It is a pleasure to comment on Nancy MacLean's hugely important book Freedom is Not Enough: The Opening of the American Workplace as an example of what I might call “bringing the law back in” to the history of the civil rights movement. A generation ago, the idea that law needed to be introduced into this history would have seemed nonsensical. At that time, law provided one of the central touchstones in the historical narrative of the struggle for racial equality in American life. Scholarship in this area built on C. Vann Woodward's pioneering work on the rise of Jim Crow, which itself was written shortly after Woodward's participation in the Brown v. Board of Education litigation. The dominant narrative began with the legal construction of Jim Crow in the late nineteenth century and continued with the founding of the NAACP. Other actors came along at various points in the story, prominent among them New Deal–era racial liberals, World War II–era activists, midcentury social scientists, Southern civil rights leaders and movements, and eventually black power. The end point was marked by the litigation and legislative victories of the 1950s and '60s, which finally wrote back into law what had been taken away by segregationist white Southerners and a compliant Supreme Court in the late nineteenth century. The implicit methodological take on law was that state and federal statutes, as well as court decisions, provided an important impetus, or at the very least a validation, for racial change—first for white Southerners as they created the Jim Crow legal regime and later for segregation's opponents as they reinscribed racial equality onto the core narrative of American life.

Those who work with the papyri or stone inscriptions from the ancient world frequently are faced with incomplete texts. Papyrologists or epigraphers will attempt to fill in the missing parts of the text, relying on their knowledge of what similar documents say. Sometimes a later find will provide a missing piece. Experience with such finds has been that an expert reconstruction normally will get the basic sense of the document right, but rarely gets the exact wording right when anything more than a few letters needs to be filled in.

Most court opinions are like actors: the older they get, the less people pay attention to them. For instance, the case immediately after Pierson v. Post in volume 3 of Caines's Reports is called Hollingsworth v. Napier. It was an important case in its day, much more important than Pierson v. Post, because it involved a recurring question of commercial law: what rights, if any, did a seller retain in goods stored in a public warehouse after he had delivered a bill of sale to the buyer? Hollingsworth went on to be cited in forty court opinions distributed fairly evenly through the 1870s, but then its career was over. It was cited twice in the 1880s, once in 1892, and never again.

I so appreciate Professor Mack's generous comments on Freedom Is Not Enough—and even more his critical engagement with it. It's an author's dream to have a leading scholar in a related field read with such care and insight, and I am very grateful for this opportunity to converse about the intriguing issues he has raised. I first encountered some of Ken's articles about civil rights lawyering before Brown after Freedom Is Not Enough was in press, and I thought then that my discussion of the earlier history would have been enhanced by them because his portrayal was so rich while our perspectives on the relationship between law and activism were so congruent. Now, reading his comments on the work as published, I wish I had studied law with him! His challenges would have made it a better book.

Unlike Professors Fernandez, Banner, and Donahue, I am not a legal historian; like them, however, I am much interested in the comings and goings of the famous old case about the fox. It figures significantly in my course on property and in my co-authored book on the subject. The background of the case is noted in the book and will be updated in the next edition to take account of Fernandez's discovery of the hitherto lost judgment roll in the case. Her find yields many facts, but, in my judgment, virtually no information. Facts are necessary to information, but not sufficient. A fact without purpose is useless; coupled with purpose, it becomes information. The information itself might be trivial, as it is in trivia games. Suppose you are playing a game, a trivia game, where stating the right fact wins you points. Suppose the name of William Blackstone's tailor was Jonas Maybird, and this is a fact you happen to know. Suppose you are asked, What was the name of William Blackstone's tailor? You answer correctly and win points. Outside the game, the name of Blackstone's tailor is just a fact; inside the game, it is information. Change the game to a scholarly one concerned with illuminating Blackstone's Commentaries on the Laws of England, and we are back to the name of Blackstone's tailor being just a worthless fact. For purposes of understanding Blackstone, I presume that to know the name of his tailor is to know a fact that carries no information; it has no purpose in the enterprise. Change the game again, to a study of famous tailors in eighteenth-century England, and then once again the Maybird-Blackstone connection is not just a fact, but a piece of information. So it all depends on the game.