James Henretta's “Charles Evans Hughes and the Strange Death of Liberal America” takes up one of the most interesting and important interpretive questions in the history of American political economy. What explains the dramatic transformation in liberal ideology and governance between 1877 and 1937 that carried the United States from laissez-faire constitutionalism to New Deal statism, from classical liberalism to democratic social-welfarism? That question has preoccupied legions of historians, political-economists, and legal scholars (as well as politicians and ideologues) at least since Hughes himself opened the October 1935 Term of the U.S. Supreme Court in a brand new building and amid a rising chorus of constitutional criticism. Henretta, wisely in my opinion, looks to law, particularly public law, for new insights into that great transformation. But, of course, the challenge in using legal history to answer such a question is the enormous increase in the actual policy output of courts, legislatures, and administrative agencies in this period. Trying to synthesize the complex changes in “law-in-action” in the fiercely contested forums of turn-of-the-century America sometimes seems the historical-sociological equivalent of attempting to empty the sea with a slotted spoon. Like any good social scientist, Henretta responds to the impossibility of surveying the whole by taking a sample. Through a case-study of the ideas, political reforms, and legal opinions of Charles Evans Hughes, particularly as governor of New York and associate and chief justice of the U.S. Supreme Court, Henretta offers us in microcosm the story of the revolution (or rather several revolutions) in modern American governance.

At the crossroads of sociology and history, scholars trained in different disciplines write legal history while engaged in a protracted guerilla war that focuses upon notions of normativity. Law and legal development as objects of investigation evoke in the sociology of law the very essence of normativity: what is law if not codified norms, and thus itself subject, perhaps, to norms of development or at least rationality? Conversely, legal historians trained in history departments, who subscribe to the particularizing norms cherished by that discipline, consciously pride themselves on their power to resist the temptations of normativity and, perversely in the view of some, insist upon examining, even celebrating, the deviant, the limiting case, the “exception to the rule.” At different times, one approach or the other has dominated the scholarly literature. Notoriously, the Parsonianism of the 1950s and early 1960s elevated a neo-Weberian normativity to hegemony in legal history as well as in social theory; now the chastened decades at the end of the twentieth and beginning of the twenty-first centuries have tipped the balance within legal history to social history's focus on people, ideas, and experience on the margin, a focus so full of potential to erode general schemes of normative development.

I first want to thank all of the commentators for their insights on, and criticisms of, my article, as well as thank the editors of Law and History Review for the opportunity to respond. Rather than addressing each comment individually, I will structure my response along conceptual issues raised by all three, although the three comments each have different emphases. The two conceptual categories I use are “technical criticisms” and “historiographical criticisms.” Under the category of technical, I include criticisms of my characterization of neoclassical economics theory and my analysis of particular texts. The historiographical category encompasses substantive historical issues, including which authors should be included in my accounting of law and neo-classical economics as it relates to the reconfiguration of tort law theory. However, it also touches upon broader methodological issues of how one goes about doing intellectual history(ies).

Ariela Gross offers a thorough summary of points made in the two articles in this Forum, and integrates the articles well. As she notes, taken together, they provide an examination of the “other white” litigation strategy employed by Mexican American civil rights lawyers.

‘United to protect, not combined to injure.’ With these words in 1840 the United Society of Brushmakers, bore witness to a shift in the language of labor organizations. While community of experience and interests was always what held such groups together, there was uncertainty in the first part of the nineteenth century about what to call them. Their name in the statute book, dating back to the early eighteenth century, was ‘combination’. Some workmen proudly adopted the term: ‘by combination we shall succeed’ proclaimed the Amalgamated Society of Journeymen Cloggers. But ‘combination’ suffered by association with the ancient and pejorative word: ‘conspiracy’.

Beamish Murdoch (1800–76) was a young man when the first of the four volumes of his Epitome of the Laws of Nova-Scotia rolled off Joseph Howe's press at Halifax in the spring of 1832. He was an old man when the first installment of his three-volume History of Nova-Scotia, or Acadie appeared under James Barnes's imprint in the spring of 1865. These two works have received surprisingly disparate attention in the century since Murdoch's death. Today it is Murdoch the historian who is well known: No treatment of nineteenth-century Canadian historiography would omit reference to his History. Murdoch's contributions to literary and political life, as editor of the Acadian Magazine and member of the Nova Scotia House of Assembly from 1826 to 1830, have also attracted attention. Murdoch the lawyer and legal treatise-writer, by contrast, is virtually unknown in both professional and legal academic circles, even in his home province. Until recently the Epitome has attracted virtually no scholarly attention of any kind.

Two months after a mob in Alton, Illinois, killed abolitionist editor Elijah Lovejoy and destroyed his fourth press, a jury acquitted several assailants accused of rioting. By the time that the trials commenced in January 1838, the defenses had all been publicly aired; indeed, they had been rehearsed in print and at well-attended meetings long before the attack occurred. The mob's leaders had taken special care over several months to lay a legal foundation for their action; most notably, the Illinois attorney general led the pre-attack rhetorical justification and the post-attack courtroom defense. In the end, the jury found that resorting to forcible measures in such circumstances did not clearly fall outside the law.

In this comment on the special issue, Burton situates the essays in the scholarship of 1980s and 1990s as well as very recent scholarship on age of consent laws. She notes patterns — including processes of abstraction and transnational circulation — that shaped the cases gathered here. She points as well to the stakes of prioritizing gender and conjugality in scholarship on legal imperial regimes of all kinds.

This article analyzes the targets of papal policies on Christians' relations with non-(Roman)Christians contained in canon law's On Jews, Saracens, and Their Servants in a historical period that has attracted comparatively little attention: the mid-thirteenth to the late fifteenth century. It argues the inherent ambiguity of the normative discourse on “proper” relations with “infidels.” On the one hand, popes and canonists faithfully preserved a taxonomy of otherness inherited from the church's ancient past. On the other hand, they often reduced all difference to the pastoral distinction between flock and “infidels.” The conflation of non-Christians occurred in multiple ways: through the explicit extension of a specific policy's targets, overt canonistic discussion, the tacit application of the law to analogous situations, or its simplification for use in the confessional. As a result, a number of policies aimed originally at a specific target were applied to all non-Christians. In the course of the later Middle Ages, a whole group of policies meant to define Christians' proper relations with others became potentially applicable against all non-Christians. In the words of a widely, if regionally disseminated, penitential work, all that was said of the Jews applies to the Muslims and all that was said of heretics, applies to schismatics.

The preceding narrative is, in many ways, illustrative of the complex and contradictory phenomenon of infanticide in the district of Montreal during the first half of the nineteenth century. Although notices regarding the finding of infant bodies were frequent, discovery of twin infant bodies was not. This account was also unconventional in its tone: lacking the usual sterile narration typical of newspaper coverage of that topic, it cried out for the apprehension of the “perpetrator of so foul a deed.” Although the call for justice might have appeared strong, infanticide prosecutions were fairly rare and convictions rarer still. The prevalent view might have been to characterize the responsible party as an “unfeeling mother,” but the reality surrounding infanticide was altogether more complicated, yet fully as tragic.

In 1999, Chile became the last country in Latin America to grant full equality to all children regardless of the marital status of their parents. The Law of Filiation (Ley de Filiación) declared all children's right to know their origins, receive support from their progenitors, and participate equally in inheritance. Both supporters and critics hailed the law as transcendental, one of the most significant reforms to civil law since the promulgation of the Chilean Civil Code in 1855. On the day the law took effect, President Eduardo Frei was on hand at a civil registry office to greet the first parents arriving to solicit birth certificates, which no longer specified their children's natal status. He gave them a native quillay sapling, symbol of life and growth, adorned with a ribbon declaring, “Bienvenida, igualdad (Welcome, equality).” In succeeding months approximately 2,000,000 citizens, in a country of 15,000,000, would petition the offices of the civil registry for the new, nondiscriminatory birth certificates. One congresswoman hailed the bureaucratic flood as a “vindication of human dignity.”

Scholars have long recognized that the states’ authority to charter corporations bolstered their antitrust powers in ways that were not available to the federal government. Our paper contributes to this literature by focusing attention on the relevance for competition policy of lawsuits brought by minority shareholders against their own companies, especially lawsuits challenging voting trusts. Historically judges had been reluctant to intervene in corporations’ internal affairs and had been wary of the potential for opportunism in shareholders’ derivative suits. By the end of the nineteenth century, however, they had begun to revise their views and see shareholders as useful allies in the struggle against monopoly. Although the balance between judges’ suspicion of and support for shareholders’ activism shifted back and forth over time, in the end the lawsuits provoked state legislatures to strengthen antitrust policy by making devices like voting trusts unsuitable for purposes of economic concentration.

The criminal justice system of eighteenth- and nineteenth-century England has been likened to a corridor of connected rooms or stage sets. At each stage in the judicial process—from detection and apprehension through to trial, sentencing, and punishment—decisions were made that might remove the accused from the system entirely, or propel that person further along the process into a number of possible outcomes. That decision making (including the identity of the decision makers and the criteria upon which their decisions were based) has been the subject of much historical study. Less attention has been given to the individual experiences—the singular journeys—of the accused through this labyrinthine process. This is in large part because of the inherent evidential and methodological difficulties of reconstructing judicial pathways and the wider criminal lives of offenders. As Tim Hitchcock and Robert Shoemaker note, the archives of criminal justice were created to manage the bureaucracy of prosecution and punishment, not to reveal the criminal's navigation of that system. Tracing an individual offender's journey through the judicial process (and that person's life beyond) therefore entails piecing together fragments spread almost randomly across hundreds of thousands of pages.

The article examines the relationship between colonialism and international law by focusing on late nineteenth century debates surrounding the sovereignty of the “princely states” of colonial South Asia. The princely states were ruled by indigenous rulers and were not considered to be British territory, but remained subject to British “influence;” as a result, there were numerous controversies over their legal status. During the course of jurisdictional disputes, a variety of interested players - British politicians, colonial officials, international lawyers, rulers and advisors of princely states - engaged in debates over the idea of sovereignty to resolve questions of legal status, the extent of rights and powers, and to construct a political order that supported their interests and aspirations. I focus on legal texts written by British international lawyers and colonial officials as well as material relating to two jurisdictional disputes (one between the state of Travancore and the British Government and another between the state of Baroda and the British Government) to trace two versions of sovereignty that were articulated in late nineteenth century South Asia - unitary and divisible. In doing so, I argue that international law, and the doctrine of sovereignty in particular, became the shared language for participants to debate political problems and a key forum for the negotiation of political power.

In 1929, when Lorna Parsons tired of her four-year marriage to a London, Ontario tailor, she decided to seek a divorce—in Reno, Nevada. Even though Lorna's divorce was not generally recognized in Canada, obtaining it was important to her and to the hundreds, if not thousands, of Canadians who similarly sought United States divorces at a time when Canadian law was extremely restrictive. The choices of Parsons and her compatriots should be of interest to legal historians. They problematize the idea of national legal history by reminding us that law does not always remain in the tidy jurisdictional containers constructed by legal authorities and academics. National boundaries are more porous, and the nature of law itself more fluid, than we often admit.

In eighteenth-century England the rule of law was “the central legitimizing ideology, displacing the religious authority and sanctions of previous centuries.” Arising out of struggles between the monarchy, Parliament, and the courts, the rule of law sought to protect individual liberty and private property by placing constraints on arbitrary authority. The ruling class used the rule of law ideology to enhance their power, but it also acted as a check on that power. All citizens from the monarch to the poorest citizen became bound by the rule of law and could settle their disputes in the courts presided over by judges, who were independent of manipulation.

Historians and legal theorists have suggested a range of sometimes complementary, sometimes contradictory reasons to explain why judges, prosecutors, and other officials of the German administration of justice proved willing both to persecute the various enemies of the Nazi state and to tolerate the many extralegal murders and lesser brutalities of other organs of the regime. One line of interpretation, dominant until the late 1960s, stressed the importance of the tradition of legal positivism. Believing themselves bound to the letter of the law, courts and prosecutors obeyed politically and racially repressive laws without asking moral questions. An alternative and opposing explanation emphasizes instead the justice administration's willingness to stretch the letter of the law to conform to “spontaneous popular sentiments of right.”

On October 3, 1881, William Henry Rawle, the distinguished Philadelphia lawyer and scholar, addressed students at the University of Pennsylvania Law School hoping to illustrate, ‘in a very general and elementary way,’ the differences between the growth of English and early Pennsylvania jurisprudence. ‘It would have been more interesting and more broadly useful,’ Rawle apologized to his audience, ‘if the attempt could have been extended to embrace the other colonies which afterwards became the United States, for there would have been not only the contrast between the mother country and her colonies, but the contrast between the colonies themselves.’ Rawle was confident that such an examination would have revealed how ‘in some cases, one colony followed or imitated another in its alteration of the law which each had brought over, and how, in others, the law was changed in one colony to suit its needs, all unconscious of similar changes in another.’ ‘Unhappily,’ Rawle explained, ‘this must be the History of the Future for the materials have as yet been sparingly given to the world.’

On June 29, 1789, Zephaniah Turner of Charles County, Maryland, wrote to President George Washington and observed: