University Legal History

Timothy Kaufman-Osborn’s excellent book, The Autocratic Academy: Reenvisioning Rule within America’s Universities (2023), is, notwithstanding its subtitle, a call to return to something old in two related ways. First, it is a call for scholars to return to university legal history. Second, Kaufman-Osborn’s imagined ideal, which he calls “Commonwealth University” (2023, 259), is, I argue, best understood as a call to reconstitute the “the universitas scholarium, whence our ‘university’” (Clark 1986, 164) is derived, as “a noun of multitude” (Maitland, 13; Barkan 2024, 278). Universitas is Latin for “corporation,” amongst other meanings in English, and “means merely ‘the whole of you’” (Rashdall, 5) or “a unity at law” (Banerjee 2025a). In other words, it is a call to reenvision what Kaufman-Osborn provocatively denominates “the autocratic academy” as a decentralized “corporation of corporations (universitas universitatem)” (Runciman, 116–17). Reimagined along these lines, Commonwealth University (CU) would become a “little republic” of little republics (Kaufman-Osborn 2023, 124). In the marginal notes that follow, the University of California, whose signage dictating the conditions under which one may enter its domain adorns the front cover of Kaufman-Osborn’s book and about whom1 I wrote a couple of years ago (Banerjee 2023), will serve as our muse.

First, the main achievement of Kaufman-Osborn’s book is the reinvigoration of the forgotten field of university legal history. That is a history of what university corporations have done with and to law as much as it is a history of what law has done with and to university corporations. Like William Clark, Edwin Duryea, Jurgen Herbst, A. B. Cobban, Pearl Kibre, Hastings Rashdall, and Frederic William Maitland before him, Kaufman-Osborn makes plain what so many of us who spend our lives in universities miss: that the university has a legal history (Clark 2006; Duryea; Clark 1986; Herbst; Cobban; Kibre; Rashdall; Maitland). This was well known to nineteenth-century scholars of the university. One English commentator could write that “[t]he polity of our Universities is, in some respects, of a nature peculiar to itself, and, indeed, possesses more of law than [properly] belongs to places of literature” (Dyer, 50). The key to recovering the university’s lost legal history is recalling that the university, like all “classical corporation[s]” (Banerjee 2023, 267), governs (Ciepley, 491). Clark explains that “[t]he professional collegia took over the universitas, creating the modern confusion of the studium with the university, the confusion of the educational ‘academy’ with the legal corporation” (Clark 1986, 252). University legal history disentangles the university’s governmental history from its academic history, as we will see below.

Kaufman-Osborn unearths the university’s legal history to good effect. His treatment of the Bracken case at the College of William & Mary is typical. In 1779, the William & Mary visitors fired grammar-school master John Bracken after they abolished the grammar school. Bracken then unsuccessfully asked the Virginia courts to restore him to his position and to award him lost pay. “What chiefly interests me,” Kaufman-Osborn writes, “about Bracken’s case are the very different readings of William & Mary’s governance offered by counsel for each side and their respective implications for our understanding of the relationship between the college and those who perform its work” (2023, 75). The visitors argued that the Virginia courts lacked jurisdiction to hear the case because William & Mary was governed, according to their charter, by the visitors, who possessed final and unreviewable authority over the college’s affairs. Bracken argued that the courts could review the visitors’ decisions because William & Mary, which, for reasons Kaufman-Osborn details, owned the authority claimed by the visitors, ultimately answered to the People of Virginia, whose courts therefore had jurisdiction over the matter. Bracken argued further that the visitors’ action was “justifiable only if one confuses the visitors with the corporation, thereby claiming for the former the powers of the latter” (2023, 79). (We will return to this theme below.) Among other things, this case provides an early example of an American university “deprived of the right to self-governance as they become subject to the will and whim of those who are not themselves members” (2023, 80). In the final analysis, William & Mary’s legal history shows that it was “fast taking on the depoliticized trappings of an autocratic property corporation” (2023, 80).

As Kaufman-Osborn demonstrates, university legal history is ripe for recovery in a moment when encroachment on university prerogatives by external forces (Sitze 2025a) has surfaced basic, unresolved issues concerning what a university is. To study the legal history of the university is to study the history of the university’s corporate activity (Banerjee 2025b). This corporate history furnishes a deep background of and broad foundation for the current debates over who governs universities and to what end (Kaufman-Osborn 2025b).

Second, we ought to constitute CU as a true “multiversity,” to invoke former University of California president Clark Kerr’s terminology (Kerr, 5). That is, we ought to constitute CU as a unity of corporations within a corporation. Kaufman-Osborn writes that “Commonwealth University’s constitution as a corporation” is central to its autonomy (2023, 269). I argue that the hierarchical relations between ruler and ruled are not the main problem within the autocratic academy. Instead, the asymmetrical relations between ruling corporation—in the University of California case, the Regents—and ruled natural persons—professors, students, librarians, and so on—are the problem. In a word, the answer to the problem of the autocratic (and tautological) university corporation (Banerjee 2023, 238) is more university corporations.

As Kaufman-Osborn notes, the university is a product of medieval Europe (2023, 64). Stirling Taylor writes that the “main principle of mediævalism” was “local independence” (Taylor, 13). He argues further that “[t]he government of the Middle Ages, such as it existed at all, was almost purely local. The great modern State was unknown” (Taylor, 15). The great modern university was likewise unknown.

The modern university is characterized, according to Kaufman-Osborn, by “vertical relations of unaccountable power” (2023, 269). This view of the modern university, true as far as it goes, errs inasmuch as it conceives the university as a single corporation. CU should not be constituted “as a corporation,” as Kaufman-Osborn suggests, but as many corporations.

By embracing the uni-corporation view of the university, Kaufman-Osborn places himself in good company. Legal scholar Merritt Chambers long ago addressed the question of the university’s identity, writing of the university governing board that, “[i]n the eyes of the law, this ghostly legal entity is the university” (Chambers, 320). Chambers, in turn, had strong authority on his side, including medievalist Ernst Kantorowicz, who argued nine years earlier, during the University of California’s infamous oath controversy, part of the twentieth century’s “era of loyalty oaths” (Whittington, 37; Sitze 2021, 213–14), that “the judges are the Court, the ministers together with the faithful are the Church, and the professors together with the students are the University” (Kantorowicz, 16). It follows that professors—like judges and ministers—are, regardless of whether the university which they constitute holds itself out as public or private, neither “government employees” (Whittington, 74) nor university employees. In short, the modern employer-employee relationship (Vinel, 19–20) is not exemplary of the ancient scholar-university relationship. (We return to this briefly below.)

Happily, university legal history provides us with a deep well of academic experience from which to draw, including that of the medieval University of Paris, a corporation of multitude. One medievalist wrote that “the development of the organization of the University was slow, starting with a general body which broke up into several bodies or corporations within a corporation” (Post, 429; Le Goff, 73). By the close of the fifteenth century, Paris contained no fewer than forty colleges (Brockliss, 8). But Paris is merely first in a long line of such examples. Concerning the University of Cambridge, Victor Morgan notes that “certain readerships and professorships were also ‘bodies corporate’, and therefore, the university reasoned, capable of accepting the security of income to be derived from permanent endowment” (Morgan, 187 n. 22). L.W.B. Brockliss shows that the situation was similar at Oxford, where “[t]he colleges were often a powerful force in the university because they were independent corporate entities and usually supported older students in the higher faculties” (8). This resonates, surprisingly, with what the California Supreme Court would decide about who the University of California—established centuries later on the other side of the Atlantic Ocean—was.

Before returning to California, I would like to suggest that centralized government exacerbates the problematic asymmetry mentioned above. Taylor writes that “[c]entral government is the root of the modern system; and it includes within its scope affairs that were altogether outside the bounds of the mediaeval monarchy. The Government now really tries to govern” (26). More specifically, “the modern idea is that the people should receive their instructions from above” because “[i]t is assumed that the State can govern its subjects far better than they can govern themselves” (26). As a result, “[s]ince the Middle Ages there has been a continual weakening of the local power, and a still more rapid growth of the central political organization,” and “government has ceased to be conducted by the men who are intimately in touch with the work in hand, and has passed into the control of the political amateurs and the clerical bureaucrats, who often have every qualification except personal knowledge of the work they are trying to manage” (27). Finally, “[c]entralization has meant, in practice, the triumph of the governor over the governed” (75).

During the last century, centralization affecting the American university has proceeded along two tracks: (1) the federal government arrogating increasing power to itself (Novak, 99) and (2) university rulers doing the same. The latter development provided the basis of Kaufman-Osborn’s chief complaint. In the absence of university rulers with centralized authority, the Bracken case described above might have turned out differently.

Back to California. In an 1899 case, the question of the University of California’s identity was before the California Supreme Court. In that case, which Kaufman-Osborn discussed in a recent essay (Kaufman-Osborn 2025a), Herman Royer included a provision in his will that “[a]ll the rest and residue of my property and estate I do hereby give, devise, and bequeath unto the University of the State of California” (Royer’s Estate, 615). Failing that, the gift would go to Royer’s next of kin. The trial court denied the Regents’ disbursement petition, reasoning that

neither the University of the State of California, nor the University of California, is now, or ever has been, a corporation under the laws of this state, and is not a person, and that each is an entity distinct from the Regents of the University of California, which latter are a corporation duly organized under the laws of the state (615).

The trial court concluded that, “[b]ecause neither the University of the State of California nor the University of California was a corporation, neither could receive the bequest and the same was to revert to the next of kin” (Banerjee 2023, 259).

On appeal, the California Supreme Court reversed the trial court’s decision, determining that the university’s organic act “nowhere provides, in terms or by implication, that when incorporated the regents should become, and thereafter be, the university” (621). Accordingly, “[t]he regents are in fact a part of the university, with specifically defined powers in their custody and control of the property and the management of university affairs,” and they “have no duties or powers beyond the purpose of their creation, which was to take the custody and control of the university property, and to perform certain prescribed duties in the management of the university” (622).

The Court reasoned that the Regents were “a corporation within a corporation,” and could not be regarded “as a legal corporate entity, except as a part of, and ancillary to, the parent and principal institution,—the public corporation created by law as such, and entitled ‘The University of California’” (622). Thus, the Regents could take the bequest. The case shows that that the ancient Parisian “corporation within a corporation” university model was found in Kerr’s most modern multiversity six decades before he coined that term.

Now, lest a reader think the medieval universitas represents an exclusionary university, we must recall that, in the Middle Ages, “the term ‘members of the university’, or ‘privileged persons’, included not only graduates and scholars, but also all college servants, and members of certain trades who served the university, such as stationers and bookbinders, cooks, caterers and innkeepers, and carriers” (Pantin, 59). “[T]he medieval university was catholic in every way” (Sitze, 2025a), embracing more of its community than the University of California does today (Lunsford, 547). Thus, Kaufman-Osborn’s insistence that his aim “is not to recover some precapitalist idyll when, as some would have it, education truly flourished” (2023, 271), likely reflects a mistake of fact.

Here, it is important to distinguish between the governmental university and the educational academy, as Clark did in his too-little-known dissertation, quoted above. The “precapitalist idyll” to which Kaufman-Osborn refers is worth recovering because it emphasizes, as one contributor to this essay collection has elsewhere observed, that “universities are collectivities completely and totally distinct from the logics of capitalist accumulation” (Barkan 2013, 160).

Decades ago, Patricia Williams exhorted society to give rights away freely. “Unlock them,” she urged, “from reification by giving them to slaves. Give them to trees. Give them to cows. Give them to history. Give them to rivers and rocks” (Williams, 165). So too with academic-corporate rights. Give them to departments (including the janitorial ones2), programs, professorships, deanships, libraries, provosts, workshops, lectures, courses, cafes, gyms, journals, dining clubs, and student organizations. These “little government[s]” constituting a true multiversity can thrive notwithstanding an otherwise autocratic environment, as many a universitas did for centuries before what David Ciepley calls the “Great Inversion in the history of governance in the West,” a term which “foregrounds an unexamined paradox in the history of Western government: The so-called absolutist monarchs of Europe overwhelmingly chartered republican corporations, while the constitutional republics of the modern era have overwhelmingly chartered authoritarian corporations” (Ciepley, 490–92). Indeed, Taylor points out, “it is not . . . a necessary function [even] of a royal house to interfere with the self-government of its people,” as evidenced by the fact that “[t]here were many kings long before people thought of tolerating any kingly rights over their private lives” (99). Autocratic kings and popes lavished universities with privileges, including immunity from civil courts, exemption from taxation and torture, the ability to don the garb of noblemen and to prevent construction blocking lecture-hall lighting, and the capacity to sit with magistrates (Clark 2006, 187), which in fact furnished universities with considerable governmental authority and the freedom to exercise that authority, notwithstanding frequent encroachment on their privileges. For example, Brockliss wrote that “Oxford University was essentially an ecclesiastical liberty, a town within a town or a state within a state; its Chancellor in many respects enjoying a jurisdiction and authority analogous to the vast powers of the palatine bishops of Chester and Durham” (24). Incidental to the chancellor’s expansive jurisdiction was correctional power over members (Kibre, 312), to which Joshua Barkan’s essay in this collection gestures and William Clark’s dissertation called attention (Clark 1986, ch. 2). Autocratic environments, such as those that existed in medieval and early modern England and Europe, therefore, do not preclude republican corporate flourishing of the sort Kaufman-Osborn envisions. As an “indigenous product of western Europe” in the Middle Ages (Cobban, 235)—indeed, as the “European institution par excellence” (Rüegg, xix)—the university shows that medieval Europe’s autocratic environment did not frustrate republican-corporate development but instead created the conditions for its culmination.

The first step toward returning university control to scholars is claiming corporate status and rights, as ancient universities did long ago.3 Importantly, claiming such corporate rights, Kaufman-Osborn has emphatically shown, is deeply academic. Once incorporated, the members or citizens of these universities within universities must guard with “alacrity” their corporate rights, their privilegium (Kibre, xv, 90), against autocratic rulers by wielding not the modern employee-union rights of collective bargaining and striking (Wishnie; Bowie, et al.), but the ancient academic-corporate rights of lecture-suspension and migration—the scholars’ “chief weapon[s]” (Kibre, 326–28). In the medieval university, “[t]he periodic cessation of lectures and subsequent migrations of colonies of doctors and students to rival cities arose either from direct conflict with the communal authorities, or because factious civic disorder made settled study too difficult, or, less frequently, it resulted from a reaction to unwelcome papal policy” (Cobban, 73; Brockliss, 13). More recently, during the University of California’s aforementioned oath controversy, according to yet another contributor to this collection, Kantorowicz “advocated for the most extreme form of opposition to it (mass resignation)” (Sitze 2021, 214) and then departed himself for the Institute for Advanced Study at Princeton. Like Kantorowicz’s “unusual” (Sitze 2021, 202) pamphlet, Kaufman-Osborn’s unusual book urges and equips us to renounce the rumor that progress expresses itself only in that which is new. Renouncing that rumor is essential to meeting the challenges that lie ahead (Sitze 2025b).