Thursday, November 13th
3:00-6:00 pm Registration
6:00-7:30 pm ASLH
Reception
7:30-10:00 pm Board of
Directors Meeting
Friday, November 14th
7:30-8:45 am Continental
Breakfast, Future Projects Committee Meeting
8:00 am-3:00 pm Registration
8:00 am-5:00 pm Book Exhibits
Session #1
8:30 am - 10:15 am
Political Histories of Legal Culture
Chair: Sandy Levinson, University of Texas
School of Law
Papers:
“Beyond Dispute: The Politics of Gender
and Class in EEOC v. Sears, 1968-86”1
Emily B. Zuckerman, Rutgers University, Department of History
“Partisanship by Any Other Name: The Taboo
Against Discussing Ideology in the Supreme Court Appointment Process”
David Greenberg, Yale University,
Departments of History and Political Science
Commentators: Mark Graber, University of
Maryland, Department of Political Science & Sandy Levinson
The Local Administration of Justice
Chair: Lawrence Friedman, Stanford Law
School
Papers:
“Justices behind the Curtain: Early Legal
Practitioners in Late Imperial China”2
Li Chen, Columbia University, Department of History
“The Native Courts as Mediator of Social
Change in Ibadan, Nigeria, 1893–1957”3
Omoniyi Adewoye, University of Ibadan, Nigeria, Department of History
“Divergent Destinies: Toward a History of
Constitutionalism and Democracy in India”4
Mithi Mukherjee, University of Colorado at Boulder, Department of
History
Commentator: Lawrence Friedman
Constitutional Theory and Practice in the
Anglo-American Eighteenth Century
Chair: John Murrin, Princeton University, Department
of History
Papers:
“Constitutional Lawyering before the Constitution”Mary Sarah Bilder, Boston College Law School
“Imperial Remix: From the Ancient Constitution to
Constitutional Law”
Daniel J. Hulsebosch, St. Louis University School of Law
“Separating Power: English Liberty as Constitutional
Model”David Lieberman, University of California, Berkeley School
of Law
Commentator: Barbara Aronstein Black, Columbia
University
Comparative Property Rights: North America and Australia
Chair: Carol Rose, Yale Law School
Papers:5
“Terra Nullius in North America,
Australia, and New Zealand”6
Stuart Banner, University of California, Los Angeles, School of Law
“From Individualism to Egalitarianism? The
History of Property Rights in the United States and Australia
Compared”7
Andrew Richard Buck, Macquarie University, Law School
“Comparative Legal History in the
Classroom: Opportunities and Challenges”8
Paul Kens, Southwest Texas State University, Political Science and
History
Commentator: Carol Rose
  Family
Law in Nineteenth-Century England and the United States
Chair: Ariela Dubler, Columbia University
School of Law
Papers:
“‘They Might be Lawless’: Family, Law, and
Interracial Sex in Massachusetts”9
James Allegro, Case Western Reserve University, Department of History
“Untying The Knot: An Analysis of the
English Divorce and Matrimonial Causes Court Records, 1858-1866”10
Danaya C. Wright, University of Florida, Levin College of Law
“Elizabeth Cady Stanton: The Mother of
Modern Family Law”11
Tracy A. Thomas, University of Akron School of Law
Commentator: Ariela Dubler
Session #2
10:30 a.m. – 12:15 p.m.
American Legal Culture and Racial
Violence During the Progressive Era
Chair: Jane Dailey, Johns Hopkins
University, Department of History
Papers:12
“Racial Violence and the ‘Laws of War’ in
the Philippine-American War, 1899-1902”13
Paul A. Kramer, Johns Hopkins University, Department of History
“The Chicago Race Riots and Urban Legal
Culture, 1911-1922”14
Andrew Wender Cohen, Syracuse University, Maxwell School of
Citizenship and Public Affairs
“‘Lawlessness’ and Racial Violence on the
Texas Border, 1912-1921”15
Christopher Capozzola, Massachusetts Institute of Technology,
Department of History
Commentator: Jane Dailey
Athenian Judging/Judging Athenians
Chair: Kevin Crotty, Washington and Lee
University, Classics
Papers:16
“Emotion and Reason in the Judgments of
Athenian Jurors and Tragic Choruses”17
Victor Bers, Yale University, Department of Classics
“Assessing Guilt and Punishment in the
Athenian Jury System”18
Adriaan Lanni, Harvard University, Department of Classics
“Judging the Unspeakable: Wayward Desire
in Athenian Tragedy and Legal Oratory”19
Sheila Murnaghan, University of Pennsylvania, Department of Classics
Commentator: Kevin Crotty
Author Meets Reader: John Langbein, The Origins of Adversary Criminal
Trial
Chair: Thomas A. Green, University of
Michigan, Law/History
Readers:
Albert Alschuler, University of Chicago Law
School
David Lemmings, University of Newcastle, Department of History
Allyson May, Toronto, Canada
Response: John Langbein, Yale Law School
Aboriginal Governance in Canada: The
Struggle for Recognition
Chair: Sidney L. Harring, The City
University of New York, Law School
Papers:20
“Totemic Identity and Aboriginal
Governance”21
Darlene Johnston, University of Toronto,
Faculty of Law
“Infringement of the Aboriginal Peoples’
Inherent Right of Self-Government By The Parliament of Canada,
1867-1982”22
Kent McNeil, York University, Osgoode Hall Law School
“The Struggle for First Nations’
Self-Government and the Role of Parliamentary and Public Inquiries”23
Michael Posluns, The Stillwaters Group
Commentator: Sidney L. Harring
12:30-1:45 pm
H-Law Committee lunch; Law & History Review Committee lunch;
2003 Program Committee lunch
Session #3
2:00 p.m. – 3:45 p.m.
Localism in 20th Century
American Society
Chair: Hendrik Hartog, Princeton
University, Department of History
Papers:24
“Urban Policy and the Contradictions of
Federalism in Modern America”25
Wendell E. Pritchett, University of Pennsylvania Law School
“The Anti-Chain Store Movement and the
Ideology of Localism”26
Richard C. Schragger, University of Virginia School of Law
Commentators: David Barron, Harvard Law
School and Hendrik Hartog
New Tricks for Finding Old Law
Chair: Thomas P. Gallanis, Washington &
Lee University, School of Law and Department of History
Papers:
“Canon Law and other Continental European
Medieval Legal Sources on the Internet”
Ernest Metzger, Aberdeen University, School of Law
“Bracton, The Year Books, and The English
Reports”
David Seipp, Boston University School of Law
“The Avalon Project, Blackstone, and
American Constitutional Sources”
William Fray, Yale Law School
Commentator: Thomas P. Gallanis
Law Against Mob Law: Federal and State Perspectives in the Legal Fight
Against Lynching
Chair: Emma Coleman Jordan, Georgetown
University Law Center
Papers:27
“Legal Resistance to Lynching in Central
Texas, 1896-1905”28
William D. Carrigan, Rowan University, Department of History
“In Search of State Action: Federal
Efforts to Curb Lynching, 1898-1945”29
Christopher Waldrep, San Francisco State University, Department of
History
Commentators: Crystal Feimster, Boston
College, Department of History Michal Belknap, California Western
School of Law, and University of California, San Diego, Department of
History
Regionalism, Commerce, and Imperial Governance in Early America,
1600-1800
Chair: Steven Wilf, University of
Connecticut School of Law
Papers:30
“Regionalism in Early American Law”31
David Thomas Konig, Washington University in St. Louis, Department of
History and Law School
“Law and Commerce, 1660-1815”32
Claire Priest, Northwestern University School of Law
“Imperial Governance and Communications in
Early America”33
Richard J. Ross, University of Wisconsin, Madison, Law School and
Department of History
Commentators: Christine Desan, Harvard
Law School and Gregg Roeber, Pennsylvania State University, Department
of History
Session #4
4:45 p.m. – 6:00 p.m.
Plenary Session: Reconstruction of
Legal Order in Occupied Lands
The American South after the Civil War
Edward L. Ayers, University of Virginia, Department of History
Japan after World War II
John W. Dower, Massachusetts Institute of Technology, Department of
History
Germany after World War II
Charles S. Maier, Harvard University, Department of History
Saturday, November 15th
7:30-8:45 am
Continental Breakfast; Publications Committee breakfast; Hurst Committee
breakfast
8:00 am - noon
Registration
8:00 am - 4:30 pm Book
Display
Session #5
8:30 a.m. – 10:15 a.m.
Law, Violence, and Gender
Chair: Laurel Fletcher, University of
California, Berkeley, Boalt School of Law
Papers:
“Sociobiology or Cultural Defense?:
Reconsidering the Heat of Passion Excuse”
John Pettegrew, Lehigh University, Department of History and American Studies
“Domination and Resistance”
Adrienne Davis, University of North Carolina Law School
“The Subject of Freedom: Husbands and Wives”
Katherine Franke, Columbia Law School
Commentator: Laurel Fletcher
Problems of Proof: Evidence Law in England and America 1650-1900
Chair: Barbara Shapiro, University of
California, Berkeley, Rhetoric Department
Papers:
“The ‘Campden Wonder’ and the Problem of the
Missing Body”34
Bruce P. Smith, University of Illinois, College of Law
“Engine Troubles: Cross-examination and the
late-Victorian ‘License of Counsel’ Debates”35
Wendie Schneider, University of Iowa College of Law
“Identifying Knowledge: The Tichborne
Claimant and Conceptions of Evidence”36
Jennifer L. Mnookin, University of Virginia School of Law
Commentator: Barbara Shapiro
Nineteenth-Century Historical Jurisprudence in Comparative Perspective
Chair: James Q. Whitman, Yale University
Papers:
“The German Historical School: Variations On
A Theme by Savigny”
Mathias W. Reimann, University of Michigan, School of Law **
“The American School of Historical
Jurisprudence”
David M. Rabban, University of Texas, School of Law
“F.W. Maitland, Historical Jurisprudence and
the Rise of Sociology”
David Runciman, University of Cambridge
Commentator: James Q. Whitman
Postcolonial Legal Histories: Law, Culture, and Commensurability
Chair: Teemu Ruskola, American University,
Washington College of Law
Papers:37
“Legal Subjects, Market Agents: Culture and
the Legal Economy of ‘General Public Utility’ in Colonial India”38
Ritu Birla, University of Toronto, Department of History
“Law’s Empire: How the Code of the District
of Columbia Became the Law in the ‘District of China’”39
Teemu Ruskola, American University, Washington College of Law
“Dependent Citizens and Marital Expatriates”40
Leti Volpp, American University, Washington College of Law
Commentator: Thomas Keenan, Bard College,
Department of English
Liberty and Property: Legal Interpretations of Property Rights in
Revolutionary and Early National America
Chair: Gregory Alexander, Cornell Law
School
Papers:41
“The ‘Contest between Liberty and Property’:
Freedom Suits in the Revolutionary Era”42
Emily V. Blanck, Emory University, Department of History
“Taking ‘Notice of an Error in the Nature of
our Landholdings’: Historical Interpretations of Land Ownership in the
Virginia Commonwealth in the Virginia Commonwealth”43
Christopher M. Curtis, Iowa State University, Department of History
“Taking Liberties with Native American
Property: Creating a Moral Landscape through the Language of Land
Possession”44
Ellen Holmes Pearson, University of North
Carolina, Asheville, Department of History
Commentator: Gregory Alexander
Session #6
10:30 a.m. – 12:15 p.m.
Before and After Brown v. Board of Education
Chair: Mary Dudziak, University of Southern
California, Law School
Papers:
“The Role of History in Brown v. Board of
Education”45
Christopher W. Schmidt, Harvard University, History of American
Civilization
“Erasing The Badge of Inferiority:
Segregated Interstate Transport on the Ground and in The Courts,
1941-1960”46
Derek Catsam, Minnesota State University, Department of History
“Brown v. Board and Higher Education:
Federal Courts and Segregated Universities, 1948-1964”47
Peter Wallenstein, Virginia Polytechnic Institute & State University,
Department of History
Commentator: Michael Klarman, University of
Virginia Law School
Law and Reality in the Graeco-Roman World
Chair: Cynthia Patterson, Emory University,
Department of History
Papers:48
“Back to Citizenship – Reflections on the
legal status of Roman Prisoners of War”49
Rachel Feig Vishnia, Tel-Aviv University, Department of History
“Partly Slave, Partly Free: The Legal
Status of Manumitted Slaves Under Paramone”50
Rachel Zelnick-Abramovitz, Tel-Aviv University, Department of Classics
Commentator: Clifford Ando, University of
Southern California, Department of Classics
Liberty and Litigation in Comparative Perspective: England and
Mexico, 1550-1750
Chair: Brian Levack, University of Texas,
Department of History
Papers:52
“Marital Litigation in The Court of
Requests, 1542-1642”53
Tim Stretton, St. Mary’s University, Halifax, Department of History
“Whose Liberty? Habeas Corpus, 1550-1750”54
Paul Halliday, University of Virginia, Department of History
“‘That Which Your Majesty So Firmly Commands
Be Protected’: Liberty among Indians in 17th Century Mexico”55
Brian Owensby, University of Virginia, Department of History
Commentator: Brian Levack
Israeli Legal History: National Security and Arab Displacement in the
post-1948 Period
Chair: Nir Kedar, Bar-Ilan Faculty of Law
Papers:
“Violence and the Word Revisited: The Case
of the ‘Infiltrators’ before the Israeli Supreme Court, 1948-1954”56
Oren Bracha, Harvard Law School
“The Supreme Court and the Arab-Jewish
Conflict: Implications for the Jurisprudence of Land Expropriation”57
Yifat Holzman-Gazit, Bar Ilan University, School of Law
“From Arab Land to ‘Israel Lands’: The Legal
Dispossession of the Palestinians Displaced by Israel in the Wake of
1948”58
Alexandre Kedar, Haifa University, Law School
Commentators: Lama
Abu-Odeh, Georgetown University Law Center
and Raif Zreik,
Harvard Law School
The Rise of the Anglo-American Corporation: Alternative Paths and
Functions
Chair: Colleen Dunlavy, University of Wisconsin-Madison,
Department of History
Papers:
“Moral Shirking and the Rise of the Classic
Capitalist Firm in Britain, 1844-1914”59
Paul Johnson, London School of Economics, Department of Economic History
“From Partnership and Trust to Corporation:
Insolvency and Agency in the Late 18th and Early 19th Century”87
Joshua Getzler and Mike MacNair, Oxford Faculty of Law
“Institutional Foundations for Securities
Markets in the West”88
Mark Roe, Harvard Law School
Commentators: Paul Mahoney, University of
Virginia Law School and Colleen Dunlavy
Annual Luncheon
12:15 – 2:00 p.m.
Session #7
2:15 p.m. – 4:00 p.m.
Biography As Legal History: Ruth Bader Ginsburg and Jacobus TenBroek As
Historical Subjects
Chair: Joan Williams, Washington College of
Law, American University
Papers:60
“From Frontiero to Flatbush with
Justice Ruth Bader Ginsburg”
Jane S. DeHart, University of California, Santa Barbara, Department of
History
“From Disability to Welfare Rights: Jacobus
TenBroek on Discrimination”61
Felicia Kornbluh, Duke University, Department of History
Commentators: Pnina Lahav, Boston
University Law School and Mark Tushnet, Georgetown School of Law
Forfeitures and Penalties in the English Medieval Common Law
Chair: Janet Loengard, Moravian College,
Department of History
Papers:
“Statutory Forfeiture of Land for the
Non-Performance of Services: The Origins and Early History of the Action
of ‘cessavit per biennium’”
Paul Brand, All Souls College, Oxford
“Origins and Early History of the Penal
Bond”
Joseph Biancalana, University of Cincinnati College of Law
Commentator: Charles Donahue, Jr., Harvard
Law School
Law and Public Opinion in the Americas
Chair: Elizabeth Dale, University of
Florida, Department of History and Levin College of Law
Papers:62
“Public opinion is practically the paramount
law of the land: The Cilley-Graves Duel and the Antinomies of Antebellum
Anti-Dueling”63
Mark G. Schmeller, Syracuse University, Maxwell School of Citizenship
and Public Affairs
"Dueling Ritual as Customary Law in 19th and
20th Century Uruguay"
David Parker, Queen's University, Department of History
“White Husband, White Wives, ‘Mulatto’
Babies: Race, Divorce Law, and Public Opinion in 1830s North Carolina”65
Charles Rayburn and John Wertheimer, Davidson College, Department of
History
“Articulating Rights: Arguments Around
Criminal Libel in the Mid-Nineteenth Century”66
Lyndsay Campbell, University of California, Berkeley, Jurisprudence and
Social Policy
Commentator: Elizabeth Dale
New Histories of International Law
Chair: Benedict Kingsbury, New York
University School of Law
Papers:
“The Law of Nations in an Age of Global War,
1754-1763”
David Armitage, Columbia University, Department of History
“The Edges of Empire and the Limits of
Sovereignty: Guano Islands, 1856-1890”67
Christina D. Burnett, Princeton University, Department of History
“Untangling Colonialisms’ Claims on Natural
Resources”
Patricia Seed, Rice University, Department of History
Commentator: Benedict Kingsbury
Law and the Management of Risk in Modern America
Chair: James Wooten, SUNY-Buffalo Law
School
Papers:
“When All Else Fails: Government as a Risk
Manager in American History”
David Moss, Harvard University, Graduate School of Business
“The Accidental Republic: Contingencies and
Risks in the Remaking of American Law”
John Witt, Columbia Law School
“Insurance at the Crossroads: Cultural
Transformation, Late-Nineteenth Century Insurance Law, and the
Appropriation of Risk”
Roy Kreitner, Tel Aviv University Faculty of Law
Commentator: James Wooten
Session #8
4:15 – 6:00 p.m.
Law and Political Development in the
Progressive Era
Chair: Elizabeth Sanders, Cornell
University, Department of Government
Papers:68
“The Social Control of Business in the
Progressive Era”69
William J. Novak, University of Chicago, Department of History
“Speaking Law to Power”70
Michael Willrich, Brandeis University, Department of History
“Democracy and the Constitution in
Progressive America”71
William E. Forbath, University of Texas, Law School and Department of
History
Commentator: Elizabeth Sanders
Roundtable: Women Acting in Law
Moderator: Barbara Welke, University of
Minnesota, Department of History
Papers:
“Between Class and Gender: Last Wills and
the Notarial Practice in Seventeenth-Century Provincial Tuscany”
Giovanna Benadusi, University of South Florida, Department of History
“‘Feeling Like a State’: Elite Slaveholders
and Everyday Power in the Antebellum South”
Stephanie Camp, University of Washington, Department of History
“Courting Families: Litigation and the
Political Economies of Daily Life in Early Modern France”
Julie Hardwick, University of Texas, Austin, Department of History
“Power to Accuse? Rape, Women’s Voices, and
the Power of Whiteness in the Legal Record”
Lisa Lindquist Dorr, University of Alabama, Department of History
Roundtable: Historians in The Courtroom
Moderator: Donna C. Schuele, The California
Supreme Court Historical Society
“Historians as Expert Witnesses: An
Overview and Assessment”
John A. Neuenschwander, Carthage College, Department of History
“Telling Lies to the Supreme Court:
Reopening the Wartime Internment Cases”
Peter Irons, University of California, San Diego, Department of
Political Science
“The Practice of Forensic History: An
Example from the Land Grant Wars”
Peter Reich, Whittier Law School
“Postmodernist Jurisprudence, Postmodernist
History: Hard Lessons from an Expert Witness on Voting Rights”
J. Morgan Kousser, California Institute of Technology, Division of
Humanities and Social Sciences
Sunday, November 16th
8:00 -9:00 am
Continental Breakfast
Session #9
9:00 a.m. – 10:45 a.m.
Looking Back at the Legal Profession:
Lessons from the Past
Chair: Robert W. Gordon, Yale Law School
Papers:
“The Myth of Civic Republicanism:
Interrogating the Ideology of Antebellum Legal Ethics”72
Norman W. Spaulding, University of California, Berkeley, Boalt Hall
School of Law
“Rediscovering Julius Cohen and Rethinking
the Origins of the Business/ Profession Debate”73
Samuel J. Levine, Pepperdine University School of Law
“Gentleman’s Agreement: The Antisemitic
Origins of Restrictions on Stockholder Litigation”
Lawrence E. Mitchell, The George Washington University
Commentator: Robert W. Gordon
Smoke Screens, Sounds Uncouth and Black Rams: Women in the Spaces of the
Law
Chair: Susan Sage Heinzelman, University of
Texas, Austin, Department of English
Papers:
“Prostitution As A Smoke-Screen in a 4th
C. B.C. Lawsuit”74
Lesley Dean-Jones, University of Texas, Austin, Department of Classics
“Patriarchy as Usual: Women, Children, and
The Family Tribunal in Late Roman Law”75
Judith Evans Grubbs, Sweet Briar College, Classical Studies Department
“The ‘Sounds Uncouth’ of Westminster Hall:
Law, Women, and Commerce”76
Kathryn Temple, Georgetown University, Department of English
“Disturbing the Peace: Queen Caroline and
The Black Ram”77
Susan Sage Heinzelman
Commentator: The Audience
Economic Analysis of Legal History
Chair: Geoffrey Miller, New York University
Law School
Papers:
“Covenants and Conventions”78
Richard Brooks, Northwestern University Law School
“Adverse Selection in Market Sales of Roman
Slaves”79
Bruce Frier, University of Michigan, Classical Studies Department and
Law School
“The Value of Judicial Independence:
Evidence from Eighteenth-Century English Stock Prices”80
Dan Klerman, University of Southern California Law School
Commentator: John Wallis, University of
Maryland, Economics Department
Property and The Nineteenth-Century Constitution
Chair: Charles McCurdy, University of
Virginia, Department of History and Law School
Papers:
“The Limits of Sovereignty: Legislative
Property Confiscation in the Union and the Confederacy”81
Daniel W. Hamilton, New York University Law School
“The Role of Cherokee Women in Shaping
Marshall’s Trust Doctrine in the Cherokee Cases”82
Cynthia Cumfer, Reed College, History and Humanities
“Stability and Change in Antebellum Property
Law: State Courts and Judicial Takings”83
Polly Price, Emory University Law School
Commentator: Charles McCurdy
African Americans before the Bar in Nineteenth Century America: Court
Battles over Racial Segregation, Inheritance and Citizenship Rights,
1831-1888.
Chair: Sandra VanBurkleo, Wayne State
University, Department of History
Papers:
“Resisting the ‘Unjust Written Manacles for
the Free’: Challenging Racial Barriers in Nineteenth Century Ohio”84
Barbara Terzian, Ohio Wesleyan University, Department of History
“‘If They Should Choose Freedom’:
Testamentary Capacity and Vision of Freedom in Nineteenth Century
Kentucky”85
Yvonne Pitts, University of Iowa, Department of History
“She is a citizen of the United States for
only certain purposes: Gender Identity, Racial Status and the Legal
Struggle to Desegregate a Mississippi Steamboat”86
Sharon Romeo, University of Iowa, Department of American Studies
Commentator: Sandra VanBurkleo
1. In 1973, the Equal Employment Opportunity Commission
(EEOC) alleged that Sears, Roebuck & Co. discriminated against women
because its commissioned sales force was predominantly male. The
case became known for the expert witness testimony of two women’s
historians. Rosalind Rosenberg testified for Sears that women
wanted jobs that complemented their domestic obligations rather than
higher-paying positions. Alice Kessler-Harris testified for the
EEOC that Rosenberg universalized an assumption about white
middle-class women to women of color and working-class women. The
Court concluded that Sears’ practices reflected female preferences
rather than discrimination, which represented a defeat for efforts
to open male-dominated occupations to women. The decision sparked
a heated debate among feminist scholars and in the mainstream media.
In spite of how Sears is
remembered, the decision should be viewed in the broader context of
political changes in the 1970s and 1980s. Early on, the promise of
the Civil Rights Act led the EEOC to conduct industry-wide
investigations, with an eye toward revolutionary change in the
workplace. By the end of the lawsuit in 1986, changes in
presidential administration and political atmosphere had shifted the
EEOC’s agenda away from sweeping changes and toward remedies for
individuals.
The case can also be
explained by examining the parties involved. Rather than settle
with the EEOC, Sears’ aggressive corporate culture led it to fight
back. Women’s organizations that initiated the case lacked the
resources to follow through and became preoccupied with other
issues. The polarized debate prevented feminists from addressing
complex questions about the kind of employment women sought. The
role of working women in Sears was lost, exposing the class divide
between them and the middle-class feminists trying represent them.
By viewing this case from a broader perspective, it is possible to
recapture the women of Sears, as well as shed light on the shift
from the promise of far-reaching change to a weakened and
ineffective approach to equal employment opportunity.
2. This paper tries to analyze how private legal
practitioners (xingming muyou or "advisors behind the
curtain") shaped Chinese legal culture and judicial administration
during the Qing dynasty (1644 A.D. - 1911 A.D.). Since Qing local
officials were appointed primarily because of their excellence in
literary classics rather than administrative or legal expertise,
most of them relied upon private legal advisors to help perform
their judicial duty that had become increasingly complicated as
crimes and litigations soared over time, especially in the late
imperial period. While these private legal advisors played such an
indispensable role in the local administration of justice, scarce
scholarship has been devoted to studying their significance in
Chinese legal history.
Seeking to sketch out how
these early legal practitioners actually shaped Chinese legal
culture, this paper will examine their personal profile, legal
training, legal philosophy and judicial practice, against the
backdrop of changing official and popular discourses on their role
in judicial administration. Such an understanding of the unique
cultural, social, and institutional contexts in which these private
legal practitioners pursued their career and administered justice
will hopefully enable us to better appreciate certain salient
characteristics of Chinese legal tradition as well as the actual
operation of the judicial system in late imperial China.
3. “Native courts” in colonial Nigeria were judicial
institutions created by the British to allow members of the
indigenous population adjudicate cases under the supervision of
British administrative officers. The paper is a case study of such
courts in Ibadan city: how they facilitated the spread of English
legal ideas; how they functioned to enhance personal freedom and
individualism; in particular, how they elevated the status of women
in the society; and how they forced changes in social habits and
patterns of behaviour through criminal sanctions. From a
world-system perspective, it is clear from this study that native
courts in Nigeria facilitated the integration of the colonial estate
with the West by fostering among the local population a mental
outlook conducive to it.
One primary factor in this
development is the jurisprudential outlook of the English common
law. The basis of the common law is the assumption that society is
no more than a complex web of legal relationships between persons
(natural or juristic), regardless of their social status. It is this
jurisprudential outlook that the native courts tended to imitate in
matters of procedure and the “law” they were said to administer. The
pervasive influence of the supervising British administrative
officers (who knew nothing but the English common law) accentuated
this development.
As this study shows, the
courts were not subversive of all indigenous values. In spite of the
level of social change brought about through the Native courts in
Ibadan social life in the city continued to exhibit elements of
continuity with the past which the courts also endeavoured to
uphold.
4. In a globalizing world, as the urge and need to
spread constitutional democracy beyond the borders of the “west” has
grown, there is an increasing awareness among constitutional
scholars of the enormous difficulties that necessarily accompany
attempts to foster constitutional democracy in different parts of
the world. In this context, the success of the Indian experience in
constitutional democracy in the fifty years after India’s
independence from British rule has intrigued scholars, particularly
given the overwhelming diversity of the Indian population in terms
of religion, ethnicity, language, caste, etc. and the absence of a
developed capitalist economy. In contrast to the unstated but
largely unquestioned view that Indian constitutional democracy is
primarily a legacy left behind by British colonialism, my contention
in this paper is that the nature and viability of constitutional
democracies, specially in postcolonial countries, depends to a large
extent on the nature, strength and legacy of anti-colonial
resistance movements. In the unique case of India, I argue that
constitutionalism and democracy have had two separate and largely
divergent historical lineages, the first grounded in the idea of
justice as equity and articulated by the Indian National Congress in
its struggle against British colonialism, and the second articulated
by Gandhi in terms of the traditional Indian spiritual idea of
renunciative freedom, as opposed to the western discourse of
political freedom based on individualism. In this paper, I pursue
the contours and implications of this dual lineage.
5. The history of property is conventionally written and
taught as a subject delineated by modern national boundaries, as the
history of property law and property use in this or that country.
This is especially true in the United States, where there is a long
tradition of generalizing from the American experience to make
claims about the nature of property rights in the abstract. Yet if
there ever was a subject that cried out for a comparative historical
perspective, this is the one. The institution of property exists
everywhere, under differing local material conditions and differing
local legal regimes. To what extent, and why, has the history of
property differed across nations? Would a richer, more comparative
account of the history of property give rise to different
generalizations about the nature of property rights?
Our panel tries to begin
getting at these questions by looking at differences in the history
of property in North America and Australia. These are similar
places in some important respects. Both inherited the English law
of property. Both were settler colonies in which land had to be
acquired from indigenous people. Both were frontier societies for a
considerable part of their histories. Land loomed large in both
cultures (and indeed still does), both as a source of material
wealth and as a cultural icon. Despite all these similarities,
however, there have been some significant differences in the history
of property in North America and Australia. Why?
Two of our papers try to
answer this question with respect to particular aspects of the
history of property, one (Banner) on differences in the law
governing the acquisition of land from indigenous people, and the
other (Buck) on differences in the extent of state intervention (and
common beliefs about the extent of state intervention) in the
development of property rights. The third paper (Kens) turns to the
classroom, and investigates ways of teaching the subject, and
teaching comparative legal history generally, in both a substantive
and a logistical sense.
6. Terra nullius is such a basic and well-known fact of
Australian history that it is easy to lose sight of how anomalous it
was in the broader context of British colonization. The British had
been colonizing North America for two centuries before they reached
Australia, but they did not treat the North American colonies as
terra nullius. Instead they acknowledged North American Indians as
possessors of property rights, and generally acquired the Indians’
land in transactions structured as purchases. The British began
colonizing New Zealand a few decades after Australia, but they did
not treat New Zealand as terra nullius either. Instead they signed
a treaty explicitly recognizing the Maori as owners of the land.
The existence of terra nullius in Australia is thus something of a
puzzle.
My paper identifies three
reasons for Australia’s anomalous status. First, American Indians
and the Maori were farmers, while Aboriginal Australians were not.
According to then-conventional European anthropological thought,
agriculture presupposed property rights in land. Second, American
Indians and the Maori were more powerful military opponents than
Aboriginal Australians, so the cost of conquest to the settlers
would have been considerably higher in North America or New Zealand
than in Australia. Finally, North America and New Zealand were in
effect first colonized by small private groups, under very little
supervision from Britain. Members of these groups, too weak to
seize land by force and unconstrained by official imperial land
policy, often purchased land from indigenous people. By the time
the imperial government began paying much attention, most settlers
derived their land titles from an initial purchase from indigenous
people, and they formed a powerful political force for recognizing
indigenous people as landowners. Australia, by contrast, was first
colonized by a well-armed official expedition. The imperial
government was, in effect, present in Australia from the beginning,
which prevented the growth of a settler lobby in favor of
recognizing Aboriginal property rights.
7. In his book Legal Transplants, Alan Watson defended
Comparative Law as a separate academic discipline, defining it as:
“a study of the relationship, above all the historical relationship,
between legal systems, or between rules of more than one system.”
While many in the legal academy have resisted Watson’s defense of
comparative law as a separate discipline, legal historians, such as
Lauren Benton and Peter Karsten, who have focused on the historical
relationship between legal systems, have produced a body of exciting
work by adopting a comparative approach. In this paper, I will
explore the opportunities and challenges of the comparative approach
through a focus on the historical development of property rights in
the United States and Australia during the nineteenth century.
This paper emerges out of
the joint teaching project described by Professor Kens in his paper
in this panel. By focusing on the relationship between property law
and the political culture of two settler societies, it is also
designed to complement Professor Banner’s paper in this panel, which
has emerged from his research on the comparative history of
indigenous property rights in the common law jurisdictions of the
British Diaspora.
There is a long
historiographical tradition in the United States, which prioritizes
a “rugged individualism” over state intervention in explaining the
historical development of property law and the contours of debate
over property rights. By contrast, there is a long historiographical
tradition in Australia whereby the development of property law and
property rights is explained as a product of guided state
development often referred to as “colonial socialism”. By reference
to important case law in both jurisdictions, including such notable
American cases as Fremont v. United States (1854) and important
Australian cases such as Attorney General v Brown (1847), as well as
politically charged legislation, including the Robertson Land Acts
of 1861 in Australia and the mid-nineteenth Homestead Acts in the
United States, this paper will explore the myth and reality of these
historical shibboleths.
8. In 2000 a group of Canadians and Australians took
advantage of the potential of the Internet by offering a course in
comparative legal history (described in Law and History Review,
Summer 2000). Inspired by that group, Andrew Buck, of Macquarie
University, and I offered a comparative Internet based course in
Spring 2003. This presentation will describe our experience and
discuss both the opportunities and the challenges of teaching such a
course.
Even though the Canadian
and Australian group provided a model from which to work, we still
faced a number of challenges unique to our circumstances. Perhaps
the principle challenge was determining the substance of the
course. We decided to focus on the single issue of property
rights. We began with the general proposition that a conventional
view is that the American experience emphasized private property and
non-intervention of the state. In contrast, the history of property
rights in Australia is often presented as reflecting a high profile
of the state in control and distribution of property. Taking into
account our similar background in English common law as well as our
distinctive histories, we asked our students to explore the myth and
reality of these conventional views. A second challenge was dealing
with the logistics. The Internet allowed our students to
communicate, but it did not change such things as our semester
calendars and time zones.
The advantages of
participating in this project have been numerous. At the time I
write this proposal we have just started the course. Yet we have
already seen positive aspects in the form of support from our
institutions, enthusiastic students, and the possibilities of joint
publications in comparative legal history. For those, like me,
whose work has been limited to American constitutional and legal
history, the project also offers a wonderful avenue for
self-education.
9. Slavery and the law co-existed together in British
America in a creative relationship that informed how masters and
slaves lived, worked, and, most importantly, loved. This paper
re-evaluates the position of interracial sex and marriage in the
legal and cultural development of colonial Massachusetts. Whereas
some historians depict anti-miscegenation laws as an elite
instrument for regulating and dividing the sexual interests of
subordinate laboring peoples, this paper depicts these acts as a
flexible instrument of community development responsive to a a wide
array of social groups, including slaves, servants, and free
peoples. For the majority of colonial society, statutes baring
interracial sexual relationships affirmed a critical building block
of Puritan society, the marriage covenant, against the shifting
political and military circumstances of the late 1600s. More
particularly, anti-miscegenation law was part of a broader continuum
of regulations designed to affirm the patriarchal underpinnings of
the family against the perils of war with France and the
uncertainties of the Glorious Revolution. These laws proscribed the
boundaries of the Puritan community, but they also responded to the
sexual mores of its subjects, including white servants and African
slaves. Through their participation in the courts, slaves and
servants contributed new knowledge to the law, in turn altering the
movement to re-affirm the family against war and political tumult.
Laws banning interracial sex emerged as a result of the
back-and-forth dialogue between slaves, servants, and masters over
issues of sexual intimacy and marriage.
10. This paper is
an analysis of the petitions, answers, affidavits, and court docket
for the first nine years of the English divorce and matrimonial
causes court. It examines in detail the child custody, alimony,
gender, and class components of the court's first nine years. After
analyzing the petitions and court docket along gender lines for the
different causes of action (divorce, separation, annulment, and
restitution of conjugal rights), and their success rate by gender
and by age of the marriage, it then breaks down marriages by age and
speculates on a variety of causes for the different results and
considers how gender differences and power imbalances in
nineteenth-century society influenced the decisions of both men and
women to terminate their marriages.
11. Elizabeth
Cady Stanton is often described as the most significant woman
history has ever forgotten. Scholars in women’s studies and history
have only in the last decade begun to rediscover her important
contributions to the feminist movement. Missing from the
scholarship, however, is any analysis of the importance of her
contributions to the law, and in particular to the area of family
law. Stanton was a holistic legal thinker, arguing that women’s
suffrage alone was insufficient for equality, and advocating for
universal reform to the laws of the family, employment, and
community. This research intends to examine for the first time
Stanton’s writings on divorce, marriage, child support, custody and
domestic violence to find her prescriptions and theories for family
law. By exploring Stanton’s legal theories and contrasting them
with the theories of contemporary family law, the research will show
how Stanton advocated and demonstrated the modern idea of equality
for women within the family. The research hopes to show that
Stanton approached the law from a feminist legal perspective,
arguing for laws that reflected the actual experiences of women. By
revealing the historical underpinnings of feminist legal theory
beginning with Stanton, this research hopes to inform the continuing
debates over legal rights within the family.
12. This panel
will explore the connections between legal thought and racial
violence during the Progressive Era. Many scholars have noted the
sad alliances between segregationists and many turn-of-the-century
reformers. Jim Crow statutes appealed not only to rural white
Southerners, but also to urban professionals, who advocated public
regulation, clean government, and “scientific” theories of race.
But this broad schema does not fully explain the extensive racial
combat of this same period-imperialism, vigilantism, and rioting-
which seems counter to the Progressive faith in law as well as the
reformers’ perception of conflict as tragic and wasteful. Further,
this rubric often paints racial ideologies as the source rather than
a product of exclusion, separation, and combat. Looking at both
domestic and foreign affairs, the three papers in this panel will
discuss why Progressive understandings of law actually promoted an
intensification of racial violence and the continual reconstitution
of racial identities.
13. My paper
explores the role of racial ideology in the bounding and unbounding
of colonial violence during the Philippine-American War. The role
played by “race” in the conflict has long been known to historians,
many of whom first discovered the war during the civil rights and
anti-Vietnam War movements. But this role has been analytically
reduced to the notion that U. S. soldiers on occasion acted on
racist “attitudes,” especially pre-existing ones that they
reflexively “exported” to the Philippines or “projected” there, as
onto a blank screen.
This paper explores, to the
contrary, the contingencies of racial formation in a colonial
setting as part of two larger efforts: first, to demonstrate the
centrality of race to legal and moral categories of war and
violence; second, to write a transnational history of race in the
early 20th century. As I show, the U.S. soldiers who occupied
Manila in August 1898 during the Spanish-American War did not
racialize the Filipinos they encountered-either as soldiers or
civilians-in any coherent or consistent way. Situational novelty,
the delay of the Treaty of Paris negotiations and concerted efforts
by Filipinos to assert their statehood and “civilization” all led to
diverse U.S. assessments that included what might be called
“recognition”: of the Philippine Republic as a legitimate political
entity, and of Filipinos as a “civilized” people.
The cession of the
archipelago by Spain to the United States in December 1898 triggered
rising tensions in the Islands that erupted in war the following
February, when U. S. sentries fired on Filipino soldiers. The
outbreak of war itself unleashed a process of racialization, as
indicated by often stark changes in U. S. soldiers’ terminology
during the early weeks and months of the conflict. War itself did
not end the political struggle for recognition: for the first nine
months, the Republic’s military leadership chose a disastrous
strategy of conventional warfare with the self-conscious goal of
securing international support by fighting through “civilized”
means. In November 1899, however, the Philippine Army disbanded
into decentralized guerrilla units, moving the battle into more
remote, rural areas and relying on barrio-level recruitment, support
and intelligence.
The Filipino adoption of
guerrilla tactics, in turn, led to a radicalization of racial
perception among U. S. troops and officers in 1900-1901. Fighting
in unfamiliar tropical environments, unable to distinguish Filipino
peasants from soldiers, U. S. soldiers recast the conflict as a “war
of the races”; Filipino guerrilla tactics were “ethnologized,”
marked as the expression of inherent traits of “savagery” and
treachery in the population as a whole. As General Hughes put it in
late 1900, “the whole population has been rank insurrectos from hide
to heart…” This view was made policy in General MacArthur’s
December 1900 declaration, invoking the Civil War-era General Orders
No. 100, that those who waged guerrilla war “divest themselves of
the character of soldiers, and if captured are not entitled to the
privileges of prisoners of war.” MacArthur’s order, animated by
emerging racial forms, led to a totalization of U. S. violence: the
destruction of homes, livestock and other property of civilians; the
torture of civilians and prisoners; ultimately, instances of
indiscriminate killing.
Senate investigations into
wartime “cruelties” and Army court-martials ultimately yielded few
punishments. Chief among Army self-defenses was the argument that
Filipinos, being “savages” themselves, and having waged a “savage”
form of warfare, were not due the restraints of “civilized” war.
14. My paper
examines racial conflict in Chicago between 1911 and 1922,
investigating its roots in Progressive-era law, politics, and urban
legal culture. Previous authors have blamed the infamous Race Riot
of 1919 on the interaction of African-American migration, white
prejudice, and economic rivalries. This paper complicates such
interpretations by considering how local institutions-courts,
political parties, craft unions, and trade associations-helped
construct racial identities both before and after World War One.
The contemporary legal climate encouraged vigilantism rather than
any state management of race relations- either Jim Crow laws or
egalitarian policies guaranteeing equal access-and the result was
intense private violence.
Consider labor market
competition, one source of racial tension emphasized by many
historians. As black workers sought to earn a living, they
challenged white craftsmen’s dominance over the labor market. The
tradesmen did not, however, call for legal segregation, partly
because they rejected the principle of public regulation itself.
Defeated regularly in the courts, craft workers and employers
rejected judicial authority and projected a profound sense of their
own sovereignty. Unions and trade associations formed their own
systems of governance to stipulate wages, hours, prices, machinery,
and materials. Walking delegates administered these rules, gaining
compliance through strikes, boycotts, assaults, and bombings. Such
restrictions not only deflected modern technology, corporations, and
a national market, they also challenged elite faith in the rule of
law. But when judges pressured tradesmen to recognize the state’s
authority, they merely hardened the craftsmen’s belief in their own
jurisdiction.
White Chicagoans chose to
control race relations through a set of interlocking private groups,
including unions, associations, political clubs, and gangs.
Workers, for example, increasingly defined formerly race-blind
restrictions on the labor market in racial terms, specifically
barring blacks from union membership. Moreover, these organizations
physically punished blacks for crossing geographic and occupational
color lines. Assaults on African Americans closely resembled
attacks on open shop employers, price-cutters, and non-union workers
during the same period. For example, four months before the 1919
riot, a bomb exploded at the office of African-American real estate
entrepreneur Jesse Binga. Some observers believed the bombers
sought to intimidate black citizens who lived amidst whites. Others
claimed the Flat Janitors’ Union had punished Binga for employing
non-union men. In fact, these conclusions are complementary, for
residential segregation and economic exclusion were both components
of a broader effort by white craftsmen to control space and
commerce.
While judges offered
protection to corporate employers, they failed to defend black
access to jobs and housing. Left with few options, African
Americans responded by forming their own organizations, by finding
patrons like Mayor William Hale Thompson, and by retaliating against
their white rivals. These resistance strategies allowed migrants to
survive. But in defending themselves, blacks risked fulfilling
white preconceptions of them as allies of capital, thus
unintentionally perpetuating the cycle of private racial violence.
15. This paper
explores the boundaries of legal order and lawlessness in Texas in
the years of the Mexican Revolution as part of a broader
consideration of the relationship between racial violence,
modernity, and the law in the early twentieth century. This paper
examines several episodes in southern Texas to show not only how
vigilantism maintained a racial status quo, but also how south
Texans of Mexican heritage used the rhetoric of lawlessness to
challenge racial violence through legal institutions.
From the outset of the
Mexican Revolution, local, state, and federal authorities in the
United States thought of the revolution as a fundamentally lawless
event that threatened both the legal and racial orders of the border
region. The main section of the paper examines the response of
public officials in Texas and Washington to Mexican “banditry”
through the lenses of law and race. It explores the
connections-both theoretical and institutional-between General John
J. Pershing’s Punitive Expedition of 1916 and the vigilantism
carried out in the same period by Anglo South Texans in a wide range
of organizations that included the Texas Rangers. Authorities
consistently accused Mexican revolutionary groups of engaging in
vigilantism and racial violence, while denying that their own
activities fit the same definitions. Hypocritical? Yes. But not
only that.
Modernity is the key to
understanding why this position was not simple hypocrisy. By the
early twentieth century, law enforcement in Texas was conducted
primarily by professional police forces and the National Guard, and
many considered the Rangers to be an anachronism in a modernizing
society. Nevertheless, in Texas as elsewhere in the country,
longstanding traditions of popular enforcement of the law proved
difficult to dislodge. The paper situates the Texas Rangers in the
history of early twentieth-century vigilantism, including
consideration of the theoretical relationship between vigilantism
and voluntarism in a changing society. Battles over lawlessness and
legal order were also battles over modernity, the shape of modern
American citizenship in particular.
Even historians sympathetic
to the Texas Rangers acknowledge that at least five thousand people
died in episodes of racial violence along the border. But the
targets of vigilantism were not only victims: they also used the
concept of lawlessness as a tool against the Rangers. The second
half of the paper draws from their testimony, collected in 1919 by
the Canales Committee, a special investigative effort undertaken by
the Texas Legislature in response to border violence. The testimony
suggests that Mexicans and Mexican Americans found ways to navigate
a hostile legal system. The outcome, however, was mixed: although
the Rangers were reorganized in 1919 in the wake of the Canales
Investigation, the political violence that supported the racial
order did not disappear. The paper ends by considering some of the
ambiguities in early twentieth-century efforts to modernize systems
of social control to eliminate vigilantism. As physical violence
was slowly discredited and modern institutions of political
citizenship emerged, new forms of coercion emerged to mark the
boundaries of the racial order.
16. The jury
wielded formidable power in classical Athens. On about one hundred
fifty days a year, juries of ordinary male citizens typically
numbering between two hundred and five hundred rendered judgments in
cases that often concerned members of the political, economic, and
social elite. Litigants offered competing presentations that drew on
moral, social, and political norms as well as legal ones. Athenian
juries voted without deliberation, and without benefit of a judge’s
instructions as to the relevant law. There was no appeal from the
judgment of the people.
How did the Athenians
conceive of the task of legal judgment? What did they regard as the
proper criteria for such judgments? How was the process of judging
shaped by the cultural and political circumstances of classical
Athens? The papers on this panel explore these issues by examining
the process of judgment in the surviving lawcourt speeches and in
tragic theater. Bers argues that in statements of the chorus in
Greek tragedy we can see the poets’ dramatization of mental
processes--emotional and rational--in the work of the Athenian
juror. Lanni describes the process of jury decision making in the
surviving lawcourt speeches as an ad hoc calculation of moral desert
that encompassed evidence relevant to sentencing as well as to
guilt. Murnaghan finds in both the lawcourts and tragedy a cultural
constraint that limited the criteria of judgment: the refusal to
acknowledge female sexual desire.
Taken together, these papers
offer new insight into what has recently become a growth field in
classical scholarship: the nature of Athenian law and its relation
to Athenian democracy and society. In particular, the papers seek to
move beyond a narrow focus on the traditional sources for the
Athenian courts to exploit dramatic literature and non-legal
evidence for Athenian cultural norms. We believe that this research
into the relationship between law and society in Athens in the time
of its greatest intellectual and artistic flowering will be of
general interest to legal historians of all periods.
17. Although
forces far surpassing the human agents of the plays are nearly
always predominant in the plotting of Greek tragedy, a large portion
of the text is given over to the presentation of what might loosely
be termed “pleadings.” Through the spoken (less often sung) logos
that largely substitutes for physical enactments on the stage,
characters seek to justify actions already taken or weigh their
choices of prospective action. In the economy of tragic dramaturgy,
much attention is paid to explicit judgment of the mode and content
of these verbal performances. This paper explores not the arguments
themselves, the topic of much existing research, but the implicit
and explicit reactions of the chorus to the task of discerning truth
and evaluating pleadings (dikaia in the language of lawcourt
rhetoric). To a remarkable degree, the choruses are comprised of
slaves, women, and foreigners, those groups rigorously excluded from
the mass juries that are one hallmark of the Athenian courts.
Nevertheless, the poets regularly employed the chorus to dramatize
the competing rationales and emotional states at play in the minds
of jurymen empowered by the radical democracy of the fifth and
fourth centuries BC to make decisions of profound importance to
individuals and the city as a whole.
18. The Athenian
popular courts drew no distinction between evidence relevant to
guilt and evidence relevant to sentencing. Unlike the practice
generally employed in American courts of withholding from the trial
jury information about the likely penalty and arguments regarding
the appropriate sentence, Athenian litigants at trial regularly
discuss potential penalties and make what a modern would regard as
sentencing arguments-from comments about the defendant’s character
and prior record to appeals for mercy and discussion of the
disastrous financial consequences a conviction would have on the
defendant’s innocent family. The trial verdict thus encompassed much
more than a decision as to factual guilt, though the penalty was
formally determined by statute or through an additional sentencing
hearing in which the jury chose between the penalties suggested by
each litigant.
This paper examines the
effects of this broad notion of relevance on the nature of Athenian
justice. Defendants who used sentencing arguments at the guilt phase
had to adapt their arguments to maintain a coherent presentation
without conceding factual guilt. Athenian jurors were constantly
made aware of the violence inherent in their judicial decisions. The
breadth of argument during popular court trials led to largely ad
hoc, individualized judgments of moral desert. I argue that this
unusual approach reflects not only a normative belief in the
importance of contextual information in reaching a just decision,
but also a political commitment to insuring wide-ranging jury
discretion in Athens’ direct democracy.
19. In classical
Athens, the lawcourts and the tragic theater offered similar public
contexts for representing and judging transgressive actions. Both
types of performance concerned the dangerous subject of unsanctioned
behavior, and both presented that subject through recognized formal
conventions, evoking criminal actions in an acceptably selective and
indirect way.
This paper explores the
constraints found in both institutions on the presentation of
women’s sexual desire through a comparison of two well-known works
of Athenian literature: “Lysias I,” delivered by a man on trial for
the murder of his wife’s lover; and Euripides’ Hippolytus, in which
the plot is driven by the adulterous desire of its heroine, Phaedra,
for her stepson. In Lysias 1, the speaker presents his story as one
of rivalry between himself and his wife’s lover, reconstructing the
past as a contest between two male actors that anticipates the trial
itself. His wife’s troublesome desire is unacknowledged, and her
behavior is treated as the consequence of her corruption by his
rival. In the Hippolytus, Euripides reflects critically on the
inadmissibility of female desire, depicting it within the play and
exposing it as useless to bring about truth or the just resolution
of conflict. In an episode modeled on a trial, Hippolytus, falsely
charged with raping Phaedra, is prevented by an oath from mentioning
her desire for him; as a consequence, he is punished with death at
the hands of his father, Phaedra’s husband Theseus.
20. The legal
history of North America is interwoven with the relations between
the Aboriginal peoples and the European colonizers. From the time
the British and French first established settlements, disputes over
sovereignty and land have troubled these relations. This continues
to be so today, in both Canada and the United States. In Canada,
however, the courts have only recently begun to grapple with these
issues. The catalyst for much of this litigation has been the
Constitution Act, 1982, which recognized and affirmed the existing
Aboriginal and treaty rights of the Aboriginal peoples. As these
rights are based on their historical occupation of Canada and the
agreements they entered into with non-Aboriginal governments, the
legal significance of that occupation and those agreements is a
matter of vital, present-day concern.
The three papers that make
up this panel all focus on the matter of sovereignty or
self-government (as it is commonly known in domestic Canadian law).
A unifying theme in the papers is the Aboriginal peoples’ struggle
to maintain their autonomy in their relations with non-Aboriginal
governments, despite the obstacles they have encountered in doing
so.
Darlene Johnston looks at
the relations between her Algonquian ancestors and the French in the
17th century for evidence of Algonquian totemic identity and
governance structures that can be utilized to prove a right of
self-government. Her work reveals how the legal traditions of
Aboriginal communities can be accessed through colonial archives and
missionary linguistic materials to support current assertions of
this right.
Kent McNeil deals with
federal legislative intrusion into Aboriginal governance by the 1876
Indian Act and the imposition of the band council system of
government, which has remained in place ever since. He argues that
the constitutional recognition of Aboriginal and treaty rights in
1982 includes a right of self-government that takes precedence over
the legislated band council system. As a result, Aboriginal nations
that have been subjected to that system have the constitutional
means to replace it with their own forms of government.
Michael Posluns also deals
with self-government, this time from the vantage point of federal
policy. He shows that, while the thrust of that policy since
Confederation in 1867 has been to undermine Aboriginal
self-government, Parliamentary committees have generally taken a
more supportive position. This support, Posluns contends, has had a
positive influence on the development of the law in relation to
Aboriginal rights, in particular the right of self-government.
The three papers, while
dealing with the relations between the Aboriginal peoples and
non-Aboriginal governments in different historical contexts, are
thus brought together by the common theme of self-government.
Moreover, they all relate to and derive their current significance
from the constitutional recognition of Aboriginal and treaty rights
in 1982. It is that event that has enabled Aboriginal peoples in
Canada to assert that they have a constitutional right of
self-government in face of the continuing reluctance of the Canadian
government to take the matter seriously.
21. In defining
aboriginal rights under Section 35(1) of the Constitution Act, 1982,
the Supreme Court of Canada has insisted that aboriginal claimants
demonstrate continuity with “pre-contact” peoples and practices.
The Supreme Court has yet to decide whether s.35 protection extends
to the right of self-government. It is clear, however, that any
self-governing institutions for which constitutional protection is
sought will have to satisfy the “integral to the distinctive culture
of the claiming community prior to contact with European societies
test” articulated by the Supreme Court in its 1996 decision, R. v.
Van der Peet. For societies whose traditions were transmitted
orally and using non-alphabetic writing systems, the burden of
proving which aspects of governance were distinctively aboriginal
and integral prior to contact poses serious methodological
challenges.
As a
legally-trained aboriginal historian, I consider the 17th century
Algonquian-French dictionaries as truly primary sources for
reconstructing my ancestors’ worldview. Embedded in the earliest
recorded grammars and lexicons are the traditions, institutions,
practices and self-understandings of their world. This paper will
to demonstrate the extent to which language and oral tradition, as
recorded in colonial archives and missionary linguistics materials,
can be utilized to produce a full-bodied, internally-consistent and
coherent account of Algonquian totemic identity and governance
structures.
22. Canada’s 1867
Constitution assigned legislative authority over “Indians, and Lands
reserved for the Indians”, to the federal government. Parliament
exercised this authority in 1876 by enacting the Indian Act. This
Act imposed a band council system of government on First Nations.
Although traditional forms of Aboriginal government were not
abolished, there can be little doubt that the capacity of Aboriginal
governments was impaired and the inherent right of self-government
of at least some First Nations was infringed. Prior to 1982, the
authority of Parliament to do this was not questioned by Canadian
courts.
In 1982, the Canadian
Charter of Rights and Freedoms and an amending formula were added to
the Constitution. In addition, for the first time the Aboriginal
and treaty rights of the Aboriginal peoples of Canada were
constitutionally recognized and affirmed. From then on, the federal
government has had to justify any infringement of those rights by
proof of a valid legislative objective and respect for its fiduciary
obligations to the Aboriginal peoples.
This paper will show how the
Indian Act has infringed the inherent right of self-government of
Aboriginal peoples in Canada. It will then assess the impact of
constitutional recognition and affirmation of Aboriginal and treaty
rights in 1982. It will conclude that, since 1982, First Nations
who are able to establish their inherent right of self-government
can challenge the imposition of the Act’s band council provisions on
them because those provisions unjustifiably infringe that right.
23. From an
indigenous perspective, Canadian Government-First Nations
relationship has been characterized by a struggle to re-build and
gain Canadian recognition for the institutions of First Nations
government. This same viewpoint holds that a central goal of
government policy since Confederation has been to undermine
autonomy. One major instrument of this undermining has been a
longstanding policy of denying the very existence of First Nations
governmental institutions, including the institutions of law as well
as those of policy-making and administration.
This history can be traced
in the twentieth century through the proceedings of a series of
parliamentary committee proceedings. Beginning with the Joint
Committee on Indian Affairs established of 1947, committee
proceedings also become a source for the struggle for recognition.
From 1970 to1985 the Commons
Committee on Indian Affairs and periodic subcommittees became a
significant ally of the emerging Indian First Nations political
organizations. At the same time that the Supreme Court began to
lend credibility to Aboriginal rights, Commons Committee hearings
became a venue in which First Nations aspirations were articulated
in public.
The alliance between First
Nations leaders and parliamentarians resulted in the Committee
becoming a site for the continuing struggle between the legislative
and executive branches. This paper will review the history of these
committees and consider their influence on the course of Indian
policy and Indian law in Canada.
24. This panel
examines the crucial role of the philosophy of localism in 20th
century American history. The belief that small communities are
best equipped to solve societal problems and that centralized
control is both inefficient and immoral has been a long-held belief
among many American policy-makers. The philosophy of localism has
continued to carry great weight despite the dramatic increase in
population in America and the growing complexity of American
society. The papers in this panel assess the role of localist
philosophy in two periods of American history, the inter-war years,
and the 1960s and 1970s. Panelists Richard Schragger and Wendell
Pritchett have both devoted great attention to the role of localist
philosophy in shaping American law and society. Schragger’s
article, The Limits of Localism, 100 Mich. L. Rev. 371 (2001),
carefully examines the problems inherent in the philosophy.
Commentors Dirk Hartog and David Barron have also written
extensively on the philosophy of localism. Hartog’s Public Property
and Private Power: The Corporation of the City of New York in
American Law, 1730 to 1870 (1983), is required reading for all
students of legal history and local government. David Barron’s A
Localist Critique of the New Federalism, 51 Duke L. J. 377 (2001)
presents a detailed analysis of the contradictions in localist
philosophy. The participants in this panel hope to continue what
has become a vibrant debate in this very important area of the law
by examining the history of localism in America.
25. The federal
government’s role in urban policy increased dramatically during the
1940s and 50s, encompassing everything from the financing of poor
and middle-class housing to the creation of a national
transportation network. Despite the fact that they continued to
demand “local control,” states and municipalities increasingly
lobbied for federal support for urban infrastructure and services.
This paper will trace the political and legal debates over the
expanding federal role in urban policy during the 1960s and 1970s,
focusing on the debates over the creation of the Department of
Housing and Urban Development in the 1960s and the President Nixon’s
“New Federalism” initiatives in the early 1970s. In both of these
cases, policy makers debated the correct relationship between
federal, state and local governments in crafting urban policy.
Courts in these years also struggled with questions of federalism,
oscillating between respect for local prerogatives and requirements
that local government meet national standards. Through an
examination of the legal and political debates over urban policy,
this paper will illuminate the broader tensions facing the
philosophy of federalism in modern America.
26. The 1920’s
and 1930’s witnessed a flurry of legislative, political, and social
activity addressing the threat large retail chain stores posed to
the survival of small, local businesses and the small, local
businessman. The anti-chain store movement, which was precipitated
by the explosive growth of chain store retailers in the United
States during this period, emerged as a leading cause of progressive
reformers-including Louis Brandeis-and then just as quickly faded
away. This paper will place the anti-chain store movement in the
context of the political economy of local government. On this
account, local governments themselves were sites for the rapid
societal shifts that are sometimes attributed to more nationalizing
trends. The paper will trace the history of the chain store
movement, and the legal reforms involved, through the lens of the
rhetoric of localism that permeated the debate. It will then
connect this history to contemporary movements that assert local
commercial prerogatives in the face of nationalizing or globalizing
corporate forces.
27. This panel
offers two papers looking at legal efforts to combat racial
violence. William Carrigan examines state and local efforts to
prosecute lynchers in Texas. Carrigan points out that most scholars
interested in opposition to lynching have focused on national
movements to change local public opinion. Carrigan’s paper will look
at how state judges, attorneys, and activists used the legal system
to end violence in central Texas after 1896.
Christopher Waldrep uses
newly released Justice Department records to understand how and why
the federal government used Reconstruction-era Enforcement Acts to
combat lynching after 1939. Waldrep argues that Justice Department
lawyers manipulated precedent, especially the state action doctrine,
to negotiate new meanings for old precedents. His paper will use
internal documents to explore why they did that.
These two papers will engage
the most current debates over constitutionalism and civil rights.
How did understandings of law and precedent limit or encourage
institutional responses to racial violence? To what extent did
global concerns drive lawyers toward new meanings for old laws? Did
African-Americans’ understanding of law and precedent influence the
institutional opposition to mob law?
28. This paper
will examine how judges, attorneys, and activists used the legal
system to combat lynching and racial discrimination in
turn-of-the-century central Texas. In 1896, the courts indicted
members of a white mob that executed an African American farm
worker. Local attorneys also protested against the all-white juries
of central Texas and forced the courts to include blacks as jurors.
A black man served on the jury that debated the fate of Will King,
an African American who was threatened with lynching for killing a
white police officer. The impact of these legal actions was
significant. Between 1897 and 1905, there is no evidence of an act
of mob violence in central Texas. In the previous thirty years,
mobs had executed over 60 individuals in the region.
In challenging the region’s
culture of violence, central Texas reformers were encouraged by
actions of the Texas Legislature which passed an anti-lynching law
in 1897. White public opinion did not support this law, and it was
not revised after being ruled unconstitutional by the Texas State
Supreme Court in 1899. The effort to reform the central Texas legal
system also collapsed when vigilantes executed a black man named
Sank Majors. They lynched Majors only after his attorneys indicated
that they were going to appeal his conviction for murder.
Historians have written much
about the fight against lynching. Most, however, have focused on
national movements such as the one led by the National Association
for the Advancement of Colored People and the Association of
Southern Women for the Prevention of Lynching. These movements are
better studied and remembered not because they achieved their
immediate goals - such as the passage of a national anti-lynching
bill - but because they helped turn the tide of public opinion
against lynching. Yet, it is possible to argue that local and state
movements were at least as important in opposing lynching. This
paper focuses on a short period of surprising conflict over mob
violence in Texas, one of the nation’s most lynch-prone states. The
paper relies principally upon local newspapers and court records
from McLennan County, especially the case files for State of
Texas vs. Will King and State of Texas vs. Sank Majors.
29. My paper will
be based on Department of Justice (DOJ) case files now being
transferred to the National Archives. These files contain
unexpurgated FBI files, as well as the internal communication among
DOJ lawyers. Journalists and some scholars have begun to use these
files, but mostly in a piecemeal fashion, to gain insights into
particular cases. (See, most recently, Laura Wexler, Fire in a
Canebrake: The Last Mass Lynching in America [NY, 2003].) My goal
is to construct an overview of Justice Department efforts to
prosecute lynchers. Until these materials are integrated into our
understanding of the civil rights movement, its true history cannot
be told.
My paper will use these
newly opened files to examine the Justice Department’s evolving
understanding of the Reconstruction-era Enforcement Acts and the
Cruikshank v. United States, 92 U.S. 542 (1876), and United States
v. Harris, 106 U.S. 629 (1883), precedents. In these old cases, the
Supreme Court held that Congress could protect certain rights only
from state action, not the misconduct of individuals. The meaning
of state action remained controversial: could a law enforcement
officer violating state law be said to have committed a state
action? For decades the Justice Department insisted that the state
action doctrine articulated in these cases prevented it from
prosecuting lynchers. Department lawyers developed a form letter
they routinely used to fend off an increasingly agitated public
demanding action against mob law.
Abruptly, in 1939, the department
decided that the Enforcement Acts could be used to prosecute
lynchers after all. My essay will trace the department’s use of
the law to legitimize its change in attitude.
30. The three
papers assembled for this panel explore the intersections of three
critical and interrelated phenomena in early American law: regional
variations in legal cultures, patterns of commercial regulation, and
the growing intensity of imperial supervision. Each of these is
both a subject in its own right and a context for the other two.
Different systems of trade and credit fostered diverse legal
cultures in the principal colonial regions. Imperial oversight by
the Privy Council allowed some forms of regional variation, while
precluding others. These dissimilar regional legal cultures in turn
complicated trans-Atlantic commercial ventures and imperial
governance. Local diversity added another layer of cost and
complexity to economic and governmental systems stretching across
the Atlantic and bedeviled by slow and fallible communications.
This panel will assess the
strengths and weaknesses of existing scholarship on our three
subjects considered individually (regional variation in legal
culture, law and commerce, and imperial governance). And it will
explore what can be learned about each one when considered, in a
sustained fashion, in the light of the other two.
31. The “English”
origins of American law are a given - a conventional description
more often invoked than examined. It is emblematic of Early
American law in that it posits a quality alien to our present legal
system, one away from which American law moved decisively and
sharply in the years after 1776. The result, regrettably, is that
Early American law seems to have little explanatory presence in the
history of American law more broadly. It is usually only after 1776
- and certainly after 1789 - that the history of American law seems
to have interpretive authority, both in the courtroom and the
classroom.
This insulation is not only
incorrect historically but is also harmful to a proper understanding
of one of the most powerful agents of historical change in American
law, a force operating today no less than it did hundreds of years
ago. That force is regionalism - the regional variations of
cultural impulses and external conditions that have produced
fifty-one separate legal systems on the state level, a dozen
different bodies of law among the federal circuits, and sometimes
fierce conflict between national and state law.
Such variation is endemic in
a system based on the common law, a protean system of unwritten law
shaped by circumstance, custom, and judicial interpretation.
Colonial law, according to one active in its practice in the early
eighteenth century, was “a strange sort of Proteus capable of
putting on all shapes and figures as occasion requires.” From
England, an exasperated official noted “that throughout the whole
continent of North America, there are not two colonies, where the
courts of justice or the methods of proceedings are alike….” Many
factors operated to make this so. It is the purpose of this chapter
to identify and explain those specific factors, and to generate a
more general theory of legal variation.
That theory of legal
variation must include the question of colonial divergence from the
common law, but must not begin with it. Despite our legacy of the
“common law,” the term is misleading: at the beginning of the
seventeenth century Sir Edward Coke could list more than one hundred
different courts in the realm, ranging from merchants’ courts to
ecclesiastical courts to equity courts to manorial courts. Even the
common law acknowledged local variation within the realm, and the
reach of the central common law courts from Westminster varied
according to local forces and practices.
This paper does not deny the
conventional truism that regional legal variation reflected regional
economic and social variation. But it does seek to move beyond it
and argue that colonial law and practice must not be viewed merely
as simplification under pressure, or as crude and inexpert attempts
at mimicry. The great variety of English law and institutions -
common law, equity, civilian, ecclesiastical, and manorial, to name
but a few -- provided an extensive range of remedies and modes of
relief that suited the needs of colonization, and colonial legal
records reveal a careful and selective appropriation and adaptation
from English models. These practices were not “borrowings” because
they were not seen as temporary or ephemeral. Rather, the colonists
regarded them as their own legacy, to which they were entitled by
the constitution of Britain. This conception of legal legacy,
however, did not always meet with acceptance in England, and any
examination of colonial divergence from English law must examine,
too, the interaction of colonial law and imperial legal oversight,
especially as exercised by the Privy Council. That supervision
forms another dimension of this paper, as the Privy Council
selectively tolerated some divergence while rejecting other efforts.
32. Legal
scholarship on international commerce in British America has
primarily emphasized the mercantilist features of British regulation
and, in particular, the tensions created by the enforcement of the
Navigation Acts and Stamp Act in the years immediately preceding the
Revolutionary War. Claire Priest’s paper examines the relationship
of law and commerce in the colonial and early American periods from
a different perspective by emphasizing three principal issues.
First, the paper establishes a framework for thinking about colonial
economic development as a direct consequence of the transplantation
of formal and informal legal institutions. Both financial
investment in the colonies and immigration to the colonies were
entirely dependent upon law. Indeed, most immigrants to the
colonies arrived already tightly bound by some form of legal
obligation (many as debtors: 50% to 66% of white males immigrating
to the colonies between 1630 and 1776 came voluntarily under
indentured servitude contracts). These debt obligations presupposed
the existence of institutions that would enforce them. The
development of commerce and the development of legal institutions
therefore were intimately connected. Second, the paper examines the
structure of trade and credit in four principal colonial regions-the
Northeast, the Chesapeake, the lower South, and the Caribbean-and
emphasizes the ways in which courts and legislatures promoted (or
hindered) commerce through debt enforcement and currency
regulation. Third, the paper examines the enforcement of the
Navigation Acts through the lens of inter-colony taxation and
discrimination, which the Framers of the United States Constitution
viewed as the central problem to be remedied by the Commerce
Clause. More generally, the paper examines the ways in which the
founding generation restructured commercial law after successfully
freeing the economy from former imperial controls.
33. In what ways
did the forms and practices of communications in the seventeenth-
and eighteenth-century Anglo-American world affect imperial
governance in America? Both the “imperial school” of early American
history and legal historians attentive to anglicization share a
common perspective. They treat slow and fallible communications
across the Atlantic as an impediment to effective oversight by the
English government of the seventeenth-century colonial legal
systems. Poor communications encouraged the autonomy and power of
local legal elites at the expense of their nominal superiors.
Operating largely beyond the effective supervision of the royal
court and common law machinery, colonists set up legal systems that
were hostile to technicalities, broadly participatory, reliant on
custom and colonial statutes over common law rules and Parliamentary
Acts, and responsive to local as against imperial concerns.
In different ways, the
historiography on imperial governance and on anglicization explains
movement away from this initial seventeenth-century starting point.
Though they did not explicitly put it in these terms, the imperial
school identified ways that the English government found of
overcoming obstacles of communication. First, by establishing
colonial vice-admiralty courts, sending over resident customs
inspectors, and appointing learned lawyers as chief justices of
colonial appellate tribunals, the government projected effective
authority across distance. Second, the welter of boards and
commissions that imperial historians so carefully reconstructed
acted as repositories and clearinghouses of information about
colonial legal affairs. Third, English imperial institutions
employed coercion and incentives to collect information.
The literature on
eighteenth-century anglicization also presupposes a variety of new
developments in communications practices. First, to the extent that
the movement of people is a form of (or precondition for)
communication, deeper knowledge of the common law followed the new
sorts of folks increasingly coming to eighteenth-century America:
lawyers immigrating from England, judges on assignment to the
colonial benches, and legally-literate Governors, commissioners, and
customs inspectors. Importation and reprinting of English legal
literature was a second critical factor. In addition, the
eighteenth century saw a more rapid and extensive circulation of
popular works that connected English law to colonial concerns:
pamphlets on piracy; execution sermons; religious texts on the
obligations of conscience; and controversial pamphlets. A
reorganized imperial postal service and indigenous colonial
newspapers helped disseminated these materials, aided by a faster
and less seasonal trade network. This variety of changes in
communications practices helped close the intellectual distance that
had insulated the localism and variegation of the
seventeenth-century colonial legal systems.
The ambition of the first
part of my paper is not to tell again the stories of anglicization
and the growth of imperial oversight-that has been done often and
well. Rather, I want to bring out the importance of communications
practices, a matter of making manifest what has been latent, or
moving developments from the background to the foreground. The
second part of the paper will take a different approach. It will
move away from thinking about communications as an impediment slowly
mitigated. It will ask whether new vantage points on the problem of
communications in early American can enrich and revise received
historiography on imperial governance. Here are two tentative
suggestions:
(1) Nodal Points and
Brokers: Several recent studies of colonial politics and
intellectual life have tried to reconstruct the brokers or nodal
points for communications. To the extent that historians of
imperial governance have done this work, their approach parallels
that of the English historian G. R. Elton, who searched for “points
of contact” between the governing center and a series of
peripheries. While this is a valuable approach, one could also
investigate how the peculiarities of disseminating information about
law in colonial America created challenges and opportunities for
imperial governance. The pathways of information exchange between
London and a provincial English city were denser, faster, more
variegated, harder to predict, and harder to control than the
pathways between London and an American colony. In comparison to an
English city, relatively few officials and gentry acted as nodal
points for information exchange. The relative paucity of brokers of
trans-Atlantic legal information had several important effects: it
increased the political and cultural importance of brokers; it
raised the temptation of brokers to warp or suppress unpalatable
information; and it made it possible for groups to feign ignorance
of metropolitan developments as a legal and political strategy.
Different processes of information exchange contributed to different
legal cultures.
(2) Communications Channel
Lawmaking and Disputing: Different forms of making law and resolving
disputes do not communicate in the same way. Colonists sometimes
chose institutions to make rules or end disputes in the hope of
shielding their doings from imperial authorities, or else gaining
London’s attention. Private arbitration, for example, informed
smaller, more discrete audiences of the outcome of disputes than did
adjudication in open court. Making rules through legislation
invited the risk of imperial review and disallowance of statutes.
By contrast, “finding” rules in judicial practice and local custom
exposed colonists to a smaller risk of imperial reversal. Few
colonial judicial decisions were appealed to the Privy Council,
while most eighteenth-century colonial statutes faced imperial
scrutiny. Colonists were aware of these differences and planned
accordingly. John Winthrop, for example, wished to have marriages
conducted by magistrates, not ministers. But he counseled against
passing a law to this end. Instead, he advised New Englanders to
allow the practice to arise by custom, thereby drawing no attention
from the Crown or bishops.
Decisions about whether to
shield or advertise legal affairs are but one way in which concerns
about communication channeled lawmaking and disputing. Colonists
and imperial administrators selected strategies aimed at (a)
communicating knowledge about law to specific target audiences, or
(b) disseminating knowledge through trusted conduits, or (c)
presenting knowledge in favorable ways.
34. This paper
examines the legal-historical significance of the “Campden Wonder,”
an English case from the 1660s involving the conviction and
execution of a mother and two sons for the alleged murder of a
Gloucestershire rent collector, William Harrison. Eighteen months
after one of the sons’ confessions secured the family’s demise,
Harrison returned to England, claiming to have been abducted by
highwaymen and sold into slavery in Turkey. This early case of
wrongful conviction figures prominently in the writings of Matthew
Hale and other early commentators on evidentiary safeguards in
murder trials.
35. This paper
discusses the controversies surrounding the scope and subject matter
of cross-examination in the late-Victorian period. Through these
controversies, the Victorian bar managed to expand its power at the
expense of the bench. At the same time, cross-examination came to
be identified as the primary means of ensuring veracity in the
common law trial, as well as the defining professional “art” of the
bar.
36. Professor
Mnookin has been invited to participate on the panel and has
expressed preliminary interest in presenting a paper discussing (1)
the intellectual history of Anglo-American evidence treatises or (2)
a case study of a sensational trial involving disputed issues of
fact.
37. This panel
will analyze how law has functioned as both an agent and a
constitutive element of imperial and colonial projects in different
historical and geographic contexts. Specifically, it will suggest
that the inauguration of a legal system always implies a kind of
“civilizing mission” for the properly constituted legal subjects of
that system: at the foundation of a legal order lies the
establishment of the authentic legal subjects of that order. The
establishment of a modern liberal legal subject is inevitably
accompanied by the projection of residual categories of
subjectivity. In contrast to proper legal subjects who are defined
by their abstract formal equality, the others of modern law tend to
be viewed as deeply constituted by their “culture” which in turn
disqualifies them as law’s subjects.
The papers on this panel
will analyze the construction of different kinds of legal subjects,
and their implicit civilizing missions, in the context of civil
“public” law regulating the economy in colonial India, and its
negotiation with “private” personal law meant to preserve indigenous
culture; international law as a colonizing regime in establishing a
system of Western privileges of extraterritoriality in
nineteenth-century China; and the historic American exclusion of
Chinese immigrants. The papers will argue that in each of the three
exemplary cases the idea, and ideology, of law have served to
produce a non-legal other that is not (fully) assimilable into a
modern liberal regime of law, at least not until it has been
sufficiently tutored in the ways of legal civilization. First, in
the case colonial India, a novel legal regime standardizing free
market practice posited a distinction between an official,
contractually-organized economy regulated by civil law governing
“the public” and the supposedly illegitimate, sometimes criminal,
customary arena of indigenous kinship-based capitalism, which fell
under “private” Hindu/Muslim personal law regulating religio-cultural
practice. Second, the West’s establishment of semi-colonial
extraterritorial privileges in nineteenth-century China was
justified by the “barbaric” nature of Chinese law, which was deemed
disqualify China from full membership in the “Family of Nations,” or
Euro-American international society consisting of states with
“civilized” legal orders. Third, in a similar fashion the exclusion
of Chinese immigrants in the United States was premised on the
notion that these immigrants’ “culture” made them incapable of
comprehending and properly exercising the rights of American
citizenship. In each of these cases, the establishment of a
properly constituted colonial/international/national legal subject
has served to produce, maintain, and discipline also a logically
necessary supplementary subject of culture which the law
nevertheless views as incommensurable with itself: “natives” to be
governed by an indigenous system of custom in the case of colonial
India, a less-than-sovereign state outside the Family of Nations in
the case of nineteenth-century China, and an unassimilable Chinese
alien in the establishment of criteria for American citizenship.
The main analytic lens of
the panel will be postcolonial theory. More specifically, the
panel’s vision of a postcolonial approach to legal history is that
of moving beyond the positing of cultural difference as a problem
for the law, to a study of the ways in which law constructs a
politics of culture. Other methodological and substantive goals of
the panel include expanding the focus of American legal historians
to issues of “non-Western” law and international law as well as
emphasizing the necessity of comparative analyses in arriving at
general conclusions about legal theory.
38. Studies of
Indian colonial law have emphasized the tensions implicit in the
Anglo-Indian legal regime, one in which a British system of civil
and criminal law was established alongside selectively constructed
Hindu and Muslim “personal laws” that “preserved,” invented, and
regulated indigenous culture.
This paper examines these
tensions in an uncharted space of South Asian legal history, that
is, the standardization of market practice in service of “general
public utility.” As such, it is concerned with the relationship
between law and colonial governmentality, that is, the relationship
between juridico-legal sovereignty, emerging notions of citizenship
and the disciplinary regimes of capitalist development. The broader
project from which this paper draws demonstrates that beginning in
the late 19th century, a barrage of new legislation produced “the
economy” as a cognitive reality, establishing rules for proper
economic practice. Indeed, the institutionalization of “the
economy” as an object of sovereign management produced its
constituency, a “public” of subjects, and in nationalist visions, a
“public” of citizens-to-be.
Yet despite this modernizing
conviction, these new commercial and financial regulations were
rendered specifically inapplicable to indigenous capitalist firms.
These groups, whose kinship-based activities were crucial for the
functioning of the colonial economy, were to be regulated by
personal law governing the “private” realm of family and religio-cultural
practice. Indigenous merchant-capitalists were posited legally not
as economic agents, but subjects of culture. Highlighting the
making of indigenous capitalism as a “problem” for new market
legislation, this paper elaborates the production of a proper legal
subject and member of the “public,” engaged in rational, contractual
operations, alongside the reproduction of a subject of culture,
engaged in illegitimate and irrational economic activities, and
constrained by ancient cultural codes.
39. This paper
analyzes the historic extension of (Western) international law as a
cultural and epistemological project seeking to turn the entire
globe into a juridical formation consisting of nation-states. It
re-interprets the Sino-centric world order that governed much of
East Asia as a kind of “international law”: namely, a system of
hierarchically organized tributary ritual that regulated China’s
relations with the surrounding states. Viewed from this
perspective, China’s nineteenth-century encounter with (Western)
international law becomes visible as a collision between two
different political and symbolic economies: a Western regime of
free trade under international law, on the one hand, and China’s
traditional system of ritual.
The West’s efforts at
inducting China into the “Family of Nations”-while denying it the
full privileges of “sovereignty”-were motivated by China’s refusal
to trade with the West. This refusal led to a war and a series of
“Unequal Treaties,” which provided, among other things, for the
privilege of “extraterritoriality” for Westerners in China, on
grounds that Chinese law was too “barbaric” to govern “civilized”
Europeans and Americans. The United States entered into its
“Unequal Treaty” with China in 1842. Under that treaty, in 1906 the
United States created the U.S. Court for China, an American district
court that operated in Shanghai from 1906 to 1943, with jurisdiction
over American citizens sojourning in the “District of China,” and
under the appellate jurisdiction of the Ninth Judicial Circuit in
San Francisco. The law applied by the court consisted of an
extraordinary mix of general federal legislation, English common law
as it had existed at the time of American independence, and the
municipal code of the District of Columbia, to name only a few of
the court’s sources of law. Its bizarre jurisprudence aside, the
court’s work was justified in part by its putative status as a
“model” for Chinese law reform.
40. This paper
will foreground the relationship of law, culture and governmentality
in examining a specific legal history, that of shifts in the
relationship between citizenship, marriage, race, and property in
the early 20th century United States. The purpose of the project is
not only to discuss this neglected history, but to interrogate the
occlusions that appear in both dominant and oppositional narratives
of history.
By citizenship here, I mean
the formal legal citizenship obtainable in the U.S. through birth or
naturalization, that differentiates the citizen from the alien. The
dominant representation of this citizenship centers the white male
property-owning subject, and fails to consider either the way
marriage intersected with citizenship, or of racial bars to
citizenship. In considering the imposition and lifting of racial
and gender bars, the paper will address the way in which law has
constructed citizenship and culture as oxymoronic so that normative
considerations patrolled the borders of who was considered fit for
membership.
The paper will mine the
relationship between different kinds of citizenship. Specifically,
formal legal citizenship has historically borne a complex and
circular relationship to the rights one enjoys through citizenship,
to the idea of civic republicanism, and to the national imaginary
(who one imagines as a fellow citizen or as an alien). The paper
will examine how in each of these different notions of citizenship
culture constituted a supplement or an antithesis to the purportedly
universal citizen.
41. From the
first colonial settlements, abundant opportunities to acquire land
and other forms of property have been central to America’s identity
as a society of equal opportunity and unprecedented liberty. But
the nature of property ownership and who was “equal” enough to share
in this opportunity were subjects of considerable debate during and
after the Revolution. As Americans negotiated the terms of property
ownership in their republics, the new nation’s courtrooms, assembly
floors, law classrooms, and legal treatises became forums for
frequent discussions about property rights. Each of the papers in
this panel proposal considers an important part of the negotiations
behind defining the United States’ distinctive bodies of property
law.
Ms. Blanck explores how
Revolutionary-era courts reconciled the tension between calls for
liberty and retention of their human property in Massachusetts,
South Carolina, and Virginia freedom suits. Professor Curtis then
considers the critical transition from the feudal language contained
in colonial Virginia’s real property laws to a more republican form
of land distribution by examining early national Virginians’
historical interpretations of land ownership. Professor Pearson
examines legal scholars’ justifications for appropriation of Native
American territory through the legal concept of improvement and
social designs for “civilizing” the American landscape and its
peoples.
The panel chair and
commentator, Gregory Alexander, is a respected expert in the history
of American property law. He is a scholar of American family
property law, and he has conducted comparative research in American
and European theories of property as a fundamental right. His
publications include Commodity & Propriety: Competing Visions of
Property in American Legal Thought 1776-1970. With Professor
Alexander’s breadth of experience in the intellectual and legal
history of property, this panel should provoke a rich discussion.
42. In 1765,
Chief Justice of the Massachusetts Superior Court, Peter Oliver,
presided over the freedom suit, Slew v. Whipple. After defense
lawyer Jerimiah Gridley asserted that the highest law was that which
protected property, John Adams recorded that Oliver retorted, “This
is a Contest between Liberty and Property -- both of great
Consequence, but Liberty of most importance of the two.” Oliver’s
position was one that few men in the late Eighteenth Century would
have taken, because John Locke’s view that liberty rested upon the
ownership of property prevailed.
This tension of liberty and property
stood at the heart of freedom suits. Slaves sued owners for both
holding an illegal form of property and taking away a person’s
liberty illegally. Moreover, these cases highlight moments when the
law of a state or colony could impinge upon the right of an owner to
his or her slave property. Since slave owners controlled many state
and colonial governments, this infringement affected lawmaking.
This contest vexed the American
Revolutionaries constantly as they tried to write law for their new
states and the new nation. Their rhetoric called for liberty, but
their wealth frequently depended upon slave property. This paper
will examine freedom suits and abolition in Revolutionary
Massachusetts, South Carolina, and Virginia in order to understand
this contest more deeply. To varying degrees and in different
ways, all three states respected liberty as an important value, even
liberty as it extended to slaves. But the legislatures of all three
states refused to press the significance of liberty to the point of
ending slavery in their states. The freedom suits that flourished
in Massachusetts and Virginia during this era created a
counter-narrative to the legislative decisions. And, in the end,
the success of these freedom suits depended upon the value placed on
slave property in each state.
43. This paper
examines the historical thought of revolutionary era Virginians
concerning the nature of their land titles. Specifically, it
investigates how the dialectic between feudal and allodial
conceptions of real property informed their legal understanding of
land ownership and facilitated the formation of a republican
commonwealth. It argues that the American Revolution fundamentally
altered the nature of landholding in Virginia. During their struggle
for independence, Virginia’s legislators rejected colonial legal
maxims that posited that all their lands were merely held in tenure
and ultimately belonged to the sovereign. Instead, they established
a republican polity on the basis of an allodial conception of land
ownership. In considering the questions of the origins and nature of
their real property, Virginians sought an answer in their history
rather than through political theory. They accordingly entered into
an existing historical dialogue, which had informed English legal
discourse for the previous two centuries, about the immemorial
nature of the common law and the introduction of feudal land tenures
following the Norman Conquest. By considering the implementation of
feudal tenures on English land laws as an act of usurpation by the
crown Virginians reconciled their allodial vision of landholding
with a historical interpretation of the common law that justified
both their revolution and the establishment of a republican
government.
44. As
participants in the break between England and its colonies,
America’s first legal scholars were determined to communicate the
Revolutionary mission to their pupils and readers. They set a
republican tone in their treatises and lectures with topics such as
the egalitarian nature of landownership and inheritance, in which
they constructed histories about the growth of the American
colonies, the abundance of land, and the ease with which Americans
could gain title to it. At some point in their lectures regarding
the transfer and acquisition of real property, however, legists had
to contend with the presence of the “original lords of the soil,”
Native Americans. This paper examines their moral and common-law
justifications for white settlers’ appropriation of Native American
land in North America.
Early national legal
scholars argued that, in order to maintain a legal claim to real
property, one was obligated to “improve” it by taming, clearing, and
enclosing the land. But this concept of improvement was not simply
a legal argument; it was also part of a plan to “civilize” the
American landscape. Legists asserted that Native Americans could not
be part of this moral landscape because they did not improve their
territory and, therefore, they had no moral or legal claim to the
land. An improved landscape was tantamount to civilizing both the
land and the people who inhabited it, while also justifying the
domination of Native Americans and the appropriation of their lands.
45. My paper
explores the role that history, historical interpretation, and
historians played in Brown v. Board of Education. The timing of the
2003 ASLH annual meeting is particularly appropriate for an
examination of this topic. Exactly fifty years earlier, in the fall
of 1953, the legal teams arguing the school desegregation cases were
putting the final touches on their briefs for reargument. In these
briefs, they responded to the Supreme Court’s request from the
previous spring that they reargue the case focusing on the original
meaning of the Fourteenth Amendment.
The Court’s reargument order
led to a fascinating exercise in historical interpretation and legal
advocacy. The lawyers of the NAACP turned to several leading
historians for help; the lawyers for the states confidently kept
most of the research within their law firms; the lawyers for the
Justice Department, who were filing an amicus brief in the case,
also did their own research (although they came to different
conclusions than the lawyers for the states); and Justice Felix
Frankfurter had his clerk, Alexander Bickel, spend a summer
examining the historical record.
The final result of all this
was, to say the least, anticlimactic. In the Brown opinion, Earl
Warren declared the results of the historical research
“inconclusive.” Yet the impact of the Court’s turn to history was
far from negligible. In addition to spawning a renewal of the
debate in the legal academy regarding the role of history in the
courts, the Court’s reargument order contributed to the rise of a
new generation in the historiography of Reconstruction and the
original meaning of the Fourteenth Amendment. Not only did history
play a role in the outcome of Brown, but the case played a role in
the development of a new tradition of historical interpretation.
46. In May 1961
two buses carrying activists working with the Congress Of Racial
Equality (CORE) left Washington and embarked upon what would become
one of the vital events in the Civil Rights Movement, the Freedom
Rides. Although the rides exploded in the public consciousness with
outbreaks of violence in Birmingham and Montgomery, they were in
fact the culmination of a number of trends in American history.
Legal challenges to Jim Crow on interstate transport and its
facilities dated to the 1800s. A series of court cases throughout
the 20th Century established the right of travelers to be able to
ride, eat, and use other facilities as they saw fit irrespective of
race. In 1947 CORE departed for a trip across the Upper South to
test recent court decisions and to try to establish adherence to
them. That trip, the Journey of Reconciliation, would serve as a
model for the 1961 event that shocked the world. This paper explores
the legal challenges to Jim Crow on interstate transport and the
facilities that various modes of transport used from 1941 to the eve
of the Freedom Rides. The series of court challenges that culminated
in the Freedom Rides is a largely ignored aspect of the legacy of
legal challenges to Jim Crow in the 20th century.
47. With the 50th
anniversary of Brown v. Board of Education approaching, I
propose to develop an unexplored facet of the constitutional history
of desegregation in public education in the 1950s. Higher education
cases at mid-century--in particular, Sweatt v. Painter--led
the NAACP to redirect its strategy away from seeking to secure more
of the “equal” in the old formula “separate but equal” and toward
attacking segregation itself. The strategic shift soon resulted in
a landmark ruling in Brown against segregated schooling, at least at
the elementary and secondary levels. Though recognizing the
connection between Sweatt and Brown, most studies of
the aftermath of Brown pay no further attention to higher
education. Aside from a few instances of drama and violence (at the
universities of Georgia, Mississippi, and Alabama in the early
1960s), historical research on the beginnings of desegregated higher
education remains scant.
Tracing the beginnings of
desegregation in higher education that took place between 1948 and
1964, my paper will emphasize two court cases that went to the
Supreme Court soon after Brown I (1954) and Brown II
(1955). One of those dealt with black access to the University of
Florida Law School; the Court declared that the idea in Brown II
of gradual implementation of Brown I had no application to
graduate professional schools; for such programs, Brown I
sufficed. The other--the core of my paper, Board of Trustees v.
Frasier, 350 U.S. 979 (1956)--will develop the story of a case
(virtually invisible in the literature) regarding the enrollment of
black undergraduates at the University of North Carolina. In
Frasier, a lower federal court decided that the logic of
Brown I applied to public education at the undergraduate level.
And the Supreme Court agreed.
48. What happens
when reality clashes with the law? How does the law deal with legal
problems arising from complicated situations? Was legal status
always clear-cut and unequivocal? This panel deals with these
questions by presenting three case studies from the ancient world.
The first two papers concern
persons who move from the status of slavery to that of freedom, yet
this move itself creates intricate and multifaceted legal
complications and peculiarities. Various ways could lead to slavery:
captivity in war or by pirates, failure to repay debts, and being of
servile parentage. The status of slavery was unvarying: slaves had
no legal personality, no private liberties and no social relations,
and they were put under the total power of other persons. Yet hopes
for freedom and ransom were always present and manumission of slaves
was a common phenomenon in both Greece and Rome. Freedom, however,
was not necessarily the total opposite of slavery. Not only were
there differences in the status of manumitted slaves between Greece
and Rome, but also different degrees of freedom within a given
society. Between the two poles of slavery and freedom there extended
a wide spectrum of varied shades of statuses. In ancient Rome,
manumitted slaves were automatically granted full citizenship,
although they were barred from public offices and their political
power was curtailed. The stigma of servile origin was erased after
several generations, the limitations lifted and the offspring of
slaves became an integral part of society. In the Greek world,
manumitted slaves became non-citizen residents and did not enjoy any
political rights. While in Rome manumission was unequivocal, in
Greece manumitted slaves could be proclaimed free and yet detained
in servile condition. Thus, the legal status of free persons was not
always compatible with their real condition.
In this context, Dr. Rachel
Feig Vishnia examines the legal status of Roman citizens who fell in
enemy hands and were considered slaves while in captivity, upon
their return home, and Dr. Rachel Zelnick -Abramovitz looks into the
problem of the legal status of manumitted slaves remaining in
servile conditions in the Greek world.
The third case study
concerns underage marriages of girl children in the Roman Empire.
Whereas the minimum age for legitimate marriage was fixed at twelve,
families often placed their girl children in a position of
cohabiting with older prospective husbands from reasons concerning
the overall well-being of the family. Discussions of such cases by
Roman jurists reflect the tendency of the jurists to overlook the
illegality of underage marriages and their reluctance to interfere
with the interests of the families. In fact, the rights and
well-being of the girl children were practically ignored. This fact
sheds light upon Roman law's perception of girl children. By
analyzing evidence from legal and other sources Lauren Caldwell
presents the important and intriguing question of the complex
interaction of law and society and the circumstances in which girl
children lived in the Roman Empire.
49. The ancient
sources provide ample information about the numbers of war captives
that were enslaved by the Romans over centuries of warfare and
occupation, but tell us little about the fate of Roman citizens that
were captured by enemy forces.
We draw most of our
information about the position of Roman captives from various legal
sources, whence we learn that Romans who fell into enemy hands, lost
their citizenship and were considered to be slaves while in
captivity. Upon their return, they recovered their full rights
automatically by the virtue of law (ius postliminii).
This peculiar situation
raised multifaceted legal problems concerning the nature of actions
taken during the captive’s absence. Marriage, for example, did not
revive automatically, and the returning captive had to remarry his
wife. Such situations, however, sometimes proved to be problematic
since in many cases the prisoner of war was believed to have died in
captivity and his wife had married someone else. Other problems
touched upon the validity of wills (since the captive was in fact a
slave without any rights), and succession on intestacy.
The discrepancy between the
paucity of information regarding Roman captives in the literary
sources, and the detailed legal clauses and practices concerning the
solution of the acute problems caused by their return, sheds
intriguing light on the nature Roman society and its attitude
towards its own prisoners of war.
50. One of the
commonest modes of manumission in the Greek world, known especially
from the many detailed manumission acts of the oracular center in
Delphi but also widespread in other places, was manumission under
paramone. This was a binding clause in manumission documents,
obliging the slaves to remain (paramenein) with their ex-owners (or
one of their relatives) for a fixed period, usually until their
ex-owners died. Sometimes the benefits of the paramone were
transmitted after the ex-owners’ death, and thus prolonged, to
another member of the ex-owners’ family. Moreover, a punitive clause
is frequently found in paramone-acts, warning the manumitted slaves
to obey their ex-owners and perform any job required of them. The
same manumission documents, however, contained a declaration of the
slaves’ freedom and emphasized their immunity and invulnerability
towards any person, including the ex-owners’ heirs.
The question of the legal
status of slaves manumitted under paramone has been much disputed.
The apparent discrepancy between the declaration of the slaves’
freedom and the continuing exploitation of them as slaves seems
inconceivable to a modern mind. Most attempts to interpret this
situation evaded what I argue to be the only logical conclusion,
supported by evidence from other parts of the Greco-Roman world,
that manumitted slaves under paramone were partly slave and partly
free. Since the ancient Greeks did not distinguish between person
and labor, manumitted slaves under paramone acquired the status of
free persons by the act of manumission, yet the right over their
labor was retained by the paramone-beneficiaries.
51. Modern
studies of Roman marriage are plentiful but largely neglect the
subject of girl children who were placed in the position of
cohabiting with their older prospective husbands. The leading (deductio)
of a girl under age twelve - the minimum age for marriage in Roman
law - into a marriage-like situation was not unknown, however, as
cases from the classical legal corpus illustrate. Although they
clearly state that twelve is the minimum age for females to enter a
legitimate marriage (e.g. D.23.2.4), the jurists, when presented
with cases of underage marriage, fail to remove girls from what we
perceive to be potentially compromising situations. This fact is of
considerable importance for an examination of Roman law’s perception
of children and childhood, which brings to light the larger issue of
the complex interaction of law and society. The jurists’ reluctance
to get directly involved perhaps reflects the fact that child
marriage had a firm basis in Roman society that was difficult for
the law to dislodge.
Cases in which the issue of
age arises concentrate not on age itself but rather on other legal
problems (e.g. D. 24.1.32.27) that crop up when a marriage is not
valid. While the jurists do attempt to explain why a father might
choose to marry his daughter off early, they effectively sidestep
the issue of the illegality or consequences of underage marriage,
merging the issue of the girl’s personal interests with the issue of
the family’s overall well-being. In the case of underage marriage,
indeed, the jurists’ acknowledgment of the interests or rights of
the girl child is almost nonexistent.
Recent scholarship has
examined the phenomenon of young girls’ being represented as mature
women or “little wives” on Roman funerary monuments (Huskinson
1996). Examinations of these artistic portrayals of girls have
raised the issue of exactly how girl children were perceived and
valued by their families. Alongside these valuable analyses should
be placed an investigation of Roman law’s treatment of child
marriage - an issue which to this point has been overlooked in
studies of ancient childhood and only barely addressed in studies of
Roman law. A reexamination of the legal sources, combined with
other evidence, will lead us to a greater understanding of the
circumstances in which girl children lived their lives in the Roman
empire.
52. On both sides
of the Atlantic, in very different legal cultures, litigation
offered opportunities for people to seek redress or assert claims of
right in ways they could do nowhere else. Women and men, in varying
conditions of freedom or bondage, with competing social, economic,
and political needs, acquired social power through the courts. This
panel examines litigation as both the means of settling personal
disputes and as a means by which political and social claims might
be asserted. Patterns of litigation in different venues, changing
rhetorical strategies on the part of litigants and their counsel,
and varying practices used by judges and clerks suggest the
creativity of litigants and the responsiveness of early modern
courts.
The papers proposed below
examine these social and political aspects of litigation through a
close study of the archives of the courts concerned: colonial
Mexican courts, and in England, the Courts of Requests and King’s
Bench. As a group, these papers explore the surprising
possibilities available to humble litigants through law as well as
the consequences of litigation for those on both the winning and the
losing end of disputes. These papers also consider the ideas
available in the wider culture and the practices of other
institutions to place the work of these courts in perspective. The
Court of Requests might have been the “poor man’s court”—and the
poor woman’s too—but its power to offer relief declined as its brand
of equity came under assault. Habeas may have been the writ of
liberty, but it also undermined the authority of church and
conciliar courts—which often gave succor to socially obscure
litigants—as it freed people from jail. The careful study of
proceedings in these courts suggests the complexity of the
consequences of litigation in the early modern world.
53. This paper
explores changing patterns in litigation fought between wives and
husbands in the Court of Requests in the century between 1542 and
the court’s demise in 1642. It identifies and attempts to explain
the significant rise in the number of cases between 1590 and 1610
and the dramatic falling away of cases in subsequent decades. In
doing so it contrasts the broad approach to equity taken by
sixteenth century Masters (in particular Sir Julius Caesar) with the
narrower and more formalized approach Masters adopted in the early
seventeenth century. The court appears to have undergone a process
of professionalization (well in advance of the reforms Nottingham
initiated in Chancery in the 1690s), one that had significant
implications for wives and husbands seeking equitable relief against
their estranged spouses. At the same time that courts of equity were
enlarging the possibilities open to some married women by
recognising and enforcing ever more complex marriage settlements and
trusts creating separate estates, they appear to have been
diminishing the opportunities open to others. Husbands, too, found
it harder to sue their wives, suggesting that judicial attitudes to
coverture were hardening: courts were increasingly willing to allow
“formal” exceptions to coverture, but increasingly unwilling to
allow “informal” exceptions, a trend that arguably narrowed the
classes of married women (and men) able to take advantage of the
benefits offered by equity.
54. Habeas corpus
might better be known as the great writ of jurisdictions than “the
Great Writ of Liberty.” This paper explores the darker implications
of the use of the writ by King’s Bench to put down other
jurisdictions from the 16th to the 18th centuries. Habeas was a
crucial instrument in conflicts between King’s Bench and church
courts and courts of equity. These courts often ordered
imprisonment to enforce performance of their judgments. By ordering
release on habeas, King’s Bench effectively undermined the meaning
of such judgments and thus the authority of such courts themselves.
English legal history traditionally sees the victory of common law
over equity as one of the central elements in law’s march to a
libertarian future. Recent scholarship on church and conciliar
courts suggests that this story needs to be reconsidered: women in
particular used these courts to great effect to pursue their own
interests. An analysis of hundreds of writs of habeas corpus
confirms this picture and insists that the traditional meaning of
common law’s victory must be reconceived. Doing so highlights the
fact that releasing someone imprisoned on the process of another
tribunal damaged the interests in justice and liberty of other
parties. We must confront the question raised by habeas: whose
liberty?
55. This paper
will be a preliminary exploration of amparos—writs of royal
protection—that issued from the General Indian Court in colonial
Mexico. Drawing on a sample of 500 such writs, I will examine those
in which Indians demanded “libertad”—liberty. The circumstances of
these cases varied dramatically, ranging from plaintiffs who decided
they no longer wanted to work for a particular landowner, to those
who sought release from an abusive employer, to those who felt they
were being ill-used by a local Indian cacique. I will pay particular
attention to the procedure, language, and fact sets of these cases
in order to juxtapose them to the broader discourse on “liberty”
found in royal edicts and legal treatises of the time. I will
conclude by considering the extent to which such cases can be
understood as the recognition of a minimal human dignity shared by
Mexico’s lowliest vassals and highest royal officers, a possibility
enabled simultaneously by the principle of universality underlying
Spanish justice, by court-appointed lawyers to the powerless, by a
legal culture that led lawyers to be zealous on behalf of their
clients, and by a sense of entitlement among Indians, wed to the
savvy to make good on it.
56. The purpose
of this paper is twofold. First, it is designed to explore a
forgotten episode of Israeli legal history: a host of cases
litigated in the first decade of the State of Israel in which the
Supreme Court reviewed the actions of state authorities against
persons who in the period’s jargon were called “infiltrators.” The
“infiltrators” were Arab inhabitants of Palestine who after becoming
refugees in 1948 tried to cross the borders back into the
territories that became the State of Israel. Although they composed
a heterogeneous group and were driven by various motives and goals
all such persons were subsumed in the period’s political and public
discourse under the common category of “infiltrators” and labeled as
a security threat. Israeli authorities employed different measures
for dealing with the infiltrators, the chief among which was
deportation. The paper surveys the body of case law on this issue
and finds that the general pattern of the Supreme Court’s policy
consisted in very mild and narrow limitations laid on the actions of
the state authorities. The second purpose of the paper is to develop
some more general insights based on this episode of Israeli legal
history. On one level the case of the “infiltrators” is used to
discuss the character of the early Israeli Supreme Court as a social
institution whose members shared the ideology, concepts and
discourse of other parts of society but also the values and
consciousness of the semi-autonomous group of the legal elite. On a
different level the judicial treatment of the infiltrators sheds
some new light on the general theoretical thought about the
rhetorical and psychological mechanisms employed by judges in
situations of rulings that involve moral dissonance or harsh
practical outcomes.
57. The proposed
paper explores the Israeli history of land expropriation
jurisprudence. During the first three decades of the State of
Israel, the Supreme Court adopted a general policy of judicial
restraint in reviewing decisions to expropriate land. It declined to
set limitations on the State's power to confiscate land and
constituted only weak protection of private property rights. In an
attempt to explain the posture of judicial restraint, the paper
examines the Court's policy against the background of the
Jewish-Arab conflict. It suggests that the ideology of "national
security" which governed the practice of land expropriation in the
Arab sector diffused into the laws and jurisprudence concerning
expropriation in the Jewish sector. At its core the political
ideology of "national security" demanded reallocation of Arab land
to Jewish hands. However, the Court expanded the concept to include
the goals of immigrant absorption and establishment of new Jewish
settlements in highly populated Arab areas. The idea that a Jewish
State can not be constituted without massive Jewish settlements
"justified" also expropriation from Jewish owners who preferred not
to build on their land. The paper thus explores the political
interests that shaped the judicial policy of weak protection to
private property rights and the contribution of the Supreme Court to
the changing meaning of the concept of national security in Israel's
jurisprudence of land expropriation.
58. The proposed
paper examines the Israeli government’s use of law to
institutionalize the dispossession of Palestinian Arabs displaced by
the 1948 war and traces the legal transformation of their land
during the formative years of Israel’s land regime (1948-1960). The
paper adopts a critical and historical legal-geographical approach
to Israel’s administration of Palestinian refugee land from the 1948
war, tracing its legal transformation and integration into Israel’s
“national land” system. This legal transformation facilitated the
expropriation and reallocation of formerly Arab land to primarily
Jewish hands and was therefore a central component of the legal
reordering of space within Israel after 1948. Based on close
examination of Israeli legislation, archival documents, Knesset
proceedings and other sources the paper delineates a 12-year
legislative process consisting of four phases, each concluding with
the enactment of major legislation. The result was the construction
of a new Israeli legal geography. The process culminated in the
integration of the appropriated Arabs lands into the country’s new
system of Jewish-Israeli “national land” known as “Israel Lands.”
Simultaneously, the presentation will examine the interpretation of
these statutes by the Israeli Supreme Court and attempt to assess
the role of the Court in shaping the new Israeli geography.
59. This paper
examines why the joint stock limited liability corporation had
become the dominant form of enterprise in the UK by 1914. The paper
reviews the leading historical and economic explanations for this
development, and finds them wanting in terms of empirical
validation. It then proposes a new explanation, based on the concept
of 'moral shirking' by owners of capital. Two case studies of moral
shirking in action are presented, and the paper then uses this
concept to explain both the timing of the shift to joint stock
limited liability corporate forms, and the failure of this
organisational form to colonise professional occupations such as
law, accountancy and medicine.
60. This panel
will explore the strengths and limitations of biographical method
for legal history. Building on two case studies in U.S. legal
history, the session will raise larger questions about the
relationship between individual lives and historical processes, and
about the importance of particular advocates in campaigns for legal
reform. It will also raise questions of historical method and
narrative strategy: How best can scholars tell the story of legal
change over time? What do we capture, and what do we obscure, when
we choose individuals as windows onto the past?
Before she came to the
bench, Ruth Bader Ginsburg was a professor, legal scholar, and
leading women’s rights advocate under ACLU auspices. As a
litigator, she was best know for the strategic acuity and mastery of
equal protection analysis that emerged in her campaign to persuade
the Court extend to victims of sex-based discrimination the same
equal protection guaranteed to those subjected to race-based
discrimination. When she began in 1970, differential treatment of
women was still assumed to be benign rather than invidious and
justifiable under the rational basis test. Ginsburg’s goal was
strict scrutiny, which she came one vote short of achieving,
settling instead for an intermediate standard. Less well known was
her intent to use equal protection as the doctrinal shield with
which to guarantee abortion rights as well gender-neutral law - a
hope dashed when Struck v. Secretary of Defense (1972) was settled
out of court just prior to oral argument, leaving the field open to
privacy and Roe.
TenBroek, a lawyer and
professor whose career spanned the late 1930s through the 1960s,
founded the National Federation of the Blind, the first national
organization of the blind in the U.S. He wrote widely on
disability, on Japanese internment, and on the “dual system of
family law.” He claimed, for example, that legal standards of
parental responsibility were completely different for welfare
recipients than they were for the rest of the population. Perhaps
most importantly, tenBroek the activist-scholar developed an idea of
discrimination that made the Fourteenth Amendment equally relevant
to African-Americans, the disabled, and the poor.
Although both presenters
take a biographical approach to their subjects, they do so in very
different ways that illuminate a range of issues. Ten Broek is
deceased, freeing his biographer to craft a study revealing the most
significant connections between his personal life, reform activism,
and legal contributions. Ginsburg, who does not want a full
biography written about her at present, is nonetheless the primary
source for the early biographical portion of a study that is part
biography and part history of her career as feminist litigator.
These differences allow us to raise to raise question about sources
and methodology as well as the challenges, advantages, and
limitations of writing about a sitting Justice, who fortunately has
a keen sense of how historians work. More important, the two
studies raise questions about the advantages and limitations of a
biographical approach. What is revealed and obscured about the
larger campaigns for legal change of which the individuals are a
part?
61. My paper will
focus on the ideas about discrimination of the attorney, advocate,
and scholar Jacobus tenBroek. I will treat his multiple uses of
this idea as a window onto liberal law reform in the
mid-twentieth-century U.S.
TenBroek wrote about
discrimination, and about the equal protection clause of the
Fourteenth Amendment, most directly in The Abolitionist Origins of
the Fourteenth Amendment (1951). However, he began theorizing
discrimination long before the 1950s. As a leader of the National
Federation of the Blind, tenBroek was one of the earliest students
in the U.S. of the relationship between physically disabled citizens
and their government. Immediately following World War Two, he wrote
about Japanese-Americans in a similar vein - as what the Supreme
Court majority, in Carolene Products (1938), termed a “discrete and
insular minority” deserving Constitutional protection. In the
1960s, he pushed the idea of discrimination further, claiming that
poor people were another “discrete and insular” class that might be
reached by the equal protection clause of the Fourteenth Amendment.
I will consider tenBroek’s
own blindness, and his organizing work among the blind, as origin
points of his understanding of discrimination. I will also consider
the limitations of such an approach, and will explore other
contemporaneous influences on tenBroek’s thinking.
62. The task of
sorting out the “relation between law and public opinion” has long
perplexed legal and political theorists (be they James Madison,
Alexis de Tocqueville, Albert Dicey, or Juergen Habermas). The
American revolutionary promise of “a government of laws, not men”
presumed that law could simultaneously represent and transcend
public opinion. Experience soon proved otherwise. This panel will
examine the troubled and contested relation between law and public
opinion in three different contexts: northern, southern, and
national. From murder trials and riots in Philadelphia, to divorce
and miscegenation disputes in North Carolina, to duels and
anti-dueling laws in Congress, individual papers explore the
recurring tensions between ostensibly formal legal principles and
procedures, popular conceptions of justice and right, and elite
sentiments of honor and responsibility. In doing so, we aim to
complicate some common assumptions regarding the political and legal
cultures of the antebellum north and south.
63. On February
24, 1838 Congressman William Graves of Kentucky fatally shot
Congressman Jonathan Cilley of Maine in a duel. Curiously, the
encounter did not arise from a direct point of honor between the two
men. The “Cilley affair” was instead the culmination of a long,
complex, frequently misdirected, and occasionally absurd series of
perceived slights, veiled insults, partisan animosities, personal
dislikes, confounded masculinities, and romantic rivalries involving
such notables as Henry Wise, James Watson Webb, Henry Clay,
Nathaniel Hawthorne, and John L. O’Sullivan. So overdetermined were
the causes of the duel that Graves could proclaim himself a victim.
He blamed “public opinion,” the “paramount law of the land” for
driving him onto the field of honor, asserting that the “blood by
which my unfortunate hands have been stained” ultimately rested
“upon the heads of this nation and the doors of this House.”
Though duelists often
invoked “public opinion” as an alibi, few Congressmen had done so,
and none had named Congress itself as an unindicted co-conspirator.
Unlike most antebellum duels, the Cilley affair was a truly national
controversy that provoked a fresh round of public and legislative
debates over dueling. My paper shows how these debates transformed
diverse yet tacit assumptions about the relation between law, public
opinion, and honor into explicit, politicized, and ultimately
sectionalized ideologies. In doing so, it highlights a larger
theoretical problem: the different dynamics by which law and public
opinion assign blame.
64. In February
1843, Singleton A. Mercer, of Philadelphia, shot and killed Mahlon
Hutchinson Heberton, also of Philadelphia, on the
Philadelphia-Camden ferry. Mercer’s motive was straightforward, five
days earlier Heberton had lured Mercer’s sixteen-year-old sister
into a brothel and raped her. Six weeks after the crime, following a
four day trial, a jury in New Jersey took less than an hour to
return a verdict declaring Mercer not guilty. When word of the
verdict reached Southwark, the district in Philadelphia where the
Mercer family made their home, neighbors rushed to the streets to
shoot off guns in celebration. The next day, a crowd numbering in
the hundreds met the Philadelphia-Camden ferry as it pulled into the
Walnut Street dock, and cheered as Mercer’s father and lawyers
disembarked from the boat (Mercer had been sent home by another
route).
Writing
about the event a few weeks before trial, the Philadelphia Public
Ledger declared that the entire affair, from murder to popular
reaction to it, revealed much that was disturbing about the view
Philadelphians had of justice. An editorial it wrote after the
verdict echoed those sentiments, though with considerably less
condemnation. In this paper, I take the Public Ledger at its word,
and unpack the Heberton Murder (also known as “the Philadelphia
Tragedy”) in order to revise our understanding of popular attitudes
towards law and extralegal justice in Philadelphia and the
antebellum urban north more generally. In the process, I hope to
suggest that the legal culture of the antebellum north had more in
common with that of the antebellum south than our studies have
previously credited.
65. In 1832, two
newlywed white husbands filed divorce petitions on the grounds that
their respective white wives had just given birth to "mulatto"
babies. Although the petitions were nearly identical, Justice
Thomas Ruffin and the North Carolina Supreme Court denied one and
granted the other.
Our paper uses these events
to explore the interaction between public opinion and formal law
during a democratizing age. We begin by examining the respective
views of North Carolina "yeomen" (such as our petitioners) and
"planters" (such as our judges), regarding marriage and race. We
find that yeomen were relatively unconcerned with the sanctity of
marriage, but deeply concerned with the preservation of racial
distinctions. Elite planters, in contrast, were comparatively
unconcerned with "race mixing" (to which they, as slave owners,
contributed), but deeply concerned with formal marital sanctity.
True to his elite heritage,
Justice Ruffin, in a pro-marriage ruling strikingly reminiscent of
his famous pro-slavery ruling in State v. Mann (1829),
rejected the first divorce petition. Ruffin realized, however, that
his denial of a "mulatto baby" divorce might outrage yeomen
democratizers who, at that very moment, proposed curtailing the
court's power. Ruffin deftly defused this situation by feigning an
about-face. With an exaggerated bow to public opinion, he granted
the second divorce, though in a way that signaled future courts to
ignore his reversal and abide by his original, pro-marriage
reasoning. (Future courts would do just that.) By appearing to
bend the formal law to the public will, Ruffin preempted popular
outrage and inoculated his Court against democratic reform. He used
democratic language to preserve elite power.
66. This paper
would explore a small group of trials for criminal libel
(defamatory, blasphemous, or obscene) that occurred in the period
1830-60 in the state courts of the eastern seaboard. I will show how
the law pertaining to blasphemy, obscenity, and defamation was
mobilized by judges, lawyers, and defendants in these cases. The law
in these areas was heavily dependent on the common law but bore a
certain statutory overlay. This group of trials raised questions
about the nature and origin of the common law in these jurisdictions
and the appropriateness of drawing on it to address harms to society
that could be committed through speaking, writing or printing. The
facts of the cases raised questions about the public’s right to, or
interest in, stability, religious conformity, and morality. At
times, lawyers and defendants made defences based on rights to
freedom of expression, the press and religion, but judges seldom
picked up on these. It may be that the flipside of understanding
these crimes is understanding how these rights were understood and
claimed - or not claimed - in and out of courtrooms at this time,
against the specific social context of each case during this
antebellum period. This paper, then, will unpack these issues.
67. This paper
forms part of a larger project on the legal history of American
efforts to locate the boundary between the foreign and the domestic.
I here examine the history of the legal status of one category of
territory occupying a contested and ambiguous position with respect
to the United States: guano islands.
Guano islands became the
unlikely prize in a mid-nineteenth-century international scramble
for territory after the value of guano as fertilizer gained
widespread recognition in the 1840s. The Guano Islands Act of 1856
empowered the United States to take possession of guano islands
discovered and occupied by American citizens. But other nations
asserted their own claims to these islands, and even after the Act
the United States remained embroiled in international disputes over
the legal status of these tiny specks of land.
The Act set forth conditions
conferring discretion upon the Executive to declare that a guano
island "appertained" to the United States. This legislation sought
to address a straightforward problem (demand for guano among
American farmers had outstripped supply and prices had skyrocketed)
with a straightforward solution (the United States would provide
protection for American citizens on guano islands for the sole
purpose of mining guano and selling it to other American citizens).
Yet, as a State Department report analyzing sovereignty over guano
islands put it decades later, "no one knew what the guano act really
did mean." One source of this confusion was doubtless what the
analysis called the drafters' "deft" use of the word "appertain,"
which (the report noted) "carries no precise meaning." Another was
the subsequent recognition that guano islands had value other than
as a source of guano, and the resulting efforts to read rights of
permanent sovereignty into a text that seemed to authorize only
temporary control.
This paper spans the time
period from the passage of the Guano Islands Act in 1856 to a
decision of the U.S. Supreme Court in 1890 examining the status of
Navassa, a Caribbean island claimed by the United States (a claim
contested by Haiti). The case, Jones v. United States, involved a
challenge to the jurisdiction of a federal court in Maryland in the
trial of a group of black workers who had rioted against inhumane
working conditions on Navassa and killed several of their white
bosses. The Jones case affirmed the convictions, confirming that
Navassa "appertained to" the United States in an opinion that
surveyed the sources and consequences of the power to acquire
territory under constitutional and international law. But even this
decision did not put to rest the lingering debates over the precise
legal relationship of guano islands to the United States, nor did it
put an end to U.S. disputes with other nations over these islands.
This paper will examine these legal debates and international
disputes with a view toward shedding light on the history of
American efforts to locate the boundary between the foreign and the
domestic; at stake lay the very definition of the "United States."
68. The
participants in this panel all aim to restore law and legal
institutions to the center stage of American political development
during the Progressive Era (1890-1920), that formative period when
Americans struggled to rework their political ideas and institutions
to address the governmental challenges of a mature capitalist
economy and an interdependent urban-industrial society.
Collectively, the papers challenge the conventional historical
wisdom about the period, which dominates works of social and
political history, political science, and even popular histories of
the era. According to the standard narrative, the halting formation
of a “modern” (administrative, bureaucratic, and welfare-oriented)
state in America during the early twentieth century took place in
spite of law and the courts. “The courts” and “the law” appear as a
monolithic force: a singularly conservative obstacle to progressive
legislation enacted to bring industrial capitalism under the heel of
a socially responsive interventionist state. Of course, the myth of
legal obstructionism has the ring of historical authenticity: It
dates back to the Progressive Era itself, when Theodore Roosevelt,
gearing up for his 1912 presidential run at the head of the
Progressive ticket, led the charge against what some progressives
called America’s “judicial oligarchy.” But whatever its merits as
political rhetoric, the narrative of legal obstructionism has
distorted historical analysis ever since.
The papers proposed here all
emphasize the central, generative role of legal actors--judges,
treatise writers, government officials, and ordinary litigants--in
the creation of new rationales and technologies of social and
economic governance during the Progressive Era. William Novak’s
paper on the “social control of business” shows how a common set of
legal ideas and practices governed progressive economic regulation
and social control initiatives (from criminology to public health).
Michael Willrich examines the local, state, and federal legal
challenges to compulsory vaccination, recovering the largely
forgotten history of legal resistance, by middle- and working-class
Americans, to the expansion of administrative social governance
during the period. William Forbath’s paper revisits the era’s
efforts to rethink constitutionalism and self-government, retrieving
forgotten intellectual and institutional dimensions of the meaning
of Progressive “democracy” and “popular rule.”
The three presenters welcome
the opportunity to present new work to the American Society for
Legal History. Recognizing the interdisciplinary character of these
historical issues, they have looked beyond their own disciplines of
law and history for a commentator. The chair and commentator will be
Elizabeth Sanders, a Professor of Government at Cornell University.
Sanders, the author of prize-winning books on social movements and
regulation during the Progressive Era, is a leading voice in the
field of American Political Development--an interdisciplinary field
of political scientists, historians, and historical sociologists
that has recently helped to regenerate the serious study of
political institutions in the United States.
69. This paper is
part of a larger book-in-progress on the Creation of the American
Liberal State. A reassessment of the relationship between
government and organized corporate capital is, of course, a
fundamental feature of that liberal state. This paper deals with
economic regulation. But it attempts to get beyond the
legal-historiographical obsession with monopoly and anti-trust
through a broader examination of what John Maurice Clark called the
“social control of business.” It argues for the usefulness of
seeing Progressive-era economic regulation as very much of a piece
with some of the larger social and morals regulations of this
period, e.g., the new criminology, the new public health, and
experiments like state and national prohibition. This paper
examines the way in which the same legal technologies and ideas
associated with what social reformers and sociological jurists
called social control and socialization were applied in the realm of
business regulation. The first half of the paper sets up the
intellectual paradigm of the “social control of business” through an
examination of the writings of Clark, Walton Hamilton, Rexford
Tugwell, and Robert Lee Hale among others. The second half then
investigates the fate of actual regulatory experiments in the
courts, including an examination of the law of public utilities,
foreign corporations, and price control.
70. This paper
draws upon my new book-in-progress, Speaking Law to Power: Legal
Resistance to the Modern American State. The book examines the
formation of the modern liberal state during the Progressive Era
from a new angle: the struggles of ordinary Americans, who used
litigation and a new rhetoric of individual rights to challenge the
institutional centralization and expanding scope of administrative
power.
Ever since the great
constitutional struggles of the New Deal era, historians have argued
that there were two main forces of resistance to modern
state-formation during the early twentieth century. First, there
were the courts, which acted as a conservative bulwark, brandishing
new doctrines of substantive due process and liberty of contract to
strike down progressive social legislation. Second, there were the
business interests, which politicked mightily to prevent any
significant redistribution of wealth and power. It took the national
crisis of the Great Depression, the conventional narrative
concludes, to overcome these obstacles. Significantly, this standard
account assumes that the great majority of Americans-wage-earners
and the middle class-gradually embraced a more centralized
interventionist state with expanded powers to regulate the economy
and provide a new level of social security to all citizens.
This paper challenges those
assumptions. It introduces a new set of actors onto the historical
stage: ordinary Americans-neither legal elites nor corporate
interests-who used litigation and crafted rights arguments to
contest particularly coercive efforts to regulate modern society in
its intimate detail. For purposes of this paper, I will present my
research on urban legal resistance to compulsory vaccination during
the small pox epidemic of 1902. The celebrated case of People v.
Jacobson (1905), in which the U.S. Supreme Court upheld
Massachusetts’s compulsory vaccination law (and established a
precedent later used to uphold state-mandated eugenical
sterilization), is examined as the culmination of widespread
litigation that contested such measures as an unwarranted
interference with bodily integrity.
I will argue that these
vaccination challenges at the local, state, and federal level must
be understood in a context of widespread legal resistance, “from
below,” to the unprecedented reach of administrative governance into
everyday social and economic life. In addition to vaccination
resisters, the historical actors in my broader story include
patients in new state psychopathic hospitals asserting their rights
against doctors, families and religious minorities challenging the
constitutionality of sterilization statutes, farmers challenging
federal water reclamation projects in the arid West, local activists
using legal norms to contest emerging Jim Crow measures in the
South, and immigrants taking federal officials to court. Of course,
these litigants lost many, perhaps most, of their cases. But their
challenges left an enduring mark upon the American legal and
political order. Without those forgotten legal struggles, the shape
of the American polity-a modern liberal state that is distinctive in
the world for its marriage of legal rule, rights, and administrative
power-might have looked altogether different.
71. Democracy is
the stepchild of constitutional scholarship. Democracy is far more
a problem than a project of constitutional theory, a foe of
constitutional norms and commitments, as we’ve come to understand
them, rather than a purpose of them. Not since the Progressive Era
have constitutional scholarship and the broader provinces of
constitutional thinking seen a broad and sustained debate about the
meaning of self-government and how well the basic structures and
institutions of American constitutionalism serve the democratic
project.
A dawning awareness of
alternate constitutional arrangements around the globe combined with
the growing influence of institutionalist and rational choice
schools of political science finally have begun to wean important
constitutional scholars from a court-centered perspective toward
studying the larger structures and institutional dimensions of -
what scholars today call - constitutional design. These scholars
have just begun asking anew large questions about the meaning and
practice of constitutional democracy in America.
So, it seems timely to
revisit the Progressive Era’s sustained efforts to reimagine and
reconstruct American constitutionalism. Current historiography
offers a partial and one-sided picture of these efforts; they seem
to be about nothing so much as legitimating the modern
administrative state and empowering “experts” and elite
professionals at the expense of the new immigrant working class, the
machine politicians, and the old “state of courts and parties.” We
no longer understand what “popular rule” and “democracy” meant in
the intellectual and institutional-reform milieus of Progressive
America. Theirs was a richer and subtler experiment than we recall,
in rethinking and reconstructing the relations among the branches
of government, the role of the political party, and the processes
of constitutional change - an experiment that aimed to create a
modern democracy that was more, not less, rooted in popular
participation, more, not less, open to initiative and change from
below, one that was not plebiscitary but deliberative, and
deliberative in a far more popular and plebian fashion than is
dreamt-of in today’s liberal theory.
72. Ethicists,
historians and sociologists have generally accepted the premise that
the legal profession did not offer strong, public defenses of the
adversary ethic (ethically neutral service of clients) until after
1870 when professional elites sought to rationalize their role in
the rise of corporate capitalism. The same scholars have argued or
assumed that, prior to 1870, the legal profession was dominated by a
civic republican ideology in which lawyers conceived their role as a
form of public service dedicated to vindicating the interests of
justice and morality even if that meant refusing to seek a client’s
lawful ends.
This paper challenges both
claims. Surveying antebellum law periodicals, the article reveals a
robust debate on the definition and justifiability of the lawyer’s
role. In particular, the article examines defenses of the adversary
ethic that were both more vigorous and far less apologetic than
defenses offered today. Moreover, the article shows that the
defenses came from legal elites, not Jacksonian levelers, and that
the defenses were couched in the discourse of civic republicanism -
suggesting that morally activist lawyering was not the only
conception of the role thought to be consistent with civic
republican principles of virtuous public service.
73. In recent
years, legal scholars and practitioners have engaged in a voluminous
debate over the characterization of legal practice as a business or
a profession. Although the issue continues to be raised and
considered with increasing urgency and attention, the question of
law as business or profession is not a new one; in fact, the current
discussion is but the latest manifestation of a phenomenon that has
proven to represent, in the words of one scholar, a “perennial
debate.”
One of the works that is
often cited as an early expression of the debate is Julius Henry
Cohen’s 1916 book, The Law: Business or Profession. In fact, Cohen
anticipates many of the concerns that inform the contemporary
debate, including issues of multidisciplinary practice entities and
lawyer advertising. Yet, almost without exception, references to
Cohen’s work are not accompanied by any substantive discussion of
his ideas. This paper argues that, before applying the lessons of
Cohen’s work to the contemporary debate, it is necessary to engage
in a close analysis of the book, taking into account the context of
the cultural and political attitudes of both Cohen and the society
in which he lived. On the basis of such an analysis, the paper
concludes that, although Cohen viewed law as a “profession” rather
than as a “business,” his conception of law as profession was vastly
different from similar contemporary characterizations.
74. Sometime
around 340 B.C. an Athenian orator named Apollodoros brought a
lawsuit against a woman called Neaira alleging that she had been
living with an Athenian citizen (Stephanos) as his wife. Since
Neaira was a former foreign prostitute this was against Athenian law
and if found guilty Neaira would be sold into slavery and Stephanos
heavily fined. Neaira’s defense does not dispute her early career
as a prostitute in Megara but claims she was living with Stephanos
as his concubine-a perfectly legal arrangement.
The point of contention is
the maternity of the children of the household, particularly the
daughter Phano; is their mother Neaira or an earlier citizen wife of
Stephanos? If the former they are not entitled to the citizen
status they have been enjoying to this point, and if they can be
shown to have been contaminating the citizen body in this way the
political career of Stephanos (who is Apollodoros’ real target) will
be at an end.
But Apollodoros spends a
third of his speech detailing the point not in contention-Neaira’s
career as a prostitute. Most scholars believe Apollodoros adopted
this strategy because his case was weak and he was hoping to play on
the prejudices of the jury. This was undoubtedly one of his aims.
However, it has not previously been recognized that elements of the
speech itself demonstrate that Apollodoros knew that Phano was a
legitimate Athenian citizen and by this very fact was forced to
dwell on Neaira’s past before raising Phano’s name. The names of
living citizen women were never mentioned in a court case even when
they were one of the injured parties. Apollodoros had to
desensitize the jury by a litany of lurid detail of Neaira’s former
life before even broaching the name of a possible citizen woman. If
he had focused on Phano from the beginning of his speech his case
would not only be seen to be transparently bogus but he would also
excite prejudice against himself.
75. This paper
discusses the fate in late antiquity of two ancient Roman legal
institutions: the legal “guardianship” of women (tutela mulierum)
and paternal power (patria potestas). Both have been seen as
curtailing the freedom of action of women and children (including
adult children) in the classical period. Both underwent substantial
modification in the later period. By the early fourth century,
tutela mulierum was apparently obsolete, at least in the west, and
disappears from the legal sources. Patria potestas still appears in
late Roman laws, but new restrictions were placed on the legal and
economic powers of fathers over their children.
I argue that although tutela
mulierum disappeared and paternal power was somewhat limited, late
Roman law developed other forms of family control to replace them.
New laws restrict the activities of women in court, re-assert the
authority of a woman’s father to choose her husband, and allow the
emancipation of an ungrateful child to be rescinded. The legal
sources also suggest the continued existence (or perhaps revival) of
another ancient institution of family control over individual
members, the family consilium. Several laws refer to male relatives
(propinqui) as a body competent to judge matters involving women’s
sexual conduct and the behavior of those under twenty-five.
My paper draws upon recent
scholarship on women and the law in late antiquity, and
contextualizes the legal sources with evidence from contemporary
historians and papyri from late antique Egypt.
76. As David
Lemmings remarks in his work on English law, “the grandeur,
solemnity, and dignity which are normally associated with modern
high court proceedings were probably not the prevailing emotions in
Westminster Hall during the eighteenth century.” Instead, the Hall
was a noisy place, as William Blackstone put it, “the babbling hall”
of the “harpy tribe.” This paper examines the meaning of this often
bemoaned noise, asking how “noisiness” came to figure as
interference, as a signifier for the varied forces that threatened
law’s insularity during the mid-eighteenth-century. As Blackstone’s
comment about the “harpy tribe” suggests, examining the noise at
Westminster necessarily means examining the relationship between law
and women. Noisiness was almost always linked to women either
literally or symbolically, to orange-sellers, to the “nimble-tongued
painted sempstress with her charming treble,” to the “bustle” of
crowds that swarmed through the hall during the trial of the Duchess
of Kingston. This paper suggests that these closely-connected
complaints about noise and women communicated a subtextual anxiety
related to England’s rapid commercial expansion. Through examining
texts as diverse as Blackstone’s little-known poetry and Mansfield’s
development of commercial law--in the context of contemporary
evidence of Westminster’s “noise”--the paper suggests that
Westminster’s noise served a positive function: it interrupted
mid-eighteenth-century law’s representation of itself as insulated
from contemporary concerns and articulated interests that the law
wished to repress.
77. In 1820, at
the height of the scandal over Queen Caroline’s trial before the
House of Lords for adultery and treason, a cartoon appeared in which
the Queen is depicted riding into the House of Lords on a black ram
with the face of her lover, Bergami. The cartoon alludes to a
manorial custom (cited, for example, in Feme Covert (1732), an
account of laws governing female behavior) in which a widow forfeits
the “free bench” she holds in her late husband’s estate if she is
found to be unchaste. To reclaim her property, she must ride into
the manorial court on the back of a black ram and acknowledge her
misbehavior.
Queen Caroline insisted on
being present at her trial, despite the unseemliness of the charges,
and she thus gained considerable popular support in her fight
against the royal establishment. This popular support was quickly
characterized as “mass agitation” and thus Caroline came to be seen
as a double threat-both a personal and political affront to the
majesty of the throne. The “elaborately cruel” nature of the
cartoon that satirizes the queen indicates not only the specific
danger that Caroline presented to the monarchy but also the threat
that the female body and its potential for unregulated sexuality
offers to the patriarchy, especially when that body dares to enter
the space of the court, a space traditionally reserved for men and
the exercise of their authority. The cartoon also indicates how
easily the threat of unregulated female sexuality is aligned with
the threat of the unregulated social body.
78. This work
presents a theory of residential segregation through enforcement of
racial restrictive covenants and social conventions. The empirical
analysis of the article suggests that covenants had a signicant
impact on housing prices, an impact that continued to resonate
decades after state enforcement of these covenants was ruled
unconstitutional. As such, it is argued that formal and informal (or
unofficial) uses of racial restrictive covenants played a key role
in establishing and perpetuating long-standing racial residential
segregation patterns in the North.
79. Among the
most admired features of classical Roman law are special remedies
available when buyers purchase goods (typically, slaves or large
animals) in the Roman marketplace, and these goods turn out to be
defective in ways the buyer could not readily have observed. The
remedies, created by Roman magistrates in the late Republic,
permitted the buyer, within set time limits, either to rescind the
sale (redhibition) or to sue for the difference in value because of
the defect (actio quanti minoris), but did not permit recovery of
consequential damages. On the other hand, the seller was liable
irrespective of knowledge or fault.
Although it has always been
clear that these market remedies arose in reaction to the pressures
of a large-scale and impersonal marketplace (quite different from
the more intimate sales presumed in traditional Roman sales law),
the emergence of modern Institutional Economics has shed
considerable light on the reasons why the Romans shaped these
remedies as they did. Impersonal market sales were necessarily
plagued by difficulties of chronic informational asymmetry between
seller and buyer as to the object of sale, and buyers could no
longer anticipate a seller’s cooperation in this matter. The result
was adverse selection: rational actors responded to informational
asymmetry by creating a chronically inefficient market. As the
jurist Ulpian at least dimly recognized (D. 21.1.1.2), the Roman
market remedies were created precisely to alleviate this problem;
unscrupulous sellers were deterred by creating a remedy that
paradoxically did not depend on fault. Confirmation for this
hypothesis comes from one feature of the market remedies, namely the
requirement that sellers correctly state the nationality of the
slaves they sold; this odd rule, based upon popular ethnic
stereotypes, very likely derived from a “signaling device”
originally used to alleviate the problem of adverse selection.
In general, then, the legal
institutions that arose to control the functioning of the Roman
marketplace seem clearly responsive to identifiable underlying
market pressures.
80. This paper
assesses the impact of judicial independence using stock prices. In
their seminal article, “Constitutions and Commitment,” Nobel-prize
winning economic historian, Douglass North, and political scientist,
Barry Weingast, argued that judicial independence and other
institutional changes inaugurated by the Glorious Revolution allowed
the English government credibly to commit to repay sovereign debt
and more generally to protect contractual and property rights.
Although they provided some empirical evidence to support their
theory, they did not investigate the effect of judicial independence
separately from that of other institutional innovations, nor did
they provide any rigorous statistical testing. This paper is the
first to attempt to do so. It looks at share price movements at
critical points in the passage of the 1702 Act of Settlement and
other statutes which gave judges greater security of tenure and
higher salaries. Since the major joint-stock companies, including
the Bank of England and the East India Company, were heavily
invested in government bonds, their share prices should have
responded positively to increases in judicial independence.
Similarly, even companies which did not hold government debt should
have felt beneficial effects to the extent that independent judges
were better able to enforce contracts and property rights
impartially. Preliminary results suggest that giving judges tenure
during good behavior had a ten percent positive impact on share
prices, while salary increase and other improvements to judicial
tenure had impacts which were positive, but not statistically
significant.
81. During the
Civil War, both the Union Congress, in the First and Second
Confiscation Acts, and the Confederate Congress, in the
Sequestration Act, put in place sweeping confiscation programs
designed to seize the private property of enemy citizens on a
massive scale. My paper compares property confiscation in the Union
and the Confederacy. It examines congressional debates, the social
impact of confiscation legislation, and the interpretation of
confiscation doctrine by the Supreme Court. I contend that the
Civil War experiment with confiscation helped cause an important
shift in American property ideology and constitutional law by
accelerating the rise of liberal conceptions of individual property
rights, forcing reconsideration of the legal status of slave
property, and narrowing the scope of sovereign power over property.
After the confiscation debates, the failure of land distribution in
the South during Reconstruction was all but inevitable.
In the North, an ideological
debate that could have taken decades to unfold incrementally, case
by case, was instead, under the pressure of war, compressed into a
little more than a year. Congress ultimately passed confiscation
legislation that reflected deep ideological divisions and made
widespread confiscation nearly impossible. In the South, the resort
to confiscation required the reassertion of a republican ideology,
and the exercise of sweeping centralized power over individual
property, that were almost totally at odds with the dominant trend
in Southern legal and constitutional thinking before the war. Yet
the new Confederacy, because it was locked in a struggle for its
existence, drew heavily on a republican property ideology inherited
from the American Revolution. The needs of the new Confederate
state were so severe that this recessive ideological strain once
again became dominant.
82. Scholars of
Indian law have devoted little attention to the intellectual
contributions that native American doctrines made to the development
of Constitutional law and none to the impact of the ideas of Indian
women on federal doctrines during the era of the Revolution and
early republic. My paper argues that Cherokee women were
significantly involved in Cherokee peace diplomacy from 1775-1791,
particularly during the 1780s when they spoke at treaty conferences
and through peace talks. As part of a larger Cherokee diplomacy that
envisioned peace as a relational process, women emphasized the
connections between whites and Cherokee, positioned this
relationship as one in which the United States had responsibilities
as the stronger party, and opposed land cessions that were paid for
with fungible goods. Their concerns informed the federal reaction at
the 1791 Treaty of Holston, at which the United States responded to
the Cherokee by agreeing to a protective relationship while it
offered permanent recognition of the Cherkee through a perpetual
annuity. These concepts informed Chief Justice John Marshall’s
holdings in the Cherokee cases of 1831 and 1832. Although Marshall
wrote as though his understanding of the trust doctrine was based on
Emmerich de Vattel’s Law of Nations, nothing in that work envisioned
the protective relationship utilized by Marshall. Rather, Marshall’s
ruling reflected a relationality that had been negotiated between
the United States and the Cherokee, one in which the ideas of
Cherokee women played a critical role.
83. Judicial
method in the period from independence to the American Civil War is
generally characterized by two themes. The first is the attribution
of a “Grand Style” of adjudication, in which judges openly and
“joyously” made law, in contrast to the formalism of the latter
nineteenth century. The second is the characterization of judges as
“instrumentalists” in that they collectively, and consciously,
transformed the common law to further specific goals. The
instrumentalist paradigm emphasizes the role of economic thought in
shaping judicial decisions, leaving the purpose of this
instrumentalism open to debate. These generalizations, however, do
not account for an important development in constitutional property
rights in the formative era. Many judges imposed upon themselves
external limits on discretion to “make” law in certain types of
property cases, and these limits are readily linked to political
rhetoric from the founding era emphasizing the sanctity of private
property. I suggest that the predominant political discourse about
vested rights of property explains the appearance and development of
the concept that courts should not change rules that would unsettle
property transactions.
Scholars have not previously
examined the formative period with the question of “judicial
takings” in mind. This paper suggests that most state judges in the
formative era did consider judicial abandonment of precedent
potentially to be a retroactive impairment of property rights. In
this era state courts tended to preserve property rules that they
believed were necessary to avoid disrupting a large number of
transactions. Courts were willing to change property rules if they
were first satisfied that the change would improve the law, usually
in the sense that it would better reflect community practice, and if
they were also satisfied that the change would not greatly disturb
settled property expectations. This preference for legislative
change indicates great awareness of the difference between the
retroactive nature of judicial decision-making, and the prospective
nature of legislation, a critical distinction for the reliance
interests these courts identified.
84. This paper
analyzes the efforts by African-Americans to use litigation to
achieve racial equality in nineteenth century Ohio. At the
beginning of the century, the Ohio legislature, by enacting its
Black Codes, had led the way both for new states to be carved out of
the Northwest Territory and for older northern states to place
significant barriers to African-Americans’ full enjoyment of civil
and political rights.
With Ohio’s constitution and
laws limiting certain rights to “white” people, it was a matter of
time before the Ohio Supreme Court would be called upon to decide
who was white. In 1831, Polly Gray, a “quarteroon,” argued she
should be able to invoke the statute that prevented a “negro” or a
“mulatto” from testifying in a case involving a “white” person. The
Court refused to accept the prosecutor’s argument that race should
be determined by color. Instead, the Court based race on “blood”
and ruled that because Gray was more than one-half white the witness
could not testify against her.
The Court’s ruling in the
Gray case had significant implications beyond interpretation of the
testimony statute. While some of Ohio’s African-Americans worked to
remove all racial classifications from the law, others used the Gray
holding as a wedge to push the boundaries of who was “white.” Men
of color filed suit as potential voters as did the parents of
children excluded from the white-only public schools. They
succeeded in having the Court extend its ruling to voting rights,
permitting men of color to vote, and to school cases, permitting
children of color to attend the white public schools.
But some Ohioans refused to
accept the Court’s decisions. They argued instead for a community
standard under which known “whites” would decide who was
“colored..” The legislature supported this movement in 1859 and
1868 by passing “visible admixture” laws requiring election judges
to refuse the right to vote to men of color. [The same 1868
legislature rescinded ratification of the 14th amendment and refused
to ratify the 15th amendment.] School trustees in some townships
refused to admit colored children. Men of color challenged these
actions in court. Some white parents sued over the admission of
colored children to the schools. These court challenges forced the
Ohio Supreme Court to revisit its ruling in the Gray case again and
again.
This paper explores the
Court’s rulings, the challenges by whites and the legislature to
reverse the rulings, and the efforts of people of color to retain
the expanded definition of “white.”
85. My paper will
explore legal challenges to wills (testamentary capacity cases)
during late antebellum and early Reconstruction Kentucky.
Occasionally testators’ wills freed slaves or made unusual devises.
In an attempt to void such devises some family members initiated
suits challenging these devises by claiming that the deceased was
insane or lacked the requisite legal capacity to write a will. In a
several cases slaves - sometimes with success - used the court
system to defend testators’ emancipatory devises. In doing so,
these slaves used legal channels to contest dominant understandings
of slave status, property, and freedom. The language of these
challenges represents local communities’ beliefs about the
legitimacy of inter-racial and social relationships and how
judgments about these relationships intersected with understandings
of insanity and legal capacity. Furthermore, these cases represent
a rare opportunity to analyze slaves bringing suits for their
freedom, thus subverting a legal and social system designed to
promulgate white superiority and black servitude.
These
cases suggest that a broad array of issues concerning how people
understood legal and racial transgressions, familial duty, and
social debt and obligations contributed to whether a testator’s
final wishes would be respected by courts and communities. My
paper will explore several cases in which judges, juries, and slaves
used this body of theoretically neutral jurisprudence to delimit
categories of property, personhood and freedom while illuminating
racial and legal hierarchies of power.
86. My paper
analyzes how racial and gender identity influenced the legal
definition of citizenship in an 1873 court case. A close examination
of this legal suit reveals an organized African-American community
that encouraged a young, African-American schoolteacher to seek a
legal remedy for racial segregation on a common carrier.
The civil suit of Emma Coger
v. North Western Union Packet Company was heard both in an Iowa
district court and before the Iowa State Supreme Court in 1873.
Emma Coger, an African-American schoolteacher from Illinois,
traveled up the Mississippi river to visit friends in Iowa. On her
steamboat voyage back home, Coger sat down at the dinner table
reserved for white women. The captain forcibly removed Coger from
the table and she subsequently filed suit against the owners of the
boat in Iowa’s Lee County District Court.
A precedent for segregation
on common carriers was already in place because steamboats and
trains allowed respectable white women to travel in separate areas
from the single male passengers. This paper will discuss how both
racial and gender identity played a critical role in structuring
Coger’s lawyer’s arguments for her right, as a citizen, to equal
treatment aboard common carriers. My paper investigates the
African-American community’s political mobilization, the courts’
application of the fourteenth amendment to the Coger case, and the
ways in which racial and gender identity influenced the legal
rulings.
87. There is a sizeable body of unexplored legal material
(cases, treatises, statutes) pertaining to partnership and early
corporate insolvency suggesting that courts were unsure as to the
nature of property-holding and agency relationships within the
partnership and close corporation throughout the classical
Industrial Revolution c. 1770-1870. Insolvency regimes were
therefore volatile, with constant debates about the lines between
joint, several and joint and several liability for investors in
enterprise. Lord Eldon and the early 19th century judges indicated
that they were unhappy with the policies of partnership insolvency
law but nonetheless stuck with precedents inherited from Lord
Loughborough. It is important to integrate this learning into the
history of corporations, as it was not until Saloman v Saloman
[1897] AC 22 that a clear line was finally drawn between corporate
entities and partnerships or deed of trust companies. However equity
courts very early on did manage to use insolvency rules to partition
the private assets of managers and investors from working capital.
The theme of unstable and contested partnership and agency
insolvency rules adds a further dimension to new work on the history
of business enterprise produced by Harris, Alborn, Mahoney, Banner
and others, and may cast light on the
form of
general incorporation created in the later 19th century.
88.
Explaining why securities markets develop and why ownership
separates from control in large firms—or why each fails to occur—is
one of the enduring inquiries in corporate finance. Here I examine
recent theory from the law and finance literature—which sees the
mechanics of corporate law, and particularly of common law fiduciary
duties, as determining the degree of ownership separation in a
nation and its incidence of large public firms. Because fiduciary
duties are seen as most highly developed in common law Anglo-Saxon
systems, legal origins are seen as determinative of separation. I
suggest two reasons why corporate law fiduciary duties from common
law are unlikely to explain separation fully, and perhaps not even
primarily. First, regulatory structures arose in the United States
because common law fiduciary duty rules were widely seen to
have been defective. I briefly outline the perceived defects.
Institutions that have nothing to do with common law fiduciary
duties arose to remedy the perceived defects. Second, common law
fiduciary duties do not seek to control half of what’s important in
the relationship between managers and distant shareholders:
fiduciary duties seek to reduce stealing (“tunneling” in the current
finance vocabulary) but not managerial error or misdirection. Other
institutions control error and misdirection, and other institutions
can raise or lower the severity of the disconnect between managers
and distant shareholders. Since the quality of these other
mitigating (or exacerbating) institutions can vary from
nation-to-nation, their relative strength can powerfully determine
the degree of ownership separation and stock market development.
I then suggest a
missing piece to the explanation why ownership separation varies in
the wealthy West. Labor institutions can strongly affect the degree
of ownership separation, and indeed can be determinative, as
determinative as legal origins and corporate law quality. In fact,
the strongest predictor of ownership separation in the wealthy West
is the degree of employment protection in a nation, not legal origin
or the degree to which corporate law protects minority
stockholders. I provide several explanations why this result is
theoretically plausible. Essentially, distant shareholders must be
assured that managers will produce value for them. Yet if labor
pressures are high, they cannot be so assured, because managers’
unrestrained agenda roughly corresponds to labor’s. The political
impulse that induces employment protection also impedes restraints
on managers from pursuing their natural agenda (of, say, corporate
expansion and risk-aversion), making it harder for distant
shareholders to get managerial alignment. In nations where those
labor pressures are high, ownership separation is not as valuable to
stockholders as close ownership, because close ownership unites
management and control, keeping the interests of the two allied.
Strong securities markets accordingly should not develop in such
nations. Data consistent with these labor-pressure channels is
available, and I provide some supporting regressions.
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