Lawyers have long been depicted as having a conflicted relationship to that modern style of contextual thought we call “history.” Their efforts to think about law have been alternately lauded for contributing to, and criticized for falling short of, a full-fledged historical consciousness.

One of the key principles of the modern legal state (Rechtsstaat) is the right of all citizens to seek judicial protection against unlawful acts of government officials. It stems from the fundamental principle of the rule of law that asserts that all citizens, including state officials, are equal before the law and have the right to a fair trial. Within this legal framework a distinct field of law, “administrative justice,” governs public litigation against state officials. Its domain of jurisdiction reflects complex philosophical and legal distinctions between the public and private spheres in the modern state. As legal scholars and philosophers continuously redefine the boundary between the public and private spheres, the prerogatives of government officials over the rights of private citizens continue to evolve. The key questions in the debate are as follows. Should the state guarantee an undisputed precedence of citizens’ rights over administration or should it protect its officials from widespread litigation and therefore grant them a certain degree of immunity? Should ordinary courts and laws decide disputes between government officials and private individuals, or should the state provide separate norms, judges, and procedures for administrative litigation? Should punishment for misuse of administrative power be equal to that of the breach of civil or criminal laws? Who and to what extent should be made liable for any damages incurred through misuse of administrative power?

In 1871, former slave Lettie Marshall sued the estate of B. G. Marshall, her former master, arguing that she was entitled to farm two hundred acres of his land in Fort Bend County, Texas. Her claim was based on a “homestead exemption” provision of the Texas Constitution, which exempted the homestead of a “family” from “forced sale for debts” and vested continued occupancy rights in surviving “family” members after the death of the family head. After Emancipation, Marshall and her family had become sharecroppers on B. G. Marshall's estate and continued to farm the land until his death. At trial, Marshall portrayed herself as B. G. Marshall's “confidential servant” whom he treated “like she was one of the family.” As proof that their bond transcended a mere contractual relationship, she noted that he had entrusted her with overseeing a “squad of eight or ten hands,” and that upon occasion she “lent him money” and even “lived in the same house with Marshall, who was a cripple, and … waited on him, ” when her legal status no longer obliged her to do so. Not only did she fulfill “all of the duties and relations to him of mother, sister, and daughter,” but Lettie Marshall, her husband, and their descendents were the only named beneficiaries of his will.

Between 1650 and 1750, the Northern Spanish bishopric of Calahorra and La Calzada adjudicated eight suits against allegedly impotent wives and one case against a castrated woman.1 These suits were marital, not criminal, and usually entailed a husband accusing his wife of being impotent. They are particularly valuable for the historian of sex and gender because these cases occurred at the local level, among rural Spaniards, and in an ordinary bishop's court. These local church court trials allow us to avoid the rarified cultural world of political and religious élites.2 They offer, instead, a glimpse of the sexual concerns of ordinary wives and husbands and demonstrate the daily practices of local surgeons, doctors, and lawyers. These professionals were, I argue, primarily influenced by the pragmatic day-to-day worries of the communities they lived in. The influences of cultural and intellectual centers in Madrid or rome, Valladolid or Salamanca were negligible when compared to the issues at hand in court. These court documents reveal sexual interests related to reproduction rather than salvation, magic rather than honor, and social order rather than the strictures of canon law.

In the last two decades or so, questions of law have moved back to the top of the research agenda in work on medieval English manor courts. This marks a shift away from the 1960s to the mid-1980s, when the historians on both sides of the Atlantic who established the court roll as the pre-eminent source for everyday life in the countryside sought inspiration from the social sciences rather than legal history. The court roll studies published in that period generated much methodological debate about use of these records to study peasants and their communities. Nonetheless, in most of those studies, consideration of the manor court as a legal forum first and foremost, or of the implications of reliance on a legal source to study social and economic history, was secondary to analysis of the data in the rolls. More recently, though, scholars have started once again to look at the court roll from the perspective adopted by Maitland in his Select Pleas in Manorial and Other Seigniorial Courts. These historians are concerned with defining and characterizing “customary law”: that is, with the nature and principles of the law applied in manor courts; the extent to which those principles were malleable or unchanging; the relationship between the rulings pronounced in the manor courts and those recorded in other areas of the legal system, most importantly the common law courts; and the machinery of manor courts with respect to procedures, personnel, and record keeping.

Between 1936 and 1939, American workers staged some 583 sit-down strikes of at least one day's duration. In the latter year, the United States Supreme Court issued its opinion in NLRB v. Fansteel Metallurgical Corporation, resolving the official legal status of the tactic. Fansteel made it clear not only that a state could punish sit-downers for violating trespass laws, but also that an employer could lawfully discharge them—even if that employer had itself provoked the sit-down by committing unfair labor practices in violation of the National Labor Relations Act.

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.

“Liberalism! Not in all history has a word been so wrenched away from its true meaning and dragged through the gutter of defilement,” the Wilsonian Progressive George Creel protested angrily in a memoir of 1947: “Where it once stood for the dignity of man, … it now stands for the obliteration of individualism at the lands of a ruthless, all-powerful state.” For nearly fifty years, most scholars have given little heed to the rage vented by Creel and other critics of New Deal “liberalism.” Amidst the expansion of the American welfare state, the outlook and ideas of the anti-New Dealers seemed at best naively outdated and at worst positively pernicious. History—in the form of an increasingly massive, paternalist, neo-mercantilist, bureaucratic state—seemed to be firmly on the side of those who advocated the expansion of federal authority over more aspects of American life.

On February 15, 1886, in a New York City courtroom, Bridget Grady placed her mark on an affidavit charging Bernard Reilly with rape. The twenty-six-year-old servant told the magistrate that in July of the previous year, while her employer was in the country, Reilly had called on her at the east 38th Street home where she worked. he had been Bridget's “steady company” for about three years and had “several times told her that if he married at all, he would marry her.” During the visit he made what Bridget described as unexpected, unprecedented “advances” to her. When she resisted, Reilly seized her, and they fell to the floor. Bridget, being, as she put it, a “proper and virtuous woman,” became so frightened at Reilly's conduct that she immediately lost consciousness. While Bridget was in that state, Reilly had sexual intercourse with her, as a result of which Bridget became pregnant. once she regained consciousness, Bridget “began to cry, and declared she would kill herself; he took her upon his lap and tried to pacify her, telling her at that time that if anything came of it he would marry her.” As a result of that promise, Bridget took no action against Reilly. Seven months later, however, still unmarried, and due to give birth to a child in two months, Bridget had come to the court to make a complaint.

James Somerset was taken from Africa as a slave to the Americas in 1749. He was sold in Virginia to Charles Steuart, a Scottish merchant and slave trader in Norfolk who served after 1765 as a high-ranking British customs official. In 1769, Steuart took Somerset with him to England. After two years in England, Somerset escaped from Steuart, but was recaptured. Steuart decided to sell Somerset back into slavery in Jamaica, and, in late November 1771, Somerset was bound in chains on a ship on the Thames, the Ann and Mary, awaiting shipment.

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.

Charles Evans Hughes's career ran along the fault lines of most of the major political events of his lifetime. Muckraking catapulted him to fame. He governed New York during four key years of the Progressive era as an effective administrator and earnest reformer. He stayed with the Republican Party when the Progressives bolted in 1912. He ran for the presidency in 1916 but missed the prize, albeit by a narrower electoral college margin than any other contender until the very end of the century. He was instrumental in negotiating the international naval disarmament accords of 1921–22, landmarks of progressive internationalism in their day that fell under sharp criticism a decade later. He presided over the U.S. Supreme Court during the key years of the New Deal, though in most histories of the 1930s Court he comes across as something of an also-ran behind its more memorable shapers: Brandeis, Cardozo, Sutherland, Black, even Roberts. Hard to pin to any achievement or distinct idea, slipping in and out of the dramatic movements of his day, he was the kind of man who makes history but easily falls out of the history books.

George Van Cleve places Somerset's Case squarely in the middle of Britain's imperial history. It belongs there. After clarifying the “narrow” holding in the case—that Charles Stewart could not forcibly remove James Somerset from England—Van Cleve argues that Chief Justice Mansfield and his Court of King's Bench “creat[ed] a new legal framework for slavery” and “did so quite knowingly at the price of undercutting the legal, economic and moral basis of slavery as an institution throughout the Atlantic Empire.” This argument that Somerset's Case transformed slavery law throughout the British Empire rests on three claims. First, Van Cleve views Somerset's Case as an imperial conflict of laws case because it involved a conflict between the laws of two royal territories, England and Virginia. Second, Van Cleve contends that Mansfield intended the decision and his remarks accompanying it about the positive law foundation of slavery to have abolitionist effects. Finally, these two points are related: Mansfield drew a distinction “between English and colonial law on slavery” in order to undermine slavery across the empire.

He told the court that twenty-year-old Gloria abandoned their children and the home they had made together in Quetzaltenango in order to move to Guatemala City and live with another man.

She told the court that forty-two-year-old Julio had refused to divorce his wife and marry her as he had promised and that she had made sure the children were safe with their father before she departed for the city to pursue a better life for herself.

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!

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.

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.