Now that classes are done here in lovely Chapel Hill, I want to take a breath for a moment and talk about articles I've been reading. First, something related to my recent work on probate. Allison Anna Tait's article, "Unhappy Marriages and Unpaid Creditors: Chancery’s Enforcement of a Wife’s Right to Property Within Marriage in Seventeenth and Eighteenth-Century England," deals with a topic of much interest to me of late: how did families protect women's rights to property before the Married Women's Property Acts of the antebellum era. And in particular how did they use trusts to key property in the hands of daughters and wives and out of the hands of their husbands' creditors. Tait's article is part of an emerging understanding that the law of trusts was more nuanced than we've understood (Stephen Davis and I touched on this some in our work on Greene County, Alabama, in the 1830s and 1840s and Douglas Thie and I are going into more depth with our work in progress on Rockbridge County, Virginia, from the 1820s through the 1850s.) The trust and the settlement of property in wife even before the married women's property acts made it hard for creditors to reach family property. This is a story that has some obvious positive benefits for the family whose property is being saved from creditors -- but this also has some really sad consequences for the creditors as well. Tait's interested in the period before the one that I study, and I think her work is going to change how we see the sophistication of trusts in the eighteenth century and will also make the transition to the married women's property acts seem less contentious than we've thought. There's still something of a gap from the end of Tait's story to the 1830s and 1840s, which needs some explanation -- and especially on this side of the Atlantic. (I think a similar story will be told about the spendthrift trust as well, but that is a story for another time.) Anyway, here is Tait's abstract:
In a modern era in which wives can own and manage their financial assets, the idea that a wife could not hold legal claim to her own property seems archaic. Measuring the distance of women’s progress, historical accounts of married women’s property usually begin with statutory enactments that gave married women baseline property rights starting in America in the 1830s and 1840s and in England in the 1870s. A form of married women’s property existed before these statutes were on the books, however, beginning in late sixteenth-century England with a special type of trust called the separate estate which was created for the benefit of a married woman before, during, or after marriage. This Article is an attempt to recover the nature as well as the significance of the separate estate. A new and detailed reading of the main corpus of separate estate cases – a set of cases that has long been overlooked and deserves to be unearthed – reveals how the separate estate was the forerunner to more modern forms of married women’s property and a key component in the development of married women as juridical beings and economic actors. The goals of this Article are to recalibrate the history of married women’s property and deepen our understanding of the opportunities as well as the obstacles that have stood – and still stand – in the way of women seeking to be rightsholders.
Article two I've been enjoying is Tom Donnelly's Making Popular Constitutionalism Work in the Wisconsin Law Review. Long time readers of facutly lounge will know that I've been mightily interested of late in how public ideas about the Constitution framed (and perhaps in some cases governed) the political controversy in the pre-Civil War era. Part of this is a project of recovering the nature of constitutional in circulation in Congress (and I might add the academy) seep into the judiciary and vice versa. Those constitutional ideas appear in many places, from secession debates to college literary addresses -- even in unexpected places, like cemetery dedication addresses. Donnelly offers a robust defense of popular constitutionalism -- and especially for popular check on congressional action. I think this is a very helpful contribution -- and I hope that in the future popular constitutionalism scholarship will also talk about the ways that public constitutional arguments (or constitutional culture) shape all sorts of responses, not just vetoes.
Article three that I've enjoyed is Dana Remus' "Just Conduct: Regulating Bench-Bar Relationships," which has just appeared in the Yale Law and Policy Review. Remus' article is both historical -- it looks back to the 1920s to the origins of the ABA's attempts to regulate the judiciary -- and contemporary in that it deals with current attempts to regulate judicial conduct (like the notorious Capperton v. A.T. Massey Coal case). It is a subtle study of how the bar functions, often in recent times imperfectly, as a regulator of judicial conduct and some of what we might do to improve regulation, which rest often on a broad participation in reform. Thus, this article is legal history, contemporary sociology, and incisive doctrine all at the same time. Though "Just Conduct" is focused on state courts, rather than federal courts, the recent controversy over the email Judge Cebul forwarded regarding the president's mother, demonstrates that issues of judicial impropriety loom large for our nation.