An account of a fundamental change in American legal thought, from a conception of law as something found in nature to one in which law is entirely a human creation. Before the late 19th century, natural law played an important role in the American legal system. Lawyers routinely used it in their arguments and judges often relied upon it in their opinions. Today, by contrast, natural law plays virtually no role in the legal system. When natural law was part of a lawyer's toolkit, lawyers thought of judges as finders of the law, but when natural law dropped out of the legal system, lawyers began thinking of judges as makers of the law instead. In The Decline of Natural Law, the eminent legal historian Stuart Banner explores the causes and consequences of this change. To do this, Banner discusses the ways in which lawyers used natural law and why the concept seemed reasonable to them. He further examines several long-term trends in legal thought that weakened the position of natural law, including the use of written constitutions, the gradual separation of the spheres of law and religion, the rapid growth of legal publishing, and the position of natural law in some of the 19th century's most contested legal issues. And finally, he describes both the profession's rejection of natural law in the late 19th and early 20th centuries and the ways in which the legal system responded to the absence of natural law. The first book to explain how natural law once worked in the American legal system, The Decline of Natural Law offers a unique look into how and why this major shift in legal thought happened, and focuses, in particular, on the shift from the idea that law is something we find to something we make.

The Baseball Trust is about the origins and persistence of baseball's exemption from antitrust law, which is one of the most curious features of our legal system and also one of the most well known to sports fans. Every other sport, like virtually every other kind of business, is governed by the antitrust laws, but baseball has been exempt for nearly a century. No one thinks this state of affairs makes any sense. The conventional explanation of this oddity emphasizes baseball's unique cultural status as the national pastime, and assumes that judges and legislators have expressed their love for the game by insulating it from antitrust attack. A serious baseball fan, Stuart Banner provides a thoroughly entertaining history of the game through the prism of the antitrust exemption. But he also narrates a very different kind of baseball history, one in which a sophisticated business organization successfully worked the levers of the legal system to achieve a result enjoyed by no other industry in America. For all the well-documented foibles of the owners of major league baseball teams, baseball has consistently received and followed smart antitrust advice from sharp lawyers, going all the way back to the 1910s. At the same time, it is a story that serves as an arresting reminder of the path-dependent nature of the legal system. At each step, judges and legislators made decisions that were perfectly sensible when considered one at a time, but this series of decisions yielded an outcome that makes no sense at all.

This book examines the regulation of the earliest securities markets in England and the United States, from their origins in the 1690s until the 1850s. Professor Banner argues that during the reign of Queen Anne a complex and moderately effective body of regulatory control was already extant, reflecting widespread Anglo-American attitudes toward securities speculation. He uses both traditional legal materials (including court opinions, statutes, and legal treatises) and as a broad range of non-legal sources (novels, broadsides, contemporary engravings) to examine contemporary images of stock markets and speculation practices, and he shows that securities regulation has a much longer ancestry than is often supposed. Insights from both legal and cultural history are utilised to explain how popular thought about the securities market was translated into regulation and, reciprocally, how that regulation influenced market structures and the activities of speculators.

This book examines the regulation of the earliest securities markets in England and the United States, from their origins in the 1690s through the 1850s. Professor Banner argues that during the reign of Queen Anne a complex and moderately effective body of regulatory control was already extant, reflecting widespread Anglo-American attitudes toward securities speculation. He uses traditional legal materials as well as a broad range of nonlegal sources to show that securities regulation has a much longer ancestry than is often supposed.

In the summer of 1900, a zeppelin stayed aloft for a full eighteen minutes above Lake Constance and mankind found itself at the edge of a new world. Where many saw hope and the dawn of another era, one man saw a legal conundrum. Charles C. Moore, an obscure New York lawyer, began an inquiry that Stuart Banner returns to over a century later: in the age of airplanes, who can lay claim to the heavens?

The debate that ensued in the early twentieth century among lawyers, aviators, and the general public acknowledged the crucial challenge new technologies posed to traditional concepts of property. It hinged on the resolution of a host of broader legal issues being vigorously debated that pertained to the fine line between private and public property. To what extent did the Constitution allow the property rights of the nation s landowners to be abridged? Where did the common law of property originate and how applicable was it to new technologies? Where in the skies could the boundaries between the power of the federal government and the authority of the states be traced?

"Who Owns the Sky" is the first book to tell this forgotten story of elusive property. A collection of curious tales questioning the ownership of airspace and a reconstruction of a truly novel moment in the history of American law, Banner s book reminds us of the powerful and reciprocal relationship between technological innovation and the law in the past as well as in the present.

The impact of antitrust law on sports is in the news all the time, especially when there is labor conflict between players and owners, or when a team wants to move to a new city. And if the majority of Americans have only the vaguest sense of what antitrust law is, most know one thing about it-that baseball is exempt. In The Baseball Trust, legal historian Stuart Banner illuminates the series of court rulings that resulted in one of the most curious features of our legal system-baseball's exemption from antitrust law. A serious baseball fan, Banner provides a thoroughly entertaining history of the game as seen through the prism of an extraordinary series of courtroom battles, ranging from 1890 to the present. The book looks at such pivotal cases as the 1922 Supreme Court case which held that federal antitrust laws did not apply to baseball; the 1972 Flood v. Kuhn decision that declared that baseball is exempt even from state antitrust laws; and several cases from the 1950s, one involving boxing and the other football, that made clear that the exemption is only for baseball, not for sports in general. Banner reveals that for all the well-documented foibles of major league owners, baseball has consistently received and followed antitrust advice from leading lawyers, shrewd legal advice that eventually won for baseball a protected legal status enjoyed by no other industry in America. As Banner tells this fascinating story, he also provides an important reminder of the path-dependent nature of the American legal system. At each step, judges and legislators made decisions that were perfectly sensible when considered one at a time, but that in total yielded an outcome-baseball's exemption from antitrust law-that makes no sense at all.

What is the difference between a speculator and a gambler? This simple question, reminiscent of an old joke, lies at the heart of one of the most fraught issues within the American economy. And with it come more questions, equally distressing: how can we tell the difference between a good investment and a bad one, and encourage the former while guarding against the latter? If we can't prevent over-speculation, what moral code can be applied when it leads to the loss of thousands of people's savings, jobs, and security? The aftermath of the 2007 financial crisis prompted many of these questions, butthis is not by any means the first time they have been raised, nor will it be the last. In Speculation, author Stuart Banner offers a sweeping historical examination of this debate, showing that, not only have courts always struggled to draw a line between investment and gambling, but that the passionate arguments produced on all sides have almost certainly been made before. While many today argue that we need to prohibit certain risky transactions, others respond by citing the benefits of robust markets and the dangers of over-regulation. This debate has been a perennial feature of American history, and many of these same sentiments have been expressed, on both sides, after every financial downturn since the 1790s. The Panic of 1837, the speculative boom of the roaring twenties, and the real estate bubble of the early 2000s are all emblematic of the difficulty in differentiating sober from reckless speculation. These episodes have generated deep ambivalence, yet Americans' faith in investment and - by extension - the stock market has always rebounded quickly after even the most savage downturns. Indeed, the speculator on the make is a central figure in the folklore of American capitalism. Engaging and accessible, Speculation: A History synthesizes a complicated but important dilemma that intersects with critical themes at the heart of the nation - the ability of our courts to ensure justice and protection; the fallibility of our economy's promise of financial success; the moral conundrum inherent in valuing those who produce goods over those who speculate, and yet enjoying the fruits of speculation. The history of this struggle will not only prove invaluable for improving today's economy, but will also impact how we understand a fundamental aspect of the American identity.

The death penalty arouses our passions as does few other issues. Some view taking another person's life as just and reasonable punishment while others see it as an inhumane and barbaric act. But the intensity of feeling that capital punishment provokes often obscures its long and varied history in this country. Now, for the first time, we have a comprehensive history of the death penalty in the United States. Law professor Stuart Banner tells the story of how, over four centuries, dramatic changes have taken place in the ways capital punishment has been administered and experienced. In the seventeenth and eighteenth centuries, the penalty was standard for a laundry list of crimes-from adultery to murder, from arson to stealing horses. Hangings were public events, staged before audiences numbering in the thousands, attended by women and men, young and old, black and white alike. Early on, the gruesome spectacle had explicitly religious purposes-an event replete with sermons, confessions, and last-minute penitence-to promote the salvation of both the condemned and the crowd. Through the nineteenth century, the execution became desacralized, increasingly secular and private, in response to changing mores. In the twentieth and twenty-first centuries, ironically, as it has become a quiet, sanitary, technological procedure, the death penalty is as divisive as ever. By recreating what it was like to be the condemned, the executioner, and the spectator, Banner moves beyond the debates, to give us an unprecedented understanding of capital punishment's many meanings. As nearly four thousand inmates are now on death row, and almost one hundred are currently being executed each year, the furious debate is unlikely to diminish. The Death Penalty is invaluable in understanding the American way of the ultimate punishment.

In America, we are eager to claim ownership: our homes, our ideas, our organs, even our own celebrity. But beneath our nation s proprietary longing looms a troublesome question: what does it mean to own something? More simply: what is property?

The question is at the heart of many contemporary controversies, including disputes over who owns everything from genetic material to indigenous culture to music and film on the Internet. To decide if and when genes or culture or digits are a kind of property that can be possessed, we must grapple with the nature of property itself. How does it originate? What purposes does it serve? Is it a natural right or one created by law?

Accessible and mercifully free of legal jargon, " American Property" reveals the perpetual challenge of answering these questions, as new forms of property have emerged in response to technological and cultural change, and as ideas about the appropriate scope of government regulation have shifted. This first comprehensive history of property in the United States is a masterly guided tour through a contested human institution that touches all aspects of our lives and desires.

Stuart Banner shows that property exists to serve a broad set of purposes, constantly in flux, that render the idea of property itself inconstant. Despite our ideals of ownership, property has always been a means toward other ends. What property signifies and what property is, we come to see, has consistently changed to match the world we want to acquire.

Between the early seventeenth century and the early twentieth, nearly all the land in the United States was transferred from American Indians to whites. This dramatic transformation has been understood in two very different ways--as a series of consensual transactions, but also as a process of violent conquest. Both views cannot be correct. How did Indians actually lose their land?

Stuart Banner provides the first comprehensive answer. He argues that neither simple coercion nor simple consent reflects the complicated legal history of land transfers. Instead, time, place, and the balance of power between Indians and settlers decided the outcome of land struggles. As whites' power grew, they were able to establish the legal institutions and the rules by which land transactions would be made and enforced.

This story of America's colonization remains a story of power, but a more complex kind of power than historians have acknowledged. It is a story in which military force was less important than the power to shape the legal framework within which land would be owned. As a result, white Americans--from eastern cities to the western frontiers--could believe they were buying land from the Indians the same way they bought land from one another. "How the Indians Lost Their Land" dramatically reveals how subtle changes in the law can determine the fate of a nation, and our understanding of the past.

During the nineteenth century, British and American settlers acquired a vast amount of land from indigenous people throughout the Pacific, but in no two places did they acquire it the same way. Stuart Banner tells the story of colonial settlement in Australia, New Zealand, Fiji, Tonga, Hawaii, California, Oregon, Washington, British Columbia, and Alaska. Today, indigenous people own much more land in some of these places than in others. And certain indigenous peoples benefit from treaty rights, while others do not. These variations are traceable to choices made more than a century ago--choices about whether indigenous people were the owners of their land and how that land was to be transferred to whites.

Banner argues that these differences were not due to any deliberate land policy created in London or Washington. Rather, the decisions were made locally by settlers and colonial officials and were based on factors peculiar to each colony, such as whether the local indigenous people were agriculturalists and what level of political organization they had attained. These differences loom very large now, perhaps even larger than they did in the nineteenth century, because they continue to influence the course of litigation and political struggle between indigenous people and whites over claims to land and other resources.

"Possessing the Pacific" is an original and broadly conceived study of how colonial struggles over land still shape the relations between whites and indigenous people throughout much of the world.