Legal History Project Includes 3 UB Law School Contributors

By Charles Anzalone

Release Date: April 29, 2008

BUFFALO, N.Y. -- Three University at Buffalo Law School professors -- one per volume -- are represented in a project its publisher calls "the most comprehensive and authoritative account possible of the history of American law."

The massive three-volume "Cambridge History of Law" in America features essays by Alfred Konefsky, UB Distinguished Professor; Elizabeth Mensch, SUNY Distinguished Teaching Professor; and John Henry Schlegel, Roger and Karen Jones Faculty Scholar and Professor. They are among 60 legal historians writing in their areas of expertise in a publication that seeks to summarize and synthesize the history of law in America.

The project's co-editor is Christopher L. Tomlins, a senior research fellow at the American Bar Foundation and the former editor of Law and History Review. He says Cambridge University Press commissioned the project a decade ago as part of a continuing series of multi-volume works of this nature.

"It is most definitely not intended to be an encyclopedia," Tomlins says, "but rather a collaborative work of scholarship involving numerous scholars, each with the expertise to write an original synthesis of work in his or her particular field of endeavor. It is also interpretive and imaginative in laying out both the scope of work in that field and imparting direction to it."

Tomlins says it is unusual to have three contributors from one university, but he knows Konefsky, Mensch and Schlegel personally. "Of course," Tomlins says, "everybody has produced very good, very original work, the kind of work you would expect from highly experienced, highly skilled scholars, for which Buffalo is well-known. The University at Buffalo Law School has a tremendous interest in critical and unique thinking. It is most certainly not a standard law school."

Topics covered by the UB Law contributors are law and religion in colonial America, the nature of the legal profession in the 18th and 19th centuries and the role of law in the changing American economy of the 20th century.

Mensch co-wrote "Law and Religion in Colonial America" with Mark McGarvie, who was a research and writing fellow at UB Law before moving on to the history department at the University of Richmond. Mensch says the essay deals with "the relationship between the way law was conceived and the approach to religious practice."

The co-authors selected six of the 13 original colonies and examined the different ways religion affected the establishment of law in those colonies. One thread they describe is reliance on Hebrew scripture as a source of law, in keeping with the general idea of the colonies as a "new Israel." But there were many variations; in the South, for instance, she says, "you had a real pluralist dilemma, because of the heavy Catholic presence and strong anti-Catholic feelings in Maryland."

Schlegel's contribution, "Law and Economic Change during the Short 20th Century," covers the century beginning after World War II.

"The piece does two things," he says. "It gives a short economic history of the 20th century, and it attempts to answer the question, what role does law play in this story?" The answer, he says, includes the background of contract and tort law that underpins the economy, and the ways in which law facilitates economic change.

"I am an historian by trade," Schlegel says, "and so I think about law and economics as inextricably related. I do not attempt to distinguish the two in my work as a legal historian or, in fact, in the rest of my work in corporate finance. I do not think it is possible to separate the economy and the law. There would be no economy without rules, and the rules would be perfectly wasted if there were no economy that they were informing."

Konefsky's piece, "The Legal Profession from the Revolution to the Civil War," was a major research project. "It took time to gather the sources and put them together, because this is a history of the profession, and there really was not any recent major monographic study of the American bar," he says. "The first question was, where do I go to look for this material and how do I put it together?" He went to a variety of sources including biographies of lawyers, state and regional studies of the profession, lawyers' papers and academic writings about individual subject areas such as ethics.

The piece begins, he says, with "a discussion of the ideology of the profession, what lawyers thought about, what sort of ideas animated the practice of law. I also wrote about legal education, bar admission, the composition and structure of the profession, the organization of practice, legal ethics, legal literature, and the relationship between law reform and lawyers. I tried to find a theme that weaves its way through all these substantive sections. On the one hand, I wanted to present a narrative of what exactly was going on in different aspects of the profession. On the other hand, I was looking for a set of ideas that would make this a coherent picture."

The legal profession, Konefsky says, confronted "a series of challenges and temptations. The bar was caught between trying to figure out whether it was a public profession or a private profession. There was a public face of the bar -- that, as professionals, lawyers had a particular duty to serve the public interest; in a republic they were the embodiment of civic virtue. On the other hand, the practice of law was embedded in the marketplace. Lawyers were always accused of acting in their own self-interest. The tension in the practice of law has been, in part, between the public demands on and the private roles of lawyers."

The three-volume "Cambridge History of Law in America" lists for $300 on