In January 1994, the Law and History Review published an interview of Willard Hurst by Hendrik Hartog. Michael Grossberg, as editor, introduced the interview as the first of “an occasional series of discussions with legal historians.” Over a decade has elapsed since that conversation. Willard Hurst was known both for his scholarship and his commitment to mentoring. Planning for the 4th Biennial Hurst Summer Institute at Madison in June 2007, I could think of no better way to conclude an Institute focused on nurturing legal historians at the beginning of their careers than with a conversation focused on a life in legal history.

In the fall of 1865, North Carolina lawmakers gathered in Raleigh to draw up a new constitution. Despite the absence of the most extreme secessionists, those in attendance were still a remarkably homogeneous group of planters, businessmen, and professionals—white men of the same wealthy families that had always governed the state. Yet faced with the sweeping changes wrought by war and emancipation, they anticipated a difficult session. Edwin Reade, who delivered the opening address, tried to set a positive tone, assuring the assembly that the future would be easy compared to the hardships of the past five years. The metaphor he chose was that of a homecoming. “Fellow citizens,” he intoned, “we are going home”: “Let painful reflections upon our late separation, and pleasant memories of our early union, quicken our footsteps towards the old mansion, that we may grasp hard again the hand of friendship which stands at the door, and, sheltered by the old homestead which was built upon a rock and has weathered the storm, enjoy together the long, bright future which awaits us.”

By the common law rules of inheritance women in English landed society fell into two classes. Some were altogether excluded from inheriting; others were entitled to succeed to the family estate. The woman thus entitled, the heiress-at-law, is clearly a figure due historical attention. Yet she has never been singled out for long-term consideration. Where she has been the main subject, discussion has always been chronologically limited, and her history has not been carried any distance through the course of legal changes that are relevant to it. Usually she has been discussed as but part of the family, and attention has been focussed largely on eldest sons and their relations with younger children, with younger sons or with daughters not heiresses, as the case may be. To focus on the heiress and to follow her history over the long run, from the thirteenth century to the eighteenth, is the purpose of this article.

Three themes crucial to understanding eighteenth-century British history converge when one writes about the country attorney: the professions, which had a remarkable development in Georgian England; the rural practitioner as distinct from his urban, principally London, counterpart about whom much more has been written; and the local economy in which attorneys performed as conveyancers, money lenders, managers of landed properties, copyhold court holders, and clerks—for justices of the peace, at the assizes, on turnpike, enclosure, and drainage commissions, for charities, and for law and order associations. Popular literature notwithstanding, country attorneys were not so often knaves using their skills to cheat unwitting clients as indispensable cogs in the rural economy where they served the interests of the landholding classes.

It is a well-accepted postulate of Canadian constitutional history that, in the years following the confederation of the colonies of British North America in 1867, the law of the Canadian constitution did not concern itself with individual rights. Rather, constitutional law in the late nineteenth century involved the division of legislative powers between the federal and provincial governments—disputes that neither addressed claims to individual liberty nor the power of an unbridled state. If liberties were at stake, they were subsumed under arguments about which level of government was authorized to legislate on the specific subject matter at issue. In this way, Canadian constitutionalism resembled the “well-regulated society” of the antebellum United States: in the pursuit of the common good, public power was authorized to regulate liberty and private property to the fullest extent possible.

After several decades of intellectual labor invested in the Tannenbaum debate—a long and exhausting controversy well summarized in the first part of Alejandro de la Fuente's article—I am wary at the prospect of opening a new round of this “many-headed-hydra” debate. Aside from the conceptual limitations of the (overly ambitious) thesis and the reins it can impose on fresh formulations of research agendas, there are other reasons why it may be wise to put Tannenbaum to rest. His thesis is burdened with a series of charged subtexts that surreptitiously make their way into the discussion and inflect the terms of the debate. Some of these subtexts carry long (and polemical) histories behind them that are difficult to obliterate.

Leading works published since the 1980s relating to law and the modern administrative state that privilege economy and politics—work by scholars like William Novak tracing the nineteenth-century common law roots of the modern regulatory state, Stephen Skowronek on the construction of a national administrative state, and Martin Sklar on the intersection of reform with the rise of corporate capitalism in reshaping the political economy of the American state—remain intensely engaged with the work of Willard Hurst. Leading works published in the same period relating to law and the modern administrative state that privilege gender—work by scholars like Kathryn Kish Sklar on Florence Kelley and women's political culture, Linda Gordon on the welfare state, and Leslie Reagan on abortion—do not cite Hurst in the footnotes or, for the most part, in their bibliographies. For that matter, those from one subfield do not cite the other and vice versa. There is a simple, innocuous explanation for these silences—we all have too much to read.

Donald Trump's administration has provoked crisis after crisis regarding the United States’ immigration policy, laws, and their enforcement. This has affected millions of immigrants in the U.S. and those hoping to immigrate. Stemming from this, immigration lawyers are providing extraordinary amounts of direct pro bono legal services to immigrants in need. Yet the history of the practice of immigration law has been largely understudied. This article closely examines Chicago's Immigrants’ Protective League between 1910 and 1940. The League provided free counsel to tens of thousands of poor immigrants facing a multitude of immigration-related legal issues during a time when Congress passed increasingly strict immigration laws. The League, always headed by women social workers, created a robust model of immigration advocacy at a time when only a handful of women were professionally trained lawyers. The League's archival documents, manifests how Trump's immigration policies have a long and painful history. U.S. immigration law and its enforcement have consistently been cruel, inhumane, arbitrary, and capricious. Told from the ground up and focusing upon the day-to-day problems that immigrants brought to the League, one dramatically sees how immigration laws and practices were like quicksand, thwarting the legitimate expectations of migrants. The League, in response, participated in creating what would become the practice of immigration law, engaging, and quickly responding to changing laws, rules, policies, and the needs of migrants.

In the 1950s, the National Association of Women Lawyers (“NAWL”) undertook what it considered its “greatest project,” the drafting and promotion of a model no-fault divorce law. It launched its campaign at a time when post-war realities and the law in practice were putting increasing pressure on the law on the books which lagged behind contemporary sensibilities. NAWL acted two decades before the no-fault divorce “revolution” of the 1970s. It did so in the 1950s when women were said to be both “domestic” and “quiescent.” The Article has three aims. First, it considers NAWL's project as a missing piece in the history of divorce law, the no-fault revolution, and the rise of mass divorce in mid-twentieth century America. Second, it reflects on the implications of NAWL's undertaking for the standard narrative of “domesticity” in the 1950s, an account that has been questioned in recent years. Last, it tells a story of women's activism in the depth of the so-called “doldrums” of the organized women's moveme

The influence on the Canadian political culture of two conflicting tendencies in common-law constitutional thought, constitutionalism and legalism, merits attention. By constitutionalism, I mean a particular response to the apprehended infringement of civil rights and liberties by the state: an appeal to standards of state conduct that are supposedly sanctified by long usage, implied contract, or both. By legalism, I mean the justification of alleged infringements by invoking the lawfulness of the authority by which such actions are taken. These definitions deviate from common usage, but they serve to represent a dichotomy within common-law constitutional thought that has been crucial to the development of the English political culture and of cultures derived from the English.

What is the relationship between judging and understanding? Does the process of understanding undermine our ability to judge? Or maybe the contrary is true, that judgment is possible only when its subject is understandable? If judgment requires distance and understanding requires empathy (overcoming distance), is there an inherent impossibility in trying to judge the Holocaust by trying to understand it? Language itself betrays a sense in which understanding and judgment conflict. The popular saying tout comprendre c'est tout pardonner rings true in our everyday experiences. What are we to do when the subject of our inquiry is of such moral magnitude that understanding becomes a duty we owe to ourselves, and yet any progress in understanding seems to be meaningless if it does not enhance our capacity of judgment. The two thoughtful responses by David Luban and Lawrence Douglas to my essay “Judging Evil in the Trial of Kastner” are directed at disentangling this complex relationship between judgment and understanding. Luban asks for more judgment. Douglas insists on more understanding.

Over the past decade, state agencies throughout Brazil have launched initiatives that aim to defend children's rights to their father's name. These initiatives take the form of discrete programs in different states, all of which seek to identify children who lack a paternal last name—an estimated 10–25 percent of all Brazilian children —in hopes of finding their fathers and encouraging or obligating them to legally recognize their paternity and inscribe their names on the children's birth registries. Project staff also sometimes formalize child support arrangements, although this is not the primary objective. Instead, Responsible Paternity projects (as most of them are known) seek to free children from the social stigma of illegitimate birth, thus protecting their constitutional right to equality and human dignity.

Historians have long discussed the different ways in which the first professional lawyer to practice in Massachusetts Bay Colony, Thomas Lechford, was at odds with colony authorities in his three-year stay there—from June 27, 1638 to August 3, 1641. Some accounts have focused on his religious views, since Lechford disagreed with the strict forms of church membership prescribed by the colony's religion, Congregationalism. When he returned to England, Lechford wrote a book called Plain Dealing in which he argued against this form of religious organization, claiming that he had received enough first-hand experience to recommend a return to the Church of England. This book has been an important source of information on religious and political arrangements in colonial Massachusetts, and so for many, the picture of Lechford as religious dissenter is familiar. Another important picture of Lechford, especially familiar to historians of the American legal profession, is Lechford the impecunious lawyer disbarred for the unethical practice of law. Lechford himself had written, “I am…forced to get my living by writing petty things, which scarce finds me bread.” He had been disbarred for “embracery,” pleading to a jury out of court, and it was assumed that this combination of circumstances forced him to return to England. James Savage wrote under his biographical entry for Lechford: “left here, aft. vain attempt to earn bread.” Other nineteenth-century scholars of colonial Massachusetts said much the same thing. William Whitmore, in an introduction to a collection of Massachusetts colonial laws, wrote that Lechford “was finally starved into returning to England.”

In early sixteenth-century England, the presence of ecclesiastical sanctuaries in the legal, social, and religious landscape was a matter of great controversy. Any English church could offer temporary sanctuary to an accused felon, a privilege that expired after about forty days, following which the felon had to abjure the realm. More contentiously, by the late Middle Ages a number of English religious houses used their status as royally-chartered liberties to offer sanctuary permanently, not only to accused criminals, but also to debtors, alien craftsmen, and, especially during the civil wars of the fifteenth century, political refugees. These ecclesiastical liberties, small territories that exercised varying extents of juridical and political autonomy, considerably complicated the jurisdictional map of late medieval England. London in particular, with its host of liberties and peculiars, constituted a patchwork quilt of legal jurisdictions. Although the mayor and aldermen of London were wont to say that the “chyeff and most commodyous place of the Cytie of London” constituted “one hoole Countie and one hoole Jurisdiccion and libertie” over which its citizens ruled, saving only the authority of the king himself, this confident as-sertion of the City's jurisdiction over the metropolitan square mile was constantly belied by the presence of these liberties. The most notable—and for the City, the most troubling—was the sanctuary at St. Martin Le Grand, a sizeable area within the bounds of the City, before 1503 governed by the dean and canons of the College of St. Martin, after 1503 absorbed into the lands attached to Westminster Abbey and ruled by the abbot. For about two centuries before St. Martin Le Grand was dissolved in 1542, its precinct was home to a thriving population of debtors, accused felons, and perhaps most numerously alien craftsmen, all seeking for various reasons to avoid civic or royal jurisdiction.5 The dissolution of religious houses which accompanied the English Reformation greatly lessened, although did not altogether eradicate, the privileges of St. Martin's.

During the past twenty years historical investigations of crime and criminal justice have increased considerably. This new subfield has been hailed enthusiastically by many of its practitioners: Douglas Hay considers it one that offers a key to ‘unlocking the meanings of eighteenth century social history.’ John Styles and John Brewer view the study of crime and law as a ‘point d'appui for a social history approach that embraces both the history of society and the issues of power and authority, an approach, in other words, that resolves the “crisis of social history.”’ Moreover, Marzio Romani describes this research as one that utilizes crime as a 'symptom,’ as a link between ‘conjuncture’ and ‘structure.’

The decades following the American Revolution witnessed major changes in American society. As traditional means of social control eroded, an increasingly secular society turned to lawmakers—both judicial and legislative—to craft new norms. Nineteenth-century legislators and judges actively promoted new visions of the economy, politics, and society. No area of social concern escaped their attention. Recent scholarship focusing on women and the family has explored how lawmakers transformed pre-Revolutionary legal concepts in reaction to changes in the nature of the family itself. This article examines the legal response in one narrow intersection of law and society: the law of sexual slander.

Contemporary Western legal systems allow any individual to serve as a witness and to testify in court. However, in legal regimes from late antiquity we find strict limitations on the eligibility of certain types of people to serve as witnesses. Some of the lists of disqualified witnesses are very particular, thus inviting explanation of the reasons for the specific rules of disqualification. Such is the case regarding both Jewish and Roman rules of disqualification, which are the topic of this paper. Tannaitic halakha, composed in Roman Palestine between the first and third centuries CE, includes a list of four characters disqualified from giving testimony, which has long defied interpretation: “a dice player, a usurer, pigeon flyers, and traders in Seventh Year produce”. This paper offers a novel approach to the study of this list, suggesting that the rabbis drew on the Roman legal institution of infamia when constructing their own laws regarding disqualified witnesses. Beyond solving a puzzle relating to Jewish law, the paper also sheds light on the inner logic of Roman law, maintaining that Jewish and Roman rules of disqualified witnesses are commonly grounded in an ethics of self-control. By drawing attention to this previously unnoted theoretical subtext, the paper contributes to a missing chapter in the global history of evidence admissibility rules.

Fifty-seven men of color were sentenced to death by the courts of England and Wales in the twentieth century and were less likely to receive mercy than white contemporaries. Though shocking, the data is perhaps unsurprising considering institutional racism and unequal access to justice widely highlighted by criminologists since the 1970s. We find discourses of racial difference were frequently mobilized tactically in nineteenth- and twentieth-century England and Wales: to support arguments for mercy and attempt to save prisoners from the gallows. Scholars have identified historically and culturally contingent narratives traditionally deployed to speak to notions of lesser culpability. These mercy narratives reveal contemporary ideals and attitudes to gender or class. This article is original in identifying strategic mercy narratives told in twentieth-century England and Wales that called on contemporary tropes about defendants' race. The narratives and cases we explore suggest contemporary racism in the criminal justice system of England and Wales has a longer history than previously acknowledged.

Public accommodations—hotels, trains, restaurants, steamboats, theaters, buses, motels, and the like—were for more than a century located at the epicenter of legal and political struggles for racial equality. From the age of Reconstruction to the civil rights movement of the mid-twentieth century, civil rights in public places stood alongside voting rights, school integration, and equal opportunity in employment and housing as conditions that black people and their allies claimed as necessary attributes of a just society. The Civil Rights Act of 1875 and the Supreme Court rulings in the Civil Rights Cases and especially in Plessy v. Ferguson were critical episodes in the career of Jim Crow in the nineteenth century, followed in the twentieth by the Montgomery bus boycott, the sit-ins, the Freedom Rides, and the Civil Rights Act of 1964.