[We have the following announcement. DRE. H/t: DS]
[The main body of Llewellyn's papers are at the University of Chicago, but this is an impressive collection, particularly for as a comprehensive bibliography of Llewellyn's writings, published and unpublished.]
Stephen James Bogle, University of Glasgow School of Law, has posted James Dalrymple, Viscount Stair, 1619-1695: a pioneer of law and commerce?
James Dalrymple, Viscount Stair (1619-1695), is rarely associated with commercial law, yet this connection is both justified and valuable. While he does not explicitly use the term 'commercial law' or structure his writings around commercial transactions, his Institutions of the Law of Scotland, drafted between 1659 and 1661 and first published in 1681, offers an innovative theory of law and commerce. This nuanced outlook merits closer examination. Arguably, this perspective on Stair has largely been overlooked, perhaps due to the way in which the Institutions is presented as a comprehensive account of Scots customary law. However, as argued in the conclusion, to neglect the commerciality of Stair is to the detriment of our historiography of commercial law. Recognizing Stair as not only a lawyer but also a thinker on commerce highlights the significance of legal treatises to broader historical narratives. Moreover, today, there are efforts to rebuild connections between the fields of political economy and law, seeking to understand how economics and politics shapes legal thinking, and vice versa. Such efforts, however, can be enriched, it is argued here, by considering, from a historical perspective, what might otherwise appear dogmatic works of commercial law scholarship. To do that, we first need to identify who might be worth examination.
James Dalrymple, Viscount Stair (NYPL)
As will be argued, Stair took the ideas he found in the natural jurisprudence of Hugo Grotius - and perhaps also, those relating to free trade on the high seas - and incorporated it into domestic legal writing about internal commercial activity. Stair’s transformation of Grotius's ideas on international law, trade, and human sociability into the domestic context has not always been appreciated. However, when framed in this manner Stair’s project represents an interesting contribution to the development of commercial law literature in the early modern period. To adequately contextualise Grotius and Stair requires a deeper examination of seventeenth century natural jurisprudence, which continued to inform legal, economic, and political ideas well into the eighteenth century. Thus, for example, Istvan Hont has shown that natural jurisprudence, including the work of eighteenth-century Scottish philosophers, provided a key bridge between legal and economic ideas, and the eventual development of national state policy. Of course, much of this is beyond the compass of this present enquiry, but it does nonetheless underscore the importance of taking commercial law scholarship seriously. Our first task, however, is to establish Stair as a notable example of commercial law scholarship, explain why, and then suggest avenues for future study.
--Dan Ernst
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
Just out from Bloomsbury: the anthology The Making of Consumer Law and Policy in Europe, edited by Hans-W Micklitz.
This book analyses the founding years of consumer law and consumer policy in Europe. It combines two dimensions: the making of national consumer law and the making of European consumer law, and how both are intertwined.
The chapters on Germany, Italy, the Nordic countries and the United Kingdom serve to explain the economic and the political background which led to different legal and policy approaches in the then old Member States from the 1960s onwards. The chapter on Poland adds a different layer, the one of a former socialist country with its own consumer law and how joining the EU affected consumer law at the national level. The making of European consumer law started in the 1970s rather cautiously, but gradually the European Commission took an ever stronger position in promoting not only European consumer law but also in supporting the building of the European Consumer Organisation (BEUC), the umbrella organisation of the national consumer bodies.
The book unites the early protagonists who were involved in the making of consumer law in Europe: Guido Alpa, Ludwig Krämer, Ewa Letowska, Hans-W Micklitz, Klaus Tonner, Iain Ramsay, and Thomas Wilhelmsson, supported by the younger generation Aneta Wiewiórowska Domagalska, Mateusz Grochowski, and Koen Docter, who reconstructs the history of BEUC. Niklas Olsen and Thomas Roethe analyse the construction of this policy field from a historical and sociological perspective.
This book offers a unique opportunity to understand a legal and political field, that of consumer law and policy, which plays a fundamental role in our contemporary societies.
--Dan Ernst
We continue our posting of announcements and awards from the just-concluded annual meeting of the American Society for Legal History with an article that received two prizes: Kalyani Ramnath’s “Intertwined Itineraries: Debt, Decolonization, and International Law in Post-World War II South Asia,” Law and History Review 38 (February 2020). It received the 2021 Jane Burbank Prize in Global Legal History with the following citation:
"Intertwined Itineraries" traces a routine case for debt recovery across jurisdictions in South Asia during the upheaval of decolonization and post war independence. In so doing, Ramnath weaves together histories of decolonization, legal pluralism, migration, jurisdiction, and professional legal networks in the making of international law. Beautifully written and well researched, Ramnath shows the reader how numerous and less well known partitions shaped the Indian subcontinent in 20th century South Asian political history.It also received the 2021 ASLH Surrency Prize:
Kalyani Ramnath’s “Intertwined Itineraries” charts a whole world of law in motion. From the courts of Madras to the rice and rubber fields of Southeast Asia, and from there to the law libraries of the Netherlands and India, she traces the travels of a single dispute and its afterlives across several genres of legal writing. She assembles a disparate cast of characters – a Tamil-Speaking Chettiar widow in Madras, a Polish scholar-in-exile, a Dutch scholar of international law in Utrecht – and threads her narrative needle through the most unlikely of places. The result is nothing less than a complete retelling of the histories of decolonization and international law in the Indian Ocean world, and of the many lost streams, disputes, and lives that poured into it. “Intertwined Itineraries” is an ambitious, bold, and breathtakingly creative piece of scholarship.–Dan Ernst
This chapter describes commercial litigation in 1802 threatening Panton Leslie’s trading post at Picolata, East Florida, and the firm’s very existence in the province. It explores and reveals the legal sophistication and institutional limits of local actors in a small northern outpost of the Spanish empire. The parties considered and argued about the proper interpretation of royal orders, governors’ edicts, official correspondence, and other documents that shaped the dispute. Concerning commercial legal culture, the issues debated in the pleadings centered on Panton Leslie’s compliance with its unique trade status as delineated in a series of royal orders and agreements. Despite their remoteness from imperial economic and commercial centers, the parties did not play fast and loose with the legal sources or arguments. The dispute reveals that the nature of commercial enterprise within empires was not simply one of economic benefit. Trading companies were woven into the political fabric of imperial administration. In this context, Sánchez argued that for Spain to coexists with native populations and eventually to have Indian populations join its polity, the foreign, English, trading house of Panton Leslie had to be removed as an intermediary between them. This extensive legal battle also has some explanatory benefit on the shift of Panton Leslie away from trade to debt collection and property management in the early years of the nineteenth century. William Panton died in 1801 and Bowles’s attacks against Panton Leslie had significantly disrupted its ability to trade profitably. This suit must be added to these causes of the firm’s shift from Indian trade to debt collection and land management. The case surely absorbed time and resources. It also created an atmosphere of uncertainty under which the firm would have to operate. Every shipment and every transaction after the case would be subject to the greatest and most jealous scrutiny by at least a portion of Saint Augustine’s population. Panton Leslie’s success was a hollow victory.--Dan Ernst
My favorite blurb from among the advance praise:Bourbon whiskey has made a surprising contribution to American legal history. Tracking the history of bourbon and bourbon law illuminates the development of the United States as a nation, from conquering the wild frontier to rugged individualism to fostering the entrepreneurial spirit to solidifying itself as a nation of laws. Bourbon is responsible for the growth and maturation of many substantive areas of the law, such as trademark, breach of contract, fraud, governmental regulation and taxation, and consumer protection. In Bourbon Justice Brian Haara delves into the legal history behind one of America’s most treasured spirits to uncover a past fraught with lawsuits whose outcome, surprisingly perhaps, helped define a nation.
Approaching the history of bourbon from a legal standpoint, Haara tells the history of America through the development of commercial laws that guided our nation from an often reckless laissez-faire mentality, through the growing pains of industrialization, and past the overcorrection of Prohibition. More than just true bourbon history, this is part of the American story.
"Bourbon Justice: How Whiskey Law Shaped America actually digs into the law cases behind Bourbon, and presents the information in a very enjoyable read. Who knew that reading about law cases could actually be interesting?"—New Bourbon DrinkerMore information is available here. You can hear Haara talk about the book here.
This Article presents a new frame of reference for thinking about the federal government’s complicity in supporting the domestic slave trade in the antebellum United States. While scholars have accounted for several methods of such support, they have failed to consider how federal bankruptcy legislation during the 1840s functionally created a system of direct financial grants to slave traders in the form of debt discharges. Relying on a variety of primary sources, including manuscript court records that have not been systematically analyzed by any published scholarship, this Article shows how the Bankruptcy Act of 1841 enabled severely indebted slave traders to reconstruct their financial lives and thus return to the business of enslaving black men, women, and children. Knowing this legal history gives us a richer understanding of the federalization of American slavery and its role in the development of the nation’s economy.
