Tuesday, September 18, 2018

HLS Student Organizations Exhibited

[We have the following announcement of an exhibit of Historical and Special Collections at the Harvard Law School Library.]

Spicy Reforms and Crystallizing Clap Trap: Student Organizations at Harvard Law School

What do dining halls, women’s showers at Hemenway Gymnasium, and shared course outlines have in common? These are all resources available at Harvard Law School today that were put into place by students of yesterday. HLS’s Historical & Special Collections’ new exhibit takes a look at how students and their ever-increasing number of law clubs, social clubs, and affinity groups have contributed to HLS culture over time. Following an archival collecting project undertaken by HSC in 2016-2018, the exhibit also addresses how archivists here at HLS and abroad are coordinating efforts to preserve today’s student histories. Curated by HSC staff Jessica Farrell and Jane Kelly, it will be on view in the Caspersen Room through January 2019 with online addenda [here] . Please stop by and visit if you are in the area!

The Supreme Court and World War I

The Supreme Court Historical Society has announced its Leon Silverman Lecture Series for 2018, The Supreme Court and World War I: In Observation of the Centennial of World War I.  The four addresses are:

October 10, 2018 - World War I and the Court in Context, presented by Melvin Urofsky

October 17, 2018 - Charles Evans Hughes and the Constitutional War, presented by Matthew Waxman

October 23, 2018 - Selective Draft Law Cases, presented by Christopher Capozzola

December 6, 2018 - Free Speech Cases of World War I, presented by Laura Weinrib

Special Issue: Brazilian Civil Code of 1916

We have learned of the publication last year of a special issue of the journal of the Instituto Histórico e Geográfico Brasileiro commemorating the centennial of the first Brazilian Civil Code (1916).  Legal historians from Brazilian, German, Argentinian, Austrian and Peruvian universities contributed to the special issue, which was organized by Professor Airton Seelaender, Universidade de Brasília.  Essays discuss the creation of the code (including contributions from Miloš Vec and Jan Dirk Harke on its debt to pandectistics), as well as the code’s impact on Brazilian law, politics and economy.  H/t: Patrícia Soster Bortolotto

Monday, September 17, 2018

Writing History Through Children

We are grateful to Joanna Grisinger, Northwestern University, for bringing to our attention the following panel at Writing History Through Children, a conference at Northwestern to be held on October 5-6:

Panel 3: Innocence and the Law,  Friday, October 5, 3:30-5:15 p.m

Chair:  Susan Pearson, Northwestern

Holly Brewer, University of Maryland: "The crucial role of children in the complex debates over slavery in England’s seventeenth century empire"

Michael Grossberg, Indiana University: “Keeping it From the Kids: Censorship and Childhood in Modern America”

Bianca Premo, Florida International University: “As a Complement to the Clinical History: Doctors, Photos, Early Puberty, and Children in Mid 20th- Century Peru and Beyond”

Comment:  Leslie Harris, Northwestern

Administrative Constitutionalism at Penn Law

Our friends at Penn Law, including especially Sophia Z. Lee, have organized an excellent symposium, The History, Theory, and Practice of Administrative Constitutionalism, to be held at the law school on October 19-20, 2018.  Here's its premise:
The United States today faces contentious debates over the constitutionality of federal administrative action. These debates gained steam during the Obama presidency, as congressional gridlock led the President to rely heavily on administrative agencies to advance an ambitious and controversial policy agenda. Across the political spectrum lawyers and politicians charged these agencies with violating individual constitutional rights (such as religious freedom and procedural due process) and structural constitutional constraints (such as the President’s constitutional obligation to faithfully execute the laws). The Trump White House has followed in its predecessor’s footsteps, leading to similar challenges to his administration’s changes to immigration, environmental, educational, and anti-discrimination policy.

Lurking behind these legal arguments is a bi-partisan anxiety about the constitutional status of the administrative state as a whole: the tangled web of agencies responsible for the vast majority of what the federal government does on a day-to-day basis. Despite their enormous power, federal agencies are barely mentioned in the Constitution’s text. Yet they play a central role in the everyday interpretation and implementation of constitutional law. For instance, it was administrators who first struck the balance between the religious rights of employers and the statutory rights to access cost-free contraceptives of their female employees. It is administrators as well who are crafting the Trump administration’s broad interpretations of religious liberty. As these examples suggest, it will often fall to administrative officials far from the public eye to resolve constitutional conflicts caused by a particular law, or to push the boundaries of the law in a constitutionally innovative direction.

In the last ten years, a field of scholarship has developed that sheds new historical and theoretical light on these interlocking issues of administration and constitutional law. Gathered under the moniker administrative constitutionalism, these scholars study the constitutional roots of the administrative state, the role that its agencies play in interpreting, implementing, and transforming constitutional law, and the tools that presidents, legislators, judges, and everyday citizens use to control the administrative state’s constitutional creativity.

This symposium is the first to tackle the timely topic of administrative constitutionalism. Bringing together leading scholars to analyze and debate constitutionalism in and of the administrative state, it will generate cutting edge work on the history, theory, and practice of administrative constitutionalism.

Bhandar on colonialism and property

Brenna Bhandar, School of Oriental and African Studies, has published Colonial Lives of Property: Law, Land, and Racial Regimes of Ownership with Duke University Press. From the publisher: 
In Colonial Lives of Property Brenna Bhandar examines how modern property law contributes to the formation of racial subjects in settler colonies and to the development of racial capitalism. Examining both historical cases and ongoing processes of settler colonialism in Canada, Australia, and Israel and Palestine, Bhandar shows how the colonial appropriation of indigenous lands depends upon ideologies of European racial superiority as well as upon legal narratives that equate civilized life with English concepts of property. In this way, property law legitimates and rationalizes settler colonial practices while it racializes those deemed unfit to own property. The solution to these enduring racial and economic inequities, Bhandar demonstrates, requires developing a new political imaginary of property in which freedom is connected to shared practices of use and community rather than individual possession.
Praise for the book: 

"I am obsessed with the force and eloquence with which [Bhandar] analyzes the birth of private property and its ongoing devastating effects. This book is going to be precious to me and many other people, too."  -Jordy Rosenberg

“Brenna Bhandar's enthralling book peels the veneer of property law from that which lies concealed beneath—the multiplicitous structures of dominance that define our contemporary settler-colonial world, all the way from Parramatta to Palestine. Here is a trenchant reassertion of the capacities of Marxist analysis to plumb dispossessions both historic and current, and to expose the entwined regimes of ownership and of racial hegemony that sustain them.” -Christopher Tomlins

“In this original study, Brenna Bhandar analyzes the constitutive role of colonialism in the development of modern property law and the modern legal subject. Bhandar's sophisticated comparative research on the political-economic imagination and legal infrastructure of settler colonialism is completely fascinating. And her stunning elaboration of what she names 'racial regimes of ownership' is utterly brilliant. A timely and essential book that will fundamentally change the way we think about race, property, and subjectivity.”  -Avery F. Gordon

Further information is available here.  

Sunday, September 16, 2018

Sunday Book Review Roundup


There is a rich array of work reviewed this week:

The Theatre of Death: Rituals of Justice from the English Civil Wars to the Restoration by P.J. Klemp is reviewed at Marginalia.

The Improbable Wendell Willkie: The Businessman Who Saved the Republican Party and His Country, and Conceived a New World Order by David Levering Lewis is reviewed in The New Yorker and The New York Times.

In The New York Times is a review of These Truths: A History of the United States by Jill Lepore.  Also in The New York Times is a review of Carol Anderson's One Person, No Vote: How Voter Suppression Is Destroying Our Democracy.

Merve Emre's The Personality Brokers: The Strange History of Myers-Briggs and the Birth of Personality Testing is reviewed in The New Republic.  Also reviewed in The New Republic is Invisible Countries: Journeys to the Edge of Nationhood by Joshua Keating.

At The New Rambler is a review of Why Love Leads to Justice: Love across the Boundaries by David A.J. Richards.

Elaine Mokhtefi's Algiers, Third World Capital: Freedom Fighters, Revolutionaries, Black Panthers is reviewed at Public Books.

At H-Net is a review of Britt Tevis' Louis D. Brandeis: American Prophet.  Also reviewed at H-Net is Steven M. Gillon's Separate and Unequal: The Kerner Commission and the Unraveling of American Liberalism.  Keisha N. Blain's Set the World on Fire: Black Nationalist Women and the Global Struggle for Freedom is also reviewed at the site.

In The Federal Lawyer is a review of The Constitutional Evolution of Puerto Rico and Other U.S. Territories: (1898-Present) by Hon. Gustavo A. Gelpí.

Municipal Dreams: The Rise and Fall of Council Housing by Joshua Boughton is reviewed at History Today.

In the Boston Review is an excerpt from Helena Rosenblatt's The Lost History of Liberalism From Ancient Rome to the Twenty-First Century.

There are several excellent review essays in The New York Review of Books.  Renief de Graaf reviews Brian McCammack's Landscapes of Hope: Nature and the Great Migration in Chicago  and Ben Austen's High-Risers: Cabrini-Green and the Fate of American Public Housing.  Sue Halpern reviews Sarah E. Igo's The Known Citizen: A History of Privacy in Modern America, Cyrus Farivar's Habeas Data: Privacy vs. the Rise of Surveillance Tech, Mary Ziegler's Beyond Abortion: Roe v. Wade and the Battle for Privacy, and Woodrow Harzog's Privacy’s Blueprint: The Battle to Control the Design of New Technologies.  

Finally, Jackson Lears' essay at the NYRB takes up  In Search of the Lost Chord: 1967 and the Hippie Idea by Danny Goldberg, New Reformation: Notes of a Neolithic Conservative by Paul Goodman, The Politics of Authenticity: Liberalism, Christianity, and the New Left in America by Doug Rossinow, 1968: The Rise and Fall of the New American Revolution by Robert C. Cottrell and Blaine T. Browne, 1968: Radical Protest and Its EnemiesBallots and Bullets: Black Power Politics and Urban Guerrilla Warfare in 1968 Cleveland by James Robenalt, Struggle for a Better South: The Southern Student Organizing Committee, 1964-1969 Gregg L. Michel, The Making of a Counter Culture: Reflections on the Technocratic Society and Its Youthful Opposition by Theodore Roszak, and Rebellion in Black and White: Southern Student Activism in the 1960s edited by Robert Cohen and David J. Snyder.

Geoff Mann's In the Long Run We Are All Dead: Keynesianism, Political Economy, and Revolution is reviewed in the London Review of Books.

There are several new interviews posted at the New Books Network.  Jeremy Martens speaks about his Empire and Asian Migration: Sovereignty, Immigration Restriction and Protest in the British Settler Colonies, 1888-1907.  Jonathan W. White discusses his Lincoln on Law, Leadership, and Life.
Rebecca Reich introduces her State of Madness: Psychiatry, Literature, and Dissent After StalinJoseph Ben Prestel speaks about his Emotional Cities: Debates on Urban Change in Berlin and Cairo, 1860-1910Michael Szonyi discusses his The Art of Being Governed: Everyday Politics in Late Imperial ChinaBenjamin Carter Hett speaks about his The Death of Democracy: Hitler's Rise to Power and the Downfall of the Weimar Republic.  Finally, Keri Merritt and Matthew Hild discuss their Reconsidering Southern Labor History: Race, Class, and Power.

Saturday, September 15, 2018

Weekend Roundup

  • If a legal historian appeared in your school's annual "new hires and visitors" press release, please send us the link.  Here is Georgetown Law on Kevin Arlyck
  • “Attorneys filed a lawsuit Thursday on behalf of historian Heather Thompson, whose Pulitzer Prize-winning book Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy was censored by Illinois prison officials.” H/t: The Beachwood Reporter.
  • Book Reviews: Over at Jotwell: Anders Walker’s Did Black Baptists Join the War on Drugs?, a review of James Forman, Locking Up Our Own: Crime and Punishment in Black America.  In The Globe and Mail, A review of Claire L’Heureux-Dubé: A Life, a biography written by former ASLH president Constance Backhouse. In the New York Law Journal, Jeffrey Winn reviews James Simon’s Eisenhower vs. Warren:  The Battle for Civil Rights and Liberties.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, September 14, 2018

Monateri's "Dominus Mundi"

Pier Giuseppe Monateri, University of Torino, has published Dominus Mundi: Political Sublime and the World Order (Hart Publishing):
This monograph makes a seminal contribution to existing literature on the importance of Roman law in the development of political thought in Europe. In particular it examines the expression 'dominus mundi', following it through the texts of the medieval jurists – the Glossators and Post-Glossators – up to the political thought of Hobbes. Understanding the concept of dominus mundi sheds light on how medieval jurists understood ownership of individual things; it is more complex than it might seem; and this book investigates these complexities. The book also offers important new insights into Thomas Hobbes, especially with regard to the end of dominus mundi and the replacement by Leviathan. Finally, the book has important relevance for contemporary political theory. With fading of political diversity Monateri argues “that the actual setting of globalisation represents the reappearance of the Ghost of the Dominus Mundi, a political refoulé – repressed – a reappearance of its sublime nature, and a struggle to restore its universal legitimacy, and take its place.” In making this argument, the book adds an important original vision to current debates in legal and political philosophy.
Table Of Contents after the jump.

Bratton on Means on Administered Prices

William W. Bratton, University of Pennsylvania Law School, has posted The Modern Corporation and Private Property Revisited: Gardiner Means and the Administered Price:
This essay views The Modern Corporation and Private Property from the perspective of its junior coauthor, Gardiner Means. Means generated the book’s statistical showings of deepening corporate concentration and widening separation of ownership and control, studies also included in a Ph.D. dissertation Means successfully submitted to the Harvard economics department a year after the book’s publication. The dissertation also included a chapter, never published and rejected by the dissertation committee, that set out a theory administered prices. The theory lays out the statistical results’ implications for public policy. In Means’s view, Adam Smith’s picture of supply, demand, and automatic market correction had been partially eclipsed by inflexible pricing administered by corporate managers. Growing corporate concentration exacerbated these “administrated” prices’ distortionary effects. The theory explained the Great Depression’s persistence and yielded a detailed list of problems to be addressed by a new regulatory state. The chapter, only alluded to in the book, provides essential explication of its excursuses on corporate power and social welfare, for the it explains in hard economic terms just what Berle and Means thought that “neutral technocrats” in the corporate sector could do to make the economy work better. The essay goes on to describe Means’s later articulations of the theory and to compare his later career path to that of Berle.

Thursday, September 13, 2018

Barrett to Lecture on Jackson as Antitrust AAG

From the Jackson List, run by John Q. Barrett, St. Johns Law, we learn of the creation earlier this year by the Antitrust Division of the U.S. Department of Justice of the the Jackson-Nash Address, created “to recognize the contributions of former Supreme Court Justice Robert H. Jackson and Nobel Laureate economist John Nash, and to honor the speaker, recognizing and celebrating the role of economics in the mission of the [Antitrust] Division.”

As Professor Barrett explains:
Robert H. Jackson (LC)
Robert H. Jackson headed the Antitrust Division during 1937.  As the Division explained when it announced this new lecture series, Jackson’s leadership set the stage for the expanded role of economics in antitrust, replacing vague legal standards with the “protection of competition” as the goal of antitrust law.  And Dr. John Nash’s research provides Antitrust Division economists with analytic tools necessary to protect competition.  In particular, Division economists commonly rely on Nash’s strategic theory of games and his axiomatic bargaining model to guide investigations and to help evaluate the effects of mergers, monopolization, and collusion.
The next event in this series will take place Thursday, September 20, 2018, at 3:00 p.m. in the Great Hall at the U.S. Department of Justice, The Robert F. Kennedy Building, 950 Pennsylvania Avenue, N.W., Washington, D.C. (unfortunately, right when we’re teaching!) The program will consist of
introductory remarks by Department of Justice leadership; [Professor Barrett’s] lecture, “Competition: Robert H. Jackson as Assistant Attorney General—Antitrust (January 21, 1937–March 5, 1938); and an address by Dr. George A. Akerlof, University Professor at Georgetown University.

ASLH Houston

We're behind in our postings on the annual meeting of the American Society for Legal History in Houston, November 8-10.  The program is here; the website of the Local Arrangements Committee is here.

Freedman on the first ICC trial

Jim Freedman, Western University published A Conviction in Question: The First Trial at the International Criminal Court with the University of Toronto Press in 2017. From the publisher:
A Conviction in QuestionA lively narrative account of the first case to appear at the International Criminal Court, A Conviction in Question documents the trial of Union of Congolese Patriots leader and warlord, Thomas Lubanga Dyilo. Although Dyilo’s crimes, including murder, rape, and the forcible conscription of child soldiers, were indisputable, legal wrangling and a clash of personalities caused the trial to be prolonged for an unprecedented six years. This book offers an accessible account of the rapid evolution of international law and the controversial trial at the foundation of the International Criminal Court. 
The first book to thoroughly examine Dyilo’s trial, A Conviction in Question looks at the legal issues behind each of the trial’s critical moments, including the participation of Dyilo’s victims at the trial and the impact of witness protection. Through eye-witness observation and analysis, Jim Freedman shows that the trial suffered from all the problems associated with ordinary criminal law trials, and uses Dyilo’s case to further comment on the role of international courts in a contemporary global context.
Praise for the book:

"While containing a startling amount of scholarly content, A Conviction in Question reads like a well-told detective story, and I read it from cover to cover in one sitting, turning page after page to get to the next revealing detail." -Joanna Quinn

"Freedman delivers a rich and comprehensive account of the prosecution of warlord Thomas Lubanga. Including lively trial quotes, A Conviction in Question is gripping and accessible." -Mark Drumbl

Further information is available here.

Wednesday, September 12, 2018

California Legislative History Digitized

[We're grateful to Joanna Grisinger for drawing this announcement to our attention.]

Thousands of Historical California Legislative Publications Digitized and Openly Available Online Paul Fogel, Manager & Technical Lead, Mass Digitization, California Digital Library

California historical legislative research just got a bit easier. As a result of a collaboration between the California Office of Legislative Counsel and librarians at the University of California, Stanford University and the California State Library, nearly 4,000 California Assembly and Senate publications are now online and have been opened for reading access to everyone worldwide. They are available in the HathiTrust Digital Library as a featured collection, as well as individually in Google Books.

The project was initiated at the University of California's California Digital Library (CDL) by current HathiTrust Program Officer for Federal Documents and Collections Heather Christenson.  CDL worked with California's Office of Legislative Counsel to clarify language in recently approved California Assembly Bill no. 884 to confirm that the collected set of historical publications of California legislative output are indeed in the public domain and can be broadly shared.  The recently opened volumes were digitized as part of the Google Books project from copies collected by UC Berkeley and many other university libraries and have been aggregated in the HathiTrust Digital Library, a partnership of over 140 academic and research libraries

[More.]

Singer on Indian Nations and the Constitution

Joseph William Singer, Harvard Law School, has posted Indian Nations and the Constitution, which appeared in the Maine Law Review 20 (2018): 199-209:
This Constitution Day speech focuses on how the Constitution has been interpreted both to protect and to undermine the sovereignty of Indian nations. The good news is that both the text of the Constitution and the practice of the United States have recognized Indian nations as sovereigns who pre-existed the creation of the United States and who retain their inherent original sovereignty. The bad news is that the Constitution has often been interpreted by the Supreme Court to deny Indian nations protection for their property rights and their sovereignty. Most Americans are not aware of the history of interactions between the United States and Indian nations and most lawyers and law students never study the ways the Constitution treats Indian nations and their citizens differently from non-Indians. It is important for Americans to better understand the ways that the Constitution protects Indian nations from continued conquest and to understand the ways that the Supreme Court has interpreted the Constitution so as to deny equal rights to Indians and Indian nations. Limiting tribal sovereignty or harming tribal property without tribal consent is an act of conquest. It is an act that cannot be deemed consistent with our democratic values. Conquest is an historical fact that cannot be undone, but we can recognize that conquest was incomplete and that tribal sovereignty persists alongside that of the states and the federal government. The least we can do to honor the Constitution is to recognize the reality of conquest while committing not to do it ourselves. We can do that by consulting with Indian nations over matters that concern them; we can honor our treaty commitments. We can follow the lead of Chief Justice Marshall who lamented the fact of conquest and counseled the United States not to do it anymore.

Tuesday, September 11, 2018

Yale Legal History Forum: 2018-19 Schedule

The Yale Legal History Forum has announced its 2018-19 speaker schedule:

Sergei Antonov | Yale University (History)
Tuesday, September 18, Faculty Lounge
The Fracturing of Tsarist Russia: Criminal Upperworlds and the Great Trials of the 1870s

Brian R. Cheffins | University of Cambridge Faculty of Law
Thursday, September 20, 12:15 p.m., Room 128, co-sponsored by the Center for the Study of Corporate Law
The Public Company Transformed

Natasha Wheatley | Princeton University (History)
Tuesday, October 23, Room 120
Legal Pluralism as Temporal Pluralism: Historical Rights, Legal Vitalism, and Non-Synchronous Sovereignty

Johann Chapoutot | Sorbonne University (History)
Thursday, November 29, Room 122
Law between “Recht” and “Gesetz’”: Studies on Nazi Normativity

Philippe Sands | UCL Faculty of Laws
Tuesday, January 15, Faculty Lounge, co-sponsored by the Center for Global Legal Challenges

William Ewald | University of Pennsylvania Law School (Law and Philosophy)
Tuesday, February 12, Faculty Lounge

H. Timothy Lovelace | Indiana University Maurer School of Law (Law and History)
Tuesday, March 5, Faculty Lounge

Miranda Johnson | University of Sydney (History)
Tuesday, April 9, Room 128

Madeleine Zelin | Columbia University (History and Chinese Studies)
Tuesday, April 16, Faculty Lounge

Questions may be directed at this year’s Legal History Fellows, George Remisovsky (george.remisovsky@yale.edu) and Laura Savarese (laura.savarese@yale.edu).

Mayeri on Intersectionality and the Constitutionality of Family Status

Serena Mayeri, University of Pennsylvania Law School, has posted Intersectionality and the Constitution of Family Status, which appeared in Constitutional Commentary 32 (2017): 377-412:
Marital supremacy—the legal privileging of marriage—is, and always has been, deeply intertwined with inequalities of race, class, gender, and region. Many if not most of the plaintiffs who challenged legal discrimination based on family status in the 1960s and 1970s were impoverished women, men, and children of color who made constitutional equality claims. Yet the constitutional law of the family is largely silent about the status-based impact of laws that prefer marriage and disadvantage non-marital families. While some lower courts engaged with race-, sex-, and wealth-based discrimination arguments in family status cases, the Supreme Court largely avoided recognizing, much less crediting, their constitutional significance. Moreover, constitutional family status jurisprudence mostly overlooked claims to sexual autonomy, sex equality, and racial and economic justice arising from plaintiffs’ lived experience of intersecting status-based harms. The result is a constitutional family law canon that often obscures the social reality of legal regimes that elevate marriage at the expense of equality.

Minnesota Legal History Workshop

Here is the Speaker Schedule for the Legal History Workshop at the University of Minnesota for
Fall 2018.  The workshop meets Thursdays, 4:05-6 p.m. in N202 Mondale Hall and is convened by Professor Susanna Blumenthal.  A version with paper abstracts appears after the jump.

September 20

Edward B. Rugemer, Yale University
“The Consolidation of Slave Law in England’s Greater Caribbean: Jamaica and South Carolina from Slave Law and the Politics of Resistance in the Early Atlantic World (forthcoming, Harvard University Press, 2018)

September 27

Simon Stern, University of Toronto
“Homo Legis: The Making of the Reasonable Man”

October 4

Cynthia Nicoletti, University of Virginia
“The Disputed Legality of the Emancipation Proclamation, 1862-1865”

October 11

Elizabeth Kamali, Harvard Law School
“Tales of the Living Dead:  Dealing with Doubt in Medieval English Criminal and Civil Law”

October 18

Martha Jones, Johns Hopkins University
“Roger Brooke Taney: Law, Memory, and the Persistence of the Past”

October 25

Sarah Igo, Vanderbilt University
“Sex, Secrets, and Social Research in the U.S. Age of Privacy,” from The Known Citizen: A History of Privacy in Modern America (Harvard University Press, 2018)

November 1

Andrew Wender Cohen, Syracuse University
“Anthony Comstock’s Gilded Age: Sex, Law, and the End of Reconstruction”

November 15

Dan Edelstein, Stanford University
 “Natural Constitutionalism and American Rights” from On the Spirit of Rights (forthcoming, University of Chicago Press, 2018)

November 29
Colin Dayan, Vanderbilt University
“Guilty Things”

December 4

David Chang, University of Minnesota
“Indigenous Worlds in Life and Death: Colonial Carcerality, Hyper-Policing and Indigenous Geographies of Connection as Seen from Victoria, British Columbia in the 1860”

Turner and friends on the history of crime & criminal justice

A Companion to the History of Crime and Criminal Justice was published by Policy Press in 2017. It is co-edited by Jo Turner, Paul Taylor, and Sharon Morley (all at the University of Chester), along with Karen Corteen (Liverpool John Moores University). From the publisher: 
This companion addresses the history of crime and punishment through entries by expert contributors that select and define the central vocabulary and terminology for the study of the history of crime and punishment. Organized alphabetically, with useful cross-references and bibliographies, it goes beyond mere definitions to offer rigorous critical analysis of the terms and their use within the field, both now and in the past. It will be essential to students, researchers, and teachers in the field.
List of entries after the jump:

Monday, September 10, 2018

Between Private and Public: A Celebration of Dirk Hartog

Here's word of a conference celebrating Hendrik Hartog, Princeton University.  The conference website is here.

Thank you, Laura Phillips Sawyer!

Once again, another terrific guest blogging stint has come to an end. We are sad to see Laura Phillips Sawyer go. We have rounded up her posts here for readers who may have missed them.
Please join us in thanking Professor Sawyer!

RG 26

From our friends at the Max Planck Institute for European Legal History we have news of the publication of Rechtsgeschichte - Legal History 26 (2018), edited by Thomas Duve and Stefan Vogenauer.  “In addition to the print edition, the issue is available online in Open Access on the journal's website and will soon be searchable in the Internet Archive as well as in the Directory of Open Access Journals (DOAJ).”
Kicking off this year's issue are two Research contributions that take up comparative perspectives as well as provide overviews of their respective topics: Within the context of Europe, Joachim Rückert traces the invention of national legal histories, and Tay-sheng Wang deals with the legal history of Taiwan as well as the question of the autonomy of the local civil law. The Focus section consists of three different topics concerning the broader history of the Iberian monarchies: At the centre of "Convivencias", we have contributions taking up legal-historical perspectives involving the coexistence of members from different cultures, religions and confessions. The second Focus brings together the research investigating the origins of the School of Salamanca and thereby draws attention to hitherto little known authors and texts. "The End of Empires" is the topic of the third Focus. The contributions span a broad spectrum: from the Spanish Empire to the Brazilian Empire and even to the Ottoman Empire. They attempt to emphasise the legal dimension of the history of empires, in particular, that of the 19th century. Book reviews on legal-historically relevant recent publications (in the variety of languages you have come to expect) regarding both the Focus topics just mentioned and much more have been assembled in the Critique section. Closing out the issue is Holger Knudsen's contribution in Marginalia, which is much more than a book review. Here, Knudsen takes the book "Helgoland" as the point of departure for an investigation of English colonial law-making.
The quite lengthy TOC is here.

Vanderbilt Legal History Colloquium: 2018-19 Schedule

The Vanderbilt Legal History Colloquium has released the schedule for academic year 2018-19:

Sept. 10, 2018
Professor Tamer el-Leithy, Johns Hopkins University

September 21, 2018
Professor Nianshen Song, University of Maryland, Baltimore County

Oct. 22, 2018
Professor Karl Shoemaker, University of Wisconsin-Madison

November 12
Professor Noam Maggor, Queen Mary University

Nov. 26, 2018
Professor Melissa Murray, New York University

Jan. 7, 2019
Professor John Witt, Yale University

Feb. 4, 2019
Professor Laura Edwards, Duke University

Feb. 18, 2019
Professor Lauren Benton, Vanderbilt University

March 11, 2019
Professor Georgy Kantor, Oxford University

April 1, 2019
Professor Natasha Wheatley, Princeton University

Symposium: Rule of Law, the Hebrew Bible and Foreigners in the Americas

[We share the following announcement.]

Symposium on Comparative Early Modern Legal History:

Arguing for the Rule of Law:
Using the Hebrew Bible and Caricatures of Foreigners in British and Spanish America

Date: Friday, October 26, 2018
Location: Newberry Library, Chicago
Organized by: Jorge Cañizares-Esguerra (University of Texas, Austin) and Richard Ross (University of Illinois, Urbana-Champaign)

How did settlers, imperial officials, indigenous peoples, and Africans in the New World seek to demonstrate, or disprove, that a polity respected the rule of law?  (The phrase “rule of law” is modern; but the core of the idea is not).  Colonial rule invited accusations of arbitrary government and systematic lawlessness.  This conference will focus on two common techniques used to assess whether a polity respected the supremacy of law.  First, controversialists asked whether governance accorded with God’s expectations of justice as laid out in Scripture, particularly the Hebrew Bible.  Second, caricatures of other societies could be held up to make one’s own appear lawful and just, or the reverse.  British American settlers applauded the civility of their law by reference to the presumed barbarism of the Irish and Amerindians.  They saw liberty in their exploitive legal order by opposing it to the supposed absolutism of the Spanish and French empires.  Spanish settlers justified their rule and derecho by contrasting them to the law of indigenous polities and of their New World rivals.  The conference will bring together historians, law professors, and social scientists to think about the complex debates about the rule of law in the English and Iberian Atlantic.  

Jorge Cañizares-Esguerra (University of Texas, Austin) and Richard Ross (University of Illinois, Urbana-Champaign) organized “Arguing for the Rule of Law: Using the Hebrew Bible and Caricatures of Foreigners in British and Spanish America.”  The conference is an offering of the Symposium on Comparative Early Modern Legal History, which gathers every other year at the Newberry Library in Chicago in order to explore a particular topic in the comparative legal history of the Atlantic world in the period c.1492-1815.  Funding has been provided by the University of Illinois College of Law. 

            Attendance at the Symposium is free and open to the public.  Those who wish to attend should preregister by sending an email to Richard Ross at Rjross@illinois.edu.  Papers will be circulated electronically to all registrants several weeks before the conference.

For information about the conference, please consult our website at https://law.illinois.edu/faculty-research/specialty-programs/legal-history/ or contact Richard Ross at Rjross@illinois.edu or at 217-244-7890. 

Saturday, September 8, 2018

Weekend Roundup

  • From Time magazine's website: a Labor Day op-ed by Caitlin Rosenthal (University of California, Berkeley) on the Emancipation Proclamation as "among the most important [labor regulations] in American history." 
  • Also on the Indian Penal Code via Georgetown's Berkley Center for Religion, Peace & World Affairs' forum: Neeti Nair (UVA) has this historical take on religion and the limits of free speech in India.
  • Update: Some last-minute ideas for teaching, as the new semester gets under way--here and here at South Asian Legal History Resources (MS).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, September 7, 2018

Mawani on Oceans of Law

Renisa Mawani, University of British Columbia, has published Across Oceans of Law: The Komagata Maru and Jurisdiction in the Time of Empire with Duke University Press. From the publisher: 
In 1914 the British-built and Japanese-owned steamship Komagata Maru left Hong Kong for Vancouver carrying 376 Punjabi migrants. Chartered by railway contractor and purported rubber planter Gurdit Singh, the ship and its passengers were denied entry into Canada and two months later were deported to Calcutta. In Across Oceans of Law Renisa Mawani retells this well-known story of the Komagata Maru. Drawing on "oceans as method"—a mode of thinking and writing that repositions land and sea—Mawani examines the historical and conceptual stakes of situating histories of Indian migration within maritime worlds. Through close readings of the ship, the manifest, the trial, and the anticolonial writings of Singh and others, Mawani argues that the Komagata Maru's landing raised urgent questions regarding the jurisdictional tensions between the common law and admiralty law, and, ultimately, the legal status of the sea. By following the movements of a single ship and bringing oceans into sharper view, Mawani traces British imperial power through racial, temporal, and legal contests and offers a novel method of writing colonial legal history.
Praise for the book:

“Charting the 1914 voyage of the SS Komagata Maru and focusing on the sea, the ship, the manifest, the indigenous, and the fugitive, Renisa Mawani makes a compelling case against the European myth of the ‘free sea.’ Arguing for a new ‘ocean as method’ and foregrounding the co-emergence of maritime law and the policing of immigration, this book will rightly be seen as a legal and historical tour de force.” -Gaurav Desai

“This beautifully written and richly illustrated book provides a new global and oceanic history perspective on the journey of the Komagata Maru. Ranging across theories of law, time, and space, Renisa Mawani places an event limited in time and scale into some of the large questions and themes of history: migration, mobility, maritime jurisdiction, race, legal rights, and anticolonial radicalism.”-Clare Anderson

Further information is available here.

Thursday, September 6, 2018

Osgoode Society Legal History Workshop: Fall 2018 Schedule

Via the Canadian Legal History Blog, the Fall 2018 lineup for the Osgoode Society Legal History Workshop:

Wednesday September 19: Carolyn Strange, Australian National University: ‘Capital Punishment and Sex Crimes in Canada, 1867-1950’

Wednesday October 10: Virginia Torrie, University of Manitoba: ‘Federalism and Farm Debt during the Great Depression’

Wednesday October 24: Jim Phillips and Tom Collins, University of Toronto: ‘The Origin of the Division of Powers in the BNA Act’

Wednesday November 7: Ian Radforth, University of Toronto: ‘The Sad Story of the Minister's Daughter: A Botched Abortion in Victorian Toronto’

Wednesday November 21: Shelley Gavigan, Osgoode Hall Law School: "Settling In: Civil Justice on the Indigenous Plains, 1876-1886"

Wednesday December 5: Heidi Bohaker, University of Toronto: TBA

Stanford Center for Law and History Workshop: 2018-19 Schedule

The Stanford Center for Law and History has announced the lineup for its 2018-19 workshop:

September 25 – Catherine Baylin Duryea, Stanford History Department, They the People: Imposed Constitutionalism and Judicial Review in Afghanistan

October 23 – Alix Rogers, Stanford Center for Law and the Biosciences, The Civil War’s Tranformational Effect on the Legal Status of Human Remains

November 13 – Dylan Penningroth, UC Berkeley Law and History, Law for a Gospel Church: African American Religion and Civil Rights, 1865-1970

January 15 – Benjamin Hein, Stanford History Department, Germany’s GmbH: Securing the Liberal Order in an Age of Mass Migration, 1873-1892

February 5 – Elise Dermineur, Center for Advanced Study in the Behavioral Sciences at Stanford University, and Umea University, Debt and Bankruptcy in Pre-Industrial Europe

February 26 – Rowan Dorin, Stanford History Department, Reception or Resistance? Episcopal Lawmaking in Late Medieval Europe 

April 9 – Reuel Schiller, UC Hastings College of the Law, The Surprising Origins of Deregulation: The New Left, the Counterculture, and the Demise of the New Deal Regulatory Order 

April 30 – Kathryn Olivarius, Stanford History Department, Seasonal Gerrymandering: Yellow Fever, Statecraft, and Citizenship in Antebellum New Orleans

May 21 – Allyson Hobbs, Stanford History Department and Director of African and African American Studies, Far from Sanctuary: African American Travel & the Long Road to the Civil Rights Act of 1964

Telman on Originalism and the Marshall Court

D. A. Jeremy Telman, Valparaiso University Law School, has posted John Marshall's Constitution: Distinguishing Originalism from Ipse Dixit in Constitutional Adjudication:
This Article is the first comprehensive treatment of the constitutional jurisprudence of the Marshall Court (1801–1835) from the perspective of originalism. Until recently, there seemed to be no need for such a study. Early originalists, who wrote in the late 1960s and early 1970s, assumed that constitutional adjudication had been originalist until at least the Lochner Era. With the move from intentionalism to textualism in the 1980s, originalists came to understand their movement as an innovation and a reaction against the perceived excesses of the Warren and Burger Courts. Originalists no longer claimed that originalist methodology informed nineteenth-century constitutional adjudication.

Recently, however, originalists have revived earlier claims that constitutional adjudication in the United States has always been originalist. This Article maintains that such claims are doubly misleading. First, the Marshall Court invoked the Framers’ intentions but never undertook any investigation into those intentions. Second, this rhetorical intentionalism by no means predominated as the Marshall Court’s governing interpretive approach. Rather, that approach was eclectic. Historical reasoning, common law precedent, and ipse dixit pronouncements predominated in the constitutional adjudication of the Marshall Court and throughout the Early Republic.

Both contemporary originalism and contemporary non-originalism have much in common with the interpretive approach of the Marshall Court. All begin their inquiries with an examination of the constitutional text. However, the two core dogmas of contemporary originalism, which Larry Solum has described as 1) the fixation thesis and 2) the constraint principle, were rarely relevant to the Marshall Court’s inquiries. The constitutional text rarely provided clear constraints on the Court’s discretion because, to borrow language from New Originalists, their cases arose in the “zone of construction” where original meaning “runs out.” Justices chose among plausible arguments about the Constitution’s meaning. At key points, the Justices simply declared what the law was, not without justification, but also not based on evidence of the Framers’ intent or the original meaning of the constitutional text.
H/t: Legal Theory Blog

Wednesday, September 5, 2018

Two from Max Planck

[We have from our friends at the Max Planck Institute for European Legal History the following announcement of two new, open-access volumes in its series "Global Perspectives on Legal History."]

With Diritto: storia e comparazione. Nuovi propositi per un binomio antico, edited by Massimo Brutti and Alessandro Somma, the Max Planck Institute for European Legal History presents the newest publication in its Open Access book series Global Perspectives on Legal History.
In 25 contributions, both legal historians and comparative lawyers investigate the interrelationship of their fields of expertise as well as their current development. Thus, some contributions such as Sulla convergenza tra studio storico e comparazione giuridica (M. Brutti) or Comparazione giuridica, fine della storia e spoliticizzazione del dititto (A. Somma) concentrate on theoretical aspects, while others are dedicated to specific research topics, such as Rethinking eurocentrism. European Legacy and Western Colonialism (L. Nuzzo) or Quale storia del diritto? Vecchi e nuovi scenari narrativi tra comparazione e globalizzazione (E. Augusti). The result are diverse ideas on the meaning and future of two scientific disciplines, which are historically closely connected, have in the 20th century increasingly moved away from one another, and are now, given the opening of both disciplines to new methods and theories, not only enquiring about their relation to one another but also about their disciplinary identity. The multilingual volume contains mainly Italian, but also English and Spanish contributions.
The second new volume in the series is edited by Benedetta Albani, Otto Danwerth and Thomas Duve: Normatividades e instituciones eclesiásticas en la Nueva España, siglos XVI-XIX, is the first of four planned books dealing with the contribution of ecclesiastical institutions to normative orders in early modern Ibero-America.
What significance did religious institutions and their actors have for the formation ofnormative orders in Mexico (New Spain) of the 16th to the 19th centuries? The volume takes up this little-researched question in the field of legal history. In fourteen Spanish-language, interdisciplinary papers, the authors examine the relationships between various types of religious normativity (such as canon law and moral theology), their local adaptations and links to global debates. They also deal with diocesan administration and sacramental dispensation, with indigenous and Afro-American actors in court, and with normative aspects of piety in cultural life until the 19th century. These research findings are relevant not only to legal history, but also to the history of the church and theology, social and cultural history, and ethnohistory.
Both volumes are available as usual on the website of the Max Planck Institute for European Legal History for PDF download and, in addition, in JSTOR and in the Internet Archive - always in Open Access.

Halberstam on Federalism in the US and Europe

Daniel Halberstam, University of Michigan Law School, has posted “A People for Certain Purposes”: On the History and Philosophy of Federalism(s) in the United States and Europe:
This brief guide to the philosophy of federalism provides an original analysis distinguishing the flurry of competing conceptual accounts of federalism in the United States and Europe. It draws out and critically examines the theories of sovereignty and federalism of James Madison, James Wilson, John C. Calhoun, Hans Kelsen, and Carl Schmitt, all with a view to understanding the kind of federation we have in the European Union today.

Barnes on Mozley v. Alston

An advance alert from Oxford Journal brings word of the posting of Judicial Intervention in Early Corporate Governance Disputes: Vice-Chancellor Shadwell’s Lost Judgment in Mozley v Alston (1847), by Victoria Barnes in the American Journal of Legal History:
Mozley v Alston is usually used in Anglo-American corporate law as an authority to demonstrate the premise that courts are reluctant to intervene in disputes between shareholders and directors. Using new archival sources, this article reinvestigates this case, its trajectory and its meaning as a legal precedent. Vice-Chancellor Shadwell’s judgment in the lawsuit, although never published in a printed law report, can be found in manuscript form in the National Archives in the United Kingdom. It, along with other documentation from the litigants and their solicitors, provides a new lens through which to view the case. Unlike the rule that we have today, Shadwell’s lost judgment shows that he supported judicial intervention in corporate governance disputes. Shadwell concurred with the arguments made by the shareholders’ counsel and agreed that the directors had abandoned their duties. He ordered that a court of equity should step in to assist the complainants. Despite the clarity of Shadwell’s ruling, it was ultimately overturned when the decision was appealed to Lord Chancellor Cottenham. This litigation, when placed in its original social and economic context, provides us greater insight into the role of counsel in shaping complaints, the views of the shareholders, directors, and managers as litigants, and the divisions and debates among members of the judiciary about modern company law.

Blackett on Fugitive Slaves

R. J. M. Blackett, Vanderbilt University, has published The Captive's Quest for Freedom: Fugitive Slaves, the 1850 Fugitive Slave Law, and the Politics of Slavery with Cambridge University Press. From the publisher:
The Captive's Quest for FreedomThis magisterial study, ten years in the making by one of the field's most distinguished historians, will be the first to explore the impact fugitive slaves had on the politics of the critical decade leading up to the Civil War. Through the close reading of diverse sources ranging from government documents to personal accounts, Richard J. M. Blackett traces the decisions of slaves to escape, the actions of those who assisted them, the many ways black communities responded to the capture of fugitive slaves, and how local laws either buttressed or undermined enforcement of the federal law. Every effort to enforce the law in northern communities produced levels of subversion that generated national debate so much so that, on the eve of secession, many in the South, looking back on the decade, could argue that the law had been effectively subverted by those individuals and states who assisted fleeing slaves.
Praise for the book:

"I don’t use the word 'magisterial' lightly, but it is exactly the right description for Richard J. M. Blackett’s The Captive’s Quest for Freedom: Fugitive Slaves, the 1850 Fugitive Slave Law, and the Politics of Slavery. There is no better, deeper, or more comprehensive discussion of the struggle of fugitive slaves in the antebellum era." -Steven Lubet

"The Captive’s Quest for Freedom is the most important, thorough, and revealing study ever written of fugitive slaves in American history. The book is timely; it demonstrates in depth the nature and meaning of America's first great refugee crisis and the explosive politics that followed in its wake. May the whole of our reading public finally understand the significance of the Fugitive Slave Act in 'our history and our heritage'. It resonates still as a watch warning in our own time." -David W. Blight 

"Richard J. M. Blackett’s epic new history of the Fugitive Slave Law is both a brilliant analysis of the politics of disunion, and a compelling argument for the centrality of African American resistance to the great national unraveling of the 1850s. At the heart of the book, though, are the human beings whose decision to escape slavery prompted slaveholders to demand the Law in the first place, and whose determination to keep risking everything even after its passage pushed the United States towards a terrible and necessary reckoning." -Nicholas Guyatt 

Further information is available here.

Tuesday, September 4, 2018

ASLH 2018: Register for the Pre-conference Workshop on Teaching Legal History

We have the following announcement:
Those attending the upcoming ASLH conference should consider joining us for the pre-conference workshop on teaching legal history at the conference hotel on November 8 from 11-4. Pre-register now for an interactive discussion on legal history curriculum for graduate and undergraduate students, as well as demonstrations of digital and hands-on pedagogies for your legal history classes. Space is limited, but lunch is provided for participants with sponsorship from University of Nebraska Lincoln, and the workshop will wrap up in time for the opening reception. 
Pre-conference Workshop on Teaching Legal History 
We invite 30 ASLH attendees to register for our pre-conference workshop on teaching legal history from 11-4 on Thursday, November 8 in the conference hotel. Participants will have an opportunity to share their own challenges and successes in dialogue with workshop facilitators on topics ranging from digital and creative pedagogies, to co-convened JD/graduate seminars, and undergraduate legal history curriculum building. Lunch is provided to all pre-registered participants through the generous sponsorship of University of Nebraska Lincoln’s College of Arts & Sciences Instructional Improvement Fund. 
The agenda is as follows: 
11-12: Ari Bryen & Kimberly Welch, Building an Undergraduate Legal History Program 
12-1: Lunch & Open Discussion on Teaching Experiences, Concerns, & Strategies 
1-2: Katrina Jagodinsky, Digital Pedagogies for Legal History 
2-3: Sally Hadden, “Small Teaching,” Big Impacts in the Legal History Classroom 
3-4: Martha S Jones & Karen Tani, Teaching Legal History Seminars w/ Graduate and JD Students 
Pre-Register for the workshop here.

Justice in Colonial British and Iberian America: An Essay Collection

We’ve received word of the publication of Justice in a New World: Negotiating Legal Intelligibility in British, Iberian, and Indigenous America (NYU Press, 2018), edited by Brian P. Owensby, University of Virginia, and Richard J. Ross, University of Illinois Law and History:
As British and Iberian empires expanded across the New World, differing notions of justice and legality played out against one another among settlers and indigenous seeking to negotiate their relationship. In order for settlers and Natives to learn from, maneuver, resist, or accommodate each other, they had to grasp something of each other's legal ideas.  This volume examines how Natives and settlers in both the British and Iberian New World empires used the other’s ideas of law and justice as a political, strategic, and moral resource.  Settlers and indigenous people construed and misconstrued each other’s legal commitments while learning about them, never quite sure if they were on solid ground.  Chapters explore the problem of “legal intelligibility”: How and to what extent did settler law and its associated notions of justice become intelligible—tactically, technically, and morally—to Natives, and vice versa?  Ultimately, Justice in a New World offers a dual comparative study of how people in a colonial encounter struggled to make laws and codes of justice intelligible.
Here are some endorsements:
Justice in the New World is an exciting and timely collection of essays with thinkers who have been at the forefront of research on legal intelligibility in the Americas. The collection brings questions of justice, law, and legality into an imperial and comparative frame, with close attention paid to the differences in the Iberian and North American worlds."

—Michelle McKinley, University of Oregon School of Law, Author of Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima

"The essays in this volume unsettle much of the conventional wisdom about the process of colonization, by revealing the staggering complexity of the law’s role in mediating relationships between settlers and indigenous people in the American colonies of Britain and Spain. The essays are richly researched and elegantly written, and they are bracketed by extraordinarily thoughtful introductory and concluding chapters. This book is essential reading for anyone interested in colonial or legal history."

—Stuart Banner, author of How the Indians Lost Their Land: Law and Power on the Frontier

"What could 'law' and 'justice' mean in the context of the European conquest and colonization of the Americas?   The deeply researched essays in this volume examine illuminating cases where justice was a contested, ever-shifting concept as indigenous peoples and colonizers confronted one another in settings from Brazil and Peru to Florida, New England and Virginia.  Featuring a distinguished roster of scholars, the book’s broadly comparative approach, as well as its insistence on foregrounding indigenous justice, will ensure that it is recognized as a landmark contribution to the burgeoning literature on law and colonialism."

—Allan Greer, McGill University

Edling on "An International Interpretation of the Constitution of the United States"

Currently un-gated in the August 2018 issue of Past & Present: Max Edling, "Peace Pact and Nation: An International Interpretation of the Constitution of the United States." Here's the abstract:
The origin of the United States Constitution is a perennial question in American historiography. In the last two decades a new ‘International’ interpretation has appeared that challenges an older ‘economic’ interpretation associated with Charles Beard and the so-called ‘Progressive’ tradition of historical analysis, which dominated scholarship for much of the twentieth century. The two interpretations assume different positions on what is known in American historiography as the ‘dual revolution’ thesis, i.e. the idea that the American founding was at the same time a struggle for home rule and a struggle over who should rule at home. Whereas the Progressive tradition has concentrated on the latter question, the International interpretation calls for renewed investigation of the former. The International interpretation presents the Constitution as a federal treaty that allowed thirteen newly independent and comparatively weak republics to maintain peace among themselves and to act in unison against competitors in the Atlantic marketplace and in the western borderlands of the continental interior. Whereas the Progressives identify the principal outcome of the founding to be the creation of a bourgeois state that faced inwards to make North America safe for capitalism, the Internationalists identify it as the creation of a stronger federal union that faced outward and allowed the United States to stand up to European powers and to conquer the North American continent. Yet despite the focus on the question of home rule, the Internationalist redefinition of the Constitution as a federal treaty also makes possible a fresh view on the old question of who should rule at home.
Read on here.