This dissertation traces the development and evolution of disability as a legal concept in California during the twentieth century. It begins by analyzing how disability came to be understood through a medical lens assessing an individual’s capacity to work from the late eighteenth century, through the nineteenth century, and into the early twentieth century.The second chapter shows how the California state legal system joined medical professionals in favoring expansion of private care at the expense of government-sponsored alternatives, while at the same time steering private care toward acceptance of group insurance over traditional fee- for-service. It pays particular attention to cases involving Kaiser Permanente’s group prepayment program as a model for expansion of private health care coverage that continued to exclude those in desperate need of care—the unemployed, those with disabilities, and those with lower incomes. The third and fourth chapters turn to activists and state officials in California to illustrate how disability as a legal concept shifted from an emphasis on work, welfare, and rehabilitation to a focus on engagement, inclusion, and assimilation in all aspects of life through the independent living movement. The third chapter analyzes activists’ efforts to work with and against state officials to change how they were perceived and what opportunities they could pursue. The story of Cowell, Berkeley, PDSP and the Centers for Independent Living is a story of individuals who strove for individual freedom and then entered the halls of state power to steer those same expansions of freedom. The fourth and final chapter reveals how activists could implement their reconceptualized definition of disability into state law through bureaucratic channels. Proud activists-turned- bureaucrats were able to work within the system that they had previously rebelled against to codify their vision of inclusion and assimilation in society through state funding that was necessary for independent living centers to operate. Ultimately, this dissertation analyzes the ways advocates inside and outside of state institutions can alter legal definitions and garner state support.

This dissertation examines the history of and cultural influences on positivist criminology in the United States. From Benjamin Rush to the present day, the U.S. has produced an extensive corpus of empirical and theoretical studies that seeks to discern an objective, scientifically-grounded basis for criminal behavior. American positivist criminology has drawn on numerous subfields and theories, including rational choice / economic theory, biology, and psychology, but in all cases, maintains that a purely scientific explanation of offending is possible.

This study proceeds from the perspective that divisions between scientific and non-scientific thought are untenable. Drawing on scholarship in literary criticism and sociology, I argue that positivist criminology confronts an inherent contradiction in purporting to develop a purely scientific account of phenomena that are defined by the moral and cultural sentiments of a society. I thus hypothesize that positivist criminology is in fact reliant on the irrational and fictive cultural tropes and images of crime that it claims to exorcize.

The dissertation proceeds by reviewing the literature on the history of criminology, developing a set of functional types or tropes for character analysis, and then examining four separate periods in the development of scientific criminology: eighteenth century studies of rational action, nineteenth century studies of defective reasoning, early twentieth century studies of race and crime, and the development of scientifically informed criminalistics programs. Each of these cases captures a different period and focus in the development of scientific criminology. In threading continuity between these cases, I show how criminological positivism is consistently reliant on culturally informed tropes and characters to render itself sensible and coherent.

An economic institution, slavery depended on a set of laws designed to protect owners of human property (Phillips 1918, Stampp 1956, Genovese 1976). One might expect that those at the bottom of the hierarchy—enslaved women and girls of African descent—would have no hope of lawfully contesting their status. Recent literature demonstrates that there were in fact many legal pathways to freedom (Schafer 1994, Brana-Shute and Sparks 2009, Gross and De la Fuente 2013). Much research has focused on Missouri, a borderland between free and slave states, whence Dred Scott’s claim emerged (Vandervelde 2015, Twitty 2016, Kennington 2017).

This project focuses not on borderlands but on the Deep South. In the city with the largest slave market in the United States (Johnson 1999, Rothman 2005), it is surprising that opportunities to contest enslavement existed at all. This dissertation examines a subset of the cases that Judith Schafer (2003) identified in her survey study of New Orleans local court records. Between 1847 and 1850, a flurry of freedom suits descended upon the First District Court of New Orleans. Women and girls were the main legal actors. As domestic servants, they had been taken to France—a country whose legal institutions did not uphold slavery. Upon their return to New Orleans, these women and girls submitted petitions for freedom on this basis. Until 1852, white male judges affirmed their claims as valid under both local and international law.

Inspired by socio-legal history and critical legal theory, several questions emerge. How did claimants develop a legal consciousness? How did they access justice? How did race and gender matter? A detailed focus on a small set of cases allows for an in-depth exploration of these questions. A micro-history set in motion, this project also follows the historical actors to relevant places (Scott and Hébrard 2012). Beginning in New Orleans, it then traces the claimants in French archives. It follows Judge John McHenry (who decided most of these cases at the first-instance) to California, where he moved on the eve of the Civil War.

This project often ventures outside sources of traditional legal history (such as judicial opinions) in order to better understand law (Gordon 1984). In addition to trial records, New Orleans sources include sacramental records, wills, and the records of the city’s first African American Catholic congregation. French sources include antislavery literature, Abolitionist periodicals, and diplomatic correspondence. California sources include newspapers and personal letters.

Both an Atlantic history and a legal history from below, this book presents law the way that claimants experienced it (see, e.g., McKinley 2016, Palmer 2016, Welch 2018). Chapter 1 is premised on the socio-legal assumption that all lawsuits begin as social disputes. This chapter reviews the precedent setting cases where the Supreme Court of Louisiana revived the French medieval maxim that “there are no slaves in [metropolitan] France” (Peabody 1996). Chapter 2 demonstrates that in the 1830s-40s, Paris was the center of a growing Abolitionist movement throughout the French Empire. American women and girls traveling there as domestic servants would have experienced deeply racist immigration and criminal laws, but also law’s emancipatory potentials. Chapter 3 follows the women and girls back to New Orleans, situating them within a broader network of free people of color. Petitioners did not act in isolation; freedom suits mobilized a community. Chapter 4 examines how legal professionals translated raw desires into legal claims. Professionalization of legal practice, not cause lawyering, explains how litigants accessed representation. Chapter 5 focuses on judgment: simple words that drastically changed litigants’ lives.

From a structural point of view, the freeing of individual slaves is an integral part of slave law, serving the interests of the master class. By creating exceptions from some, it solidifies the general rule of slavery (Patterson 1982). But from an individual’s point of view, submitting a freedom petition is an act of resistance. Women and girls, not men and boys, emerge as the main legal actors. As members of intimate households, women were better placed than men to initiate legal proceedings. Because of the partus sequitur ventrem doctrine, the pay-off of an individual woman’s emancipation was higher. This project also responds to a narrative of Louisiana exceptionalism. Within Anglo-America, Louisiana was distinct in ways that mattered for enslaved people, and growing Anglicization of the legal system there shut off pathways to individual emancipation. On a wider international scale, however, Louisiana was not necessarily distinct but in fact well-connected to a French Atlantic network.

This dissertation analyzes the coalescence, rise, contestation, and fall of multiple jurisprudences of colonial property from the American plans to acquire Mexican Alta California in the 1840s to the adoption of the State’s revised constitution in 1879. It follows a cadre of lawyers as they seek to answer the apparently simple questions of who owned what, how much, and why? In this investigation it asks, how did these transformations of property law reflect and shape the larger development of American Empire? The arguments herein reflect and complicate classic theses on the liberalization of property and the demystification of law, and thereby the work makes significant contributions to the fields of American Legal History, Settler Colonial Studies, American Political Development, and the History of Capitalism.

The first half of the dissertation excavates the consolidation of “equitable property.” Chapter one, “Guides to the Promised Land, 1841-1851,” uses an archive of settler guidebooks, geographies, and travel accounts along with prominent reformist writings, like those of George Evans, to analyze the natural legal logic of property. This legality combined themes of anti-legalism, radical Lockeanism, and Christian theology. Across three great questions of American colonization policy – the origin of land titles, policy toward Native Peoples, and the Free versus Slave colonization debate – Pacific settlers employed legal naturalism to craft a radical and genocidal form of Free Labor “settlement.” Chapter two, “California Redeemed, 1851-1861,” analyzes the changing moral, social, and political meanings of equitable property. Through the personal and professional papers of elite lawyers, newspapers, and court decisions, the chapter argues that uncertain ownership precipitated a “property crisis,” which then became a general political and social crisis. The equitable legal concepts of “fraud” and “redemption” enabled elite land lawyers, the judiciary, and the emergent bourgeoisie of California to negotiate and quiet these deadly property conflicts. However, this equitable legality took on a life of its own and was soon turned against the elite lawyers and the ascendant doctrines of liberalism in property law.

The second half examines the partial disintegration of equity and the rise of anti-redistributive and “neutral” liberal law. In chapter three, “A Very Low Price, 1861-1871,” the work analyzes the material, legal, and ideological commodification of land and the articulation of a new model of American settler colonization of “cheap colonization.” This triple commodification, of land itself, of mortgage securities, and of wheat, marked a dramatic contrast with the moralistic and natural legality which preceded it. Land lawyers, especially those involved in global markets, increasingly understood land distribution as a matter of markets rather than justice. These two visions of law created a bloody conflict on Suscol Rancho and it became clear to lawyers that equitable property threatened society. To put it crudely, it was one thing to forcibly disposes Native Peoples and quite another to forcibly disposes white landlords. The final substantive chapter, “To Serve God or Mammon, 1871-1880,” narrates the rearguard actions of the equitable regime through Georgist thought, the Workingmen’s Party of California, and other countermovement to liberalism’s free market in land. While disunited, these radicals forced a Constitutional Convention in 1879 and the records of the convention form the archival backbone of this chapter. The records reveal a profusion of ideas on how law could constrain the problems of inequality in land ownership, but an overweening and racialist theory of property defused the anticapitalistic strain of equitable law. What seemed a last opportunity to reorganize American settler colonization became the last gasp of Jacksonian property. In the end, the new California Constitution retrenched the liberal order and marked the transformation of American colonial policy from old to new. Naturally, the conclusion sums up the work with a consideration of Frank Norris’s famous contemporary novel The Octopus (1901).