“There is nothing,” wrote William Blackstone, “which so generally strikes the imagination and engages the affections of mankind, as the right of property.” Property continues to occupy a place of enormous importance in American legal thought. More than just a staple of the first-year law school curriculum, the concept of property guides the application of constitutional doctrines of due process and eminent domain. A grand division between “property rules” and “liability rules” classifies our common law entitlements. Property is a concept of such longstanding importance in our law, of such great inertial momentum, that it has expanded to include nonphysical property in goodwill, inventions, designs, artistic expression, symbols, secrets, privacy, and celebrity, as well as “new” property in social security benefits, government contracts, job security, and occupational licenses. Recent scholars have identified property with autonomy, personality, political participation, and reliance interests. Thus expanded, the concept of property threatens to disintegrate. If it includes everything, does it mean anything?

A central goal of the lunch counter sit-ins of 1960, the protests that launched the direct-action phase of the Civil Rights Movement, was to give new meaning to the very idea of “civil rights.” To the students who took part in the protests, civil rights work entailed litigation and lobbying. It required relying on the older generation of civil rights activists and working through established civil rights organizations. It meant surrendering student control over the demonstrations. And, as the great unrealized promise of the then 6-year-old Supreme Court ruling in Brown v. Board of Education made painfully clear, it meant patience. For the thousands of students who joined the sit-in movement, reliance on their elders, litigation, and patience—the stuff of civil rights, traditionally understood—was precisely what they wanted to avoid.

In 1962, Francis Perkins, Franklin Roosevelt's secretary of labor, recalled the “Roots of Social Security” for an audience of Social Security Administration staff members. The Committee on Economic Security, which had broad agreement on most issues, “broke out into a row because the legal problems were so terrible.” According to Perkins, the legal committee had deadlocked in the summer of 1934 over the crucial question of the constitutional basis for federal authority over unemployment and old age insurance. Then, as Perkins told the crowd, she paid a social call on Justice Harlan Fiske Stone's wife. The justice himself sat down to tea and asked how she was getting on. She seized the opportunity and laid before him the problem that was occupying the Committee:

Well, you know, we are having big troubles, Mr. Justice, because we don't know in this draft of the Economic Security Act, which we are working on—we are not quite sure, you know, what will be a wise method of establishing this law. It is a very difficult constitutional problem you know. We are guided by this, that, and the other case. [Justice Stone] looked around to see if anyone was listening. Then he put his hand up like this, confidentially, and he said, “The taxing power, my dear, the taxing power. You can do anything under the taxing power.”

During the 1500s and 1600s when state building in France depended on the government's ability to staff administrative and judicial offices, prime candidates emerged from the famous law schools. Steeped in new research methods favoring a documentary base, Jurists focused legal studies on the French past, rather than a Roman one, and fostered historical and comparative views of society, law, and nation. Searching in archives for customs and laws, they wrote histories tracing the development of French institutions, including the Parlement of Paris, and devised civic rituals to articulate French constitutional precepts in that court. Practicing law as well, they collected “notable arrêts” (judicial decisions) on questions of law, advanced legal theories and legislative projects, and facilitated the circulation of legal knowledge within a general public caught up in judicial activism born of social change and political necessity. By challenging operative facets of two great legal systems in the western world, Roman law and Canon law, and by amending French Customary law, they developed a system of “French jurisprudence” and legally framed a “civil society” that underwrote the claim to political sovereignty as a nation.

When it is said that a defendant to a criminal charge is presumed to be innocent, what is really meant is that the burden of proving his guilt is upon the prosecution. This golden thread…runs through the web of the English criminal law. Unhappily Parliament regards the principle with indifference—one might almost say with contempt. The statute book contains many offences in which the burden of proving his innocence is cast on the accused.

No principle in Anglo-American criminal law is more vaunted than the so-called “presumption of innocence”: the doctrine that the prosecution must both produce evidence of guilt and persuade the fact-finder “beyond a reasonable doubt.” The claim that “every man is presumed to be innocent until he is proved guilty” has been described as “dear to the hearts of Englishmen” and as an omnipresent feature of English criminal law. In 1895, the United States Supreme Court declared the “presumption of innocence in favor of the accused” to be “the undoubted law, axiomatic and elementary”—a protection that “lies at the foundation of the administration of our criminal law.” Befitting its lofty stature in Anglo-American legal culture, the presumption has become associated, over time, with that most famous of Blackstonean maxims: “[I]t is better that ten guilty persons escape, than that one innocent suffer.”

The contemporary international law of occupation, which regulates the conduct of occupying forces during wartime, was framed over the course of deliberations among European governments during the second half of the nineteenth century. The debates between representatives of strong and weak powers on this matter dominated the conferences in Brussels (1874) and The Hague (1899), whose goal was to formulate the laws of war through an international agreement. The outcome, enshrined in what is known as the Hague Regulations of 1899,1 represented a delicate balance that both provided protection for a civilian population brought under the control of an occupant and safeguarded the interests of the ousted government for the duration of the occupation. Occupation was conceived of as a temporary regime existing until the conclusion of a peace agreement between the enemy sides (unless the defeated party ceased to exist as a result of the war, a situation referred to as debellatio). The evolution of the law of occupation in the nineteenth century was a gradual process, shaped by changing conceptions about war and sovereignty, as well as by the balance of power emerging in Europe.

One of the earliest and the most famous statements of realism in international law comes from ancient Greece: the Melian dialogue in history of the Peloponnesian War. In 416 B.C.E., the Athenians invaded Melos, a small island in the Aegean that sought to remain neutral and avoid joining the Athenian empire. Thucydides presents an account of the negotiation between the Athenians and the Melian leaders. The Athenians offer the Melians a choice: become a subject of Athens, or resist and be annihilated. The Melians argue, among other things, that justice is on their side. The Athenians dismiss arguments from justice as irrelevant and reply with a statement that many scholars believe represents view: “We both alike know that in human reckoning the question of justice only enters where there is equal power to enforce it, and that the powerful exact what they can, and the weak grant what they must.”

Modern citizenship—understood in terms of the formal legal distinction between “citizen” and “alien”—functions as a barrier to the individual's territorial rights. In other words, it determines whether a given individual does or does not enjoy unimpeded rights of access to, and presence within, the territory that the state calls its own. In this capacity, it is wielded efficiently, systematically, and even brutally against individuals who seek to fashion better lives for themselves by moving into, or remaining within, the territories of states other than their “own.” In the contemporary West, entirely as a matter of routine, millions are kept out of, and removed from, the territories of states on the ground that they are not citizens of the states in question.

In early 1943, Lord Wilfred Green, the Master of Rolls and the head of the Chancery Division of the British judiciary, authored a secret memorandum proposing that the Judicial Committee of the Privy Council become a “peripatetic court” that would travel throughout the British Empire. This article explores the origins and politics of this proposal to provide a critical re-description of the role of the Privy Council and the circulation of law within the British Empire.

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.

The mountain of modern interpretation to which the language of the Fourteenth Amendment of the United States Constitution has been subjected tends to overshadow the multiple concepts of antidiscrimination that were actually circulating at the time of its drafting. Moreover, as authors on race and law have pointed out, Congress itself lacked any African American representatives during the 1866–68 moment of transitional justice. The subsequent development of a “state action doctrine” limiting the reach of federal civil rights enforcement, in turn, eclipsed important contemporary understandings of the harms that Reconstruction-era initiatives sought to combat. In contrast to the oblique language of the Fourteenth Amendment, a dignity-based legal theory of affirmative equal rights had by 1867 taken center stage in the cosmopolitan city of New Orleans. Activists formulated the concept of “public rights” as a claim to participation without discrimination in the entire sphere of “common life.” Elections for delegates to Louisiana's Constitutional Convention of 1867–68, held under the broad suffrage mandated by the Military Reconstruction Acts, yielded a convention in which half of the members were men of African descent. Seeking the “impartial treatment of all men” in “[c]hurches, hotels, cars, steamboats, theaters, stores, even schools,” the convention crafted a Bill of Rights that affirmatively guaranteed to all of the state's citizens “the same civil, political, and public rights,” independent of race or color. These innovations in the defense of human rights under law drew from a deep well of anti-caste thinking developed in domestic and transnational discussions conducted in both French and English, with participants from both sides of the Atlantic and the Caribbean. Cosmopolitan progressives such as Edouard Tinchant and Jean-Charles Houzeau worked with Louisiana-born activists including Louis Charles Roudanez, Simeon Belden, and Paul Trévigne to develop and advance the idea of public rights. Legislators crafted and passed state statutes that provided for civil penalties for violation of these rights, along with a private cause of action that could yield both actual and exemplary damages. Throughout the 1870s, however, advocates met a fierce white-supremacist counterattack, one that fused obstructionist litigation, vote suppression, and vigilante violence. A claim to equal treatment under the 1868 constitution was won in the state courts by Josephine Decuir, but was overturned in 1877 at the United States Supreme Court. With the ascent of the Democratic Party, white supremacists–including the lawyer/vigilante Robert Hardin Marr-took their seats on the state Supreme Court. By 1879, the public rights guarantees had been expunged from the state's constitution. Nonetheless, for a crucial decade, the cross-racial politics of Louisiana had overcome many of the deficits of legitimacy that often undercut moments of transitional lawmaking. Delegates to the 1867–68 Constitutional Convention took the opportunity to spell out specific positive rights that they saw as essential to full civil freedom. And at the center, they placed their insistence that the state had an obligation to assure that men and women of color would not be subjected to forced indignity in the public sphere.

The history of arbitration procedures and extra-judicial forms of dispute settlement in medieval England remains largely unwritten. This neglect is no doubt attributable to the precocious development of the common law, which has monopolized the attention of English legal historians and left them little time to consider alternative forms of dispute resolution. Their main preoccupation, epitomized in the work of great scholars such as Maitland, Holdsworth and Plucknett, has been to trace the evolution of legal institutions, procedures and doctrine. Consideration of arbitration has at best been regarded as peripheral to this central task.

Accompanying the national move to create a holiday honoring Martin Luther King, Jr., and the commemoration of anniversaries of important episodes in the modern civil rights movement, has come a welcome literature by historians, political scientists, sociologists, journalists, and movement participants analyzing and interpreting the movement. Considerable attention has naturally focused on the Montgomery bus boycott that signaled the start of the modern civil rights movement in December, 1955, when Rosa Parks refused to go to the back of the bus. These recent works have reaffirmed the traditional interpretation of the boycott: Led by Martin Luther King, Jr., and sustained by the sacrifices of the thousands who refrained from using public buses, the boycott proved that, by acting collectively, an African-American community could demand and obtain an end to segregation. The technique of nonviolent resistance to oppression, it is said, successfully integrated Montgomery buses.

Very little is known about the young and the orphaned in the villages of medieval England. The span of years constituting childhood as well as the social experiences peculiar to youth must be deduced from either literary sources, including the comments of chroniclers and priests, or legal records generated by coroners, jurors and feudal lords. The variety and scope of this evidence notwithstanding, certain questions about the care of children in the rural world remain unresolved. Did peasants view childhood as a period of protected dependency, and at what age did childhood cease? How did the change in status from child to adult take place? There was, it seems, no public proclamation, no elaborate ceremony or ritual. Instead it appears that children quietly entered the adult world as soon as they no longer were dependent on their mothers and nurses. Indeed the dependency of medieval children now has the semblance of brevity, neither prolonged by families nor subject to broader constraint. But does this appearance fully account for the passage of childhood in peasant society?

The development of property in England between 1176 and 1220 was the result of a complicated interaction between social mores made law and bureaucratic action. In the Assize of Northampton, Henry II undertook regular supervision of proprietary decisions to prevent his men from preparing a rebellion like that of 1173-74. The supervision assumed peacetime feudal norms, but in the hands of bureaucratic justices even prior to 1200 this supervision increasingly restricted lords' power to discipline their tenants, at a time when disciplinary power was far more important than proprietary decisions. By 1220, the relative importance of proprietary matters and disciplinary power had been reversed. But proprietary action by the lord was so attenuated that seisin—lawful possession—was possible now even without lordly acceptance. Such insulation of the tenant from his lord was a bond established between the tenant and his tenement: property.

Over thirty years ago Douglas Hay began his influential essay, “Property, Authority and the Criminal Law,” with the unsettling claim that “the rulers of eighteenth-century England cherished the death sentence.” He went on to offer a major reinterpretation of eighteenth-century justice, one with wide-ranging implications for how we understand English society in that period. The gallows, Hay argues, was meant to inspire terror. The passage of a large number of capital statutes spoke of the resolve of the ruling class to defend its property with the most extreme of measures. Yet the ultimate sanction was used sparingly. Hay's most important insight was to note the role of discretion in the operation of eighteenth-century justice. The choice not to impose death was as important as the occasions when offenders died. The elite deftly exploited these opportunities. The mercy dispensed by the Crown not only presented a more benign image of authority, it also taught the lessons of patronage and deference that instructed the lower orders in the proper attitude to take toward their social superiors. Thus justice worked more powerfully than religion to create legitimacy for the existing order.

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.

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.

Approximately 50 years ago, R. R. Palmer published his two volume masterwork The Age of the Democratic Revolution. Designed as a “comparative constitutional history of Western civilization,” it charted the struggles after 1776 over ideas of popular sovereignty and civil and religious freedoms, and the spreading conviction that, instead of being confined to “any established, privileged, closed, or self-recruiting groups of men,” government might be rendered simple, accountable and broadly based. Understandably, Palmer placed great emphasis on the contagion of new-style constitutions. Between 1776 and 1780, eleven onetime American colonies drafted state constitutions. These went on to inform the provisions of the United States Constitution adopted in 1787, which in turn influenced the four Revolutionary French constitutions of the 1790s, and helped to inspire new constitutions in Haiti, Poland, the Netherlands, Switzerland, and elsewhere. By 1820, according to one calculation, more than sixty new constitutions had been attempted within Continental Europe alone, and this is probably an underestimate. At least a further eighty constitutions were implemented between 1820 and 1850, many of them in Latin America. The spread of written constitutions proved in time almost unstoppable, and Palmer left his readers in no doubt that this outcome could be traced back to the Revolution of 1789, and still more to the Revolution of 1776. Despite resistance by entrenched elites, and especially from Britain, “the greatest single champion of the European counter-revolution,” a belief was in being by 1800, Palmer argued, that “democracy was a matter of concern to the world as a whole, that it was a thing of the future, [and] that while it was blocked in other countries the United States should be its refuge.”