Pfander and Zakowski on Non-Party Protective Relief in the Early Republic: Judicial Power to Annul Letters Patent

James E. Pfander and Mary Zakowski, both of Northwestern University School of Law, are publishing Non-Party Protective Relief in the Early Republic: Judicial Power to Annul Letters Patent in volume 128 of the Northwestern University Law Review. Here is the abstract.

Much of the debate over the constitutionality of universal or non-party protective relief in the federal court system has focused on lessons drawn from historical practice. But with its emphasis on injunctive relief, the literature has largely ignored forms of adjudication that arose outside the courts of equity and led to judgments and decrees affecting the rights of non-parties. As a result, the story of non-party protective relief has not yet been fully told. This Article offers a more complete story, highlighting a range of proceedings in which federal courts issued judgments that settled a matter once and for all and operated on all the world. Some familiar examples include proceedings in admiralty, where a decree could settle title conclusively and operate on those who did not appear in the litigation. Less familiar examples include naturalization judgments, which conferred the status of citizenship on an individual once and for all. We focus here on yet a third example: the power of federal courts, acting under the patent laws of the 1790s, to entertain individual suits to cancel or annul a patent for all purposes. Such cancellation proceedings, based on a practice that developed in England on the writ of scire facias, were understood to operate as a general matter and could confer benefits on artisans and manufacturers who did not appear in the litigation. Patent cancellation remains a part of the federal judicial role today. History suggests, then, that federal courts were understood to have power, when so authorized by Congress, to issue decrees that settled matters conclusively and therefore conferred burdens or benefits on non-parties. Over the nineteenth century, the patent cancellation power migrated to federal courts of equity, resulting in decrees that prohibited patent owners from asserting claims against non-parties. These early examples of non-party protection make it challenging to argue on historical grounds that Article III of the Constitution bars federal courts from granting such relief today. In a brief concluding section, we suggest that assessments of non-party protective relief should focus instead on congressional authority; such a focus could help distinguish universal injunctions in general from the set-aside power conferred in section 706 of the Administrative Procedure Act.

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Ferguson on The Ciceronian Origins of American Law and Constitutionalism @jackferguson100 @HarvardJLPP @NDLaw

Jack Ferguson, Notre Dame Law School, is publishing The Ciceronian Origins of American Law and Constitutionalism in volume 48 of the Harvard Journal of Law & Public Policy. Here is the abstract.

In his treatise on American constitutionalism, John Adams wrote that “as all the ages of the world have not produced a greater statesman and philosopher united than Cicero, his authority should have great weight.” This Article considers the Founding generation’s intellectual debt to Marcus Tullius Cicero, the classical Roman statesman-philosopher, and what it tells us about how the Founders approached law and constitutionalism. There are ongoing scholarly efforts to recover the general law tradition and classical lawyering of the eighteenth century, but as of yet, no account has been given of Cicero’s prominent role in that era. This Article gives that account. This Article first examines Cicero’s legal thought and how it shaped notions of natural law and the law of nations (or general law) in the seventeenth and eighteenth centuries. Grotius, Pufendorf, Coke, Vattel, Blackstone, Lord Mansfield, James Wilson, Joseph Story, and others grounded their work in Cicero’s writings on law. As a case study, this Article shows how Cicero contributed to the formation of American judicial review. Cicero’s interpretive principles dealing with hierarchies of law were adopted by Federalist No. 78, Alexander Hamilton’s prominent defense of judicial review. This Article then considers Cicero’s work on republicanism and constitutionalism. The Founding generation’s concepts of popular sovereignty, mixed government, checks and balances, and the rule of law can be traced back to Cicero, who was the primary expositor of the classical republican tradition. Finally, this Article evaluates Cicero’s influence on eighteenth-century notions of the ideal executive. As a constitutional theorist, Cicero laid the conceptual groundwork for Hamilton’s unitary energetic executive. And by his historical example as consul of Rome, Cicero inspired Hamilton’s efforts in the Washington administration to put down the Whiskey Rebellion of 1794, an early historical precedent on insurrection and the domestic use of military force. Cicero influenced the Founders’ work in numerous ways. To the extent their law is ours today, his relevance endures.

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Altwicker on Justice Beyond Borders: Extraterritorial Obligations from Thucydides to Grotius

Tilmann Altwicker, University of Zurich, is publishing Justice Beyond Borders – Extraterritorial Obligations from Thucydides to Grotius in Rechtsphilosophie - Zeitschrift für die Grundlagen des Rechts (RphZ). Here is the abstract.

The article traces the problem of extraterritorial obligations in the early history of ideas, spanning from Thucydides to Grotius. Extraterritorial obligations are defined here as moral obligations of a legitimate authority to perform or not to perform an act vis-à-vis individuals who are not its subjects. The article shows that arguments about justice beyond the border rely on transnational conceptions of the common good. In the early history of ideas concerning extraterritorial obligations, the following questions were central: Can there be a transnational meaning of moral concepts? Are extraterritorial obligations merely negative obligations? Is the extraterritorial pursuit of state interests limited by higher-ranking principles? Under which circumstances is the extraterritorial use of force permitted in order to protect individuals?

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Madison on The Republic of Letters and the Origins of Scientific Knowledge Commons @profmadison @pittlawfaculty

Michael J. Madison, University of Pittsburgh School of Law, is publishing The Republic of Letters and the Origins of Scientific Knowledge Commons in Governing Privacy as Commons (M. Sanfilippo, K.J. Strandburg, and B. M. Frischmann, eds., Cambridge University Press, 2020). Here is the abstract.

The knowledge commons framework, deployed here in a review of the early network of scientific communication known as the Republic of Letters, combines a historical sensibility regarding the character of scientific research and communications with a modern approach to analyzing institutions for knowledge governance. Distinctions and intersections between public purposes and privacy interests are highlighted. Lessons from revisiting the Republic of Letters as knowledge commons may be useful in advancing contemporary discussions of Open Science.

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Rosenblatt on the British Patent Controversy and the Sherlockian Canon

Elizabeth Rosenblatt, University of California Davis, is publishing 'What One Man Can Invent Another Can Discover:' The British Patent Controversy and the Sherlock Holmes Canon in Canon Law: Lawyers, Law and the Sherlockian Canon (William A. Walsh and Donny Zaldin, eds., 2018). Here is the abstract.

Over the course of the 19th Century in Great Britain, patent law and policy developed quickly in an atmosphere of heated debate. In the first half of the century, some advocated for a patent system that provided greater ownership to inventors, while others advocated for abolition of patents altogether. The one thing people could agree on, it seemed, was that the then-existing system was flawed. In the latter half of the 19th Century and beginning of the 20th, Parliament overhauled the patent system, including unifying the patent systems of England, Ireland, and Scotland, establishing the Patent Office, and passing the Patents Designs and Trademarks Act. In the midst of this atmosphere of debate and change, Sir Arthur Conan Doyle wrote 54 stories and 4 novels about the detective Sherlock Holmes, some of which address inventions. This chapter considers the treatment of patents and patent law in the Sherlock Holmes novels and stories to illuminate popular Victorian and Edwardian understandings of, and ambivalence about, the patent law of the time.

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Grajzl and Murrell on Estimating a Culture: Bacon, Coke, and Seventeenth-Century England

Peter Grajzl, Washington and Lee University Department of Economics; CESifo, and Peter Murrell, University of Maryland Department of Economics, have published Estimating a Culture: Bacon, Coke, and Seventeenth-Century England. Here is the abstract.

We use machine learning to estimate the features of early seventeenth-century English culture, applying structural topic modeling to the works of Francis Bacon and Edward Coke. The estimated topics reflect a core set of cultural ideas spanning legal, political, scientific, and methodological themes. Legal topics are highly connected, revealing an advanced structure of common-law thought that straddles areas of ostensibly disparate legal scholarship. The methodology of the common law is used to structure principles that are applied to debates both inside and outside law. Interconnections between topics uncover a distinctive approach to the pursuit of knowledge, embodying both Coke's legal methodology and Bacon's epistemology. Similarities between Bacon and Coke overshadow differences when conditioning on intended audience and time of authorship. Our estimated topics are constitutive elements of an emerging culture that reflected a legacy of common-law thought and that provided the core intellectual paradigm as England began its early ascent.

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Drink Up! Frye on a Legal History of the Bacardi Cocktail @brianlfrye

Brian L. Frye, University of Kentucky College of Law, has published 'It's Your Right…!': A Legal History of the Bacardi Cocktail. Here is the abstract.

In 1936, the Bacardi Company filed a trademark infringement action in New York state court against two New York bars for serving Bacardi cocktails made without Bacardi rum, and the court granted an injunction. For years afterward, the Bacardi Company used the ruling in its advertisement, proclaiming, "It's your right!" to expect Bacardi rum in your Bacardi cocktail. This article provides a legal history of the Bacardi cocktail and the Bacardi Company's trademark infringement action. An appendix provides a list of historical recipes for the Daiquiri and Bacardi cocktails.

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Lauriat on Literary and Dramatic Disputes in Shakepeare's Time @KCL_Law

Barbara Lauriat, King's College London, Dickson Poon School of Law, is publishing Literary and Dramatic Disputes in Shakespeare's Time in the Journal of International Dispute Settlement. Here is the abstract.

Disputes over literary works and plays — between one authors and another, one publisher and another, and between authors and publishers — have arisen since the ancient world. This is to be expected, since publishing poems and plays and producing theatrical performances can have significant economic, political, and emotional implications all at the same time. The nature and legal frameworks governing these disputes have changed dramatically over the centuries, however, particularly with regard to the proprietary rights involved. Though modern copyright law did not exist at the time, the Elizabethan age saw a high degree of professionalism of theatrical performance, book publishing, and dramatic authorship. When audiences are clamoring for novel entertainments, authorship is becoming a professional activity, and profits are to be made, customs and traditions inevitably arise — as do violations of those customs and traditions. This article discusses the framework of authorship and publishing in Shakespeare’s time and examines some of the disputes that arose and how they were resolved in a context where the legal remedies were limited. Methods from patronage to private guild “courts” to theft to public denunciation to outright violence were employed in attempts to maintain profitable businesses in publishing and theatre.

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McMahon on Reasonableness and Fairness: A Historical Theory

Christopher McMahon, University of California, Santa Barbara, has published Reasonableness and Fairness: A Historical Theory (Cambridge University Press, 2016). Here from the publisher's website is a description of the book's contents.

We all know, or think we know, what it means to say that something is 'reasonable' or 'fair', but what exactly are these concepts and how have they evolved and changed over the course of history? In this book, Christopher McMahon explores reasonableness, fairness, and justice as central concepts of the morality of reciprocal concern. He argues that the basis of this morality evolves as history unfolds, so that forms of interaction that might have been morally acceptable in the past are judged unacceptable today. The first part of his study examines the notions of reasonableness and fairness as they are employed in ordinary practical thought, and the second part develops a constructivist theory to explain why and how this part of morality can undergo historical development without arriving at any final form. His book will interest scholars of ethics, political theory, and the history of ideas.

Relates moral reasoning to its historical context

Provides an account of reasonable disagreement, enabling readers to gain insight into the structure of moral, and especially political, disagreements

Develops a meta-ethical theory that bridges the divide between realist views and anti-realist views

 

Fenster on Legal Intellectual History

Mark Fenster, University of Florida College of Law, has published Mr. Peabody's Improbable Legal Intellectual History at 64 Buffalo Law Review 101 (2016). Here is the abstract.

Legal intellectual history, I suggest in this Paper, is the street sweeper in the parade of law’s history and its use of history. Lawyers and legal academics want great, important figures, cases, and theories with and against which they can do battle. The student-edited law reviews prefer bold, clear claims that explain why one answer to an historical question presented will bring justice, while a competing answer is manifestly unjust; why one past approach lacks principle or created worse consequences; or how one theory or another can explain all manner of thorny legal issues which bedevils academics and practitioners. Viewing an appellate decision, legislative enactment, or academic debate, the legal academic must travel back in time to set matters straight, redeeming the past to make certain that the future avoids its confused and unfortunate fate. Intellectual historians trail behind the legal academy’s heavy-breathing and magnificent use of the past, cleaning up its waste by providing context, complicating narratives, and replacing bright trumpet horns with muted tones, vivid colors with shades of gray. Well after the parade has dispersed and marchers have moved on, and often before the next “Big Issue” causes the celebrants to line back up, intellectual history can bring complexity and context back in to the frame. I illustrate this dynamic first by describing the use of legal realism in Brian Tamanaha’s recent monograph on what he describes as the formalist-realist divide in legal theories about judging and about legal doctrine, and in the debate over that divide. In Part II, I describe a relatively minor figure in the pantheon of legal realists (as that pantheon currently exists), Thurman Arnold, and his realist critique of the criminal law and procedure.

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