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The Abolition of the Right to Trial by Jury in Civil Cases in England (Charles S. Bullock)
DOI 10.1093/ajlh/njad028
Abstract:
Prior to 1854, jury trial was the exclusive mode of resolving cases involving disputed facts at common law. By 1935, the civil jury trial had been virtually eliminated in all but a few obscure types of tort action. This article consists of a detailed examination, based primarily on legislative sources and contemporary legal periodicals, of how the right to trial by jury in civil cases was abolished. The first concrete step towards jury abolition occurred in 1854, when litigants in high court cases were empowered to waive their right to jury trial in favour of trial by judge alone. Thereafter, a series of legislative acts and judicial rules incrementally transferred the power to choose the mode of trial in particular types of cases from litigants to trial judges, who routinely chose trial by judge alone.
Brave New World? Care and Custody of Cildren at the Court for Divorce and Matrimonial Causes in Mid-Victorian England (Penelope Russell)
DOI 10.1093/ajlh/njad029
Abstract:
This article considers the accessibility and impact of the mid-Victorian divorce court’s new custody powers, by tracing the children of those who petitioned the court within the first two years of the court’s establishment and contrasting this with court pleadings and orders. Focusing on the care of children by location as revealed by the census and other sources, this study then deals in more detail with individual cases to illustrate the experience of parties in divorce court processes for child custody. This study generates an original data set to find that, whereas the majority of resident female petitioners sought a custody order in the petition, only a minority ended up with an order. Three broad issues are addressed: the gendered nature of rights in respect of children on marital breakdown, the implications of legal remedies being accessed through male gatekeepers, and the exercise of discretion at the newly opened divorce court.
Banking Law in Italian Legal Consulting between the Fourteenth and the Fifteenth Centuries (Mario Conetti)
DOI 10.1093/ajlh/njad027
Abstract:
Banking operations in northern and central Italy between late fourteenth and early fifteenth century were very sophisticated and often gave rise to disputes involving the expertise only law professors could provide. To provide solutions which were at the same time viable and grounded in legal culture, lawyers went beyond merely practical considerations to work out legal institutions as a framework to banking activities. In doing so, they developed a proper banking law, a peculiar legal system.
In forma pauperis: Indentured Servitude, the Right to Counsel, and White Citizenship in the Seventeenth-Century Chesapeake (Anna Suranyi)
DOI 10.1093/ajlh/njad024
Abstract:
Indentured servitude was an exploitative form of coerced labor in England’s American colonies, but indentured servants were expected to join settler society after completing their terms of indenture, and they possessed clearly defined legal rights and protections in both English and colonial laws, even during their period of servitude. The masters and mistresses of indentured servants sometimes engaged in physical abuse and contractual fraud, but servants could sue their masters or mistresses in court without owing fees, a status termed in forma pauperis. Courts facilitated servant lawsuits and heeded procedural fairness, bringing in compensated witnesses, searching archival records, and even providing pro bono lawyers. It appears that most servants won their cases against their masters and mistresses, obtaining their freedom, their withheld freedom dues, or reimbursement for overlong terms of servitude. Indentured servants’ lawyers affirmed that their clients were rights-bearing members of society, persuasively utilizing terms such as ‘justice’ and ‘equity’ to represent their cases. The access of servants to legal recourse, the courts’ commitment to ensure due process and legal representation, and the frequent victories of servants over their masters demonstrated that indentured servants were regarded as valued members of colonial society in the Chesapeake, and in other colonial regions. Unlike enslaved people, who possessed neither legal rights nor access to the courts, white indentured servants possessed inherent, though limited, rights of freeborn subjects, even if from disenfranchised groups, such as women, children, or those of Irish origin. The legal and social distinctions between servitude and slavery began arising half a century before Bacon’s Rebellion in the 1670s, which is conventionally assumed to be a watershed event in the division between indentured servitude and slavery. The affirmation of the rights of indentured servants developed in parallel with the growth of slavery, and contributed to developing ideals of white citizenship.
Justice Kennedy’s Jurisprudence of Dignity: From Sovereign Immunity to Gay Rights
DOI 10.1093/ajlh/njad026
Abstract:
Although this article uses Obergefell v Hodges (2015) as its frame, it aims to bring out some distinctive features of Justice Kennedy’s jurisprudence of dignity more broadly. There are two reasons why such an investigation is important. The first is important to those interested in the legal case. Indeed, in Dobbs v Jackson Women’s Health (2022), the Court now argues that the relevant ‘test’ for determining whether a right is protected under the Due Process Clause is whether the right is found to be ‘deeply rooted’ in the nation’s history and tradition. This article aims to critique this decision, as well as originalist approaches to constitutional interpretation more broadly, and seeks to resurrect and reconstruct Kennedy’s jurisprudence of dignity that has undergirded (sometimes quietly) the expansion of civil rights protections to the LGBTQ+ community. The second reason this investigation is important is of interest to philosophers and legal historians. Dignity is a notoriously elusive concept, and much ink has been spilt trying to sort out the precise nature of its content and its boundaries. This article brings together the many (seemingly disparate) uses of dignity found across cases involving gay rights, abortion, and foreign sovereign immunity, and argues Kennedy effectively weaves these uses together in ways that may sharpen our understanding of dignity in both the philosophical and legal literatures.
Hoist by the Colonizer’s Own Device? Law Reporting in Mandatory Palestine (Yair Sagy & Eyal Katvan)
DOI 10.1093/ajlh/njad014
Abstract:
This article tells the history of the Palestine Law Reports series (PLR), introduced in 1934 to Mandate-ruled Palestine. It unearths discussions that preceded the PLR’s publications following a campaign for authorized law reporting launched by lawyers in Palestine in the 1920s to 1930s. Canvassing a broad institutional context for the emergence of the PLR, we argue that in launching the campaign local lawyers sought not only to render Palestinian common law more predictable and amenable to professional handling, but also to approximate the role granted in the metropole and the common law tradition to practicing lawyers in propagating binding precedents. Local lawyers wanted to have a slice of the action of creating a local common law and in designing the Palestinian legal landscape. Unsurprisingly, they were met with the opposition of Chief Justice McDonnell, who sought to control the PLR enterprise, resisting non-judicial involvement in its editing and production. Finally, the article argues that, regardless of McDonnell’s motivations, from an institutional point of view, his achievement in laying down a foundational institution for the generation of a local common law is momentous. He therefore emerges from our analysis as one of the chief architects of the common law in Palestine, and—to this day—in Israel.
International Legacies of a Century and a Half of the Case Method (Han-Ru Zhou)
DOI 10.1093/ajlh/njad025
Abstract:
Save the Constitution, the United States’s most famous legal export may well be the case method. This article pieces together the story of how CC Langdell’s brainchild was brought to the rest of the common law world in treading the momentous events and geopolitics of the last century and a half, and reflects on the lessons from this global experiment for the present and future of the case method. After initially attracting little attention overseas, the rise of the case method encountered its watershed in the post-war period. From then on, the method’s further expansion branched into two narratives: one in the Western world and the other in the former British African, Asian, and Caribbean colonies. The overseas experiments with the case method yielded some durable successes and cast a light on its singular ability to adapt to widely different environments. But mostly the picture is one of mixed results, especially outside the Western world, owing to a failure to devise an educational program adapted to the varying local circumstances. As with law itself, the teaching of law is inextricably tied to local idiosyncrasies and world politics, thus making the future of the case method as difficult to predict as it would have been for Langdell and his contemporaries. Today’s different national and international contexts from that of 1945 represent an opportunity to reassess the merits of the case method in our more mature legal and educational environments, freed from colonial and neocolonial agendas.
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