law

Nineteenth-century America was not a libertarian utopia

By in the Spring of 2012

But beyond the obvious fact that many Americans were not free–women and African-Americans, in particular–lies a deeper reality: Americans in the nineteenth century did not live without rules, regulations, and laws, and did not rely strictly on private contract and personal responsibility to conduct business or to handle social relations.

Objectivity, science, and (a)political action

By in the Spring of 2012

Theodore M. Porter, in Trust in Numbers, argues that the American distrust of elites–and of government itself–has led to a focus on “mechanical objectivity,” or rules to make decisions. In many ways similar to what American jurists call “procedural due process,” the idea of to diminish the necessity of personal judgement in favor of predictable, “transparent” processes and thus lessen the number of disputes over the outcomes of a bureacratic decision.

Benefits of viewing the right to privacy as a property right

By in the Spring of 2012

If a core reason that copyright has always been compatible with the First Amendment is that it is a property right, then perhaps a way out of the conflict between privacy and freedom of speech and the press is to conceive of privacy in the same way–as a property right. Certainly it is already on its way there, as the “right of publicity” in many jurisdictions already implicitly does so, since it provides control over unauthorized commercial use by others.

The rule of law in Michigan

By on

Should a state legislative body be insulated from judicial scrutiny of its “internal” processes? Is ignoring actual vote counts, and simply declaring something to have “immediate effect” sufficient to make it so in the state of Michigan? What is the relationship between the three branches of government?

Freedom to contract at the end of the nineteenth century

By in the Spring of 2012

In Kermit Hall’s words, the nineteenth century saw the “triumph of contract” over property, tort, and equity, as the law came “to ratify those forms of inequality that the market system produces.” (196-97) The early twentieth century continued this–at least until the Great Depression and Franklin Roosevelt’s New Deal forced the court to reconsider.

Contract law in the antebellum 19th century

By in the Spring of 2012

The common law before the nineteenth century required contracts to be fair and reasonable: a “sound price warrants a sound commodity.” But by mid-century, William Wetmore Story’s famous treatise on contracts recognized that this basic understanding had radically altered. Contracts now required only “mutual assent of the parties” and “valuable consideration.”

Reforming government regulations: Stephen Breyer’s technocratic solutions

By in the Spring of 2012

In Breaking the Vicious Circle, Justice Stephen Breyer tackles the problem of regulation and risk in the American context: “Justice Breyer identifies several systemic problems that plague the regulatory process in the United States. He discusses how public (mis)perceptions, congressional (over)reaction, and technical (un)certainty create a “vicious circle” that increasingly undermines the legitimacy of the regulatory process.”

Revisiting copyright claims against Westlaw and LexisNexis: Does selling access to court-filed attorney briefs violate copyright law?

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Edward L. White, a Oklahoma City, Okla., lawyer, and Kenneth Elan, claim WestLaw and LexisNexis have engaged in “unabashed wholesale copying of thousands of copyright-protected works created by, and owned by, the attorneys and law firms who authored them”–namely publicly filed briefs, motions and other legal documents.

If the Fourteenth Amendment didn’t exist, could Obama still be President? (Yes)

By in the Spring of 2012

Periodically various lay people attempt to interpret the law in ways that fit their version of (un)reality. While I appreciate the mainstream media simply ignoring these people (in general), it can occasionally be educational to refute its points as if they were logical and rational. A good example of this is the lawsuit Gordon Warren Epperly filed in Alaska challenging President Obama’s inclusion on the 2012 presidential ballot. It shows a fuzzy grasp of the law, legal terminology, logic, and history (a little reading of case law is a dangerous thing!), but pointing out some of its flaws can help illustrate these concepts.

Protecting vested interests in the face of new technology: the case of the Charles River Bridge

By in the Spring of 2012

New developments and new approaches had permitted a new corporation to build a new bridge at a lower cost–and to make it free within a few years of its opening, while still turning a profit for its investors. But in doing so, the profit-making potential of the old bridge was destroyed (although investors had already made back their initial investment multiple times over).

But hadn’t the old company taken a risk initially? Didn’t its investors deserve to reap their new profits because they had taken the risk initially? Wouldn’t setting a precedent that their state-granted monopoly could be limited later actually inhibit future investment?

Federal vs. State Power in Antebellum America

By in the Spring of 2012

Before the Civil War, the states and the federal government were locked in an uneasy balance of power. The federal constitution listed certain areas (treaties, post offices, patents, interstate commerce, constitutional interpretation, and more) where federal supremacy was clear (via Article VI, Clause 2), but other areas defaulted to the states (made explicit by the 10th Amendment).