Watson's "Making of the Modern Corporation"

Susan Watson, who is Dean of the Business School and holds joint chairs in the Faculty of Law and Faculty of Business and Economics, at the University of Auckland, New Zealand, has published The Making of the Modern Company (Bloomsbury 2022).

This book adopts a historical perspective to highlight, and bring back into focus, the key features of the modern company. A central argument in the book is that legal personhood attaching to an entity containing a corporate fund seeded by shareholders is a direct and inevitable consequence of limited liability and the company's status as a separate legal entity from its shareholders. Management by a board subject to legal duties to the company as an entity that can exist in perpetuity facilitates a long term perspective by the board that can accommodate both shareholder and stakeholder interests. These defining characteristics differentiate the modern company from other business forms.

The Making of the Modern Company applies a 21st-century lens to the corporation through its history to identify turning points in its development. It sets out how key features emerged in the course of two separate developmental cycles in English corporate law: first with the English East India Company in the 17th century, and then with general incorporation statutes in the 2nd half of the 19th century. The book's historical perspective highlights that the key features are part of the 'secret sauce' of modern companies. Each cycle coincided with unparalleled periods of economic success associated with corporate activity

This book will be of interest to corporate law and governance academics, theorists and practitioners, those who study the company from related disciplines, and anyone who questions why uncertainty still exists about the structure of a legal form that has been described as 'amongst mankind's greatest inventions'

Order online at www.bloomsbury.com  – use the code GLR T5TUK for UK orders and GLR T5TUS for US orders to get 20% off. TOC after the jump.

–Dan Ernst

Hannay on the Statute of Marlborough

Ashley Hannay, Lecturer in Property Law, University of Manchester, has posted the prepublication draft of his article "By fraud and collusion": Feudal Revenue and Enforcement of the Statute of Marlborough, 1267-1526, which appeared in the Journal of Legal History 42 (2021): 69:

Following the Statute of Marlborough, 1267, feoffments which were designed to deprive lords of wardship could in some circumstances be deemed "collusive" or "fraudulent."  This was further complicated from the mid fourteenth century onwards by the common practice of creating uses to circumvent the common law rules prohibiting the devise of land by last will. The effect of uses being created to perform last wills was that lords, in particular the king, were losing out on their feudal incidents. The current view, put forward by legal historians, is that the crown struggled to enforce the Statute of Marlborough after 1410, and that the ‘campaign’ against this loss of feudal revenue began in the 1520s. This paper seeks to re-examine this view, particularly in relation to how Marlborough and collusion were understood and the crown’s approach to the avoidance of feudal incidents in the reign of King Henry VII.

--Dan Ernst

Brewer on Creating a Common Law of Slavery

Holly Brewer, University of Maryland, will present “Creating a Common Law of Slavery for England and its New World Empire” in the Washington Early American Seminar on Zoom at 4:00 EST on Friday, December 10.

--Dan Ernst

Weekend Roundup

• Congratulations to Annette Gordon-Reed on her receipt of Mass Humanities’s Governor’s Award in the Humanities!  (HLT)
  

• UC Irvine’s notice of Elizabeth Allen’s Uncertain Refuge: Sanctuary in the Literature of Medieval England (University of Pennsylvania Press, 2021).
  

• It’s only an abstract, but it’s an interesting one: Marginal Citizens: Interracial Intimacies and the Incarceration of Japanese Canadians, 1942–1949, forthcoming in the Canadian Journal of Law and Society by Mary Anne Vallianatos, Dalhousie University Schulich School of Law.
  

• ICYMI: The "Groveland Four" were wrongly accused in 1949, prosecutor says in motion to clear their names (ABAJ).  Lawsuit Against Harvard May Decide Who Owns Images of Enslaved People, by Valentina Di Liscia (Hyperallergic).  The Hastings College of the Law naming controversy (ABAJ).  Name the Marble Palace after the first Justice John Marshall Harlan?  (Politico).  Daniel Farber on the Four Myths of Presidential Power (HNN).
  

  Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Sugarman on Robert Stevens

[David Sugarman, Professor Emeritus at the Law School, Lancaster University, Senior Associate Research Fellow at the Institute of Advanced Legal Studies, University of London, and Senior Associate, Centre for Socio-Legal Studies, University of Oxford, has published the following appreciation of Robert B. Stevens in Socio-Legal Newsletter no. 94 (Summer 2021), published by the Socio-Legal Studies Association.]

Robert Bocking Stevens 1933-2021: A Personal Appreciation of a Pioneering Socio-Legal Scholar

David Sugarman

Ground-breaking, irreverent, critical, innovative, thoroughly researched, iconoclastic, inspirational, entertaining and highly readable. Robert Stevens' scholarship was all these things and, as I hope to demonstrate, much more.  

His work includes probably the first three books in England co-authored by a lawyer and a social scientist: The Restrictive Practices Court (RPC) (Stevens and Yamey, 1965) written with Basil Yamey, an economist with whom he co-taught the first ever course in England on Restrictive Trade Practices, Lawyers and the Courts: A Sociological Study of the English Legal System, 1750-1965 (LATC) (Abel-Smith and Stevens, 1967), and In Search of Justice: Society and the Legal System (ISJ) (Abel-Smith and Stevens, 1968), both written with Brian Abel-Smith, a sociologist.  Inter-disciplinarity was allied to advocacy of a socio-legal perspective, a sustained critique of hallowed legal institutions and argument for fundamental reform driven by a concern for justice and the public interest.

These publications were notable in focussing on how lawyers, courts, legal aid and legal education operated in practice and in their deployment of social science evidence.  Robert made extensive use of material buried in the National Archives and statistics. He called attention to the lack of systematic information on the operation of the legal system and the need for better and more up-to-date data. Uniquely for the time, LATC and ISJ drew on over four hundred interviews with judges, lawyers and academics.  Robert's writing was underpinned by a strong sense that the contemporary legal system and contemporary issues needed to be understood in their historical context.  His work was also enriched by a comparative perspective that whilst rarely central, considered England and America through each other's eyes.  

RPC critiqued parliament's failure to be sufficiently clear about the goals of its new law on monopoly and competition and the judiciary's preoccupation with masking the unavoidably discretionary and creative aspects of their work. LATC was the first major critical social history of the English legal system from the Industrial Revolution to modern times and remains a leading work in the field. It argued that whilst modest, ad hoc reforms had been slowly introduced, fundamental reforms necessary for the proper operation of a modern legal system had been held back largely by the weighty representation of lawyers in parliament, respect for the judges, the overly-narrow role and aspirations of academic law and legal scholarship and in particular the self-interested protectionism of the legal profession. ISJ follows on from LATC, analysing the contemporary world of the law and legal administration. It argued that patchwork reform is not enough and proposed a wholesale reconstruction of the legal system.

RPC, LATC and ISJ pre-dated the world of legal education and scholarship in England as we know it today. There were no new or 'alternative' university law schools, no British journals exclusively devoted to law and society, no Socio-Legal Studies Association, and no tradition of empirical legal research. In this context, Robert's achievement seems even more remarkable.

Of his several other books and over 50 articles that he authored, probably the most important for socio-legal scholars are those on the judges, the House of Lords and politics, and legal education. In a series of penetrating books and essays (notably, Stevens 1979, 1993, 2002) he argued that the concept of 'judicial independence' had become a mystique that unduly insulated the judiciary from criticism and reform, inhibiting much-needed discussion about accountability, transparency and what he regarded as the inevitable interplay between the judiciary and politics. It was in this context that he examined the changing role of the judiciary over the second half of the twentieth century, encouraging judges to be more open about their activities.  Assessing this body of work, Alan Paterson described Robert as 'the doyen of judicial commentators'.  

Robert's history of American legal education (Stevens, 1983) used legal education as a window on the legal system and society. It celebrated the social mobility offered by law schools but worried that mass education might compromise quality and the organisational replication of the Harvard model threatened institutional and educational diversity.

In 1994 I interviewed Robert as part of a project on the history of modern English legal education and scholarship, and his interview threw valuable light on his life and work (Sugarman 2009). He told me how his grandmother made him learn and recite the Chartists 'People's Charter' of 1838; how he 'grew up in a family without any books' where 'money was always a problem'. His passion for history was kindled by his history teacher at Oakham School, and he found his legal studies at Oxford 'dull and uninteresting after Oakham.' He enjoyed legal practice in America and in England, but keenly felt the lack of money and connections necessary to make it at the Bar. Yale's LL.M. programme (1957-58), where he graduated top of the class, and teaching at University College Dar es Salaam, fired his interest in writing about law socio-legally.  It was at Dar that he first met William Twining, with whom he conjured up a series of 'counter-textbooks' - the Law in Context series- to subvert and transform the prevailing orthodoxy in English legal education.  And it was at Dar that he first met and 'fell very much under [the] influence' of Richard Titmuss and Brian Abel-Smith, both pioneering British social policy researchers and advisors and chroniclers of and campaigners against social injustice.

While the importance of LATC and ISJ was immediately recognised, they were also (as Robert recalled) 'bitterly attacked'.  Apparently, the Bar Council's decision to withdraw support for a study to have been conducted by Abel-Smith on the social background of the Bar related to the publication of LATC.  

Why so much hostility? Almost everything about LATC and ISJ was alien to the world of law books: their subject matter, orientation, the focus on the economic and financial dimensions of the legal system, on cost-effectiveness and public interest; their avowedly sociological orientation; their irreverent style; being written for the general public as well as academics, lawyers and judges; and the fact that Abel-Smith was both a sociologist and closely associated with the Labour Party. The notion of law as a social science, and the importance of the social sciences, was extremely controversial at the time.  Robert claimed that he was told that 'he'd never get an academic job in England'.  Perhaps this at least partly explains why his subsequent work was less polemical, while still challenging the status quo.  During his Mastership of Pembroke College, Oxford, he sparked controversy when he told the students that Oxford was 'bourgeois', and chided 'middle-class parents', who had 'become accustomed to a free university education'.

Robert was celebrated for his loud ties and throaty chuckle.  He led a rich and amazing life that included being a full-time Professor of Law at Yale (1959-76), an Honorary Fellow at Oxford's Centre for Socio-Legal Studies, a prominent university administrator, and a legal practitioner in England and the US.  That he was also a highly productive and seminal legal scholar is remarkable.  His work was vital to the broadening of English Legal System and Legal History; and along with that of Zander and others, he played a crucial role in opening up the administration of justice to public scrutiny and helped to lay the foundations for the reforms in professional ethics and organisation which took place over the subsequent decades.  

References

Abel-Smith, B. & Stevens, R. 1967. Lawyers and the Courts: A Sociological Study of the English Legal System, 1750-1965 (LATC), Heinemann; 1968. In Search of Justice: Society and the Legal System (ISJ), Allen Lane.

Stevens, R. 1979. Law and Politics: The House of Lords as a Judicial Body, 1800-1976, Weidenfeld and Nicholson; 1987. Law School: Legal Education in America from the 1850s to the 1980s, University of North Carolina Press; 1993. The Independence of the Judiciary, Oxford University Press; 2002. The English Judges: Their Role in the Changing Constitution, Hart.    

Stevens, R. B. & Yamey, B. S. 1965. The Restrictive Practices Court (RPC).

Sugarman, D. 2009.  Beyond Ignorance and Complacency: Robert Stevens' Journey through Lawyers and the Courts, International Journal of the Legal Profession 16:1 pp. 7-32.

Eves on Mort D’Ancestor and Collusive Conveyances

Collusive Litigation in the Early Years of the English Common Law: The Use of Mort D’Ancestor for Conveyancing Purposes c. 1198–1230 by William Eves, University of St. Andrews, currently is open access in the Journal of Legal History:

The extent to which real actions such as mort d’ancestor were used collusively for conveyancing purposes in the early years of the English common law is subject to debate. This article first discusses why parties to a transfer of land might engage in collusive litigation, before surveying the existing literature on the question of how collusive suits can be identified, and the suggestions which have been made as to the prevalence of collusive litigation in the late-twelfth and early-thirteenth centuries. It then discusses a method which may be used to provide a more precise answer to this question, and employs this method to uncover the extent to which mort d’ancestor could have been used collusively in the period c.1198–1230. It concludes with a suggestion that this method could be used in relation to other early common law actions to further our understanding of litigation and conveyancing in the period.

--Dan Ernst

Lino on Dicey, the Rule of Law and Imperialism

Dylan Lino, University of Western Australia Law School, has posted The Rule of Law and the Rule of Empire: A.V. Dicey in Imperial Context, which was published in the Modern Law Review 81 (2018): 739-64

The idea of the rule of law, more ubiquitous globally today than ever before, owes a lasting debt to the work of Victorian legal theorist A.V. Dicey. But for all of Dicey’s influence, very little attention has been paid to the imperial entanglements of his thought, including on the rule of law. This article seeks to bring the imperial dimensions of Dicey’s thinking about the rule of law into view. On Dicey’s account, the rule of law represented a distinctive English civilisational achievement, one that furnished a liberal justification for British imperialism. And yet Dicey was forced to acknowledge that imperial rule at times required arbitrariness and formal inequality at odds with the rule of law. At a moment when the rule of law has once more come to license all sorts of transnational interventions by globally powerful political actors, Dicey’s preoccupations and ambivalences are in many ways our own.

—Dan Ernst

Valeria on "The Puerto Rico Legal Project and Civil Rights Litigation in America’s Colony"

Earlier this year, the Yale Law Journal published a student note that may be of interest: Valeria M. Pelet de Toro, "Beyond the Critique of Rights: The Puerto Rico Legal Project and Civil Rights Litigation in America’s Colony." Here's the abstract:

Long skeptical of the ability of rights to advance oppressed groups’ political goals, Critical Legal Studies (CLS) scholars might consider a U.S. territory like Puerto Rico and ask, “What good are rights when you live in a colony?” In this Note, I will argue that CLS’s critique of rights, though compelling in the abstract, falters in the political and historical context of Puerto Rico. Although it may appear that rights have failed Puerto Ricans, rights talk has historically provided a framework for effective organizing and community action. Building on the work of Critical Race Theory and LatCrit scholars, this Note counters the CLS intuition that rights talk lacks value by focusing on the origins and development of the Puerto Rico Legal Project, an understudied but critical force for community development and legal advocacy on the island that was founded in response to severe political repression during the late 1970s and early 1980s. This Note draws on original interviews with Puerto Rican and U.S. lawyers and community activists to reveal fissures in the critique of rights and to propose certain revisions to the theory. By concentrating on the entitlements that rights are thought to provide, CLS’s critique of rights ignores the power of rights discourse to organize marginalized communities. The critique of rights also overlooks the value of the collective efforts that go into articulating a particular community’s aspirations through rights talk, efforts which can be empowering and help spur further political action. By analyzing twentieth-century Puerto Rican legal and political history and the Puerto Rico Legal Project, I demonstrate the value (and limits) of rights in a colonized nation.

Read on here.

-- Karen Tani

On Turner’s Westward March from a Different Perspective

Frederick Turner’s description of U.S. territorial expansion as a march to no man’s land (the so-called Turner frontier thesis) has been questioned and to a large degree discredited in recent decades. Among other things, historians have pointed out to the obvious: the land was never empty and most actors were aware of the presence of native peoples (and of other colonial subjects) whom they sought to dispossess. 

Having studied the territorial expansion of Spain and Portugal in both Europe and the Americas, I cannot but agree.[i] Yet, dismissing Turner altogether is like throwing the baby out with the bathwater. As happened with the Tannenbaum Thesis (that compared slavery and race in South and North America), once completely discarded and now undergoing at least a partial rehabilitation, it is perhaps time we recalibrated our visions regarding how European actors (and their American descendants) sought to justify their activities. 

The experience of Spain and Portugal can be useful in this regard. Although the Spanish and the Portuguese signed bilateral treaties and invoked rights by discovery, conquest, and, on occasions, papal bulls, they mostly based their claims on occupation. They disagreed about what occupation was, and they certainly conflicted over who had it, but they referenced a common framework according to which those who used the land “appropriately” would acquire rights to it. This vision permeated both what they did and what they said in both Europe and the Americas, vis-à-vis members of their own group as well as vis-à-vis outsiders, both natives and other colonial powers. 

The linking of land rights to possession was of course anchored in European legal traditions. By the early modern period, these traditions instructed that, to obtain rights, one had to occupy the land for an extended period without suffering opposition. Most actors who invoked these ideas were not jurists and many among them were illiterate peasants living in remote communities that their contemporaries classified as uncivil. Yet, these individuals were convinced that if they acted on the territory, if they opposed the pretensions of their rivals (the best opposition being the most vocal and most violent because it best manifested their disaccord), they would acquire rights.  

Contemporary actors never explained where this understanding came from and they were rarely cognizant that their discussions replicated erudite legal doctrines. Instead, they usually affirmed that this was the way things were, everywhere, always. They described having watched their parents and friends do the same or having heard stories about what happened when they did not. Faced with this reality, I constantly asked myself: did these ideas originate in customs that were then formalized by jurists (as many of us now view the contribution of ius commune jurists to European legal development), or did jurists succeed in disseminating their doctrines to the point that they permeated debates among contemporaries, even the most illiterate and the most peripherical? If they did, what instruments did they use? Who and what contributed to their success? 

While contemporary documentation gave no answers, it nevertheless made clear that actors were aware of the existence of native peoples (and other colonists) and were cognizant of their entitlements. Nevertheless, almost none of them considered that this presence should hinder their penetration and occupation.  Some justified penetration and occupation by the duty to convert or civilize but most based it on discrediting the use natives (or other colonists) made of the land, arguing that it was inappropriate and therefore bestowed no rights. In this respect, Turner was right. From the perspective of contemporary actors, the land was empty, if not of people, at least of rights. However, Turner was wrong because he failed to appreciate the degree by which debates on land were entangled in debates about people. Contemporaries knew that the best way to take possession of the land was either to discredit its inhabitants or by taking possession of them. Conversion was one common way to take possession of people (conversion being considered to have both religious and civic consequences), but alliance making, and conquest was another. Imagining natives, not territory, as the true no-man’s land, in Spain and Portugal, at least, actors suggested that before Europeans arrived and natives were subjected to them, natives belonged to no one and any European could take possession of them as a “vacant” property. Yet, these Spanish and Portuguese also asserted that after natives were “taken,” indeed possessed, they were occupied and could not be legitimately “taken over” by another group. 

Because at stake was not only occupying land, but also (perhaps mainly) occupying people, Spanish and Portuguese presence in the Americas was much more unstable, tentative, and provisional than most colonial historians tend to describe. Ambiguity and chaos were more typical than certainty and clarity. The outcome was not the construction of an uninterrupted colonial territory, but instead the emergence of a fragmented space that constantly changed shapes alongside a struggle over the use of land, which was never detached from the struggle to control people.  

---

[i] Tamar Herzog. Frontiers of Possession: Spain and Portugal in Europe and the Americas. Cambridge MA: Harvard University Press, 2015 (also available as Fronteras de posesión: España y Portugal en Europa y las Américas. Madrid: Fondo de Cultura Económica, 2018; Fronteiras da Posse. Portugal e Espanha na Europa e na América. Lisbon, Imprensa de Ciências Sociais, 2018 ; a Brazilian translation is forthcoming).