This article investigates how the crack cocaine epidemic and the legislation it provoked reshaped American governance, particularly at the intersection of criminal justice, immigration policy, and national security. It argues that the Anti-Drug Abuse Acts of 1986 and 1988 did more than escalate punitive drug enforcement; they reimagined the relationship between citizenship and the state. Drawing on a rich archive of congressional records, federal reports, and media accounts, the article shows how policymakers constructed racialized narratives around 'criminal aliens'-especially Jamaican and Dominican traffickers-to justify aggressive policing, surveillance, and deportation. These figures served as political instruments, collapsing the boundaries between domestic crime and foreign threat. By embedding immigration enforcement within drug interdiction efforts and domestic policing, lawmakers institutionalized a legal framework that yoked criminal and immigration systems together with American foreign policy.
In 1925, Italian Fascist Prime Minister Benito Mussolini began to transform his government into a dictatorial regime, cracking down on political opposition and anti-Fascist activities, which were referred to as 'subversion'. The 1926 'ultra-Fascist' Law No 2008 established a new criminal court, the Special Tribunal for the Defence of the State, to deal with subversive activities that were deemed to constitute political crimes against the regime's security. Although a large body of academic literature on the Special Tribunal continues to grow, the details of the subversion cases that came before it, and what they can reveal about anti-Fascist activity and the regime's response, have received limited attention. Based on an extensive study of Special Tribunal decisions in subversion cases during the first two years of its operation (1927-8), this article builds a systematic analysis of what subversive activities involved, how they were charged and tried, what the Special Tribunal decided, and how its judgments can be understood in the overall context of Fascism. The article provides a framework for analysing political judgments by focusing on their form and functions, and shows how the Fascist regime's reliance on the ritual of a trial and legal judgment had performative, repressive, propagandistic, and educative dimensions that ultimately underscore Fascism's falsification of legality.
This is an article about how secrecy and law distort history and misinform policy. Beginning in the 1960s and culminating with the Supreme Court's 1972 ruling in Branzburg v Hayes, litigation and debate over the reporter's privilege established the expectation that journalists resist subpoenas, warrants, and informal requests for evidence. However, archival research and records obtained in an Freedom of Information Act (FOIA) request reveal that journalists cooperated with federal criminal investigations after Branzburg. The case, symbolic of the rise of adversarial journalism, did not end compliance, but submerged it. Secrecy-overclassification of records, non-disclosure of grand jury proceedings, and the confidentiality of subpoenas-has allowed a narrow understanding of journalists' role in a democracy to dominate case law, historical and legal scholarship, and public debate. Secrecy and law distorted the public record, then history, as salient moments of conflict disproportionately shaped collective memory, which misinformed scholarship and policy debate on news subpoenas. The hidden tradition of journalists cooperating with local, federal, and international authorities is, this article concludes, an argument for protecting press freedom.
Several scholars of twentieth-century American legal history have recently argued that originalism-a method of constitutional interpretation commonly associated with the conservative legal movement-first emerged as southern Republicans and conservative Democrats (many of whom were evangelical Protestants) reacted to the US Supreme Court's 1954 decision in Brown v Board of Education. But southern opponents of Brown were not the only figures to have self-consciously introduced originalist ways of thinking about the Constitution into the nation's legal vocabulary at mid-century. Indeed, this article reveals that, nearly a decade before Brown, Catholics hundreds of miles away from Selma and Little Rock similarly sought to convince their neighbours that the Constitution ought to be understood according to the intentions of its eighteenth-century drafters (or, when appropriate, its nineteenth-century amenders). And importantly, they did so not to undermine the Civil Rights Movement, but rather to ensure that the Court's 1947 decision in Everson v Board of Education would not stymie the American Catholic Church's efforts to obtain public financial assistance for parochial schools. In encouraging jurists, scholars, and voters to understand the First Amendment's Religion Clauses through the lens of founding-era history, post-Everson Catholics became as responsible as anyone outside of the Supreme Court for originalism's decisive (re)shaping of the Religion Clauses during the next half-century. But this ultimately proved troubling to some as the conservative legal movement became ascendant in the 1980s. From the perspective of these critics of First Amendment originalism, God's natural law, not Thomas Jefferson's metaphorical 'wall of separation' between church and state, should determine the First Amendment's meaning. In concluding, this article therefore suggests that Catholics initially turned to originalism pragmatically to vindicate their background philosophical and theological conceptions of religious liberty, but increasingly came to realize that originalism-to the extent that it relied on positivist assumptions about the nature of individual rights-was alone inadequate to do so.
Since the #MeToo movement, prominent men accused of sexual misconduct have frequently brought defamation claims against their accusers and media companies that have published the allegations. This trend has generated a wealth of debate and scholarship, but little research has placed such cases within a historical context. This article seeks to fill this gap in legal history by examining men's sexual misconduct defamation claims in the nineteenth-century United States. By analysing numerous court records and connecting them with shifts in work patterns and models of masculinity, it argues that men's claims for sexual misconduct defamation were increasingly connected to the rise of the professions during the nineteenth century. Whereas ideas of 'male fortitude' in the face of sexual accusations were central to judicial adjudication of rural men's claims-particularly farmers-courts took the vindication of the sexual reputations of urban, professional men more seriously. Such scandals had the capacity not just to insult or wound individual feelings or threaten bonds of community or kin, but they could imperil respect for the emerging professions and undermine the authority of social institutions. Scandals involving professors could erode the repute of universities, reports about doctors could undermine respect for medicine, rumours about lawyers could breed distrust of the courts, and news articles about teachers could threaten the education system. Defamation cases show that men's sexual transgressions mattered most when they questioned the authority of professional expertise and republican projects of other men.
This article argues that the relatively obscure practice of jury riders and recommendations reveals a historic political role for juries which has hitherto gone unnoticed. In short, riders mattered as a community intervention into the work of both judges and of local government. This article draws on over 1000 verdicts, both in criminal courts and in coroners' courts, from England and Wales, 1900 to 1999. In recent work unearthing the existence of jury riders, Coen and Howlin principally sought to reveal what was said by juries in addition to their formal verdicts; this article focuses on what these observations were for. This shift in focus reveals that the type of jury had significance not only for what the jury said, but also for how it was received. Where a coroner's jury offered a rider, it was a means for informal rebuke, with no definite, automatic outcome (although local authorities often felt compelled to respond). There was power in this sort of pronouncement, but it was often quite diffuse. Riders from trial juries were very different. Here, the statement added to the verdict was much more likely to be a formal recommendation for mercy. Trial juries were probably less free to set out their views in detail, but their words had more formal power, feeding directly (albeit only normally as part of a wider picture) into the sentencing decisions of judges. But while the precise power of a jury's words changed from one context to another, it was a consistently powerful, often political intervention.
This article uses the case of Fortune Ferguson, Jr to explore the creation and effects of the creation of a centralized justice system in Florida in the 1920s. This involved a 16-year-old Black teenager accused, convicted, and executed for rape in Florida in the mid-1920s. This represented the first person sentenced to die in the newly created electric chair in Florida's state prison. The shift to the electric chair and state-run executions reflected a larger move by the legislature to remove criminal justice processes from the decentralized system that existed prior to 1923. This system vested significant authority in the community, local officials, and private contractors. But that system came under significant strain by the 1910s and 1920s. The shift to the electric chair and state executions emerged out of the larger critiques of the decentralized justice system. As such, this case reflects an effort to establish the authority of the new centralized system, as it was one of the first cases to be tried in it. The transition to state-run private executions was not as disadvantageous to local officials as scholars have suggested. Instead of framing the centralization of criminal justice processes as a competition between state and local criminal justice actors, the case of Fortune Ferguson provides insight into the collaborative efforts that occurred between state and local officials that augmented the authority of formal agents of criminal justice at both the state and local levels.
The Bank of Canada is an independent Crown corporation that sees its primary responsibility to be promoting Canada's economic welfare by maintaining low and stable inflation. When it was first created in 1934, however, the Bank was a radically different institution-a privately owned corporation primarily meant to anchor Canada's economy globally and manage foreign exchange. Not only was the Bank not tasked with managing inflation, but key policymakers behind its founding thought doing so would be a severe mistake. This article offers the first legal history of the Bank's founding. It maps the enormous public debate that accompanied the creation of the Bank and the various, often contradictory visions expressed for it. The article labels these five visions: a Bankers' Bank, a Government Bank, an Imperial Bank, an Economists' Bank, and a Bank of the People. The article then looks at the original legal design of the Bank and argues that it largely fit the Imperial Bank model. Charting this history helps us better understand this vital organ of Canadian government, and has the potential to upset many of our accepted, contemporary notions of central banking.
In the initial years of the republican era, New Granada (now Colombia) underwent a profound transformation in its sources and mechanisms of credit, transitioning from the predominance of a spiritual economy during the colonial period to a secular system that gradually evolved into a banking framework by the late nineteenth century. Starting in the mid-1830s, influenced by liberal ideology, a combination of factors catalysed this evolution, including the liberalization of interest rates, the establishment of savings institutions, and intellectual discourse surrounding the need to organize a formal banking system. Despite several attempts to establish an institutionalized financial framework, only in the 1860s and 1870s did the federal government ultimately foster the formation of regional banks. This article serves as an introduction to comprehend the origins and progression of the Colombian banking system.
Homicide suspects in the United States have sometimes maintained, and prosecutors and juries have sometimes agreed, that their crimes were less serious or were justified entirely if they were responding to homosexual advances by their victims. Studies of such a defence’s use have, with a single exception from 1868, been confined to the period after 1920. A newspaper search, modelled on one used to explore another supposed ‘unwritten law’, identifies nine additional instances between the Civil War and 1914. In the most notable of them, the murder of Joseph Frye in Boston in 1879, such advances were all but explicitly recognized as constituting legal provocation that mitigated the crime. In this and other cases, a credible invocation of the defence seems to have lightened the killer’s punishment when any was imposed.
On 20 January 1969, the Department of Justice (DOJ) filed suit against 37 International Longshoremen’s Association (ILA) locals in 10 Texas cities. The DOJ charged that the ILA was in violation of the 1964 Civil Rights Act. In United States v International Longshoremen’s Association, the government attacked the segregated union structure found throughout the state’s waterfronts and condemned a long history of racial bias. In Texas, black dock workers made up two-thirds of ILA membership, but got fewer than half of the total work assignments. Black longshoremen both leaned on the law and defied it. For almost two decades, they refused to merge with white locals, but filed federal complaints to gain fair employment. This article argues that the struggle to maintain separatism while advocating for equality at ILA waterfronts was an effort to gain an unattainable workplace freedom by insisting on upholding a century-long tradition of biracial cooperation that was at the root of economic injustice, but at the cornerstone of an indispensable moral value and black sustainability.
Journal Article Hendrik Hartog, Nobody's Boy and His Pals: The Story of Jack Robbins and the Boys' Brotherhood Republic Get access Hendrik Hartog, Nobody's Boy and His Pals: The Story of Jack Robbins and the Boys' Brotherhood Republic ( Chicago: University of Chicago Press, 2024), pp 328. US$26.00 (paperback). ISBN 9780226834375 Kathryn Schumaker Kathryn Schumaker University of Sydney, NSW, Australia [email protected] Search for other works by this author on: Oxford Academic Google Scholar American Journal of Legal History, njaf001, https://doi.org/10.1093/ajlh/njaf001 Published: 11 February 2025
John Locke, famously, told a property origin story. This article tells a property theory origin story, asking how Locke's property theory, which omits common rights, emerged from a common law of property that centred them-and showing how this omission influenced the colonial American law that Locke drafted. Locke was silent on or rejected the common law of property, which recognized common rights and defences against privatization of commons through enclosure. Instead, Locke adopted law reform arguments lauding enclosure because it improved waste land. Locke's property theory therefore attempts to improve the common law of property by orienting it around private rather than common property. He asks a question about the origin of property absent from common law: how do we create private rights to common land? He takes 'waste' to have purely negative connotations, avoiding the neutral meanings of that word at common law. And he stipulates that enclosure of English commons requires only tacit consent of commoners, excluding common law defences against enclosure. Locke's is an equal opportunity enclosure. His spoilage principle and plan to reform Virginia's land laws sought to benefit the poor by preventing vast enclosures and rural depopulation. However, he theorized a clean chain of title, absent in common law, which could prevent messy disputes over wealthy estates. This article shows the common law background from which Locke departed, thus deepening understanding of both our private property regime, often justified by Locke's property theory, and a sometimes-overlooked alternative to it, the common law of property.
The history of contract law in New South Wales in the decades after the closure of the Court of Civil Jurisdiction in 1814 has not received much attention from legal historians. This is an important omission. At the heart of this story is a simple but critical inquiry: the way in which the law of contract in the colony mirrored or diverged from the law of contract that applied back in London. This was rarely a matter that judges addressed explicitly. Piecing together the relationship is an exercise in reconstruction. This can only be done by examining the body of case law. The creation of the Australasian Colonial Legal History Library, combined with readily searchable newspaper reports, has made this easier. The evidence in the mid-nineteenth century is still sometimes sketchy. Context is relevant. The colony moved from a quasi-military penal colony to a significant hub of commercial activity. The period also saw a shift in the legal system as the old informal systems evolved into a much more legalistic one. For the most part, New South Wales contract law was aligned with that in England. Some issues, like the desertion of sailors demanded local solutions. There are other examples in which well-established English contract doctrine did not necessarily fit very well with the conditions of the colony.
Journal Article Christian G Fritz, Monitoring American Federalism: The History of State Legislative Resistance Get access Christian G Fritz, Monitoring American Federalism: The History of State Legislative Resistance ( CUP 2023), pp 411. US$39.99 (hardcover). ISBN 9781009325578 Jane Manners Jane Manners Temple Beasley School of Law, Philadelphia, PA, USA E-mail: jane.manners@temple.edu Search for other works by this author on: Oxford Academic Google Scholar American Journal of Legal History, njae007, https://doi.org/10.1093/ajlh/njae007 Published: 08 June 2024
In the 1760s and 1770s, Thomas Bever, a once-eminent but today nearly-forgotten English civilian, was delivering a course of lectures devoted to civil law at Oxford. The final part of those lectures, known as the Appendix, was of a different character from the earlier parts. In the Appendix Bever discussed the development of the law and constitution of 15 European countries. His description was an attempt to compare different systems and to abstract general legal concepts common to different countries. Along with other issues, Bever was specifically interested in abstracting the common roots of medieval feudalism. The analysis offered in this article is the result of archival investigation comparing two different versions of Bever's lecture notes. The main objective of the article is to reconstruct Bever's narrative, together with analysing his methodology and the intellectual framework of his work. This investigation reveals the intricacies of the legal education offered at Oxford in the second half of the eighteenth century.
Doctors who escaped Nazi-occupied Europe and immigrated to Australia were greeted mostly with hostility by representatives of the local medical profession. Australian doctors agitated for amendment of legislation that governed registration of medical practitioners in each state, so that it removed any legal entitlement of the European medical exiles to practise medicine. Tasmania's Parliament was the first Australian legislature to accede to these medical practitioners' pressure, and did so before the Second World War began. This article explores reasons for both the particular eagerness of the Tasmanian medical profession to prevent the emigres from practising medicine and its capacity to achieve its objective so quickly. This analysis provides a case study of how doctors attempted to use licensing laws to entrench the dominance of the medical profession.
Elite lawyers who debated codification in the nineteenth-century United States treated codification as inseparable from a liberal Protestant textualism that had taken hold in the early national era. Legislators declared codification to be the necessary final step of the Protestant Reformation and frequently characterized common law lawyers as beholden to 'superstition' and 'priestcraft'. Their opponents denounced the codifiers' idea that texts alone could adequately convey common meanings and delighted to point out the endlessly fracturing glosses on supposedly 'clear' texts that divided the positivists into an ever-increasing number of sects. Many works have addressed the relationship between populism and positivism over the course of the codification debates in the United States. What these works have missed is the Protestantism. Understanding how lawyers of another generation approached these questions can help us to appreciate the varieties of American textualism, and the fact that today's textualism may be as foreign to textualisms of the past as to other methods entirely. Rather than the forerunners of a modern, rationalist 'Republic of Statutes', the codifiers were the literal and figurative sons of a post-Calvinist generation that was unquenchably optimistic about the clarity of texts and the common sense of individuals reading them. This lens also helps us better understand the defenders of the common law, who were not so much the retrograde servants of property rights and judicial supremacy as they are often presented, but were more often practically minded lawyers who understood the limits to which legislative texts could change the complex practices of law on the ground.
