Alternate Legal History

Apropos the earlier discussion of what was the most influential corporate law decision of the 20th Century, Brett McDonnell makes a very interesting point:

Bainbridge’s take on what makes a case influential certainly makes some sense.  He asks us to imagine the counterfactual of how the world would look if a case had been decided differently, and plausibly argues that more would have changed with a different decision in Case than in Basic.  Fair enough.  Of course, such counterfactuals are tricky.  If Case had been decided in the opposite way, for instance, would Congress have acted to create an explicit cause of action?  Perhaps.  The question is also complicated by the fact that Case dealt with causes of action under sect. 14 of the ‘34 Act, whereas the real action is under Rule 10b-5.  I doubt the latter point matters too much--had the Court denied a private cause under sect. 14, it would have been very hard to find a private cause under 10b-5.

As readers of my personal blog know, I’m a big fan of alternate history. Brett’s comment suggests an interesting parlor game for lawyers: How would the world be different if such and such case had been decided the other way? Create your own counterfactual in the comment section.

Posted on Sunday, March 02 2008 | Permalink

Recognizing that it is a put-up case, the U.S. Supreme Court dismisses the Dred Scott appeal for want of a genuine case or controversy.  State and Federal courts in free states consistently rule that a state may determine the citizenship status of its own residents.  Slaves escape to the North and West in increasing numbers while many poor whites move to former Mexican lands, leading to a profound labor shortage in the South.  The abolitionist cause remains marginal in the North; no Republican Party forms.  Attempts by Southern states to seal their borders fail as smallholder majorities take control of North Carolina, Kentucky, and Tennessee, which become free states.  Where the attempts to seal the borders turn into civil strife in Arkansas, Missouri, Indian Territory, and Kansas, Federal troops suppress the violence.  Maryland and Florida see the handwriting and free their last few slaves.  Rapidly industrializing Atlanta, Savannah, Birmingham, Jackson, Biloxi, New Orleans, and Galveston, gaining political clout vs. the latifundia in their respective states and cramped by a labor shortage assuaged only by increasing immigration, demand state abolition of slavery and succeed.  Virginia holds out, even as its actual slave population disappears, until Governor Robert Lee pushes abolition through the Assembly.  Attempts at Jim Crow legislation fail with the adoption of the 13th Amendment, that the right to bear arms in defense of self, family, state, and nation is an individual right that cannot be denied on account of race, religion, or national origin.

Posted by Ted McClure  on  03/04  at  03:09 PM
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