For two and a half centuries of accident law’s history, between about 1600 and 1850, neither the plaintiff nor the defendant in a tort suit could testify in that suit. In fact, during this period the parties could not testify in any civil suit, and the defendant could not testify in a criminal case. These prohibitions were features of a broader common law rule providing that any potential witness who had an “interest” in the outcome of a case was not competent to testify in it. It was not until statutes abolishing this evidentiary prohibition were enacted in England in the 1840s, and in the United States between the late 1840s and the 1890s, that the parties were permitted to testify in tort (and other) suits. This Essay addresses the influence of the prohibition against party testimony on the development of tort liability prior to the middle of the 19th century.
Contract Theory On and Off the Grid
In The Role of Formal Contract Law and Enforcement in Economic Development, Michael Trebilcock and Jing Leng examine the importance of a formal institution of contract law to economic growth. Trebilcock and Leng find the evidence in support of the hypothesis that a formal contract institution promotes economic growth inconclusive, but they do not reject the hypothesis. Although the role of formal contract law in economic growth can be considered as a purely academic matter, the significance of the topic comes from its connection to the question whether developing countries should adopt or strengthen formal contract institutions to enhance growth.
Even if formal contract law does play an important role in development, however, that might not be sufficient to justify state enforcement of private agreements. The legitimacy of an institution of contract belongs to the domain of contract theory. This Essay considers whether contemporary theories of contract are relevant to legal systems without an established tradition of Western legal institutions. The Essay reviews contract theories of Peter Benson, Melvin Eisenberg, Charles Fried, James Gordley, Thomas Scanlon and Michael Trebilcock. The Essay concludes that even if a formal institution of contract does have the potential to promote growth, these contemporary theories tell us very little about the proper content, desirability, or legitimacy of contract law in societies other than those in which Western private law institutions are already well established.
Marriage & Redemption: Mormon Polygamy in the Congressional Imagination, 1862-1887
How did nineteenth-century federal legislators imagine Mormon polygamy as they debated and adopted harsh anti-polygamy enforcement laws? Republican anti-polygamists in the Reconstruction era called polygamy and slavery the “twin relics of barbarism,” analogizing polygamous husbands to Southern slaveholders. By the 1880s anti-polygamists in Congress rooted their arguments in Chinese Exclusionism and avoided divisive references to Southern slavery. They compared Mormon polygamy to “despotic” cultural practices popularly associated with Chinese immigrants, like concubinage, prostitution, and “coolieism.” White cultural nationalism mobilized support for the first effective anti-polygamy statutes in 1882 and 1887. These changing representations of polygamy illustrate how the Republican party came to terms with the South’s legacy of slavery and rebellion by embracing a unified white cultural identity. Metaphorical comparisons to Southern slavery and “oriental paganism” not only vilified polygamy, they also justified federal intervention into local affairs. The these vivid metaphors arose from the Republican party’s shifting ideology, not the lived experience of polygamy’s perceived “victims”: the plural wives.