The “who” of a lawsuit, who can sue and who can be sued, has long been a fundamental issue of process. Lengthy discussions of the issue are found in Roman law texts of eighteen centuries ago and in succeeding centuries in texts influenced by Roman law. In Roman law texts, the “who” of a lawsuit was discussed in the same context and, most importantly, with the same seeming concern as the fundamental issues of whether the court had authority over the parties and whether the court had competence over the subject matter. The same is true for many of the texts influenced by Roman law.

History is a strange medium: it carries the most contemporary debates onto the most distant terrain. Both Bruce Mann and David Konig focus on the notions of change and context that undergird the forum essays. Those issues, more than any moment in early New York, link the articles and the comments. By exploring the way we defined “constitutions,” “constitutionalism,” and “constitutional history,” the commentators open up a large and current question. They invite a discussion about approaches to constitutional change.

Little scholarly attention has been paid to the role of Scots law in the development of the post-Revolutionary law and legal system of the United States. This neglect stems largely from the fact that Scots law has had little apparent permanent influence on American law. However, during the “formative era of American law” from the Revolution to the Civil War, a notable effort to introduce America to civil law concepts took place. Furthermore, the impact of the Scottish enlightenment on the fledgling United States in higher education, philosophy, and medicine is well documented. Scottish Enlightenment thought arguably had a significant impact on the Declaration of Independence, which was signed by at least two native-born Scots and an American who was a graduate of the University of Edinburgh.

Kunal Parker's “State, Citizenship, and Territory” can be read in at least two ways. Read one way, it tells an important story about how regulation of the poor was driven upward in Massachusetts during the nineteenth century, from the localities to the state. In the seventeenth century, Massachusetts had imposed primary responsibility for care of the poor on its towns. But during the eighteenth century, with the growth of a landless, wandering population, town poor relief budgets came under increasing pressure. The towns responded by lobbying the Massachusetts legislature to pass a series of statutes that made it more and more difficult to acquire a town settlement. People who fell into need in Massachusetts but who had not acquired a town settlement became state paupers for whom the state, rather than any town, was fiscally responsible. As it became more and more difficult to acquire a town settlement, the number of state paupers increased, shifting a portion of the fiscal burden of poor relief from the towns onto the state.

Charles Evans Hughes's career ran along the fault lines of most of the major political events of his lifetime. Muckraking catapulted him to fame. He governed New York during four key years of the Progressive era as an effective administrator and earnest reformer. He stayed with the Republican Party when the Progressives bolted in 1912. He ran for the presidency in 1916 but missed the prize, albeit by a narrower electoral college margin than any other contender until the very end of the century. He was instrumental in negotiating the international naval disarmament accords of 1921–22, landmarks of progressive internationalism in their day that fell under sharp criticism a decade later. He presided over the U.S. Supreme Court during the key years of the New Deal, though in most histories of the 1930s Court he comes across as something of an also-ran behind its more memorable shapers: Brandeis, Cardozo, Sutherland, Black, even Roberts. Hard to pin to any achievement or distinct idea, slipping in and out of the dramatic movements of his day, he was the kind of man who makes history but easily falls out of the history books.

In February 1915, non-citizen teachers throughout California abruptly learned that they would soon lose their jobs when state officials announced that local and county governments were required to enforce a long-forgotten anti-alien public employment law. In response, one Canadian immigrant teacher, Katharine Short, launched a diplomatic, legal, political, and public relations campaign against the policy. Earning the support of powerful (Anglo-)Canadian nationalists in wartime and a favorable depiction in California news coverage as a “practically American” Canadian woman, Short’s efforts culminated in an exemption for most immigrant teachers from the state’s nativist public employment policies. This article recovers, recounts, and contextualizes the California Alien Teachers Controversy of 1915 at the center of transformations in the political development, law, and politics of American citizenship and citizenship rights from the late-nineteenth to mid-twentieth centuries. It testifies to the growing power and powers of state governments to shape immigrants' lives and livelihoods via alienage law long into the mid-twentieth century, the rhetorical strength and courtroom limits of “right to contract” arguments in the context of anti-alien hiring and licensure disputes, and the disparate impact of these nativist laws on immigrants owing to inequalities of race, gender, and class and how those inequalities shaped the less-than-inclusive aims and strategies of Katharine Short in her campaign to alter the state's nativist public employment policies.

Crucial to the implementation of the War Relocation Authority's (WRA) regulations of its detention camps for the uprooted Japanese American community of the West Coast were the WRA “project attorneys,” white lawyers stationed in the camps who gave legal advice to administrators and internees alike. These lawyers left behind a voluminous correspondence that opens a new window on the WRA's relationship with its prisoners, a relationship heretofore understood as encompassing coercion on one side and either compliance or resistance on the other. This article uses the voluminous correspondence of the project attorney at the Heart Mountain Relocation Center in Wyoming as a new lens for viewing the regulatory relationship between the WRA and the imprisoned community. It focuses on three of the many matters about which the project attorney gave advice: the design of the camp's community government, its criminal justice system, and its business enterprises. Evidence from this one law office suggests that on many key issues, the relationship between the WRA and the internees was marked not so much by coercion as by reciprocal accommodation, with each taking account of some of the preferences of the other. While the data are from just one of the ten WRA camps, they suggest a need to reconsider our understanding of how this American system of racial imprisonment operated.

On May 11, 1938, two New Orleans policemen entered the Astoria Restaurant, marched to the kitchen, and approached Loyd D. T. Washington, a 41-year-old African American cook. They informed Washington that they would be taking him to the First Precinct station for questioning, although they assured the cook that he need not change his clothes and “should be right back” to the “Negro restaurant,” where he had worked for 3 years. Immediately after arriving at the station house, police officers “surrounded” Washington, showed him a photograph of a man, and announced that he had killed a white man in Yazoo City, Mississippi, 20 years earlier. When Washington insisted that he did not know the man in the photograph, that he had never been to (or even heard of) Yazoo City, and that he had been in the army at the time of the murder, the law enforcers confined him in a cell, although they had no warrant for his arrest and did not charge him with any crime. The following day, a detective brought him to the “show-up room” in the precinct house, where he continued the interrogation and, according to Washington, “tried to make me sign papers stating that I had killed a white man” in Mississippi. As every African American New Orleanian knew, the show-up (or line-up) room was the setting where detectives tortured suspects and extracted confessions. “You know you killed him, Nigger,” the detective roared. Washington, however, refused to confess, and the detective began punching him in the face, knocking out five of his teeth. After Washington crumbled to the floor, the detective repeatedly kicked him and broke one of his ribs. The beating continued for an hour, until other policemen restrained the detective, saying “give him a chance to confess and if he doesn't you may start again.” But Washington did not confess, and the violent interrogation began anew. A short time later, another police officer interrupted the detective, telling him “do not kill this man in here, after all he is wanted in Yazoo City.” Bloodied and writhing in pain, Washington asked to contact his family, but the request was ignored. Because he had not been formally charged with a crime, New Orleans law enforcers believed that Washington had no constitutional protection again self-incrimination or coercive interrogation and no right to an arraignment or bail, and they had no obligation to contact his relatives or to provide medical care for him.

James Hackney's article provocatively points our attention to very important and underexplored issues concerning the interplay of science and politics in the dramatic evolution of law and neoclassical economics since the Second World War. At the heart of his article is his rejection of any reductionist interpretation of the leading developments in this area. Modern law and neoclassical economics, he argues, cannot be accurately viewed either as merely a faithful, nonpoliticized application of modern social science or, alternatively, as simply a convenient vehicle for the promotion of particular contentious political beliefs. Hackney insists that law and neoclassical economics, both in general and in the specific doctrinal area he emphasizes, is about both science and politics. His article seeks to demonstrate this duality and, more broadly, to clarify the general nature and evolution of modern law and economics. Hackney highlights key general characteristics of twentieth-century intellectual thought and examines the influence of those characteristics, as well as the interplay between science and politics, in a series of landmark works on law and economics that have great relevance to recent debates over appropriate products liability standards.

On March 16, 1801, President Jefferson issued commissions to fifteen men to serve as justices of the peace for the County of Washington in the District of Columbia. Thirteen of the fifteen were among twenty-three justices of the peace who had been nominated by President Adams and confirmed on his last day in office. Benjamin Moore was one of two original Jefferson appointees; among the Adams appointees left off the list was William Marbury. Thus were set in motion two cases in which the Supreme Court would have an opportunity to address issues central to the great controversy over repeal of the 1801 Judiciary Act. In both cases, the Court ducked.

One of the most important legacies of the American Civil War, not just in the re-united States of America but also in the nineteenth and twentieth century world, were the new laws of war that the conflict introduced. “Lieber's Code,” named after the man who authored it for the Lincoln administration, was a set of instructions written and issued in April 1863 to govern the conduct of “the armies of the United States in the field.” It became a template for all subsequent codes, including the Hague and Geneva conventions. Widely understood as a radical revision of the laws of war and a complete break with the Enlightenment tradition, the code, like the war that gave rise to it, reflected the new post-Napoleonic age of “people's wars.” As such, it pointed forward, if not as the expression of the first total war, then at least as an expression of the first modern one, with all the blurring of boundaries that involved.

This article, part of the forum “The Everyday Materials of Colonial Legal Spaces,” analyzes how Spanish law intersected with longue-durée Indigenous histories to pattern performative judicial violence in disputes over boundary lands separating Indigenous communities. During the late seventeenth and eighteenth centuries when population growth and expansion and commercialization of the livestock industry put pressure on Indigenous lands, Native judicial officers used their coercive power and symbols of judicial authority to physically enter boundary lands and shape the course of legal disputes. By combining legal and extralegal procedures, Native officials developed customary patterns of judicial practice and performance proper to their own jurisdiction in which objects invested with political, sacred, and quotidian meaning figured centrally. Staffs of office and whips wielded by Native authorities as emblems of Indian administrative and legal jurisdiction represented one category of the everyday materials of law. Clothing, farming implements, and livestock afforded other tools with which Indigenous farmers and authorities made legal claims. When reading land disputes alongside criminal cases of land invasions across Oaxaca’s judicial archives, it becomes clear that Native officials and farmers used these objects to struggle over territory and authority in cycles of litigation, land titling or contracts of joint-possession, and violence that often endured for decades or centuries, forming an enduring facet of agrarian custom in the region.

This article surveys the debate between “progressives” and “revisionists” about the Constitution and constitutional interpretation during the late nineteenth and early twentieth centuries. Contemporary revisionist scholarship assumes that its victory over progressive scholarship is complete. The article suggests otherwise. First, it summarizes the revisionists’ achievements. Second, in an attempt to improve the quality of the debate, it maintains that “revisionist” and “progressive” legal historians undermine their cases by using words like “progressive,” “Gilded Age,” and “Jacksonian,” and that “revisionist” is not an enlightening term, either. Third, it contends that revisionists have made straw men out of the progressives, whose diversity and contributions they ignore, and that they have shown a lack of empathy for the circumstances facing the progressives. At considerable risk, progressives called attention to the relevance of political calculation, economic self-interest, and biography to understanding the Constitution, constitutional interpretation, and judicial power. The article also observes that revisionists have not yet won the day and that there are still “progressive” holdouts in the legal academy and history departments. Finally, it argues that like the work of “revisionists,” the scholarship of the “progressives”—particularly if we rechristen both—still has something to teach us and that it is time to abandon the familiar dialectic of thesis and antithesis and turn to synthesis.