Missouri Law and the American Conscience: Historical Rights and Wrongs ed. by Kenneth H. Winn (review)

This valuable collection of essays, written by historians, law professors, and a former chief justice of the Missouri Supreme Court, provides information on topics in Missouri legal history ranging from the French and Spanish colonial period to the late twentieth century that, except for the famous Dred Scottv. Sandford (1857) case, are not well known.

William E. Foley, in "Testing the Limits of American Justice: Indian Trials in Nineteenth-Century Missouri," shows that while Native Americans' "judicial settlements typically employed restitution, compensation, and banishment," they also sought retribution (p. 9). Unlike the French and Spanish in upper Louisiana, who generally tried to keep the peace because of their small numbers, Americans, following the United States' purchase of the Louisiana Territory in 1803 and a large migration wave, tended to force Indians into their justice system. Though some judges tried to be just when dealing with Indians during trials, juries were inclined to find them guilty.

Paul Finkelman, in "The Politics of Slavery and Missouri's First Elected Supreme Court: Dred Scott v. Emerson," notes that while much has been written on the Scott decision in the U.S. Supreme Court, there is little scholarship on litigation in Scott v. Emerson (1852) at the state level. American courts followed the English common-law precedent set in Somerset v. Stewart (1772) that a slave became free when going into an area where there was no slavery and could not be forced to become a slave again. Also of importance for the Scott decision, Missouri courts had previously taken the position that the freedom of a former slave endured even when the person returned to an area where slavery was legal. Dred Scott sued for his freedom and won in the St. Louis Circuit Court in 1852. When the losing party appealed, the Missouri Supreme Court, which included newly elected proslavery Democrats, denied the common-law precedents and ruled that Scott became a slave when he returned to Missouri. Chief Justice Roger B. Taney confirmed and elaborated on the lower court's decision when Scott appealed to the U.S. Supreme Court.

James R. Devine, in "Shaking the Shackles: Curt Flood's Challenge to Baseball's Reserve Clause," discusses Curt Flood's legal challenge to the reserve clause after the St. Louis Cardinals traded him in 1969. The U.S. Supreme Court held that professional baseball was not interstate commerce and did not come under antitrust laws. Along with a critical analysis of Supreme Court justice Harry Blackmun's majority opinion, Devine quotes from Justice Thurgood Marshall's dissenting opinion that Flood "was virtually enslaved by the owners of major league baseball clubs" (p. 231). In time, the Baseball Players Association engaged in collective bargaining with the owners, and the goal of free agency was met.

Kenneth H. Winn, the editor of the collection, contributes two of the essays. In "The Frown of Fortune: George Sibley, Breach of Promise, and Anglo-Francophone Conflict on the Missouri Frontier," he discusses a breach of promise case in the territorial superior court. In "The Living Example: Laurance M. Hyde and the Missouri Nonpartisan Court Plan," Winn discusses Laurance Hyde's plan to take politics out of judicial selection by having commissions consisting of the chief justice of the Missouri Supreme Court and representatives of the governor and the Missouri bar choose judges. This Missouri plan influenced legal reformers in the American Bar Association.

Karen Anderson Winn, in "Constitutional Mollycoddling: How Women Won the Right to Serve as Jurors in Missouri (but only if they wanted to)," discusses how organizations such as the Missouri League of Women Voters, after the ratification of the Nineteenth Amendment, worked to secure women's right to serve on juries. At Missouri's 1943–1944 state constitutional convention a compromise was worked out that women could serve on juries only if they chose to. Douglas E. Abrams...