Baker on Medieval Roots, Modern Insights: The Origins of Common Law Contract

Matthew J. Baker, University of Mississippi School of Law, has published Medieval Roots, Modern Insights: The Origins Of Common Law Contract at 58 Indiana Law Review 173 (2025). Here is the abstract.

Common law contract is described as the body of law dealing with legally enforceable promises, with its basic principles originating from judicial decisions. What underpins this method of lawmaking is an understanding of the past, such that prior judicial decisions guide the resolution of present legal disputes. Yet despite this ostensibly historical process serving as a vehicle for legal development, there is a general absence of recognition among lawyers, scholars, and students of the origins of this body of law in medieval English law. This Article posits that understanding the origins of common law contract, particularly as it developed around the writs of debt and covenant during the medieval period, provides lawyers and students with a more nuanced and contextualized view of a body of law that has gradually, but significantly, expanded its scope since its inception a millennium ago. An understanding of early common law contract forces one to go back to first principles of contract dispute resolution. While modern contract law tends to focus on substantive rules and doctrines, the early history of common law contract is primarily based on formal and procedural rules. The shift in focus to substantive rules raises questions about the fundamental aspects of contract law and its purpose. Such questions are liable to be ignored if one does not consider how early common law contract arose, and why formal rules and requirements once dominated a lawyer's thinking about how to best resolve contract disputes.

Download the article from SSRN at the link.

Grajzl and Murrell on From Status to Contract? A Macrohistory from Early-Modern English Caselaw and Print Culture @wlunews

Peter Grajzl, Washington and Lee University, Department of Economics; CESifo, and Peter Murrell, University of Maryland, Department of Economics, have published From Status to Contract? A Macrohistory from Early-Modern English Caselaw and Print Culture as CESifo Working Paper No. 11246. Here is the abstract.

Most development models emphasize a growth in the scope of individual choice as the law becomes impartial, relevant to all. An early expression of this conceptualization appeared in the 19th century, when Henry Maine coined his celebrated dictum that progressive societies move from status to contract. We conduct a macro-historical quantitative inquiry into Maine's dictum using corpora on 16th- to 18th-century caselaw and print culture. Upon conceptualizing the notions of contract and status, we train word embeddings on each corpus and produce time series of emphases on contract, status, and contract versus status. Only caselaw exhibits an increasing emphasis on contract versus status, and even that trend is discernible only before the Civil War. After 1660 in caselaw, emphases on both contract and status increase, with no trend in contract versus status. After 1660, caselaw trends reflect the increasing importance of equity compared to common-law. In print culture, religion consistently emphasizes contract over status, while politics exhibits a downward-trending emphasis on contract versus status. VAR estimates reveal that the applicable ideas in caselaw and print culture coevolved.

Download the article from SSRN at the link.

Forthcoming from Oxford University Press: Stephen Bogle, Contract Before the Enlightenment: The Ideas of James Dalrymple, Viscount Stair, 1619-1695 @stephen_bogle @OxUniPress

 Forthcoming from Oxford University Press:

Stephen Bogle, Contract Before the Enlightenment: The Ideas of James Dalrymple, Viscount Stair, 1619-1695 (OUP, 2023) (Oxford Legal History). Here from the publisher's website is a description of the book's content.

Contract Before the Enlightenment represents a fresh investigation of what was then a ground-breaking approach to the law of contract written by James Dalrymple, Viscount Stair (1619-1695), lauded by some as the founding father of Scots law.

As a judge and public figure, Stair was at the forefront of both political and legal developments in Scotland from the 1640s until he died in 1695. This study explores the development and reception of his ideas relating to the law of contract on the eve of the Scottish Enlightenment. It is here that Stair's legal legacy is most evident, and where the imprint of Calvinism, Aristotelianism, and Protestant natural law can be found within Scottish legal thought.

In his legal treatise, the Institutions of Law of Scotland you find a sophisticated, innovative, and novel synthesis of Roman law with Stair's own Calvinist variant of a Protestant natural law theory. Yet it is also possible to find, once the theistic premises of Stair's natural law theory are dropped, the beginnings of a form of Scottish moral philosophy that rose to prominence in the eighteenth century.

Undoubtedly, Stair is not only a key figure within Scottish legal history but also significant to how we understand the transition of Scottish intellectual life from the execution of Charles I to the emergence of the Scottish Enlightenment.

Chatman on Teaching Slavery in Commercial Law @carlissc @wlulaw

Carliss Chatman, Washington and Lee School of Law, has published Teaching Slavery in Commercial Law. Here is the abstract.

Public status shapes private ordering. Personhood status, conferred or acknowledged by the state, determines whether one is a party to or the object of a contract. For much of our nation’s history the law deemed all persons of African descent to have a limited status, if given personhood at all. The property and partial personhood status of African-Americans combined with standards developed to facilitate the growth of the international commodities market for products, including cotton. The impact of that shift in status persists today. The commodities markets and the nations that arose and prospered would not be possible without the slave trade, and that trade would not be possible without the legal, business, and social norms in place to facilitate private ordering and growth while reinforcing the subjugation of African-Americans. Yet, many business and commercial law professors devote class time to teaching foundational and historical material, without any consideration of the impact of slavery. To avoid slavery in business and commercial law courses is to ignore an institution that played a pivotal role in much of what we do today. Slavery is not a frolic, it is foundational. Many American universities played a role in the slave trade—either receiving funds from the enterprise or receiving the enslaved as donations and using their labor or disposing of them for the financial advancement of the institution. In my Core Commercial Concepts course, a Uniform Commercial Code (UCC) survey class covering Articles 2, 3, 4, and 9, I devote time and space to discussions of race and the law by making the connection between the history of commercial concepts, slavery, and the role of the cotton industry in the shaping of international commercial law norms. In my simulation, described in this essay, I teach the story of Washington and Lee University’s sale of individuals for the purpose of ensuring the institution’s financial survival, then extrapolate from the facts to review the high points of commercial law. I incorporate materials on the legacy of slavery at my own institution to provide students with a scenario based on the acquisition of real property and construction of buildings they engage with on campus. In this essay I explain the methods I use to explore these concepts. Working in a framework that focuses on classification and status, my students consider issues of federalism and the impact of statutory definitions on private ordering, while discussing how these definitions shape the relationship of African-Americans to commerce.

Download the article from SSRN at the link.

Hamilton on The Contractual and Tax Implications of The Phantom of the Opera

Charles Edward Andrew Hamilton, IV, University of Groningen Faculty of Law, has published The Contractual and Tax Implications of The Phantom of the Opera at The Vanderbilt Journal of Entertainment and Technology Law Blog.

The substantive story of Gaston Leroux’s The Phantom of the Opera (Le Fantôme de l’Opéra) is largely about contract analysis and whether the managers and “the phantom” have had a “meeting of the minds”—consensus ad idem. The question is whether the Phantom and the Managers reached a “meeting of the minds” or manifested mutual assent in their contractual remedies. In short, the plot surrounds new managerial team—Armand Moncharmin and Firmin Richard—at the Palais Garnier have refused to abide by the former managerial team’s contract with the Phantom as successors in kind. The relevant legal facts are that Armand Moncharmin and Firmin Richard have assumed the roles of managers of the Palais Garnier. Gaston Leroux and the Phantom himself often point out that the managers have a lack of experience. Indeed, the Phantom appears to have similar access to private information that was at issue in the Supreme Court case Laidlaw v. Organ (1817) and which would be allowed to .be used in a negotiation over the mangers.

Download the essay from SSRN at the link. 

Snyder on Metamorphoses in the Law of Contract: Mythological Reflections @AUWCL

David V. Snyder, American University College of Law, has published Metamorphoses in the Law of Contract: Mythological Reflections. Here is the abstract.

A human body grows and changes but remains the same body. The same is true of other organisms, even though some transform dramatically. Metamorphosis is a poetic and mythological conceit of identity, change, and continuity. It applies just as well to the law of contract and helps us understand the power of the contract law canon and the conventional understanding of the legal history of contract. The ideas probably hold true for private law generally, but the focus is on Anglo-American contract law with a foray into Scots private law. Three aspects of mythology and metamorphosis are highlighted. First, the conventional understanding of legal history shapes what the law is. In the story of legal development, we see an implicit notion of progress — with missteps and complications of plot, but with the conviction that eventually the law, like any myth, will work itself out in a way that is right — not necessarily a way that is good but instead a way that fits with society. And in any system based on case law, this conventional understanding of legal development shapes the law itself. Second, the force of this conventional understanding is scarcely lessened by demonstrable falsity. Classic books, lectures, and cases illustrate the idea that historical inaccuracy is an insignificant check on the power of myth. Finally, myths consist not only of explanatory plotlines; they also draw on characters and settings that reflect and inspire the society they serve. Legal myths are no different. Understanding legal mythology requires an attentive ear and a sharp eye for the characters, as well as the storytellers. The reasonable man is not the same as the reasonable person (or is he — a metamorphosis?), and in any case is not the same as the bonus paterfamilias or bon père de famille—the good father of the family, or good family man, the comparable figure of Roman and civil law. Setting matters as much: the heritage of kings and lords, and judges and Westminster Hall, makes for different offspring than that of Rome and Continental learning, of wise thinkers and treatise authors, of Parliament House and institutional writers. When law is understood as a humanistic and rhetorical discipline, the force of myth, in all its aspects, is only natural.

Download the article from SSRN at the link.

Swain on Intoxication: Being "Without the Power To Drink Or Contract" @AuckLawSchool

Warren Swain, University of Auckland Faculty of Law, has published 'Without the Power to Drink or Contract' at 24 Edinburgh Law Review 26 (2020). Here is the abstract.

Intoxication as a ground to set aside a contract is not something that has proved to be easy for the law to regulate. This is perhaps not very surprising. Intoxication is a temporary condition of varying degrees of magnitude. Its presence does however raise questions of contractual autonomy and individual responsibility. Alcohol consumption is a common social activity and perceptions of intoxication and especially alcoholism have changed over time. Roman law is surprisingly quiet on the subject. In modern times the rules about intoxicated contracting in Scottish and English law is very similar. Rather more interestingly the law in these two jurisdictions has reached the current position in slightly different ways. This history can be traced through English Equity, the works of the Scottish Institutional writers, the rise of the Will Theory, and all leavened with a dose of judicial pragmatism.

Download the article from SSRN at the link.

Zietlow on Slavery, Liberty, and the Right to Contract @ProfessorRZ

Rebecca E. Zietlow, University of Toledo College of Law, is publishing Slavery, Liberty and the Right to Contract in volume 19 of the Nevada Law Journal (2019). Here is the abstract.

This article explores what the right to contract meant to slaves, free blacks and northern workers before and after the Civil War, to uncover the lost history of liberty of contract under the Thirteenth Amendment. By abolishing slavery and involuntary servitude, the Thirteenth Amendment transformed United States labor law and expanded rights for all workers. Until then, the slave had been at the center of United States labor law, and the paradigm of labor law was unfree labor. The Thirteenth Amendment and other Reconstruction measures established a new paradigm: the autonomous worker with liberty of contract. Today, liberty of contract is most often invoked by conservatives and libertarians, who argue that the right to contract entails a right to be free of government intervention. Scholars trace the Lochner libertarian right to contract to free labor ideology of the antislavery movement and the Reconstruction Era. Until now, the dominant model of liberty of contract is the individualist right to be free of government interference, embraced by the Supreme Court in Lochner v. New York. This article shows that to the contrary, the Thirteen Amendment based right to contract invites government intervention to empower workers exercising that right. The Reconstruction Congress invoked the Thirteenth Amendment as it intervened in employment contracts to protect not only their rights, but the rights of northern workers. Paradoxically, the Reconstruction Congress enacted precisely the type of regulations that the Lochner Era Court struck down as violating liberty of contract.

Download the article from SSRN at the link.

Munshi on White Slavery and the Crisis of Will in the Age of Contract @GeorgetownLaw

Sherally Munshi, Georgetown University Law Center, is publishing White Slavery and the Crisis of Will in the Age of Contract in volume 30 of the Yale Journal of Law & Feminism (2018). Here is the abstract.

Recognizing human freedom is never as simple as acts of legal pronouncement might suggest. Liberal abstractions like freedom and equality; legal formulations of personhood, free will, and contract; the constructed divisions between public and private, self and other, home and market on which the former are predicated — these are often inadequate to understanding, let alone realizing, the shared aspirations they supposedly define. By the same token, the dense and dynamic relations of power that characterize any liberal society overwhelm and exceed our critical vocabulary. “Racism,” “sexism,” and “capitalism” powerfully name structures of inequality, but they fail to capture the full spectrum of social relations, practices, and exchanges that reproduce inequality — deep structures of feeling, unspoken common sense, the stories we tell ourselves about the world and our places in it. Focusing on an early twentieth-century case involving an immigrant convicted of “white slavery,” accused of “mesmerizing” his secretary, this Article explores the ways in which the white slave panic and spiritualist practices reflect a set of anxieties about the nature of agency and consent obscured by the universalizing and formalist abstractions of contract law and theory. Through a close reading of competing narratives surrounding the case, this Article seeks to investigate some of the ways in which the rhetorical distortions of law affect the lives of its most vulnerable subjects.

Download the article from SSRN at the link.

Grebieniow on Inheritance Law and Roman Law

Aleksander Grebieniow, University of Warsaw, Faculty of Law, Institute for Legal History, has published Inheritance Contracts & Roman Law. Here is the abstract.

The use of inheritance contracts is one of the most controversial issues about the Roman Law. It is not unanimous to whether the Romans knew them, and if so, whether they have practised disposing of one’s assets in the event of death by means of an agreement. It appears that the question can’t be solved without asking, how should we understand the notion of ‘inheritance contracts’. Are the modern concepts compatible with Roman legal experience being not compatible with each other? There are though certain proofs of ‘a contract-oriented way of thinking’ of the Roman jurists. They indeed prohibited some contract having a succession over a third person for an object but were not using a broader concept of inheritance contract. The present paper is meant as a reconsideration of this topic, with particular focus on the justifiability of the research questions which have been asked until now.

The full text is not available for download from SSRN.

Mignanelli on Whether Satan Is a Transactions Attorney @nmignanelli

Nicholas Mignanelli, University of Miami School of Law, has published Is Satan a Transactions Attorney? An Account of Satanic Imagery in Law and Literature. Here is the abstract.

What can the history of satanic imagery in law and literature teach us about the development of humanity’s understanding of its relationship with evil? This wide-ranging account of Satan’s presence across textual mediums uncovers the secret genealogy of contracts with Satan, from the Gospel of Matthew to Mayo v. Satan and His Staff (1971). This ironic lineage recounts how a Christian clergyman was the first to consummate a contract with Satan, how Martin Luther was the first to link Johann Faust to Satan, and how the poet who inspired Charlie Daniel’s “The Devil Went Down to Georgia” was the first to imagine an attorney litigating against Satan. Yet, these ironies are not so significant as the moral innovations that each stage in the evolution of the diabolical contract motif represents.

Download the article from SSRN at the link.

Brings to mind The Devil's Advocate by Andrew Neiderman (made into the 1997 film with Al Pacino and Keanu Reeves) and Mark Twain's The Mysterious Stranger (various editions, on which Kevin Malone based his opera Mysterious 44). 

Alternative Forms of Currency and FInancial Crises In England in Late Eighteenth and Early Nineteenth Rural England

Iain Frame, University of Kent, Canterbury, Kent Law School, has published ‘Country Rag Merchants’ and English Local Currencies in the Late Eighteenth and Early Nineteenth Century at 42 Journal of Law and Society 588 (2015). Here is the abstract.

In the late eighteenth and early nineteenth century, communities across England used country bankers’ notes almost as much as they used coins and Bank of England notes. Accounting for the relative success of these alternative currencies is challenging, however, due to the frequency of financial crisis during the period. If, during a crisis, all note holders attempted to enforce the promise to pay in gold coin against the issuing banker, the ‘law‐finance paradox’ would leave some note holders with gold coin, but would leave many more with merely ‘country rags’ or worthless pieces of paper. Building on both the credit approach to money and the relational approach to contract, this article shows note‐using communities successfully responding to financial crisis. They frequently did so by formalizing the bonds of reciprocity and trust tying the community to its note‐issuing banker – bonds sometimes made all the stronger by legal enforceability.

The full text is not available from SSRN.

2 Broke Girls and the Talent Agency License

Caroline and Max take on the job of talent agents on the April 27, 2015 episode of 2 Broke Girls in "2 Broke  Girls and the Look of the Irish."  They decide to try to help newly hired Nash (Austin Falk) become a model (and they'll pocket some cash in exchange). There's only one problem: the episode gives no indication that either one of the members of our dynamic business duo is licensed under state law to represent talent in the state of New York.  Under New York law, one needs a license to act as a talent agent. See Article 11 of the NY General Business Law, which applies to those representing actors and models, among other clients.

Under Article 11, Section 171:

    2. a. "Employment agency" means any person  (as  hereinafter  defined)
  who, for a fee, procures or attempts to procure:
    (1)  employment  or  engagements  for  persons  seeking  employment or
  engagements, or
    (2) employees for employers seeking the services of employees.
    b. "Employment  agency"  shall  include  any  person  engaged  in  the
  practice  of  law  who  regularly  and  as part of a pattern of conduct,
  directly or indirectly, recruits, supplies, or  attempts  or  offers  to
  recruit  or  supply,  an  employee  who  resides outside the continental
  United States (as defined in section one hundred eighty-four-a  of  this
  article)  for  employment  in  this  state  and  who  receives  a fee in
  connection with the arrangement for the admission into this  country  of
  such workers for employment.
    c.  "Employment  agency"  shall  include  any  person  who, for a fee,
  renders vocational guidance or counselling services and who directly  or
  indirectly:
    (1)  procures or attempts to procure or represents that he can procure
  employment or engagements for persons seeking employment or engagements;
    (2) represents that he has access, or has the capacity to gain access,
  to jobs not otherwise available to those not purchasing his services; or
    (3) provides information or service of any kind purporting to promote,
  lead to or result in employment for  the  applicant  with  any  employer
  other than himself.

...

   3. "Fee" means  anything  of  value,  including  any  money  or  other
  valuable  consideration  charged,  collected, received, paid or promised
  for any service, or act rendered or to  be  rendered  by  an  employment
  agency,  including  but  not limited to money received by such agency or
  its emigrant agent which  is  more  than  the  amount  paid  by  it  for
  transportation,  transfer  of baggage, or board and lodging on behalf of
  any applicant for employment.
    4. "Agency manager" means the person designated by the applicant for a
  license who is responsible  for  the  direction  and  operation  of  the
  placement  activities  of  the  agency  at  the  premises covered by the
  license.
    5. "Placement employee"  shall  mean  any  agency  manager,  director,
  counsellor,  interviewer,  or any other person employed by an employment
  agency  who  spends  a  substantial  part  of  his  time   interviewing,
  counselling  or  conferring  with  job  applicants  or employers for the
  purpose of placing or procuring job applicants, but  shall  not  include employees  of an employment agency who are primarily engaged in clerical occupations.

...
7.  "Person"  means  any  individual,  company,  society, association,
  corporation, manager, contractor,  subcontractor,  partnership,  bureau,
  agency, service, office or the agent or employee of the foregoing.
    8.  "Theatrical  employment  agency"  means  any person (as defined in
  subdivision seven of this section) who procures or attempts  to  procure
  employment  or engagements for an artist, but such term does not include
  the business of managing entertainments, exhibitions or performances, or
  the artists or attractions constituting the same,  where  such  business
  only incidentally involves the seeking of employment therefor.
    8-a.  "Artist"  shall  mean actors and actresses rendering services on
  the legitimate stage and in the production  of  motion  pictures,  radio
  artists, musical artists, musical organizations, directors of legitimate
  stage, motion picture and radio productions, musical directors, writers,
  cinematographers,  composers,  lyricists,  arrangers,  models, and other
  artists and persons rendering professional services in  motion  picture,
  theatrical, radio, television and other entertainment enterprises. 
    9.  "Theatrical  engagement"  means any engagement or employment of an
  artist.

Continuing with Section 172:

  License  required. No person shall open, keep, maintain, own,
  operate or carry on any employment agency unless such person shall  have
  first  procured  a  license  therefor  as provided in this article. Such
  license shall be issued by the commissioner of labor, except that if the
  employment agency is to be conducted  in  the  city  of  New  York  such
  license  shall be issued by the commissioner of consumer affairs of such
  city. Such license shall be  posted  in  a  conspicuous  place  in  said
  agency.

Boldface added by the editor of the L & H Blog (ahem, me).

True, Nash refers to Caroline as his "manager" at one point in the episode. If Caroline and Max actually act as Nash's personal managers, then NY law does not require them to obtain talent agent licenses under the "incidental employment" exception (Section 171 (8)) but they cannot "procure employment" for him. Their behavior in the episode indicates that they are not doing so "incidentally." They go to an audition with him purposefully (although they leave when they discover the audition is for a sexually explicit film). When a friend of their new employer indicates she wants to hire Nash as a model, Caroline eagerly demonstrates that she wants to take the businesswoman up on that offer. Caroline (and Max) probably are not pursuing employment for Nash incidentally. They have a goal in mind: finding modelling work for Nash. For that, they need to be licensed as talent agents.

On "incidental" representation, see Section 171(8) above and Mandel v. Liebman, 303 N.Y. 88 (1951) (plaintiff attorney sued defendant author, because defendant refused to pay plaintiff commissions agreed upon in contract, arguing contract by which defendant employed plaintiff to represent him as personal manager was void because plaintiff was not licensed as talent agent under NY law).

Legal Tradition, Legal Reform, and Louisiana

Christopher K. Odinet, Southern University Law Center, has published Commerce, Commonality, and Contract Law: Legal Reform in a Mixed Jurisdiction in volume 75 of the Louisiana Law Review (2015). Here is the abstract.

This Article explores the tradition/reform dichotomy as it exists in certain jurisdictions that, because of their unique history and nature, are particularly susceptible to the struggle between legal tradition and legal reform — mixed jurisdictions. In order to more closely examine the tradition/reform dichotomy and its theoretical and practical effects, this Article analyzes the role that traditional legal institutions play in the legal reform process through the lens of America’s lone mixed jurisdiction — Louisiana.

By exploring Louisiana’s subtle, yet prevalent, anchor-like legal conundrum caused by the struggle between progress and tradition — the process of mooring oneself to existing institutions to such a degree that newly adopted institutions are rendered less effective and the law as a whole suffers — one is able to extrapolate as to how historical forces play a role in the much larger sphere of mixed jurisdictions globally. This Article also explores the broader social science and psychology behind this anchoring effect by looking at society’s inherent desire to hold on to traditional customs and practices, and to resist, even if only subconsciously, letting go of the past.

Download the article from SSRN at the link.

The Aesthetics of Contract Law

Kenneth K. Ching, Regent University School of Law, has published Beauty and Ugliness in Offer and Acceptance. Here is the abstract.

This essay applies classical aesthetics to the contract doctrine of offer and acceptance. It argues that contract law can be understood, analyzed, and improved using three criteria of beauty: proportion, integrity, and clarity. Based on these criteria, this essay (1) argues that the traditional doctrine of offer and acceptance is beautiful, (2) argues that UCC §2-207 is ugly and fails to improve upon offer and acceptance, and (3) suggests improvements for UCC §2-207.

Download the essay from SSRN at the link. 

Bach To the Future

Jonathan Yovel, Yale Law School; NYU School of Law, Straus Institute for the Advanced Study of Law and Justice; University of Haifa Faculty of Law, is publishing From Status to Contract: The Unhappy Case of Johann Sebastian Bach in the Canadian Journal of Law and Jurisprudence. Here is the abstract.

In May of 1723, Johann Sebastian Bach was appointed Musical Director and Cantor of the Thomasschule, the city musical academy, in the mercantile city of Leipzig, a laboratory for an emerging self-conscious urban bourgeoisie. Bach departed from a tiny 1700s feudal court, moving to a devout, materialistic, new-money city ecstatic with the sense of its own progress and modernization. Socially and politically, he left behind one Europe and joined another.

Not less significant, although generally ignored by scholarship, was the matter of Bach’s legal status. Up to this point in his career, Bach always served as a status-determined servant within a feudal hierarchy. In Leipzig he signed a contract of employment; no longer a servant, he became an employee. In a sense he embodied Henry Maine’s characterization of modernity as a gradual shift “from status to contract.” And in most respects, his life turned much to the worse.

This essay explores the failings of contract in early modernity through Bach’s case, and especially how contract perpetuated hierarchical social structures he was ostensibly leaving behind. Bach was a modern in his entrepreneurial spirit; to the extent that he finally did manage to take advantage of contract — a later period that coincided with a decline in his liturgical output — that was not due to a supposed “freedom of contract” in any sense of empowerment or even bargaining, but to contract’s relative incomprehensiveness and fracturing of social and professional roles.

Download the article from SSRN at the link. 

The Law of Obligations In Scotland

Hector Lewis MacQueen, University of Edinburgh School of Law, has published The Law of Obligations in Scots Law in The Law of Obligations in Europe: A New Wave of Codifications 213 (Reiner Schulze and Fryderyk Zoll eds; Munich, 2013). Here is the abstract.

A historical study of the structure of the law of obligations in Scots law, with especial reference to the law of contract.

Download the essay from SSRN at the link.

Love As a Contract

Martha M. Ertman, University of Maryland School of Law, has published Love and Contracts in Don Quixote in Don Quixote: Interdisciplinary Connections 251 (Matthew D. Warshawsky and James A. Parr, eds.; Newark, NJ: Juan de la Cuesta, 2013). Here is the abstract.

Viewing love as a contract seems, initially, like mistaking windmills for giants, or a peasant girl for a grand lady. This chapter seeks, like Don Quixote, to convince readers to suspend their practiced views of everyday relationships in order to see them in a new light. What seems crazy at first glance may come to look as good, and sometimes better, than the more conventional view. As a law professor, I usually write about love and contracts by focusing on legal opinions and statutes, and recently I have added real-life stories from books and newspapers, as well as my friends, family, colleagues, and students. But if I am right that love and contracts often complement instead of oppose each other, then my argument that contracts shape the beginning, middle, and demise of love relationships ought to hold true in fiction as well, especially for the jump-off-the-page characters and situations in Don Quixote. Applying this analysis to Don Quixote invites new readings, and may even bring yet more readers to this brilliant text.

Download the essay from SSRN at the link. 

What We Talk About When We Talk About Ownership

Yxta Maya Murray, Loyola Law School, Los Angeles, has published From Here I Saw What Happened and I Cried: Carrie Mae Weems’ Challenge to the Harvard Archive at 8 Unbound: Harvard Journal of the Legal Left 1 (2013). Here is the abstract.

In the early 1990s, the artist Carrie Mae Weems appropriated daguerreotypes of enslaved people that are housed in Harvard University’s Peabody Museum of Archaeology and Ethnology. These incendiary images of Drana, Jack, Renty and Delia had been commissioned by Harvard Zoology Professor Louis Agassiz in the mid-1800s, supposedly in order to illustrate his theory of racial difference. However, Weems had signed a contract with the Peabody promising not to use the images without their permission, and she did not seek such approval before including the daguerreotypes in her now-famous series "From Here I Saw What Happened and I Cried." Harvard threatened to sue Weems on the grounds of copyright infringement and breach of contract, though when Weems invited Harvard to conduct what she understood to be a difficult conversation about law, history, and race "in the courts," Harvard demurred.
In this essay, I consider the copyright and contract claims that Harvard might have depended upon in its litigation. With respect to the copyright infringement claim, I query whether the fair use doctrine’s requirement that an appropriator "transform" borrowed images or text might have provided Weems with a defense. This question ushers me into an extended meditation on the meaning of transformation as it relates to art, history, law, seeing, and slavery. I also query whether Harvard actually owned these images at all; such property ownership proves the foundation for their contract claim. I conclude that Harvard did indeed own these daguerreotypes, but struggle against that determination, since this property was wrested from Drana, Jack, Renty and Delia through violence and atrocity. In the interests of peace, remembrance, and racial justice, I maintain that no valid property law should recognize such a chain of title. Borrowing from the Native American Graves Protection and Repatriation Act, I draft a proposed law that would recognize the relics of enslaved people as cultural property and require the federally funded museums that now own them to give them back to the descendants of America’s enslaved peoples.

Download the article from SSRN at the link.

Moses Medelssohn as Theorist of Contract

Helge Dedek, McGill University Faculty of Law, Institute of Comparative Law, has published Duties of Love and Self-Perfection: Moses Mendelssohn's Theory of Contract at 32 Oxford Journal of Legal Studies 713 (2012). Here is the abstract.

In his Doctrine of Right, Immanuel Kant calls Moses Mendelssohn, the towering figure of the German and the Jewish Enlightenment, a ‘Rechtsforscher’ – a legal scholar. Yet not only Kant, but numerous scholars of natural law in the eighteenth and nineteenth centuries, refer to and reflect on the juridical aspects of Mendelssohn’s work, in particular his thoughts on the law of contract. In this paper, I hope to shed some light on this hitherto rather unexplored facet of Mendelssohn’s oeuvre. Mendelssohn develops his theory of contract from the starting point of the officium amoris: the unenforceable ‘duty of love’ to exercise beneficence. Mendelssohn’s theory knows nothing yet of the modern contrast between altruism, distributive justice, and ‘freedom of contract'. By exploring Mendelssohn’s theory, we will, thus, be able to catch a glimpse of the birth pangs of the modern Western discourse on the ‘freedom of contract', which formed the backdrop, as well as the jumping-off point, of the development of a ‘liberal’ will theory of contract. Since this ‘liberal’ model is still the paradigm of how contract is mostly perceived today, Mendelssohn’s theory also exemplifies the possibility of an alternative to our own conceptualizations of contract that inescapably shape the way we think.

Download the article from SSRN at the link.