In All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (2010), Keith Bybee considers the hypocrisy of modern law—that is, the widespread view that judges are both principled and partisan—by drawing an analogy with courtesy. Both law and courtesy contain and manage the diverse and potentially divisive interests that would, were they not contained, disrupt social life. In this essay I extend this argument by considering whether the relationship between law and courtesy is more than merely analogical. I suggest that both systems are aspects of larger historical developments out of which emerged the modern subject and the modern state, creating a social world made up of apparently bounded individuals and institutions. As such, law and courtesy do more than conceal and contain interests and subjectivity; they produce the unruly, partisan subjects they are designed to manage.

Compared to the practice in other professional schools and academic fields at universities, law professors are hired at a young age based primarily upon their academic merit determined through grades, class rank, and school rank. This emphasis upon narrowly defined academic merit—apart from achievement demonstrated through original scholarship or experience in professional practice—first emerged during “the professionalization of the American law professor” between 1870 and 1900 at Harvard Law School (HLS). Though normative today, this outcome was neither necessary nor uncontested. In the late nineteenth century the new standard of hiring faculty according to their academic merit was energetically opposed by those favoring the antecedent standard of professional experience and reputation. Only when financial considerations counterbalanced that traditional standard did hiring decisions tip in favor of the new principle. Not until the early 1900s, when the second generation of academic meritocrats dominated the HLS faculty, did the new hiring standard become unequivocally established as policy in the school and, by extension, in legal education.

Responding to a set of review essays, the author of Law's Allure: How Law Shapes, Constrains, Saves, and Kills Politics (Silverstein 2009) argues that politicians and policy entrepreneurs fail to calculate the risks of juridification—the judicialization of policy combined with the legalization of politics itself—which have expanded and accelerated in the United States in recent decades. Paradigmatic case studies (on subjects including poverty, electoral districting, automated budgeting, war powers, abortion laws, and the regulation of tobacco as well as the environment) illustrate the risks of various patterns of juridification and construct an agenda for future research.

Sarah Gordon'sThe Spirit of the Law: Religious Voices and the Constitution in Modern America (2010) details the advent, beginning in the 1940s, of a “new constitutional world” pertaining to the religion clauses. By focusing on case studies, Gordon's narrative history shows the emergence, maturation, and waning of a rich historical moment in which religiously motivated popular constitutionalists had a profound impact on how the Constitution was technically interpreted by the courts. Shifting perspectives from history to ethnography, the essay synthesizes Gordon's stories to yield an anatomy of “religious” popular constitutionalism as it appears in Gordon's book and conjectures at what it might look like if we left court records behind.

This article traces the impact of Robert Gordon's “Critical Legal Histories” on scholars writing at the intersection of law and history. While Gordon's central claim about the constitutive character of the law has come to serve as a working assumption in the field, the case he made for the intellectual history of doctrine as articulated by legal mandarins has proven less influential in the twenty-five years since the article was published. Instead, legal historians have focused their attention on the interaction between official and lay forms of law-making with a decided emphasis on popular legal consciousness. For precisely this reason, the time may be ripe for reconsideration of mandarin materials, not only for what they have to tell us about the dynamics of cultural change, but also as sources of insight into basic puzzles of the human condition that have tended across time to be expressed in and through legal forms.

Rapid changes in family life over the last forty years have led to substantial alterations in family law policy; specifically, most states now endorse joint custody arrangements for divorcing families. However, we know little about how lower court judges have embraced or resisted this change. We conducted in‐depth interviews with judges in twenty‐five Indiana jurisdictions in 1998 and 2011. Our findings suggest that judges' views of joint custody dramatically changed. Judges in Wave II indicated a strong preference for joint custody—a theme that was relatively absent in Wave I. The observed change in judicial preferences did not seem to be related to judicial replacement, gender, age, or political party affiliation. Although our conclusions are exploratory, we speculate that shifts in judicial views may be related to changing public mores of parenthood and, relatedly, Indiana's adoption of Parenting Time Guidelines in 2001.

Stories told by and about men who batter women in the courts of Hawai in the mid-19th century and in the late 20th century are strikingly similar. Courts, then as now, accept some justifications for battering and reject others, in the process constructing the boundary between legitimate and illegitimate violence. Throughout this period, the legal system claimed to focus only on the violent act itself, not the emotional or personal violation. The law interprets the violence as brute fact, knowable without regard to the social relationship or system of cultural meanings within which it occurs. There are persistent contradictions between the law's construction of domestic violence as an unambiguous physical act and litigants' and judges' views that these violent acts are moments within the social dynamics of gendered power relations. At the same time, there are recurrent tensions between the efforts of the legal system to portray violent acts against women in terms of rational categories of action and, in contrast, the experience of violence and the meanings within which it occurs that are often opaque to such sense-making, defiant of a simple means-ends calculus.

This article was stimulated by the publication of Toward Equal Justice: A Comparative Study of Legal Aid in Modern Societies, edited by Mauro Cappelletti, James Gordley, and Earl Johnson, Jr. (Dobbs Ferry, N.Y.: Oceana Publications, Inc., 1975), a recent and ambitious entry in the debate over alternative methods of delivering legal services to the poor. Brakel, the author of several publications in the field, feels that the portion written by Johnson, presenting the operational and research experience with legal services for the poor in this country, is one-sided and unsatisfactory and maintains that, through the process of critically examining the Johnson portion, it is possible to present a more balanced picture of the legal aid experience in the United States. This is important for the domestic audience as well as for the international readers whom the book seeks to address.