Saturday, June 15, 2019

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.” 
  • 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).
  • 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. 

Friday, June 14, 2019

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

Thursday, June 13, 2019

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 UniversityRisa 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

Wednesday, June 12, 2019

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

Tuesday, June 11, 2019

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

--Mitra Sharafi

Monday, June 10, 2019

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

Sunday, June 9, 2019

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

Saturday, June 8, 2019

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

Friday, June 7, 2019

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

Thursday, June 6, 2019

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):






Wednesday, June 5, 2019

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.

The Limits of Law: Cases

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 one set of answers that relate to each scholar's area of study (our other posts in this series are here and here):


Tuesday, June 4, 2019

Reich on US-Mexico Boundary Adjudications

Peter L. Reich, now a Lecturer in Law at the UCLA School of Law, has posted Border of Water, Border of Law: Río Bravo/Rio Grande Boundary Adjudications Since 1884, which appears in the Maryland Journal of International Law 33 (2018): 205-14:
This article, a preliminary version of a larger project, analyzes a century of binational decisions by which the International Boundary Commission (IBC) and its successor, the International Boundary and Water Commission (IBWC), allocated ownership of bancos (riverine islands) in the Río Bravo/Rio Grande River, the watercourse forming half of the Mexico-US border. The manuscript reports of banco allocations following the 1884 Convention on the Elimination of Bancos show that the IBC and IBWC made decisions based on the Roman law doctrines of accretion and avulsion: Slow accumulation of sediment moved the boundary along with the river’s altered course, but rapid changes left the border in the prior channel. Diplomats employed these shared legal principles to reconcile the distinct systems of Mexican civil law and US common law, constructing a water barrier acceptable to elites in both countries. Border-area residents, however, were often displaced and disempowered by these territorial transfers, over which they had little control.
 --Dan Ernst

Forbath on Constitutionalism, Human Rights, and Jewish Liberalism

William E. Forbath, University of Texas at Austin School of Law, has posted Constitutionalism, Human Rights and the Genealogy of Jewish Liberalism, which is forthcoming in Law of Strangers: Jewish Lawyering and International Legal Thought in Historical Perspective, ed. James Loeffler and Moria Paz (Cambridge University Press, 2019), 118-140:
What, if anything, did Judaism or Jewishness have to do with the involvement of so many Jews in constitutional and human rights lawyering during the course of the twentieth century? How did defending the rights of racial others and other outsiders become a kind of Jewish calling? And how did Jewish human rights advocates manage the tensions that arose over the course of the century between what Samuel Moyn calls the “twin goals” of defending minority rights over against empires and nation states that flouted them, and defending Jewish claims to national self-determination via a Jewish state in Palestine? Written for a volume on The Law of Strangers: Jewish Lawyers and International Law in the Twentieth Century, this essay addresses these questions in the context of a commentary on what Moyn calls Louis Henkin’s “self-reinvention” in the 1970s as “the leading American legal advocate of human rights.” The essay situates Henkin in a long tradition of American Jewish legal liberals, going back to the late nineteenth century.

The first Jewish civil rights lawyers were well-heeled Reform Jews in the 1890s-1900s. The standard account of their self-invention as rights advocates runs along instrumental lines: Fighting Jim Crow was a “displaced” way to address the threat that Jews, like African-Americans and Asians, might be legally cast as racial others. That’s true, but there is more to it. Nineteenth-century Reform Judaism involved reinventing Judaism itself, to outfit Jews for membership in the liberal state. On this new account, Judaism was no longer a system of laws, no longer a public, corporate separateness, and it no longer named a race or a nation. It was a “private faith,” just like Protestantism. The public-facing aspect of Jewishness was subsumed in being a citizen — 100% American. But what about the deep Jewish investment in remaining a people apart? And how was an assimilated turn-of-the-century Reform Jew to affirm his kinship with the despised racial others, the mass of supposedly “unassimilable,” new immigrant “poor Russian Jews” at the nation’s gates, without injuring the claim that Jewishness was no ethno-racial marker at all and Jews were 100% American?

Rights lawyering, the essay shows, was one solution to these thorny problems, a basis for renewing Jewish particularity — affirming one’s identity as, or identification with, the outsider group, one’s solidarity with the despised others, the strangers and downtrodden — but doing so as a member of a respected bourgeois profession and in terms of Enlightened, universal values enshrined in the U.S. Constitution. Reform Jewish lawyers invented — and sacralized — the secular calling of the Jewish civil rights lawyer, whose most important, and sometimes sole, public enactment of Jewish particularity was the defense of constitutional liberalism and the rights of racial others.

This liberal civic religion, or political theology, didn’t speak to the “masses” of new-immigrant “poor Russian Jews” in New York’s and other city’s Jewish “ghettoes.” Those looking for a modern, secular way of being Jewish found it in socialist Zionism and Jewish nationalism. They had their own lawyer-leaders, who insisted that Jewishness was everything the Reform Jews claimed it was not: a nation, a race, and a people with its own public political creed. They had a constitutional vision and vocabulary of their own that émigré Jewish lawyers and revolutionaries brought back and forth across the Atlantic. They demanded individual civil rights but also group rights of communal autonomy and national self-determination — in Palestine, but also in the Diaspora, in Russia, and even in the United States.

The final part of the essay briefly previews a book-length study of the epic clash a century ago, between lawyer-leaders of the “race Jews” and the “faith Jews.” It reconstructs a moment, when it was the left-wing of American Jewry that defended Zionism, and it was establishment outfits like the Reform Jewish elite’s American Jewish Committee, that assailed these nationalist ideas — partly out of fear of raising the lethal specter of a Jewish “state within the state,” but also out of principled misgivings. Much like Louis Henkin, a generation later, these committed liberals were crystal clear about the poisonous, illiberal aspects of ethno-racial nationalism, and worried about whether Jewish nationalism, if and when it had a state and an army at its disposal, could manage to prove different.
--Dan Ernst

ASLH's Wallace Johnson Program for First Book Authors

[We have the following announcement.  DRE]

Wallace Johnson Program for First Book Authors.  Sponsored by the American Society for Legal History. Deadline: June 30, 2019

The Wallace Johnson Program for First Book Authors sponsored by the American Society for Legal History (ASLH) is designed to provide advice and support to scholars working toward the publication of first books in legal history, broadly defined. In conversation with peers and with the advice of senior scholars, participants will learn about approaching and working with publishers, and will develop and revise a book proposal and one to two sample chapters.

Applications for Johnson Fellows are invited from early career, pre-tenure scholars, publishing in English, who have completed PhDs or JDs and are working on first books in legal history.

Scholars with expertise in all chronological periods and geographical fields are encouraged to apply, as are scholars who may not (yet) identify as legal historians.

The program includes the following elements:
  • Fall 2019 (Nov. 21, 2019): one-day, pre-conference workshop at the ASLH Annual Meeting (Boston, MA), introduction to book publishing and proposal writing;
  • Spring 2020 (date TBD): remote meeting, feedback from program leader and peers on draft book proposal;
  • Summer 2020 (last week of July): two-day workshop on draft chapters, University of Pennsylvania Law School; and
  • Fall 2020 (Fall 2020): Wallace Johnson Fellows Roundtable at the ASLH Annual Meeting (Chicago, IL, Nov. 11-14, 2020).
The 2019-20 Johnson Program will be led by Professor Reuel Schiller, with the participation of other senior legal historians. Participants must commit to participation in all elements of the program.

Up to 5 Fellows will be selected. Each will receive substantial funding for travel and accommodation related to the program, with a small supplement to participants who have no institutional support for travel and research.

The application deadline is June 30, 2019. Applicants should submit items 1-3 as a single pdf document, Times New Roman, 12 point font, with your full name in a header on each page:

1.  Applicant Information Sheet (in lieu of cover letter):
  • Personal Information: first name; last name; current mailing address; phone; email address; current institution; current position; institutional affiliation for 2020-2021;
  • Education: month and year of graduate degree, institution, and field: Ph.D.; J. D.; Other
  • Funding: We are committed to enabling fellows from a range of institutional positions to participate in the program. Your answer here will have no effect on your candidacy, but will enable us to provide small supplements to participants without institutional support. If selected for the Wallace Johnson program, would you have access to university or other institutional funds to help cover the costs of attending the program? Yes, No, Don’t Know. Comments or relevant details.
2.  Project Description (single spaced; not exceeding 1,000 words) organized with the following sections and addressing these questions. We are looking for candid self-reflection. You should think of this document as the first step in the revision, rethinking process.
  • Author Bio. Tell us about yourself, including your position and commitments for the fellowship year (remember, we’ll have your cv);
  • Dissertation. What was your dissertation about? What was its argument? What was its arc? What were its original contributions?
  • Book. What changes are you imagining for the book in terms of conceptualization, structure, narrative, or arc? Are you planning additional research and/or new chapters? How are you imagining the book’s audience?
3.  Abridged Curriculum Vitae (limited to 2 pages);

4.  Two letters of recommendation submitted separately. Please ask two scholars who know your work well to write a letter of recommendation. We recommend that at least one letter come from a faculty member who was a major advisor of the dissertation. Letters should be sent by email directly to Barbara Welke (welke004@umn.edu) and received no later than June 30, 2019.

All materials should be submitted to Barbara Welke (welke004@umn.edu), Chair, University of Minnesota by June 30, 2019.

The 2018 Johnson Program for First Book Authors Committee
Barbara Young Welke, Chair, University of Minnesota welke004@umn.edu
Lauren Benton, Vanderbilt University
Sam Erman, USC
Kurt Graham, NARA
Tim Lovelace, Indiana University
Intisar Rabb, Harvard University
Matthew Sommer, Stanford University

Applicants will be notified by August 15, 2019. Please direct any questions to Barbara Welke.

The Limits of Law: Davis Center 2018-19



The 2018–2020 theme at the Shelby Cullom Davis Center for Historical Studies is “Law & Legalities,” a topic that includes the limits of law as well as its pervasiveness. The Davis Center sponsors residential fellowships each year on our theme, for either a year or one term. This year our group has consisted of nine fellows besides me and Natasha Wheatley, an affiliated Princeton faculty member: George Aumoithe (postdoctoral fellow), Tatiana Borisova (National Research University High School of Economics, St. Petersburg), Jonathan Connolly (postdoctoral fellow), Tom Johnson (University of York), Lena Salaymeh (Tel Aviv Law School), Franziska Seraphim (Boston College), Mitra Sharafi (University of Wisconsin Law School), Elizabeth Thornberry (Johns Hopkins University), and Barbara Welke (University of Minnesota).

Through our various research projects situated in different places and centuries, we are especially interested in examining how legal, illegal, quasi-legal, and extra-legal forms of social order have interacted. In order to extend our conversations beyond Princeton, each of this year’s fellows contribute a perspective on this issue. We asked the 2018-19 fellows to reflect upon the following question: how has your time at the Davis Center led to new insights about the reach and limits of law and legalities? Our essays are divided into two groups, one on our cases, and another on our methods, each of which will appear in a subsequent post. But as an introduction, we feature the piece by Barbara Welke (University of Minnesota), which offers a more personal reflection on the year’s leave experience.


Barbara Welke

Some fifty-plus years ago, Tillie Olsen opened an essay titled “Silences” published in Harper’s Magazine, saying “literary history and the present are dark with silences: some the silences for years by our acknowledged great; some silences hidden; some ceasing to publish after one work appears; some the never coming to book form at all.”   The quote she included from Melville’s “famous” letter to Hawthorne – “I am so pulled hither and thither by circumstances.  The calm, the coolness, the silent grass growing mood in which a man ought always to compose, that can seldom be mine” – might as easily be said of academia and not just for men.  

This is an unexpected opening, I know, to what was supposed to have been my reflections on the Davis Center theme, but given the limitations of space, I am electing to address what may be the more important underlying question of the conditions which enable any of us to truly think or create original work at all.  I am privileged to hold a tenured job, to come from an institution with smart, generous colleagues and a rich intellectual culture.  Still, this year has been freeing.  The Law & Legalities theme at the Davis Center is, alas, only for two years, but it highlights the importance of residential fellowships that take one out of the worlds in which we are “pulled hither and thither,” that purposefully gather scholars across rank from post-docs to full professors and across temporal and geographic fields, bound only loosely by a theme and free them to think and create. 

For me, the productivity has been not only in conversations with other Davis Center Fellows and Postdocs, but equally generative conversations with a broad range of others from graduate students to emeriti faculty.  With days spent largely in the hard – I might say what often feels like the impossible task of writing – I’ve spent evenings in the renewing work of reading creative works of history, but also creative non-fiction, memoir, essay, and poetry, works through which I imagine broadened possibilities for the writing of legal history.  The combined result has been a welter of new ideas and a number of new chapters.  As I realized years ago in leading the Hurst Institute, the genius of the thing was in part its structure, coupled with outstanding administrative support that freed fellows individually and collectively to think.  The same has been true here, coupled with generous, inspired leadership.  I would urge us as a field to think how we might create (and fund!) more such short- and longer-termed, residency and non-residency, themed, cross-rank, cross-field legal history writing hunkers – shelters from being “pulled hither and thither” in which we might think and create.  

Photo (L to R): Tom Johnson, Liz Thornberry, George Aumoithe, Barbara Welke, Lena Salaymeh, Tataiana Borisova, Angela Creager, Natasha Wheatley, Jon Connolly


(posted by Mitra Sharafi)

Monday, June 3, 2019

CFP: Policy History 2020

The Institute for Political History, the Journal of Policy History and the Arizona State University Political History and Leadership program are hosting the eleventh biennial Conference on Policy History in Tempe, Arizona from Wednesday, June 3 to Saturday, June 6, 2020.

We are currently accepting panel and paper proposals on all topics regarding American political and policy history, political development, and comparative historical analysis. Complete sessions, including two or three presenters with chair/commentator(s), and individual paper proposals are welcome. Participants may only appear once as a presenter in the program.

The deadline for submission is December 13, 2019.   Proposals for panels and papers must be submitted online at the links below, and must include the following:

1. Name(s)
2. Institutional Affiliation(s)
3. Status (i.e. ABD, Doctoral Student, Assistant/Associate/Full Professor)
4. Email address(es).
5. Mailing Address(es).
6. Panel and paper title(s).
7. One (1) 150 word abstract of panel and papers in Microsoft Word or PDF format.
8. 75 word description of each presenter or panel participant including educational background, major publications, awards or fellowships, also in Microsoft Word or PDF format.

Submit paper proposals here.  Submit panel proposals here.  --Dan Ernst

Khalilieh, "Islamic Law of the Sea"

Cambridge University Press has published Islamic Law of the Sea: Freedom of Navigation and Passage Rights in Islamic Thought (April 2019), by Hassan S. Khalilieh (University of Haifa, Israel). A description from the Press:
The doctrine of modern law of the sea is commonly believed to have developed from Renaissance Europe. Often ignored though is the role of Islamic law of the sea and customary practices at that time. In this book, Hassan S. Khalilieh highlights Islamic legal doctrine regarding freedom of the seas and its implementation in practice. He proves that many of the fundamental principles of the pre-modern international law governing the legal status of the high seas and the territorial sea, though originating in the Mediterranean world, are not a necessarily European creation. Beginning with the commonality of the sea in the Qur'an and legal methods employed to insure the safety, security, and freedom of movement of Muslim and aliens by land and sea, Khalilieh then goes on to examine the concepts of the territorial sea and its security premises, as well as issues surrounding piracy and its legal implications as delineated in Islamic law.
More information is available here.

-- Karen Tani

Baron, "Presidential Privilege and the Freedom of Information Act"

Oxford University Press (on behalf of Edinburgh University Press) has released Presidential Privilege and the Freedom of Information Act, by Kevin M. Baron (University of Florida). A description from the Press:
The Freedom of Information Act, developed at the height of the Cold War, highlighted the power struggles between Congress and the president in that tumultuous era. By drawing on previously unseen primary source material and exhaustive archival research, this book reveals the largely untold and fascinating narrative of the development of the FOIA, and demonstrates how this single policy issue transformed presidential behaviour. The author explores the policy's lasting influence on the politics surrounding contemporary debates on government secrecy, public records and the public's 'right to know', and examines the modern development and use of 'executive privilege'.
More information, including the TOC, is available here.

-- Karen Tani

Sunday, June 2, 2019

Thank you, Sarah Seo!

A big thanks to Professor Sarah Seo (Iowa Law) for joining us this past month as a guest blogger and for all her thoughtful contributions! Here's a round-up of her posts:
For updates on her work, check out her website.

- Karen Tani

Saturday, June 1, 2019

Weekend Roundup

  • Over at Et Seq., Irene Gates, the project archivist at the Harvard Law School Library for the Justice Antonin Scalia papers, reports that items "that should be open next year includes the Justice’s pre-Supreme Court files (1970-1986); correspondence (through 1989 only); speaking engagement and event files (through 1989 only); photographs (circa 1982-2016); and miscellaneous files, such as subject files and articles about Scalia (1986-2016).”  H/t: JQB
  • A recent post by our friends at the Federal Judicial Center reminds us of its list of “Unsuccessful Nominations and Recess Appointments” to the federal judiciary.
  • Former LHB Guest Blogger Mary Ziegler, Florida State College of Law, discusses the history of the“fetal personhood” movement as part of a National Constitution Center podcast on Box v. Planned Parenthood.
  • According to Bucks Local News, “In a bold decision that will preserve the material record of American Revolutionary history and make it accessible to scholars across the globe,” the holdings of the David Library of the American Revolution will be relocated to the American Philosophical SocietyMore.
  • Some years back, Roman Hoyos observed that their flexibility as teachers allow many legal historians to contribute mightily to the law school curriculum.  The announcement of the 2019 Law Teaching awards at the University of Pennsylvania makes the point nicely.  Among the recipients were Sophia Lee, Serena Mayeri, and Herbert Hovenkamp.  --DRE
  •  ICYMI: Seven historians say Justice Clarence Thomas erred in writing in Box that “[f]rom the beginning, birth control and abortion were promoted as a means of effectuating eugenics."  (WaPo).  Also, Seth Barrett Tillman’s latest brief in the emoluments-clause litigation.  Finally, the Seattle University Law Review has published Berle X, the latest symposium inspired by the mid-twentieth-century law professor and government official Adolf Berle   I can especially recommend the contribution of my Georgetown Law colleague Robert Thompson.  --DRE
  • At The Conversation: Anne Fleming (Georgetown Law) on the relevance of "the history of small-dollar loans and their regulation" to recent proposals to curb predatory lending.; 
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.