front cover of Obligations in Roman Law
Obligations in Roman Law
Past, Present, and Future
Edited by Thomas A. J. McGinn
University of Michigan Press, 2013

Long a major element of classical studies, the examination of the laws of the ancient Romans has gained momentum in recent years as interdisciplinary work in legal studies has spread. Two resulting issues have arisen, on one hand concerning Roman laws as intellectual achievements and historical artifacts, and on the other about how we should consequently conceptualize Roman law.

Drawn from a conference convened by the volume's editor at the American Academy in Rome addressing these concerns and others, this volume investigates in detail the Roman law of obligations—a subset of private law—together with its subordinate fields, contracts and delicts (torts). A centuries-old and highly influential discipline, Roman law has traditionally been studied in the context of law schools, rather than humanities faculties. This book opens a window on that world.

Roman law, despite intense interest in the United States and elsewhere in the English-speaking world, remains largely a continental European enterprise in terms of scholarly publications and access to such publications. This volume offers a collection of specialist essays by leading scholars Nikolaus Benke, Cosimo Cascione, Maria Floriana Cursi, Paul du Plessis, Roberto Fiori, Dennis Kehoe, Carla Masi Doria, Ernest Metzger, Federico Procchi, J. Michael Rainer, Salvo Randazzo, and Bernard Stolte, many of whom have not published before in English, as well as opening and concluding chapters by editor Thomas A. J. McGinn.

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Oh, What a Loansome Time I Had
The Civil War Letters of Major William Morel Moxley, Eighteenth Alabama Infantry, and Emily Beck Moxley
Emily Beck Moxley
University of Alabama Press, 2002
This rare correspondence between a soldier and his wife relates in poignant detail the struggle for survival on the battlefield as well as on the home front and gives voice to the underrepresented class of small farmers

Most surviving correspondence of the Civil War period was written by members of a literate, elite class; few collections exist in which the woman's letters to her soldier husband have been preserved. Here, in the exchange between William and Emily Moxley, a working-class farm couple from Coffee County, Alabama, we see vividly an often-neglected aspect of the Civil War experience: the hardships of civilian life on the home front.

Emily's moving letters to her husband, startling in their immediacy and detail, chronicle such difficulties as a desperate lack of food and clothing for her family, the frustration of depending on others in the community, and her growing terror at facing childbirth without her husband, at the mercy of a doctor with questionable skills. Major Moxley's letters to his wife reveal a decidedly unromantic side of the war, describing his frequent encounters with starvation, disease, and bloody slaughter.

To supplement this revealing correspondence, the editor has provided ample documentation and research; a genealogical chart of the Moxley family; detailed maps of Alabama and Florida that allow the reader to trace the progress of Major Moxley's division; and thorough footnotes to document and elucidate events and people mentioned in the letters. Readers interested in the Civil War and Alabama history will find these letters immensely appealing while scholars of 19th-century domestic life will find much of value in Emily Moxley's rare descriptions of her homefront experiences.
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Ohio Canal Era
A Case Study of Government and the Economy, 1820–1861
Harry N. Scheiber
Ohio University Press, 2012

Ohio Canal Era, a rich analysis of state policies and their impact in directing economic change, is a classic on the subject of the pre–Civil War transportation revolution. This edition contains a new foreword by scholar Lawrence M. Friedman, Professor of Law, Stanford Law School, and a bibliographic note by the author.

Professor Scheiber explores how Ohio—as a “public enterprise state,” creating state agencies and mobilizing public resources for transport innovation and control—led in the process of economic change before the Civil War. No other historical account of the period provides so full and insightful a portrayal of “law in action.” Scheiber reveals the important roles of American nineteenth-century government in economic policy-making, finance, administration, and entrepreneurial activities in support of economic development.

His study is equally important as an economic history. Scheiber provides a full account of waves of technological innovation and of the transformation of Ohio’s commerce, agriculture, and industrialization in an era of hectic economic change. And he tells the intriguing story of how the earliest railroads of the Old Northwest were built and financed, finally confronting the state-owned canal system with a devastating competitive challenge.

Amid the current debate surrounding “privatization,” “deregulation,” and the appropriate use of “industrial policy” by government to shape and channel the economy. Scheiber’s landmark study gives vital historical context to issues of privatization and deregulation that we confront in new forms today.

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Oliver Wendell Holmes Jr. and Legal Logic
Frederic R. Kellogg
University of Chicago Press, 2018
With Oliver Wendell Holmes, Jr. and Legal Logic, Frederic R. Kellogg examines the early diaries, reading, and writings of Justice Oliver Wendell Holmes, Jr. (1841–1935) to assess his contribution to both legal logic and general logical theory. Through discussions with his mentor Chauncey Wright and others, Holmes derived his theory from Francis Bacon’s empiricism, influenced by recent English debates over logic and scientific method, and Holmes’s critical response to John Stuart Mill’s 1843 A System of Logic

Conventional legal logic tends to focus on the role of judges in deciding cases. Holmes recognized input from outside the law—the importance of the social dimension of legal and logical induction: how opposing views of “many minds” may converge. Drawing on analogies from the natural sciences, Holmes came to understand law as an extended process of inquiry into recurring problems.

Rather than vagueness or contradiction in the meaning or application of rules, Holmes focused on the relation of novel or unanticipated facts to an underlying and emergent social problem. Where the meaning and extension of legal terms are disputed by opposing views and practices, it is not strictly a legal uncertainty, and it is a mistake to expect that judges alone can immediately resolve the larger issue.
 
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On the Battlefield of Merit
Harvard Law School, the First Century
Daniel R. Coquillette and Bruce A. Kimball
Harvard University Press, 2015

Harvard Law School is the oldest and, arguably, the most influential law school in the nation. U.S. presidents, Supreme Court justices, and foreign heads of state, along with senators, congressional representatives, social critics, civil rights activists, university presidents, state and federal judges, military generals, novelists, spies, Olympians, film and TV producers, CEOs, and one First Lady have graduated from the school since its founding in 1817.

During its first century, Harvard Law School pioneered revolutionary educational ideas, including professional legal education within a university, Socratic questioning and case analysis, and the admission and training of students based on academic merit. But the school struggled to navigate its way through the many political, social, economic, and legal crises of the century, and it earned both scars and plaudits as a result. On the Battlefield of Merit offers a candid, critical, definitive account of a unique legal institution during its first century of influence.

Daniel R. Coquillette and Bruce A. Kimball examine the school’s ties with institutional slavery, its buffeting between Federalists and Republicans, its deep involvement in the Civil War, its reluctance to admit minorities and women, its anti-Catholicism, and its financial missteps at the turn of the twentieth century. On the Battlefield of Merit brings the story of Harvard Law School up to 1909—a time when hard-earned accomplishment led to self-satisfaction and vulnerabilities that would ultimately challenge its position as the leading law school in the nation. A second volume will continue this history through the twentieth century.

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On the Laws and Customs of England
Translated, with revisions and notes, by Samuel E. Thorne
Harvard University Press

This publication, issued in cooperation with the Selden Society, reproduces completely the Yale edition of 1915–1942, which has long been unobtainable. To it has been added an English translation, the first in almost a century, incorporating many improvements of the text, drawn from a re-examination of the manuscripts and a further identification of Henry de Bracton’s sources, Roman and English.

Volume I contains George E. Woodbine’s prolegomena to his edition, written in 1915, to which Samuel Thorne has added a prefatory note, reclassifying and redating the manuscripts on which the edition was based. Volume II begins the text and translation, which will be completed in Volume III and Volume IV. Notes and indices will appear in Volume V.

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logo for Harvard University Press
On the Laws and Customs of England
Translated, with revisions and notes, by Samuel E. Thorne
Harvard University Press

This publication, issued in cooperation with the Selden Society, reproduces completely the Yale edition of 1915–1942, which has long been unobtainable. To it has been added an English translation, the first in almost a century, incorporating many improvements of the text, drawn from a re-examination of the manuscripts and a further identification of Henry de Bracton’s sources, Roman and English.

Volume I contains George E. Woodbine’s prolegomena to his edition, written in 1915, to which Samuel Thorne has added a prefatory note, reclassifying and redating the manuscripts on which the edition was based. Volume II begins the text and translation, which will be completed in Volume III and Volume IV. Notes and indices will appear in Volume V.

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logo for Harvard University Press
On the Laws and Customs of England
Translated, with revisions and notes, by Samuel E. Thorne
Harvard University Press

This publication, issued in cooperation with the Selden Society, reproduces completely the Yale edition of 1915–1942, which has long been unobtainable. To it has been added an English translation, the first in almost a century, incorporating many improvements of the text, drawn from a re-examination of the manuscripts and a further identification of Henry de Bracton’s sources, Roman and English.

Volume I contains George E. Woodbine’s prolegomena to his edition, written in 1915, to which Samuel Thorne has added a prefatory note, reclassifying and redating the manuscripts on which the edition was based. Volume II begins the text and translation, which will be completed in Volume III and Volume IV. Notes and indices will appear in Volume V.

[more]

logo for Harvard University Press
On the Laws and Customs of England
Translated, with revisions and notes, by Samuel E. Thorne
Harvard University Press

This publication, issued in cooperation with the Selden Society, reproduces completely the Yale edition of 1915–1942, which has long been unobtainable. To it has been added an English translation, the first in almost a century, incorporating many improvements of the text, drawn from a re-examination of the manuscripts and a further identification of Henry de Bracton’s sources, Roman and English.

Volume I contains George E. Woodbine’s prolegomena to his edition, written in 1915, to which Samuel Thorne has added a prefatory note, reclassifying and redating the manuscripts on which the edition was based. Volume II begins the text and translation, which will be completed in Volume III and Volume IV. Notes and indices will appear in Volume V.

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On the Republic. On the Laws
Cicero
Harvard University Press

The statesman on statecraft.

Cicero (Marcus Tullius, 106–43 BC), Roman lawyer, orator, politician, and philosopher, of whom we know more than of any other Roman, lived through the stirring era that saw the rise, dictatorship, and death of Julius Caesar in a tottering republic. In his political speeches especially and in his correspondence we see the excitement, tension, and intrigue of politics and the part he played in the turmoil of the time. Of about 106 speeches, delivered before the Roman people or the Senate if they were political, before jurors if judicial, fifty-eight survive (a few of them incompletely). In the fourteenth century Petrarch and other Italian humanists discovered manuscripts containing more than 900 letters of which more than 800 were written by Cicero and nearly 100 by others to him. These afford a revelation of the man all the more striking because most were not written for publication. Six rhetorical works survive and another in fragments. Philosophical works include seven extant major compositions and a number of others; and some lost. There is also poetry, some original, some as translations from the Greek.

The Loeb Classical Library edition of Cicero is in twenty-nine volumes.

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Only One Place of Redress
African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal
David E. Bernstein
Duke University Press, 2001
In Only One Place of Redress David E. Bernstein offers a bold reinterpretation of American legal history: he argues that American labor and occupational laws, enacted by state and federal governments after the Civil War and into the twentieth century, benefited dominant groups in society to the detriment of those who lacked political power. Both intentionally and incidentally, claims Bernstein, these laws restricted in particular the job mobility and economic opportunity of blacks.
A pioneer in applying the insights of public choice theory to legal history, Bernstein contends that the much-maligned jurisprudence of the Lochner era—with its emphasis on freedom of contract and private market ordering—actually discouraged discrimination and assisted groups with little political clout. To support this thesis he examines the motivation behind and practical impact of laws restricting interstate labor recruitment, occupational licensing laws, railroad labor laws, minimum wage statutes, the Davis-Bacon Act, and New Deal collective bargaining. He concludes that the ultimate failure of Lochnerism—and the triumph of the regulatory state—not only strengthened racially exclusive labor unions but contributed to a massive loss of employment opportunities for African Americans, the effects of which continue to this day.
Scholars and students interested in race relations, labor law, and legal
or constitutional history will be fascinated by Bernstein’s daring—and controversial—argument.
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front cover of The Oracle and the Curse
The Oracle and the Curse
A Poetics of Justice from the Revolution to the Civil War
Caleb Smith
Harvard University Press, 2013

Condemned to hang after his raid on Harper’s Ferry, John Brown prophesied that the crimes of a slave-holding land would be purged away only with blood. A study of omens, maledictions, and inspired invocations, The Oracle and the Curse examines how utterances such as Brown’s shaped American literature between the Revolution and the Civil War.

In nineteenth-century criminal trials, judges played the role of law’s living oracles, but offenders were also given an opportunity to address the public. When the accused began to turn the tables on their judges, they did so not through rational arguments but by calling down a divine retribution. Widely circulated in newspapers and pamphlets, these curses appeared to channel an otherworldly power, condemning an unjust legal system and summoning readers to the side of righteousness.

Exploring the modes of address that communicated the authority of law and the dictates of conscience in antebellum America’s court of public opinion, Caleb Smith offers a new poetics of justice which assesses the nonrational influence that these printed confessions, trial reports, and martyr narratives exerted on their first audiences. Smith shows how writers portrayed struggles for justice as clashes between human law and higher authority, giving voice to a moral protest that transformed American literature.

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front cover of The Original Meaning of the Fourteenth Amendment
The Original Meaning of the Fourteenth Amendment
Its Letter and Spirit
Randy E. Barnett, Evan D. Bernick
Harvard University Press, 2021

A Federalist Notable Book

“An important contribution to our understanding of the 14th Amendment.”
Wall Street Journal

“By any standard an important contribution…A must-read.”
National Review

“The most detailed legal history to date of the constitutional amendment that changed American law more than any before or since…The corpus of legal scholarship is richer for it.”
Washington Examiner

Adopted in 1868, the Fourteenth Amendment profoundly changed the Constitution, giving the federal judiciary and Congress new powers to protect the fundamental rights of individuals from being violated by the states. Yet, the Supreme Court has long misunderstood or ignored the original meaning of its key Section I clauses.

Barnett and Bernick contend that the Fourteenth Amendment must be understood as the culmination of decades of debate about the meaning of the antebellum Constitution. In the course of this debate, antislavery advocates advanced arguments informed by natural rights, the Declaration of Independence, and the common law, as well as what is today called public-meaning originalism.

The authors show how these arguments and the principles of the Declaration in particular eventually came to modify the Constitution. They also propose workable doctrines for implementing the amendment’s key provisions covering the privileges and immunities of citizenship, due process, and equal protection under the law.

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front cover of Originalism and the Good Constitution
Originalism and the Good Constitution
John O. McGinnis and Michael B. Rappaport
Harvard University Press, 2013

Originalism holds that the U.S. Constitution should be interpreted according to its meaning at the time it was enacted. In their innovative defense of originalism, John McGinnis and Michael Rappaport maintain that the text of the Constitution should be adhered to by the Supreme Court because it was enacted by supermajorities—both its original enactment under Article VII and subsequent Amendments under Article V. A text approved by supermajorities has special value in a democracy because it has unusually wide support and thus tends to maximize the welfare of the greatest number.

The authors recognize and respond to many possible objections. Does originalism perpetuate the dead hand of the past? How can following the original meaning be justified, given that African Americans and women were excluded from the enactment of the Constitution in 1787 and many of its subsequent Amendments? What is originalism’s place in interpretation of the Constitution, when after two hundred years there is so much non-originalist precedent?

A fascinating counterfactual they pose is this: had the Supreme Court not interpreted the Constitution so freely, perhaps the nation would have resorted to the Article V amendment process more often and with greater effect. Their book will be an important contribution to the literature on originalism, which is now the most prominent theory of constitutional interpretation.

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front cover of Owning Performance | Performing Ownership
Owning Performance | Performing Ownership
Literary Property and the Eighteenth-Century British Stage
Jane Wessel
University of Michigan Press, 2022
In 1710, England’s first copyright law gave authors the ability to own their works, but it was not until 1833 that literary property law was extended to protect dramatic performance. Between these dates, generations of playwrights grappled for control over their intellectual property in a cultural and legal environment that treated print differently from performance. As ownership became a central concern for many, actors fought to possess their dramatic parts exclusively, playwrights struggled to control and profit from repeat performances of their works, and managers tried to gain a monopoly over the performance of profitable plays.

Owning Performance follows the careers of some of the 18th century’s most influential playwrights, actors, and theater managers as they vied for control over the period’s most popular shows. Without protection for dramatic literary property, these figures developed creative
 extra-legal strategies for controlling the performance of drama—quite literally performing their ownership. Their various strategies resulted in a culture of ephemerality, with many of the period’s most popular works existing only in performance and manuscript copies. Author Jane Wessel explores how playwrights and actors developed strategies for owning their works and how, in turn, theater managers appropriated these strategies, putting constant pressure on artists to innovate. Owning Performance reveals the wide-reaching effects of property law on theatrical culture, tracing a turn away from print that affected the circulation, preservation, and legacy of 18th century drama.
 
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