Friday, June 9, 2023

Beatty's "Women and the Patriarchal State in Revolutionary America"

Jacqueline Beatty, York College of Pennsylvania, has published Women and the Patriarchal State in Revolutionary America (NYU Press):

Patriarchal forces of law, finance, and social custom restricted women’s rights and agency in revolutionary America. Yet women in this period exploited these confines, transforming constraints into vehicles of female empowerment. Through a close reading of thousands of legislative, judicial, and institutional pleas across seventy years of history in three urban centers, Jacqueline Beatty illustrates the ways in which women in the revolutionary era asserted their status as dependents, demanding the protections owed to them as the assumed subordinates of men. In so doing, they claimed various forms of aid and assistance, won divorce suits, and defended themselves and their female friends in the face of patriarchal assumptions about their powerlessness. Ultimately, women in the revolutionary era were able to advocate for themselves and express a relative degree of power not in spite of their dependent status, but because of it.

Their varying degrees of success in using these methods, however, was contingent on their race, class, and socio-economic status, and the degree to which their language and behavior conformed to assumptions of Anglo-American femininity. In Dependence thus exposes the central paradoxes inherent in American women’s social, legal, and economic positions of dependence in the Revolutionary era, complicating binary understandings of power and weakness, of agency and impotence, and of independence and dependence. Significantly, the American Revolution provided some women with the language and opportunities in which to claim old rights—the rights of dependents—in new ways. Most importantly, In Dependence shows how women’s coming to consciousness as rights-bearing individuals laid the groundwork for the activism and collective petitioning efforts of later generations of American feminists.
An excerpt appears in this HNN post.

–Dan Ernst

Mayeri on "Outside In: The Oral History of Guido Calabresi"

This post, by Serena Mayeri, is the eighth in a series of posts in which legal historians reflect on Outside In: The Oral History of Guido Calabresi (Oxford University Press), by Norman I. Silber. Mayeri is Professor of Law and History at the Penn Carey School of Law.

Oral history is an especially appropriate genre to catalogue Guido Calabresi’s life, not least because it allows readers to see him as a whole person: a masterful storyteller unafraid to draw connections between his own life experiences and his career as a scholar, teacher, dean, and jurist. Outside In is a story of how an immigrant from fascist Italy, an outsider to the ethnic and religious milieu of World War II-era New Haven, became a consummate insider—Rhodes Scholar, Supreme Court clerk, towering academic figure, celebrated professor and dean of Yale Law School, and distinguished federal judge. It’s also the story of a person who brings his whole self to work and strives to make it possible for others in less secure positions to do so.

My first encounter with Judge Calabresi was a clerkship interview more than two decades ago, which began most disastrously when he asked me about a law school paper I had written on a recent Second Circuit abortion clinic protest case. I drew a blank and sat dumbstruck until Guido mercifully changed the subject. Certain I had blown it, I relaxed. We then had a wide-ranging conversation about everything from how someone who is opposed to capital punishment should handle death penalty cases to my family’s Iranian Jewish roots. At the time, I assumed that Guido was lobbing softball questions to put me at ease and avoid further embarrassment. In retrospect, perhaps he (also) was trying to get a sense of how my background and personal beliefs affected the way I thought about legal and moral questions.

Guido modeled how to be one’s whole self at work, in part through storytelling. Over long lunches he would regale us with tales of his family, academic life, colleagues, and cases. Of course, clerks are differently positioned from a life-tenured federal judge, but Guido tried to extend this ethos by conveying the message that so long as our work got done, we could keep whatever hours we wished, wear whatever we liked (outside the courtroom), take care of and be ourselves. (Emblematic of this attitude, Guido once returned earlier than expected from a post-oral argument conference to find my co-clerk and me napping on the floor of his New York chambers. We jumped up, mortified, but before we could say anything, he apologized to us for disturbing our rest! He also cheerfully tolerated, inter alia, our bad poetry and our pranks—such as an April 1 memorandum, ostensibly written by his eminent senior colleague Jon O. Newman, detailing a series of increasingly absurd and egregious errors Judge Newman supposedly had found in Guido’s opinions since we had started work.) 

Advancing the ability to bring one’s whole self to the workplace—even, perhaps especially, as an outsider—is a hallmark of Judge Calabresi’s employment discrimination jurisprudence. Chapter 28 of Outside In describes Back v. Hastings-on-Hudson (2d. Cir. 2004), a seminal case about sex-stereotyping and family responsibilities discrimination. Elana Back, an elementary school psychologist, alleged that she was denied tenure soon after taking maternity leave because her employer thought her job incompatible with motherhood. Citing the then-recent Supreme Court decision in Nevada v. Hibbs (2003), as well as the leading Title VII sex-stereotyping case Price Waterhouse v. Hopkins (1989), Calabresi wrote for the court: “It takes no special training to discern stereotyping in the view that a woman cannot ‘be a good mother’ and have a job that requires long hours, or in the statement that a mother who received tenure ‘would not show the same level of commitment [she] had shown because [she] had little ones at home.’” Back extended sex-stereotyping analysis to the realm of caregiver discrimination, an early precedent that helped to launch a now-robust body of law. 

The fact that the decisionmakers in Back were women and that the plaintiff could point to no similarly situated male comparators who were treated differently than she made the precedent especially powerful. Guido connects this aspect of Back, too, to his own experiences—with the propensity of outsiders who have become insiders to exclude others who have not. “There is a very strong feeling that I have,” Guido says, citing examples from Italy to South Africa to Israel to the United States, “that we are all in danger of being discriminators. We’re all capable of, in certain situations, behaving very bravely, and very well, and we’re all capable of behaving horribly.” (vol. II, p. 248). 

Chapter 28 discusses another Calabresi opinion, Holcomb v. Iona College (2d Cir. 2006), and its influence on the development of sexual orientation jurisprudence. The plaintiff in Holcomb, a white male basketball coach, alleged that his marriage to a Black woman motivated his termination. Writing for the court, Calabresi reasoned that if Holcomb’s allegations were true, the employer’s decision violated Title VII’s prohibition on discrimination “because of . . . an individual’s race” since had Holcomb not been white, his marriage might not have led to his dismissal. Holcomb’s reasoning bolstered an analogous argument in sexual orientation discrimination cases: if Title VII proscribed discrimination against an individual based on his interracial relationship, then surely it also protected persons in same-sex relationships, since but-for the individual’s sex, association with a partner would not have caused the adverse employment action. As the authors note, the Second Circuit’s decision in Altitude Express v. Zarda, one of the appeals consolidated in Bostock v. Clayton County (2020) (holding that sexual orientation and gender identity discrimination violate Title VII), invoked the logic of Holcomb, as did the Seventh Circuit’s earlier opinion in Hively v. Ivy Tech (7th Cir. 2017).

Significantly, Zarda (which cited and discussed Back)—and many other pre-Bostock sexual orientation and gender identity discrimination cases—also relied on sex-stereotyping analysis. Back established that employers who act on the idea that motherhood makes a woman less competent or committed to work, or that a mother should stay home with her children, apply unlawful sex-based stereotypes. Subsequent decisions by the EEOC and lower federal courts reasoned similarly that employers violate the law when they require individuals to conform to sex-based stereotypes about how they should look or behave or identify, or with whom they should form intimate relationships. 

These decisions protect individuals’ ability not only to land a job but to be themselves at work without penalty. They also provide a powerful rejoinder to Justice Alito’s dissent in Bostock, which rejects Holcomb’s reasoning because (in Alito’s view) unlike racial discrimination, “discrimination because of sexual orientation is not historically tied to a project that aims to subjugate either men or women.” But if the history of sex stereotypes teaches us anything, it’s that their imposition subordinates women and all other persons who don’t conform to expectations of how men and women ought to act and be. 

Many Calabresi clerks have gone on to careers in academia, and some have focused centrally on questions such as those raised by Back and Holcomb. Amy Kapczynski, who clerked the year Back was decided and is now Guido’s Yale Law School colleague, recognized the case’s potential import immediately. Kapczynski went on to make her name as a pioneering scholar of law and political economy, with a focus on health justice and the politics of care; other Calabresi clerks also have done innovative and influential work in employment discrimination law. To mention just two whose work resonates with the themes discussed here: Kenji Yoshino’s theory of covering explained the pressure on women, people of color, queer and other marginalized workers to conceal their true selves at work. Katie Eyer played a key role in crafting the strategically savvy textualist arguments that won the day in Bostock; among many other contributions she also has written compellingly about the power of claiming disability, and one’s own experience of it, in and outside of the workplace. 

Guido would be the first to recognize that, like the opportunity to be one’s whole self at work without negative consequences, the ability unabashedly to draw connections between life experience and judging is not available to all on an equal basis. One has only to think of his former Second Circuit colleague, now Justice Sonia Sotomayor, and the furor that erupted when she expressed hope that her experiences as a Latina and her empathy as a human being would lend a valuable perspective to the Court. As Kate Redburn, another pathbreaking equality law scholar, noted in an earlier post in this series, Outside In not only permits but encourages the reader to link Guido’s work as a judge with his life story. By celebrating these connections, the book too does a service to those who remain on the outside looking in. 

-- Serena Mayeri

Thursday, June 8, 2023

Stern's "Empire, Incorporated"

Philip J. Stern, Duke University, has published Empire, Incorporated: The Corporations That Built British Colonialism (Harvard University Press):

Across four centuries, from Ireland to India, the Americas to Africa and Australia, British colonialism was above all the business of corporations. Corporations conceived, promoted, financed, and governed overseas expansion, making claims over territory and peoples while ensuring that British and colonial society were invested, quite literally, in their ventures. Colonial companies were also relentlessly controversial, frequently in debt, and prone to failure. The corporation was well-suited to overseas expansion not because it was an inevitable juggernaut but because, like empire itself, it was an elusive contradiction: public and private; person and society; subordinate and autonomous; centralized and diffuse; immortal and precarious; national and cosmopolitan—a legal fiction with very real power.

Breaking from traditional histories in which corporations take a supporting role by doing the dirty work of sovereign states in exchange for commercial monopolies, Philip Stern argues that corporations took the lead in global expansion and administration. Whether in sixteenth-century Ireland and North America or the Falklands in the early 1980s, corporations were key players. And, as Empire, Incorporated makes clear, venture colonialism did not cease with the end of empire. Its legacies continue to raise questions about corporate power that are just as relevant today as they were 400 years ago.

Challenging conventional wisdom about where power is held on a global scale, Stern complicates the supposedly firm distinction between private enterprise and the state, offering a new history of the British Empire, as well as a new history of the corporation.
Here is an endorsement:

“Brilliant, ambitious, and often surprising. A remarkable contribution to the current global debate about Empire and a small masterpiece of research and conceptual reimagining.”—William Dalrymple, author of The Anarchy: The East India Company, Corporate Violence, and the Pillage of an Empire 

--Dan Ernst

Wednesday, June 7, 2023

Laurie Marie Wood, 1985-2023

With much sadness, we share the news that legal historian Laurie Wood has passed away. Her family released the following obituary. Remembrances from other colleagues and friends are in the works, and we will post these as they become available.

Laurie Marie Wood of Philadelphia, PA died of breast cancer in her home on June 4, 2023 at the age of 38. She was beloved as mother, wife, daughter, sister, and friend, renowned as a professional historian, and accomplished as an amateur chef, gardener, and globetrotter. Born May 7, 1985 to Larry and Marianne Wood in Abilene, TX, Laurie followed family tradition in earning a BA from Texas Tech University, then pursued advanced study in history at the University of Texas-Austin, earning a PhD in 2013 under the supervision of Prof. Julie Hardwick. While a postdoctoral fellow at the University of Wisconsin Law School, she met Cale Weatherly, then a graduate student in chemistry, and quickly realized that she had “found her person.” They married in June 2015.

Laurie obtained a tenure-track assistant professorship in history at Florida State University in 2014 and developed innovative courses on Atlantic piracy, world history, and the Indian Ocean. In 2020, she published the award-winning monograph Archipelago of Justice: Law in France’s Early Modern Empire and earned promotion to associate professor with tenure. She held fellowships at Princeton University, the University of Delaware, and the Library Company of Philadelphia. To balance her own career ambitions with her husband’s job in Philadelphia, she flew each week from Philadelphia to Tallahassee, taught two three-hour lectures in an afternoon, then returned the next day. As a member of Resurrection Philadelphia, she developed short courses on seeking a vocation and on the history of race-related protest in Philadelphia. She enjoyed teaching them to wide swaths of the congregation.

Laurie’s greatest joy was in relationships, and her greatest pride was in her children, Margot (age 5) and Aaron (age 2). She delighted in seeing Margot become a proficient reader and artist, and in following Aaron’s early interest in cars, music, and sports. From her youth, she was an adventurous and versatile cook, a canny decorator, and an enthusiastic gardener. She enjoyed watching sports, sitcoms, and cooking shows, attending 76ers games, indie rock shows, and Philadelphia Orchestra concerts, and eating her way through Philadelphia’s ever-shifting list of Top 50 restaurants. She combined work and pleasure with regular research trips to France and the Caribbean.

In April 2021, Laurie was diagnosed with stage III triple-negative breast cancer, an aggressive but treatable form of the disease. She undertook a full course of chemotherapy, surgery, and radiation, attending each appointment with hope and good cheer. By August 2022, she had completed maintenance chemotherapy treatments and believe that her cancer was eradicated. A month later, she learned that the cancer had spread to her spine and undertook another series of treatments to preserve her mobility and extend her life. In May 2023, she was diagnosed with leptomeningeal disease, a complication of metastatic cancer, and soon entered hospice care. She had final visits with all her closest friends and family and died in her husband’s presence. She was sustained by her Christian faith and the hope of the resurrection.

Laurie is survived by her parents Larry and Marianne Wood, her brother Peter (Xi Xia), her parents-in-law Jon and Tammie Weatherly, sister-in-law Allison Weatherly, husband Cale Weatherly, and children Margot and Aaron Weatherly.

She will be buried at Laurel Hill Cemetery East, a short walk from her house. Her memorial service will be held at Resurrection Philadelphia, with visitation at 1 pm, service at 2:30 pm, with reception to follow.

In lieu of flowers, please watch for forthcoming information about donating to funds for history education at Florida State University and breast cancer research. 

We at the blog offer our deepest condolences to Laurie's family and to all others who are grieving her loss. 

-- Karen Tani and Dan Ernst

Marguerite Luella Rawalt (1895-1989)

[The second of the two essays I research and write for my exam in American Legal History is biographical Here's this year's.  DRE]

Marguerite Rawalt (TSHA)
Marguerite Luella Rawalt (1895-1989) was born in a small town in Illinois, where her family, of mixed northern European ancestry, had lived for generations.  A distant ancestor had fought in the American Revolution.  Her parents moved her and her family several times before finally settling in Corpus Christi, Texas.  Tall and extroverted, “Mike” (as her family members called her) graduated at the top of her class in a small school that combined secondary education with what we would now call community college.  She then went to the University of Texas, Austin, but only for one year, because her family’s finances gave out.  She taught high school in a small Texas town, where she befriended and admired the female superintendent of schools.  When the superintendent left after a year to attend law school at the University of Texas, Austin, Rawalt could not afford to do the same, although she wanted to.  Instead, she moved to San Antonio, found work as a secretary, and took shorthand and typing classes at night.  She also met a handsome, piano-playing master sergeant named Jack Tindale, whom she found sweet, attentive, but also vulnerable.  A biographer who interviewed her, Judith Hillman Paterson, claims that Marguerite “wanted to provide the strength he lacked, to propel him toward the future she would have wanted for herself if she had been a man.”  They married in 1918.  

In 1921, Jack and Marguerite moved to Austin, so that Jack could attend the University of Texas.  Through a politically connected friend, Marguerite got a job in the office of Governor Pat Neff.  Although hired as stenographer, she quickly impressed Neff with her ability and political savvy.  For example, on her own initiative, she organized Neff’s vast correspondence by the senders’ county and occupation, so that the governor would be ready with a personal remark when encountering correspondents on trips to their hometowns.  Soon Marguerite was writing official resolutions and delivering the governor’s messages to the state legislature, but when she told Neff her dream of becoming a lawyer, he tried to dissuade her.  Who would hire a woman lawyer? Neff demanded.  Besides, she wasn’t tough enough.  Letters from clemency-seeking prisoners moved her to tears; how could she try a rape case before a jury?

The issue became moot when Jack, who had neglected his classes and grown unhappy with Marguerite’s long hours with male coworkers, decided to leave the university and move the couple to the West Texas town of El Paso, so that he could become the franchisee of a women’s lingerie company.  Because Marguerite did not trust him to handle the business, she kept the books, scheduled the salesmen’s trips, filled orders, and then took on other employment when the whole enterprise faltered.  Within six months, Jack had left in search of work in the North, and Marguerite returned to San Antonio.  Employed as a secretary in a car dealership, she soon organized its finances so well that its owner all but turned over the business to her.  Jack continued to fail.  “I am just dragging you down,” he said after she wired him his train fare back from another fruitless job hunt.  They divorced, childless, in 1927, and Marguerite resumed her maiden name.  “Jack never did anything mean to me,” she explained.  “Love just turned to pity.  That is no way to be married.”

Her big break came the following year in a telegram from Neff, who had been appointed to the U.S. Board of Mediation, a newly created independent agency charged with settling labor disputes. “Rawalt, here’s your chance,” it said.  “Come to Washington as my secretary.  Attend first-rate law school at night.”  Although the car dealer promised her a share of the company, and although the pay was less than her current salary, Marguerite accepted Neff’s offer.

She planned to attend Georgetown Law until two coworkers in Neff’s office told her that it did not admit women–news, she told her biographer, that struck her like “a sack of grain” to the stomach.  But she got good grades at George Washington Law and graduated as a member of the Order of the Coif.  She was also an editor of the initial volume of GW’s law review.  She did not, at first, realize that that was an honor: her first reaction upon receiving the invitation to join the editorial board was to seek out the faculty advisor and ask why she had been singled out for extra work.

The District of Columbia permitted law students to take the bar exam before graduating.  Rawalt took and passed hers in 1932, a year before she graduated in June 1933, so that she could start job hunting as soon as the Franklin Roosevelt administration commenced in March.  She immediately joined the Women’s Bar Association of the District of Columbia, founded by suffragettes who drafted and championed the Equal Rights Amendment (ERA): “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”  Rawalt was still campaigning for the ERA in the 1970s.

While a law student, Rawalt started a career-long practice of being active in bar organizations by becoming the leader of GW’s chapter of a national legal sorority, Kappa Beta Pi. “The rough and tumble of organization life came naturally to her,” her biographer Paterson wrote.  “She liked to be in charge.”  At a luncheon of the GW chapter in early March 1933, she turned up with Sarah King, an honorary colonel in the Texas National Guard and the head of the Texas’s official delegation to FDR’s inauguration.  King stayed with Rawalt during the inauguration festivities and made her an official member of the delegation.  Learning that Rawalt wanted a federal legal position, King got top Texas Democrats to endorse her for a position in the Office of the Chief Counsel of the Bureau of Internal Revenue (BIR), as the Internal Revenue Service (IRS) was known until 1953.  “You would think I had gone after a Cabinet post,” she laughed as she left the office of the chief counsel on the arm of one of Texas’s two U.S.  Senators, who had just personally asked the chief counsel to give her a job.  When the offer arrived, the pay was a third less than her salary as a secretary at the Board of Mediation.  She took it anyway, joining the 500-person Chief Counsel’s office in December 1933.

A member of the Women’s Bar Association had warned her that her male superiors would try to get her to do administrative rather than strictly legal work, and so she was ready when she was offered the job of docket clerk.  Flatly rejecting it, she insisted on the same caseload as the thirty male lawyers who started with her in the Compromise Division.  For the next four years, she carried a docket of thirty cases, mastering their facts, learning tax law, and negotiating with delinquent taxpayers.  “My work is heavy,” she wrote to her ex-husband.  “I feel it needs extra effort to make good, for women have to be not just as good, but almost better than the men, to hold the same kind of position.”  Newspaper reporters caught up with her when she traveled to settle cases.  To one she said that “any field in which a woman can qualify is open to her. . . . [N]ever in my day have I met any opposition because I wore skirts at the bar.”  Yet she also said that she never attempted to go into private practice because “the public was not ready to receive women lawyers.”  The few female private practitioners she knew survived on divorce and probate cases, neither of which interested her.

“All the time I was doing this compromise work,” Rawalt later recalled, “I wanted to get into trial work.  Every lawyer wants to get into court.”  BIR cases got to court in two ways.  First, taxpayers could refuse to pay their taxes and appeal to the juryless Board of Tax Appeals (renamed the U.S. Tax Court in 1942).  BIR lawyers in the Appeals Division handled such cases.  Alternately, taxpayers could pay their taxes and sue for a refund in a jury trial in Federal District Court.  Lawyers in the Refund Litigation Division represented BIR in such cases.

At last, in 1938, a chief counsel called Rawalt into his office and told tell her he was assigning her to the Appeals Division, even though its lawyers–all men–did not want a woman in their midst.  She shared an office with two male lawyers.  One, told to give her some cases from his docket, gave her his most difficult ones.  Working nights and weekends, with the help of her other, more sympathetic office mate, she survived.  Indeed, she thrived and worked in the division happily until, as part of a general decentralization of the BIR’s legal work, she was asked to relocate to Chicago.  By that time, she had a personal reason to stay in Washington.

While a divorcee in Washington, Rawalt did date men, including a fellow who shared her love of horse raising and good food but happened to be married.  Then, in 1935, through mutual friends, she met Harry Secord, a widower eleven years her senior, who had retired from the military but was serving as the civilian superintendent of Bolling Air Field in Washington, DC.  Rawalt found she could relax with the quiet, self-assured, and orderly man.  “She wanted someone, not to take care of her,” her biographer wrote, “so much as to share with her the responsibility for both their lives.”  They married in 1937, but because the Economy Act of 1933 forbid two members of the same family from working for the federal government, she retained her name and the two hid their marriage until 1940.  Reactivated in 1942, Harry served two years at an airbase in Mississippi while Rawalt remained in Washington.  When Harry later retired for good, he urged her to keep working, knowing she would be unhappy without employment. Rawalt was still working for the IRS when he died in 1963.

Rawalt’s new position in the Chief Counsel’s Office suited her well.  It was in the Brief and Review Section, which was tasked with ensuring that the positions taken by BIR lawyers in the field offices were consistent with the agency’s policy.  In time, she became its chief, although she did not receive the salary increase that went with the promotion until she got a competing offer from the Department of Justice.  Thereafter she held positions of importance but never ones of command elsewhere in the Chief Counsel’s office.  Thus, she became assistant chief of the Appeals and Refund Litigation Divisions but never either division’s chief.  Further, despite mobilizing politically connected Texans, she never received the judicial appointment to the U.S. Tax Court she coveted greatly.

After being turned down for the Associate Chief Counsel job shortly before her retirement, Rawalt was so angry that she complained to her fellow Texan, President Lyndon B. Johnson.  She claimed that the only reason for the “snail's pace” of her promotions was that men did not want women them giving orders, but some of her coworkers thought Rawalt was more interested in bar politics and women’s professional groups than her day job.  She ended her workday promptly at five o’clock and spent many evenings and weekends on those activities.  Three years after joining the National Association of Women Lawyers (NAWL) in 1939, she became its president and launched a membership drive to qualify the NAWL for a seat in the American Bar Association’s House of Delegates.  When she succeeded and became the NAWL’s first delegate to the ABA, detractors accused her of trying to build a political machine.

You can understand why: for three and a half months in 1943, while her husband Harry was stationed in Mississippi, Rawalt was simultaneously president of the NAWL and the Federal Bar Association (FBA), a national organization of government lawyers.  (FBA would not elect another woman President for fifty years.)  She was proud of the growth of the FBA’s membership during her tenure and warmly recalled presiding over banquets attended by Supreme Court justices and Eleanor Roosevelt.  But another honor, the invitation to address the annual meeting of the Texas State Bar Association, landed her in what she called “a sea of troubles.”   Before taking up the main topic of her address (tax legislation), Rawalt made a more general point to her audience of courtroom lawyers:

Are the lawyers of this country, men and women, going to take full advantage of their opportunities in administrative law? It is the most rapidly expanding area of law practice today....  Administrative law, through the Federal Communications Commission, regulates the program you hear on your radio. . . .  Administrative law, though the OPA and other Departments regulates what food you buy and what you may pay for it.

A fifth of the nation’s lawyers were in military service, Rawalt continued, and most of those left behind had attended law school before administrative law had become part of the curriculum.  Would the lawyers in her audience nonetheless “take over this great, expanding area of government law practice”? Would they “protect and defend this practice” for their returning fellow lawyers?

A reply arrived months later in a newspaper column by a virulent critic of the New Deal.  “Though cynical,” Westbrook Pegler wrote, at least Rawalt was “honest and practical.”  She frankly urged lawyers to “grab off their share of the loot from a nation bedeviled by confusing and harassing rules, regulation and interpretations, many of them improvised by New Deal Bureaus operating as courts.”  Rawalt’s only concern, Pegler claimed, was “that lawyers should get their share” of Everyman’s possessions “as he is tossed up for grabs by his government.”  
Rawalt continued on the IRS’s legal staff until 1965, when, at the age of 70 and after thirty-one years at the agency, she retired.  Already active in second-wave feminist groups, she advised the legal arm of the National Organization of Women and picketed the White House with NOW in 1969.  At last, she returned to Corpus Christi, where she died at the age of ninety-four.

[A Note on Integrating the FBA and Sources.  Because I could not sort out the facts to my satisfaction and did not want to distract my students with supposition, the essay omits Rawalt’s part in the failed attempt to integrate the Federal Bar Association during her presidency, which J. Clay Smith noted in Emancipation:: The Making of the Black Lawyer, 1844-1944 (1999).  In her oral history, Rawalt simply said that the board of directors could not be persuaded to act, without describing whether or how she urged it to do so.  The following year, another Texan, Tom C. Clark, succeeded.  Both years, the intergationists proposed an exemplary government lawyer, Louis Mehlinger.

[A recording, but not a transcript, of Marguerite Rawalt’s extensive oral history with the Columbia Center for Oral History at Columbia University is available here.  The biography quoted in the essay is Judith Paterson, Be Somebody: A Biography of Marguerite Rawalt (Eakin Press, 1986).  Gwendolyn Lockman's entry on her for the Texas State Historical Society’s Handbook of Texas is here.  Rawalt's address to the Texas State Bar Association is “How Our Federal Tax Laws Grow,” Federal Bar Association Journal 5 (1943): 86.  Westbrook Pegler’s column appeared in many newspapers, including, under the title, “Fair Enough,” in the Muncie Evening Press, April 8, 1944, 12.  Her papers, which I did not consult, are at the Schlesinger Library of the Radcliffe Institute for Advanced Study at Harvard University.]

Tuesday, June 6, 2023

The Common Law Jurisprudence of the Conflict of Laws

Just out from Hart/Bloomsbury: The Common Law Jurisprudence of the Conflict of Laws, a collection of essays edited by Sarah McKibbin and Anthony Kennedy:

This book presents a collection of leading common law cases in private international law ranging from the 18th to the 21st century. The cases traverse issues of jurisdiction, choice of law and the recognition and enforcement of foreign judgments. Questions of marital validity, domicile, foreign immovable property and choice of law in contract are just some of the topics that this collection examines. The 'unusual factual situations' of some 18th- and 19th-century English cases also reveal compelling human interest stories and political controversies worthy of further exploration.

Drawing on a diverse team of contributors, this edited collection showcases the research of eminent conflicts scholars together with emerging scholars from the United Kingdom, Australia, Canada, Ireland and South Africa.

--Dan Ernst.  TOC after the jump.

Blue Sky Laws

[As longtime LHB readers know, I post here the essays I research and write for my exam in American Legal History, which principally treats the years 1898 to 1962.  The first treats some topic in the history of regulation that we did not cover in class but which raises analogous issues, especially judicial review of agency adjudications.  For earlier ones, start here.  This year's was on blue-sky laws, with just a glimpse of New Deal securities regulation and the Hughes Court.  DRE]

Joseph Dolley (wiki)

Shortly after 1900, Joseph Dolley, Kansas’s state banking commissioner, noticed that the state’s residents, dissatisfied in an inflationary time with the interest on savings accounts in commercial banks, were purchasing the exceedingly dubious securities of newly formed corporations, “beautifully engraved or lithographed certificates of stocks and bonds, which soon proved to be worthless.”

The common law already proscribed fraud, the affirmative misstatement or active concealment of facts, but a common-law cause of action was not much help to buyers of stocks and bonds.  With “cunning innuendo,” dealers tiptoed up to the line of fraud without crossing over.  Individuals could not afford the cost of proving the falsity of claims about the condition of business entities incorporated elsewhere.  Further, as a judge observed, courts could act only after the fact; a common-law cause of action could “in no wise act as a preventative.”

Thus, to save Kansas’s widows and orphans from throwing their money away on securities backed by nothing more than “so many feet of blue sky,” in 1911 Dolley persuaded the state legislature to pass the first of what became known as “blue-sky laws.”  Before the nation’s major investment banks knew it, half the states had adopted a similar one by 1913.  Almost all states had some kind of blue-sky law by 1931.

Defenders of blue-sky laws acknowledged that Americans’ “inheritance from our Anglo-Saxon origin” included the principle that an “individual citizen shall regulate his own affairs with the least government possible.”  Even so, individuals did not have “untrammeled liberty” to do what they pleased, because their liberty was “limited by the rights of others and by the public welfare.”  The state could pass laws to promote the public welfare even if they “circumscribe[d] the freedom of contract.”  And although the state could not prohibit honest businesses, it could subject them “to such a degree of control as may be necessary to ascertain that [their transactions were not of] a fraudulent character.”  That is, it could make even an honest business bear “some burdens in order that dishonest business may be regulated or entirely prohibited.”

Not only could the state legitimately regulate sales of securities, proponents argued; it should.  “Modern conditions have become so complex that it is not only impracticable but even impossible for the investor to investigate the merits if any” of many securities, a treatise writer claimed.  Because only “the most skillful and informed” could evaluate securities, “the doctrine of caveat emptor” did not apply.  An Iowa judge agreed.  Blue-sky laws were needed “to protect the humble, honest citizens of the state, unlearned in the intricacy of business affairs as being conducted at this day, from being plundered and despoiled of their small earnings” by the “unscrupulous, cunning and deceitful.” Such investors “could not afford to go to the expense of having an independent audit and appraisal made, even if they had thought of such a thing.”

Blue-sky laws took several forms.  Almost all states passed “dealer-licensing” acts, which required dealers of stocks, bonds, and other securities to obtain licenses, which they could keep only so long as a designated government official found that they were not of “bad business repute.”  But almost all states also passed “specific-approval” acts, which required blue-sky administrators to assure themselves of the legality of particular issues of securities.   “First-generation” specific-approval acts, including the original Kansas statute, required issuers to show that a stock or bond would provide investors with a “fair return.”  Thus, as Stuart Banner has observed, “before anyone could sell stock in Kansas, they would have to persuade Joseph Dolley and his staff that the stock was a sound investment.”  

Investment bankers quickly mounted a political and legal campaign against the “first-gen” specific-approval laws.  All investments entailed risk, they observed.  Further, no state official could predict whether new business ventures would produce “a fair return.”  They countered that the real purpose of the laws, as Nebraska’s blue-sky administrator incautiously said, was to create legal obstacles to sales within a state of the securities of “any eastern financial house.”

The investment bankers successfully challenged the first-gen laws in a series of lawsuits in Federal District Court.  The Doyle decision, for example, involved a Michigan law that empowered a commission to forbid the sale of securities if it thought that a company’s business plan was not “fair.”  “Broader and vaguer language could not be chosen,” the federal judge protested.  The law “subjects to the practically uncontrolled discretion of the Commission every issue or general sale of stocks, bonds, or securities hereafter to be made in Michigan.”  In response to such decisions, Michigan and other states adopted “second-generation” specific-approval acts, under which officials could only prohibit the sale of securities if they were fraudulent–with “fraud” defined in traditional, common-law terms.  Even Kansas replaced its first-gen law with a second-gen one.

But if the investment bankers hoped to restore laissez faire in all its rigor, they failed.  In Hall (1917), and two companion cases, with only Justice McReynolds dissenting, the Supreme Court rejected various constitutional challenges to dealer-licensing and second-gen specific-approval statutes.  Such laws did not violate the liberty of contact guaranteed by the Due Process Clause of the Fourteenth Amendment, Justice McKenna wrote for the majority.  Although the “essence of liberty” was “freedom of conduct,” sometimes that freedom had to “yield to the public welfare.”  In Hall, McKenna specifically defended Ohio’s dealer-licensing law, under which dealers had to persuade the blue-sky administrator that they were of “good business repute.”  The dealer argued that this language vested the administrator with “purely personal and arbitrary power.”  McKenna disagreed.  “Reputation and character” may be hard to define, he allowed; still, many administrative agencies found facts under comparably open-ended standards.  Besides, “the statute provides for judicial review.”

In Hall, judicial review took the following form.  A dealer who had been denied a license filed a petition in the Court of Common Pleas for the county containing Columbus (Ohio’s state capital) detailing his qualifications and asking for a reversal of the denial.  The blue-sky administrator then filed an answer stating his grounds for denying the license.  Thereafter, the case proceeded as “usual in civil actions.”

In most other states, a different, more administrative procedure prevailed.  Dealers who were denied a license or whose securities were deemed fraudulent received a notice to that effect and a hearing before the blue-sky administrator.  At the hearing, the dealer could be represented by an attorney.  Testimony was taken for the record, and witnesses were subject to cross examination.  Then the administrator made the statutorily required finding–say, that the dealer was of bad business repute or that one of his transactions was fraudulent.

Dealers who lost before the administrator could appeal to a state appellate court.  In Abrams (1922), an intermediate appellate court overturned the order of California’s blue-sky administrator suspending a dealer’s license on the ground that a security he offered was fraudulent.  The court first faulted the administrator because his notice to the dealer “contained no charges of any nature and nothing from which [the dealer] could ascertain what he would be required to defend.”  The court then conducted its own review of the record and found that the evidence–a single witness’s testimony–did not establish that any of the dealer's statements were false or that anyone had relied upon them.  In reaching its conclusion, the Court invoked a common-law principle: whoever “seeks relief from fraud must allege it and prove it by clear and satisfactory evidence.”  

As blue-sky administrators perfected their procedures, reviewing courts treated their findings of fact more deferentially.  In Hardstone Brick (1928), for example, the Minnesota Supreme Court upheld the blue-sky administrator’s finding that the sale of stock for a brickmaking company whose incorporators had no experience in the business “would operate as a fraud on the purchasing public.”  Although not all of the evidence the administrator heard would have been admissible in a jury trial, the Court saw “ample evidence” in the record sustaining the administrator’s finding.  Similarly, in Investment Reserve (1927), the Michigan Supreme Court upheld the refusal of a blue-sky administrator to license the sale of bonds because he found, after, “a full and protracted hearing,” that they were “likely to work a fraud upon the public” for two specific reasons.   If the record contained “evidence tending to support the [administrator’s] conclusion,” the Court announced, “its order is not to be disturbed, unless the evidence is found overwhelmingly convincing to the contrary. We cannot so find in this case.”

The greater deference of courts did not alarm major investment bankers, however, because by the end of the 1920s they had already persuaded state legislatures to write exemptions covering their securities into the blue-sky laws.  For example, securities that were already listed on a stock exchange were exempt, as were those of businesses regulated by public utility commissions or by federal banking regulators.  In 1911, Dolley had promised that his blue-sky law would keep “Kansas money for Kansas investments.”  By 1929, blue-sky laws seemed to be doing almost the opposite.  Only novice entrepreneurs or small businesspeople, it seemed, had their securities rejected.  Critics charged that the blue-sky laws had made it “impossible for young industries to finance themselves” and claimed that they were allowing “big interests” to “monopolize” American industry.

Some wondered if the laws were doing anything at all.  “The effectiveness of blue-sky laws depends absolutely on the vigilance, the energy, and intelligence of their administrator,” a commentator observed, but many administrators lacked sufficient training in finance.  In Nebraska, for example, the job of administering the state’s blue-sky law fell to the same official who inspected rights of way for the state railroad commission.  Even competent administrators could be turned out of office if a new governor needed to make a patronage appointment.  Bribery scandals embarrassed administrators in several states.  Almost all administrators lacked adequate funding.  In some states, administrators gave up investigating dealers and simply asked them to provide letters of reference.

The Stock Market Crash of 1929 renewed calls for the federal regulation of securities.  The version adopted during the Hundred Days, the Securities Act of 1933, differed significantly from blue-sky laws.  Drafted by Felix Frankfurter’s proteges and defended by Frankfurter himself, the act did not require an official to determine whether a security was fraudulent.  Instead, it required an issuer of a new security to file a registration statement disclosing many facts about the business entity with the FTC (originally) or (from 1934 on) the Securities Exchange Commission.  No security could lawfully be sold until the registration statement took effect, which happened twenty days after the issuer filed the statement, unless the SEC acted first.  The SEC did so by commencing proceedings to issue a “stop order” on the grounds that the registration statement contained untrue statements of material facts or omissions of material ones. 
In 1935, J. Edward Jones filed a registration statement for a kind of security called a trust certificate which gave investors a share in the royalties from certain oil wells.  Nineteen days after the filing, the SEC notified Jones that it was commencing proceedings for a stop order and issued a subpoena requiring him to bring financial records to a hearing.  Before that hearing could take place, however, Jones withdrew his registration statement.  The SEC insisted on the proceeding nonetheless and sued to enforce the subpoena.  The case arrived at the Supreme Court in 1936, the same term in which the Court struck down the AAA in United States v. Butler and a state minimum wage law for women in Morehead v. New York ex. rel. Tipaldo.

Lawyers in the office of Solicitor General Stanley Reed feared that the Court would invalidate the Securities Act on constitutional grounds, but when it announced its 6-3 decision, in an opinion by Sutherland from with Brandeis, Cardozo, and Stone dissented, its grounds were procedural.  Jones had an unqualified right to withdraw his registration statement, the Court ruled, and, after he withdrew it, the SEC could no longer subpoena his records.

The SEC’s power over Jones could not be greater than that “exercised by judicial tribunals of the land under similar circumstances,” Sutherland announced.   Plaintiffs in federal courts had the unqualified right to dismiss their complaints unless the defendant would be prejudiced–which, Sutherland claimed, was not true for the SEC in Jones’s case.  The SEC’s “wholly unreasonable and arbitrary” position, he charged, would subject Jones to “the mere will of an official” rather than “the standing law as a rule of human conduct.” Administrative agencies were necessary, but they must not be “permitted gradually to extend their powers by encroachments–even petty encroachments–upon the fundamental rights, privileges, and immunities of the people.”  If agencies were so permitted, Sutherland warned, Americans would ultimately “become submerged by a multitude of minor invasions of personal rights,” and government would cease to be “one of laws.”  Sutherland saved his worst epithet for last: The SEC’s continued enforcement of its subpoena was on a par with the “intolerable abuses of the Star Chamber.”

“Sutherland writes as though he were still a United States Senator, making a partisan speech,” Felix Frankfurter complained.  That Chief Justice Hughes joined Sutherland’s opinion, Frankfurter added, was “saddening and incomprehensible.”

[Sources.  Primary: John M. Elliott, Annotated Blue Sky Laws of the United States (W.H. Anderson, 1919); James A. Gross and Richard W. Brown, “Administrative Powers under Blue Sky Laws,” St. Louis Law Review 16 (1931): 141-147; Keyes Winter, “State Regulation of Corporations by Policing Securities,” Annals of the American Academy of Political and Social Science 129 (1927): 149-155; “The Control Exercised over the Issuance of securities under the Nebraska Blue Sky Law,” Nebraska Law Bulletin 11 (1932): 148-175.  Secondary: Jonathan R. Macey and Geoffrey P. Miller, “The Origin of Blue Sky laws,” Texas Law Review 70 (1991): 347-397; Daniel Stephen Holt, “Acceptable Risk: Law, Regulation, and the Politics of American Financial Markets, 1878-1930 (Ph.D. diss, University of Virginia, 2008); Stuart Banner, Speculation: A History of the Fine Line between Gambling and Investing (Oxford University Press, 2017).]

Monday, June 5, 2023

Vanatta on Bank Supervisors and the Revolving Door

Sean Vanatta, University of Glasgow, has posted Revolving Door Governance: Bank Supervisors in the United States, 1863-1933:

Daniel R. Crissinger (LC)
Federal bank supervision began in the United States with the enactment of the National Bank Act in 1863. From that point until the banking crises of the 1930s, the leaders of the US supervisory agencies—the Comptroller of the Currency (1863) and the Federal Reserve (1913)—recognized that bank supervisory work was often a stepping-stone to future careers in banking. As Comptroller D. R. Crissinger wrote in 1922, “The best testimony to the high quality and character of the examining force is found in the fact that the bureau has constant difficulty in retaining the services of its skilled examiners because their special qualifications constantly appeal to the best banks, which are continually drafting them away from the bureau at greatly advanced compensation.” Certainly, as Crissinger recognized, this constituted a loss for supervisory agencies, and Comptrollers and Fed officials used the constant drain of experienced examiners to lobby for better supervisory compensation. Yet, as this paper demonstrates, supervisory leaders also understood this process as a net gain for the banking system, which in the nineteenth and early-twentieth century United States had a proliferation of small, unit banks but few well-trained bankers. Indeed, Comptrollers of the Currency often followed the same path, moving from government service into the management of banks they supervised. Ultimately, the paper argues that US financial supervisors practiced “revolving door governance,” where bank supervisors were able to recruit competent staff at low pay on the promise of future banking careers. Examiners, in turn, brought their knowledge and expertise into the banking system. In this way, the paper suggest that the revolving door in early US financial governance is more akin to regulatory schooling than regulatory capture, thought the lines between legitimate transit and unseemly corruption always remained thin and porous.
–Dan Ernst

Saturday, June 3, 2023

Weekend Roundup

  • Ron Harris. the Kalman Lubowsky Professor of Law and History, Tel Aviv University, delivered "The Globalization of Company Law 1844-1914," the Youard Lecture in Legal History for 2023, at the University of Oxford Faculty of Law on May 30.
  • A recording of that Supreme Court Historical Society session on securities regulation and the Supreme Court with Adam Pritchard and Robert Thompson has been posted to YouTube.
  • Ken Bridges, South Arkansas Community College, on the "Brooker Brothers," two African American lawyers who “shaped Arkansas’s legal landscape” (El Dorado News-Times)
  • ICYMI: Emily Blanck, Rowan University, on her forthcoming Remembering Emancipation: Juneteenth as America’s Emancipation Holiday (University of North Carolina Press) (Rowan Today).  A South Carolina lawyer will ask the Supreme Court to rename Brown v. Board of Education as Briggs v. Elliott  (ABAJ).  Steven Mintz on Rights Talk (IHE Blog).  Troy J.H. Andrade on encountering Queen Lili‘uokalani at the National Portrait Gallery (ACS).  A career tip for Brandeis University graduate students from Winston Bowman, Associate Historian at Federal Judicial Center.
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 2, 2023

May's "Madman's Will"

Gregory May, a lawyer who practiced thirty years in New York and Washington, has published A Madman's Will: John Randolph, Four Hundred Slaves, and the Mirage of Freedom (Liveright/Norton):

Few legal cases in American history are as riveting as the controversy surrounding the will of Virginia Senator John Randolph (1773–1833), which—almost inexplicably—freed all 383 of his slaves in one of the largest and most publicized manumissions in American history. So famous is the case that Ta-Nehisi Coates has used it to condemn Randolph’s cousin, Thomas Jefferson, for failing to free his own slaves. With this groundbreaking investigation, historian Gregory May now reveals a more surprising story, showing how madness and scandal shaped John Randolph’s wildly shifting attitudes toward his slaves—and how endemic prejudice in the North ultimately deprived the freedmen of the land Randolph had promised them. Sweeping from the legal spectacle of the contested will through the freedmen’s dramatic flight and horrific reception in Ohio, A Madman’s Will is an extraordinary saga about the alluring promise of freedom and its tragic limitations.
The NYT review is here.

–Dan Ernst

JSCH 48:1

The Journal of Supreme Court History 48:1 has been published.  Here is the TOC:

Timothy S. Huebner


Justice Samuel Nelson and the Seneca Indians
Laurence M. Hauptman

A Hero Forgotten: Gus Garcia and the Litigation of Hernandez v. Texas (1954)
Gabriel Valle

"Hugo Will Pull My Hair Out":  Hugo Black and Mandatory Arbitration on the Warren Court
Theodore Salem-Mackall

The Last Days of the Warren Court:  How Justice Brennan Orchestrated Shapiro v. Thompson (1969)
Jordan Lampo

Supremely Influential:  How The Man That Once Was Whizzer White Shaped My Career
Helen J. Knowles-Gardner

The Judicial Bookshelf
Donald Grier Stephenson Jr

[Mr. Valle, Mr. Salem-Mackall, and Ms. Lampo are all recent graduates of Georgetown Law.  Their articles originated in papers written in my colleague Brad Snyder's seminar on the Warren Court.]

--Dan Ernst

Thursday, June 1, 2023

Glass on the Slaughter-House Cases

Killing Precedent: The Salughter-House Constitution, an essay by Maeve Glass, Columbia Law School, is out in the Columbia Law Review

This Essay offers a revisionist account of the Slaughter-House Cases. It argues that the opinion’s primary significance lies not in its gutting of the Privileges or Immunities Clause but in its omission of a people’s archive of slavery.

--Dan Ernst

Green on English Statutory Interpretation

Jonathan Green, a Harry A. Bigelow Fellow and Lecturer in Law at the University of Chicago Law School, has posted Interpretation in England:

American purposivists and textualists have both invoked the authority of the English statutory interpretation tradition to give their respective approaches pedigree and credibility. But both sides have misunderstood this history. The search for the purpose of the statute’s authors does not date to the sixteenth century, as Hart and Sacks suggested. Neither did the English courts categorically ban “legislative history” as an aid to interpretation in the 1760s, as Scalia claimed. The seminal case of Pepper v. Hart (1992), finally, did not mark the death knell of English textualism or the return of purposivism—at least as that term is usually understood.

This Article offers the first intellectual history of statutory interpretation in modern England. It begins in the early-nineteenth century, with the appearance of new evidentiary sources that made it possible, for the first time, to try to peer into the mind of Parliament. This triggered decades-long disagreement about whether the intentions of past legislators were relevant to statutes’ meaning—and whether, in turn, evidence of those intentions should be admissible in court. Late-Victorian judges ultimately rejected intentionalism for an approach centered on the “plain meaning” of the statute’s text. That formalistic method aimed to discipline construction and cabin judicial discretion, but its failure to do so led to its collapse in the late twentieth century. What emerged in its wake—the approach dominant in England today—was a novel kind of purposivism, one that centers the objective purpose of the statute and generally ignores evidence of the subjective intentions of its authors. The English courts’ contemporary approach, in other words, presents an alternative to the congressional-intent purposivism dominant on the federal courts today.

Retrieving this history, in turn, opens up new ways of thinking in the present. The history of interpretation in England suggests that textualists have been too quick to rule out evidence of the statute’s historical context; that purposivists have conflated the purpose of the statute and the purpose of its authors; and that today, when federal judges debate congressional intent, they are often talking past each other. The English tradition has much to offer us—just not what we think it does.
–Dan Ernst H/t: CB

Wednesday, May 31, 2023

Sandberg's "Historical Introduction to English Law"

Russell Sandberg, Cardiff University, has published A Historical Introduction to English Law: Genesis of the Common Law (Vambridge University Press):

There are some stories that need to be told anew to every generation. This book tells one such story. It explores the historical origins of the common law and explains why that story needs to be understood by all who study or come into contact with English law. The book functions as the prequel to what students learn during their law degrees or for the SQE. It can be read in preparation for, or as part of, modules introducing the study of English law or as a starting point for specialist modules on legal history or aspects of legal history. This book will not only help students understand and contextualise their study of the current law but it will also show them that the options they have to change the law are greater than they might assume from just studying the current law.

--Dan Ernst

Tuesday, May 30, 2023

McSweeney on Medieval French Pleading Texts

Those Things Which Are Written in Romance: Language and Law Teaching in Thirteenth-Century England,” an article by Thomas J. McSweeney, William & Mary Law, has been published, gated in American Journal of Legal History 62 (December 2022): 285-304:

Around 1250, a shift began to occur in texts written on the common law. Where earlier texts on the practices of the king’s courts had mostly been written in Latin, a number of the new texts written after 1250 were written in French. The shift to French initially occurred mostly in the context of texts on counting and pleading, the oral parts of court procedure, which were conducted in French, and one author of the 1280s even suggested that by his time a norm had developed that texts on counting and pleading should be written in French. This article examines the evidence for such a norm and the reasons for the shift to French in the later thirteenth century. It uses texts on counting and pleading to examine how both French and Latin were used in the education of pleaders and concludes that, although a norm probably did exist that the oral parts of procedure should be taught in French, Latin was still being used for a number of different purposes in the education of pleaders.

--Dan Ernst

LSA Prizes Announced

The Law and Society Association has announced its annual prizes and awards, several of which will interest legal historians.  The first is the Harry Kalven Award, which LSA describes as “not a book award, nor is it a career achievement award, but is given in recognition of a body of scholarly work, including some portion of work having been completed within the past few years.”  The two recipients are Christopher L. Tomlins, University of California, Berkeley, and Michael McCann, University of Washington.  The  James Willard Hurst Prize, awarded annually “for the best work in socio-legal history published in the previous year,” goes to Jessica M Marglin, University of Southern California, for The Shamama Case: Contesting Citizenship Across the Modern Mediterranean (Princeton University Press, 2022).  Honorable mention for the Hurst Prize goes to Robert Travers, Cornell University, for Empires of Complaints: Mughal Law and the Making of British India, 1765-93 (Cambridge University Press, 2022).  And Charlotte Rosen, “a historian of U.S. prisons and prisoner resistance, with a focus on the politics of prison overcrowding” who received her Ph.D in History from Northwestern University in 2023, won the Graduate Student Paper Prize.H/t: MS.

--Dan Ernst

Monday, May 29, 2023

Lee on the Judicial Power-Admiralty Clause

Thomas H. Lee, Fordham University School of Law, on the The Judicial Power-Admiralty Clause, which is forthcoming in the Heritage Guide to the Constitution, 3d ed.:

This Essay explains the text and original meaning of “all Cases of admiralty and maritime jurisdiction” in Article III of the U.S. Constitution, its background history, its implementation by the First Congress, key judicial precedents interpreting it, and the open question of what Erie doctrine means for the centuries-old historical practice of federal courts applying the maritime law of nations in “all Cases of admiralty and maritime jurisdiction.”

Article III does not define what constitute “all Cases of admiralty and maritime jurisdiction.” Understanding this Article III judicial power as a matter of text and original meaning thus requires examination of relevant English, colonial, and Articles of Confederation history; the Constitutional Convention and state ratification conventions; and subsequent judicial precedents. A backwater today, the admiralty and maritime jurisdiction was among the most vital of the nine categories of Article III judicial power in the early United States because of: (1) the need for uniform rules and adjudication of maritime cases for a new coastal nation dependent on maritime trade among themselves and with Europe and its colonies; (2) the negative experience of divergent state admiralty courts during the War of Independence, which created friction among the states and with foreign states and led to the establishment of the first national court of appeals; and (3) the criticality of port customs duties for early federal government revenues.
--Dan Ernst

Saturday, May 27, 2023

Weekend Roundup

  • The Immigration and Ethnic History Society "is offering two awards, up to $1,500 each, to support graduate students seeking to develop or engage with digital history work connected to migration history and related fields." 
  • The deadline for submissions for the Irish Legal History Society's student-essay competition is Wednesday, May 31 (Law Society Gazette).
  • Medieval Leases and Modern Leases in English Law, a lecture by Dr. Lorren Eldridge, an Early Career Fellow at the University of Edinburgh, presented recently to the Centre for English Legal History at the University of Cambridge, is now available on YouTube.
  • Michael Z. Green, Texas A&M Law, on Dylan C. Penningroth, Race in Contract Law, 170 U. Pa. L. Rev. 1199 (2022) in JOTWELL.
  • Among the recipients of grants to improve public access to historical records from the National Archives is the Chicago Covenants Project, “which draws on volunteers to locate, digitize, and make available racially restrictive covenants in the analog land records from Cook County, through a project sponsored by Virginia Tech University.”
  • The Center for Political Economy at Columbia World Projects has announced the first recipients of its program granting Columbia University faculty “support to engage in interdisciplinary research that promotes new approaches to political economy.”  They include Kellen Funk for “Cities of Bail: Mapping the market of bail bond securities on urban communities” and Richard R. John for “Bad Business: Anti-trust as anti-monopoly.”
  • Charles L. Barzun, University of Virginia School of Law, and John C. P. Goldberg, Harvard Law School, have posted their introduction to the symposium in the Yale Journal of Law and the Humanities honoring the centenary of Benjamin Cardozo’s The Nature of the Judicial Process.
  • David W. Blight reviews James Oakes’s The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Constitution (NYRB).
  • ICYMI:  “What the Constitution Means to” Joanna Grisinger and Kate Masur (Northwestern Now). 

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

Friday, May 26, 2023

Guido’s Religious Egalitarianism - Redburn on "Outside In: The Oral History of Guido Calabresi

This post, by Kate Redburn, is the seventh in a series of posts in which legal historians reflect on Outside In: The Oral History of Guido Calabresi (Oxford University Press), by Norman I. Silber. Redburn is currently an Academic Fellow at Columbia Law School.

Guido Calabresi is famous for his transformative scholarship on torts, his leadership as dean of Yale Law School, and his tenure on the Second Circuit Court of Appeals. But above and beyond those accolades, Guido defines himself as an outsider, “a Catholic Jewish Italian,” (OI, v.1, 104) “an immigrant, and a refugee” (OI, v1, 1). In this post, I want to suggest that the religious dimension of Guido’s outsider experience is reflected in his famous majority opinion in Galloway v. Town of Greece. Normally I would be hesitant to read the personal biography so directly into judicial philosophy, but Outside In encourages it. Readers can’t help but see the conversation between volume one, a narrative oral history of Guido’s childhood through early adulthood, and volume two, a more thematic look at his work as dean and judge. In my own reading, I was struck by how much of Guido’s youth was shaped by the tension between religious inclusion and exclusion, and how Guido connects that experience to his “egalitarian believer’s First Amendment” (TOC).
Guido’s religious heritage made him both sensitive to being an outsider and appreciative of religious pluralism. Both of his parents had roots in the small community of Jews in Italy (his mother converted to Catholicism), marking his family as outsiders even before the rise of fascism drove them across the Atlantic. And as he narrates in volume one of Outside In, the starkest experiences of being an outsider came in his family’s transition to life in the United States.
The social terrain of mid-century New Haven was defined in large part by religious and ethnic differences. An historically Congregationalist town, the New Haven that greeted the Calabresi family was also home to Catholic and Jewish communities where they might have found fellowship. The Calabresis were outsiders even here, however. As migrants from wealthy northern Italian Jewish extraction, they felt little commonality with the southern Italian-American community in Wooster Square, or the Ashkenazim at a local summer camp (OI, v1, Ch. 5). In Guido’s words, “We really did not belong to anyone” (OI, v.1, 101).

Dwight Hall YMCA building at Yale (credit)

New Haven was also Guido’s introduction to the American civic religion – a kind of non-denominational Christian public faith present in his Boy Scout Troop and public schooling (OI, v.1, 102-103). Although he was sensitive to the pressure on Italian Americans to assimilate, he also appreciated the welcoming Protestant community that embraced the young brothers. One anecdote is particularly illuminating – after trying out a Jewish summer camp and a Catholic school, someone suggested to Guido’s parents that they send the boys to a YMCA camp. “The idea of some association that would define itself as ‘Christian’ sounded anti-Semitic,” at first, but they were informed that the YMCA was an inclusive place, “open to everybody” (OI, v.1, 101-102). Guido remembers it fondly.
With the benefit of hindsight I was struck by the parallels between this story and Guido’s opinion in Town of Greece. The case arose in a suburb of Rochester, New York, where town officials invited local clergy to open monthly town meetings with a prayer. Over eight years, every prayer was offered by a Christian leader, with only four exceptions. According to the record on appeal, two-thirds of the prayers had overtly Christian theological references. Two residents objected that the use of Christian prayers in city government violated the Establishment Clause by giving Christianity preferential treatment through “sectarian” religious practice. Town officials responded that they had only invited Christian clergy because there were no places of worship for other faiths within the town boundaries. The Supreme Court’s Establishment Clause precedents turned the Second Circuit’s attention toward the content of the prayers – whether they promoted particular Christian denominations, or instead reflected a non-denominational message.

Town Hall, Town of Greece (credit)

But Guido saw things differently. The important issue was not the content of any particular legislative prayer, but whether the practice “conveyed the view that the town favored or disfavored certain religious beliefs.” (Galloway v. Town of Greece, 681 F.3d 20, 29 (2d Cir. 2012). By selecting (essentially) only Christian prayers, town officials had “affiliated the town with a single creed.” (at 22). The opinion reasoned that government cannot define the religious character of a civic institution to the exclusion of other faiths. Unlike the YMCA of his childhood, whose Christian identity informed its inclusivity, the Town of Greece risked an exclusionary religious affiliation.
Reflecting on the opinion in Outside In, Guido explains: “My compromise was one that said, ‘You can have local establishments, locally defined identities, so long as you do it in a way that also states that your place is open to everybody.’” (OI, v.2, 330). The problem from Guido’s point of view was not religion in public life, but religious exclusivity. If the town opened up the selection process in an inclusive way, “the town can also have plenty of Christian prayer leaders” without any problem. (OI, v.2, 330). His view of the issue celebrates free exercise as a progressive value while emphasizing that religious equality cannot thrive where some faiths are excluded.
The Supreme Court reversed the Second Circuit, reasoning that Town of Greece’s prayer practice was constitutional because it did not coerce non-Christians. Justice Kennedy’s majority opinion asserted that attendees at the meeting would presume that an opening prayer was meant to solemnize the proceedings, not to define the polity as Christian. This kind of coercion analysis has become a lodestar of contemporary Establishment Clause cases, including last term’s Kennedy v. Bremerton School District, which found no coercion where a football coach – who had previously prayed with and given religious speeches to his players – invited both teams to pray with him on the fifty-yard line after games ended.
In Guido’s alternative, “coercion is of course forbidden, but it is not enough” (OI, v.2, 331). He would draw the Establishment Clause line beyond coercion, to prohibit religiously-motivated exclusion. And while this principle derives from caselaw, it also reflects his childhood experience.  He explains that “growing up in New Haven, I never felt coerced, but nevertheless, I did not like it when we recited the Lord’s Prayer, Protestant version, in all these local elementary schools, which were loaded with Irish Catholic kids” (OI, v.2, 331). In other words, his interpretation of the Establishment Clause protects against more than active inducement to a particular religious practice. The appellate decision in Town of Greece, and the foundational school prayer decisions that undergirded it, drew the line instead at government imbuing public institutions or spaces with religious identities that would leave outsiders feeling excluded.

-- Kate Redburn

Thursday, May 25, 2023

Littlewood on Public Nuisance, Tax Avoidance, and George Grey in 19th-C New Zealand

Michael Littlewood, University of Auckland Faculty of Law, has posted three papers on nineteenth-century New Zealand.  The first is a short paper, Public Nuisance in Aotearoa New Zealand in 1849.  It “examines the Constabulary Force Ordinance enacted by the legislature of the New Zealand Province of New Munster in 1849" for its revelations into the everyday life of the time.  A second paper, Nothing New under the Sun: Tax Avoidance in Otago in 1856, reports on a tax on river crossings.  The third Sir George Grey’s Machiavellian Constitutional and Fiscal Reforms in Aotearoa New Zealand, 1845–1876:

Sir George Grey (wiki)
This paper examines the evolution of the New Zealand tax system from 1845 to 1876. The key to this period is the New Zealand Constitution Act 1852 (UK), which was devised by the Governor, Sir George Grey, and which divided the Colony into six provinces. There were hardly any roads, so allowing isolated settler communities a degree of autonomy made obvious sense. Grey’s more sinister aim, however, was to retain control of the purse-strings and thus dictate policy generally. In this he was markedly successful: the Act gave the Governor tight control over the Colony’s two main sources of revenue (land sales and customs duties) and also over the military (which he used to confiscate Maori land). The provinces were free to build and operate roads, wharves, railways, schools, hospitals and so on — but they had to either persuade the Governor to supply funding or pay for them themselves.

Twenty years later the difficulties of communication had been largely solved and the Colonial Government, spectacularly insolvent prior to Grey’s arrival, was financially secure. The provinces had served their purpose and in 1876 they were abolished. Since then, New Zealand has had one of the most centralised systems of government and taxation in the world, and the Maori people are still suffering from the catastrophic loss of their land.
--Dan Ernst