Foster on Enforcing Crown Forfeitures in Equity

David Foster, University College London Faculty of Laws, has posted Fraud, Trusts and Trusting: Enforcing Crown Forfeitures in Equity, c.1570–1620, which is forthcoming in the Journal of Legal History:

Sir Edward Coke (NYPL)

Conveyances with informal agreements to hold for the benefit of the transferor initially proved efficacious in avoiding statutory forfeiture provisions. In the late sixteenth century, the equity side of the Exchequer developed a capacious doctrine of revenue fraud designed to capture such informal arrangements and to subject the transferor to liability for crown forfeitures. Initially drawing inspiration from the ‘badges of fraud’ in the Statute of Fraudulent Conveyances 1571, the Exchequer quickly lowered the evidentiary threshold required to prove a conveyance fraudulent. A key badge of fraud was an ‘entrusting’ of the transferee by the transferor. The presence of a conveyance ‘in trust’ eventually became the sole evidence required to hold certain conveyances fraudulent under the statute. In the longer term, these cases became the precedential basis for holding the beneficiary’s right under a trust liable to forfeiture as a matter of doctrine.

--Dan Ernst

Kadens on Fraud Prevention in Historical Perspective

Emily Kadens, Northwestern University School of Law, has posted The Persistent Limits of Fraud Prevention in Historical Perspective, which has been published as 118 Nw. U. L. Rev. 167 (2023):

Fraud has been ubiquitous throughout history, and so have the methods of fraud prevention. History demonstrates that no anti-fraud measures have fully succeeded in eliminating deceptive market behavior. Instead, this Essay uses evidence from premodern England to argue that societies and individual contracting parties balance tolerating a certain amount of fraud against the costs of fraud prevention. 

--Dan Ernst

Patrick on fortune-telling

Out now by Jeremy Patrick (University of Southern Queensland) is Faith or Fraud: Fortune-Telling, Spirituality, and the Law, published by UBC Press. The book includes a history of the regulation of fortune-telling across the common law world. From the publisher: 

The growing presence in Western society of non-mainstream faiths and spiritual practices poses a dilemma for the law. If a fortune teller promises to tell the future in exchange for cash, and both parties believe in the process, has a fraud been committed? Should someone with a potpourri of New Age beliefs be accorded the same legal protection as a devout Catholic?

Building on a thorough history of the legal regulation of fortune-telling laws in four countries, Faith or Fraud examines the impact of people who identify as “spiritual but not religious” on the future legal understanding of religious freedom. Traditional legal notions of religious freedom have been conceived and articulated in the context of monotheistic, organized religions that impose moral constraints on adherents. Jeremy Patrick examines how the law needs to adapt to a contemporary spirituality in which individuals select concepts drawn from multiple religions, philosophies, and folklore to develop their own idiosyncratic belief systems.

Faith or Fraud exposes the law’s failure to recognize individual spirituality as part of modern religious practice, concluding that the legal conception of religious freedom has not evolved to keep pace with religion itself.

Law and religion scholars in the United States, Canada, and Australia will find much to recommend this work, which also contains valuable material for British law and religion specialists and sociologists of religion.

Praise for the book:

 "Faith or Fraud is an ambitious work that fills a major gap in the literature about religious freedom and fortune-telling." -Danielle N. Boaz

"This book situates 'fortune-telling' as an unorthodox religious belief at the margins of current definitions and explores how religious freedom rights apply to this marginal practice. It is an excellent piece of legal scholarship in an area that has rarely been studied before." -Neil Foster

Further information is available here.

--Mitra Sharafi