This article presents the composite social context surrounding the “experiments” that were used to prove witchcraft accusations in early modern England. It demonstrates that legal proof was not imposed by elite legislators and judges, or fashioned in accordance with the voice of scientific experts, but was shaped through complex social dynamics in which the middling sort and petty gentry fulfilled a crucial role. Through this process, popular beliefs percolated into judicial proceedings. Members of influential provincial families were the social agents who reconstructed old supernatural methods of proof into innovative rational experiments, often replicating public displays of proof that helped bolster the criminal charges and provided a competing arena of evidence. The article claims that the judges' cooperation with these “experiments” might have been an endeavor by the official legal system to circumvent the threat posed by a popular grassroots alternative to the exclusive jurisdiction of the court system.

The common question class action has been a source of division and controversy in the legal community. Hailed by its proponents as both a means for small claimants to obtain redress and a deterrent to corporate wrongdoing, the class action has been attacked by others as tantamount to “legalized blackmail” and as threatening to swamp the already overburdened judicial system with proceedings of extraordinary complexity. Two empirical studies of the class action have also reached diametrically opposed conclusions. A study by the American College of Trial Lawyers found that the common question class action suit “has mandated heavy expenditures of judicial time, effort and expense” and has sacrificed “procedural and substantive fairness to the party opposing the class,” while a study commissioned by the Senate Commerce Committee found that most class actions “proceed with reasonable smoothness in the Federal court.” Proposals to restrict the use of class actions have been advanced. While these proposals have not been adopted, the courts have increasingly limited the circumstances under which class actions may be maintained.

This article examines the administration of the poor laws in six southern states from 1800 to 1860. Although southerners were influenced to some degree by developments in northeastern communities, the unique features of antebellum southern life caused poor relief to assume a distinct character. Poverty was simply not perceived as a major concern in the South. Consequently, southerners were less inclined to stigmatize paupers, or to adopt a systematic policy of institutionalizing dependents. They relied heavily on such traditional practices as outrelief and apprenticeship. This approach harmonized with the southern preference for a legal system which encouraged informal solution of social problems at the local level.

A hybrid regime court faces a legitimacy paradox: an activist court risks attracting backlash from the incumbent, whereas a deferential court may undermine public trust. The Hong Kong courts, at least in the twenty or so years following handover, provide an example of courts successfully navigating the legitimacy paradox despite the conflicting expectations from political actors. This article draws on the experiences of the Hong Kong courts to better understand the legitimacy paradox. It identifies three tools that Hong Kong courts have used to maneuver through the paradox, namely (1) the differential treatment of cases according to political stakes; (2) the use of comparative jurisprudence; and (3) the commitment to procedural justice. Studying these techniques may provide relevant insights to courts in similarly constrained political environments as to how judicial legitimacy can be earned. The article also reflects on the institutional future of Hong Kong courts in light of the increasing polarization of Hong Kong society as a result of the anti-extradition bill protests and signs of greater interference from Mainland China.

This article examines the role of industry in implementing and interpreting the international legal norm of human rights due diligence. Our study focuses on a multi-industry association called the Responsible Minerals Initiative (RMI), which has assumed a leading role in implementing conflict minerals legislation and interpreting the norm of human rights due diligence in mineral supply chains. Drawing on interviews with RMI staff, corporate representatives, and independent members of the RMI’s governance committees, we analyze the RMI’s risk assessment tools that facilitate corporate compliance with global mineral supply chain regulations. We demonstrate that these technocratic tools mask the underlying corporate interests that control how human rights due diligence is being interpreted and implemented on the ground. We then argue that global supply chains are being “governed at a distance” through these technical practices whereby companies divest themselves of responsibility to their suppliers. Supply chain governance at a distance is therefore transforming the norm of human rights due diligence from an instrument of corporate accountability to a tool of corporate legitimacy.

Unlike other housing courts, Chicago’s building court is characterized by leniency. The mostly low-income property owners who appear in building court often receive extensions to remedy building code violations or even dismissals of their violations. This article shows that, paradoxically, the consequences of these lenient outcomes are punitive for building court defendants, replicating the kinds of detrimental outcomes that harsher legal enforcement can produce. Building on conceptual apparatus from socio-legal studies, I identify two mechanisms—property markers and hassle of leniency—through which building court entrenches or even exacerbates housing precarity for low-income homeowners and small-time landlords. I argue that without additional support for low-income defendants, even well-intentioned leniency on the part of municipal officials and legal actors reinforces economic inequities in the housing market.

Criminal law’s treatment of spousal violence oscillates between two different views. According to the first view, spousal violence is to be defined and prosecuted using generic titles such as assault or battery. According to the second, spousal violence constitutes a form of abuse—a terminology implying a background state of power or inequality that exists in spousal relationships, turning it into a distinct legal wrong. This Essay draws on Hendrik Hartog’s account of nineteenth-century marital consciousness in Man and Wife in America—which considers people’s assumptions and expectations regarding rights and duties within marriage—to illuminate this contemporary debate and situate it within a larger inquiry concerning the residues of patriarchy in contemporary law and society. This analysis calls for a fresh normative assessment of the different views for proscribing spousal violence under contemporary criminal laws.

Hendrick Hartog’s Pigs and Positivism is well known as an investigation of legal pluralism. The legal pluralism angle of the article focuses on the multiplicity of legal sources. In that sense, it reads “positivism” through the sources thesis: the idea that only those social facts recognized by the legal system as sources of law can exert an impact on the validity of a legal norm. This Essay highlights a different aspect of the article, which is the “definition of law as an arena of conflict within which alternative social visions contended, bargained, and survived.” Crucially, the alternative social visions at stake have different roles for the law itself. In other words, the conflict is not limited to a particular social arrangement (will there or won’t there be pigs on the streets); it is at least in part a conflict over the question of how law will fit into social conflict, or politics.

In this article, the author applies social closure theory to help explain why more than a dozen states have recently enacted more stringent bar exam passing standards and why others are considering similar changes. While higher standards are usually advocated as a way to protect the public from lower student “quality,” the author applies social closure theory and argues that changes in passing standards are a response to a perceived oversupply of lawyers, especially among solo practitioners. In the 1990s, crowding among solo practitioners reached record levels, and real earnings eroded substantially. The author then links this labor market analysis to a critical examination of the knowledge claims that justify the bar exam to the legal profession and the public at large. The article's conclusion is that the psychometric research sponsored by the National Conference of Bar Examiners consistently minimizes and obscures the disparate impact and unfairness of the bar exam for people of color.

This exploratory study of the legal problems or needs of prisoners and mental hospital patients (the institutionalized) reveals the wide range and diversity in the perceptions of what the needs are and what the legal responses might be. It argues for the need to conduct research that first promotes our qualitative understanding of legal demand among the institutionalized, and it suggests the need to experiment with and do research on legal supply programs in the institutions. Only then can we begin to think about quantifying the needs and designing with some precision delivery programs based upon such quantitative information. The study also suggests the need for a lawyer role in the institutional context that departs from traditional role perceptions, both in terms of the approach taken to cases and clients and in terms of the substantive problems deemed deserving of legal attention.

The role of fiduciary law in the development of North American capitalism has been overlooked by institutional economists, who interpret fiduciary law as a form of contract and make the judicial enforcement of contract central to the transaction-cost theory of economic development. This article argues that the emergence of distinctive, equity-based fiduciary laws and norms significantly influenced the development and growth of early-nineteenth-century American markets. Our historical research identifies lawyers as important economic actors, who served as catalysts for the emergence of this governance culture. Lawyers adopted fiduciary principles that allowed them to become trusted intermediaries, thereby addressing the agency-cost problems inherent in complex economic exchange that vex the institutionalists’ contractual account of economic development.