2003 Conference

Washington, DC :: Capital Hilton
November 13-16, 2003

Local Arrangements Co-Chairs:
James May & Lewis Grossman
American University

The American Society for Legal History’s meeting is to be held November 13-16, 2003, in Washington, D.C., USA at the Capital Hilton.

The following information is currently available online:

This year’s Chair of the Program Committee:

Ariela Gross
Professor of Law and History
The Law School
University of Southern California
699 Exposition Blvd
Los Angeles, CA 90089-0071
(213) 470-4793 (t)
(213) 470-5502 (f)


ASLH 2003 Annual Meeting
Washington, D.C.  ::  November 13-16, 2003

Thursday, November 13th

3:00-6:00 pm            Registration

6:00-7:30 pm            ASLH Reception

7:30-10:00 pm            Board of Directors Meeting 

Friday, November 14th

7:30-8:45 am            Continental Breakfast, Future Projects Committee Meeting

8:00 am-3:00 pm            Registration

8:00 am-5:00 pm            Book Exhibits


Session #1
8:30 am – 10:15 am

Political Histories of Legal Culture 

Chair:  Sandy Levinson, University of Texas School of Law


“Beyond Dispute: The Politics of Gender and Class in EEOC v. Sears, 1968-86”1
Emily B. Zuckerman, Rutgers University, Department of History

“Partisanship by Any Other Name: The Taboo Against Discussing Ideology in the Supreme Court Appointment Process”

David Greenberg, Yale University, Departments of History and Political Science

Commentators:  Mark Graber, University of Maryland, Department of Political Science & Sandy Levinson

The Local Administration of Justice

Chair:  Lawrence Friedman, Stanford Law School


“Justices behind the Curtain: Early Legal Practitioners in Late Imperial China”2
Li Chen, Columbia University, Department of History 

“The Native Courts as Mediator of Social Change in Ibadan, Nigeria, 1893–1957”3
Omoniyi Adewoye, University of Ibadan, Nigeria, Department of History 

“Divergent Destinies: Toward a History of Constitutionalism and Democracy in India”4
Mithi Mukherjee, University of Colorado at Boulder, Department of History

Commentator: Lawrence Friedman

Constitutional Theory and Practice in the Anglo-American Eighteenth Century

Chair:  John Murrin, Princeton University, Department of History


“Constitutional Lawyering before the Constitution”Mary Sarah Bilder, Boston College Law School 

“Imperial Remix: From the Ancient Constitution to Constitutional Law”
Daniel J. Hulsebosch, St. Louis University School of Law 

“Separating Power:  English Liberty as Constitutional Model”David Lieberman, University of California, Berkeley School of Law

Commentator:  Barbara Aronstein Black, Columbia University

Comparative Property Rights: North America and Australia

Chair: Carol Rose, Yale Law School


Terra Nullius in North America, Australia, and New Zealand”6
Stuart Banner, University of California, Los Angeles, School of Law

“From Individualism to Egalitarianism? The History of Property Rights in the United States and Australia Compared”7
Andrew Richard Buck, Macquarie University, Law School

“Comparative Legal History in the Classroom: Opportunities and Challenges”8
Paul Kens, Southwest Texas State University, Political Science and History 

Commentator: Carol Rose

Family Law in Nineteenth-Century England and the United States

Chair:  Ariela Dubler, Columbia University School of Law


“‘They Might be Lawless’: Family, Law, and Interracial Sex in Massachusetts”9
James Allegro, Case Western Reserve University, Department of History 

“Untying The Knot: An Analysis of the English Divorce and Matrimonial Causes Court Records, 1858-1866”10
Danaya C. Wright, University of Florida, Levin College of Law

“Elizabeth Cady Stanton: The Mother of Modern Family Law”11
Tracy A. Thomas, University of Akron School of Law

Commentator:  Ariela Dubler

Session #2
10:30 a.m. – 12:15 p.m.

American Legal Culture and Racial Violence During the Progressive Era

Chair:  Jane Dailey, Johns Hopkins University, Department of History


“Racial Violence and the ‘Laws of War’ in the Philippine-American War, 1899-1902”13
Paul A. Kramer, Johns Hopkins University, Department of History

“The Chicago Race Riots and Urban Legal Culture, 1911-1922”14
Andrew Wender Cohen, Syracuse University, Maxwell School of Citizenship and Public Affairs

“‘Lawlessness’ and Racial Violence on the Texas Border, 1912-1921”15
Christopher Capozzola, Massachusetts Institute of Technology, Department of History

Commentator: Jane Dailey

Athenian Judging/Judging Athenians

Chair:  Kevin Crotty, Washington and Lee University, Classics


“Emotion and Reason in the Judgments of Athenian Jurors and Tragic Choruses”17
Victor Bers, Yale University, Department of Classics

“Assessing Guilt and Punishment in the Athenian Jury System”18
Adriaan Lanni, Harvard University, Department of Classics

“Judging the Unspeakable: Wayward Desire in Athenian Tragedy and Legal Oratory”19
Sheila Murnaghan, University of Pennsylvania, Department of Classics

Commentator: Kevin Crotty

Author Meets Reader: John Langbein, The Origins of Adversary Criminal Trial

Chair:  Thomas A. Green, University of Michigan, Law/History


Albert Alschuler, University of Chicago Law School
David Lemmings, University of Newcastle, Department of History
Allyson May, Toronto, Canada

Response:  John Langbein, Yale Law School

Aboriginal Governance in Canada:  The Struggle for Recognition

Chair:  Sidney L. Harring, The City University of New York, Law School


“Totemic Identity and Aboriginal Governance”21
Darlene Johnston, University of Toronto, Faculty of Law

“Infringement of the Aboriginal Peoples’ Inherent Right of Self-Government By The Parliament of Canada, 1867-1982”22
Kent McNeil, York University, Osgoode Hall Law School

“The Struggle for First Nations’ Self-Government and the Role of Parliamentary and Public Inquiries”23
Michael Posluns, The Stillwaters Group

Commentator: Sidney L. Harring

12:30-1:45 pm            H-Law Committee lunch; Law & History Review Committee lunch; 2003 Program Committee lunch

Session #3
2:00 p.m. – 3:45 p.m.


Localism in 20th Century American Society

Chair:  Hendrik Hartog, Princeton University, Department of History


“Urban Policy and the Contradictions of Federalism in Modern America”25
Wendell E. Pritchett, University of Pennsylvania Law School

“The Anti-Chain Store Movement and the Ideology of Localism”26
Richard C. Schragger, University of Virginia School of Law

Commentators:  David Barron, Harvard Law School and Hendrik Hartog

New Tricks for Finding Old Law

Chair: Thomas P. Gallanis, Washington & Lee University, School of Law and Department of History


“Canon Law and other Continental European Medieval Legal Sources on the Internet”
Ernest Metzger, Aberdeen University, School of Law

“Bracton, The Year Books, and The English Reports”
David Seipp, Boston University School of Law

“The Avalon Project, Blackstone, and American Constitutional Sources”
William Fray, Yale Law School

Commentator: Thomas P. Gallanis

Law Against Mob Law: Federal and State Perspectives in the Legal Fight Against Lynching

Chair:  Emma Coleman Jordan, Georgetown University Law Center 


“Legal Resistance to Lynching in Central Texas, 1896-1905”28
William D. Carrigan, Rowan University, Department of History

“In Search of State Action: Federal Efforts to Curb Lynching, 1898-1945”29
Christopher Waldrep, San Francisco State University, Department of History

Commentators:  Crystal Feimster, Boston College, Department of History Michal Belknap, California Western School of Law, and University of California, San Diego, Department of History

Regionalism, Commerce, and Imperial Governance in Early America, 1600-1800

Chair:  Steven Wilf, University of Connecticut School of Law


“Regionalism in Early American Law”31
David Thomas Konig, Washington University in St. Louis, Department of History and Law School

“Law and Commerce, 1660-1815”32
Claire Priest, Northwestern University School of Law

“Imperial Governance and Communications in Early America”33
Richard J. Ross, University of Wisconsin, Madison, Law School and Department of History

Commentators:  Christine Desan, Harvard Law School and Gregg Roeber, Pennsylvania State University, Department of History

Session #4
4:45 p.m. – 6:00 p.m.

Plenary Session:  Reconstruction of Legal Order in Occupied Lands 

The American South after the Civil War
Edward L. Ayers, University of Virginia, Department of History 

Japan after World War II
John W. Dower, Massachusetts Institute of Technology, Department of History

Germany after World War II
Charles S. Maier, Harvard University, Department of History

Saturday, November 15th

7:30-8:45 am            Continental Breakfast; Publications Committee breakfast; Hurst Committee breakfast

8:00 am – noon       Registration

8:00 am – 4:30 pm            Book Display


Session #5

8:30 a.m. – 10:15 a.m.

Law, Violence, and Gender

Chair:  Laurel Fletcher, University of California, Berkeley, Boalt School of Law


“Sociobiology or Cultural Defense?:  Reconsidering the Heat of Passion Excuse”
John Pettegrew, Lehigh University, Department of History and American Studies

“Domination and Resistance”
Adrienne Davis, University of North Carolina Law School

“The Subject of Freedom: Husbands and Wives”
Katherine Franke, Columbia Law School

Commentator: Laurel Fletcher

Problems of Proof: Evidence Law in England and America 1650-1900

Chair:  Barbara Shapiro, University of California, Berkeley, Rhetoric Department


“The ‘Campden Wonder’ and the Problem of the Missing Body”34
Bruce P. Smith, University of Illinois, College of Law

“Engine Troubles:  Cross-examination and the late-Victorian ‘License of Counsel’ Debates”35
Wendie Schneider, University of Iowa College of Law

“Identifying Knowledge: The Tichborne Claimant and Conceptions of Evidence”36
Jennifer L. Mnookin, University of Virginia School of Law

Commentator: Barbara Shapiro

Nineteenth-Century Historical Jurisprudence in Comparative Perspective

Chair:  James Q. Whitman, Yale University


“The German Historical School: Variations On A Theme by Savigny”
Mathias W. Reimann, University of Michigan, School of Law **

“The American School of Historical Jurisprudence”
David M. Rabban, University of Texas, School of Law

“F.W. Maitland, Historical Jurisprudence and the Rise of Sociology”
David Runciman, University of Cambridge

Commentator:  James Q. Whitman

Postcolonial Legal Histories:  Law, Culture, and Commensurability

Chair:  Teemu Ruskola, American University, Washington College of Law


“Legal Subjects, Market Agents: Culture and the Legal Economy of ‘General Public Utility’ in Colonial India”38
Ritu Birla, University of Toronto, Department of History

“Law’s Empire:  How the Code of the District of Columbia Became the Law in the ‘District of China’”39
Teemu Ruskola, American University, Washington College of Law

“Dependent Citizens and Marital Expatriates”40
Leti Volpp, American University, Washington College of Law

Commentator:  Thomas Keenan, Bard College, Department of English

Liberty and Property: Legal Interpretations of Property Rights in Revolutionary and Early National America

Chair:  Gregory Alexander, Cornell Law School


“The ‘Contest between Liberty and Property’: Freedom Suits in the Revolutionary Era”42
Emily V. Blanck, Emory University, Department of History

“Taking ‘Notice of an Error in the Nature of our Landholdings’:  Historical Interpretations of Land Ownership in the Virginia Commonwealth in the Virginia Commonwealth”43
Christopher M. Curtis, Iowa State University, Department of History

“Taking Liberties with Native American Property:  Creating a Moral Landscape through the Language of Land Possession”44

Ellen Holmes Pearson, University of North Carolina, Asheville, Department of History

Commentator: Gregory Alexander

Session #6
10:30 a.m. – 12:15 p.m.

Before and After Brown v. Board of Education

Chair: Mary Dudziak, University of Southern California, Law School


“The Role of History in Brown v. Board of Education45
Christopher W. Schmidt, Harvard University, History of American Civilization

“Erasing The Badge of Inferiority: Segregated Interstate Transport on the Ground and in The Courts, 1941-1960”46
Derek Catsam, Minnesota State University, Department of History

Brown v. Board and Higher Education: Federal Courts and Segregated Universities, 1948-1964”47
Peter Wallenstein, Virginia Polytechnic Institute & State University, Department of History

Commentator: Michael Klarman, University of Virginia Law School

Law and Reality in the Graeco-Roman World

Chair: Cynthia Patterson, Emory University, Department of History


“Back to Citizenship – Reflections on the legal status of Roman Prisoners of War”49
Rachel Feig Vishnia, Tel-Aviv University, Department of History

“Partly Slave, Partly Free:  The Legal Status of Manumitted Slaves Under Paramone50
Rachel Zelnick-Abramovitz, Tel-Aviv University, Department of Classics

Commentator: Clifford Ando, University of Southern California, Department of Classics

Liberty and Litigation in Comparative Perspective: England and Mexico, 1550-1750

Chair: Brian Levack, University of Texas, Department of History


“Marital Litigation in The Court of Requests, 1542-1642”53
Tim Stretton, St. Mary’s University, Halifax, Department of History

“Whose Liberty? Habeas Corpus, 1550-1750”54
Paul Halliday, University of Virginia, Department of History

“‘That Which Your Majesty So Firmly Commands Be Protected’: Liberty among Indians in 17th Century Mexico”55
Brian Owensby, University of Virginia, Department of History

Commentator: Brian Levack

Israeli Legal History: National Security and Arab Displacement in the post-1948 Period

Chair:  Nir Kedar, Bar-Ilan Faculty of Law


“Violence and the Word Revisited: The Case of the ‘Infiltrators’ before the Israeli Supreme Court, 1948-1954”56
Oren Bracha, Harvard Law School

“The Supreme Court and the Arab-Jewish Conflict: Implications for the Jurisprudence of Land Expropriation”57
Yifat Holzman-Gazit, Bar Ilan University, School of Law

“From Arab Land to ‘Israel Lands’: The Legal Dispossession of the Palestinians Displaced by Israel in the Wake of 1948”58
Alexandre Kedar, Haifa University, Law School

Commentators: Lama Abu-Odeh, Georgetown University Law Center and Raif Zreik, Harvard Law School

The Rise of the Anglo-American Corporation: Alternative Paths and Functions

Chair: Colleen Dunlavy, University of Wisconsin-Madison, Department of History


“Moral Shirking and the Rise of the Classic Capitalist Firm in Britain, 1844-1914”59
Paul Johnson, London School of Economics, Department of Economic History

“From Partnership and Trust to Corporation: Insolvency and Agency in the Late 18th and Early 19th Century”87
Joshua Getzler and Mike MacNair, Oxford Faculty of Law

“Institutional Foundations for Securities Markets in the West”88
Mark Roe, Harvard Law School

Commentators: Paul Mahoney, University of Virginia Law School and Colleen Dunlavy

Annual Luncheon
12:15 – 2:00 p.m.

Session #7
2:15 p.m. – 4:00 p.m.

Biography As Legal History:  Ruth Bader Ginsburg and Jacobus TenBroek As Historical Subjects

Chair: Joan Williams, Washington College of Law, American University


“From Frontiero to Flatbush with Justice Ruth Bader Ginsburg”
Jane S. DeHart, University of California, Santa Barbara, Department of History

“From Disability to Welfare Rights: Jacobus TenBroek on Discrimination”61
Felicia Kornbluh, Duke University, Department of History

Commentators:  Pnina Lahav, Boston University Law School and Mark Tushnet, Georgetown School of Law

Forfeitures and Penalties in the English Medieval Common Law

Chair:  Janet Loengard, Moravian College, Department of History


“Statutory Forfeiture of Land for the Non-Performance of Services: The Origins and Early History of the Action of ‘cessavit per biennium’”
Paul Brand, All Souls College, Oxford

“Origins and Early History of the Penal Bond”
Joseph Biancalana, University of Cincinnati College of Law

Commentator:  Charles Donahue, Jr., Harvard Law School

Law and Public Opinion in the Americas

Chair: Elizabeth Dale, University of Florida, Department of History and Levin College of Law


“Public opinion is practically the paramount law of the land: The Cilley-Graves Duel and the Antinomies of Antebellum Anti-Dueling”63
Mark G. Schmeller, Syracuse University, Maxwell School of Citizenship and Public Affairs

“Dueling Ritual as Customary Law in 19th and 20th Century Uruguay”
David Parker, Queen’s University, Department of History

“White Husband, White Wives, ‘Mulatto’ Babies: Race, Divorce Law, and Public Opinion in 1830s North Carolina”65
Charles Rayburn and John Wertheimer, Davidson College, Department of History 

“Articulating Rights: Arguments Around Criminal Libel in the Mid-Nineteenth Century”66
Lyndsay Campbell, University of California, Berkeley, Jurisprudence and Social Policy

Commentator: Elizabeth Dale

New Histories of International Law

Chair:  Benedict Kingsbury, New York University School of Law


“The Law of Nations in an Age of Global War, 1754-1763”
David Armitage, Columbia University, Department of History

“The Edges of Empire and the Limits of Sovereignty:  Guano Islands, 1856-1890”67
Christina D. Burnett, Princeton University, Department of History

“Untangling Colonialisms’ Claims on Natural Resources”
Patricia Seed, Rice University, Department of History

Commentator: Benedict Kingsbury

Law and the Management of Risk in Modern America

Chair:  James Wooten, SUNY-Buffalo Law School


“When All Else Fails: Government as a Risk Manager in American History”
David Moss, Harvard University, Graduate School of Business

“The Accidental Republic: Contingencies and Risks in the Remaking of American Law”
John Witt, Columbia Law School

“Insurance at the Crossroads: Cultural Transformation, Late-Nineteenth Century Insurance Law, and the Appropriation of Risk”
Roy Kreitner, Tel Aviv University Faculty of Law

Commentator: James Wooten

Session #8
4:15 – 6:00 p.m.

Law and Political Development in the Progressive Era

Chair:  Elizabeth Sanders, Cornell University, Department of Government


“The Social Control of Business in the Progressive Era”69
William J. Novak, University of Chicago, Department of History

“Speaking Law to Power”70
Michael Willrich, Brandeis University, Department of History

“Democracy and the Constitution in Progressive America”71
William E. Forbath, University of Texas, Law School and Department of History

Commentator:  Elizabeth Sanders

Roundtable: Women Acting in Law

Moderator: Barbara Welke, University of Minnesota, Department of History


“Between Class and Gender: Last Wills and the Notarial Practice in Seventeenth-Century Provincial Tuscany”
Giovanna Benadusi, University of South Florida, Department of History

“‘Feeling Like a State’: Elite Slaveholders and Everyday Power in the Antebellum South”
Stephanie Camp, University of Washington, Department of History

“Courting Families: Litigation and the Political Economies of Daily Life in Early Modern France”
Julie Hardwick, University of Texas, Austin, Department of History

“Power to Accuse? Rape, Women’s Voices, and the Power of Whiteness in the Legal Record”
Lisa Lindquist Dorr, University of Alabama, Department of History

Roundtable: Historians in The Courtroom

Moderator:  Donna C. Schuele, The California Supreme Court Historical Society

“Historians as Expert Witnesses:  An Overview and Assessment”
John A. Neuenschwander, Carthage College, Department of History

“Telling Lies to the Supreme Court: Reopening the Wartime Internment Cases”
Peter Irons, University of California, San Diego, Department of Political Science 

“The Practice of Forensic History: An Example from the Land Grant Wars”
Peter Reich, Whittier Law School

“Postmodernist Jurisprudence, Postmodernist History: Hard Lessons from an Expert Witness on Voting Rights”
J. Morgan Kousser, California Institute of Technology, Division of Humanities and Social Sciences

Sunday, November 16th

8:00 -9:00 am            Continental Breakfast

Session #9
9:00 a.m. – 10:45 a.m.

Looking Back at the Legal Profession: Lessons from the Past

Chair: Robert W. Gordon, Yale Law School


“The Myth of Civic Republicanism: Interrogating the Ideology of Antebellum Legal Ethics”72
Norman W. Spaulding, University of California, Berkeley, Boalt Hall School of Law

“Rediscovering Julius Cohen and Rethinking the Origins of the Business/ Profession Debate”73
Samuel J. Levine, Pepperdine University School of Law

“Gentleman’s Agreement: The Antisemitic Origins of Restrictions on Stockholder Litigation”
Lawrence E. Mitchell, The George Washington University

Commentator:  Robert W. Gordon

Smoke Screens, Sounds Uncouth and Black Rams: Women in the Spaces of the Law

Chair: Susan Sage Heinzelman, University of Texas, Austin, Department of English


“Prostitution As A Smoke-Screen in a 4th C. B.C. Lawsuit”74
Lesley Dean-Jones, University of Texas, Austin, Department of Classics

“Patriarchy as Usual: Women, Children, and The Family Tribunal in Late Roman Law”75
Judith Evans Grubbs, Sweet Briar College, Classical Studies Department

“The ‘Sounds Uncouth’ of Westminster Hall: Law, Women, and Commerce”76
Kathryn Temple, Georgetown University, Department of English

“Disturbing the Peace: Queen Caroline and The Black Ram”77
Susan Sage Heinzelman

Commentator:  The Audience

Economic Analysis of Legal History

Chair: Geoffrey Miller, New York University Law School


“Covenants and Conventions”78
Richard Brooks, Northwestern University Law School

“Adverse Selection in Market Sales of Roman Slaves”79
Bruce Frier, University of Michigan, Classical Studies Department and Law School

“The Value of Judicial Independence: Evidence from Eighteenth-Century English Stock Prices”80
Dan Klerman, University of Southern California Law School

Commentator:  John Wallis, University of Maryland, Economics Department

Property and The Nineteenth-Century Constitution

Chair: Charles McCurdy, University of Virginia, Department of History and Law School


“The Limits of Sovereignty: Legislative Property Confiscation in the Union and the Confederacy”81         Daniel W. Hamilton, New York University Law School

“The Role of Cherokee Women in Shaping Marshall’s Trust Doctrine in the Cherokee Cases”82
Cynthia Cumfer, Reed College, History and Humanities

“Stability and Change in Antebellum Property Law: State Courts and Judicial Takings”83
Polly Price, Emory University Law School

Commentator: Charles McCurdy

African Americans before the Bar in Nineteenth Century America:  Court Battles over Racial Segregation, Inheritance and Citizenship Rights, 1831-1888.

Chair:  Sandra VanBurkleo, Wayne State University, Department of History


“Resisting the ‘Unjust Written Manacles for the Free’:  Challenging Racial Barriers in Nineteenth Century Ohio”84
Barbara Terzian, Ohio Wesleyan University, Department of History

“‘If They Should Choose Freedom’: Testamentary Capacity and Vision of Freedom in Nineteenth Century Kentucky”85
Yvonne Pitts, University of Iowa, Department of History

“She is a citizen of the United States for only certain purposes: Gender Identity, Racial Status and the Legal Struggle to Desegregate a Mississippi Steamboat”86
Sharon Romeo, University of Iowa, Department of American Studies

Commentator: Sandra VanBurkleo



1.         In 1973, the Equal Employment Opportunity Commission (EEOC) alleged that Sears, Roebuck & Co. discriminated against women because its commissioned sales force was predominantly male.  The case became known for the expert witness testimony of two women’s historians.  Rosalind Rosenberg testified for Sears that women wanted jobs that complemented their domestic obligations rather than higher-paying positions.  Alice Kessler-Harris testified for the EEOC that Rosenberg universalized an assumption about white middle-class women to women of color and working-class women.  The Court concluded that Sears’ practices reflected female preferences rather than discrimination, which represented a defeat for efforts to open male-dominated occupations to women.   The decision sparked a heated debate among feminist scholars and in the mainstream media.

            In spite of how Sears is remembered, the decision should be viewed in the broader context of political changes in the 1970s and 1980s.  Early on, the promise of the Civil Rights Act led the EEOC to conduct industry-wide investigations, with an eye toward revolutionary change in the workplace.  By the end of the lawsuit in 1986, changes in presidential administration and political atmosphere had shifted the EEOC’s agenda away from sweeping changes and toward remedies for individuals.

            The case can also be explained by examining the parties involved.  Rather than settle with the EEOC, Sears’ aggressive corporate culture led it to fight back.  Women’s organizations that initiated the case lacked the resources to follow through and became preoccupied with other issues.  The polarized debate prevented feminists from addressing complex questions about the kind of employment women sought.  The role of working women in Sears was lost, exposing the class divide between them and the middle-class feminists trying represent them.  By viewing this case from a broader perspective, it is possible to recapture the women of Sears, as well as shed light on the shift from the promise of far-reaching change to a weakened and ineffective approach to equal employment opportunity.

2.         This paper tries to analyze how private legal practitioners (xingming muyou or “advisors behind the curtain”) shaped Chinese legal culture and judicial administration during the Qing dynasty (1644 A.D. – 1911 A.D.).  Since Qing local officials were appointed primarily because of their excellence in literary classics rather than administrative or legal expertise, most of them relied upon private legal advisors to help perform their judicial duty that had become increasingly complicated as crimes and litigations soared over time, especially in the late imperial period. While these private legal advisors played such an indispensable role in the local administration of justice, scarce scholarship has been devoted to studying their significance in Chinese legal history.

            Seeking to sketch out how these early legal practitioners actually shaped Chinese legal culture, this paper will examine their personal profile, legal training, legal philosophy and judicial practice, against the backdrop of changing official and popular discourses on their role in judicial administration. Such an understanding of the unique cultural, social, and institutional contexts in which these private legal practitioners pursued their career and administered justice will hopefully enable us to better appreciate certain salient characteristics of Chinese legal tradition as well as the actual operation of the judicial system in late imperial China.

3.         “Native courts” in colonial Nigeria were judicial institutions created by the British to allow members of the indigenous population adjudicate cases under the supervision of British administrative officers. The paper is a case study of such courts in Ibadan city: how they facilitated the spread of English legal ideas; how they functioned to enhance personal freedom and individualism; in particular, how they elevated the status of women in the society; and how they forced changes in social habits and patterns of behaviour through criminal sanctions. From a world-system perspective, it is clear from this study that native courts in Nigeria facilitated the integration of the colonial estate with the West by fostering among the local population a mental outlook conducive to it.

            One primary factor in this development is the jurisprudential outlook of the English common law. The basis of the common law is the assumption that society is no more than a complex web of legal relationships between persons (natural or juristic), regardless of their social status. It is this jurisprudential outlook that the native courts tended to imitate in matters of procedure and the “law” they were said to administer. The pervasive influence of the supervising British administrative officers (who knew nothing but the English common law) accentuated this development.

            As this study shows, the courts were not subversive of all indigenous values. In spite of the level of social change brought about through the Native courts in Ibadan social life in the city continued to exhibit elements of continuity with the past which the courts also endeavoured to uphold.

4.         In a globalizing world, as the urge and need to spread constitutional democracy beyond the borders of the “west” has grown, there is an increasing awareness among constitutional scholars of the enormous difficulties that necessarily accompany attempts to foster constitutional democracy in different parts of the world.  In this context, the success of the Indian experience in constitutional democracy in the fifty years after India’s independence from British rule has intrigued scholars, particularly given the overwhelming diversity of the Indian population in terms of religion, ethnicity, language, caste, etc. and the absence of a developed capitalist economy.  In contrast to the unstated but largely unquestioned view that Indian constitutional democracy is primarily a legacy left behind by British colonialism, my contention in this paper is that the nature and viability of constitutional democracies, specially in postcolonial countries, depends to a large extent on the nature, strength and legacy of anti-colonial resistance movements.  In the unique case of India, I argue that constitutionalism and democracy have had two separate and largely divergent historical lineages, the first grounded in the idea of justice as equity and articulated by the Indian National Congress in its struggle against British colonialism, and the second articulated by Gandhi in terms of the traditional Indian spiritual idea of renunciative freedom, as opposed to the western discourse of political freedom based on individualism.  In this paper, I pursue the contours and implications of this dual lineage.

5.         The history of property is conventionally written and taught as a subject delineated by modern national boundaries, as the history of property law and property use in this or that country.  This is especially true in the United States, where there is a long tradition of generalizing from the American experience to make claims about the nature of property rights in the abstract.  Yet if there ever was a subject that cried out for a comparative historical perspective, this is the one.  The institution of property exists everywhere, under differing local material conditions and differing local legal regimes.  To what extent, and why, has the history of property differed across nations?  Would a richer, more comparative account of the history of property give rise to different generalizations about the nature of property rights?

            Our panel tries to begin getting at these questions by looking at differences in the history of property in North America and Australia.  These are similar places in some important respects.  Both inherited the English law of property.  Both were settler colonies in which land had to be acquired from indigenous people.  Both were frontier societies for a considerable part of their histories.  Land loomed large in both cultures (and indeed still does), both as a source of material wealth and as a cultural icon.  Despite all these similarities, however, there have been some significant differences in the history of property in North America and Australia.  Why?

            Two of our papers try to answer this question with respect to particular aspects of the history of property, one (Banner) on differences in the law governing the acquisition of land from indigenous people, and the other (Buck) on differences in the extent of state intervention (and common beliefs about the extent of state intervention) in the development of property rights.  The third paper (Kens) turns to the classroom, and investigates ways of teaching the subject, and teaching comparative legal history generally, in both a substantive and a logistical sense.

6.         Terra nullius is such a basic and well-known fact of Australian history that it is easy to lose sight of how anomalous it was in the broader context of British colonization.  The British had been colonizing North America for two centuries before they reached Australia, but they did not treat the North American colonies as terra nullius.  Instead they acknowledged North American Indians as possessors of property rights, and generally acquired the Indians’ land in transactions structured as purchases.  The British began colonizing New Zealand a few decades after Australia, but they did not treat New Zealand as terra nullius either.  Instead they signed a treaty explicitly recognizing the Maori as owners of the land.  The existence of terra nullius in Australia is thus something of a puzzle.

            My paper identifies three reasons for Australia’s anomalous status.  First, American Indians and the Maori were farmers, while Aboriginal Australians were not.  According to then-conventional European anthropological thought, agriculture presupposed property rights in land.  Second, American Indians and the Maori were more powerful military opponents than Aboriginal Australians, so the cost of conquest to the settlers would have been considerably higher in North America or New Zealand than in Australia.  Finally, North America and New Zealand were in effect first colonized by small private groups, under very little supervision from Britain.  Members of these groups, too weak to seize land by force and unconstrained by official imperial land policy, often purchased land from indigenous people.  By the time the imperial government began paying much attention, most settlers derived their land titles from an initial purchase from indigenous people, and they formed a powerful political force for recognizing indigenous people as landowners.  Australia, by contrast, was first colonized by a well-armed official expedition.  The imperial government was, in effect, present in Australia from the beginning, which prevented the growth of a settler lobby in favor of recognizing Aboriginal property rights.

7.         In his book Legal Transplants, Alan Watson defended Comparative Law as a separate academic discipline, defining it as: “a study of the relationship, above all the historical relationship, between legal systems, or between rules of more than one system.”  While many in the legal academy have resisted Watson’s defense of comparative law as a separate discipline, legal historians, such as Lauren Benton and Peter Karsten, who have focused on the historical relationship between legal systems, have produced a body of exciting work by adopting a comparative approach.  In this paper, I will explore the opportunities and challenges of the comparative approach through a focus on the historical development of property rights in the United States and Australia during the nineteenth century.

            This paper emerges out of the joint teaching project described by Professor Kens in his paper in this panel. By focusing on the relationship between property law and the political culture of two settler societies, it is also designed to complement Professor Banner’s paper in this panel, which has emerged from his research on the comparative history of indigenous property rights in the common law jurisdictions of the British Diaspora.

            There is a long historiographical tradition in the United States, which prioritizes a “rugged individualism” over state intervention in explaining the historical development of property law and the contours of debate over property rights. By contrast, there is a long historiographical tradition in Australia whereby the development of property law and property rights is explained as a product of guided state development often referred to as “colonial socialism”. By reference to important case law in both jurisdictions, including such notable American cases as Fremont v. United States (1854) and important Australian cases such as Attorney General v Brown (1847), as well as politically charged legislation, including the Robertson Land Acts of 1861 in Australia and the mid-nineteenth Homestead Acts in the United States, this paper will explore the myth and reality of these historical shibboleths.

8.         In 2000 a group of Canadians and Australians took advantage of the potential of the Internet by offering a course in comparative legal history (described in Law and History Review, Summer 2000).  Inspired by that group, Andrew Buck, of Macquarie University,  and I offered a comparative Internet based course in Spring 2003.  This presentation will describe our experience and discuss both the opportunities and the challenges of teaching such a course.

             Even though the Canadian and Australian group provided a model from which to work, we still faced a number of challenges unique to our circumstances.  Perhaps the principle challenge was determining the substance of the course.  We decided to focus on the single issue of property rights.  We began with the general proposition that a conventional view is that the American experience emphasized private property and non-intervention of the state.  In contrast, the history of property rights in Australia is often presented as reflecting a high profile of the state in control and distribution of property.  Taking into account our similar background in English common law as well as our distinctive histories, we asked our students to explore the myth and reality of these conventional views.  A second challenge was dealing with the logistics.  The Internet allowed our students to communicate, but it did not change such things as our semester calendars and time zones.

            The advantages of participating in this project have been numerous.  At the time I write this proposal we have just started the course.  Yet we have already seen positive aspects in the form of support from our institutions, enthusiastic students, and the possibilities of joint publications in comparative legal history.  For those, like me, whose work has been limited to American constitutional and legal history, the project also offers a wonderful avenue for self-education.

9.         Slavery and the law co-existed together in British America in a creative relationship that informed how masters and slaves lived, worked, and, most importantly, loved.  This paper re-evaluates the position of interracial sex and marriage in the legal and cultural development of colonial Massachusetts.  Whereas some historians depict anti-miscegenation laws as an elite instrument for regulating and dividing the sexual interests of subordinate laboring peoples, this paper depicts these acts as a flexible instrument of community development responsive to a a wide array of social groups, including slaves, servants, and free peoples.  For the majority of colonial society, statutes baring interracial sexual relationships affirmed a critical building block of Puritan society, the marriage covenant, against the shifting political and military circumstances of the late 1600s.  More particularly, anti-miscegenation law was part of a broader continuum of regulations designed to affirm the patriarchal underpinnings of the family against the perils of war with France and the uncertainties of the Glorious Revolution.  These laws proscribed the boundaries of the Puritan community, but they also responded to the sexual mores of its subjects, including white servants and African slaves. Through their participation in the courts, slaves and servants contributed new knowledge to the law, in turn altering the movement to re-affirm the family against war and political tumult.  Laws banning interracial sex emerged as a result of the back-and-forth dialogue between slaves, servants, and masters over issues of sexual intimacy and marriage.

10.       This paper is an analysis of the petitions, answers, affidavits, and court docket for the first nine years of the English divorce and matrimonial causes court.  It examines in detail the child custody, alimony, gender, and class components of the court’s first nine years.  After analyzing the petitions and court docket along gender lines for the different causes of action (divorce, separation, annulment, and restitution of conjugal rights), and their success rate by gender and by age of the marriage, it then breaks down marriages by age and speculates on a variety of causes for the different results and considers how gender differences and power imbalances in nineteenth-century society influenced the decisions of both men and women to terminate their marriages.

11.       Elizabeth Cady Stanton is often described as the most significant woman history has ever forgotten.  Scholars in women’s studies and history have only in the last decade begun to rediscover her important contributions to the feminist movement.  Missing from the scholarship, however, is any analysis of the importance of her contributions to the law, and in particular to the area of family law.   Stanton was a holistic legal thinker, arguing that women’s suffrage alone was insufficient for equality, and advocating for universal reform to the laws of the family, employment, and community.  This research intends to examine for the first time Stanton’s writings on divorce, marriage, child support, custody and domestic violence to find her prescriptions and theories for family law.  By exploring Stanton’s legal theories and contrasting them with the theories of contemporary family law, the research will show how Stanton advocated and demonstrated the modern idea of equality for women within the family.  The research hopes to show that Stanton approached the law from a feminist legal perspective, arguing for laws that reflected the actual experiences of women.  By revealing the historical underpinnings of feminist legal theory beginning with Stanton, this research hopes to inform the continuing debates over legal rights within the family.

12.       This panel will explore the connections between legal thought and racial violence during the Progressive Era.  Many scholars have noted the sad alliances between segregationists and many turn-of-the-century reformers.  Jim Crow statutes appealed not only to rural white Southerners, but also to urban professionals, who advocated public regulation, clean government, and “scientific” theories of race.  But this broad schema does not fully explain the extensive racial combat of this same period-imperialism, vigilantism, and rioting- which seems counter to the Progressive faith in law as well as the reformers’ perception of conflict as tragic and wasteful.  Further, this rubric often paints racial ideologies as the source rather than a product of exclusion, separation, and combat.  Looking at both domestic and foreign affairs, the three papers in this panel will discuss why Progressive understandings of law actually promoted an intensification of racial violence and the continual reconstitution of racial identities.

13.       My paper explores the role of racial ideology in the bounding and unbounding of colonial violence during the Philippine-American War.  The role played by “race” in the conflict has long been known to historians, many of whom first discovered the war during the civil rights and anti-Vietnam War movements.  But this role has been analytically reduced to the notion that U. S. soldiers on occasion acted on racist “attitudes,” especially pre-existing ones that they reflexively “exported” to the Philippines or “projected” there, as onto a blank screen.

            This paper explores, to the contrary, the contingencies of racial formation in a colonial setting as part of two larger efforts: first, to demonstrate the centrality of race to legal and moral categories of war and violence; second, to write a transnational history of race in the early 20th century.  As I show, the U.S. soldiers who occupied Manila in August 1898 during the Spanish-American War did not racialize the Filipinos they encountered-either as soldiers or civilians-in any coherent or consistent way.  Situational novelty, the delay of the Treaty of Paris negotiations and concerted efforts by Filipinos to assert their statehood and “civilization” all led to diverse U.S. assessments that included what might be called “recognition”: of the Philippine Republic as a legitimate political entity, and of Filipinos as a “civilized” people.

            The cession of the archipelago by Spain to the United States in December 1898 triggered rising tensions in the Islands that erupted in war the following February, when U. S. sentries fired on Filipino soldiers.  The outbreak of war itself unleashed a process of racialization, as indicated by often stark changes in U. S. soldiers’ terminology during the early weeks and months of the conflict.  War itself did not end the political struggle for recognition: for the first nine months, the Republic’s military leadership chose a disastrous strategy of conventional warfare with the self-conscious goal of securing international support by fighting through “civilized” means.  In November 1899, however, the Philippine Army disbanded into decentralized guerrilla units, moving the battle into more remote, rural areas and relying on barrio-level recruitment, support and intelligence.

            The Filipino adoption of guerrilla tactics, in turn, led to a radicalization of racial perception among U. S. troops and officers in 1900-1901.  Fighting in unfamiliar tropical environments, unable to distinguish Filipino peasants from soldiers, U. S. soldiers recast the conflict as a “war of the races”; Filipino guerrilla tactics were “ethnologized,” marked as the expression of inherent traits of “savagery” and treachery in the population as a whole.  As General Hughes put it in late 1900, “the whole population has been rank insurrectos from hide to heart…”  This view was made policy in General MacArthur’s December 1900 declaration, invoking the Civil War-era General Orders No. 100, that those who waged guerrilla war “divest themselves of the character of soldiers, and if captured are not entitled to the privileges of prisoners of war.”  MacArthur’s order, animated by emerging racial forms, led to a totalization of U. S. violence: the destruction of homes, livestock and other property of civilians; the torture of civilians and prisoners; ultimately, instances of indiscriminate killing.

            Senate investigations into wartime “cruelties” and Army court-martials ultimately yielded few punishments.  Chief among Army self-defenses was the argument that Filipinos, being “savages” themselves, and having waged a “savage” form of warfare, were not due the restraints of “civilized” war.

14.       My paper examines racial conflict in Chicago between 1911 and 1922, investigating its roots in Progressive-era law, politics, and urban legal culture.  Previous authors have blamed the infamous Race Riot of 1919 on the interaction of African-American migration, white prejudice, and economic rivalries.  This paper complicates such interpretations by considering how local institutions-courts, political parties, craft unions, and trade associations-helped construct racial identities both before and after World War One.  The contemporary legal climate encouraged vigilantism rather than any state management of race relations- either Jim Crow laws or egalitarian policies guaranteeing equal access-and the result was intense private violence.

            Consider labor market competition, one source of racial tension emphasized by many historians.  As black workers sought to earn a living, they challenged white craftsmen’s dominance over the labor market.  The tradesmen did not, however, call for legal segregation, partly because they rejected the principle of public regulation itself.  Defeated regularly in the courts, craft workers and employers rejected judicial authority and projected a profound sense of their own sovereignty.  Unions and trade associations formed their own systems of governance to stipulate wages, hours, prices, machinery, and materials.  Walking delegates administered these rules, gaining compliance through strikes, boycotts, assaults, and bombings.  Such restrictions not only deflected modern technology, corporations, and a national market, they also challenged elite faith in the rule of law.  But when judges pressured tradesmen to recognize the state’s authority, they merely hardened the craftsmen’s belief in their own jurisdiction.

            White Chicagoans chose to control race relations through a set of interlocking private groups, including unions, associations, political clubs, and gangs.  Workers, for example, increasingly defined formerly race-blind restrictions on the labor market in racial terms, specifically barring blacks from union membership.  Moreover, these organizations physically punished blacks for crossing geographic and occupational color lines.  Assaults on African Americans closely resembled attacks on open shop employers, price-cutters, and non-union workers during the same period.  For example, four months before the 1919 riot, a bomb exploded at the office of African-American real estate entrepreneur Jesse Binga.  Some observers believed the bombers sought to intimidate black citizens who lived amidst whites.  Others claimed the Flat Janitors’ Union had punished Binga for employing non-union men.  In fact, these conclusions are complementary, for residential segregation and economic exclusion were both components of a broader effort by white craftsmen to control space and commerce.

            While judges offered protection to corporate employers, they failed to defend black access to jobs and housing.  Left with few options, African Americans responded by forming their own organizations, by finding patrons like Mayor William Hale Thompson, and by retaliating against their white rivals.  These resistance strategies allowed migrants to survive.  But in defending themselves, blacks risked fulfilling white preconceptions of them as allies of capital, thus unintentionally perpetuating the cycle of private racial violence.

15.       This paper explores the boundaries of legal order and lawlessness in Texas in the years of the Mexican Revolution as part of a broader consideration of the relationship between racial violence, modernity, and the law in the early twentieth century.  This paper examines several episodes in southern Texas to show not only how vigilantism maintained a racial status quo, but also how south Texans of Mexican heritage used the rhetoric of lawlessness to challenge racial violence through legal institutions.

            From the outset of the Mexican Revolution, local, state, and federal authorities in the United States thought of the revolution as a fundamentally lawless event that threatened both the legal and racial orders of the border region.  The main section of the paper examines the response of public officials in Texas and Washington to Mexican “banditry” through the lenses of law and race.  It explores the connections-both theoretical and institutional-between General John J. Pershing’s Punitive Expedition of 1916 and the vigilantism carried out in the same period by Anglo South Texans in a wide range of organizations that included the Texas Rangers.  Authorities consistently accused Mexican revolutionary groups of engaging in vigilantism and racial violence, while denying that their own activities fit the same definitions.  Hypocritical?  Yes.  But not only that.

            Modernity is the key to understanding why this position was not simple hypocrisy.  By the early twentieth century, law enforcement in Texas was conducted primarily by professional police forces and the National Guard, and many considered the Rangers to be an anachronism in a modernizing society. Nevertheless, in Texas as elsewhere in the country, longstanding traditions of popular enforcement of the law proved difficult to dislodge.  The paper situates the Texas Rangers in the history of early twentieth-century vigilantism, including consideration of the theoretical relationship between vigilantism and voluntarism in a changing society.  Battles over lawlessness and legal order were also battles over modernity, the shape of modern American citizenship in particular.

            Even historians sympathetic to the Texas Rangers acknowledge that at least five thousand people died in episodes of racial violence along the border.  But the targets of vigilantism were not only victims: they also used the concept of lawlessness as a tool against the Rangers.  The second half of the paper draws from their testimony, collected in 1919 by the Canales Committee, a special investigative effort undertaken by the Texas Legislature in response to border violence.  The testimony suggests that Mexicans and Mexican Americans found ways to navigate a hostile legal system.  The outcome, however, was mixed: although the Rangers were reorganized in 1919 in the wake of the Canales Investigation, the political violence that supported the racial order did not disappear.  The paper ends by considering some of the ambiguities in early twentieth-century efforts to modernize systems of social control to eliminate vigilantism.  As physical violence was slowly discredited and modern institutions of political citizenship emerged, new forms of coercion emerged to mark the boundaries of the racial order.

16.       The jury wielded formidable power in classical Athens. On about one hundred fifty days a year, juries of ordinary male citizens typically numbering between two hundred and five hundred rendered judgments in cases that often concerned members of the political, economic, and social elite. Litigants offered competing presentations that drew on moral, social, and political norms as well as legal ones. Athenian juries voted without deliberation, and without benefit of a judge’s instructions as to the relevant law. There was no appeal from the judgment of the people.

            How did the Athenians conceive of the task of legal judgment? What did they regard as the proper criteria for such judgments? How was the process of judging shaped by the cultural and political circumstances of classical Athens? The papers on this panel explore these issues by examining the process of judgment in the surviving lawcourt speeches and in tragic theater. Bers argues that in statements of the chorus in Greek tragedy we can see the poets’ dramatization of mental processes–emotional and rational–in the work of the Athenian juror. Lanni describes the process of jury decision making in the surviving lawcourt speeches as an ad hoc calculation of moral desert that encompassed evidence relevant to sentencing as well as to guilt. Murnaghan finds in both the lawcourts and tragedy a cultural constraint that limited the criteria of judgment: the refusal to acknowledge female sexual desire.

            Taken together, these papers offer new insight into what has recently become a growth field in classical scholarship: the nature of Athenian law and its relation to Athenian democracy and society. In particular, the papers seek to move beyond a narrow focus on the traditional sources for the Athenian courts to exploit dramatic literature and non-legal evidence for Athenian cultural norms. We believe that this research into the relationship between law and society in Athens in the time of its greatest intellectual and artistic flowering will be of general interest to legal historians of all periods.

17.       Although forces far surpassing the human agents of the plays are nearly always predominant in the plotting of Greek tragedy, a large portion of the text is given over to the presentation of what might loosely be termed “pleadings.” Through the spoken (less often sung) logos that largely substitutes for physical enactments on the stage, characters seek to justify actions already taken or weigh their choices of prospective action. In the economy of tragic dramaturgy, much attention is paid to explicit judgment of the mode and content of these verbal performances. This paper explores not the arguments themselves, the topic of much existing research, but the implicit and explicit reactions of the chorus to the task of discerning truth and evaluating pleadings (dikaia in the language of lawcourt rhetoric).  To a remarkable degree, the choruses are comprised of slaves, women, and foreigners, those groups rigorously excluded from the mass juries that are one hallmark of the Athenian courts. Nevertheless, the poets regularly employed the chorus to dramatize the competing rationales and emotional states at play in the minds of jurymen empowered by the radical democracy of the fifth and fourth centuries BC to make decisions of profound importance to individuals and the city as a whole.

18.       The Athenian popular courts drew no distinction between evidence relevant to guilt and evidence relevant to sentencing. Unlike the practice generally employed in American courts of withholding from the trial jury information about the likely penalty and arguments regarding the appropriate sentence, Athenian litigants at trial regularly discuss potential penalties and make what a modern would regard as sentencing arguments-from comments about the defendant’s character and prior record to appeals for mercy and discussion of the disastrous financial consequences a conviction would have on the defendant’s innocent family. The trial verdict thus encompassed much more than a decision as to factual guilt, though the penalty was formally determined by statute or through an additional sentencing hearing in which the jury chose between the penalties suggested by each litigant.      

            This paper examines the effects of this broad notion of relevance on the nature of Athenian justice. Defendants who used sentencing arguments at the guilt phase had to adapt their arguments to maintain a coherent presentation without conceding factual guilt. Athenian jurors were constantly made aware of the violence inherent in their judicial decisions. The breadth of argument during popular court trials led to largely ad hoc, individualized judgments of moral desert. I argue that this unusual approach reflects not only a normative belief in the importance of contextual information in reaching a just decision, but also a political commitment to insuring wide-ranging jury discretion in Athens’ direct democracy.

19.       In classical Athens, the lawcourts and the tragic theater offered similar public contexts for representing and judging transgressive actions. Both types of performance concerned the dangerous subject of unsanctioned behavior, and both presented that subject through recognized formal conventions, evoking criminal actions in an acceptably selective and indirect way.

            This paper explores the constraints found in both institutions on the presentation of women’s sexual desire through a comparison of two well-known works of Athenian literature: “Lysias I,” delivered by a man on trial for the murder of his wife’s lover; and Euripides’ Hippolytus, in which the plot is driven by the adulterous desire of its heroine, Phaedra, for her stepson. In Lysias 1, the speaker presents his story as one of rivalry between himself and his wife’s lover, reconstructing the past as a contest between two male actors that anticipates the trial itself. His wife’s troublesome desire is unacknowledged, and her behavior is treated as the consequence of her corruption by his rival. In the Hippolytus, Euripides reflects critically on the inadmissibility of female desire, depicting it within the play and exposing it as useless to bring about truth or the just resolution of conflict. In an episode modeled on a trial, Hippolytus, falsely charged with raping Phaedra, is prevented by an oath from mentioning her desire for him; as a consequence, he is punished with death at the hands of his father, Phaedra’s husband Theseus.

20.       The legal history of North America is interwoven with the relations between the Aboriginal peoples and the European colonizers.  From the time the British and French first established settlements, disputes over sovereignty and land have troubled these relations.  This continues to be so today, in both Canada and the United States.  In Canada, however, the courts have only recently begun to grapple with these issues.  The catalyst for much of this litigation has been the Constitution Act, 1982, which recognized and affirmed the existing Aboriginal and treaty rights of the Aboriginal peoples.  As these rights are based on their historical occupation of Canada and the agreements they entered into with non-Aboriginal governments, the legal significance of that occupation and those agreements is a matter of vital, present-day concern.

            The three papers that make up this panel all focus on the matter of sovereignty or self-government (as it is commonly known in domestic Canadian law).  A unifying theme in the papers is the Aboriginal peoples’ struggle to maintain their autonomy in their relations with non-Aboriginal governments, despite the obstacles they have encountered in doing so.

            Darlene Johnston looks at the relations between her Algonquian ancestors and the French in the 17th century for evidence of Algonquian totemic identity and governance structures that can be utilized to prove a right of self-government.  Her work reveals how the legal traditions of Aboriginal communities can be accessed through colonial archives and missionary linguistic materials to support current assertions of this right.

            Kent McNeil deals with federal legislative intrusion into Aboriginal governance by the 1876 Indian Act and the imposition of the band council system of government, which has remained in place ever since.  He argues that the constitutional recognition of Aboriginal and treaty rights in 1982 includes a right of self-government that takes precedence over the legislated band council system.  As a result, Aboriginal nations that have been subjected to that system have the constitutional means to replace it with their own forms of government.

            Michael Posluns also deals with self-government, this time from the vantage point of federal policy.  He shows that, while the thrust of that policy since Confederation in 1867 has been to undermine Aboriginal self-government, Parliamentary committees have generally taken a more supportive position.  This support, Posluns contends, has had a positive influence on the development of the law in relation to Aboriginal rights, in particular the right of self-government.

            The three papers, while dealing with the relations between the Aboriginal peoples and non-Aboriginal governments in different historical contexts, are thus brought together by the common theme of self-government.  Moreover, they all relate to and derive their current significance from the constitutional recognition of Aboriginal and treaty rights in 1982.  It is that event that has enabled Aboriginal peoples in Canada to assert that they have a constitutional right of self-government in face of the continuing reluctance of the Canadian government to take the matter seriously.

21.       In defining aboriginal rights under Section 35(1) of the Constitution Act, 1982, the Supreme Court of Canada has insisted that aboriginal claimants demonstrate continuity with “pre-contact” peoples and practices.  The Supreme Court has yet to decide whether s.35 protection extends to the right of self-government.  It is clear, however, that any self-governing institutions for which constitutional protection is sought will have to satisfy the “integral to the distinctive culture of the claiming community prior to contact with European societies test” articulated by the Supreme Court in its 1996 decision, R. v. Van der Peet.  For societies whose traditions were transmitted orally and using non-alphabetic writing systems, the burden of proving which aspects of governance were distinctively aboriginal and integral prior to contact poses serious methodological challenges. 

           As a legally-trained aboriginal historian, I consider the 17th century Algonquian-French dictionaries as truly primary sources for reconstructing my ancestors’ worldview. Embedded in the earliest recorded grammars and lexicons are the traditions, institutions, practices and self-understandings of their world.  This paper will to demonstrate the extent to which language and oral tradition, as recorded in colonial archives and missionary linguistics materials, can be utilized to produce a full-bodied, internally-consistent and coherent account of Algonquian totemic identity and governance structures.


22.       Canada’s 1867 Constitution assigned legislative authority over “Indians, and Lands reserved for the Indians”, to the federal government.  Parliament exercised this authority in 1876 by enacting the Indian Act.  This Act imposed a band council system of government on First Nations.  Although traditional forms of Aboriginal government were not abolished, there can be little doubt that the capacity of Aboriginal governments was impaired and the inherent right of self-government of at least some First Nations was infringed.  Prior to 1982, the authority of Parliament to do this was not questioned by Canadian courts.

            In 1982, the Canadian Charter of Rights and Freedoms and an amending formula were added to the Constitution.  In addition, for the first time the Aboriginal and treaty rights of the Aboriginal peoples of Canada were constitutionally recognized and affirmed.  From then on, the federal government has had to justify any infringement of those rights by proof of a valid legislative objective and respect for its fiduciary obligations to the Aboriginal peoples.

            This paper will show how the Indian Act has infringed the inherent right of self-government of Aboriginal peoples in Canada.  It will then assess the impact of constitutional recognition and affirmation of Aboriginal and treaty rights in 1982.  It will conclude that, since 1982, First Nations who are able to establish their inherent right of self-government can challenge the imposition of the Act’s band council provisions on them because those provisions unjustifiably infringe that right.

23.       From an indigenous perspective, Canadian Government-First Nations relationship has been characterized by a struggle to re-build and gain Canadian recognition for the institutions of First Nations government. This same viewpoint holds that a central goal of government policy since Confederation has been to undermine autonomy.  One major instrument of this undermining has been a longstanding policy of denying the very existence of First Nations governmental institutions, including the institutions of law as well as those of policy-making and administration.

            This history can be traced in the twentieth century through the proceedings of a series of parliamentary committee proceedings.  Beginning with the Joint Committee on Indian Affairs established of 1947, committee proceedings also become a source for the struggle for recognition.

            From 1970 to1985 the Commons Committee on Indian Affairs and periodic subcommittees became a significant ally of the emerging Indian First Nations political organizations.  At the same time that the Supreme Court began to lend credibility to Aboriginal rights, Commons Committee hearings became a venue in which First Nations aspirations were articulated in public.  

            The alliance between First Nations leaders and parliamentarians resulted in the Committee becoming a site for the continuing struggle between the legislative and executive branches.  This paper will review the history of these committees and consider their influence on the course of Indian policy and Indian law in Canada.

24.       This panel examines the crucial role of the philosophy of localism in 20th century American history.  The belief that small communities are best equipped to solve societal problems and that centralized control is both inefficient and immoral has been a long-held belief among many American policy-makers.  The philosophy of localism has continued to carry great weight despite the dramatic increase in population in America and the growing complexity of American society.  The papers in this panel assess the role of localist philosophy in two periods of American history, the inter-war years, and the 1960s and 1970s.  Panelists Richard Schragger and Wendell Pritchett have both devoted great attention to the role of localist philosophy in shaping American law and society.   Schragger’s article, The Limits of Localism, 100 Mich. L. Rev. 371 (2001), carefully examines the problems inherent in the philosophy.   Commentors Dirk Hartog and David Barron have also written extensively on the philosophy of localism.  Hartog’s Public Property and Private Power: The Corporation of the City of New York in American Law, 1730 to 1870 (1983), is required reading for all students of legal history and local government.  David Barron’s A Localist Critique of the New Federalism, 51 Duke L. J. 377  (2001) presents a detailed analysis of the contradictions in localist philosophy.  The participants in this panel hope to continue what has become a vibrant debate in this very important area of the law by examining the history of localism in America.

25.       The federal government’s role in urban policy increased dramatically during the 1940s and 50s, encompassing everything from the financing of poor and middle-class housing to the creation of a national transportation network.   Despite the fact that they continued to demand “local control,” states and municipalities increasingly lobbied for federal support for urban infrastructure and services.  This paper will trace the political and legal debates over the expanding federal role in urban policy during the 1960s and 1970s, focusing on the debates over the creation of the Department of Housing and Urban Development in the 1960s and the President Nixon’s “New Federalism” initiatives in the early 1970s.  In both of these cases, policy makers debated the correct relationship between federal, state and local governments in crafting urban policy.   Courts in these years also struggled with questions of federalism, oscillating between respect for local prerogatives and requirements that local government meet national standards.  Through an examination of the legal and political debates over urban policy, this paper will illuminate the broader tensions facing the philosophy of federalism in modern America.

26.       The 1920’s and 1930’s witnessed a flurry of legislative, political, and social  activity addressing the threat large retail chain stores posed to the survival of small, local businesses and the small, local businessman.  The anti-chain store movement, which was precipitated by the explosive growth of chain store retailers in the United States during this period, emerged as a leading cause of progressive reformers-including Louis Brandeis-and then just as quickly faded away.  This paper will place the anti-chain store movement in the context of the political economy of local government.  On this account, local governments themselves were sites for the rapid societal shifts that are sometimes attributed to more nationalizing trends.  The paper will trace the history of the chain store movement, and the legal reforms involved, through the lens of the rhetoric of localism that permeated the debate.  It will then connect this history to contemporary movements that assert local commercial prerogatives in the face of nationalizing or globalizing corporate forces.

27.       This panel offers two papers looking at legal efforts to combat racial violence.  William Carrigan examines state and local efforts to prosecute lynchers in Texas.  Carrigan points out that most scholars interested in opposition to lynching have focused on national movements to change local public opinion. Carrigan’s paper will look at how state judges, attorneys, and activists used the legal system to end violence in central Texas after 1896.

            Christopher Waldrep uses newly released Justice Department records to understand how and why the federal government used Reconstruction-era Enforcement Acts to combat lynching after 1939.  Waldrep argues that Justice Department lawyers manipulated precedent, especially the state action doctrine, to negotiate new meanings for old precedents.  His paper will use internal documents to explore why they did that.

            These two papers will engage the most current debates over constitutionalism and civil rights.  How did understandings of law and precedent limit or encourage institutional responses to racial violence?  To what extent did global concerns drive lawyers toward new meanings for old laws?  Did African-Americans’ understanding of law and precedent influence the institutional opposition to mob law?

28.       This paper will examine how judges, attorneys, and activists used the legal system to combat lynching and racial discrimination in turn-of-the-century central Texas. In 1896, the courts indicted members of a white mob that executed an African American farm worker.  Local attorneys also protested against the all-white juries of central Texas and forced the courts to include blacks as jurors.  A black man served on the jury that debated the fate of Will King, an African American who was threatened with lynching for killing a white police officer.  The impact of these legal actions was significant.  Between 1897 and 1905, there is no evidence of an act of mob violence in central Texas.  In the previous thirty years, mobs had executed over 60 individuals in the region.

            In challenging the region’s culture of violence, central Texas reformers were encouraged by actions of the Texas Legislature which passed an anti-lynching law in 1897.  White public opinion did not support this law, and it was not revised after being ruled unconstitutional by the Texas State Supreme Court in 1899.  The effort to reform the central Texas legal system also collapsed when vigilantes executed a black man named Sank Majors.  They lynched Majors only after his attorneys indicated that they were going to appeal his conviction for murder.

            Historians have written much about the fight against lynching.  Most, however, have focused on national movements such as the one led by the National Association for the Advancement of Colored People and the Association of Southern Women for the Prevention of Lynching.  These movements are better studied and remembered not because they achieved their immediate goals – such as the passage of a national anti-lynching bill – but because they helped turn the tide of public opinion against lynching.  Yet, it is possible to argue that local and state movements were at least as important in opposing lynching.  This paper focuses on a short period of surprising conflict over mob violence in Texas, one of the nation’s most lynch-prone states.  The paper relies principally upon local newspapers and court records from McLennan County, especially the case files for State of Texas vs. Will King and State of Texas vs. Sank Majors.

29.       My paper will be based on Department of Justice (DOJ) case files now being transferred to the National Archives.  These files contain unexpurgated FBI files, as well as the internal communication among DOJ lawyers. Journalists and some scholars have begun to use these files, but mostly in a piecemeal fashion, to gain insights into particular cases.  (See, most recently, Laura Wexler, Fire in a Canebrake: The Last Mass Lynching in America [NY, 2003].)  My goal is to construct an overview of Justice Department efforts to prosecute lynchers.  Until these materials are integrated into our understanding of the civil rights movement, its true history cannot be told.

            My paper will use these newly opened files to examine the Justice Department’s evolving understanding of the Reconstruction-era Enforcement Acts and the Cruikshank v. United States, 92 U.S. 542 (1876), and United States v. Harris, 106 U.S. 629 (1883), precedents.  In these old cases, the Supreme Court held that  Congress could protect certain rights only from state action, not the misconduct of individuals.  The meaning of state action remained controversial: could a law enforcement officer violating state law be said to have committed a state action?  For decades the Justice Department insisted that the state action doctrine articulated in these cases prevented it from prosecuting lynchers.  Department lawyers developed a form letter they routinely used to fend off  an increasingly agitated public demanding action against mob law. 

Abruptly, in 1939, the department decided that the Enforcement Acts could be used to prosecute lynchers after all.  My essay will trace the department’s use of  the law to legitimize its change in attitude.

30.       The three papers assembled for this panel explore the intersections of three critical and interrelated phenomena in early American law: regional variations in legal cultures, patterns of commercial regulation, and the growing intensity of imperial supervision.  Each of these is both a subject in its own right and a context for the other two.  Different systems of trade and credit fostered diverse legal cultures in the principal colonial regions.  Imperial oversight by the Privy Council allowed some forms of regional variation, while precluding others.  These dissimilar regional legal cultures in turn complicated trans-Atlantic commercial ventures and imperial governance.  Local diversity added another layer of cost and complexity to economic and governmental systems stretching across the Atlantic and bedeviled by slow and fallible communications. 

            This panel will assess the strengths and weaknesses of existing scholarship on our three subjects considered individually (regional variation in legal culture, law and commerce, and imperial governance).  And it will explore what can be learned about each one when considered, in a sustained fashion, in the light of the other two.

31.       The “English” origins of American law are a given – a conventional description more often invoked than examined.  It is emblematic of Early American law in that it posits a quality alien to our present legal system, one away from which American law moved decisively and sharply in the years after 1776.  The result, regrettably, is that Early American law seems to have little explanatory presence in the history of American law more broadly.  It is usually only after 1776 – and certainly after 1789 – that the history of American law seems to have interpretive authority, both in the courtroom and the classroom.

            This insulation is not only incorrect historically but is also harmful to a proper understanding of one of the most powerful agents of historical change in American law, a force operating today no less than it did hundreds of years ago.  That force is regionalism – the regional variations of cultural impulses and external conditions that have produced fifty-one separate legal systems on the state level, a dozen different bodies of law among the federal circuits, and sometimes fierce conflict between national and state law.

            Such variation is endemic in a system based on the common law, a protean system of unwritten law shaped by circumstance, custom, and judicial interpretation.  Colonial law, according to one active in its practice in the early eighteenth century, was “a strange sort of Proteus capable of putting on all shapes and figures as occasion requires.”  From England, an exasperated official noted “that throughout the whole continent of North America, there are not two colonies, where the courts of justice or the methods of proceedings are alike….”  Many factors operated to make this so.  It is the purpose of this chapter to identify and explain those specific factors, and to generate a more general theory of legal variation.

            That theory of legal variation must include the question of colonial divergence from the common law, but must not begin with it.  Despite our legacy of the “common law,” the term is misleading: at the beginning of the seventeenth century Sir Edward Coke could list more than one hundred different courts in the realm, ranging from merchants’ courts to ecclesiastical courts to equity courts to manorial courts.  Even the common law acknowledged local variation within the realm, and the reach of the central common law courts from Westminster varied according to local forces and practices.  

            This paper does not deny the conventional truism that regional legal variation reflected regional economic and social variation.  But it does seek to move beyond it and argue that colonial law and practice must not be viewed merely as simplification under pressure, or as crude and inexpert attempts at mimicry.  The great variety of English law and institutions – common law, equity, civilian, ecclesiastical, and manorial, to name but a few — provided an extensive range of remedies and modes of relief that suited the needs of colonization, and colonial legal records reveal a careful and selective appropriation and adaptation from English models.  These practices were not “borrowings” because they were not seen as temporary or ephemeral.  Rather, the colonists regarded them as their own legacy, to which they were entitled by the constitution of Britain.  This conception of legal legacy, however, did not always meet with acceptance in England, and any examination of colonial divergence from English law must examine, too, the interaction of colonial law and imperial legal oversight, especially as exercised by the Privy Council.  That supervision forms another dimension of this paper, as the Privy Council selectively tolerated some divergence while rejecting other efforts.

32.       Legal scholarship on international commerce in British America has primarily emphasized the mercantilist features of British regulation and, in particular, the tensions created by the enforcement of the Navigation Acts and Stamp Act in the years immediately preceding the Revolutionary War.  Claire Priest’s paper examines the relationship of law and commerce in the colonial and early American periods from a different perspective by emphasizing three principal issues.  First, the paper establishes a framework for thinking about colonial economic development as a direct consequence of the transplantation of formal and informal legal institutions.  Both financial investment in the colonies and immigration to the colonies were entirely dependent upon law.  Indeed, most immigrants to the colonies arrived already tightly bound by some form of legal obligation (many as debtors: 50% to 66% of white males immigrating to the colonies between 1630 and 1776 came voluntarily under indentured servitude contracts).  These debt obligations presupposed the existence of institutions that would enforce them.  The development of commerce and the development of legal institutions therefore were intimately connected.  Second, the paper examines the structure of trade and credit in four principal colonial regions-the Northeast, the Chesapeake, the lower South, and the Caribbean-and emphasizes the ways in which courts and legislatures promoted (or hindered) commerce through debt enforcement and currency regulation.  Third, the paper examines the enforcement of the Navigation Acts through the lens of inter-colony taxation and discrimination, which the Framers of the United States Constitution viewed as the central problem to be remedied by the Commerce Clause.  More generally, the paper examines the ways in which the founding generation restructured commercial law after successfully freeing the economy from former imperial controls.

33.       In what ways did the forms and practices of communications in the seventeenth- and eighteenth-century Anglo-American world affect imperial governance in America?  Both the “imperial school” of early American history and legal historians attentive to anglicization share a common perspective.  They treat slow and fallible communications across the Atlantic as an impediment to effective oversight by the English government of the seventeenth-century colonial legal systems.  Poor communications encouraged the autonomy and power of local legal elites at the expense of their nominal superiors.  Operating largely beyond the effective supervision of the royal court and common law machinery, colonists set up legal systems that were hostile to technicalities, broadly participatory, reliant on custom and colonial statutes over common law rules and Parliamentary Acts, and responsive to local as against imperial concerns.

            In different ways, the historiography on imperial governance and on anglicization explains movement away from this initial seventeenth-century starting point.  Though they did not explicitly put it in these terms, the imperial school identified ways that the English government found of overcoming obstacles of communication.  First, by establishing colonial vice-admiralty courts, sending over resident customs inspectors, and appointing learned lawyers as chief justices of colonial appellate tribunals, the government projected effective authority across distance.  Second, the welter of boards and commissions that imperial historians so carefully reconstructed acted as repositories and clearinghouses of information about colonial legal affairs.  Third, English imperial institutions employed coercion and incentives to collect information. 

            The literature on eighteenth-century anglicization also presupposes a variety of new developments in communications practices.  First, to the extent that the movement of people is a form of (or precondition for) communication, deeper knowledge of the common law followed the new sorts of folks increasingly coming to eighteenth-century America: lawyers immigrating from England, judges on assignment to the colonial benches, and legally-literate Governors, commissioners, and customs inspectors.  Importation and reprinting of English legal literature was a second critical factor.  In addition, the eighteenth century saw a more rapid and extensive circulation of popular works that connected English law to colonial concerns: pamphlets on piracy; execution sermons; religious texts on the obligations of conscience; and controversial pamphlets.  A reorganized imperial postal service and indigenous colonial newspapers helped disseminated these materials, aided by a faster and less seasonal trade network.  This variety of changes in communications practices helped close the intellectual distance that had insulated the localism and variegation of the seventeenth-century colonial legal systems.

            The ambition of the first part of my paper is not to tell again the stories of anglicization and the growth of imperial oversight-that has been done often and well.  Rather, I want to bring out the importance of communications practices, a matter of making manifest what has been latent, or moving developments from the background to the foreground.  The second part of the paper will take a different approach.  It will move away from thinking about communications as an impediment slowly mitigated.  It will ask whether new vantage points on the problem of communications in early American can enrich and revise received historiography on imperial governance.  Here are two tentative suggestions:

            (1) Nodal Points and Brokers: Several recent studies of colonial politics and intellectual life have tried to reconstruct the brokers or nodal points for communications.  To the extent that historians of imperial governance have done this work, their approach parallels that of the English historian G. R. Elton, who searched for “points of contact” between the governing center and a series of peripheries.  While this is a valuable approach, one could also investigate how the peculiarities of disseminating information about law in colonial America created challenges and opportunities for imperial governance.  The pathways of information exchange between London and a provincial English city were denser, faster, more variegated, harder to predict, and harder to control than the pathways between London and an American colony.  In comparison to an English city, relatively few officials and gentry acted as nodal points for information exchange.  The relative paucity of brokers of trans-Atlantic legal information had several important effects: it increased the political and cultural importance of brokers; it raised the temptation of brokers to warp or suppress unpalatable information; and it made it possible for groups to feign ignorance of metropolitan developments as a legal and political strategy.  Different processes of information exchange contributed to different legal cultures.

            (2) Communications Channel Lawmaking and Disputing: Different forms of making law and resolving disputes do not communicate in the same way.  Colonists sometimes chose institutions to make rules or end disputes in the hope of shielding their doings from imperial authorities, or else gaining London’s attention.  Private arbitration, for example, informed smaller, more discrete audiences of the outcome of disputes than did adjudication in open court.  Making rules through legislation invited the risk of imperial review and disallowance of statutes.  By contrast, “finding” rules in judicial practice and local custom exposed colonists to a smaller risk of imperial reversal.  Few colonial judicial decisions were appealed to the Privy Council, while most eighteenth-century colonial statutes faced imperial scrutiny.  Colonists were aware of these differences and planned accordingly.  John Winthrop, for example, wished to have marriages conducted by magistrates, not ministers.  But he counseled against passing a law to this end.  Instead, he advised New Englanders to allow the practice to arise by custom, thereby drawing no attention from the Crown or bishops.

            Decisions about whether to shield or advertise legal affairs are but one way in which concerns about communication channeled lawmaking and disputing.  Colonists and imperial administrators selected strategies aimed at (a) communicating knowledge about law to specific target audiences, or (b) disseminating knowledge through trusted conduits, or (c) presenting knowledge in favorable ways.

34.       This paper examines the legal-historical significance of the “Campden Wonder,” an English case from the 1660s involving the conviction and execution of a mother and two sons for the alleged murder of a Gloucestershire rent collector, William Harrison.  Eighteen months after one of the sons’ confessions secured the family’s demise, Harrison returned to England, claiming to have been abducted by highwaymen and sold into slavery in Turkey.  This early case of wrongful conviction figures prominently in the writings of Matthew Hale and other early commentators on evidentiary safeguards in murder trials.

35.       This paper discusses the controversies surrounding the scope and subject matter of cross-examination in the late-Victorian period.  Through these controversies, the Victorian bar managed to expand its power at the expense of the bench.  At the same time, cross-examination came to be identified as the primary means of ensuring veracity in the common law trial, as well as the defining professional “art” of the bar.

36.       Professor Mnookin has been invited to participate on the panel and has expressed preliminary interest in presenting a paper discussing (1) the intellectual history of Anglo-American evidence treatises or (2) a case study of a sensational trial involving disputed issues of fact.

37.       This panel will analyze how law has functioned as both an agent and a constitutive element of imperial and colonial projects in different historical and geographic contexts.  Specifically, it will suggest that the inauguration of a legal system always implies a kind of “civilizing mission” for the properly constituted legal subjects of that system:  at the foundation of a  legal order lies the establishment of the authentic legal subjects of that order.  The establishment of a modern liberal legal subject is inevitably accompanied by the projection of  residual categories of subjectivity.  In contrast to proper legal subjects who are defined by their abstract formal equality, the others of modern law tend to be viewed as deeply constituted by their “culture” which in turn disqualifies them as law’s subjects. 

            The papers on this panel will analyze the construction of different kinds of legal subjects, and their implicit civilizing missions, in the context of civil “public” law regulating the economy in colonial India, and its negotiation with “private” personal law meant to preserve indigenous culture;  international law as a colonizing regime in establishing a system of Western privileges of extraterritoriality in nineteenth-century China; and the historic American exclusion of Chinese immigrants.  The papers will argue that in each of the three exemplary cases the idea, and ideology, of law have served to produce a non-legal other that is not (fully) assimilable into a modern liberal regime of law, at least not until it has been sufficiently tutored in the ways of legal civilization.  First, in the case colonial India, a novel legal regime standardizing free market practice posited a distinction between an official, contractually-organized economy regulated by civil law governing “the public” and the supposedly illegitimate, sometimes criminal, customary arena of indigenous kinship-based capitalism, which fell under “private” Hindu/Muslim personal law regulating religio-cultural  practice.  Second, the West’s establishment of semi-colonial extraterritorial privileges in nineteenth-century China was justified by the “barbaric” nature of Chinese law, which was deemed disqualify China from full membership in the “Family of Nations,” or Euro-American international society consisting of states with “civilized” legal orders.  Third, in a similar fashion the exclusion of Chinese immigrants in the United States was premised on the notion that these immigrants’ “culture” made them incapable of comprehending and properly exercising the rights of American citizenship.  In each of these cases, the establishment of a properly constituted colonial/international/national legal subject has served to produce, maintain, and discipline also a logically necessary supplementary subject of culture which the law nevertheless views as incommensurable with itself:  “natives” to be governed by an indigenous system of custom in the case of colonial India, a  less-than-sovereign state outside the Family of Nations in the case of nineteenth-century China, and an unassimilable Chinese alien in the establishment of criteria for American citizenship. 

            The main analytic lens of the panel will be postcolonial theory.  More specifically, the panel’s vision of a postcolonial approach to legal history is that of moving beyond the positing of cultural difference as a problem for the law, to a study of the ways in which law constructs a politics of culture.  Other methodological and substantive goals of the panel include expanding the focus of American legal historians to issues of “non-Western” law and international law as well as emphasizing the necessity of comparative analyses in arriving at general conclusions about legal theory.

38.       Studies of Indian colonial law have emphasized the tensions implicit in the Anglo-Indian legal regime, one in which a British system of civil and criminal law was established alongside selectively constructed Hindu and Muslim “personal laws” that “preserved,” invented, and regulated indigenous culture.

            This paper examines these tensions in an uncharted space of South Asian legal history, that is, the standardization of market practice in service of “general public utility.”  As such, it is concerned with the relationship between law and colonial governmentality, that is, the relationship between juridico-legal sovereignty, emerging notions of citizenship and the disciplinary regimes of capitalist development.  The broader project from which this paper draws demonstrates that beginning in the late 19th century, a barrage of new legislation produced “the economy” as a cognitive reality, establishing rules for proper economic practice.  Indeed, the institutionalization of “the economy” as an object of sovereign management produced its constituency, a “public” of subjects, and in nationalist visions, a “public” of citizens-to-be. 

            Yet despite this modernizing conviction, these new commercial and financial regulations were rendered specifically inapplicable to indigenous capitalist firms. These groups, whose kinship-based activities were crucial for the functioning of the colonial economy, were to be regulated by personal law governing the “private” realm of family and religio-cultural practice.  Indigenous merchant-capitalists were posited legally not as economic agents, but subjects of culture.  Highlighting the making of indigenous capitalism as a “problem” for new market legislation, this paper elaborates the production of a proper legal subject and member of the “public,” engaged in rational, contractual operations, alongside the reproduction of a subject of culture, engaged in illegitimate and irrational economic activities, and constrained by ancient cultural codes.

39.       This paper analyzes the historic extension of  (Western) international law as a cultural and epistemological project seeking to turn the entire globe into a juridical formation consisting of nation-states.  It re-interprets the Sino-centric world order that governed much of East Asia as a  kind of “international law”:  namely, a system of hierarchically organized tributary ritual that regulated China’s relations with the surrounding states.   Viewed from this perspective, China’s nineteenth-century encounter with (Western) international law becomes visible as a collision between two different political and symbolic economies:  a Western regime of free trade under international law, on the one hand, and China’s traditional system of ritual.  

            The West’s efforts at inducting China into the “Family of Nations”-while denying it the full privileges of “sovereignty”-were motivated by China’s refusal to trade with the West.  This refusal led to a war and a series of “Unequal Treaties,” which provided, among other things, for the privilege of “extraterritoriality” for Westerners in China, on grounds that Chinese law was too “barbaric” to govern “civilized” Europeans and Americans.   The United States entered into its “Unequal Treaty” with China in 1842.  Under that treaty, in 1906 the United States created the U.S. Court for China, an American district court that operated in Shanghai from 1906 to 1943, with jurisdiction over American citizens sojourning in the “District of China,” and under the appellate jurisdiction of the Ninth Judicial Circuit in San Francisco.  The law applied by the court consisted of an extraordinary mix of general federal legislation, English common law as it had existed at the time of American independence, and the municipal code of the District of Columbia, to name only a few of the court’s sources of law.   Its bizarre jurisprudence aside, the court’s work was justified in part by its putative status as a “model” for Chinese law reform.

40.       This paper will foreground the relationship of law, culture and governmentality in examining a specific legal history, that of shifts in the relationship between citizenship, marriage, race, and property in the early 20th century United States.  The purpose of the project is not only to discuss this neglected history, but to interrogate the occlusions that appear in both dominant and oppositional narratives of history.  

            By citizenship here, I mean the formal legal citizenship obtainable in the U.S. through birth or naturalization, that differentiates the citizen from the alien.  The dominant representation of this citizenship centers the white male property-owning subject, and fails to consider either the way marriage intersected with citizenship, or of racial bars to citizenship.  In considering the imposition and lifting of racial and gender bars, the paper will address the way in which law has constructed citizenship and culture as oxymoronic so that normative considerations patrolled the borders of who was considered fit for membership.

            The paper will mine the relationship between different kinds of citizenship. Specifically, formal legal citizenship has historically borne a complex and circular relationship to the rights one enjoys through citizenship, to the idea of civic republicanism, and to the national imaginary (who one imagines as a fellow citizen or as an alien).  The paper will examine how in each of these different notions of citizenship culture constituted a supplement or an antithesis to the purportedly universal citizen.

41.       From the first colonial settlements, abundant opportunities to acquire land and other forms of property have been central to America’s identity as a society of equal opportunity and unprecedented liberty.  But the nature of property ownership and who was “equal” enough to share in this opportunity were subjects of considerable debate during and after the Revolution.  As Americans negotiated the terms of property ownership in their republics, the new nation’s courtrooms, assembly floors, law classrooms, and legal treatises became forums for frequent discussions about property rights.  Each of the papers in this panel proposal considers an important part of the negotiations behind defining the United States’ distinctive bodies of property law.

            Ms. Blanck explores how Revolutionary-era courts reconciled the tension between calls for liberty and retention of their human property in Massachusetts, South Carolina, and Virginia freedom suits.  Professor Curtis then considers the critical transition from the feudal language contained in colonial Virginia’s real property laws to a more republican form of land distribution by examining early national Virginians’ historical interpretations of land ownership.  Professor Pearson examines legal scholars’ justifications for appropriation of Native American territory through the legal concept of improvement and social designs for “civilizing” the American landscape and its peoples.   

            The panel chair and commentator, Gregory Alexander, is a respected expert in the history of American property law.  He is a scholar of American family property law, and he has conducted comparative research in American and European theories of property as a fundamental right.  His publications include Commodity & Propriety: Competing Visions of Property in American Legal Thought 1776-1970.  With Professor Alexander’s breadth of experience in the intellectual and legal history of property, this panel should provoke a rich discussion.

42.       In 1765, Chief Justice of the Massachusetts Superior Court, Peter Oliver, presided over the freedom suit, Slew v. Whipple.  After defense lawyer Jerimiah Gridley asserted that the highest law was that which protected property, John Adams recorded that Oliver retorted, “This is a Contest between Liberty and Property — both of great Consequence, but Liberty of most importance of the two.”  Oliver’s position was one that few men in the late Eighteenth Century would have taken, because John Locke’s view that liberty rested upon the ownership of property prevailed. 


This tension of liberty and property stood at the heart of freedom suits.  Slaves sued owners for both holding an illegal form of property and taking away a person’s liberty illegally.  Moreover, these cases highlight moments when the law of a state or colony could impinge upon the right of an owner to his or her slave property.  Since slave owners controlled many state and colonial governments, this infringement affected lawmaking.


This contest vexed the American Revolutionaries constantly as they tried to write law for their new states and the new nation. Their rhetoric called for liberty, but their wealth frequently depended upon slave property.  This paper will examine freedom suits and abolition in Revolutionary Massachusetts, South Carolina, and Virginia in order to understand this contest more deeply.   To varying degrees and in different ways, all three states respected liberty as an important value, even liberty as it extended to slaves.  But the legislatures of all three states refused to press the significance of liberty to the point of ending slavery in their states.  The freedom suits that flourished in Massachusetts and Virginia during this era created a counter-narrative to the legislative decisions.  And, in the end, the success of these freedom suits depended upon the value placed on slave property in each state.

43.       This paper examines the historical thought of revolutionary era Virginians concerning the nature of their land titles. Specifically, it investigates how the dialectic between feudal and allodial conceptions of real property informed their legal understanding of land ownership and facilitated the formation of a republican commonwealth. It argues that the American Revolution fundamentally altered the nature of landholding in Virginia. During their struggle for independence, Virginia’s legislators rejected colonial legal maxims that posited that all their lands were merely held in tenure and ultimately belonged to the sovereign. Instead, they established a republican polity on the basis of an allodial conception of land ownership. In considering the questions of the origins and nature of their real property, Virginians sought an answer in their history rather than through political theory. They accordingly entered into an existing historical dialogue, which had informed English legal discourse for the previous two centuries, about the immemorial nature of the common law and the introduction of feudal land tenures following the Norman Conquest. By considering the implementation of feudal tenures on English land laws as an act of usurpation by the crown Virginians reconciled their allodial vision of landholding with a historical interpretation of the common law that justified both their revolution and the establishment of a republican government.

44.       As participants in the break between England and its colonies, America’s first legal scholars were determined to communicate the Revolutionary mission to their pupils and readers.  They set a republican tone in their treatises and lectures with topics such as the egalitarian nature of landownership and inheritance, in which they constructed histories about the growth of the American colonies, the abundance of land, and the ease with which Americans could gain title to it.  At some point in their lectures regarding the transfer and acquisition of real property, however, legists had to contend with the presence of the “original lords of the soil,” Native Americans.  This paper examines their moral and common-law justifications for white settlers’ appropriation of Native American land in North America. 

            Early national legal scholars argued that, in order to maintain a legal claim to real property, one was obligated to “improve” it by taming, clearing, and enclosing the land.  But this concept of improvement was not simply a legal argument; it was also part of a plan to “civilize” the American landscape. Legists asserted that Native Americans could not be part of this moral landscape because they did not improve their territory and, therefore, they had no moral or legal claim to the land.  An improved landscape was tantamount to civilizing both the land and the people who inhabited it, while also justifying the domination of Native Americans and the appropriation of their lands.

45.       My paper explores the role that history, historical interpretation, and historians played in Brown v. Board of Education.  The timing of the 2003 ASLH annual meeting is particularly appropriate for an examination of this topic.  Exactly fifty years earlier, in the fall of 1953, the legal teams arguing the school desegregation cases were putting the final touches on their briefs for reargument.   In these briefs, they responded to the Supreme Court’s request from the previous spring that they reargue the case focusing on the original meaning of the Fourteenth Amendment.

            The Court’s reargument order led to a fascinating exercise in historical interpretation and legal advocacy.  The lawyers of the NAACP turned to several leading historians for help; the lawyers for the states confidently kept most of the research within their law firms; the lawyers for the Justice Department, who were filing an amicus brief in the case, also did their own research (although they came to different conclusions than the lawyers for the states); and Justice Felix Frankfurter had his clerk, Alexander Bickel, spend a summer examining the historical record.

            The final result of all this was, to say the least, anticlimactic.  In the Brown opinion, Earl Warren declared the results of the historical research “inconclusive.”  Yet the impact of the Court’s turn to history was far from negligible.  In addition to spawning a renewal of the debate in the legal academy regarding the role of history in the courts, the Court’s reargument order contributed to the rise of a new generation in the historiography of Reconstruction and the original meaning of the Fourteenth Amendment.  Not only did history play a role in the outcome of Brown, but the case played a role in the development of a new tradition of historical interpretation.

46.       In May 1961 two buses carrying activists working with the Congress Of Racial Equality (CORE) left Washington and embarked upon what would become one of the vital events in the Civil Rights Movement, the Freedom Rides. Although the rides exploded in the public consciousness with outbreaks of violence in Birmingham and Montgomery, they were in fact the culmination of a number of trends in American history. Legal challenges to Jim Crow on interstate transport and its facilities dated to the 1800s. A series of court cases throughout the 20th Century established the right of travelers to be able to ride, eat, and use other facilities as they saw fit irrespective of race. In 1947 CORE departed for a trip across the Upper South to test recent court decisions and to try to establish adherence to them. That trip, the Journey of Reconciliation, would serve as a model for the 1961 event that shocked the world. This paper explores the legal challenges to Jim Crow on interstate transport and the facilities that various modes of transport used from 1941 to the eve of the Freedom Rides. The series of court challenges that culminated in the Freedom Rides is a largely ignored aspect of the legacy of legal challenges to Jim Crow in the 20th century.

47.       With the 50th anniversary of Brown v. Board of Education approaching, I propose to develop an unexplored facet of the constitutional history of desegregation in public education in the 1950s.  Higher education cases at mid-century–in particular, Sweatt v. Painter–led the NAACP to redirect its strategy away from seeking to secure more of the “equal” in the old formula “separate but equal” and toward attacking segregation itself.  The strategic shift soon resulted in a landmark ruling in Brown against segregated schooling, at least at the elementary and secondary levels.  Though recognizing the connection between Sweatt and Brown, most studies of the aftermath of Brown pay no further attention to higher education.  Aside from a few instances of drama and violence (at the universities of Georgia, Mississippi, and Alabama in the early 1960s), historical research on the beginnings of desegregated higher education remains scant. 

            Tracing the beginnings of desegregation in higher education that took place between 1948 and 1964, my paper will emphasize two court cases that went to the Supreme Court soon after Brown I(1954) and Brown II (1955).  One of those dealt with black access to the University of Florida Law School; the Court declared that the idea in Brown II of gradual implementation of Brown I had no application to graduate professional schools; for such programs, Brown I sufficed.  The other–the core of my paper, Board of Trustees v. Frasier, 350 U.S. 979 (1956)–will develop the story of a case (virtually invisible in the literature) regarding the enrollment of black undergraduates at the University of North Carolina.  In Frasier, a lower federal court decided that the logic of Brown I applied to public education at the undergraduate level.  And the Supreme Court agreed.

48.       What happens when reality clashes with the law? How does the law deal with legal problems arising from complicated situations? Was legal status always clear-cut and unequivocal? This panel deals with these questions by presenting three case studies from the ancient world.

            The first two papers concern persons who move from the status of slavery to that of freedom, yet this move itself creates intricate and multifaceted legal complications and peculiarities. Various ways could lead to slavery: captivity in war or by pirates, failure to repay debts, and being of servile parentage. The status of slavery was unvarying: slaves had no legal personality, no private liberties and no social relations, and they were put under the total power of other persons. Yet hopes for freedom and ransom were always present and manumission of slaves was a common phenomenon in both Greece and Rome. Freedom, however, was not necessarily the total opposite of slavery. Not only were there differences in the status of manumitted slaves between Greece and Rome, but also different degrees of freedom within a given society. Between the two poles of slavery and freedom there extended a wide spectrum of varied shades of statuses. In ancient Rome, manumitted slaves were automatically granted full citizenship, although they were barred from public offices and their political power was curtailed. The stigma of servile origin was erased after several generations, the limitations lifted and the offspring of slaves became an integral part of society. In the Greek world, manumitted slaves became non-citizen residents and did not enjoy any political rights. While in Rome manumission was unequivocal, in Greece manumitted slaves could be proclaimed free and yet detained in servile condition. Thus, the legal status of free persons was not always compatible with their real condition.

            In this context, Dr. Rachel Feig Vishnia examines the legal status of Roman citizens who fell in enemy hands and were considered slaves while in captivity, upon their return home, and Dr. Rachel Zelnick -Abramovitz looks into the problem of the legal status of manumitted slaves remaining in servile conditions in the Greek world.

            The third case study concerns underage marriages of girl children in the Roman Empire. Whereas the minimum age for legitimate marriage was fixed at twelve, families often placed their girl children in a position of cohabiting with older prospective husbands from reasons concerning the overall well-being of the family. Discussions of such cases by Roman jurists reflect the tendency of the jurists to overlook the illegality of underage marriages and their reluctance to interfere with the interests of the families. In fact, the rights and well-being of the girl children were practically ignored. This fact sheds light upon Roman law’s perception of girl children. By analyzing evidence from legal and other sources Lauren Caldwell presents the important and intriguing question of the complex interaction of law and society and the circumstances in which girl children lived in the Roman Empire.

49.       The ancient sources provide ample information about the numbers of war captives that were enslaved by the Romans over centuries of warfare and occupation, but tell us little about the fate of Roman citizens that were captured by enemy forces.

            We draw most of our information about the position of Roman captives from various legal sources, whence we learn that Romans who fell into enemy hands, lost their citizenship and were considered to be slaves while in captivity. Upon their return, they recovered their full rights automatically by the virtue of law (ius postliminii).

            This peculiar situation raised multifaceted legal problems concerning the nature of actions taken during the captive’s absence. Marriage, for example, did not revive automatically, and the returning captive had to remarry his wife. Such situations, however, sometimes proved to be problematic since in many cases the prisoner of war was believed to have died in captivity and his wife had married someone else. Other problems touched upon the validity of wills (since the captive was in fact a slave without any rights), and succession on intestacy.

            The discrepancy between the paucity of information regarding Roman captives in the literary sources, and the detailed legal clauses and practices concerning the solution of the acute problems caused by their return, sheds intriguing light on the nature Roman society and its attitude towards its own prisoners of war.

50.       One of the commonest modes of manumission in the Greek world, known especially from the many detailed manumission acts of the oracular center in Delphi but also widespread in other places, was manumission under paramone. This was a binding clause in manumission documents, obliging the slaves to remain (paramenein) with their ex-owners (or one of their relatives) for a fixed period, usually until their ex-owners died. Sometimes the benefits of the paramone were transmitted after the ex-owners’ death, and thus prolonged, to another member of the ex-owners’ family. Moreover, a punitive clause is frequently found in paramone-acts, warning the manumitted slaves to obey their ex-owners and perform any job required of them. The same manumission documents, however, contained a declaration of the slaves’ freedom and emphasized their immunity and invulnerability towards any person, including the ex-owners’ heirs.

            The question of the legal status of slaves manumitted under paramone has been much disputed. The apparent discrepancy between the declaration of the slaves’ freedom and the continuing exploitation of them as slaves seems inconceivable to a modern mind. Most attempts to interpret this situation evaded what I argue to be the only logical conclusion, supported by evidence from other parts of the Greco-Roman world, that manumitted slaves under paramone were partly slave and partly free. Since the ancient Greeks did not distinguish between person and labor, manumitted slaves under paramone acquired the status of free persons by the act of manumission, yet the right over their labor was retained by the paramone-beneficiaries.

51.       Modern studies of Roman marriage are plentiful but largely neglect the subject of girl children who were placed in the position of cohabiting with their older prospective husbands.  The leading (deductio) of a girl under age twelve – the minimum age for marriage in Roman law – into a marriage-like situation was not unknown, however, as cases from the classical legal corpus illustrate.  Although they clearly state that twelve is the minimum age for females to enter a legitimate marriage (e.g. D.23.2.4), the jurists, when presented with cases of underage marriage, fail to remove girls from what we perceive to be potentially compromising situations.  This fact is of considerable importance for an examination of Roman law’s perception of children and childhood, which brings to light the larger issue of the complex interaction of law and society.  The jurists’ reluctance to get directly involved perhaps reflects the fact that child marriage had a firm basis in Roman society that was difficult for the law to dislodge.

            Cases in which the issue of age arises concentrate not on age itself but rather on other legal problems (e.g. D. that crop up when a marriage is not valid.  While the jurists do attempt to explain why a father might choose to marry his daughter off early, they effectively sidestep the issue of the illegality or consequences of underage marriage, merging the issue of the girl’s personal interests with the issue of the family’s overall well-being.  In the case of underage marriage, indeed, the jurists’ acknowledgment of the interests or rights of the girl child is almost nonexistent. 

            Recent scholarship has examined the phenomenon of young girls’ being represented as mature women or “little wives” on Roman funerary monuments  (Huskinson 1996).  Examinations of these artistic portrayals of girls have raised the issue of exactly how girl children were perceived and valued by their families.  Alongside these valuable analyses should be placed an investigation of Roman law’s treatment of child marriage – an issue which to this point has been overlooked in studies of ancient childhood and only barely addressed in studies of Roman law.  A reexamination of the legal sources, combined with other evidence, will lead us to a greater understanding of the circumstances in which girl children lived their lives in the Roman empire.

52.       On both sides of the Atlantic, in very different legal cultures, litigation offered opportunities for people to seek redress or assert claims of right in ways they could do nowhere else.  Women and men, in varying conditions of freedom or bondage, with competing social, economic, and political needs, acquired social power through the courts.  This panel examines litigation as both the means of settling personal disputes and as a means by which political and social claims might be asserted.  Patterns of litigation in different venues, changing rhetorical strategies on the part of litigants and their counsel, and varying practices used by judges and clerks suggest the creativity of litigants and the responsiveness of early modern courts.

            The papers proposed below examine these social and political aspects of litigation through a close study of the archives of the courts concerned: colonial Mexican courts, and in England, the Courts of Requests and King’s Bench.  As a group, these papers explore the surprising possibilities available to humble litigants through law as well as the consequences of litigation for those on both the winning and the losing end of disputes.  These papers also consider the ideas available in the wider culture and the practices of other institutions to place the work of these courts in perspective.  The Court of Requests might have been the “poor man’s court”—and the poor woman’s too—but its power to offer relief declined as its brand of equity came under assault.  Habeas may have been the writ of liberty, but it also undermined the authority of church and conciliar courts—which often gave succor to socially obscure litigants—as it freed people from jail.  The careful study of proceedings in these courts suggests the complexity of the consequences of litigation in the early modern world.

53.       This paper explores changing patterns in litigation fought between wives and husbands in the Court of Requests in the century between 1542 and the court’s demise in 1642. It identifies and attempts to explain the significant rise in the number of cases between 1590 and 1610 and the dramatic falling away of cases in subsequent decades. In doing so it contrasts the broad approach to equity taken by sixteenth century Masters (in particular Sir Julius Caesar) with the narrower and more formalized approach Masters adopted in the early seventeenth century. The court appears to have undergone a process of professionalization (well in advance of the reforms Nottingham initiated in Chancery in the 1690s), one that had significant implications for wives and husbands seeking equitable relief against their estranged spouses. At the same time that courts of equity were enlarging the possibilities open to some married women by recognising and enforcing ever more complex marriage settlements and trusts creating separate estates, they appear to have been diminishing the opportunities open to others. Husbands, too, found it harder to sue their wives, suggesting that judicial attitudes to coverture were hardening: courts were increasingly willing to allow “formal” exceptions to coverture, but increasingly unwilling to allow “informal” exceptions, a trend that arguably narrowed the classes of married women (and men) able to take advantage of the benefits offered by equity.

54.       Habeas corpus might better be known as the great writ of jurisdictions than “the Great Writ of Liberty.”  This paper explores the darker implications of the use of the writ by King’s Bench to put down other jurisdictions from the 16th to the 18th centuries.  Habeas was a crucial instrument in conflicts between King’s Bench and church courts and courts of equity.  These courts often ordered imprisonment to enforce performance of their judgments.  By ordering release on habeas, King’s Bench effectively undermined the meaning of such judgments and thus the authority of such courts themselves.  English legal history traditionally sees the victory of common law over equity as one of the central elements in law’s march to a libertarian future.  Recent scholarship on church and conciliar courts suggests that this story needs to be reconsidered: women in particular used these courts to great effect to pursue their own interests.  An analysis of hundreds of writs of habeas corpus confirms this picture and insists that the traditional meaning of common law’s victory must be reconceived.  Doing so highlights the fact that releasing someone imprisoned on the process of another tribunal damaged the interests in justice and liberty of other parties.  We must confront the question raised by habeas: whose liberty?

55.       This paper will be a preliminary exploration of amparos—writs of royal protection—that issued from the General Indian Court in colonial Mexico.  Drawing on a sample of 500 such writs, I will examine those in which Indians demanded “libertad”—liberty.  The circumstances of these cases varied dramatically, ranging from plaintiffs who decided they no longer wanted to work for a particular landowner, to those who sought release from an abusive employer, to those who felt they were being ill-used by a local Indian cacique. I will pay particular attention to the procedure, language, and fact sets of these cases in order to juxtapose them to the broader discourse on “liberty” found in royal edicts and legal treatises of the time.  I will conclude by considering the extent to which such cases can be understood as the recognition of a minimal human dignity shared by Mexico’s lowliest vassals and highest royal officers, a possibility enabled simultaneously by the principle of universality underlying Spanish justice, by court-appointed lawyers to the powerless, by a legal culture that led lawyers to be zealous on behalf of their clients, and by a sense of entitlement among Indians, wed to the savvy to make good on it.

56.       The purpose of this paper is twofold. First, it is designed to explore a forgotten episode of Israeli legal history: a host of cases litigated in the first decade of the State of Israel in which the Supreme Court reviewed the actions of state authorities against persons who in the period’s jargon were called “infiltrators.” The “infiltrators” were Arab inhabitants of Palestine who after becoming refugees in 1948 tried to cross the borders back into the territories that became the State of Israel. Although they composed a heterogeneous group and were driven by various motives and goals all such persons were subsumed in the period’s political and public discourse under the common category of “infiltrators” and labeled as a security threat. Israeli authorities employed different measures for dealing with the infiltrators, the chief among which was deportation. The paper surveys the body of case law on this issue and finds that the general pattern of the Supreme Court’s policy consisted in very mild and narrow limitations laid on the actions of the state authorities. The second purpose of the paper is to develop some more general insights based on this episode of Israeli legal history. On one level the case of the “infiltrators” is used to discuss the character of the early Israeli Supreme Court as a social institution whose members shared the ideology, concepts and discourse of other parts of society but also the values and consciousness of the semi-autonomous group of the legal elite. On a different level the judicial treatment of the infiltrators sheds some new light on the general theoretical thought about the rhetorical and psychological mechanisms employed by judges in situations of rulings that involve moral dissonance or harsh practical outcomes.

57.       The proposed paper explores the Israeli history of land expropriation jurisprudence. During the first three decades of the State of Israel, the Supreme Court adopted a general policy of judicial restraint in reviewing decisions to expropriate land. It declined to set limitations on the State’s power to confiscate land and constituted only weak protection of private property rights. In an attempt to explain the posture of judicial restraint, the paper examines the Court’s policy against the background of the Jewish-Arab conflict. It suggests that the ideology of “national security” which governed the practice of land expropriation in the Arab sector diffused into the laws and jurisprudence concerning expropriation in the Jewish sector. At its core the political ideology of “national security” demanded reallocation of Arab land to Jewish hands. However, the Court expanded the concept to include the goals of immigrant absorption and establishment of new Jewish settlements in highly populated Arab areas. The idea that a Jewish State can not be constituted without massive Jewish settlements “justified” also expropriation from Jewish owners who preferred not to build on their land. The paper thus explores the political interests that shaped the judicial policy of weak protection to private property rights and the contribution of the Supreme Court to the changing meaning of the concept of national security in Israel’s jurisprudence of land expropriation.

58.       The proposed paper examines the Israeli government’s use of law to institutionalize the dispossession of Palestinian Arabs displaced by the 1948 war and traces the legal transformation of their land during the formative years of Israel’s land regime (1948-1960). The paper adopts a critical and historical legal-geographical approach to Israel’s administration of Palestinian refugee land from the 1948 war, tracing its legal transformation and integration into Israel’s “national land” system. This legal transformation facilitated the expropriation and reallocation of formerly Arab land to primarily Jewish hands and was therefore a central component of the legal reordering of space within Israel after 1948. Based on close examination of Israeli legislation, archival documents, Knesset proceedings and other sources the paper delineates a 12-year legislative process consisting of four phases, each concluding with the enactment of major legislation. The result was the construction of a new Israeli legal geography. The process culminated in the integration of the appropriated Arabs lands into the country’s new system of Jewish-Israeli “national land” known as “Israel Lands.” Simultaneously, the presentation will examine the interpretation of these statutes by the Israeli Supreme Court and attempt to assess the role of the Court in shaping the new Israeli geography.

59.       This paper examines why the joint stock limited liability corporation had become the dominant form of enterprise in the UK by 1914. The paper reviews the leading historical and economic explanations for this development, and finds them wanting in terms of empirical validation. It then proposes a new explanation, based on the concept of ‘moral shirking’ by owners of capital. Two case studies of moral shirking in action are presented, and the paper then uses this concept to explain both the timing of the shift to joint stock limited liability corporate forms, and the failure of this organisational form to colonise professional occupations such as law, accountancy and medicine.

60.       This panel will explore the strengths and limitations of biographical method for legal history.  Building on two case studies in U.S. legal history, the session will raise larger questions about the relationship between individual lives and historical processes, and about the importance of particular advocates in campaigns for legal reform.  It will also raise questions of historical method and narrative strategy: How best can scholars tell the story of legal change over time?  What do we capture, and what do we obscure, when we choose individuals as windows onto the past?

            Before she came to the bench, Ruth Bader Ginsburg was a professor, legal scholar, and leading women’s rights advocate under ACLU auspices.  As a litigator, she was best know for the strategic acuity and mastery of equal protection analysis that emerged in her campaign to persuade the Court extend to victims of sex-based discrimination the same equal protection guaranteed to those subjected to race-based discrimination.  When she began in 1970, differential treatment of women was still assumed to be benign rather than invidious and justifiable under the rational basis test.  Ginsburg’s goal was strict scrutiny, which she came one vote short of achieving, settling instead for an intermediate standard.  Less well known was her intent to use equal protection as the doctrinal shield with which to guarantee abortion rights as well gender-neutral law – a hope dashed when Struck v. Secretary of Defense (1972) was settled out of court just prior to oral argument, leaving the field open to  privacy and Roe.

            TenBroek, a lawyer and professor whose career spanned the late 1930s through the 1960s, founded the National Federation of the Blind, the first national organization of the blind in the U.S.  He wrote widely on disability, on Japanese internment, and on the “dual system of family law.”  He claimed, for example, that legal standards of parental responsibility were completely different for welfare recipients than they were for the rest of the population.  Perhaps most importantly, tenBroek the activist-scholar developed an idea of discrimination that made the Fourteenth Amendment equally relevant to African-Americans, the disabled, and the poor. 

            Although both presenters take a biographical approach to their subjects, they do so in very different ways that illuminate a range of issues.  Ten Broek is deceased, freeing his biographer to craft a study revealing the most significant connections between his personal life, reform activism, and legal contributions.  Ginsburg, who does not want a full biography written about her at present, is nonetheless the primary source for the early biographical portion of a study that is part biography and part history of her career as feminist litigator.   These differences allow us to raise to raise question about sources and methodology as well as the challenges, advantages, and limitations of writing about a sitting Justice, who fortunately has a keen sense of how historians work.  More important, the two studies raise questions about the advantages and limitations of a biographical approach.  What is revealed and obscured about the larger campaigns for legal change of which the individuals are a part?

61.       My paper will focus on the ideas about discrimination of the attorney, advocate, and scholar Jacobus tenBroek.  I will treat his multiple uses of this idea as a window onto liberal law reform in the mid-twentieth-century U.S.

            TenBroek wrote about discrimination, and about the equal protection clause of the Fourteenth Amendment, most directly in The Abolitionist Origins of the Fourteenth Amendment (1951).  However, he began theorizing discrimination long before the 1950s.  As a leader of the National Federation of the Blind, tenBroek was one of the earliest students in the U.S. of the relationship between physically disabled citizens and their government.  Immediately following World War Two, he wrote about Japanese-Americans in a similar vein – as what the Supreme Court majority, in Carolene Products (1938), termed a “discrete and insular minority” deserving Constitutional protection.  In the 1960s, he pushed the idea of discrimination further, claiming that poor people were another “discrete and insular” class that might be reached by the equal protection clause of the Fourteenth Amendment.

            I will consider tenBroek’s own blindness, and his organizing work among the blind, as origin points of his understanding of discrimination.  I will also consider the limitations of such an approach, and will explore other contemporaneous influences on tenBroek’s thinking.

62.       The task of sorting out the “relation between law and public opinion” has long perplexed legal and political theorists (be they James Madison, Alexis de Tocqueville, Albert Dicey, or Juergen Habermas).  The American revolutionary promise of “a government of laws, not men” presumed that law could simultaneously represent and transcend public opinion.  Experience soon proved otherwise.  This panel will examine the troubled and contested relation between law and public opinion in three different contexts: northern, southern, and national.  From murder trials and riots in Philadelphia, to divorce and miscegenation disputes in North Carolina, to duels and anti-dueling laws in Congress, individual papers explore the recurring tensions between ostensibly formal legal principles and procedures, popular conceptions of justice and right, and elite sentiments of honor and responsibility.  In doing so, we aim to complicate some common assumptions regarding the political and legal cultures of the antebellum north and south.

63.       On February 24, 1838 Congressman William Graves of Kentucky fatally shot Congressman Jonathan Cilley of Maine in a duel.  Curiously, the encounter did not arise from a direct point of honor between the two men.  The “Cilley affair” was instead the culmination of a long, complex, frequently misdirected, and occasionally absurd series of perceived slights, veiled insults, partisan animosities, personal dislikes, confounded masculinities, and romantic rivalries involving such notables as Henry Wise, James Watson Webb, Henry Clay, Nathaniel Hawthorne, and John L. O’Sullivan.  So overdetermined were the causes of the duel that Graves could proclaim himself a victim.  He blamed “public opinion,” the “paramount law of the land” for driving him onto the field of honor, asserting that the “blood by which my unfortunate hands have been stained” ultimately rested “upon the heads of this nation and the doors of this House.” 

            Though duelists often invoked “public opinion” as an alibi, few Congressmen had done so, and none had named Congress itself as an unindicted co-conspirator.  Unlike most antebellum duels, the Cilley affair was a truly national controversy that provoked a fresh round of public and legislative debates over dueling.  My paper shows how these debates transformed diverse yet tacit assumptions about the relation between law, public opinion, and honor into explicit, politicized, and ultimately sectionalized ideologies.   In doing so, it highlights a larger theoretical problem: the different dynamics by which law and public opinion assign blame.

64.       In February 1843, Singleton A. Mercer, of Philadelphia, shot and killed Mahlon Hutchinson Heberton, also of Philadelphia, on the Philadelphia-Camden ferry. Mercer’s motive was straightforward, five days earlier Heberton had lured Mercer’s sixteen-year-old sister into a brothel and raped her. Six weeks after the crime, following a four day trial, a jury in New Jersey took less than an hour to return a verdict declaring Mercer not guilty. When word of the verdict reached Southwark, the district in Philadelphia where the Mercer family made their home, neighbors rushed to the streets to shoot off guns in celebration. The next day, a crowd numbering in the hundreds met the Philadelphia-Camden ferry as it pulled into the Walnut Street dock, and cheered as Mercer’s father and lawyers disembarked from the boat (Mercer had been sent home by another route).

            Writing about the event a few weeks before trial, the Philadelphia Public Ledger declared that the entire affair, from murder to popular reaction to it, revealed much that was disturbing about the view Philadelphians had of justice. An editorial it wrote after the verdict echoed those sentiments, though with considerably less condemnation. In this paper, I take the Public Ledger at its word, and unpack the Heberton Murder (also known as “the Philadelphia Tragedy”) in order to revise our understanding of popular attitudes towards law and extralegal justice in Philadelphia and the antebellum urban north more generally. In the process, I hope to suggest that the legal culture of the antebellum north had more in common with that of the antebellum south than our studies have previously credited.

65.       In 1832, two newlywed white husbands filed divorce petitions on the grounds that their respective white wives had just given birth to “mulatto” babies.  Although the petitions were nearly identical, Justice Thomas Ruffin and the North Carolina Supreme Court denied one and granted the other.

            Our paper uses these events to explore the interaction between public opinion and formal law during a democratizing age.  We begin by examining the respective views of North Carolina “yeomen” (such as our petitioners) and “planters” (such as our judges), regarding marriage and race.  We find that yeomen were relatively unconcerned with the sanctity of marriage, but deeply concerned with the preservation of racial distinctions.  Elite planters, in contrast, were comparatively unconcerned with “race mixing” (to which they, as slave owners, contributed), but deeply concerned with formal marital sanctity. 

            True to his elite heritage, Justice Ruffin, in a pro-marriage ruling strikingly reminiscent of his famous pro-slavery ruling in State v. Mann (1829), rejected the first divorce petition.  Ruffin realized, however, that his denial of a “mulatto baby” divorce might outrage yeomen democratizers who, at that very moment, proposed curtailing the court’s power.  Ruffin deftly defused this situation by feigning an about-face.  With an exaggerated bow to public opinion, he granted the second divorce, though in a way that signaled future courts to ignore his reversal and abide by his original, pro-marriage reasoning.  (Future courts would do just that.)  By appearing to bend the formal law to the public will, Ruffin preempted popular outrage and inoculated his Court against democratic reform.  He used democratic language to preserve elite power.

66.       This paper would explore a small group of trials for criminal libel (defamatory, blasphemous, or obscene) that occurred in the period 1830-60 in the state courts of the eastern seaboard. I will show how the law pertaining to blasphemy, obscenity, and defamation was mobilized by judges, lawyers, and defendants in these cases. The law in these areas was heavily dependent on the common law but bore a certain statutory overlay. This group of trials raised questions about the nature and origin of the common law in these jurisdictions and the appropriateness of drawing on it to address harms to society that could be committed through speaking, writing or printing. The facts of the cases raised questions about the public’s right to, or interest in, stability, religious conformity, and morality. At times, lawyers and defendants made defences based on rights to freedom of expression, the press and religion, but judges seldom picked up on these. It may be that the flipside of understanding these crimes is understanding how these rights were understood and claimed – or not claimed – in and out of courtrooms at this time, against the specific social context of each case during this antebellum period. This paper, then, will unpack these issues.

67.       This paper forms part of a larger project on the legal history of American efforts to locate the boundary between the foreign and the domestic. I here examine the history of the legal status of one category of territory occupying a contested and ambiguous position with respect to the United States: guano islands.

            Guano islands became the unlikely prize in a mid-nineteenth-century international scramble for territory after the value of guano as fertilizer gained widespread recognition in the 1840s. The Guano Islands Act of 1856 empowered the United States to take possession of guano islands discovered and occupied by American citizens. But other nations asserted their own claims to these islands, and even after the Act the United States remained embroiled in international disputes over the legal status of these tiny specks of land.

            The Act set forth conditions conferring discretion upon the Executive to declare that a guano island “appertained” to the United States. This legislation sought to address a straightforward problem (demand for guano among American farmers had outstripped supply and prices had skyrocketed) with a straightforward solution (the United States would provide protection for American citizens on guano islands for the sole purpose of mining guano and selling it to other American citizens). Yet, as a State Department report analyzing sovereignty over guano islands put it decades later, “no one knew what the guano act really did mean.” One source of this confusion was doubtless what the analysis called the drafters’ “deft” use of the word “appertain,” which (the report noted) “carries no precise meaning.” Another was the subsequent recognition that guano islands had value other than as a source of guano, and the resulting efforts to read rights of permanent sovereignty into a text that seemed to authorize only temporary control.

            This paper spans the time period from the passage of the Guano Islands Act in 1856 to a decision of the U.S. Supreme Court in 1890 examining the status of Navassa, a Caribbean island claimed by the United States (a claim contested by Haiti). The case, Jones v. United States, involved a challenge to the jurisdiction of a federal court in Maryland in the trial of a group of black workers who had rioted against inhumane working conditions on Navassa and killed several of their white bosses. The Jones case affirmed the convictions, confirming that Navassa “appertained to” the United States in an opinion that surveyed the sources and consequences of the power to acquire territory under constitutional and international law. But even this decision did not put to rest the lingering debates over the precise legal relationship of guano islands to the United States, nor did it put an end to U.S. disputes with other nations over these islands. This paper will examine these legal debates and international disputes with a view toward shedding light on the history of American efforts to locate the boundary between the foreign and the domestic; at stake lay the very definition of the “United States.”

68.       The participants in this panel all aim to restore law and legal institutions to the center stage of American political development during the Progressive Era (1890-1920), that formative period when Americans struggled to rework their political ideas and institutions to address the governmental challenges of a mature capitalist economy and an interdependent urban-industrial society. Collectively, the papers challenge the conventional historical wisdom about the period, which dominates works of social and political history, political science, and even popular histories of the era. According to the standard narrative, the halting formation of a “modern” (administrative, bureaucratic, and welfare-oriented) state in America during the early twentieth century took place in spite of law and the courts. “The courts” and “the law” appear as a monolithic force: a singularly conservative obstacle to progressive legislation enacted to bring industrial capitalism under the heel of a socially responsive interventionist state. Of course, the myth of legal obstructionism has the ring of historical authenticity: It dates back to the Progressive Era itself, when Theodore Roosevelt, gearing up for his 1912 presidential run at the head of the Progressive ticket, led the charge against what some progressives called America’s “judicial oligarchy.” But whatever its merits as political rhetoric, the narrative of legal obstructionism has distorted historical analysis ever since.

            The papers proposed here all emphasize the central, generative role of legal actors–judges, treatise writers, government officials, and ordinary litigants–in the creation of new rationales and technologies of social and economic governance during the Progressive Era. William Novak’s paper on the “social control of business” shows how a common set of legal ideas and practices governed progressive economic regulation and social control initiatives (from criminology to public health).  Michael Willrich examines the local, state, and federal legal challenges to compulsory vaccination, recovering the largely forgotten history of legal resistance, by middle- and working-class Americans, to the expansion of administrative social governance during the period.  William Forbath’s paper revisits the era’s efforts to rethink constitutionalism and self-government, retrieving forgotten intellectual and institutional dimensions of the meaning of Progressive “democracy” and “popular rule.”

            The three presenters welcome the opportunity to present new work to the American Society for Legal History. Recognizing the interdisciplinary character of these historical issues, they have looked beyond their own disciplines of law and history for a commentator. The chair and commentator will be Elizabeth Sanders, a Professor of Government at Cornell University. Sanders, the author of prize-winning books on social movements and regulation during the Progressive Era, is a leading voice in the field of American Political Development–an interdisciplinary field of political scientists, historians, and  historical sociologists that has recently helped to regenerate the serious study of political institutions in the United States.

69.       This paper is part of a larger book-in-progress on the Creation of the American Liberal State.  A reassessment of the relationship between government and organized corporate capital is, of course, a fundamental feature of that liberal state.  This paper deals with economic regulation.  But it attempts to get beyond the legal-historiographical obsession with monopoly and anti-trust through a broader examination of what John Maurice Clark called the “social control of business.”  It argues for the usefulness of seeing Progressive-era economic regulation as very much of a piece with some of the larger social and morals regulations of this period, e.g., the new criminology, the new public health, and experiments like state and national prohibition.  This paper examines the way in which the same legal technologies and ideas associated with what social reformers and sociological jurists called social control and socialization were applied in the realm of business regulation.  The first half of the paper sets up the intellectual paradigm of the “social control of business” through an examination of the writings of Clark, Walton Hamilton, Rexford Tugwell, and Robert Lee Hale among others.  The second half then investigates the fate of actual regulatory experiments in the courts, including an examination of the law of public utilities, foreign corporations, and price control.

70.       This paper draws upon my new book-in-progress, Speaking Law to Power: Legal Resistance to the Modern American State. The book examines the formation of the modern liberal state during the Progressive Era from a new angle: the struggles of ordinary Americans, who used litigation and a new rhetoric of individual rights to challenge the institutional centralization and expanding scope of administrative power.

            Ever since the great constitutional struggles of the New Deal era, historians have argued that there were two main forces of resistance to modern state-formation during the early twentieth century. First, there were the courts, which acted as a conservative bulwark, brandishing new doctrines of substantive due process and liberty of contract to strike down progressive social legislation. Second, there were the business interests, which politicked mightily to prevent any significant redistribution of wealth and power. It took the national crisis of the Great Depression, the conventional narrative concludes, to overcome these obstacles. Significantly, this standard account assumes that the great majority of Americans-wage-earners and the middle class-gradually embraced a more centralized interventionist state with expanded powers to regulate the economy and provide a new level of social security to all citizens.

            This paper challenges those assumptions. It introduces a new set of actors onto the historical stage: ordinary Americans-neither legal elites nor corporate interests-who used litigation and crafted rights arguments to contest particularly coercive efforts to regulate modern society in its intimate detail. For purposes of this paper, I will present my research on urban legal resistance to compulsory vaccination during the small pox epidemic of 1902. The celebrated case of People v. Jacobson (1905), in which the U.S. Supreme Court upheld Massachusetts’s compulsory vaccination law (and established a precedent later used to uphold state-mandated eugenical sterilization), is examined as the culmination of widespread litigation that contested such measures as an unwarranted interference with bodily integrity.

            I will argue that these vaccination challenges at the local, state, and federal level must be understood in a context of widespread legal resistance, “from below,” to the unprecedented reach of administrative governance into everyday social and economic life. In addition to vaccination resisters, the historical actors in my broader story include patients in new state psychopathic hospitals asserting their rights against doctors, families and religious minorities challenging the constitutionality of sterilization statutes, farmers challenging federal water reclamation projects in the arid West, local activists using legal norms to contest emerging Jim Crow measures in the South, and immigrants taking federal officials to court. Of course, these litigants lost many, perhaps most, of their cases. But their challenges left an enduring mark upon the American legal and political order. Without those forgotten legal struggles, the shape of the American polity-a modern liberal state that is distinctive in the world for its marriage of legal rule, rights, and administrative power-might have looked altogether different.

71.       Democracy is the stepchild of constitutional scholarship.  Democracy is far more a problem than a project of constitutional theory, a foe of constitutional norms and commitments, as we’ve come to understand them, rather than a purpose of them.  Not since the Progressive Era have constitutional scholarship and the broader provinces of constitutional thinking seen a broad and sustained debate about the meaning of self-government and how well the basic structures and institutions of American constitutionalism serve the democratic project.   

            A dawning awareness of alternate constitutional arrangements around the globe combined with the growing influence of institutionalist and rational choice schools of political science finally have begun to wean important constitutional scholars from a court-centered perspective toward studying the larger structures and institutional dimensions of – what scholars today call – constitutional design.  These scholars have just begun asking anew large questions about the meaning and practice of constitutional democracy in America. 

            So, it seems timely to revisit the Progressive Era’s sustained efforts to reimagine and reconstruct American constitutionalism.   Current historiography offers a partial and one-sided picture of these efforts; they seem to be about nothing so much as legitimating the modern administrative state and empowering “experts” and elite professionals at the expense of the new immigrant working class, the machine politicians, and the old “state of courts and parties.”   We no longer understand what “popular rule” and “democracy” meant in the intellectual and institutional-reform milieus of Progressive America.  Theirs was a richer and subtler experiment than we recall, in rethinking and reconstructing the relations among the branches of  government, the role of the political party, and the processes of constitutional change – an experiment that aimed to create a modern democracy that was more, not less, rooted in popular participation, more, not less, open to initiative and change from below, one that was not plebiscitary but deliberative, and deliberative in a far more popular and plebian fashion than is dreamt-of in today’s liberal theory.

72.       Ethicists, historians and sociologists have generally accepted the premise that the legal profession did not offer strong, public defenses of the adversary ethic (ethically neutral service of clients) until after 1870 when professional elites sought to rationalize their role in the rise of corporate capitalism.  The same scholars have argued or assumed that, prior to 1870, the legal profession was dominated by a civic republican ideology in which lawyers conceived their role as a form of public service dedicated to vindicating the interests of justice and morality even if that meant refusing to seek a client’s lawful ends.

            This paper challenges both claims.  Surveying antebellum law periodicals, the article reveals a robust debate on the definition and justifiability of the lawyer’s role.  In particular, the article examines defenses of the adversary ethic that were both more vigorous and far less apologetic than defenses offered today.  Moreover, the article shows that the defenses came from legal elites, not Jacksonian levelers, and that the defenses were couched in the discourse of civic republicanism – suggesting that morally activist lawyering was not the only conception of the role thought to be consistent with civic republican principles of virtuous public service.

73.       In recent years, legal scholars and practitioners have engaged in a voluminous debate over the characterization of legal practice as a business or a profession.  Although the issue continues to be raised and considered with increasing urgency and attention, the question of law as business or profession is not a new one; in fact, the current discussion is but the latest manifestation of a phenomenon that has proven to represent, in the words of one scholar, a “perennial debate.”

            One of the works that is often cited as an early expression of the debate is Julius Henry Cohen’s 1916 book, The Law: Business or Profession.  In fact, Cohen anticipates many of the concerns that inform the contemporary debate, including issues of multidisciplinary practice entities and lawyer advertising.  Yet, almost without exception,  references to Cohen’s work are not accompanied by any substantive discussion of his ideas.  This paper argues that, before applying the lessons of Cohen’s work to the contemporary debate, it is necessary to engage in a close analysis of  the book, taking into account the context of the cultural and political attitudes of both Cohen and the society in which he lived.  On the basis of such an analysis, the paper concludes that, although Cohen viewed law as a “profession” rather than as a “business,” his conception of law as profession was vastly different from similar contemporary characterizations.

74.       Sometime around 340 B.C. an Athenian orator named Apollodoros brought a lawsuit against a woman called Neaira alleging that she had been living with an Athenian citizen (Stephanos) as his wife.  Since Neaira was a former foreign prostitute this was against Athenian law and if found guilty Neaira would be sold into slavery and Stephanos heavily fined.  Neaira’s defense does not dispute her early career as a prostitute in Megara but claims she was living with Stephanos as his concubine-a perfectly legal arrangement.

            The point of contention is the maternity of the children of the household, particularly the daughter Phano; is their mother Neaira or an earlier citizen wife of Stephanos?  If the former they are not entitled to the citizen status they have been enjoying to this point, and if they can be shown to have been contaminating the citizen body in this way the political career of Stephanos (who is Apollodoros’ real target) will be at an end.

            But Apollodoros spends a third of his speech detailing the point not in contention-Neaira’s career as a prostitute.  Most scholars believe Apollodoros adopted this strategy because his case was weak and he was hoping to play on the prejudices of the jury.  This was undoubtedly one of his aims.  However, it has not previously been recognized that elements of the speech itself demonstrate that Apollodoros knew that Phano was a legitimate Athenian citizen and by this very fact was forced to dwell on Neaira’s past before raising Phano’s name.  The names of living citizen women were never mentioned in a court case even when they were one of the injured parties.  Apollodoros had to desensitize the jury by a litany of lurid detail of Neaira’s former life before even broaching the name of a possible citizen woman.  If he had focused on Phano from the beginning of his speech his case would not only be seen to be transparently bogus but he would also excite prejudice against himself.

75.       This paper discusses the fate in late antiquity of two ancient Roman legal institutions: the legal “guardianship” of women (tutela mulierum) and paternal power (patria potestas). Both have been seen as curtailing the freedom of action of women and children (including adult children) in the classical period. Both underwent substantial modification in the later period. By the early fourth century, tutela mulierum was apparently obsolete, at least in the west, and disappears from the legal sources. Patria potestas still appears in late Roman laws, but new restrictions were placed on the legal and economic powers of fathers over their children.

            I argue that although tutela mulierum disappeared and paternal power was somewhat limited, late Roman law developed other forms of family control to replace them. New laws restrict the activities of women in court, re-assert the authority of a woman’s father to choose her husband, and allow the emancipation of an ungrateful child to be rescinded. The legal sources also suggest the continued existence (or perhaps revival) of another ancient institution of family control over individual members, the family consilium. Several laws refer to male relatives (propinqui) as a body competent to judge matters involving women’s sexual conduct and the behavior of those under twenty-five.

            My paper draws upon recent scholarship on women and the law in late antiquity, and contextualizes the legal sources with evidence from contemporary historians and papyri from late antique Egypt.

76.       As David Lemmings remarks in his work on English law, “the grandeur, solemnity, and dignity which are normally associated with modern high court proceedings were probably not the prevailing emotions in Westminster Hall during the eighteenth century.” Instead, the Hall was a noisy place, as William Blackstone put it, “the babbling hall” of the “harpy tribe.”  This paper examines the meaning of this often bemoaned noise, asking how “noisiness” came to figure as interference, as a signifier for the varied forces that threatened law’s insularity during the mid-eighteenth-century.  As Blackstone’s comment about the “harpy tribe” suggests, examining the noise at Westminster necessarily means examining the relationship between law and women.  Noisiness was almost always linked to women either literally or symbolically, to orange-sellers, to the “nimble-tongued painted sempstress with her charming treble,” to the “bustle” of crowds that swarmed through the hall during the trial of the Duchess of Kingston.  This paper suggests that these closely-connected complaints about noise and women communicated a subtextual anxiety related to England’s rapid commercial expansion.  Through examining texts as diverse as Blackstone’s little-known poetry and Mansfield’s development of commercial law–in the context of contemporary evidence of Westminster’s “noise”–the paper suggests that Westminster’s noise served a positive function: it interrupted mid-eighteenth-century law’s representation of itself as insulated from contemporary concerns and articulated interests that the law wished to repress.

77.       In 1820, at the height of the scandal over Queen Caroline’s trial before the House of Lords for adultery and treason, a cartoon appeared in which the Queen is depicted riding into the House of Lords on a black ram with the face of her lover, Bergami. The cartoon alludes to a manorial custom (cited, for example, in Feme Covert (1732), an account of laws governing female behavior) in which a widow forfeits the “free bench” she holds in her late husband’s estate if she is found to be unchaste. To reclaim her property, she must ride into the manorial court on the back of a black ram and acknowledge her misbehavior.

            Queen Caroline insisted on being present at her trial, despite the unseemliness of the charges, and she thus gained considerable popular support in her fight against the royal establishment. This popular support was quickly characterized as “mass agitation” and thus Caroline came to be seen as a double threat-both a personal and political affront to the majesty of the throne.  The “elaborately cruel” nature of the cartoon that satirizes the queen indicates not only the specific danger that Caroline presented to the monarchy but also the threat that the female body and its potential for unregulated sexuality offers to the patriarchy, especially when that body dares to enter the space of the court, a space traditionally reserved for men and the exercise of their authority. The cartoon also indicates how easily the threat of unregulated female sexuality is aligned with the threat of the unregulated social body.

78.       This work presents a theory of residential segregation through enforcement of racial restrictive covenants and social conventions. The empirical analysis of the article suggests that covenants had a signicant impact on housing prices, an impact that continued to resonate decades after state enforcement of these covenants was ruled unconstitutional. As such, it is argued that formal and informal (or unofficial) uses of racial restrictive covenants played a key role in establishing and perpetuating long-standing racial residential segregation patterns in the North.

79.       Among the most admired features of classical Roman law are special remedies available when buyers purchase goods (typically, slaves or large animals) in the Roman marketplace, and these goods turn out to be defective in ways the buyer could not readily have observed.  The remedies, created by Roman magistrates in the late Republic, permitted the buyer, within set time limits, either to rescind the sale (redhibition) or to sue for the difference in value because of the defect (actio quanti minoris), but did not permit recovery of consequential damages.  On the other hand, the seller was liable irrespective of knowledge or fault.

            Although it has always been clear that these market remedies arose in reaction to the pressures of a large-scale and impersonal marketplace (quite different from the more intimate sales presumed in traditional Roman sales law), the emergence of modern Institutional Economics has shed considerable light on the reasons why the Romans shaped these remedies as they did.  Impersonal market sales were necessarily plagued by difficulties of chronic informational asymmetry between seller and buyer as to the object of sale, and buyers could no longer anticipate a seller’s cooperation in this matter.  The result was adverse selection: rational actors responded to informational asymmetry by creating a chronically inefficient market.  As the jurist Ulpian at least dimly recognized (D., the Roman market remedies were created precisely to alleviate this problem; unscrupulous sellers were deterred by creating a remedy that paradoxically did not depend on fault.  Confirmation for this hypothesis comes from one feature of the market remedies, namely the requirement that sellers correctly state the nationality of the slaves they sold; this odd rule, based upon popular ethnic stereotypes, very likely derived from a “signaling device” originally used to alleviate the problem of adverse selection.

            In general, then, the legal institutions that arose to control the functioning of the Roman marketplace seem clearly responsive to identifiable underlying market pressures.

80.       This paper assesses the impact of judicial independence using stock prices.  In their seminal article, “Constitutions and Commitment,” Nobel-prize winning economic historian, Douglass North, and political scientist, Barry Weingast, argued that judicial independence and other institutional changes inaugurated by the Glorious Revolution allowed the English government credibly to commit to repay sovereign debt and more generally to protect contractual and property rights.  Although they provided some empirical evidence to support their theory, they did not investigate the effect of judicial independence separately from that of other institutional innovations, nor did they provide any rigorous statistical testing.  This paper is the first to attempt to do so.  It looks at share price movements at critical points in the passage of the 1702 Act of Settlement and other statutes which gave judges greater security of tenure and higher salaries.  Since the major joint-stock companies, including the Bank of England and the East India Company, were heavily invested in government bonds, their share prices should have responded positively to increases in judicial independence.  Similarly, even companies which did not hold government debt should have felt beneficial effects to the extent that independent judges were better able to enforce contracts and property rights impartially.  Preliminary results suggest that giving judges tenure during good behavior had a ten percent positive impact on share prices, while salary increase and other improvements to judicial tenure had impacts which were positive, but not statistically significant.

81.       During the Civil War, both the Union Congress, in the First and Second Confiscation Acts, and the Confederate Congress, in the Sequestration Act, put in place sweeping confiscation programs designed to seize the private property of enemy citizens on a massive scale.  My paper compares property confiscation in the Union and the Confederacy.  It examines congressional debates, the social impact of confiscation legislation, and the interpretation of confiscation doctrine by the Supreme Court.  I contend that the Civil War experiment with confiscation helped cause an important shift in American property ideology and constitutional law by accelerating the rise of liberal conceptions of individual property rights, forcing reconsideration of the legal status of slave property, and narrowing the scope of sovereign power over property.  After the confiscation debates, the failure of land distribution in the South during Reconstruction was all but inevitable. 

            In the North, an ideological debate that could have taken decades to unfold incrementally, case by case, was instead, under the pressure of war, compressed into a little more than a year.  Congress ultimately passed confiscation legislation that reflected deep ideological divisions and made widespread confiscation nearly impossible.  In the South, the resort to confiscation required the reassertion of a republican ideology, and the exercise of sweeping centralized power over individual property, that were almost totally at odds with the dominant trend in Southern legal and constitutional thinking before the war.  Yet the new Confederacy, because it was locked in a struggle for its existence, drew heavily on a republican property ideology inherited from the American Revolution.  The needs of the new Confederate state were so severe that this recessive ideological strain once again became dominant.   

82.       Scholars of Indian law have devoted little attention to the intellectual contributions that native American doctrines made to the development of Constitutional law and none to the impact of the ideas of Indian women on federal doctrines during the era of the Revolution and early republic. My paper argues that Cherokee women were significantly involved in Cherokee peace diplomacy from 1775-1791, particularly during the 1780s when they spoke at treaty conferences and through peace talks. As part of a larger Cherokee diplomacy that envisioned peace as a relational process, women emphasized the connections between whites and Cherokee, positioned this relationship as one in which the United States had responsibilities as the stronger party, and opposed land cessions that were paid for with fungible goods. Their concerns informed the federal reaction at the 1791 Treaty of Holston, at which the United States responded to the Cherokee by agreeing to a protective relationship while it offered permanent recognition of the Cherkee through a perpetual annuity. These concepts informed Chief Justice John Marshall’s holdings in the Cherokee cases of 1831 and 1832. Although Marshall wrote as though his understanding of the trust doctrine was based on Emmerich de Vattel’s Law of Nations, nothing in that work envisioned the protective relationship utilized by Marshall. Rather, Marshall’s ruling reflected a relationality that had been negotiated between the United States and the Cherokee, one in which the ideas of Cherokee women played a critical role.

83.       Judicial method in the period from independence to the American Civil War is generally characterized by two themes.  The first is the attribution of a “Grand Style” of adjudication, in which judges openly and “joyously” made law, in contrast to the formalism of the latter nineteenth century.  The second is the characterization of judges as “instrumentalists” in that they collectively, and consciously, transformed the common law to further specific goals.  The instrumentalist paradigm emphasizes the role of economic thought in shaping judicial decisions, leaving the purpose of this instrumentalism open to debate.  These generalizations, however, do not account for an important development in constitutional property rights in the formative era.  Many judges imposed upon themselves external limits on discretion to “make” law in certain types of property cases, and these limits are readily linked to political rhetoric from the founding era emphasizing the sanctity of private property.  I suggest that the predominant political discourse about vested rights of property explains the appearance and development of the concept that courts should not change rules that would unsettle property transactions.

            Scholars have not previously examined the formative period with the question of “judicial takings” in mind.  This paper suggests that most state judges in the formative era did consider judicial abandonment of precedent potentially to be a retroactive impairment of property rights.  In this era state courts tended to preserve property rules that they believed were necessary to avoid disrupting a large number of transactions.  Courts were willing to change property rules if they were first satisfied that the change would improve the law, usually in the sense that it would better reflect community practice, and if they were also satisfied that the change would not greatly disturb settled property expectations.  This preference for legislative change indicates great awareness of the difference between the retroactive nature of judicial decision-making, and the prospective nature of legislation, a critical distinction for the reliance interests these courts identified.

84.       This paper analyzes the efforts by African-Americans to use litigation to achieve racial equality in nineteenth century Ohio.  At the beginning of the century, the Ohio legislature, by enacting its Black Codes, had led the way both for new states to be carved out of the Northwest Territory and for older northern states to place  significant barriers to African-Americans’ full enjoyment of civil and political rights.

            With Ohio’s constitution and laws limiting certain rights to “white” people, it was a matter of time before the Ohio Supreme Court would be called upon to decide who was white.  In 1831, Polly Gray, a “quarteroon,” argued she should be able to invoke the statute that prevented a “negro” or a “mulatto” from testifying in a case involving a “white” person.  The Court refused to accept the prosecutor’s argument that race should be determined by color.  Instead, the Court based race on “blood” and ruled that because Gray was more than one-half white the witness could not testify against her.

            The Court’s ruling in the Gray case had significant implications beyond interpretation of the testimony statute.  While some of Ohio’s African-Americans worked to remove all racial classifications from the law, others used the Gray holding as a wedge to push the boundaries of who was “white.”  Men of color filed suit as potential voters as did the parents of children excluded from the white-only public schools.  They succeeded in having the Court extend its ruling to voting rights, permitting men of color to vote, and to school cases, permitting children of color to attend the white public schools. 

            But some Ohioans refused to accept the Court’s decisions.  They argued instead for a community standard under which known “whites” would decide who was “colored..”   The legislature supported this movement in 1859 and 1868 by passing “visible admixture” laws requiring election judges to refuse the right to vote to men of color. [The same 1868 legislature rescinded ratification of the 14th amendment and refused to ratify the 15th amendment.]  School trustees in some townships refused to admit colored children.  Men of color challenged these actions in court.  Some white parents sued over the admission of colored children to the schools.  These court challenges forced the Ohio Supreme Court to revisit its ruling in the Gray case again and again.

            This paper explores the Court’s rulings, the challenges by whites and the legislature to reverse the rulings, and the efforts of people of color to retain the expanded definition of “white.”

85.       My paper will explore legal challenges to wills (testamentary capacity cases) during late antebellum and early Reconstruction Kentucky.  Occasionally testators’ wills freed slaves or made unusual devises.  In an attempt to void such devises some family members initiated suits challenging these devises by claiming that the deceased was insane or lacked the requisite legal capacity to write a will.  In a several cases slaves – sometimes with success – used the court system to defend testators’ emancipatory devises.  In doing so, these slaves used legal channels to contest dominant understandings of slave status, property, and freedom.  The language of these challenges represents local communities’ beliefs about the legitimacy of inter-racial and social relationships and how judgments about these relationships intersected with understandings of insanity and legal capacity.  Furthermore, these cases represent a rare opportunity to analyze slaves bringing suits for their freedom, thus subverting a legal and social system designed to promulgate white superiority and black servitude.

            These cases suggest that a broad array of issues concerning how people understood legal and racial transgressions, familial duty, and social debt and obligations contributed to whether a testator’s final wishes would be respected by courts and communities.  My paper will explore several cases in which judges, juries, and slaves used this body of theoretically neutral jurisprudence to delimit categories of property, personhood and freedom while illuminating racial and legal hierarchies of power.

86.       My paper analyzes how racial and gender identity influenced the legal definition of citizenship in an 1873 court case. A close examination of this legal suit reveals an organized African-American community that encouraged a young, African-American schoolteacher to seek a legal remedy for racial segregation on a common carrier.

            The civil suit of Emma Coger v. North Western Union Packet Company was heard both in an Iowa district court and before the Iowa State Supreme Court in 1873.  Emma Coger, an African-American schoolteacher from Illinois, traveled up the Mississippi river to visit friends in Iowa.  On her steamboat voyage back home, Coger sat down at the dinner table reserved for white women.  The captain forcibly removed Coger from the table and she subsequently filed suit against the owners of the boat in Iowa’s Lee County District Court. 

            A precedent for segregation on common carriers was already in place because steamboats and trains allowed respectable white women to travel in separate areas from the single male passengers.  This paper will discuss how both racial and gender identity played a critical role in structuring Coger’s lawyer’s arguments for her right, as a citizen, to equal treatment aboard common carriers.  My paper investigates the African-American community’s political mobilization, the courts’ application of the fourteenth amendment to the Coger case, and the ways in which racial and gender identity influenced the legal rulings.

87.       There is a sizeable body of unexplored legal material (cases, treatises, statutes) pertaining to partnership and early corporate insolvency suggesting that courts were unsure as to the nature of property-holding and agency relationships within the partnership and close corporation throughout the classical Industrial Revolution c. 1770-1870. Insolvency regimes were therefore volatile, with constant debates about the lines between joint, several and joint and several liability for investors in enterprise. Lord Eldon and the early 19th century judges indicated that they were unhappy with the policies of partnership insolvency law but nonetheless stuck with precedents inherited from Lord Loughborough. It is important to integrate this learning into the history of corporations, as it was not until Saloman v Saloman [1897] AC 22 that a clear line  was finally drawn between corporate entities and partnerships or deed of trust companies. However equity courts very early on did manage to use insolvency rules to partition the private assets of managers and investors from working capital. The theme of unstable and contested partnership and agency insolvency rules adds a further dimension to new work on the history of business enterprise produced by Harris, Alborn, Mahoney, Banner and others, and may cast light on the form of general incorporation created in the later 19th century.

88.        Explaining why securities markets develop and why ownership separates from control in large firms—or why each fails to occur—is one of the enduring inquiries in corporate finance.  Here I examine recent theory from the law and finance literature—which sees the mechanics of corporate law, and particularly of common law fiduciary duties, as determining the degree of ownership separation in a nation and its incidence of large public firms.  Because fiduciary duties are seen as most highly developed in common law Anglo-Saxon systems, legal origins are seen as determinative of separation.  I suggest two reasons why corporate law fiduciary duties from common law are unlikely to explain separation fully, and perhaps not even primarily.  First, regulatory structures arose in the United Statesbecause common law fiduciary duty rules were widely seen to have been defective. I briefly outline the perceived defects.  Institutions that have nothing to do with common law fiduciary duties arose to remedy the perceived defects.  Second, common law fiduciary duties do not seek to control half of what’s important in the relationship between managers and distant shareholders:  fiduciary duties seek to reduce stealing (“tunneling” in the current finance vocabulary) but not managerial error or misdirection.  Other institutions control error and misdirection, and other institutions can raise or lower the severity of the disconnect between managers and distant shareholders.  Since the quality of these other mitigating (or exacerbating) institutions can vary from nation-to-nation, their relative strength can powerfully determine the degree of ownership separation and stock market development.

            I then suggest a missing piece to the explanation why ownership separation varies in the wealthy West.  Labor institutions can strongly affect the degree of ownership separation, and indeed can be determinative, as determinative as legal origins and corporate law quality. In fact, the strongest predictor of ownership separation in the wealthy West is the degree of employment protection in a nation, not legal origin or the degree to which corporate law protects minority stockholders.  I provide several explanations why this result is theoretically plausible.  Essentially, distant shareholders must be assured that managers will produce value for them.  Yet if labor pressures are high, they cannot be so assured, because managers’ unrestrained agenda roughly corresponds to labor’s.  The political impulse that induces employment protection also impedes restraints on managers from pursuing their natural agenda (of, say, corporate expansion and risk-aversion), making it harder for distant shareholders to get managerial alignment.  In nations where those labor pressures are high, ownership separation is not as valuable to stockholders as close ownership, because close ownership unites management and control, keeping the interests of the two allied.  Strong securities markets accordingly should not develop in such nations. Data consistent with these labor-pressure channels is available, and I provide some supporting regressions.