Saturday, July 23, 2016

Weekend Roundup Addendum: Dudziak on Trump and America's Moral Authority

Today's New York Times includes an op-ed by LHB founder and former blogger Mary Dudziak (Emory University), on "Donald Trump and America's Moral Authority." Dudziak draws on political and diplomatic history to discuss a striking feature of Trump's campaign rhetoric: departing from traditions in both major parties, "[h]e rejects the idea that American moral leadership matters."

Weekend Roundup

  • “The History and Public Policy Program seeks interns for the Cold War International History Project (CWIHP) and the Nuclear Proliferation International History Project (NPIHP).”  Deadline for applications is July 31, 2016.  More.
  • Over at the UNC Press Blog, legal historian Martha Jones (University of Michigan) draws on her work on the intellectual history of black women to urge readers not to "miss out on what Michelle Obama actually said in 2008."  
  • The Italian Society of Law and Economics welcomes submissions of papers on any topic regarding the Economic Analysis of Law for its 12th annual conference to be held in Torino (Italy) on December 16-17, 2016, at Campus Luigi Einaudi of University of Torino”–including the “History of Law and Economics Thought.”
  • ICYMI: Over at Balkinization, Jeremy Kessler comments on an essay two intellectual historians arguing that “historiographical methods best suited to an originalism rooted in public meaning rather than intent.” Also, Seth Barrett Tillman on why, as a legal matter, MacArthur was right and Truman was wrong.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers

Friday, July 22, 2016

Hovenkamp on the Saga of Progressive Racism

Herbert J. Hovenkamp, University of Iowa College of Law, has posted The Saga of Progressive Racism:
American Progressivism has received a good deal of unwelcome attention, charged with blatant racism and promotion of eugenics, and thus with mainstreaming practices such as housing segregation, compulsory sterilization of those deemed unfit, and exclusion of immigrants on racial grounds. One question this raises is, if the Progressives were such racists, why is it that since the 1930s Afro-Americans and other people of color have consistently supported self-proclaimed progressive political candidates, and typically by very wide margins?

My argument here is, first, that one of the most powerful characteristics of the progressive State was its attentiveness to science – a characteristic that it retains to this day. When the Progressive Era was forming, however, genetic racism was the scientific model of the day, cutting across a wide range of disciplines and reaching people of all political persuasions, even into the most elite of American research institutions. By and large, non-Progressives were just as racist as Progressives and some significantly more so. Further, the Progressive period lay entirely within the southern era of Jim Crow legislated segregation, often making it impossible to identify particular racial attitudes in the New South as "Progressive" or simply as inherited features of long held southern racial ideas.

Second, if Progressive public policy on race differed from prevailing alternatives, it was that Progressives believed in a more active State. Racism supported by an activist legislative agenda can be much uglier than racism that is simply tolerated. One cannot characterize most of the segregationist, exclusionary, and other racist legislation passed during this era as "Progressive,” however. Southern states actively regulated racial exclusion by statute, and all of the racial zoning laws sometimes attributed to Progressives were passed in formerly slaveholding states. Whatever the ideological or scientific sources of these laws, they were supported by staunch anti-Progressives. The same thing is true of compulsory sterilization laws. For example, the Supreme Court Justices who voted consistently against Progressive labor protective and other regulatory legislation voted to uphold compulsory sterilization of mental "defectives." While many Progressives advocated for more restrictive immigration laws, nothing that was passed during the Progressive Era matched the explicit restrictions on Chinese immigration that came earlier, or the racist immigration restrictions enacted during the terms of anti-Progressive Presidents Harding and Coolidge after the Progressive Era had ended. Finally, the attempts to link Progressive support for minimum wage laws to racial exclusion fail because they misunderstand the objectives of the Progressive minimum wage commitment and, further, pick and choose a small number of idiosyncratic examples from an enormous economic literature.

Third, the one place where a sharp difference emerged between progressives and their various opponents was in the subsequent rejection of genetic racism in favor of more environmentalist, nurture-based models of human nature and development. More environmentalist views began to take hold in the social sciences in the 1910s and 1920s and began to change legal thinking in the 1940s. They found expression in a Supreme Court that was almost unanimously Democrat and self-acknowledged progressive. The result was gradual emergence of a division that has endured to this day, with progressives largely appearing as the champions of racial inclusion and diversity.

Thomas's "Missing American Jury"

Suja A. Thomas, University of Illinois College of Law, has published The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries, with Cambridge University Press.
Criminal, civil, and grand juries have disappeared from the American legal system. Over time, despite their significant presence in the Constitution, juries have been robbed of their power by the federal government and the states. For example, leveraging harsher criminal penalties, executive officials have forced criminal defendants into plea bargains, eliminating juries. Capping money awards, legislatures have stripped juries of their power to fix damages. Ordering summary judgment, judges dispose of civil cases without sending them to a jury. This is not what the founders intended. Examining the Constitution's text and historical sources, the book explores how the jury's authority has been taken and how it can be restored to its rightful, co-equal position as a 'branch' of government. Discussing the value of juries beyond the Constitution's requirements, the book also discusses the significance of juries world-wide and argues jury decision-making should be preferred over determinations by other governmental bodies.
Professor Thomas's website for the book, which includes many endorsements, is here.

Thursday, July 21, 2016

Appleby's "Role of the Solicitor-General"

Gabrielle Appleby, an Associate Professor of Law at the University of New South Wales has published Role of the Solicitor-General: Negotiating Law, Politics and the Public Interest with Hart Publishing:
Behind every government there is an impressive team of hard-working lawyers. In Australia, the Solicitor-General leads that team. A former Attorney-General once said, 'The Solicitor-General is next to the High Court and God.' And yet the role of government lawyers in Australia, and specifically the Solicitor-General as the most senior of government lawyers, is under-theorised and under-studied.

The Role of the Solicitor-General: Negotiating Law, Politics and the Public Interest goes behind the scenes of government – drawing from interviews with over 45 government and judicial officials – to uncover the history, theory and practice of the Australian Solicitor-General. The analysis reveals a role that is of fundamental constitutional importance to ensuring both the legality and the integrity of government action, thus contributing to the achievement of rule-of-law ideals. The Solicitor-General also works to defend government action and prosecute government policies in the court, and thus performs an important role as messenger between the political and judicial branches of government.

But the Solicitor-General's position, as both an internal integrity check on government and an external warrior for government, gives rise to competing pressures: between the law, politics and the public interest. The office of the Solicitor-General in Australia has evolved many characteristics across the almost two centuries of its history in an attempt to navigate these tensions. These pressures are not unique to the Australian context. The understanding of the Australian position provided by this book is informed by, and will inform, comparative analysis of the role of government lawyers across the world.
TOC after the jump.

Wednesday, July 20, 2016

Maltz's "Coming of the Nixon Court"

Earl M. Maltz, a Distinguished Professor at the Rutgers University School of Law, has published The Coming of the Nixon Court: The 1972 Term and the Transformation of Constitutional Law, with the University Press of Kansas.
Beginning with Brown v. Board of Education and continuing with a series of decisions that, among other things, expanded the reach of the Bill of Rights, the Supreme Court that Richard Nixon inherited had presided over a progressive revolution in the law. But by 1972 Nixon had managed to replace four members of the so-called Warren Court with justices more aligned with his own law-and-order conservatism. Nixon’s appointees—Warren Burger as Chief Justice and Harry Blackmun, Lewis Powell, and William Rehnquist as associate justices—created a politically diverse bench, one that included not only committed progressives and conservatives, but also justices with a wide variety of more moderate views. The addition of the Nixon justices dramatically changed the trajectory of American constitutional jurisprudence with ramifications continuing to this day.

This book is an account of the actions of the “Nixon Court” during the 1972 term—a term during which one of the most politically diverse benches of the era would confront a remarkably broad array of issues with major implications for the future of constitutional law. By looking at the term’s cases—most notably Roe v. Wade, but also those addressing school desegregation, criminal procedure, obscenity, the rights of the poor, gender discrimination, and aid to parochial schools—Earl Maltz offers a detailed picture of the unique interactions behind each decision. His book provides the reader with a rare close-up view of the complexity of the forces that shape the responses of a politically diverse Court to ideologically divisive issues—responses that, taken together, would shape the evolution of constitutional doctrine for decades to come.
Some endorsements:

"In 1972-73 the Supreme Court began to pivot away from the Warren Court’s jurisprudence toward a newer form of activism, which took shape over the next decades. Earl Maltz’s examination of the 1972 Term gracefully brings together law and politics to illuminate not merely the cases decided during that Term, but the course constitutional law has taken since then.”
    —Mark Tushnet, author of Red, White, and Blue: A Critical Analysis of Constitutional Law

“Most of modern constitutional law has its roots in the Supreme Court’s dramatic 1972 Term. Now, Earl Maltz has provided a lucid, fair minded, and insightful analysis of the Term. This work is required reading for anyone who cares about the Supreme Court and constitutional law.”
    —Louis Michael Seidman, author of On Constitutional Disobedience

“1972 is the year the Supreme Court turned right, a direction from which the justices have never veered. The story of that permanent shift is told with living detail and aplomb by one of our nation's leading legal historians.”
   —Mark Graber, Jacob A. France Professor of Constitutionalism, University of Maryland Francis King Carey School of Law

Shapiro on "Emigration Policy and the Concentration of Apartheid"

The most recent issue of the Journal of Southern African Studies includes an article that may be of interest: "No Exit? Emigration Policy and the Consolidation of Apartheid," by Karin A. Shapiro (Duke University). Here's the abstract:
Emigration policy in post-1948 South Africa functioned as both a tool of oppression and a safety valve, at once a mechanism to punish Apartheid’s staunchest political opponents and a mechanism for dissipating white opposition to National Party policies. This article examines the National Party’s policy toward emigration in the 1950s and 1960s, exploring the role of travel documents in the evolving National Party strategy for maintaining, and even extending, its control over internal political opponents. At no point, however, could the Minister of the Interior simply impose his will without facing innovative challenges to the law. Anti-apartheid figures repeatedly sought to test emigration provisions in the courts and nullify their effects. The Government developed its emigration policy by deciding individual applications on a case-by-case basis, rather than articulating ‘coherent’ public guidelines. It further believed that citizens did not have a right to a passport and that travellers constituted ‘quasi-diplomats’. This formulation, along with the requirement that black South Africans provide a substantial deposit before travelling abroad, speaks to the apartheid Government’s complex notions of racially based citizenship. 
Full content is available here (behind a paywall, unfortunately)

Tuesday, July 19, 2016

Weiner's "Preservation Waltz"

On his website "Worlds of Law," Mark S. Weiner has posted Preservation Waltz, the latest video in his series “about Austrian concepts of law and the Austrian experience of landscape . . . .Rare books, forests, and domestic architecture.  Sustainability is the key principle.”  He discusses the video in this guest post on Environment, Law and History.

Delaney on Stilt, "Contextualizing Constitutional Islam"

Over at JOTWELL, Erin F. Delaney (Northwestern University Pritzker School of Law) has posted an admiring review of "Contextualizing Constitutional Islam: The Malayan Experience," by Kristen Stilt (Harvard Law School). The article appeared in Volume 13 of the International Journal of Constitutional Law (2015). Here's the first paragraph:
Constitutional drafters, advisors, and commentators alike should read Kristen Stilt’s excellent article, Contextualizing Constitutional Islam: The Malayan Experience. It provides an engrossing history of a constitutional creation story—the 1957 Constitution of the Federation of Malaya (now Malaysia)—and sheds important light on the development of what Stilt terms “constitutional Islam,” or the incorporation of references to Islam and Islamic law in modern constitutions. These accomplishments alone would be enough for an enthusiastic jot. But the article does much more, raising fascinating questions about the nature of constitutional compromise and the role of religion in societal conflict, as well as pragmatic concerns about the effectiveness of international constitutional advisors.
Read on here.

Lee, "Popular Sovereignty in Early Modern Constitutional Thought"

Via the Legal Theory Blog (Lawrence Solum's "legal theory bookworm") and JOTWELL (an admiring review by Roman Hoyos), we have word of a recent release from Oxford University Press: Popular Sovereignty in Early Modern Constitutional Thought (April 2016), by Daniel Lee (University of California, Berkeley). A description from the Press:
Popular sovereignty - the doctrine that the public powers of state originate in a concessive grant of power from 'the people' - is perhaps the cardinal doctrine of modern constitutional theory, placing full constitutional authority in the people at large, rather than in the hands of judges, kings, or a political elite. Although its classic formulation is to be found in the major theoretical treatments of the modern state, such as in the treatises of Hobbes, Locke, and Rousseau, this book explores the intellectual origins of this doctrine and investigates its chief source in late medieval and early modern thought.

Long regarded the principal source for modern legal reasoning, Roman law had a profound impact on the major architects of popular sovereignty such as Francois Hotman, Jean Bodin, and Hugo Grotius. Adopting the juridical language of obligations, property, and personality as well as the model of the Roman constitution, these jurists crafted a uniform theory that located the right of sovereignty in the people at large as the legal owners of state authority. In recovering the origins of popular sovereignty, the book demonstrates the importance of the Roman law as a chief source of modern constitutional thought.
The Table of Contents is available here. The review by Roman Hoyos (Southwestern Law School) is available here.

Monday, July 18, 2016

Those SSRN Posts

As long-time LHB readers know, our usual practice has been to post only abstracts for SSRN papers that are downloadable from that website.  Perhaps like many of you, we’ve heard that the new for-profit proprietors have been removing links to papers that do not on their face show disclose their authors' permission to post them.  We’ll continue to follow the situation and, if necessary, alter our practice.

Crofts on "The Other Thirteenth Amendment"

New from the University of North Carolina Press: Lincoln and the Politics of Slavery: The Other Thirteenth Amendment and the Struggle to Save the Union (April 2016), by Daniel W. Crofts. A description from the Press:
In this landmark book, Daniel Crofts examines a little-known episode in the most celebrated aspect of Abraham Lincoln’s life: his role as the “Great Emancipator.” Lincoln always hated slavery, but he also believed it to be legal where it already existed, and he never imagined fighting a war to end it. In 1861, as part of a last-ditch effort to preserve the Union and prevent war, the new president even offered to accept a constitutional amendment that barred Congress from interfering with slavery in the slave states. Lincoln made this key overture in his first inaugural address.
Crofts unearths the hidden history and political maneuvering behind the stillborn attempt to enact this amendment, the polar opposite of the actual Thirteenth Amendment of 1865 that ended slavery. This compelling book sheds light on an overlooked element of Lincoln’s statecraft and presents a relentlessly honest portrayal of America’s most admired president. Crofts rejects the view advanced by some Lincoln scholars that the wartime momentum toward emancipation originated well before the first shots were fired. Lincoln did indeed become the “Great Emancipator,” but he had no such intention when he first took office. Only amid the crucible of combat did the war to save the Union become a war for freedom.
More information is available here.

Sunday, July 17, 2016

Sunday Book Roundup

This week, book reviewers are reflecting on Jonah Lehrer’s new book, “second chances” in the book world, and the extent to which the publishers (who, per The Guardian, “love books that tell clear, simple stories sprinkled with cutting-edge science” can be held to blame for his misdeeds). While this could be as an interesting set of issues for legal historians and writers in general, there are more pertinent reviews afoot as well.

The LA Times carries a review of Geoffrey Cowan’s account of the country’s first primary season in 1912, when Theodore Roosevelt challenged his former protégé William Howard Taft with a “gambit” that involved selecting delegates from each state. The review draws more from today’s primary contest (“if Roosevelt was Trump, then Taft was Jeb”) that historians of Roosevelt and turn of the century politics, and should be of interest to a wide group of readers.
In the NYRB, Jerry Brown discusses William J. Perry, the US Secretary of Defense from 1994 to 1997, whose My Journey at the Nuclear Brink argues that nuclear danger is “growing greater every year” and that even a single nuclear detonation “could destroy our way of life.” In the same publication, Paul Krugman reviews a new book by Mervyn King, former Governor of the Bank of England. While the book is “devoted to ‘economic ideas.’” It is also “rich in wide-ranging historical detail.”

In Dissent, editor Timothy Shenk interviews Caitlin Fitz about Our Sister Republics, which “exhumes a forgotten moment in the history of the Americas, a time when residents of the newly formed United States came to see Latin Americans as partners in a shared revolutionary experiment.”

This week’s reviews may be of particular interest to legal historians concerned with nationalism, migration and global contact. In an essay in The Nation, John Connolly reviews Tara Zahra’s The Great Departure: Mass Migration From Eastern Europe and the Making of the Free World, which follows the almost 58 million people left Europe for North and South America between 1846 and 1940 as well as the ethno-nationalist politics prompted by their departure. The book was reviewed heavily earlier this year, including in the Chicago Tribune and Foreign Affairs. Readers of Zahra’s book may also be interested in Vanessa Ogle’s The Global Transformation of Time: 1870-1950, which is featured on the New Books Network podcast.

The Wall Street Journal contains a series of interesting reviews (including one of June Teufel Dreyer’s “Middle Kingdom and Empire of the Rising Sun” and one of “Love Canal: A Toxic History From Colonial Times to the Present” by Richard S. Newman), but these are behind a paywall.

And finally, in PopMatters Jedd Beaudoin reviews Deborah L. Rhode’s Adultery: Infidelity and the Law.

Saturday, July 16, 2016

Weekend Roundup

  • Congratulations to Professors John Hudson and Lorna Hutson, co-directors of University of St Andrews’s Centre for Mediaeval and Early Modern Law and Literature, upon their election to the British Academy.  More.
  • ICYMI: New York Times reporter Rachel Swarms follows up on her story about the 1838 sale of some 272 slaves by the Jesuit priests who ran what became Georgetown University by following the current president John J. DeGioia’s encounters with their descendants.  The Senate approved Carla Hayden as the new Librarian of Congress.  Ronald Collins interviews Michael J. Graetz and Linda A. Greenhouse about The Burger Court and the Rise of the Judicial Right (Simon & Schuster, 2016) on SCOTUSblog.  Seth Barrett Tillman on the impeachment of Associate Justice Samuel Chase, and Roland Nikles, a San Francisco attorney, on Worcestor v. Georgia.
  • Save the dates: Although this is still a year away, you may want to note that the Commission on Legal Pluralism will have its next biennial conference in Syracuse, NY on Aug.9-11, 2017. It will host a course on legal pluralism right before the meeting--on Aug.4-7, 2017.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, July 15, 2016

Bilder on Coke, the Virginia Charter and "Charter Constitutionalism"

Mary Sarah Bilder, Boston College Law, has posted Charter Constitutionalism: The Myth of Edward Coke and the Virginia Charter, from the symposium on Magna Carta in the North Carolina Law Review (2016):
Magna Carta’s connection to the American constitutional tradition has been traced to Edward Coke’s insertion of English liberties in the 1606 Virginia Charter. This account curiously turns out to be unsupported by direct evidence. This Article recounts an alternative history of the origins of English liberties in American constitutionalism. A quarter century before the Virginia charter, provisions assuring liberties to English children born overseas were inserted in the earliest letters patent. These provisions drew on an older practice extending liberties to children born overseas. Because of these provisions, persons born in the colonies were guaranteed the same liberties as those born in England. This explanation suggests new appreciation for the interpretive flexibility of early written constitutionalism. As the liberties provisions reveal, words described the underlying concept but were not used to fix a precise definition. Thus, various words could be altered over time to ensure that the concept adapted to contemporary political and legal issues. Throughout, however, the assurance remained that those born in the colonies possessed English liberties. This Article calls this genre of early written constitutionalism “charter constitutionalism” to emphasize this elastic interpretive practice. Charter constitutionalism deserves recognition as a founding strand of American constitutionalism.
H/t: Legal Theory Blog

Cox and others on Public Indecency in England

Public Indecency in England 1857-1960: 'A Serious and Growing Evil' came out with Routledge earlier this year. The volume is co-authored by David J. Cox (U. of Wolverhampton), Kim Stevenson (Plymouth U.), Candida Harris (Plymouth U.), and Judith Rowbotham (independent scholar based in London). From the publisher:
Public Indecency in England 1857-1960: 'A Serious and Growing Evil’ (Hardback) book cover
Throughout the nineteenth century and twentieth century, various attempts were made to define and control problematic behaviour in public by legal and legislative means through the use of a somewhat nebulous concept of ‘indecency’. Remarkably however, public indecency remains a much under-researched aspect of English legal, social and criminal justice history.
Covering a period of just over a century, from 1857 (the date of the passing of the first Obscene Publications Act) to 1960 (the date of the famous trial of Penguin Books over their publication ofLady Chatterley’s Lover following the introduction of a new Obscene Publications Act in the previous year), Public Indecency in England investigates the social and cultural obsession with various forms of indecency and how public perceptions of different types of indecent behaviour led to legal definitions of such behaviour in both common law and statute.
This truly interdisciplinary book utilises socio-legal, historical and criminological research to discuss the practical response of both the police and the judiciary to those caught engaging in public indecency, as well as to highlight the increasing problems faced by moralists during a period of unprecedented technological developments in the fields of visual and aural mass entertainment. It is written in a lively and approachable style and, as such, is of interest to academics and students engaged in the study of deviance, law, criminology, sociology, criminal justice, socio-legal studies, and history. It will also be of interest to the general reader.
More after the jump.

CFP: Law and Literature From the Global South

[Via H-Law we have the following CFP.]

The Journal of Commonwealth and Postcolonial Studies, Spring 2018 Special Issue: Law and Literature from the Global South.  Guest Editors: David Babcock (James Madison University) and Peter Leman (Brigham Young University).  Deadline for Submissions (approximately 4,000-5,000 words): December 20, 2016.

The editors of this special issue of JCPCS seek essays that respond to the question: what does it mean to study law and literature from the global south? “Law and Literature,” as a field, has responded in recent years to criticism of its longstanding attention to Anglo-American contexts, and more and more, scholars are turning to regions of the global south in thinking about the literary in relationship to international, colonial, and post-colonial forms of law. Though this widening geographical scope is praiseworthy and necessary, there remains the question of method: can the literatures and legal cultures of the global south inflect, augment, or otherwise reshape not only where we direct our critical attention as scholars of law and literature but how?

In posing this question, we take as initial inspiration Jean Comaroff and John L. Comaroff’s Theory From the South (2012), in which they question the tendency of theory work to be unidirectional, emerging from the north and then circulating within and being “applied to” the south. If, however, the global south has played an essential role in “world-historical processes” (7) and can, therefore, afford “privileged insight into the workings of the world at large” (1), then perhaps theory—including law and literature—ought to take this into account. When we speak of “postcolonial law and literature” or “law, literature, and the global south,” are we speaking of the conventional critical paradigms of law and literature as it emerged from Anglo-American contexts in the 1970s and 80s, or does the postcolonial/global open us up to new configurations of the legal and the literary? If so, what might these configurations look like? What new concepts emerge? Are there forms of law, justice, obligation, harm, personhood, etc. that originate in but circulate beyond the cultures of the global south that might provoke us to think differently about the dominant normative assumptions of the field at large? Are there colonial legal practices that still survive in contemporary states, and if so, what creative concepts or images of law can we see emerging in literary responses to these problematic legacies? In what ways has international law been adapted, reimagined, or otherwise modified in its years of deployment throughout the global south—for good or for ill—that can be understood through the lens of the literary and brought back to our conventional assumptions about law as it has developed in the north? Are there forms of intersection between law and literature in the global south that make even the implied distinction of “and” irrelevant? Submissions should seek to demonstrate how the literatures and cultures of the global south, broadly conceived, offer provocative ways for scholars throughout the world to think about the field of law and literature and the fluid nature of its most fundamental terms.

Manuscripts must be written in English and follow the MLA Style Manual. JCPCS uses a double-blind review process. Full, formatted manuscripts should be submitted to by December 20, 2016.

Funk on Church Corporations and Conflict of Laws

Kellen R. Funk, a doctoral candidate in history at Princeton University, has posted “Interference in Churches Must Be Referred to the Rights of Property”: Church Corporations and Conflict of Laws in Antebellum America, which is forthcoming in the Journal of Law and Religion 33 (2018)::    
Scholars frequently describe American religious disestablishment using commercial analogies, reckoning that states “privatized” religion or subjected churches to “free market competition” by making them more like commercial businesses, yet churches pioneered many of the corporate devices that came to define American enterprise after the Civil War. Such descriptions are thus anachronistic. Antebellum jurists were not concerned about the similarity of churches to businesses but rather their similarity to states, and the republican fear that churches could be rival sovereign states at first structured the law of disestablishment. In most states, churches gained rights of general incorporation but faced significant limitations on their corporate governance and property holdings. After the Marshall Court reasoned that churches did not govern and should not be considered rival sovereignties, state judges were left without a definite source of law to adjudicate church disputes. Given the vagueness of charters under general incorporation schemes, state courts allowed trust law to function as a conflict of law analysis: Judges treated religious doctrine as a foreign legal system with rules that could be ascertained and accorded respect in American courts. Such a move created a positive, corporate right of religious liberty that becomes obscured if one conceives of religious freedom only as an individual right to be asserted against the state.

Thursday, July 14, 2016

Kang on Holmes's Martial Manliness

John M. Kang, St. Thomas University School of Law, has posted Prove Yourselves: Oliver Wendell Holmes and the Obsessions of Manliness, which will appear in the West Virginia Law Review 118 (2016): 1067-1129,
OWH in uniform, 1861 (wiki)
In order for constitutional democracy to endure, Americans must be tough, must be manly—and indeed heroic; or so Oliver Wendell Holmes argued, the famous justice who, in his mid-twenties, was also a thrice wounded veteran of the Civil War.

Holmes is often wrongly portrayed as a social Darwinist or as a political progressive sympathetic to workers or even as a prototypical liberal softy of sorts. Notwithstanding his own words, there were few bases for these accounts. Holmes’s most important opinions dealing with First Amendment were impelled by an idiosyncratic idea of manliness, and in particular, a view of manliness that was derived from his account of martial heroism. He argued that only a manly people who embraced his own brand of heroism could endure the frightening consequences that would be ushered by the political freedom protected by the First Amendment. Only such a heroic people, that is, could tolerate conditions where communists, anarchists, and other subversives threatened to destroy the United States.

Whittington on Judicial Review by the US Supreme Court

Keith E. Whittington, Princeton University, Department of Political Science, has posted Sober Second Thoughts: Evaluating the History of Horizontal Judicial Review by the U.S. Supreme Court, which is forthcoming in Constitutional Studies:
Normative theorizing about judicial review often proceeds with minimal attention to the overall record of how the U.S. Supreme Court has actually exercised the power of judicial review. This article assesses how well the historical record of the Court’s invalidation of federal policies can be justified using only a minimalist theory of judicial review. Although some of the Court’s cases can be justified in this way, most of the Court’s work would require a more substantively thick and necessarily controversial theory in order to justify it.

Wednesday, July 13, 2016

Shammas and Mancall on the Sea

An edited volume by Peter C. Mancall and Carole Shammas (both of the University of Southern California), Governing the Sea in the Early Modern Era:Essays in Honor of Robert C. Ritchie (Huntington Library) came out last year. From the publisher:
Image result for slave ship painting
Early modern European governments clashed over laws governing the sea—an environment that featured watery borders, rampant piracy, the threat of free trade, and the large-scale transportation of human cargo. The essays in this volume explore how the exploitation of the oceans changed the institution of slavery, long-distance trade, property crime, the environment, literature, and memory, from medieval times to the nineteenth century.
The Table of Contents is available here, and here is further information about the book.

Zhao on Sorcery Crimes in Traditional China

Xiaohuan Zhao, University of Sydney, Department of Chinese Studies, has posted Sorcery Crimes, Laws, and Judicial Practice in Traditional China, which appears in the Australian Journal of Asian Law 17 (2016): 1-21:
Wugu is a general term for all sorts of black magic in China, just as ‘sorcery’ or ‘witchcraft’ is understood in a Western context. Wugu sorcery is a living tradition that has been practised for more than 3,000 years and has been strictly prohibited and severely punished since ancient times. This study will examine rules and punishments laid out against sorcery crimes in traditional China from the pre-Qin (221-206 BC) period through to the Qing dynasty (1644-1911), followed by a case study of relevant judicial practice. I argue that sorcery was treated primarily as a heretical or political crime in early and early medieval China, before politically motivated sorcery crimes were distinguished from non-politically motivated ones. The distinction made between them led to a sharp drop in political sorcery charges and trials in China’s later dynasties but did not do much to prevent miscarriage of justice from occurring from time to time, mainly due to wide judicial discretion, lack of specific legal penalties, and the absence of effective means of gathering and verifying evidence.

Three More from Hulsebosch

Daniel J. Hulsebosch, New York University School of Law, has posted three more articles, either just out or forthcoming.  Professor Hulsebosch presented Magna Carta for the World? The Merchants’ Chapter and Foreign Capital in the Early American Republic  in that Carolina Law symposium on Magna Carta.  (The paper is downloadable not through SSRN but here, as part of volume 94 of the North Carolina Law Review.)
This Article examines the early modern revival and subtle transformation in what is here called the merchants’ chapter of Magna Carta and then analyzes how lawyers, judges, and government officeholders invoked it in the new American federal courts and in debates over congressional power. In the U.S. Supreme Court in the early 1790s, a British creditor and an American State debated the meaning and applicability of the merchants’ chapter, which guaranteed two rights to foreign merchants: free entry and exit during peacetime, without being subjected to arbitrary taxes; and, in wartime, the promise that their persons and goods would not be harmed or confiscated, unless their own king attacked and confiscated English merchants. In other words, no harm to enemy aliens, except as retaliation. Tit for tat.

The idea that reciprocity was a fundamental mechanism of international (and interpersonal) relations became something like a social science axiom in the early modern Enlightenment. Edward Coke claimed to find that mechanism in the merchants’ chapter and publicized it to lawyers throughout the emerging British Empire and beyond. Montesquieu lauded the English for protecting foreign commerce in their fundamental law, and Blackstone basked in that praise. American lawyers derived their understanding of the merchants’ chapter from these sources and then, in the early Republic, stretched the principle behind it to protect foreign capital, not just resident merchants. The vindication of old imperial debt contracts would signal to all international creditors that, in the United States, credit was safe. Federalists then invoked the chapter outside of the courts to resist Republican attempts to embargo commerce and sequester foreign credit. For Republicans, doux commerce had become the Achilles heel of the great Atlantic empires: their reliance on American trade could be used to gain diplomatic leverage without risking war. For Federalists, economic sanctions threatened not just their fiscal policy but their entire vision of an Atlantic world that increasingly insulated international capital from national politics. They all agreed, however, that the role of foreign capital in the American constitutional system was a central issue for the new and developing nation.
A second article is Exile, Choice, and Loyalism: Taking and Restoring Dignity in the American Revolution, which is to appear in a symposium on “Dignity Takings,” in Law & Social Inquiry (2016):    
Taking a cue from Bernadette Atuahene’s concept of “dignity takings” and her insight that government expropriation inflicts more than economic injury, this essay analyzes how American revolutionaries defined political membership, penalized and expropriated British loyalists, and then allowed some to join the American polity in the decade after the Revolution. Many recovered their property, professions, and legal privileges. However, because most loyalists could choose to remain loyal or join the Revolution, they did not lose human dignity as Atuahene defines it. Case studies of two reintegrating lawyers, Richard Harison and William Rawle, explore loyalism, the loss of dignities that loyalists suffered, and some paths toward reintegration. Their appointment as federal attorneys helped make the government conversant in the common law, British statutes, and the law of nations, which in turn supported the Federalist goal of reintegrating the United States into the Atlantic World: achieving, in other words, national dignity.
The third is English Liberties Outside England: Floors, Doors, Windows, and Ceilings in the Legal Architecture of Empire, which is forthcoming as Chapter 38 of the Oxford History of English Law and Literature 1500-1700, ed. Lorna Hutson:
We tend to think of global migration and the problem of which legal rights people enjoy as they cross borders as modern phenomena. They are not. The question of emigrant rights was one of the foundational issues in what can be called the constitution of the English empire at the beginning of transatlantic colonization in the seventeenth century. This essay analyzes one strand of this constitutionalism, a strand captured by the resonant term, ‘the liberties and privileges of Englishmen’. Almost every colonial grant – whether corporate charter, royal charter, or proprietary grant – for roughly two dozen imagined, projected, failed, and realized overseas ventures contained a clause stating that the emigrants would enjoy the liberties, privileges and immunities of English subjects. The clause was not invented for transatlantic colonization. Instead, it had medieval roots. Accordingly, royal drafters, colonial grantees, and settlers penned and read these guarantees against the background of traditional interpretations about what they meant.

Soon, however, the language of English liberties and privileges escaped the founding documents, and contests over these keywords permeated legal debates on the meaning and effects of colonization. Just as the formula of English liberties and privileges became a cornerstone of England’s constitutional monarchy, it also became a foundation of the imperial constitution. As English people brought the formula west, they gave it new meanings, and then they returned with it to England and created entirely new problems.

Liberties and privileges claims fell into five functional categories. First, the claim that colonists abroad and their descendants enjoyed English liberties functioned as an open door, allowing overseas colonists to return home to England and be treated as equal English subjects. Second, the king or his colonial deputies might make positive grants of English liberties to subjects in a royal territory outside England as an inducement for English subjects to migrate there. Here, the grant of English liberties and privileges functioned as a window, a transparent promise of familiar and cherished rights to encourage settlement. Third, already by the time of the English Civil War and more frequently by century’s end, the colonists themselves sometimes claimed English liberties, privileges, and immunities abroad as a floor below which governors could not push. Fourth, in the reverse of the second, the claim that overseas subjects had to be governed according to English standards, including English liberties and privileges, could function as a ceiling on colonial innovation. It was a ceiling measured by metropolitan officials, especially the Privy Council as it reviewed colonial statutes and judicial cases to ensure that they were, in the familiar language of colonial grants, ‘agreeable’ with and ‘not repugnant’ to the laws of England. Finally, colonial assumptions of English liberties functioned as a mirror through which colonists could see themselves as English, even when their colonial rights, such as their property rights, were viewed at home as peculiar. If for example a subject of the English king in an overseas dominion owned slaves in that dominion and wished to sojourn home, could he bring his slaves? Could he carry the rights of a Virginian or Jamaican with him to England and enjoy those rights there? Collapsing English and local liberties, slaveholders argued affirmatively. As Englishmen they should, they thought, be able to move around the empire with their property, including human property.

Tuesday, July 12, 2016

Ruparelia on Socioeconomic Rights and the Indian Supreme Court

Sanjay Ruparelia, New School for Social Research, Department of Politics, has posted A Progressive Juristocracy? The Unexpected Social Activism of India's Supreme Court:
Since 2005, India has introduced a series of progressive social acts that legislate a right to various socioeconomic entitlements. These range from information, work, and education to forest conservation, food, and public service. Three features distinguish these acts: the explicit use of rights-based claims; the design of innovative governance mechanisms that seek to enhance the transparency, responsiveness, and accountability of the state; and the role played by social activists and activist judges in spearheading these pieces of legislation with the help of progressive party politicians. This paper analyzes a key slow-burning stimulus of India’s new rights-based welfare paradigm: the socially activist turn of its Supreme Court. I address two main questions. First, what explains the rise of progressive socioeconomic jurisprudence in India in the late 1970s? Following the prevailing scholarly consensus, I analyze the role of antecedent conditions and particular causal mechanisms to explain high judicial activism in India: deepening political fragmentation, endogenous judicial change, and the strategic political retreat of elected representatives. None of these factors can fully explain the timing, sequence, and focus of the social activist turn of the Indian Supreme Court in the late 1970s, however, which owed much to the rise of popular social formations during these years and their proliferation in the 1980s. Thus the complex interaction effects of several causal factors, whose weight has differed over time, provides a more convincing explanation. Second, what have been the achievements and failures of high judicial activism in India regarding socioeconomic rights? As many scholars persuasively demonstrate, its direct impact has been limited, while its pro-poor posture has been inconsistent. However, by focusing excessively on direct material consequences in the short-run, these studies discount the powerful long-term ramifications, many of which are symbolic and indirect, of the Indian Supreme Court’s earlier progressive turn.
H/t: Legal Theory Blog

CFP: A&NZ Law and History Society, 2016

[Via H-Law, we have the following announcement.  Note the deadline of July 29.]

The 35th Annual Australia and New Zealand Law and History Society Conference will be held at the Curtin Law School, Perth City Building on Monday 5 to 7 December 2016. This year's conference is entitled: 'Echoes on the Periphery: The Transformation of British Law in Africa and the Asia-Pacific'. This conference focuses on how the law changed to address the local conditions of the peoples and settlers in the British Empire in the 19th and 20th centuries. The foundation of colonies and societies in Africa, Asia, Australasia and in the British Empire generally was a chaotic affair. Before the effective extension of state authority and jurisdiction across the territories, various settler and local populations interacted across a range of customary, informal, colonial and imperial legal orders. The disputes among these groups not only involved fundamental economic interests but also were about competing political and legal philosophies regarding the nature and extent of developing colonial and national states. This conference seeks to investigate the law and rules that arose from this colonial milieu: an amalgam of the colonial and imperial law, the informal law of the Anglo-settlers and the law of local and indigenous societies in the colonial territory, all of which gradually coalesced into the colonial and national states which exist today.

The theme for this conference is intended to be interpreted broadly and abstracts of papers on any legal history topic are welcome. Scholars and post-graduate students, particularly in the Asian, African and Pacific region, are encouraged to submit abstracts for consideration by the conference organisers. Abstracts will be selected on the basis of quality, relevance and originality of ideas. Presenters whose abstracts are accepted will be required to meet their own travel, accommodation and conference registration costs. Postgraduate students enrolled in an Australian or New Zealand university may apply for a Kercher Scholarship to assist with their attendance. Other postgraduate students may apply for similar funding from the Curtin Law School, directly to the conference convenors.

The deadline for submission of abstracts is Friday 29 July 2016. Abstracts of no more than 300 words should be contained in a Microsoft Word document and submitted via email to:

Georgetown's International History Seminar

[We have the following announcement.]

The Georgetown University Institute for Global History and the Mortara Center for International Studies present the 2016-17 International History Seminar

Conveners: Toshihiro Higuchi, John McNeill, David Painter, and Aviel Roshwald

The seminar will meet on Tuesdays, 5:30-7:00 in the Mortara Center for International Studies at the corner of N and 36th Streets, NW (3600 N St., Washington, DC).  Papers will be pre-circulated among participants, on the understanding that they are drafts, and not to be quoted from or cited without author's permission. Light refreshments will be served.

September 13: Patricia O'Brien (Australian National University), "European Disarmament, Militarization in the Pacific and the Inner Workings of the League of Nations: The Case of New Zealand and Its S moan Mandate"

October 4: Kurk Dorsey (University of New Hampshire), "The 1972 US-Soviet Grain Deal: The Unintended Environmental Consequences of Trading with the Enemy"

November 15: Laura Beers (American University), "The Women's International League for Peace and Freedom" 

January 17: Sheldon Garon (Princeton University), "On the Transnational Destruction of Cities: What Japan and the U.S. Learned from the Bombing of Britain and Germany in World War II" 

March 21: Xiaoyuan Liu (University of Virginia), "Party Narrative and the Reform War in the Sichuan-Tibetan Frontier in the 1950s"

April 18: Tyler Priest (University of Iowa), "The Deepwater Golden Triangle: The Gulf of Mexico, Brazil, and West Africa in the Global Oil Economy"

Adkins's "Making Modern Florida"

It’s the official publication date for Making Modern Florida: How the Spirit of Reform Shaped a New State Constitution (University Press of Florida), by Mary E Adkins, University of Florida Levin College of Law:
Mid-twentieth-century Florida was a state in flux. Its explosive growth could be seen in rapidly burgeoning cities and suburbs, the development of the Kennedy Space Center during the space race, and the impending construction of Walt Disney World. Florida’s antiquated 1885 constitution was no match for the dramatic changes that took place in the makeup of the state during this time.

Many people recognized the shortcomings of the old constitution and worked to overhaul it. However, a small group of rural legislators known as the “Pork Chop Gang” controlled the state and thwarted several attempts to modernize the constitution. But through court-imposed redistribution of legislators and the hard work of state leaders, the constitution was modernized and the executive branch was reorganized.

In Making Modern Florida, Mary Adkins goes behind the scenes to examine the history and impact of the 1966–68 revision of the Florida state constitution. With storytelling flair, Adkins uses interviews and detailed analysis of speeches and transcripts to vividly capture the moves, gambits, and backroom moments necessary to create and introduce a new state constitution. This carefully researched account brings to light the constitutional debates and political processes in the growth to maturity of what is now the nation’s third largest state.
Endorsements after the jump:

Monday, July 11, 2016

Hillman to Lead Mills College

Congratulations to legal historian Elizabeth L. Hillman, late of UC Hastings Law, who earlier this month began her tenure as the fourteenth president of Mills College.  President Hillman earned a PhD in history and JD at Yale University, the author of Defending America: Military Culture and the Cold War Court-Martial (Princeton University Press, 2005), and a former LHB Guest Blogger!  Mills's press release is here.  H/t: SBG

Hulsebosch on Navigability and the Transformation of the Common Law

Daniel J. Hulsebosch, New York University School of Law, has posted a very nice article from his backlist, Writs to Rights: 'Navigability' and the Transformation of the Common Law in the Nineteenth Century, which originally appeared in the Cardozo Law Review 23 (2002).:
This Article argues that nationalist jurists in the early nineteenth century attempted to replace the dominant procedural conception of the common law with a substantive one. Their purpose was to ameliorate the effects of legal federalism. They hoped that the creation of a national body of private law in treatises and judicial reports would encourage legal uniformity among the states. The re-orientation of waterway law around the keyword “navigability” offers one example. As this example demonstrates, the project of forging a national jurisprudence was not entirely successful. But it did, indirectly, generate a way for the Supreme Court to extend its admiralty jurisdiction beyond tidewater and onto the nation’s navigable fresh waters, thereby subjecting many commercial cases to a uniform and notionally transnational body of maritime law.

Moyn on the History of International Criminal Law

Samuel Moyn, Harvard University, has posted From Aggression to Atrocity: Rethinking the History of International Criminal Law, which is forthcoming in the Oxford Handbook of International Criminal Law:    
Explaining the shift from the priority of the charge of "aggression" in the beginning of the field of international criminal law to its exclusion in the age of the its reinvention around a suite of atrocity charges is the central task for historians in understanding this domain — and it also should matter for observers of the world today. Yet routinely, international criminal law is presented as running through a smooth trajectory, rather than a stark reversal or at least massive shift. For this reason, this essay gathers together elements for a case for the transformation in the first place, and floats some hypotheses about its timing and causes.

Sager, "Marital Cruelty in Antebellum America"

New from Louisiana State University Press: Marital Cruelty in Antebellum America, by Robin C. Sager (University of Evansville). A description from the Press:
In Marital Cruelty in Antebellum America, Robin C. Sager probes the struggles ofaggrieved spouses shedding light on the nature of marriage and violence in the United States in the decades prior to the Civil War. Analyzing over 1,500 divorce records that reveal intimate details of marriages in conflict in Virginia, Texas, and Wisconsin from 1840–1860, Sager offers a rare glimpse into the private lives of ordinary Americans shaken by accusations of cruelty.
At a time when the standard for an ideal marriage held that both partners adequately perform their respective duties, hostility often arose from ongoing domestic struggles for power. Despite a rise in the then novel expectation of marriage as a companionate relationship, and even in the face of liberalized divorce grounds, marital conflicts often focused on violations of duty, not lack of love. Sager describes how, in this environment, cruelty was understood as a failure to fulfill expectations and as a weapon to brutally enforce more traditional interpretations of marital duty. 
Sager’s findings also challenge historical literature’s assumptions about the regional influences on violence, showing that married southerners were no more or less violent than their midwestern counterparts. Her work reveals how definitions and perceptions of cruelty varied according to the gender of victim and perpetrator. Correcting historical mischaracterizations of women’s violence as trivial, rare, or defensive, Sager finds antebellum wives both capable and willing to commit a wide variety of cruelties within their marriages. Her research provides details about the reality of nineteenth-century conjugal unions, including the deep unhappiness buried within them.
More information is available here.

Sunday, July 10, 2016

Sunday Book Roundup

This week's roundup is heterogenous and lengthy - hopefully there's something for legal historians of all stripes.

In this week's New York Times Lisa McGirr reviews Neither Snow nor Rain: A History of the United States Postal Service by Devin Leonard and How the Post Office Created America: A History by Winifred Gallagher.  (Leonard and Gallagher's books are also reviewed in the Washington Post.)

The summer issue of Dissent includes a number of provocative reviews (and the article "How War
Lost its Politics" by LHB founder Mary Dudziak).  Jonathan Levy has a review and meditation on Jefferson Cowie's The Great Exception: The New Deal and the Limits of American Politics and Robert J. Gordon's The Rise and Fall of American Growth: The U.S. Standard of Living since the Civil War. Levy's review is behind the paywall but it is well worth a read.

Also in Dissent is a review of Evicted: Poverty and Profit in the American City.  Finally, Gabriel Winant has an evocative review of No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity by Sarah Haley and Chained in Silence: Black Women and Convict Labor in the New South by Talitha L. LeFlouria.

H-Net has posted reviews of a few books we've previously announced: Mari N. Crabtree on Talitha LeFlouria's Chained in Silence: Black Women and Convict Labor in the New SouthEllen Pearson on Ted Maris-Wolf's Family BondsBrittany Gilmer on Emily Burrill's States of Marriage, and Amrita Shodhan on (LHB blogger) Mitra Sharafi's Law and Identity in Colonial South Asia.

This month's The Federal Lawyer includes a brief review of Susanna Blumenthal's Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture.  

The New Yorker has published a review essay of Mitchell Duneier's Ghetto: The Invention of a Place, the History of an Idea.

The New Books Network has a couple of interviews of possible interest.  One is with Sabine Arnaud and is about her new book On Hysteria: The Invention of a Medical Category between 1670 and 1820.  Adam Mendelsohn is also interviewed about his The Rag Race: How Jews Sewed Their Way to Success in America and the British Empire.

This week's Guardian includes a review of Eric Hobsbawm's Viva La Revolución.  Also in the Guardian is a review of Philippe Sand's East West Street: On the Origins of "Genocide" and "Crimes Against Humanity".  East West Street also received a review at The Irish Times.

In the Times Literary Supplement is a review of Pamela Haag's The Gunning of America: Business and the Making of American Gun Culture.

NPR interviews Linda Greenhouse about her and Michael Graetz's The Burger Court and the Rise of the Judicial Right. (The book also receives mention as a "nonfiction book not to be missed" over at the Los Angeles Times.)  NPR also interviews Nancy Isenberg on her White Trash: The 400-Year Untold History of Class in America 

The New Republic also engages with Nancy Isenberg's White Trash: The 400-Year Untold History of Class in America.

History News Network has a review of The Last Great Strike:  Little Steel, the CIO, and the Struggle for Labor Rights in New Deal America by Ahmed White.

And finally, in The New Rambler Review is a review of Adultery: Infidelity and the Law by law professor Deborah Rhode.

Saturday, July 9, 2016

Weekend Roundup

  •  Over at the World Legal History Blog, Nurfadzilah Yahaya shares highlights from the "Roundtable on How to Study Religion in Times of Crisis" at the National University of Singapore's Asia Research Institute on June 28, 2016. Anna Su (University of Toronto) spoke on law and religion, and particularly on America's export of religious freedom during the twentieth century. We announced her book, Exporting Freedom: Religious Liberty and American Power recently. 
  • ICYMI: At the Faculty Lounge, Al Brophy noted the publication of that symposium on Magna Carta at Carolina Law, now on-line in the North Carolina Law Review.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, July 8, 2016

Danner on "Case Lawyers"

Richard A. Danner, the Rufty Research Professor of Law and Senior Associate Dean for Information Services at the Duke University School of Law, has posted Cases and Case-Lawyers, which is forthcoming in volume 35 of the Legal Reference Services Quarterly.
In the nineteenth century, the term “case-lawyer” was used as a label for lawyers who seemed to care more about locating precedents applicable to their current cases than understanding the principles behind the reported case law. Criticisms of case-lawyers appeared in English journals in the late 1820s, then in the United States, usually from those who believed that every lawyer needed to know and understand the unchanging principles of the common law in order to resolve issues not found in the reported cases. After the Civil War, expressions of concern about case-lawyers increased with the significant growth in the amount of published law after private companies entered the legal publishing market. By the turn of the twentieth century, it was generally acknowledged that the number of cases had made it impossible for attorneys not to focus on locating precedents. Later in the century most references to case-lawyers were historical, even as the amount of published law facing lawyers continued to grow. Professor Danner examines legal periodicals and other sources to explore the connection between the growth in numbers of published cases and reporters, and hostility toward case-lawyers in the nineteenth and early twentieth centuries.

Global Perspectives on Legal History 4

[We have the following announcement.]

With Spatial and Temporal Dimensions for Legal History. Research Experiences and Itineraries, the Max Planck Institute for European Legal History presents the sixth volume in its book series “Global Perspectives on Legal History,” edited and published by the Max Planck Institute for European Legal History, Frankfurt am Main, Germany.  As its title suggests, the series is designed to advance the scholarly research of legal historians worldwide who seek to transcend the established boundaries of national legal scholarship that typically sets the focus on a single, dominant modus of normativity and law. The series aims to privilege studies dedicated to reconstructing the historical evolution of normativity from a global perspective.  It includes monographs, editions of sources, and collaborative works. All titles in the series are available both as premium print-on-demand and in the open-access format.  More information on the series and forthcoming volumes is [here].

Massimo Meccarelli, María Julia Solla Sastre (eds.)  Spatial and Temporal Dimensions for Legal History : Research Experiences and Itineraries, Global Perspectives on Legal History 6.  Frankfurt am Main: Max Planck Institute for European Legal History 2016. 300 p., € 14,99 D.  ISBN: 978-3-944773-05-6.  Open Access Online EditionPrint-on-demand.

The spatiotemporal conjunction is a fundamental aspect of the juridical reflection on the historicity of law. Despite the fact that it seems to represent an issue directly connected with the question of where legal history is heading today, it still has not been the object of a focused inquiry. Against this background, the book's proposal consists in rethinking key confluences related to this problem in order to provide coordinates for a collective understanding and dialogue.

The aim of this volume, however, is not to offer abstract methodological considerations, but rather to rely both on concrete studies, out of which a reflection on this conjunction emerges, as well as on the reconstruction of certain research lines featuring a spatiotemporal component.

This analytical approach makes a contribution by providing some suggestions for the employment of space and time as coordinates for legal history. Indeed, contrary to those historiographical attitudes reflecting a monistic conception of space and time (as well as a Eurocentric approach), the book emphasises the need for a delocalized global perspective. In general terms, the essays collected in this book intend to take into account the multiplicity of the spatiotemporal confines, the flexibility of those instruments that serve to create chronologies and scenarios, as well as certain processes of adaptation of law to different times and into different spaces.

The spatiotemporal dynamism enables historians not only to detect new perspectives and dimensions in foregone themes, but also to achieve new and compelling interpretations of legal history. As far as the relationship between space and law is concerned, the book analyses experiences in which space operates as a determining factor of law, e.g. in terms of a field of action for law. Moreover, it outlines the attempted scales of spatiality in order to develop legal historical research. With reference to the connection between time and law, the volume sketches the possibility of considering the factor of time, not just as a descriptive tool, but as an ascriptive moment (quasi an inner feature) of a legal problem, thus making it possible to appreciate the synchronic aspects of the ‘juridical experience'.

As a whole, the volume aims to present spatiotemporality as a challenge for legal history. Indeed, reassessing the value of the spatiotemporal coordinates for legal history implies thinking through both the thematic and methodological boundaries of the discipline.

Gunneflo, "Targeted Killing: A Legal and Political History"

New from Cambridge University Press: Targeted Killing: A Legal and Political History (May 2016), by
Looking beyond the events of the second intifada and 9/11, this book reveals how targeted killing is intimately embedded in both Israeli and US statecraft, and in the problematic relationship between sovereign authority and lawful violence underpinning the modern state system. It details the legal and political issues raised in targeted killing as it has emerged in practice, including questions of domestic constitutional authority, the use of force in international law, the law of belligerent occupation, the law of targeting and human rights law. The distinctive nature of Israeli and US targeted killing is analysed in terms of the compulsion of legality characteristic of the liberal constitutional state, a compulsion that demands the ability to distinguish between legal 'targeted killing' and extra-legal 'political assassination'. The effect is a highly legalized framework for the extraterritorial killing of designated terrorists that may significantly affect the international law of force.

Thursday, July 7, 2016

Su on the Export of Religious Liberty

Earlier this year, Anna Su, University of Toronto, published Exporting Freedom: Religious Liberty and American Power (Harvard University Press). From the publisher: 
Cover: Exporting Freedom in HARDCOVERReligious freedom is widely recognized today as a basic human right, guaranteed by nearly all national constitutions. Exporting Freedom charts the rise of religious freedom as an ideal firmly enshrined in international law and shows how America’s promotion of the cause of individuals worldwide to freely practice their faith advanced its ascent as a global power. 
Anna Su traces America’s exportation of religious freedom in various laws and policies enacted over the course of the twentieth century, in diverse locations and under a variety of historical circumstances. Influenced by growing religious tolerance at home and inspired by a belief in the United States’ obligation to protect the persecuted beyond its borders, American officials drafted constitutions as part of military occupations—in the Philippines after the Spanish–American War, in Japan following World War II, and in Iraq after 2003. They also spearheaded efforts to reform the international legal order by pursuing Wilsonian principles in the League of Nations, drafting the United Nations Charter, and signing the Helsinki Accords during the Cold War. The fruits of these labors are evident in the religious freedom provisions in international legal instruments, regional human rights conventions, and national constitutions. 
In examining the evolution of religious freedom from an expression of the civilizing impulse to the democratization of states and, finally, through the promotion of human rights, Su offers a new understanding of the significance of religion in international relations.

Some blurbs: 
Exporting Freedom makes a valuable and important contribution both to the scholarship and to a pressing, ongoing public conversation about the appropriate role of the United States in securing and protecting religious liberty abroad. The book usefully contextualizes the development of human-rights law and policy dealing with religious liberty and, in so doing, helps to refute—or at least to complicate—the view that American policymakers’ solicitude for religious liberty abroad is, and always has been, cynical or disingenuous.” -Richard W. Garnett 
Exporting Freedom draws attention to a significant but under-examined topic: religious liberty in U.S. foreign policy. This fascinating book will add to our understanding of both religion in international relations and the history of America in the world.”-Andrew Preston

We noted this book forum on Exporting Freedom earlier. Full information on the book is available here.