Bücher der Reihe Cambridge Historical Studies in American Law and Society

This book argues for a change in our understanding of the relationships among law, politics and history. Since the turn of the nineteenth century, a certain anti-foundational conception of history has served to undermine law's foundations, such that we tend to think of law as nothing other than a species of politics. Thus viewed, the activity of unelected, common law judges appears to be an encroachment on the space of democracy. However, Kunal M. Parker shows that the world of the nineteenth century looked rather different. Democracy was itself constrained by a sense that history possessed a logic, meaning and direction that democracy could not contravene. In such a world, far from law being seen in opposition to democracy, it was possible to argue that law - specifically, the common law - did a better job than democracy of guiding America along history's path.

In the decades before the Civil War, Americans appealed to the nation's sacred religious and legal texts - the Bible and the Constitution - to address the slavery crisis. The ensuing political debates over slavery deepened interpreters' emphasis on historical readings of the sacred texts, and in turn, these readings began to highlight the unbridgeable historical distances that separated nineteenth-century Americans from biblical and founding pasts. While many Americans continued to adhere to a belief in the Bible's timeless teachings and the Constitution's enduring principles, some antislavery readers, including Theodore Parker, Frederick Douglass, and Abraham Lincoln, used historical distance to reinterpret and use the sacred texts as antislavery documents. By using the debate over American slavery as a case study, Jordan T. Watkins traces the development of American historical consciousness in antebellum America, showing how a growing emphasis on historical readings of the Bible and the Constitution gave rise to a sense of historical distance.

The US occupation of the Philippine Islands in 1898 began a foundational period of the modern Philippine state. With the adoption of the 1935 Philippine Constitution, the legal conventions for ultimate independence were in place. In this time, American officials and their Filipino elite collaborators established a representative, progressive, yet limited colonial government that would modernize the Philippine Islands through colonial democracy and developmental capitalism. Examining constitutional discourse in American and Philippine government records, academic literature, newspaper and personal accounts, The Foundations of the Modern Philippine State concludes that the promise of America's liberal empire was negated by the imperative of insulating American authority from Filipino political demands. Premised on Filipino incapacity, the colonial constitution weakened the safeguards that shielded liberty from power and unleashed liberalism's latent tyrannical potential in the name of civilization. This forged a constitutional despotism that haunts the Islands to this day.

Yvonne Pitts explores inheritance practices by focusing on nineteenth-century testamentary capacity trials in Kentucky in which disinherited family members challenged relatives' wills. These disappointed heirs claimed that their departed relative lacked the capacity required to write a valid will. These inheritance disputes criss-crossed a variety of legal and cultural terrains, including ordinary people's understandings of what constituted insanity and justice, medical experts' attempts to infuse law with science, and the independence claims of women. Pitts uncovers the contradictions in the body of law that explicitly protected free will while simultaneously reinforcing the primacy of blood in mediating claims to inherited property. By anchoring the study in local communities and the texts of elite jurists, Pitts demonstrates that 'capacity' was a term laden with legal meaning and competing communal values about family, race relations and rationality. These concepts evolved as Kentucky transitioned from a conflicted border state with slaves to a developing free-labor, industrializing economy.

Combining archival research, critical theory, and gender- and disability-analysis, Nate Holdren argues that Progressive Era reform to employee injury law created new employment discrimination against disabled people and a new injury culture that treated employees and their injuries instrumentally.

In an incisive analysis of over two dozen clauses as well as several 'unwritten' rules and practices, The Constitutional Origins of the American Civil War shows how the conflicting constitutional interpretations of ordinary and elite Americans aggravated the sectional conflict over slavery to the point of civil war.

Reassessing one of the most influential figures in American law, Wells examines all aspects of Holmes's life to provide a new understanding of his multifaceted personality. This analysis of the Supreme Court Justice will appeal to legal scholars, historians, philosophers, and general readers interested in biography and American history.

Justin Desautels-Stein focuses on the development of pragmatic liberalism, between 1870 and the present. Using property law, constitutional law, and antitrust law as case studies, he places the intellectual history of liberalism into a contemporary legal context.

Offers new understandings of the famous foxhunting case, Pierson v. Post, and its role in legal education and legal professionalization. This book is meant for legal historians, lawyers, and law professors and students.

Thomas Jefferson, Legal History, and the Art of Recollection offers an original account of the legal and political thought of Thomas Jefferson and the reception of narratives of empire and constitutional transformation during the era of the American Revolution. This book uniquely places Jefferson's own attention to history in conversation with modern thought.

Owning Ideas explores the history of the emergence of intellectual property in the United States during the nineteenth century, examining the fields of both patent and copyright. It will appeal to readers interested in the concept of ideas as private property, and how it holds a dominant position in modern economic and cultural life.

Appealing to legal historians and scholars, this antebellum history uses original legal suits to analyse the understanding, use, and adaptation of formal law by slave holders and slaves within the American Confluence, an area of liminal boundaries where the Ohio, Mississippi, and Missouri Rivers converge.

The Law of the Whale Hunt provides an innovative examination of how property law was created in the absence of formal legal institutions regulating American whaling. Robert Deal tells an exciting story of how American whalers resolved complex disputes over whales instead of resorting to the courts.

Gender Remade explores the passage from territory to state in the Pacific Northwest, especially in Washington, showing that jury duty was as important as the right to vote in late nineteenth-century campaigns for constitutional equality and offers ways to remedy the neglect of state and territorial studies among constitutional historians.

The first book to develop an in-depth analysis of how legal and political ideas concerning the criminalization of racial violence have evolved from slavery to the present, and to offer new historical and theoretical perspective for analyzing limits of current attempts to use criminal legislation as a weapon against racism.

This is a study of the central role of history in late nineteenth-century American legal thought.

This book examines a pattern of conservative resurgence following several eras of reform in American history by pointing to the phenomenon of 'recalibration'. By highlighting recalibration as a regular companion to reform, the book ultimately sheds light on the barriers to, and possibilities for, sweeping change in American politics.

This book challenges existing understandings of child labor by tracing how law altered the meanings of work for young people in the United States between the Revolution and the Great Depression, finding the origins of the shifts in litigations that occurred in the wake of industrial accidents incurred by young workers.

Law's Imagined Republic shows how the American Revolution was marked by the rapid proliferation of law talk across the colonies. Drawing on a wealth of material from criminal cases, Steven Wilf reconstructs the intertextual ways Americans from the 1760s through the 1790s read law.

America's prison-based system of punishment has not always enjoyed the widespread political and moral legitimacy it has today. In this groundbreaking reinterpretation of penal history, Rebecca McLennan covers the periods of deep instability, popular protest, and political crisis that characterized early American prisons. She details the debates surrounding prison reform, including the limits of state power, the influence of market forces, the role of unfree labor, and the 'just deserts' of wrongdoers. McLennan also explores the system that existed between the War of 1812 and the Civil War, where private companies relied on prisoners for labor. Finally, she discusses the rehabilitation model that has primarily characterized the penal system in the twentieth century. Unearthing fresh evidence from prison and state archives, McLennan shows how, in each of three distinct periods of crisis, widespread dissent culminated in the dismantling of old systems of imprisonment.

This history of efforts to desegregate northern schools during the nineteenth century and the first half of the twentieth century explores two dominant themes. This book examines why so many northern communities did engage in school segregation (in violation of state laws) and how northern blacks challenged this illegal activity.

A Judgment for Solomon tells the story of the d'Hauteville case, a controversial child custody battle fought in 1840. It uses the story of one couple's bitter fight over their son to explore some timebound and timeless features of American legal culture.

This book explains how the new business rhetoric of the 1920s, especially the term 'racketeering', prompted Americans to conflate organised crime and organised labour. The struggle between craftsmen, corporations and reformers shaped American law, as tradesmen helped create new anti-racketeering laws and New Deal industrial policies during the 1930s.

This book presents a fundamental reassessment of wage labor in the nineteenth century, focusing on the use of sanctions to enforce wage labor agreements. Professor Steinfeld argues that wage workers were often bound to their employment by enforceable labor agreements, which employers used to manage labor costs and supply.

Through courtroom dramas from 1865 to 1920, Barbara Welke offers a dramatic reconsideration of the critical role railroads, and streetcars, played in transforming the conditions of individual liberty at the dawn of the twentieth century, focusing on the law of accidental injury, nervous shock, and racial segregation in public transit.

In this 2003 book, Willrich uncovers the contested origins and paradoxical consequences of two protean concepts in the cosmopolitan cities of industrial America at the turn of the twentieth century: the modern ideas of social responsibility for crime and the belief that the law should aim for social, not merely individual, justice.

Focusing on the making and meaning of the Thirteenth Amendment, Final Freedom looks at the struggle among legal thinkers, politicians, and ordinary Americans to find a way to abolish slavery that would overcome the inadequacies of the Emancipation Proclamation of 1863.

Were slaves property or human beings under law? Southern judges designed laws that protected property rights and helped slavery remain economically viable, the foundation of laws applicable to free people. This 1998 book provides a rigorous, compelling economic analysis of the common law of Southern slavery, inspecting thousands of legal disputes.

This book describes how the international spread of antitrust suggested the historical process shaping global capitalism.

Most American historians and legal scholars incorrectly assume that controversies and litigation about free speech began abruptly during World War I; yet important free speech controversies and legal cases preceded the Espionage Act of 1917. World War I obscured prior libertarian defenses of free speech.