David M. Rabban

Is Unionization Compatible with Professionalism

This study examines over 100 collective bargaining agreements, covering a wide range of professions and organizations, to assess the continuing fundamental debate over the compatibility of unionization with professionalism. The author finds that some contractual provisions affecting professional standards, participation in organizational decision-making, and other issues of professional concern support traditional professional values and some do not. This mixed evidence challenges claims that unionization necessarily involves the rejection of professionalism.

The First Amendment in Its Forgotten Years

A. Supreme Court Cases 524 I. Avoiding First Amendment Issues 525 Resisting Incorporation into the Fourteenth Amendment 525 Excluding Publications from the Mails 526 Neglecting First Amendment Issues 529 Limiting the Meaning of Speech 531 2. Addressing First Amendment Issues 533 Justice Holmes and the Bad Tendency of Speech 533 Review of Statutes Penalizing Speech 536 The First Amendment as the Embodiment of English Common Law 539 3. Hints of Protection 540 4. Summary 542

From Maine to Maitland via America

A small group of largely overlooked American scholars linked the two great English legal historians, Henry Maine and Frederic Maitland. Ancient Law, published by Maine in 1861, and The History of English Law Before the Time of Edward I, published by Frederick Pollock and Maitland in 1895 and written primarily by Maitland, are probably the two most important books about legal history ever written in the English language. In Ancient Law, Maine generated provocative conclusions about legal evolution based largely on works by previous scholars on the history of Roman law. For Henry Adams, who initiated the professional study of legal history in the United States, Maine was both an inspiration and a foil. Adams praised Ancient Law and placed Maine at the same level of intellectual importance as Darwin and Spencer. Yet Maine’s “brilliant hypotheses,” Adams declared, remained “hazardous guesses” unsupported by facts. In his teaching and scholarship, Adams tested Maine’s “brilliant hypotheses” by examining the facts of English legal history, which Maine had not addressed in Ancient Law. Dismissing as amateurish prior work in England on the history of English law, Adams endorsed and directed his students to German “scientific” methods of research in original sources and to German scholars, such as Rudolph Sohm and Heinrich Brunner, who used these methods while studying the history of Teutonic law. In their Essays in Anglo-Saxon Law, published in 1876, Adams and his students relied on primary sources to test, and often to question, many of Maine’s generalizations. Over the next two decades, other American scholars undertook research in later periods of English legal history, most prominently Melville Madison Bigelow, Oliver Wendell Holmes, Jr., James Barr Ames, and James Bradley Thayer.Leading late twentieth-century English scholars, such as S.F.C. Milsom and J.H. Baker, have asserted that Maitland essentially created the field of English legal history. Maitland himself had a different view. Like many of his contemporaries in England, he graciously recognized that American scholars had exceeded the English themselves in the study of English legal history. He generously praised and built upon their contributions in his own work, and he corresponded extensively with Ames, Thayer, and especially Bigelow. By contrast, Maitland frequently criticized Maine, often in terms that echoed Adams and his students.

Has the NLRA Hurt Labor

The past decade has seen a flowering of highly creative scholarship in labor history and labor law. Although scholars in these two disciplines occasionally refer to each other, their work has proceeded largely along independent lines. Yet these lines have been parallel, if unconnected. Much scholarship in both disciplines has been informed by revitalized traditions of radical analysis that have influenced a new generation educated in the late 1960s and early 1970s. Born in 1951, Christopher L. Tomlins is part of this new generation. In The State and the Unions, he combines an excellent synthesis of recent work in labor history and labor law with a stimulating account of the debate in the 1930s over state intervention in labor relations. His analysis of the New Deal, based on original archival research, reveals key developments within the American Federation of Labor (AFL) and the National Labor Relations Board (NLRB). Readers interested in these subjects will be fascinated by his important and well-written book.

Taming the Past: Essays on Law in History and History in Law

Robert Gordon became the pioneering scholar of the history and historiography of American law with the publication of his first essays in the 1970s. His research and teaching have stimulated and guided the dramatic growth of American scholarship in legal history during the past four decades, much of it written by his own students and the many others whose work he has generously encouraged and engaged. Taming the Past combines the classic essays he has published in various journals and edited collections throughout his distinguished career alongside lectures that are printed here for the first time. Brief introductory notes place the essays in the context of their original appearance and often cite subsequent relevant scholarship. Gordon has also added a general introduction that provides a useful overview of the entire collection. The whole is much more than the sum of its impressive parts.