Robertson on Mississippi's constitutional history

Heroes, Rascals, and the Law: Constitutional Encounters in Mississippi History by James L. Robertson came out in 2018 with the University Press of Mississippi. From the publisher:

James L. Robertson focuses on folk encountering their constitutions and laws, in their courthouses and country stores, and in their daily lives, animating otherwise dry and inaccessible parchments. Robertson begins at statehood and continues through war and depression, well into the 1940s. He tells of slaves petitioning for freedom, populist sentiments fueling abnegation of the rule of law, the state’s many schemes for enticing Yankee capital to lift a people from poverty, and its sometimes tragic, always colorful romance with whiskey after the demise of national Prohibition. Each story is sprinkled with fascinating but heretofore unearthed facts and circumstances.

Robertson delves into the prejudices and practices of the times, local landscapes, and daily life and its dependence on our social compact. He offers the unique perspective of a judge, lawyer, scholar, and history buff, each role having tempered the lessons of the others. He focuses on a people, enriching encounters most know little about. Tales of understanding and humanity covering 130 years of heroes, rascals, and ordinary folk—with a bundle of engaging surprises—leave the reader pretty sure there’s nothing quite like Mississippi history told by a sage observer.

A few blurbs:

 "Readers of all political persuasions will be entertained, enlightened, and even dumbfounded by what litigants and courts have gotten themselves into, and only sometimes out of, during 130 years of Mississippi history. The book is a triumph of storytelling." - Leslie H. Southwick

"As a law student at Ole Miss, I was easily bored with the study of constitutional law. However, I did not have the benefit of studying under a gifted storyteller like Jimmy Robertson (he taught me federal civil procedure). This collection is a delightful romp through the highs and lows of Mississippi’s struggle to govern itself." - John Grisham

"Judge Robertson provides a rare conceptual view of complex historical legal issues with constitutional relevance that have occurred in Mississippi. In a skillful, scholarly, readable context, he puts people into history in an interesting storytelling style, making this book quite useful in academia from many perspectives, especially interdisciplinary teaching and learning." - Beverly Wade Hogan

Further information is available here.

--Mitra Sharafi

Kramer on the Origins of Judicial Review

We're not sure when it was originally posted, but we just realized that the website of the Gilder Lehrman Institute of American History has a very engaging lecture on the origins of judicial review by Larry Kramer, president of the William and Flora Hewlett Foundation and the former dean of Stanford Law School.

--Dan Ernst

ASLH Pre-Conference Symposia on Local Government and African Legal History

We would like to alert LHB readers to two "pre-conference" symposia at the November 2019 annual meeting of the American Society for Legal History.  Both will be on Thursday, November 21, immediately before the events usually demarcating the start of the annual meeting.

The first is a Symposium on Legal History and the Persistent Power of State and Local Governments:

On Thursday, November 21, immediately before the main conference begins, the American Society for Legal History (with the support of Stanford Law School and Colgate University) is hosting a half-day symposium on the legal history of state and local governments and the persistence of their power across United States history. The symposium will consist of a range of presentations and discussions. Lunch will be made available to those attending.

The workshop will take place in the Conference Hotel. Anyone registered for the main conference is welcome to register for the symposium, though space is limited to thirty-four attendees. Click here to register for the symposium.

The second is an African Legal History Symposium:

On Thursday, November 21, immediately before the main conference begins, the American Society for Legal History is hosting a symposium on African Legal History. This symposium will feature four panels over the course of the day with twenty-two presentations.

This symposium is open to the public and ASLH members are warmly welcomed to attend. Click here to register for the symposium.

 And if you haven't registered for the annual meeting itself, it's time!

--Dan Ernst

Weekend Roundup

• Katherine Hermes, Central Connecticut State University, will present “Connecticut’s Indigenous People and Their Use of the Law,” on September 25 at the Torrington Historical Society in Torrington, CT.  The Torrington Register Citizen reports that Professor Hermes’s “current work is on the Wongunk (Wangunk), a Native tribe whose lands stretched from Hartford to Saybrook along the Connecticut river, some of whom later joined the Brothertown Movement and moved westward with the Tunxis, or went to live near the Schaghticoke.”  More, and also here. 

• The Supreme Court Historical Society's website on the Court-Packing Plan of 1937 is now online.

• New online from Law and History Review and Cambridge Core: Law, Language and the Printing Press in the Reign of Charles I: Explaining the Printing of the Common Law in English, by Ian Williams. 

• Among this fall's additions to the HLS facultry profiled in Harvard Law Today are Molly Brady and Laura Weinrib.

• The Constitutional Accountability Center seeks applicants for the Douglas T. Kendall Fellowship, “a one-year fellowship for recent law school graduates to join CAC’s litigation team” and help it develop arguments “rooted in the text, history, and values of the whole Constitution.”  H/t: JLG.

• We've received a CFP, with a deadline of September 30, 2019) for the next Research Forum of the European Society of International Law, to take place April 23-24, 2020 at the Department of Law, University of Catania, Italy.  It "targets scholars at an early stage of their careers. Approximately 15-25 paper submissions will be selected. During the Forum, selected speakers will receive comments on their presentations from members of the ESIL Board and invited experts. The Forum will address the topic ‘Solidarity: The Quest for Founding Utopias of International Law’ and it aims to further a dialogue between scholars working within the broad discipline of law in history." More.

• The Italian Society of Law and Economics welcomes submissions of papers, including those on “History of Law and Economic Thought,” for its 15th annual conference to be held in Milan at the University of Milan (La Statale) on December 19-21, 2019.  Deadline: September 15, 2019.

• Over at History and the Law: "Law is more than words. It’s buildings and boxes, filled with people; it’s images and sounds." More here from Paul Halliday on envisioning law's empire in Ceylon.

• ICYMI: Why we set up Legal History Society of Nigeria, by John Austin Unachukwu.  Before Drafting the Bill of Rights, James Madison Argued the Constitution Was Fine Without It, writes Lesley Kennedy on the History Channel.  Couples challenge racial labels to get married in Virginia, in WaPo.

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

Calderón, Fouka & Tabellini on the Great Migration and Civil Rights

Álvaro Calderón, United Nations-Foreign Direct Investment Unit, Vasiliki Fouka, Stanford University, and Marco Tabellini, Harvard Business School, have posted Legislators' Response to Changes in the Electorate: The Great Migration and Civil Rights:

Between 1940 and 1970, during the second Great Migration, more than four million African Americans moved from the South to the North of the United States. In this period, blacks were often excluded from the political process in the South but were eligible to vote in the North. We study if, by changing the composition and the preferences of the northern electorate, the Great Migration increased demand for racial equality and induced legislators to more actively promote civil rights legislation. We predict black inflows by interacting historical settlements of southern born blacks across northern counties with the differential rate of black emigration from different southern states after 1940. We find that black in-migration increased the Democratic vote share and encouraged grass-roots activism. In turn, Congress members representing areas more exposed to black inflows became increasingly supportive of civil rights. They were not only more likely to vote in favor of pro-civil rights bills, but also more willing to take direct actions, such as signing discharge petitions, to promote racial equality. Investigating the mechanisms, we document that both “between” and “within” party changes contributed to the shift in the position of northern legislators on civil rights. Taken together, our findings suggest that the Great Migration played an important role in the development and success of the civil rights movement.

--Dan Ernst

Krishnan on Bhopal in the Federal Courts

Jayanth K. Krishnan, Indiana University Maurer School of Law, has posted Bhopal in the Federal Courts: How Indian Victims Failed to Get Justice in the United States, which is forthcoming in the  Rutgers University Law Review (2020):

35 years ago, the city of Bhopal, India, witnessed a horrific gas leak that originated from a facility operated by Union Carbide India Limited (UCIL), which had as its parent company, the American-based Union Carbide Corporation (UCC). Thousands were killed, with many more injured. 145 cases were filed throughout various U.S. federal district courts on behalf of the victims asserting that UCIL and UCC were liable. Eventually, these cases were consolidated through the Multi-District Litigation (MDL) process and placed onto the docket of federal Judge John Keenan. In 1986, Judge Keenan issued his famous forum non conveniens opinion, which stated that the Indian courts – and not the U.S. federal judiciary – were the proper venue for hearing these claims.

Between 1986 and 1993, Judge Keenan dismissed all of the other MDL-Bhopal cases he heard. Then, between 2000 and 2014 a set of distinct, non-MDL Bhopal matters appeared in front of Judge Keenan. In all of these too, he issued dismissals. Indeed, the original MDL-process – coupled with the existence of internal federal courthouse rules – created a type of path dependence, allowing for all of the Bhopal-Union Carbide matters to come before Judge Keenan.

The thesis here is that following the MDL-consolidation, Judge Keenan became only more deeply wedded to the position he staked-out back in 1986. Subsequent, non-MDL Bhopal plaintiffs, seeking an independent assessment of their claims, found themselves tethered to the initial MDL-decision from years past. The broader lesson – beyond just this case study – is that in order for deserving plaintiffs to receive a fresh review in federal court, there needs to be an alternative imagination for how to deal with later cases that, although seemingly connected, are nevertheless distinct from the earlier MDL-process.

 --Dan Ernst

Roberts on Emergency and Rule of Law in the British Empire

Christopher M. Roberts, Chinese University of Hong Kong Faculty of Law, has posted From the State of Emergency to the Rule of Law: The Evolution of Repressive Legality in the Nineteenth Century British Empire, which is forthcoming in Chicago Journal of International Law 20 (2019):

Why are contemporary laws and techniques that state authorities use to crack down on political dissent so similar across countries? This Article argues that at least part of the answer may be found by turning to colonial history. The Article has two Parts. In the first Part, the Article explores the manner in which, over the course of the nineteenth century, the British deployed various different legal and institutional approaches in response to an Irish polity that consistently refused to submit to British authority. In the second Part, the Article examines the manner in which the approaches developed in Ireland were exported to other parts of the empire, in particular to India, South Africa, and Nigeria, over the course of the late nineteenth and early twentieth centuries. Along the way, the Article considers the big picture significance of such developments relative to the nature of the rule of law. While, over time, the deployment of increasingly legalized and formalized approaches may have played a positive role insofar as they served to soften and displace the potential for more direct violence, enabled by declarations of martial law, such developments came at the cost of the incorporation of much of the repressive approach employed in contexts of emergency rule into everyday legality. Far from conflicting with the rule of law, this development represented the form in which the expansion of the rule of law primarily occurred — serving to entrench and legitimize the repressive practices in question.

--Dan Ernst

Thoughts from the Trenches: How to Make the Longue Durée Manageable

Thoughts from the Trenches: How to Make the Longue Durée Manageable

In 1967, the Lord Chamberlain’s Office refused to license German playwright Rolf Hochhuth’s new play, Soldiers: An Obituary for Geneva, for London’s National Theatre. The play, which decried strategic bombing during WWII, also held Winston Churchill responsible for the death of Polish General Sikorski. Sikorski had led the Polish government in exile and died in a plane accident off of British Gibraltar in 1943. Citing concerns for the Churchill family (Churchill died in 1965), the LCO first hedged on offering the license, then refused it. It would be one of the LCO’s last decisions before the end of theatre censorship in Britain the following year.

The play became the subject of intense external scrutiny for the better part of two years; libel suits stemming from the play extended the debate into the 1970s. The controversy pitted a self-professed new generation of Britons against older board members, a number of whom had not only fought in the war but were personal friends of the Churchill family. Was the play a libel on Churchill’s memory? On the nation and those involved in the war effort? Was personal reputation sacrosanct enough to justify censorship? Whose account of history was even right in the first place? And whose story was this to tell?    

Then Director of the National Theatre, Sir Lawrence Olivier, eventually backed away from the play, though the National Theatre’s Literary Director, Kenneth Tynan, continued as Hochhuth’s champion. Tynan eventually staged the play at another theatre in December 1968. The play ended up being performed in London for only a few months. The Churchill family never sued for libel, but others involved in the account of the crash did. As Tynan’s biographer notes: focused on the end of theatre censorship, Tynan had not taken into account a simultaneous strengthening of the laws of defamation [1].

When heading to London earlier this summer, there was but one single mention of Soldiers in my list of archives to see at the British Library. I knew there was some issue of libel involving Churchill, but nothing more. The case does not feature in accounts of defamation law. Indeed, the Churchill family never sued and, as I have learned since, the suits that were filed did little to influence case law. Yet, the play has quickly become a central example for my project. Beyond its intrinsic narrative interest, the Soldiers controversy enables me to tackle the interrelated threads of a very big project whose scope requires taming. Finding the case was thus something of a relief; but it was a studied find, not just a lucky one. I’ll try to explain what I mean so as to offer some suggestions about managing what can seem like ever-proliferating narrative threads when undertaking a new topic.

*          *          *

For my dissertation and first book, I read every item with “refugee” in the title I could find in the British Library catalogue and in the National Archives at Kew. From there, I worked to establish whom Britons identified as refugees over time as well as key turning points in the use of the category. Zeroing in on these moments, I extended my research on these cases in other archival and periodical sources. The research for Beyond Sticks and Stones has tested this method to the extreme. I could not hope to read everything in the British Library on reputation. How would I even find those pieces? The topic is simply too large and nebulous. What nineteenth-century novel does not hinge on matters of reputation or attempts to know character? All court cases involve “libels” – or charges. “Defamation” itself regularly refers to attacks on personal character, and seditious, blasphemous, and obscene libel. So, what to do…?  For me, the answer lies in sampling primary material early and, through those early samples, establishing initial patterns and breaking the project into more manageable pieces.

Once I had my initial research question -- What shaped the quasi-right to personal reputation? -- I began to build my bibliography and to read the secondary literature on defamation and reputation. While this is critical, to be sure, secondary reading cannot be done in isolation from primary material when defining a topic of one’s own. I start with a patch of evidence that I hope will help to establish the parameters of my subject, seeing how contemporary actors wrote about it, not just scholars in the years since.

1.     Sampling. Unable to read everything on reputation, I began with a sample from the Times of London. Over several months, I read all editorials and correspondence with the keywords “defamation,” “slander,” “libel,” “calumny,” and “reputation” between 1785, when the newspaper began, and the present. This task familiarized me with the major controversies over reputation over the past two hundred and fifty years, when the defense of reputation became a topic worthy not just of law reports, but of mainstream public commentary. I could derive from this a working timeline as well as basic patterns of debate.    

2.     The Fields of Scholarship. There are histories of the defense of reputation, but they are piecemeal. In British history, one finds key elements in accounts of privacy, celebrity, scandal, and of the media more generally. Even in the few legal histories of defamation, authors have tended to separate out different elements. We have books on obscene libel and on blasphemy, as well as a large literature that examines seditious libel and radical reform. Within the few texts on personal defamation, chapters tend to take aspects like fair comment, slander, and damages to write about their evolution separately. Sampling primary material helps, I find, to see better which seemingly separate swatches of scholarship are actually part of the same broader public conversation. This work itself ramifies, of course. I did not know when I first read that subset of Times commentary in 2016 that by 2019 I would need to track down literature on the Lord Chamberlain’s Office.

3.     Making Selections, Establishing Core Points. The task of the historian is not that of the chronicler and it shouldn’t be, even if the list of patterns and key moments were well-behaved enough that they could be included in a single volume. We seek explanations of change over time. I only half tease my students that they need to ban the words “also,” “additionally,” “furthermore” and so on – the connectors that so often stand in for stepping back to make a coherent argument. To change history by narrative accretion into history as explanation, the task is to organize chapters around the core episodes that move the argument along thematically and chronologically. This takes time and, for me, usually involves writing through several cases at a time, brainstorming comparisons along the way to help forge a compelling argument from a list of cases, points, or threads. I still remember vividly the day I first read about the Fugitive Slave Circulars for my dissertation in the summer of 2005. The contest over these Circulars crystallized issues of right, intervention, humanitarian need, and the very nature of life in British asylum and helped furnish a key turning point in my account of modern refuge. I had a hunch that I could use the material as a tool for thinking through the project as a whole. Indeed, I used it as one of my earliest conference papers and, later, for fellowships and the job market. It is still early, but the 1967-1968 question of whether to stage Soldiers feels like it has similar promise. 

Notes:

[1] Dominic Shellard, Kenneth Tynan: A Life (New Haven: Yale University Press, 2003), p. 314. 

--Caroline Shaw

CFP: The 15th and 19th Amendments

[We have the following announcement.]

Massachusetts Historical Society.  Call for Papers for the 2020 Conrad E. Wright Research Conference.  “Shall Not Be Denied”: The 15th and 19th Amendments at the Sesquicentennial and Centennial of their Ratifications, October 16-17, 2020.  Deadline: November 1, 2019.

The year 2020 marks the anniversaries of two critical amendments to the United States Constitution. Spaced fifty years apart, the Fifteenth and Nineteenth Amendments, ratified in 1870 and 1920, respectively, prohibited the use of race or sex to deny American citizens the franchise. However, the amendments did not prevent states from adopting other methods of discrimination. Viewed as the product of two different movements—abolitionism and the Civil War on the one hand and the Progressive campaigns and the First World War on the other—these two periods and amendments are not often considered together. This conference revisits the long journey to secure voting rights for African Americans and women in United States history. It considers the legal precedents and hurdles that each amendment faced, the meaning and uneven outcomes of each, the social context that allowed for ultimate ratification, the role of key individuals and groups in these respective contexts, and how each amendment has been remembered over time.

This conference invites scholars from various disciplines to discuss common themes and challenges surrounding the amendments and papers can cover any topic relating to them. We welcome submissions from all historical, political science, and legal fields.

A keynote panel and reception will take place on Friday, 16 October. The panel features Profs. Alison M. Parker (University of Delaware) and Lisa Tetrault (Carnegie Mellon University) and will be moderated by Prof. Alex Keyssar (Harvard). The full conference day will take place on Saturday, 17 October.

Interested parties are encouraged to submit either individual paper presentations or full panels (with or without commenters) by November 1, 2019. Application materials must include a paper description and CV for individual submissions. Full panel proposals must include paper descriptions and individual CVs along with a description of the panel itself. Paper proposals should not exceed one page and accompanying CVs should not exceed ten pages in length. Please submit applications materials and/or questions to research@masshist.org.

[--Dan Ernst.  H/t: LES]

University of Michigan Legal History Workshop: Fall 2019

The University of Michigan Legal History Workshop has announced its Fall 2019 lineup:

SEPTEMBER 10: Julian Davis Mortenson, University of Michigan Law School, “The Executive Power Clause of the U.S. Constitution.”  

SEPTEMBER 17: Sarah Barringer Gordon, University of Pennsylvania Law School, “Staying in Place: The Colored Methodist Episcopal Church and Church Property after the Civil War”  

SEPTEMBER 24: Emily Prifogle, University of Michigan Law School, “Winks, Whispers, and Prosecutorial Discretion in Rural Iowa, 1925-1928”

OCTOBER 1: Martha S. Jones, Johns Hopkins University History Department, “The How of Why We Remember Roger Brooke Taney”

OCTOBER 8: Stephen W. Sawyer, American University of Paris, “Was There a Democratic Tradition in Revolutionary France?”  

OCTOBER 22: Katrina Jagodinsky, University of Nebraska History Department, “Habeas Corpus & Liberty in the American West”

OCTOBER 29: Kate Masur, Northwestern University History Department, “A House Divided: Free African Americans, Migration, and Citizenship (1847–1859)”  

NOVEMBER 5: Sam Erman, USC School of Law, “Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire”  

NOVEMBER 12: Sarah Seo, University of Iowa Law School, “Policing the Open Road: How Cars Transformed American Freedom”  

NOVEMBER 19: Kate Andrias, University of Michigan Law School, “An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act.”  

NOVEMBER 26: Daniel Crane, University of Michigan Law School, “Fascism and Monopoly

-- Karen Tani

Roosevelt and Khan on Marbury, Lochner, and McCulloch

Kermit Roosevelt, University of Pennsylvania Law School, and Heath Khan, a 2019 Penn Law graduate, have posted McCulloch v. Marbury, forthcoming in Constitutional Commentary 34 (2019): 263-311:

Marshall, CJ, Swearing in Andrew Jackson (LC)

This article builds on recent scholarship about the origins and creation of “our Marbury” — the contemporary understanding of the case and its significance — to argue that Marbury is in fact wholly unsuited for the role it plays in Supreme Court rhetoric and academic instruction. While Marbury is generally understood to support aggressive judicial review, or actual invalidation of a government act, it offers no guidance at all for how judicial review should be employed in particular cases — in particular, whether review should be aggressive or deferential. The actual opinion in Marbury makes no effort to justify its lack of deference to the First Congress, probably because the opinion is a bad-faith exercise in judicial creativity motivated by partisan concerns. Moreover, Marbury-as-symbol has its origins in attempts to support the now-discredited Lochner era of aggressive judicial review. Ironically, while Marbury's origins are tied to Lochner, and Marbury itself is as partisan as the Court ever gets, the two now operate as symbolic opposites. Linking a decision to Marbury is a way to legitimize aggressive judicial review while linking it to Lochner it is a way to delegitimize it. Neither of these symbols achieves more than rhetorical effect. Modern invocations of Lochner tend to be as devoid of content as invocations of Marbury: Lochner-as-symbol also tells us nothing about when judicial review should be aggressive and when it should be deferential.

But there is a decision that does: McCulloch v. Maryland. McCulloch, like Marbury, is an early opinion by Chief Justice Marshall that is included in every constitutional law casebook. Unlike Marbury, McCulloch has a discussion of the proper exercise of judicial review. While the factors it sets forth as supporting deferential or aggressive review have not all won a place in Supreme Court jurisprudence, many of them have, and in fact the McCulloch theory can do most of the work that Marbury is supposed to do. In particular, it can support the exercise of aggressive judicial review in most of the Warren Court’s decisions—which, following the failed attempt to support Lochner, was Marbury’s main historical role. And unlike Marbury, McCulloch is not a partisan result-oriented decision. The article concludes that McCulloch should replace Marbury as the leading case about judicial review.

--Dan Ernst

Legal Transfer in the Common Law World at Max Planck

We have word of the latest in the Common Law Research Seminar Series of the Max Planck Institute for European Legal History, entitled Legal Transfer in the Common Law World.  The seminar usually meets from 2:15-3:15 on selected Tuesdays save for November 28, a Thursday.

As the British Empire expanded, English law was being introduced in very different parts of the world. Rules, principles and institutions from England were brought into force in regions and societies as diverse as Australia, Ghana, India, Jamaica and Singapore. In this Special Research Field, we enquire how this process unfolded in various places.

In many cases English law encountered local or regional traditions, both legal and non-legal. To what extent did these encounters differ from each other? Was there ever anything resembling the frequently invoked ‘unity of the common law’? Or did the law of England acquire a distinctive flavour in each territory, depending on the geography, the climate and the prevailing religious, moral and economic views of the inhabitants? And, finally, can we learn anything from the experience of English law for the broader debate on legal ‘transplants’ and, even more generally, legal development as such?

Initially, this research field focuses primarily on the following regions: India, South East Asia and the Caribbean. Specific case studies turn on different areas of law, including constitutional law, the law of contract, land law and intellectual property. Equally important are the modes of conflict management in state courts and beyond.

Here is the schedule:

October 14      Yair Sagy (University of Haifa), Law Reporting in Mandatory Palestine and the British Empire: Methodology, Perspective, and Narrative

November 4    Zeynep Yazici-Caglar (Max Planck Institute for European Legal History), Legal Education as a Tool of Professionalization in England (1850-1900)

November 11  Delores Freda (University of Naples), Across Boundaries: the English Justices of the Peace on the Continent

November 28 (Thursday)  Hunter Harris (University of Michigan), The Use of Bills of Exchange in 18th Century Glasgow

December 2     Henry Jones (Durham University), The Meaning of Territory in British Empire Border Disputes

December 16   Victoria Barnes and Niels Pepels (Max Planck Institute for European Legal History), Transferring offer, acceptance and revocation to British Guiana

January 13       Matilde Cazzola (University of Bologna), Master and Servant Regulations and Labour Laws in the Post-Emancipation British West Indies

January 27       Mark Comos (Max Planck Institute for Comparative Public and International Law), American States of Nature: The Origins of Independence, 1761-1775

February 10     Matthew Waites (University of Glasgow), Same-Sex Discrimination in the Commonwealth

--Dan Ernst

Leeming on Fusion in NSW

Mark Leeming, Judge of Appeal, Supreme Court of New South Wales and Challis Lecturer in Equity at the University of Sydney Law School, has posted Fusion - Fission - Fusion: Pre-Judicature Equity Jurisdiction in New South Wales 1824-1972, which appears in the forthcoming Equity and Law: Fusion and Fission (Cambridge University Press, 2019), 118-143:

The very idea of a "fusion fallacy" and the central importance of the effect of the Judicature legislation upon common law and equity is associated with New South Wales. Yet the Supreme Court of New South Wales was constituted in 1824 as a single court with broad jurisdiction at common law and in equity. One hundred and fifty years later, legislation was required to fuse its separate common law and equity "sides". How did that fission come about? This chapter, largely based on unpublished primary records, seeks to explain how that occurred.

--Dan Ernst

A Prize on CT Legal History

[Posted on behalf of the Connecticut Supreme Court Historical Society.  Dan Ernst]

 Beginning in Spring 2020, the Connecticut Supreme Court Historical Society will institute an annual Christopher Collier Prize with a $1,000 award to historians, legal scholars, political scientists or others who have contributed an important work or works to advance the study of American legal and constitutional history that has Connecticut connections. The prize is named in honor of former Connecticut State Historian, University of Connecticut history professor, Connecticut Supreme Court Historical Society vice president and author Christopher Collier, whose research, writing and editing over a long career broadened knowledge of the founding of American constitutional government, Connecticut's role in the creation of the U.S. constitutional system, and the development of Connecticut's own constitutional and legal order. The prize will recognize and encourage scholars whose publications, teaching and/or public exhibits have furthered American and Connecticut legal and constitutional history in Professor Collier's prolific and innovative spirit. The society will consider any academic or independent historians, political scientists, law professors, judges, lawyers, students and others whose work (including work in progress) may be worthy of this prize.

For the 2020 award, the society invites nominations to be submitted to the society's Collier Prize Committee by December 1, 2019. Nominations, which should be no more than 1,000 words, should identify the nominee's current employment (if applicable) or background, describe the work that he or she is presently working on and/or has recently contributed to the study of American legal-constitutional history and its Connecticut connections, and briefly explain why the nominee deserves the prize. Self-nominations are permitted and should include curriculum vitae or a resume covering the self-nominee's work. The Collier Prize Committee may, in its discretion, request additional information as part of its evaluation process. The society will award the prize and its $1,000 stipend at its spring 2020 annual meeting, which the society expects that the recipient will attend.

The Collier Prize Committee prefers that nominations be submitted electronically to the Collier Prize Committee c/o Attorney Jeffrey J. White, jwhite@rc.com, Robinson & Cole LLP, 280 Trumbull Street, Hartford Connecticut 06103 no later than December 1, 2019. Nominations will be accepted by mail if electronic transmittal is not practical.

Adams and Toy-Cronin on Dunedin's Courthouse and Bar

Jane Adams and Bridgette Toy-Cronin, University of Otago, have posted Nurturing Tradition in Dunedin: Courthouses, Lawyers, and Justice, which appeared in the Otago Law Review (2018):

Opening of the Law Courts (1902) (credit)

Using the reopening of the Dunedin Law Courts as a case study, this article considers the role of courthouses in the life of the city, the legal profession, and in Aotearoa New Zealand's twenty first century justice system. It uses an examination of primary historical sources and a close reading of the speeches given at the ceremonial sitting to trace the history of the enthusiasm for saving the building and explores the meaning of the building to the legal and wider community. This is timely as we look to possible online futures where physical courthouses spaces might have a much reduced role. The final part of the article considers the ceremonies and the courthouse in light of the relationship between Maori and Pakeha, and the changing nature of justice policy with its emphasis on efficiency and accessibility.

 --Dan Ernst

AJLH 59:3

American Journal of Legal History 59:3 (September 2019) is out.  Here’s the TOC:

‘To Stay the Murderer’s Hand and the Rapist’s Passions, and for the Safety and Security of Civil Society’: The Emergence of Racial Disparities in Capital Punishment in Jim Crow New Orleans
Jeffrey S Adler

American Treatise Writers and the Nineteenth-Century Debate on Marriage with a Deceased Wife’s Sister in Transatlantic Context   
Angela Fernandez
 
The Development of the ‘Modern’ Criminal Law of Evidence in English Law and in France, Germany and the Netherlands: 1750–1900   
R G Bloemberg

Book Reviews

Martha S. Jones, Birthright Citizens: A History of Race and Rights in Antebellum America
Kyle G Volk

Whitman, James Q. Hitler’s American Model: The United States and the Making of Nazi Race Law   
Joseph A Ross

Elizabeth Stordeur Pryor, Colored Travelers: Mobility and the Fight for Citizenship before the Civil War   
Kristin O’Brassill-Kulfan

--Dan Ernst

Batlan Named Co-Editor in Chief of the American Journal of Legal History

We have the following (very exciting) announcement from the American Journal of Legal History and Oxford University Press:

[The journal and Press] are delighted to announce the appointment of Prof. Felice Batlan as Co-Editor in Chief. She joins Stefan Vogenauer, Director at the Max Plank Institute for European Legal History in Frankfurt, who has been the Co-Editor in Chief since 2016.

Prof Batlan is a Professor of Law at IIT- Chicago-Kent College of Law in Chicago, where she specializes in 19th and 20th century U.S. legal history and women in the legal profession. Her book Women and Justice for the Poor: A History of Legal Aid, 1863-1945 won the Hurst Prize for the best book in legal history in 2016. Prof. Batlan’s work has appeared in numerous law reviews and history journals, and she recently completed a five-year term as book review editor for the Americas for Law and History Review.

Prof. Batlan commented that her knowledge of U.S. legal history will blend perfectly with Prof. Vogenauer’s expertise in European legal history and comparative law. Both intend to continue to maintain the high quality of scholarship published by AJLH and ensure that the Journal publishes works by younger scholars in emerging fields, as well as works that are international, comparative, and transnational. Prof. Batlan stated, “I am thrilled for this opportunity to help shape the field of legal history. I have an expansive understanding of what legal history encompasses and how much we still need to learn about how law has shaped ordinary people’s lives as well about how people who have often been on the margins shaped law through on the ground action.” Prof. Batlan is replacing Alfred Brophy, who has stepped down due to ill health, and whose vision, wisdom, and energy relaunched the journal in 2016. 

The AJLH was first published in 1957 and was the first English-language periodical in the field. 

The full press release can be found here.

-- Karen Tani

Boston College Law School Legal History Roundtable

[We have the following announcement from our friends at Boston College.]

In the fall of 2019, the Boston College Law School Legal History Roundtable begins its 18th successful year. The Roundtable draws on Boston College Law School’s and Boston College’s strength and interest in legal history. It offers an opportunity for Boston College faculty and faculty from other area institutions, students, and members of the Boston College community to meet and discuss a pre-circulated paper in legal history. Meeting several times each semester, the Roundtable seeks to promote an informal, collegial atmosphere of informed discussion.

For the 2019-2020 academic year, Professor Mary Sarah Bilder, Professor Daniel R. Coquillette, Professor Frank Herrmann and Professor Daniel Farbman are conveners.

The Roundtable usually meets several times during the semester in the afternoon at 4:30 pm in the Library Conference Room of the Boston College Law School Library. Refreshments are available beginning at 4:15 pm, unless otherwise noted.

Papers will be available when appropriate before each presentation.

Thursday, September 19 (lunch talk)
Martha Jones, Society of Black Alumni Presidential Professor and Professor of History, Johns Hopkins University: Lunchtime, co-sponsored with the Clough Center for the Study of Constitutional Democracy

Professor Jones will give a public book talk for a Constitution Day Lecture, discussing her prize-winning book.

Before the Civil War, colonization schemes and black laws threatened to deport former slaves born in the United States. Birthright Citizens: A History of Race and Rights in Antebellum America recovers the story of how African American activists remade national belonging through battles in legislatures, conventions, and courthouses. They faced formidable opposition, most notoriously from the US Supreme Court decision in Dred Scott. Still, Martha S. Jones explains, no single case defined their status. Former slaves studied law, secured allies, and conducted themselves like citizens, establishing their status through local, everyday claims. All along they argued that birth guaranteed their rights. With fresh archival sources and an ambitious reframing of constitutional law-making before the Civil War, Jones shows how the Fourteenth Amendment constitutionalized the birthright principle, and black Americans’ aspirations were realized. Birthright Citizens tells how African American activists radically transformed the terms of citizenship for all Americans.

Tuesday, October 24
Roundtable with Bryan Garner, Law Prose, Inc., co-sponsored with Law Library in honor of its upcoming Law Dictionary exhibit, "Dictionaries and the Law"

At his presentation, Garner will discuss the history of legal lexicography and his own work on Black's Law Dictionary and other law-related dictionaries.

Bryan A. Garner is a noted speaker, writer, and consultant regarding legal writing and drafting, and regularly teaches Advanced Legal Writing at the Southern Methodist University’s Dedman School of Law. Garner is editor in chief of Black’s Law Dictionary among many other leading works on legal style, and he is president of LawProse, Inc., the foremost provider of CLE training in legal writing, editing, and drafting.

Thursday, January 30
Roundtable with Lael Weinberger, Harvard Law School, Berger-Howe Legal History Fellow 2019-20, "Judicializing International Relations: Internationalism, Courts, and American Lawyers in the Progressive Era"

This paper, part of Weinberger's project on internationalism in the legal profession, reconstructs an unfamiliar period at the start of the twentieth century when American lawyers across political divides tended to believe that world courts and robust international law were the future of international relations—even suggesting that law would replace diplomacy and that international litigation would replace war. From a modern vantage point the “legal internationalism” of the period looks unrealistic or even utopian. But its very unfamiliarity provides an ideal starting point for examining the intellectual, political, and legal conditions of possibility for legal internationalism.

Lael Weinberger is the Raoul Berger-Mark DeWolfe Howe Legal History Fellow at Harvard Law School. He is a PhD candidate in the Department of History at the University of Chicago, where he studies American legal history. Lael earned a JD with high honors from the University of Chicago Law School and clerked for Judge Frank Easterbrook on the Seventh Circuit Court of Appeals and for Chief Justice Daniel Eismann on the Idaho Supreme Court. Lael is currently writing a dissertation on American lawyers’ ideas about international law, world order, and human rights in the first half of the twentieth century. His research interests include constitutional law, international law, civil procedure, law and religion, and the legal profession.

Thursday, February 27
Roundable with Professor Erin Braatz, Suffolk Law School, "Civilization & Sovereignty: The Birth of the “Native” Prison"

This paper describes the rise of so-called “native” prisons on the Gold Coast of Africa in the mid-nineteenth century (present-day Ghana) and argues that these prisons arose out of jurisdictional struggles between British colonial officials and indigenous leaders on the coast.  It then situates these struggles within the history of the global spread of the prison during the nineteenth century, contending that the prison played a central role in defining civilization and articulating changing notions of sovereignty.

Erin Braatz is an assistant professor of law at Suffolk University Law School.  She received a J.D. and Ph.D. in Law and Society from New York University where she also held a Golieb Fellowship in Legal History.  Prior to joining Suffolk’s faculty, she served as a law clerk to the Honorable Richard Stearns of the District of Massachusetts and the Honorable Juan Torruella of the United States Court of Appeals for the First Circuit.  Her research examines the history of criminal law and punishment in British West Africa in the nineteenth and twentieth centuries as well as the history of the Eighth Amendment.

Thursday, April 2
Roundtable with Kunal Parker, Professor and Dean's Distinguished Scholar, University of Miami Law School, "The Turn to Process: Law, Politics, and Economics in America, 1900 - 1970"

Over the course of the first three quarters of the twentieth century, American legal, political, and economic thinkers increasingly turned away from thinking in terms of ends to thinking in terms of means. Why did this happen? What did this transformation look like? Parker is working on a book-length study of the turn towards processes, means, methods, techniques, procedures, and protocols in twentieth-century American legal, political, and economic thought that looks at the connections and differences across these three fields to help make sense of this shift.

Kunal M. Parker is a Professor of Law and Dean's Distinguished Scholar at the University of Miami School of Law. He is the author of Common Law, History, and Democracy in America, 1790 - 1900: Legal Thought Before Modernism (Cambridge University Press, 2011) and Making Foreigners: Immigration and Citizenship Law in America, 1600 - 2000 (Cambridge University Press, 2015).