AJLH 59:4

American Journal of Legal History 59:4 (December 2019) is now available online:

A Counter-Culture of Law: Jurisprudential Change and the Intellectual Origins of the Critical Legal Studies Movement, by Juhana Salojärvi

Railway Sparks: Technological Development and the Common Law, by Mark L Wilde

Machinations of the British Medical Association: Excluding Refugee Doctors from Queensland’s Medical Profession, 1937–1942, by Gabrielle Wolf

Book Review

David Harbecke, Modernisation Through Process. The Rise of the Court of Chancery in the European Perspective, reviewed by Lorenzo Maniscalco

--Dan Ernst

Smith on Equity

Lionel Smith, McGill University, Faculty of Law, has posted Equity is Not a Single Thing, which is forthcoming from the Oxford University Press in Philosophical Foundations of the Law of Equity, ed. D. Klimchuk, I. Samet, and H. E. Smith:

In this paper, I ask what are the philosophical foundations of Equity as it was defined by Frederic Maitland: the body of rules and principles that were developed over the centuries by the Court of Chancery. My answer is that there is no single purpose, approach, philosophy or norm that characterizes Equity so defined. What is characteristic about Equity is a unique manner comprehending the juridical nature of some obligations, which grew out of Equity’s regulation of uses and trusts. This approach reveals three dimensions. First, Equity requires that one who owes such an obligation perform it, if necessary by substitution; there is no option of breaching and paying compensation for loss caused. Secondly, these obligations are understood by Equity in a manner that has the effect of depersonalizing the burden of these obligations. In the civil law tradition and in the common law (in the narrow sense that excludes Equity), an obligation is a bilateral relationship. Equity’s unique philosophy in relation to some obligations turned them into something like property rights and created the office of trusteeship. Finally, Equity understood some obligations not as freestanding particles but as elements of a particular kind of relationship, and this relationship is capable of itself generating new primary obligations. All these elements taken together facilitated the creation of an enduring conceptual toolkit for the juridical apprehension of relationships in which one person acts for and on behalf of another.

Dan Ernst

Turner on Equity in Common-Law Systems after Fusion

P. G. Turner, University of Cambridge Faculty of Law, has posted Fusion and Theories of Equity in Common Law Systems:

The fusion of law and equity in common law systems was a crucial moment in the development of modern Anglo-American law, with implications for the procedural, substantive and remedial aspects of law. This paper will introduce a volume of essays in which scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed light on the ways in which law and equity have fused, and the ways in which they have remained distinct even in a ‘post-fusion’ world.

The central concern of this paper lies in two facts. The first is that the presence of equity in common law systems poses fundamental questions. What is the place of equity in a modern common law system? Is the purpose of equity, as a distinct ingredient of common law systems, spent? Should equity be distributed through the law? If equity should be a distinct ingredient of common law systems, in what form? The second is that fusion (or merger or union) has become the means by which lawyers address those basic questions.

Helpful answers to these basal questions have become more remote as theories of equity have become constrained by the terms in which fusion is discussed. How can the situation be improved? This chapter suggests that a newly widened perspective is needed. The constitutional place that has been assigned to equity in common law systems must be acknowledged and accommodated. And any modern theory of equity must be composite rather than simple or unitary. Also important to appreciate is the practical significance of how fusion is discussed, and how equity theories are formed, in the thinking of lawyers and the work of the courts. To illustrate that practical point, illustrations are given of the accidental fusion of law and equity through the unthinking assimilation of modern equitable claims to the common law forms of action finally abolished in England in 1875.

Johnson and Oldham on Lord Eldon on Law and Equity

Thanks to an alert from the Oxford University Press, we’ve learned of the on-line publication in the American Journal of Legal History of Law versus Equity–as Reflected in Lord Eldon’s Manuscripts, by Michelle Johnson, a doctoral candidate at the University of Reading, and my Georgetown Law colleague James Oldham:

The received version of Lord Eldon's conception of equity is often extracted from decisions such as Gee v. Pritchard (1818), describing equity as a settled set of fixed principles almost as uniform as those of the Common Law. Yet, as has been noted in recent scholarship, this version does not do justice to Eldon's multi-layered views. This article re-examines Eldon's subtleties by reference to Eldon's manuscripts now held by Georgetown University Law Library. These include Eldon's judicial notebooks and a series of essays styled ‘Lectures’ (likely written while he was acting deputy to the ‘Vinerian Professor of Common Law’ at Oxford). The article demonstrates that the received view is indeed not sufficiently ‘nuanced’ to provide a fully satisfactory explanation of Eldon's approach to equity. Eldon does seem to have been fundamentally conflicted about the dividing line between law and equity. His overall preference for the certainty of positive law perhaps reflects his law-equity ambivalence (an ambivalence mirrored by some of his judicial contemporaries).

Alexander on the Origins of Obscenity Exceptionalism

James R. Alexander, University of Pittsburgh at Johnstown, has posted Chasing Echoes of Obscenity Exceptionalism in Copyright: Recent Swarm Cases, which is forthcoming in volume 17 of the Chicago-Kent Journal of Intellectual Property (2018):

Recent district court rulings regarding copyright violations using BitTorrent file-sharing protocols to illegally download pornographic films have been numerous and largely procedural. But some have casually included language challenging the established doctrine of content neutrality in copyright, noting that obscenity exceptionalism might still be within the court’s policy discretion. This article traces these recent rulings and finds little substantive argument on behalf of exceptionalism other than its long-time understanding under common law, now abandoned. It also examines the critical early nineteenth century common law rulings considered seminal in establishing content exceptionalism in copyright and finds that current court references to them in swarm cases appear willing to accept what was believed to be their governing principles without consideration of the cautions expressed by earlier courts.

The article draws upon Professor Alexander’s considerable research on Lord Eldon’s opinion in Walcot v. Walker (Ch. 1802).

Watson's "Duty to Account"

J. A. Watson, has published The Duty to Account: Development and Principles, with The Federation Press.

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").

Published last year, the book has already been well-reviewed.  Andreas Televantos, in the Cambridge Law Journal, calit “an original and valuable contribution to scholarship, which will provoke thought amongst scholars and legal practitioners alike.”  Joseph Charles Campbell, Sydney Law, has recently posted another review on SSRN.  He calls the book a “challenging and stimulating book [that] deserves the attention of any serious scholar of private law.”