Sometime in the later 1260s, Peter, the third abbot of the Cistercian monastery at Henryków in Silesia, wrote his remarkable history of the monastery's foundation and estate. The history is a series of stories about the individual holdings that the monastery obtained in the course of the thirteenth century. Apparently at a late stage of his life, Peter looked back at the preceding decades with considerable apprehension, and he explicitly cast his work as an exercise in reassurance.

In an obscure aside, the well-known English working-class radical, Francis Place, remarked in his Autobiography that even when “in deepest poverty” he had tried to serve other artisans. Some he had helped to train up as small masters or foremen while others he aided by working to settle their problems and disputes. “I had many matters brought to me for adjudication, arbitration or arrangement,” he wrote. “I hardly know the time when for three months together I have been free from this kind of interference.” Most matters it seems had to do with debtors and their creditors, but others appear to have concerned the settlement of estates or even affairs “related to an association or large body of men.” While he may have been justly proud of his service to the working-class community, Place's comment provides an insight into working-class life that is rarely glimpsed. He did not choose the word arbitration accidentally. By the nineteenth century, life and work in England had been penetrated by forms of dispute resolution that were meant to secure “order without law.”

When the State of Israel was established and the Supreme Court inaugurated in Jerusalem, dozens of Christian clerics implored President Smoira to allow the Supreme Court, as the successor of the Great Sanhedrin, the supreme Jewish court during the time of Roman rule, to retry Jesus Christ and thereby rectify the injustice caused to him.

There has been a great deal of confusion in recent years in regard to what we mean by “truth.” Although confusion and debate over determining the truth is hardly novel for either philosophers or common folks, the issue of “truth” and how we might know it (or produce it) has been quite the rage these last twenty years among historians, legal scholars, and postmodern would-be theorists. Plausibility, coherence, elegance, and consistency over time and within a community are just a few among the current yardsticks. These have, in both their rule-bound and unfettered forms, nudged aside inherited liberal (and marxist) conceptions of “correspondence theory,” which held that there is something really true out there—our task being to get as close to it as we can.

As Asher Maoz insightfully points out, governmental involvement in the ascertainment of historical truth—whether in court, by commission of inquiry, or in other ways—is directed at securing approval of a particular historical narrative, as a step toward imposing that narrative, to a greater or lesser extent, on those who disagree with it. This “official version” exists not only for the sorts of questions presented by the cases Maoz discusses, but also with respect to auto accidents, crimes of passion, and all the other historical reconstructions that form the substrate of “facts” upon which legal conclusions and enforceable judgments are predicated.

I am grateful to David Abraham and Eben Moglen for their thoughtful comments that illuminate several aspects of my essay. I agree with many of their remarks.

Formally, it is indeed history with which the courts deal. This is so as courts are usually called to rule upon past events. Nevertheless, most of the events that are dealt with by the courts, just like most occurrences in life, do not attract historical interest. I am willing to accept the significance criterion proposed by Moglen for screening events of historical importance, yet it is the appropriateness criterion that tells us which of these events fits the judicial process. As for commissions of inquiry, both criteria apply. The event must be of significance (“a matter of vital public importance”) to justify the establishment of a commission. At the same time it must fit the nature of a commission.

Legal historians have turned with renewed energy in recent years to the project of fleshing out the myriad rules by which the common law of the free labor employment contract structured social relations in nineteenth-century America. Of course, labor relations have always been prominent in the literature. The German sociological tradition has long taught us to see in the legal protection of property rights a source of coercive power over the working classes. And for decades now, historians have studied the great nineteenth-century labor conspiracy cases, which generated leading cases and opinions by judges such as Shaw and Holmes. But there is a new wrinkle in recent accounts of nineteenth-century labor law. Much of the law of property, contract, and tort bears a relatively self-evident (though still too infrequently remarked on) relation to the relative bargaining power of the parties to an employment contract. Property rules, along with a whole host of attendant tort doctrines such as nuisance and trespass, allocate resources among parties. As Robert Hale observed long ago, property rules set the coercive power of A to exclude B from those resources that belong to A, whether A be a prospective employee excluding an employer from the employee's labor power, or an employer excluding a would-be employee from the means of production. In similar fashion, rules of contract and tort that define the weapons that parties may deploy in competition or bargaining also shape the relative bargaining power of social actors. Thus, doctrines of duress, fraud, unconscionability, and adequacy of consideration, and the law of labor conspiracies and competition all create immutable background rules (or sometimes inalienable entitlements) that have considerable impact on bargaining power. In Halean language, we might say that the law of duress, for example, coercively precludes the strong from forcing the weak to consent to a particular deal, or that the doctrine of fraud coercively precludes the slick from outfoxing the dupes.

When it was established in 1788, New South Wales became the most remote, and most peculiar, of the British empire's overseas colonies. The founding colony of what would eventually become Australia, it was established as a penal colony, a place to send the unwanted criminals of Britain and Ireland. Britain lost more than the majority of its North American possessions in the late eighteenth century. It also lost its principal repository for unwanted felons. New South Wales filled the gap.