Baude on a Challenge to Justice Hugo Black's Appointment

William Baude, University of Chicago Law School, has posted Ex parte Levitt, which is forthcoming in the Texas Law Review 98 (2019):

In Ex Parte Levitt, the Supreme Court denied standing to a pro se litigant making esoteric claims against the appointment of Justice Hugo Black. The Court’s short opinion is now an unremarkable mainstay of modern federal courts doctrine. But the case merits closer examination. Indeed, Levitt’s challenge was probably meritorious, and Hugo Black’s appointment unconstitutional. Moreover, the Court’s standing analysis was probably wrong – though there might have been other reasons to deny the challenge. And finally, the case’s aftermath raises intriguing questions about the Supreme Court’s role in politics and constitutional law.

Lash Replies to Barmett/Bernick on Privileges and Immunities

Kurt T. Lash, University of Richmond School of Law, has posted The Enumerated Rights Reading of the Privileges or Immunities Clause: A Response to Randy E. Barnett and Evan D. Bernick's “The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment”:

In prior scholarship, I have argued that the historical evidence suggests that the public originally understood the Privileges or Immunities Clause as protecting enumerated constitutional rights, including (though not limited to) those rights listed in the first eight amendments, but not as protecting absolute enumerated rights such as the unenumerated right to contract protected in cases like Lochner v. New York. In a recent article, Randy Barnett and Evan Bernick canvass more than two decades of my historical work on the Fourteenth Amendment and claim that I have failed to present a persuasive argument in favor of what they call the “Enumerated Rights Only” reading of the Privileges or Immunities Clause. In particular, they argue that (1) antebellum evidence suggests that the term “privileges and immunities of citizens of the United States” was understood to include unenumerated rights, (2) the man who drafted the Privileges or Immunities Clause, John Bingham, described the clause as protecting unenumerated absolute rights, (3) the debates of the Thirty-Ninth Congress suggest that most members would have understood the Privileges or Immunities Clause as transforming the relative rights of Article IV, Section 2 (the Comity Clause) into absolute unenumerated rights, (4) Reconstruction-era references to the “Bill of Rights” as representing the rights of national citizenship are unreliable due to that fact that there was no fixed meaning to the term at that time and (5) because my account fails to explain how the Privileges or Immunities Clause authorized the 1866 Civil Rights Act, it cannot stand as a persuasive reading of the Clause.

In this article, I respond to all of these arguments and synthesize the evidence I have gathered over the years which I believe supports the Enumerated Rights reading of the Privileges or Immunities Clause. In brief: The only antebellum voices describing the rights of national citizenship as including unenumerated absolute rights were proponents of slavery who insisted they had an unenumerated “right” to own slaves. The abolitionist voices most likely to influence Reconstruction Republicans uniformly described the rights of national citizenship as enumerated constitutional rights. The most significant of these Republicans, John Bingham, always described the privileges or immunities of citizens of the United States as involving constitutionally enumerated rights, and never as unenumerated absolute rights. Bingham’s colleagues in the Thirty-Ninth Congress were well-informed about, and shared a consensus view of, Article IV, Section 2 and cases like Corfield v. Coryell as protecting nothing more than the relative rights of equal treatment in regard to a limited set of “fundamental” rights. Thus, when Jacob Howard named Corfield and the enumerated rights of Article IV as “privileges or immunities of citizens of the United States,” he and his audience understood the limited relative nature of those rights. On the other hand, when members like Bingham and Howard referred to the federal Bill of Rights as privileges and immunities of citizens of the United States, listeners in and outside of Congress would have understood this to be a reference to enumerated constitutional rights. In particular, this is how the public would have understood Bingham’s insistence that he sought to enforce the Bill of Rights against the states and nothing more. Finally, there is no need to force a reading onto the Privileges or Immunities Clause that authorizes the Civil Rights Act. As John Bingham explained, the Civil Rights Act represented an effort to enforce the equal right not to be deprived of life, liberty or property without due process of law—rights covered by the final two clauses of Section One.

H/t: Legal Theory Blog

Hello, again, from Sydney. Legal History Jobs in Australia.

Hi everyone! Sorry this blog is a bit late. I was a bit busy last week, so did not quite get to writing about method. Maybe next time! I thought I’d write instead about how academic careers in legal history work in Australia. This is moderately similar to how they work in the Britain. So hopefully this blog will help you to navigate both systems a little better if you are planning to work outside the United States. Since the number of academic jobs had plummeted in the United States, some of this advice will be relevant to you even if you plan a career in legal history in the U.S.

Context. Australia is small. Its whole population is a bit larger than greater New York City’s. But it has a relatively large university sector and a small but growing legal history scene.

In Australia, academic positions are well-paid jobs with good working conditions. With rare exceptions, salaries are decided by enterprise bargains and there are transparent pathways to promotion. Your raises and promotions are not dependent on getting job offers elsewhere, but rather on demonstrating that you meet clear criteria. The flip-side is that it takes longer to become a full professor. Most will begin as a Level B academic (known as a lecturer, but equivalent to an Assistant Professor). The Professoriate is Level E. Each level has different and greater expectations of research and teaching excellence and sector or public service.

Our unionised system means that work conditions do not differ as much between universities here as they do in the U.S., though some universities put more emphasis on research excellence than others. Most academic positions are 40:40:20 (research, teaching, service). As a sector, though, we are all moving towards more ‘research-track’ and ‘teaching-track’ jobs here which will create big differences in the number of hours spent in front of classrooms by academics within the same institution. We are also casualizing more. In other words, we face the same pressures but in different degrees to our American counterparts.

Most Australian universities are public, and most are located in big cities. So if you are a city person, it is worth a look. Greater Sydney has five major public universities and some private ones. It is expensive here, but in every way gorgeous. Other major cities have similar numbers. There are also some universities in regional centers.

As in the U.S., legal historians in Australia can find work in laws schools or history departments. There are more jobs in law than in history. However, you would be unlikely to be competitive for a job in an Australian law faculty unless you have an Australian or British law degree. This is not uniformly the case, but it is certainly something to consider. Also, not all Australian law faculties are interested in legal history. You should look at the faculty profile or contact someone on faculty if you see a job you would like to apply for. It is usually expected that you will be able to teach into the law core.

History as a discipline has been shrinking in recent years because of declining undergraduate enrolments. As a result, it is hard to get a job in Australia in history unless you have a spectacular resumé. So, after this long introduction let me explain a little how to prep your resumé for our very competitive market, and how to thrive in a job here once you have landed one.

Publish early and well. It is very important to publish at least one piece in a good journal while you are a graduate student. If your dissertation contains a compelling case study that shows off your exciting project, take the time to submit it to a prestigious journal. Most recent tenure track hires in history in at least one of the Times Higher Ed top five universities published an article in a top-tier journal either during their Ph.D. or soon after their graduation. A top-tier journal article marks you out as a special candidate with a great project.

In Australia, to get an entry-level job, you will likely need more than one excellent article. You will also need a book contract. To that end, you should write your dissertation as a book. This is increasingly important in the U.S. market too. You need to come out of your Ph.D. program with a polished, well-crafted, publishable manuscript which you should submit to the best publisher in your field. Do not target a mid-tier publisher. Having a book contract—or better still, a published book—puts you into an entirely different category of job candidate.

Present your work brilliantly. A key way to generate interest in your work and land a book contract as an early career scholar in the U.S. is to give a fantastic paper at the ASLH meeting. In the U.S., publishers attend these meetings and if you deliver a perfectly timed, clearly presented, smart, polished presentation, you will be noticed. Do write out your talk so that it is layered, elegant and well-structured. Do practice it so you can deliver it flawlessly without reading all of it. Anticipate tough questions and think about how you might answer them. Being able to answer questions well demonstrates your caliber as a scholar. I met two publishers at conferences who wanted to read my dissertation after hearing me give a good talk.

Presenting well and publishing early and well is also a way to build what we call esteem markers. If people have read your dissertation / first book and liked it or heard you give a great paper, they tend to invite you places - to join workshops, to give papers in their seminars, even sometimes to give keynotes. Scholarly networks matter in Australia as they do in the U.S.. Collaboration is increasingly valued. My second blog was filled with tips about how to do this. Having really good relationships with people in your field by being a kind, generous (and smart) colleague pays huge dividends in our profession. It makes academic work more fun and it also makes you a much more competitive candidate in our system.

Engage with your discipline. As you progress through your career, you need to do more than to have good networks. You need to show your engagement in the discipline by reviewing grants and book manuscripts, by being invited to participate in program reviews and quality measurement exercises, and by editing good journals. You must show, always, that you are an engaged scholar contributing in multiple ways to academia and to the world beyond it. 

Learn how to speak grant. The other thing that matters to a stellar career in Australia is grant success. Winning a postdoc at a good institution anywhere in the world is a huge sign of peer esteem, and it certainly makes you much more competitive for jobs. If you have set up your early career resumé well, you will have a good chance of being competitive for a DECRA (Discovery Early Career Award) fellowship from the Australian Research Council (fondly known as the ARC). These three-year awards include wages and generous research travel and support funds. They are very prestigious and are only available to people within five years of their graduation. In legal history (if you are submitting it under a history code) you really need to have a good book published or in press to be competitive. The good news is that legal projects seem to be quite competitive here.

Apply for the job properly. If you find a legal history job in Australia, read the application information very carefully. Applications here are quite different from the U.S., where you write a generic job letter, put it in a single system, and ask people to write for you. In Australia, you usually have to write a letter and respond to a set of criteria to show that you are qualified for the job. Many North American candidates do a terrible job of responding to the criteria and it puts them at a huge disadvantage.

Good criteria answers should not just talk about what you have done, they should show that you have a clear research trajectory that fits our system: that you plan to apply for grants, that you have a good next project, that you are planning to aim high. Unless you are applying for a research-only position, you will also be expected to demonstrate a sound pedagogical approach and a sense of how you would contribute to the university beyond your own teaching and research. It is important to do this because an appointment committee will not read your brilliant letters of recommendation until they have shortlisted you. You have to show them first that you are one of the most qualified people for the job.

Be prepared for our crazy grant system. We no longer have tenure in Australia. The prize, here, is a continuing position. To navigate your system successfully, you have to continue to publish often and well, grow your reputation, make some impact through service to your sector or the general public, and win grants. The part of this that will be most alien to Americans is our emphasis on winning external funding. We are most highly rewarded for winning funds from the ARC. But, increasingly, Australians are collaborating with scholars in Europe and Britain or with community groups and businesses on big projects with access to different kinds of funding.

Most mid-career scholars (and advance early career scholars) are expected to compete for Discovery Projects. These are not fellowships, but they provide extremely generous funds (a minimum of $30,000/year over three or more years) to support research and may provide some funds for a semester or two of teaching relief. Increasingly, Discovery Project grants go to groups of scholars rather than individuals which, again, is why it is important to collaborate. If you have an industry or community contract who is happy to partner in your research, you can apply for a Linkage Project grant. If successful, the ARC will support your research project over and above the contribution of your research partner to the project. This is a great way to give back to the community and build relationships with external funders. A distinguished mid-career scholar will also compete for a Future Fellowship—a four-year fellowship for scholars within 15 years of their Ph.D. A very few senior scholars will compete for Laureate fellowships, which give a large amount of money to establish a cluster of Ph.D. students and postdocs working on a really large project.

The application process for all these grant schemes is very rigorous. They include a 10-page project description and dozens of pages of evidence about your “track record” which is measured “relative to opportunity” (years since Ph.D. in an academic position, with dispensations for major health issues, time out for maternity / paternity leave, etc.). This narrative focuses on your publication record, but also on all of those measures of esteem that I discussed above.

This probably sounds daunting. It is not really. It requires you to plan your career carefully, measure it in milestones, and make careful decisions about what you do, where you publish and when. The Australian university system always asks: “What is next?” If you are that sort of scholar, then it is worth looking at the Australian job market. 

Weekend Roundup

• Our friends over at the Federal Judicial Center have alerted us to their  very useful new webpage, Selected Developments in the History of Supreme Court Jurisdiction. 

• Lucy Salyer, University of New Hampshire, has published the essay The Irish-American Social Club Whose Exploits in Their Homeland Sparked a New Understanding of Citizenship in Zócalo Public Square, as part of the Smithsonian-sponsored series, “What It Means to Be American.”

• Welcome to the blogosphere, History and the Law, moderated by Catherine Evans, Franziska Exeler, Kalyani Ramnath, and Surabhi Ranganathan!  The blog is part of the Exchanges of Economic, Legal and Political Ideas Programme, which is supported at the University of Cambridge by the Andrew W. Mellon Foundation.

• Over at New Books Network there’s a podcast with Andrew Fede on his latest book, Homicide Justified: The Legality of Killing Slaves in the United States and Atlantic World.  Mary Block reviewed the book here, and Jeannine DeLombard reviewed it here.

• As part of its 150-year celebrations, the University of Wisconsin Law School hosted a retrospective event recently on the work and legacies of J. Willard Hurst and Frank Remington. "Law in Actions Innovations in Wisconsin Law School Courses, 1950-1970" featured Dirk Hartog and Malcolm Feeley, plus Wisconsin faculty Bill Clune, Bill Whitford, Cecelia Klingele, and our blogger Mitra Sharafi.

• Advance alert: Testimonial Exclusions and Religious Freedom in Early America, by Jud Campbell, University of Richmond School of Law, is now available from Law and History Review.

• Update: Laura Kalman, "Distinguished Professor of History from University of California, Santa Barbara, Will Present Annual Robert T. Miller Lecture" at Baylor University on March 25.

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

Craig's "Latter Day Lawyers"

Brian Craig, who teaches at Purdue University Global, has published Latter Day Lawyers (Kindle Direct Publishing):

Latter Day Lawyers examines how lawyers and judges who are members of The Church of Jesus Christ of Latter-day Saints have impacted the American legal system. Latter Day Lawyers uncovers the lives and leading cases of lawyers and judges who have shaped American legal history. Meticulously researched, including personal interviews with prominent lawyers, judges, and church leaders, Latter Day Lawyers unveils how a select group of lawyers and judges have influenced the constitutional and legal rights of all Americans.

Selected individuals profiled include U.S. Solicitor General Rex Lee who argued 59 cases before the U.S. Supreme Court and considered one of the greatest Supreme Court litigators; Judge Thomas Griffith on the U.S. Court of Appeals for the D.C. Circuit dubbed the nation's second most powerful court; U.S. District Judge Michael Mosman, a member of the top-secret Foreign Intelligence Surveillance Court; and Dallin H. Oaks, the foremost advocate of religious freedom. Latter Day Lawyers gives an inside look at how certain lawyers and judges have fought to preserve constitutional and legal rights through history under the backdrop of landmark and intriguing cases.

Two endorsements:

"In Latter Day Lawyers, a fascinating collection of short biographies of distinguished lawyers and judges, who are also religiously devout members of The Church of Jesus Christ of Latter-day Saints, Brian Craig has made an important contribution to American legal and religious history. Thoroughly researched and rich in its insight and analysis, Latter Day Lawyers documents how Mormon lawyers and jurists, most of whom have remained unknown at the national level, have profoundly influenced American law and legal history." Rabbi Dr. David Dalin, author of Jewish Justices of the Supreme Court, from Brandeis to Kagan: Their Lives and Legacies

"Professor Brian Craig has written a book that helps fill a void. In the past, there has been little written about the legal contributions of members of the LDS church. I found his book, written with individual chapters on church members and their contributions to the law, fascinating. . . It is a timely piece of legal history." Senator Harry Reid

Jackie Robinson's Civic, Legal, and Political Legacy

Robinson and reporters, Birmingham, 1963 (LC)

[We have word of the following.] 

The Jackie Robinson Symposium: Civic, Legal, and Political Legacy.  National Archives at Kansas City. 1616 East 18th Street, Kansas City, MO 64108.  Monday, April 1, 2019 - 8:00 a.m. to 2:00 p.m.

On Monday, April 1, from 8:00 a.m. - 2:00 p.m., the National Archives at Kansas City in partnership with the Negro Leagues Baseball Museum will host a public symposium The Jackie Robinson Symposium: Civic, Legal, and Political Legacy.  This event will be held at the Negro Leagues Baseball Museum and will include lunch.

This event is held in partnership with UMKC Law School, Park University, and other community partners.  The event also serves as a Continuing Legal Education (CLE) program for regional lawyers, judges and legal professionals. You can register to receive the CLE credit or as a Non-CLE participant.  Registration and more information is here . The program is ideal for legal history, military history, African American history, and sports history scholars and enthusiast.

Cohn and Tarr on Mark Twain's Will

Henry S. Cohn and Adam Tarr have posted A Challenging Inheritance: The Fate of Mark Twain's Will, which is forthcoming in the Quinnipiac Law Review 37 (April 2019): 271-342

Mark Twain, 1907 (LC)

There have been numerous books and essays written about Mark Twain’s final two unhappy years in Redding, Connecticut, as well as several writings capturing the lives, also generally tragic, of his surviving daughter and granddaughter. This article retells some of that story, but from a legal perspective.

The article makes use of documents from the estates of Mark Twain and his descendants, including original wills, probate papers, trust instruments, and court and business filings. This legal perspective concludes on a happier note, explaining how the literary “Mark Twain” has succeeded in the twenty-first century, well beyond his death in 1910.

Scholar Spotlight: European Legal History

Many thanks to everyone featured in our Scholar Spotlight series on European legal history over the past month. Here's the list of interviews in the order they were posted, for your convenience: 

• Saskia Lettmaier
• Sara McDougall
• Mia Korpiola
• Susanne Pohl-Zucker
• Amalia Kessler
• Tessa Leesen
• Elizabeth Papp Kamali
• Helle Vogt
• Catharine MacMillan
• Ada Kuskowski

Ablavsky on the Origins of Dual Federalism

Gregory Ablavsky, Stanford Law School, has posted Empire States: The Coming of Dual Federalism, which is forthcoming in the Yale Law Journal:

This Article offers an alternate account of federalism’s late eighteenth-century origins. In place of scholarly and doctrinal accounts that portray federalism as a repudiation of models of unitary sovereignty, it emphasizes the federalist ideology of dual sovereignty as a form of centralization — a shift from a world of diffuse sovereignty to one where authority was increasingly imagined as concentrated in the hands of only two legitimate sovereigns.

In making this claim, the Article focuses on two sequential late eighteenth-century transformations. The first concerned sovereignty. Pre-Revolutionary ideas about sovereignty reflected early modern corporatist understandings of authority as well as imperial realities of uneven jurisdiction. But the Revolution elevated a new understanding of sovereignty in which power derived from the consent of a uniform people. This conception empowered state legislatures, which, throughout the 1780s, sought to use their status under new state constitutions as the sole repositories of popular authority to subordinate competing claims to authority made by corporations, local institutions, Native nations, separatist movements.

The second shift came with the drafting and ratification of the U.S. Constitution, which bolstered federal authority partly in order to protect state authority against internal competitors, an aim reflected in the Guarantee and New State Clauses. Ultimately, the Constitution both limited and enhanced state authority; it entrenched a framework of dual sovereignty. After ratification, competitors to state sovereignty were increasingly constrained to appeal to some federal right or power. What had previously been contests among supposedly coequal sovereigns—what modern scholars would call horizontal federalism — became a question of vertical federalism, an issue of whether federal authority would vindicate states or their opponents.

Although the Article concludes with some implications of this history for present-day federalism doctrine and theory, its primary contribution is descriptive. Judges and lawyers routinely and almost unthinkingly invoke localism and power diffusion as the historical values of federalism. Yet the history explored here challenges whether these near-universal assumptions about federalism’s aims actually reflect what federalism was designed to accomplish.

Special Issue: Petitioning in South Asia

A special issue of Modern Asian Studies came out in January 2019 on the theme of "Petitioning and Political Cultures in South Asia." Rohit De (Yale University) and Robert Travers (Cornell University) are co-editors. Here's the Table of Contents from MAS 53:1:

• Rohit De and Robert Travers, "Petitioning and Political Cultures in South Asia: Introduction"
• Abhishek Kaicker, "Petitions and Local Politics in the Late Mughal Empire: The view from Kol, 1741"
• Rosalind O'Hanlon, "In the Presence of Witnesses: Petitioning and judicial 'publics' in western India, circa 1600-1820"
• Robert Travers, "Indian Petitioning and Colonial State-Formation in Eighteenth-century Bengal"
• Bhavani Raman, "Civil Address and the Early Colonial Petition in Madras"
• Aparna Balachandran, "Petitions, the City, and the Early Colonial State in South India"
• Julia Stephens, "A Bureaucracy of Rejection: Petitioning and the impoverished paternalism of the British-Indian Raj"
• Prashant Kidambi, "The Petition as Event: Colonial Bombay, circa 1889-1914"
• Rohit De, "Cows and Constitutionalism"
• Nayanika Mathur, "A Petition to Kill: Efficacious arzees against big cats in India"

Further information is available here.

Muller on Hirabayashi as the "Second Monster"

Eric L. Muller, University of North Carolina School of Law, has posted Korematsu, Hirabayashi, and the Second Monster, which is forthcoming in the Texas Law Review:

In June of 2018 the Supreme Court repudiated its notorious 1944 decision in Korematsu v. United States upholding the mass removal of Japanese Americans from the West Coast. While some celebrated its demise and others doubted the Court’s sincerity, nobody paid attention to an equally odious decision that has hidden behind Korematsu: Hirabayashi v. United States. In that 1943 decision the Court unanimously upheld a lesser racial restriction on Japanese Americans, a dusk-to-dawn curfew. Like Korematsu, that decision has never been overruled, but unlike Korematsu, it has never been deeply scrutinized or pervasively condemned. Hirabayashi survives, providing potential cover for all manner of racial rules less burdensome than removal, such as surveillance, identity cards, or house arrest. This essay flushes Hirabayashi from the shadows, revealing it to be just as flawed as Korematsu, considerably more dangerous, and equally deserving of repudiation.

Sepper and Dinner on Sex in Public

Elizabeth Sepper, Washington University in Saint Louis School of Law, and Deborah Dinner, Emory University School of Law, have posted Sex in Public, which is to appear in the Yale Law Journal:

This Article recounts the first history of sex in public accommodations law—a history essential to debates that rage today over gender and sexuality in public. Just fifty years ago, not only sexual minorities but also cisgender women were the subject of discrimination in public. Restaurants and bars displayed "men-only" signs. Women held secondary-status in civic organizations, like Rotary and Jaycees, and were excluded altogether from many professional bodies, like press clubs. Sports—from the Little League to the golf club—kept girls and women from achieving athletic excellence. Insurance companies and financial institutions subsumed married women's identities within those of their husbands. Over the course of the 1970s, the feminist movement protested and litigated against sex discrimination in public accommodations. They secured state laws opening up commerce and leisure for "full and equal enjoyment" by both sexes. At the time "sex" was added to state public accommodations laws, feminists, their opponents, and government actors understood sex equality in public to signify more than equal access to the public sphere. It also implicated freedom from the regulation of sexuality and gender performance and held the potential to transform institutions central to dominant masculinity, like baseball fields and bathrooms. This history informs the interpretation of public accommodations laws in controversies from same-sex couples' wedding cakes to transgender people's restroom access.

Munshi on White Slavery in an Age of Contract

Sherally Munshi, Georgetown University Law Center, has posted White Slavery and the Crisis of Will in the Age of Contract, which appeared in the Yale Journal of Law & Feminism 30 (2018): 327-69:

Recognizing human freedom is never as simple as acts of legal pronouncement might suggest. Liberal abstractions like freedom and equality; legal formulations of personhood, free will, and contract; the constructed divisions between public and private, self and other, home and market on which the former are predicated — these are often inadequate to understanding, let alone realizing, the shared aspirations they supposedly define. By the same token, the dense and dynamic relations of power that characterize any liberal society overwhelm and exceed our critical vocabulary. “Racism,” “sexism,” and “capitalism” powerfully name structures of inequality, but they fail to capture the full spectrum of social relations, practices, and exchanges that reproduce inequality — deep structures of feeling, unspoken common sense, the stories we tell ourselves about the world and our places in it. Focusing on an early twentieth-century case involving an immigrant convicted of “white slavery,” accused of “mesmerizing” his secretary, this Article explores the ways in which the white slave panic and spiritualist practices reflect a set of anxieties about the nature of agency and consent obscured by the universalizing and formalist abstractions of contract law and theory. Through a close reading of competing narratives surrounding the case, this Article seeks to investigate some of the ways in which the rhetorical distortions of law affect the lives of its most vulnerable subjects.

Moréteau, Masferrer, Modéer and friends on comparative legal history

Out with Edward Elgar is Comparative Legal History, edited by Olivier Moréteau (Louisiana State University), Aniceto Masferrer (University of Valencia), and Kjell A. Modéer (University of Lund). From the press: 

Is comparative legal history an emerging discipline or a much-needed dialogue between two academic subjects? This research handbook presents the field in a uniquely holistic way, and illustrates how comparative law and legal history are inextricably related.

Cementing a solid theoretical grounding for the discipline, legal historians and comparatists place this subject at the forefront of legal science. Comprehensive in coverage, this handbook collates theory and method for comparative legal history, as well as discussing international legal sources and judicial and civil institutions. Particular attention is paid to custom and codification, contracts, civil procedure and ownership. By assessing the evolution of law across European, Asian, African and American environments from the pre-modern era to the nineteenth century, the chapters provide stimulating and enlightening cases of legal history through a comparative lens.

A centrepiece for this field of scholarship, this research handbook will be an essential resource for scholars interested in comparative law, legal theory and legal history, from both legal and social science backgrounds.

Contents after the jump:

Scholar Spotlight: Ada Kuskowski

Today's Scholar Spotlight features Ada Kuskowski, University of Pennsylvania. Earlier in this series, we noted that only three of the fifty contributors to the recently published Oxford Handbook of European Legal History were women. Like Women Also Know History, this interview series aims to showcase female scholars and their work. Its special focus is scholars of European legal history. 

Ada Kuskowski is an assistant professor at the University of Pennsylvania. She lives in Philadelphia, PA, United States. 

Websites:

http://www.history.upenn.edu/people/faculty/ada-maria-kuskowski

https://upenn.academia.edu/AdaMariaKuskowski

Alma maters:

B.A., History, McGill University, 2001.

B.C.L. and L.L.B. (Bachelor of Common Law and Bachelor of Civil Law), McGill University Faculty of Law, 2005.
M.A., History, Cornell University, 2008.

Ph.D., History, Cornell University, 2013.

Fields of interest:

Legal History and Culture, Medieval History, French History, Social Histories of Knowledge, Vernacular Writing and Translation, Court Culture, Colonization and Colonial law.

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

I fell in love with history in my undergraduate classes at McGill University, especially the classes on late antiquity with Elizabeth DePalma Digeser. This was when I realized that I preferred the puzzle of messy periods of transition and change to classic or golden ages. However, I went to law school afterwards, partially out of a perceived need for a “real” profession and partially because Quebec tuition rates for Quebec residents make it possible to go to law school to learn and to think without the burden of great debt and a future of corporate-law work to pay them off.

Studying common law and civil law side by side made clear to what extent law is both a cultural and historical product. I was able to explore that in various independent studies that ranged from the Roman law of treason, to cultural property law debates to histories of codification thanks to generous mentors, namely Nicholas Kasirer, Blaine Baker and Daniel Jutras. I also minored in Classics to pick up the languages to apply to graduate school, because I had decided to see whether I could make a career out of my real passion. I then went to graduate school at Cornell and ended up with a dissertation based on texts I had discovered in a dusty basement section of my law school library. At Cornell, I was the extraordinary beneficiary of the intellectual dynamism and true generosity of Paul Hyams, Bernadette Meyler, Duane Copris and Eric Rebillard. How great a part the human chain plays in academic careers.

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

Penn is full of wonderful historians, medievalists and legal historians and I feel very lucky to be part of such a vigorous and engaging intellectual community. The legal historians have a group called “Writer’s Block,” run by Sophia Lee, Sally Gordon and Serena Mayeri that is especially fruitful for workshopping current work. The library and its fantastic curators are also a terrific resource. My class on the history of property was there yesterday and Dr. Mitch Fraas, senior curator, assembled various delights for the students, including a thirteenth-century dowry agreement, a sixteenth-century will, and a nineteenth-century sheriff’s sale broadsheet from Philadelphia.

What projects are you currently working on?

I am currently completing a book manuscript titled Law in the Vernacular: Composing Customary Law in Thirteenth-Century France. This cultural history of legal knowledge explores the move to set a previously oral custom into writing. This shift from oral to written has been treated legalistically by scholars who describe custom as “crystallizing” and being “set in writing” seemingly on its own. Focusing on the coutumiers, texts written in thirteenth-century Northern France to describe the customs and procedures of secular courts, I argue that these early texts of written custom were authored compositions that changed the world of law.

Their authors chose to write custom in the vernacular, the language of lived law and everyday life, rather than in Latin, the language of the church, universities, and written record until that point. This opened the conceptual world of law to lay people and changed custom from a community practice to an erudite form of vernacular knowledge. This form of knowledge was not aiming at petrifying the “good old law” but at shaping a new intellectual discipline for a new type of jurist, one who knew custom and thought in the vernacular. 

This legal history is thus also a history of the construction and transmission of knowledge, the development of sophisticated modes of thinking outside of the universities, and the effect of the technology of writing on the history of lay thought and institutions. 

Witt and Osdiek, "The Czar and the Slaves: Two Puzzles in the History of International Arbitration

John Fabian Witt (Yale Law School) and Bennet Osdiek (J.D. candidate, Yale Law School) have posted "The Czar and the Slaves: Two Puzzles in the History of International Arbitration," which is forthcoming in the American Journal of International Law. Here's the abstract:

In 1822, the Russian Czar Alexander decided an arbitration between the United Kingdom and the United States over the fate of 5,000 enslaved persons who fled to British lines at the end of the War of 1812. American observers have asserted for more than a century that the Czar’s decision, which has gone down in history as one of the canonical Anglo-American arbitrations of the Early Republic, favored the United States. But did the U.S. really win? Secretary of State John Quincy Adams complained at the time that the decision was not sufficiently clear. And new debate has broken out in the historical literature. This article resolves the question, relying in part on new evidence from diplomatic archives in the United States and the United Kingdom. We show that, as a formal matter, the Czar sided with the United States, though the arbitration proved useful to U.K. statesmen as well. The curious case of the Czar and the slaves also poses a second puzzle about the relationship between slavery and the emergence of modern international law. Even as the U.K. was beginning to use international law to oppose the slave trade, the United States aimed to turn some of international law’s institutions into powerful bastions of support for slavery.

The full article is available here.

Tsai, Practical Equality: Forging Justice in a Divided Nation

W.W. Norton has recently released Practical Equality: Forging Justice in a Divided Nation, by Robert L. Tsai (American University). Here's a description from the Press:

Equality is easy to grasp in theory but often hard to achieve in reality. In this accessible and wide-ranging work, American University law professor Robert L. Tsai offers a stirring account of how legal ideas that aren’t necessarily about equality at all—ensuring fair play, behaving reasonably, avoiding cruelty, and protecting free speech—have often been used to overcome resistance to justice and remain vital today. 

Credit: @PracticalEqual

Practical Equality is an original and compelling book on the intersection of law and society. Tsai, a leading expert on constitutional law who has written widely in the popular press, traces challenges to equality throughout American history: from the oppression of emancipated slaves after the Civil War to the internment of Japanese Americans during World War II to President Trump’s ban on Muslim travelers. He applies lessons from these and other past struggles to such pressing contemporary issues as the rights of sexual minorities and the homeless, racism in the criminal justice system, police brutality, voting restrictions, oppressive measures against migrants, and more. 

Deeply researched and well argued, Practical Equality offers a sense of optimism and a guide to pursuing equality for activists, lawyers, public officials, and concerned citizens.

A few blurbs:

“Egalitarians take notice! Our interpretations of the Constitution’s guarantee of equality are losing ground on every front. Robert Tsai develops his argument via a great array of well-told historical and contemporary cases, and he is deeply alive to the perils as well as the promise of his proposal.” — William E. Forbath 

“How do you fight for social change during periods of reaction or when structures of injustice are deeply entrenched? Robert Tsai’s Practical Equalitybeautifully wrestles with this dilemma and with the everyday political challenge of defending the principle of equality under less than ideal circumstances. The result is a work of striking political and legal imagination, an essential book with critical insights for activists, scholars, and lawyers.” — Aziz Rana

More information is available here.

2019 British Legal History Conference

The program for the 2019 British Legal History Conference is now posted. You can have a look here. The conference will be take place July 10-13, 2019  at the University of St. Andrews, Scotland. 

Here are the plenary sessions: 

Plenary I – 10 July 2019

Caroline Humfress (St Andrews), ‘Some Comparative Legal History: Lazarus and the Lawyers’

Chair: John Hudson (St Andrews)

Plenary II - 11 July 2019

Alice Taylor (KCL), ‘What does Scotland’s earliest legal tractate actually say (and what does it mean)?’

Chair: William Eves (St Andrews)

Plenary III – 12 July 2019

Rebecca Probert (Exeter), ‘What Makes a Marriage? Religion, the State, and the Individual in the Long Nineteenth Century’

Chair: Andrew Cecchinato (St Andrews)

Plenary Panel – 12 July 2019

Lorna Drummond (Sheriff of Tayside and Fife)

Geoff Lindsay (Justice, Supreme Court of New South Wales)

Hector MacQueen (Edinburgh – Formerly Scottish Law Commission)

Plenary IV – 13 July 2019

Ian Williams (UCL), ‘James VI and I, Rex et Iudex: One King as Judge in Two Kingdoms’

Chair: Sarah White (St Andrews)

Further information is available here.

Scholar Spotlight: Catharine MacMillan

Today's Scholar Spotlight features Catharine MacMillan, King's College London. We noted earlier in this series that only three of the fifty contributors to the recently published Oxford Handbook of European Legal History were women. Like Women Also Know History, this interview series aims to showcase female scholars and their work. Its special focus is scholars of European legal history. 

Catharine MacMillan is a Professor of Private Law at the Dickson Poon School of Law, King’s College London. She lives in London, England.

Website: https://kclpure.kcl.ac.uk/portal/en/persons/catharine-macmillan(66520fd2-33f7-4f42-822d-4c419abfbf83).html

Alma maters: BA (History, University of Victoria), LLB (Queen’s University, Canada, LLM (University of Cambridge)

Fields of interest: intellectual and doctrinal legal history, legal biography, legal history of the British Empire, English contract law

Describe your career path.  What led you to where you are today?: A fortunate stroke of serendipity took me to legal academia.  From early childhood I had wanted to be a lawyer. When I graduated from high school in Canada, I chose history as my first degree subject at the University of Victoria.  History as a subject was all-encompassing, in my view, and thus ideal for a curious teenager.  This was followed by law at Queen’s University.  I returned to my home province and clerked for the Chief Justice of British Columbia, completed my articles at Davis and Company in Vancouver and was duly called to the Bar of British Columbia.  I then had an opportunity to undertake an LLM at the University of Cambridge (Gonville and Caius College); having received my degree I returned to my firm and a practice in commercial litigation.  It did not last for long as family reasons brought me back to England.  In London I took up what began as a short term position in the law school at Queen Mary University of London.  I discovered a love of academic life and spent over two decades at Queen Mary before taking up a position at the University of Reading as a Professor of Law and Legal History.  I came to the Dickson Poon School of Law at King’s College London in 2016.

What do you like the most about where you live and work?  I love living in London – every day is different.  The Dickson Poon School of Law is at Somerset House on the Strand, right in the very heart of London  It is a wonderful place to examine the richness, diversity and complexity of the human condition.  And there are the added benefits of libraries, museums, galleries, theatre, and music all within an easy walk.   To paraphrase Samuel Johnson, one never tires of its attractions.

What projects are you currently working on?  I have two large projects that I have been working on. The first is a legal biography of the life of Judah Benjamin, one-time Louisiana senator, Confederate Secretary of State and ultimately, a leading QC in London.  I am curious not only about Benjamin’s life but the unique contributions he brought to legal development.  The second is a consideration of the functioning of the Judicial Committee of the Privy Council as an imperial court.  I also have a number of smaller, discrete projects which are ongoing.  At present these include examinations of the contractual doctrines of frustration, and of mistake and on modern non-disclosure agreements.

How have your interests evolved since finishing your studies? Because my studies were directed at becoming a practising lawyer in one sense my interests have changed enormously.  In another sense they have not changed at all.  I took the view early in law school that legal materials, institutions and actors were fragments from which an historical explanation of the law could be created.  An academic career allows me to gather together these fragments and to try to construct explanations.

What’s the most fascinating thing you’ve ever found at the archives? This is a really hard question to answer.  The document that I have found that has probably had the most profound impact upon me was one I found accidentally in the search for something else: a contract by which an enslaved person was sold by one party to another.  It brought home to me something of the painful and brutal reality of slavery. 

Is there an article, book, film, website, etc. that you would recommend to LHB readers?  I recommend Garrow’s Law, a legal period drama based loosely around the eighteenth century barrister, William Garrow.  It draws neatly upon various legal history sources to bring the subject matter alive for students (and other viewers!).

What have you found to be the most surprising thing about academic life? I have been amazed by all of the wonderful and engaging people I’ve met from around the world.

Photo caption: Catharine MacMillan at Judah Benjamin's grave in Paris. 

Hello again from Sydney! Collaboration: Why and How

Hello again everyone…. from the now rather relentlessly sunny Sydney. 

I promised to blog about collaboration. Since Rage for Order came out, “how can you collaborate so much” is the question I’m most frequently asked. I have been writing and working with people more and more. I love doing this. I suspect sometimes that this is because I missed a career calling as an open plan office worker… but more on that some other time.

One of the reasons why my latest book has taken so long to write is because I am in deep mourning over the end of the Rage for Order project with Lauren Benton. She joked at one point that we should call it “Ordering the World” because we’d plotted the book at restaurants all over the world from New York to Helsinki to Paris and other places in between. That was such an easy, organic collaboration that it is hard to extract general tips from it. So, I’ve asked around a bit so that I don’t just say, “give up now, you’ll never have it so good!”

Seriously, though, collaboration is the way of the future. In Australia, collaborative projects are more likely to be funded by the Australian Research Council because they present better value for money. History is getting to the point that we all need to do broader and deeper research. To do this requires us to share resources, methodologies and writing projects. Even in our mid-career fellowship applications in Australia, a whole section must describe how we will use public funds to collaborate.

Anyway, some tips:

TIP 1: Collaborate at the right time! I think it will be while before you should co-author your first book in the US market. Our profession still thinks of careers in terms of benchmarks. A smart PhD is the first benchmark. Converting it into a cracker first book with a good publisher is the second. Then, maybe, it is time to consider working with others.

Don’t just collaborate for the sake of it, though! Do something you and your collaborators could not do by yourselves. The best collaborations are bigger and better than the sum of their parts.

TIP 2: Share resources! Even if you are not writing with someone, consider sharing your archives with like-minded scholars. Collaboration saves the world! Why do we all need to go to the archives over and over, when we can photograph and share records (or, better still, work with archives to digitize them properly)? My latest project, Inquiring into Empire involves eight scholars to varying degrees. The project is based on a vast archive of commissions of inquiry data that we have copied and shared from the National Archives (UK). We are also slowly uploading our own private digital archives to a shared Dropbox account. Some of us will need to go to London to do more contextualising work, but we have a wealth of information to be getting on with in the meantime.

TIP 3: Standardize! Again, even if you are not writing with others, consider making your data shareable by using standard systems of classification. This appeals to me particularly as the daughter of a classification-mad librarian. In Inquiring into Empire, we are working to establish standard notetaking practices so that we can spot patterns across the archive. In fact, I’m off to Tasmania in July to discuss some Australia-wide protocols for note-taking. We will discuss whether we should be coding people’s professions using standard terminology and whether we should adopt UNICEF’s classifications of crimes. If we use bigger classification systems, others can data mine our work. Imagine if we all did this? Imagine the questions we could answer about history? So, when you are starting a project, even an individual one, think about how you can contribute to something bigger for the common good.

TIP 4: Trust and like your collaborator! Pull your weight! Work with someone who pulls their weight, respects deadlines, is a great colleague who nurtures other peoples' careers, and makes you laugh. Just as important, don’t work with other people if you are not the sort of person who is always fighting to do more than your share, looks out for people and can laugh at yourself.

Even with such indicators, make sure you start small, set up expectations clearly, and see how a collaboration goes before you plan a giant project. 

TIP 5: Share the load! If you are working with people on a research project, make sure you share the load to maximise productivity. Talk about expectations and divvy up tasks. Laurie and I did this by dividing some chapters into two parts (we wrote one half each). Sometimes we allocated whole chapters. This is a great way to work because it means no one is ever waiting. You always have an independent task to be getting on with.

TIP 6: Hand it over! A great benefit of writing together is that you can send off an unpolished piece when you can’t bear to look at it anymore. That is awesome! My other great collaborator, David Roberts, and I do this from the get-go. He sends some notes about something interesting, I’ll play with them to see what they add up to and then send them back. From there we work progressively to fill in the gaps and write through in one- to two- week bursts. Our work always comes back better.

TIP 7: Write over! …Which brings me to the next tip. If you are going to write with someone, you have to decide at the outset that you are brave enough to write over their work and that you are confident enough for them to write over yours. This is the key. You should probably settle this in advance, though it happened automatically in all of my collaborations.

1. Write with someone whose writing you admire. This tip requires faith in your collaborator.
2. When you get something back, read with mark-up hidden. This helps you to let go of the little things. Though, it did end badly once with Laurie when we ended up in an endless ‘the’ exchange. I took them out, she put them back in, I took them out, she put them back in … and so on, until I had a Groundhog Day moment. Then I turned mark-up back on and left them in.
3. Let things go! If you can’t let your prose go, you shouldn’t be collaborating. If some phrase is really important to you, raise it once. If your partner doesn’t like it, delete and move on. Who cares! If you have followed, sub-tip (a), all will be well. Laurie and I ended up having this conversation about Rage in reverse. I deleted an anecdote I’d written about emancipist William Redfern in New South Wales whose boorish dining habits became a metaphor for moral decay in the convict colony. Laurie told me that it should stay. So there it is.

TIP 8: Set the ground rules! Now that I am writing articles with more collaborators who have contributed to different degrees to our outputs, I’m learning some new things about setting up collaborations:

a.      Decide author order in advance. If you are doing loads of things together and will contribute roughly equally overall, maybe alphabetical works.  If, as in a recent draft article I worked on, some poor colleague gave a disproportionate amount of his life over to doing incredibly tedious computer analysis, make them lead author and list everyone else by contribution. Or, at very least, write a paragraph or a footnote explaining what everyone did exactly. But sort it out in advance, so no one feels aggrieved. And be generous!

b.      You should also sort out how the collaboration will work. Some lead investigators want to have final say on everything in return for shaping the grants, organising publications and mobilising everyone. As a lead investigator, I don’t work this way. I’m happy for everyone to have ideas, pitch in, write over, opt in or out as they choose, so long as we communicate and acknowledge each other’s contributions. The point is, everyone should know how it will work and what is expected of them in advance.

c.      Communicate very clearly and consistently. Our first commissions output was late (by one week, if that counts) because I thought everyone knew what they needed to do and when, but they didn’t. If you are in charge, and are sending people off to complete tasks, you need to follow up everything with a very clear e-mail pointing out exactly what each person needs to do and when before you go to the beach for the summer.

d.      You won’t always agree with your collaborators and everyone has a bad week, misunderstands something or gets distracted. If something is going wrong, deal with it early. Don’t let anything fester. If in doubt, pick up the phone or organise a get-together.

TIP 9: Have fun together! Most of my collaborations work by e-mail, but it is important to get together periodically to sort the hard bits out, or even more importantly, to break bread together. Working together should be fun!

See you next week.... when I think I will write about method.