Legal Theory Blog

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

Bilder on the Historiography of Judicial Review

Mary Sarah Bilder (Boston College - Law School) has posted Idea or Practice: A Brief Historiography of Judicial Review (Journal of Policy History, Vol. 20, No. 1,pp. 6-26, 2008) on SSRN. Here is the abstract:

Judicial review may be the most publicly contested aspect of American constitutionalism. The conventional beliefs that judicial review should be understood as an idea and American constitutionalism studied as a new rationalistic, political science are largely due to the influential scholarship of Edward Corwin. This brief essay recovers the pre-Corwin discussion about the origins of judicial review to demonstrate the way in which the approach to judicial review as an idea has been, itself, historically constructed by scholarly inclination, disciplinary identification, and the availability of historical materials.

And from the text:

As this brief historiography suggests, the conception of judicial review as an idea developed from the approach taken to the question rather than because it was the inherently correct answer. Cases and Convention records could be read as textual evidence in a closed intellectual system that revealed a coherent idea about judicial power. It was much harder to prove definitively that everyday colonial political practices had formed a set of assumptions about limited legislative authority. These differing conclusions about the origins of judicial review also rested on larger disciplinary assumptions. The influence of Dr. Bonham’s Case presumed a certain autonomy of legal ideas across time and space; the claim of colonial practice presumed a certain degree of continuity despite American independence; the argument for a new political science presumed a certain discontinuity and rejection of English and colonial constitutionalism.

The recovery of the importance of colonial practices to the origins of judicial review does not need to result in the abandonment of the importance of legal ideas and doctrines. Discussing judicial review as practice, however, demonstrates that at least some ideas of American constitutionalism have their origins in political and legal experience rather than the legal imagination. Reconstructing the origins of judicial review in English and colonial practice resurrects an earlier idea about limited legislative authority and thus enriches contemporary discussions of American constitutionalism. Finally, the recognition that American constitutionalism is the result of new political ideas and the adaptation of older legal and political practices demonstrates that aspects arising from the adaptation of colonial constitutionalism coexist in tension with those arising from post-Revolutionary theories of governance. As a historical matter, American constitutionalism was not a single, coherent political science.

Judicial review was not invented by historians, political scientists, or law professors. Because judicial review arose from a colonial practice, history has something to contribute. Because judicial review was rationalized as compatible with a written constitution and separation of powers, political science has something to contribute. Because judicial review involves interpreting the boundary between legitimate legislative power and unconstitutional authority, law has something to contribute. We may not be able to stop calling the practice judicial review, but scholars can begin to think more critically and constructively about the ways in which the story of its origins has often been the story of ourselves and our unspoken disciplinary assumptions.

If you are not already familiar with Bilder's work and are interested in constitutional history, this essay is a must.  Highly recommended.

Ross on Puritan Jurisprudence

Richard Ross (University of Illinois) has posted The Career of Puritan Jurisprudence on SSRN.  Here is the abstract:

This essay explores the long, complex history of an idea often taken for granted today: that early Massachusetts lived under something called Puritan jurisprudence, a distinctive legal order strongly shaped by Puritan religious commitments and social thought. While this notion is a commonplace in the historiography of early New England, the idea has not always been accepted. In particular, the Puritans themselves did not assume that they lived under a distinctive jurisprudence that could be termed Puritan. Given contemporary opinion, what intellectual and political commitments encouraged later interpreters to give credence to the notion of Puritan jurisprudence? The heart of this article explores the gradual acceptance between the seventeenth and nineteenth centuries of two presuppositions underlying the concept: first, that early Massachusetts had a legal order sufficiently distinctive to be styled a jurisprudence; and, second, that Puritan theology and social thought served as the central characteristic or essence of this jurisprudence. The mature synthesis of Puritan jurisprudence that crystallized in the twentieth century rested upon these assumptions. The central ambition of this essay is to explain how and why many scholars came to accept a concept that the Puritans, surveying their own law, would have found troubling. The essay adds a tincture of irony or poignancy to the notion of Puritan jurisprudence by revealing that those founders did not use the concept and that later generations only slowly came to accept it as a result of political and forensic maneuvers far removed from the concerns of the Puritans.