud de este intercambio, por una parte, cuándo procedía la obligación de restituir, y por la otra, la figura del fiel ejecutor como delegado real. Dentro del género trueque, es abordada la especie cambio de divisas, en especial, los cambiadores profesionales y los tipos de cambio que realizaban, tales como cambio menudo, por letras, y seco, que en este último se configuraba la usura. Otro actor principal indagado son los bancos de depósito de monedas. Finalmente, se abordan la permuta de cosas de la Iglesia y la de beneficios eclesiásticos. En ambas figuras se estudia qué bienes o beneficios podían enajenarse, sus requisitos necesarios para la validez contractual, y los arquetipos afines empleados por la Iglesia en la época de estudio.<br><br><b>English Abstract:</b> The article studies the barter contract in Spanish America and the Philippines between the 16th and 18th centuries. It addresses the barter of properly diverse things, currency exchange, and finally, the exchange of things of the Church and ecclesiastical benefits. It is analyzed, where and who could exchange their products. What tools could be exercised in the event of non-compliance by one of the parties is studied. In addition to this, two institutes linked to the lawfulness of this exchange are also reviewed, on the one hand, when the obligation to restitute procedure, and on the other, the figure of the faithful executor as royal delegate. Within the barter genre, the type of currency exchange is addressed, especially professional exchangers and the exchange rates they carried out, such as small exchange for letters, and dry, which in the latter was usury. Another main actor investigated are the currency deposit banks. Finally, the exchange of things of the Church and that of the ecclesiastical benefits are addressed. Both figures study what adequate goods or benefits to be alienated, their necessary requirements for contractual validity, and the related archetypes used by the Church at the time of study.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124496815","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":"Compensation for Malicious Damage to Property in Nineteenth-Century Ireland","authors":"Niamh Howlin","doi":"10.2139/ssrn.3502802","DOIUrl":"https://doi.org/10.2139/ssrn.3502802","url":null,"abstract":"This Working Paper examines aspects of the law relating to compensation for malicious damage to property in Ireland. Its main focus is the legislative framework of the nineteenth century, particularly the Grand Juries (Ireland) Act 1836 and the Malicious Injury Act 1861, as well as the procedural and substantive reforms introduced by the Local Government (Ireland) Act 1898. Compensation for malicious injuries in nineteenth-century Ireland was unique in the United Kingdom, with increasing divergence between England and Ireland in evidence from quite early in the century.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123933574","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":"Alexandru Papiu Ilarian – membru al Academiei române (Alexandru Papiu Ilarian – Member of the Romanian Academy)","authors":"D. Şandru","doi":"10.2139/ssrn.3524544","DOIUrl":"https://doi.org/10.2139/ssrn.3524544","url":null,"abstract":"Romanian Abstract: Alexandru Papiu Ilarian, istoric și jurist din secolul al XIX-lea, cu contribuții și misiuni importante in epocă, și-a desăvârșit studiile juridice la Universitatea din Viena și a obținut doctoratul la Universitatea din Padova. A fost profesor la Universitatea din Iași, ministru de justiție in guvernul lui Mihail Kogălniceanu (1863-1864) și pentru o perioadă de aproape șapte ani procuror la Curtea de Casație. In 1868, la 41 de ani, este ales membru al Societății Academice Române, devenită din 1879 Academia Română. Susține primul discurs de recepție la 12/26 septembrie 1869, fiind unul din cele 4 discursuri care s-au rostit până la transformarea din 1879. Intre 1869 și 1873 Alexandru Papiu Ilarian a avut o activitate intensă in cadrul Academiei. \u0000 \u0000English Abstract: Alexandru Papiu Ilarian, a historian and jurist of the 19th century, which carried out important contributions and tasks at the time, completed his legal studies at the University of Vienna and obtained his doctorate at the University of Padua. He was professor at the University of Iasi, minister of justice in the government of Mihail Kogălniceanu (1863-1864) and for almost seven years prosecutor at the Court of Cassation. In 1868, at the age of 41, he was elected as member of the Romanian Academic Society, which from 1879 became the Romanian Academy. He delivered his first reception speech on September 12/26, 1869, being one of the 4 speeches that were delivered until the transformation of 1879. Between 1869 and 1873 Alexandru Papiu Ilarian perfomed an intense activity within the Academy.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115636850","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":"‘Luxury’ As the Pedagogical Project of the Russian Emperors and Empresses: The History of the Concept in the 18th Century","authors":"Elena S. Korchmina","doi":"10.2139/ssrn.3423966","DOIUrl":"https://doi.org/10.2139/ssrn.3423966","url":null,"abstract":"Luxury has always been an intrinsic part of world history, but only in the 18th century the core of this phenomenon came up for discussion in Europe. During these debates the concept of luxury was gradually demoralized by economic liberalism and reshaped as “modern and more objective economic concept”. Eventually the concept of luxury became a universal concept with the only commonly accepted meaning (Sekora). A seminal role in this process played translations, as far as for the continental translators of the key writings “there was no need to invent an entirely new vocabulary of political economy or of cultural practice…” (Reinert). Thus, European thinkers coordinated their positions even if they disagreed with each other. But, how had the notion of luxury been conceptualizing outside of the European Roman world? Russia is an interesting example raising some intellectual puzzles. First of all, it was a relatively backward country, where luxury per se was the essential part of national self-representation. This contradiction caused the real economic problems of indebtedness. One way of fixing it up was the introduction of sumptuary laws which became an important channel of defining the concept of luxury. Secondly, starting from Petrine time Russia got more acquainted with the European political economy masterpieces, translating and adopting them. But “translators lost the security of compatibility when they turned to extra-European languages and traditions” (Reinert). How did Russian translators accomplish the task of describing such a relatively new phenomenon as luxury? By the 1760s, as a result of two processes of the development of legislation and translation the European writings starting the concept of luxury became not an economic term on a large scale, as in European tradition, but a pedagogical project, when the subjects had to acquire mostly the unwritten rules of permissible levels of luxury.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130930041","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":"American Internment","authors":"Troy J. H. Andrade","doi":"10.2139/ssrn.3516308","DOIUrl":"https://doi.org/10.2139/ssrn.3516308","url":null,"abstract":"This co-authored piece, American Internment, provides a deep dive into the legal structure that was created to justify the mass incarceration of American citizens during World War II.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122147509","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":"Commissioner of Stamp Duties (Queensland) v Livingston (1964): Rights of Estate Beneficiaries and Trust Beneficiaries Compared","authors":"C. Mitchell","doi":"10.5040/9781509919031.ch-015","DOIUrl":"https://doi.org/10.5040/9781509919031.ch-015","url":null,"abstract":"The paper concerns a 1964 decision of the Privy Council, Commissioner of Stamp Duties (Queensland) v Livingston. It analyses the rights of estate beneficiaries and creditors against a deceased person's personal representatives and third parties during the administration of the deceased person's estate. It compares their rights with the rights of trust beneficiaries against trustees and third parties.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125690975","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":"Accommodation Within the Broad Structure of Voluntary Society: Buchanan and Nutter on School Segregation","authors":"D. Kuehn","doi":"10.2139/SSRN.3308162","DOIUrl":"https://doi.org/10.2139/SSRN.3308162","url":null,"abstract":"Public choice theory coalesced into a school of thought in Charlottesville, Virginia, in the late 1950s and early 1960s at a time when the commonwealth was embroiled in a fight over school segregation. Until very recently, the history of segregation has not informed our understanding of the lives of the key public choice theorists in Virginia. This paper contributes to the discussion of James Buchanan and Warren Nutter’s views on school segregation by exploring neglected archival evidence that suggests Buchanan and Nutter were “moderate segregationists” or “gradualists.” Moderate segregationists accepted the Brown v. Board of Education decision against statutory segregation but believed that integration should occur gradually and at the pace of local sentiment. Buchanan and Nutter inserted themselves into the policy debate on segregation by promoting a private school tuition grant program that channeled public funds to private segregated schools. Buchanan aligned himself with the moderate segregationist views of former governor Colgate Darden, Jr., and disputed President Eisenhower’s authority to force integration in Little Rock, Arkansas. A second contribution of this paper is to provide new evidence that Warren Nutter was personally active in the private school movement in Charlottesville. In 1958, Nutter hosted a basement classroom of twenty-one white seventh graders affected by the school closings in the confrontation between the commonwealth of Virginia and the federal courts.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"81 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114901382","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 Present New Antitrust Era","authors":"Barak Orbach","doi":"10.2139/SSRN.3300757","DOIUrl":"https://doi.org/10.2139/SSRN.3300757","url":null,"abstract":"Antitrust scholars frequently refer to an “ideological pendulum” to describe the rise and fall of trends in the evolution of antitrust law. This pendulum arguably swings between fairness and laissez-faire visions, while a technocracy vision moderates its motion. Mapping key phases in the evolution of antitrust law, I argue that a new antitrust era with distinctive characteristics has been forming in recent years. \u0000 \u0000The present new antitrust era is a product of growing tensions and contradictions among policy prescriptions. After several decades in which antitrust was a specialized field that drew little public attention, in the aftermath of the Great Recession, antitrust became a proxy for disagreements over economic policies. Today, antitrust law exemplifies striking discrepancies among positions advanced by the Supreme Court, the established antitrust technocracy, political populism, and economics. This resurrection of public and political interest in antitrust, I argue, marks the end of one antitrust era and the beginning of another.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124973672","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}