Showing papers in "Law and History Review in 1999"
TL;DR: In this paper, the authors discuss the law and order in the realm of theory and the rule of law in an Athenian society, and discuss the legal regulation of sexual violence.
Abstract: Preface Part I. The Realm of Theory: 1. Law and order 2. Theorising Athenian society: the problem of stability 3. Theorising Athenian society: the rule of law Part II. The Realm of the Courts: 4. Rhetoric, litigation and the values of an agonistic society 5. Litigation as feud 6. Violence and litigation 7. Hubris and the legal regulation of sexual violence 8. Litigation and the family Conclusion: litigation, democracy and the courts Bibliographical essay Bibliography Index.
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73 citations
TL;DR: In the first half of the nineteenth century, a model of legal education called legal science became prominent in American universities as mentioned in this paper and the idea of teaching law as a science was not new in American education.
Abstract: 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.
56 citations
TL;DR: In particular, the effective meanings of legal terms central to the prosecution of homicide were in motion during the nineteenth century as part of a broader redefining and reimagining of liability and responsibility as discussed by the authors.
Abstract: 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.
52 citations
TL;DR: The origins of trial by jury have been the subject of an extensive debate as discussed by the authors, and 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".
Abstract: 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.
36 citations
TL;DR: The legal and social implications of Hardwicke's Marriage Act, passed in 1753, were of the utmost importance in England as discussed by the authors, and it was one case in particular, a Scottish action, which had been appealed to the House of Lords, that precipitated the Act.
Abstract: The legal and social implications of Hardwicke's Marriage Act, passed in 1753, were of the utmost importance in England. From 1754 onwards a marriage, in order to be recognized as legal, had to be carried out in a very specific, circumscribed manner, ending a period during which “irregular” or clandestine marriages proliferated. Although Lord Hardwicke had been agitating for such legislation for years, it was one case in particular, a Scottish action, which had been appealed to the House of Lords, that precipitated the Act.
23 citations
TL;DR: Langdell may well be the most influential figure in the history of American professional education because he established at Harvard Law School, with the help of President Charles W Eliot, the model for twentieth-century professional schools as discussed by the authors.
Abstract: 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
22 citations
TL;DR: In the early modern era, the business of England's criminal courts was founded upon charges brought and prosecuted by private individuals as mentioned in this paper 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 16
Abstract: 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?
22 citations
TL;DR: De Manneville as mentioned in this paper applied to King's Bench for a writ of habeas corpus, and 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.
Abstract: 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.
20 citations
17 citations
TL;DR: Part I sexuality: controlling (hetero-)sexuality - the implementation and operation of contagious disease legislation in Australia, 1868-1945 understandings of justice - Australian rape and carnal knowledge cases, 1876-1924 "Lady friends" and "sexual deviationists" - lesbians and law in Australia.
Abstract: Part I sexuality: controlling (hetero-)sexuality - the implementation and operation of contagious disease legislation in Australia, 1868-1945 understandings of justice - Australian rape and carnal knowledge cases, 1876-1924 "Lady friends" and "sexual deviationists" - lesbians and law in Australia, 1920s-1950 reforming the law of rape - incursions into the masculinist sanctum. Part II punishment: from stridency to silence - the policing of convict women, 1802-1853 legislating lunacy and the female lunatic body in 19th-century Victoria captives of their bodies - women, law and punishment, 1880s-1980s. Part III family: marriage and divorce before the Family Law Act, 1975 Australian colonial law and the construction of childhood - the example of Western Australia, 1829-1902 Aboriginal families and the law in the era of assimilation and segregation 1880s-1950s feminists and legal change in New South Wales, 1890-1916 husbands, widows and "family property". Part IV citizenship and the state: women as fringe-dwellers of the jurisprudential community the state's education of "women" women workers and the liberal state - legislative intervention in the workplace, 1880s to 1980s law in white Australia, 1900-1970 feminism in white Australia aliens, marginalized citizens and the Australian welfare state, 1945-1975.
TL;DR: In this article, the authors explore the administration of justice and the promulgation of legislation across Europe over a period of several centuries, in order to uncover the role of the law in the birth and development of the European state.
Abstract: No enquiry into the making of the modern European state can ignore the part played by law. This comprehensive scholarly volume examines in detail how states availed themselves of juridicial techniques in order to mould their institutions, to take control over their territory, and to exercise power over their subjects. The contributors are leading scholars in the field, who explore the administration of justice and the promulgation of legislation across Europe over a period of several centuries, in order to uncover the role of the law in the birth and development of the European state.
TL;DR: The legal histories of Chinese immigrants who came to America during the second half of the nineteenth century have reshaped our view of their significance for the history of American law as discussed by the authors, and the preceding three generations of professional legal historians perceived the legal experience of Chinese immigrations as marginal to American law and wrote no histories about it.
Abstract: During the past generation legal histories of Chinese immigrants who came to America during the second half of the nineteenth century have reshaped our view of their significance for the history of American law. The preceding three generations of professional legal historians perceived the legal experience of Chinese immigrants as marginal to the history of American law and wrote no histories about it. Those who did write about Chinese
Abstract: 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.
TL;DR: 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 as discussed by the authors, which may explain the reluctance of many writers to write a biographical portrait of the man.
Abstract: 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.
TL;DR: Kimball's observation that Kit was a regular guy just trying to teach his classes and learn some law was not particularly relevant to the debate about Langdell that I have mostly watched, but occasionally commented on.
Abstract: 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.
TL;DR: The legal history of the western Canadian frontier has received renewed attention in recent years as mentioned in this paper, with a focus on the question of whether violence occurred on the Canadian frontier and a fundamental reinterpretation of what the concepts of "law" and "order" had really meant.
Abstract: 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.
TL;DR: In both the United States and Western Europe, forensic physicians engaged in bitter jurisdictional disputes with members of well-established legal professions, within the context of long-standing judicial institutions.
Abstract: 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 forensicmedical expertise took a path that differed from the Western model. In Russia, forensic physicians reacted to and influenced the evolution of bureau-
TL;DR: 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 as discussed by the authors.
Abstract: 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.
TL;DR: The history of institutions is plagued by the biological analogy as mentioned in this paper, and we often forget that these words are being used metaphorically, and there is no reason why the periods between the start and stop need parallel those of living organisms.
Abstract: 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.
TL;DR: In 1770, Antoine-Louis Seguier, the avocat general (king's advocate) of the Parlement of Paris, defended Jean-Baptiste Dubarle, a Parisian wine merchant, against charges of theft, seduction, kidnapping, and adultery initiated by a carpenter, Eustache Chefdeville as mentioned in this paper.
Abstract: In 1770, Antoine-Louis Seguier, the avocat general (king's advocate) of the Parlement of Paris, defended Jean-Baptiste Dubarle, a Parisian wine merchant, against charges of theft, seduction, kidnapping, and adultery initiated by a carpenter, Eustache Chefdeville. For all of the offenses, Chefdeville demanded monetary reparation.The case, summarized in a memoire, connects the history of family law in France under the ancien regime to the skillful use of lawyerly forensics. But it also relates to literary portrayals of social scapegraces who betray the esteemed values of friendship and gratitude: in fact, this member of Paris's menu peuple emerges from the pages of the case abstract as a dissembling traitor. Seguier's legal brief, viewed as a work of fiction, projects Chefdeville as an ungrateful betrayer who feigns comradery. In Seguier's telling, this disfigured pariah, albeit socially inferior, takes his place next to the deceptive worldlings described in many eighteenth-century novels. Like them, he violates the sacred laws of sincerity, turning himself into a moral pervert. Seguier's memoire is rich precisely because it demonstrates how a skilled lawyer attempting to win his case adopts the form of a story characterized by all the literary qualities of the day—love, friendship, avarice, and betrayal. It illustrates a classic legal approach and also reads like a novel from beginning to end.
TL;DR: Danaya Wright's analysis of English child custody law is thoughtful and thought provoking as mentioned in this paper, 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.
Abstract: 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.
TL;DR: Eddy 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 as discussed by the authors.
Abstract: 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.
TL;DR: For example, this paper pointed out that legal historians have had an ambivalent relationship with new technology and used new tools to help us create our scholarship and even to teach, but like most of our academic colleagues in law and in history they generally employ those tools as extensions of established media instead of exploiting their potential to deploy information and develop ideas in new ways.
Abstract: 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. Our first forays into cyberspace have been consistent with precedent. So far we have tended to use the World Wide Web as a virtual photocopiera technology that allows us to deliver electronic copies of our traditional products (journals, articles, conference papers, syllabi, and so forth)-to a mass audience of scholars, students, and other interested parties. Now this in itself is not insignificant-reaching a worldwide, interdisciplinary public and bringing information and ideas to bear on them at a fraction of the cost of older media is something to be celebrated, not criticized. But before we become self-satisfied, we should consider the technological and indeed metaphysical distance that exists between the Web as legal historians now use it and the Web as it could be used.
TL;DR: In this paper, LaPiana has led the way in searching for, identifying, and examining new evidence about Langdell, so it is gratifying to learn that he is informed by my revised bibliography, teaching schedule, and career chronology.
Abstract: William LaPiana has led the way in searching for, identifying, and examining new evidence about Langdell, so it is gratifying to learn that he is informed by my revisions of Langdell's bibliography, teaching schedule, and career chronology. LaPiana also affirms the significance of Langdell's early lectures on partnership and commercial paper, adding informative points both about Langdell's views and their possible influence on others. However, the reconstructions of discussions from Langdell's classes are speculative, in LaPiana's judgment, and to some extent superfluous, because “one can certainly concede the point [that the Dean was not ‘dogmatic, rigid, and closeminded‘] even without resorting to the reconstructed discussions.”
TL;DR: Macnair's deeply learned and profoundly subtle article establishes to the more or less total satisfaction of this respondent that the origins of "jury" procedure lie in testimonial rather than adjudicatory action: in witnessing by knowledgeable neighbors as opposed to "judgment-finding" by local experts.
Abstract: Mike Macnair's deeply learned and profoundly subtle article establishes to the more or less total satisfaction of this respondent that the origins of “jury” procedure lie in testimonial rather than adjudicatory action: in witnessing by knowledgeable neighbors as opposed to “judgment-finding” by local experts. But then he is in my case—and perhaps to a greater extent than he himself realizes—preaching to the converted.