Legal History eJournal最新文献

{"title":"George Washington and Executive Power","authors":"J. Yoo","doi":"10.2139/SSRN.1703014","DOIUrl":"https://doi.org/10.2139/SSRN.1703014","url":null,"abstract":"A singular factor influenced the ratification of the Constitution's article on the Presidency: All understood that George Washington would be elected the first President. It is impossible to understate the standing of the \"Father of his Country\" among his fellow Americans. He had established America's fundamental constitutional principle-civilian control of the military-before there was even a Constitution. Throughout his command of the Continental Army, General Washington scrupulously observed civilian orders and restrained himself when a Congress on the run granted him dictatorial powers. He had even quelled, by his mere presence, a potential coup d'6tat by his officers in 1783.' Washington cannot be quantified as an element of constitutional law, but he was probably more important than any other factor. The Revolutionary War had revealed Congress to be feeble, and the states to be unreliable. Washington had exercised broad executive and administrative authorities that went well beyond battlefield command to keep the army supplied. This experience made Washington a firm nationalist who supported a more effectively organized and vigorous national government. Though he barely spoke at the Constitutional Convention, Washington placed his considerable prestige behind the enterprise. During ratification, he launched a one-man letter-writing campaign to encourage Federalists throughout the country, and particularly in his critical home state of Virginia, to win the Constitution's approval. Washington remains the only President to be elected by a unanimous vote of the Electoral College. Because the American Republic grew so successfully, we tend to treat Washington's decisions with an air of inevitability, but the constitutional","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123653600","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":"Reversing the Null: Regulation, Deregulation, and the Power of Ideas","authors":"David A. Moss","doi":"10.2139/ssrn.1706952","DOIUrl":"https://doi.org/10.2139/ssrn.1706952","url":null,"abstract":"It has been said that deregulation was an important source of the recent financial crisis. It may be more accurate, however, to say that a deregulatory mindset was an important source of the crisis - a mindset that, to a very significant extent, grew out of profound changes in academic thinking about the role of government. As scholars of political economy quietly shifted their focus from market failure to government failure over the second half of the twentieth century, they set the stage for a revolution in both government and markets, the full ramifications of which are still only beginning to be understood. This intellectual sea-change generated some positive effects, but also some negative ones, including (it seems) an excessively negative impression of the capacity of government to address problems in the marketplace. Today, as we consider the need for new regulation, particularly in the wake of the financial crisis, another fundamental shift in academic thinking about the role of government may be required - involving nothing less than a reversal of the prevailing null hypothesis in the study of political economy.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129547940","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":"On the Proto-Indo-European Language of the Indus Valley Civilization (and its Implications for Western Prehistory)","authors":"R. Kar","doi":"10.2139/ssrn.1694252","DOIUrl":"https://doi.org/10.2139/ssrn.1694252","url":null,"abstract":"Many of our attempts to understand the basic causes and conditions of legal, social, political and economic development in the West have been shaped by a particular view of human prehistory, which places the origins of certain key traditions in ancient Greece, Rome and Israel. The developments in ancient Greece and Rome are, moreover, typically pictured as phylogenetically distinct from some of the very first human transitions from hunter-gatherer forms of life into larger-scale urban civilizations that have been found in the archaeological record. Although the so-called \"Indus Valley\" Civilization (a.k.a. the \"Harappan\" or \"Sindhu-Sarasvati\" Civilization) represents one of the very first such successful transformations in our natural history as a species, and although the Indus Valley Civilization long predates similar developments in ancient Greece, Rome or Israel, most scholars deem these early developments irrelevant to Western prehistory because of a specific linguistic proposition: they believe that the Indus Valley Civilization spoke a non-Indo-European language and that its traditions are therefore phylogenetically unrelated to the larger family of Indo-European civilizations that show up in the subsequent historical record (first in ancient Persia, Greece, Rome and India - and then much later in Western Europe and Russia). If this traditional linguistic assumption is wrong, however, then many of our modern attempts to understand the basic causes and conditions of Western development are being shaped by a fundamental misunderstanding - and often to their detriment. This article argues that, despite certain well-known and long-standing controversies over the issue, we are already in a good enough position to conclude - and with a very high degree of confidence - that the Indus Valley Civilization spoke dialects of Proto-Indo-European. My arguments for this conclusion will be new, and will draw upon a body of evidence that has so far been overlooked in these discussions. A growing number of people have, however, begun to acknowledge this possibility, and I will be suggesting that there are sufficient signs now of a coming paradigm shift with regard to our understanding of early human prehistory to warrant serious attention. If - as I believe - we are in the midst of such a paradigm shift, and if this paradigm shift is like any other, then we should also expect many fruitful discoveries to be emerging from this new perspective. The arguments in this article have been split into five sections. Section 1 develops a contemporary model of prehistoric linguistic expansion (the \"riverine-agricultural model of linguistic expansion\"), which suggests that certain major riverine topographies have played a critical role in producing all of the world's major language families - including the Indo-European language family. This model suggests that, during the height of the Indus Valley Civilization, the languages spoken in this region would have almost c","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"275 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116557253","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":"Stereotype, Stigma, Education and the Law","authors":"Craig Livermore","doi":"10.2139/SSRN.1650889","DOIUrl":"https://doi.org/10.2139/SSRN.1650889","url":null,"abstract":"Various articulations of the effect of stereotype and stigma have been central to the development of the law in the United States regarding educational equity. The Supreme Court in establishing the separate but equal doctrine in Plessy v. Ferguson explicitly rejected a notion of constitutional concern for the subjective experience of minorities as a result of legal structures. In overruling Plessy v. Ferguson, the Supreme Court in Brown v. Board of Education focused upon the stigma created by segregation as the central justification for ruling segregation to be unconstitutional. The psychological studies of Kenneth and Mamie Clark, referenced in footnote 11 of Brown, have become famous as social scientific research influencing jurisprudence. However, many scholars have since challenged the interpretation of the stigma research by the Clarks, and the efficacy of focusing upon stigma by the Supreme Court. The exploration of the subjective psychological experience of blacks in relation to educational structures has been recently studied in detail by Claude Steele, Josh Aronson, and many others. Such empirical research has suggested that alterations of the context and culture surrounding standardized testing, and in mentoring and instruction, may be able to support greater levels of average black academic achievement. Moreover, some scholars, including participants on this panel, have argued that the continuing stigmatization of disempowered minority groups should be considering in crafting effective legal remedies seeking greater educational equity. Finally, there are those who are suspicious of accountability testing legal regimes such as the federal No Child Left Behind law, because of their belief that such testing inherently stigmatizes minority students as intellectually inferior. The continuing centrality of concerns for stigma and stereotype in regard to race, education and the law is simultaneously complex, powerful, important, and, potentially for some, troubling. This panel will explore the issue of whether, in a post-racial society, jurisprudence and policy should maintain a concern for the subjective experience of specific racial groups. The discussion will articulate a potential distinction between the idea of stereotype and stigma, and discuss whether the emphasis upon one over the other leads to differing philosophies in the search for educational equity. Panelists will tie their discussion of ideas regarding stereotype and stigma to practical contemporary suggestions for policy, litigation strategy, and educational approaches – including in the law school setting – in order to achieve greater racial educational equality.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122585036","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":"Ronald Coase’s Contribution to Law and Economics","authors":"G. Jayasurya","doi":"10.2139/ssrn.1654609","DOIUrl":"https://doi.org/10.2139/ssrn.1654609","url":null,"abstract":"Self-interested profit maximisation was assumed to be a reliable predictor of motivating factors of human endeavor, including human behaviour in law. At the dawn of this new economic theory, first proposed in late 60s it continues to create ripples in the legal as well the business circuits. Mostly important, it formed a base for establishing a theoretical justification for limiting the growth of modern socialistic state with regulated economies. Coase’s work has been interpreted by other law and economic scholars as laying for a new instrumental form of normative jurisprudence - a jurisprudence of wealth maximisation, interpreting itself into an intellectual support to the growth of capitalism. Coase believed that in a market economy the main objective of the legal system should be minimising the transactional costs and reducing governmental intervention. He wanted the legal world to understand the economic after-effects of a law and find legal reforms to enhance the overall social productivity. He believed that law could not be separated from the logic of markets. It acted as a redeemer of private rights, which helped in creating a new society. The management of scarce resources is depended upon whether significant reductions in transaction costs backed by a legal arrangement are present. We need to respond to the reciprocal relationship between the legal rules and cultural context. As traditional forces failed to link law and society successfully, Coase gave world a formula to not to analyse law as an autonomous object separate form culture. A representational mode for understanding the relation between law and society was needed-a new understanding of the dialectic theory of law and society. The appeal element of Coase’s article was that he was wise enough think ahead of time by offering new strategies for dealing with the technocratic and social changes of the modern bureaucratic change.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132231074","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 Indian Tribal Governance and Management: Public Administration Promise or Pretense?","authors":"J. Ronquillo","doi":"10.1111/J.1540-6210.2011.02340.X","DOIUrl":"https://doi.org/10.1111/J.1540-6210.2011.02340.X","url":null,"abstract":"Research on tribal governance in the United States is scarce among public administration scholars. Nonetheless, tribal governance is a pre-Columbian practice that predates its acknowledgment in the U.S. Constitution and federal law. This article gives attention to work from other disciplines, demonstrating that an interdisciplinary approach offers the best historical and current information on the state of public administration research concerning American Indian tribes; tribal governance literature is most definitely not “missing” but is instead moderately “unassembled” as a subfield of public administration. This article looks to build on what remains missing and suggests areas within tribal governance that should be addressed in the future.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123654551","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":"Those Dishonest Goldsmiths","authors":"G. Selgin","doi":"10.2139/ssrn.1589709","DOIUrl":"https://doi.org/10.2139/ssrn.1589709","url":null,"abstract":"London's seventeenth-century goldsmiths are routinely said to have pioneered fractional-reserve banking in England by clandestinely lending coin they were supposed to store – that is, by embezzling their clients. I draw upon both contemporary testimony and contemporary English law to show that the goldsmiths were almost certainly innocent of the crime for which they are so often accused. I then go on to speculate that the myth of the embezzling goldsmith may have its roots in confusion of that crime with (1) crimes other than embezzlement of which goldsmiths were accused by their contemporaries and (2) embezzlement of stored coin not by goldsmiths but by the British crown and by some merchants' servants.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129974746","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 National Labor Relations Act at 75: In Need of a Heart Transplant","authors":"C. Craver","doi":"10.2139/SSRN.1667023","DOIUrl":"https://doi.org/10.2139/SSRN.1667023","url":null,"abstract":"When the NLRA was enacted in 1935, 13.2% of workers were union members. Industrial unions used the power provided in the NLRA to organize manufacturing workers and achieve a union membership of 35% by the mid-1950s. Although the NLRA was significantly amended in 1947 and 1959, it has not been meaningfully changed since then. As a result, a statute designed for mass production industries is no longer relevant to the service and white-collar positions occupied by most individuals today. The NLRA must be modified to include independent contractors who work like regular employees and perma-temps hired from employment agencies on a long-term basis. Congress could also adopt the portions of the Employee Free Choice Act that would make it easier for unions to organize new age workers. First contract arbitration could be employed to help newly certified labor organizations achieve initial bargaining agreements, and mandatory worker participation programs could be adopted to provide unrepresented workers with a collective voice.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128083060","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":"Depersonalization of Business in Ancient Rome","authors":"Barbara Abatino, Giuseppe Dari�?Mattiacci, E. Perotti","doi":"10.1093/OJLS/GQR001","DOIUrl":"https://doi.org/10.1093/OJLS/GQR001","url":null,"abstract":"A crucial step in economic development is the depersonalization of business, which enables an enterprise to operate as a separate entity from its owners and managers. Until the emergence of a de iure depersonalization of business in the 19th century, business activities were eminently personal, with managing partners bearing unlimited liability. Roman law even restricted agency. Yet, the Roman legal system developed a form of de facto depersonalized business entity, where depersonalization was achieved by making the fulcrum of the business a non-person: the slave. Although radically different from a legal perspective, this format exhibited all the distinctive features of modern corporations, thereby providing for a functional equivalent of the modern corporate form. The development of the de iure format was hindered by strong cultural, technological and institutional constraints. In contrast, slave-run businesses exhibited features that were largely compatible with these constraints and emerged along the path of least resistance to legal change. The end of slavery and the fall of the Roman Empire closed off this alternative path of legal evolution; consequently, the modern corporate form could only appear once these constraints had been overcome.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"71 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130625628","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":"Introduction to Lawyers in Canadian History","authors":"W. Pue","doi":"10.2139/SSRN.1407830","DOIUrl":"https://doi.org/10.2139/SSRN.1407830","url":null,"abstract":"This paper \"frames\" the study of lawyers in Canadian history against major interpretations of the legal profession and legal professionalism including the historical self-understandings of organized legal professions in the common law world, market-control theorists, institutional, and cultural history approaches. The article serves as the introduction to a new book on THE PROMISE AND PERILS OF LAW: LAWYERS IN CANADIAN HISTORY, which includes essays on the history of legal education, the practice of law, Quebec's legal distinctiveness, constitutionalism and the rule of law, and issues in race, gender, and diversity.","PeriodicalId":254768,"journal":{"name":"Legal History eJournal","volume":"105 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122951810","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}