In most studies of the early twentieth-century emergence of a modern conception of law in America, the formation of the American Law Institute in 1923 is not highlighted. One might point to academic literature advocating a “sociological” approach to judicial decision making, or a behavioralist approach to the work of judges, or the reorganization of law school casebooks to include “functional” legal categories or social science materials. One might unpack the work of an early twentieth-century lawyer, or even a judge, and find a jurisprudential perspective that could be labeled modernist. Finally, one might note the appearance of litigation strategies—encapsulated in the term “Brandeis brief”—designed to incorporate into case decisions arguments that legal rules should reflect their social context. But one would not associate the arrival of modernist jurisprudence in America with the early history of an organization of elite lawyers and judges whose stated purpose was to commission “restatements” of black-letter common law rules.

At the December, 1945, annual meeting of the Association of American Law Schools, William Draper Lewis, who had directed the American Law Institute since its founding, made a startling confession about the founding of the ALI. Everett Fraser, then president of the AALS, had enticed Lewis to speak by complimenting the former University of Pennsylvania Law School dean: “People [at the AALS] talked of a Juristic Center. In the American Law Institute you made it a reality.” There was some truth to this—Lewis was the driving force behind the creation of the ALI. Fraser nevertheless mischaracterized Lewis's achievement. According to an unpublished, recently discovered typescript of Lewis's informal remarks, Lewis chided Fraser, “you know that there is not a word of truth in what [you] said… [because in] doing what I could to establish the American Law Institute, I did not create but rather for the time being killed any attempt to establish a legal center.” Lewis conceded many members of the AALS in the early 1920s “desired to start a Judicial Center conceived of as a place where law professors could meet, usually in the summer, discuss law, carry on legal researches and write legal books.” Lewis claimed he had torpedoed that plan; he had something very different in mind for the ALI “Elihu Root and [I] used this [AALS Committee on a Juristic Center] to summon a group of prominent lawyers to meet with the members of the Committee, and that by the work of that larger group grew the American Law Institute and its Restatement of the Law… it is not true that the American Law Institute is a Juristic Center. It is what Mr. Root and I intended it to be: an organization to carry out specific legal projects for the constructive improvement of the law and its administration.”

Gloria Peralta and Julio Díaz (not their real names) started living together, sort of, early in 1963, in Quetzaltenango, Guatemala. She was single. He was married to another woman. He was thirty-six. She was fourteen. In Gloria's words, she and Julio “lived together maritally” for several years and produced two children. But Julio neither divorced nor left his wife. Instead, he split time between the household containing his wife and three children and the one containing his concubine (Gloria) and two children.

Within the truly prodigious outpouring of self-consciously “post-colonial” scholarship on colonial India since 1980, it is little exaggeration to state that the ontology of colonialism has been figured as difference: its production, its management, its transgression, and its obtrusion. This is the case whether the scholar's disciplinary affiliation has been anthropology, history, literary studies, politics, or sociology and whether or not the scholar has been formally associated with the now-famous Subaltern Studies series. This is also the case whether the specific subject at hand has been caste or gender, nationalism or communalism, peasants or workers, state or non-state practices, elite or non-elite discourses, formal or informal knowledges, histories or memories.

Celebrations of the career of Willard Hurst tend to concentrate, quite understandably, on his scholarship in legal history. Most of those who now read and comment on his works are professional legal historians, and they tend to read and define Hurst according to that professional identification. This article takes a different approach, concentrating on Hurst's own role in the more general politics of legal scholarship. Hurst was not content with making a mark in legal history. He sought to challenge the legal establishment. We see the legacy of his efforts in the development of the field of law and social science, institutionalized in the mid 1960s in the Law and Society Association (LSA). Therefore, my focus is on the sociology and politics of scholarship rather than on intellectual history. I will not examine the relationship of Hurst's particular works to those who came before or after him, nor will I go through the exercise of suggesting what was good or lasting or useful about his work for present purposes.

On 16 June 1837, at a little after six o'clock in the morning, a train of cars carrying lumber and gravel and crowded with twenty or more Irish track laborers and other workmen left the Boston depot of the Boston & Worcester Railroad Corporation bound for Worcester. About four miles out, just after the train had passed the City Mills and was nearing the Brookline road, a wheel on one of the cars broke. The train was thrown from the tracks. Two men were killed and several others severely injured.

Among the injured was a man named Gilham Barnes, engaged by the Corporation about two weeks before to carry out maintenance work on several bridges between Boston and Worcester. On the previous day, Barnes, his brother Luther, and one of the men who worked with them had ridden the same train (an unscheduled track maintenance train known to the corporation as the “gravel” train) as far as the Arsenal bridge, which carried the railroad over the Watertown road in Brighton, to deliver materials and tools. On the morning of the sixteenth, Barnes sent the others by wagon via the Mill Dam toll road to begin work on the Arsenal bridge while he made arrangements with the conductor of the gravel train for additional materials to be carried to the Worcester bridge. Barnes intended, it would seem, to ride the gravel train as far as the Arsenal bridge where he would jump off and join his workmen. “We saw the train going out just after we paid [the] toll,” Luther Barnes later recounted. “Then near City Mills we saw shingles &c all about. I saw my brother running towards us. He waved his hat twice. And he held up his arm and I saw blood and flesh.”

I have two aims in producing this paper. First, I wish to contribute to the general understanding of how and why law develops and explain the evolution of some very familiar legal institutions. Second, I wish to add to our knowledge of the history of Roman law, by producing a radically different view of the development of contracts, that is, I believe, both consistent with surviving textual data and plausible with regard to human behavior.

When the State of Israel was established and the Supreme Court inaugurated in Jerusalem, dozens of Christian clerics implored President Smoira to allow the Supreme Court, as the successor of the Great Sanhedrin, the supreme Jewish court during the time of Roman rule, to retry Jesus Christ and thereby rectify the injustice caused to him.

One might have thought that after nearly 250 years there would be nothing left to discuss about what Lord Mansfield did or did not intend to say when he delivered his ruling in Steuart v. Somerset. Yet, as Van Cleve's essay shows us, Mansfield's words continue to provide fertile ground for scholarly investigation. Sadly, this is almost certainly because Somerset continues to resonate in contemporary American society for reasons that are as much about perceptions of racism and black heritage as about the plight of Somerset himself.

This Article brings a Tamil-speaking Chettiar widow and a Dutch scholar of international law - two seemingly disparate characters - together through a footnote. Set against the background of decolonizing South and Southeast Asia in the aftermath of World War Two, it follows the judgment in a little-known suit for recovery of debt, filed at a district-level civil court in Madras in British India, which escaped the attention of local legal practitioners, but made its way into an international law treatise compiled and written in Utrecht, twenty years later. Instead of using it to trace how South Asian judiciaries interpreted international law, the Article looks at why claims to international law were made by ordinary litigants like Chettiar women in everyday cases like debt settlements, and how they became “evidence” of state practice for international law. These intertwined itineraries of law, that take place against the Japanese occupation of Burma and the Dutch East Indies and the postwar reconstruction efforts in Rangoon, Madras and Batavia, show how jurisdictional claims made by ordinary litigants form an underappreciated archive for histories of international law. In talking about the creation and circulation of legal knowledges, this Article argues that this involves thinking about and writing from footnotes, postscripts and marginalia - and the lives that are intertwined in them.

When Milsom enrolled Maitland among the British Academy's Master-Minds, he drew attention to a number of rather strange things about him. Other than Rhys and Keynes, unfairly advantaged in so far as they are commemorated by whole lecture series, Maitland is the sole Academy Fellow to have been the subject of one lecture, let alone (as is now the case) of two. He is also one of very few historians. Alongside Maitland are ranked only Thucydides, Bede, Gibbon, Kemble, Carlyle, Burckhardt, and Bémont—an assortment that would have bemused him as much as the eminence he was thus assigned. But, oddest of all, his repute is of a wholly different order from that of his fellow founders of the Academy, or of the historians it has dignified. It is not just that he is consulted and recycled, unlike Cunningham or Pollock (his joint venture with Maitland apart). They, like Gibbon, Bede, and the rest, are now a chapter in historiography, historical phenomena themselves requiring explanation. We may seek information, even (in some cases) entertainment from them. We do not debate with them as we argue with Maitland. That is what Milsom went on to do. It was, of course, a far greater compliment than that conveyed by the title of Academy Master-Mind. It is also one that would beyond question have been more congenial to Maitland himself. He would have been appalled by his canonization, as Milsom has repeatedly stressed. To adumbrate a motif that will recur in these remarks, he had a Millite faith in the creativity of dissent. The honor done him was to treat a scholar who had been in his Canary Islands grave for the best part of a century as if he were a contemporary colleague.

This paper starts from charters. It may even be regarded as an attempt to trace and explain the rise and development of express warranty clauses in English private documents, an exercise in diplomatic. The main stimulus behind the investigation is, however, something quite different: the challenge of understanding English law before the advent of a common law. I want my explanations to be consistent not merely with the social relations that produced the charters, but also with the mental terms in which they were thought out and interpreted, their legal context.

The Russo–Japanese War (1904–1905), recently commemorated with several international conference volumes, is identified by a majority of contributors as the first modern, global war. In making such a judgment, these scholars note its scale, its nationalism, its colonialism and geopolitical repercussions. What is surprising, however, is that no one has remarked on another significance: it was the first war in which both belligerents pledged to adhere to the international laws of war. In that regard, the Russo–Japanese War marks a culmination of the tireless international diplomacy to secure legal limitations on warfare in the nineteenth century. In 1904, both Russia and Japan justified their operations according to international law, for the benefit of an international audience who had five years earlier celebrated some progress with the signing of The Hague Conventions in 1899.

Colonialism was always an uncertain process. Even the imposition of colonial law was fraught with incomplete application, resistance, and the reinterpretation of European categories in indigenous terms. Magistrates often operated with fragmentary and inaccurate understandings of local cultural practices and rules, seeking to rectify this disadvantage by relying on local experts yet unable to adjust their decisions according to the class and kin interests of these experts. Staffing was often limited, local linguistic knowledge lacking, and a sociological understanding of how custom operated according to social status and shared knowledge of individuals often missing. Colonial officials faced the problem of limited capacity and large populations to manage and govern. Indeed, recognition of distinct regimes of personal law was one solution to the dilemma of the need to control populations at the lowest possible cost. Even though retrospective histories tend to emphasize the transformative power of colonial law, as this collection shows so well, at the time the practices were far more ambiguously linked to the power to change. Instead, they created spaces for contestation and agency. However, these wonderfully detailed and careful studies also show that despite creative uses of the courts, women often did not succeed in legally challenging the marriages that bound them.

Social and legal historians have long been attracted to well-publicized court cases as primary sources for illustrating the feelings and attitudes of particular historical settings. Such cases are frequently extensively documented, and the detail of their reporting often seems to provide unique insight into the thoughts, attitudes, and even the speech of a past not otherwise accessible. Use of the “famous case” as an image of its time is tempting and can be rewarding if its limitations are recognized. By definition, the “famous case” involves extraordinary events and/or extraordinary personages. Cases of this nature cannot therefore be taken as representative of all that they portray.

“Take the census; make the country. Let's do both together!” “Hacer censos, es hacer Patria. Ayúdenos a hacerlos” cajoled one bold, bright poster in the days before May 15, 1930 when census takers dispersed across Mexico to count its inhabitants. Other placards similarly played on multiple meanings for the verb “hacer”—to make or to do: “Taking a census will make the country …” “Hagamos censos y haremos patria…” At the same time, within that collective nation-building, a census jingle affirmed individual importance: “A census is a count. He who is numbered, counts. And he who counts, succeeds.” “Un censo es una cuenta. El que censa, cuenta. Y el que cuenta, acierta.” In government propaganda, the 1930 census made Mexico and drew its inhabitants into the national fold, an ongoing, delicate project after the fratricide of the 1910 Revolution.

At least once during his tenure, the royal governor of colonial New York received a list of questions from London. The Board of Trade, which recommended colonial policy to the king's Privy Council, sought information about the province's geography, population, trade, and legal regime. This last question often came first: “What is the constitution of the Government?” The responses, from the first British governor in 1669 to the last before the Revolution, described the imperial arrangement as a hierarchy of power flowing directly from the Crown. In 1738, for example, the lieutenant governor wrote that “The constitution is such as his Majesty by his commission to his Governour directs, whereby the Governour with the Council and assembly are empowered to pass laws not repugnant to the laws of England.” A decade later, Governor George Clinton replied more insightfully, with the help of his closest advisor, Cadwallader Colden: “The constitution of this Government is founded on His Majesty's Commission & Instructions to his Governor. But the assembly have made such Encroachments on his Majesty's Prerogative by their having the power of the purse that they in effect assume the whole executive powers into their own hands.”

The action of covenant before the reign of Edward III is a subject of considerable mystery. By the time that the Year Books come to the fore in the last decade of the thirteenth century, it has become a relatively scarce form of action in the royal courts, and consequently our sources of information are fairly scanty; in addition, by this time, the restrictions which limited the potential of covenant as a general contractual remedy are already firmly in evidence, with the result that the development of these restrictions is not easily visible. There is, though, a considerable amount of additional material in the rolls of the Justices in Eyre in the reign of Edward I, and in some of the multifarious tracts on pleading which proliferated in the later years of the thirteenth century and which have remained for the most part in manuscripts which have not been systematically examined by legal historians.

Since the last century canon-legal historians and, more recently, social historians have examined a variety of questions concerning the social and legal aspects of marriage in the later medieval period. Particular significance has been given to the synthesis by Alexander III of existing sacramental and legal opinion concerning marriage in the twelfth century. His synthesis produced a doctrine in which marriage was viewed as a purely consensual union. Any two legally entitled adults could contract marriage by words of mutual consent. A twofold distinction existed in the nature and intent of these words. On the one hand, a binding and immediately effective union was created through the exchange of words of present consent (per verba de praesenti). Neither publicity, nor church solemnization, nor indeed consummation added anything to the validity and permanence of such a contract. On the other hand, a promise to marry was expressed by words of future consent (per verba de futuro), which might be terminated by the agreement of the parties or by a subsequent de praesenti contract. If, however, a de futuro contract was followed by intercourse, it took upon itself the legal mantle of a de praesenti contract, and what was initially only a promise to marry was transformed into a binding marriage.