Legal Theory Blog

Dudziak on Tushnet on Teles

Mary Dudziak has some interesting comments on Mark Tushnet's review of Steven Teles's book, The Rise of the Conservative Legal Movement--scroll down to the immediately prior post.

Ross on Early Massachusetts & Legal Pluralism

Richard J. Ross (University of Illinois College of Law) has posted Puritan Godly Discipline in Comparative Perspective: Legal Pluralism and the Sources of 'Intensity' (American Historical Review, Vol. 113, pp. 975-1002, 2008) on SSRN.  Here is the abstract:

Early Massachusetts (c1630-1660) is famous for the intensity of its drive for moral righteousness and a more fully Christianized society. This essay explores the reasons for this intensity by situating the colony in two frameworks seldom brought together: first, the comparative exploration of post-Reformation campaigns for godly discipline and confession building; and second, the comparative investigation of legal pluralism among New World settlements. A study of early Massachusetts allows consideration in a colonial context of the suggestion, raised by European historians, that there was an inverse relationship between the effectiveness of godly discipline and a polity's degree of social complexity and legal pluralism. Contemporary presbyterian critics of Massachusetts discipline provide a way into the problem. They viewed the New England Way as deficient in the sorts of mechanisms for coordinating among congregations and between the civil and ecclesiastical realms available in Reformed polities such as Calvin's Geneva and early seventeenth-century lowland Scotland, places of special significance in debates between presbyterians and congregationalists. These critics predicted that schism, oscillations between enthusiasm and lethargy, and inconsistent standards of judgment and administration among clashing churches and civil authorities would together undermine Massachusetts discipline. Part of the reason why they were wrong was that Massachusetts displayed low levels of social complexity (relative to European Reformed polities) and a modest degree of legal pluralism (by the standards of other New World settlements). Treating early Massachusetts as a case study within the context of scholarship on post-Reformation godly discipline and New World legal pluralism suggests alterations to these two flourishing literatures and offers ways to connect them. The colony's experiences challenge the trajectory of change assumed by scholars of New World legal pluralism. The historiography on European confession building provides new ways of perceiving family resemblances among settlements in different empires that were pursuing parallel programs of intense godly discipline and Christian education. Evidence from the New World could contribute to debates among scholars of the post-Reformation European confessional age by demonstrating, in a number of colonial settings, how civil and clerical leaders committed to the pursuit of godly discipline benefited from modest levels of legal pluralism.

Thomas on Women's Legal History

Tracy A. Thomas (University of Akron School of Law) has posted The New Face of Women's Legal History: Introduction to the Symposium (Akron Law Review, Vol. 41, p. 695, 2008) on SSRN.  Here is the abstract:

Women's legal history is developing as a new and exciting field that provides alternative perspectives on legal issues both past and present. Feminist legal history seeks to examine the ways in which law historically has informed women's rights and how feminist discourse has shaped the law. The active scholars come from a variety of academic traditions including law, history, and women's studies. The Constitutional Law Center, established by Congress at the University of Akron School of Law, organized a conference entitled "The New Face of Women's Legal History" to bring together both the senior and emerging scholars in the field. The articles included in this symposium edition of the Akron Law Review and introduced here provide an excellent sampling of the promising work underway in this nascent field. They each explore women's historical use of the law to advance feminist discourse. True to the theme of the conference, the papers evidence the new ways in which feminist scholarship is developing to integrate issues of race, gender, and historical analysis into the legal scholarship. Additional research from the symposium will also be published as part of an edited collection entitled Feminist Legal History: New Perspectives on the Law (T.J. Boisseau & Tracy Thomas, eds.). Contributing authors to the book employ the core theme of women's use of the law for feminist discourse in a variety of historical contexts to reframe and illuminate such topics as women's rights in the family, women's participation in the military, women's legal activism in social justice movements, women's roles in the judiciary, and women's status in constitutional law. The papers published here in this symposium edition provide a foray into this expanding field.

Honoré on Justinian's Digest

Tony Honoré (University of Oxford - Faculty of Law) has posted two papers on Justinian's Digest on SSR:

Justinian's Digest: The Distribution of Authors and Works to the Three Committees:

This essay addresses a set of related problems about the compilation of Justinian's Digest. Suppose that, as scholars have long believed, Bluhme was right in detecting the existence of three separate masses of works to be read and excerpted by the Digest commissioners and of three separate committees (the Sabinian, the Papinian and the edictal) to read them. How, then, was it decided which works to allot to each mass, and which works should be read together? The allocation was crucial, because Tribonian could not personally supervise the selection of texts made by the committees, at any rate those on which he did not himself serve. How did he ensure that the best texts would be chosen?

Duplicate Texts and the Compilation of the Digest:

Efforts to investigate the compilation of Justinian's Digest go back in one way or another to Friedrich Bluhme's 1820 article on the regular sequence of inscriptions in the Digest titles, a sequence that is especially visible in D 50.16 and 50.17. This includes the phenomenon of duplicate texts (leges geminae/geminatae), on which Bluhme also compiled, in the same year, a special study. Duplicate texts tell us something about how the Digest commissioners worked, and especially about the different attitudes of the three committees towards excerpting texts for the Digest...

Bilder on Colonial Constitutionalism

Mary Sarah Bilder (Boston College - Law School) has posted Colonial Constitutionalism and Constitutional Law (THE TRANSFORMATION IN AMERICAN LEGAL HISTORY: ESSAYS IN HONOR OF MORTON J. HORWITZ, Alfred L. Brophy, Daniel W. Hamilton, eds., Harvard University Press, 2008, Boston College Law School Legal Studies Research Paper No. 164) on SSRN. Here is the abstract:

This essay reconsiders the transformation of colonial constitutionalism to Constitutional Law. The transformation of constitutional law does not map neatly onto the 1776 - 90 period. This essay argues that the transformation was less the result of the admittedly important invention of a written constitution than of three less apparent transformations. A first essential transformation in constitutionalism occurred long before 1776 when seventeenth-century colonists created a new conception of the written and published charter as the location of authority and liberties. A second essential transformation occurred only after 1790 when appeals in judicial cases began to be publicly reported in print, thereby creating a stable and analyzable body of law. A third essential transformation occurred in 1787 - but with implications not immediately appreciated. Privy Council review of colonial legislation ended and no similar review took its place, thus leaving the judiciary the sole arbiter of constitutional law. These three transformations created modern American constitutionalism - a law two centuries in the making.

Gillmer on State v. Pleasant

Jason Gillmer (Texas Wesleyan University School of Law) has posted Poor Whites, Benevolent Masters, and the Ideologies of Slavery: The Local Trial of a Slave Accused of Rape (North Carolina Law Review, Vol. 85, p. 489, 2007) on SSRN. Here is the abstract:

This Article analyzes in detail a case involving a slave accused of raping a white woman in the 1850s to offer a provocative challenge to our basic assumptions about sex and race in the slave South. Joining a new group of "cultural-legal historians," the author looks beyond the legal language of Southern legislatures and high courts, and focuses instead on the surviving local and trial records of one case: State v. Pleasant. In doing so, the author uncovers the stories of ordinary men and women - the slave, his master, his accuser, his attorney, the jurors, and others - to see how the laws and official ideologies governing sex, race, and slavery affected everyday lives. This approach adds both specificity and complexity to the debate over how the socio-legal regime responded to interracial relationships. Ultimately, the author concludes that an accusation of black-on-white rape did not produce the hysteria that traditional thought presumes. Demands for retributive justice were tempered by the interests of the master and his slaveholding neighbors, and by Southern notions about the honor and character of white men, white women, and black slaves.

Greif on Contracts Among the Maghribi Traders

Avner Greif (Stanford University) has posted Contract Enforcement and Institutions Among the Maghribi Traders: Refuting Edwards and Ogilvie on SSRN.  Here is the abstract:

Edwards and Ogilvie (2008) dispute the empirical basis for the view (Greif, e.g., 1989, 1994, 2006) that multilateral reputation mechanism mitigated agency problems among the eleventh-century Maghribi traders. They assert that the relations among merchants and agents were law-based. This paper refutes this assertion using quantitative and documentary evidence thereby vindicating the position that the legal system had a marginal role in mitigating agency problems in long-distance trade in this historical era.** Edwards and Ogilvie constantly present legal actions in non-trade related legal cases as evidence for a reliance on the legal system for matters pertaining to long-distance trade. Their criticism of Greif's documentary analysis also fails scrutiny. The claim that merchants' relations with their overseas agents were law-based is wrong. This paper is based on quantitative analyses of the corpuses containing the hundreds of documents on which the literature relies and a careful review of the documents and the literature Edwards and Ogilvie cite. Their assertion is shown to be based on unrepresentative and irrelevant examples, an inaccurate description of the literature, and a consistent misreading of the few sources they consulted. In particular, their examples for the use of the court are mainly taken from mandatory legal procedures associated with sorting out the assets and liabilities of deceased traders' estates. Such examples do not support the claim that agency relations were law-based. The quantitative analysis reveals that empirical basis for the multilateral reputation view is stronger than originally perceived. This paper also sheds light on the roles of the legal system and reputation mechanism during this period.

Ernst on Recuiting New Deal Lawyers

Check out Dan Ernst's Jerome Frank Hires Some Lawyers, Part I, at Legal History Blog.  Here is a taste:

The young graduates of elite, case-method law schools who went to work in Franklin D. Roosevelt’s first two administrations, commonly known as “New Deal lawyers,” were the first large cohort of “Wall-Street-grade” legal talent to take entry-level jobs in the national government. In my teaching and scholarship I argue that these lawyers’ quest for professional authority helped build bureaucratic autonomy in the federal government--that is, it helped strengthen officials’ ability to act in ways that neither politicians nor organized interests preferred but were unable to check or reverse.

My students tend to think that prestigious institutions have always hired entry-level lawyers on the basis of academic merit. In lectures I explain how this standard emerged at corporate law firms in the early twentieth century and describe the very different hiring practices that prevailed in the federal government before the New Deal. What I needed was a reading that conveyed just how great a break the New Deal’s legal divisions represented.

Ross on Legal Communication in Imperial British North American & Spanish South America

Richard Ross (University of Illinois) has posted Legal Communications and Imperial Governance: British North America and Spanish America Compared on SSRN. Here is the abstract:

This essay asks how the practices and assumptions of legal communications in the seventeenth- and eighteenth-century Anglo-American world affected governance of the British North American colonies. Historians have long argued that the strengthening of English imperial oversight of the colonies in the late seventeenth and eighteenth centuries required the cultivation of an assortment of legal communications techniques. Yet the empire's communications practices had a double nature. While they facilitated greater imperial oversight, they also inadvertently shielded a significant measure of local control and diversity in the colonial legal systems. To pursue this claim, I will contrast legal communications in the English and Spanish colonial empires. Comparison with Spanish America reveals basic presuppositions of the English system. It also suggests several particularities, orientations, and limitations that made Anglo-American legal communications an unreliable and inconsistent agent of imperial centralization. Exploring the double nature of these communications practices in a comparative context is the central ambition of my essay.

My article challenges the weak geographical determinism implicit in many studies of New World imperialism. This perspective assumes that the great distance between England, France, Spain, and Portugal and their American colonies gave settlers and officials in the colonies a degree of autonomy and initiative not enjoyed by subjects and magistrates back home. Imperial administrators, confronted by the Atlantic, could exert only an inefficient and episodic supervision of New World colonies. I try to show, by contrast, that while England and Spain both confronted the problem of distance, they addressed the problem in different ways. Distance provides (by itself) a weak explanation for the various systems of legal communications that the European empires created to span the Atlantic and facilitate imperial governance. These systems arose in empires with different assumptions about the purpose of colonies and the nature of proper government, with dissimilar legal cultures and metropolitan administrative institutions, and with disparate colonial populations, resources, trade patterns, and educational and religious establishments. In all cases, communication across the Atlantic linked metropoles to colonial groups with their own interests and normative assumptions. Colonists maintained their own highly variable local legal communications that magnified, suppressed, and reinterpreted commands and messages from the metropolis.

The article contributes not only to the comparative study of New World imperialism, but to early American political history. Scholars have long observed that the large degree of local control of legal institutions in the seventeenth and eighteenth centuries decisively influenced the shape of colonial politics and the nature of the Revolutionary movement. The essay uses comparative history to explore how local notables in British North America exercised substantial control over the means of communication as well as the means of administration. Local notables embedded in social networks influenced which audiences would know what about imperial directives and about the legal heritage that supposedly united colonies and metropolis. They shaped the meaning of the shared heritage and of imperial directives in the process of disseminating them. Understanding the dynamics of Anglo-American legal communications helps explain the persistence of a significant measure of local control and diversity in the eighteenth-century colonial legal systems, a factor important in the course and aftermath of the Revolution.

Call for Papers: Feminist Legal History

The editors of a proposed book, Feminist Legal History: New Perspectives on Law seek submissions for contributing chapters to the book. This book is an edited collection of essays by leading scholars in law and history that offers new historical and feminist perspectives on law and applies these insights to the legal and social policy issues of today. The collection takes as its primary goal an exploration of women’s historical use of the law to advocate and achieve equality. Contributing authors employ this core theme in a variety of historical contexts to reframe and illuminate such topics as women’s rights in the area of family law, women’s participation in the U.S. military, women’s legal activism and participation in social justice movements, judicial roles played by women, and women’s status in constitutional law. Feminist Legal History was inspired by a symposium held in October 2007 sponsored by the Center for Constitutional Law at The University of Akron School of Law, one of four such national centers established by Congress.

Editors
Tracey Jean Boisseau, Ph.D., The University of Akron, Department of History
Tracy A. Thomas, J.D., M.P.A., The University of Akron School of Law

Contributors
Felice Batlan, J.D., Ph.D., Chicago-Kent College of Law
Eileen Boris, Ph.D., University of California Santa Barbara, Women’s Studies Program
Mary L. Clark, J.D., American University Washington College of Law
Jill Elaine Hasday, J.D., University of Minnesota Law School
Gwen Jordan, J.D., Ph.D., Fellow in Legal History, University of Wisconsin School of Law
Jennifer Klein, Ph.D., Yale University, Department of History
Jean H. Quataert, Ph.D., Binghamton University, Department of History
Mae C. Quinn, J.D., L.L.M., University of Tennessee School of Law
Leigh Ann Wheeler, Ph.D., Bowling Green State University, Department of History

If interested, please submit an abstract and CV by July 1 to Professor Tracy Thomas at thomast@uakron.edu. Final manuscripts of 20-25 pages should be submitted by September 15, 2008.

For questions, contact:
Tracy A. Thomas
Professor and Director of Faculty Research
University of Akron School of Law
(330) 972-6617
thomast@uakron.edu