1998 Conference

Seattle, Washington

You can still view the program or read about the year’s award winners.

H-Law continued a panel discussion of Linda Kerber’s No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship begun at the 1998 American Society for Legal History Meeting in Seattle.



Opening Reception
Breakfast Session: Constitutional Studies: A Model Curriculum
8:45-10:15 Do Ideas Matter and Which Ones? Citizenship & Marriage in 19th-Century America Construction of Expertise in the Anglo-American Courtroom Policing Whiteness
10:30-12:00 Courts Outside the Orbit of the Common Law Beyond Griswold & Roe Israeli Legal History Property & Constitutionalism in Antebellum New York
1:30-3:00 Substance & Procedure in the Premodern English Trial The Voices of Women Lawyers Sovereignty & Neutrality after Legal Realism Rediscovering State Constitutional History
3:15-4:45 New Approaches to Old Institutions Reforming Legal Education in England & America Histories of Federal Courts Rights Talk in Historical Perspective
Annual Lecture
Saturday8:45-10:15 Texts & Reality No Constitutional Right to Be Ladies Torts & Identity The Role of History in Indian Law
10:30-12:00 Courts & Society in Tudor-Stuart England “The Surprising Effects of Sympathy” Race, Criminal Justice & 20th-Century Federal Courts Professional Differences
Annual Luncheon
1:45-3:15 Common Law & Church Courts Domestic Relations, Citizenship & the State History of the Book in the Law Article V of the US Constitution
3:30-5:00 Law & Group Practice in Earlier Medieval Europe Debtors, Creditors & Bankrupts in Victorian Anglo-America Labor, Law & the State Post-Modern Constitutional History


Award Winners:

1998 Sutherland Prize Winner

David J. Ibbetson, “Fault and Absolute Liability in Pre-Modern Contract Law,” 18 Journal of Legal History 1-31 (1997).

Honourable Mention:

Henry Ansgar Kelly, Statutes of Rape and Alleged Ravishers of Wives: A Context for the Charges Against Thomas Mallory, Knight,” 28 Viator 361-419 (1997).

The committee wrote, “We urge all Society members to treat themselves to this model for interdisciplinary primary research and expository writing. Prof. Kelly tells a fascinating story of sex and the late-medieval status of parliamentary statute, centered on the writer of the English epic, Morte d’Arthur.

1998 History Surrency Prize Winner

The Committee deemed the following pieces from Volume 15 of the Law and History Review to be eligible for the Surrency Prize this year:

1. G. Edward White, “The American Law Institute and the Triumph of
Modernist Jurisprudence,”

2. Henrik Langeluddecke, “Law and Order in Seventeenth-Century England:
The Organization of Local Administration During Personal Rule of Charles I,”

3. Girish Bhat, “The Moralization of Guilt in Late Imperial Russian Trial
by Jury: The Early Reform Era,”

4. Anthony Musson, “Twelve Good Men and True? The Character of Early
Fourteenth-Century Juries,”

5. Houston and Van der Heijden, “Hands Across the Water: The Making and
Breaking of Marriage Between Dutch and Scots in the Mid-Eighteenth Century,”

6. Kuehn, “A Late Medieval Conflict of Laws: Inheritance by Illegitimates
in Ius Commune and Ius Proprium,”

7. Hackney, “Law and Neoclassical Economics: Science, Politics and the
Reconfiguration of American Tort Law Theory.”

All three of the Committee members concluded that White’s article on the American Law Institute, in its conceptualization, research, and writing, demonstrated a very high degree of scholarly imagination and accomplishment. We agreed that it was lucidly argued and nicely showed the professional, legal, intellectual factors that contributed to a shift to pragmatic, modernist legal thought. Furthermore, it persuasively demonstrated the significance of the American Law Institute as a site for the reorientation of American jurisprudence.

Although we had a difficult time settling on a finalist, it was White’s compelling argumentation and thesis that made the piece stand out from the rest. For this reason, the Committee selected White’s paper for the 1998 Surrency Prize.


No Constitutional Right to Be Ladies:

The Asymmetrical Obligations of Citizenship

Linda Kerber

The language of equality in American law and tradition is wholesomely generic: “All persons, born or naturalized in the United States, are citizens…” But the practices of equality have been problematic. One of the axes along which it has been problematic is gender as inflected by race.

As I have recently argued at some length in NO CONSTITUTIONAL RIGHT TO BE LADIES, deep in American legal tradition and practice has been the assumption that married women’s obligations to their husbands trumps their civic obligations to the state. (The corollary, of course, is that therefore married men and married women are not equal. In theory the civic infirmities of married women should have no impact on single women–never married, divorced, or widowed, who make up at any moment a substantial proportion of the population, even at times when divorce was rare–but in practice all women were generally treated AS IF they were married.

This has meant in practice that the obligations of citizenship have been differently invoked for men and for women; the practices of naturalization and what counts as birthright citizenship have [with variations over centuries] been taken into account the status of the father and the status of the mother asymmetically; the practices of taxation ignored the large numbers of people excluded from suffrage (which have included most African Americans for long periods of time, most white women until 1920, Asians ineligible for citizenship, etc) despite the principle of “no taxation without representation.” Black women have had heightened obligation to be seen to be working and a simultaneously heightened risk of being charged with vagrancy; for most of U.S. history women’s inclusion in the pool of jurors was much more erratic than it was for men.

I have argued that the genealogy of inequality can be traced not only in the history of unequal rights [well known] but quite as deeply in the history of asymmetical obligations. I have insisted that asymmetical obligations has NOT meant that women were excused from civic obligation but rather that it has burdened them in different forms than it has burdened men. Because these inequalities have occurred in the various categories of specific obligations [to which historically analysts have paid little attention] rather than the generic category of rights [to which we have paid a great deal of attention, a range of important inequalities has gone understudied until recently.

Several recent cases–MILLER V ALBRIGHT (1998) and others now being litigated–raise questions about the gendered dimensions of claims of birthright citizenship. In my comments on the panel I will address what I will know of the recent cases, as well as try to set the issues in long historical context.