Legal centralization in British America was characterized by the passing of arbitration from the community level to the colonial courts. As a consequence, when the 1765 Stamp Act raised the cost of court business, colonists were at a loss for alternatives. This paper addresses the question of why, at this point, colonists did not return to earlier, non-state forms of arbitration. It offers an explanation by providing a detailed empirical study of an alternative American legal forum: the Philadelphia Quaker monthly meeting. While busy arbitrating disputes in the early colonial period, it declined from around 1720. Contrary to what might be expected, this decline was not the consequence of state efforts to marginalize competing institutions. Rather, the local Quaker population abandoned their community legal forum in favor of the public courts. This was likely due to the Quaker court's reliance on reputation-based instruments for enforcement. As Philadelphia's population grew, the meeting's practice of pressuring culprits into compliance through public shaming lost its edge. Accordingly, Friends moved their legal business to the public courts. The paper contributes to the debates on the legal pluralism of empires, the history of arbitration, and state formation in the Atlantic.

In the late 1960s and early 1970s, a small group of antiapartheid activists, led by the American Committee on Africa and chair of the House Subcommittee on Africa Rep. Charles Diggs Jr., launched a campaign against South African Airways' new flights into the United States. Using the legal and political strategies of the American civil rights movement, and the fragmentation of power within the American political system, activists tried to turn South African apartheid into an American civil rights problem that American government institutions could address. The strategy was indebted to the political and legal strategies of the civil rights movement, but framing demands around existing civil rights law necessarily limited what activists could ask for and what domestic institutions could provide. In practice, the campaign's successes were limited and legalistic; where domestic civil rights law directly conflicted with apartheid law, airlines could comply with the former without really challenging the latter. And the foreign policy context meant more failures than successes, as domestic legal institutions were reluctant to involve themselves with foreign policy concerns. Their successes and failures nonetheless tell us much about legal mobilization and institutional behavior in a period of globalization where sovereignty and jurisdictional lines were overlapping and conflicting.

In August 1849, outspoken proslavery Missouri Supreme Court Judge James H. Birch sued Unionist Senator Thomas Hart Benton of Missouri for slander because he had publicly accused Birch of having kept “his own negro wench” and whipped his wife because she had dared to complain about it. On first impression, the lurid accusation and resulting lawsuit might seem merely colorful window dressing for the virulent sectional politics of the late antebellum period. Benton's objectionable utterances certainly exemplify the verbal pyrotechnics that, after the Mexican War, often accompanied public debate over the question of whether African-American bondage was to extend across the continental United States. But the vituperation that gave rise to Birch v. Benton, in fact, marked the beginning of one of the most widely-publicized episodes in the struggle pitting the champion of Jacksonian democracy in the trans-Mississippi Southwest against a powerful cadre of proslavery leaders who sought to end his thirty-year career in the United States Senate. According to legal historian Gerald T. Dunne, the politicized nature of the case and its contentious appeal to the Missouri Supreme Court provided the critical catalyst for lawmakers in the state to amend its constitution in 1850 to replace lifetime tenure for judges with periodic voter choice. The landmark constitutional revision both instituted popular election of judges and shook up the composition of the proslavery high court, including the removal of Judge Birch.

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.

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.

Notebooks written by students at the Litchfield Law School are among the primary sources for understanding the influence of English law in this country. The notebooks provide rich documentation of how the common law and elements of English law were presented, explained, and compared with American law in a formal classroom setting during the Early Republic. The digitization project described here, the first large-scale digitization initiative undertaken at the Lillian Goldman Law Library at Yale Law School, with the cooperation of the Litchfield Historical Society, is intended to organize, describe, and analyze those notebooks with a web site containing a database, bibliography, inventory, and links to images. The Litchfield student notebook project was intended not only to create digital surrogates of important historical sources, but also to inform future digital legal history projects at the Lillian Goldman Law Library.

Over thirty years ago, Leonard Levy, building explicitly on suggestions first offered by Walter Nelles, and implicitly on observations made by Roscoe Pound, commented on the unusual conjunction of two decisions announced within weeks of each other in 1842 by Lemuel Shaw, Chief Justice of the Massachusetts Supreme Judicial Court. The cases, Farwell v. Boston & Worcester Railroad which helped create the fellow servant rule in the United States, and Commonwealth v. Hunt, which involved a prosecution for criminal conspiracy for organizing a labor union as a closed shop, seemed at odds. Hunt appeared to expand worker rights to collective action, while Farwell appeared to restrict worker rights to compensation from workplace injuries. Shaw's apparent protection of a worker's right to organize, “a pro-worker stance,” seemed to conflict with his refusal to recognize a worker's right to recover for an industrial accident in particular circumstances, “an anti-worker stance.” The question is obvious—how can these decisions be made compatible, or does their incompatibility have to be accepted with a shrug of the shoulders and a nod toward the evolutionary progress of the common law?

I am grateful to the editor of Law and History Review for the opportunity to respond to Professor Shlomo Slonim's article criticizing my interpretation of the formation of the Constitution. I know Professor Slonim personally from a visit I made over a decade ago to Hebrew University where he was a very gracious host. I know too that he is an earnest and meticulous scholar of the United States Constitution who has spent a great deal of energy refuting Charles Beard. So in this brief response I wish to treat his criticism with respect while at the same time I hope to show where I believe he is wrong or has misunderstood and misinterpreted me.

On May 17, 1853, a court sentenced Francis Prout of East Stonehouse, Devon, to six months' hard labor for receiving £1 15s. in stolen money. Prout's “lodger,” a Mary Ann Foss, had stood charged with the theft at the local quarter sessions, but during her trial she denounced Prout as a brothel keeper who profited from crimes committed in his house. With no real warning, Prout found himself tried and convicted. An even more alarming surprise followed a few days later, when the local authorities decided to pursue Prout's property. They invoked the ancient practice by which felons forfeited their possessions, claiming not just Prout's moveable goods, as was common, but also his ninety-nine-year leases on two local pubs and the profits from his freehold on a pub and houses in Plymouth. The latter constituted an unusual decision, in part because the inquisition necessary to seize the property would cost about £150, and in this case no interested party stepped forward to pay the fees. But as the chairman of the quarter sessions argued, Prout's property was “chiefly acquired by the wages of prostitution.” Underneath his talk of “fallen women” and “unfortunate creatures” lay a very modern concern with the illicit proceeds of criminal activity. In such a case, the chairman opined, the property in question should be forfeit.

Legal historians have had an ambivalent relationship with new technology. As students and spokespersons of the somewhat-stodgy legal past, our sympathies have predictably been with traditional methods of doing things rather than with the latest and greatest devices of our own age. In the twentieth century we have tended to champion writing and books more than radio, television, and computers. Today we may use new tools to help us create our scholarship and even to help us teach, but like most of our academic colleagues in law and in history we generally employ those tools as extensions of established media instead of exploiting their potential to deploy information and develop ideas in new ways.

Less than two years after Justice Harlan Fiske Stone reportedly advised Franklin Roosevelt's secretary of labor that “You can do anything under the taxing power,” the U.S. Supreme Court ruled in U.S. v. Butler that Congress had no authority to create a system whereby farmers would receive subsidies for limiting production, with the funds coming from a tax on basic commodities. While Stone, along with Brandeis and Cardozo, voted to uphold this feature of the Agricultural Adjustment Act, a majority led by Justice Owen J. Roberts declared that this particular scheme of taxing and spending interfered with the reserve powers of the states to control local manufacturing and agriculture. Roberts cited the great nationalist Joseph Story for the proposition that “the Constitution was, from its very origin, contemplated to be a frame of a national government, of special and enumerated powers, and not of general and unlimited powers.… A power to lay taxes for the common defence and general welfare of the United States is not in common sense a general power. It is limited to those objects. It cannot constitutionally transcend them.” The AAA was “a scheme for purchasing with federal funds submission to federal regulation of a subject reserved to the states. … If the Act before us is a proper exercise of the federal taxing power, evidently the regulation of all industry throughout the United States may be accomplished by similar exercise of the same power.”

In mid-1950s Britain two significant events occurred in respect of the doctrine of judicial neutrality in that country. In the first, the Lord Chancellor of the day, Lord Simonds, had refused permission for the experienced and well-known senior judge advocate, Lord Russell of Liverpool, to publish his sensational history of Nazi war crimes, The Scourge of the Swastika, so long as he (Russell) continued to hold judicial office. For Simonds was insistent that the judiciary must keep their counsel on virtually any matter outside the courtroom, a view shared both by his immediate Labour government predecessor, Lord Jowitt, and by his Conservative government successor, Lord Kilmuir. After a public standoff when neither side would give way, the deadlock was broken when Russell, rather than risk being sacked for disobedience, chose to resign his judicial office to a fanfare of publicity in the press and duly published his book shortly thereafter. Moreover, what lent the Russell confrontation an added edge was not just Simonds's complaint that the book could be perceived as anti-German and, therefore, as political. It was that publication at that time could have a damaging effect upon Britain's policy of rehabilitating West Germany within the Western alliance.

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.