Lost Options for Mutual Gain? The Lawyer, the Layperson, and Dispute Resolution in Early America

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Transformed, Not Transcended: The Role of Extrajudicial Dispute Resolution in Antebellum Kentucky and New Jersey

The purpose of this paper is to explore the applicability of that conclusion to two states not studied by Horwitz: Kentucky and New Jersey. The study of Kentucky, a state that was largely agricultural in the antebellum period, will provide a case study for the argument that the destruction of arbitration in antebellum America was mainly due to a merchant-lawyer alliance

The Origins of the Pursuit of Happiness

Scholars have long struggled to define the meaning of the phrase “the pursuit of happiness” in the Declaration of Independence. The most common understandings suggest either that the phrase is a direct substitution for John Locke’s conception of property or that the phrase is a rhetorical flourish that conveys no substantive meaning. Yet, property and the pursuit of happiness were listed as distinct—not synonymous—rights in eighteenth-century writings. Furthermore, the very inclusion of “the pursuit of happiness” as one of only three unalienable rights enumerated in the Declaration suggests that the drafters must have meant something substantive when they included the phrase in the text. This Article seeks to define the meaning of “the pursuit of happiness” within its eighteenth-century legal context by exploring the placement and meaning of the phrase within two of the eighteenth century’s most important legal texts: William Blackstone’s Commentaries on the Laws of England (1765–1769) and the Declaration of Independence (1776). Ultimately, this article concludes that “the pursuit of happiness”—which was understood to be both a public duty and a private right—evoked an Enlightenment understanding of the first principles of law by which the natural world is governed, the idea that those first principles were discoverable by humans, and the belief that to pursue a life lived in accordance with those principles was to pursue a life of virtue, with the end result of happiness, best defined in the Greek sense of eudaimonia or human flourishing

A Variety of State-Level Procedures, Practices, and Policies: Arbitration in Early America Symposium

This article seeks to explore the history of arbitration more in depth by taking a close look at the historical procedures, practices, and policies of arbitration in three states: Kentucky, New Jersey, and Massachusetts. Each state developed a complex system of arbitration that included multiple arbitration procedures drawn from English law. Each state had unique geographic, political, social, religious, or commercial conditions that influenced not only the development of arbitration in that state, but also arbitration practice and the policy goals surrounding its use. A closer look at arbitration in early America reveals that, rather than one history of American arbitration, we have many histories. Considering these varied histories provides us not only with a more complete picture of the diversity and complexity of arbitration in early America, but also with new insights as we—disputants, lawyers, judges, legislators, arbitrators, and policy advocates—debate hot topics in arbitration, today

Beyond the FAA: Arbitration Procedure, Practice, and Policy in Historical Perspective Symposium: Introduction

The purpose of this symposium edition of the Journal of Dispute Resolution is to widen the focus of our present-day discourse on arbitration by exploring the broader histories of arbitration in America, considering not only what arbitration procedure, practice, and policy looked like in early America (and in the earlier legal, cultural, or religious systems from which American arbitration was adopted), but also how those broader histories might contribute to important discussions and developments in arbitration procedure, practice, and policy today. To that end, we brought together scholars in law and history whose combined works restore breadth and depth to our present-day understanding of and debates about arbitration