Patriots and Cosmopolitans: Hidden Histories of American Law
John Fabian Witt (Harvard University Press, 2007)
James Wilson, Elias Hill, and Crystal Eastman are not names ordinarily encountered in American history books. Prof. Witt, a legal historian, uses their little-known stories (plus those of others) to show how law and constitutionalism have powerfully shaped and been shaped by the experience of nationhood at key moments in American history. The book covers a wide swath of history, from the founding era to Reconstruction and from the making of the modern state to post-New Deal limits.
Founding Father James Wilson’s star-crossed life is testament to the capacity of American nationhood to capture the imagination of those who have lived within its orbit. For South Carolina freedman Elias Hill, the 19th-century saga of black citizenship gave way to a quest for a black nationhood of his own on the West African coast. Greenwich Village radical Crystal Eastman became one of the most articulate critics of American nationhood, advocating world federation and other forms of supranational government and establishing the modern American civil liberties movement. Dean Roscoe Pound of Harvard Law School and trial lawyer Melvin Belli aimed to stave off what both saw as the dangerous growth of a foreign administrative state.
In their own way, these individuals came up against the power of American national institutions to shape and constrain the directions of legal change. Yet their engagement with nationhood remade the institutions and ideals of the United States even as the national tradition shaped and constrained the course of their lives.
The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law
Professor John Fabian Witt (Harvard University Press, Cambridge, Mass., 2004)
In the five decades after the Civil War, the United States witnessed a profusion of legal institutions designed to cope with the nation’s exceptionally acute industrial accident crisis. Jurists elaborated the common law of torts. Workingmen’s organizations founded a widespread system of cooperative insurance. Leading employers instituted welfare-capitalist accident relief funds. Social reformers advocated compulsory insurance such as workmen’s compensation. In this book, Prof. Witt argues that experiments in accident law at the turn of the 20th century shaped 20th- and 21st-century American accident law; they laid the foundations of the American administrative state; and they occasioned a still hotly contested legal transformation from the principles of free labor to the categories of insurance and risk. Prof. Witt describes American accident law as a contingent set of institutions that might plausibly have developed along a number of historical paths, and he suggests that the making of American accident law is the story of the equally contingent remaking of our accidental republic.