At first glance, the articles in this issue of Law and History Review fall neatly into two distinct sets. The first, composed of articles by Claudio Katz and Logan Sawyer, deals with Progressive Era legislation and seeks to revise our understanding of the treatment of labor and law in that era. Although they share that focus, the two authors engage the problems of the Progressive Era from distinct perspectives. Katz relies on a close reading of state and federal labor law decisions to argue that over time, judges became less and less inclined to believe that labor markets were fair or that labor was free. As a result, he suggests, judges became increasingly convinced that they had to embrace novel uses of state power both to protect liberty and to preserve the principle of judicial neutrality. In contrast, Sawyer's reconsideration of the child labor reform bill proposed by Albert Beveridge offers a legislative history of that law's failure to consider how and why Beveridge's constitutional understanding shaped his political choices. That story, Sawyer argues, demonstrates that even seemingly political decisions about legislation benefit from being considered as legal, more precisely constitutional, history.
Whereas the articles by Katz and Sawyer concentrate on turn of the century legal reforms in the United States, the next three articles explore the ways in which questions of identity were constructed across time and space by legal institutions working in three different legal regimes. The first, by Amanda Nettelbeck, explores the extent to which Aboriginal people were actually treated as British subjects by the colonial legal system of Western Australia in the mid-nineteenth century. The second, by Frank Caestecker and David Fraser, explores how Jews and authorities in Western European countries wrestled with how national and international law should handle questions of Jewish nationality and citizenship in the aftermath of World War II. And finally, the article by Katherine Turk demonstrates the ways in which gay rights activists in California struggled to fit claims of sexual orientation discrimination and sexual identity into sex discrimination laws.
However, whereas the articles can be read in those ways and fit into those discrete categories, they can also be read together. Taken as a whole, the articles in this issue constitute an extended meditation on the consequences of the choices imposed by the liberal legal order. For Turk's activists, the courts’ unwillingness to expand existing sex discrimination laws to cover sexual orientation discrimination led to local activism, sometimes through courts and sometimes through interest group or social movement engagement, and protections arranged with specific public and private employers. However, that activism also prompted a homophobic backlash and caused activists to make choices about how to craft their message that continued to limit expression of sexual orientation in the workplace. For Beveridge, the cost of his constitutional principles, and his understanding of the proper workings of the constitutional liberal order, was the failure of his progressive agenda and his efforts to pass a child labor bill. Similar tensions, compromises, and unintended consequences trail across the pages of the other articles in this issue.
This issue concludes with a selection of book reviews. We invite readers to also consider American Society for Legal History's electronic discussion list, H-Law, and visit the Society's website at http://www.legalhistorian.org/. Readers may also be interested in viewing the journal online, at http://journals.cambridge.org/LHR, where they may read and search issues of the journal.
