Thomas on Constructive Trusts to 1827

Rod Thomas, Auckland University of Technology Faculty of Business & Law, has posted Constructive Trusts up to Lord Eldon - A Consent Issue:

This paper looks at the development of constructive trust liability up to the retirement of Lord Eldon in 1827. It suggests liability over this period was imposed to enforce performance of expectations in a way not possible under an executed model of contractual liability. With advent of the Industrial Revolution such grounds became difficulty to justify. Performance of promises became enforceable under an executory contract model of liability, causing us to think the grounds for imposition of liability over this earlier time lack a coherent framework.

This approach invites us to reconsider the basis for liability being imposed in Keech v Sandford and the bribes cases. Also whether remedial constructive trusts are indeed “unprincipled, incoherent and impractical,” as recently suggested by Lord Neuberger. In terms of the presented argument, constructive trust liability up to the tenure of Lord Eldon was imposed on remedial grounds.

"Equity at its flabby worst"!

Reid on Testamentary Freedom and Family Protection in Scotland

Kenneth Reid, University of Edinburgh School of Law, has posted Testamentary Freedom and Family Protection in Scotland:

In a sense, testators in Scotland are free to do as they please, for a will is not challengeable on the ground of having failed to provide for children, or a spouse, or some other relative. Yet, regardless of what a will says or does not say, a child or spouse of the deceased is entitled to a fixed share of the deceased’s estate. Since 1964 this has been confined to the deceased’s movable estate and there is no claim in respect of immovable property. Where a deceased is survived by both spouse and children, the movable estate is divided into three – one-third for the spouse, one-third to be shared among the children, and one-third to be disposed of in accordance with the will. Where only a spouse, or only children, survive, the division is into two equal parts and not three. These ‘legal rights’ of the children and surviving spouse are personal rights against the executor of the deceased and are satisfied by payment in money.

This paper considers the history of legal rights in Scotland, their scope and calculation, the rules on discharge, the requirement to collate lifetime advances, and the requirement to choose between legal rights and an express bequest in the will.

Legal rights are of medieval origin, and have survived various attempts to change them. In recent years, the position of children has been seen as especially controversial. On one view, children should have merely a maintenance claim from the deceased’s estate, in cases of proved need. On another view, a child’s position in the family should continue to be recognised by means of a fixed share in their late parent’s estate. In the absence of consensus on this issue, the Scottish Government has recently rejected a package of reforms proposed by the Scottish Law Commission. Uncertain as to what the future should hold, Scotland has chosen to stick with rules developed, unthinkingly, in the distant past.

Bonfield on British Statutory Reform of Heirship and Wills

Lloyd Bonfield, New York Law School, has posted two papers.  The first is Farewell Downton Abbey, Adieu Primogeniture and Entail: Britain's Brief Encounter with Forced Heirship:

This article observes a little-noted proposal (the Landed Property of Intestates Bill) introduced into the British Parliament in 1836. It considers the debate upon it that ensued, and the accompanying pamphlet literature. The Bill proposed to alter the inheritance custom of primogeniture that directed the pattern of descent of freehold land in the absence of directions by settlement or will, and the dialogue is used as a lens to view the nexus between inheritance customs and broader political, economic and social concerns. The intensity of the dispute over primogeniture suggests that more was at stake than simply the devolution of land. The controversy in the Commons over the proposed legislation encompassed a discussion on the variety of purposes that succession law should serve. Lurking in the background in the debate over the proposed bill was a more abstract conundrum: should succession laws primarily be crafted to serve political ends, the constitution; or was it more appropriate to calibrate them to foster desirable social, economic or familial goals? In short, the debate put into sharp focus the question of what interests drive inheritance law, and how attempts can be made to modify it, if and when such concerns alter over time. The bill failed, and it would be for another century for Parliament to abolish primogeniture.

The second is Reforming the Law of Will Execution: The Real Property Commissioners’ Reports:

The paper is an introductory chapter of a book length study on the Wills Act of 1837. It focuses on the discussion of wills in the First Report made to by the Commissioners appointed to inquire into the Law of England respecting Real Property (1829) and the Fourth Report made to His Majesty by the Commissioners appointed to inquire into the Law of England respecting Real Property (1833). The Report demonstrates wide-spread disquiet over the substantive law of wills and significant dissatisfaction with the process of probate. But the enquiry also looks to other issues on inheritance, the exercise of ‘illusory appointments’ and the problem of proof of death, areas which have hither to been ignored by historians.

Fernandez on Winston, "Lawyers at Play"

Over at JOTWELL's Legal History Section, Angela Fernandez (University of Toronto Law) has posted an admiring review of Lawyers at Play: Literature, Law, and Politics at the Early Modern Inns of Court, 1558-1581 (Oxford University Press, 2016), by Jessica Winston (Idaho State University). Here's a taste:

Winston’s book argues that the interconnections among literature, law, and politics at the Inns of Court are best explained by the increase in law-related positions in the growing administrative state in early modern England and the connection contemporaries made between literary skills and fitness for these jobs. Lawyers at Play elegantly traces the way that a group of individual men at the Inns in the 1550s and 1560s used the skills they learned at grammar school in poetry-writing and in translating plays and other works to recommend themselves for those new positions. Rather than focusing on the literary stars of the Inns from the 1590s and 1600s such as William Shakespeare, Winston shifts the focus to an earlier time period. These relatively unknown individuals, unknown at least to those who are not literary scholars of Renaissance England, set the stage, as it were.

Read on here.

Weekend Roundup

• Over at JOTWELL's Property section, Shelley Ross Saxer (Pepperdine Law) has posted an admiring review of University of Virginia legal historian Maureen Brady's forthcoming article on "Damagings Clauses."

• Also in JOTWELL, from the Intellectual Property section, Mark McKenna (University of Notre Dame) praises "The Article of Manufacture in 1877," by Sarah Burstein (University of Oklahoma).  The article appeared in Volume 32 of the Berkeley Technology Law Journal (2017).

• Martha S. Jones, Johns Hopkins University, will deliver the keynote speaker at the Spring 2018 Commencement Ceremonies at the University of Michigan-Flint. 

• “So you want to synthesize filmmaking with legal history? Davidson has a course for that": John Wertheimer’s "Filming Southern Legal History" seminar.  More.

• Starting on April 16, Laney College in Oakland, CA, will host Herstory: The Legal History of Chinese American Women.  Drawn from the personal collection of Dr. Chiu Chang, the exhibit “features rare photographs and case descriptions of efforts by Chinese-American women to gain legal standing in the U.S.”

• ICYMI, last week the California Law Review hosted a symposium on Amanda Tyler's Habeas Corpus in Wartime (Oxford University Press).  

• Timothy Snyder's revelatory essay on Ivan Ilyin and his influence on Putin's Russia.  Chilling reading, after reports of Stephen Bannon's advice to the White House on executive privilege.

• From Krista Kesselring at the Legal History Miscellany blog: "Star Chamber Stories: Using Criminal Law to Criminal Ends in Early Modern London."

•  Our friends at the Max Plank Institute for European Legal History have announced Legal Journals of the 19th Century (Juristische Zeitschriften des 19. Jahrhunderts).  It provides “online access to a vast collection of legal journals . . .   Seventy-five journals were selected, compiled in uninterrupted series, supplemented with structural and meta-data, and published.”  More.

• At the Indian Constitutional Law and Philosophy blog: a recent online roundtable discussion of Ornit Shani's book, How India Became Democratic (announced on the blog here), featuring essays by Suhrith Parthasarathy, Anupama Roy, and blog host Gautam Bhatia, along with a response from the author.

• Today is the early registration deadline for the 2018 Policy History Conference. 

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

Alexander on a Landmark Copyright Decision in Georgian England

James R. Alexander, University of Pittsburgh at Johnstown, has posted Libel and Copyright in the Satire of Peter Pindar:

In 1802, the English Chancery Court denied the satirical poet John Wolcot (‘Peter Pindar’) injunctive relief for copyright infringement claimed against his publisher John Walker. While the original agreement between the parties was ambiguous, the ruling was more procedural rather than interpretive. As Wolcot’s verse was always scandalous and arguably libelous, Eldon ruled that Wolcot should first establish his property in the contested works at law before seeking equitable relief, to thereby clear away any question of their criminality. This was arguably the first application to copyright of an eighteenth-century maxim that there could be no property in criminally-libelous literary works. Almost immediately and for over the next century in equity cases and both English and American legal treatises, Eldon’s ruling was interpreted as establishing the Court as censor morum, authorized under common law to rule exceptions to copyright protection based on a determination of illicit or illegal content, regardless of whether copyright statutes specified content-based exceptions. However, a careful review of the Chancery records reveals the ruling warrants a more tempered reading, and that the long-assumed legal precedent may have followed a hoped-for rather than established principle.

Carney on the Background of Modern American Business Law

William J. Carney, Emory University School of Law, has posted The Background of Modern American Business Law, which is to appear in The Journal Jurisprudence 2017: 93:

This is an attempt to introduce lawyers trained in the civil law tradition about the unique features of the common law and equity traditions that influence American business entity law. The approach is historical, and traces the development of equitable ownership and equitable duties to the 14th century. It also introduces the uniquely English notion of the Internal Affairs Rule as the source of jurisdictional competition and innovation in the American system. It then proceeds with a more conventional discussion of the operation of American laws governing business entities.

Watson on the Duty to Account

In 2016, James Watson, Banco Chambers, published The Duty to Account: Development and Principles with Irwin Law. The book examines the history of the duty of a trustee to account to beneficiaries for his or her administration of a trust. From the publisher:

This book investigates the history of the modern doctrine of account, and by that history, seeks to identify some of the principles and premises which help explain the application of, and which underlie, the action today. The common law account, and its successor in equity, is over 800 years old. There does not appear to have been any work devoted to an examination of that history published in that time. The focus on the book is on the question 'who is an accountable party'? The area of law focused on is common law and equitable remedies, namely, the account (including the subsidiary principle, the 'account of profits').

You can have a look at the detailed TOC here. 

Further information is available here.