WHA Weber-Clements Prize to Lim for "Porous Borders"

Via the Western History Association's Twitter feed, we've learned that legal historian Julian Lim (Arizona State University) has won this year's David J. Weber-Clements Prize (best non-fiction book on Southwestern America) for Porous Borders: Multiracial Migrations and the Law in the U.S.-Mexico Borderlands (University of North Carolina Press).

Congratulations to Professor Lim!

Cunningham and Egbert on Corpus Linguistics and the Emoluments Clauses

Clark D. Cunningham, Georgia State University College of Law, and Jesse Egbert, Northern Arizona University, have posted Scientific Methods for Analyzing Original Meaning: Corpus Linguistics and the Emoluments Clauses, a paper for the Fourth Annual Conference of Law & Corpus Linguistics (2019)

In interpreting the Constitution's text, courts "are guided by the principle that '[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from their technical meaning'." District of Columbia v. Heller, 554 U.S. 570, 576 (2008). According to James Madison: "[W]hatever respect may be thought due to the intention of the Convention, which prepared and proposed the Constitution, as a presumptive evidence of the general understanding at the time of the language used, it must be kept in mind that the only authoritative intentions were those of the people of the States, as expressed through the Conventions which ratified the Constitution."

In looking for "presumptive evidence of the general understanding at the time of the language used" courts have generally relied on dictionary definitions and selected quotations from texts dating from the period of ratification. This paper presents a completely different, scientifically-grounded approach: applying the tools of linguistic analysis to "big data" about how written language was used at the time of ratification. This data became publicly available in Fall 2018 when the website of the Corpus of Founding Era American English (COFEA) was launched. COFEA contains in digital form over 95,000 texts created between 1760 and 1799, totaling more than 138,800,000 words.

The authors illustrate this scientific approach by analyzing the usage of the word emolument by writers in America during the period covered by COFEA, 1760-1799. The authors selected this project both because the interpretation of two clauses in the Constitution using emolument are of considerable current interest and because the meaning of emolument is a mystery to modern Americans.

Pino and Witt on the 14th Amendment

Lisset Marie Pino, a student at the Yale Law School, and John Fabian Witt, a professor at the Yale Law School, have posted The Fourteenth Amendment as an Ending: From Bayonet Justice to Paper Rights:

Since its enactment and ratification, savvy observers have viewed the Fourteenth Amendment as a vindication of the military experience of the Civil War. Bullets and bayonets in wartime led to peacetime citizenship in Section 1 of the Fourteenth Amendment and to peacetime ballots that were first protected in Section 2 of the Fourteenth Amendment and then bolstered in the Fifteenth Amendment. But there is another story to tell as well, one in which the Fourteenth Amendment is not the beginning of a new constitutional story, or at least not only the beginning of a new story, but also a betrayal and an ending. In important respects the Fourteenth Amendment helped to close out the righteous form of power that had emerged in the antebellum era as a solution to the glaring injustice of slavery. This crucial authority was the federal government’s war power. Stories of vindication and of new beginnings are not wrong. But they make it all too easy to miss the Fourteenth Amendment’s role as part of a complicated denouement of the wartime experience, one that embodied the war’s triumphs but also blunted their force and pace. The Fourteenth Amendment abandoned a vital chapter of American history even as it occasioned a new one whose results are still unfolding.

Emerson's "The Public Law"

Blake Emerson, UCLA Law School, has published The Public's Law: Origins and Architecture of Progressive Democracy (Oxford University Press):

The Public's Law is a theory and history of democracy in the American administrative state. The book describes how American Progressive thinkers - such as John Dewey, W.E.B. Du Bois, and Woodrow Wilson - developed a democratic understanding of the state from their study of Hegelian political thought.

G.W.F. Hegel understood the state as an institution that regulated society in the interest of freedom. This normative account of the state distinguished his view from later German theorists, such as Max Weber, who adopted a technocratic conception of bureaucracy, and others, such as Carl Schmitt, who prioritized the will of the chief executive. The Progressives embraced Hegel's view of the connection between bureaucracy and freedom, but sought to democratize his concept of the state. They agreed that welfare services, economic regulation, and official discretion were needed to guarantee conditions for self-determination. But they stressed that the people should participate deeply in administrative policymaking. This Progressive ideal influenced administrative programs during the New Deal. It also sheds light on interventions in the War on Poverty and the Second Reconstruction, as well as on the Administrative Procedure Act of 1946.

The book develops a normative theory of the state on the basis of this intellectual and institutional history, with implications for deliberative democratic theory, constitutional theory, and administrative law. On this view, the administrative state should provide regulation and social services through deliberative procedures, rather than hinge its legitimacy on presidential authority or economistic reasoning.

Exhibit: HLS and the Bauhaus

[We have word a new exhibit at the Harvard Law Library: Creating Community: Harvard Law School and the Bauhaus.]

2019 marks the centennial of the Bauhaus, and Harvard is celebrating! The Bauhaus, considered the twentieth century's most influential school of art and design, has deep connections to Harvard, including the Law School. Did you know that Harvard's first example of modern architecture is on the HLS campus and was designed by Walter Gropius, the founder of the Bauhaus? Or that Gropius commissioned Bauhaus pioneers to create site-specific artwork for the buildings?

If you are in the Boston area, come explore HLS's connection to the Bauhaus and its role in shaping campus life. The exhibit, curated by Karen Beck and Lesley Schoenfeld, is on view daily 9 to 5 through 31 July 2019 in the Caspersen Room, Langdell Hall. A sampling of the exhibit is online. If you are a Bauhaus fan, be sure to visit all of Harvard's Bauhaus-related exhibits, tours, and events happening in 2019.

Socialist Interpretations of Legal History in Soviet-Occupied Eastern Europe

[We have word of the following workshop.]  EuroStorie and Institut für Neuere Privatrechtsgeschichte, Deutsche und Rheinische Rechtsgeschichte are co-organizing "Socialist interpretations of legal history" workshop at the University of Cologne in March (22.-23.3.).

Socialist interpretations of legal history. The histories and historians of law and justice in the GDR, Poland and the Baltic states under the reign of communism

The aim of the workshop at hand is to concentrate on the interaction between historians and communist regimes, but rather than investigating the control exercised by the communist states, we focus on the position of legal historians and their representations of history. How did the historians see the recent past, and how did that affect their vision on the future? What elements remained from the era preceding communism, and with what means did the scholars find leeway between strict ideological preconditions and their scholarly identity?

After the Second World War, the Soviet occupied Eastern part of Germany, Poland and Baltic States all experienced – in a varying thoroughness – a drastic reorganization of higher education, which was purported to root socialist worldview to their respective academia. Consequently, in the following years also legal scholars advertised the anti-fascist, peaceable and democratizing characteristics of socialist law as an antidote to all what the western legal system supposedly encouraged and embodied.  At the same time western continental legal science concentrated on the long lines of legal history, constructing its view as an exact opposite to what started to take shape as the socialist legal science.

Rather than treating legal history and jurisprudence as mere political tools of the communist regimes, our workshop at hand focuses on the history of the scholarly representations of legal history and jurisprudence. We presume that writing the history of a community or a legal system left free space for scholars to express themselves as scientists, citizens and temporal subjects, even in communist regimes. Furthermore, we argue that this space for personal interpretation becomes evident in the works of the legal historians and legal scientists. 

The workshop is being arranged in a cooperation by the Centre of Excellence 'Law, Identity and the European Narratives'  at the University of Helsinki and The Institut für neuere Privatrechtsgeschichte, University of Cologne. The workshop attempts to bring together scholars and approaches from variety of disciplines and fields of study. Our confirmed key-note speakers are Michal Kopecek (Jena/Prague), Marianna Muravyeva (Helsinki) and Lauri Mälksoo (Tartu). In order to analyze the ‘socialist interpretations of legal history’ in different times and regions across the Eastern Central Europe and former USSR, our workshop concentrates on (but is not restricted to) the following characteristics of socialist legal science and historiography.

Books I Didn’t Write, or, Is Anyone Looking for A Dissertation Topic?

My research for Colonizing Consent opened up far more questions than I could reasonably answer in the space of one book.  Like many academics, I’ve developed a long list of topics that I think could use a book-length treatment.  I’m holding on to some of these for my own purposes.  One—the intellectual history of customary law in turn-of-the-century South Africa—has become the focus of my current research.  I hope to find time in the next few years for article-length treatments of several others.  But I’ve found more interesting research subjects than I could plausibly get to over the rest of my career—some of which would require me to reinvent myself as a historian of British colonialism, rather than Africa—so I thought I’d take this opportunity to pitch a few of that might be relevant to readers of this blog.  

1.  Black Peril and White Supremacy in the Anglophone World, ca. 1865-1914

Colonizing Consent is mostly not about “black peril,” the term used in South African and other British settler colonies to refer to fears about the rape of white women black (or other “native.”)  I wanted to write about women’s actual experiences of sexual violence, and the vast majority of rape in colonial South Africa was committed within racial groups, while black women were much more likely than white women to be victims of interracial rape.  So while black peril panics certainly play a role in the story that I tell, they are not its primary focus.

In my research, however, I read through the major African-owned newspapers in the Eastern Cape, Imvo Zabantsundu and Izwi Labantu.  I was struck by the close attention that these newspapers paid to the racial politics of not only other African settler colonies such as Kenya and Rhodesia but also the United States and, to a lesser degree, Australia and New Zealand.  White newspapers, too, constantly looked abroad to these other settler territories as the logical comparison to South Africa.  This was particularly true for discussions of interracial rape.  In both black and white newspapers, lynchings in the American South provided the specter of what could happen in South Africa if the South African state did not deal adequately with the problem—although, unsurprisingly, black and white newspapers tended to propose quite different solutions.  For someone interested in transnational histories of law and sexuality, there would be a rich payoff following up these conversations.

2.  Custom in the British Legal Imagination

As Colonizing Consent notes in passing, British colonial administrators in the Cape Colony grappled with the proper relationship between law and custom only a short time after British legal reforms had drastically changed the place of custom as a category in metropolitan law.   I am far from the first scholar to note this.  Martin Chanock’s classic Law, Custom and Social Order contains an extended, and rich, discussion of the ways in which British administrators sought to read African law through analogy to the common law tradition.  The mapping of geographical legal difference onto chronological ‘evolution’ was a staple of early comparative legal scholarship.  Just yesterday, I was reading Dorothy Hodgson’s Gender, Justice, and the Problem of Culture, which notes a 1930s example of the direct invocation of British legal rules for determining custom in the effort to create “native courts” in Tanzania.   But I haven’t found anything that fully connects the history of British legal reform on customary law to the development of ideas about “native law and custom” in the British Empire.  This is a particularly important story in Sub-Saharan Africa where—unlike in South Asia or in Islamic North African colonies—British administrators understood custom not as secondary to religious law, but as the primary category through which indigenous law was conceptualized.  

I’ll never write this book, because it would take me farther out of African history than I want to go.  My current research, however, tackles some of the same questions from African perspectives.  I’m interested in how black intellectuals in colonial and segregation-era think about the relationship between precolonial law, official customary law, and alternative ways of “modernizing” custom.  I would love to read a book that traced British perspectives on these questions from the metropole into the African colonies—probably via British India, and perhaps other colonial territories.  

3.  White South African Lawyers before 1912

Famously, first fully qualified black South African lawyers returned home in the early twentieth century, where three of them—Alfred Mangena, Pixley ka Isaka Seme, and George Montsoia—promptly organized the first meetings of the organization that would become the African National Congress, the most significant black political organization of the 20th century and the governing party of South Africa since 1994.  They were pioneers; but the legal profession they joined was shaped by the white lawyers who dominated it.  In the court cases a read from the eastern Cape, a handful of black “law agents” represented African clients (I’ll write more about them in another post) but the vast majority of black litigants who had any legal representation worked with white lawyers. 

The history of these white lawyers has been told, if at all, primarily by academics at South African law schools, who have narrated the professionalization of legal practitioners over the course of the nineteenth century and their role in the creation of the judicial structures of the four pre-union territories and, subsequently, the Union of South Africa.  Much of this work is painstakingly researched and of excellent quality, but it is interested in very different questions from those which animate the rest of South African history.  While recognizing that white lawyers were implicated in the creation of the structures of white supremacy, this legal scholarship does not generally engage with precisely how these white lawyers thought about race, and how the experience of legal practice shaped the racial knowledge of both lawyers and of the broader public.  There is nothing, at least to my knowledge, that treats law and lawyers the way that Saul Dubow’s Commonwealth of Knowledge treats science and scientists.  Gender is similarly present as subject, but largely absent as an analytical category, despited the robust critical legal studies scholarship on gender and law in South Africa since 1948.  

Again, I’m not going to write this book, largely because I don’t have time; I’m following different threads from my first book, which lead me in a different direction.  But I would love to see someone else pick these up.  

If anyone reading this is interested in one of these topics - perhaps you were already working on them, and needed no prompting from me, or perhaps you know of work on these subjects that I haven’t come across - please feel free to get in touch!  In all three cases, I have thoughts about sources that might be useful, and I’m generally eager to hear from anyone who is working on South African legal history, since there aren’t so many of us.  

Scholar Spotlight: Sara McDougall

Our Scholar Spotlight series continues, today featuring Sara McDougall, John Jay College and CUNY Graduate Center. In our first interview, we noted that only three of the fifty contributors to the recently published Oxford Handbook of European Legal History were women. Like Women Also Know History, this Scholar Spotlight series aims to showcase female scholars and their work. Its special focus is scholars of European legal history. 

Sara McDougall is Associate Professor of History at John Jay College of the City University of New York (CUNY) and appointed to the CUNY Graduate Center in French, History, and Medieval Studies. She lives in New York.

Website: www.jjay.cuny.edu/faculty/sara-mcdougall

Alma maters: Yale University, Ph.D. in History, May 2009. BA in History Boston University, 2003.

Fields of interest: legal history, family history and family law, culture, gender studies, social history, comparative law, medieval studies, world history.

Describe your career path. What led you to where you are today?

My childhood dream was to become an opera singer and I started college as a voice performance major but was shocked to find myself desperately missing reading and writing. I seriously flirted with the idea of becoming a playwright but in the end it was reading and writing and teaching history, legal history, that I found the most satisfying and engaging way of spending most of my time, and I still feel that way.

What do you like the most about where you live and work?

I love the social justice mission of John Jay College, and our wonderfully diverse student body. I find teaching at CUNY satisfying - if always challenging - and take greatest pleasure in the fact that graduating from CUNY seems to improve students' economic mobility out of poverty. I am also really looking forward to co-teaching a graduate seminar with Julie Suk in 2019, "Mothers-in-Law," which will examine the legal history of mothers as legal subjects, as lawmakers, and as lawbreakers.

What projects are you currently working on? I am writing a book on the consequences of illicit pregnancy for mothers in medieval France. It investigates what women pregnant out of wedlock could do and did do, what was done to and for them. I have found a wide range of responses. They run a gamut from horror stories of domestic violence and killing to far happier stories in which mothers and children are provided for, and the mothers able to find work or husbands, and even able to resume monastic life as nuns (or abbesses!). While late medieval France generally deserves its reputation as a dangerous and intolerant place, for a variety of reasons it was more charitable towards women pregnant out of wedlock than we might expect. Certainly I have been surprised how often the medieval sources suggest efforts at better treatment of pregnant women, and of singlemothers, than we can find in the United States today.

I am also co-authoring an article on infanticide in late medieval Burgundy with Rudi Beaulant, and working as well with a wonderful group of scholars on the long history of infanticide in Europe and the Americas.

Have your interests evolved since finishing your studies? Not really! Many of the topics I write about are those that attracted me to legal history in the first place, the human stories we can find in historical sources, and court records in particular. Comparative work has always been important to me. I am hoping to begin more work with biographical and public-facing history.

What's the most fascinating thing you've ever found in your primary sources?

The records of royal pardon from late medieval France are a treasure trove for the social historian, or for anyone interested in law, culture, gender, or crime, of course. Reading these pardons we are drawn in and drawn out, we find ourselves alternatively rooting for the criminal, or deploring what to us seems like a miscarriage of justice when a villain escapes punishment. The storytelling in these pardon narratives reveal something about us as well as the behaviors of the past they document and justify.

For example, I was surprised and more than a little horrified to find myself cheering after reading a sad story of an abandoned young pregnant woman who at every stage seemed likely to seek to harm her infant and herself, but who instead decided to burn down her lover's house and subsequently sought and obtained royal pardon. I had not expected to find myself ever smiling at arson, but there was something that felt good in that her dangerous act, which allegedly caused no harm or injury beyond loss of property, but which also seemed to take vengeance not just on her lover but on the oppressive and intolerant patriarchy that we might assume would be all too quick to forgive his indiscretion while condemning her for "allowing herself to be impregnated by him." Much harder to enjoy are the all-too frequent accounts of rape and domestic violence that were also pardoned. These pardons, therefore, force us to confront both the complex role of mercy in medieval justice, and also some inconsistencies in our own ideas about right and wrong and the appropriate use of punishment.

Newman, "A Dark Inheritance: Blood, Race, and Sex in Colonial Jamaica"

Recently out from Yale University Press: A Dark Inheritance: Blood, Race, and Sex in Colonial Jamaica (2018), by Brooke N. Newman (Virginia Commonwealth University). A description from the Press:

Credit: Virginia Commonwealth University

Focusing on Jamaica, Britain’s most valuable colony in the Americas by the mid-eighteenth century, this book explores the relationship between racial classifications and the inherited rights and privileges associated with British subject status. Brooke Newman reveals the centrality of notions of blood and blood mixture to evolving racial definitions and sexual practices in colonial Jamaica and to legal and political debates over slavery and the rights of imperial subjects on both sides of the Atlantic. 

Weaving together a diverse range of sources, Newman shows how colonial racial ideologies rooted in fictions of blood ancestry at once justified permanent, hereditary slavery for Africans and barred members of certain marginalized groups from laying claim to British liberties on the basis of hereditary status. This groundbreaking study demonstrates that challenges to an Atlantic slave system underpinned by distinctions of blood had far-reaching consequences for British understandings of race, gender, and national belonging.

A few blurbs:

“In this richly researched and cogently argued book, Brooke Newman reveals how ideas about blood and law and the making of a slave society in colonial Jamaica helped to construct as well as deconstruct racial difference in the imperial order. Few historians have done a better job of analyzing the intersections of gender, sexuality, and race in the print culture of the British Empire. A must read for any historian of slavery and abolition.”—Manisha Sinha

“Brooke Newman's fascinating account of colonial Jamaican racial politics reveals the British investment in concepts of inherited blood, birthright, and Christianity as the legal foundation for English privilege and enslaved African subordination.”—Kathleen M. Brown

More information is available here. And you can find a nice Q&A with Professor Newman about the book here.

Rio on slavery in early medieval Europe

Back in 2017, Alice Rio (King's College London) published Slavery After Rome, 500-1100 with Oxford University Press. From the publisher:

Slavery After Rome, 500-1100 offers a substantially new interpretation of what happened to slavery in Western Europe in the centuries that followed the fall of the Roman Empire. The periods at either end of the early middle ages are associated with iconic forms of unfreedom: Roman slavery at one end; at the other, the serfdom of the twelfth century and beyond, together with, in Southern Europe, a revitalized urban chattel slavery dealing chiefly in non-Christians. How and why this major change took place in the intervening period has been a long-standing puzzle. This study picks up the various threads linking this transformation across the centuries, and situates them within the full context of what slavery and unfreedom were being used for in the early middle ages. 

This volume adopts a broad comparative perspective, covering different regions of Western Europe over six centuries, to try to answer the following questions: who might become enslaved and why? What did this mean for them, and for their lords? What made people opt for certain ways of exploiting unfree labor over others in different times and places, and is it possible, underneath all this diversity, to identify some coherent trajectories of historical change?

Praise for the book:

"Rio has done a splendid job of analysing an extremely intractable source base and providing an interpretation that, without in any way trying to smooth over the inconsistencies and messiness of the evidence, nevertheless makes sense. Her book forces us to rethink narratives regarding the importance of the slave trade for the early European economy....She has done a tremendous service by giving us a new basis for discussion of one of those elements of social transformation. This study will be an indispensable addition to any and every library (and course bibliography) that includes early medieval history in its remit."-Shami Ghosh

"This excellent work provides a new lens for understanding the many varieties of early medieval unfreedom, and readers should welcome the clarity Rio has brought to this topic....Highly recommended."-Choice

Further information is available here.

Mortenson on What Article II Vests

Julian Davis Mortenson, University of Michigan Law School, has posted Article II Vests Executive Power, Not the Royal Prerogative,which is forthcoming in the Columbia Law Review:

Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presidential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful: among constitutional originalists, this so-called Vesting Clause Thesis is now conventional wisdom. But it is also demonstrably wrong.

Based on an exhaustive review of the eighteenth-century bookshelf, this article shows that the ordinary meaning of “executive power” referred unambiguously to a single, discrete, and potent authority: the power to execute law. This enforcement role was constitutionally crucial. Substantively, however, it extended only to the implementation of legal norms created by some other authority. It wasn’t just that the executive power was subject to legislative influence in a crude political sense; rather, the power was conceptually an empty vessel until there were laws or instructions that needed executing.

There was indeed a term of art for the Crown’s non-statutory powers, including its various national security and foreign affairs authorities. But as a matter of well-established legal semantics, that term was “prerogative.” The other elements of prerogative—including those relating to national security and foreign affairs— were possessed in addition to “the executive power” rather than as part of it.

Scholar Spotlight: Saskia Lettmaier

Earlier this fall we noted that only three of the fifty contributors to Oxford Handbook of European Legal History were women. Knowing that there are numerous women scholars whose voices would enrich a conversation on European Legal History, we have decided to spotlight some of them in a series of posts. As our colleagues at the “Women Also Know History” media platform note, there are “concrete way[s] to address explicit and implicit gender bias in public and professional perceptions of historical expertise.” We hope that this series of interviews will be one of them. (H/t: AHA Member Spotlight series.)

We begin the series with Saskia Lettmaier,  Professor of Law at Kiel University in Germany. 

Website: https://www.lettmaier.jura.uni-kiel.de/en/prof.-dr.-saskia-lettmaier

Alma Maters: 

• Oxford University, B.A., 2002
• Harvard Law School, LL.M., 2003
• Bamberg University, PhD, 2007
• Erlangen University, First State Exam in Law, 2009
• Harvard Law School, S.J.D., 2015
• Regensburg University, Habilitation, 2016

Fields of Interest: All private law subjects, with a particular emphasis on family and succession law; legal history, with a particular emphasis on the early modern and modern periods in England and Continental Europe; comparative and private international law; law and culture

Career path: I have had a fairly unusual career path. I never planned to be a law professor. And I certainly did not plan every step on the way to becoming one. I was born in Germany, and I completed my secondary school education there. However (perhaps because I was an avid Jane Austen reader during my teenage years), I have always had a strong penchant for the Anglo-American world. This is what first brought me to England to study law at Oxford, and this is what subsequently brought me to Harvard to study an Americanized version of the common law. While an LL.M. student at Harvard, I had the good fortune to enroll in a course on wills and trusts with Charlie Donahue. For my LL.M. paper, I drafted two wills for my grandmother on the alternative hypotheses first that she was a resident of Germany and second that she was a resident of Massachusetts. The main body of my work consisted in comparing the results both from a planner’s and a client’s perspective. This LL.M. drafting exercise fixed my interest in family and succession law as well as my interest in comparative law. And it introduced me to Charlie Donahue, who ended up being my doctoral supervisor and a tremendous mentor long after my LL.M. studies were finished.

What do you like most about where you live and work: Kiel is a city in the north of Germany, and it reminds me a lot of England and also of Boston. People here have a Nordic attitude and a Nordic sense of humor. Plus, Kiel is situated right on the Baltic Sea. I am teaching at a university that recruits its students mainly from the Bundesland (i.e. the German state of Schleswig-Holstein, of which Kiel is the capital city). As a result, university life here has a very earthy, heartfelt atmosphere. Add to that a bunch of very supportive colleagues, always keen on collaborative endeavors, and it’s really heaven on earth.

What projects are you currently working on? My research focuses on the history as well as the contemporary practice of family and succession law. I am equally committed to both. When it comes to contemporary issues, I am trying to devise a more equitable approach to balancing private autonomy and protection for the weaker party in spousal and other in-family contracting. As a legal historian, I tend to explore the history of family law, and in particular the history of marriage law. I generally do so through a comparative perspective, with Germany and England as my main comparators. Right now, I am writing a book chapter on marriage law during the inter-war period in England and Germany.

Have your interests evolved since finishing your studies? I dare say they have become more tailored and more narrowly focused, but the big picture was there early on: my techique is historical-comparative, and my favourite subject matter is the history of family law and the history of wills and trusts.

What’s the most fascinating thing you have ever found while doing your research? My most fascinating find dates from my doctoral research on breach-of-promise actions in 19th-century England. I was investigating a very famous mid-century breach-of-promise case brought by one Mary Smith against a noble individual, and I was anxious to know what became of Miss Smith after the trial (which she resoundingly lost) had ended—no easy task, considering what a common name she had. I was greatly helped by her grandfather’s will (discovered at a record office), which disclosed that she had married one Kosciusko Hyde Kent Newbolt (not a common name by anyone’s standards). From there it was an easy task to trace her to her death in Liverpool.

Is there an article, book, film, or website that you would recommend to LHB readers? I strongly recommend the British Newspaper Library, which offers an extensive collection of British and overseas newspapers in print, on microfilm and as digital copies. Much of the content has recently become available online via the British Newspaper Archive. It’s a treasure trove for externalist legal historians like myself, who like to study law in its social context.

What have you found to be the most surprising thing about academic life? I never thought I would have as much freedom to pick and choose my research topics, and I never thought that I would enjoy it so much.

Peter Gonville Stein Book Award

[We have the following announcement. of a call for nominations for the Peter Gonville Stein Book Award of the American Society for Legal History.  Deadline: March 15, 2019.]
The Peter Gonville Stein Book Award is awarded annually for the best book in legal history written in English. This award is designed to recognize and encourage the further growth of fine work in legal history that focuses on all non-US regions, as well as global and international history. To be eligible, a book must sit outside of the field of US legal history and be published during the previous calendar year. Announced at the annual meeting of the ASLH, this honor includes a citation on the contributions of the work to the broader field of legal history. A book may only be considered for the Stein Award, the Reid Award, or the Cromwell Book Prize. It may not be nominated for more than one of these three prizes.

The Stein Award is named in memory of Peter Gonville Stein, BA, LLB (Cantab); PhD (Aberdeen); QC; FBA; Honorary Fellow, ASLH, and eminent scholar of Roman law at the University of Cambridge, and made possible by a generous contribution from an anonymous donor. Read more about Dr. Stein here.

For the 2019 prize, the Stein Award Committee will accept nominations of any book (not including textbooks, critical editions, and collections of essays) that bears a copyright date of 2018 as it appears on the printed version of the book. Translations into English may be nominated, provided they are published within two years of the publication date of the original version.

Nominations for the Stein Award (including self-nominations) should be submitted by March 15, 2019. Please send an e-mail to the Committee at steinaward@aslh.net and include: (1) a curriculum vitae of the author (including the author’s e-mail address); and (2) the name, mailing address, e-mail address, and phone number of the contact person at the press who will provide the committee with two copies of the book. This person will be contacted shortly after the deadline. (If a title is short-listed, four further copies will be requested from the publisher.)

Please contact the committee chair, Matthew Mirow, with any questions at mirowm@fiu.edu.

Call for Papers: "The Lost Alternatives of the Long 1960s: Reflections on the Ideas of the 'Counterculture'"

We have the following Call for Papers:

The Lost Alternatives of the Long 1960s: Reflections on the Ideas of the “Counterculture” 

We seek to bring together scholars with diverse interests and from a variety of disciplines for a two-day conference on September 27 and 28, 2019 focusing on the ideas and legacy of the “counterculture.” The “counterculture” (defined broadly) was a formidable site of intellectual production and political debate, and an important part of the larger and longer history of twentieth-century American intellectual and political life.  

We seek paper proposals on a range of topics focused on the “counterculture”: capitalism, poverty, wealth, distribution and consumerism; race and ethnicity; gender and sexuality; the environment; medicine and pharmacology; health and wellness; spaces and architecture; education, expertise, and epistemology; spirituality and religion; and politics, institutions, and governance. What did the “counterculture” seek to make or remake, and how? What did it mean to be a “participant” in the counterculture, how did “participants” see themselves and what they were doing, how was their sense of self and mission captured in the production and presentation of their books and pamphlets, and how did other parts of society see them? Were the ideas and movements of the “counterculture” a culmination or something new? What was the legacy of the ideas of the “counterculture”? How can contextualizing the “counterculture” in the social, political, and economic moment of 1968 lead to fresh scholarly interpretations?  

Stewart Brand’s Whole Earth Catalog (1968), Frances Moore Lappé’s Diet for a Small Planet (1971), and the Our Bodies, Ourselves Collective’s Women and Their Bodies (1970) were three texts among many others that reflected the ideas of the “counterculture.” While we are especially interested in papers that address the three core texts—The Whole Earth Catalog, Diet for a Small Planet, and Our Bodies, Ourselves—or the themes framed by them, there is no requirement that the papers specifically address those texts.  

Please click here for additional details, a longer description, and to submit a proposal: https://ams.princeton.edu/events/lost-alternatives-ideas-of-counterculture/cfp  

Submission Guidelines: Please submit (A) An abstract of no more than 500 words; (B) A biography of no longer than 100 words; (C) A CV.  

Proposals are due by February 22, 2019. Applicants will be notified of their acceptance status by the third week of March, 2019.

Larson on widows in Durham

Peter L. Larson, University of Central Florida, has published "Widow-right in Durham, England (1349-1660)" in Continuity and Change 33:2 (August 2018), 173-201. Here's the abstract: 

A customary tenant's widow in County Durham had a right to his holdings for her life, and did not forfeit the lands for remarriage or fornication in contrast to customs found elsewhere in England. In this case study of three neighbouring villages, more than 80 per cent of widows with the option exercised this right, and did so consistently over three centuries. The persistence of this pattern indicates that widows as tenants were common and capable of cultivating or managing holdings. It suggests complex interconnections of gender with local social and economic structures, which include marriage, migration, and household formation.

Further information is available here. 

Weekend Roundup

• The latest "AHR interview" is with Bianca Premo and Yanna Yannakakis, on their forthcoming American Historical Review article on legal jurisdiction and indigenous agency in colonial Mexico.

• From the Washington Post's "Made by History" section: Eric Rauchway (UC Davis) on "what Green New Dealers can learn from the first New Deal"; Ron Mize (Oregon State University) on what happened last time the U.S. militarized its southern border; and more.

• HLS’s Annette Gordon-Reed speaks on Confederate iconography and bias as part of the University of Houston Law’s Distinguished Speakers series on February 14 from 4:00 p.m. to 5:15 p.m.

• Advance alerts.  In Law and History Review: Restricting the Juror Franchise in 1920s England and Wales by Kevin Crosby.  In the American Journal of Legal History: Investor-State Dispute Settlement at the Dawn of International Investment Law: France, Mauritania, and the Nationalization of the MIFERMA Iron Ore Operations, by Jason Yackee.

• Seth Barrett Tillman has posted his latest briefs in the Emoluments Clause litigation, here and here. 

• Have you visited the ASLH website and The Docket lately?

• Books in Review. Karen J. Greenberg on Jonathan Gienapp’s Second Creation in The Nation.  David W. Blight on Judge Richard Gergel’s Unexampled Courage in the New York Times.

• ICYMI: The Minnesota Spokesman-Recorder’s “Minnesota Black History Salute” of Lena O. Smith, “Minnesota’s first female African American lawyer.”  The Knox Student on the Illinois Supreme Court Historic Preservation Commission’s traveling exhibit on the history of Illinois's judiciary.

• Update:  We've just spotted a new “Made by History” op-ed: Why Ford needs to grapple with its founder’s anti-Semitism, by Victoria Saker Woeste, American Bar Foundation.

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

CFP: Poverty in America: Past, Present, and Future

[We have the following CFP.]

Poverty in America: The Past, Present, and Future, Rothermere American Institute, University of Oxford, 10-11 May 2019

2019 marks fifty-five years since President Lyndon B. Johnson declared an "unconditional War on Poverty" in the United States and one year since President Donald J. Trump's Council of Economic Advisers declared the War on Poverty "largely over and a success". While most would agree America's War on Poverty is "over", few - from either side of politics - would agree that it was won. According to the US Census Bureau, 39.7 million Americans, or 12.3% of the total population, currently live in poverty. More than half of America's children qualify as either "poor or low income". Over 40 million Americans rely on food stamps to provide their meals. 

To understand why America is still plagued by the "paradox of poverty amidst plenty" a two-day interdisciplinary conference is being convened at the Rothermere American Institute of the University of Oxford.

We are looking for papers and panels which address America's historical and contemporary relationship with poverty, and why the politics of poverty have proved so intractable. We are particularly interested in papers from the fields of history, politics, and public policy, including practitioners.

Topics may include, but are not limited to reasons for the failure of Johnson's War on Poverty;
how and why poverty disproportionately affects women and people of colour; what new policy approaches could positively impact those living in poverty; the past and future of anti-poverty programs such as Food Stamps, Social Security, and Medicaid; depictions of poverty in the media; whether America's political institutions are capable of effectively reducing poverty; and
why poverty has failed to be a larger issue in American political discourse in recent decades.  The keynote address will be delivered by Professor Alice O'Connor (UC Santa Barbara)

Proposals of no more than 250 words per paper, accompanied by a 1-page CV, should be sent to the organisers (Alex Coccia and Mitch Roberson - povertyinamericaconference@gmail.com) no later than 1 March 2019. Proposals for individual papers or full panels are welcome.

Thanks to the generosity of the BAAS/US Embassy Small Grants Programme we will be able to offer some travel bursaries for this event.

A Postdoc at Northwestern Legal Studies

[We have the following announcement.  Due date: February 15.]

Northwestern’s Center for Legal Studies is pleased to continue a collaborative partnership with the Jack Miller Center for Teaching America’s Founding Principles and History.  We seek applications for the centerpiece of the partnership:  a two-year post-doctoral fellowship held in residence at Northwestern University’s Center for Legal Studies beginning September 1, 2019.

A strong preference will be given to candidates working at the intersections of constitutional innovation, politics, and law in the context of the rise of eighteenth century invention, new understandings of property, the Enlightenment, and the creation of the United States. Particularly encouraged to apply are candidates in legal history, the history of political and economic thought, and/or political theory whose work is empirically grounded in the eighteenth century but has significant contemporary implications for questions of constitutionalism, liberty, equality, and democracy.

The post-doctoral fellow will offer three courses per year on topics pertaining to early American and Atlantic Enlightenment history, political and economic thought, and/or social science. In addition to engaging in an active research and publishing agenda, the candidate is expected to provide a reasonable amount of assistance with organizing other activities associated with the Fellowship and the Legal Studies Program.  The annual salary for the fellow is $50,000, plus fringe benefits and a $1,500 renewable annual research budget. The fellow is required to organize and participate in several activities associated with Jack Miller Center events at Northwestern. These activities include producing an essay on the fellow’s work; participating in the Annual Jack Miller Faculty Development Summer Institute for professors; working with Legal Studies faculty hosting a website that features the fellow’s work and other activities related to the Jack Miller Center; and planning, attending, and participating in the Law in Motion Lecture series. Generous funds are available to bring in scholars central to the fellow’s own scholarship for such events. This is a nine-month faculty appointment, and applicant must have a Ph.D. in hand by September 1, 2019.

Applicants should submit a cover letter stating qualifications and field of interest, a CV, a writing sample, a sample syllabus of a proposed course, and two letters of recommendation. Northwestern University is an Equal Opportunity, Affirmative Action Employer of all protected classes, including veterans and individuals with disabilities. Women, racial and ethnic minorities, individuals with disabilities, and veterans are encouraged to apply. Hiring is contingent upon eligibility to work in the United States. Applications should be submitted no later than February 15, 2019.

Please contact Ann Kelchner a-kelchner@northwestern.edu with questions.  Application details and instructions here.

Koskenniemi, Rovira, Amorosa and friends on international law and religion

Martti Koskenniemi, Monica Garcia-Salmones Rovira, and Paolo Amorosa (all of the University of Helsinki) have co-edited International Law and Religion: Historical and Contemporary Perspectives with Oxford University Press. From the publisher: 

This books maps out the territory of international law and religion challenging received traditions in fundamental aspects. On the one hand, the connection of international law and religion has been little explored. On the other, most of current research on international legal thought presents international law as the very victory of secularization. By questioning that narrative of secularization this book approaches these traditions from a new perspective. 

From the Middle Ages' early conceptualizations of rights and law to contemporary political theory, the chapters bring to life debates concerning the interaction of the meaning of the legal and the sacred. The contributors approach their chapters from an array of different backgrounds and perspectives but with the common objective of investigating the mutually shaping relationship of religion and law. The collaborative endeavour that this volume offers makes available substantial knowledge on the question of international law and religion.

The Table of Contents is included on the book's Amazon.com preview here.

 Further information about this edited volume is available here.

State Historical Society of Iowa Research Grants

[We have the following announcement.]

The State Historical Society of Iowa (SHSI) announces a grant program for the 2019/2020 academic year. SHSI will award up to ten stipends of $1,000 each to support original research and interpretive writing related to the history of Iowa or Iowa and the Midwest. Preference will be given to applicants proposing to pursue previously neglected topics or new approaches to or interpretations of previously treated topics. SHSI invites applicants from a variety of backgrounds, including academic and public historians, graduate students, and independent researchers and writers. Applications will be judged on the basis of their potential for producing work appropriate for publication in The Annals of Iowa. Grant recipients will be expected to produce an annotated manuscript targeted for The Annals of Iowa, SHSI’s scholarly journal.

Applications for the 2019/2020 awards must be postmarked by April 15, 2019. Download application guidelines from our website or request guidelines or further information from:

Research Grants
State Historical Society of Iowa
402 Iowa Avenue
Iowa City  IA  52240-1806
Phone: 319-335-3931
e-mail: marvin-bergman@uiowa.edu

Minot on the Irrelevance of Blackstone (at the Founding)

Martin Minot, enrolled in the University of Virginia’s legendary JD-MA program in legal history has posted his note The Irrelevance of Blackstone: Rethinking the Eighteenth-Century Importance of the Commentaries, which appeared in the Virginia Law Review 104 (2018): 1359-97. It’s worth downloading just for the insight Mr. Minot’s acknowledgement provides into the quality of legal history instruction at UVA.  Here is the abstract:

William Blackstone (LC)

This Note challenges William Blackstone's modern position as the "oracle of the law" in the eighteenth century. In a time when the status of legal doctrines at the Founding is of renewed significance in interpreting the Constitution, it is especially important to ensure that the sources of these doctrines comport with historical practices. This Note looks beyond the usual story of Blackstone's influence, as told by the significant circulation of his work. It turns instead to the work's practical significance for legal education in the decades preceding the Constitutional Convention. By using curricula and student notes-referred to as commonplace books-to discover what was actually considered influential in the legal profession of the period, a more comprehensive perspective of eighteenth-century legal thought is uncovered While Blackstone was apparently known to these late colonists, his work was far from "the most widely read law book in eighteenth-century America. " Instead, more traditional treatises and English reporters dominated legal learning until at least 1787. It is these admittedly more impenetrable works which should inform our understanding of the common law as it existed at the Founding.

H/t: Legal Theory Blog

ASLH Annual Meeting Portal Now Open

We hear from Daniel Sharfstein, one of the co-chairs of the 2019 annual meeting of the American Society for Legal History, which will take place November 21 - 24 in Boston, that the submission portal for panels of various sorts is now operational.  The deadline for submission is March 15.

Legally Binding: Fine and Historic Bindings from the Yale Law Library

[We have word of a new exhibit at the Yale Law Library.]

Many of the historic volumes in the Lillian Goldman Law Library are significant not only for their texts, but for their extraordinary bindings. Over thirty of these are featured in the Rare Book Collection's Spring 2019 exhibition, "Legally Binding: Fine and Historic Bindings from the Yale Law Library."

The curators of the exhibition are Michael Laird, owner of Michael Laird Rare Books in Lockhart, Texas, and Michael Widener, the Law Library's Rare Book Librarian. They selected bindings for their beauty, craftsmanship, functionality, and historical significance.

"These bookbindings tell stories about the people who owned them, read them, or sold them at some point in their long histories," write Laird and Widener. "The bindings reflect the time and place of their creation, and reveal attitudes about the legal texts they continue to protect. They also illustrate chapters in the history of book binding."

The examples date from the Middle Ages to the late nineteenth century, and from across Europe and the Americas. They include bindings prepared for students, lawyers, public officials, noblemen, wealthy magnates, a book collector, an Italian cardinal, a chained library in England, the tourist trade in China, the Queen Regent of Spain, the English diarist John Evelyn, and a palace of the Tsar of Russia.

"Legally Binding" is the latest in a series of exhibitions that examine law books as physical artifacts, and the relationships between their forms and content.

"Legally Binding: Fine and Historic Bindings from the Yale Law Library" is on display February 4 to May 30 in the Rare Book Exhibition Gallery of the Lillian Goldman Law Library, located on Level L2 of the Yale Law School (127 Wall Street, New Haven CT). The exhibition is open to the general public 10am-6pm daily, and open to Yale affiliates until 10pm.

For more information, contact Mike Widener, Rare Book Librarian, phone (203) 432-4494 and email <mike.widener@yale.edu>.

Borch on War trials in the Netherlands East Indies

Back in 2017, Fred L. Borch (Regimental Historian and Archivist for the US Army Judge Advocate General's Corps) published Military Trials of War Criminals in the Netherlands East Indies 1946-1949 with Oxford University Press. From the publisher: 

From 1946 to 1949, the Dutch prosecuted more than 1000 Japanese soldiers and civilians for war crimes committed during the occupation of the Netherlands East Indies during World War II. They also prosecuted a small number of Dutch citizens for collaborating with their Japanese occupiers. The war crimes committed by the Japanese against military personnel and civilians in the East Indies were horrific, and included mass murder, murder, torture, mistreatment of prisoners of war, and enforced prostitution. Beginning in 1946, the Dutch convened military tribunals in various locations in the East Indies to hear the evidence of these atrocities and imposed sentences ranging from months and years to death; some 25 percent of those convicted were executed for their crimes. The difficulty arising out of gathering evidence and conducting the trials was exacerbated by the on-going guerrilla war between Dutch authorities and Indonesian revolutionaries and in fact the trials ended abruptly in 1949 when 300 years of Dutch colonial rule ended and Indonesia gained its independence. 

Until the author began examining and analysing the records of trial from these cases, no English language scholar had published a comprehensive study of these war crimes trials. While the author looks at the war crimes prosecutions of the Japanese in detail this book also breaks new ground in exploring the prosecutions of Dutch citizens alleged to have collaborated with their Japanese occupiers. Anyone with a general interest in World War II and the war in the Pacific, or a specific interest in war crimes and international law, will be interested in this book.

 Praise for the book:

"The overriding importance of Borch's book is that it fills a long-existing and significant gap in the English-language historiography of war crimes trials at the end of World War II. ... This book should find a wide audience among legal scholars, especially those who have an interest in the prosecution of war crimes. But the book is framed for a broader audience and with the pains taken to avoid legal jargon and to provide contextualization with respect to time and place, it should achieve its aim." Bruce Vandervort

"The overarching value of this book, especially for Anglophone readers lies in its forty-four trial summaries, which highlight cases relevant to specific types of crimes. The book might also serve as a primer on Dutch war crimes trial procedures, recruitment of personnel, provision of ancillary staff, etc., as well as enable comparative analysis of the Allied trials arising from the Pacific War." -Georgina Fitzpatrick

"This excellent book addresses a void in the academic literature: an authoritative well-written documentation of post-World War II war crimes trials conducted by an Allied state. Much more than a mere recitation of cases (although there is that, too), this slim volume is a window to an earlier time and an earlier law of war. ... This is a powerful book that those interested in the academic literature of World War II, the law of war, or the frailty of man, should read." -Gary Solis

Further information is available here.

African History as Legal History

Many thanks to the editors for inviting me to post here this month, although I’ll confess to feeling like something of an interloper.   Indeed, exploring that feeling struck me as a useful starting point for my thoughts this month.  African history has a peripheral place within the broader field of legal history, and vice versa.  That’s probably not going to change significantly in the near future; but I’d like to make a pitch for legal historians in other times and places to read a bit more in African legal history, and I’ve put together some recommended readings to start with. 

I didn’t start thinking myself as a legal historian until several years after I’d finished my PhD.  I wrote my dissertation, which became my first book, on the history of rape in colonial South Africa; but the questions that I was interested in were less about law than about culture and politics.  I wanted to understand how people thought about sexual violence and sexual consent, and how their ideas changed during the intensely violent process of colonization.  In my initial research, law appeared as a methodological riddle.  By far the largest body of archival material dealing with sexual violence came in the form of court cases: criminal prosecutions for rape and violations of anti-miscegenation laws, divorce hearings, and civil litigation over seduction and adultery.   I sifted through thousands of court records with the goal of reading around and beyond the formulaic phrases of the colonial courtroom, with the hope of deciphering how people talked about sexual violence when they weren’t adjusting their narratives to the expectations of these various legal venues.

I succeeded, in part. My research left me skeptical of overly determinative accounts of forum-shopping.  At least in the 19th century Cape Colony, plenty of litigants turned up in court with little knowledge of how to shape their testimony to the court’s expectations, even if they wanted to.  But I couldn’t figure that out without understanding the courts themselves.  At the most basic level, I needed to understand who had power, and how they used it.  I needed to understand how cases travelled through the court system, from the court clerk to the magistrate to the Solicitor General to the jury.  I needed to know how the words of Xhosa-speaking litigants were transformed into English-language transcripts.  And I needed to know how all the actors in this system thought about rape as a legal category.  

In order to make sense of my archival records, in other words, I needed to become a legal historian of sorts.  It was a more challenging process than I anticipated.  There is a rich body of scholarship on the history of the colonial Eastern Cape, much of which draws heavily on court records, but very little that lays out the basic functioning of the colonial court system.  Meanwhile, the official statements of the colonial regime were usually aspirational at best.  Indigenous African law had no official legal status in most of the Cape Colony, but an approximation was nonetheless widely applied in civil cases, many of which literally bore the notation “informal case” across the top of the archival record.  Meanwhile, few 19th century magistrates had formal legal training, or even access to standard legal texts, so the form of law applied in lower courts on the colony’s periphery was often quite different from that described by judges and prominent advocates in Cape Town.  

As I worked through these questions, I came to see courts themselves as sites for the dissemination of legal knowledge.  I could see African defendants learning how colonial officials thought about rape, and I could see colonial officials developing new understandings of African “customary law.” I also came to appreciate the political stakes of law itself, as I read black intellectuals vigorously debating the place of customary law in the emerging segregationist state.  As I finished my first book, law moved squarely to the center of my research.  My current book project has “law” not only in the title, but before the colon (Imagining African Law: Black Intellectuals and the Politics of Custom in South Africa), and I’m currently the lone Africanist among a group of fellows at the Shelby Cullom Davis Center working on the theme of “Law and Legalities.”

Yet, despite this trajectory, I still feel like an outsider to legal history in many ways.  My time at the Davis Center has been tremendously intellectually productive, precisely because there is still so much I don’t know about the field (luckily, there are very smart people around to explain these things to me).  I would guess that most of my colleagues working on law and African history, a small but vibrant field, feel the same way. 

There are both institutional and intellectual reasons for this. In comparison to scholars of American, European, or Latin American legal history, relatively few of us have legal training, and even fewer teach at law schools. Meanwhile, historians of African law have focused disproportionately on the history of “customary law,” a protean term that glosses a variety of bodies of law which claim some connection with precolonial African law.  This preoccupation has brought us in conversation with a wide-ranging scholarship on legal pluralism, but has simultaneously cut us off from many of the other major questions in legal history.  There is shockingly little historical scholarship on the process of writing African constitutions and the development of postcolonial legal regimes, for example, despite the recent turn in the broader field to postcolonial history.  There is also less work than you might expect that treats law as part of African intellectual history.

Precisely because this divide is so entrenched, however, I see big intellectual dividends in reading across it.  In recent years, my own thinking has been shaped by reading Bianca Premo and Tamar Herzog on law in Latin American empires, Kunal Parker on the common law in America, and Matthew Sommer on alternative marriage practices in late imperial China.  I’d like to think that those working in other fields would benefit equally from reading scholarship on law in African history—and as evidence for this claim, I’d point to Dylan Penningroth’s The Claims of Kinfolk  and Ann Marie Plane’s Colonial Intimacies, two books about American history that draw substantially on Africanist scholarship on customary law.

So, to close this post, here are some of my favorite books in African legal history.  The list skews towards my own interests in gender, sexuality, and empire, although I’ve tried not to be too parochial. Happy reading!

1. Martin Chanock, Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia.  The foundational book in the history of colonial-era customary law.  Dense, but worth it!

2. Sara Berry, No Condition is Permanent: The Social Dynamics of Agrarian Change in Sub-Saharan Africa.  Not legal history strictly speaking, but all the more interesting because of it; Berry examines customary courts as part of a broad set of struggles over property and rural wealth. 

3. Thembeka Ngcukaitobi, The Land is Ours: Black Lawyers and the Birth of Constitutionalism in South Africa.  Written for a popular audience by one of South Africa’s pre-eminent human rights lawyers, an exemplar of the recent interest in law as intellectual history and an argument for the importance of legal history to contemporary South African politics.

4. Emily Burrill, States of Marriage: Gender, Justice and Rights in Colonial Mali.  Exemplary in bridging different spheres of law through an analysis of marriage and a succession of attempts to reform marriage law.

5. Mahmoud Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism.  The classic book on the politics of indirect rule, and a forceful argument about the role of customary law in that process.  

6. Kristin Mann and Richard Roberts, Law in Colonial Africa.  An edited collection that provides a useful starting entrée into this corner of the field. 

7. Ghislaine Lydon, On Trans-Saharan Trails: Islamic Law, Trade Networks, and Cross-Cultural Exchange in Nineteenth-Century Western Africa.   An argument for the role of Islamic law and associated practices in creating and sustaining the trans-Saharan caravan trade.

8. George Karekwaivanane, The Struggle Over State Power in Zimbabwe: Law and Politics Since 1950.  Thinks through the role of law as a category and practice in a time and place where the “rule of law” was often recognized in the breach.

9. Harri Englund, Prisoners of Freedom: Human Rights and the African Poor.  This one is cheating—Englund is an anthropologist, but one that I think historians should read, particularly if we want to understand the complicated place of law in the international human rights project. 

This is obviously not a comprehensive list, but I hope it provides a useful starting point.  I’ll be back later this month to talk about institutional efforts to bridge the fields of African history and legal history.

Andrias on the FLSA's Forgotten Promise

Kate Andrias, University of Michigan Law School, has posted An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act, which is forthcoming in the Yale Law Journal 128 (2019): 616-709:

Wage-Hour Unit Prepares to Put FLSA into Effect (LC)

There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American — in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor Relations Act, the system successfully raised wages for hundreds of thousands of Americans, while helping facilitate unionization and a more egalitarian form of administration. And it succeeded within the basic framework of contemporary constitutional doctrine and statutory law.

By telling the story of FLSA’s industry committees, this Article shows that collective labor law and individual employment law were not, and need not be, understood as discrete regimes — one a labor-driven vision of collective rights and the other built around individual rights subject to litigation and waiver. It also demonstrates that, for longer than is typically recognized, the nation experimented with a form of administration that linked the substantive ends of empowering particular social and economic groups to procedural means that solicited and enabled those same groups’ participation in governance (to the exclusion of other groups). Ultimately, recovering this history provides inspiration for imagining alternatives to the current approach to worker participation in the American political economy and to administrative governance more broadly.