In 1685, the Swedish nobleman Per Sparre instituted legal proceedings against the printer Niclas Wankyf. The dispute had been triggered by Sparre having let his tenants erect houses for themselves on what Wankyf regarded as his private property. Wankyf had consequently torn down the buildings, causing Sparre to bring the case to court. However, Wankyf clearly saw himself as the aggrieved party and regarded Sparre as a trespasser. Arguing his case before the court, Wankyf emphasized that Sparre had never been able to prove that he held the contested area by virtue of urminnes hävd (“immemorial prescription”). To this Sparre retorted—with some irritation—that Wankyf argued as if “there are no other means of defending one's legal property than to invoke immemorial prescription.”

State making in nineteenth-century colonial settings involved contests over the configuration of plural legal systems. Colonial powers limited the jurisdiction of colonial courts and adopted complex, shifting rules for the articulation of imposed and indigenous law. The politics of legal pluralism in such settings became tied to discourse about cultural difference as groups challenged or justified jurisdictional boundaries by reference to the cultural characteristics of various colonial constituencies. The process of ordering legal authorities and assigning political identities reinforced the authority of incipient colonial states and emphasized the differences between colonial and metropolitan law.

Although modern societies generally entrust enforcement of the criminal law to public prosecutors, most crimes in premodern societies were prosecuted privately. In classical Athens, ninth-century Germany, and England before the nineteenth century, there were no public prosecutors for most crimes. Instead, the victim or a relative initiated and litigated the cases. This article is the first rigorously quantitative analysis of private prosecution. It focuses on thirteenth-century England and uses statistical techniques, such as regression analysis, to show that changes in the treatment of settled cases can explain the rate of private prosecution.

On July 17, 1791, a crowd of Parisians gathered at the Champ de Mars, in the western part of the city, for the third time in as many days to make clear to the National Assembly their position on the question of the king's constitutional standing. They carried with them a petition that demanded, in unequivocal terms, the suspension of the king, pending his trial on charges of betraying the French nation and the Revolution. According to the testimony of several witnesses, the day began on a tumultuous note when two men were found hiding in some bushes. Members of the crowd attacked the two men and killed them. Condemned as spies by the crowd, they were defended as innocent bystanders by the National Assembly. As soon as the Assembly heard about the killings, they dispatched the National Guard, under the command of General Lafayette, to disperse the petitioners and restore order. When the troops arrived at the Champ de Mars, a number of those present threw stones at them. The tense troops reacted by firing on the crowd, and Bailly, the mayor of Paris, took the opportunity to declare martial law in an attempt to restore order in an increasingly volatile city.

At the root of most land titles in America outside the original thirteen colonies sits a federal patent. The validity of government title, in turn, rests on “[t]he great case of Johnson v. M'Intosh,” which held that a discovering sovereign has the exclusive right to extinguish Indians' interests in their lands, either by purchase or just war. Yet both legal and historical scholarship on this “great case” is surprisingly thin. There are no studies examining the litigants or the actual acreage under dispute (surprising for a real property dispute). There are also a number of unanswered legal questions surrounding Chief Justice Marshall's opinion in M'Intosh, perhaps none more glaring than the failure to pin down the legal basis for the decision. This article endeavors to fill in these gaps.

Less than two years after the United States occupied New Mexico, Acoma Pueblo accused its neighbors in Laguna Pueblo of misappropriating a painting of Saint Joseph. The Indians of Acoma claimed that they had loaned the picture to the pueblo of Laguna for the purpose of celebrating Holy Week, but Laguna had subsequently refused to return it. The large oil painting on canvas, which portrayed the standing figure of Joseph holding the baby Jesus, was said to have been sent to New Mexico by Carlos II, king of Spain from 1665 to 1700. Both pueblos claimed rightful ownership of the picture, both said that missionaries with the early Spanish conquerors had brought them the oil painting from Spain, and both asserted that the painting was necessary for their religious worship. It was believed that the painting of Saint Joseph, or San José, as he was referred to throughout the legal documents, worked miracles for its possessor. Most important to the pueblos was the belief that the painting brought life-sustaining rain to the parched agricultural lands that provided their main source of food.

When Hannah Arendt came to Jerusalem in 1961 to attend the Eichmann trial she expected to find Evil incarnated in the person of Eichmann. How surprised she was to see the man in the glass booth. The word she used repeatedly to describe him was “mediocre,” referring to the very average qualities of his person. To Arendt the dissonance between Eichmann's horrifying actions and the bureaucratic character of the man demanded an explanation. Like so many of us, Arendt's conception of evil had been informed by great works of art, but the reality of this villain did not fit her expectations.

On December 23, 1912, a Hungarian father brought his three young daughters (ages three, five, and seven) to the Cook County Juvenile Court to file dependent petitions on their behalf. He alleged that their mother had deserted the family, stolen their savings, and disappeared. As a single father, he could have and probably did argue that it was unreasonable to expect him to work and to raise his young children simultaneously. On Christmas Eve, after a six-man jury found each girl to be a “dependent child,” Judge Merritt Pinckney ordered them committed to the Lisle Industrial School and arranged for their father to pay $15 a month for their support. Thus, the single father had used the juvenile court to arrange for a private institution to raise his now motherless children, who because they were the same gender were at least allowed to grow up together in the same industrial school.

One day in late February 1873, the comisario of section 10 in Buenos Aires arrived at the home of Jacobo Varela to investigate reports that Varela had been involved in a duel with another young man, Julio Benites. Varela's brother met the policeman at the door and reported that, lamentably, Jacobo was ill and could not see him. When asked if he knew anything about a duel, the brother replied that he most certainly did not. Yes, Jacobo was bedridden because of a sword wound, but that was an accident: he had slipped while playing with the weapon and had fallen on top of it, the blade entering his right side below the shoulder and passing through his body. The additional wounds on his hands came when he attempted to pull the sword out.

Modern citizenship—understood in terms of the formal legal distinction between “citizen” and “alien”—functions as a barrier to the individual's territorial rights. In other words, it determines whether a given individual does or does not enjoy unimpeded rights of access to, and presence within, the territory that the state calls its own. In this capacity, it is wielded efficiently, systematically, and even brutally against individuals who seek to fashion better lives for themselves by moving into, or remaining within, the territories of states other than their “own.” In the contemporary West, entirely as a matter of routine, millions are kept out of, and removed from, the territories of states on the ground that they are not citizens of the states in question.

The Rudolf Kastner trial was one of the three great scandals that rocked Israeli party politics in the 1950s (the others were the negotiations with Germany for Holocaust reparations and the so-called “Lavon affair”). Although Leora Bilsky describes it as an “almost forgotten trial,” it has not been forgotten by subsequent writers: it makes an important cameo appearance in Arendt's Eichmann in Jerusalem; it features prominently in Tom Segev's The Seventh Million (1991); Yehuda Bauer's Jews for Sale? (1994) takes pains to refute the charges against Kastner; and it inspired two novels—Amos Elon's Timetable (1980) and Neil Gordon's cerebral thriller The Sacrifice of Isaac (1995). But the legal opinions have never until now attracted the thought or analysis they warrant, and Bilsky deserves gratitude for remedying this omission. With admirable insight and ingenuity, Bilsky focuses on the construction of the legal opinions as a form of literature. Her reading of Judge Halevi's and Justice Agranat's opinions centers on the way in which law is driven by metaphor—in Halevi's case, the metaphor of contract; in Agranat's, the metaphor of administrative decision making. Her article is a major contribution to our understanding of the Kastner case and to the way that, in a situation of intense moral ambiguity, legal analysis can be predetermined by a choice of metaphors.

In the wake of Foucault's provocative philosophical contributions to the study of discipline and punishment, social and legal historians no longer narrate penal history as a straightforward tale of moral and political progress. In its place is a schematic picture of a large-scale retreat from the body to the prison as the prime site of punishment. Historiographical proclivities perpetuate that image: early modernists tend to concentrate on the Bloody Code and similar régimes of terror, whereas historians of the twentieth century specialize in studies of regulatory modes of punishment and “normalization.” These latter works include histories of reformatories, family courts, social workers, psychiatric experts—in short the institutions and agents that best instantiate the reorientation toward disciplining the soul and governing the self. Scholars who study corporal and capital punishment in the twentieth century would seem to have nothing to add, other than to remark that there were exceptions in the wider history of penal change.

In The Failure of the Word, Richard Weisberg asks how legal scholars can “justify the substitution of imaginative for legal prose.” By way of response, scholars such as Martha Nussbaum and Weisberg have sought to demonstrate the power of literature to better render moral ambiguity and situational complexity than the language of the law. The most attractive images of the art of judgment, these scholars argue, are not to be found in the decisions duly compiled in the Federal Reporter, but in works of the literary imagination. These works, by capturing a world of nuance largely absent from the Manichean terms of law, offer a critical “school of moral sentiments” and, as a consequence, can help the legal scholar to better appreciate the law's exclusion and to extend the law's discursive ken.

In 1953 a musical titled The Adventures of Nasseradin opened in Tel Aviv. One of its tunes, the “Song of Law,” had music and lyrics so appealing that overnight it became the most popular song in Israel. The subject of the lyric was a tyrant, the Emir of the Kingdom of Buchara. Two brothers were arguing over a pot, and the Emir in his capacity as judge, presided over their trial. His decree: plaintiff and defendant should be executed and the pot thrown into the royal treasury.

Kunal Parker's “State, Citizenship, and Territory” can be read in at least two ways. Read one way, it tells an important story about how regulation of the poor was driven upward in Massachusetts during the nineteenth century, from the localities to the state. In the seventeenth century, Massachusetts had imposed primary responsibility for care of the poor on its towns. But during the eighteenth century, with the growth of a landless, wandering population, town poor relief budgets came under increasing pressure. The towns responded by lobbying the Massachusetts legislature to pass a series of statutes that made it more and more difficult to acquire a town settlement. People who fell into need in Massachusetts but who had not acquired a town settlement became state paupers for whom the state, rather than any town, was fiscally responsible. As it became more and more difficult to acquire a town settlement, the number of state paupers increased, shifting a portion of the fiscal burden of poor relief from the towns onto the state.

Robert Steinfeld suggests that my article might be read in two entirely distinct ways—as a narrative of centralization, about which he is mildly enthusiastic, and as a narrative of citizenship, about which he is distinctly unenthusiastic. In my view, Steinfeld's understanding of citizenship, an understanding sharply at odds with my own, drives most of the criticisms he levels against the narrative of citizenship presented in the article.

What is the relationship between judging and understanding? Does the process of understanding undermine our ability to judge? Or maybe the contrary is true, that judgment is possible only when its subject is understandable? If judgment requires distance and understanding requires empathy (overcoming distance), is there an inherent impossibility in trying to judge the Holocaust by trying to understand it? Language itself betrays a sense in which understanding and judgment conflict. The popular saying tout comprendre c'est tout pardonner rings true in our everyday experiences. What are we to do when the subject of our inquiry is of such moral magnitude that understanding becomes a duty we owe to ourselves, and yet any progress in understanding seems to be meaningless if it does not enhance our capacity of judgment. The two thoughtful responses by David Luban and Lawrence Douglas to my essay “Judging Evil in the Trial of Kastner” are directed at disentangling this complex relationship between judgment and understanding. Luban asks for more judgment. Douglas insists on more understanding.