Nedzel on the Rule of Law in the United States

Nadia E. Nedzel, Southern University Law Center, has posted The United States, Checks and Balances, and a Commercial Republic: An Experiment:

This chapter explains how the concept of the rule of law grew and changed in the founding of the United States. The United States was founded by people who thought they were adopting their common law heritage. United by a hustling spirit and a deep distrust of big government (especially England’s), the Founders were deeply influenced by the Scottish Enlightenment and its focus on individual liberty (as can be seen in Madison’s Federalist Papers), and they were determined to create a commercial republic (Hamilton). With the passage of the Constitution, they were fascinated by the French Revolution, and some (Jefferson) felt a strong accord with its theoretical concepts. Others (Adams) believed that the Philosophes were unrealistic, far too involved in theory, and had not seen the down-side of legislation-centered democracy.

While originally English in the focus on limited government and individual liberty, the American conception of the rule of law first became more self-conscious, more self-critical, and next developed a deeper (or at least more self-conscious) set of checks and balances than its parent country. That concept – the American understanding of the relationship between man and government – has gradually become more conflicted and intertwined with Rechtsstaat during and after the Great Depression and the creation of a national income tax, social security, and other ‘safety-net’ governmental programs to help those in need, as will be discussed in Chapter 5.

--Dan Ernst.  H/t: Legal Theory Blog

Stevens on the First "Four Strikes" (as it were) Law

Nomos and Nullification: A Coverian View of New York's Habitual Offender Law, 1926 to 1936, by Caleb J. Stevens, was recently published in the American Criminal Law Review 56 (2019): 427-463.  I believe Mr. Stevens wrote the article while a law student at the University of Illinois.  He thanks two legal historians on that law faculty, Bruce Smith and Richard Ross.  Here’s the abstract:

In 1926, New York passed a habitual offender law that mandated life sentences for a fourth felony conviction, regardless of severity. Called the Baumes Law, after its principal author and advocate New York Senator Caleb Baumes, the law remains one of the harshest habitual offender laws ever passed in the United States. Until its amendment in 1936, the law launched an intense policy debate that in many ways reflects the contemporary debate over Three Strikes legislation and high U.S. incarceration rates.

In 1994, California enacted a habitual offender law, popularly referred to as the “Three Strikes and You’re Out” Law, which dovetailed with a period of emphasis on the incapacitation of habitual offenders. Several states passed similar laws that punish recidivists with longer prison terms. In Washington, a third conviction for the “most serious offenses” listed in the law requires a life sentence without the possibility of parole. Until its revision in 2012, the California Three Strikes Law was one of the most severe, imposing an indeterminate sentence of twenty-five years to life for defendants previously convicted of two or more felonies. Even with the Supreme Court decision in Ewing v. California upholding the California Three Strikes Law against an Eighth Amendment challenge, the policy debate continues around current habitual offender laws and high incarceration rates. During the Progressive Era, a similar debate raged in New York and across the U.S. over how to address the ‘habitual criminal problem.’ New York answered with passage of the Baumes Law – one of the harshest habitual offender statutes in U.S. history.

This article discusses, through the lens of Robert Cover’s concept of nomos, the nullification of the Baumes Law by juries, judges, and prosecutors in order to mitigate its harshest application. Many of these criminal justice actors repeatedly exhibited concern about imposing life sentences for four felony convictions, especially for non-violent felonies such as minor property crimes. Section I summarizes Robert Cover’s concept of nomos, discussing its relevance to the rise and fall of the Baumes Law. Section II then provides a brief historical backdrop to passage of the Baumes Law, highlighting the role of a widely perceived crime wave, and the pseudo-scientific rationales for incapacitation and removal of certain persons from society. Section III discusses the competing normative universes that characterized the fairly turbulent, brief history of the Baumes Law.

–Dan Ernst

Matzko's "Best Men of the Bar" (and Introduction by Funk)

Well, this is unexpected.  Historians interested in the American bar at the turn of the twentieth century have long known of John Austin Matzko’s work on the American Bar Association–if not his dissertation, than his chapter in The New High Priests, a collection of essays edited by Gerard W.  Gawalt.  In July, the dissertation is to be published by Talbot Publishing (an imprint of Lawbook Exchange) as Best Men of the Bar: The Early Years of the American Bar Association, 1878-1928:

Matzko illustrates how the early American Bar Association endeavored to create a traditional professional gatekeeping organization by gaining control of legal education, entrance examinations, and ethical codes. The early ABA supported reformist values of political and social change if such change could be overseen by courts. It was not until the second decade of the twentieth century that it began its transformation into a more conservative group.

 Here is an endorsement:

"In this penetrating and gracefully-written account of the formative first-half century of the American Bar Association, Matzko actually makes institutional history absorbing - an excellent account of the personalities and ideas that formed the legal profession on a national level, the transition from a "Gentleman's Club" to a professional association and, in due course, an entity which established widely-shared minimum standards for the quality of legal education and admission to the State bars. Likely to be the definitive account for some time to come. William E. Butler, Dickinson Law, Pennsylvania State University.

The book includes an introduction by Kellen Funk, Columbia Law School, who was one of Professor Matzko’s students at Bob Jones University, where Professor Matzko taught for over forty years.  Professor Funk's introduction, now posted on SSRN, is a valuable review essay on the history of the legal profession during Professor Matzko’s period.  Here is its abstract:

John A. Matzko's The Best Men of the Bar began as a dissertation defended in 1984. Despite the central importance of the ABA to the turn-of-the-century class stratification of the bar, the accreditation of legal education, the emergence of the “canons” of legal ethics, and the settlement of the codification controversy with model laws and restatements, no institutional history of the ABA appeared in the intervening years. Literatures have arisen devoted to the entrance of women and African Americans to legal practice in the late nineteenth century, while the internal dynamics of the elite (mostly male and white) bar during the New Deal has received sustained attention. But as of yet, the elite of the bar to which women, minorities, and New Deal progressives were reacting has been relatively neglected.

Indeed,The Best Men of the Bar presciently offered a number of arguments that today puts the work right at home in contemporary historiography of America’s legal profession, particularly in its focus on the control of legal education and the interconnections between codification and access to the profession. The central argument of the book is one that both anticipates recent literature yet also extends it by disrupting our conventional attempts to describe the elite bar of the Gilded Age and Progressive Era in the United States. While recent studies have challenged the notion of a monolithic classical legal “orthodoxy,” Best Men of the Bar clarifies the story by dividing the ABA’s early history into two periods: one that drew on and was shaped by the age of reform, and a later period of reaction and retrenchment. This introduction surveys the major historiographical debates about the turn-of-the-century American legal profession to illustrate the power of this argument. One of the recurring themes of the works surveyed within is the slightly embarrassed admission that the Gilded Age bar in many ways countered the trend towards conservatism that developed later in the Progressive Era.

–Dan Ernst

MacDonald on Canada's Residential Schools

From the University of Toronto Press comes The Sleeping Giant Awakens: Genocide, Indian Residential Schools, and the Challenge of Conciliation by David B. MacDonald, University of Guelph. From the press:

Confronting the truths of Canada’s Indian residential school system has been likened to waking a sleeping giant. In The Sleeping Giant Awakens, David B. MacDonald uses genocide as an analytical tool to better understand Canada’s past and present relationships between settlers and Indigenous peoples. Starting with a discussion of how genocide is defined in domestic and international law, the book applies the concept to the forced transfer of Indigenous children to residential schools and the "Sixties Scoop," in which Indigenous children were taken from their communities and placed in foster homes or adopted.

Based on archival research, extensive interviews with residential school Survivors, and officials at the Truth and Reconciliation Commission of Canada, among others, The Sleeping Giant Awakens offers a unique and timely perspective on the prospects for conciliation after genocide, exploring the difficulties in moving forward in a context where many settlers know little of the residential schools and ongoing legacies of colonization and need to have a better conception of Indigenous rights. It provides a detailed analysis of how the TRC approached genocide in its deliberations and in its Final Report.

Crucially, MacDonald engages critics who argue that the term genocide impedes understanding of the IRS system and imperils prospects for conciliation. By contrast, this book sees genocide recognition as an important basis for meaningful discussions of how to engage Indigenous-settler relations in respectful and proactive ways.

Here's the Table of Contents:

Introduction
1. Understanding Genocide: Raphael Lemkin, the UN Genocide Convention, and International Law
2. Pluralists, Indigenous Peoples, and Colonial Genocide
3. Forcible Transfer as Genocide in the Indian Residential Schools
4. The Sixties and Seventies Scoop and the Genocide Convention
5. The Truth and Reconciliation Commission of Canada and the Question of Genocide
6. The TRC, Indigenous Death, Inside and Outside the Residential Schools
7. Indigenous Genocide: Remembering, Commemorating, Forgetting
8. Indigenous Peoples and Genocide: Challenges of Recognition and Remembering

9. Reconciliation, Resurgence, and Rollback in the Aftermath of Genocide

Further information is available here.

--Mitra Sharafi

Washington History Seminar Fall 2019

[We have the following announcement.  DRE]

The Washington History Seminar: Historical Perspectives on International and National Affairs

We are delighted to announce below the exciting schedule of speakers for the fall 2019 season of the Washington History Seminar (WHS) — one of Washington D.C.’s most intellectually vibrant venues for thinking about the past and establishing its relevance to the present. Each week the seminar offers fresh perspectives on an important historical topic, bringing distinguished senior scholars, talented young historians, and other inquiring minds to talk about their recent research, reveal their latest discoveries, and engage in discussion with the audience.

September 9
Sophia Rosenfeld on Democracy and Truth: A Short History (Wm. Roger Louis Lecture)

September 16
Nemata Blyden on African Americans and Africa: A New History

September 23
Carole Fink on West Germany and Israel: Foreign Relations, Domestic Politics, and the Cold War, 1965-1974

September 30
Monica Kim on The Interrogation Rooms of the Korean War: The Untold History

October 7
A. James McAdams on Vanguard of the Revolution: The Global Idea of the Communist Party

October 21
Petra Goedde on The Politics of Peace: A Global Cold War History

October 28
Charles King on Gods of the Upper Air: How a Circle of Renegade Anthropologists Reinvented Race, Sex, and Gender in the Twentieth Century

November 4
Lizabeth Cohen on Saving America’s Cities: Ed Logue and the Struggle to Renew Urban America in the Suburban Age

November 18
Ambassador Anatoly Dobrynin Centennial Panel (with the Kennan Institute)

December 2
Michael Dobbs on The Unwanted: America, Auschwitz, and a Village Caught in Between

December 9
Daniel Schwartz on Ghetto: The History of a Word

December 16
Amy Aronson on Crystal Eastman: A Revolutionary Life

Mondays at 4:00 p.m..  Woodrow Wilson Center, 6th Floor Moynihan Board Room
Ronald Reagan Building, Federal Triangle Metro Stop.  The seminar is co-chaired by Eric Arnesen (George Washington University) and Christian Ostermann (Woodrow Wilson Center) and is organized jointly by the National History Center of the American Historical Association and the Woodrow Wilson Center's History and Public Policy Program. It meets weekly during the academic year. The seminar thanks its donors and institutional partners for their support.

Harrison on Executive Power

John C. Harrison, University of Virginia School of Law, has posted Executive Power:

This article presents a new conceptualization of the executive power conferred by Article II of the Constitution. That conceptualization is a more detailed version of the Whig understanding of executive power, which was common among Americans when the Constitution was adopted. The executive power is the capacity to use the resources of the government to perform the functions of the government, subject to the affirmative requirements and limitations imposed by law. Executive officials operate in a legal environment of rules that empower and constrain them, but those rules do not come from the executive power itself. They come from elsewhere in the Constitution and laws. Possession of executive power by itself confers no policy discretion, no authority to use the government’s resources, and no privileges to invade private interests. Military functions are executive, and members of the military are likewise subject to rules that empower and constrain them, including especially the law of war. The President’s status as Commander in Chief makes him the highest commander while leaving him, like all commanders, subject to the law. The article identifies possible constitutional sources of executive policy discretion other than the executive power itself, and explains that presidential control of the executive branch is consistent with the limited conception of executive power it espouses. In addition to being familiar at the time of the framing, the Whig understanding of executive power figured prominently in the Federal Convention's drafting and has been a mainstay of debates about the executive throughout the Constitution’s history.

--Dan Ernst

Arlyck on Civil Forfeiture at the Founding

Kevin Arlyck, Georgetown University Law Center, has posted The Founders' Forfeiture, which is forthcoming in volume 119 of the Columbia Law Review (2019):

Civil forfeiture is, in a word, controversial. Critics allege that law enforcement authorities use forfeiture as means of appropriating valuable assets from often-innocent victims free of the constraints of criminal process. Yet despite recent statutory reforms, a significant obstacle to meaningful change remains: Under longstanding Supreme Court precedent, the Constitution imposes few limits on civil forfeiture. Relying on a perceived historical tradition of unfettered government power to seize and keep private property in response to legal violations, the Court has consistently rejected claims to constitutional protections. Faced with an unfriendly historical tradition, forfeiture’s critics have tried to limit history’s relevance by asserting that forfeiture was traditionally used for limited purposes, but such arguments have fallen on deaf ears.

Alexander Hamilton (NYPL)

As this Article explains, forfeiture’s critics are right, but for the wrong reasons. Based on original research into more than 500 unpublished federal forfeiture cases from 1789 to 1807, this Article shows—for the first time—that forfeiture in the Founding era was significantly constrained. But not by judges. Instead, concern over forfeiture’s potential to impose massive penalties for minor and technical legal violations spurred Alexander Hamilton and the First Congress to establish executive-branch authority to return seized property to those who plausibly claimed a lack of fraudulent intent. What is more, Hamilton and subsequent Treasury Secretaries understood themselves to be obligated to exercise that authority to its fullest extent—which they did, remitting forfeitures in over 90% of cases presented to them. The result was an early forfeiture regime that was expansive in theory, but in practice was constrained by a deep belief in the impropriety of taking property from those who inadvertently broke the law.

Understanding early forfeiture’s true nature has significant implications for current debate about its proper limits. The existence of meaningful constraints in the Founding era calls into question key historical propositions underlying the Court’s permissive modern jurisprudence, and suggests that history may offer an affirmative basis for identifying greater constitutional protections today. This is also an opportune moment to reexamine forfeiture’s historical bona fides. In addition to a growing public outcry over civil forfeiture, there are hints that members of the current Supreme Court may be willing to reconsider its constitutionality.

--Dan Ernst

Galer on Disability Rights activism in Canada

Out with the University of Toronto Press is Working Towards Equity: Disability Rights Activism and Employment in Late Twentieth-Century Canada by Dustin Galer, personal historian and founder of MyHistorian.com. From the publisher: 

In Working towards Equity, Dustin Galer argues that paid work significantly shaped the experience of disability during the late twentieth century. Using a critical analysis of disability in archival records, personal collections, government publications and a series of interviews, Galer demonstrates how demands for greater access among disabled people for paid employment stimulated the development of a new discourse of disability in Canada. Family advocates helped people living in institutions move out into the community as rehabilitation professionals played an increasingly critical role in the lives of working-age adults with disabilities. Meanwhile, civil rights activists crafted a new consumer-led vision of social and economic integration. Employment was, and remains, a central component in disabled peoples' efforts to become productive, autonomous and financially secure members of Canadian society. Working towards Equity offers new in-depth analysis on rights activism as it relates to employment, sheltered workshops, deinstitutionalization and labour markets in the contemporary context in Canada.

Praise for the book:

"This is an ambitious and largely successful book. It deserves a wide readership because of its potential to expand the historiography about work, rights and rights movements, and policy (federal and provincial) – in the style of the new disability history – by bringing a disability analysis to bear on these topics." -Jason Ellis

"Working towards Equity makes a notable and worthwhile contribution to the field of disability studies as well as to social policy, labour history, and social movement activism studies in Canada. The illustrations and photographs are terrific features helping to bring alive the history, making it both personal and political." -Michael J. Prince

"Working towards Equity draws from a broad array of sources, including archived manuscript collections, documentary films, interviews, government reports, and published monographs and articles. Filling a significant gap in the historiography of disability rights, employment, and labour, this study makes a significant contribution to twentieth-century social and cultural history." -Michael Rembi 

Further information is available here.

--Mitra Sharafi

Helmholz on "The Profession of Ecclesiastical Lawyers"

New from Cambridge University Press: The Profession of Ecclesiastical Lawyers: An Historical Introduction, by R. H. Helmholz (University of Chicago). A description from the Press:

Historians of the English legal profession have written comparatively little about the lawyers who served in the courts of the Church. This volume fills a gap; it investigates the law by which they were governed and discusses their careers in legal practice. Using sources drawn from the Roman and canon laws and also from manuscripts found in local archives, R. H. Helmholz brings together previously published work and new evidence about the professional careers of these men. His book covers the careers of many lesser known ecclesiastical lawyers, dealing with their education in law, their reaction to the coming of the Reformation, and their relationship with English common lawyers on the eve of the Civil War. Making connections with the European ius commune, this volume will be of special interest to English and Continental legal historians, as well as to students of the relationship between law and religion.

A few blurbs:

‘This valuable book by one of our most eminent legal historians is the product of fifty years engagement with the history of the Church courts in England. It not only provides new insights into the careers of eighteen very different ecclesiastical lawyers over seven centuries but also (in the first half) prepares the way with an accessible and authoritative history of their profession.' -- John H. Baker 

‘The Profession of Ecclesiastical Lawyers: An Historical Introduction is an important contribution to the literature on the history of the legal profession by the leading scholar of canon law. It combines a thorough and insightful analysis of the development, education, and regulation of a somewhat neglected segment of the English legal profession with a view of the profession through the activities of its practitioners.' -- Jonathan Rose

More information, including the TOC, is available here.

-- Karen Tani

Chief Judge Judith Kaye: In Her Own Words

New from SUNY Press: Judith S. Kaye in Her Own Words: Reflections on Life and the Law, with Selected Judicial Opinions and Articles:

In 1983, Judith S. Kaye (1938–2016) became the first woman appointed to the Court of Appeals, New York’s highest court. Ten years later, she became the first woman to be appointed chief judge of the court, and by the time she retired, in 2008, she was the longest-serving chief judge in the court’s history. During her long career, she distinguished herself as a lawyer, jurist, reformer, mentor, and colleague, as well as a wife and mother.

Bringing together Kaye’s own autobiography, completed shortly before her death, as well as selected judicial opinions, articles, and speeches, Judith S. Kaye in Her Own Words makes clear why she left such an enduring mark upon the court, the nation, and all who knew her.  The first section of the book, Kaye’s memoir, focuses primarily on her years on the Court of Appeals, the inner workings of the court, and the challenges she faced, as chief judge, in managing a court system populated by hundreds of judges and thousands of employees.  The second section, a carefully chosen selection of her written opinions (and occasional dissents), reveals how she guided the law in New York State for almost a quarter century with uncommon vision and humanity. Her decisions cover every facet of New York and federal law and have often been quoted and followed nationally.  The final section of the book includes selections from her numerous articles and speeches, which cover the field, from common law jurisprudence to commercial law to constitutional analysis, all with an eye to the future and, above all, how the law can best affect the everyday lives of people who come to court—willingly or unwillingly—including, not least, those most in need of the law.

--Dan Ernst.  H/t: JDG3

Weekend Roundup

• The National History Center's next Congressional briefing will be on the history of health care in the U.S.  It will be Friday, June 28, 2019 from 10:00 am-11:00 am, in the Gold Room, Rayburn House Office Building, Room 2168.  The speakers will be Beatrix Hoffman, Northern Illinois University, and Nancy Tomes, Stony Brook University. Alan Kraut, American University, will moderate.  Saith the NHC: “Why is the American health care system so costly, complex, and challenging for those who seek to legislate improvements in access to and quality of care? The answers are rooted in the historical forces that gave rise to the current system. Two leading authorities on the history of American health care will explain how we got where we are today.” 

• Deadline approaching:  Applications for ASLH Cromwell Research Fellowship grants for early career scholars are due on July 1.

• Over at Jotwell, Joanna Grisinger, Northwestern University, has posted The Federal Trade Commission as National Nanny, her appreciation of Rachel Louise Moran's "Fears of a Nanny State: Centering Gender and Family in the Political History of Regulation," in Shaped by the State: Toward a New Political History of the Twentieth Century 317 (Brent Cebul, Lily Geismer, and Mason B. Williams, eds., 2019).

• ICYMI:  The Supreme Court Rulings That Have Shaped Gay Rights in America (History Channel).  Why birthright citizenship is crucial to democratic governance, by Marixa Lasso, Universidad Nacional de Colombia, on WaPo’s "Made by History."  Also on WaPo's MbH: Karin Wulf, Omohundro Institute of Early American History & Culture and William & Mary, on What Naomi Wolf and Cokie Roberts teach us about the need for historians.

• And at the Conversation: Treva B. Lindsey, The Ohio State University provides this concise history of the US abortion debate, while Mark Fathi Massoud, UC Santa Cruz offers insights into the interaction between colonialism and Islamic law in Sudan.

• Update: Anna Jarvis interviewed on winning the R. Roy McMurtry Fellowship to research her great-great grandfather, Edward Jarvis, chief justice of the supreme court of Prince Edward Island (CBC).

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

Blackhawk on "Federal Indian Law as a Paradigm Within Public Law"

As I read Katie Eyer's piece on JOTWELL yesterday -- an admiring review of a recent article by Maggie Blackhawk (Penn Law) -- I was reminded that we had not yet flagged this article for our readers. There is lots of legal history here! Here's the abstract for "Federal Indian Law as a Paradigm Within Public Law," published this spring in the Harvard Law Review.

U.S. public law has long taken slavery and Jim Crow segregation as a paradigm case through which to understand our constitutional law: cases adjudicating issues of slavery and segregation form the keystones of our constitutional canon. Reconstruction, or the so-called “Second Founding,” and the Civil Rights Era periodize our constitutional histories. Slavery and Jim Crow segregation supply normative lessons about the strengths and failings of our constitutional framework. This paradigm teaches that if there is too much power in the states and not enough limitation on state power in the form of national power or rights, America might again reenact similar atrocities. Although there is much to learn from the United States’ tragic history with slavery and Jim Crow segregation, resting our public law on this binary paradigm has led to incomplete models and theories. This Nation’s tragic history of colonialism and violent dispossession of Native lands, resources, culture, and even children offers different, yet equally important, lessons about our constitutional framework.

In this Article, I argue for a more inclusive paradigm that reaches beyond the black/white binary, and I highlight the centrality of federal Indian law and this Nation’s tragic history with colonialism to public law. Currently, to the extent that federal Indian law is discussed at all within public law, it is generally considered sui generis and consigned to a “tiny backwater.” While I concede that the colonial status of Native peoples and the recognition of inherent tribal sovereignty do render aspects of federal Indian law exceptional, federal Indian law and Native history have much to teach about reimagining the constitutional history of the United States. Interactions between the national government and Native Nations have shaped the warp and woof of our constitutional law from the Founding across a range of substantive areas, including vertical and horizontal separation of powers, the Treaty Clause, war powers, executive powers in times of exigency, and many others. I aim to open a conversation as to whether these doctrines ought to take their rightful place in the canon or, perhaps, the anticanon.

Beyond simple canonization, federal Indian law offers paradigmatic lessons about the strengths and failings of our constitutional framework. Broadening the binary paradigm to include federal Indian law could allow interventions into a range of general principles of public law. It has often been said that federal Indian law is “incoherent” and in need of reform, because the doctrine does not comport with general public law principles. But perhaps it is the general principles of public law, and the incomplete paradigm of slavery and Jim Crow segregation on which those principles rest, that are in need of reform.

More than simple canonization, the inclusion of federal Indian law as an additional paradigm case could lead to fundamental reformulation. A full catalogue is beyond the scope of this Article, but I offer an example here in the hope that it will invite more. As I’ll show, federal Indian law leads public law to a very different set of principles in the context of minority protection, unsettling reigning theories of how best to distribute and limit power in order to prevent government abuse of minorities. Unlike slavery and Jim Crow segregation, federal Indian law teaches that nationalism is no panacea for majority tyranny, and that rights can wound as well as shield minorities.

Here's a taste of Professor Eyer's review:

Federal Indian law might seem an unlikely paradigm around which to center our understanding of constitutional law. But as Maggie Blackhawk lays out in her excellent new article, Federal Indian Law as Paradigm Within Public Law, the history of Native Nations and indigenous peoples in the United States, and their treatment as constitutional subjects, is equally central to our constitutional history as slavery and Jim Crow. And yet it is far less common for Native history to play a role in our canonical stories and in our understandings of what constitutional law does, or ought to, provide.

Read on here.

-- Karen Tani

Ortman on Plea Bargaining from the 1920s to the 1960s

William Ortman, Wayne State University School of Law, has posted When Plea Bargaining Became Normal, which is forthcoming in 2020 in the Boston University Law Review:

Plea bargaining is the criminal justice system, the Supreme Court tells us, but how did it get to be that way? Existing scholarship tells only part of the story. It demonstrates that plea bargaining emerged in the nineteenth century as a response to (depending on one’s theory) increasing caseloads, expanding trial procedures, or professionalizing law enforcement. But in order for plea bargaining to truly become the criminal justice system, the legal profession would have to accept and internalize it. That was not its first reaction. When legal scholars and reformers in the 1920s discovered that bargaining dominated America’s criminal courts, they quickly denounced it as abusive. By the 1960s, only four decades later, the legal profession had learned to love it.

This article investigates the process that made plea bargaining the normal way of doing American criminal justice. The story unfolds in three parts — plea bargaining’s discovery by and frosty reception from the “crime commissions” of the 1920s; its rehabilitation by the Legal Realists in the 1930s; and finally its decisive embrace by scholars and judges in the 1950s and ‘60s. The Realists’ starring role is surprising, as they are not usually recognized for contributing to criminal law or procedure. This article shows that they deserve credit (or plausibly blame) for taking the first major steps towards normalization. The article also pays close attention to an objection to plea bargaining that arrived late — that it depends on coercing defendants to plead guilty. By the time this objection emerged in the 1950s, plea bargaining’s momentum was too strong; legal elites, and, ultimately, the Supreme Court, saw no option but to rationalize it away. Above all, this article reveals that normalized plea bargaining is newer and more historically contingent than it seems.

--Dan Ernst

Lee on "Our Administered Constitution"

Sophia Z. Lee, University of Pennsylvania Law School, has posted Our Administered Constitution: Administrative Constitutionalism from the Founding to the Present, which is forthcoming in the University of Pennsylvania Law Review.  The article is the product of the symposium The History, Theory, and Practice of Administrative Constitutionalism, held at Penn Law on October 19-20, 2018.

This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that administrative constitutionalism may still be the most frequent form of constitutional governance, but it has grown, paradoxically, more suspect even as it has also become far more dependent on and deferential to judicial interpretations.

This article also contends that the history of administrative constitutionalism poses a problem for critics of the modern administrative state who seek to restore administrative law to its 19th-century foundations. These critics hold out constitutional law as uniquely important; it is what powers their arguments that the United States should turn back the clock. And they prefer 19th-century agencies because they depict them as exercising little consequential legal power. But this history suggests that those agencies had the first and often final word on the Constitution’s meaning. These critics also assume that reinstating the 19th-century constitutional order would empower courts to more closely scrutinize agency action. The history presented here instead suggests that returning to 19th-century administrative law would all but eliminate judicial review of the constitutionality of agency actions. Indeed, the burgeoning history of administrative constitutionalism suggests that anyone who wants to ensure that courts review the constitutionality of agency action has to appeal to theories that are rooted in constitutional change not origins, and in 20th- not 19th-century administrative law and judicial practice.

Professor Lee, I believe, coined the term “administrative constitutionalism.”  In any event, this article is an up-to-the-minute state of the field and synthesis of the literature.  If you’re late to the administrative constitutionalism party, start here.

--Dan Ernst

A Retrospective Symposium on the Work of Hendrik Hartog

Law and Social Inquiry 4:2 (May 2019), includes a retrospective symposium on the work of Hendrik Hartog, Princeton University.  Risa Goluboff, University of Virginia Law School, has posted her introduction to SSRN, and so we include a link to it and her abstract below.

What Makes Hartog Hartog: Introduction to a Symposium on the Work of Dirk Hartog
Risa L. Goluboff

The essays in this symposium on the work of Dirk Hartog encompass meditations on legal positivism and the histories of slavery, civil rights, and women’s rights as well as con- temporary analyses of spousal abuse and the dependency of adult children. That wide range of subjects, approaches, and concerns might be puzzling were it not for the wide substantive, methodological, and theoretical range in Hartog’s own oeuvre. Hartog’s work has been so generative for other scholars because of his simultaneous engagement with history and law, with fact and theory, with the whole sweep of the nineteenth century and the most minute detail of a person’s life. In describing in this introduction what makes Hartog Hartog, I emphasize the unique blend of professional commitments and personal sensibilities he brings to his work: the sensitivity with which he approaches history; the humanity with which he treats his historical subjects; the dexterity with which he analyzes the law; and the sophistication with which his human and legal stories yield up jurisprudential insights. I also, respectfully, disagree with Hartog himself on the essence of his work. Where he laments that he exists in a “muddle in the middle”—writing histories of a problematic “inbetweenness”—I see him as making the messy lived reality of legal history cognizable to modern reader. His work reveals the simultaneity of multiple and overlapping legal regimes as they shaped and were shaped by the human needs of real people.

Pigs and Positivism: Between Jurisprudence and Politics
Roy Kreitner

Rights-consciousness as an Object of Historical Inquiry: Revisiting the Constitution of Aspiration
Ely Aaronson, Arianne Renan Barzilay

Marital Consciousness and the Criminalization of Spousal Abuse
Galia Schneebaum
  
Parents and Adult Children: The Elusive Boundaries of the Legal Family
Shelly Kreiczer-Levy

Slavery, Freedom and Contract: Blurred Lines and Historical Resistance
Eli Cook, Anat Rosenberg

Response: A Muddle in the Middle
Hendrik Hartog

--Dan Ernst

Longan on Judge Bootle and the Integration of the University of Georgia

I was pleased to note the recent publication by my law school classmate Patrick Emery Longan, Mercer University School of Law, of  “You Can’t Afford to Flinch in the Face of Duty”: Judge William Augustus Bootle and the Desegregation of the University of Georgia," Stetson Law Review 48 (23019): 379-425.  From the introduction:

On January 6, 1961, United States District Judge William Augustus Bootle granted a permanent injunction that required the University of Georgia to admit its first two black students, Hamilton E. Holmes and Charlayne A. Hunter. The backlash began immediately. Newspaper editorials condemned the decision. The Governor of Georgia threatened to close the University. Students rioted. A man escaped from an insane asylum, armed himself and went looking for Charlayne Hunter at her dormitory. Judge Bootle received numerous critical letters, including some that were threatening. Yet Judge Bootle’s attitude was that he did no more than what his position as a judge required him to do. Late in his life, he sat for an interview as part of the Foot Soldier Project for Civil Rights Studies at the University of Georgia. He summed up his actions and motivations by saying: “You can’t afford to flinch in the face of duty. . . . [I]t just happened to happen on my watch.  I don’t deserve any credit. Don’t seek any. I did what any self-respecting, honest judge would have done.”

--Dan Ernst

Ecclesiastical Institutions in Colonial South America

[We have the following announcement from our friends at the Max Planck Institute for European Legal History.  DRE]

With "Normatividades e instituciones eclesiásticas en el virreinato del Perú, siglos XVI-XIX", edited by Otto Danwerth, Benedetta Albani, and Thomas Duve, the Max Planck Institute for European Legal History presents the newest publication in its Open Access book series Global Perspectives on Legal History.

Ecclesiastical institutions and actors played key roles in the formation of normative orders in early modern Ibero-America. Their importance, which has already been illustrated by an earlier volume on New Spain (GPLH 5, published in 2018), is now further corroborated and explored in case studies focusing on the viceroyalties of Peru and of Río de la Plata.

The eight chapters of this Spanish-speaking volume deal with a diversity of themes relating to both urban and rural locations in what is now Peru, Bolivia, Argentina and Chile. They examine the ecclesiastical legislation of Toribio de Mogrovejo, explore the role of legal experts in canon law litigation, compare the activities of Jesuit missionaries in Austria and Peru, explain the life of the nuns in the Monasterio de la Concepción in Lima, discuss problems of diocesan administration in outlying zones of the archdiocese of La Plata, and analyse the ius patronatus in Chile during the independence movement.

The editors' purpose has been to present approaches that explore the relationship between different types of normativities, their local adaptations, their links to global debates, the forms of conflict resolution, as well as the role of jurists, theologians and other actors. The contributions propose new research fields for legal history and the history of the Church, but are also relevant for social and cultural historians. They contribute to a better understanding of the normative religious universe of Ibero-America between the 16th and 19th centuries. An upcoming third volume will cover the viceroyalty of New Granada, and the tetralogy will be completed with a final volume on Brazil.

The volume is available as usual on the website of the MPIeR for PDF download in Open Access [here].

Nelson on the Common Law in Colonial America

In 2018, Oxford University Press published The Common Law in Colonial America, Vol.IV: Law and the Constitution on the Eve of Independence, 1735-1776 by William E. Nelson, New York University. This is the fourth and final volume in Nelson's series. From the publisher:

The eminent legal historian William E. Nelson's magisterial four-volume The Common Law in Colonial America traces how the many legal orders of Britain's thirteen North American colonies gradually evolved into one American system. Initially established on divergent political, economic, and religious grounds, the various colonial systems slowly converged until it became possible by the 1770s to imagine that all thirteen participated in a common American legal order, which diverged in its details but differed far more substantially from English common law. 

This fourth and final volume begins where volume three ended. It focuses on the laws of the thirteen colonies in the mid-eighteenth century and on constitutional events leading up to the American Revolution. Nelson first examines procedural and substantive law and looks at important shifts in the law to show how the mid-eighteenth- century colonial legal system in large part functioned effectively in the interests both of Great Britain and of its thirteen colonies. 

Nelson then turns to constitutional events leading to the Revolution. Here he shows how lawyers deployed ideological arguments not for their own sake, but in order to protect colonial institutional structures and the socio-economic interests of their clients. As lawyers deployed the arguments, they developed them into a constitutional theory that gave primacy to common-law constitutional rights and local self-government. In the process, the lawyers became leaders of the revolutionary movement and a dominant political force in the new United States.

Here's the Table of Contents:

Introduction
Chapter 1: Common Law Constitutionalism
Chapter 2: Localist Constitutionalism
Chapter 3: Uncontested Legal Practices
Chapter 4: The Well-Functioning Empire of the Mid-Eighteenth Century
Chapter 5: Government Failure in Two Colonies
Chapter 6: Weakening the Bonds of Empire
Chapter 7: Testing the Bonds of Empire
Chapter 8: Terminating the Ties of Empire
Chapter 9: Conclusion: Legal and Constitutional Legacies

Further information is available here. 

Larry McNeill Research Fellowship in Texas Legal History

[We have the following announcement.  DRE]

The Larry McNeill Research Fellowship in Texas Legal History [of $2,500] is awarded annually [by the Texas State Historical Association] for the best research proposal on some aspect of Texas legal history.

The application, which should be no longer than two pages, should specify the purpose of the research and provide a description of the end product (article or book). The applicant’s vitae should be attached to the application. The award will be announced at the Association’s Annual Meeting in February 2020. Judges may withhold the award at their discretion.

Individuals should submit an entry form, four (4) copies of their vitae, and four (4) copies of a proposal to the TSHA office by December 28, 2019.

Larry McNeill Research Fellowship Committee
Texas State Historical Association
3001 Lake Austin Blvd., Suite 3.116
Austin, TX 78703

The Larry McNeill Research Fellowship in Texas Legal History was established in 2019 by the Texas Supreme Court Historical Society (TSCHS) in honor of Larry McNeill, a past president of TSCHS and the Texas State Historical Association. The award recognizes his commitment to fostering academic and grassroots research in Texas legal history.

Davis Center 2018-19

Last week, we featured a series of three posts on the limits of law from the 2018-19 Davis Center fellows. Here they are, all in one place for ready reference:

• The Limits of Law: Davis Center 2018-19
• The Limits of Law: Cases
• The Limits of Law: Approaches

The Davis Center's law and legalities theme continues in 2019-20. 

--Mitra Sharafi

Ablavsky on Administrative Constitutionalism in the Northwest Territory

Gregory Ablavsky, Stanford Law School, has posted Administrative Constitutionalism in the Northwest Territory, which is forthcoming in the University of Pennsylvania Law Review:

Map of Part of the Northwest Territory, 1796 (NYPL)

Both critics and proponents of administrative law’s constitutional pedigree have posited a constitutional “hole” surrounding administration at the time of the Constitution’s drafting. Challenging this account, this Essay examines the Northwest Ordinance and the territorial government it established as a progenitor of what later became known as the administrative state. The statute empowered unelected, federally appointed officials outside the Article III judiciary to exercise legislative and judicial authority over U.S. citizens. This constitutional history underscores that the creation of the United States did not simply repudiate British imperial models in favor of concepts of popular sovereignty and equal footing. Rather, in the territories, the new federal government chose to reconstruct colonial structures of governance over its own citizens, a process that reopened pre-revolutionary debates. This Essay traces two particularly intense constitutional controversies in the Northwest Territory in the 1790s that both had strong prewar echoes: contests over the relationship between civil and military authority, and fights over the territories’ legal status within the new constitutional order. Both debates, I argue, were litigated within the early American territorial analog of the administrative state, but neither achieved any definitive resolution. Rather, the temporary nature of territorial status allowed the new nation to evade the tensions between territorial governance and the Revolution’s purported republican principles, deferring this challenge to future generations.

Bernard Nordlinger: Washingtonian Lawyer

[The Historical Society of the District of Columbia Circuit has an excellent collection of oral histories of lawyers and judges active in the circuit.  Recently, it has asked interviewers to revisit their oral histories and prepare summaries for the Society’s website.  Here is the one I wrote from an oral history of Bernard I. Nordlinger, who was less a “Washington lawyer” than a “Washingtonian” one.  Devotees of the history of administrative law might want to check the interview itself for Nordlinger’s description of J. Forrester Davison, the Canadian coauthor of Felix Frankfurter’s casebook on the subject, as well as Davison’s choice of supplemental reading.]

“Washington lawyers,” who practice before the federal government, became a widely recognized branch of the American legal profession only with the dramatic expansion of the American state during World War II and the Cold War.  But the D.C. Circuit had long been and continued to be home to an older species of lawyers, many of them native to the District of Columbia, who served the legal needs of its residents much as the members of local bars elsewhere did.  Call them “Washingtonian lawyers.”  Of these, one of the most interesting was Bernard I. Nordlinger (1909-2001), because his roots in the District were so deep, because his Jewish identity made him a critical observer of as well as participant in the life of the local bar, and because he witnessed the rise of the “Washington lawyers” without becoming one himself.

“Third generation Washingtonian” was how Nordlinger described himself on his resume, just after his name and place and date of birth.  His ancestors emigrated to the United States from middle Europe before the Civil War, fought on both sides of that conflict, and then settled in the District.  For decades his family owned a shoe store on M Street in Georgetown, lived around the corner, attended the city’s oldest synagogue, the Washington Hebrew Congregation.  His father expected “Buck” to take over the store, but from an early age he wanted to be a lawyer.  “I just never had anything else in mind.”  He led his class when he graduated from the George Washington University Law School in 1933.

Nordlinger was more fortunate than many entering the legal profession in the depths of the Great Depression, because he was already been clerking for Milton King, an established practitioner who asked him to become his partner.  King’s social connections brought in some clients, including George Marshall, the owner of the Washington Redskins,  Still, he scrambled for all kinds of legal business and witnessed firsthand the gaucherie of the Police Court.  That still left time for getting the latest from his brothers at the bar over lunch or attending court when Frank Hogan or some other spellbinder was in action.  Excluded from lawyers’ social clubs because of his religion, he nonetheless participated in the Bar Association of the District of Columbia enthusiastically because of the camaraderie of its annual meetings and the opportunity the group afforded for legal reform, including replacing the District’s hopelessly unwieldy corporation laws.  He became its president in 1972, just in time to resist, unsuccessfully, the establishment of a mandatory or “unified” bar.

Nordlinger grew professionally over the course of his career.  As estate and gift taxation increasingly affected his clients, he got an LL.M. on the subject from Georgetown Law.  The instruction in taxation he most vividly remembered, however, was an hour’s discussion of a complex case with the great tax lawyer Robert N. Miller.  Miller, who refused compensation for the session, listened patiently, acknowledged that the matter was difficult–he likened Nordlinger’s situation to learning to play the “violin on a Stradivarius”–but told Nordlinger he did not need anyone’s help and was handling it well.

As a thirty-year-old father of two, he thought the odds of his conscription were low; still he was in the auditorium on October 29, 1940, when his number came up seventh in the nation’s first peacetime draft.  Commissioned a lieutenant in the U.S. Navy Reserves, he was assigned to a naval procurement unit.  The financial education he acquired would prove invaluable in his postwar career, which included service as an officer of local banks and savings and loan associations.  His service had other unexpected results.  Shortly after Nordlinger left the service, a lawyer he knew from the Navy came to his office, still in uniform, and asked for a position after his imminent discharge.   Nordlinger advised the man, Richard Milhous Nixon, to try his luck back in Whittier, California.

Another wartime connection proved more eventful.  After the war, an electrical engineer who was his superior in a unit tasked with terminating naval contracts hired Nordlinger to reorganize his company.  When he then asked him to become its general counsel, Nordlinger declined: he would have to move to Chicago, and, as he later put it, “my home was here.”  Nonetheless, the engineer hired him to defend his company in a major antitrust prosecution.  The experience Nordlinger acquired led to more antitrust cases, including a landmark case with the the National Football League as his client.

Ultimately, Nordlinger concluded such cases required a bigger staff than his firm possessed.  The realization made apparent to him a path not taken.  After the war, Jews and other ethnic outsiders long excluded from New York’s corporate law firms had no difficulty finding clients needing representation before the federal government.  Starting from beginnings hardly less humble than Nordlinger’s, some had built major firm’s in the nation’s capital.  At first, he later recalled, Henry Fox was just one of “two young boys in a one-room office of a man named Jesse Miller,” who had practiced in Washington since 1920.  But Fox took “the risk of promising huge salaries to people who graduated from good schools” and acquired excellent reputations in government service.  Today, his firm, Arent Fox, has hundreds of lawyers and a global reach, while King & Nordlinger is much smaller, with a local practice.

Nordlinger sometimes spoke of his failure to build a large firm with regret.  “We never did that, and I would say it’s my fault,” he said on one occasion.  “I didn’t have enough early training to have the depth of vision, the business horizons, to do what could have been done.”   But the founders of Arent Fox were not native Washingtonians; in their formative years they were not inspired, as Nordlinger had been, by lawyers who were lions not only in the law but in the civic, religious, and philanthropic lives of their community.  “When I was young and coming along,” he once explained, “I had great ambitions to be like so many lawyers” who modeled for him ideals of practice and of conduct.  Nordlinger’s many professional honors and suggest he became such a model for others during his lifetime, and his career remains instructive today.

--Dan Ernst

Faber on "An Anti-Federalist Constitution"

The Kansas University Press has released An Anti-Federalist Constitution: The Development of Dissent in the Ratification Debates (May 2019), by political scientist Michael J. Faber (Texas State University, San Marcos). A description from the Press:

What would an Anti-Federalist Constitution look like? Because we view the Constitution through the lens of the Federalists who came to control the narrative, we tend to forget those who opposed its ratification. And yet the Anti-Federalist arguments, so critical to an understanding of the Constitutions origins and meaning, resonate throughout American history. By reconstructing these arguments and tracing their development through the ratification debates, Michael J. Faber presents an alternative perspective on constitutional history. Telling, in a sense, the other side of the story of the Constitution, his book offers key insights into the ideas that helped to form the nation’s founding document and that continue to inform American politics and public life. 

Faber identifies three distinct strands of political thought that eventually came together in a clear and coherent Anti-Federalism position: (1) the individual and the potential for governmental tyranny; (2) power, specifically the states as defenders of the people; and (3) democratic principles and popular sovereignty. After clarifying and elaborating these separate strands of thought and analyzing a well-known proponent of each, Faber goes on to tell the story of the resistance to the Constitution, focusing on ideas but also following and explaining events and strategies. Finally, he produces a “counterfactual” Anti-Federalist Constitution, summing up the Anti-Federalist position as it might have emerged had the opposition drafted the document.

How would such a constitution have worked in practice? A close consideration reveals the legacy of the Anti-Federalists in early American history, in the US Constitution and its role in the nation’s political life.

More information is available here.

-- Karen Tani

AJLH 59:2 (and Ten Most Cited Articles)

Volume 59:2 (June 2019) of the American Journal of Legal History is now online.  Here’s the TOC:

Africa Needs Many Lawyers Trained for the Need of their Peoples’: Struggles over Legal Education in Kwame Nkrumah’s Ghana
John Harrington; Ambreena Manji

“Full Justice May Be Done Them”: The Case of Bill, Charles, Jupiter, Randolph, et al. v. William A. Carr in a Florida Freedmen’s Bureau Court
Zachary Newkirk

Fraud and Dishonesty in King’s Bench and Star Chamber
Henry Mares

Justice under Administration: An Overview of Judiciary and Courts in Spain, 1834–1870
Julia Solla

Re-tying the Knot? Remarriage and Divorce by Consent in mid-Victorian England
Penelope Russell

Book Reviews

Xavier Prévost, Jacques Cujas (1522-1590). Jurisconsulte humaniste
Xavier Godin

Martti Koskenniemi, Walter Rech, and Manuel Jiménez Fonseca (eds.), International Law and Empire: Historical Explorations
Alberto Rinaldi

Johannes Liebrecht, Die junge Rechtsgeschichte: Kategorienwandel in der rechtshistorischen Germanistik der Zwischenkriegszeit
Kjell Å Modéer

Carlos Petit, Historia del derecho mercantil
Luisa Brunori; Olivier Descamps

Incidentally, the AJLH has made its "10 most highly cited papers from 2016 and 2017" available free online for a limited time.  They include the review essay Federalism Anew, by Sara Mayeux and LHB Blogger Karen Tani.

--Dan Ernst

Weekend Roundup

• The University of Chicago Law School has posted the video of Why Madison Matters: Rethinking Democracy in America,”  this year’s Maurice and Muriel Fulton Lectureship in Legal History, delivered by James T. Kloppenberg, the Charles Warren Professor of American History at Harvard University.   As the Law School’s website reports, “Drawing from Madison's writings along with those of other founding fathers, including James Wilson and Alexander Hamilton, Kloppenberg suggested that they aimed not merely to balance competing interests but to pursue what Madison called ‘justice and the general good.’”  

• Congratulations to recent Guest Blogger Sarah Seo for the inclusion of Policing the Open Road in the New Yorker’s What We’re Reading This Summer!

• Shall Not Be Denied: Women Fight for the Vote, an exhibit at the Library of Congress, runs through September 2020

• The Department of Government at the University of Texas at Austin invites graduate student submissions for the sixth annual Graduate Conference in Public Law, to be held October 24-25, 2019.  Among the contemplated submissions are papers on "Constitutional or Political Development."  Julie Novkov, University at Albany, SUNY, who writes at the intersection of law, history, US Political Development, and subordinated identities, will deliver the keynote.

• Call for Papers: Law and Governance of a Global City: 17th-Century Amsterdam," June 2020.  "Four hundred years ago, like today, globalisation and urbanisation impacted the world’s cities. In seventeenth-century Amsterdam, the afflux of trade and migrants prompted rapid economic and demographic growth, resulting in dynamic multicultural urban life and leading to complex questions of governance."  H/t: JG.

• ICYMI: Will Baude on originalism in the Volokh Conspiracy.  

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

Likhovski on Jewish Legal Scholars and Roman Law in Mandatory Palestine

Assaf Likhovski, Tel Aviv University Buchmann Faculty of Law, has posted The Eagle and the Dove: Jewish Law Scholars and Roman Law during the Interwar Period, which appears in Pensiero giuridico occidentale e giuristi romani: Eredità e genealogie, ed. Pierre Bonin, Nader Hakim, Fara Nasti and Aldo Schiavone (Torino: G. Giappichelli, 2019), 267-294:

In the early decades of the twentieth century, a group of Jewish legal scholars working in Eastern Europe, and later in Mandatory Palestine, sought to « revive » (i.e., modernize) Jewish law and turn it into the legal system of the Jewish community in Palestine — and later the legal system of the State of Israel. Inspired by the nationalist legal ideas of the German historical school, as well as the successful revival of the Hebrew language, the Jewish legal revival project created a body of scholarship on Jewish law, established the first Jewish law school in Mandatory Palestine, and even influenced the work of a unique communal court system that functioned in the Jewish community in Palestine until the end of British rule in that territory.

The Jewish legal revival project had an ambivalent attitude to Roman law (both ancient and modern). Modern scholarship on Roman law, especially nineteenth-century German legal scholarship, was seen as a model to be emulated by the Jewish legal revivers. Indeed, the Jewish legal revival project was often simply understood as a process of reorganization of the materials of Jewish law based on legal categories, models, and methodologies taken from modern Roman law scholarship. On the other hand, the legal revivers saw Roman law as the « other » of Jewish law, often arguing that the principles underlying the latter were utterly different from those of the former. Roman law was thus imagined and used by the early-twentieth-century Jewish law scholars discussed in this article in contradictory ways: sometimes as a legal system that should be emulated, and sometimes as a legal system whose norms and institutions should be shunned. Thus, as this article shows, Roman law, as it was described in the legal thought of the group of legal scholars I study, was used as a foil against which modern Jewish legal identity could be created.

 --Dan Ernst

Hays's "States in American Constitutionalism"

Bradley D. Hays, Union College, has published States in American Constitutionalism: Interpretation, Authority, and Politics (Routledge, 2019):

States in American Constitutionalism: Interpretation, Authority, and Politics examines the often overlooked role that states have played in the development and maintenance of American constitutionalism by examining the purpose and effect of state resolutions on national constitutional meaning. From colonial practices through contemporary politics, subnational governments have made claims about what national constitutional provisions and principles ought to mean, fashioned political coalitions to back them, and asserted their authority to provoke constitutional settlement. Yet, this practice has been far from static. Political actors have altered the practice in response to their interpretive objectives and the political landscape of the day. States in American Constitutionalism explains both the development of the practice and the way each innovation to the practice affected subsequent iterations.

Hays presents a series of case studies that explore the origins of the practice in colonial constitutionalism, its function in the early Republic, subsequent developments in antebellum and twentieth century politics, and contemporary practice in the first two decades of the twenty-first century.

States in American Constitutionalism will be of great interest to students and academics interested in constitutional law and politics, political and constitutional development, and federalism.

 --Dan Ernst

Tallgren & Skouteris, eds, "The New Histories of International Criminal Law"

Oxford University Press has released The New Histories of International Criminal Law: Retrials (May 2019), edited by Immi Tallgren (University of Helsinki) and Thomas Skouteris (The American University in Cairo). A description from the Press:

The language of international criminal law has considerable traction in global politics, and much of its legitimacy is embedded in apparently 'axiomatic' historical truths. This innovative edited collection brings together some of the world's leading international lawyers with a very clear mandate in mind: to re-evaluate ('retry') the dominant historiographical tradition in the field of international criminal law. 

Carefully curated, and with contributions by leading scholars, The New Histories of International Criminal Law pursues three research objectives: to bring to the fore the structure and function of contemporary histories of international criminal law, to take issue with the consequences of these histories, and to call for their demystification. The essays discern several registers on which the received historiographical tradition must be retried: tropology; inclusions/exclusions; gender; race; representations of the victim and the perpetrator; history and memory; ideology and master narratives; international criminal law and hegemonic theories; and more. 

This book intervenes critically in the fields of international criminal law and international legal history by bringing in new voices and fresh approaches. Taken as a whole, it provides a rich account of the dilemmas, conundrums, and possibilities entailed in writing histories of international criminal law beyond, against, or in the shadow of the master narrative.

More information, including the TOC, is available here.

-- Karen Tani

Hutchison on the Patriation of Canadian Corporation Law

Camden Hutchison, Peter A. Allard School of Law, University of British Columbia, has posted The Patriation of Canadian Corporate Law, which is forthcoming in the University of Toronto Law Journal:

Canadian corporate law belongs within a broader Anglo-American legal tradition, sharing many of the features of other common law jurisdictions, most notably England and the United States. Prior to Confederation, Canadian corporate law first emerged from nineteenth-century English legislation and continued to resemble English law - at least superficially - well into the twentieth century. In the 1970s, Canadian corporate law moved closer to the United States, as major legislative reforms, including the Canada Business Corporations Act, were significantly influenced by American statutes. From a legislative perspective, Canada has clearly been influenced by developments from beyond its borders.

Legislation is only one source of corporate law, however. Just as important is the creation of legal rules through the common law adjudicatory process. Thus, examining case law raises an important empirical question distinct from, though relevant to, the issue of legislative influence - namely, what have been the major influences on Canadian judicial lawmaking? This article addresses this question through a comprehensive citation analysis of substantially all corporate law decisions by Canadian courts of appeal since 1867.

Digital Legal History at Max Planck

[We have the following call for papers and posters.  DRE.]

Conference “Digital Methods and Resources in Legal History,” March 19/20, 2020. Max-Planck-Institut für europäische Rechtsgeschichte Frankfurt:

In order to provide an opportunity for the critical discussion of digital methods and resources in legal history, and in order to learn about the vast array of such methods and resources, the Max-Planck-Institute for European Legal History holds a Conference on "Digital Methods and Resources in Legal History" on 19/20 March 2020. We invite interested researchers to present collections, databases, gazetteers and similar resources of relevance to legal history, but also to show how these or other resources, and how digital methods in general have been put to use in concrete project contexts. Note that we explicitly invite reports about research questions, projects or approaches that have failed to find or create digital means to work with in a satisfactory manner, too. The call for papers/posters is available [here],  along with a more elaborate discussion of the conference's rationale and other bits of information. Submissions should be sent by e-mail to dlh@rg.mpg.de by 2019-09-15.

Kersch's "Conservatives and the Constitution"

Ken I. Kersch, Boston College, has published Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (Cambridge University Press).  A symposium on the book is underway over at Balkinization.

Since the 1980s, a ritualized opposition in legal thought between a conservative 'originalism' and a liberal 'living constitutionalism' has obscured the aggressively contested tradition committed to, and mobilization of arguments for, constitutional restoration and redemption within the broader postwar American conservative movement. Conservatives and the Constitution is the first history of the political and intellectual trajectory of this foundational tradition and mobilization. By looking at the deep stories told either by identity groups or about what conservatives took to be flashpoint topics in the postwar period, Ken I. Kersch seeks to capture the developmental and integrative nature of postwar constitutional conservatism, challenging conservatives and liberals alike to more clearly see and understand both themselves and their presumed political and constitutional opposition. Conservatives and the Constitution makes a unique contribution to our understanding of modern American conservatism, and to the constitutional thought that has, in critical ways, informed and defined it.

--Dan Ernst

The Limits of Law: Approaches

We asked the 2018-19 Davis Fellows the following question: how has your time at the Davis Center led to new insights about the reach and limits of law and legalities? Here is a set of answers that relate to methods, heuristics, and approaches (the other posts in this series are here and here):

d'Aspremont on Critical Histories of International Law

Jean d'Aspremont, Sciences Po Law School and the University of Manchester School of Law, has posted Critical Histories of International Law and the Repression of Disciplinary Imagination, which is forthcoming in volume 7 of the London Review of International Law (2019):

This article engages with international lawyers’ growing historiographical appetites. It makes the argument that the critical histories that have come to populate the international legal literature over the last decades continue to be organised along the very lines set by the linear historical narratives which they seek to question and disrupt. It makes a plea for radical historical critique, that is, for critical histories that move beyond the markers, periodisation and causal sequencing they seek to displace or disrupt and that embrace a consciously interventionist history-writing attitude with a view to unbridling disciplinary imagination.

--Dan Ernst

Cushman on the Judicial Reforms of 1937

Barry Cushman, Notre Dame Law School, has posted The Judicial Reforms of 1937, which is forthcoming in volume 61 of the William and Mary Law Review (2020):

The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the Administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction in the lower federal courts. The national/nationwide/universal injunction had yet to emerge, but friends of the Administration nevertheless maintained that injunctive relief granted by the lower courts was substantially and in some cases decisively frustrating implementation of vital elements of the New Deal agenda. This contribution to the William & Mary Institute of Bill of Rights Law symposium on "The Role of Courts in Politically Charged Moments" surveys the uses and perceived effects of such injunctive relief, and relates the story of efforts by the political branches to address this challenge through 1) enlargement of the lower federal judiciary, and 2) reforms to judicial procedure and/or jurisdiction that would inhibit the power of lower federal courts to thwart implementation of federal programs. The principal solution at which they arrived, which required among other things that only three-judge district court panels be authorized to enjoin the enforcement of federal law, remained in force for nearly forty years before it was repealed in 1976 – ironically, one might think, just as the national/nationwide/universal injunction was emerging as a phenomenon, and the stakes of a single judge having power to grant injunctive relief accordingly were becoming considerably elevated.

--Dan Ernst

Annual Meeting of the Osgoode Society for Canadian Legal History

[We have the following press release on the annual meeting of the Osgoode Society for Canadian Legal History.  DRE]

The Osgoode Society for Canadian Legal History is honouring four scholars at a special ceremony on June 19, in recognition of the recent contributions they have made to furthering Canadians' understanding of the country's legal history.

At the Osgoode Society's Annual Meeting, the following awards will be presented: the R. Roy McMurtry Fellowship in Canadian Legal History, and the Peter Oliver Prize in Canadian Legal History.

"We applaud the award recipients for enriching Canadians' understanding of the country's legal history," said Professor Jim Phillips, editor-in-chief of the Osgoode Society. "Through their work, this year's award recipients have helped promote the public's interest in the history of law and the legal profession."

The R. Roy McMurtry Fellowship in Canadian Legal History was created following the 2007 retirement of The Honourable R. Roy McMurtry. The award honours Chief Justice McMurtry's various contributions to Canadian legal history as the province's Chief Justice, attorney general and founder and current president of the Osgoode Society.

The fellowship supports PhD candidates or those with a recently-completed doctorate, in their research, for one year. Scholars working on any topic in the field of Canadian legal history are eligible for the award.

The 2019 co- winners of the R. Roy McMurtry Fellowship in Canadian Legal History are Anna Jarvis, a PhD student in the History Department at York University, who is working on the life and times of Edward Jarvis, Chief Justice of Prince Edward Island from 1828 to 1852. The other co-winner is Filippo Sposini, a PhD student in the Institute for the History and Philosophy of Science and Technology at the University of Toronto, who is working on the law and practice of civil confinement for insanity in nineteenth-century Canada. 

The Peter Oliver Prize in Canadian Legal History was established in 2006 to honour the late Professor Peter Oliver, the Osgoode Society's founding editor-in-chief. The prize is awarded annually for a student's published journal article, book chapter or book about Canadian legal history. Students in any discipline at any stage of their career are eligible.

The 2019 winner of the Peter Oliver Prize in Canadian Legal History is Suzanne Chiodo, a Ph. D. student at Oxford University, for her book The Class Actions Controversy: The Origins and Development of the Ontario Class Proceedings Act, published by Irwin Law.

The Annual Meeting will also feature a talk by Harry Arthurs, on his forthcoming book, to be published by the Osgoode Society and McGill-Queen's University Press — Connecting the Dots: The Life of an Academic Lawyer.

For further information: Amanda Campbell, Administrator, the Osgoode Society for Canadian Legal History, at 416-947-3321 or Amanda.campbell@osgoodesociety.ca.