The Nation at Sea: The Federal Courts and American Sovereignty, 1789–1825

Kevin Arlyck, Cambridge University Press (August 2025)

The Nation at Sea tells a new story about the federal judiciary, and about the early United States itself. Most accounts of the nation’s transformation from infant republic to world power ignore the courts. Their importance, if any, was limited to domestic politics. But the truth is that, in the critical decades following the Constitution’s ratification, federal judges decided thousands of maritime cases that profoundly shaped the United States’ relations with foreign nations. Judges ruled on the legality of naval captures made by European powers, regulated the conduct of American merchants, and tried pirates and slave traders who sought profit amid the turmoil of transatlantic war. Kevin Arlyck’s vivid reconstruction of this forgotten history reveals how, over time, the federal courts helped realize an increasingly bold conception of American sovereignty, one that vindicated the Declaration of Independence’s claim to the United States’ place “among the powers of the earth.” (Click to Purchase)

Court, Credit, and Capital: Amsterdam’s Insolvency Legislation in the Dutch Golden Age

Maurits den Hollander, Cambridge University Press (August 2025)

Seventeenth-century Amsterdam was a city of innovations. Explosive economic growth, the expansion of overseas trade, and a high level of religious tolerance sparked great institutional, socioeconomic and legal changes, a period generally known as ‘the Dutch Golden Age.’ In this book, Maurits den Hollander discusses how insolvency legislation contributed to the rise of a modern commercial order in seventeenth-century Amsterdam. He analyzes the procedure and principles behind Amsterdam’s specialized insolvency court (the Desolate Boedelskamer, 1643) from a theoretical perspective as well as through the eyes of citizens whose businesses failed. The Amsterdam authorities created a regulatory environment which solved insolvency more leniently, and thus economically more efficiently, than in previous times or places. Moving beyond the traditional view of insolvency as a moral failure and the debtor as a criminal, the Amsterdam court recognized that business failure was often beyond the insolvent’s personal control, and helped restore trust and credit among creditors and debtors. (Click to Purchase)

The God and the Bureaucrat: Roman Law, Imperial Sovereignty, and Other Stories

Zachary Herz (Cambridge University Press, July 2025)

Why is Roman law so boring? In this book, Zachary Herz argues that the bureaucratic, positivistic world of Roman law is not a distraction from the violent autocracy of the Roman empire, but an imagined escape. Lawyers, bureaucrats, and even emperors used legal writing to think about worlds that were safer or fairer than the one in which they lived. This archive of political imagination slowly became a law-code, and now guides readers through a legal system about which its authors could only dream. From Augustus to Justinian, this book shows how law symbolized order in chaotic times, and how that symbol eventually took on a life of its own. From the enlightened judgements of Hadrian to the great jurists and child rulers of Severan Rome, Herz reveals what Romans were really talking about when they talked about law. (Click to purchase)

Extradition and Empire: Sovereignty and Subjecthood in Hong Kong

Ivan Lee, Cambridge University Press (forthcoming June 2025)

In the first book-length study of the interwoven history of extradition in Hong Kong, Ivan Lee shows how British judges, lawyers, and officials navigated the nature of extradition, debated its legalities, and distinguished it over time from other modalities of criminal jurisdiction – including deportation, rendition, and trial and punishment under territorial and extraterritorial laws. These complex debates were rooted in the contested legal status of Chinese subjects under the Opium War treaties of 1842–43. They also intersected wider shifts and tensions in British ideas of territorial sovereignty, criminal justice and procedure, and the legal rights and liabilities of British subjects and alien persons in British territory. In the end, a new area of imperial law emerged as Britain incorporated a frontier colony into an increasingly territorial and legally homogenous empire. This important perspective revises our understanding of the legal origins of colonial Hong Kong and British imperialism in China.

From Masters of Slaves to Lords of Lands: The Transformation of Ownership in the Western World

James Q. Whitman, Cambridge University Press (November 2024-online, print forthcoming)

Today we think of land as the paradigmatic example of property, while in the past, the paradigmatic example was often a slave. In this seminal work, James Q. Whitman asserts that there is no natural form of ownership. Whitman dives deep into the long Western history of this transformation in the legal imagination – the transformation from the ownership of humans and other living creatures to the ownership of land. This change extended over many centuries, coming to fruition only on the threshold of the modern era. It brought with it profound changes, not only in the way we understand ownership but also in the way we understand the state. Its most dramatic consequence arrived in the nineteenth century, with the final disappearance of the lawful private ownership of humans, which had been taken for granted for thousands of years. (Click to Purchase)

Trials of Sovereignty: Mercy, Violence, and the Making of Criminal Law in British India, 1857–1922

Alastair McClure, Cambridge University Press (November 2024)

Trials of Sovereignty offers the first legal history of mercy and discretion in nineteenth and twentieth-century India. Through a study of large-scale amnesties, the prerogative powers of pardon, executive commutation, and judicial sentencing practices, Alastair McClure argues that discretion represented a vital facet of colonial rule. In a bloody penal order, officials and judges consistently offered reduced sentences and pardons for select subjects, encouraging others to approach state institutions and confer the colonial state with greater legitimacy. Mercy was always a contested expression of sovereign power that risked exposing colonial weakness. This vulnerability was gradually recognized by colonial subjects who deployed a range of legal and political strategies to interrogate state power and question the lofty promises of British colonial justice. By the early twentieth century, the decision to break the law and reject imperial overtures of mercy had developed into a crucial expression of anticolonial politics. (Click to Purchase)

Family Matters: Queer Households and the Half-Century Struggle for Legal Recognition

Marie-Amelie George, Cambridge University Press (May 2024)

In 1960, consensual sodomy was a crime in every state in America. Fifty-five years later, the Supreme Court ruled that same-sex couples had the fundamental right to marry. In the span of two generations, American law underwent a dramatic transformation. Though the fight for marriage equality has received a considerable amount of attention from scholars and the media, it was only a small part of the more than half-century struggle for queer family rights. Family Matters uncovers these decades of advocacy, which reshaped the place of same-sex sexuality in American law and society – and ultimately made marriage equality possible. This book, however, is more than a history of queer rights. Marie-Amélie George reveals that national legal change resulted from shifts at the state and local levels, where the central figures were everyday people without legal training. Consequently, she offers a new way of understanding how minority groups were able to secure meaningful legal change. (Click to Purchase)

Execution, State and Society in England, 1660–1900

Simon Devereaux, Cambridge University Press (October 2023)

This book provides the first comprehensive account of execution practices in England and their extraordinary transformation from 1660 to 1900. Agonizing execution rituals were once common. Male traitors were hanged, disembowelled while still alive, then decapitated and quartered. Female traitors were burned alive. And common criminals slowly choked to death beneath wooden crossbeams erected at the margins of towns. Some of their bodies were either left to rot on roadside gibbets or dissected by anatomy instructors. Two centuries later, only murderers and traitors were executed – both by hanging – and they died alone, usually quickly, and behind prison walls. In this major contribution to the history of crime and punishment in England, Simon Devereaux reveals how urban growth, and the unique public culture it produced, challenged and largely displaced those traditional elites who valued the old ‘Bloody Code’ as an instrument of their rule. (Click to Purchase)

Nothing More than Freedom: The Failure of Abolition in American Law

Giuliana Perrone, Cambridge University Press (May 2023)

Monitoring American Federalism: The History of State Legislative Resistance

Christian G. Fritz, Cambridge University Press (January 2023)

Monitoring American Federalism examines some of the nation’s most significant controversies in which state legislatures have attempted to be active partners in the process of constitutional decision-making. Christian G. Fritz looks at interposition, which is the practice of states opposing federal government decisions that were deemed unconstitutional. Interposition became a much-used constitutional tool to monitor the federal government and organize resistance, beginning with the Constitution’s ratification and continuing through the present affecting issues including gun control, immigration and health care. Though the use of interposition was largely abandoned because of its association with nullification and the Civil War, recent interest reminds us that the federal government cannot run roughshod over states, and that states lack any legitimate power to nullify federal laws. Insightful and comprehensive, this appraisal of interposition breaks new ground in American political and constitutional history, and can help us preserve our constitutional system and democracy. (Click to purchase)

Vernacular Law: Writing and the Reinvention of Customary Law in Medieval France

Ada Maria Kuskowski, Cambridge University Press (October 2022)

Custom was fundamental to medieval legal practice. Whether in a property dispute or a trial for murder, the aggrieved and accused would go to lay court where cases were resolved according to custom. What custom meant, however, went through a radical shift in the medieval period. Between the twelfth and thirteenth centuries, custom went from being a largely oral and performed practice to one that was also conceptualized in writing. Based on French lawbooks known as coutumiers, Ada Maria Kuskowski traces the repercussions this transformation – in the form of custom from unwritten to written and in the language of law from elite Latin to common vernacular – had on the cultural world of law. Vernacular Law offers a new understanding of the formation of a new field of knowledge: authors combined ideas, experience and critical thought to write lawbooks that made disparate customs into the field known as customary law. (Click to purchase)

The Science of Proof: Forensic Medicine in Modern France

E. Claire Cage, Cambridge University Press (August 2022)

The Science of Proof traces the rise of forensic medicine in late eighteenth- and nineteenth-century France and examines its implications for our understanding of expert authority. Tying real life cases to broader debates, the book analyzes how new forms of medical and scientific knowledge, many of which were pioneered in France, were contested, but ultimately accepted, and applied to legal problems and the administration of justice. The growing authority of medical experts in the French legal arena was nonetheless subject to sharp criticism and scepticism. The professional development of medicolegal expertise and its influence in criminal courts sparked debates about the extent to which it could reveal truth, furnish legal proof, and serve justice. Drawing on a wide base of archival and printed sources, Claire Cage reveals tensions between uncertainty about the reliability of forensic evidence and a new confidence in the power of scientific inquiry to establish guilt, innocence, and legal responsibility. (Click to Purchase)

The Dreadful Word Speech Crime and Polite Gentlemen in Massachusetts, 1690–1776

Kristin A. Olbertson. Cambridge University Press (March 2022).

This book, the first comprehensive study of criminal speech in eighteenth-century New England, traces how the criminalization, prosecution, and punishment of speech offenses in Massachusetts helped to establish and legitimate a social and cultural regime of politeness. Analyzing provincial statutes and hundreds of criminal prosecutions, Kristin A. Olbertson argues that colonists transformed their understanding of speech offenses, from fundamentally ungodly to primarily impolite. As white male gentility emerged as the pre-eminent model of authority, records of criminal prosecution and punishment show a distinct cadre of politely pious men defining themselves largely in contrast to the vulgar, the impious, and the unmanly. “Law,” as manifested in statutes as well as in local courts and communities, promoted and legitimized a particular, polite vision of the king’s peace and helped effectuate the British Empire. In this unique and fascinating work, Olbertson reveals how ordinary people interacted with and shaped legal institutions.

Unraveling Abolition Legal Culture and Slave Emancipation in Colombia

Edgardo Perez Morales. Cambridge University Press (January 2022)

Unraveling Abolition tells the fascinating story of slaves, former slaves, magistrates and legal workers who fought for emancipation, without armed struggle, from 1781 to 1830. By centering the Colombian judicial forum as a crucible of antislavery, Edgardo Pérez Morales reveals how the meanings of slavery, freedom and political belonging were publicly contested. In the absence of freedom of the press or association, the politics of abolition were first formed during litigation. Through the life stories of enslaved litigants and defendants, Pérez Morales illuminates the rise of antislavery culture, and how this tradition of legal tinkering and struggle shaped claims to equal citizenship during the anti-Spanish revolutions of the early 1800s. By questioning foundational constitutions and laws, this book uncovers how legal activists were radically committed to the idea that independence from Spain would be incomplete without emancipation for all slaves.

Truth and Privilege Libel Law in Massachusetts and Nova Scotia, 1820-1840

Lyndsay Campbell. Cambridge University Press (December 2021)

Truth and Privilege is a comparative study that brings together legal, constitutional and social history to explore the common law’s diverging paths in two kindred places committed to freedom of expression but separated by the American Revolution. Comparing Nova Scotia and Massachusetts, Lyndsay Campbell examines the development of libel law, the defences of truth and privilege, and the place of courts as fora for disputes. She contrasts courts’ centrality in struggles over expression and the interpretation of individual rights in Massachusetts with concerns about defining protective boundaries for the press and individuals through institutional design in Nova Scotia. Campbell’s rich analysis acts as a lens through which to understand the role of law in shaping societal change in the nineteenth century, shedding light on the essential question we still grapple with today: what should law’s role be in regulating expression we perceive as harmful?

Pain, Penance, and Protest Peine Forte et Dure in Medieval England

Sara M. Butler. Cambridge University Press (November 2021).

In medieval England, a defendant who refused to plead to a criminal indictment was sentenced to pressing with weights as a coercive measure. Using peine forte et dure (‘strong and hard punishment’) as a lens through which to analyse the law and its relationship with Christianity, Butler asks: where do we draw the line between punishment and penance? And, how can pain function as a vehicle for redemption within the common law? Adopting a multidisciplinary approach, this book embraces both law and literature. When Christ is on trial before Herod, he refused to plead, his silence signalling denial of the court’s authority. England’s discontented subjects, from hungry peasant to even King Charles I himself, stood mute before the courts in protest. Bringing together penance, pain and protest, Butler breaks down the mythology surrounding peine forte et dure and examines how it functioned within the medieval criminal justice system.

Imperial Incarceration Detention without Trial in the Making of British Colonial Africa

Michael Lobban. Cambridge University Press (August 2021)

For nineteenth-century Britons, the rule of law stood at the heart of their constitutional culture, and guaranteed the right not to be imprisoned without trial. At the same time, in an expanding empire, the authorities made frequent resort to detention without trial to remove political leaders who stood in the way of imperial expansion. Such conduct raised difficult questions about Britain’s commitment to the rule of law. Was it satisfied if the sovereign validated acts of naked power by legislative forms, or could imperial subjects claim the protection of Magna Carta and the common law tradition? In this pathbreaking book, Michael Lobban explores how these matters were debated from the liberal Cape, to the jurisdictional borderlands of West Africa, to the occupied territory of Egypt, and shows how and when the demands of power undermined the rule of law. This title is also available as Open Access on Cambridge Core.

The Laws of Alfred The Domboc and the Making of Anglo-Saxon Law

Stefan Jarasinski, Lisi Oliver. Cambridge University Press (May 2021)

Alfred the Great’s domboc (‘book of laws’) is the longest and most ambitious legal text of the Anglo-Saxon period. Alfred places his own laws, dealing with everything from sanctuary to feuding to the theft of bees, between a lengthy translation of legal passages from the Bible and the legislation of the West-Saxon King Ine (r. 688–726), which rival his own in length and scope. This book is the first critical edition of the domboc published in over a century, as well as a new translation. Five introductory chapters offer fresh insights into the laws of Alfred and Ine, considering their backgrounds, their relationship to early medieval legal culture, their manuscript evidence and their reception in later centuries. Rather than a haphazard accumulation of ordinances, the domboc is shown to issue from deep reflection on the nature of law itself, whose effects would permanently alter the development of early English legislation.

Martha S. Jones on the Hard Histories at Hopkins Project

Professor Martha S. Jones, author of Birthright Citizens: A History of Race and Rights in Antebellum America, recently published a fascinating opinion piece in the Washington Post reflecting on her work researching the history of Johns Hopkins University and its ties to slavery. You can find the op-ed here and visit the Hard Histories at Hopkins website for more details on Professor Jones’s research and findings.

Becoming Free, Becoming Black: Race, Freedom, and Law in Cuba, Virginia, and Louisiana

Felony and the Guilty Mind in Medieval England

Elizabeth Papp Kamali. Cambridge University Press (July 2019). Available via Cambridge and Amazon.

Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire

Sam Erman. Cambridge University Press (November 2018). Available via Cambridge and Amazon.

Armed with Sword and Scales: Law, Culture, and Local Courtrooms in London, 1860–1913

Sascha Auerbach. Forthcoming with Cambridge University Press (February 2021). Available to pre-order via Cambridge University Press and Amazon.

Coming Soon: Erman’s Almost Citizens

Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire is coming soon! Publication is expected in November-December 2018. To get up to speed on the project before it is published, you can watch the below video in which Professor Erman summarizes his book and the major arguments it makes. A transcription of the video follows.

The book is titled Almost Citizens and it’s the story of how in the early twentieth century formal empire became constitutional in the United States. It makes three arguments. The first argument is that individuals without formal legal training make a difference at law. Here, I enter into a part of the field that is concerned with individual agency and with claims-making. The second argument of the book is about the idea that law changes outside the courts. I argue that people in congress, federal bureaucrats, the President, even individual litigants and lawyers, change the meaning of the constitution over time. The third argument is that people’s thinking about race and gender could never be separated from their understandings about what the law was and what it should be. The idea is that the law does not just develop because of legal logics, but our own biases; how judges see the world more generally, and how others see the world, profoundly shapes what the law is and what it can become.

Moral Contagion: Black Atlantic Sailors, Citizenship, and Diplomacy in Antebellum America

Michael A. Schoeppner. Cambridge University Press. January 2019. Available via Cambridge University Press and Amazon.

Between 1822 and 1857, eight Southern states barred the ingress of all free black maritime workers. According to lawmakers, they carried a ‘moral contagion’ of abolitionism and black autonomy that could be transmitted to local slaves. Those seamen who arrived in Southern ports in violation of the laws faced incarceration, corporal punishment, an incipient form of convict leasing, and even punitive enslavement. The sailors, their captains, abolitionists, and British diplomatic agents protested this treatment. They wrote letters, published tracts, cajoled elected officials, pleaded with Southern officials, and litigated in state and federal courts. By deploying a progressive and sweeping notion of national citizenship – one that guaranteed a number of rights against state regulation – they exposed the ambiguity and potential power of national citizenship as a legal category. Ultimately, the Fourteenth Amendment recognized the robust understanding of citizenship championed by antebellum free people of color, by people afflicted with ‘moral contagion.’

The First Modern Risk: Workplace Accidents and the Origins of European Social States

Julia Moses. Cambridge University Press, June 2018. Available to purchase via Cambridge University Press and Amazon.

During the late nineteenth century, many countries across Europe adopted national legislation that required employers to compensate workers injured or killed in accidents at work. These laws suggested that the risk of accidents was inherent to work and not due to individual negligence. By focusing on Britain, Germany, and Italy during this time, Julia Moses demonstrates how these laws reflected a major transformation in thinking about the nature of individual responsibility and social risk. The First Modern Risk illuminates the implications of this conceptual revolution for the role of the state in managing problems of everyday life, transforming understandings about both the obligations and rights of individuals. Drawing on a wide array of disciplines including law, history, and politics, Moses offers a fascinating transnational view of a pivotal moment in the evolution of the welfare state.

Endorsements:

‘Based on detailed work in three countries and languages, this book looks broadly and comparatively at how governments dealt with workplace accidents in the nineteenth century, one of industrialization’s earliest dilemmas. With both empirical substance and theoretical sophistication, it also illuminates the more general problem of the contemporary state first undertaking what is now its foremost task, managing modernity’s ever-growing risks.’

–Peter Baldwin, University of California, Los Angeles

‘In this masterful and path breaking study, Moses identifies the genealogical origins of European social states in the neglected sphere of workplace accidents and the social policies that governments adopted to address what they came to recognize as the ‘first modern risk’. Weaving together a stunning array of research – from law and moral philosophy to state theory and citizenship studies – this book charts the shifting responsibility for the inevitable perils of industrial capitalism, from the personal agency of freedom of contract to state management of an increasingly social distribution of risk. This is a book as timely as it is profound. As neoliberalism’s unremitting assaults on today’s social states have given rise to brutalizing levels of inequality, nothing could be more urgent than our learning from Moses’ deep analysis of the social and political conditions that once created and sustained national commitments to egalitarian social rights.’

–Margaret Somers, University of Michigan

Devastation without Representation in Puerto Rico

In an opinion piece for the LA Times, published on the one year anniversary of Hurricane Maria, Professor Sam Erman writes of devastation without representation in Puerto Rico. You can read the piece here. Learn more about Erman’s work by viewing his video interviews and reading about his forthcoming book with the series, Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire (Cambridge University Press, October 2018).

Murder in the Shenandoah: Making Law Sovereign in Revolutionary Virginia

Jessica K. Lowe. Cambridge University Press (January 2019). Available via Cambridge University Press and Amazon.

On July 4, 1791, the fifteenth anniversary of American Independence, John Crane, a descendant of prominent Virginian families, killed his neighbor’s harvest worker. Murder in the Shenandoah traces the story of this early murder case as it entangled powerful Virginians and addressed the question that everyone in the state was heatedly debating: what would it mean to have equality before the law – and a world where ‘law is king’? By retelling the story of the case, called Commonwealth v. Crane, through the eyes of its witnesses, families, fighters, victims, judges, and juries, Jessica K. Lowe reveals how revolutionary debates about justice gripped the new nation, transforming ideas about law, punishment, and popular government.

Endorsements:

Advance praise: “In Murder in the Shenandoah, Jessica K. Lowe deftly investigates a deadly brawl to illuminate the legal culture of the new nation’s most influential state, shortly after the American Revolution. Filled with plot twists, surprising revelations, colorful characters, and rich insights, this book will reward anyone interested in the roots of American criminal law.” –Alan Taylor, author of American Revolutions: A Continental History, 1750–1804

Advance praise: “Elegantly written and copiously sourced, Jessica K. Lowe’s book is a must-read for specialists and students alike. Lowe upends the accepted notion that southerners went outside the law to resolve conflicts because of the culture of honor that was inextricably embedded in slavery. She uses criminal law to open a window into social change in postrevolutionary Virginia and to set the stage for antebellum-era conflicts in imaginative and unexpected ways.” –Victoria Saker Woeste, American Bar Foundation

Advance praise: “Jessica K. Lowe’s beautifully crafted account of murder and justice powerfully illuminates the reconstruction of criminal law in the early American republic. Lowe skillfully turns the story of a single Virginia killing into a compelling meditation on how people, high and low, struggled over the meaning of equality and the rule of law in the aftermath of revolution. A formidable piece of scholarship, Murder in the Shenandoah is also a gem of historical narration and analysis, at once tough-minded and humane.” –Sean Wilentz, author of The Rise of American Democracy: Jefferson to Lincoln

Advance praise: “Professor Lowe has produced a volume that is both a murder mystery and a mini-treatise on the history of criminal law in colonial Virginia. Hard-nosed legal history has seldom been presented in such fascinating, readable form. Behind the legal story is an equally important story of social change in early Virginia. Lowe knows her Virginia law, and applies to it the questions of a modern historical sensibility. Readers will be surprised and intrigued by this admirable volume.” –Stanley Katz, Princeton University Center for Arts and Cultural Policy Studies

Advance praise: “In Jessica K. Lowe’s poetic telling of a murder trial in the Shenandoah Valley on Independence Day in 1791, we see how issues of class, violence, and the rule of law came together to lead to the execution of a Virginia patrician. Lowe’s beautifully written book shows the law in motion. Wage workers, slaves, jurors, and the legal and planter elite all cross her stage as the values of democracy made a new American law.” –Alfred L. Brophy, author of University, Court, and Slave: Proslavery Thought in Colleges and Courts and the Coming of Civil War

Erman Discusses Puerto Rico on the Podcast BackStory

Sam Erman, Associate Professor of Law at the University of Southern California, appeared in a recent episode of the podcast BackStory, titled “After Hurricane Maria: The History of Puerto Rico and the United States.” The episode, which aired September 7, 2018, examines the relationship between the United States and Puerto Rico across history and includes Erman’s discussion of Puerto Rico’s constitutional status. You can read more about Erman’s book, Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire (forthcoming from Cambridge University Press, October 2018), on the SLH website.

Martha S. Jones Discusses Her Book in the Johns Hopkins Hub

Professor Martha S. Jones sat down recently with the Johns Hopkins Hub to discuss her book, Birthright Citizens: A History of Race and Rights in Antebellum America (Cambridge University Press, June 2018). Check out the interview here.

Erman on the Gonzales v. Williams Case

Professor Sam Erman, author of Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire (forthcoming from Cambridge University Press in October 2018), discusses the pivotal Gonzales v. Williams case that shaped the status of Puerto Rico and its citizens in the eyes of the United States government. A lightly edited transcription follows the video. You can read more about the book here.

The Gonzales v. Williams case is a Supreme Court decision from 1904 that began when a woman traveled from Puerto Rico to Ellis Island and she was stopped at Ellis Island as an alien who was undesirable for entry. She sued and said “I’m not an alien; I’m an American.” The argument was that you [the United States] annexed Puerto Rico in 1899 and that transformed all of us [residents of Puerto Rico] into Americans, and thus U.S. citizens. This was important, not primarily because of Puerto Rico, but because the U.S. had also annexed the Philippines–which was much larger and more populous and which most Americans considered to be much more racially “degraded” at the time (and so more of a threat). But Isabel Gonzalez, the woman who took this trip, was the test case. And what the Supreme Court decided was that she was not an alien—she was allowed to enter. But they didn’t decide if she was a citizen. And this was important (to my book, and to legal history more broadly) because it was part of a trend of how the Supreme Court dealt with the expansion of the United States into overseas islands in the early twentieth century. Rather than say that colonialism as a whole is okay, or say that we are not going to allow anything like colonialism in this country, the Supreme Court equivocated. So, in this case, they said, “well, you’re not an alien. We won’t decide if you’re a citizen.” That opened up the possibility that there were Americans who weren’t citizens—other than American Indians, which had always been a special case. And in other cases, the Supreme Court said “we’re going to say that there are places that maybe don’t have to become states,” which violated a longstanding rule that all U.S. territory other than the capitol was a state or would become a state. And they also said that there were Americans living in the United States with less than full constitutional rights. It had been thought, prior to 1898, that every American within U.S. jurisdiction had to have the full gamut of constitutional rights. So I use this case in order to try to illustrate how the Court uses strategies of evasion and ambiguity in order to kind of nudge the nation to a position that seems simultaneously to somewhat honor the constitution and to accommodate certain forms of empire.

Erman on the Inspiration for His Book and Its Relevance Today

Professor Sam Erman, author of Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire (forthcoming from Cambridge University Press in October 2018), discusses the inspiration for his book, as well as its contemporary relevance. A lightly edited transcription follows the video. You can read more about the book here.

I’m interested in the question of citizenship. I think it is an interesting thing to study, because citizenship is something that matters to people in general, and that also is a formal legal category, so it’s a nice place to look at how the government and structures of power and individuals just living in the world interact with each other. The place to look for citizenship is where it is being fought about. Puerto Rico was a promising place because after it was annexed, nobody knew if Puerto Ricans were citizens and Puerto Ricans brought lots of claims trying to establish that they were citizens. So, by looking there, I’m able to see people fighting over the meaning of citizenship; when they do that, they reveal their underlying thoughts about the category.

I think the book resonates in two ways with the present. One is in a very technical way, which is that courts are still deciding constitutional questions that were raised in the period I study. Such as, if you’re born in a U.S. territory that’s not a state, are you a citizen? That question was left open in the early twentieth century and the Supreme Court has never decided it. So, I write amicus briefs and I submit them to courts and tell them “here’s what the history is on this question, and that might help you decide this case.” The other way the book seems relevant in this moment is that, in the period I study, it was not a period of dog whistle politics. People’s racism and sexism was right out in the open—people thought it made sense to just talk about these things, and they were incapable of seeing the world without putting on these racist and sexist lenses. And so, in a moment when our politics have become coarser, when questions of race and sex seem more on the surface, I think remembering a prior time when that happened (and how it affected the way judges decided cases and politicians decided issues) can be very helpful.

Birthright Citizens: A History of Race and Rights in Antebellum America

Martha S. Jones. Cambridge University Press, June 2018. Available  via Amazon and Cambridge University Press.

Before the Civil War, colonization schemes and black laws threatened to deport former slaves born in the United States. Birthright Citizens recovers the story of how African American activists remade national belonging through battles in legislatures, conventions, and courthouses. They faced formidable opposition, most notoriously from the US Supreme Court decision in Dred Scott. Still, Martha S. Jones explains, no single case defined their status. Former slaves studied law, secured allies, and conducted themselves like citizens, establishing their status through local, everyday claims. All along they argued that birth guaranteed their rights. With fresh archival sources and an ambitious reframing of constitutional law-making before the Civil War, Jones shows how the Fourteenth Amendment constitutionalized the birthright principle, and black Americans’ aspirations were realized. Birthright Citizens tells how African American activists radically transformed the terms of citizenship for all Americans.

Endorsements:

“Beautifully written and deeply researched, Birthright Citizens transforms our understanding of the evolution of citizenship in nineteenth-century America.  Martha Jones demonstrates how the constitutional revolution of Reconstruction had roots not simply in legal treatises and court decisions but in the day to day struggles of  pre-Civil War African-Americans for equal rights as members of the national community.”
–Eric Foner, Columbia University

“Martha Jones’s ‘history of race and rights’ utterly upends our understanding of the genealogy of citizenship. By showcasing ordinary people acting on their understanding of law’s potentialities, Jones demonstrates the vibrancy of antebellum black ideas of birthright citizenship and their impact on black political and intellectual life. Written with verve, and pulling back the curtain on the scholar’s craft, Birthright Citizens makes an important contribution to both African American and socio-legal history.” 
–Dylan Penningroth, University of California, Berkeley

“Birthright Citizens gives new life to a long trajectory of African Americans’ efforts to contest the meaning of citizenship through law and legal action.  They claimed citizenship rights in the courts of Baltimore, decades before the concept was codified in the federal constitution – ordinary people, even the formally disfranchised, actively engaged in shaping what citizenship meant for everyone. Martha Jones takes a novel approach that scholars and legal practitioners will need to reckon with to understand history and our own times.”
–Tera Hunter, Princeton University

“Birthright Citizens is a brilliant and richly researched work that could not be more timely. Who is inside and who is outside the American circle of citizenship has been a fraught question from the Republic’s very beginnings. With great clarity and insight, Jones mines available records to show how one group–black Americans in pre-Civil War Baltimore– sought to claim rights of citizenship in a place where they had lived and labored. This is a must-read for all who are interested in what it means to be an American.”
–Annette Gordon-Reed, Harvard University

“In this exacting study, legal historian Martha Jones reinterprets the Dred Scott decision through a fresh and utterly revealing lens, reframing this key case as just one moment in a long and difficult contest over race and rights. Jones mines Baltimore court records to uncover a textured legal landscape in which free black men and women knew and used the law to push for and act on rights not clearly guaranteed to them. Her sensitive and brilliant analysis transforms how we view the status of free blacks under the law, even as her vivid writing brings Baltimore vibrantly alive, revealing the import of local domains and institutions – states, cities, courthouses, churches, and even ships – to the larger national drama of African American history. Part meditation on a great nineteenth-century city, part implicit reflection on contemporary immigration politics, and part historical-legal thriller, Birthright Citizens is an astonishing revelation of the intricacies and vagaries of black struggles for the rights of citizenship.”
–Tiya Miles, author of The Dawn of Detroit: A Chronicle of Slavery and Freedom in the City of the Straits

In the News:

• Jones discussed birthright citizenship and the fourteenth amendment in Time, the Atlantic, and NPR in October 2018.
• Jones sat down with the Johns Hopkins Hub to discuss her book (August 2018)
• KPFA radio aired an interview with Jones, “The American Circle of Citizenship: Who is Inside and Who is Outside?” (August 2018).
• Jones’ Birthright Citizens declared a “must read” race and culture book of the summer by Colorlines.
• Lapham Quarterly excerpted Birthright Citizens in July 2018.
• Newbooksnetwork.com published an interview with Jones about Birthright Citizens.
• Professor Jones discussed Birthright Citizens in an interview with WYPR in July 2018.

Jones on Protesting NFL Players

Martha S. Jones, professor of history at Johns Hopkins University and SLH author, recently penned an op-ed in the Washington Post titled “Trump said protesting NFL players ‘shouldn’t be in this country.’ We should take him seriously.” In the piece, Professor Jones responds to President Trump’s remarks regarding protesting NFL players and considers the  historical context for his actions.  Jones is the author of Birthright Citizens: A History of Race and Rights in Antebellum America (forthcoming from Cambridge University Press, Summer 2018). You can read the full op-ed here, on the Washington Post website.

Kolla on the Writing Process and Links Between Projects

Professor Edward Kolla of Georgetown University Qatar discusses the inspiration for his next project and its ties to his recently published book (Sovereignty, International Law, and the French Revolution) in this third segment of our interview series. You can watch the interview in the video clip below and follow along with the lightly edited transcript that follows. Want to learn more about Professor Kolla’s work? Check out  interview installments one and two in the Studies in Legal History video series.

So, I would say the writing process for the book was challenging; it was the first time I’ve done anything like this and so it was a lot of work (but I enjoyed it, obviously). I’m now straight into my next project, which is a similar project in terms of the history of international law. It’s about the history of the passport.

This project is born of my love of travel. I’ve always loved to travel; I’m sure I was standing in a lineup somewhere, staring down at my passport, waiting to go through immigration and thought, you know, “what is the history behind this document? I should probably know the history behind this document.” It’s actually quite an elusive history. In that way, it’s similar to my first book because the way that popular sovereignty enters discourse about international law is not something that is proactively decided by states. The principle of popular sovereignty does not become a principle of international law because all countries get together and agree on it; revolutionaries start embracing these ideas, they apply them in certain diplomatic situations, and slowly over time it becomes a principle of international law. The history of the passport is also one of legal happenstance. All states never got together and agreed they needed passports and that passports needed to look a certain way. It’s, again, a story of historical development, so in that way the projects are very similar.

The other overlap between the projects is that the French Revolution was an important moment in the history of the passport. Up until the French Revolution, it was taken for granted that if you were carrying some kind of identity document when you’re traveling, the person carrying that document is the person for whom it was intended. It was only at the time of the French Revolution that Revolutionaries started thinking, “Oh no! People could be smuggling, or émigrés could be escaping from France.” So they actually started to write the description of the bearer of these documents on the documents themselves. So, not just hair color or eye color, but shape of nose, and size of forehead. That was really the first moment that these documents started to include information about who the bearer was and this is obviously the precursor to the photographs and biometric data that are used in passports today.

Call for Applications: Johnson Program for First Book Authors

The American Society for Legal History (ASLH) announces a new program designed to provide advice and support to scholars working toward the publication of first books in legal history, broadly defined. In conversation with peers and with the advice of senior scholars, participants will develop and revise book proposals and sample chapters, and they will meet with guest editors to learn about approaching and working with publishers.

Applications for Johnson Fellows are invited from early career, pre-tenure scholars, publishing in English, who have completed PhDs or JDs and are working on first books in legal history. Scholars with expertise in all chronological periods and geographical fields are encouraged to apply, as are students who may not (yet) identify as legal historians.

The Johnson Program will begin in November, 2018 at the ASLH Annual Meeting in Houston and will include two in-person workshops and one remote consultation on work-in-progress:

• November 8, 2018: One-day workshop at the ASLH Annual Meeting (Houston, TX), introduction to book publishing and prospectus writing;
• Spring 2019 (date TBD): Remote meeting, peer and senior scholar feedback on draft prospectus; and
• Summer 2019 (July 26-27): Two-day workshop on draft chapters, University of Pennsylvania Law School.

The 2018-19 Johnson Program will be led by Professor Reuel Schiller, with the participation of other senior legal historians. Participants must commit to participation in all three meetings. The program will include up to 5 Fellows and will provide substantial funding for travel and accommodation.

Application Guidelines:

The application deadline is June 30, 2018. Applicants should submit (as a single document, Times New Roman, 12 point font):

• cover letter (single spaced, not exceeding two pages) describing the applicant’s professional trajectory to date and reasons for interest in the Johnson Program;
• curriculum vitae (including contact information);
• project abstract (single spaced; up to 100 words)
• project description (single spaced; not exceeding 750 words) organized with the following sections and headings: Introduction, Significance, Design and Methodology, Chapter Outline, Plans for Revision, and Progress to Date.
• two letters of recommendation from faculty members, at least one of whom should have been a major advisor of the project (sent separately from the other materials).

All materials should be submitted to Barbara Welke (welke004@umn.edu), Chair, University of Minnesota by June 30, 2018.

The 2018 Johnson Program for First Book Authors Committee:

Barbara Young Welke, Chair, University of Minnesota, welke004@umn.edu
Lauren Benton, Vanderbilt University, lauren.benton@vanderbilt.edu
Sam Erman, USC Gould School of Law, serman@law.usc.edu
Kurt Graham, NARA, kurt.graham@nara.gov

Reuel Schiller, UC Hastings College of Law, schiller@uchastings.edu
Rayman Solomon, University of Rutgers-Camden School of Law, raysol@camlaw.rutgers.edu
Matthew Sommer, Stanford University, msommer@stanford.edu

Notification:

Applicants will be notified by July 30, 2018. Please direct any questions to Barbara Welke.

Kolla on Sources

Professor Edward Kolla of Georgetown University Qatar discusses the source base for his recent book, Sovereignty, International Law, and the French Revolution (Cambridge University Press, 2017), and the importance of one source in particular–diplomatic communiques. A lightly edited transcript follows. You can also check out further conversations with Professor Kolla about his work here.

The source base for the book was very diverse. I looked at materials from a number of different of archives in France (the National Archives and National Library in Paris), but also regional archives in a number of the areas that I study in the book (I did research in Alsace, Corsica, Avignon). Probably the most important source for the book were diplomatic communiqués housed in the French Foreign Ministry Archives (which used to be a great place to do research; it was in the old Foreign Ministry at the Quai d’Orsay. The archives have since been moved out, but you used to walk past the Minister’s Office to get to the reading room). And like I say, those diplomatic communiqués were probably the most important source for my book because one thing I really wanted to examine was the way the law operated in practice. That is, the way diplomats—and French officials and everyday people in popular pamphlet literature, etc., but especially diplomats—were thinking about the law and how they saw the law as applying to actual diplomatic problems and issues of importance in the day that needed to be dealt with. So it’s not just a book about international law as theory or international law as doctrine but really about how people—like I said, diplomats, but also just average people in the streets in France—thought about the law and how it could impact their lives.

Kolla on Popular Sovereignty and the French Revolution

Professor Edward Kolla of Georgetown University Qatar delves into the history of the idea of popular sovereignty, its roots in the French Revolution, and its relevance to territorial claims in more modern times. Professor Kolla is the author of Sovereignty, International Law, and the French Revolution (Cambridge University Press, 2017). A lightly edited transcript of the video follows.

The central idea of my book, as the title probably indicates, is the impact and effect of the French Revolution for the history of international law. More specifically, I was looking at how the idea of popular sovereignty began to have an effect in international law, which was something that French revolutionaries hadn’t originally envisaged. Popular sovereignty is probably the central idea of the Revolution, both domestically, but also for international law. It’s the idea that the people have control of the government. And, like I said, initially French revolutionaries didn’t envisage this idea applying to all peoples. But, soon, through a series of diplomatic incidents, people–first on the margins of France–started to take up this idea of popular sovereignty and claim a role for themselves in making territorial claims in international law.

The book charts how these ideas spread, first from the margins of France, but then how the revolutionaries themselves started taking up the ideas and using them later, once revolutionary wars break out, to start making territorial claims of their own. This is something that goes against the historiography of the Revolution in a couple of ways. First of all, the Revolution isn’t really examined much in the history of international law. But, with respect to the Revolution itself, people tend to think about revolutionaries making these claims to try and change the international system—to try and change the world. Whereas, initially, this impact of popular sovereignty outside of France’s borders was something that revolutionaries were actually quite timid about applying. So it is actually a story of revolutionaries kind of being caught between a rock and a hard place; they wanted to stay true to these ideas of popular sovereignty when peoples outside of France were starting to take them up (in places like Corsica and in places like Avignon, which had been controlled by the Pope). But, over time, the revolutionaries saw that these ideas were fundamental principles that they held dear, but also could be quite useful—like I said, in that later period of revolution, when they started using them to make territorial claims.

Overall, the book is kind of an origin story of a principle that by the twentieth century comes to be called national self-determination; again, the idea that peoples themselves get to choose the status of their territory. We see that idea in the news all over the world today. Just last year, there were plebiscites in Catalonia for independence from Spain and in Iraqi Kurdistan for independence from that country. So, you see this principle of peoples making claims that their status—the status of their territory—could change in international law based solely on the people’s choice. This is a very important principle in the world today, and it dates back to the time of the French Revolution.

Martha Jones on Birthright Citizens

In this video, Professor Martha Jones of the University of Michigan discusses her book Birthright Citizens: A History of Race and Rights in Antebellum America (Cambridge University Press, Summer 2018). The video, courtesy of Michigan Law, provides an overview of the forthcoming book and its implications for thinking about citizenship in America. An edited transcription follows.

I’m finishing a book called Birthright Citizens, which is a look at race and citizenship in a somewhat unexplored period. That is, the period before the U.S. Civil War; the period before the amendment of the Constitution, with the 14th Amendment providing birthright citizenship for the first time in the United States. My case study is three African Americans, former slaves, and their descendants. All with a mind toward understanding how, as a nation, we grapple with people who occupy this in-between status–neither slaves, nor fully free citizens. How, in law, do we regard those people? Most often that story is told through a somewhat notorious US Supreme Court case called Dread Scott vs. Sandford, in which the court, through Roger Taney, declaims that no black person can be a citizen of the United States. It turns out that, while Taney was quite sure about his ideas, he really was just one volley in what was an extended debate about race and citizenship before the Civil War.

So, for me, the story begins in the eighteen-twenties with three African American activists themselves, who–through local courthouses, high court arguments, legislatures, and political conventions–again and again make the argument that they are citizens of the United States. Again and again, they make the argument that by virtue of birthright, military service, and their contributions to the economic prosperity of the nation, they should be citizens.

It’s an important chapter in part because it tells a new version of the Fourteenth Amendment, which was not merely a creature of the U.S. Senate, but actually came out of the activism of free African Americans themselves. 

Binyamin Blum Reviews Likhovski for Jotwell

In January 2018, Binyamin Blum reviewed Assaf Likhovski’s Tax Law and Social Norms in Mandatory Palestine and Israel (Cambridge University Press, 2017) for Jotwell. The review can be found on the Jotwell website and is also reproduced below. You can learn more about the book by watching the series of short clips Professor Likhovski recorded for SLH concerning his project. 

On Fiscal History: A Cultural History of Tax Law
Binyamin Blum

Accused by Hillary Clinton of paying no income tax for years, in one of the most memorable moments of the 2016 presidential debates, Donald Trump retorted, “That makes me smart.” Days later, Rudolph Giuliani took Trump’s comment a step further, stating that tax avoidance demonstrated the candidate’s “absolute genius.”During the campaign Trump flouted a forty-year tradition among presidential candidates by refusing to release his tax returns. Pundits speculated that all this might affect Trump’s electability. But as we found out on November 8, 2016, voters did not seem to penalize him for this (or other) behavior.

This election episode epitomizes the declining relationship among tax, civic identity, and citizenship,¹ which are at the center of Assaf Likhovski’s Tax Law and Social Norms in Mandatory Palestine and Israel. Likhovski explores the rise and rapid fall of what he calls the “intimate fiscal state”: a state seeking to ensure its citizens’ tax compliance through a close, direct, and almost family-like relationship, relying more on social norms than legal sanctions.

Spanning most of the twentieth century, Likhovski’s book is divided into three parts. Part I analyzes the transition from arbitrary and corrupt Ottoman taxation, extracted primarily by tax farmers (for-profit non-state intermediaries responsible for tax assessment and collection), towards a more rational taxation system, levied directly by a centralized Ottoman and later British state. With more accurate and detailed information about their subjects, these bureaucratic states were able to assess and levy taxes more equitably and efficiently. Part II, “The Ascendancy of Social Norms,” explores the final years of the British Mandate and the first years of Israeli statehood, an era when reliance on community norms to encourage compliance thrived. Drawing on the tradition of community taxes in the Jewish Diaspora and on Zionist civic republican ideology, Palestine’s Jewish inhabitants began introducing an array of self-imposed, “voluntary compulsory” taxes to support various causes: self-defense, unemployment benefits, public works, and the rescue of European Jewry, to name a few.

Though some organizations such as the Kartell Jüdischer Verbindungen, an organization of German-Zionist academics in Palestine, sought to impose these taxes through legal and quasi-legal mechanisms, taxes were enforced primarily through social networks. (P. 122.) The Jewish Agency encouraged payment through various media, such as literature and art propaganda, but without any formal backing (and despite certain reservations) of state officials and state law. Even resort to shaming through mechanisms such as “evader lists” was rare. Still, these taxes generated more than double the revenue collected by the colonial state, even after the British introduced an income tax in 1941. This civic republican ethos carried into the first decades of Israeli statehood. By creating a strong sense of community, the new “intimate fiscal state” successfully instilled a sense of duty, loyalty, and trust. It conveyed to its citizens the importance of paying for the establishment and maintenance of “their” state.

But this era was short-lived, lasting only two decades: As Likhovski explains in Part III, a convergence of related social, political, and cultural factors, such as an abating security threat, greater social heterogeneity, and (perhaps most importantly) the waning of collectivism, led to the decline of social norms concerning tax compliance. This social transformation contributed to the rising influence of tax professionals, namely, accountants and lawyers. Likhovski carefully and skillfully analyzes the interplay between their increasing involvement and the transformation of tax norms, which reflected—and were designed to counter—their involvement.

Likhovski argues that the connection between taxes and citizenship became even more tenuous as these experts became more deeply involved as intermediaries and policy designers, and as they began to reorient their duties from the state towards their clients—the individual tax-payers. Initially viewing their charge as ensuring that “tax laws be implemented justly and equally,” (P. 233) accountants fulfilled an educational role and enjoyed the trust of the state and taxpayer alike. But by the 1960s their statist rhetoric gave way to a more client-friendly approach. They also began openly criticizing tax policy, advocating tax simplification to eliminate state bureaucracy and to secure the interests of individuals, investors, and corporations. The legal profession followed a similar pattern: lawyers, who initially fit rather uncomfortably within the collectivist, industrial Zionist ethos, managed to establish their position in the Israeli collective as promoters of respect for the law and for the state. (P. 240.) Yet by the late 1960s, they too increasingly began perceiving their duty as primarily shielding clients from tax responsibilities rather than enforcing the state’s interests. Finally, during this same period, Israeli economists reexamined their fundamental assumptions regarding what may be called the “Homo Israelicus.” Initially convinced of Zionist exceptionalism, which placed the collective ahead of individual interest, by the 1970s Israeli economists were designing tax policy in a more scientific, universalist fashion. They reoriented their perspective from statist to individualist. This growing involvement of experts transformed tax legal norms in Israel, which became more flexible and intrusive to counter non-compliance and overly creative professional “tax planning.”

Some readers might criticize the disproportionate attention the book pays to Palestine and Israel’s Jewish community. Though Arab subjects and citizens do receive some consideration, the book focuses primarily on the Jewish community (and on Zionist Jews in particular) even though Palestine’s Arab population was significantly larger during most of the period analyzed. Still, given Likhovski’s inquiry, his selection is judicious. Though one may glean useful insights regarding the connection between tax and civic identity by thoroughly examining “outsider” groups, it is through the transformation in the social norms of insiders that this social phenomenon—namely, the weakening of the relationship between tax and civic identity—is best explored. It is within this group that one may observe the greatest ebb and flow in social norms concerning tax compliance, from voluntary to compliant to cautiously avoidant.

Though Likhovski’s account is, as he acknowledges, primarily top-down, he draws on a broad array of sources to depict a vivid social and cultural history of taxation. He relies not only on judicial decisions and legislative histories but also on propaganda films, posters, and literature produced by Israeli taxation authorities and Israel’s Tax Museum, and on children’s books and satire. The result is a highly entertaining read. Likhovski once again demonstrates his outstanding aptitude for storytelling that combines a keen eye for unusual details with broad theoretical insights. Though Likhovski’s book focuses on Palestine/Israel, it offers broader insights concerning fiscal citizenship and how tax evasion has transformed over time from vice to virtue. As one visitor to Israel’s Tax Museum noted: “I do not believe that one [could] find such a subject, that is really so dry, exciting, but I did.” (P. 175.) I think most readers will agree.

1. Or what Lawrence Zelenak has termed “fiscal citizenship.” See Lawrence Zelenak, Learning to Love Form 1040: Two Cheers for the Return-Based Mass Income Tax (2013). [↩]

Binyamin Blum, On Fiscal Citizenship: A Cultural History of Tax Law, JOTWELL (January 11, 2018) (reviewing Assaf Likhovski, Tax Law and Social Norms in Mandatory Palestine and Israel (2017)), https://legalhist.jotwell.com/fiscal-citizenship-cultural-history-tax-law/.

Nicoletti on the Treason Prosecution of Jefferson Davis

Cynthia Nicoletti, Professor of Law and History at the University of Virginia, recently sat down to discuss her latest book, Secession on Trial: The Treason Prosecution of Jefferson Davis (Cambridge University Press, 2017). In the clip below, she describes the fraught decision whether or not to prosecute Davis for treason, and the broader constitutional implications of the eventual decision. A lightly edited transcript follows.

I am Cynthia Nicoletti. I am a Professor of Law and a Professor of History at the University of Virginia. My new book is Secession on Trial: the Treason Prosecution of Jefferson Davis. One of the things that I argue in this book is that Davis’ treason trial is going to implicate the biggest constitutional question of the Civil War, which is the constitutionality of secession. One of the reasons that he’s not tried—the primary reason that he is not tried—is that the government is quite worried about the prospect of Davis’ acquittal (or, at least, their failure to convict him). They’re worried that Davis’ acquittal might provide a backdoor vindication of the right of secession, which is precisely what they are not hoping for.

There are two things that everybody knows about the legal history of the Civil War: everybody knows that the Civil War settled the question of secession’s constitutionality in favor of the permanency of the union. And everybody knows that the Civil War ended slavery. So, what the book really does, is it argues against– or complicates–one of the basic things that we know about the legal history of the Civil War. What I’m trying to show in the book is how fraught this question of the war settling the constitutionality of secession in the Union’s favor really was.

It was very important to me in writing this book that I treated this question as an open question, basically because I think that there wasn’t a clear answer as to whether or not the Constitution allowed secession. I want to bring the reader back into this time period where there hadn’t been 150 years where everybody clearly understood that secession was unconstitutional. What I’ve heard in general is that if only we had prosecuted Robert E. Lee and other Confederates for treason in the aftermath of the war, we wouldn’t be dealing with the specter of confederate statues and celebratory commemoration of Confederates. One thing that I hope that this book does, is that it might push against the easiness of such a narrative, because one of the things that the book talks about is how difficult it was to get treason convictions against Confederates.

Note: this video comes courtesy of UVA Law Communications. Any media relations inquiries can be sent to comm@law.virginia.edu.

Likhovski on His Writing Process

Sometimes the book you set out to write isn’t the book you end up with. Listen as SLH series author Professor Assaf Likhovski of Tel Aviv University discusses the process of writing his latest book, Tax Law and Social Norms in Mandatory Palestine and Israel (Cambridge University Press, 2017). A lightly edited transcription follows. If you missed the first or second clips in this interview series, you can catch up on the SLH website.

It took me more than a decade to write this book, unfortunately, and I must say that I didn’t intend to write the type of book that ultimately was published. When I began thinking about this book, I was thinking it was something completely different; I’m a legal historian, but I also teach the basic tax course at my home institution, Tel Aviv University. When I was teaching tax cases, I felt very frustrated because I could tell my students about the doctrinal aspects of the cases, but I didn’t know anything about the political, cultural, or economic context.

There were all these cases that I really wanted to know more about, among them an important tax-avoidance case called Mefi that was decided by the Israeli Supreme Court in 1967, and there was nothing about the historical context of this case. But, there was a model that I could use; there was a legal historian Robert B. Stevens, who wrote a book in the 1970s about the British House of Lords. It’s called Law and Politics: the House of Lords as a Judicial Body. It examines all sorts of cases, among them tax cases, placing them in the political, economic, and cultural context of their time. And I thought that I could use the approach that Stevens’ book advocates in analyzing cases such as Mefi.

And that is what I did; actually, the last chapter of the book—chapter 6—was the first chapter that I actually wrote. It’s an analysis of the history of this specific tax-avoidance case and its role in Israeli tax law in the transition from a pro-taxpayer, to a pro-government approach to tax-avoidance. After I wrote an article about the Murphy case, I also wrote an article about British tax avoidance cases in the 1930s and another article about American tax avoidance cases in the 1930s; my idea was to write a comparative legal history of tax avoidance cases in Israel, the UK, and the United States. But, when I started enlarging the Israeli part of the book, looking more deeply into the history of tax avoidance, tax evasion, and economic and social and cultural history, I found so many materials that ultimately I ended up with a book which is only focused on the Israeli case. So, it didn’t come out as a comparative or transnational book; it’s merely focused on one specific tax jurisdiction, although I think that the story that I tell is relevant to other jurisdictions too.

Karen Tani Honored With the Cromwell Book Prize

Studies in Legal History congratulates Professor Karen Tani on receiving the Cromwell Book Prize for her work, States of Dependency: Welfare, Rights, and American Governance, 1935-1972 (Cambridge University Press, 2016). The prize, awarded at the annual meeting of the American Society for Legal History, recognizes excellence in scholarship in the field of American Legal History by a junior scholar.

Likhovski on “One of the Best Parts of Writing the Book”–His Sources

In a second clip from our 3-part interview,  series author Professor Assaf Likhovski describes the joy of discovering unexpected sources, and how those same sources fundamentally shaped his project. You can read more about Professor Likhovski’s book, Tax Law and Social Norms in Mandatory Palestine and Israel (Cambridge University Press, 2017), here. If you missed part one of the interview–in which Professor Likhovski provides an overview of his book–you can catch up here. The third and final clip is also available on the SLH website. A transcription of the interview, lightly edited for clarity, follows.

When I began writing my book, I used rather conventional sources, such as case law and archival documents found in governmental archives (such as the British National Archives or the Israel State Archives). But, as time progressed, I discovered that I had more interest in writing the social history of tax compliance, rather than just focusing on the official, top-down governmental history. And so I moved to really exciting sources–such as propaganda posters, tax movies, children’s poems, and literature dealing with tax compliance and tax non-compliance. And these sources were found in archives which were not conventional archives. For example, in the book I discuss a really fascinating institution, called the Tax Museum, which exists in Jerusalem. And this is a museum that displays objects related to taxation, but also contains a small archive with fascinating visual materials related to the history of tax compliance in Israel.

I really enjoyed actually discovering these materials which not many people—I think nobody before me—has thought relevant for the writing of tax history in Israel. And it was a great experience doing the research for the project; it was actually one of the best parts of writing the book.

There were some sources that were missing; for example, in chapter four of my book, I discuss the history of tax compliance in the Arab sector of Israeli society in the 1950s, and it was very difficult to find sources discussing tax compliance among Arabs in that period. I used some sources from the state comptroller’s office, but I could not come across many relevant sources, apart from official documents about the Arabs–which are obviously biased because they represent the point of view of the government, rather than Arab taxpayers. So this is a part of my book that I feel could have been better had I been able to use more sources that I could not find.

Likhovski on Tax Law and Social Norms in Mandatory Palestine and Israel

Assaf Likhovski, Professor of Law and Legal History at Tel Aviv University, was kind enough to sit down recently to discuss his recent book, Tax Law and Social Norms in Mandatory Palestine and Israel (Cambridge University Press, 2017). In this clip, he gives a short overview of the book and its importance both to the history of tax compliance and to contemporary events. An edited transcription follows. You can view the second and third parts of this video interview series on the SLH website.

My book, Tax Law and Social Norms in Mandatory Palestine and Israel, tells the story of what I call the intimate fiscal state. This is a type of state that attempted to use social norms, rather than legal ones, to induce compliance. In my book I show how this type of state rose, and later declined, in one specific location: mandatory Palestine and the state of Israel in the middle decades of the twentieth century. My story is focused on Israel, but I think it actually tells a story which is applicable to other tax jurisdictions in the middle decades of the twentieth century. Now, the story that I tell is obviously of interest to tax historians and to legal historians, but I think it also has some contemporary relevance to people interested in the current global crisis that we are witnessing these very days. A large factor in this crisis is a decline of tax compliance by wealthy individuals and by corporations, for example due to the proliferation of offshore tax havens. This fiscal crisis leads to a political crisis because it undermines the trust that ordinary citizens have in the state and in their fellow taxpayers, and it leads to political movements, such as populist nationalism, that arise out of this crisis. So I think going back to the past and looking at the way in which states in the past have tried to induce compliance is actually relevant to people interested, not in history, but in contemporary politics. Israeli tax compliance is far from perfect, but I think the story of how the Israeli state attempted to induce tax compliance in the mid-twentieth century is actually very relevant even for people interested in the present and not in the past.

Reviews Roll In For McKinley’s Fractional Freedoms

Professor Michelle McKinley’s recent publication with Studies in Legal History, Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700 (Cambridge University Press, 2016) continues to garner favorable reviews:

You can read Susan Hogue Negrete’s October 2017 review of Fractional Freedoms in H-LatAm here.

Lea VanderVelde’s November 2017 review of Fractional Freedoms in Law and History Review Volume 35, Issue 4 is available here.

H-Law published Lyman Johnson’s review of Fractional Freedoms in December 2017. You can read that review here.

Paul Garfinkel Honored with the Helen and Howard R. Marraro Prize

Series author Paul Garfinkel has been honored by the American Historical Association’s Helen and Howard R. Marraro Prize for 2017 for his Criminal Law in Liberal and Fascist Italy (Cambridge University Press, 2016). The award recognizes outstanding work in Italian history or Italian-American relations. Garfinkel’s book is the first comprehensive history of the development of penal policy between the period of Italian unification and the rise of fascism, offering an important revisionist account of the respective roles of liberal and Lombrosian ‘positivist’ jurists in the development of the new criminal codes.

The American Society of Legal History Annual Meeting 2017

The American Society of Legal History will hold its annual meeting in Las Vegas on October 26th, 27th, and 28th. SLH is particularly excited about the Friday afternoon “author meets reader” session on Michelle McKinley’s book Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600–1700. Fractional Freedoms, which was awarded the 2017 Judy Ewell Award for the Best Publication in Women’s History, presented by the Rocky Mountain Council for Latin American Studies (RMCLAS), explores how thousands of slaves in colonial Peru were able to secure their freedom and keep their families intact through the use of legal mechanisms. Through extensive archival research, Professor McKinley excavated the experiences of enslaved women whose historical footprint is barely visible in the official record. In doing so she complicates the way we think about life under slavery and demonstrates the degree to which slaves were able to exercise their own agency, despite being ensnared by the Atlantic slave trade.

Commenting on Professor McKinley’s book is a panel of experts on slavery, race, and Latin American Law: Victor Uribe of Florida International University, Kelly Kennington of Auburn University, and Carolina Gonzalez of the University of Chile. The session will take place Friday afternoon at 2:15 in Room 102 of UNLV’s Boyd School of Law.

Secession on Trial: The Treason Prosecution of Jefferson Davis

Cynthia Nicoletti. Cambridge University Press (October 2017). Available to order via Cambridge University Press or Amazon.

Sovereignty, International Law, and the French Revolution

Edward James Kolla. Cambridge University Press, October 2017. Available via Cambridge University Press and Amazon.

An Exchange on Critical Legal Studies between Robert W. Gordon and William Nelson

Studies in Legal History (SLH) is pleased to share with our readers an exchange between Robert W. Gordon and William Nelson on critical legal studies. This exchange, of interest to legal historians, was not included in SLH’s publication of Gordon’s collected essays because of its nature as a dialogue between the two scholars, rather than a free-standing work by Gordon. However, we recognized the import of this interchange as it intersects with Gordon’s work and issues of great moment to the field, so we are making it available here (click the link below to read the exchange as a PDF). You can also read more about Gordon’s recent publication with the series, Taming the Past: Essays on Law and History and History in Law (Cambridge University Press, 2017) here.

Gordon-Nelson Exchange-1

Impeachment: The Constitutional Problems: Who Said That a 44 Year-Old Monograph Can’t Be Relevant?

R. B. Bernstein, City College of New York

In today’s atmosphere of constitutional sturm und drang, many are revisiting the 1972-1974 Watergate crisis, which forced President Richard M. Nixon to resign. The Studies in Legal History series played a supporting role in that crisis by publishing Raoul Berger’s Impeachment: The Constitutional Problems (1973). Impeachment made Berger a major figure in the impeachment debates. His stature as a leading constitutional scholar and a progenitor of originalist jurisprudence was evident then, and only grew over time.

Born in 1901 in the Ukraine, Berger came to the United States with his family in 1904. After a career as a violinist, he graduated from the University of Cincinnati and the Northwestern University School of Law, earning his LL.M. from the Harvard Law School. Following a legal career in government service and private practice, he taught at the University of California, Berkeley, Law School and became Harvard’s Charles Warren Senior Fellow in Legal History.

In the 1960s, Berger launched a second career as a constitutional historian. In his first book, Congress vs. the Supreme Court: An Exercise in Dialectic (1969), he analyzed the nature of congressional power over the Court’s jurisdiction. In his next book, Berger worked to develop law-review articles on impeachment that he had published in the 1960s into a book. Working closely with Stanley N. Katz, the first editor of Studies in Legal History, Berger crafted a formidable study focusing on impeachment in early modern England, which he identified as the key influence on the Constitution’s framers. The 1968-1970 controversies over Republican efforts (secretly backed by President Nixon) to impeach Justices William O. Douglas and Abe Fortas drove Berger’s interest. So, too, did the James Madison biographer Irving Brant, who responded to the Douglas and Fortas controversies by publishing Impeachment: Trials and Errors (1972).

Berger’s book dwarfed Brant’s in its scholarship, but they also differed on three substantive points. First, Berger maintained that impeachable offenses were not limited to indictable felonies but also included violations of the constitutional system’s central principles. Second, Berger claimed, an impeachment proceeding could be subject to judicial review. Third, he insisted, those concerned with judicial misconduct, incompetence, or corruption could forgo the unwieldy mechanism of impeachment and use instead the common-law writ of scire facias to remove federal judges – a remedy more legitimate than manipulation of courts’ dockets to keep cases away from judges deemed incompetent or unfit.

Berger’s argument for a broader understanding of impeachable offenses shaped the core of the controversy over impeaching Nixon. Rep. Peter J. Rodino (D-NJ), who chaired the House Judiciary Committee, reportedly was so fearful of fanning speculation about impeachment that he removed the jacket of Berger’s book while reading it, so that others would not see what he was reading.

Berger’s scholarship fueled the impeachment inquiry against Nixon in other ways. The House Judiciary Committee published an anthology, Impeachment: Selected Materials (1973), featuring Berger’s law-review article on impeachable offenses, the most influential argument of his Studies in Legal History volume. Also, Bantam issued mass-market paperback editions of Congress vs. the Supreme Court, Impeachment: The Constitutional Problems; and Executive Privilege: A Constitutional Myth (1974), a trilogy that Garry Wills praised as “one of the scholarly landmarks of our time.”

Berger’s subsequent work defined a new direction for constitutional scholarship. In a series of combative monographs, beginning with Government by Judiciary: The Transformation of the Fourteenth Amendment (1977), and including studies of federalism and the death penalty, Berger used originalist methodology to challenge much of modern constitutional jurisprudence’s orthodoxy. Many former admirers challenged him on methodological and substantive issues; Berger fired back in what seemed to his critics to be endless law-review articles. He died in 2000.

Impeachment: The Constitutional Problems has lasted the longest of his books – but it has not gone unchallenged. In Impeachment in America, 1635-1805 (1984), historians Peter Charles Hoffer and N.E.H. Hull paralleled Berger’s conclusions about the meaning of impeachable offenses but disputed Berger’s emphasis on English sources; insisting that historians seeking to understand the development of impeachment in America had to consider American colonial, revolutionary, and early national sources.

Still, as it did during the 1998-1999 controversy over impeaching President Bill Clinton, Raoul Berger’s landmark study is again finding readers, as the nation considers whether the words and deeds of another president merit impeachment. Not bad for a 44-year-old monograph in a scholarly book series devoted to legal history.

Picture of Raoul Berger sourced from Liberty Fund (http://oll.libertyfund.org/titles/berger-government-by-judiciary-the-transformation-of-the-fourteenth-amendment).

Tax Law and Social Norms in Mandatory Palestine and Israel

Assaf Likhovski (Cambridge University Press, July 2017).  Available to order from Cambridge University Press and Amazon.

Taming the Past: Essays on Law in History and History in Law

Robert W. Gordon (Cambridge University Press, June 2017). Available  via Cambridge University Press or Amazon. Listen here as Professor Gordon discusses his book.

Lawyers and judges often make arguments based on history – on the authority of precedent and original constitutional understandings. They argue both to preserve the inspirational, heroic past and to discard its darker pieces – such as feudalism and slavery, the tyranny of princes and priests, and the subordination of women. In doing so, lawyers tame the unruly, ugly, embarrassing elements of the past, smoothing them into reassuring tales of progress. In a series of essays and lectures written over forty years, Robert W. Gordon describes and analyses how lawyers approach the past and the strategies they use to recruit history for present use while erasing or keeping at bay its threatening or inconvenient aspects. Together, the corpus of work featured in Taming the Past offers an analysis of American law and society and its leading historians since 1900.

Endorsements:

“Robert W. Gordon has been one of the preeminent commentators on the rapid rise of American Legal History as a discipline. Each of these essays, written over the past forty years, constitutes an important example of his unequalled influence over the dramatic development of the field.”

–Morton Horwitz, Charles Warren Professor of American Legal History, Emeritus

“The sparkling essays of one of the preeminent legal historians of our era are now collected in one place, where they can talk with each other. Here we see the vintage apercus that make us laugh aloud at Gordon’s wit and nod our head at his wisdom. So, for example, we see Gordon discussing ‘Willard Hurst’s benign, if also rather insistent, influence;’ talking about how ‘dead paradigms … never really get killed off [in law], but hang around and Dracula-like, rise from their coffins to stalk the earth;’ observing that E. P. Thompson ‘almost never (save when exposing an opponent as an ignorant twit) showed off how hard he had been working;’ and pointing out that ‘history does not make a good domestic pet.’ This book is a real treat!”

–Laura Kalman

“Once an arcane backwater, mostly located in the backrooms of law schools, disconnected from the main themes of academic legal study, legal history has become a site of core controversies, ones that everyone involved with the study of law had to engage with. Legal history is where scholars from emerging fields of ‘non-legal’ history – including historical studies of gender, of race, and of market capitalism – found the scholarly perspectives that made possible exciting new work about law. The writings of Robert W. Gordon helped guide how it all happened. American scholarship owes him a debt of gratitude. And it is good that a new generation will be introduced to his analytic clarity, to his wisdom, and to his attractive voice, through this accessible edition.”

–Hendrik Hartog, Princeton University

“For four decades, Robert W. Gordon has provoked, inspired, and nourished the writing of critical legal histories. I can still recall the exhilaration of reading him as a student. This indispensable volume collects classics and little-known essays that will engage first-time and returning readers with unsettling questions about the ways we understand law’s history and authority.”

–Reva Siegel, Nicholas deB. Katzenbach Professor, Yale Law School

McKinley Honored with Judy Ewell Award

It is with great pleasure that we announce that Professor Michelle McKinley has been awarded the 2017 Judy Ewell Award for the Best Publication in Women’s History, presented by the Rocky Mountain Council for Latin American Studies (RMCLAS). She received this honor for her recent publication with the Studies in Legal History series, Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700 (Cambridge University Press, 2016). The award will be presented at the RMCLAS banquet in Salt Lake City, Utah, in April. In the meantime, we congratulate Professor McKinley for the well-deserved recognition for Fractional Freedoms. Listen to Professor McKinley discuss her work in this recent interview or read more about Fractional Freedoms here.

Criminal Law in Liberal and Fascist Italy

Paul Garfinkel, December 2016. Cambridge University Press. Available to purchase via Cambridge University Press and Amazon.

By extending the chronological parameters of existing scholarship, and by focusing on legal experts’ overriding and enduring concern with ‘“-dangerous-”’ forms of common crime, this book offers a major reinterpretation of criminal-law reform and legal culture in Italy from the Liberal (1861–1922) to the Fascist era (1922–1943). Paul Garfinkel argues that scholars have long overstated the influence of positivist criminology on Italian legal culture and that the kingdom’s penal-reform movement was driven not by the radical criminological theories of Cesare Lombroso, but instead by a growing body of statistics and legal research that related rising rates of crime to the instability of the Italian state. Drawing on a vast array of archival, legal and official sources, the author explains the sustained and wide-ranging interest in penal-law reform that defined this era in Italian legal history while analyzing the philosophical underpinnings of that reform and its relationship to contemporary penal-reform movements abroad.

Garfinkel’s Criminal Law in Liberal and Fascist Italy received the 2017 Helen and Howard R. Marraro Prize for best book on Italian History.

Endorsements:

“Professor Garfinkel’s book is one of those rare works of original scholarship that succeeds in covering both the Liberal and Fascist eras in Italian history at the national level. By concentrating on common crime rather than political crimes, he has developed an extremely original thesis that challenges the established interpretations of jurisprudence in the nineteenth and twentieth centuries.”

-Anthony Cardoza, Loyola University Chicago

“Paul Garfinkel’s vivid account of the development of Italian criminal justice from the perspective of prominent criminal law practitioners relies on a stunning array of sources to craft a convincing argument. An insightful contribution to the study of European law and society, the book offers an important counterpoint to prevailing historiography.”

–Maura Hametz, Old Dominion University

Eloquently written, and with a welcome focus on the treatment of ordinary rather than political crime, Garfinkel’s ground-breaking book persuasively challenges scholarly understandings of the ideas and debates inspiring penal reform in Liberal Italy and the first decade of Mussolini’s fascist regime.

-Dr. Jonathan Dunnage, Swansea University

“This elegantly written and widely researched study of criminal law in liberal and fascist Italy challenges the widely accepted view that Italy’s 1930 criminal law code was fascist, positivist and anti-liberal in inspiration. Engaging with the wider de- bates on the relationship between liberalism and fascism, Paul Garfinkel’s conclusions will attract the attention of scholars in many different fields.”

-John Davis, University of Connecticut

Reviews:

R.J.B Bosworth of Jesus College, University of Oxford, reviewed Criminal Law in Liberal and Fascist Italy for European History Quarterly (vol. 47, issue 4) in 2017. You can read the review online here.

SLH Welcomes Reuel Schiller to the Editorial Team

Studies in Legal History Editors Holly Brewer, Michael Lobban, and Sarah Barringer Gordon welcome Reuel Schiller to the ALH editorial team.

“I am deeply honored to become a co-editor of the Society’s Studies in Legal History series,” Schiller said. “The series’ list is a tremendous one, and its role in nurturing young legal historians is exceptionally important. Our field is growing, both in numbers and in the range of legal subjects that scholars are viewing through a historical prism. I appreciate the opportunity to advance the work of the series in this exciting time for our discipline.”

Reuel Schiller is The Honorable Roger J. Traynor Chair and Professor of Law at the University of California, Hastings College of the Law, where he teaches American legal history, administrative law, and labor and employment law. He is the recent recipient of the 2016 John Phillip Reid Book Award from the American Society for Legal History and has written extensively about the legal history of the American administrative state, and the historical development of labor law and employment discrimination law. He is the author of Forging Rivals: Race, Class, Law, and the Collapse of Postwar Liberalism (Cambridge University Press, 2015), as well as numerous articles on the history of American labor law and administrative law in the twentieth century. In 2008, he was awarded the American Bar Association, Section on Administrative Law and Regulatory Practice Award for Scholarship in Administrative Law. Forging Rivals was awarded the 2016 John Phillip Reid Book Award from the American Society for Legal History  and received an honorable mention for the 2016 J. Willard Hurst Prize from the Law and Society Association.  His current research focuses on the development of administrative law and the regulatory state after the collapse of the New Deal order.

Reuel is particularly (though not exclusively) interested in working with authors writing about subjects in nineteenth and twentieth-century American legal history related to state-building, the employment relationship, constitutional law, public law, and the interaction of race and class in the legal system. Though his own work sits at the juncture of legal, political, and intellectual history, he is delighted to work with authors across a wide range of methodologies and subjects.

Michelle McKinley On Fractional Freedoms

Professor Michelle McKinley, the Bernard B. Kliks Associate Professor of Law at the University of Oregon School of Law, discusses her forthcoming book Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700 (Cambridge University Press, September 2016). The book explores slavery and what Professor McKinley terms “fractional freedoms” in the context of colonial Peru.

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Robert W. Gordon on Taming the Past

Professor Robert W. Gordon of Stanford Law School discusses his book, a collection of essays entitled Taming the Past: Essays on Law and History and History in Law (Cambridge University Press, 2017). The essays examine the ways in which lawyers make use of history and attempt to “tame” it to their own purposes. In the video clips below, Professor Gordon discusses Taming the Past and his inspiration for writing it.

Professor Gordon on his forthcoming book and why he titled it Taming the Past:

This book is a collection of essays and lectures that I’ve written over a period of about forty years; the first essay in the collection was written in 1975, and the last one was written last year, in 2015. And they’re all around the same theme and variations on the theme, which is how lawyers use history. And lawyers use history in a variety of ways. The most common use, obviously, is as authority. When we cite precedent, we’re saying that because we did something one way in the past, we should continue to do it today. Sometimes they use historical periods as a source of inspiration, like our founding, the golden age of American politics. And sometimes history is used as a series of examples of what we should be moving away from. At the founding of the Republic, these were autocratic monarchy, ecclesiastical tyranny, and feudalism. In our day these are things like slavery, the remnants of Jim Crow, and past invidious discrimination and so forth.

So history, as used by lawyers, has a lot of different modes. Lawyers are, among other things, historians; they write stories about the past. And this book is partly a kind of analysis of the way lawyers use history and the past and it’s also partly a history of the histories that lawyers write about the past. And my focus is basically on lawyers’ uses of history from the seventeenth century onward. And then it’s a critical analysis of the various uses that lawyers make of history. Lawyers obviously are using history for present purposes; it’s very motivated history, which generally means that it’s rather distorted and one-sided history. It’s history put together by advocates for a particular legal position. So one of the things that I’m trying to get at in this book is the various ways in which lawyers obscure or soften or modify aspects of the past that they think are dangerous to present projects. The title of this book is Law in History, History in Law: Taming the Past. And the “taming” part of the title refers to the ways in which lawyers try to make the past manageable–try to obscure, or soften, or modify the frightening, unruly, disruptive, subversive aspects of the past.

Professor Gordon on what inspired him to write Taming the Past:

We’re living in a period in which lawyers are very intensively once again resorting to history. And a lot of the ways that history is used nowadays is by relatively conservative lawyers who are trying to use the past to reproach the present. That is, to say that there was an earlier, freer, happier, more communitarian, more solidary, more religious time before our present disorders. And they date the disorders to the New Deal and the welfare state and the sexual revolution—all of the sort of discomforting aspects of modernity. So there’s a strong urge in conservative legal history to return to what they think is a sturdier and sweeter and more golden period. So I think we’re living at a kind of high point of sort of nostalgic history. Liberals, on the other hand, are much more inclined to represent the past as full of things that we should be moving away from—things that we should be leaving behind with the march of progress. And the book that I’m writing really is trying to see the best in both of these approaches. Both to understand the past as full of episodes and tendencies and views and conditions that we would not want to return to, but also as a source of inspiration for the present.

Sophia Lee and Michelle McKinley on Archival Finds

What makes an archival visit go from good to great? Professors Michelle McKinley of Oregon University School of Law and Sophia Lee of the University of Pennsylvania Law School discuss “happenstance discoveries” made in the archives and the significance of these finds to their own projects. Read more about the works shaped by this archival labor in Professor Lee’s recent book, The Workplace Constitution from the New Deal to the New Right (2014) and Professor McKinley’s forthcoming Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700 (2016).

Edited transcripts of the videos follow:

Professor Sophia Lee on her experiences in the archives:

So I’ve worked in a range of different archives, I work all over the country, but some of the best stuff I’ve found was really happenstance. There were a few happenstance discoveries that I made in the archives that I feel like I really couldn’t have written the book without and they were flukes that I found them, to some extent. One of them came from being at the National Archives and just asking for more, and more, and more records and all of them had to be cleared by somebody in the back. This guy wasn’t even really an archivist but eventually he came out and he said,

“okay, you seem to be really interested in all these things. We don’t really have any of these things, but I do have this random, single microfilm roll from some moment when JFK said all agencies should microfilm all their records for some kind of record preservation. And it was kind of a partial undertaking—some agencies did it, some didn’t, none did it completely, but the Department of Justice has this one microfilm reel—and you’re welcome to look at it.”

And I found things in there that were kind of the lynchpin of the book, and I never would have been able to write it otherwise. I think you really have to, when you’re going out to the archives, befriend archivists, talk to people, and chat them up about your project. And be persistent, because sometimes the things you are going to most value are not going to be things you’re ever going to see listed in a finding aid.

I am already working on my next project and it doesn’t necessarily tie directly in, but in many ways the second book is inspired by something I found in the archives when I was working on the first book that just rung a little bell for me and set off a series of questions that have kind of tickled at my brain ever since. And so I just sort of set it aside; oh maybe that will be…at first I thought maybe just an article or something that would follow on and once I started digging deeper it has grown in to what I think will be a whole book project. So the intellectual roots [of the second book project] are certainly in the first one even if the subject matter is not entirely the same.

Professor Michelle McKinley on her experiences in the archives:

Right at the time that I’m finishing writing—I’m on sabbatical, and I’m finishing my book, I have all my evidence gathered from the past ten years and I’m sitting down to write—the archivist says to me “you know, there’s a box. And we’ve never catalogued it; we’ve just never have had the time. Maybe it’s of interest to you?” So, I said (I’m always interested), so I’m like, “sure, I’ll look at it!” And then they bring me this box and it’s literally, you know, I want to say, sheaves of paper that are tied up with string. So what happens is that when you open the string…so, imagine opening a Christmas present that is sort of just, you know, not in a box the way that we have them now, but you open it and you just see hundreds of pieces of loose paper. And I look at it and I’m looking and it’s handwritten and it is…they’re called censuras.

It’s a huge find for me, and it comes at exactly the wrong time. Because I am finishing my book, and here I have this find that nobody has ever looked at. And it’s not that people are negligent in the archive, they just have so much material. And I have a feeling that this was a box that was just sitting there, waiting, because it was going to be so tedious to go through each piece of paper, figure out how to catalogue it, and where it went to. So here I am and I’m looking at…so, censuras are what I call spiritual subpoenas in which a litigant gets the priest at high mass to urge people to come forward with any information that he or she might have about a proceeding. And it can only take place, it can only be issued by the priest.

Then I started to get really really interested in it and so I go back and I look at all of these ecclesiastical manuals, and it tells the priest that they’re to cover the Bible in black cloth and have a candle burning and this is the prayer: it says “if you don’t come forth, you will be condemned to Hell, your wives will be widows, your children will be orphans, they’ll go begging from door to door and nobody will receive them. Sodom and Gomorrah, the fate of Sodom and Gomorrah, and everything will happen to you.” So it’s actually pretty scary. It’s this way that they’re using the pulpit and the power of God to say “you need to come forth with any information that you have.” It turned out to be a very effective way of getting people to talk about what they knew or what they might have witnessed. So what I ended up doing, because I can’t dig into the whole box (there’s like 9,000 pieces of paper), what I ended up doing was looking at—because I was writing a chapter on baptism—children whose mothers, or children who then grew up later, using this process to get people who knew that they were freed as children to come into the court. So I focused on that and you know I really want to go back and just spend more time with it.

Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600–1700

Michelle McKinley. September 2016. Cambridge University Press. Available to purchase via Cambridge University Press and Amazon.

Fractional Freedoms explores how thousands of slaves in colonial Peru were able to secure their freedom, keep their families intact, negotiate lower self-purchase prices, and arrange transfers of ownership by filing legal claims. Through extensive archival research, Michelle A. McKinley excavates the experiences of enslaved women whose historical footprint is barely visible in the official record. She complicates the way we think about life under slavery and demonstrates the degree to which slaves were able to exercise their own agency, despite being ensnared by the Atlantic slave trade. Enslaved women are situated as legal actors who had overlapping identities as wives, mothers, mistresses, wet-nurses and day-wage domestics, and these experiences within the urban working environment are shown to condition their identities as slaves. Although the outcomes of their lawsuits varied, Fractional Freedoms demonstrates how enslaved women used channels of affection and intimacy to press for liberty and prevent the generational transmission of enslavement to their children.

Endorsements:

“This is, without a doubt, one of the richest, most complex and well-researched studies of urban slavery in colonial Latin America. McKinley brings acute legal knowledge, both of the content of law and of its performative practice, to a study of enslaved men and women. The archival wealth here, plus the author’s ability to tell a compelling yarn, produce an engaging and scholarly tome.”
–Karen B. Graubart, Associate Professor, University of Notre Dame

“Michelle McKinley has written a book that embodies the richness of recent Latin American legal history and also transcends that literature. Fractional Freedoms is rooted in heroic work in recondite and intractable archives in Europe and in the Americas. It is shaped by an incredibly sophisticated historical imagination, and is also filled with really interesting and well told stories about the negotiations and the local lives of enslaved Africans in early modern Lima. There are surprises on every page. For anyone interested in the global history of slavery, which by rights should be every serious student of history, this is the state of the art.”
–Hendrik Hartog, Class of 1921 Bicentennial Professor in the History of American Law and Liberty, Princeton University

“This is a first-rate piece of original, archive-based scholarship. It is a meticulous and extremely thoughtful examination of women’s lives under slavery in and around Lima, Peru, a part of the Americas few connect with this institution. What really sets this book manuscript apart is the author’s razor-sharp understanding and clear
explanation of the colonial legal system. This book is a fully accessible social history that … contributes substantially to the growing history of the African diaspora.”
–Kris Lane, Scholes Professor, Tulane University

Reviews:

Susan Hogue Negrete reviewed Fractional Freedoms in October 2017 in H-LatAm. You can read her review here.

Lea VanderVelde reviewed Fractional Freedoms in November 2017 in Law and History Review Volume 35, Issue 4. You can read the review here.

H-Law published Lyman Johnson’s review of Fractional Freedoms in December 2017. You can read that review on H-Net here.

About the Author:

Michelle McKinley is the Bernard B. Kliks Professor of Law. She teaches Immigration Law and Policy, Public International Law, International Criminal Law, and Refugee & Asylum Law. Professor McKinley attended Harvard Law School, where she was Executive Editor of the Harvard Human Rights Journal and graduated cum laude in 1995. Professor McKinley also holds a Masters Degree in Social Anthropology from Oxford University.

McKinley has extensively published work on public international law, Latin American legal history, and the law of slavery. Her articles appear in the Law and History Review; Slavery & Abolition; Journal of Family History, Berkeley Journal of Gender, Law & Justice; Identities: Global Studies in Culture and Power; Yale Journal of Law and the Humanities, and Unbound: Harvard Law Journal of the Legal Left, among others. She has been granted fellowships for her research from the American Council of Learned Societies, the National Science Foundation, the National Endowment for the Humanities, the American Philosophical Society, and the Newberry Library. She was awarded the Surrency Prize in 2011 for her article, “Fractional Freedoms: Legal Activism & Ecclesiastical Courts in Colonial Lima, 1593-1700.” In 2014, she was a fellow in residence at Princeton University’s Program in Law and Public Affairs, where she completed a book on enslaved women in colonial Latin America using courts to litigate their claims to liberty.

Prior to joining the academy, Professor McKinley was the former Managing Director of Cultural Survival, an advocacy and research organization dedicated to indigenous peoples. She is also the founder, and former director, of the Amazonian Peoples’ Resources Initiative, a community based reproductive rights organization in Peru, where she worked for nine years as an advocate for global health and human rights.

See Professor McKinley’s page on the University of Oregon’s School of Law website for more information.

States of Dependency: Welfare, Rights, and American Governance, 1935-1972

Karen M. Tani

April 2016. Order online through Amazon or Cambridge University Press (ISBN: 9781107613218).

Who bears responsibility for the poor, and who may exercise the power that comes with that responsibility? Amid the Great Depression, American reformers answered this question in new ways, with profound effects on long-standing practices of governance and entrenched understandings of citizenship. States of Dependency traces New Deal welfare programs over the span of four decades, asking what happened as money, expertise, and ideas traveled from the federal administrative epicenter in Washington, DC, through state and local bureaucracies, and into diverse and divided communities.
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Women and Justice for the Poor: A History of Legal Aid, 1863–1945

Felice Batlan.

April 2015. Order online through Cambridge University Press or Amazon.

Women and Justice for the Poor: A History of Legal Aid, 1863-1945 re-examines our fundamental assumptions about the American legal profession, and the boundaries between “professional” lawyers, “lay lawyers,” and social workers. Putting legal history and women’s history in dialogue, it demonstrates that nineteenth-century women’s organizations first offered legal aid to the poor and that middle-class women functioning as lay lawyers, provided such assistance. By the early twentieth century, male lawyers founded their own legal aid societies. These new legal aid lawyers created an imagined history of legal aid and a blueprint for its future in which women played no role and their accomplishments were intentionally omitted. In response, women social workers offered harsh criticisms of legal aid leaders and developed a more robust social work model of legal aid. These different models produced conflicting understandings of expertise, professionalism, the rule of law, and ultimately the meaning of justice for the poor. (more…)

The Old English Penitentials and Anglo-Saxon Law

Stefan Jurasinski.

April 2015. Order online via Cambridge University Press or Amazon.

In this book, Stefan Jurasinski offers a rich new insight into the nature of law and society in Anglo-Saxon England through a close study of penitential texts, written in the vernacular for priestly use. As these texts bear witness, Anglo-Saxon England’s code of norms was more complex than has often been assumed by historians who have only made use of the legislative codes of Anglo-Saxon kings. The vernacular penitentials gave expression to norms that were not voiced by royal legislation but which must have enjoyed the status of customary law. Jurasinski’s close examination of the content of these texts across a number of chapters offers us new insight into the nature of Anglo-Saxon norms in such diverse areas as slavery, marriage and welfare. It also gives greater insight in to Anglo-Saxon notions of intention and guilt than is to be found in the secular texts.

Law and Identity in Colonial South Asia: Parsi Legal Culture 1772-1947

Mitra Sharafi.

March 2014. Order online through The Cambridge University Press or Amazon. ISBN: 9781107047976.

This book explores the legal culture of the Parsis, or Zoroastrians, an ethnoreligious community unusually invested in the colonial legal system of British India and Burma. Rather than trying to maintain collective autonomy and integrity by avoiding interaction with the state, the Parsis sank deep into the colonial legal system itself. From the late eighteenth century until India’s independence in 1947, they became heavy users of colonial law, acting as lawyers, judges, litigants, lobbyists, and legislators. They de-Anglicized the law that governed them and enshrined in law their own distinctive models of the family and community
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The Workplace Constitution from the New Deal to the New Right

Sophia Z. Lee.
October 2014. Order online through the Cambridge University Press or Amazon. ISBN: 9781107613218.

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The Fascists and the Jews of Italy: Mussolini’s Race Laws, 1938-1943

Michael A. Livingston.

December 2013. Order online through Cambridge University Press or Amazon. ISBN: 9781107027565.

From 1938 until 1943 – before the German occupation and accompanying Holocaust – Fascist Italy drafted and enforced a comprehensive set of anti-Semitic laws. Notwithstanding later rationalizations, the laws were enforced and administered with a high degree of severity and resulted in serious, and in some cases permanent, damage to the Italian Jewish community. Written from the perspective of an American legal scholar, this book constitutes the first truly comprehensive survey of the Race Laws in the English language. Based on an exhaustive review of Italian legal, administrative, and judicial sources, together with archives of the Italian Jewish community, Professor Michael A. Livingston demonstrates the zeal but also the occasional ambivalence and contradictions with which the Race Laws were applied and assimilated by the Italian legal order and ordinary citizens. (more…)

Before Eminent Domain: Toward a History of Expropriation of Land for the Common Good

Susan Reynolds.

Published 2010. Order online through The University of North Carolina Press or Amazon. ISBN: 978-0-8078-3353-7.

In this concise history of expropriation of land for the common good in Europe and North America from medieval times to 1800, Susan Reynolds contextualizes the history of an important legal doctrine regarding the relationship between government and the institution of private property. Before Eminent Domain concentrates on western Europe and the English colonies in America. As Reynolds argues, expropriation was a common legal practice in many societies in which individuals had rights to land. It was generally accepted that land could be taken from them, with compensation, when the community, however defined, needed it. She cites examples of the practice since the early Middle Ages in England, France, Germany, Italy, and Spain, and from the seventeenth century in America. Reynolds concludes with a discussion of past and present ideas and assumptions about community, individual rights, and individual property that underlie the practice of expropriation but have been largely ignored by historians of both political and legal thought. (more…)

Juries and the Transformation of Criminal Justice in France in the Nineteenth and Twentieth Centuries

James M. Donovan.

Published 2010. Order online through The University of North Carolina Press or Amazon. ISBN: 978-0-8078-3363-6.

James Donovan takes a comprehensive approach to the history of the jury in modern France by investigating the legal, political, sociocultural, and intellectual aspects of jury trial from the Revolution through the twentieth century. He demonstrates that these juries, through their decisions, helped shape reform of the nation’s criminal justice system. From their introduction in 1791 as an expression of the sovereignty of the people through the early 1900s, argues Donovan, juries often acted against the wishes of the political and judicial authorities, despite repeated governmental attempts to manipulate their composition. High acquittal rates for both political and nonpolitical crimes were in part due to juror resistance to the harsh and rigid punishments imposed by the Napoleonic Penal Code, Donovan explains. In response, legislators gradually enacted laws to lower penalties for certain crimes and to give jurors legal means to offer nuanced verdicts and to ameliorate punishments. Faced with persistently high acquittal rates, however, governments eventually took powers away from juries by withdrawing many cases from their purview and ultimately destroying the panels’ independence in 1941.
(more…)

Domestic Secrets: Women and Property in Sweden, 1600-1857

Maria Ågren.

Published 2009. Order online through The University of North Carolina Press or Amazon. ISBN: 978-0-8078-3320-9.

Between the seventeenth and nineteenth centuries, women’s role in the Swedish economy was renegotiated and reconceptualized. Maria Agren chronicles changes in married women’s property rights, revealing the story of Swedish women’s property as not just a simple narrative of the erosion of legal rights, but a more complex tale of unintended consequences. A public sphere of influence–including the wife’s family and the local community–held sway over spousal property rights throughout most of the seventeenth century, Agren argues. Around 1700, a campaign to codify spousal property rights as an arcanum domesticum, or domestic secret, aimed to increase efficiency in legal decision making. New regulatory changes indeed reduced familial interference, but they also made families less likely to give land to women. The advent of the print medium ushered property issues back into the public sphere, this time on a national scale, Agren explains. Mass politicization increased sympathy for women, and public debate popularized more progressive ideas about the economic contributions of women to marriage, leading to mid-nineteenth-century legal reforms that were more favorable to women. Agren’s work enhances our understanding of how societies have conceived of womens contributions to the fundamental institutions of marriage and the family, using as an example a country with far-reaching influence during and after the Enlightenment. (more…)

Working Knowledge: Employee Innovation and the Rise of Corporate Intellectual Property, 1800-1930

Catherine L. Fisk.

Published 2009. Order online through The University of North Carolina Press or Amazon. ISBN: 978-0-8078-3302-5.

Skilled workers of the early nineteenth century enjoyed a degree of professional independence because workplace knowledge and technical skill were their “property,” or at least their attribute. In most sectors of today’s economy, however, it is a foundational and widely accepted truth that businesses retain legal ownership of employee-generated intellectual property. In Working Knowledge, Catherine Fisk chronicles the legal and social transformations that led to the transfer of ownership of employee innovation from labor to management. This deeply contested development was won at the expense of workers’ entrepreneurial independence and ultimately, Fisk argues, economic democracy. By reviewing judicial decisions and legal scholarship on all aspects of employee-generated intellectual property and combing the archives of major nineteenth-century intellectual property-producing companies–including DuPont, Rand McNally, and the American Tobacco Company–Fisk makes a highly technical area of law accessible to general readers while also addressing scholarly deficiencies in the histories of labor, intellectual property, and the business of technology. (more…)

Catalonia’s Advocates: Lawyers, Society, and Politics in Barcelona, 1759-1900

Stephen Jacobson.

Published 2009. Order online through The University of North Carolina Press or Amazon. ISBN: 978-0-8078-3297-4.

Offering a window into the history of the modern legal profession in Western Europe, Stephen Jacobson presents a history of lawyers in the most industrialized city on the Mediterranean. Far from being mere curators of static law, Barcelona’s lawyers were at the center of social conflict and political and economic change, mediating between state, family, and society. Beginning with the resurrection of a decadent bar during the Enlightenment, Jacobson traces the historical evolution of lawyers throughout the long nineteenth century. Among the issues he explores are the attributes of the modern legal profession, how lawyers engaged with the Enlightenment, how they molded events in the Age of Revolution and helped consolidate a liberal constitutional order, why a liberal profession became conservative and corporatist, and how lawyers promoted fin-de-siècle nationalism. From the vantage point of a city with a distinguished legal tradition, Catalonia’s Advocates provides fresh insight into European social and legal history; the origins of liberal professionalism; education, training, and the practice of law in the nineteenth century; the expansion of continental bureaucracies; and the corporatist aspects of modern nationalism. (more…)

The Inception of Modern Professional Education: C. C. Langdell, 1826-1906

Bruce A. Kimball.

Published 2009. Order online through The University of North Carolina Press or Amazon. ISBN: 978-0-8078-3257-8.

Christopher C. Langdell (1826-1906) is one of the most influential figures in the history of American professional education. As dean of Harvard Law School from 1870 to 1895, he conceived, designed, and built the educational model that leading professional schools in virtually all fields subsequently emulated. In this first full-length biography of the educator and jurist, Bruce Kimball explores Langdell’s controversial role in modern professional education and in jurisprudence. (more…)

Beyond the Prison Gates: Punishment and Welfare in Germany, 1850-1933

Warren Rosenblum.

Published 2009. Order online through The University of North Carolina Press or Amazon. ISBN: 978-0-8078-3204-2.

Germany today has one of the lowest incarceration rates in the industrialized world, and social welfare principles play an essential role at all levels of the German criminal justice system. Warren Rosenblum examines the roots of this social approach to criminal policy in the reform movements of the Wilhelmine and Weimar periods, when reformers strove to replace state institutions of control and incarceration with private institutions of protective supervision. (more…)

Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830

Daniel J. Hulsebosch.

Published September 2008. Order online through The University of North Carolina Press or Amazon. ISBN: 978-0-8078-5920-9.

According to the traditional understanding of American constitutional law, the Revolution produced a new conception of the constitution as a set of restrictions on the power of the state rather than a mere description of governmental roles. Daniel J. Hulsebosch complicates this viewpoint by arguing that American ideas of constitutions were based on British ones and that, in New York, those ideas evolved over the long eighteenth century as New York moved from the periphery of the British Atlantic empire to the center of a new continental empire. (more…)

Slavery on Trial: Law, Abolitionism, and Print Culture

Jeannine Marie DeLombard.

Published May 2007. Order online through The University of North Carolina Press or Amazon. ISBN: 978-0-8078-5812-7.

America’s legal consciousness was high during the era that saw the imprisonment of abolitionist editor William Lloyd Garrison, the execution of slave revolutionary Nat Turner, and the hangings of John Brown and his Harpers Ferry co-conspirators. Jeannine Marie DeLombard examines how debates over slavery in the three decades before the Civil War employed legal language to “try” the case for slavery in the court of public opinion via popular print media. (more…)

Law and Identity in Mandate Palestine

Assaf Likhovski.

Published June 2006. Order online through The University of North Carolina Press or Amazon. ISBN: 978-0-8078-3017-8.

One of the major questions facing the world today is the role of law in shaping identity and in balancing tradition with modernity. In an arid corner of the Mediterranean region in the first decades of the twentieth century, Mandate Palestine was confronting these very issues. Assaf Likhovski examines the legal history of Palestine, showing how law and identity interacted in a complex colonial society in which British rulers and Jewish and Arab subjects lived together. (more…)

The Anti-Rent Era in New York Law and Politics, 1839-1865

Charles W. McCurdy.

Published June 2006. Order online through The University of North Carolina Press or Amazon. ISBN: 978-0-8078-5765-6.

A compelling blend of legal and political history, this book chronicles the largest tenant rebellion in U.S. history. From its beginning in the rural villages of eastern New York in 1839 until its collapse in 1865, the Anti-Rent movement impelled the state’s governors, legislators, judges, and journalists, as well as delegates to New York’s bellwether constitutional convention of 1846, to wrestle with two difficult problems of social policy. One was how to put down violent tenant resistance to the enforcement of landlord property and contract rights. The second was how to abolish the archaic form of land tenure at the root of the rent strike. (more…)

Crimes against Children: Sexual Violence and Legal Culture in New York City, 1880-1960

Stephen Robertson.

Published April 2005. Order online through The University of North Carolina Press. ISBN: 978-0-8078-5596-6.

In the first half of the twentieth century, Americans’ intense concern with sex crimes against children led to a wave of public discussion, legislative action, and criminal prosecution. Stephen Robertson provides the first large-scale, long-term study of how American criminal courts dealt with the prosecution of sexual violence against children. (more…)

Yale Law School and the Sixties: Revolt and Reverberations

Laura Kalman.

Published October 2005. Order online through The University of North Carolina Press. ISBN: 978-0-8078-2966-0.

The development of the modern Yale Law School is deeply intertwined with the story of a group of students in the 1960s who worked to unlock democratic visions of law and social change that they associated with Yale’s past and with the social climate in which they lived. During a charged moment in the history of the United States, activists challenged senior professors, and the resulting clash pitted young against old in a very human story. By demanding changes in admissions, curriculum, grading, and law practice, Laura Kalman argues, these students transformed Yale Law School and the future of American legal education. (more…)

English Common Law in the Age of Mansfield

James Oldham.

Published July 2004. Order online through The University of North Carolina Press. ISBN: 978-0-8078-5532-4.

In the eighteenth century, the English common law courts laid the foundation that continues to support present-day Anglo-American law. Lord Mansfield, Chief Justice of the Court of King’s Bench, 1756-1788, was the dominant judicial force behind these developments. In this abridgment of his two-volume book, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, James Oldham presents the fundamentals of the English common law during this period, with a detailed description of the operational features of the common law courts. This work includes revised and updated versions of the historical and analytical essays that introduced the case transcriptions in the original volumes, with each chapter focusing on a different aspect of the law. (more…)

Masters, Servants, and Magistrates in Britain and the Empire, 1562-1955

Douglas Hay, Paul Craven.

Published November 2004. Order online through The University of North Carolina Press. ISBN: 978-0-8078-2877-9.

Master and servant acts, the cornerstone of English employment law for more than four hundred years, gave largely unsupervised, inferior magistrates wide discretion over employment relations, including the power to whip, fine, and imprison men, women, and children for breach of private contracts with their employers. The English model was adopted, modified, and reinvented in more than a thousand colonial statutes and ordinances regulating the recruitment, retention, and discipline of workers in shops, mines, and factories; on farms, in forests, and on plantations; and at sea. This collection presents the first integrated comparative account of employment law, its enforcement, and its importance throughout the British Empire. (more…)

The Bar and the Old Bailey, 1750-1850

Allyson N. May.

Published November 2003. Order online through The University of North Carolina Press. ISBN: 978-0-8078-2806-9.

Allyson May chronicles the history of the English criminal trial and the development of a criminal bar in London between 1750 and 1850. She charts the transformation of the legal process and the evolution of professional standards of conduct for the criminal bar through an examination of the working lives of the Old Bailey barristers of the period. In describing the rise of adversarialism, May uncovers the motivations and interests of prosecutors, defendants, the bench, and the state, as well as the often-maligned “Old Bailey hacks” themselves. (more…)

The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America

Sarah Barringer Gordon.

Published January 2002. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4987-3.

From the Mormon Church’s public announcement of its sanction of polygamy in 1852 until its formal decision to abandon the practice in 1890, people on both sides of the “Mormon question” debated central questions of constitutional law. Did principles of religious freedom and local self-government protect Mormons’ claim to a distinct, religiously based legal order? Or was polygamy, as its opponents claimed, a new form of slavery–this time for white women in Utah? And did constitutional principles dictate that democracy and true liberty were founded on separation of church and state? (more…)

The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350-1870

Robert J. Steinfeld.

Published June 2002. Order online through The University of North Carolina Press. ISBN: 978-0-8078-5452-5.

Examining the emergence of the modern conception of free labor–labor that could not be legally compelled, even though voluntarily agreed upon–Steinfeld explains how English law dominated the early American colonies, making violation of al labor agreements punishable by imprisonment. By the eighteenth century, traditional legal restrictions no longer applied to many kinds of colonial workers, but it was not until the nineteenth century that indentured servitude came to be regarded as similar to slavery. (more…)

Selling the Church: The English Parish in Law, Commerce, and Religion, 1350-1550

Robert C. Palmer.

Published November 2002. Order online through The University of North Carolina Press. ISBN: 978-0-8078-2743-7.

In the years of expanding state authority following the Black Death, English common law permitted the leasing of parishes by their rectors and vicars, who then pursued interests elsewhere and left the parish in the control of lay lessees. But a series of statutes enacted by Henry VIII between 1529 and 1540 effectively reduced such clerical absenteeism. Robert Palmer examines this transformation of the English parish and argues that it was an important part of the English Reformation. (more…)

The Invention of Party Politics: Federalism, Popular Sovereignty, and Constitutional Development in Jacksonian Illinois

Gerald Leonard.

Published December 2002. Order online through The University of North Carolina Press. ISBN: 978-0-8078-2744-4.

This ambitious work uncovers the constitutional foundations of that most essential institution of modern democracy, the political party. Taking on Richard Hofstadter’s classic The Idea of a Party System, it rejects the standard view that Martin Van Buren and other Jacksonian politicians had the idea of a modern party system in mind when they built the original Democratic party. (more…)

English Law in the Age of the Black Death, 1348-1381: A Transformation of Governance and Law

Robert C. Palmer.

Published February 2001. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4954-5.

Robert Palmer’s pathbreaking study shows how the Black Death triggered massive changes in both governance and law in fourteenth-century England, establishing the mechanisms by which the law adapted to social needs for centuries thereafter. The Black Death killed one-third of the English population between 1348 and 1351. To preserve traditional society, the king’s government aggressively implemented new punitive legal remedies as a mechanism for social control. This attempt to shore up traditional society in fact transformed it. English governance now legitimately extended to routine regulation of all workers, from shepherds to innkeepers, smiths, and doctors. The new cohesiveness of the ecclesiastical and lay upper orders, the increase in subject matter jurisdictions, the growth of the chancellor’s court, and the acceptance of coercive contractual remedies made the Black Death in England a transformative experience for law and for governance. Palmer’s book, based on all of the available legal records, establishes a genuinely new interpretation and chronology of these important legal changes.

Endorsements

“[Palmer’s] account of the development of uses and of the written bond will prove indispensable to any student of medieval law.”
– Cambridge Law Journal

“What Palmer does conclusively demonstrate is important; that this was a period of significant change, when the law tightened up in a wide range of types of cases.”
– Times Literary Supplement

“This is a big, bold, and very important book about the effects of the Black Death. It challenges the doctrinal view of legal history in which the common law was made by lawyers and judges in the interests of the clients, in a context often devoid of political, social, and economic reality.”
– American Journal of Legal History

“Although the story of the Black Death has been told, and often told well, Robert Palmer is the first to bring this story into correspondence with the history of English law. His is a notable achievement, not only because he explains why the Black Death represented a significant turning point and catalyst for legal change, but because his explanation is so learned and skillfully detailed as to leave no doubt that the practice of law was crucially important for the quality of life in a society in transition. . . . By focusing on the process of change, Palmer has formulated an argument that in its historical and philosophical depth not only engages but persuades. It is the sureness of this argument that makes English Law in the Age of the Black Death such a thoughtful and impressive book.”
– Law and History Review

“An extraordinarily cohesive and logical account that enables readers to come to grips with fundamental changes in English law and governance with little difficulty.”
– Michigan Law Review

“A major contribution to our understanding not only of fourteenth-century English law but also of fourteenth-century English governance. . . . [The book] constitutes the ‘state of the art,’ the point at which anyone dealing with fourteenth-century law and governance must start.”
– Charles Donahue, Jr., Harvard Law School

The Legalist Reformation

William E. Nelson.

Published March 2001. Order online through The University of North Carolina Press. ISBN: 978-0-8078-2591-4.

Based on a detailed examination of New York case law, this pathbreaking book shows how law, politics, and ideology in the state changed in tandem between 1920 and 1980. Early twentieth-century New York was the scene of intense struggle between white, Anglo-Saxon, Protestant upper and middle classes located primarily in the upstate region and the impoverished, mainly Jewish and Roman Catholic, immigrant underclass centered in New York City. Beginning in the 1920s, however, judges such as Benjamin N. Cardozo, Henry J. Friendly, Learned Hand, and Harlan Fiske Stone used law to facilitate the entry of the underclass into the economic and social mainstream and to promote tolerance among all New Yorkers.

Ultimately, says William Nelson, a new legal ideology was created. By the late 1930s, New Yorkers had begun to reconceptualize social conflict not along class lines but in terms of the power of majorities and the rights of minorities. In the process, they constructed a new approach to law and politics. Though doctrinal change began to slow by the 1960s, the main ambitions of the legalist reformation–liberty, equality, human dignity, and entrepreneurial opportunity–remain the aspirations of nearly all Americans, and of much of the rest of the world, today.

Endorsements

“Confident and successful. . . . Ranges across decades to depict the transformation of the common law of New York in the twentieth century. . . . A major contribution to twentieth-century American legal history. It goes into extraordinary depth into New York common law across the century and considers how one influential state legal system . . . met the legal demands of religious and ethnic diversity.”
– Law and History Review

“Nelson’s vision is expansive, his research prodigious, his analysis insightful, and his achievement impressive. . . . This fresh research is scholarship of the first order, in itself a major contribution.”
– Journal of American History

“Drawing on a beautifully detailed study of thousands of court opinions and life in New York, William Nelson reveals how twentieth century common law jurists brought together the diverse racial, ethnic, and religious factions in the state.”
– Harvard Law Review

“This splendid book was fifteen years in the making, and it sets a new and very high standard for studies of American legal history in the twentieth century. It is based on intensive work in an immense body of source material.”
– American Historical Review

“Nowhere is the concept of the law as an evolving, dynamic, and progressive force in modern American society better espoused than in this seminal, exhaustive piece of legal and historical research. . . . This scholarly work is highly recommended for academic and law libraries.”
– Library Journal

“An excellent history of our most influential state legal system. A brilliant achievement.”
– Morton J. Horwitz, Harvard Law School

Neighbors and Strangers: Law and Community in Early Connecticut

Bruce H. Mann.

Published August 2001. Order online through The University of North Carolina Press. ISBN: 978-0-8078-5365-8.

Combining legal and social history, Bruce Mann explores the relationship between law and society from the mid-seventeenth century to the eve of the Revolution. Analyzing a sample of more than five thousand civil cases from the records of local courts in Connecticut, he shows how once-neighborly modes of disputing yielded to a legal system that treated neighbors and strangers alike.

During the colonial period population growth, immigration, economic development, war, and religious revival transformed the nature and context of official and economic relations in Connecticut. Towns lost the insularity and homogeneity that made them the embodiment of community. Debt litigation was transformed from a communal model of disputing in which procedures were based on the individual disagreements to a system of mechanical rules that homogenized law. Pleading grew more technical, and the civil jury faded from predominance to comparative insignificance. Arbitration and church disciplinary proceedings, the usual alternatives to legal process, became more formal and legalistic and, ultimately, less communal.

Using a computer-assisted analysis of court records and insights drawn from anthropology and sociology, Mann concludes that changes in the law and its applications were tied to the growing commercialization of the economy. They also can be attributed to the fledgling legal profession’s approach to law as an autonomous system rather than as a communal process. These changes marked the advent of a legal system that valued predictability and uniformity of legal relations more than responsiveness to individual communities. Mann shows that by the eve of the Revolution colonial law had become less identified with community and more closely associated with society.

The Great Catastrophe of My Life: Divorce in the Old Dominion

Thomas E. Buckley, S.J.

Published 2001. Order online through The University of North Carolina Press. ISBN: 978-0-8078-5380-1.

From the end of the Revolution until 1851, the Virginia legislature granted most divorces in the state. It granted divorces rarely, however, turning down two-thirds of those who petitioned for them. Men and women who sought release from unhappy marriages faced a harsh legal system buttressed by the political, religious, and communal cultures of southern life. Through the lens of this hostile environment, Thomas Buckley explores with sympathy the lives and legal struggles of those who challenged it. (more…)

Inventing the Criminal: A History of German Criminology, 1880-1945

Richard F. Wetzell.

Published August 2000. Order online through The University of North Carolina Press. ISBN: 978-0-8078-2535-8.

Recent years have witnessed a resurgence of biological research into the causes of crime, but the origins of this kind of research date back to the late nineteenth century. Here, Richard Wetzell presents the first history of German criminology from Imperial Germany through the Weimar Republic to the end of the Third Reich, a period that provided a unique test case for the perils associated with biological explanations of crime.Drawing on a wealth of primary sources from criminological, legal, and psychiatric literature, Wetzell shows that German biomedical research on crime predominated over sociological research and thus contributed to the rise of the eugenics movement and the eventual targeting of criminals for eugenic measures by the Nazi regime. However, he also demonstrates that the development of German criminology was characterized by a constant tension between the criminologists’ hereditarian biases and an increasing methodological sophistication that prevented many of them from endorsing the crude genetic determinism and racism that characterized so much of Hitler’s regime. As a result, proposals for the sterilization of criminals remained highly controversial during the Nazi years, suggesting that Nazi biological politics left more room for contention than has often been assumed.

Endorsements

“Wetzell has added to this new historical literature on particular realms of German life under Nazism with a book that investigates the history of the discipline of criminology from the late nineteenth century to the end of World War II. . . . Wetzell’s book is solidly researched and clearly organized and written.”
– American Historical Review

“It is surprising that no comprehensive study has been written until now on German criminological theory. Richard Wetzell goes a long way toward filling this gap with a groundbreaking and thorough survey of German criminological thought. . . . Inventing the Criminal provides a well-researched overview of the development of German criminological thought.”
– Bulletin of the History of Medicine

“A tremendous accomplishment. . . . No serious researcher in the area can afford to ignore it.”
– Journal of Modern History

“Firmly based on a vast array of both juridical and medical sources, Inventing the Criminal makes a major contribution to our knowledge of criminological discourse. It ought to be read both by students of modern Germany and by anyone who is interested in the development of attitudes toward deviant behavior.”
– Andrew Lees, Rutgers University

“Wetzell’s elegantly argued book offers a provocative but convincing history of the fate of biological determinism in Germany–a story which turns out to be much more complicated than we thought. Exploring the claims of penal reformers, criminal psychiatrists, lawyers, doctors, and politicians, Inventing the Criminal shows that even under the Nazis, scholars remained uncomfortable with the idea that individuals could be ‘born criminals.’ If Wetzell is right–and his carefully analyzed evidence suggests that he is–we will need to revise substantially our picture of the continuities and discontinuities in the history of German science.”
– Suzanne Marchand, Louisiana State University

Southern Slavery and the Law, 1619-1860

Thomas D. Morris.

Published February 1999. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4817-3.

This volume is the first comprehensive history of the evolving relationship between American slavery and the law from colonial times to the Civil War. As Thomas Morris clearly shows, racial slavery came to the English colonies as an institution without strict legal definitions or guidelines. Specifically, he demonstrates that there was no coherent body of law that dealt solely with slaves. Instead, more general legal rules concerning inheritance, mortgages, and transfers of property coexisted with laws pertaining only to slaves. According to Morris, southern lawmakers and judges struggled to reconcile a social order based on slavery with existing English common law (or, in Louisiana, with continental civil law.) Because much was left to local interpretation, laws varied between and even within states. In addition, legal doctrine often differed from local practice. And, as Morris reveals, in the decades leading up to the Civil War, tensions mounted between the legal culture of racial slavery and the competing demands of capitalism and evangelical Christianity.

Endorsements

“Supports and takes exception to many of the traditional views regarding Southern slavery. By overlaying American slavery with Southern law, Morris provides us with valuable insight and analysis. This book will long be considered a classic for understanding Southern slavery and the social system in which it existed.”
– Our State

“This fine book is now the standard work concerning the legal history of slavery in the United States.”
– Journal of Southern History

“The fullest and most probing explication to date of the policies and practices of the ‘laws’ of slavery.”
– Historian

“A valuable contribution to the historiography of southern law and to the historiography of the institution of slavery.”
– Journal of the Early Republic

“Brimming with knowledge and insight about a horrific aspect of our legal culture that continues to affect us.”
– Washington Post Book World

“Morris’s comprehensive investigation ranges from 17th-century Chesapeake to late antebellum Texas in considering sources of slave law, the role of race in its development, and relationships among slavery, capitalism, and the law. . . . Historians of slavery will find perceptive observations on violence by and against slaves, manumission, hiring out, and flight.”
– Choice

Awards
1997 Frank L. and Harriet C. Owsley Award, Southern Historical Association, 1996 Book Award, Society for Historians of the Early American Republic

Impeachment: The Constitutional Problems

Raoul Berger.

Published 1999. Order online through The Harvard University Press. ISBN: 9780674444782.

The little understood yet volcanic power of impeachment lodged in the Congress is dissected through history by the nation’s leading legal scholar on the subject. Berger offers authoritative insight into “high crimes and misdemeanors.” He sheds new light on whether impeachment is limited to indictable crimes, on whether there is jurisdiction to impeach for misconduct outside of office, and on whether impeachment must precede indictment. In an addition to the book, Berger finds firm footing in contesting the views of one-time Judge Robert Bork and President Nixon’s lawyer, James St. Clair.

Endorsements

“Originally published in 1974 at the time of the Nixon crisis, this erudite book by a legal scholar offers authoritative insight into all aspects of impeachment.”
— Washington Post Book Review

“An admirable and powerful work…valuable and illuminating.”
— Arthur M. Schlesinger, Jr.

The Republic According to John Marshall Harlan

Linda Przybyszewski.

Published September 1999. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4789-3.

Supreme Court Justice John Marshall Harlan (1833-1911) is best known for condemning racial segregation in his dissent from Plessy v. Ferguson in 1896, when he declared, “Our Constitution is color-blind.” But in other judicial decisions–as well as in some areas of his life–Harlan’s actions directly contradicted the essence of his famous statement. Similarly, Harlan was called the people’s judge for favoring income tax and antitrust laws, yet he also upheld doctrines that benefited large corporations.

Examining these and other puzzles in Harlan’s judicial career, Linda Przybyszewski draws on a rich array of previously neglected sources–including the verbatim transcripts of his 1897-98 lectures on constitutional law, his wife’s 1915 memoirs, and a compilation of opinions, drawn up by Harlan himself, that he wanted republished. Her thoughtful examination demonstrates how Harlan inherited the traditions of paternalism, nationalism, and religious faith; how he reshaped these traditions in light of his experiences as a lawyer, political candidate, and judge; and how he justified the vision of the law he wrote.

An innovative combination of personal and judicial biography, this book makes an insightful contribution to American constitutional and intellectual history.

Endorsements

“Clearly a book . . . that all judicial scholars will have to take note of in the future.”
– Law and History Review

“An excellent description and analysis of the possible sources and meaning of John Marshall Harlan’s judicial decisions.”
– Journal of American History

“This fine book provides a balanced and judicious study of Harlan’s jurisprudence. Drawing on overlooked sources, Przybyszewski offers fresh insights into the norms that influences Harlan’s work as a judge. . . . This work should be of interest to a wide range of scholars.”
– American Historical Review

“The serious student of American history, or its government, can hardly fail to find this densely packed volume rewarding.”
– Rapport

“Przybyszewski skillfully exploits several hitherto overlooked primary documents and argues that in the context of Harlan’s life experiences and ideology, his juridical writings are less consistent and more of a ‘mixed record’ than commonly thought. . . . An excellent contribution to a discourse she invites others to join.”
– Choice

“A fine intellectual biography of an important figure in American Law.”
– Law and Politics Book Review

Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South

Peter W. Bardaglio.

Published March 1998. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4712-1.

In Reconstructing the Household, Peter Bardaglio examines the connections between race, gender, sexuality, and the law in the nineteenth-century South. He focuses on miscegenation, rape, incest, child custody, and adoption laws to show how southerners struggled with the conflicts and stresses that surfaced within their own households and in the larger society during the Civil War era. Based on literary as well as legal sources, Bardaglio’s analysis reveals how legal contests involving African Americans, women, children, and the poor led to a rethinking of families, sexuality, and the social order. Before the Civil War, a distinctive variation of republicanism, based primarily on hierarchy and dependence, characterized southern domestic relations. This organic ideal of the household and its power structure differed significantly from domestic law in the North, which tended to emphasize individual rights and contractual obligations. The defeat of the Confederacy, emancipation, and economic change transformed family law and the governance of sexuality in the South and allowed an unprecedented intrusion of the state into private life. But Bardaglio argues that despite these profound social changes, a preoccupation with traditional notions of gender and race continued to shape southern legal attitudes.

Endorsements

“Bardaglio has succeeded in writing a book that asks important questions, poses thoughtful answers, and raises a host of issues for future researchers to explore. This book will join a handful of others as indispensable to the study of southern regionalism and the legal history of the American family.”
– Journal of Interdisciplinary History

“Should establish a model for future studies of the southern household.”
– Southern Quarterly

“[A] readable and rewarding book.”
– Journal of American History

“An ambitious and provocative book. . . one that offers fresh ways of thinking about the South’s legal system and culture, the decision for secession, the larger implications of Reconstruction, the roots of southern Progressivism, and the enduring differences between the South and the North.”
– Choice

“[Bardaglio] has given coherence and heft to previously scattered facts and interpretations and produced a work that should be required reading among historians of the family, sexuality, and the South.”
– Journal of the History of Sexuality

“With its exceptional command of the primary sources and extraordinary facility with the relevant secondary literature, Peter W. Bardaglio’s Reconstructing the Household is a signal contribution to legal history, the history of the family, and the study of southern race relations.”
– Journal of Social History

Awards
1996 James A. Rawley Prize, Organization of American Historians

The Farmer’s Benevolent Trust: Law and Agricultural Cooperation in Industrial America, 1865-1945

Victoria Saker Woeste.

Published September 1998. The University of North Carolina Press. ISBN: 978-0-8078-4731-2.

Americans have always regarded farming as a special calling, one imbued with the Jeffersonian values of individualism and self- sufficiency. As Victoria Saker Woeste demonstrates, farming’s cultural image continued to shape Americans’ expectations of rural society long after industrialization radically transformed the business of agriculture. Even as farmers enthusiastically embraced cooperative marketing to create unprecedented industry-wide monopolies and control prices, they claimed they were simply preserving their traditional place in society. In fact, the new legal form of cooperation far outpaced judicial and legislative developments at both the state and federal levels, resulting in a legal and political struggle to redefine the place of agriculture in the industrial market.

Woeste shows that farmers were adept at both borrowing such legal forms as the corporate trust for their own purposes and obtaining legislative recognition of the new cooperative style. In the process, however, the first rule of capitalism–every person for him- or herself–trumped the traditional principle of cooperation. After 1922, state and federal law wholly endorsed cooperation’s new form. Indeed, says Woeste, because of its corporate roots, this model of cooperation fit so neatly with the regulatory paradigms of the first half of the twentieth century that it became an essential policy of the modern administrative state.

Awards 
2000 J. Willard Hurst Prize, Law & Society Association, A 1999 Choice Outstanding Academic Book

Law, Land, and Family: Aristocratic Inheritance in England, 1300 to 1800

Eileen Spring.

Published February 1997. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4642-1.

Eileen Spring presents a fresh interpretation of the history of inheritance among the English gentry and aristocracy. In a work that recasts both the history of real property law and the history of the family, she finds that one of the principal and determinative features of upper-class real property inheritance was the exclusion of females. This exclusion was accomplished by a series of legal devices designed to nullify the common-law rules of inheritance under which–had they prevailed–40 percent of English land would have been inherited or held by women. Current ideas of family development portray female inheritance as increasing in the seventeenth and eighteenth centuries, but Spring argues that this is a misperception, resulting from an incomplete consideration of the common-law rules. Female rights actually declined, reaching their nadir in the eighteenth century. Spring shows that there was a centuries-long conflict between male and female heirs, a conflict that has not been adequately recognized until now.

Endorsements

“[A] significant and highly original study.”
– Choice

“[A] lively and combative book. . . . It will be quite impossible for social or legal historians in the future to ignore the arguments presented here; the subject will never be quite the same again, and that is a real achievement.”
– Times Literary Supplement

“Eileen Spring has brought a fresh vision to the history of land law. . . . This is the best kind of feminist history. . . . A highly original and provocative book which overturns a great deal of accepted wisdom, with implications for legal, family, and women’s history.”
– Continuity and Change

“This is an admirable study, lucidly and economically argued, which makes its points about the inequitable treatment of heiresses-at-law and widows clearly and forcefully. . . . It deserves to be read not only by specialists in the development of the law of property, but by all those interested in the propertied élite of late-medieval and early-modern England.”
– Cambridge Law Journal

“Eileen Spring has written a fine and provocative book that asks us to reexamine many of the accepted views of the development of English land law. . . . Spring accomplishes an essential goal in writing legal history, she makes a highly technical and complex topic accessible to a wide audience and she does so with a timely twist.”
– Law and History Review

“An intelligent and engaging book that is a major contribution to both the history of law and the history of women. Ingeniously original, Spring’s work is sure to generate a great deal of rethinking on the part of those interested in the social history of land law.”
– Morris S. Arnold, United States Court of Appeals

Awards 
A 1995 Choice Outstanding Academic Book

Heart versus Head: Judge-Made Law in Nineteenth-Century America

Peter Karsten.

Published September 1997. Order online through The University of North Carolina Press. ISBN: 978-0-8078-2340-8.

Challenging traditional accounts of the development of American private law, Peter Karsten offers an important new perspective on the making of the rules of common law and equity in nineteenth-century courts. The central story of that era, he finds, was a struggle between a jurisprudence of the head, which adhered strongly to English precedent, and a jurisprudence of the heart, a humane concern for the rights of parties rendered weak by inequitable rules and a willingness to create exceptions or altogether new rules on their behalf. Karsten first documents the tendency of jurists, particularly those in the Northeast, to resist arguments to alter rules of property, contract, and tort law. He then contrasts this tendency with a number of judicial innovations–among them the sanctioning of ‘deep pocket’ jury awards and the creation of the attractive-nuisance rule–designed to protect society’s weaker members. In tracing the emergence of a pro-plaintiff, humanitarian jurisprudence of the heart, Karsten necessarily addresses the shortcomings of the reigning, economic-oriented paradigm regarding judicial rulemaking in nineteenth-century America.

Endorsements

“As writing on legal doctrine goes, this is among the best. Karsten’s direct style makes for an intriguing journey through American courtrooms.”
– Journal of the Early Republic

“In Heart versus Head, Peter Karsten breathes some life into a subject that might be thought long dead. . . . Heart versus Head presents a picture of nineteenth-century law dramatically different from the one developed in the leading historical surveys.”
– Journal of American History

“A study on nineteenth-century law concerning property, torts, and contracts that is sure to stir debate for years to come. . . . A well-researched and thoroughly documented monograph that will be of great value to the student of legal history.”
– History: Reviews of New Books

“With prodigious research and meticulous attention to detail, Peter Karsten has created a powerful and convincing alternative to the reigning interpretation of the history of nineteenth-century American law by joining doctrinal analysis with intellectual and cultural history. He has opened new paths whose pursuit is likely to set the agenda for the field for decades to come.”
– William P. LaPiana, New York Law School

“In this exhaustively researched and brilliantly written monograph, Peter Karsten has moved ‘the jurisprudence of the heart’ to the center of nineteenth-century judicial thought. In the process, he has reminded us of the importance of midwestern, southern, and far western legal precedents. This is must reading for every student of legal history.”
– Peter C. Hoffer, University of Georgia