Historians have argued that sixteenth and seventeenth century English colonial charters claimed the lands of indigenous people on the basis of their discovery by Europeans. Examination of these charters, however, demonstrates that a charter authorized acquiring land from the indigenous population in a specific region, not seizing indigenous it, and regulating the entry of other potential settlers. Charters also regulated overseas relations among the European nations to reduce or prevent international conflict by recognizing similar claims to monopoly of access to lands claimed by other developing empires. Charters were rooted in a medieval legal tradition that included canon law commentaries that recognized the legitimacy of infidel dominium and papal bulls that sought to regulate fifteenth-century Iberian expansion in the Atlantic. English charters built on this legal tradition and were a stage in the creation of a European legal order for overseas expansion. The fundamental issue was regulation of the sea and sea routes to Asia and to the New World, not the acquisition and possession of indigenous land. The English charters should be understood as elements of the long-running debate about whether access to the sea was open to all or could be closed to outsiders.

Three decades ago, John Langbein published an influential book on medieval and early modern judicial torture. Before Langbein, Enlightenment philosophers such as Beccaria and Voltaire had traditionally been credited with the final abolition of judicial torture in the leading European states during the latter part of the eighteenth century. Langbein dismissed the traditional explanation as a “fairy tale,” claiming that the use of torture had in fact declined in major European countries since the sixteenth and seventeenth centuries, well before its formal abolition. In the medieval statutory or Roman-canon theory of proof, judicial torture was originally designed to produce confessions in cases of serious crime in which “full proof” in the form of confession or two eyewitnesses was needed to convict. The argument that Langbein advanced is that the emerging new modes of punishment for serious crime, such as forced labor, transportation, and imprisonment, enabled European criminal courts to take full advantage of the medieval legal institution of extraordinary punishment, poena extraordinaria, which could be imposed without confession if the evidence was otherwise convincing. Extraordinary punishment was by definition something else than the ordinary punishment, usually less than capital punishment. In practice this meant milder punishment on less evidence. Langbein's pivotal point is that the rise of the extraordinary punishment rendered torture unnecessary in many cases, although it still remained legal. Causing a revolution in the law of proof, free judicial evaluation of evidence thus in fact developed alongside the old statutory theory of proof, which now lost its monopoly.

In its controversial 2003 decision in Lawrence v. Texas, the U.S. Supreme Court struck down state sodomy laws as unconstitutional violations of the rights of consenting adults to have sex in private. These laws, still in existence in thirteen states at the time of Lawrence, were infrequently enforced in the late twentieth and early twenty-first centuries but were often used to justify and legitimate sexual discrimination in employment, immigration, marriage, the military, and other arenas of “private” and “public” life. In this sense, they functioned like state laws against adultery, cohabitation, and fornication. Rarely utilized and widely flouted, these prohibitions remained on the books, available for use in struggles over sex and sexuality and in debates about the parameters of sexual citizenship.

When asked why he did not read over the loan documents before signing them, John Doherty explained: “I was anxious to get the money, I didn't bother about it.” In February 1910, the twenty-three-year-old railroad clerk walked into the offices of the Chesterkirk Company, a loan-sharking operation with offices in lower Manhattan. He was looking to borrow some money. Repayment was guaranteed by the only security Doherty had to offer: his prospective wages and, in his words, his “reputation.” After a brief investigation of Doherty's creditworthiness, the loan was approved. The office manager placed a cross in lead pencil at the bottom of a lengthy form and Doherty signed where indicated. He received $34.85 in exchange for his promise to repay the loan principal plus $10.15 in combined fees and interest in three months. The interest charged was significantly greater than the 6 percent per year allowed in New York State. Doherty's effective annualized interest rate, including fees, was over 100 percent.

During the interwar period, the League of Nations led an international campaign against traffic in women. Although important research about the League's work has started to appear, historians have concentrated on the “white slave trade” in the decades before the First World War. From 1924 to 1926, the League conducted the first intercontinental study to determine the number of women caught up in the traffic, and to map the strategies and routes used by traffickers. Undercover investigators visited more than 100 cities across Europe, the Mediterranean, and the Americas. The investigators talked to thousands of prostitutes, pimps, brothel-keepers, and others engaged in the sex trade. The “worldwide” investigation was not only the most significant aspect of the antitrafficking campaign in the interwar years, but also of the League's effort to build an international legal regime on a foundation of sociological jurisprudence.

State making in nineteenth-century colonial settings involved contests over the configuration of plural legal systems. Colonial powers limited the jurisdiction of colonial courts and adopted complex, shifting rules for the articulation of imposed and indigenous law. The politics of legal pluralism in such settings became tied to discourse about cultural difference as groups challenged or justified jurisdictional boundaries by reference to the cultural characteristics of various colonial constituencies. The process of ordering legal authorities and assigning political identities reinforced the authority of incipient colonial states and emphasized the differences between colonial and metropolitan law.

Discussion and debate over the nature of federalism is one of the staples of American public discourse. Among historians and lawyers, politicians and judges this constant has remained. It is only the context of the discourse which has changed over time. Given the unusual framework of union provided by the Constitution it is hardly surprising that debate over its nature should continue for concepts of constitutionalism, federalism and law in American culture have melded into an alloy from which it is often impossible to determine which is the baser metal. Continuing inquiry over the proper balance between state and national authority and over the proper reach of federal jurisdiction has prompted as many scholarly endeavors as ever the quest for the Holy Grail led brave knights to their adventures. The endless searches among scholars, lawyers and jurists for ‘the original understanding’ of ‘the Framers’ has been an active industry for generations, seldom more so than in our own time. This is itself a striking cultural fact, and like the quest for the Grail, the center around which a huge corpus of legend, romance, learned scholarship and wishful thinking revolves.

The Types Riot of June 8, 1826, is the most celebrated episode of conservative political violence in Upper Canada. It was directed against William Lyon Mackenzie, an immigrant from Scotland and a newspaper editor in York (Toronto) who had perfected a style of journalism characterized by scathing personal abuse of the colony's leaders. About a dozen well-connected individuals, most of them lawyers or law students, broke into the offices of Mackenzie's Colonial Advocate newspaper in its owner's absence. Terrorizing Mackenzie's mother, son, and assistants, the rioters wrecked the press and scattered the types, throwing some of them into the bay nearby. In a harbinger of what was to come, more than one magistrate looked on without interfering. The attorney general, John Beverley Robinson, neither disciplined the lawyers and law students among the rioters nor prosecuted them in the criminal courts.

During the thirteenth and fourteenth centuries, the manor courts of medieval England were evolving into formal legal bodies with written records and standard procedures. An important reason for this development was that lords needed to protect their prerogatives, which were endangered from above by the king's increasing authority expressed in the royal courts and common law, and from below by peasants who actively sought greater freedom. Lords met these challenges to their authority by altering the law and practice of the manor courts to reinforce the institution of villeinage. This is particularly true of the land law enforced in the manor courts.

On December 23, 1912, a Hungarian father brought his three young daughters (ages three, five, and seven) to the Cook County Juvenile Court to file dependent petitions on their behalf. He alleged that their mother had deserted the family, stolen their savings, and disappeared. As a single father, he could have and probably did argue that it was unreasonable to expect him to work and to raise his young children simultaneously. On Christmas Eve, after a six-man jury found each girl to be a “dependent child,” Judge Merritt Pinckney ordered them committed to the Lisle Industrial School and arranged for their father to pay $15 a month for their support. Thus, the single father had used the juvenile court to arrange for a private institution to raise his now motherless children, who because they were the same gender were at least allowed to grow up together in the same industrial school.

Over the course of the late winter and spring of 1933, the German Bar Association (DAV), along with most other institutions in Germany, submitted to “coordination” by the new National Socialist regime. Coordination in reality meant a takeover of the private legal profession by younger lawyers who were National Socialist activists, directed from Berlin. The traditional leadership of the German bar permitted itself to be replaced by newcomers, formerly far removed from the centers of power in professional institutions. Regional lawyers' chambers, despite minor delays and efforts to express solidarity with colleagues in leadership now defined as falling outside of the “racial community,” also succumbed. Within five months, a profession that nineteenth-century reformers had condidered a bulwark of civil soviety, and which had viewed itself as a rock of independence from both state and public, had bowed to the demands of a party whose leader viewed lawyers with contempt and valued race over right.

In 1891, in the Supreme Court of New South Wales, Mrs. Olivia Mayne brought an action for breach of contract against two brothers, theatrical entrepreneurs, James and Charles MacMahon. Mrs. Mayne claimed the MacMahon brothers owed her money for the hire of her property, a boxing kangaroo called “Fighting Jack.” The MacMahons contested her claim, hoping to avoid their obligation by disputing the legally binding nature of the agreement they had made with her. The argument became one about the contractual capacity of a married woman.

Over the past decade, the United Kingdom has deprived an increasing number of British subjects of their citizenship. This policy, known as “denaturalization,” has been applied with particular harshness in cases where foreign-born subjects have been accused of terrorist activity. The increase is part of a global trend. In recent years, Canada, Australia, France, and the Netherlands have either debated or enacted denaturalization statutes. But Britain remains an outlier among Western democracies. Since 2006, the United Kingdom home secretary has revoked the citizenship of at least 373 Britons, of whom at least 53 have had alleged links to terrorism. This is more than the total number of revocations by Canada, France, Australia, and Netherlands combined. These developments are troubling, as the right to be secure in one's citizenship has been a cornerstone of the postwar European liberal political order, and of the international community's commitment to human rights.

With current procedure under assault, this is a particularly important time to study the procedural rules and thought of David Dudley Field's era. The present espousal of such devices as case management and alternative dispute resolution is both a sign of and a reaction to a procedural regime that is in question and in decline, if not in its death throes. But before embarking on new procedural roads or recommitting ourselves to old paths, we need to reflect upon our procedural ancestry in some detail.

Recent scholarship on law and norms has emphasized that important social values are at work in the law. But nothing could prepare us for the “Red Ink Case.” Decided by an eighteenth-century French merchant court, the suit was brought by a young woman driven by poverty to prostitute herself in return for a bill of exchange, written with her lover's blood. When the person on whom the bill was drawn refused to accept it for payment, the women sued her lover, demanding that he honor it instead. Although the applicable law required the defendant to pay the bill, the merchant-court judge declined to enforce payment on the ground that “humanity is the primary law.” Instead, the judge ordered the defendant to marry the plaintiff and thereby restore the virtue he had taken. With virtue thus saved, “[t]hese poor children withdrew satisfied.”

What are we to make of this case? It appears in Le négotiant patriote, an account of Old Regime commercial life and merchant-court practice penned by a successful eighteenth-century merchant named Bedos, who claimed to have served as a merchant-court judge and president of a chamber of commerce. Although Bedos' depiction of the Red Ink Case may well be exaggerated, his professional experience suggests that it must be taken seriously—if only as an expression of what contemporary merchants believed merchant-court litigation should be like. Yet, as familiar as we have become with the notion that law shapes and expresses social values, the case remains puzzling. What commercial interests are served, we might ask, by enforcing norms of sexual virtue? And how does a court order of marriage promote the transactional efficiency that bills of exchange, as a defining feature of merchant-court jurisprudence, were presumably intended to facilitate?

By examining the workings of a merchant-run court in eighteenth-century Paris, this article seeks to make sense of the Red Ink Case and its place in merchant-court jurisprudence.

The enactment of the Statute of Westminster in 1931 represents one of the most significant events in the history of the British Empire. The very name of this historic piece of legislation, with its medieval antecedents, epitomizes a sense of enduring grandeur and dignity. The Statute of Westminster recognized significant advances in the evolution of the self-governing Dominions into fully sovereign states. The term “Dominion” was initially adopted in relation to Canada, but was extended in 1907 to refer to all self-governing colonies of white settlement that had been evolving in the direction of greater autonomy since the middle of the nineteenth century. By the early 1930s, the Dominions included Canada, Australia, New Zealand, South Africa, Newfoundland, and the Irish Free State.

The La Plata River Basin, bordering Uruguay and Brazil, was the site of constant disputes between the Spanish and Portuguese crowns into the eighteenth century. The conflicts dated back to the seventeenth century with the founding of the Colônia do Santíssimo Sacramento on the left bank of the river. Although both sides engaged in diplomatic efforts over the years, these were not enough to prevent war, and there were ongoing battles interspersed with short periods of calm until the end of the 1860s and the so-called Paraguayan War (1865–70).

“I don't think there was ever a field of law which developed as explosively and dramatically as environmental law,” David Sive, a pioneering environmental lawyer, declared in a 1982 interview. “It was the great romance.” Along with new state and federal regulatory agencies and more than a dozen major environmental statutes passed in the 1970s, fledgling public interest environmental law firms emerged as a major force in national politics. The most prominent organizations, founded between 1967 and 1971, included the Environmental Defense Fund (EDF), Center for Law and Social Policy (CLASP), Natural Resources Defense Council (NRDC), and the Sierra Club Legal Defense Fund. Public Advocates and the Center for Law in the Public Interest, two California-based firms founded during these same years, also initiated key litigation. These small but powerful legal organizations—all predominantly funded by the Ford Foundation—quickly achieved landmark victories that helped to define the early successes of modern environmentalism. They delayed the Alaskan pipeline for more than 3 years, defeated a Disney resort proposed for the Sierra Nevada mountains, and helped push the pesticide DDT off the market in the United States. The organizations also foiled myriad plans for highways, airports, and power plants and pressed agencies to implement new environmental laws in the 1970s.

This is a critical historiographical essay animated by the research question of how the decisions of police and sheriffs illuminated and drove the transformation of white supremacy through different forms from emancipation to the end of Jim Crow segregation. It situates this focus amidst current methodological trends that stress structural oppression and argues that law-enforcers’ agency could illuminate discussions among historians and other scholars about the relationship between formal and informal law alongside the rise of the modern criminological state. The historical importance of enforcers is accentuated in the story told in each section—the shifting demographics of enforcement during Reconstruction; the inequalities of policing alongside lynching in the last decades of the nineteenth century; the complex interplay between policing and segregation statutes, colorblind criminal law, and mob violence in the Jim Crow South; the concurrent modernization of racialized policing nationwide; and the displacement of informal mob law and formal racial caste by a national regime of extralegal police violence, unequal patterns of incarceration and execution, and federal protections of civil liberties and civil rights.