Abstract Three important changes in the 1920s created the modern Supreme Court. First, the Court gained the power to choose which cases it would hear. Previously, the Court had to decide every case that litigants presented to it. In the 1920s, however, the Court became what it is today—an institution that primarily decides important questions of law and only incidentally resolves disputes between the litigants who happen to appear before it. Second, the Court got its own building, the one it still occupies today. The building’s design presented the justices to the public as distant oracles, while its location and its massive scale signified the Court’s equality with the other two branches of government. Third, the Court gradually began to enforce the noneconomic constitutional rights of individuals against the government. Nearly all the Court’s best-known modern cases are in this category.

Abstract The Supreme Court’s remarkable power was ambivalently displayed during the Civil War and its aftermath, when the justices decided several important cases challenging the legality of the Union’s conduct of the war and the federal government’s postwar program of Reconstruction. In the Prize Cases (1863), the Court affirmed the constitutionality of the Union blockade of southern ports. After the war, the Court invalidated several aspects of Reconstruction, including the use of military commissions in Ex parte Milligan (1866) and the exclusion of former Confederates from government positions in Cummings v. Missouri (1867). In the Legal Tender Cases (1871), the Court overruled one of its own decisions from just one year before and affirmed the constitutionality of the paper currency the federal government issued to finance the war.

Abstract In the United States, we answer some of our most bitterly contested questions by presenting them to nine lawyers, the justices of the Supreme Court. The Court was the most powerful court in the world when it was established in the late 1700s, and until recently it has had no competitors for the title. This book is about how the Court acquired so much power, how it has retained its power in the face of repeated challenges, and what it has done with its power over the years. The book shows that from the beginning, the Court has always been tasked with deciding high-profile cases involving issues that a great many people cared deeply about, along with a much larger number of obscure cases raising technical questions of little interest to most people. Critics of the Court’s best-known decisions have always accused the justices of deciding cases on political rather than legal grounds. In this respect, today’s criticism of the Court continues a tradition that has lasted for more than two centuries.

This chapter examines the status of natural law in the legal system over the past century. In law schools, natural law never ceased to be a topic of study. This academic interest in natural law has had almost no effect on the working legal system, where natural law has been relied upon by only the most idiosyncratic of judges and lawyers. The history of our use of natural law has nevertheless continued to exert influence on the legal system, which still contains doctrines and practices that were once based on the law of nature.

Before the late 19th century, natural law played an important role in the American legal system. Lawyers routinely used it in their arguments, and judges often relied upon it in their opinions. Today, by contrast, natural law plays virtually no role in the legal system. When natural law was part of a lawyer’s toolkit, lawyers thought of judges as finders of the law, but when natural law dropped out of the legal system, lawyers began thinking of judges as makers of the law instead. The Decline of Natural Law explores the causes and consequences of this change. It discusses the ways in which lawyers used natural law and why the concept seemed reasonable to them. It examines several long-term trends in legal thought that weakened the position of natural law, including the use of written constitutions, the gradual separation of the spheres of law and religion, the rapid growth of legal publishing, and the position of natural law in some of the 19th century’s most contested legal issues. It describes the profession’s rejection of natural law in the late 19th and early 20th centuries. And it explores the ways in which the legal system responded to the absence of natural law.

This chapter takes a close look at how natural law and custom virtually disappeared from the legal system in the late 19th and early 20th centuries. These were important changes, because they knocked out the common law’s two traditional foundations. If neither natural law nor custom were to play a role in the legal system, lawyers would have to rethink the grounding of the common law and the nature of common law decisionmaking. Natural law had also been a guide for judges in ascertaining the meaning of statutes and sometimes even in striking them down. Without natural law, lawyers would have to rethink the nature of statutory interpretation.

Abstract The Tragedy of the Commons tends to be remembered today as the canonical statement of the idea that commonly-owned resources will be overused. But this idea was well known for centuries before Hardin wrote. Hardin acknowledged that he got the example of cattle in a common field from the early nineteenth century economist William Forster Lloyd, and by Lloyd’s time the idea was already familiar and was already being applied to the analysis of overpopulation, Hardin’s primary concern. This paper will trace the history of the idea that common ownership is inefficient, and will suggest why The Tragedy of the Commons nevertheless quickly attained its canonical status.

MANY of us would have recognized Freedom Bound as a Christopher Tomlins production even if his name were not on the cover. One reason is that he is characteristically explicit and self-conscious about the role of law in the stories he tells. Law, when Tomlins writes about it, is as much of an actor as the people he writes about. Law “supplied the institutional means by which . . . new commonwealths . . . were organized.” Law “established the conditions of migrants’ departure and of transit.” Law “was the conceptual structure, the organizational discourse, by which their moves were enabled” (69). And those are just a few examples from a single page. Law in this book is always doing things, but it is not doing them in a fuzzy half-metaphorical sense, as it is in some legal scholarship. Here law is doing specific things, and it is doing them in a specific way, a way that we see more often in the work of lawyers than in the work of historians. This may not sound like a compliment, but I mean it as one. Tomlins is taking a view of law from the inside as well as from the outside. I am using the terms “inside” and “outside” differently from the way those terms are often used in this context. One of the oldest divides in legal scholarship is the one between law in books and law in action. A person who is working inside a legal system, either as a decision maker or as someone trying to persuade a decision maker, necessarily has to give priority to the formal surface of the law, to the words written in the books. Of course we know that the formal law is not always a good reflection of social practice, so a person working outside the legal system, trying to understand the behavior of the people governed by it, will see the law in books as just one of several factors producing the law in action. As applied to legal history, this division translates into what is often expressed as a distinction between “internal” and “external” legal history. Internal legal history describes legal change as unfolding by a logical process within the law itself, without any cause external to the legal system. No actual human being believes that this is how legal change takes place, but the norms of legal discourse require lawyers and judges to write as if they do, and sometimes they find it hard to

Book Review| February 01 2010 Review: Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity, by J. Kehaulani Kauanui Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity. By J. Kehaulani Kauanui. (Durham, N.C., Duke University Press, 2008. xvi + 242 pp. $79.95 cloth, $22.95 paper) Stuart Banner Stuart Banner University of California, Los Angeles Search for other works by this author on: This Site PubMed Google Scholar Pacific Historical Review (2010) 79 (1): 122–123. https://doi.org/10.1525/phr.2010.79.1.122 Views Icon Views Article contents Figures & tables Video Audio Supplementary Data Peer Review Share Icon Share Facebook Twitter LinkedIn Email Tools Icon Tools Get Permissions Cite Icon Cite Search Site Citation Stuart Banner; Review: Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity, by J. Kehaulani Kauanui. Pacific Historical Review 1 February 2010; 79 (1): 122–123. doi: https://doi.org/10.1525/phr.2010.79.1.122 Download citation file: Ris (Zotero) Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All ContentPacific Historical Review Search © 2010 by the Regents of the University of California Article PDF first page preview Close Modal You do not currently have access to this content.

Journal Article Bain Attwood. Possession: Batman's Treaty and the Matter of History.Assisted by Helen Doyle. (Miegunyah Volumes, Second Series, number 115.) Carlton, Victoria: The Miegunyah Press. 2009. Pp. xv, 415. $54.99 Get access Bain Attwood. Possession: Batman's Treaty and the Matter of History. Assisted by Helen Doyle. (Miegunyah Volumes, Second Series, number 115.)Carlton, Victoria: The Miegunyah Press. 2009. Pp. xv, 415. $54.99. Stuart Banner Stuart Banner University of California, Los Angeles Search for other works by this author on: Oxford Academic Google Scholar The American Historical Review, Volume 115, Issue 1, February 2010, Pages 209–210, https://doi.org/10.1086/ahr.115.1.209 Published: 01 February 2010

Most court opinions are like actors: the older they get, the less people pay attention to them. For instance, the case immediately after Pierson v. Post in volume 3 of Caines's Reports is called Hollingsworth v. Napier. It was an important case in its day, much more important than Pierson v. Post, because it involved a recurring question of commercial law: what rights, if any, did a seller retain in goods stored in a public warehouse after he had delivered a bill of sale to the buyer? Hollingsworth went on to be cited in forty court opinions distributed fairly evenly through the 1870s, but then its career was over. It was cited twice in the 1880s, once in 1892, and never again.

Michael Grossberg and Christopher Tomlins, eds., The Cambridge History of Law in America, vol. 3, The Twentieth Century and After (1920–), New York: Cambridge University Press, 2008. Pp. 958. $120 (ISBN 978-0-521-80307-6). - Volume 27 Issue 3