Weekend Roundup

• From the Washington Post's "Made by History" section: Adam Laats (Binghamton University (SUNY)), "Religious animus did not drive the laws the Supreme Court just overturned"; Carissa Harris (Temple University), "Women have been fighting for abortion rights for 500 years"; Lisa Levenstein (University of North Carolina, Greensboro), "With schools and daycare closed, the coronavirus is worsening women’s inequality"; and more. 

• Not only has Elizabeth Papp Kamali, “a scholar specializing in medieval legal history,” been tenured and promoted to professor of law at Harvard Law School, she’s been deputy deaned! (Harvard Law Today).

• From Keisha Blain (University of Pittsburgh), writing for Inside Higher Ed: tips for early career scholars on publishing journal articles.

• "Erasing History or Making History? Race, Racism, and the American Memorial Landscape," an American Historical Association Webinar, with David W. Blight and Annette Gordon-Reed, moderated by AHA Executive Director Jim Grossman.  (Facebook)

• ICYMI: Aderson Bellegarde François (Georgetown Law), on Robert Smalls and Woodrow Wilson (New Republic).  The renaming of US Coast Guard Cutter Taney (Fox Baltimore).  A nicely illustrated history of the ballot (Quartz).  Jack Rakove (Stanford University) on what TJ meant by "all men are created equal" (Stanford News)

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

Rosenblum on Hugo Black and Cause Lawyering

Noah A. Rosenblum, the incoming Samuel I. Golieb Fellow at NYU School of Law, has posted Power-Conscious Professional Responsibility: Justice Black’s Unpublished Dissent and a Lost Alternative Approach to the Ethics of Cause Lawyering, which is forthcoming in the Georgetown Journal of Legal Ethics:

Public interest impact litigation as currently practiced raises significant legal ethics concerns. This Article excavates the historical foundations of two of these difficulties and, on the basis of original archival research, uncovers a way around them.

Hugo Black, J. (LC)

The Article focuses on two modern ethical dilemmas posed by impact litigation: conflicts of interest and the use of litigation as an improper end run around legislative policy-making. It argues that, as a historical and doctrinal matter, these ethical problems trace back to Justice Brennan’s decision to set cause-lawyering on a putatively neutral First Amendment basis in NAACP v. Button. That rationale, however, was not the case’s original ratio decidendi. In fact, the egalitarian neutralism Brennan embraced had initially provided a reason for finding impact litigation improper. Only unusual circumstances transformed it into a foundation for cause-lawyering. Meanwhile, a suppressed, unpublished draft opinion would have grounded impact litigation in Equal Protection and Carolene Products-type considerations. This race- and power-conscious alternative, championed by Justice Black, provided a competing ethical foundation for public interest impact litigation that would have better addressed our contemporary legal ethics concerns.

This Article elucidates Justice Black’s argument for the first time. It reconstructs the complicated dynamics that led to the abandonment of his dissent and its transformation into Justice Brennan’s majority opinion. In telling this story, the Article denaturalizes the ethical regime that governs impact litigation today by showing how nearly it was radically different. The Article’s contributions are descriptive and normative. On the descriptive level, it offers a revised account of NAACP v. Button on the basis of new archival finds. Normatively, it seeks to champion Black’s race and power consciousness against Brennan’s neutralism, showing what Black’s approach might have to offer legal ethics today.

--Dan Ernst

Organizing Myself: Writing Process vs Bad Feelings (part 1 of 2)

One email, six excruciating months. “Dear Nate, We were excited to read the draft of your dissertation. What a great project! We’ve attached a copy with comments from both of us and look forward to seeing where it goes from here.” My co-advisors sent me that around July 2013. (Full transparency: this is a recreation on my part, I don’t remember the exact words and I am no longer able to locate that email. On the details my memory is foggy - an effect, I am sure, inflicted by the job market, multiple moves, having multiple young kids, and the demands of the job - but I recall the heart of the experience keenly.)

A Symposium on Schenck, Abrams, Frohwerk and Debs

We missed the symposium in the SMU Law Review 72:3 (2019) on the centennial of the US Supreme Court First Amendment decisions of 1919:

The Lessons of 1919
Bloom, Lackland H Jr

Born in Dissent: Free Speech and Gay Rights
Carpenter, Dale

Speech and Exercise by Private Individuals and Organizations
Greenawalt, Kent

The Clear and Present Dangers of the Clear and Present Danger Test: Schenck and Abrams Revisited
Krotoszynski, Ronald J Jr

Dissent in a Crowded Theater
Matsuda, Mari

"And the Truth Shall Make You Free": Schenck, Abrams, and a Hundred Years of History
Smolla, Rodney A

Deliberate Democracy, Truth, and Holmesian Social Darwinism
Tsesis, Alexander

Falsity and the First Amendment
White, G Edward

Originalist Reflections on Constitutional Freedom of Speech
Wolfe, Christopher

--Dan Ernst

Francis and Witt on the NAACP and the Garland Fund

Megan Ming Francis, University of Washington, and John Fabian Witt, Yale Law School, have posted Movement Capture or Movement Strategy? A Critical Race History Exchange on the Beginnings of Brown v. Board, which is forthcoming in the Yale Journal of Law and the Humanities:

Charles Garland, 1922 (wiki)

In 2019, Megan Ming Francis published a path-breaking article challenging the conventional wisdom in the field on a core piece of civil rights history: the role of a philanthropic foundation called the American Fund for Public Service, also known as the Garland Fund, in working alongside the NAACP to produce the organization’s famous litigation campaign leading to Brown v. Board of Education. In Francis’s provocative account, the predominantly white Garland Fund captured the agenda of the civil rights organization through its financial influence, shifting the organization’s central focus from racial violence toward education equality. In this exchange, Francis and legal historian John Fabian Witt debate exactly who captured whom in the relationship between the NAACP and the Garland Fund. Their exchange engages method and substance in the history of civil rights. Among other things, Witt contends that the NAACP’s leadership also subtly coopted the Garland Fund’s resources and turned them toward the civil rights organization’s preexisting agenda rather than vice versa.

The exchange proceeds with an opening statement by Francis, and reply by Witt, and a surreply by Francis, and a closing note from Witt.

--Dan Ernst

Holdren’s First Post -- My book and my plans for future posts

I want to thank the editors of the Legal History Blog for having me as a guest blogger. It’s an honor and I’m delighted to have my words on here. As Professor Tani mentioned in her introduction, I recently published a book and I want to tell you about it.

My book is called Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era. It's my first book and is based on my dissertation. I think of the book as a study in the intellectual life of governance - how power relationships are conceptualized, mostly by powerful people, and what concepts are implied within power relationships, whether or not anyone actually thought them explicitly. In my view, inquiry is enriched by emphasis on both of these facets, the actual thoughts of people and the implicit logics enacted within institutional practices. I’m aware that this all sounds pretty abstract. In addition to talking about abstract matters, I also tried to foreground the real human beings who died, suffered, and lived despite all the harms to which working-class people are subjected. In my view, that dying and suffering was (and still is) largely organized by the kinds of abstractions I talk about in the book.

BLHC Postponed to 2022

[We have, via the Irish Legal History Society and LPK, the following announcement of the postponement of the British Legal History Conference (BHLC) 2021.  DRE]

As a result of continuing uncertainty caused by the coronavirus pandemic, in particular in relation to international travel, the organisers of the British Legal History Conference 2021 have decided to postpone the conference to 6-9 July 2022.  This decision has been taken in consultation with the BLHC Continuation Committee.

The theme for BLHC 2022 is unchanged: Law and Constitutional Change and, as originally planned, the conference will be organised in association with the Irish Legal History Society.

A fresh call for papers will be made on 15 March 2021.  Registration will open in February 2022.  The conference website will shortly be updated.

To preserve the usual biennial pattern of BLHCs, arrangements will be made by the BLHC Continuation Committee for the conference following the Queen’s, Belfast event to be held in 2024.

Daly on Biafra

Coming out soon by Samuel Fury Childs Daly (Duke University) is A History of the Republic of Biafra: Law, Crime, and the Nigerian Civil War with Cambridge University Press. From the publisher: 

The Republic of Biafra lasted for less than three years, but the war over its secession would contort Nigeria for decades to come. Samuel Fury Childs Daly examines the history of the Nigerian Civil War and its aftermath from an uncommon vantage point – the courtroom. Wartime Biafra was glutted with firearms, wracked by famine, and administered by a government that buckled under the weight of the conflict. In these dangerous conditions, many people survived by engaging in fraud, extortion, and armed violence. When the fighting ended in 1970, these survival tactics endured, even though Biafra itself disappeared from the map. Based on research using an original archive of legal records and oral histories, Daly catalogues how people navigated conditions of extreme hardship on the war front, and shows how the conditions of the Nigerian Civil War paved the way for the country's long experience of crime that was to follow.

Table of Contents after the jump: 

Welcome, Nate Holdren!

We are delighted to welcome our July guest blogger: Nate Holdren, Assistant Professor of Law, Politics, and Society at Drake University.

Professor Holdren received his Ph.D. in History from the University of Minnesota in 2014, after which he held the Jerome Hall Postdoctoral Fellowship at Indiana University's Maurer School of Law.

At Drake, Professor Holdren has taught courses on a broad range of topics, including socio-legal perspectives on U.S. constitutionalism, law and employment, the role of law in the exclusion of social minorities, law and slavery, and, in his words, "markets in morally charged things."

His scholarly interests include legal history, critical theory, and the relationships between law, class, and capitalism -- all on display in his recently published book: Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge University Press, 2020). The book examines the creation and operation of workers’ compensation laws in the early twentieth-century U.S., with a particular focus on how these laws marginalized competing ways of understanding and compensating injury. The result was "new forms of inequality," in his words, and "new forms of inhumanity."

Stay tuned for his posts...

-- Karen Tani

Thank You, Diana Kim!

We here at LHB are grateful to Diana S. Kim, Georgetown University, for her very thoughtful guest posts this month growing out of her book Empires of Vice: The Rise of Opium Prohibition across Southeast Asia.  As you’ve seen, they mix her insights for other scholars interested in one or more of the topics her book addresses (e.g., her fourth post was for those “interested in theories of state building and symbolic bureaucratic power”) with the challenges of presenting one’s newly published book, at any time but also when the pandemic has curtailed face-to-face events.

Empires of Vice: A First Book with Multiple Audiences
Empires of Vice: For Those Interested in Opium and Archives
Empires of Vice: On Doing a Written Book Interview via Email
Empires of Vice: For Those Interested in the State
Empires of Vice: On Doing a Spoken Book Interview through Zoom, Podcasts
Empires of Vice: For Those Interested in Southeast Asia and Empire

Thank you, Professor Kim!

--Dan Ernst

Empire of Vice: For Those Interested in Southeast Asia and Empire

This is the sixth in a series of posts about my book, Empires of Vice.

In my first post, I mentioned that this is a book for multiple audiences--political scientists, historians, specialists of Asian Studies, and policy makers--in overlapping but different ways. In this final post, I dwell on how legacies of European imperial rule have shaped Southeast Asia's drug problems today; and why understanding this history matters for policy makers. 

It is tempting to believe that today’s international drug control regimes originated from a triumphant moral crusade. Our usual story is that the world came to better understand the harms of opiate addiction and states cooperated to protect humanity from a dangerous drug. Yet, this prevailing history tells an incomplete story. It explains why global norms against drugs shifted, but not how states actually came to change their moral behavior. Empires of Vice reveals a darker history of opium prohibition linked to European imperialism in Southeast Asia. It also elucidates the crucial role of bureaucracies in changing state behavior by designing feasible reforms.

Popular depiction of the Second Opium War
Le Charivari 1859,  by Honoré-Victorin Daumier
(Source: http://bir.brandeis.edu/handle/10192/3540)

European empires in Asia profited enormously from opium during the 19th century. The drug was was both a major trade commodity between India and China, and one of the largest sources of colonial tax revenue in Southeast Asia. What we recognize today as the “right” approach of limiting opium’s legitimate use to medical purposes only became an international consensus during the early 20^th century. A powerful moral crusade—an organized movement among religiously-inspired social reformers and transnational activists who framed opium harms as serious moral problems—successfully lobbied the British to end the India-China opium trade. The 1907 Anglo-Chinese Opium Agreement brought India’s opium exports to China to a halt in 1913, and marked a turning point for the birth of today’s multilateral drug control treaties.

However, prohibiting opium in 20th century Southeast Asia proved a much more difficult task. The drug had long served as a building block sustaining European colonial states and economies—from capturing the wage labor of plantation workers in Dutch Indonesia to building railroads and canals in French Vietnam. Also, large swaths of colonized populations were accustomed to consuming opium legally under European rule, and opium taxes remained a non-negligible source of revenue.   

In effect, European colonial states in Southeast Asia were addicted heavily to opium. And their process of withdrawal would prove slow. Global norm changes and international drug control treaties did not provide viable ways for colonial states to dismantle existing fiscal structures, replace revenue, and manage potential social unrest from banning opium. Actual changes in state behavior required nitty-gritty, pragmatic solutions. Colonial administrators on the ground developed workable approaches to prohibiting opium by constructing official problems, as I explained in an earlier post. Instead of reacting to moralizing voices afar or abstract concerns with international reputation, these actors focused on local crises resulting from opium related crime, finance, and smuggling. Completely eradicating the drug required overhauling the state itself and risked popular backlash. Local administrators did not make such radical changes, but instead, developed smaller, less visible, and  incremental anti-opium reforms.

When European imperialism came to an end after World War Two, the prohibition of opium for Southeast Asia was still incomplete. Across the region, newly independent states inherited and continued to struggle to solve problems that colonial states had unleashed. If legalization had once fostered popular drug use, expanded sales and distribution networks, and generated large sums of government revenue, then prohibition drove such practices underground, fostering secretive and stigmatized consumption, and incentivizing illicit poppy cultivation. Put simply, the very same empires that once profited from opium tried later to ban it, a policy reversal—from legalization to prohibition—that was both imperfect and incomplete. 

Currently, 9 out of 10 ASEAN member states impose the death penalty for non-violent drug crimes, accounting for nearly a third of the world's countries that retain capital punishment. Major 21^st century “drug wars”—including in Thailand (2003), the Philippines (2016-), Indonesia (2017-)—have killed hundreds of thousands of people and violate the human rights of more. And Southeast Asia hosts the “Golden Triangle” region, the world’s second largest illicit poppy cultivation area. Southeast Asia’s vexed landscape as such is no accident. The region’s illicit drug economies and punitive states represent the stubborn legacies of opium-entangled European imperialism since the 19^th century.

What are practical lessons to be drawn from Southeast Asia's past? For one, it helps explain why zero-tolerance approaches to drug control will not work. Most countries with drug problems today have complex histories of state building tied to drug revenue and imperialism. Such legacies cannot be totally eradicated. Second, for policy makers interested in solving transnational problems, Empires of Vice sheds light on why great moral transformations in state behavior happen slowly and incrementally: not only because knowledge and norms about what defines “good” in the world change slowly, but also because pragmatic approaches for acting according to new moral standards are difficult to design. I elaborate on these and additional policy implications in this short essay for The Ambassador’s Brief. 

It has been a pleasure and honor to contribute to the Legal History Blog, as a guest blogger for the month of June 2020. And I look forward to continuing as an avid reader and audience for future contributions.

-Diana Kim

Padilla-Rodriguez and Ghosh Named Preyer Scholars

Congratulations to Ivon Padilla-Rodriguez, Columbia University, and former LHB Associate Blogger Smita Ghosh, University of Pennsylvania, who is currently a Research Fellow at Georgetown University Law Center, on being named Kathryn T. Preyer Scholars by the American Society for Legal History for 2020!

--Dan Ernst

Posner's "Demagogue's Playbook"

Out tomorrow from Macmillan is The Demagogue's Playbook: The Battle for American Democracy from the Founders to Trump, by Eric A. Posner, University of Chicago Law School:

What—and who—is a demagogue? How did America’s Founders envision the presidency? What should a constitutional democracy look like—and how can it be fixed when it appears to be broken?

Something is definitely wrong with Donald Trump’s presidency, but what exactly? The extraordinary negative reaction to Trump’s election—by conservative intellectuals, liberals, Democrats, and global leaders alike—goes beyond ordinary partisan and policy disagreements. It reflects genuine fear about the vitality of our constitutional system. The Founders, reaching back to classical precedents, feared that their experiment in mass self-government could produce a demagogue: a charismatic ruler who would gain and hold on to power by manipulating the public rather than by advancing the public good.

President Trump, who has played to the mob and attacked institutions from the judiciary to the press, appears to embody these ideas. How can we move past his rhetoric and maintain faith in our great nation?

In The Demagogue’s Playbook, acclaimed legal scholar Eric A. Posner offers a blueprint for how America can prevent the rise of another demagogue and protect the features of a democracy that help it thrive—and restore national greatness, for one and all.

Jack Goldsmith interviews Posner about the book on the Lawfare podcast.  Also, this.

–Dan Ernst

University Assistantship at Vienna

[We have the following announcement.  DRE.]

The University of Vienna (20 faculties and centres, 178 fields of study, approx. 9.800 members of staff, about 90.000 students) seeks to fill the position from 01.10.2020 of a University Assistant (post doc) at the Department of Legal and Constitutional History to 30.09.2026.  (Reference number: 10943.)

The Institute for Legal and Constitutional History conducts research and teaches on all parts of European legal history, with a focus on Austria. A post-doc position, limited to 6 years is announced herewith. It is desirable that the applicant writes a habilitation thesis on legal history within this time. Therefore, relevant previous experience and publications should already be available and be presented when applying. The habilitation project should be presented in a short synopsis.

Duration of employment: 6 year/s.  Extent of Employment: 40 hours/week.  Job grading in accordance with collective bargaining agreement: §48 VwGr. B1 lit. b (postdoc) with relevant work experience determining the assignment to a particular salary grade.

Job Description: Active participation in research, teaching and administration. This involves - Developing and strengthening the independent research profile - Involvement in research projects / research studies - International publications and presentations - Responsibility for project applications and the acquisition of third-party funding - Preparing / writing a (publication-ready) habilitation thesis - Independent teaching of courses as defined by the collective agreement - Supervision of students - Participation in evaluation measures and quality assurance - Involvement in the department administration as well as in teaching and research administration.  [More]

Weekend Roundup

Thomas Ruffin, 1859 (LC)

• From 2018, Eric L. Muller, UNC School of Law, and Sally Greene, on the portrait of Thomas Ruffin at the North Carolina Supreme Court, from the Raleigh News & Observer (text and video).

• ICYMI:  Frank Snowden and Nancy Bristow on how pandemic shape history (PBS NewsHour).  Stephanie McCurry on the antidemocratic Confederacy (The Atlantic). George Nash reviews Bernard Bailyn's Illuminating History (Law and Liberty). The Southern Poverty Law Center on the Tulsa Massacre of 1921.

• Update: Laurence Tribe reflects on his life and career.  (Harvard Gazette)

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

Early Career Cromwell Research Fellowships: Deadline Extended!

[We're moving this up, because the deadline has been extended to July 15.  DRE]

We have the following announcement:

Call for Applications for Early Career Cromwell Research Fellowships

The William Nelson Cromwell Foundation will make available a number of $5,000 fellowship awards to support research and writing in American legal history by early-career scholars. Early career generally includes those researching or writing a PhD dissertation (or equivalent project) and recent recipients of a graduate degree working on their first major monograph or research project. The Committee for Research Fellowships and Awards of the American Society for Legal History reviews the applications and makes recommendations to the Foundation. Applications are due by July [15], 2020.

Complete guidelines and instructions regarding how to apply for such fellowships are located on the website of the American Society of Legal History [here].

-- Karen Tani

Empires of Vice: On Doing a Spoken Book Interview through Zoom, Podcasts

This is the fifth in a series of posts about my book, Empires of Vice. 

In my previous post, I discussed how understanding the inner workings of opium-entangled colonial bureaucracies in 19^th and 20^th century Southeast Asia can shed broader light on the nature of the modern state, its construction of symbolic power and strategies of self-legitimation. In this post, I’ll reflect on conveying this particular argument through a zoom interview and podcast, along with links to a few exemplary interviews by recent first book authors.

There is one consistent, simple, and very helpful reminder I’ve received from experienced colleagues and friends regarding how to literally speak about a book argument during an interview: “Try not to include everything.” Or put differently: “Figure out what to leave out.” It may seem like we need to simplify the complex and nuanced arguments of our books—because interviews are short in time, and the audience is general. This is not necessarily true. Nuances can be conveyed; just not all of them. Complex ideas and abstract concepts can be explained; but sparingly. Being selective is more important than simplifying.

Of course, this is more easily said than done. During this interview with The Asia Chessboard (a podcast for the thinktank Center for Strategic and International Studies (CSIS), which was done over Zoom, I had 10 index cards sprawled artfully over my desk (including 2 taped onto my laptop screen), which I had planned to glance at surreptitiously during the call. Each card contained 3-4 bullet points, in response to a list of questions that the CSIS team had emailed me in advance. Before the interview, I felt happily prepared that I would not forget anything. Afterwards, I had indeed not forgotten anything. However to my dismay, of the 40 bullet points I prepared, I had covered fewer than 10, which included a minor anecdote and commentary on what others had written on opium, but not much about my own work.

Ten days later, I had another spoken and transcribed interview with the Asia Expert Forum, with the International Journalism lab at Claremont McKenna College. I couldn’t quite bring myself to do away with index cards altogether. But I limited myself to 1 card, and tried to select just 3 things I would want someone to remember from my book. One of which was about the inner anxieties of the powerful, shown by how surprisingly complicated it was for colonial states to profit from the vices of the colonized. After this interview, there was a sense of relief that I had at least been able to speak about this one important theme, a small but essential part of the larger argument that I spent so much time crafting in my book and felt passionate about. And I came away with a excitement about future opportunities to talk about what I hadn’t been able to include, not least the stuff that remains on my other 9 index cards…

Reflecting briefly on three practical lessons I would take away for next time are: first, for a pre-recorded podcast, to not be shy about asking to “do over” sentences (as it can be edited out of the audio easily. My CSIS interview was around 50 minutes in total, but edited down to 30 minutes). Second, to be polite but not apologetic about asking to review and edit the recording and transcript before it goes online. Third, to feel comfortable interrupting the interviewer and not feel bad about being interrupted in turn. 

One learns from the examples of others. Here are just a few recent interviews and podcasts on new (or forthcoming) books that I’ve found inspiring and helpful thinking about the state and colonialism.

·      Rohit De on A People’s Constitution: The Everyday Life of Law in the Indian Republic, for a podcast with Center for the Advanced Study of India.

·      Adom Getachew, speaking on Worldmaking after Empire: The Rise and Fall of Self-Determination for the Political Theory Other Podcast.

·     Arunabh Ghosh on the States of Anarchy Podcast on The Stories Behind the Numbers. His new book is Making it Count: Statistics and Statecraft in the Early People’s Republic of China.

·      Daniel Mattingly on The Art of Political Control in China for the New Books Network

·      Ken Ochieng’ Opalo on Legislative Development in Africa: Politics and Postcolonial Legacies for the Ufahamu Africa Podcast

·      Rachel Potter on Bending the Rules: Procedural Politicking in the Bureaucracy for the New Books Network

·      And just out today! Nurfadzilah Yahaya, speaking on The More Better Podcast on Learning Malay History. Her book, Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia comes out in September 2020.

-Diana Kim

Avi-Yonah on Antitrust and the Corporate Taxation, 1909-1928

Reuven S. Avi-Yonah, University of Michigan Law School, has posted Antitrust and the Corporate Tax, 1909–1928:

Lincoln Steffens (NYPL)

Between the Sherman Antitrust Act of 1890 and the Clayton Antitrust Act of 1914, the question of what to do about “trusts” dominated American political life. Before 1889, the dominant form of amalgamating competing businesses was the trust, because corporations could not hold shares in other corporations, and instead the shareholders would exchange their shares for trust certificates. But in 1889 New Jersey (the “traitor state”, according to muckraking journalist Lincoln Steffens) changed its corporate law to allow for holding company structures, setting of a great wave of amalgamations in areas like oil, tobacco, sugar and steel.

This paper will focus on one attempt to address the “trust problem” by means other than the Sherman Act (which faced some resistance in the courts, as the government lost the E.C. Knight case in the Supreme Court in 1895 and barely won the Northern Securities case in 1905). This was the corporate tax act of 1909, which as will be seen below, was primarily intended as an antitrust measure. However, after the enactment of the Clayton Act and the creation of the FTC in 1914, the corporate tax was less needed as an antitrust measure, and between 1919 and 1928 its antitrust features were largely eliminated.

–Dan Ernst

Post on Taft's Incomparable Chief Justiceship

Robert Post, Yale Law School, whom you should not confuse with this fellow, has posted The Incomparable Chief Justiceship of William Howard Taft, which is to appear, as its "2019 Visionary Article in Constitutional Law," in the Michigan State Law Review 2020: 1-178:

William Howard Taft was Chief Justice of the Supreme Court of the United States from 1921 through 1930. This paper, excerpted from the forthcoming Volume X of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, chronicles and evaluates the incomparable contributions of Taft during the period. The paper is forthcoming in the Michigan State Law Review.

William Howard Taft, CJ (LC)

Taft played three roles on the Court during the 1920s. He was a Justice, a Chief Justice, and a prodigious judicial reformer. The paper evaluates his performance in Taft’s contributions to each of these roles, which Taft occupied with exceptional vigor and competence. The paper gives special attention to Taft’s creation of a new Supreme Court building; to Taft’s influence on the selection of lower court federal judges; to Taft’s establishment of the Judicial Conference of Senior Circuit Judges, which fundamentally altered the structure of the federal judiciary; and to Taft’s inspired advocacy for the Act of February 13, 1925, which reconfigured the Supreme Court from a simple tribunal of last resort into a manager of the system of federal law.

As a former President, Taft imagined the Chief Justice as the supervisor of the Judicial Branch, in much the same way as the President was the supervisor of the Executive Branch. In so doing, Taft profoundly altered the office of the Chief Justice. The paper discusses the tensions implicit in Taft’s efforts to import into the American constitutional order an office approximating an English Lord Chancellor, responsible for the administration of justice.

–Dan Ernst

CFP: ANZLHS 2020 (Revised)

 [We are moving up this call for papers, which has just been revised--see italicize words--in light of recent quarantine breaches in New Zealand that the organizers fear have significantly lessened the likelihood of a face-to-face conference in Auckland in December. DRE]

“One Empire, Many Colonies, Similar or Different Histories?”

39th Annual Conference of the Australian and New Zealand Law and History Society, Auckland, 9th-12th December 2020

Abstracts are invited from scholars bringing historical perspective on law who wish to gather at The University of Auckland and AUT University - there to listen to and discuss papers and panels on aspects of law in history.  Well, that was the original plan, but since the impact of COVID-19, travel restrictions and university funding deficits, we now also seek expressions of interest from those who may wish to present a paper to a dual format conference or virtual-only conference if either possibility turns out to be feasible.

The 2020 theme invites a comparative lens on British imperial and colonial histories. Other papers with an historical perspective on law might include work that positions law in a specific temporal frame; deals with histories of law, lawmaking, and legal ideas; or has a focus on legal institutions and their personnel. Proposals from postgraduate and early career researchers are welcome.

Individual paper proposals for a 20 minute presentation must include an abstract (no more than 300 words) and a biographical statement (no more than 100 words).  Panel proposals by 3 or 4 speakers should include the above, plus a panel title and brief rationale for the panel as a whole (no more than 300 words).  All abstracts must be submitted to Karen Fairweather: k.fairweather@auckland.ac.nz by 31 July 2020.

The Organising Committee intends to notify all those whose abstracts have been accepted for the programme by the end of August 2020. All presenters must be current financial members of the Australian and New Zealand Law and History Society, or must pay a subscription for the 2020 year.

Graduate students are invited to apply for Kercher Scholarships to assist them in attending the conference. Please apply to Katherine Sanders: k.sanders@auckland.ac.nz by 31 August. Graduate attendees may also wish to enter for the Forbes Society Prize.

The Society's peer-reviewed journal law&history will consider submissions from those who present papers at the conference. A conference website with information on registration costs, accommodation options, etc will be established in due course. Our keynote speakers will include Dame Sian Elias (Retired NZ Chief Justice), Joshua Getzler (Oxford) and Miranda Johnson (Sydney, but soon to be at Otago).

Further information about the conference may be gleaned from David Williams: dv.williams@auckland.ac.nz or from [here].

Teaching Legal History Online

I imagine that many of you, like me, are devoting part of the summer to reconfiguring a legal history course for online--and not merely remote--instruction.  If so, in addition to whatever guidance your home institution is providing, consider consulting the American Historical Association’s recent initiative, funded by the National Endowment for the Humanities, “Confronting a Pandemic: Historians and COVID-19,” which includes the AHA Online Teaching Forum, and a Remote Teaching Wiki.  Among the resources is a link to Steven Minz’s twenty-two minute video, Engaging Students Online.  I’ve also been learning from some of the webinars conducted by teachers of business-school cases hosted by Harvard Business Publishing, as well as its audio series, Online Teaching Survival Guide.

The American Society for Legal History has created a Google Group Discussion, originally (as its title, Legal History Records Discussion Group, suggests) to promote exchange about digitized legal history sources but subsequently widened to include discussion of online teaching.  The recently updated Legal History on the Web, hosted by Duke University, includes a portal to Primary Source Databases/Web Archives, but I do not know of a legal-history-specific wiki, where we might make available to each other, say, short lectures to use as asynchronous components in our courses.  (John Fabian Witt’s short lectures on the legal history of contagious disease in the United States would be an example.)  We cannot maintain such a wiki on Legal History Blog, but we do encourage interested legal historians to join the ASLH discussion group–especially if they are already members or promptly join ASLH–and I’ll monitor comments to this post to gauge interest.

Update: @RachelGurvich is way ahead of me. H/t: LPK

--Dan Ernst

Williams on the post-colonial lawyer in India

Alexander Williams (JD-PhD candidate, Yale University) has published "Imagining the Post-colonial Lawyer: Legal Elites and the Indian Nation-State, 1947-1967" in Asian Journal of Comparative Law (2020), 1-31. Here's the abstract: 

A key feature of British rule in India was the formation of a class of elite metropolitan lawyers who had an outsized role within the legal profession and a prominent position in Indian politics. This paper analyzes the response of these legal elites to the shifting social and political terrain of post-colonial India, arguing that the advent of the Indian nation-state shaped the discursive strategies of elite lawyers in two crucial ways. First, in response to the slipping grasp of lawyers on Indian political life and increasing competition from developmentalist economics, the elite bar turned their attention towards the consolidation of a national professional identity, imagining an ‘Indian advocate’ as such, whose loyalty would ultimately lie with the nation-state. Second, the creation of the Supreme Court of India, the enactment of the Constitution of India, and the continuous swelling of the post-colonial regulatory welfare state partially reoriented the legal elite towards public law, particularly towards the burgeoning field of administrative law.

Further information is available here.

--posted by Mitra Sharafi 

Empires of Vice: For Those Interested in the State

This is the fourth in a series of posts about my book, Empires of Vice. 

In an earlier post, I mentioned that a key argument in Empires of Vice is that the rise of opium prohibition across Southeast Asia under European rule was shaped by local administrators who constructed official problems. In this post, I seek to elaborate on what I mean by constructing official problems; and why it matters for those interested in theories of state building and symbolic bureaucratic power.

Contrary to presumptions that opium was an “easy” fiscal base for revenue-hungry 19^th and 20th century colonial states, my book stresses how difficult it was for the British and French alike to sustain states built on opium revenue collected from excise taxes, largely due to the ambiguity of vice as a regulatory category.

Think of a sort of original sin. During initial moments of territorial conquest in Southeast Asia, European powers began using taxation to regulate opium consumption as a peculiar vice among the colonized, but without clear conceptions about what exactly defined a colonial vice, why it was a fiscal object, let alone what justified the involvement of a foreign state. Yet, administrators on the ground began collecting revenue, regulating people’s behavior, and announcing the legitimacy of the state’s actions. If states usually puzzle before they power—first figuring out who and what they govern; and then trying to mold society into their interpreted reality— the reverse happened for colonial states built on opium. They powered before puzzling. This sort of overreach—of felt sentiments over careful knowledge—became an enduring source of tension that subsequent administrators would struggle to manage.

At first, there were minor issues, annoyances of bureaucratic tasks that came with paperwork, with poor labels or classification templates that didn’t fit reality, counting errors, adjusting policies at the margins and dealing with small unintended consequences. For instance, the British in Burma used a template borrowed from Bengal that used religion to categorize opium consumers, which placed 90% of the population, the Buddhist majority, in a single box, until excise administrators adjusted the uninformative template to separately label Burmese, Chinese, Indian and others. Such was the stuff of everyday opium administration, which accumulated and had large effects over time. Administrators came to see some issues as more troubling than others, and gave official reality to perceived problems through their record keeping. Deep in the underbelly of bureaucracies, a recursive process of defining and solving problems repeated and escalated slowly into shared understandings of large threats relating to opium that were politically actionable. The construction of official problems as such, generated the conditions of possibility for anti-opium reforms, by internally eroding the confidence of those most intimately involved in running the state.

What do such inner workings of Southeast Asia’s opium-entangled colonial states reveal more generally? First, looking beyond the modern state's classic Weberian guise, social scientists are able to see it as a problem-defining and solving entity. We become more attune to when and how states are riddled by inner anxieties, rather than presume the constant hubris and arrogance of monopolizing power. Second, as Charles Tilly famously argued, states often resemble protection rackets, namely, a scheme to produce both danger and at a price, the shield against it. Empires of Vice identifies an administrative mechanism—the construction of official problems—through which states arrogate authority to themselves by defining dangers and threats that justify protection.

In my next post, I’ll share my experience speaking about these aspects of my book’s argument through a transcribed interview with the Asia Experts Forum and a podcast with the Center for Strategic and International Studies.

-Diana Kim

Katz on the Campaign for Woman Officeholding in Ohio

Elizabeth D. Katz, Washington University in St. Louis School of Law, has posted "A Woman Stumps Her State": Nellie G. Robinson and Women's Right to Hold Public Office in Ohio, which appeared in a symposium issue on the Nineteenth Amendment in the Akron Law Review:

In recognition of the centennial of the Nineteenth Amendment, this essay provides an introduction to a largely overlooked yet essential component of the women’s movement: the pursuit of women’s legal right to hold public office. From the mid-nineteenth century through ratification of the federal suffrage amendment in 1920, women demanded access to appointed and elected positions, ranging from notary public to mayor. Because the legal right to hold office had literal and symbolic connections to the right to vote, suffragists and antisuffragists were deeply invested in the outcome. Courts and legislatures varied in their responses, with those in the Midwest and West generally more willing than those in the Northeast and South to construe or create law permitting women to hold office. This account centers on the experiences of Nellie G. Robinson, a pioneering woman lawyer whose efforts to secure public office in Ohio received nationwide attention in the years surrounding the turn of the twentieth century. To contextualize Robinson’s successes and failures, the essay expands to consider the parallel efforts of other women lawyers from the period, as well as the broader history of women’s officeholding in Ohio—a state with laws and politics reflecting the major trends and tensions in the national women’s officeholding movement.

This essay was written for a symposium issue of the Akron Law Review, organized with the Center for Constitutional Law. The topic for the conference and symposium was "The 19th Amendment at 100: From the Vote to Gender Equality."

--Dan Ernst

Schiller on Milov, "The Cigarette"

The latest post in JOTWELL's Legal History Section comes from Reuel Schiller (UC Hastings Law), who has written an admiring review of Sarah Milov's The Cigarette: A Political History (Harvard University Press, 2019). Here's an excerpt from the review:

Until the early 1980s, my high school had a smoking lounge. It was a medium-sized room off the lobby with some beat-up furniture where students could hang out, smoking their Marlboros and their clove cigarettes. There was even a king and queen of the smoking lounge, pictured in the yearbook alongside the prom’s royal court.

Today such an accommodation of smoking is unimaginable. Indeed, in most states, it would be illegal. In the past forty years, the United States transformed from a society where the cigarette represented a combination of sophistication and rebellion to one in which smokers are benighted addicts, suffering for their own moral failures. Sarah Milov’s breathtaking The Cigarette: A Political History explains how this happened. In telling this story, her narrative weaves together legal, political, and economic history in a manner that calls for a revaluation of the dimensions of twentieth-century liberalism and the nature of its decline. The book is a compelling exercise in historical synecdoche: its subject is the political history of the cigarette, but its story is that of the twentieth-century American state.

And one other choice bit:

Frankly, one could teach a course on twentieth-century legal history using this book as a textbook. It speaks to a broad range of subjects central to the interests of legal historians: the role of law in constituting capitalism; the interaction of law, gender, and race in the construction of social movements; the simultaneously emancipatory and constraining potential of framing policy preferences as rights; the profound role of the administrative state in structuring politics and policy; the rise of public interest litigation; the importance of understanding the legal history of agriculture, a field sorely neglected by legal historians.

Read on here.

-- Karen Tani

Weekend Roundup

• ASLH Secretary Anne Twitty on her recent discovery concerning  Old Miss’s Monument to White Supremacy, in The Atlantic. 

• The New York Times observed Juneteenth with this piece by Martha Jones (Johns Hopkins): "Ida, Maya, Rosa, Harriet: The Power in Our Names."

• Members of the Organization of American Historians can view online presentations of the papers and panels scheduled for its canceled annual meeting, including Brent Cebul, University of Pennsylvania, on the business appropriation of the language of community development (in the panel Leveraging Poverty: New Cities, New Partnerships, and the Progressive Abandonment of Urban Poverty in the 1980s and 1990s) and Unjust and Unequal: Death Investigations into Homicides in St. Louis, Missouri, 1875 to 1885, by Sarah Lirley McCune, Columbia College.

• The National History Center hosts a virtual congressional briefing on the history of vaccination usage and policy on Monday, June 22 at 11 a.m.  More.

• Searching for the real Nat Turner, but finding his ghost: a review of Christopher Tomlins’s In the Matter of Nat Turner: A Speculative History, in the Pittsburgh Post-Gazette.

  

  Eleanor of Brittany (wiki)

• Gwen Seabourne, University of Bristol Law School, has posted Eleanor of Brittany and her Treatment by King John and Henry III, which she describes simply as a “study of the treatment of Eleanor of Brittany by successive kings of England.”  It will appear in Nottingham Medieval Studies.

• Is it just me, or does anyone else think more reporters should be referencing Al Brophy's Reconstructing the Dreamland?  DRE

• ICYMI: Annette Gordon-Reed on Growing Up with Juneteenth (New Yorker) and on the removal of Confederate statues (Harvard Gazette).  What Thurgood Marshall taught Cass Sunstein about police accountability (Star Tribune). Is 15 June 1215 the true date of Magna Carta? (BBC History).

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

News from NARA

[We are grateful to Mitch Fraas for forwarding this letter from David Ferriero, Archivist of the United States.  DRE]

National Archives, 1939 (LC)

Dear Researchers:

It seems like so long ago since we last saw you in our research rooms.

We miss seeing you and helping you with your research. The National Archives is committed to the health and safety of our staff, volunteers and the public. With the closure of our facilities, we have adjusted our operations to balance the need to conduct our mission-critical work while also adhering to safety guidelines from the federal government. National Archives staff has continued to serve the public by responding to as many inquiries as possible while working remotely. Many of our services are available online:

• The National Archives Catalog contains archival descriptions of our holdings and is the online portal to our digital records.

• National Archives staff is responding to reference questions or requests for records sent to inquire@nara.gov and to specific units’ email addresses.

• Researchers can ask—or answer—research questions on History Hub, a crowdsourced history research platform sponsored by the National Archives. Researchers can also search History Hub to see if a question has already been asked and answered.

• Members of the public can explore our online resources by visiting http://www.archives.gov and viewing our online exhibits. • Teachers and parents can use our educational resources. • Everyone can help the whole community by volunteering in our Citizen Archivist Missions.

• The National Archives’ Presidential Libraries and Museums web site includes online education resources, virtual programs and exhibits, and information on conducting remote research at the 14 Libraries. We have also been using this time to undertake projects that will have long-term benefits for public access. 2 National Archives staff has been working remotely to create and update finding aid data to enhance your research. Since March 16, we have added 234,139 archival descriptions and 6,477,642 digitized pages to the National Archives Catalog. Staff has also been tagging and transcribing records in the Catalog. Transcribing records, especially hand-written documents, makes these records easier to find.

Since March, the number of available tags and transcriptions in the Catalog has tripled. The Catalog now provides over 115 million digital copies of our holdings and we continue to add more every day. Sign up for our Catalog Newsletter to find out about new additions to the Catalog and projects that you can do with us. Check out our popular Record Group Explorer, a finding aid that provides visualizations of the data in our Catalog and provides simple paths into the records. The work we are currently doing better positions us to make access happen while at the same time helping to keep you and our staff safe. Nevertheless, we understand that our remote services are not a substitute for being physically in the research room. We know you are anxious to return, and we are too.

At this point, we cannot tell you when that will be possible. We are working diligently on our plans for the gradual reopening of our facilities across the country, in consultation with our colleagues at the Library of Congress and the Smithsonian. The reopening plans will be based on guidance from the Centers for Disease Control and Prevention, the Office of Personnel Management, and the Office of Management and Budget, as well as information from subject matter experts from within and outside of the federal government. The reopening of each research room will occur based on our assessment of local conditions against a set of established criteria.

We are also looking at how we can promote the safety, health, and well-being of our staff, volunteers, and the public when we do reopen our facilities for research. This will mean changes to promote social distancing, changes to cleaning procedures for shared spaces and equipment, and some process changes. We will communicate with you about these changes as we get closer to reopening. After we reopen, we will provide opportunities for you to engage with us as we work to improve the researcher experience while also keeping everyone safe. Thank you for your patience as we carry out our mission during this unprecedented time. We send our best wishes for your good health and wellbeing, and we look forward to the day when we can welcome you back to our facilities.

Sincerely, David S. Ferriero

Archivist of the United States

[Also: NARA find the "Juneteenth" order.   WaPo.]

Talking Legal History: Chase's "We Are Not Slaves"

A new episode of Talking Legal History, a podcast hosted by Siobhan M. M. Barco, is now up on the website of the American Society of Legal History.

In this episode, Siobhan talks with Robert Chase about his book, We Are Not Slaves: State Violence, Coerced Labor, and Prisoners’ Rights in Postwar America (University of North Carolina Press, 2020). Chase is Associate Professor of History at Stony Brook University.

In We Are Not Slaves, Chase draws from three decades of legal documents compiled by prisoners to narrate the struggle to change prison from within. Told from the vantage point of the prisoners themselves, this book weaves together untold but devastatingly important truths from the histories of labor, civil rights, and politics in the United States as it narrates the transition from prison plantations of the past to the mass incarceration of today.

This episode is part of a series featuring legal history works from UNC Press. Support for the production of this series was provided by the Versatile Humanists at Duke program.

--Dan Ernst

Empires of Vice: On Doing a Written Book Interview via Email

This is the third in a series of posts about my book, Empires of Vice.  

My previous post dwelled on the archives that informed my understanding of how local colonial administrators shaped the rise of opium prohibition across Southeast Asia between the 1890s and 1940s. In this post, I’d like to share my experience talking about archives and method in an interview for The Docket (March 2020).

This was a fully written interview. Via email, I received five very thoughtful questions that were written in a conversational tone from the team at the Docket. Within two weeks, I sent back my 2,700 word response in a word document. In less than 48 hours, I received a url for a “stub” webpage—a draft of the online layout of the text and illustrating images—with an opportunity to correct any typos and suggest changes.

Perhaps it is a truism to say that good questions make answering them easier. The Docket team made it additionally fun; first, by giving me an opportunity to talk about my book cover. Mine is an image of poppy overlaid on an opium ledger from French Indochina, which I had encountered at the Archives nationales d’outre mer in Aix-en-Provence and puzzled a lot over. The ledger was orderly, with neat headings for both territory-specific and aggregated numbers—for opium revenue, total opium consumption, and per capital consumption—from 1899, when the French first introduced a colony-wide opium monopoly, to 1908. By explaining the ledger itself, I found it possible to speak more concretely about how and why I came to focus on local administrators. The ledger was, in effect, a partial and “cooked” version of French Indochina’s state-opium market relationships, and much of my archival research involved excavating backstories of who produced the numbers, headings, and categories; how and why they chose to include and omit certain information. Thanks to the “in” of the book cover, I was able to elaborate on how I followed paper trails of local administrators, which revealed fictitious opium sales numbers in the 1910s, hidden emergency funds for buying opium from India and China in the 1920s, and debt crises and odd situations of excess opium left rotting in the basement of the Bank of Indochina in the 1930s.  

A second very helpful question allowed me to talk about sources and method by citing my own text. I was asked: “[Y]ou include this beautiful quote from the novelist and scholar Amitav Ghosh that when consumed opium was “at once bountiful and all devouring, merciful and destructive, sustaining and vengeful”…You also give us some pretty funny, colorful language from local critics such as “Simple Simon” (147). This contrasts, of course, with the cold, technical language of imperial administrators. How much of a challenge was it to have to bridge these linguistic worlds as you assembled this narrative?” What made this sort of question especially welcome was how it helped anchor my answer about approaching a colonial bureaucracy from the inside out in specific examples. I enjoyed elaborating on the tension between the language of observers like “Simple Simon” in Singapore (who was writing in the Straits Times, publicly excoriating the British administrator Arthur Pountney for designing an opium revenue reserve replacement fund, analogized to the stench of a rat) and what Pountney himself was writing about the same fund at the time for his peers and superiors.

On a practical note, I found this written style of interview one of the most time efficient ones. Although my responses were quite long, the text was not difficult to write because it was a similar style of writing used my book. Also, none of the interview questions came as a surprise, both because I had two weeks to mull through them and because they came from another academic, for a scholarly venue so I didn’t feel the pressure to make my argument “legible” (in ways that I would for a non-academic audience).

One thing I might do differently in retrospect, is to take up The Docket’s invitation to add questions of my own. I’ve noticed that just about every interviewer provides this option (and/or to tweak the questions provided). Until now, I’ve been shy about doing so, and tried to focus on providing the best answer to the questions posed, in the given order. In written interviews especially, because there is no direct back-and-forth conversation, it can feel like the list of emailed questions is a fixed guideline. But, there is a great deal of leeway to develop and refine a script of questions collaboratively.

Here are a few exemplary written interviews that I’ve learned a lot from authors with recently published first books:

·      On Fei-Hsien Wang’s Pirates and Publishers: A Social History of Copyright in Modern China with the Weatherhead East Asian Institute, Columbia University.

·      On Durba Mitra’s Indian Sex Life: Sexuality and the Colonial Origins of Modern Social Thought for the Harvard Gazette.

·      On Andy Liu’s Tea War: A History of Capitalism in China and India for the New School’s India China Institute.

My next posts will revisit my book’s argument about low-level colonial administrators for audiences interested in the state, especially theories of modern state building and symbolic power. I’ll also dwell on additional styles of book interviews, including a transcribed and edited text based on a zoom conversation and a podcast. 

In the meantime, the new June 2020 issue of The Docket has just been posted online. It’s a fascinating issue on the history and legacies of age of consent laws, guest edited by Kanika Sharma and Laura Lammasniemi. Do check it out!

-Diana Kim