Kastenberg on Historians in the Frick Libel Case

Joshua E. Kastenberg, University of New Mexico, has published, in the St. Louis University Law Journal, The Past May Be Uncomfortable: Frick v. Stevens, the Protection of Scholarly Inquiry, Knowledge, and a Free Society as a Retrospective and Salient Study for Our Time.  It is the first in a series of articles on historians as expert witnesses.  We will note the others as they appear.

The past may be “uncomfortable,” the Washington Post pointed out on July 1, 1966, before adding a far more serious observation: “[t]he suppression of history—which is to say the judgment of historians—is an incongruity of a free society.” A year earlier, Helen C. Frick sued Professor Sylvester K. Stevens in Pennsylvania’s Cumberland County Court of Common Pleas to prevent the publication of his recent history book, Pennsylvania: Birthplace of a Nation. She claimed that the book libeled her deceased father and caused her a loss of standing in the public’s estimation and emotional distress. Judge Clinton R. Weidner indicated his intention to decide the case on the state’s libel laws rather than to dismiss the suit on a First Amendment basis. Equally troubling, Weidner sided with Frick’s attorneys on their evidentiary objection to preclude Stevens from having distinguished historians testify as experts as to the merits of his book. In issuing his ruling, Weidner determined that the historian experts would simply provide otherwise inadmissible hearsay. Professional historians had, on at least eight occasions, testified as experts in state and federal trials as well as before Congress on critical issues such as arms reductions and neutrality legislation. Ironically, if not hypocritically, in 1935 Frick employed a professional historian, Frank Jewett Mather Jr. of Princeton University, when her curator sued her for libel. Perhaps from the vantage of the present, Frick’s lawsuit appears bizarre but in 1965 Pennsylvania’s libel laws included the phrase “tending to blacken the memory of the dead,” as did several other states, and in theory, these laws made her lawsuit feasible.

--Dan Ernst 

Weekend Roundup

• Elizabeth Papp Kamali on "Charles Donahue: Man, Magister, Inimitable Scholar" (Harvard Law Bulletin).  

• The HLS Library has scanned "Harvard’s full collection of 140,000 documents comprising more than 700,000 pages" to produce "the first complete, keyword-searchable online collection of the Nuremberg Trials records" (Harvard Law Bulletin).

• BU Law's notice of legal historian Rephael Stern. 

• Congratulations to Alison LaCroix, upon her election to the American Academy of Arts and Sciences!  Also William Baude and Elizabeth Clemens (UChicago News).  Professor LaCroix will be the speaker at the University of Chicago's 2026 Commencement this June.

• A notice of Jill Lepore's HLS seminar, “The History of Evidence,” devoted to "two key questions: 'What counts as proof?' and 'How has that changed over time?'” (Harvard Law Today).  She discussed her book We the People: A History of the U.S. Constitution on Oregon Public Broadcasting.

• Mary Sarah Bilder and Sarah Isgur will "explore Virginia's central role shaping the nation's founding" as part of the 2026 Founding Debates Program of the George Washington Presidential Library at Mount Vernon and the Virginia Law Foundation on September 24, 2026, from 7 p.m. to 8:30 p.m.  (More.)

• ICYMI: Martin v Hunter’s Lessee (History is Now).  Michael D. Ramsey, Keith Whittington, Kurt Lash, and Lawrence Solum on birthright citizenship (Regulatory Review). The Forgotten History of the School Choice Movement (AEI).

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers 

Sacharoff on the Testimony of Criminal Defendants

Laurent Sacharoff, University of Denver Sturm College of Law, has posted The Accused Speaks, which is forthcoming in the University of Chicago Law Review:

In the founding era, criminal defendants were disqualified from testifying under oath at their own trials. But they were permitted to make an unsworn statement to the jury presenting their factual account. Throughout the 18th century in both England and its North American colonies, criminal defendants regularly told the jury their side of the story, unsworn and uncrossed. 

By the latter 18th century, this practice had become a common law right. It allowed defendants to present facts, address prosecution facts, cross-examine witnesses, and make legal arguments. More importantly, defendants who made an unsworn factual statement did not have to endure cross-examination. Nor, therefore, could they be impeached with prior bad acts, convictions, or arrests, as could other witnesses. 

With the advent of the Revolution in North America, the new states began to expressly protect this common law right to be heard in their constitutions. As this Article shows for the first time, Benjamin Franklin created the right in 1776 in his markup of the Pennsylvania Declaration of Rights: the accused "hath a right to be heard by himself." Numerous early states quickly followed. 

This Article is the first to trace the origins and ambit of "the right to be heard," from its common law origins to its creation as a constitutional right. It examines founding era historical sources in a new light, including thousands of trial transcripts from London and the colonies, letters, caselaw, and state constitutional drafting history. 

This early history forms the core of this Article. Nevertheless, it also sketches the subsequent and contradictory career of the right to be heard. On the one hand, it atrophied when defendants became competent to testify in the latter 19th century; on the other, even today the right remains on the books in 37 state constitutions. This Article therefore surveys how contemporary courts have wrestled with this vestigial constitutional right and briefly concludes that defendants should retain some version of it alongside the right to testify. 

--Dan Ernst 

Pasker on Black Testimony in Antebellum Courts

Robert B. Pasker, City University of New York, has posted "Which History has Condescended to Notice": Black Testimony in Antebellum Courts:

This study investigates the contested admissibility of Black testimony in American courts between 1790 and 1865, analyzing 73 appellate opinions across 11 states and the District of Columbia. Contrary to the prevailing historiography that portrays antebellum statutes as universally excluding Black voices, these cases reveal that judges frequently exercised discretion to admit testimony where exclusion threatened the courts’ procedural capacity to adjudicate. The analysis demonstrates that judicial reasoning prioritized institutional functionality rather than moral or rights-based considerations.

A central challenge was methodological: appellate case law is vast, dispersed, and embedded in archaic legal language that resists conventional search tools. To overcome this, I developed Roscoe, a machine-learning system designed to perform conceptual searches, generate topical classifications, and produce plain-language summaries of nineteenth-century case law. Named for Roscoe Pound, the system allowed efficient retrieval and categorization of relevant cases from hundreds of thousands of digitized opinions. Roscoe not only enhanced recall and precision in identifying Black testimony cases but also facilitated thematic grouping across jurisdictional boundaries, making possible a genuinely national analysis.

The findings expose the structural contradiction at the core of antebellum jurisprudence: statutes that categorically barred Black testimony collided with the judiciary’s pragmatic need for probative evidence. Appellate decisions show how Black participation forced courts to adapt in ways that preserved institutional authority while reinforcing racial hierarchy. This duality—judicial flexibility without recognition of Black rights—complicates prevailing narratives of antebellum legal history and demonstrates how digital methodologies can expand the evidentiary base of legal historiography.

 I'm trying to decide whether Roscoe Pound would appreciate the hommage.

--Dan Ernst 

Malka on Witness and Judging in Antiquity

New online from Law and History Review: Witnesses, Judges: A Revolution Untold, by Orit Malka, Hebrew University:

Witness testimony in a judicial setting is commonly viewed as a form of evidence—a means
to inform a judicial body of relevant facts in a given case. In this perspective, witnesses are merely instrumental to the process of adjudication. While this viewpoint provides a useful account of how we think of witness testimony in courts today, it is ill-suited to the way witnesses and their role were perceived in the ancient world. Drawing on a cross-cultural analysis of ancient and late antique texts, the article recovers a different perception of the role of witnesses that once prevailed in the societies that gave rise to Western civilization. According to this alternate view, witnesses were not seen as passive providers of information but rather as active agents with the power to adjudicate—a role that we would now associate with judges. The article offers a new conceptualization of this historical transformation, outlining two paradigms that can help us critically examine the implied assumptions about the role of witnesses in adjudication: “the instrumental paradigm,” which is dominant in contemporary thought, and “the authoritative paradigm,” emerging from ancient texts, wherein witnesses held a far more authoritative role than the contemporary understanding suggest. The study argues that the instrumental paradigm reflects a radical transformation in the meanings of testimony and witness as legal concepts—a shift that marks an unexamined revolution in the history of legal thought.

--Dan Ernst

English Law, the Legal Profession, and Colonialism

English Law, the Legal Profession, and Colonialism: Histories, Parallels, and Influences, edited by Cerian Griffiths, Northumbria University, and Lukasz Jan Korporowicz, University of Lodz (Routledge, 2024):

Modern legal history is increasingly interested in exploring the development of legal systems from novel and nuanced approaches. This edited collection harnesses the lesser-researched perspectives of the impact of global and imperial factors on the development of law. It is argued that to better understand these timely discussions, we must understand the process and significance of colonisation itself. The volume brings together experts in the field of law and history to explore the ways in which law and lawyers contributed to the expansion of the British Empire, and the ways in which the Empire influenced the Metropole. The book sheds new light on the role of the law and legal actors during the pivotal centuries that saw the establishment of the Empire. Exploring such topics as Atlantic relations, the impact of British jurists upon Indian law, and the development of the law settler colonies, this collection reveals some of the lesser-known intersections between law, history, and empire. The book will be of interest to students and researchers in legal history, comparative history, equity and trusts, contract law, the legal profession, slavery, and the British Empire.

TOC after the jump.

--Dan Ernst

Blocher and Garrett on Originalism and Historical Fact-Finding

Joseph Blocher and Brandon L. Garrett, Duke University School of Law, have posted Originalism and Historical Fact-Finding, which is forthcoming in the Georgetown Law Journal:

Historical facts are more central to constitutional litigation than ever before, given the Supreme Court’s increasing reliance on originalism and other modes of interpretation that invoke historical practice and tradition. This raises a central tension. The case for originalism has rested largely on its being simultaneously fact-bound and a theory of adjudication capable of resolving questions of constitutional law. In practice, however, the historical facts central to originalism typically are not litigated in accordance with standard practices for fact-finding: introduction at trial, expert testimony, adversarial testing, deference on appeal, and so on.

In the absence of the usual fact-finding protocols, many recent Supreme Court rulings have based the scope of constitutional rights on claims of historical fact—with those claims drawn primarily from amicus briefs, and involving some serious factual errors. This is significant in two broad sets of cases: those that rely on history to apply a constitutional rule (as lower courts are doing with the historical-analogical test prescribed by New York State Rifle & Pistol Association v. Bruen) and those that rely on history to set the content of a constitutional rule (for example in Dobbs v. Jackson Women’s Health Organization’s rejection of a constitutional right to abortion). The latter—which we call “declarative historical fact”—have become especially prominent in recent years.

In this Article, we explore the promise and peril of treating historical fact-finding like other kinds of fact-finding in our legal system. Doing so calls into doubt originalism’s near-exclusive focus on historical fact-finding at the appellate level, informed by amicus briefs and judges’ or Justices’ own historical research. Our legal system gives trial courts primary authority over fact-finding, and many trial judges attempting to implement the Supreme Court’s originalist decisions have turned to historians as experts, holding hearings and calling for briefing at trial level. Such trial-level historical fact-finding imposes serious burdens and faces important limitations, but also has important institutional and constitutional advantages over appellate findings of historical fact.

In addition to emphasizing the proper role of trial courts, our analysis suggests a more important role for Congress both in finding historical facts and in regulating appellate review of historical facts. Courts arguably owe deference—perhaps substantial deference—to congressional fact-finding, and it is not immediately apparent why historical fact-finding should be any different. Congress might also legislate standards of review for judicial fact-finding, including for historical facts used in constitutional litigation. This type of “fact-stripping,” a form of jurisdiction stripping, is consistent with congressional power over Article III courts, as we have developed in prior work.

If originalism is to maintain its claim on being fact-based, it must grapple with these fundamental issues regarding the litigation of facts in our legal system. If it is not practically possible for judges develop a sound record of historical facts, then any approach to interpretation relying on such facts will not produce convincing, legitimate, or lasting interpretations of the Constitution.

--Dan Ernst

Podvia's "Strange Case of Dr. Paul Schoeppe"

Mark W Podvia, emeritus from Dickinson School of Law of the Pennsylvania State University, has published The Strange Case of Dr. Paul Schoeppe (Talbot Publishing, 2022):

Maria Steinnecke, a wealthy spinster, died in the central Pennsylvania borough of Carlisle on January 28, 1869. At first her death was not considered suspicious. That changed when her doctor, Paul Schoeppe, presented a will in his handwriting; it said she had left her entire estate to him. Soon afterwards, an autopsy performed on Miss Steinnecke revealed traces of prussic acid, a deadly poison. Thus began the murder case of Commonwealth of Pennsylvania v. Paul Schoeppe, an event that brought national and international attention to Carlisle. Found guilty, Dr. Schoeppe would come within days of his execution before the efforts of America's physicians and the German-American community combined to force a second trial that ultimately freed him. Exciting events at the time, the two trials of Dr. Schoeppe forever changed the way that medical evidence was presented and appeals were conducted in criminal cases.

–Dan Ernst

Sklansky on Slavery and the Hearsay Rule

David Alan Sklansky, Stanford Law School, has posted The Neglected Origins of the Hearsay Rule in American Slavery: Recovering Queen v. Hepburn, which is forthcoming in the Supreme Court Review:

The American hearsay rule took its modern form in Queen v. Hepburn, an 1813 decision by the United States Supreme Court that kept a woman and her daughter enslaved by blocking evidence that one of their ancestors had been free. More than any other decision, Queen v. Hepburn transformed the hearsay doctrine from a flexible preference for live testimony into a rigid rule of evidentiary exclusion. It also buttressed the institution of slavery by closing off one of the few legal avenues through which people in bondage could seek their freedom. It is the most important hearsay case in American history, but most law students never learn about it, and most evidence instructors are unfamiliar with it.

This article traces the background of Queen v. Hepburn, explains how the Supreme Court decided the case, and explores its momentous ramifications. It also discusses how and why the case should be taught in American law schools. Lawyers should know the full background of the rule that, more than any other, distinguishes the law of evidence in the United States from the procedures followed in almost every other liberal democracy. They should understand the role that the ban on hearsay evidence played in supporting American slavery and, conversely, the role that American slavery played in the development of the hearsay rule.

--Dan Ernst

Subramaniam on the Admissibility of Polygraphy in India

Karthik Subramaniam, NALSAR University of Law, has posted A Study on the Development of the Admissibility of Polygraph Tests in India:

Legal systems around the world have always had a peculiar obsession with lie-detecting devices, and in particular, the Polygraph test. This paper provides a brief history of the Polygraph test and tries to track the evolution of legal jurisprudence regarding the admissibility of such tests in the American jurisdiction. Using this as the base, the paper then delves into the position of the Indian legal system regarding the admissibility of Polygraph tests. Tracking the brief history of Polygraph tests being introduced in courts as evidence, the paper then attempts to provide a concrete conclusion on how Polygraph tests are seen, and whether there must be any change in the way the admissibility of these tests are perceived. 

--Dan Ernst

Josev on Australian Histories in Court

An advance copy of Australian Histories and Historiography in the Courtroom, Melbourne University Law Review 43 (2020), by Tanya Josev, a Senior Lecturer and the Co-Director of the Australian Legal Histories Programme, Melbourne Law School, is now available.

This article examines the fascinating, yet often controversial, use of historians’ work and research in the courtroom. In recent times, there has been what might be described as a healthy scepticism from some Australian lawyers and historians as to the respective efficacy and value of their counterparts’ disciplinary practices in fact-finding. This article examines some of the similarities and differences in those disciplinary practices in the context of the courts’ engagement with both historians (as expert witnesses) and historiography (as works capable of citation in support of historical facts). The article begins by examining, on a statistical basis, the recent judicial treatment of historians as expert witnesses in the federal courts. It then moves to an examination of the High Court’s treatment of general works of Australian history in aid of the Court making observations about the past. The article argues that the judicial citation of historical works has taken on heightened significance in the post-Mabo and ‘history wars’ eras. It concludes that lasting changes to public and political discourse in Australia in the last 30 years — namely, the effect of the political stratagems that form the ‘culture wars’ — have arguably led to the citation of generalist Australian historiography being stymied in the apex court.

--Dan Ernst

Hofmann, Kurtz & Levine, eds., "Powerful Arguments"

New from Brill: Powerful Arguments: Standards of Validity in Late Imperial China (March 2020), edited by Martin Hofmann (Heidelberg University), Joachim Kurtz (Heidelberg University), and Ari Daniel Levine (University of Georgia). A description from the Press:

The essays in Powerful Arguments reconstruct the standards of validity underlying argumentative practices in a wide array of late imperial Chinese discourses, from the Song through the Qing dynasties. The fourteen case studies analyze concrete arguments defended or contested in areas ranging from historiography, philosophy, law, and religion to natural studies, literature, and the civil examination system. By examining uses of evidence, habits of inference, and the criteria by which some arguments were judged to be more persuasive than others, the contributions recreate distinct cultures of reasoning. Together, they lay the foundations for a history of argumentative practice in one of the richest scholarly traditions outside of Europe and add a chapter to the as yet elusive global history of rationality.

More information, including the table of contents, is available here. One chapter that might particularly interest readers is "Some Problems with Corpses: Standards of Validity in Qing Homicide Cases" by Matthew H. Sommer (Stanford University).

-- Karen Tani

LHR 37:4

Law and History Review 37:4 (November 2019) has just been published online.  Here’s the TOC:

Original Articles

Of “Masculine Tyranny” and the “Women's Jury”: The Gender Politics of Jury Service in Third Republic France
Sara L. Kimble

Disqualified Witnesses between Tannaitic Halakha and Roman Law: The Archeology of a Legal Institution
Orit Malka

Invited Articles

The Political Functions of (Premodern) Courts and Procedure and Questions of Comparative Method
Amalia D. Kessler

Disqualified Witnesses Between Tannaitic Halakha and Roman Law: A Response to Orit Malka
Paul J. Du Plessis

Roman and Jewish Law: Looking for Interaction in all the Right Places
Christine Hayes

Book Reviews

Rohit De, A People's Constitution: The Everyday Life of Law in the Indian Republic, Princeton, NJ: Princeton University Press, 2018. Pp. 312. $40.97 hardcover (ISBN: 9780691192550).
Arvind Elangovan

Xiaoping Cong, Marriage, Law, and Gender in Revolutionary China, 1940–1960, New York: Cambridge University Press, 2018. Pp. 346. $31.99 paper (ISBN 9781316602614).
Yue Du

Jennifer Altehenger, Legal Lessons: Popularizing Laws in the People's Republic of China, 1949–1989, Cambridge, MA: Harvard University Press, 2018. Pp. 406. $49.95 hardcover (ISBN 9780674983854).
Glenn Tiffert

Taisu Zhang, The Law and Economics of Confucianism, Cambridge: Cambridge University Press, 2017. Pp. 319. $116.00 hardcover (ISBN 9781107141117).
Maura Dykstra

Susanne Pohl-Zucker, Making Manslaughter: Process, Punishment and Restitution in Württemberg and Zurich, 1376–1700, Leiden: Brill, 2017. Pp. x, 335. $134.00 hardcover (ISBN: 9789004218215).
Harriet Rudolph

Nikolay Koposov, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia, Cambridge: Cambridge University Press, 2018. Pp. xvi, 310. $89.99 hardcover (ISBN 9781108419727); $29.99 paper (ISBN 9781108410168); $24.00 eBook (ISBN 9781108330978).
Ian Cram

Jennifer Pitts, Boundaries of the International: Law and Empire, Cambridge, MA: Harvard University Press, 2018. Pp. 304. $45.00 hardcover (ISBN 9780674980815).
Alexander Arnold

Kimberly M. Welch, Black Litigants in the Antebellum American South, Chapel Hill: University of North Carolina Press, 2018. Pp. 328. $39.95 hardcover (ISBN 9781469636436); $29.99 e-book (ISBN 9781469636450).
Allison Madar

Edward B. Rugemer, Slave Law and the Politics of Resistance in the Early Atlantic World, Cambridge, MA: Harvard University Press, 2018. Pp. 384. $39.95 hardcover (ISBN 9780674982994).
H. Robert Baker

Stephanie E. Jones-Rogers, They Were Her Property: White Women as Slave Owners in the American South, New Haven, CT: Yale University Press, 2019. Pp. 320. $30.00 hardcover (ISBN 9780300218664).
Julia W. Bernier

Anders Walker, The Burning House: Jim Crow and the Making of Modern America, New Haven, CT: Yale University Press, 2018. Pp. 304. $30.00 hardcover (ISBN 9780300223989).
Brandon Jett

--Dan Ernst

Holloway on Testimonial Incapacity and Criminal Defendants in the South

We typically don’t post on articles and essays that are inaccessible online, but social histories of evidence law don’t come along every day.  This one is Pippa Holloway, "Testimonial Incapacity and Criminal Defendants in the South," in Crime and Punishment in the Jim Crow South, ed. Natalie Ring and Amy Wood (University of Illinois Press, 2019), 107-129:

This article examines the history of two limitations on witness capacity in the US: prohibitions on court testimony by individuals with infamous or felony convictions and prohibitions on testimony by criminal defendants. Most states had eliminated these laws by the 1880s, but change took a regional pattern. Southern states were more likely than non-southern states to continue prohibitions on testimony by defendants and/or those with former convictions into the late nineteenth and, in some cases, twentieth century. During the 1880s, when most states were expanding access to witness testimony, Alabama, Arkansas and South Carolina narrowed it by barring witness testimony by individuals convicted of misdemeanor larceny. Tennessee prohibited individuals with infamous convictions from testifying in civil cases until 1953, a prohibition that also included misdemeanor larceny. The article begins with the case of a Tennessee coal miner who was denied workers compensation in 1941 because he could not testify to his injury due to a prior misdemeanor larceny conviction. Georgia's prohibition on defendant testimony stayed on the books until 1961 when the US Supreme Court struck it down in Ferguson v. State of Georgia. This chapter documents and offers an explanation for this instance of southern exceptionalism, arguing that it was rooted in the desire to deny legal and civil equality to African Americans that characterized the Jim Crow era.

Boston College Legal History Roundtable: Spring 2019

We are very pleased to announce the Spring 2019 line up at the Boston College Legal History Roundtable.  As an announcement explains: For “over 17 years, the Roundtable has drawn on BC Law's strength and interest in legal history. It offers an opportunity for Boston College faculty and faculty from other area institutions, students, and members of the Boston College community to meet and discuss a pre-circulated paper in legal history, and seeks to promote an informal, collegial atmosphere of informed discussion.

Thursday, February 7 (4:30 pm)

“The Law/Fact Distinction and the State: Pisa, 1150–1200”
William Sullivan, Raoul Berger-Mark DeWolfe Howe Legal History Fellow, Harvard Law School

William P. Sullivan is the Raoul Berger-Mark DeWolfe Howe Legal History Fellow for 2018-2019. A graduate of Princeton and Yale Law School, he is a PhD candidate in the departments of classics and history at the University of Chicago, where his dissertation is entitled, “Relevance in the Civil Law Tradition: The Emergence of the Roman-Canon Law of Positions.” He was a Legal History Fellow at Yale Law School in 2016-2017 and a law clerk for Judge José A. Cabranes of the United States Court of Appeals for the Second Circuit in 2017-2018. His interests are in European legal history, Roman law, and comparative law.

Thursday, March 14 (4:30 pm)

“Executive Power, Officer Indemnity, and A Government of Laws, Not of Men: A Re-Reading of The Charming Betsy and Little v. Barreme”

Jane Manners, Bernard and Irene Schwartz Fellow, New-York Historical Society
Jane Manners studies US legal history, with a focus on American legal institutions, legislation, federalism, and local government law. During the 2018-19 academic year she is a Bernard and Irene Schwartz Fellow at the New-York Historical Society. She received her PhD in history from Princeton in 2018 and her JD and BA from Harvard. Her work has been supported by the American Council on Learned Societies, the American Society for Legal History, the American Historical Association, and the Hurst Institute at the University of Wisconsin Law School. In 2010, Jane was a law clerk for Chief Judge Mark L. Wolf of the United States District Court for the District of Massachusetts.

Thursday, April 11 (4:30 pm)

“Historiographical Origins of Originalism”
Logan Sawyer, Professor of Law, University of Georgia

Logan Sawyer is an Associate Professor of Law and Adjunct Professor of History at the University of Georgia. He earned his JD and PhD from the University of Virginia and is visiting at Harvard Law School this Spring semester. Before he began teaching, Sawyer served at the White House as associate counsel for the Homeland Security Council and as a trial attorney at the Department of Justice Office of Consumer Litigation. His academic interests focus on the relationship between law and political institutions in American history. He is currently at work on a history of originalism and party politics from the 1950s to the 1990s.

Frye on Whether Tompkins Lied

Brian L. Frye, University of Kentucky College of Law, has posted The Ballad of Harry James Tompkins, which is forthcoming in the Akron Law Review:

On July 27, 1934, Harry James Tompkins lost his arm, supposedly when an unsecured refrigerator car door on a train operated by the Erie Railroad Company hit him in the head. Tompkins won in a $30,000 judgment in federal court, but in Erie v. Tompkins (1938), the United States Supreme Court famously reversed, holding that federal courts sitting in diversity must apply state substantive law, not federal "general common law." While many scholars have studied Erie v. Tompkins, few have studied the facts of the case, and none have questioned Tompkins's account. This article argues that Tompkins and his witnesses were not telling the truth.

Porwancher on "John Henry Wigmore and the Rules of Evidence"

New from the University of Missouri Press: John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law (May 2016), by Andrew Porwancher (University of Oklahoma). A description from the Press:

At the dawn of the twentieth century, the United States was reeling from the effects of rapid urbanization and industrialization. Time-honored verities proved obsolete, and intellectuals in all fields sought ways to make sense of an increasingly unfamiliar reality. The legal system in particular began to buckle under the weight of its anachronism. In the midst of this crisis, John Henry Wigmore, dean of the Northwestern University School of Law, single-handedly modernized the jury trial with his 1904-5 Treatise on evidence, an encyclopedic work that dominated the conduct of trials. In so doing, he inspired generations of progressive jurists—among them Oliver Wendell Holmes, Jr., Benjamin Cardozo, and Felix Frankfurter—to reshape American law to meet the demands of a new era. Yet Wigmore’s role as a prophet of modernity has slipped into obscurity. This book provides a radical reappraisal of his place in the birth of modern legal thought.

A few blurbs:

“[The book] will become the standard work on the subject, and more than that, will contribute to emerging clarity in the field of early twentieth-century legal ideas more broadly.”—Noah Feldman

“It evidences a close reading of Wigmore’s work and extensive work in the archives at Harvard and Northwestern, bringing to light a good deal of new material on the connections among important figures in ‘legal modernism.’”—Robert P. Burns

More information is available here.

Two by Lettow Lerner, on Americans' Magna Carta, Trial by Jury and Judical Comment on Evidence

Renee Lettow Lerner, George Washington University Law School, has posted two papers.  The first is The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury, in Magna Carta and its Modern Legacy, ed. Robert Hazell and James Melton (Cambridge University Press 2015), 77-98:

Many Americans insisted on their traditional rights as Englishmen in the conflict with Britain before and after declaring independence. Magna Carta — particularly the provisions concerning the “law of the land” and “judgment of his peers” — embodied fundamental rights of Englishmen that American revolutionaries were willing to fight to protect. As Edward Coke had found more than a century before, American revolutionaries understood that invoking such an ancient document inspired resistance to authority.

Americans cherished Magna Carta most because of its association with jury trial. Juries had proved useful to Americans in their conflict with Britain. Colonial American juries had nullified the law of seditious libel, customs taxes, and debts to British merchants. It was no wonder Americans held the jury in high esteem, at least until they had to run their own governments. Americans filled their constitutions, both federal and state, with rights to jury trial. Several American states even included translations of provisions from Magna Carta in their constitutions, enshrining the “judgment of his peers.” Once Americans had achieved independence and formed the new republics, judges faced the task of interpreting these thirteenth-century provisions as eighteenth- and nineteenth-century law. American judges quoted Blackstone and historical treatises. Through the nineteenth century, however, American enthusiasm for juries waned. The much-repeated phrases from Magna Carta became a flimsy screen, masking the steady decline of jury power.

The second is How the Creation of Appellate Courts in England and the United States Limited Judicial Comment on Evidence to the Jury, which appears in the Journal of the Legal Profession 40 (2016): 215-69:

Isaac Parker (wiki)

The practice of judicial comment on the evidence has traditionally been the main form of jury control. Previous scholarly work has focused on the loss of the power in state courts, and has attributed the decline of judicial comment to a strict separation of functions between judge and jury and to regional differences in legal culture. This article examines two jurisdictions in which the power of comment long remained strong, at least in theory: the High Court of England, with its predecessors, and the federal courts in the United States. In both jurisdictions, judicial power to comment has been limited and in practice reduced, in the federal courts severely. The article reveals that this limitation developed with the advent of courts of appeal with separate personnel and especially of appeals in criminal cases.

Lack of appeal, or limited appeal, has been a distinctive trait of common law systems, particularly in criminal cases. There was no appeal as of right in criminal cases until 1907 in England, and 1889 in the federal courts. In the federal system, the early movements to allow appeals in criminal cases and to limit judicial comment on evidence focused on controlling a particular judge: Isaac Parker, U.S. District Judge for the Western District of Arkansas, who presided over more than 100 trials for capital crimes occurring in the Indian Territory from 1875 to 1896.

Giuliani on Civilian Treatises on Presumptions

Adolfo Giuliani, Facoltà di Giurisprudenza, University of Perugia, has posted Civilian Treatises on Presumptions, 1580-1620, which appeared in The Law of Presumptions: Essays in Comparative Legal History, ed. R. H. Helmholz and W. David H. Sellar (Comparative Studies in Continental & Anglo-American Legal History) (Duncker & Humblot, Berlin, 2009),  21-71

The theory of presumptions is one of the most obscure branches of medieval and early-modern law. Collected in long and tedious lists, presumptions knew a time of glory between the 16th and 17th centuries with the publication of a great number of treatises among which those by J. Menochio, F. Mantica and J. Mascardo are the most popular.

This essay shows that such practice-oriented works had a place in the formation of high-level legal theory. They were functional to a new vision of judicial procedure which has come to be embodied in a number of basic ideas, such as (i) the separation between law and fact, (ii) the judge’s subjection to principles of reasoning, and (iii) the centrality of will as an autonomous source of contractual obligation. The aim of this paper is to sketch the contribution made by such treatises to the genesis of those three ideas.

Azam on Rape in Islamic Law

Sexual Violation in Islamic Law: Substance, Evidence, and Procedure by Hina Azam of the University of Texas at Austin (Cambridge 2015) is an intellectual history of the law of rape. It compares two schools of Sunni Islamic law--the Hanafi and the Malaki--and has especially interesting things to say about legal bricolage or talfiq, the combining of rules from different schools of law.  From the publisher: 

This book provides a detailed analysis of Islamic juristic writings on the topic of rape and argues that classical Islamic jurisprudence contained nuanced, substantially divergent doctrines of sexual violation as a punishable crime. The work centers on legal discourses of the first six centuries of Islam, the period during which these discourses reached their classical forms, and chronicles the juristic conflict over whether or not to provide monetary compensations to victims. Along with tracing the emergence and development of this conflict over time, Hina Azam explains evidentiary ramifications of each of the two competing positions, which are examined through debates between the Ḥanafī and Mālikī schools of law. This study examines several critical themes in Islamic law, such as the relationship between sexuality and property, the tension between divine rights and personal rights in sex crimes, and justifications of victim's rights afforded by the two competing doctrines.

(We noted her New Books Network podcast here earlier.)

 Praise includes: