Eliason on the Blues Contracts of Trumpet Records

Antonia Eliason, University of Mississippi School of Law, has posted Lillian McMurry and the Blues Contracts of Trumpet Records, which is forthcoming in the Mississippi Law Journal:

Trumpet Records was a Jackson, Mississippi-based record label established and run by Lillian McMurry from 1950 until it folded in 1955. This article draws on archival material to evaluate the progression of the contracts entered into by Trumpet Records with its blues artists, arguing that this demonstrates the evolving contractual understanding of a young record label, showing increasing sophistication and an awareness of some of the potential pitfalls of signing artists. The contracts of Trumpet Records, when taken together with the correspondence of the label’s head with her artists, also show a commitment to fairness and a level of scrupulousness and honesty not often seen in the industry. The article also examines the legal dispute between Sherman Johnson and Trumpet Records, which reached the Mississippi Supreme Court. The article further turns to the subsequent copyright infringement of a number of Trumpet Record recordings by European record labels in the 1970s, which sheds light on the widespread practice of piracy prevalent in relation to older blues recordings.

Silver on Serfdom by Contract in the Late Roman Empire

Morris Silver, Professor Emeritus of Economics in the City College of the City University of New York, has posted Serfdom by Contract in the Late Roman Empire:

Legal codes and other documents of the late Roman Empire reveal a system, the colonate, which resembles serfdom in the Middle Ages. Farmers (coloni) had their (head and land) taxes paid by estate owners in whose census rolls they were registered. If the land changed ownership coloni were entitled to stay and were registered in the tax roll of the new owner. However, coloni and their offspring lacked the right to migrate. The paper argues that the pristine or original form of the colonate is a voluntary contractual arrangement among free farmers, estate owners, and the imperial Fiscus which acquired a public law dimension because it required a change in the personal status of the farmer. By means of this serfdom contract the contractors expected to share in the aggregate gains from reducing tax-collection costs and from stabilizing tax revenues. The paper goes on to suggest that a secondary or derived form of the serfdom contract probably emerged in response to the Roman state’s interventions in credit markets. The paper next considers the implications of the colonate for economic efficiency and concludes with some observations on the reasons for changes over time in its importance.

Landmark Cases in Contracts

Here’s another volume in Hart’s Landmark Cases series that is now out in paperback: Landmark Cases in the Law of Contract, edited by Charles Mitchell and Paul Mitchell, both of University College London. We missed the hardback version when it came out in 2008, so here is the full account. From the press:

Landmark Cases in the Law of Contract offers twelve original essays by leading contract scholars. As with the essays in the companion volumes in this series, each essay takes as its focus a particular leading case, and analyses that case in its historical or theoretical context. The cases range from the early eighteenth- to the late twentieth-centuries, and deal with an array of contractual doctrines. Some of the essays call for their case to be stripped of its landmark status, whilst others argue that it has more to offer than we have previously appreciated. The particular historical context of these landmark cases, as revealed by the authors, often shows that our current assumptions about the case and what it stands for are either mistaken, or require radical modification. The book also explores several common themes which are fundamental to the development of the law of contract: for instance, the influence of commercial expectations, appeals to 'reason' and the significance of particular judicial ideologies and techniques.

TOC after the jump.

Mallard and Sgard on Contracts in Global Markets

Just out is a volume edited by Grégoire Mallard (Graduate Institute of International Studies, Geneva) and Jérôme Sgard (Sciences Po, Paris): Contractual Knowledge: One Hundred Years of Legal Experimentation in Global Markets (Cambridge, 2016). The press description notes that the collection

 extends the scholarship of law and globalization in two important directions. First, it provides a unique genealogy of global economic governance by explaining the transition from English law to one where global exchanges are primarily governed by international, multilateral, and finally, transnational legal orders. Second, rather than focusing on macro-political organizations, like the League of Nations or the International Monetary Fund, the book examines elements of contracts, including how and by whom they were designed and exactly who (experts, courts, arbitrators, and international organizations) interpreted, upheld, and established the legal validity of these contracts. By exploring such micro-level aspects of market exchanges, this collection unveils the contractual knowledge that led to the globalization of markets over the last century.

The book proposes a new view of globalization centered on the role of international private law. It offers a much-needed historical and comparative perspective on recent financial crises. And it examines international market governance on multiple levels, from governments to private lobbies and extra-territorial courts. 

Blurbs and Table of Contents after the jump.

Budnitz on the National Consumer Law Center, 1969-2013

Mark Elliott Budnitz, Professor Emeritus, Georgia State University College of Law, has posted The National Consumer Law Center From Its Birth to 2013:

The article describes, analyzes and evaluates the role played by the National Consumer Law Center, a public interest law firm dedicated to promoting the legal rights of low income consumers, in the development of consumer protection law. It does this by first providing a brief summary of the origins of federal funding of legal services through the Office of Economic Opportunity, an agency established by Congress to fight the “War on Poverty.” The article then describes the circumstances surrounding the initial funding of NCLC by OEO. Most of the paper consists of a detailed exposition of NCLC’s work product from 1969 to 2013. That work involved significant activities on both the federal and state levels. It included litigation, legislation and administrative agency advocacy. There were major victories as well as many setbacks. The paper highlights NCLC’s role in the development of the law under the Truth-in-Lending Act as well as NCLC’s efforts to ameliorate the disastrous effect of the Great Recession on low income home ownership. The paper provides details on NCLC’s joint projects with other consumer and civil rights organizations. The paper also notes the crucial role played by NCLC’s publications, training and conferences in establishing a national consumer lawyer bar. The article concludes with an examination of the challenges NCLC faces due to changes in the marketplace caused by technology.

In addition to relating NCLC’s substantive accomplishments, the paper discusses the significance of non-substantive developments. The article explores the political battle that resulted in the Legal Services Corporation’s termination of all future funding for NCLC and how NCLC successfully responded to that existential crisis by diversifying its funding sources. Having a satellite office in Washington, DC enabled NCLC to substantially increase its participation in the federal venue. Purchasing its own building in Boston provided it with a measure of stability.

The article is a case study of how a non-profit legal services organization can endure and significantly influence the law despite major adversity. It did this by being flexible, adapting to changed circumstances and adopting an entrepreneurial spirit while remaining faithful to its mission.

A Festschrift for Richard H. Helmholz

I’m very pleased to note the publication of the festschrift Studies in Canon Law and Common Law in Honor of R. H. Helmholz, edited by Troy L. Harris (Berkeley: The Robbins Collection, 2015).  “Richard Helmholz is a scholar, mentor and gentleman,” writes the editor, Troy L Harris.  Although “perhaps best known as an historian of the Roman canon law in medieval and early modern England,” Professor Helmholz “has an enviable knack for addressing a variety of subjects–from the history of marriage law to the work of ecclesiastical courts to the prohibition against self-incrimination–with sophistication and rigor, while keeping a light touch and remaining accessible.”  And because his interests lie “at the intersection of multiple lines of inquiry, his contributions are recognized by historians whose paths might otherwise never cross: historians of Roman civil law, of English common law, of medieval and early modern European law, of medieval and early modern English society.”  The contents of festschrift attest to Professor Helmholz’s influence, Harris writes, but may not sufficiently reveal “the genuine affection and admiration” that the contributors “expressed toward our mutual friend.”

Richard Helmholz: Bibliography 1969-2015

Limitation of Actions: The Curious Case of Classical Roman Law
David Johnston

Episcopal Power and Royal Jurisdiction in Angevin England
Joshua C. Tate

The Common Lawyers of the Reign of Edward I and the Canon Law
Paul Brand

Ethical Standards for Advocates and Proctors of the Court of Ely (1374-1382) Revisited
Charles Donahue, Jr.

The Evolution of the Common Law
Thomas P. Gallanis

Clergy and the Abuse of Legal Procedure in Medieval England
Jonathan Rose

The Private Life of Archbishop Johannes Gerechini: Simulated Marriage and Clerical Concubinage in Early Fifteenth-Century Sweden
Mia Korpiola

The Presumption of Evil in Medieval Jurisprudence
Laurent Mayali

Pedro Guerrero’s Treatise on Clandestine Marriage
Philip Reynolds

Some Elizabethan Marriage Cases
Sir John Baker

The Arguments in Calvin’s Case (1608)
David Ibbetson

Hugo Groitus and the Natural Law of Marriage: A Case Study of Harmonizing Confessional Differences in Early Modern Europe
John Witte, Jr.

The Work of the Ecclesiastical Courts, 1725-1745
Troy L. Harris

Testamentary Proceedings in Spanish East Florida, 1783-1821
M. C. Mirow

The Durability of Maxims in Canon Law: From regulae iuris to Canonical Principles
Norman Doe and Simon Pulleyn

Canon Law: The Discipline of Teaching and the Teaching of the Discipline
Mark Hall

Agreed Payment for Non-Performance in European Contract Law
Reinhard Zimmermann

Symposium on Hartog's "Someday All This Will Be Yours"

Law & Social Inquiry 40:2 (Summer 2015), available online shortly, includes a symposium on Hendrik Hartog's Someday All This Will Be Yours: A History of Inheritance and Old Age, with contributions from Naomi Cahn, Mary Anne Case, Nina A. Kohn, Dorothy E. Roberts, and Hendrik Hartog.

Sen, McCleskey, & Basuchoudhary on Civil Litigation on the Virginia Frontier, 1745-1755"

The latest issue of the Journal of Interdisciplinary History includes an article of interest: Tinni Sen, Turk McCleskey, and Atin Basuchoudhary, "When Good Little Debts Went Bad: Civil Litigation on the Virginia Frontier, 1745-1755." Here's the abstract:

The use of a multinomial logit model to analyze a hitherto unavailable dataset of 1,376 small-claims lawsuits in colonial Augusta County, Virginia, for information about debts, litigants, and procedures finds no evidence of prejudice in the legal system. The magistrates' consistently fair enforcement of legitimate contracts may have induced both plaintiffs and defendants to settle their disputes in court rather than in private. The evidence corroborates the view that by the mid-eighteenth century, Virginia's frontier judicial system was sufficiently impartial to encourage creditors to draw up efficient contracts even for small debts.

Subscribers to the journal may access full text here. 

Hat tip: Mike Widener

Alden on Williston on Promissory Estoppel

Eric Alden, Northern Kentucky University, Chase College of Law, has posted Rethinking Promissory Estoppel, which is forthcoming in the Nevada Law Journal 16 (2015):

Samuel Williston, the official Reporter for the ALI’s first Restatement of the Law of Contracts in 1932, claimed that promises had been enforced without consideration in sufficiently many cases across different factual situations that the only way to embrace them all was to create a provision, set forth in Section 90 and generally referred to as “promissory estoppel,” that purports to suspend wholesale the normal rules governing contract formation. This Article challenges that assertion as a factual matter, and challenges the claim that only a provision as broad as Section 90 could accommodate certain limited exceptions to the consideration requirement that had been observed at the time.

To the extent Williston’s initial claim of authority rests upon questionable assertions, fundamental concerns arise as to the legitimacy of Section 90 in its current form and as to the doctrinal validity of cases decided on the basis thereof.

This Article further addresses the implications of this analysis for the future of contract law. In order to reduce the risk of contract bleeding out doctrinally into tort, the Article argues that a markedly more modest approach than that reflected in Section 90 should be taken with respect to the enforcement of promises in the absence of consideration. Specifically, the Article argues in favor of discrete, limited categorical exceptions to the consideration requirement. As to factual situations not falling within those categorical exceptions, courts should strongly consider an implied unilateral contract analysis as an analytic paradigm preferable to that of promissory estoppel.

 H/t: Legal Theory Blog

MacMillan on a Trans-Atlantic Migration of Contractual Privity

Catharine MacMillan, Professor of Law and Legal History at the University of Reading, has published The Mystery Of Privity: Grand Trunk Railway Company of Canada v. Robinson (1915), University of Toronto Law Review 65 (Spring 2015).  It's gated, I'm afraid, but it's also too interesting not to note:

This article examines a little known decision of the Judicial Committee of the Privy Council: Grand Trunk Railway Company of Canada v Robinson (1915). The examination is historical and it provides a different insight into the understanding of privity of contract, a doctrine central to contract law. The examination reveals a process of trans-Atlantic legal migration in which English law was applied to resolve an Ontario case. The nature of the resolution is surprising because it appears to conflict with the better known decision of the House of Lords, Dunlop Pneumatic Tyre Company, Limited v Selfridge and Company, Limited, which a similarly constituted panel delivered in the same week. This article argues that there was a greater malleability in the resolution of cases concerned with privity than was thought to have existed. It is also argued that the power of Canadian railway capitalism is a significant factor in understanding the legal resolution of the case. Finally, the article considers the use of English and American precedents relevant to the case. The application of English precedents to the case led to a resolution not entirely befitting Canadian conditions.

Hat tip: H-Law.

VanderVelde on Mrs. Dred Scott and Lumley v. Wagner

Lea S. VanderVelde, University of Iowa College of Law, has posted two items from her backlist.  The first, written with Sandhya Subramanian is Mrs. Dred Scott, which was appeared in the Yale Law Journal 106 (1997): 1033:

This article argues that Harriet Robinson Scott's significance as co-plaintiff in Dred Scott v. Sanford has been overlooked for generations in part because her status was a contradiction. Recognizing her existence, however explains the incongruities that this particular case represents if one focuses only on the factual record about her husband, and the motivations implied from that record.

Harriet was the wife of a slave. Analytically, Harriet's existence as doubly subordinated through the institution of marriage and the institution of slavery, demonstrates the paradox of married and enslaved women. Marriage was conventionally seen to be legally inconsistent with the status of slavery. A wife would be a dependent, and a slave could have no dependents. This double subordination explains why she is so little known and why the case litigated under her husband's name.

The article is compensatory legal history, both in adding into the equation a long neglected party, and in by her addition, providing rationale for the sustained lawsuit. This article sheds light on the motives behind the Scott's suit for freedom and addresses questions that have long plagued scholars such as why Dred didn't sue sooner or escape to free territory. Harriet was in all likelihood the cornerstone of the litigation.

This article offers a reassessment of the Dred Scott decision. Lea VanderVelde followed this article with a full scale biography of Harriet in the book, Mrs. Dred Scott: A Life on Slavery’s Frontier (Oxford 2009). This article is completely distinct from the book.

The second is The Gendered Origins of the Lumley Doctrine: Binding Men's Consciences and Women's Fidelity, which appeared in the Yale Law Journal 101 (1992): (1992):

The English case Lumley v. Wagner is part of the canon of contract law. The case maintains that although employees cannot be specifically ordered to perform on a contract, they may be enjoined from working for a competitor.

This article demonstrates how hostile the Lumley rule was to the American ethos of free labor when it was first introduced in the United States in the mid-nineteenth century. However, the Lumley rule was ultimately accepted into American Law, and indeed into the canon, through a curious pathway. This rule became incorporated in the American common law through a series of cases all of which involved women who performed on stage. Only after application in a series of cases enjoining women performers did the rule gain a foothold in American common law. This injunction was legally acceptable in cases involving women because it was consonant with a rule applied against women in divorces, that is, they could sever the marriage but they were not permitted to remarry. This was also socially acceptable because the social position of women stage performers was seen as lacking the propriety expected of women by Victorian standards of morality.

Thus, a rule that was counter to the American ethos of free labor came into the canon, and came to be applied to men, only after it had been applied against women. By the time that American treatises reported the rule, the gendered identity of every previous application was overlooked.

Swain's "Law of Contract, 1670-1870"

Out this month from Cambridge University Press in its Cambridge Studies in English Legal History is The Law of Contract, 1670–1870, by Warren Swain, TC Beirne School of Law, University of Queensland:

The foundations for modern contract law were laid between 1670 and 1870. Rather than advancing a purely chronological account, this examination of the development of contract law doctrine in England during that time explores key themes in order to better understand the drivers of legal change. These themes include the relationship between lawyers and merchants, the role of equity, the place of statute, and the part played by legal literature. Developments are considered in the context of the legal system of the time and through those who were involved in litigation as lawyers, judges, jurors or litigants. It concludes that the way in which contract law developed was complex. Legal change was often uneven and slow, and some of the apparent changes had deep roots in the past. Clashes between conservative and more reformist tendencies were not uncommon.

Here’s the TOC:

1. Introduction
2. The legal system and the law of contract
3. Lawyers and merchants
4. Lawyers and merchants II
5. Equity and the common law
6. Lord Mansfield and his successors
7. Equity and the regulation of unfairness in contracting: the usury laws – a case study
8. The classical model of contract: the product of a revolution in legal thought?
9. Classical contract law and its limits
10. Contract law, illegality and public policy
11. Contract law and statute law
12. Conclusion

New Release: Lee on the History of Academic Freedom at American Universities

New from Lexington Books: Academic Freedom at American Universities: Constitutional Rights, Professional Norms, and Contractual Duties (November 2014), by Phillip Lee (University of the District of Columbia David A. Clarke School of Law). A description from the press:

This book details the legal and historical development of institutional and professorial academic freedoms to better understand the relationship between these concepts. While some judges and scholars have focused on the divergence of these protections, this book articulates an aligned theory that brings both the professorial and institutional theories together. It argues that while constitutionally based academic freedom does its job in protecting both public and private universities from excessive state interference, or at the very least it asks the right questions, it is inadequate because it fails to protect many individual professors in the same way. This solution entails using contract law to fill in the gaps that constitutional law leaves open in regard to protecting individual professors.

Contract law is an effective alternative to constitutional law for three reasons. First, unlike constitutional law, it covers professors at both public and private universities. Second, it allows for the consideration of the custom and usage of the academic community as either express or implied contract terms in resolving disputes between universities and professors. Third, contract law enables courts to structure remedies that take into account the specific campus contexts that give rise to various disputes instead of crafting broad remedies that may ill fit certain campus environments.

The proposed reconceptualization of academic freedom merges constitutional protection for institutions and contractual protection for individual professors. This combined approach would provide a more comprehensive framework than is currently available under the predominantly constitutional paradigm of academic freedom.

A few blurbs:

Philip Lee makes a major and welcome contribution to the burgeoning literature on academic freedom through his current and cogent analysis of major court cases. He devotes special and justifiable attention to the singular role of the American Association of University Professors, which providentially observes its centennial this very year. The constitutional evolution of academic freedom which Lee traces through the past century also receives meticulous understanding in the broader context of higher education law and policy. Perhaps most notable is a concluding chapter which uniquely addresses contract (rather than constitutional) law as an alternative basis for protecting free expression on the university campus. -- Robert O'Neil

In Academic Freedom at American Universities Philip Lee skillfully details how conceptions of academic freedom in higher education have developed over time. Further, he proposes a stronger legal defense of academic freedom, based in contract law. This book is a must-read for anyone interested in legal, historical, and political issues around academic freedom in higher education. -- Natasha Kumar Warikoo

More information is available here.

Hat tip: Chronicle of Higher Education

Fleming on Unconscionability as the "Law of the Poor"

My new Georgetown Law colleague Anne Fleming has just posted The Rise and Fall of Unconscionability as the “Law of the Poor,” which appears in the Georgetown Law Journal 102 (2014).  Here is the abstract:

What happened to unconscionability? Here’s one version of the story: The doctrine of unconscionability experienced a brief resurgence in the mid-1960s at the hands of naive, left-liberal, activist judges, who used it to rewrite private consumer contracts according to their own sense of justice. These folks meant well, no doubt, much like present-day consumer protection crusaders who seek to ensure the “fairness” of financial products and services. But courts’ refusal to enforce terms they deemed "unconscionable” served only to increase the cost of doing business with low-income households. Judges ended up hurting the very people they were trying to help. In the face of incisive criticism, judicial enthusiasm for the doctrine of unconscionability quickly faded. A new consensus emerged in favor of legislation requiring better disclosure of consumer contract terms ex ante, rather than ex post judicial review.

This Article presents a different narrative, one that is informed by extensive research in previously untapped archival sources. In this story, the wise legislature does not overrule the misguided courts. On the contrary, it reveals that lawmakers laid the groundwork for the judicial revival of unconscionability, and then rewrote statutory rules to codify the ensuing court decisions. In the District of Columbia, home to the famous Williams v. Walker-Thomas Furniture Co. litigation, the legislature revived unconscionability through the enactment of the Uniform Commercial Code (U.C.C.), which reintroduced the once-archaic doctrine into the legal vernacular. Just as the U.C.C. drafters intended, unconscionability review allowed courts to do openly what they had been doing covertly for years — refuse to enforce harsh, one-sided bargains as written. In 1965, the D.C. Circuit seized the opportunity unconscionability offered to prevent the loss of a poor woman’s furniture. But the Williams litigation also did something more. It drew public attention to the controversy before the court and alerted D.C. lawmakers to a recurring problem in need of a legislative fix. In response, local leaders set to work drafting consumer credit reform legislation. Lawmakers eventually adopted a firm set of rules to govern “installment” sales contracts in the District of Columbia, including a ban on the objectionable contract term at issue in Williams.

In this narrative, judges and legislators did not advance competing regulatory visions. They agreed on the need for substantive limits on installment sales to poor borrowers. Moreover, contrary to what some scholars might predict, litigation did not divert scarce resources down a dead-end path. Rather, it catalyzed the process of legislative change, raising public consciousness of problems in the low-income marketplace and fueling the drive for substantive reforms on the local level.

Graham, "Strict Products Liability at 50: Four Histories"

Kyle Graham (Santa Clara University School of Law) has posted "Strict Products Liability at 50: Four Histories." Here's the abstract:

This article offers four different perspectives on the strict products-liability "revolution" that climaxed a half-century ago. One of these narratives relates the prevailing assessment of how this innovation coalesced and spread across the states. The three alternative histories introduced by this article both challenge and complement the standard account by viewing the shift toward strict products liability through "populist," "functionalist," and "contingent" lenses, respectively. The first of these narratives considers the contributions that plaintiffs and their counsel made toward this change in the law. The second focuses upon how certain types of once-common products cases forged a practical argument for strict products liability as a superior alternative to negligence. The third examines why tort law eclipsed warranty as the doctrinal forum for products-liability reform. This article concludes that these non-canonical accounts have been obscured due to patterns and biases that recur across descriptions of doctrinal development in tort law.

The full paper is available here.

New Release: Willkins, "Hollow Justice: A History of Indigenous Claims in the United States"

New from Yale University Press: Hollow Justice: A History of Indigenous Claims in the United States (2013), by David E. Wilkens (University of Minnesota). The Press describes the book as follows:

This book, the first of its kind, comprehensively explores Native American claims against the United States government over the past two centuries. Despite the federal government’s multiple attempts to redress indigenous claims, a close examination reveals that even when compensatory programs were instituted, Native peoples never attained a genuine sense of justice. David E. Wilkins addresses the important question of what one nation owes another when the balance of rights, resources, and responsibilities have been negotiated through treaties. How does the United States assure that guarantees made to tribal nations, whether through a century old treaty or a modern day compact, remain viable and lasting?

A few blurbs:

“There are a good number of books on the subject, but none provide the scope that this one does. . . . I can surely see this becoming the standard book to which people turn when wanting to know the story of Indian claims.”—Christian McMillen, author of Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory

“A highly readable and important study on the history of Native claims against the United States. . . . To my knowledge, this is the first sustained scholarly effort to link the acts of promise making and the consequences of promise-breaking between the US and the tribal nations with a close examination of the various institutional mechanisms developed over time to resolve those claims.“—N. Bruce Duthu, author of American Indians and the Law

A preview is available here.

Ross reviews Decock, "Theologians and Contract Law"

The JOTWELL Legal History Section has posted new material: Richard Ross reviews Wim Decock, Theologians and Contract Law: The Moral Transformation of the Ius Commune (ca. 1500-1650) (Leiden: Martinus Nijhoff, 2012). Here's the first paragraph of the review, titled "Bargaining with the Soul at Stake: Early Modern Catholic Scholastics and Contract Law":

Decock’s judicious and insightful book participates in the rediscovery of the theological foundations of modern Western law.  With great precision he uncovers the debt that our contract law owes to early modern Catholic scholastic theologians such as Domingo de Soto, Luis de Molina, Leonardus Lessius, and Francisco Suárez.  These writers treated contracts not only as devices for the exchange of property.  They understood that contracting involved moral choices that could advance or retard justice and the prospects for the salvation of one’s soul.  In order to clarify these ethical dilemmas for Catholic confessors and for laymen wrestling with their consciences, scholastic theologians commented upon the ordinances of their own communities and the Roman law used throughout late medieval Europe (the ius commune).  Their works influenced early modern canonists, civilians, and natural lawyers and, through them, left an important mark on modern European and American contract law.

Read on here.

John Montgomery Ward: The Lawyer Who Took on Baseball

Chicago-Kent College of Law is currently celebrating its 125th anniversary.  As part of the celebration, the school has published Then & Now: Stories of Law and Progress, a collection of essays by Chicago-Kent faculty members exploring what was happening in law and society around the time of the school's founding.  For my contribution, I explored a fascinating episode in late-nineteenth-century baseball history, which featured a famous ballplayer who also happened to be a lawyer.

As 1888 drew to a close, John Montgomery Ward stood atop the world of professional baseball.  The star shortstop had just led the New York Giants to the National League pennant, followed by a triumph over the St. Louis Browns of the rival American Association in what even then went by the inflated title of baseball’s “World Series.”  A dominating pitcher early in his career (he threw the second perfect game in major league history), an arm injury forced Ward to recreate himself as an infielder, where he became one of the best fielders and hitters of his era.  He was lauded in the press as a ballplayer with “few equals and no superiors,” and “by long odds the most popular player in the profession.”  These accomplishments would eventually earn Ward a place in the Baseball Hall of Fame.

Ward’s skills on the ball field were only a part of what made him such a remarkable figure.  Contemporaries and historians alike have struggled to describe him.  One adjective-happy biographer took the saturation approach: he was a “jug-eared, willowy, peach-fuzzed, overreaching punk” as well as “honorable, smart, and tenacious.”  More admired than liked seems to have been the consensus view of Ward contemporaries.  In a profession not known for intellectualism, he stood out.  Although Ward left school at the age of thirteen in order to pursue his baseball career, he eventually earned, in his spare time, degrees in political science and law from Columbia.  He was said to speak five languages.  A regular contributor to newspapers and periodicals, in 1888 he published Baseball: How to Become a Player, which he described as a “handbook of the game, a picture of the play as seen by a player.” 

Ward was also a pioneering labor leader. In 1885 he established America’s first sports union, the Brotherhood of Professional Base Ball Players.  Initially designed to help sick, injured, or hard-up ballplayers and promote professional standards, the Brotherhood quickly evolved into something approaching a craft union for ballplayers.  Ward had forward-looking attitudes on race as well.  At a time when the color line was hardening in American society, and organized baseball had become a whites-only affair, Ward urged the Giants to sign an African American pitcher.

Decock's "Theologians and Contract Law"

Just out from Brill is Theologians and Contract Law: The Moral Transformation of the Ius Commune (ca. 1500-1650), by Wim Decock, Max-Planck-Institute for Legal History, Frankfurt.  Here is the publisher’s description:

The Roman legal tradition is the ancestor of modern contract law but there is no agreement as to how and when a general law of contract emerged. Wim Decock’s thesis is that an important step in this evolution was taken by theologians in the sixteenth and seventeenth centuries. They transformed the Roman legal tradition (ius commune) by insisting on the moral foundations of contract law. Theologians emphasized that the enforceability of contracts is based on voluntary consent and that a contract should not enrich one party at another's expense. While their main concern was the salvation of souls, theologians played a key role in the development of a systematic contract law in which the founding principles were freedom and fairness.

Decock on the Corporation in 16th-Century Canon Law

Wim Decock, Katholieke Universiteit Leuven Faculty of Canon Law, has posted In Defense of Commercial Capitalism: Lessius, Partnerships and the Contractus Trinus, which is also slated to appear in a work tenatively entitled History of Companies and Company Law in the Early Modern Period, ed. B. Van Hofstraeten & W. Decock (Brussel: Royal Academy Press, 2013).  Here is the abstract:    

In telling the history of commercial law and capitalism, traditional scholarship has often neglected the abundant literature on commerce and contracts written by Catholic theologians in the sixteenth and seventeenth centuries. To shed light on this ‘hidden story’ in the history of commercial law and capitalism, this paper will explore the attitude of one such theologian, Leonard Lessius (1554-1623) from Antwerp, toward the emerging world of capitalism.The more specific focus of attention will be on Lessius’ analysis of a sophisticated commercial technique used to circumvent the usury prohibition: the so-called ‘triple contract’ (contractus trinus). By means of a triple contract, which could be analyzed as a combination of a partnership, an insurance and a sale contract, capitalists safely invested their money in commercial enterprises at a fixed annual profit rate. While many jurists, theologians and legislators opposed this type of contract, since it resembled an implicit and usurious money-loan, Lessius eagerly defended sophisticated legal constructions such as the triple contract. His remarkable cost-benefit analysis of the triple contract developed into a startling defense of commercial capitalism in the literal sense of the word: the investment of capital in commercial activities for the sake of making profit. On the basis of moral, legal and economic policy arguments, Lessius promoted the investment of private wealth in safe commercial credit contracts rather than prohibit this widespread practice. The conclusion of this paper is that, although capitalism may not have emerged from the mind of any theologian at all – whether Protestant or Catholic – the legitimation of capitalism was assured by Catholic theologians such as Lessius.