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)

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)

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.

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.

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

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

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.

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.

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.

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.
(more…)

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.
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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

The People’s Welfare: Law and Regulation in Nineteenth-Century America

William J. Novak.

Published December 1996. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4611-7.

Much of today’s political rhetoric decries the welfare state and our maze of government regulations. Critics hark back to a time before the state intervened so directly in citizens’ lives. In The People’s Welfare, William Novak refutes this vision of a stateless past by documenting America’s long history of government regulation in the areas of public safety, political economy, public property, morality, and public health. Challenging the myth of American individualism, Novak recovers a distinctive nineteenth-century commitment to shared obligations and public duties in a well-regulated society. Novak explores the by-laws, ordinances, statutes, and common law restrictions that regulated almost every aspect of America’s society and economy, including fire regulations, inspection and licensing rules, fair marketplace laws, the moral policing of prostitution and drunkenness, and health and sanitary codes. Based on a reading of more than one thousand court cases in addition to the leading legal and political texts of the nineteenth century, The People’s Welfare demonstrates the deep roots of regulation in America and offers a startling reinterpretation of the history of American governance.

Endorsements

“Sophisticated and provocative, well-written, well-argued, and exhaustively researched . . . an important, useful, and controversial attempt to reorient our understanding of nineteenth-century American legal history.”
– Law and Legal History

“Offers a vigorous and effective challenge to two related bodies of literature: one that conceives of the law in the early Republic as a mere instrument in the hands of entrepreneur-favoring jurists and legislators, and another that sees government more generally yielding its residual colonial and medieval regulatory functions to the dictates of the market economy.”
– American Historical Review

“Well written and thoroughly researched. . . . This is a comprehensive and well documented book, showing the author’s competence in a number of disciplines, including economics, social history, and law.”
– Business History Review

“An extraordinarily important historical work on American government regulation in the 19th century. . . . [A] landmark treatise.”
– Library Journal

“[A] provocative, prodigiously researched, and beautifully written book.”
– Reviews in American History

“[An] interesting and at times provocative book.”
– Journal of Economic History

Awards 
1997 Littleton-Griswold Prize in American Law and Society, American Historical Association

Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, and the Polity, 1880-1920

Richard F. Hamm.

Published February 1995. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4493-9.

Richard Hamm examines prohibitionists’ struggle for reform from the late nineteenth century to their great victory in securing passage of the Eighteenth Amendment. Because the prohibition movement was a quintessential reform effort, Hamm uses it as a case study to advance a general theory about the interaction between reformers and the state during the Gilded Age and Progressive Era. Most scholarship on prohibition focuses on its social context, but Hamm explores how the regulation of commerce and the federal tax structure molded the drys’ crusade. Federalism gave the drys a restricted setting–individual states–as a proving ground for their proposals. But federal policies precipitated a series of crises in the states that the drys strove to overcome. According to Hamm, interaction with the federal government system helped to reshape prohibitionists’ legal culture–that is, their ideas about what law was and how it could be used.

Endorsements

“Well researched and lucidly written, Hamm’s study is also notable for deftly situating temperance and prohibition in relation to other progressive era reforms.”
– Choice

“Breadth of conception and depth of analysis make Shaping the Eighteenth Amendment a valuable addition to the literature.”
– Journal of American History

“In this well-researched and crisply written volume, Richard F. Hamm provides a valuable corrective to many conventional but faulty assumptions about the Prohibition movement, its ideology, and its legal strategies in the four decades preceding passage of the Eighteenth Amendment. . . . Hamm’s study provides a detailed and sophisticated new look at the men and women involved in shaping the Eighteenth Amendment.”
– Journal of Southern History

“Hamm has succeeded admirably in presenting the constitutional and legal history of prohibition and in demonstrating the way that the prohibition movement and the polity interacted to alter both. . . . His book should be of interest to constitutional and legal scholars, those interested in the emergence of the twentieth-century state, and specialists in the politics of the era.”
– American Historical Review

“In coping with one of the most controversial reform efforts of the progressive era, Richard Hamm in this thoughtful and provocative book places the prohibition crusade within the nation’s legal and political structure.”
– American Journal of Legal History

“A rich study of how one group of social reformers used the law.”
– Journal of Church and State

Award
1996 Henry Adams Prize, Society for History in the Federal Government

American Legal Realism and Empirical Social Science

John Henry Schlegel.

Published 1995. Order online through The University of North Carolina Press. ISBN: 978-0-8078-5753-3.

John Henry Schlegel recovers a largely ignored aspect of American Legal Realism, a movement in legal thought in the 1920s and 1930s that sought to bring the modern notion of empirical science into the study and teaching of law. In this book, he explores individual Realist scholars’ efforts to challenge the received notion that the study of law was primarily a matter of learning rules and how to manipulate them. He argues that empirical research was integral to Legal Realism, and he explores why this kind of research did not, finally, become a part of American law school curricula. Schlegel reviews the work of several prominent Realists but concentrates on the writings of Walter Wheeler Cook, Underhill Moore, and Charles E. Clark. He reveals how their interest in empirical research was a product of their personal and professional circumstances and demonstrates the influence of John Dewey’s ideas on the expression of that interest. According to Schlegel, competing understandings of the role of empirical inquiry contributed to the slow decline of this kind of research by professors of law.

Endorsements

“A masterful study. . . . Every law and social science researcher should read the book. . . . It is a brilliant book, and a wonderful ‘read.’”
– Law and Politics Book Review

“American Legal Realism and Empirical Social Science is a refreshing and insightful analysis of the origins, flowering, and demise of ‘legal realism.’ . . . His book succeeds admirably not only in expanding our understanding of legal realism but also in illuminating both the cultural evolution of the profession of law teaching and the course of academic legal thinking in the twentieth-century United States. . . . Schlegel has written a thoroughly researched, perceptive, and provocative book that adds immeasurably to our understanding of legal realism and the culture of American law teaching. It should become a foundation stone for subsequent discussions of twentieth-century American legal thought and education.”
– Journal of American History

“Makes a valuable contribution to our understanding of American legal realism by recasting the ‘ideas in context’ approach to intellectual history. . . . Schlegel’s study of these professors’ and these institutions’ engagement with social science is comprehensive and penetrating, providing a wealth of factual information and solid analysis.”
– American Historical Review

“Exceptionally thorough research, a riveting narrative style, some humor along the way, and a host of stimulating asides and suggestions for future work.”
– G. Edward White, University of Virginia

“Schlegel is the first historian of Legal Realism–the most influential movement of twentieth-century American legal thought–to recognize that the Realists were neither primarily legal philosophers nor theorists of the judicial role, but rather scholars who hoped to enlist social science in the cause of legal and social reform. Schlegel’s story is basically a tragic one, of noble ambitions brought to shipwreck on opposition and indifference; but there are many comic moments too, and the book is great fun to read. At last we have the story of Realism as the Realists themselves would have written it–the story of who exactly the Realists were and the work they actually did.”
– Robert W. Gordon, Stanford Law School

Laws Harsh As Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law

Lucy E. Salyer.

Published November 1995. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4530-1.

Focusing primarily on the exclusion of the Chinese, Lucy Salyer analyzes the popular and legal debates surrounding immigration law and its enforcement during the height of nativist sentiment in the early twentieth century. She argues that the struggles between Chinese immigrants, U.S. government officials, and the lower federal courts that took place around the turn of the century established fundamental principles that continue to dominate immigration law today and make it unique among branches of American law. By establishing the centrality of the Chinese to immigration policy, Salyer also integrates the history of Asian immigrants on the West Coast with that of European immigrants in the East.

Salyer demonstrates that Chinese immigrants and Chinese Americans mounted sophisticated and often-successful legal challenges to the enforcement of exclusionary immigration policies. Ironically, their persistent litigation contributed to the development of legal doctrines that gave the Bureau of Immigration increasing power to counteract resistance. Indeed, by 1924, immigration law had begun to diverge from constitutional norms, and the Bureau of Immigration had emerged as an exceptionally powerful organization, free from many of the constraints imposed upon other government agencies.

Endorsements

“A tremendous contribution to our understanding of how legal alien residents gradually came to lose their constitutional rights in the United States.”
– Western Legal History

“Brilliant, well-researched and well-written.”
– Law and History Review

“Salyer’s fresh approach to the study of immigration law contributes a critical and vitalizing measure of complexity to a dimension of immigration history.”
– American Journal of Legal History

“An elegantly written, well conceived book that makes an important contribution to the field.”
– Pacific Historical Review

“This excellent book, carefully and thoroughly researched and engaginglywritten, represents some of the finest recent scholarship in the history of American law.”
– American Historical Review

“This is an important study for American historians of the late nineteenth and twentieth centuries, especially those who focus upon the American West, immigration, nativism, ethnicity, and Asian Americans.”
– Western Historical Quarterly

Awards 
1995 Theodore Saloutos Memorial Book Award, Immigration History Society

Protecting the Best Men: An Interpretive History of the Law of Libel

Norman L. Rosenberg.

Published September 1990. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4290-4.

From the trial of John Peter Zenger in the eighteenth century to the recent libel cases of William Westmoreland and Ariel Sharon, political defamation cases have attracted considerable attention. As Norman Rosenberg shows, cases like these raise fundamental questions about how much criticism of public leaders a supposedly open, liberal society will permit.

Drawing upon a wide variety of historical sources, Protecting the Best Men argues that there exists no natural, evolutionary history of free speech. It also challenges interpretations that rest upon discovering an “original understanding” about the First Amendment. Instead, this interpretive history of the law of libel highlights the complexity and historically rooted nature of legal concepts and legal consciousness in the United States.

Endorsements

“Rosenberg has written a fine book that demonstrates that libel law, like other supposedly timeless and apparently fundamental legal doctrines, depends on historical forces and follows no clear line of development.
– Law & Society Review

Women and the Law of Property in Early America

Marylynn Salmon.

Published February 1989. Order online through The University of North Carolina Press. ISBN: 78-0-8078-4244-7.

In this first comprehensive study of women’s property rights in early America, Marylynn Salmon discusses the effect of formal rules of law on women’s lives. By focusing on such areas such as conveyancing, contracts, divorce, separate estates, and widows’ provisions, Salmon presents a full picture of women’s legal rights from 1750 to 1830.

Salmon shows that the law assumes women would remain dependent and subservient after marriage. She documents the legal rights of women prior to the Revolution and traces a gradual but steady extension of the ability of wives to own and control property during the decades following the Revolution. The forces of change in colonial and early national law were various, but Salmon believes ideological considerations were just as important as economic ones.

Women did not all fare equally under the law. In this illuminating survey of the jurisdictions of Connecticut, Massachusetts, New York, Pennsylvania, Maryland, Virginia, and South Carolina, Salmon shows regional variations in the law that affected women’s autonomous control over property. She demonstrates the importance of understanding the effects of formal law on women’ s lives in order to analyze the wider social context of women’s experience.

Endorsements

“An excellent book that portrays in great detail the variations, both large and subtle, that existed in the relationship of women to the law of property in seven colonies. . . . A richly textured portrait not merely of the specific subjects under consideration but indeed of the process through which tradition and innovation interacted in the formation of American legal rules in the colonial period. . . . Genuinely definitive in that it is clearly the starting point for all subsequent investigations of this subject.”
– The William and Mary Quarterly

“Provides a clear and systematic empirical survey of the evolution of women’s property rights; all students of women’s history, legal history, and early American history should read it.”
– Southern Historian

The Transformation of Criminal Justice: Philadelphia, 1800-1880

Allen Steinberg.

Published November 1989. Order online through The University of North Carolina Press. ISBN: 9-780-8078-1844-2.

Allen Steinberg brings to life the court-centered criminal justice system of nineteenth-century Philadelphia, chronicles its eclipse, and contrasts it to the system — dominated by the police and public prosecutor — that replaced it. He offers a major reinterpretation of criminal justice in nineteenth-century America by examining this transformation from private to state prosecution and analyzing the discontinuity between the two systems.

Steinberg first establishes why the courts were the sources of law enforcement, authority, and criminal justice before the advent of the police. He shows how the city’s system of private prosecution worked, adapted to massive social change, and came to dominate the culture of criminal justice even during the first decades following the introduction of the police. He then considers the dilemmas that prompted reform, beginning with the establishment of a professional police force and culminating in the restructuring of primary justice.

Making extensive use of court dockets, state and municipal government publications, public speeches, personal memoirs, newspapers, and other contemporary records, Steinberg explains the intimate connections between private prosecution, the everyday lives of ordinary people, and the conduct of urban politics. He ties the history of Philadelphia’s criminal courts closely to related developments in the city’s social and political evolution, making a contribution not only to the study of criminal justice but also to the larger literature on urban, social, and legal history.

Endorsements

“An important work. Joining together the history of the courts, prosecution patterns, city politics, and social developments, it convincingly demonstrates that the transformation of criminal justice was central to the development of city life itself. And that we are still haunted by its legacy.”
– Journal of the Early Republic

Governing the Hearth: Law and the Family in Nineteenth-Century America

Michael Grossberg.

Published August 1988. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4225-6.

Presenting a new framework for understanding the complex but vital relationship between legal history and the family, Michael Grossberg analyzes the formation of legal policies on such issues as common law marriage, adoption, and rights for illegitimate children. He shows how legal changes diminished male authority, increased women’s and children’s rights, and fixed more clearly the state’s responsibilities in family affairs. Grossberg further illustrates why many basic principles of this distinctive and powerful new body of law–antiabortion and maternal biases in child custody–remained in effect well into the twentieth century.

Award 
1986 Littleton-Griswold Prize in American Law and Society, American Historical Association

Custom, Kinship, and Gifts to Saints: The Laudatio Parentum in Western France, 1050-1150

Stephen D. White.

Published 1988 (Out of Print). Order online through The University of North Carolina Press. ISBN: 978-0-8078-6640-5.

White combines an intensive study of medieval law with insights from anthropology, religion, and social history to create a picture of French society in the Middle Ages which is impressive in its breadth and illuminating in its detail. By examining the practice whereby gifts of land were approved by the giver’s relatives, he suggests novel ways of looking at early medieval law, kinship, land tenure, and gift exchange. White shows that laudatio parentum can be properly analyzed only within a combined social, legal, and religious context.

Transfers of Property in Eleventh-Century Norman Law

Emily Zack Tabuteau.

Published 1988. Order online through The University of North Carolina Press. ISBN: 978-0-8078-6628-3.

Perhaps the greatest problem of medieval property law was that third parties and even grantors themselves often challenged transactions, making the lives of grantees miserable with lawsuits or forcible seizures. By the eleventh century, many devices for attempting to forestall or defeat claims were in use and others were in the process of being invented. Tabuteau considers the nature and efficacy of these devices as well as the degree to which the consent of interested parties was necessary or advisable.

Law School: Legal Education in America from the 1850s to the 1980s

Robert Stevens.

Published February 1987. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4175-4.

In this first general history of legal education, Stevens traces the development of law schools, the legal profession, and legal thought, relating their evolution to intellectual, political, and social trends. He describes how the establishment gained power over education after 1920 and how, in the past two decades, both students and the practicing profession have questioned this authority. He also examines the implications of the “legal revolution” and new opportunities for women and minorities.

Supreme Court Justice Joseph Story: Statesman of the Old Republic

R. Kent Newmyer.

Published August 1986. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4164-8.

The primary founder and guiding spirit of the Harvard Law School and the most prolific publicist of the nineteenth century, Story served as a member of the U.S. Supreme Court from 1811 to 1845. His attitudes and goals as lawyer, politician, judge, and legal educator were founded on the republican values generated by the American Revolution. Story’s greatest objective was to fashion a national jurisprudence that would carry the American people into the modern age without losing those values.

Public Property and Private Power: The Corporation of the City of New York in American Law, 1730-1870

Hendrik Hartog.

Published October 1983, The University of North Carolina Press. ISBN: 9-780-8078-1562-5.

Dispute and Conflict Resolution in Plymouth County, Massachusetts, 1725-1825

William E. Nelson.

Published 1982. Order online through The University of North Carolina Press. ISBN: 978-0-8078-9736-2.

Nelson identifies three principal institutions involved in conflict resolution: the twon meeting, the church congregation, and the courts of law. He subsequently determines the type of cases over which each institution had jurisdiction and studies the procedures by which each functioned. He examines the tendency after 1800 to bring disputes to the court and sees this as a response to the introduction of new, nontraditional values not held by local institutions.

Law and Society in Puritan Massachusetts: Essex County, 1629-1692

David Thomas Konig.

Published January 1981. Order online through The University of North Carolina Press. ISBN: 978-0-8078-4081-8.

Distinguished by the critical value it assigns to law in Puritan society, this study describes precisely how the Massachusetts legal system differed from England’s and how equity and an adapted common law became so useful to ordinary individuals. The author discovers that law gradually replaced religion and communalism as the source of social stability, and he gives a new interpretation to the witchcraft prosecutions of 1692.

In Defiance of the Law: The Standing-Army Controversy, the Two Constitutions, and the Coming of the American Revolution

John Phillip Reid.

Published April 1981, The University of North Carolina Press. ISBN: 9-780-8078-1449-9.

On the Laws and Customs of England : Essays in Honor of Samuel E. Thorne

Morris S. Arnold, Thomas A. Green, Sally A. Scully and Stephen D. White.

Published 1981 (out of print). Order online through The University of North Carolina Press. ISBN: 978-0-8078-7814-9.

Investigating a wide range of problems in the development of English law, this collection of original essays honors the contributions of Samuel D. Thorne to the study of English legal history from the eleventh to the seventeenth century. The essays combine close study of legal texts and doctrines in their own setting with broader analysis of the interaction of legal and social change. Although each essay has its own historiographical context, a substantial unity is achieved.

An Imperfect Union : Slavery, Federalism, and Comity

Paul Finkelman.

Published 1981 (Out of Print), The University of North Carolina Press. ISBN: 080-781-4385. Reprint of the first and only edition.

Finkelman describes the judicial turmoil that ensued when slaves were taken into free states, and the resultant issues of the conflict of laws, comity and cooperation between the states, their Constitutional obligations, and the threat of the nationalization of slavery.

The Roots of Justice: Crime and Punishment in Alameda County, California, 1870-1910

Lawrence M. Friedman, Robert V. Percival.

Published 1981. Order online through The University of North Carolina Press. ISBN: 978-0-8078-9748-5.

Focusing on a single county at a time when the population grew from 24,000 to 246,000, the authors combine statistical analysis of documentary sources, contemporary newspaper accounts, and exploration in criminal case files to give a detailed reconstruction of the operations of the county’s entire criminal justice system. By tracing the process from arrest to trial, sentencing, and punishment, this study will have a profound effect on our perception of American criminal justice.

Awards
1982 James Willard Hurst Prize in American Legal History, Law and Society Association, 1984 Robert G. Athearn Award, Western History Association

Faithful Magistrates and Republican Lawyers

A. G. Roeber.

Published 1981. Order online through The University of North Carolina Press. ISBN: 978-0-8078-9766-9.

Until the mid-1700s, law was not thought of as a science or profession. Most Virginians adhered to the English country tradition that considered law to be a local and personal affair. The growth of cities and business, however, guaranteed that disputes would spill over county boundaries. As law proliferated and became more complex, it encouraged the growth of a legal profession composed of men who shared specialized knowledge of law and the courts.

Endorsements

“Provides new and valuable evidence of the degree to which the legal profession had its way in remodeling the judicial system of Jefferson’s Virginia.”
– North Carolina Historical Review

Prison and Plantation: Crime, Justice, and Authority in Massachusetts and South Carolina, 1767-1878

Michael Stephen Hindus.

Published July 1980. Order online through The University of North Carolina Press. ISBN: 9-780-8078-1417-8.

This broad, comparative study examines the social, economic, and legal contexts of crime and authority in two vastly different states over a one hundred year period. Massachusetts–an urban, industrial, and heterogeneous northern state–chose the penitentiary in its attempt to minimize the role of informal and extralegal authority while South Carolina–a rural southern slave state–systematically reduced its formal legal institutions, frequently relying on vigilantism.

The Rule of Law: Albert Venn Dicey, Victorian Jurist

Richard A. Cosgrove.

Published 1980 (Out of Print). Order online through The University of North Carolina Press. ISBN: 0-8078-1410-5.

So commonplace has the term rule of law become that few recognize its source as Dicey’s Introduction to the Study of the Law of the Constitution. Cosgrove examines the life and career of Dicey, the most influential constitutional authority of late Victorian and Edwardian Britain, showing how his critical and intellectual powers were accompanied by a simplicity of character and wit. Dicey’s contribution to the history of law is described as is his place in Victorian society.

Underdevelopment and the Development of Law: Corporations and Corporation Law in Nineteenth-Century Colombia

Robert C. Means.

Published October 1980, The University of North Carolina Press. ISBN: 9-780-8078-1423-9.

Sir Edward Coke and ‘The Grievances of the Commonwealth,’ 1621-1628

Stephen D. White.

Published 1979. Order online through The University of North Carolina Press. ISBN: 978-0-8078-9807-9.

A UNC Press Enduring Edition — UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.

Law and Politics: The House of Lords as a Judicial Body, 1800-1976

Robert Stevens.

Published 1978, The Harvard University Press.

The Transformation of American Law, 1780-1860

Morton Horwitz.

Published 1977. Order online through The Harvard University Press. ISBN: 9-780-6749-0371-5.

In a remarkable book based on prodigious research, Morton J. Horwitz offers a sweeping overview of the emergence of a national (and modern) legal system from English and colonial antecedents. He treats the evolution of the common law as intellectual history and also demonstrates how the shifting views of private law became a dynamic element in the economic growth of the United States.

Horwitz’s subtle and sophisticated explanation of societal change begins with the common law, which was intended to provide justice for all. The great breakpoint came after 1790 when the law was slowly transformed to favor economic growth and development. The courts spurred economic competition instead of circumscribing it. This new instrumental law flourished as the legal profession and the mercantile elite forged a mutually beneficial alliance to gain wealth and power.

The evolving law of the early republic interacted with political philosophy, Horwitz shows. The doctrine of laissez-faire, long considered the cloak for competition, is here seen as a shield for the newly rich. By the 1840s the overarching reach of the doctrine prevented further distribution of wealth and protected entrenched classes by disallowing the courts very much power to intervene in economic life.

This searching interpretation, which connects law and the courts to the real world, will engage historians in a new debate. For to view the law as an engine of vast economic transformation is to challenge in a stunning way previous interpretations of the eras of revolution and reform.

Endorsements

“It is to be hoped that a wide audience will read it since the issues it raises are indispensable… Horwitz’s book is written with a passion.”
— The New York Review of Books

“He has read widely in many fields…[and] has gathered a rich harvest for any reader…a remarkable achievement.”
— The Yale Law Journal

“A thoughtful contribution to the continuing issue of whether and how much we are governed by our judges.”
— Library Journal

“One of the five most significant books ever published in the field of American legal history.”
— William E. Nelson, Yale University

American Lawyers in a Changing Society: 1776-1876

Maxwell H. Bloomfield.

Published 1976, The Harvard University Press.

Law and Politics in Jefferson’s Louisiana

George F. Dargo.

Published 1975, The Harvard University Press.

The Development of Massachusetts Law, 1760-1830

William E. Nelson.

Prosecuting Crime in the Renaissance: England, Germany, France

John H. Langbein.

Published 1974. Order online through The Harvard University Press. ISBN: 9780674184251.

Executive Privilege: A Constitutional Myth

Raoul Berger.

Published 1974. Order online through The Harvard University Press. ISBN: 9-780-6742-7425-9.

The Autobiographical Notes of Charles Evans Hughes

David J. Danelski, Joseph S. Tulchin.

Published 1973. Order online through The Harvard University Press. ISBN: 978-0-6740-5325-0.

Charles Evans Hughes (1862–1948) was lawyer, governor of New York, Supreme Court Justice, presidential candidate in 1916, Secretary of State in the Harding and Coolidge administrations, a member of the World Court, and Chief Justice of the United States from 1930 until his retirement in 1941. To some, Hughes appeared larger than life. Robert H. Jackson once said of him, “[He] looks like God and talks like God.” But to those who knew him well, he was quite human, extraordinarily gifted, but human nonetheless. His Autobiographical Notes portray him as no biography could and provide comment on almost a century of American history as seen by one who played a part in shaping its course.

Hughes’s notes reveal two sides of his personality—a serious side when he was at work, and a genial, sometimes humorous, side when he was relaxing or with friends and family. When he writes of unofficial life especially his boyhood, college years, and early years at the bar—he is raconteur telling his story with a certain amount of humor; when he writes of his official life he tends to be matter-of-fact. The early chapters describe the formative influence which shaped his character: his loving but intellectually demanding parents and deeply religious training; his unusual early education, which took place mostly at home and gave full scope to his precocity. Hughes’s accounts of college life in the 1870s at Madison (now Colgate) and Brown University and of his career as a young lawyer in the New York City of the 1880s and 1890s are valuable portraits of an era.

Brought up to a high sense of duty, Hughes, from the start of his career, felt bound to take worthy legal cases and it was his reputation for integrity and thoroughness that led to his selection as counsel in the gas and insurance investigations of 1905–1906. This was the turn of events that precipitated him into the public eye and, subsequently, into politics. The culmination of his career came in 1937 when he led the Supreme Court through a constitutional crisis and confronted Franklin Roosevelt in the Court packing battle. In the intervening thirty years, Hughes was a major figure in American political and legal circles. His Notes record his impressions of presidents, statesmen, and justices. His reflections on the diplomacy of the 1920s and on the causes leading up to the Second World War are of immense historical importance.

The editors have supplied an introduction to the Notes, commenting on Hughes’s personality and public image, his political style and rise to fame. They have remained unobtrusive throughout, intervening only to clarify references and provide necessary details. For the rest, they let Hughes speak for himself in the crisp and clear style that reveals his unusual intelligence and the retentive and analytical mind that distinguished his conduct of affairs.

Justice Felix Frankfurter wrote of Hughes: “I have known or know about most of the leading men of my time both here and in England enough to justify me in forming a judgment. There isn’t the slightest doubt that C.E.H. is among the few really sizable figures of my lifetime. He is three-dimensional and has impact.” Here, in these Notes, is this great man drawn in life-size proportions.

Frederic William Maitland: A Life

C.H.S. Fifoot.

Published 1971. Order online through The Harvard University Press. ISBN: 978-0-6743-1825-0.

Renowned as a great scholar, teacher, and legal historian, Frederic William Maitland (1850–1906) advanced the cause of legal history, opposing the idea that legal history was law and not history, yet believing in the advantage of legal training.

He was Downing Professor of Law at Cambridge, helped to found the Selden Society, and himself edited Henry de Bracton’s Notebook and four Year Books of Edward II. With Sir Frederick Pollock he wrote the brilliant work that is still a standard, The History of English Law before the Time of Edward I. He edited Memoranda de Parliamento, and wrote Domesday Book and Beyond, Township and Borough, and Roman Canon Law as well as many papers on legal history and law. His lectures on Equity, on The Forms of Action at Common Law, and on Constitutional History of England were published after his death.

C. H. S. Fifoot has written this biography of Maitland with care and devotion in a style that is lucid and eloquent. He traces the origin and development of Maitland’s works, using them to reveal the man himself and his qualities of mind and spirit. Mr. Fifoot places his subject in the context not only of his age, but also of his family and friends. He has drawn on Maitland’s letters as well as unpublished letters of his friends, private papers, manuscripts, and recollections, much of which would otherwise have perished. The many quotations of Maitland he has incorporated are delightful and revealing.