A Dicey Anthology

The anthology Twenty-First Century Perspectives on the Scholarship of AV Dicey: The Enduring Legacy of a Victorian Constitutionalist (Hart/Bloomsbury), edited by Catherine Marshall and Céline Roynier, has been published:

Every student in law and in politics, every law faculty and most legal practitioners in the world are aware of who Albert Venn Dicey (1835–1922) was and what he wrote. Yet, this fame does not mean that Dicey's legacy is not controversial and debated in the present world. This book considers why Dicey's late Victorian constitutional and political thinking is still alive. In spite of all the transformations that have taken place in public law in the UK in the last hundred years, the book argues that Dicey managed to grasp and to crystallise something of the British political identity and culture. Hence the long-lasting fire-power of his constitutional and political thinking.

The book also considers that there is something even more prescient in Dicey's writings, for the UK but also for countries that have adopted his understanding of the rule of law and/or of parliamentary government. Dicey identified one of the most fundamental political issues at stake: the nature of the relationship between public law and democracy. The book looks closely at the alliance between public law and democratic spirit. This alliance needs to be reassessed from a legal, historical and comparative perspective. This edited collection, gathering authors from different countries, from various legal systems and from diverse backgrounds, tackles this task.

TOC after the jump

--Dan Ernst

Walters's "Dicey and the Common Law Constitutional Tradition"

When it appeared, we somehow overlooked Mark D. Walters's A.V. Dicey and the Common Law Constitutional Tradition: A Legal Turn of Mind (Cambridge University Press), so we’re noting it now:

 In the common law world, Albert Venn Dicey (1835–1922) is known as the high priest of orthodox constitutional theory, as an ideological and nationalistic positivist. In his analytical coldness, his celebration of sovereign power, and his incessant drive to organize and codify legal rules separate from moral values or political realities, Dicey is an uncanny figure. This book challenges this received view of Dicey. Through a re-examination of his life and his 1885 book Law of the Constitution, the high priest Dicey is defrocked and a more human Dicey steps forward to offer alternative ways of reading his canonical text, who struggled to appreciate law as a form of reasoned discourse that integrates values of legality and authority through methods of ordinary legal interpretation. The result is a unique common law constitutional discourse through which assertions of sovereign power are conditioned by moral aspirations associated with the rule of law.

--Dan Ernst

Redburn, "The Equal Right to Exclude: Religious Speech and the Road to 303 Creative LLC v. Elenis"

The California Law Review has published "The Equal Right to Exclude: Religious Speech and the Road to 303 Creative LLC v. Elenis," by Kate Redburn (Columbia Law). The abstract: 

This Article explains how speech became the constitutional vehicle for the right to discriminate on religious grounds in places of public accommodation. It argues that cause lawyers for the New Christian Right cobbled together a right to exclude from a surprising doctrinal source: the egalitarian tendencies within the First Amendment. Using extensive original archival research, case materials, and little-known accounts of key figures, I reconstruct the New Christian Right’s legal strategy to obtain speech coverage for service denial. By strategically co-opting the progressive free speech legacy, innovative lawyers in the religious wing of the conservative legal movement convinced liberal jurists that they shared an approach to constitutional interpretation. The result was an argument that won the day in 303 Creative v. Elenis—that the government discriminates on the basis of speech content when it enforces public accommodations law in the sale of expressive products.

This research has important implications for our understanding of the conservative legal movement, the meaning of First Amendment equality, and the future of anti-discrimination law. First, by going to the origins of conservative Evangelical cause lawyering, this Article reveals compromises, tensions, and contingencies in the formation of today’s conservative legal movement. Second, this novel history helps illuminate key moves in expressive conduct doctrine that resurfaced in 303 Creative. Third, the story provides important resources for understanding the 303 Creative decision and where expressive association doctrine is likely to go next.

Read on here.

-- Karen Tani

Tanenhaus on the Many Histories of Juvenile Justice

A preprint of David S. Tanenhaus’s The Many Histories of Juvenile Justice, forthcoming in Crime and Justice: A Review of Research, is now available.  Here is the abstract:

A new framework and method for understanding the history of American juvenile justice divides this history into four periods and contextualizes the most innovative scholarship from each to demonstrate why it matters, as is the case with any subject, who writes the history, when they did so, and how.  During the first period (c. 1899 to 1940), Lou Xuexi (known as Herbert H. Lou to English-language audiences) chronicled the creation, legitimation, and spread of the juvenile court idea across the United States and much of the world.  He became the field’s Tocqueville.  The next period (c. 1940 to 1969) witnessed a transnational reimagining of what constituted juvenile justice and a reconsideration of its history, including the publication of Anthony Platt’s The Child Savers.  During the third period (c. 1970 to 2000), the field became more narrowly focused on the United States.  Scholars created historical narratives that addressed the system’s differential treatment of females and racial minorities, and whether it was equipped to handle the cases of modern adolescents.  In the fourth period (c. 2001 to 2024), scholarship focused on restoring hope and raising expectations, and viewed this history through the prism of carceral studies.

--Dan Ernst

Weekend Roundup

• Bernie Meyler, Stanford Law School, on presidential pardons, with Pamela Karlan and Richard Thompson Ford on the Stanford Legal podcast.  
  

• Over at JOTWELL: Richard Murphy (Texas Tech University) has posted an admiring review of Ashraf Ahmed, Lev Menand, & Noah A. Rosenblum, The Making of Presidential Administration, 137 Harv. L. Rev. 2131 (2024).

• Amanda Tyler, Berkeley Law, will discuss Mitsuye Endo before the Supreme Court Historical Society via Zoom on January 23, 2025, 12:00 pm (EDT).  Register here.
  

• "Johns Hopkins University’s recently launched School of Government and Policy seeks to recruit members of its founding faculty in multiple disciplines and fields of study, including (but not limited to) political science, economics, law, sociology, and history" (H-Law).

• 
  The Balkinization blog is running a symposium on Rogers M. Smith and Desmond King, America’s New Racial Battle Lines: Protect versus Repair (University of Chicago Press, 2024). Here's a link to a recent post, by Rebecca Zeitlow (University of Toledo). Other contributors include Evan Bernick (Northern Illinois), Alexandra Filindra (Illinois-Chicago), Jim Fleming (B.U.), Damon Linker (Penn), Linda McClain (B.U.), Carol Nackenoff (Swarthmore), Corey Robin (Brooklyn College), and Chloe Thurston (Northwestern). 
  

• Over at the LPEBlog: Henry Tonks (PhD candidate, Boston University) on Mehrsa Baradaran's Quiet Coup: Neoliberalism and the Looting of America.

• An interview of John Bardes, Louisiana State University, about his book, The Carceral City:Slavery and the Making of Mass Incarceration in New Orleans, 1803-1930 (WWNO). 
  

• Much of the discussion of Nicholas Bagley's forthcoming book on the administrative state was historical when he presented to Yale’s Institution for Social and Policy Studies.  Amy Kapczynski, Dave Schleicher, and Stephen Skowronek provided comments.
  

• Otto Vervaart’s notice of the new portal Goetgevonden for the resolutions of the Staten-Generaal of the Dutch Republic between 1576 and 1786 launched by the Huygens Institute of the Royal Dutch Academy of Sciences
  

• Allison S. Finkelstein on Finding Fulfillment as a Federal Historian: From PhD to Arlington National Cemetery (AHA Perspectives). 
  

• Lawbook Exchange's December 2024 catalogue of Scholarly Law and Legal History.
  

• ICYMI: Andrew Jackson and prorouging Congress (WaPo).  Korematsu v. United States remembered (Smithsonian; The Nation).   Audrey Pope's Feminist History and Tradition for SisterSong v. State of Georgia (HLRblog)
  

  Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Hoeflich and Moreland's "Gold Mines and Law Books"

M.H. Hoeflich and John Moreland have published the chapbook, Gold Mines and Law Books: H.H. Bancroft's California Bookshop (Talbot Publishing):

The California Gold Rush not only brought thousands of miners seeking to make a fortune to California's gold fields, but also those who served their needs such as merchants and lawyers. Lawyers needed law books, and H.H. Bancroft, an entrepreneurial merchant and bookseller, established a large scale bookselling operation that overcame the difficulties of transcontinental shipping and financing. His creation lasted more than a century and published and sold scores of important legal texts without which the California Bar would have been far less successful. This chapbook takes the reader back to Gold Rush California, clipper ships, and overland mail and evokes the triumphs of H.H. Bancroft, one of the great entrepreneurial booksellers of antebellum America.   

--Dan Ernst

Powers's "Arbitrating Empire"

Allison Powers, University of Wisconsin-Madison, has published Arbitrating Empire: United States Expansion and the Transformation of International Law (Oxford University Press):

Arbitrating Empire offers a new history of the emergence of the United States as a global power-one shaped as much by attempts to insulate the US government from international legal scrutiny as it was by efforts to project influence across the globe. Drawing on extensive archival research in the United States, Mexico, Panama, and the United Kingdom, the book traces how thousands of dispossessed residents of US-annexed territories petitioned international Claims Commissions between the 1870s and the 1930s to charge the United States with violating international legal protections for life and property.

Through attention to the consequences of their unexpected claims, Allison Powers demonstrates how colonized subjects, refugees from slavery, and migrant workers transformed a series of tribunals designed to establish the legality of US imperial interventions into sites through which to challenge the legitimacy of US colonial governance. One of the first social histories of international law, the book argues that contests over meanings of sovereignty and state responsibility that would reshape the mid-twentieth-century international order were waged not only at diplomatic conferences, but also in Arizona copper mines, Texas cotton fields, Samoan port cities, Cuban sugar plantations, and the locks and stops of the Panama Canal.

Arbitrating Empire uncovers how ordinary people used international law to hold the United States accountable for state-sanctioned violence during the decades when the nation was first becoming a global empire-and demonstrates why State Department attempts to erase their claims transformed international law in ways that continue to shield the US government from liability to this day.

--Dan Ernst

Kessler on the Origins of the Rule of Law

Jeremy Kessler, Columbia Law School, has posted The Origins of “The Rule of Law” which is forthcoming in Law and Contemporary Problems:

This Article offers a novel account of the origins of “the rule of law” in the English-speaking world. The phrase itself likely entered the language as a literal translation of the Latin regula juris. Prior to the early seventeenth century, however, the phrase appears to have been used exclusively to refer to the specific legal rule or maxim most relevant to the resolution of a particular kind of dispute. The more general and abstract use of the phrase – to refer to an ideal of political morality or an ideal type of governance – first appeared in the public record around 1610. It did so in the context of English common lawyers’ criticism of royal economic regulation limiting commodity production and circulation. The ideal type of governance that these common lawyers had in mind was the rule of common-law rules. They believed that the “chief subject or object” of these rules was the freedom of Englishmen to dispose of their possessions and professional skills as they wished, and to profit thereby. The earliest advocates of “the rule of law” thus found themselves in the vanguard of a cross-class project that sought to privilege the equal liberty of commodity exchangers over other long-recognized political, religious, and economic entitlements. Consequently, the original rule of law – the rule of common-law rules – came with a set of libertarian and egalitarian expectations, in addition to expectations of publicity, clarity, regularity, and so on.

When A.V. Dicey popularized “the rule of law” in the late nineteenth century, he claimed to

Albert Venn Dicey (wiki)

be restating age-old English common sense. While this claim exaggerated the continuity and coherence of English legal history, Dicey’s conception of the rule of law did indeed track the original, early-seventeenth-century conception in significant respects, including its libertarianism, its market-oriented egalitarianism, and its commitment to the supremacy of the common law. For both Dicey and his early modern precursors, the key to the equal liberty of English subjects was the centrality of common law courts to the settlement of disputes, whether between private parties, or between private parties and public officials. Contemporaneous critics of Dicey’s conception thus rightly understood him to be defending a legal worldview that dated to the early days of competitive capitalism. Yet the appeal of that worldview persists.

In the middle of the twentieth century, Anglophone legal philosophers did craft an alternative: a more austere and generalizable conception of the rule of law, one freed from the libertarian, egalitarian, and common-law sensibilities of Dicey and his precursors. While an intellectual coup, this minimalist conception has proven unsatisfying not only to legal practitioners but also to a growing number of legal theorists, including some of the minimalist conception’s erstwhile defenders. For these critics, Jeremy Waldron foremost among them, the minimalist conception fails to capture common-sense understandings of both law and the rule of law. But why does the contemporary common sense to which Waldron appeals so closely echo the concerns of common lawyers in 1610?

This Article argues that the answer lies in the limited yet significant socio-economic context shared by early modern common lawyers, late nineteenth century jurists, and contemporary legal theorists. That shared context is the dominance of commodity exchange, which has characterized capitalist societies since their emergence in sixteenth and seventeenth century Europe. The common lawyers who first used the phrase “the rule of law” to denote an ideal of political morality were responding to a profound and lasting social and economic transformation. That transformation – the penetration of commodity exchange into ever more domains of social life – gave rise to demands for the rule of law four hundred years ago, and continues to shape discourse about the rule of law today.

--Dan Ernst

Aston and Anderson's "Deserted Wives and Economic Divorce"

Deserted Wives and Economic Divorce in 19th-Century England and Wales: ‘For Wives Alone,” by Jennifer Aston and Olive Anderson (Hart/Bloomsbury) has been published:

Tens of thousands of women used this little-known section of the Act to apply for orders from local magistrates' courts to reclaim their rights of testation, inheritance, property ownership, and (dependent on local franchise qualifications) ability to vote. By examining the orders that were made and considering the women who applied for them, the book challenges the mistaken belief that Victorian England and Wales were nations of married, cohabiting couples.

The detailed statistical analysis and rich case studies presented here provide a totally new perspective on the legal status and experiences of married women in England and Wales. Although many thousands of orders were granted between 1858 and 1900, their details remain unknown and unexamined, primarily because census records did not consistently record dissolved marriages and there is no central index of applications made.

Using sources including court records, parliamentary papers, newspaper reports, census returns, probate records and trade directories, this book reconstructs the successful – and unsuccessful – experiences of women applying to magistrates' courts and the Court for Divorce and Matrimonial Causes to protect their assets across regions and decades.

TOC after the jump.  The unusual collaboration the book represents is discussed here.

--Dan Ernst

Gienapp on History, Law and Constitutional Rupture

Jonathan Gienapp, Stanford University, has posted History, Law, and Constitutional Rupture:

The principal problem of U.S. constitutional interpretation centers on the passage of time. As time passes, things change. That is especially true of constitutionalism and law, where older forms must be applied to novel and often unforeseen circumstances, something the American example amply demonstrates. The U.S. Constitution was made a long time ago and must govern a world markedly different from the one for which it was made. What we should do with older constitutional forms (in the case of the U.S., quite old) in a much-changed world poses a challenge that any theory of constitutional interpretation must address. Call this the problem of social drift. The problem of constitutional time runs deeper than just this, however. A more fundamental, and often less perceptible, form of change can sever constitutional present from past. In the first instance, a gap widens between constitutional form and the social world that constitution is meant to regulate and channel; in the second instance, the change takes place within the domain of constitutionalism itself. As time passes, how people think about constitutionalism and its attendant subjects—law, government, power, liberty, rights—can also transform. While many recognize how the interpretation of a constitution might change as society itself changes, it is harder to see how the very idea of a constitution itself can also imperceptibly take on new shape and meaning through the changed habits, assumptions, and legal consciousness of those interpreting it. This less recognized form of change, wrought by the passage of time, defines U.S. constitutionalism every bit as much as the first.

Despite its central importance, the challenge that historical rupture poses for modern constitutional interpretation is still far too neglected. After all these years of arguing over the appropriate use of history in constitutional interpretation, the most important problem raised by the endeavor continues to be downplayed and ignored. That neglect has become especially glaring of late, as the current Supreme Court has placed greater legal weight on our constitutional past than arguably ever before. It is high time to confront the problem of historical rupture in U.S. constitutional interpretation. Anyone who appeals to history in U.S. constitutional argument—most especially originalists, but not just them—must acknowledge and explain what is to be done about the gulf separating us from earlier forms of constitutional thinking. If we are to obey the past, then we need to surmount the chasm separating us from it. We need to recognize that our fundamental law was created by people equipped with a different legal consciousness. We need to do the work of historicizing earlier forms of constitutional thinking that do not map neatly onto our own. Modern originalists can neither ignore nor bracket this fact by insisting, as they often do, that they are engaged in an interpretive activity called “law” that is distinct from “history,” which supposedly frees them from the need to take past differences seriously. In one way or another, the problem of historical rupture touches everyone who wields the constitutional past in our contested present. 

--Dan Ernst

Weekend Roundup

• Congratulations to Dylan C. Penningroth as co-winner of the Order of the Coif Book Award for Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023). He shares the prize with my Georgetown Law colleague Stephen Vladeck for The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (Basic Books, 2023).  DRE
  

• That National Constitution Center session, The Life and Constitutional Legacy of Gouverneur Morris, with Melanie Randolph Miller, Dennis Rasmussen, William Treanor, and Jeffrey Rosen, is now up on YouTube.
  

• Paul Finkelman will deliver John McLean: Southern Ohio’s Homegrown Anti-Slavery Justice, as the 2025 Distinguished Visiting Professor of Law Lecture, at 12:15 pm, Friday, January 17, 2025, in Room 160 at the University of Cincinnati College of Law. 
  

• The National Historical Publications and Records Commission awarded the University of Cincinnati's Archives and Rare Books Library a grant to complete the processing of the records of the Cincinnati Branch of the NAACP related to the Bronson v. Cincinnati Board of Education (1974) (H-Law).
  

• Thomas Olechowski, University of Vienna, will lecture on Founding Constitutional Father in Exile: Hans Kelsen in the United States on Thursday, January 23, 2025, from 12:00 PM - 1:00 PM (Pacific), in the William J. Perry Conference Room, Encina Hall, Second Floor, Stanford University. 
  

• Allen Boyer reviews Joshua C. Tate's Power and Justice in Medieval England and Lorren Eldridge's Law and the Medieval Village Community in The Docket.
  

• Glenn Fine, the author of Watchdogs: Inspectors General and the Battle for Honest and Accountable Government, discussed the history of inspectors general with Jack Goldsmith on Lawfare.
  

• Update: The University of Sheffield's notice of the Old Bailey Online's receipt of the 2024 Mary Dudziak Legal History Prize by the American Society for Legal History.
  

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Graber on Insurrection and Section 3 of the 14th Amendment

Mark Graber, University of Maryland Francis King Carey School of Law, has posted Section Three of the Fourteenth Amendment: Insurrection, which is forthcoming in the William & Mary Bill of Rights Journal:

The public, scholarly, and legal debate over whether former president Donald Trump is eligible to hold office under Section Three of the Fourteenth Amendment has focused far more on technical legal questions than on whether Trump engaged in an insurrection. Scholarly and public commentary rarely examines the constitutional/common law of insurrection, preferring instead to examine whether Trump is exempt from Section Three because Section Three either exempts presidents or the presidency from disqualification or because Section Three is not self-executing.  Trump v. Anderson (2024) focused on state incapacity to disqualify “oathbreaking insurrectionists” rather than on whether Trump was an “oathbreaking insurrectionist.” One consequence of this omission in the popular press and Supreme Court is the impression that what constituted an insurrection or engaging in an insurrection was not well defined in 1866, that the Reconstruction Republican framers largely jerry-rigged a vague understanding of insurrection into the Constitution.

This Article demonstrates that the constitutional/common law of insurrection was well-established and well-understood in 1866. “Insurrection” at the time Section Three of the Fourteenth Amendment was framed and ratified “had a precise and well-understood meaning.” This understanding was articulated from the American Revolution to Reconstruction by the Supreme Court, by Supreme Court Justices riding circuit, by other federal judges, by state court justices, and by the leading legal treatise writers during the period between the  ratification of the Constitution and Reconstruction. Clear standards exist from 1866 that enable state and federal officials to determine whether the persons responsible for drafting Section Three of the Fourteenth Amendment would have thought the events of January 6, 2021, were an insurrection and whether Trump engaged in that insurrection.

The Congressional Globe, case survey, and constitutional commentaries clearly support the following conclusions: First, an insurrection at the time Section Three was framed consisted of an assemblage resisting the implementation of any law by force, violence, and intimidation for a public purpose and was not limited to rebellious attempts to overthrow the government. Second, the events of January 6, 2021, are consistent with the legal understanding of insurrection in 1866. Third, constitutional authorities before, during, and immediately after the Civil War maintained that any person who knowingly contributed to an insurrection was engaged in that insurrection, even if that person did not personally commit an act of violence or was far from the scene of the violence, force, and intimidation. Fourth, if the allegations made by the Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol and state decisions disqualifying Trump are true, the Former President participated in the insurrection that took place on January 6, 2021.

Congress relied on this consensual understanding of insurrection when framing the Second Confiscation Act of 1862. The Senators who insisted that Section Two of that measure punish persons who “shall hereafter incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States” stated that they were not altering the law of treason and insurrection by describing separate offenses. Section Two was rooted in part by a misinterpretation of judicial  decisions that some Senators believed required that they spell out what they believed constituted insurrectionary behavior and in part because no one wanted all participants in the Civil War to be executed for treason. If members of the Thirty-Seventh Congress would have thought that an insurrection took place on January 6, 2021, and Trump participated in that insurrection, then those members of the Thirty-Ninth Congress who framed Section Three would have thought Trump is disqualified from holding state or federal office in the United States.

--Dan Ernst

Kenneth Ira Kersch

With the assistance of his friends, we note more remembrances of Ken Kersch, who died last month at the age of 60 from cancer.  The obituary in Newsday, composed by his father and by a long-time college friend, noted his B.A. from Williams College, J.D. from Northwestern University, and Ph.D. in Government from Cornell University before identifying Professor Kersch as "a preeminent scholar of the United States Constitution, American political and constitutional development, and conservative constitutional thought."  It continued, "He truly enjoyed teaching, and he was greatly admired and appreciated by his students.  . . . Ken was a lover of art, music, literature, an history, and had a passion for the outdoors."

Boston College's very full and impressive memorial is here.  Recollections of him by colleagues and a former student are here.

Update: Professor Kersch's family asks that donations be made in his memory to The Trevor Project.

--Dan Ernst.  H/t: JEF

A Festschrift for David Ibbetson

Essays in Law and History for David Ibbetson, edited by Joe Sampson and Stelios Tofaris is published today by Hart Publishing/Bloomsbury:

Over the last 40 years, David Ibbetson has paved the way in a remarkably broad range of fields.  In ancient law, his scholarship has spanned both the detailed doctrine of the Roman law of obligations and the cross-pollination of legal influences around the ancient Mediterranean. His work on English legal history has ranged from the earliest days of the common law through to the turn of the 20th century, combining forensic archival research with a sensitivity to how lawyers thought about their subject. In European legal history, he has shown the porousness of the civil law and the extent to which it has been shaped by other areas of intellectual life, from theology to rationalist philosophy.

The contributions to this volume in his honour mirror both the breadth and the depth of Ibbetson's scholarship. The book combines chapters from leading legal historians, close colleagues and over a dozen of Ibbetson's students. Some chapters build upon or respond to Ibbetson's ideas, others his areas of interest. The contributions are introduced by Ibbetson's valedictory lecture on the importance of legal history to modern practice and scholarship, and the work yet to be done.

–Dan Ernst.  Table of Contents after the jump.

Kastor's "Creating a Federal Government"

We note with interest the website Creating a Federal Government, created by Peter J. Kastor, Washington University, St. Louis, which

combines a book that chronicles how the federal government operated in
 its first decades of existence with a major digital archive that will reconstruct the scope and scale of the early federal workforce. The Website will contain a full listing of federal officials, both civil and military, and will enable users to analyze the careers of these officials at both the individual and aggregate levels. Creating a Federal Government continues Kastor’s commitment to interdisciplinary inquiry by bridging the gap between history and political science, engaging questions in American political development, presidential history, and institutional behavior.  This project also reflects over three decades of work in digital history.

--Dan Ernst.  H/t: GR

CFP: ASLH 2025

[We have the following CFP.  DRE]

Call for Papers: American Society for Legal History 2025 ASLH Annual Meeting, (Detroit, November 14-16, 2025)

The Program Committee of the American Society for Legal History invites proposals for the 2025 meeting to be held November 14-16 in Detroit. Panels and papers on any facet or period of legal history from anywhere in the world are welcome. We encourage thematic proposals that transcend traditional periodization and geography. The online portal opens on December 9, 2024. The deadline for Pre-Conference Symposia proposals is Friday, February 28, 2025. The deadline for all other submissions is Tuesday, March 25, 2025. All proposals except for pre-conference symposia must be submitted through this link.

Panel proposals should include the following: a CV with complete contact information for each person on the panel, including chairs and commentators; 300-word (maximum) abstracts of individual papers; and a 300-word (maximum) description of the panel. Only complete panel proposals will be considered.

Scholars looking to build a panel may post their potential paper topics here. We encourage individuals to peruse this spreadsheet to identify other scholars with common interests, beyond their familiar networks. Senior scholars who are willing to chair and/or comment on a panel may register their interest and availability here. All program participants must be current members of the Society by the date of the Annual Meeting. Information on how to build a successful panel can be found here. The Program Committee especially encourages panels that include participants from groups historically under-represented in the organization, and that include participants who represent a diversity of rank, experience, and institutional affiliation.

In addition to traditional panels featuring presentations of work in progress, the Program Committee welcomes other forms of structured presentation for a 90-minute slot, such as a skills/pedagogical workshop (chair, 3-4 presenters) or a roundtable format (chair, 3-5 presenters).

Following last year’s highly successful inaugural session, this year’s Annual Meeting will also dedicate a session to a presentation and discussion of Digital Legal History projects. Individuals interested in participating in this session should submit a short description of their project (up to 300 words) as well as a CV. As a complement to the session, there will be a poster display of the accepted projects. Accepted participants in the Digital Legal History session will be asked to submit a poster design to the organizers by early October. Posters will be printed onsite.

In addition to the above formats, this year’s meeting will also consider New Directions panels. The purpose of these panels will be to identify cutting-edge methodological and topical directions in legal history, to define new subfields, and/or generate dialogue among scholars whose recent books (published since 2022 or forthcoming) have tackled common historiographic questions. These panels will feature three to five authors of new books organized by theme, chronology, methodology and may also include scholars writing review essays of a field, or others similarly positioned. The session abstract should include the author, title, publisher, and publication date for each proposed book. Please note that the Program Committee will devote only a small number of sessions to this type of panel. The New Directions panels replace the Author-Meets-Readers (AMR) panels which were formally on the program; AMRs will not be available for the 2025 meeting.

[The Program Committee invites "traditional panels," "skills/pedagogical workshops," "roundtables," "New Directions" sessions, and "Digital Legal History" sessions.  For formats and submission requirements, see the CFP.]

The Program Committee additionally seeks proposals for full-day or half-day pre-conference symposia crafted around related themes to augment traditional conference offerings. We especially encourage proposals for pre-conference events that will involve scholars in emerging fields or in fields previously underrepresented at ASLH conferences and/or that will promote early career scholarly development. We encourage those considering submitting a proposal for pre-conference symposia to be in touch with the program committee chairs. To submit a proposal, please email the program co-chairs directly to provide a short proposal (1-2 pages) including program title, the intended length of program, and a program description, as well as a CV and contact information for each presenter. The Program Committee is available to consult with organizers of such symposia as they develop their proposal, but pre-conference symposia must be self-funded. Organizers are encouraged but not required to host their symposia at the conference hotel. Please note that the deadline for these submissions is earlier than the deadline for main conference submissions so that organizers whose symposia are not selected have an opportunity to submit their panels to the main conference.

As a general matter, we will not be able to accommodate special scheduling requests, nor will we be able to support hybrid or virtual presentations or panels. (For a fuller explanation of this policy, please see the ASLH Annual Meetings FAQ page.) Until a draft of the program is circulated, prospective presenters, chairs, and commentators at the main conference should plan to be available in person on Friday, November 15, and Saturday, November 16.

The ASLH has a strict one-appearance policy (excluding appearances at pre-conference symposia). Prospective participants may submit proposals for multiple sessions, with the understanding that the panel chair will be responsible for promptly finding an appropriate substitute member for any session from which a participant has to withdraw.

Limited financial assistance (covering airfare and ground transportation only) is available for presenters in need, with priority given to graduate students, post-doctoral fellows, contingent faculty, and scholars from abroad.

The members of the Program Committee are Maggie Blackhawk, Jocelyn Hendrickson, Zach Herz, Hide Hirota, Youssef Ben Ismail, Jedidiah Kroncke, Tim Lovelace, Jane Manners, Noah Rosenblum, Natasha Wheatley, and Yanna Yannakakis. The co-chairs of the Program Committee are Deborah Dinner (deborah.dinner@cornell.edu) and Jessica Marglin (marglin@usc.edu).

ASLH Election Results

We have been (slowly) recapping the news announced at this year's meeting of the American Society for Legal History. This post reports election results.

Incoming Board Members: Sally Hadden (Western Michigan University), Kate Masur (Northwestern University), Kim Welch (Vanderbilt University), Jane Manners (Temple Beasley School of Law), and Will Smiley (University of New Hampshire).

Incoming Nominating Committee Members: Rohit De (Yale University) and Alison LaCroix (University of Chicago Law).

The full memberships of the Board and the Nominating Committee are available here.

-- Karen Tani

Lee on Privacy's Redeemer Origins

Sophia Z. Lee, University of Pennsylvania Carey Law School, has posted The Reconciliation Roots of Fourth Amendment Privacy, which appears in the University of Chicago Law Review:

The Roberts Court has made protecting “the privacies of life” a catchphrase of Fourth Amendment law in the digital era. The time is thus ripe for revisiting the doctrinal and political roots of this newly influential quote from the Court’s 1886 decision Boyd v. United States. Existing scholarship views Boyd and its paean to privacy as an opening salvo in the Supreme Court’s turn-of-the-twentieth-century deregulatory jurisprudence (often associated with the Court’s most famous substantive due process decision, Lochner v. New York). Scholars also assume Boyd’s emphasis on privacy was in keeping with the Founders’ view of the Fourth Amendment.

This Article makes a novel argument that Boyd and its elevation of protecting the “privacies of life” to an animating principle of the Fourth Amendment was instead a product of Reconstruction and its dismantlement. Doctrinally, the Article argues that legal actors did not commonly associate the Fourth Amendment with something they called “privacy” until after the Civil War. This association, along with Boyd’s other core doctrinal elements, was instead established during Reconstruction. Further, these Fourth Amendment innovations were pioneered in Congress, not the federal courts. Politically, the Article argues that Boyd’s innovations did not arise in response to growing federal economic regulation. Instead, the idea that the Fourth Amendment protected the privacies of life was fed by white Americans’ commitment to preserving racial hierarchy after the Civil War. Shared by moderate Republicans and Democrats, this embrace of Fourth Amendment privacy built an anodyne bridge between otherwise fierce political foes. In other words, Fourth Amendment privacy was produced by and helped secure Reconciliation—the process through which white Americans North and South, Democrat and Republican came together to limit Reconstruction, preserve white supremacy, and pave the way for the violent disenfranchisement of newly freed Black men.

The Article is primarily a work of legal history; it concludes, however, by considering the divergent doctrinal implications of resituating Boyd and Fourth Amendment privacy in the politics of Reconciliation. Doing so supports the Roberts Court’s recent Fourth Amendment decisions without undermining scholars who contend that the Fourth Amendment protected what we today call privacy from the start. At the same time, this history poses a problem for Justice Neil Gorsuch and other libertarians who use the modern administrative state’s connections to Jim Crow-era white supremacy to undermine its legitimacy. This Article shows that the very libertarian tradition championed by these skeptics of the administrative state suffers the same tainted roots. Critical scholars, for their part, document how constitutional privacy doctrines provide limited protection to marginalized communities. This Article’s history could support their reparative case for more robust Fourth Amendment protections.

--Dan Ernst

ASLH Preyer Awards to Hammock Jones, Watkins

Continuing our tradition of recapping the prizes and awards announced at the recent meeting of the American Society for Legal History, this post features the 2024 winners of the Kathryn T. Preyer award. About the award:

Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to early career legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two early career legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society.

This year's awards went to Christen Hammock Jones (University of Pennsylvania) for "Consuming Abortion On Demand: Medicine, Law, & Consumer Rights After Roe V. Wade" and to Grace Watkins (Yale University) for "'Incurable Entanglement': The Hybrid Powers of Campus Police."

As is customary, the winners presented their work at the annual meeting. Reva Siegel (Yale Law School) and Anna Lvovsky (Harvard Law School) provided comments. 

Congratulations to Christen Hammock Jones and to Grace Watkins!

-- Karen Tani

Weekend Roundup

• LHB mourns the passing of Ken Kersch, a professor of political science at Boston College and an excellent historian of American conservatism, including its constitutional dimensions.  David Bernstein has posted his AHR review of Kersch's Constructing Civil Liberties on the Volokh Conspiracy.  H/t: DS.
  

• An essay by H.L.A. Hart, found in Ronald Dworkin's papers and responding to Dworkin's work, has now been published in the American Journal of Jurisprudence as Policies, Principles, and Adjudication: (c. 1977-82). 

• From Process, the blog of the Organization of American Historians: Jennifer Thomson (Bucknell University) reflects on her June 2024 Journal of American History article on “The Environmental Protection Agency, Sewer Infrastructure, and the Racialized Geography of the United States.”

• Julian Ku ‘s review essay of Curtis Bradley’s Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Federalist Society). 
  

• From In Custodia Legis (the blog of the law librarians of Congress): news that the Senate Journal from Century of Lawmaking has been added to Congress.gov. Also: a remembrance of "Pablo Abeita: Judge and Isleta Governor."

• Keith Whittington, YLS, discusses his book, The Impeachment Power: The Law, Politics, and Purpose of an Extraordinary Constitutional Tool in the podcast series of the Princeton University Press.

• The final Helsinki Legal History Series seminar of the year is “Corporations and Jurisdictional Culture: Exploring the Political Identity of Early Modern Iberian Monarchies,” presented by Pedro Cardim, Nova University Lisbon. Tuesday, December 10th, 2024, 3:00 PM - 4:30 PM (UTC+2) at University of Helsinki Main Building, Room U3039.  More.
  

• "The next online meeting of the Environment, Law, and History Global Workshop will take place at 9 pm GMT on Thursday, January 16. We will discuss with Rebecca McLennan (UC Berkeley History Department) her "Litigating Extinction, Anticipating the Anthropocene: Law, Nature, and the ‘Fur Seal Trial’ of 1893", with comments by Angela Fernandez (U Toronto Law)" (H-Law).
  

• CFP: "The Bentham Project is hosting a two-day conference entitled ‘Jeremy Bentham, the Panopticon penitentiary scheme, and “A Picture of the Treasury”’, which will take place at Bentham House, Faculty of Laws, University College London, on 23 and 24 July 2025"  (H-Law). 
  

• From LPE Blog: Eamon Coburn (Yale Law School) on the history of treating abusive labor practices as a form of unfair competition (drawing on this recent piece in the Yale Law Journal).
  

• Syllabi for our times, from the Stanford's Advanced Study in the Behavioral Sciences. 
  

• ICYMI: The legal historian Nathan Perl-Rosenthal got a shout out when his student entered the transfer portal (Press-Telegram).  As a former Fulbrighter to NZ, I feel for that country's humanists (RNZ) (DRE).  Five times martial law was declared (History).  The first blind woman licensed to practice law in California (UC Law SF). A virtual tour of Hawaii's King Kamehameha V Judiciary History Center (KHON). Ned Blackhawk’s list of best recent books about Native America (New Yorker).
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Call for Nominations: ASLH Honorary Fellows

[We have the following announcement.  DRE.]

The Honors Committee of the American Society for Legal History solicits nominations of senior scholars for consideration for election as Honorary Fellows of the Society.  Election as Honorary Fellow is the highest honor the Society can confer.  It recognizes distinguished historians whose scholarship has shaped the broad discipline of legal history and influenced the work of others.  Honorary Fellows are the scholars we admire, whom we aspire to emulate, and on whose shoulders we stand.  The Society seeks to recognize scholars who are not simply distinguished in their fields, but who also have given back to the discipline and made their fields stronger by creating communities of scholars and scholarship and by helping other (often younger) scholars to stand on their shoulders.  In other words, scholars who are as committed to building a future for their fields as they are to studying the past.  Commensurate with the growing international reach of the Society, we seek nominations of senior scholars who, collectively, similarly encompass the wide scope of scholarship in legal history.

Nominations should be submitted to Bruce H. Mann, chair of the Honors Committee, by email (mann@law.harvard.edu) before January 15, 2025.  Each nomination should include a statement of why the nominee merits election.  Statements should address the nominee’s scholarly distinction and their citizenship in the field.  A list of current and past honorary fellows is [here].

Cherneff on Reconstruction-Era Racial Apprenticeship

Lyle Cherneff, a 2024 Yale Law graduate, has published Remembering In re Turner: Popular Constitutionalism in the Reconstruction Era, in the Yale Law Journal:

This Note presents a historical account of the underexamined movement to end racialized apprenticeship laws in the post-slavery era. Original archival research from census records, Union Army files, and newspaper articles illustrate the contributions of formerly enslaved men, women, and children to the ultimately successful movement to declare Maryland's apprenticeship laws unconstitutional. Relying on the insights of Critical Race Theory and feminist legal theory, this Note fills a gap in existing legal history by producing a consideration of Reconstruction Era constitutional lawmaking "from the bottom." This Note argues that our shared constitutional memory has been artificially narrowed by an underconsideration of freedpeople's constitutional theories and claims. Restoring the anti-apprenticeship movement to our constitutional memory strengthens contemporary efforts to end racial discrimination in the child welfare system and to vindicate familial rights under the Thirteenth and Fourteenth Amendments.

--Dan Ernst

CFP and Plenaries at Policy History

[We have the following CFP and news of plenary sessions at the Policy History Conference from its convenor, Donald Critchlow, ASU Katzin Family Professor of History, Director, ASU Center for American Institutions.  DRE]

The Institute for Political History, the Journal of Policy History and the Arizona State University Center for American Institutions are hosting the Policy History Conference in Charlotte, North Carolina at the Hilton Charlotte Uptown hotel from Wednesday, June 4 to Saturday, June 7, 2025.

We are pleased to announce the following plenary sessions

Thursday, June 5
Richard Bensel, Cornell University
Jennifer Burns, Stanford University
Richard John, Columbia University

Friday, June 6
Daniel Tichenor, University of Oregon

Since 2002, the Policy History Conference has provided an interdisciplinary forum for presentations and roundtable discussions on policy history topics and recent policy history research. The conferences bring together academy scholars, independent scholars and graduate students to share their research. Many of the papers presented eventually appear in academic journals and other publications.

We are currently accepting panel and paper proposals on all topics regarding American political and policy history, political development, and comparative historical analysis. Complete sessions, including two or three presenters with chair/commentator(s), and individual paper proposals are welcome. Participants may only appear once as a presenter in the program.

The deadline for submission is December 31, 2024.  Proposals for panels and papers must be submitted online at the links below, and must include the following:

1. Name(s)
2. Institutional Affiliation(s)
3. Status (i.e. ABD, Doctoral Student, Assistant/Associate/Full Professor)
4. Email address(es)
5. Mailing Address(es)
6. Panel and paper title(s)
7. One (1) 150 word abstract of panel and papers in Microsoft Word or PDF format.
8. A description of each presenter or panel participant including educational background, major publications, awards or fellowships, also in Microsoft Word or PDF format.

Submit paper proposals here.  Submit panel proposals here.

Cox on the Invention of Immigration Exceptionalism

Adam B. Cox, NYU Law, has published The Invention of Immigration Exceptionalism in the Yale Law Journal:

American immigration law is a domain where ordinary constitutional rules have never applied. At least, that is the conventional wisdom. Immigration law’s exceptionalism is widely believed to flow directly from the Supreme Court’s invention, in the late nineteenth century, of the so-called plenary power doctrine. On the standard account, that doctrine has long insulated immigration policies from constitutional scrutiny. The plenary power doctrine is thought to permit everything from President Trump’s Muslim ban to the indefinite detention of migrants at the border.

But the reigning historical account of immigration exceptionalism is wrong. Revisiting the field’s canonical cases, this Article reveals that the plenary power doctrine lawyers and judges argue over today was not created in a series of late nineteenth-century cases. Far from being exceptional, those cases applied the then-standard framework linking due process and the separation of powers. By failing to understand that nineteenth-century immigration law was ordinary public law, scholars and jurists have, for decades, badly misunderstood immigration law’s foundational cases. We have also overlooked the role that immigration law played in the development of modern public law. At the turn of the twentieth century, immigration law evolved apace with the rest of public law as both underwent a dramatic transformation. In some cases, immigration law even led the revolution, driving the development of the legal regime we now call “administrative law.”

Immigration exceptionalism is thus a recent invention. Indeed, it might be more accurate to say that the immigration plenary power doctrine was invented in the Roberts Court rather than in the late nineteenth century. Once we locate immigration exceptionalism in its proper moment, we can better appreciate immigration law’s centrality to the development of American public law. We can also assemble new arguments against the modern exceptionalism that is responsible for the very worst parts of immigration law today.

--Dan Ernst

Ankersen on Sea Turtle Conservation Law

Tom Ankersen, University of Florida Levin College of Law, has posted, in three parts, "Not for Long a Fishe: The Early History of Sea Turtle Conservation Law and Policy in Florida":

Shipping Green Turtle, Key West, 1898 (NYPL)

[Part I] reviews the broad history during the colonial era and then focuses on some of the first laws Florida’s territorial and early statehood years, when sea turtles were considered a fishery. By the end of the 19th century and continuing into the 20th century, the State’s sea turtle population had declined significantly due to over-harvest and a poor understanding of the species biology.  In 1897, a federally commissioned Fisheries Report sounded the alarm.  The Florida Legislation acted on one of the report’s conclusions, leading to the first law to protect nesting sea turtles in the state in 1907.

[Part II] tracks the efforts of the Florida Legislature to establish and regulate a managed fishery through county-specific legislation in the first half of the 20th century, and documents the early efforts to understand the late-maturing and highly migratory animal’s life history. With little understanding of sea turtle biology and behavior, the State attempted to maintain a viable sea turtle fishery during this period, with little success.  In the 1950s, Dr. Archie Carr from the University of Florida laid the foundation for sea turtle science, along with a handful of other pioneering researchers.  Carr founded the first advocacy group devoted to sea turtle conservation, which he and the founders called the “Brotherhood of the Green Turtle.” This advocacy group would eventually become the Sea Turtle Conservancy.

[Part III concludes the series.]  Not without controversy, the 1970s brought an end to the sea turtle fishery in Florida, and along with it the classification of sea turtles as legally endangered. In this era, both international and federal law began to play a role in how sea turtles were legally treated by the State of Florida.

--Dan Ernst

Phillips-Sawyer on the Labor Exemption and Extraterritoriality in Antitrust

Laura Phillips-Sawyer, University of Georgia School of Law, has posted two papers.  The first is  Restructuring American Antitrust Law: Institutionalist Economics and the Antitrust Labor Immunity, 1890-1940s, which appeared last year in the University of Chicago Law Review:

Thurman W. Arnold (LC)

 Labor unions and their leaders were cast as the perennial antitrust defendants for the first fifty years of federal antitrust law, and this historic imbalance fostered a movement in economic scholarship and labor activism to restructure American antitrust law. The progressive liberal-institutionalist movement in economics played an important role in legitimizing trade unions by recasting them, not as anticompetitive cartels, but rather as a necessary corollary to the growing market power of industrial firms. Louis Brandeis, the litigator and future jurist, drew from institutionalists’ work to support antitrust reform. He argued that antitrust law was not necessarily anathema to the interest of labor organizations, and he advocated for both the application of the rule of reason to labor association activities and the revision of antitrust laws to exempt certain labor activities. The Clayton Act of 1914 created such an antitrust labor exemption, but as soon as union activity spilled over into interstate commerce the Supreme Court insisted on antitrust liability and applied it categorically against laborers. Even after the passage of additional labor exemptions in the 1930s, the reigning Commerce Clause doctrine rendered labor’s immunity from antitrust liability uncertain. This lingering uncertainty was exacerbated by a fracturing within the progressive liberal movement as some economic institutionalists, schooled in the legal realist tradition, revived the Department of Justice’s antitrust prosecutions in the late 1930s. Assistant Attorney General Thurman Arnold led this renewed antitrust agenda; armed with a more expansive interpretation of federal commerce power, he targeted labor groups in several headline-grabbing cases, enraging his former allies on the Left. Arnold, however, seemed to represent a divergent institutionalism that embraced both the Brandeisian distaste for economic concentration and the Keynesian macroeconomic policies of mass consumption. Ultimately, in 1941, an uneasy settlement was reached in United States v. Hutcheson, where the Supreme Court authorized a non-statutory labor exemption for secondary boycotts. The ruling helped establish guardrails for lawful labor union activities; however, it did not resolve this division on the progressive Left, and laborers continued to seek protective legislation and statutory immunities. Recasting antitrust law’s bias against laborers as historically contingent demonstrates the moments of possibility to reconcile this historic imbalance, and it implicitly argues that the progressive law and economics movement provided necessary groundwork but also required interest group organization and statutory interventions.

The second is Jurisdiction Beyond Our Borders: United States v. Alcoa and the Extraterritorial Reach of American Antitrust, 1909-1945:

In 1945 Judge Learned Hand wrote one of the most influential opinions in modern antitrust law. In declaring that the Aluminum Company of America (Alcoa) had illegally monopolized the industry for virgin aluminum and had participated in an illegal international cartel, Hand both revived and extended American antitrust law. The ruling is famous for several reasons: It narrowly defined the relevant market in favor of the government; it expanded the category of impermissible dominant firm conduct; it interpreted congressional intent as protecting an egalitarian business environment; and it established the extraterritorial reach of US antitrust laws. Although each of those contributions has incited legal commentary and critique, Hand’s decision to redraw the territorial application of US antitrust has remained largely unexamined. This essay offers a historical explanation for the origins of antitrust extraterritoriality and advances two arguments: First, before and during the interwar years, the antitrust doctrine of strict territoriality had been eroded through a series of distinguishing cases and contradictory congressional policies. Second, the well-documented connection between European fascism and cartelization provided strong external pressures to extend American antitrust law and policy abroad and to redouble anticartel and antimonopoly provisions at home. Thus, both internal and external pressures culminated in the Alcoa case, which signaled a new era in American antitrust law—renewing both anticartel and anti-monopolization policy while at the same time linking market competition to the protection of American territorial and popular sovereignty. By 1945 extraterritorial antitrust emerged as an acceptable means of governance to curtail international cartel behavior, discipline monopolies at home, and impose an American-led liberal—and hegemonic—internationalism on its trade partners.

--Dan Ernst

Sugarman to Lecture on Pinochet Case

[We have the following announcement.  DRE]

The Centres for English Legal History and Public Law at the University of Cambridge will host a seminar by Professor Emeritus David Sugarman entitled ‘Hidden Histories of the Pinochet Case’ at 5:15pm (GMT) on December 3 in Cambridge, England. The lecture is free and open to the public and will stream online [here].

Weekend Roundup

• 
  Balkinization has been hosting a symposium on Kunal Parker's The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).  So far, Aziz Rana, Ajay K. Mehrotra, Paul Gowder, Amalia D. Kessler, and John Fabian Witt have contributed.
  

• The Institute for Advanced Legal Studies at the University of London has announced the establishment of the Law and the Humanities Hub (LHub), led by Anat Rosenberg.  It “aims to foster academic expertise, creativity, and intellectual leadership in law and the humanities.”  Here are its 2024/25 Visitors.
  

• The Illinois Supreme Court Historic Preservation Commission has digitized approximately 3,700 case files from 1819 to 1865.  Its "freely accessible and user-friendly website . . . will be publicly available within the next few months."  More.
  

• The University of Chicago Law School will host a book launch for Curtis Bradley’s Historical Gloss and Foreign Affairs: Constitutional Authority in Practice, with comments by Will Baude and David Strauss, on Wednesday, December 3, 12:15pm to 1:10pm, at the Law School.  The event is open to the public.
  

• A notice of the 44th German Legal History Conference (Goethe Universität).

• A notice of a conference at Kings College London in support of the Cambridge History of International Law volume on the Pacific from circa 1500 until 1920 (KCL).
  

• The National Constitution Center will hold a symposium on The Life and Constitutional Legacy of Gouverneur Morris at Noon ET on Thursday, December 12 with Dennis Rasmussen, Melanie Randolph Miller, and William Treanor.  Jeffrey Rosen will moderate.
  

• The next session in the American Society for Legal History series, Making Connections: New Works in Legal History, will occur on Wednesday, December 11, 6-7pm Central Time. Chlöe Kennedy will discuss her Inducing Intimacy: Deception, Consent and the Law (2024) with interlocutor Catherine Evans.  ASLH President Barbara Welke will moderate.  Register here.
  

• On Lawfare's "Chatter" podcast, Rachel Shelden, Penn State University, discusses how widespread violence and another civil war were avoided as the nation resolved the disputed presidential election of 1876.
  

• Thomas McSweeney's Jot on Ada Maria Kuskowski's, "The Time of Custom and the Medieval Myth of Ancient Customary Law," 99 Speculum 143 (2024).
  

• ICYMI: Sandra Day O'Connor was no conservative (HNN).  The price America paid for the Chinese Exclusion Act (NPR).  Open access (for a few more days): The Case of the Slave Ship Zong (History Today).
  

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

McClure's "Trials of Sovereignty"

Alastair McClure, The University of Hong Kong, has published Trials of Sovereignty: Mercy, Violence, and the Making of Criminal Law in British India, 1857–1922 (Cambridge University Press).  It appears in the ASLH-sponsored series, Studies in Legal History.

Trials of Sovereignty offers the first legal history of mercy and discretion in nineteenth and twentieth-century India. Through a study of large-scale amnesties, the prerogative powers of pardon, executive commutation, and judicial sentencing practices, Alastair McClure argues that discretion represented a vital facet of colonial rule. In a bloody penal order, officials and judges consistently offered reduced sentences and pardons for select subjects, encouraging others to approach state institutions and confer the colonial state with greater legitimacy. Mercy was always a contested expression of sovereign power that risked exposing colonial weakness. This vulnerability was gradually recognized by colonial subjects who deployed a range of legal and political strategies to interrogate state power and question the lofty promises of British colonial justice. By the early twentieth century, the decision to break the law and reject imperial overtures of mercy had developed into a crucial expression of anticolonial politics.

Here are some endorsements:

‘In this fresh and stimulating book, Alastair McClure explores the recalibrations of colonial rule which took place in the loop between calamitous violence and the exercise of mercy, between harsh punishment and its mitigation. We get a full sense of the impact of the 1857 rebellion on the codification of criminal law, and the accommodation in it of vast areas of judicial discretion to uphold both race privilege and unequal categories of colonial subjecthood. This is fine-tuned and rigorous scholarship, a major contribution to our understanding of colonial sovereignty in India and its unwinding.’ Radhika Singha, author of A Despotism of Law: Crime and Justice in Early Colonial India

‘Trials of Sovereignty offers a compelling history of the ensnaring promise of mercy and its rejection in colonial India. Breaking with the conventional idea that sovereignty was solely built on state violence, Alastair McClure traces how terror and mercy were wielded as related expressions of sovereign power in the courtroom. From the last Mughal emperor to Mohandas Gandhi, McClure's meticulous analysis of modern India’s iconic political trials unearths mercy's fingerprints throughout colonial legal history. Because mercy was a crucial colonial tool for curtailing political rights and upholding a hierarchical social order, its rejection was pivotal to ideas of anti-colonial liberation. Trials prompts us to ask: who has the right to punish and by what measure? Posed as a question for the historian, McClure lays bare its significance to our unfinished present.’ Bhavani Raman, author of Document Raj: Writing and Scribes in Early Colonial South India

 --Dan Ernst

Lim on Canadian Originalism in the Great Depression

Preston Jordan Lim, Villanova University Charles Widger School of Law, has posted The Great Depression and Canada's Major Originalist Decade, which is forthcoming in the Osgoode Hall Law Journal:

Few periods of Canadian history have been as momentous or terrible as the Great Depression. The Dominion and provincial governments’ inability to combat financial and environmental catastrophe led many Canadians to openly question the appropriateness of their constitutional framework. As legal historians have since documented, many leading jurists of the time believed that a strong central government could, through the institution of national programs, contain the Great Depression; in the eyes of these 1930s jurists, the Judicial Committee of the Privy Council—then Canada’s apex court—had sapped the federal government of its powers by misinterpreting the British North America Act, 1867.

Although scholars have correctly identified the Great Depression as a period of intellectual ferment and even revolution, none has fully accounted for the prevalence of originalist thought in the legal debates of the time. In response to the Great Depression, the major legal thinkers and reformers of the 1930s deployed originalist arguments. They criticized the Privy Council for having departed from the original intentions of the Fathers of Confederation and the original meaning of the Constitution. While the leading jurists of the period all tended to employ originalist reasoning, they often disagreed on interpretive outcomes. Thus, while many jurists used originalist reasoning to argue in favour of a strong central government, some argued that the original intentions of the Framers and the original public meaning of constitutional provisions favoured a federalist interpretation of the British North America Act. I conclude that the dominance of originalism during the legal debates of the 1930s bears several lessons for modern constitutional theorists. The fact, for example, that jurists of all ideological backgrounds employed originalist logic demonstrates that the characterization of originalism as inherently conservative makes little sense in the Canadian context. 

--Dan Ernst