The Act for Regulating of Trials in Cases of Treason passed by Parliament in 1696 (the Trials Act) commands a central place in the history of criminal procedure. Addressing a serious imbalance in treason trial procedure that favored the prosecution over the defense, the Trials Act established a set of procedural safeguards for the treason defendant that eventually became paramount elements of English due process. While much legal scholarship has concentrated on the legacy of this legislation in the eighteenth-century criminal trial, only a few historians have attempted to account for the act's origins in the seventeenth century, and none have linked this moment of legal change with contemporary developments in political theory.

Are lawyers professionals, constrained by public-service limitations on their work, or free-wheeling business people? So the current debate surrounding professionalism versus commercialism is articulated. All too often this controversy is grounded in overdrawn dualisms, a sort of Gemeinschaft-Gesellschaft: a golden age of the lawyer as public servant that has given way to the ethics of the marketplace. The starting point of this essay is that this way of thinking about the work of lawyers is unhelpful, as it encourages a belief in stark divisions between a pure realm of “lawyering” and the grubby world of “business,” and between the “public” and the “private” dimensions of lawyers' work. In practice, both lawyering and business and the public and private fields of lawyering are, and probably always have been, imbricated within each other. This article seeks to demonstrate this coalescence from historical materials.

The business development that took place during the nineteenth century fouled America's waters. It also caused smoke, soot, stenches, noise, jarring vibrations, solid wastes and other forms of industrial pollution. These problems drove people to the courts for injunctive relief. Their suits raised a dilemma of fundamental importance to all industrialized societies: how best to reconcile the often conflicting goals of environmental quality and business growth.

This article looks at how nineteenth-century American judges grappled with this quandary by examining their use of balancing doctrine in pollution nuisance cases.

The years between 1890 and 1937 traditionally have been viewed as a period of extreme judicial activism with respect to economic regulation, a time during which courts, both state and federal, interfered on a grand scale with legislative reform agendas. Fueled by the constitutional theories of Thomas Cooley and Christopher Tiedeman, the story goes, the courts became bastions of laissez-faire constitutionalism, relying on doctrines of substantive due process and liberty of contract to invalidate legislative efforts to redress social and economic inequality.