In the wake of the Civil War, Columbia Law School professor Francis Lieber, architect of some of the Lincoln administration's most important legal strategies, set out to write a definitive text on martial law and the emergency power. Lieber's text would have summed up his view of the legal lessons of the Civil War. Lieber died in 1872, leaving an unfinished manuscript to his son, Guido Norman Lieber, soon to become the Judge Advocate General of the Union Army. Norman Lieber worked on the manuscript but never finished it. Hidden deep in the younger Lieber's papers in the National Archives, the manuscript summarizes a strand of thinking about constitutional emergencies that first emerged in the controversies over slavery, then animated Emancipation and the broader legal strategy of the Lincoln White House, before running headlong into the post-war backlash signaled by the Supreme Court's 1866 decision in Ex Parte Milligan. Building on debates over martial law in Anglo-American empire, the Liebers’ thinking embraced a forceful but constrained approach that made a cabined form of necessity the central principle of emergency governance in the modern state.

Sixteen-year-old Acre resident Mustafa Naif, suspected of having sex with another man, stated before the police investigator on June 30, 1943, “I know Mustafa Zaharan and is my friend and mate, I used to love him and he used to love me, and that this man had a sexual intercourse with me twice with my consent and free will, because he loves me and I love him.”1 By the time of his trial, approximately a month later, Mustafa Naif must have realized this was the “wrong” story to tell. He recanted his statement and denied knowing Mustafa Zaharan or having anything to do with him. His denial might have been another manifestation of love, as an admission of guilt would have led to his friend's conviction on a sex offense. For his lover's sake, then, Mustafa Naif might have renounced his original romantic version. Indeed, his friend was acquitted as a result of the contradictory statements; however, Mustafa Naif was charged with perjury and was convicted after pleading guilty.

In the wake of the demolition of the Berlin Wall and the erection of the Maastricht Treaty, intense debate rages over all factors contributing to both unity and diversity in Europe. While issues circulating around markets, currency, and national sovereignty receive greater play in the media, the discussion of parallel issues of European legal unity has been more longstanding. The case can be made that Europe (with the exception of England) has long had a great degree of legal unity. The Roman civil law and the canon law of the church, with some texts of feudal law, became a common learned law, the ius commune, developed and disseminated in the universities in the Middle Ages. This written legal heritage spread from Italian schools, beginning with Bologna, and was “received” in Germany, France, Spain, and even Scotland in the course of the sixteenth century. It was displaced finally with nineteenth-century codifications of national law, which strove to enshrine the legislatively enunciated genius and uniqueness of the nation.

No term of the United States Supreme Court, in this century, has gone by without significant or dramatic cases. October Term, 1922 was no exception. The court was in transition. A new Chief Justice, William Howard Taft, had taken office in 1921; three justices retired in 1922. Late in the term, the court decided Adkins v. Children's Hospital. This was one of the cases which earned the Court a reputation for dark reaction; the Court voided a law which allowed the District of Columbia to fix minimum wages for women and children. In October Term, the Court also had one of its rare encounters with the constitutional aspects of eminent domain. The case was Pennsylvania Coal Co. v. Mahon. Oliver Wendell Holmes, Jr., wrote the opinion. This case too disappointed the left, and gave comfort to conservative interests.

What is a ‘federal question’? Section two of article three of the Constitution grants jurisdiction to federal courts over, among other items, ‘all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made … under their authority’. This has become generally known as the grant of ‘federal question’ jurisdiction. The present statute giving such jurisdiction to federal courts dates only from 1875; not only has it been restrictively construed, but existing federal schemes of benefits, rights, and regulations provide us with a familiar, pat, confining notion of the nature of federal questions. What sorts of matters might have been expected to constitute federal questions in 1787, when the Constitution was written, and when such schemes were not contemplated much less established?

The Rudolf Kastner trial was one of the three great scandals that rocked Israeli party politics in the 1950s (the others were the negotiations with Germany for Holocaust reparations and the so-called “Lavon affair”). Although Leora Bilsky describes it as an “almost forgotten trial,” it has not been forgotten by subsequent writers: it makes an important cameo appearance in Arendt's Eichmann in Jerusalem; it features prominently in Tom Segev's The Seventh Million (1991); Yehuda Bauer's Jews for Sale? (1994) takes pains to refute the charges against Kastner; and it inspired two novels—Amos Elon's Timetable (1980) and Neil Gordon's cerebral thriller The Sacrifice of Isaac (1995). But the legal opinions have never until now attracted the thought or analysis they warrant, and Bilsky deserves gratitude for remedying this omission. With admirable insight and ingenuity, Bilsky focuses on the construction of the legal opinions as a form of literature. Her reading of Judge Halevi's and Justice Agranat's opinions centers on the way in which law is driven by metaphor—in Halevi's case, the metaphor of contract; in Agranat's, the metaphor of administrative decision making. Her article is a major contribution to our understanding of the Kastner case and to the way that, in a situation of intense moral ambiguity, legal analysis can be predetermined by a choice of metaphors.

In December 1993, the Judicial Committee of the Privy Council ruled in Pratt and Morgan v. The Attorney General for Jamaica that excessive delay in the enforcement of death sentences—defined with some caveats as more than 5 years from the time of conviction to execution—was “inhuman” and therefore unconstitutional. The Judicial Committee also reversed earlier rulings in finding that the 5 year time frame for appeals should include those delays that resulted from legal proceedings initiated by prisoners themselves. The result was to clear death row cells across most of the British Caribbean, with the capital sentences of more than 100 condemned prisoners commuted in Jamaica alone. Pratt also ushered in a new era of Judicial Committee activism in Caribbean death penalty cases that resulted in a series of further safeguards against executions, including the abolition of mandatory death sentences. The cumulative effect of these judgments is that there has not been an execution in Jamaica since 1988, even though capital punishment remains legal and, amidst persistently high rates of violent crime across the region, political support for a resumption of hanging is strong.

In 1824, the American schooner Fox sailed into Charleston harbor with seasoned mariner and Rhode Island native Amos Daley on board. When officials boarded the ship, they interrogated the captain and crew before cuffing Daley and hauling him off to the Charleston jail, where he remained until the Fox was set to leave harbor. Daley's detainment occurred because 16 months earlier the South Carolina General Assembly had enacted a statute barring the entrance of all free people of color into the state. Unlike other antebellum state statutes limiting black immigration, this law extended further, stretching to include in its prohibition maritime laborers aboard temporarily docked, commercial vessels. This particular section of the law was passed on the assumption that such sailors inspired slave insurrection and thereby posed a direct threat to the safety and welfare of the citizenry. Over the course of the next four decades, the states of North Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas would join South Carolina in passing statutes, commonly referred to as the “Seamen Acts,” which limited the ingress of free black mariners. Amos Daley was only one of ~10,000 sailors directly affected by these particularly Southern regulations.

Reports of the Strange Death of Liberal America are greatly exaggerated. James Henretta's essay of that title offers a shrewd and insightful portrait of Charles Evans Hughes. But the liberalism whose death Henretta reports did not die. And the “statist,” “centralization,” “economic planning,” and broad “social insurance” minded liberalism he reports as prevailing did not prevail. From a certain lofty altitude (and rueful attitude), all “big,” “modern” “welfare states” look the same. That is Henretta's viewpoint. His wonderfully suggestive comparative framework has as one of its premises that America and England proceeded along the administrative-and-welfare-state-building path at different paces but arrived at the same destination. For me, a comparison of the law and politics, processes and outcomes of twentieth-century state-building in the U.S. and England prompts different conclusions. There were conspicuous differences between the New Deal state that was fashioned in 1930s and '40s America and the welfare state England created in those decades. More interestingly, the ideology and institutional contours of this new American state were deeply influenced by that ambivalent (and lawyerly) brand of American liberalism Henretta rightly attributes to figures such as Hughes and Roscoe Pound—poised between “progressive” commitments to social reform, social provision, and administrative-state-building, on the one hand, and older, “classical” liberal commitments to limited (and decentralized, dual federalist) government and the primacy of courts and common law and traditional legal and constitutional niceties, on the other. My notion is that this “transitional” and “forgotten” liberalism and its champions won more important battles than they lost against their “statist” rivals. A “strange death,” indeed!

Prigg v. Pennsylvania (1842), has puzzled scholars for generations. Law professor David Currie has called it “perplexing.” It is a case over which scholars have come to a wide array of conflicting conclusions.

This article examines the Ottoman extension of rule and jurisdiction to the Beersheba frontier of southern Palestine. As part of its Tanzimat reform policies, the Ottoman administration founded the new town and sub-district of Beersheba in 1900, and sought to implement a legal reform. Deviating from the formal law that requires the founding of a civil-nizamiye court, the Ottoman instituted a form of legal exception and authorized the local administrative council to sit as a judicial forum and for its Bedouin Shaykh members to serve as judges. Studies of Ottoman Beersheba have typically focused on Bedouin autonomy and tribal law. The few studies that discussed the judicial order, have mistakenly assumed the Ottoman institution of a “tribal court,” and its persistence thereafter. Interestingly, what began as a simple grant of legal exception, justified by civilizational discourses of ignorance and savagery, grew into a judicial complexity. Very soon jurisdictional tensions arose, integrating questions across various webs of legal orders, jurisdictions, and political networks that shaped the reform in Beersheba and beyond. In following various legal disputes from Beersheba to Gaza, Jerusalem, and Istanbul, the article challenges some of the prevailing research categories, dichotomies, and approaches in the study of Ottoman legal history and tribal societies, including the concept of ‘legal pluralism.’

In the mid-1700s, the town of Mompox flourished in the Spanish viceroyalty of the New Kingdom of Granada, today part of the Republic of Colombia. Built on the banks of the northern Magdalena River, an important waterway connecting the Andean interior with the Caribbean Sea, Mompox constantly buzzed with travelers and trade alike. Mompox was home to a community of merchants who profited handsomely from both legal trade and smuggling, their networks reaching places as far away as Lima in Peru and Cádiz in Spain. These merchants were frequently also slaveholders and landowners. On haciendas outside of town, slaves cultivated the land and tended large herds of cattle. They gathered wood and resins and hunted for game and jaguars (panthera onca) that preyed on livestock. Along with free people of color, slaves also worked as artisans, journeymen, and oarsmen on boats transporting goods and people up and down the river (see Figure 1).

Though I corresponded with Willard Hurst over the last twenty-five years, I met him only once. Hurst did not often attend events or meetings outside of Madison, but in 1971 he appeared at a legal history conference at the Harvard Law School to herald the renaissance in the field of American legal history, a renewal in many ways directly traceable to Hurst's own work and influence. I had just graduated from law school and was beginning my apprenticeship as a legal historian. With great trepidation I walked up to him to introduce myself at a reception on the first day of the conference. I was surprised when he seemed to recognize my name (I think a list of conference participants may have been circulated in advance), but even more astonished when he said, “Let's go find a quiet corner, I want to talk to you about your father.” My father, Samuel J. Konefsky, had died less than a year before, and Hurst's brief conversation with me was the first of the many kindnesses of his that I experienced.

Two generations of legal historians have debated the question of the reception and evolution of common law and equity in England and America by jurists of the seventeenth, eighteenth, and nineteenth centuries. Briefly, one school argues that jurists of these years employed a “doctrinal method” to discover, through deduction, the principles of the law in a particular case. Such a jurist, in the words of the late Lon Fuller, “does not consider that it is the primary function of judges or legal scholars to weigh the practical consequences of deciding a particular case one way or the other. Rather [he] regards them as having a purely deductive function. The starting point for the deciding of any case is to be found in certain premises dictated by the nature of law and legal relationships. Each relationship or transaction has its ‘essential nature.’”

This paper is an account of the development of marine insurance in Scotland. The topic has not been previously investigated by either legal or economic historians. While providing a general history of the development of insurance, this paper will also undertake three more specific tasks, (1) to increase knowledge about the use of marine insurance during this time, particularly during the period 1700–1750; (2) to explain why insurance was not commonly used by merchants during the seventeenth century; and (3) to correct one very serious and misleading error relating to the chronology of development.

We are living in an age of political turbulence, social division, and resistance. The resistance that formed in reaction to the election of Donald Trump styles itself a force to defend constitutional rights, democratic norms, and the rule of law in the United States. Perhaps the New Republic best explained its advent: the Resistance had been born of partisan—that is, Democratic—fury after “liberalism had been dealt its most stunning and consequential defeat in American history.” “For the first time in decades, liberalism has been infused with a sense of energy and purpose,” with millions of people devoted to a singular cause: resisting Trump.

Less than two years after the United States occupied New Mexico, Acoma Pueblo accused its neighbors in Laguna Pueblo of misappropriating a painting of Saint Joseph. The Indians of Acoma claimed that they had loaned the picture to the pueblo of Laguna for the purpose of celebrating Holy Week, but Laguna had subsequently refused to return it. The large oil painting on canvas, which portrayed the standing figure of Joseph holding the baby Jesus, was said to have been sent to New Mexico by Carlos II, king of Spain from 1665 to 1700. Both pueblos claimed rightful ownership of the picture, both said that missionaries with the early Spanish conquerors had brought them the oil painting from Spain, and both asserted that the painting was necessary for their religious worship. It was believed that the painting of Saint Joseph, or San José, as he was referred to throughout the legal documents, worked miracles for its possessor. Most important to the pueblos was the belief that the painting brought life-sustaining rain to the parched agricultural lands that provided their main source of food.

This article tries to answer two questions about the writ of covenant that have perplexed legal historians. Maitland noticed that the common law courts adopted a requirement that plaintiff produce a writing of the covenant under defendant's seal as proof of the covenant. When and why royal officials adopted this requirement continue to be the chief unanswered questions about covenant. Second, there is the matter of remedy. Some legal historians believe that the remedy in covenant changed from specific performance to damages. But what was the remedy in covenant? Did it change? If so, when and why did it change?

The essence of the contract of employment is the performance of service in exchange for wages. As such, labor assumes a commodity form—a capacity that is bought and sold in labor markets. But because labor cannot be separated from its bearer, and is not produced for the market, it has been widely recognized as a special or fictive commodity that has been the subject of a distinct legal regime. Historically, that distinct regime—here referred to as employment law—has served both disciplinary and protective functions. On the one hand, it assists employers to extract from the worker the value of the labor they have purchased, while on the other it protects workers against unacceptable exploitation. While these functions are a constant, the scope and techniques of legal discipline and protection vary over time and place, as does the balance between them, depending on such factors as the development of social relations of production, the balance of power between workers and employers, dominant ideologies, etc. In the fulfillment of these functions, law has encountered a series of recurring dilemmas that stem structurally from labor's special commodity status and socially and politically from conflicts between workers' and employers' interests.

John Locke worried that the common law was bad for business. Although he recognized the political importance of common law institutions such as juries, he also thought that the cumbersome procedures of English courts might hamper economic development in England and its colonies. The Fundamental Constitutions of Carolina, which Locke helped draft in 1669, tried to reconcile these competing political and economic concerns. Although the Constitutions guaranteed “Freemen” a right to trial by jury, the document also provided for specialized judges in port towns to “try cases belonging to [the] law-merchant.” These commercial judges would allow merchants to settle their disputes “as shall be most convenient for trade,” rather than by the expensive formality of the common law.