Legal History eJournal最新文献

{"title":"Organic Poise? Capitalism as Law","authors":"C. Tomlins","doi":"10.2139/ssrn.2599249","DOIUrl":"https://doi.org/10.2139/ssrn.2599249","url":null,"abstract":"The “and” that has characterized multi- and inter-disciplinary legal scholarship over the last half century identifies law as, to some determinable extent, a system, structure, discourse, and/or field of its own, coupled with, hence cognitively open to, other such systems – economy, polity, society – but like them manifesting operative closure. Applying the conjunction to law and capitalism represents the two elements under inspection as phenomenally distinct. The application of systems theory seems quite appropriate to the determination of relations among different operative categories of action in any given society – law, economy, and so forth. But “capitalism” is not an operative category of action. It is an encompassing, holistic characterization of a particular type of society that is is both institutionally and ideationally specific. So, although the critique of functionalism is correct to disparage theories of lock-step operative responsiveness between one system (law) and another (economy), it is worth investigating to what extent, just as “‘medieval law looked, smelled, and acted medieval’ … capitalist law looks, smells, and acts capitalist.” Accepting this as a task for legal history, this paper offers preliminary thoughts on how that task might be conceptualized.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"95 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127282986","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 Siren Song of Economic Diversification: Alberta’s Legacy of Loss","authors":"T. Morton, M. McDonald","doi":"10.11575/SPPP.V8I0.42512","DOIUrl":"https://doi.org/10.11575/SPPP.V8I0.42512","url":null,"abstract":"Former Alberta premier Peter Lougheed is celebrated for his defence of the province and Western Canada during the energy wars of the 1970s, and deservedly so. Prime Minister Pierre Trudeau was a formidable opponent. He was able and willing to use the full arsenal of federal powers to redirect soaring western energy revenues away from Alberta to Ottawa. For those of us in Western Canada, it is unpleasant to imagine what the outcome of this struggle would have been if a lesser man than Peter Lougheed had been at Alberta’s helm. But there is another aspect of the Lougheed legacy that is less remembered because it is less celebrated—also deservedly so. These were Lougheed’s ambitious economic diversification projects. Between 1973 and 1993 (when Ralph Klein became premier), the Lougheed-Getty “forced-growth” economic diversification projects are conservatively estimated to have cost Albertans $2.2 billion. While former premier Don Getty got most the blame for these losses (as many occurred during his watch), most of these programs began earlier. Lougheed’s push for government-led diversification of the Alberta economy was a policy hallmark of his 1971 electoral breakthrough, and marked a sharp break from three decades of Social Credit laissez-faire policies. The Lougheed-Getty diversification fiascos are of more than just historical interest. While the subsequent Progressive Conservative (PC) regime of Premier Ralph Klein (1993–2006) followed an explicit philosophy of “government is not in the business of business,” the more recent Stelmach (2006–11) and Redford (2011-14) governments have not. Both have embraced government-sponsored “value-added” and diversification initiatives, including the North West Redwater Partnership upgrader and two new endowments to provide “funding for social and cultural innovation, and agricultural innovation.”† As Alberta’s fifth premier in the past nine years, Jim Prentice, takes the helm and tries to restore some stability to Alberta’s public finances, it merits revisiting the Lougheed-Getty experience for lessons learned. Our read of their record cautions against going down the same road again. While we identify several successes (e.g., Syncrude, Alberta Energy Company, and the ethane-based petrochemical industry), these were mostly in the hydrocarbon energy sector, and so contributed little to diversifying Alberta’s economy. Our analysis identifies the largest dollar losses (the “Dirty Dozen”), several of which suggest that failure to control costs is endemic to government-led projects. Last but not least, the sheer number and diversity of government-funded projects reflects an unhealthy culture of corporate cronyism. With billions of dollars sitting in the newly created Alberta Heritage Savings Trust Fund earmarked for “diversification” and “capital projects,” the temptation to spend became irresistible. The Heritage Fund, rather than serving its original purpose of a long-term “rainy-day account,” became a giant sl","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"189 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134051577","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":"Regulated Capitalism: The Story of Natural Gas in America","authors":"Shane M. Büchler","doi":"10.2139/SSRN.2807911","DOIUrl":"https://doi.org/10.2139/SSRN.2807911","url":null,"abstract":"A history of Natural Gas regulation in the United States.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128759445","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 Synthesis of Economic Law, Evolution, and History","authors":"Egmont Kakarot-Handtke","doi":"10.2139/ssrn.2500696","DOIUrl":"https://doi.org/10.2139/ssrn.2500696","url":null,"abstract":"It has long been criticized that history is almost entirely absent from orthodox economics. This deficiency is due to the fact that equilibrium and time make an odd couple. Because equilibrium is one of the crucial hard-core propositions of the research program it cannot be abandoned. This impedes the treatment of time in a methodologically acceptable manner. The orthodox approach is based on indefensible axioms which are in this paper replaced by objective structural axioms. This enables the synthesis of timeless economic laws, randomness, and goal-oriented human action, which are the essential elements of a formally consistent historical account.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121509404","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":"Debating Law's Irrelevance: Legal Scholarship and the Coase Theorem in the 1960s","authors":"Steven G. Medema","doi":"10.2139/ssrn.2188719","DOIUrl":"https://doi.org/10.2139/ssrn.2188719","url":null,"abstract":"This paper examines the diffusion of Coase’s negotiation result -- now better known as the 'Coase theorem' -- in the legal literature during the 1960s, with particular attention paid to the challenge that this result posed for received legal thinking, how the it related to far older attempts to bring economic thinking to bear on the law, how legal scholars utilized it in their analysis, and how the treatment of this result by legal scholars compares to that accorded it by economists during this formative stage in the Coase theorem’s history. What will emerge, in the end, is an enhanced understanding of how the Coase theorem came to have a place in legal scholarship, as well as some additional insight into this neglected epoch in the history of the economic analysis of law.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128492383","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":"Jurisprudence at Davidson College Before the Civil War","authors":"H. J. Lewis","doi":"10.2139/SSRN.2463346","DOIUrl":"https://doi.org/10.2139/SSRN.2463346","url":null,"abstract":"“Jurisprudence at Davidson College Before the Civil War” is an intensive exploration of the ideas about jurisprudence that were in circulation at Davidson College from its founding in 1838 until the Civil War. This article analyzes addresses to the two literary societies, addresses to alumni, and graduation speeches by alumni, attorneys, judges, politicians, and ministers in order to reconstruct antebellum law and political theory at Davidson College. This article employs the important methodology of examining college oratory in order to understand the cultural context of legal and political ideas across North Carolina. This article also finds that these ideas were predominantly those of the Whig Party; there was a focus on education, duty, morality, and internal improvements, as well as use of the legal system to create a well-ordered community. Together the speakers at Davidson College sought a prosperous Union and thus rejected ideas of nullification and secession. Whereas many other southern Whig colleges were often proponents of slavery and of secession, Davidson College reflected the more moderate legal and political philosophy of the North Carolina Whigs. In turn, an understanding of the ideas in circulation at a prestigious academic institution such as Davidson College allows for more complete analysis of contemporaneous decisions of the North Carolina Supreme Court. Such cultural context provides a fresh lens through which this article examines antebellum legal decisions in North Carolina involving property rights, slavery, and morality.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114440260","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 History of Death Duties and Gift Duty in New Zealand","authors":"M. Littlewood","doi":"10.2139/SSRN.2439053","DOIUrl":"https://doi.org/10.2139/SSRN.2439053","url":null,"abstract":"The aim of this article is to provide an account of the history of death duties and gift duty in New Zealand. This is worth doing for two main reasons. First, the story of these taxes’ rise and demise constitutes a significant aspect of the country’s fiscal and political history. It might even be said that the story of New Zealand’s death duties is essentially the same story as the country’s political history, but cut at a novel angle. More particularly, whilst there currently seems to be very little enthusiasm for the reintroduction of death duties in New Zealand (except, perhaps, as a necessary accompaniment to a capital gains tax), these taxes for many years enjoyed broad political support. Indeed, it was widely regarded as obvious that a significant part – perhaps as much as 50 percent or so – of every large estate ought to go to the state. There seems, then, to have been a profound change in popular attitudes.Secondly, the reform of the tax system is a process which, it seems safe to assume, will never be completed; even the system’s basic structure seems perennially up for debate. It seems obvious that the process of tax reform might benefit from an awareness of what has gone before; yet the literature on the history of New Zealand’s tax system remains incomplete. One of the aims of the article, therefore, is to make a contribution to the filling of one of the larger gaps in it. More particularly, there has been much discussion recently of the possibility that New Zealand should, like most of the rest of the developed world, introduce a tax on capital gains. If such a tax were to be introduced, it would be necessary, according to the view prevailing in most of the rest of the developed world, to support it with some form of death tax (or, at least, to structure the capital gains tax so as not to exempt inherited capital gains). But this aspect of the question seems to have received relatively little attention. If, however, there is to be a capital gains tax, and if it is to be accompanied by the reintroduction of a death tax, it might be useful to take into account the history of this form of taxation, as practised in this country.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128975342","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":"Bad Tax Shelters -- Accountability or the Lack Thereof: Ten Years of Tax Malpractice","authors":"Jacob L. Todres","doi":"10.2139/SSRN.2431388","DOIUrl":"https://doi.org/10.2139/SSRN.2431388","url":null,"abstract":"In the 1990’s and early 2000’s the tax landscape in the United States was overrun by an epidemic of tax shelters that was unprecedented. The shelters were designed and sold by seemingly reputable large accounting and law firms. The same shelters were sold to many taxpayers. They became generic, off-the-shelf, products. However, the tax shelters had no business substance. The shelters were eventually found to be invalid by the courts. In light of the invalidity of the shelters, the large fees paid for the shelters and the large damages caused by participating in the invalid shelters, there were predictions that many malpractice suits against the sellers of the shelters would ensue.For this article I attempted to determine whether the predicted wave of tax malpractice suits occurred and what impact, if any, resulted in the area of tax malpractice litigation.Much to my surprise, there ended up being very few cases focusing on substance. There were several class actions that were settled but, in light of the settlements, offered no useful insights. Most of the other reported cases dealt with procedural issues such as whether the action must be arbitrated, federal versus state venue, statute of limitations, etc. In the end, there were only a few cases that addressed any issue of substance. The only exception was a huge case in Kentucky, Yung v. Grant Thornton LLP , that was decided in late November, 2013. The case was huge because of its length (over 200 pages) and because it awarded $20 million in compensatory damages and $80 million in punitive damages. In the article I analyze the few existing generic tax shelter cases and try to fit them into the general principles governing tax malpractice. I then also review the other developments in the tax malpractice area during approximately the last decade.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125861146","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 Institutionalisation of Free Trade and Empire: A Study of the 1902 Brussels Convention","authors":"Michael Fakhri","doi":"10.1093/LRIL/LRU006","DOIUrl":"https://doi.org/10.1093/LRIL/LRU006","url":null,"abstract":"The 1902 Brussels Convention, which discouraged sugar-production subsidies through countervailing duties, created what was arguably the first modern multilateral trade institution. This treaty not only defined the concept of free trade but also reconfigured the political structure of the British Empire. Thus we see how free trade was interlaced with imperialism.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"51 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114088667","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":"Interest Groups in the Teaching of Legal History","authors":"Herbert Hovenkamp","doi":"10.2139/SSRN.2368246","DOIUrl":"https://doi.org/10.2139/SSRN.2368246","url":null,"abstract":"One reason legal history is more interesting than it was several decades ago is the increased role of interest groups in our accounts of legal change. Diverse movements including law and society, critical legal theory, comparative law, and public choice theory have promoted this development, even among writers who are not predominantly historians. Nonetheless, in my own survey course in American legal history I often push back. Taken too far, interest group theorizing becomes an easy shortcut for assessing legal movements and developments without fully understanding the ideas behind them. Intellectual history in the United States went into decline because its practitioners often wrote as if the history of ideas drove everything else, either disregarding or minimizing the role of interest groups. In the process it became viewed as inherently conservative because its source materials came almost exclusively from elite white males. On the other side, social and economic history have been driven by impulses originating from both the left and the right that sees policy as little more than the outcome of conflict among interest groups. Further, these preference are generally \"naked\" in the sense that they reveal little more than the desires of each individual for wealth, stability, social status, or other recognition. Articulated ideas are little more than rationalizations, and the public processes that make legal rules are largely a zero sum game. I try to instill in my students the idea that legal history is a much more complex process in which ideas and preferences interact. In differing areas and at different times one may dominate over the other, but almost never permanently. Further, ideas lead to preferences just as much as the other way around. Teaching legal history in this fashion is more challenging to both the instructor and the students because it requires that ideas be taken more seriously. One cannot simply pass a hand over an entire area such as business policy and proclaim it to be the result of Social Darwinism, populism, labor and the surge in immigration, or some other interest group movement. I certainly do not expect my students to become experts in Calvinism, the social contract, classical political economy, genetic determinism, Freud, or the many other areas that wander into and out of my legal history course. But I do expect them to learn enough to take them seriously, and to understand that these intellectual ideas were as powerful to those who encountered them as the ideas that we hold today.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"187 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120950117","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}