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 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.

The current historical consensus is that English common law was somewhat confused, but that coerced servitude was legal in England before 1772, and certainly in its empire, where English law on slavery did not reach, because it was “beyond the line” of English justice. The common law is characterized by an effort to see continuity and consistency, and historians (despite our natural desire to track change) often look for those patterns too. Such efforts to provide a consistent overview of an England that was free and colonies that created slavery on their own—have obscured the vibrant struggle over slavery within the English judicial system—the common law—over more than a century. Not only did the common law on slavery change profoundly during the seventeenth and eighteenth centuries: the common law became an instrument of crown policy. It did so within a federal empire, wherein colonial legal norms had to adhere, in crucial ways, to that common law. English high court judges thus provided the legal foundation for an imperial common law of slavery that allowed people to be deemed absolute property. That definition of people as property was closely connected to absolutism, both in theory and practice. In theory the absolute power of kings over subjects was connected to that of masters over slaves. In practice, the crown's use of the courts to create laws without parliamentary consent (to bypass parliament) also increased crown revenue and thus their independence from parliamentary control. These powerful legal mechanisms made it possible to “recover” enslaved people as assets for debts, a legal definition that was essential for a market in people to function sucessfully. This history reveals the absolutist character of early capitalism, and the extent to which the character of capitalist development depends on the legal rules that define markets and justice.

Taking a chiefly quantitative approach to Jewish women's litigation at the Exchequer of the Jews between in the period 1219–81, this article represents the first exploration of Jewish women before the law in medieval England. It contends that, far from enjoying a level of ‘legal sexual equality’ not available to Christian women, Anglo-Jewish women at the Exchequer of the Jews in fact shared many of their experiences of (secular) law and justice with their Christian counterparts. This contention is possible in part because of the greater interest, over the last decade, in pre-modern European women's litigation and the realisation that Christian women of all classes were able to navigate their way around judicial systems in ways that confounded any theoretical legal disadvantages they may have faced. The article variously examines the number of Jewish women litigating at the Exchequer of the Jews, their roles in court and representation in the records, and the types of litigation in which they took part. It demonstrates that if we are ever to seek a holistic view of the operation of legal jurisdictions in medieval England, our knowledge must include the experiences of Anglo-Jewish women.

Debates over constitutional originalism almost always center on meaning. Questions are typically focused, concentrated on the meaning of particular constitutional clauses at the moment of their inception: the Commerce Clause in 1787, the Second Amendment in 1791, or the Fourteenth Amendment in 1868. Given the prevalence of these investigations, theoretical and methodological debates over how to recover original constitutional meaning are concentrated on either the kind of meaning that should be targeted—original public meaning, original intended meaning, or original legal meaning—or how that meaning can be recovered—through conventional legal reasoning, corpus linguistics, or thick reconstruction of historical context. Regardless, virtually all originalist theories of meaning uncritically presuppose the nature of the object possessing that meaning: they take as given what the Constitution itself is and, by implication, what it has always been. Although it might not be clear what the Constitution originally meant, it is straightforward what the original Constitution originally was. It just is the Constitution.

In a trio of cases handed down on the same day in 1950, the Supreme Court denied constitutional free speech protection to civil rights picketing and labor picketing. The civil rights case, Hughes v. Superior Court, has often been portrayed as an early test case about affirmative action, but it originated in repression of an alliance of radical labor and civil rights activists exasperated by the legislature's repeated failure to enact fair employment law. Seeking a people's law like the labor general strikers and sit-downers of the 1930s and the civil rights sit-inners of the 1960s, they insisted that the true meaning of free speech was the right to speak truth to power. Courts and Congress forced the labor movement to abandon direct action even as it became the defining feature of the civil rights movement. The free speech rights consciousness they invoked challenged the prevailing conservative conception of rights and law. Direct action was a form of legal argument, a subaltern law of solidarity. It was not, as civil rights protest is often portrayed, a form of civil disobedience. What happened during and after the case reveals how the subaltern law and formal law labor and civil rights began to diverge, along with the legal histories of the movements.

But here are four fragments that will possibly play a part in a longer work: I begin with a sketch of what it is to do legal history today, in the wake of the enormous growth and development of the field of legal history in legal education, over the past forty years. I continue with an extended examination of the answers Willard Hurst, the founder of the modern discipline of legal history, gave more than fifty-five years ago to the question, what does legal history do. Finally, in the two final fragments, I spin off from Hurst to begin the work of suggesting an understanding of legal history less tied to legal thought and legal advocacy. How to practice a legal history that is something apart from legal scholarship.

How did English and Welsh medical practitioners enter the common-law courtroom as expert witnesses, and how can one assess their influence on crime-scene investigations and courtroom testimony? Witnesses offering specialist opinions were hardly novel in the eighteenth-century London courtroom, but their participation grew at such a pace that, by the early 1900s, they had become regular participants in police investigation and criminal trials. Even as their presence grew, their evolution was not a singular event: defense lawyers, judges, and juries were experiencing qualitative changes in their roles in the adjudication of crime just as prison surgeons, asylum superintendents, and hospital medical officers entered the witness box. It is the singular achievement of this important study that Katherine D. Watson has isolated critical moments in the growth of medicine's role while embedding the practitioners’ rise within the shifting dynamics of criminal prosecution in early modern England.

Gienapp's critical move is to shift our attention from semantics to ontology. What is the Constitution? How was it conceived to exist in 1787, and how has that conception changed over time? These questions must be squarely addressed, he insists, before asking what the Constitution means. Does this whole text-focused enterprise rest on a mistake? Drawing on a wealth of primary sources and modern scholarship, Gienapp makes a strong and interesting case that it does. Boiled down, his main argument is that the founders were predominantly natural lawyers, and thus conceived of law quite differently than most originalists typically do.

In 2019, William Twining and Harry Arthurs, academic lawyers whose careers peaked during the second half of the twentieth century, published memoirs revealing the central motivations and forces underlying their intellectual endeavor. Their books are a source of great nourishment, provoking readers to think deeply about the central challenges of the discipline of law and what might be done to bring it closer to realizing its full potential. They also reveal what it was like to be a leading academic who pushed disciplinary boundaries, challenging central disciplinary norms repeatedly, over many decades, while the universities and societies surrounding them grew in size and enjoyed increased prosperity and while academics—legal and otherwise—were cast in changing lights. During this time, writing and teaching about the nature and purposes of law moved from the desks of a few well-known figures into the hands of an increasingly diverse mass. This review considers and compares the contributions of these memoirs to the history of legal scholars. It also examines the relevance of each book to their primary readership: twenty-first century academic lawyers.

Christine Desan's Making Money: Coin, Currency, and the Coming of Capitalism provides an authoritative answer to a fundamental question about medieval English money that has puzzled a few scholars, but that has been largely ignored by most: were medieval payments normally weighed or counted? The same question can be expressed differently as: were payments made by weight or by tale at face value; or again, was the value of money determined by its intrinsic content or by royal decree? But why might this curious distinction between counting payments and weighing them matter?