history of sales law and biblical studies and fee tail and larceny and embezzlement

When I began the study of law in 1996 (I was 44), after working for nearly 25 years in the history of religions, I immediately noted three things immensely alluring to me about law that practitioners and scholars didn't at all think were interesting. Admittedly my survey data on this is only anecdotal, but none of the five or ten people to whom I shared the following observations even gave me the slightest assurance that they knew what I meant. So, I will share them with you here, before launching into an explanation for this series of essays.

1. The first thing I told people that I absolutely loved about the study of law was that most of it was in English. That is, in order to make a contribution in the understanding of American law, you could do it by just knowing English. People looked at me as if I was from another planet. Huh? Of course we work in English, with an occasional Latinism thrown in. What could you expect? Well, I learned in my "earlier" life that if I wanted to make a contribution to my field I had to have a working knowledge of at least five languages and, if I really wanted to be good, a passing acquaintance with at least five more. And this was without even having any knowledge of what a friend of mine used to call the "exotic" languages (i.e., Sanskrit, Coptic, Ethiopic, Old Church Slavonic, etc.). My dissertation was a six language affair, as I recall, even though I would kindly translate the other languages into English. So, when I learned that all I really needed to do in law in America was to be good at reading English, I thought people were kidding. It almost didn't seem fair to me. Oh, there are ample opportunities, I have discovered, to use languages to develop a deeper understanding of law, but my first observation was generally true: English alone gets you pretty far when you study American law.

2. The second thing that amazed me about the study of American law is that there was a profusion, in most instances, of contemporaneous material to explain texts. Oh, people bemoan the "sparse legislative history" of enactments all the time, but the point that immediately hit me was how much there was. One of my earliest legal projects was to understand some provisions of the ADA of 1990. I was amazed that there were Congressional reports, statutory analyses, loads of cases construing phrases, etc. that could shape my understanding of what passages meant. The reason this so amazed me is that I had spent hundreds of hours over the previous 25 years trying to coax social meaning or historical significance out of sacred texts, especially the Bible. But there often was nothing to go on. The Gallio Inscription of A.D. 51 was hailed as a signal find in New Testament scholarship, but it was a few lines of text which scholars eagerly and repetitively combed to give us "background" information to understand life in Corinth in the mid-first century. Thus, I concluded that there really was no reason why I should never be at a loss to give an intelligent construal to any provision of American law. It was as if scales had fallen from my eyes.

3. Third was my bemusement at the ahistorical nature of legal education. For example, in the early lectures of my property law class, my outstanding teacher spent a good deal of time patiently going through the various conditions subsequent or precedent or the various fees and fee tails in English common law. I asked him afterwards about the social forces that had shaped the formation and development of the fee tail in say (I just pulled a century out of the hat) the 15th century. He gave me a blank look as if to communicate that such a question was illegal. I figured at first that he was simply an exception, but that really the faculty knew and had to know the history of their fields since, after all, material was available (point 2). So I went into my criminal law class. The professor discussed common law crimes such as larceny and embezzlement, and then gave us tons of examples to show how it was almost impossible to differentiate the two at common law. So, I probed what it was in the history of the concepts that led to this confusion. I had seen often enough in history how confusing concepts that seemingly shouldn't be confusing are almost always the product of historical developments that are usually unknown to us. Again, I was greeted with a sort of stare as if I was asking something that was not a proper question.

After my third or fourth experience doing this I didn't conclude that history was unimportant: I concluded that law, for some reason, was lacking a very critical component in its self-understanding: an understanding of its own development. I suppose, as I have studied law longer, that this lack was a function of law's overreliance or a certain pride in argumentation or sense of its own rationality or ability to argue. But it was not until I started doing law my own way* that I

[*I wrote a book on the history of capital punishment in Oregon during my last semester as a student, and I felt as if I was plowing virgin territory]

discovered that scholars here and there took seriously the questions I was raising. And I was grateful for it.

Conclusion

This collection of essays attempts to fill a gap in the study of Sales Law, a gap that is not only present in the online literature but also in the print medium. I propose to write about the development of Sales Law in the American context from the promulgation of the Uniform Sales Act by the National Conference of Commissioners on Uniform State Laws (1906) until today. The next essay describes my method in this endeavor. I seek your input and improvement as I try to offer this resource to a wider public.

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