Ariela J. Gross is generous in praising research accomplished and helpful in suggesting routes for future investigation. In response to such a model of constructive criticism, I can only plead no contest to the main charge that, while examining changes in legal strategy and judicial rhetoric in school segregation litigation, I neglected to explore important aspects of Mexican Americans' own understanding and actual experiences of “other whiteness.” As a result, the “ordinary” people in my tale seem to lack agency even in their own cases. This is an unfortunate but frequent limitation of historical studies of litigation, not least because—despite the presence in the courtroom of a plaintiff or defendant—trial records most clearly reveal the professional concerns of lawyers and judges. Even transcribed testimony (which is not always available) may tell us more about the lawyer's strategy and the judge's mood than a witness's reality. Gross rightly asks the question directly that I (admittedly) avoided entirely: “did the legal regime of whiteness have any larger cultural significance?” Put another way, I understand this question to be: did the fine legal distinctions hammered out by Mexican American attorneys and Anglo American judges matter at all to the ordinary people—parents, workers, and defendants—whether Mexican or Anglo? I think that the answer is yes, gradations of whiteness mattered even to the lay public. Yet, it seems clear as well that whiteness was experienced differently by members of various economic and social classes of Mexican Texans.

William LaPiana has led the way in searching for, identifying, and examining new evidence about Langdell, so it is gratifying to learn that he is informed by my revisions of Langdell's bibliography, teaching schedule, and career chronology. LaPiana also affirms the significance of Langdell's early lectures on partnership and commercial paper, adding informative points both about Langdell's views and their possible influence on others. However, the reconstructions of discussions from Langdell's classes are speculative, in LaPiana's judgment, and to some extent superfluous, because “one can certainly concede the point [that the Dean was not ‘dogmatic, rigid, and closeminded‘] even without resorting to the reconstructed discussions.”

The history of institutions is plagued by the biological analogy. We speak so frequently of the life and death, the birth, growth, maturity, and decline, of institutions that we forget that these words are being used metaphorically. Of course, the human beings who create and use the institutions have a birth and a death, but human institutions have only a start and a stop (frequently a far less precise one than those words might imply), and there is no reason why the periods between the start and stop need parallel those of living organisms.

This is an essay about an incident that took place in the Province of Massachusetts Bay during the period 1772–1774, an incident that I will call the Affair of the Royal Salary. Close relative of the Stamp Act Crisis, The Boston Tea Party, even the Boston Massacre, the Affair of the Royal Salary similarly involved a clash between the forces of popular government and those of imperial government; like its better known cousins it is part of the story of the coming of the American Revolution in Massachusetts. In addition, since the Salary around which the Affair developed was intended for judges, the Affair of the Royal Salary is part of the history of judicial independence in Massachusetts.

One of the challenges in writing about the history of American law and political economy is determining the proper amount of historical context necessary to make sense of past institutional and organizational change. Where to begin and end a historical narrative and how much to include about the broader social, cultural, political, and economic conditions of a particular place and time are, of course, questions that accompany any attempt to reconstruct the past. How one addresses these issues invariably shapes the motives and intentions that can be ascribed to historical figures. In their eloquent and thoughtful comments, Christopher Capozzola and Michael Bernstein have urged me to think more carefully about these issues, about where my story begins and ends, about the broader social, political, and material circumstances that animated World War I state-building, and about the seemingly apolitical ideas and actions of the Treasury lawyers who are the center of “Lawyers, Guns, and Public Moneys.”

The crop lien was more than a strange fruit of emancipation, a hard-fought compromise, or a pragmatic choice. Its legal logic rested on several generations’ experience with capitalist social relations in the antebellum North, where intense pressures on land use in urban cores and their agricultural hinterlands promoted contestation and experimentation in the ancient body of landlord–tenant law. Northerners designed the crop lien as a way to disentangle contract from property: to strip the lease of its common law guarantee of exclusive possession and shift the burden onto tenants to bargain for it.1

Near the end of the nineteenth century, English scholar James Bryce criticized Western railroad land grants as “often improvident” and as giving “rise to endless lobbying and intrigue, first to secure them, then to keep them from being declared forfeited in respect of some breach of the conditions imposed by Congress on the company.” Bryce also observed the extent to which grants of land to railroads allowed the beneficiary companies to exercise great power not only through their role as carriers of people and commerce, but also through their role as large landowners. This, he noted, brought them “yet another source of wealth and power” and “brought them into intimate and often perilously delicate relations with leading politicians.” From the perspective of the so-called “railroad tycoons” and their financial backers, the land grants became sources of wealth and power independent of and sometimes contrary to the interests of the railroad corporations themselves as carriers. Whereas Congress intended the railroad land grants to serve as a means to the end of railroad construction and the settlement of the federal government's expansive public domain, the railroads came to see them as an end in themselves: as independent sources of wealth and power.

I applaud Scott's contributions. In this comment, I would like to take them up and push them further. Doing so points to a very different understanding of people's relationship to law and the legal system in the nineteenth century than is now current in much of the historiography. That perspective, I argue, can transform our understanding of the law and legal change in the Civil War era and in the nineteenth century more broadly.

The criminal trials of twenty-seven women processed for the crimes of abortion and infanticide in the state of Puebla, Mexico during the nineteenth century reveal both community and state perspectives about contemporary notions of gender, motherhood, and honor. This paper argues that while there was an increase in both denunciations and convictions for these crimes in the nineteenth century, women's peers acted as reluctant participants in their incrimination. Both local and higher court justices convicted women more frequently for abortion and infanticide than they had done in the colonial era, but nonetheless sentenced them with considerable leniency. Some of the explanation for their leniency lay in court officials' view that indigenous women, who constituted a considerable percentage of the defendants, were too “rustic” or “ignorant” to be held responsible for their actions. The cases also reveal, however, that courts and communities shared the view that any means–including committing violent crimes or hiding pregnancies–justified the ends of protecting plebeian women's reputation of sexual honor.

Some of the founding fathers of Israel's legal system were lawyers educated in Polish law schools. What was the impact of this background on their legal thought? There are few explicit references to Polish law in Israeli legal texts. However, indirectly, legal and constitutional ideas taken from Polish law did appear in Israeli law. This article focuses on the legal writing of four Israeli lawyers in the period immediately after Israel's independence in 1948, showing how Polish law was used by these lawyers as a source for occasional precedents, for critiquing Israeli law (dominated by English law), and, mostly, for constitutional precedents.

The relatively greater impact of Polish law in the constitutional realm can be attributed to the fact that Poland (like other new countries established in the interwar period in the periphery of western Europe, such as Ireland) offered Israeli lawyers constitutional models that were both more modern, and more relevant to the specific circumstances of the new state, where religion played an important role in defining the identity of the nation. The history of the impact of Polish law on Israeli law can thus serve as an example of interwar constitutional innovation in the European periphery, and its later impact on post-World War II constitutional law.

This is an invited comment on Holly Brewer's LHR article, “Creating a Common Law of Slavery for England and its New World Empire.”

This article explores the response of the postcolonial state to the question of widow immolation – sati. It demonstrates that the conversation on the practice of sati at the high point of Hindu law reform in the 1950s reflected the simultaneous pressures on the new democracy to establish rule of law while also accommodating the renewed reverence for tradition and religious custom in an independent nation state. Distinct from the colonial response to sati that treated women as either “helpless and pathetic” or “brave and valiant,” post-independence police records describe women committing sati mostly as “insane” or “not in their senses,” and yet chiefly responsible for their actions. The article contrasts administrative and parliamentary narratives of the crime. Local belief in miracles surrounding the performance of sati not only obscured the experience of the woman's suffering but also made collection of evidence in such a case particularly difficult. This rendered convictions of the abettors of such “painless suicide by insane women” weaker. Legal interventions in sati eventually prompted administrative responses to shift from emphasizing the “uncontrollability” of the spectacle to deeming the spectacle a necessary precondition in distinguishing a sati from suicide.

This paper suggests the use of cultural expertise as encompassing concept that can account for the natural cultural competence developed in Iran. In earlier times, Zoroastrian law was first based on religious norms and the primary theological division between sins and offenses. Iranians had to adapt to different legal systems: customary law, religious law and secular law. Priests, jurists, judges, officials and translators were the main cultural “experts” and mediators between the people and the normative institutions. The introduction of imami legal theories and jurisprudence in the 16th century together with the reinforcement of the secular political power engaged Iran in a stabilized judicial context ruled by shiʿi scholars, qāzis and mujtahids. In 1919, as a consequence of the new French inspired Constitution, the Ministry of Justice, in order to train a new generation of judges, magistrates and justice personnel, set up a law school. Professors, who can be considered as cultural experts, contributed to the acculturation process initiated in the judicial system. Examples of his continuous struggle are recounted in Ostad Elahi's (1895-1974) memoirs, relating the difficulty Iranians had to accept the change, both cultural and psychological, initiated by the modernization and westernization program put into operation (1911-1935).

At the Rhode Island Historical Society there is a copy of an amazing journal, kept by Henry Marchant (1741–1796) during his eleven-month sojourn in England and Scotland as a colonial agent for Rhode Island. He was a practicing lawyer who had the first-hand opportunity to observe law as it operated on both sides of the Atlantic in the eighteenth century. He was not the only lawyer to do so, but his background as a trial lawyer made his perceptions differ substantially from those of the many colonial law students who received their legal educations in England. Dozens of young colonists ventured from home to London for the legal training and social polish twelve terms at the Inns of Court could provide; their legal notebooks record activities at the Westminster courts as students saw them, learning the law one case at a time, before they returned to the colonies and went into practice. A few more experienced lawyers, such as John Adams, likewise had the opportunity to visit Westminster Hall, but they typically went once or twice, and did not return.

The printing press had the potential to break the common lawyers' monopoly of legal knowledge. Early-modern England witnessed debates about the desirability of wider dissemination of legal learning. Previous scholarship has identified the long-term trend to increased printing of the law in English, focusing on ideological debates between lawyers and other key actors. Only selected texts and types of material were made available to the wider public before the 1620s. From the later 1620s a wider range of material which had hitherto existed only in manuscript was printed in English. Knowledge of the common law became more commonly available. This article identifies this crucial moment and explains the change. Rather than the ideological questions which are discussed in the existing literature, more mundane causes are identified for the legal profession's reduced control over the transmission of legal knowledge: a shift to the use of English by lawyers themselves, and a loss of professional control over manuscripts. The paper therefore demonstrates an important methodological point: understanding and assessing the history of legal printing requires engagement with older methods of transmitting the law.

Immigration histories typically endeavor to describe and hold a nation–state accountable not only for the laws and policies by which it admits some immigrants, but also for those by which it refuses, excludes, or deports other immigrants. This article explores immigration to Mexico and to the United States with attention to its implications for the status of persons, and also for the conventional historical narratives in each country. The article focuses on three techniques of governance that each country has engaged in regard to immigration. These techniques include: 1) the assignment of nationality as a singular attribute of personhood; 2) the use of demonstrable and documentable characteristics as criteria of admission; and 3) centralized registration procedures to monitor and control the immigrant population. The techniques are analyzed together because of their concurrent emergence in each country during the late nineteenth and twentieth centuries. The techniques are also complementary. They form a set that, although not unique to the United States and Mexico, nevertheless illustrates parallels and an interplay between the two countries, and, more broadly, illustrates how immigration presents a common predicament across different times, places, and forms of government.

Legal fictions are often used to lubricate the machinery of jurisprudence. One of these is the idea that laws created to restrict the liberty of some individuals or class of individuals in order to protect the public good are in effect outcomes of tradeoffs between abstract universals, namely liberty and the public good. A three way relationship is imagined in which law, liberty, and the public good are in creative tension. The role of the law in this three way tension is further imagined to be the mediator where it serves to calibrate this tension in ways that are also assumed to legitimate the intended outcomes in practice. In particular, where the outcome is the prevention of harm, then laws that curtail liberty must be seen not just as measures for the public good, but rather as necessitated by the potential effects of the very harm itself. The justification for this view is often traced back to the views of nineteenth century political philosopher John Stuart Mill, who famously expressed this in terms that have become known as the “harm principle”; specifically that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”