BiblioVault - Books about Legal History

Gibbons v. Ogden, Law, and Society in the Early Republic

Thomas H. Cox

Ohio University Press, 2009

Gibbons v. Ogden, Law, and Society in the Early Republic examines a landmark decision in American jurisprudence, the first Supreme Court case to deal with the thorny legal issue of interstate commerce.

Decided in 1824, Gibbons v. Ogden arose out of litigation between owners of rival steamboat lines over passenger and freight routes between the neighboring states of New York and New Jersey. But what began as a local dispute over the right to ferry the paying public from the New Jersey shore to New York City soon found its way into John Marshall’s court and constitutional history. The case is consistently ranked as one of the twenty most significant Supreme Court decisions and is still taught in constitutional law courses, cited in state and federal cases, and quoted in articles on constitutional, business, and technological history.

Gibbons v. Ogden initially attracted enormous public attention because it involved the development of a new and sensational form of technology. To early Americans, steamboats were floating symbols of progress—cheaper and quicker transportation that could bring goods to market and refinement to the backcountry. A product of the rough-and-tumble world of nascent capitalism and legal innovation, the case became a landmark decision that established the supremacy of federal regulation of interstate trade, curtailed states’ rights, and promoted a national market economy. The case has been invoked by prohibitionists, New Dealers, civil rights activists, and social conservatives alike in debates over federal regulation of issues ranging from labor standards to gun control. This lively study fills in the social and political context in which the case was decided—the colorful and fascinating personalities, the entrepreneurial spirit of the early republic, and the technological breakthroughs that brought modernity to the masses.

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The Gift of Science

Leibniz and the Modern Legal Tradition

Roger Berkowitz

Harvard University Press, 2005

The front pages of our newspapers and the lead stories on the evening news bear witness to the divorce of law from justice. The rich and famous get away with murder; Fortune 500 corporations operate sweatshops with impunity; blue-chip energy companies that spoil the environment and sicken communities face mere fines that don't dent profits. In The Gift of Science, a bold, revisionist account of 300 years of jurisprudence, Roger Berkowitz looks beyond these headlines to explore the historical and philosophical roots of our current legal and ethical crisis.

Moving from the scientific revolution to the nineteenth-century rise of legal codes, Berkowitz tells the story of how lawyers and philosophers invented legal science to preserve law's claim to moral authority. The "gift" of science, however, proved bittersweet. Instead of strengthening the bond between law and justice, the subordination of law to science transformed law from an ethical order into a tool for social and economic ends. Drawing on major figures from the traditions of law, philosophy, and history, The Gift of Science is not only a mesmerizing and original intellectual history of law; it shows how modern law remains imprisoned by a failed scientific metaphysics.

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Giving It All Away

The Story of William W. Cook and His Michigan Law Quadrangle

Margaret A. Leary

University of Michigan Press, 2011

“Margaret Leary's carefully researched book illuminates a complex man who marked his university in a truly enduring way."
---Francis X. Blouin Jr., Director, Bentley Historical Library, and Professor, School of Information and Department of History, University of Michigan

“Generations of Michigan Law grads have passed on myths about their generous but eccentric benefactor. . . . Now Margaret Leary has given us the real story, and it reads like a gripping whodunit."
---Theodore J. St. Antoine, James E. and Sarah A. Degan Professor Emeritus of Law and Past Dean, University of Michigan Law School

“In an absorbing book, Margaret Leary unstintingly investigates unpublished, archival material to unravel enigmas surrounding William Wilson Cook. She brings to life Cook's brilliant interactions with powerful moguls of the early twentieth century as she traces his lofty, philanthropic mission to elevate the legal profession."
---Ilene H. Forsyth, Arthur F. Thurnau Professor of the History of Art, emerita, University of Michigan

William W. Cook, born in 1858 and a graduate of the University of Michigan and of its law school, made his fortune by investing in the burgeoning telegraph and communications industry, as well as in representing the Mackay Company in their frequent tumultuous battles with Western Union and the U.S. government. Though Cook entered New York society and never returned to Michigan after receiving his law degree, he decided not just to give his alma mater the finest physical facility of any existing law school, but to donate permanent resources that would permit the law school to engage in groundbreaking legal research. However, his generosity proved controversial and eventually very litigious. Margaret A. Leary places Cook's story in the rich social and cultural context of his time and paints a fascinating portrait of a complex figure whose legacy continues to shape the University of Michigan.

Cover photographs: (left) Gregory Fox Photography; (right) Ann B. Cook collection, photo by Russell R. Serbay

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The Glorious Revolution and the Continuity of Law

Richard S. Kay

Catholic University of America Press, 2014

The Glorious Revolution and the Continuity of Law explores the relationship between law and revolution. Revolt - armed or not - is often viewed as the overthrow of legitimate rulers. Historical experience, however, shows that revolutions are frequently accompanied by the invocation rather than the repudiation of law. No example is clearer than that of the Glorious Revolution of 1688-89. At that time the unpopular but lawful Catholic king, James II, lost his throne and was replaced by his Protestant son-in-law and daughter, William of Orange and Mary, with James's attempt to recapture the throne thwarted at the Battle of the Boyne in Ireland. The revolutionaries had to negotiate two contradictory but intensely held convictions. The first was that the essential role of law in defining and regulating the activity of the state must be maintained. The second was that constitutional arrangements to limit the unilateral authority of the monarch and preserve an indispensable role for the houses of parliament in public decision-making had to be established. In the circumstances of 1688-89, the revolutionaries could not be faithful to the second without betraying the first. Their attempts to reconcile these conflicting objectives involved the frequent employment of legal rhetoric to justify their actions. In so doing, they necessarily used the word "law" in different ways. It could denote the specific rules of positive law; it could simply express devotion to the large political and social values that underlay the legal system; or it could do something in between. In 1688-89 it meant all those things to different participants at different times. This study adds a new dimension to the literature of the Glorious Revolution by describing, analyzing and elaborating this central paradox: the revolutionaries tried to break the rules of the constitution and, at the same time, be true to them.

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Government by Mourning

Death and Political Integration in Japan, 1603-1912

Atsuko Hirai

Harvard University Press, 2013

From the early seventeenth to the mid-nineteenth century, the Tokugawa shogunate enacted and enforced myriad laws and ordinances to control nearly every aspect of Japanese life, including observance of a person’s death. In particular, the shoguns Tsunayoshi and Yoshimune issued strict decrees on mourning and abstention that dictated compliance throughout the land and survived the political upheaval of the Meiji Restoration to persist well into the twentieth century.

Atsuko Hirai reveals the pivotal relationship between these shogunal edicts and the legitimacy of Tokugawa rule. By highlighting the role of narimono chojirei (injunctions against playing musical instruments) within their broader context, she shows how this class of legislation played an important integrative part in Japanese society not only through its comprehensive implementation, especially for national mourning of major political figures, but also by its codification of the religious beliefs and customs that the Japanese people had cherished for innumerable generations.

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The Grasping Hand

"Kelo v. City of New London" and the Limits of Eminent Domain

Ilya Somin

University of Chicago Press, 2015

In 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for “public use,” the Court ruled that the transfer of condemned land to private parties for “economic development” is permitted by the Constitution—even if the government cannot prove that the expected development will ever actually happen. The Court’s decision in Kelo v. City of New London empowered the grasping hand of the state at the expense of the invisible hand of the market.

In this detailed study of one of the most controversial Supreme Court cases in modern times, Ilya Somin argues that Kelo was a grave error. Economic development and “blight” condemnations are unconstitutional under both originalist and most “living constitution” theories of legal interpretation. They also victimize the poor and the politically weak for the benefit of powerful interest groups and often destroy more economic value than they create. Kelo itself exemplifies these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them. Moreover, the city’s poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats. The Supreme Court’s unpopular ruling triggered an unprecedented political reaction, with forty-five states passing new laws intended to limit the use of eminent domain. But many of the new laws impose few or no genuine constraints on takings. The Kelo backlash led to significant progress, but not nearly as much as it may have seemed.

Despite its outcome, the closely divided 5-4 ruling shattered what many believed to be a consensus that virtually any condemnation qualifies as a public use under the Fifth Amendment. It also showed that there is widespread public opposition to eminent domain abuse. With controversy over takings sure to continue, The Grasping Hand offers the first book-length analysis of Kelo by a legal scholar, alongside a broader history of the dispute over public use and eminent domain and an evaluation of options for reform.

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The Grasping Hand

"Kelo v. City of New London" and the Limits of Eminent Domain

Ilya Somin

University of Chicago Press, 2015

In 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for “public use,” the Court ruled that the transfer of condemned land to private parties for “economic development” is permitted by the Constitution—even if the government cannot prove that the expected development will ever actually happen. The Court’s decision in Kelo v. City of New London empowered the grasping hand of the state at the expense of the invisible hand of the market.

In this detailed study of one of the most controversial Supreme Court cases in modern times, Ilya Somin argues that Kelo was a grave error. Economic development and “blight” condemnations are unconstitutional under both originalist and most “living constitution” theories of legal interpretation. They also victimize the poor and the politically weak for the benefit of powerful interest groups and often destroy more economic value than they create. Kelo itself exemplifies these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them. Moreover, the city’s poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats. The Supreme Court’s unpopular ruling triggered an unprecedented political reaction, with forty-five states passing new laws intended to limit the use of eminent domain. But many of the new laws impose few or no genuine constraints on takings. The Kelo backlash led to significant progress, but not nearly as much as it may have seemed.

Despite its outcome, the closely divided 5-4 ruling shattered what many believed to be a consensus that virtually any condemnation qualifies as a public use under the Fifth Amendment. It also showed that there is widespread public opposition to eminent domain abuse. With controversy over takings sure to continue, The Grasping Hand offers the first book-length analysis of Kelo by a legal scholar, alongside a broader history of the dispute over public use and eminent domain and an evaluation of options for reform.

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The Greatest and the Grandest Act

The Civil Rights Act of 1866 from Reconstruction to Today

Edited by Christian G. Samito

Southern Illinois University Press, 2018

In this volume ten expert historians and legal scholars examine the Civil Rights Act of 1866, the first federal civil rights statute in American history. The act declared that all persons born in the United States were citizens without regard to race, color, or previous condition of slavery. Designed to give the Thirteenth Amendment practical effect as former slave states enacted laws limiting the rights of African Americans, this measure for the first time defined U.S. citizenship and the rights associated with it.

Essays examine the history and legal ramifications of the act and highlight competing impulses within it, including the often-neglected Section 9, which allows the president to use the nation’s military in its enforcement; an investigation of how the Thirteenth Amendment operated to overturn the Dred Scott case; and New England’s role in the passage of the act. The act is analyzed as it operated in several states such as Kentucky, Missouri, and South Carolina during Reconstruction. There is also a consideration of the act and its interpretation by the Supreme Court in its first decades. Other essays include a discussion of the act in terms of contract rights and in the context of the post–World War II civil rights era as well as an analysis of the act’s backward-looking and forward-looking nature.

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