The legal history of the western Canadian frontier has received renewed attention in recent years. Much of the work readdresses the question of “law and order,” challenging older assumptions about Canada's orderly frontier culture—orderly particularly in contrast to the United States’ violent settlement of the west. At issue is not just a revision of whether violence occurred on the Canadian frontier but a fundamental reinterpretation of what the concepts of “law” and “order” had really meant. Indeed, conflict between legal cultures has become a major theme as historians attempt to rewrite the history of the Canadian west. They understand that this conflict—whether violent or not—shaped the formation of Canada's legal culture before 1870. Methodological prescriptions for writing this type of history have emphasized the need for historians to widen their base of sources, particularly to exploit “nonlegal” sources (such as diaries, journals, and letters), and to consider the workings of what Lawrence Friedman has called the “cultural” component of a legal system: what suits were brought to court, what notions came into play there, what expectations people brought with them. Important studies on the colonial settlement of British Columbia in the nineteenth century have focused on the relationships between the Hudson's Bay Company, colonists, and Natives to demonstrate that conflict over resources and competing definitions of liberalism and law often shaped legal discourse. These rich accounts have, among other things, called into question the idea of an orderly, peaceful Canadian frontier. They have also provided a much more complex picture of the interactions between Native and European, and the uses of law and the legal system by settlers, Company men, and Aboriginals.

In both the United States and Western Europe in the mid-nineteenth century, forensic physicians engaged in bitter jurisdictional disputes with members of well-established legal professions, within the context of long-standing judicial institutions. In Russia, by contrast, the emergent medical and legal professions—both critical of the autocracy and state institutions in which they worked—joined forces in their attempts to fundamentally transform the autocratic system and its judicial institutions, based on claims of technical and professional expertise. As such, the development of forensic-medical expertise took a path that differed from the Western model. In Russia, forensic physicians reacted to and influenced the evolution of bureaucratic state structures. Consequently, medical professionals sought to increase—rather than minimize—their role within the state's legal system in order to transform an otherwise arbitrary judicial process along the lines of “scientific rationality” and “objectivity.”

In the first half of the nineteenth century, a model of legal education called “legal science” became prominent in American universities. The idea of teaching law as a science was not new in American education. In 1823 Timothy Dwight wrote that Tapping Reeve, at Litchfield, taught law “as a science, and not merely nor principally as a mechanical business; nor as a collection of loose independent fragments, but as a regular well-compacted system.” Dwight, however, used “science” in its older sense of an organized body of knowledge rather than in its emergent sense as a method characteristic of the study of nature. Similarly, James Kent and Joseph Story, Francis Hilliard, and Silas Jones all thought of themselves as approaching law as a science, but what they meant was that law was an outgrowth of the moral sciences.

Shortly after 3 P.M. on February 27, 1888, Eddie Dwyer, one of the young employees at Greene's Boot Heel Factory in Chicago, began to clear empty sacks out of a closet in the rear of the factory so that coal could be loaded into the room. After pulling out roughly five sacks, Eddie called out that there seemed to be something else in the closet. Investigation established that the something else was the body of another employee, fourteen-year-old Maggie Gaughan, who had been missing all day and apparently had been hacked to death with the hatchet found beneath her body. Suspicion quickly centered on the factory foreman, a seventeen-year-old African American named Zephyr Davis, who was away from the factory on an errand at the time the body was discovered. That suspicion became certainty when Davis did not return from the errand, driven away, as he later admitted, by the crowds he saw gathered outside of Greene's when he returned.

In 1804 Leonard De Manneville, a poor French emigrant to England, forcibly entered his wealthy but estranged wife's house, wrenched his eight-month-old daughter from her mother's breast, and absconded with the naked child in an open carriage in inclement weather. When Mrs. De Manneville applied to King's Bench for a writ of habeas corpus, Lord Ellenborough affirmed what he claimed was the well-known rule—that a father was entitled by law to complete custody and control over the children of a marriage and could even prohibit all access by a mother to her children. Frustrated by the law courts, Mrs. De Manneville turned to the self-proclaimed champion of the oppressed, the equity courts, only to find that equity would not interfere with a father's right to custody unless the child had property and was in immediate danger of life and limb. Lord Eldon agreed that “the law is clear that the custody of a child, of whatever age, belongs to the father.” Because Mrs. De Manneville refused to sign over property in her separate estate or execute a will in his favor, her angry husband threatened to prohibit his wife from ever seeing the child again and even to remove the child to France. The law supported his right to carry out his threats.

Although it is well known that the criminal law's administration in nineteenth-century England altered decisively, little important change has been noted in the substantive criminal law. Yet change there was, but produced less through legislation (as was much administrative change) or even appeals court rulings than through everyday criminal justice practice. In particular, the effective meanings of legal terms central to the prosecution of homicide—terms such as provocation, intention, and insanity—were in motion during the nineteenth century as part of a broader redefining and reimagining of liability and responsibility. To grasp these often subtle shifts of meaning, we must look to the sites in which they occurred, the most important of which were the courtrooms of the assize courts, where the most serious offenses were tried.

Christopher Columbus Langdell (1826–1906) was perhaps the most influential figure in the history of legal education in the United States. He shaped the modern law school by introducing a number of significant reforms during his tenure as dean of Harvard Law School (HLS) from 1870 to 1895. Indeed, Langdell may well be the most influential figure in the history of American professional education because he established at HLS, with the help of President Charles W. Eliot, the model for twentieth-century professional schools. His innovations—such as minimum academic standards for admission to degree candidacy, a graded and sequential curriculum, minimum academic standards for continuation in a degree program, a professorial career track for faculty members, and the transformation of the library from a textbook repository into a scholarly resource—became the norm to which leading law schools, medical schools, and, finally, schools of other professions in the twentieth century aspired. Among these changes, none is more closely associated with Langdell than the introduction of case method teaching.

Danaya Wright's analysis of English child custody law is thoughtful and thought provoking. Through an excursion deep into English legal history, she not only contextualizes the De Manneville case but also convincingly demonstrates that child custody has long been contested and that those contests have always contained an incendiary mix of policies and practices. Wright's article documents that the key elements of custody conflicts—property, children's needs, and paternal and maternal rights and claims—have distinct and collective histories and that both defy easy analysis. In doing so, her essay makes it clear that these cases have always been difficult because they involve changing and clashing interests and because common law tribunals are the setting for their definition and application. Consequently, her essay is a compelling example of the benefits of locating a case in its particular place and time.

In the early modern era, the business of England's criminal courts was founded upon charges brought and prosecuted by private individuals. And, as the English realized, private prosecutors posed a problem: how could the English ensure that private individuals would spend their own time and their own money in prosecuting an offender who had committed an offense against the peace of the realm? Parliament's solution was to proffer the carrot: sixteenth-century statute decreed that his prosecution of the thief was, in itself, action sufficient for the owner of stolen goods to recover those goods, while from 1692, statutes offered rewards to successful prosecutors of highway robbers, burglars, coiners, and other specified offenders. In contrast, England's magistrates wielded the stick, binding a plaintiff bringing an accusation of felony to prosecute an indictment against the alleged felon. As a result, private prosecutors of major offenses were both bribed and compelled to prosecute. Private prosecutors of more minor offenses were neither bribed nor compelled to prosecute, and yet they did, nonetheless, prosecute indictments. Why?

Wright's article has two themes running through it: a discussion of the meaning of De Manneville and a history of custody in England from medieval times onward set against historians' theories of family development. Comment on her article then is best divided into two parts. I begin with her wide-ranging history, for here she makes an indisputable contribution to women's history that needs only notice and emphasis.

The origins of trial by jury have been the subject of an extensive debate. The traditional approach to the creation of the “palladium of liberty” saw the jurors as lay judges and located their origins in the lay judges of Anglo-Saxon England, continuing through the survival of the “ancient constitution.” An alternative approach, that of Heinrich Brunner, found wide acceptance from the end of the last century and until recently. Brunner detected the origins of the jury in fiscal inquiries imposed by strong monarchs, reversing the constitutional politics of the older view. At present, the wheel has turned back toward judicial character and origins in general early medieval practice. The purpose of this article is to take a new look at the issue by approaching it from a different angle: the requirement that jurors should come de vicineto, from the locality. This approach has produced the following observations.

The amount of ink spilled in consideration of the life, thought, accomplishments, and legacy of Christopher Columbus Langdell is eloquent testimony to the critical role he plays in the self-image of the American law teaching profession. It is both wonderful and astounding, therefore, to find that critical primary sources remained unread and unused at the very end of the twentieth century. Now that Bruce Kimball has brought them to light, we have a more complete view of the man and his thought, one that, not surprisingly, reveals to us someone quite different from the cruelly and crudely caricatured inventor of those twin devices for stifling young minds, the case and Socratic methods.

When historians focus on an influential figure, they often do one of two things: either create a biographical portrait of the person, or explain the contribution that the person has made to the development of ideas or institutions. In the case of Langdell, most writers have chosen the latter course, at least partly out of a conviction that the man himself was simply not very interesting.

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.

I am grateful to Eileen Spring and Michael Grossberg for their thoughtful comments on a study that has occupied my life for the past five years, and which has finally been produced in a more detailed form as my dissertation. Unfortunately, many of their comments point to gaps, in the best interests standard and comparisons with U.S. law for instance, that are taken up in the longer study. But if I could put my entire dissertation into a single sentence, it would be that a history of English custody law reveals profoundly different commitments on the part of judges to protecting mother's rights and to recognizing some form of a best interests test as social conditions changed, and that the patriarchal moorings of custody law remain with us today as we try to solve the deeply problematic issues raised for a legal system that still pits parental rights against children's welfare. Grossberg and Spring both point to the issue of judicial agency that I grapple with in my article and I will briefly address a few points on that topic. Then, rather than address their comments individually, I would prefer to suggest some of the conclusions I draw in the larger study and make connections to what is presented here.

As one who has suggested in print that Christopher Columbus Langdell was a loony, I am singularly pleased that Bruce Kimball has so carefully demonstrated that Kit was a regular guy just trying to teach his classes and learn some law. But this observation seems to me to be not particularly relevant to the debate about Langdell that I have mostly watched, but occasionally commented on. I shall try to recreate that debate as best I can, to show where it stands, and so, to identify where an understanding of Langdell's teaching places us.