In The Turn to Process, Kunal M. Parker explores the massive reorientation of American legal, political, and economic thinking between 1870 and 1970. Over this period, American conceptions of law, democracy, and markets went from being oriented around truths, ends, and foundations to being oriented around methods, processes, and techniques. No longer viewed as founded in justice and morality, law became a way of doing things centered around legal procedure. Shedding its foundations in the 'people,' democracy became a technique of governance consisting of an endless process of interacting groups. Liberating themselves from the truths of labor, markets and market actors became intellectual and political techniques without necessary grounding in the reality of human behavior. Contrasting nineteenth and twentieth century legal, political, and economic thought, this book situates this transformation in the philosophical crisis of modernism and the rise of the administrative state.

This critical socio-legal history probes pretrial accusations through which colonial criminal law forged social orders for settler-colonialism across western Canada, focusing on Alberta, 1874–1884. Following military intelligence, a Northwest Mounted Police force was established to compel Dominion law. That force began by deploying accusatory theatres to receive information about crimes, arrest suspects, and decide via preliminary examination who to send to trial. George Pavlich draws on exemplary performances of colonial accusation to show how police officers and justices of the peace translated local social lore into criminal law. These performances reflected intersecting powers of sovereignty, disciplinarily, and biopolitics; they held accused individuals legally culpable for crimes and obscured social upheavals that settlers brought. Reflecting on colonial legacies within today's vast and unequal criminalizing institutions, this book proposes that we seek new forms of accusation and legality, learning from Indigenous laws that tackle individual and collective responsibilities for societal disquiet.

In this expansive history, Robert J. Steinfeld offers a thorough re-interpretation of the origins of American judicial review and the central role it quickly came to play in the American constitutional system. Beginning with Privy Council review of American colonial legislation, the book goes on to provide detailed descriptions of the character of the first American constitutions, showing that they drew heavily on traditional Anglo/American constitutional assumptions, which treated legislatures as the primary interpreters of constitutions. Steinfeld then expertly analyses the central role lawyers and judges played in transforming these assumptions, creating the practice and doctrine of American judicial review in a half dozen state cases during the 1780s. The book concludes by showing that the ideas formulated during those years shaped critical decisions taken by the Constitutional Convention of 1787, which turned the novel practice into a permanent, if still deeply controversial, feature of the American constitutional system.

Bonds of Empire presents an account of slave law that is entirely new: one in which English law imbued plantation slavery with its staying power even as it insulated slave owners from contemplating the moral implications of owning human beings. Emphasizing practice rather than proscription, the book follows South Carolina colonists as they used English law to maximize the value of the people they treated as property. Doing so reveals that most daily legal practices surrounding slave ownership were derived from English law: colonists categorized enslaved people as property using English legal terms, they bought and sold them with printed English legal forms, and they followed English legal procedures as they litigated over enslaved people in court. Bonds of Empire ultimately shows that plantation slavery and the laws that governed it were not beyond the pale of English imperial legal history; they were yet another invidious manifestation of English law's protean potential.

In the decades before the Civil War, Americans appealed to the nation's sacred religious and legal texts - the Bible and the Constitution - to address the slavery crisis. The ensuing political debates over slavery deepened interpreters' emphasis on historical readings of the sacred texts, and in turn, these readings began to highlight the unbridgeable historical distances that separated nineteenth-century Americans from biblical and founding pasts. While many Americans continued to adhere to a belief in the Bible's timeless teachings and the Constitution's enduring principles, some antislavery readers, including Theodore Parker, Frederick Douglass, and Abraham Lincoln, used historical distance to reinterpret and use the sacred texts as antislavery documents. By using the debate over American slavery as a case study, Jordan T. Watkins traces the development of American historical consciousness in antebellum America, showing how a growing emphasis on historical readings of the Bible and the Constitution gave rise to a sense of historical distance.

Early nineteenth-century American prisons followed one of two dominant models: the Auburn system, in which prisoners performed factory-style labor by day and were placed in solitary confinement at night, and the Pennsylvania system, where prisoners faced 24-hour solitary confinement for the duration of their sentences. By the close of the Civil War, the majority of prisons in the United States had adopted the Auburn system - the only exception was Philadelphia's Eastern State Penitentiary, making it the subject of much criticism and a fascinating outlier. Using the Eastern State Penitentiary as a case study, The Deviant Prison brings to light anxieties and other challenges of nineteenth-century prison administration that helped embed our prison system as we know it today. Drawing on organizational theory and providing a rich account of prison life, the institution, and key actors, Ashley T. Rubin examines why Eastern's administrators clung to what was increasingly viewed as an outdated and inhuman model of prison - and what their commitment tells us about penal reform in an era when prisons were still new and carefully scrutinized.

The late nineteenth- and early twentieth-century US economy maimed and killed employees at an astronomically high rate, while the legal system left the injured and their loved ones with little recourse. In the 1910s, US states enacted workers' compensation laws, which required employers to pay a portion of the financial costs of workplace injuries. Nate Holdren uses a range of archival materials, interdisciplinary theoretical perspectives, and compelling narration to criticize the shortcomings of these laws. While compensation laws were a limited improvement for employees in economic terms, Holdren argues that these laws created new forms of inequality, causing people with disabilities to lose their jobs, while also resulting in new forms of inhumanity. Ultimately, this study raises questions about law and class and about when and whether our economy and our legal system produce justice or injustice.

Oliver Wendell Holmes was one of the most influential figures in American law. As a Supreme Court Justice, he wrote foundational opinions about such important constitutional issues as freedom of speech and the limits of state regulatory power. As a scholar and Massachusetts High Court judge, he helped to reshape the common law for the modern industrial era. And yet, despite the many accounts of his career, Holmes himself remains an enigma. This book is the first to explore the nineteenth-century New England influences so crucial to the formation of his character. Inspired by Ralph Waldo Emerson's transcendentalism, Holmes belonged to a group of men who formulated a philosophy known as American pragmatism that stood as an alternative to English empiricism and German rationalism. This innovative study places Holmes within the transcendentalist, pragmatist tradition and thereby unlocks his unique identity and contribution to American law. Wells' nuanced analysis will appeal to legal scholars, historians, philosophers, and general readers alike.

In an incisive analysis of over two dozen clauses as well as several 'unwritten' rules and practices, The Constitutional Origins of the American Civil War shows how the Constitution aggravated the sectional conflict over slavery to the point of civil war. Going beyond the fugitive slave clause, the three-fifths clause, and the international slave trade clause, Michael F. Conlin demonstrates that many more constitutional provisions and practices played a crucial role in the bloody conflict that claimed the lives of over 750,000 Americans. He also reveals that ordinary Americans in the mid-nineteenth century had a surprisingly sophisticated knowledge of the provisions and the methods of interpretation of the Constitution. Lastly, Conlin reminds us that many of the debates that divide Americans today were present in the 1850s: minority rights vs. majority rule, original intent vs. a living Constitution, state's rights vs. federal supremacy, judicial activism vs. legislative prerogative, secession vs. union, and counter-majoritarianism vs. democracy.

The 1805 New York foxhunting case Pierson v. Post has long been used in American property law classrooms to introduce law students to the concept of first possession by asking how one establishes possession of a wild animal. In this book, Angela Fernandez retells the history of the famous fox case, from its origins as a squabble between two wealthy young men on the South Fork of Long Island through its appeal to the New York Supreme Court and entry into legal treatises, law school casebooks, and law journal articles, where it still occupies a central place. Fernandez argues that the dissent is best understood as an example of legal solemn foolery. Yet it has been treated by legal professionals, the lawyers of its day, and subsequent legal academics in such a serious way, demonstrating how the solemn and the silly can occupy two sides of the same coin in American legal history.

In the contemporary domain of American legal thought there is a dominant way in which lawyers and judges craft their argumentative practice. More colloquially, this is a dominant conception of what it means to 'think like a lawyer'. Despite the widespread popularity of this conception, it is rarely described in detail or given a name. Justin Desautels-Stein tells the story of how and why this happened, and why it matters. Drawing upon and updating the work of Harvard Law School's first generation of critical legal studies, Desautels-Stein develops what he calls a jurisprudence of style. In doing so, he uncovers the intellectual alliance, first emerging at the end of the nineteenth century and maturing in the last third of the twentieth century, between American pragmatism and liberal legal thought. Applying the tools of legal structuralism and phenomenology to real-world cases in areas of contemporary legal debate, this book develops a practice-oriented understanding of legal thought.

Conjugal Misconduct reveals the hidden history of controversial and legally contested marital arrangements in twentieth-century America. William Kuby examines the experiences of couples in unconventional unions and the legal and cultural backlash generated by a wide array of 'alternative' marriages. These include marriages established through personal advertisements and matchmaking bureaus, marriages that defied state eugenic regulations, hasty marriages between divorced persons, provisional and temporary unions referred to as 'trial marriages', racial intermarriages, and a host of other unions that challenged sexual and marital norms. In illuminating the tensions between those who set marriage policies and those who defied them, Kuby offers a fresh account of marriage's contested history, arguing that although marital nonconformists composed only a small minority of the population, their atypical arrangements nonetheless shifted popular understandings of marriage and consistently refashioned the legal parameters of the institution.

Congressman James Mitchell Ashley, a member of the House of Representatives from 1858 to 1868, was the main sponsor of the Thirteenth Amendment to the American Constitution, which declared the institution of slavery unconstitutional. Rebecca E. Zietlow uses Ashley's life as a unique lens through which to explore the ideological origins of Reconstruction and the constitutional changes of this era. Zietlow recounts how Ashley and his antislavery allies shared an egalitarian free labor ideology that was influenced by the political antislavery movement and the nascent labor movement - a vision that conflicted directly with the institution of slavery. Ashley's story sheds important light on the meaning and power of popular constitutionalism: how the constitution is interpreted outside of the courts and the power that citizens and their elected officials can have in enacting legal change. The book shows how Reconstruction not only expanded racial equality but also transformed the rights of workers throughout America.

The Christian Right of the 1980s forged its political identity largely in response to what it perceived as liberal 'judicial activism'. Robert Daniel Rubin tells this story as it played out in Mobile, Alabama. There, a community conflict pitted a group of conservative evangelicals, a sympathetic federal judge, and a handful of conservative intellectuals against a religious agnostic opposed to prayer in schools, and a school system accused of promoting a religion called 'secular humanism'. The twists in the Mobile conflict speak to the changes and continuities that marked the relationship of 1980s' religious conservatism to democracy, the courts, and the Constitution. By alternately focusing its gaze on the local conflict and related events in Washington, DC, this book weaves a captivating narrative. Historians, political scientists, and constitutional lawyers will find, in Rubin's study, a challenging new perspective on the history of the Christian Right in the United States.

In this innovative book, historian Matthew Crow unpacks the legal and political thought of Thomas Jefferson as a tool for thinking about constitutional transformation, settler colonialism, and race and civic identity in the era of the American Revolution. Thomas Jefferson's practices of reading, writing, and collecting legal history grew out of broader histories of early modern empire and political thought. As a result of the peculiar ways in which he theorized and experienced the imperial crisis and revolutionary constitutionalism, Jefferson came to understand a republican constitution as requiring a textual, material culture of law shared by citizens with the cultivated capacity to participate in such a culture. At the center of the story in Thomas Jefferson, Legal History, and the Art of Recollection, Crow concludes, we find legal history as a mode of organizing and governing collective memory, and as a way of instituting a particular form of legal subjectivity.

Owning Ideas is a comprehensive account of the emergence of the concept of intellectual property in the United States during the long nineteenth century. In the modern information era, intellectual property has become a central economic and cultural phenomenon, and an important lever for allocating wealth and power. This book uncovers the intellectual origins of this modern concept of private property in ideas through a close study of its emergence within the two most important areas of this field: patent and copyright. By placing the development of legal concepts within their social context, this study reconstructs the radical transformation of the idea. Our modern notion of owning ideas, it argues, came into being when the ideals of eighteenth-century possessive individualism at the heart of early patent and copyright were subjected to the forces and ideology of late-nineteenth-century corporate liberalism.

Before Dred Scott draws on the freedom suits filed in the St Louis Circuit Court to construct a groundbreaking history of slavery and legal culture within the American Confluence, a vast region where the Ohio, Mississippi, and Missouri Rivers converge. Formally divided between slave and free territories and states, the American Confluence was nevertheless a site where the borders between slavery and freedom, like the borders within the region itself, were fluid. Such ambiguity produced a radical indeterminacy of status, which, in turn, gave rise to a distinctive legal culture made manifest by the prosecution of hundreds of freedom suits, including the case that ultimately culminated in the landmark United States Supreme Court decision in Dred Scott vs Sandford. Challenging dominant trends in legal history, Before Dred Scott argues that this distinctive legal culture, above all, was defined by ordinary people's remarkable understanding of and appreciation for formal law.

The US occupation of the Philippine Islands in 1898 began a foundational period of the modern Philippine state. With the adoption of the 1935 Philippine Constitution, the legal conventions for ultimate independence were in place. In this time, American officials and their Filipino elite collaborators established a representative, progressive, yet limited colonial government that would modernize the Philippine Islands through colonial democracy and developmental capitalism. Examining constitutional discourse in American and Philippine government records, academic literature, newspaper and personal accounts, The Foundations of the Modern Philippine State concludes that the promise of America's liberal empire was negated by the imperative of insulating American authority from Filipino political demands. Premised on Filipino incapacity, the colonial constitution weakened the safeguards that shielded liberty from power and unleashed liberalism's latent tyrannical potential in the name of civilization. This forged a constitutional despotism that haunts the Islands to this day.

Whale oil lit the cities and greased the machines of the Industrial Revolution. In light of its importance, competition between whalers was high. Far from courts and law enforcement, competing crews of American whalers not known for their gentility and armed with harpoons tended to resolve disputes at sea over ownership of whales. Left to settle arguments on their own, whalemen created norms and customs to decide ownership of whales pursued by multiple crews. The Law of the Whale Hunt provides an innovative examination of how property law was created in the absence of formal legal institutions regulating the American whaling industry in the eighteenth and nineteenth centuries. Using depositions, court testimony, logbooks, and other previously unused primary sources, Robert Deal tells an exciting story of American whalers hunting in waters from the North Atlantic to the South Pacific and the Sea of Okhotsk.

Gender Remade explores a little-known experiment in gender equality in Washington Territory in the 1870s and 1880s. Building on path-breaking innovations in marital and civil equality, lawmakers extended a long list of political rights and obligations to both men and women, including the right to serve on juries and hold public office. As the territory moved toward statehood, however, jury duty and constitutional co-sovereignty proved to be particularly controversial; in the end, 'modernization' and national integration brought disastrous losses for women until 1910, when political rights were partially restored. Losses to women's sovereignty were profound and enduring - a finding that points, not to rights and powers, but to constitutionalism and the power of social practice as Americans struggled to establish gender equality. Gender Remade is a significant contribution to the understudied legal history of the American West, especially the role that legal culture played in transitioning from territory to statehood.