Weekend Roundup

• Congratulations to Sarah Barringer Gordon and Kevin Waite, both of the University of Pennsylvania, on their award of a $242,000 collaborative research grant from the National Endowment for the Humanities. The grant will support a project titled "The Long Road to Freedom: Biddy Mason (1818–1891) and the Making of Black Los Angeles."

• From the Washington Post's "Made by History" section: Adam Malka (University of Oklahoma) on "Why law enforcement has a blind spot for white male violence"; Hidetaka Hirota (Waseda University) on "The danger of vilifying poor immigrants"; Salonee Bhaman (Ph.D. candidate, Yale University) on "How President Trump’s new immigration rule could erode the social safety net"; Margaret Marsh (Rutgers University) and Wanda Ronner (Perelman School of Medicine of the University of Pennsylvania) on "Why new anti-abortion laws may make it harder to conceive"; Katherine M. Marino (University of California, Los Angeles) on "How Mike Pompeo’s new commission on ‘unalienable rights’ butchers history"; Faith Hillis (University of Chicago) on "Why trying to distinguish between useful and dangerous immigrants always backfires"; and more.

• Writing for JOTWELLs Constitutional Law section, Ilya Somin has posted an admiring review of Maureen E. Brady's recent article on damagings clauses.

• Over at In Custodia Legis, an appreciation for equal rights crusader Maggie Kuhn; the long struggle for Swiss women's suffrage.   

• Harvard Law Today has a story on how students in Elizabeth Papp Kamali’s seminar, "Mind and Criminal Responsibility in the Anglo-American Tradition," use crime broadsides and other original sources in the Harvard Law School Library's Historical & Special Collections.

• Princeton Alumni Weekly has posted a podcast with Sarah Seo on her book Policing the Open Road: How Cars Transformed American Freedom.

• The Supreme Court Historical Society and production company Article III Films have announced the launch of the web documentary FDR and the Courtpacking Controversy.  “In late August the documentary will be sent to U.S. History teachers across the nation, accompanied by specially designed lesson plans to help students learn about the Courtpacking episode, which highlights important issues about separation of powers.”

• Now available on-line from the American Journal of Legal History: The Development of the ‘Modern’ Criminal Law of Evidence in English Law and in France, Germany and the Netherlands: 1750–1900, by R G Bloemberg.

• 1619: The 400th anniversary of the start of African American slavery in what is now the United States of America is the subject of the 1619 Project of the New York Times Magazine and this timeline in The Guardian.  But the History Channel says it started earlier.

• ICYMI: Immigration edition.  Erika Lee on the legal history of the new "public charge" regulation.  Also Kunal Parker, on NPR.  Mother Jones thinks Acting Director of US Citizenship and Immigration Services Ken Cuccinelli’s ancestor might have been excluded under it.

• Have you checked out the Federal Judicial Center's Famous Federal Trials lately? 

• Margaret O'Mara, the Howard & Frances Keller Professor of History at the University of Washington, will be delivering the keynote at the Policy History Conference in June 2020.  The PHC is currently accepting submissions of panels and papers.

• Now out in paperback:Women's Legal Landmarks: Celebrating the History of Women and Law in the UK and Ireland (Hart), edited by Erika Rackley and Rosemary Auchmuty.

• Update: LHB blogger Mitra Sharafi's post for India's Independence Day (Aug.15) on how one law journal survived the partition of British India

• Update: Check out the Teaching Law and Religion Case Study Archive by Winnifred Fallers Sullivan and Elizabeth Shakman Hurd. Lots of legal history here!

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

Tushnet Replies to Schlaes and Blackman on Schechter

Mark Tushnet’s post last month on Balkinization on Justice Gorsuch’s reliance in the Gundy decision upon Amity Shlaes’s account of Schechter Poultry has prompted responses by Shlaes and Josh Blackman.  Tushnet replies in Epistemic Closure and the Schechter Case.

--Dan Ernst

JEV-Fellowship for European Administrative History

[We have the following announcement of a research fellowship in the field of European Administrative History.]

JEV-Fellowship for European Administrative History

At the end of 2012 Prof. Dr. Erk Volkmar Heyen, who served as Professor of Public Law and European Administrative History at the Ernst-Moritz-Arndt University of Greifswald until his retirement and as editor of the "Jahrbuch für europäische Verwaltungsgeschichte/Yearbook of European Administrative History" (JEV), which ran from 1989 to 2008, endowed a research fellowship in the field of European Administrative History ("The JEV-Fellowship for European Administrative History"). The fellowship falls within the framework of the German University Foundation (Bonn, Germany).

The scholarship is intended to benefit the next generation of scientific researchers, particularly doctoral and post-doctoral students, to enable them to complete their research project in as brief a period as possible, ordinarily up to a maximum of 6 months. The scholarship is based on the usual rates for doctoral fellowships of the German Research Foundation (DFG). Should a fellowship be awarded to a researcher outside Germany, local scholarship rates will be taken into consideration. Marital status will not be taken into account, nor will travel or overhead costs be reimbursed.

The Board of the German University Foundation awards the fellowship based on the recommendation of a jury, which is based at the Max Planck Institute for European Legal History (MPI) in Frankfurt.

Early stage researchers from Germany and abroad are invited to apply. In accordance with the thematic and methodological spectrum covered by the JEV, the scholarship is open to all historical disciplines, provided the research project addresses an aspect of European administrative history or history of administrative law from the sixteenth to the twentieth century. The relevance of the research topic should not be restricted to a particular national context. Comparative research questions are particularly welcome.

Applications for a scholarship commencing in January 2020 can be submitted until 30 September 2019. Applications in English or German should be sent in electronic form to: Priv.-Doz. Dr. Peter Collin, collin@rg.mpg.de. The application, which must also indicate  the intended duration of the fellowship, should include: a tabular CV with details on the nature and course university education with copies of examination results and diplomas to be enclosed, a list of scientific publications, where applicable; a detailed description of the research project including a detailed outline, a detailed report on the current state of the project and writing progress, including the reasons for any delay in its completion; extensive excerpts from the manuscript; information on the project's previous,  current and planned financing arrangements; a precise timetable to complete the manuscript within the duration of the fellowship. Furthermore, at least one expert opinion on the research project and a personal reference from a university lecturer are to be submitted directly to the jury.

The MPI provides fellowship recipients with the opportunity to work in its library. Fellows are given the opportunity to present and discuss their research projects with members of the Institute. Upon expiration of the fellowship, the recipient is to submit a report on the status of the manuscript. The MPI provides for the publication of the manuscript in one of its book series, assuming it meets internal and scientific standards. The book is to acknowledge the support provided by the "JEV-Fellowship for European Administrative History" in the masthead or in the preface.

--Dan Ernst

Spaces of Roman Constitutionalism

[We have the following announcement.]

Spaces of Roman Constitutionalism.  26-28 September 2019.  University of Helsinki

From the fora to the assemblies and beyond, public space in ancient Rome was both political and contested, reflecting changing notions of community, citizenship and the values and norms behind them. The purpose of this conference is to explore the political, cultural and legal notions of public space and public realm in Rome. By observing the place of magistrates in the public spaces of Rome and more generally in the ideas behind Republican governance, it seeks to question and unpack the notions that have been built into the concept of Roman republican governance. On one hand we have the notion of Republicanism and public law, which has a rich history of modernizing interpretations and reuses in European history. On the other, there is the equally rich tradition of rituals, ceremonies, religious convictions and beliefs that surround the practices of governance. By examining the spacial aspect, how these were situated and interlinked and how public and private spaces and roles intermingled, we are hoping to shed new light into cultural and social dimension of Roman republicanism and its transformation from the Republic to the Principate. By setting ideas into their dynamic spatial, social and cultural contexts, we hope to subvert the traditional story of Roman constitutionalism.

Keynote speakers of the conference are Harriet Flower (Princeton), Karl-Joachim Hölkeskamp (Cologne), Catherine Steel (Glasgow), and Clifford Ando (Chicago).

The conference is open to all and there is no registration required.  For more information and the programme, please visit [here].

--Dan Ernst

Using fiction to teach legal history

Do you include fiction on your legal history syllabi? This summer, we asked many of you what novels, short stories, plays, and other kinds of fiction you use to teach legal history (H/t: LSA Law & History CRN and Twitter). This is a sequel of sorts to our posts on using film to teach legal history in summer 2017 (here and here).

Here are the responses (lightly edited for readability). 

Happy reading, everyone!

• Denise Arista on indigenous legal history: Some indigenous futurism or post apocalyptic Sci-fi which suggest the resurgence of "non-normative" extra Euro-American legal regimes may be a good place to teach. Some of us work in the intersection of colonial and indigenous customary law and language, these things though rich, are rarely focused upon. 
• Begin perhaps with the collection Walking the Clouds look at the work of Grace Dillon (Anishinaabe) The work of Professor Aaron Mills who is working in Anishinaabe Constitutionalism at McGill University may be an interesting pairing. 
• Rebecca Roanhorse? Look at the work being done on the interface between humans and AI. We wrote an essay, not explicitly about law but on indigenous AI, for a collection "Making Kin With the Machines," forthcoming, MIT press
• Indigenous people are having everywhere to deal with issues of climate change, especially in the Pacific, the central US and Canada. So questions of territoriality, customary law and practice, and environmental justice need to be addressed, as well as the nuclear Pacific Issues in Micronesia, and Tahiti. In many of these places the "evidence" is in our customary chants and knowledge----not precedent. 
• The work of John Scalzi on Disability law and futures, start your searches on international law and Sci-fi, or law and Sci-fi. The work of Octavia Butler and obviously Margaret Atwood. 
• If you want to go a different route look at video gaming and indigenous futurity. And coming soon, AR/VR. Also: questions of IP and cultural appropriation. 
• Evelyn Atkinson: I really like to use "A Jury of Her Peers" by Susan Glaspell when I'm teaching about women's exclusion from the legal system (I got the idea from Amy Dru Stanley who uses it in her legal history class).  It's a murder mystery where the two female characters figure out at the end why a wife killed her husband (domestic abuse) based on little clues around her house, while the male sheriff can't figure it out.  It's short and a really engaging read (there's also a play and a very slow movie from the 1970's).
• Pat Bell: for History of American Legal Education: The Paper Chase
• Peter Candy (@Pete_Candy): On the Augustan marriage legislation, I've used Graves' 'I, Claudius'. Adds a bit of lightness and comedy before getting down to the law.
• @cszabla: I haven't taught it but one that comes to mind re colonial legal history is Achebe's "No Longer at Ease," which involves a Nigerian getting a legal education in Britain that he then gets arrested for taking bribes to pay for when he becomes part of the colonial civil service.

Lots more after the jump:

Two by Fisher: "Presidential Residual Power in Foreign Affairs"; "Reconsidering Judicial Finality"

The June 2019 issue of the Capitol University Law Review includes an article that may be of interest to our readers: "Presidential Residual Power in Foreign Affairs," by Louis Fisher (Scholar in Residence at the Constitution Project; Visiting Scholar at William & Mary Law School). Here's the first paragraph (citations omitted):

As with other branches of government, the President has access to a combination of enumerated and implied powers. At times, Presidents have claimed “inherent” powers, but those assertions have been repudiated by both the Supreme Court and Congress. In Zivotofsky v. Kerry, Justice Clarence Thomas referred to another source of presidential power: a “residual foreign affairs power.” This article analyzes the origin and legitimacy of presidential residual powers, a term that has at least six different meanings.

Fisher is also the author of a new release from the University Press of Kansas: Reconsidering Judicial Finality: Why the Supreme Court Is Not the Last Word on the Constitution (August 2019). Here's a description from the Press:

Federal judges, legal scholars, pundits, and reporters frequently describe the Supreme Court as the final word on the meaning of the Constitution. The historical record presents an entirely different picture. A close and revealing reading of that record, from 1789 to the present day, Reconsidering Judicial Finality reminds us of the “unalterable fact,” as Chief Justice Rehnquist once remarked, “that our judicial system, like the human beings who administer it, is fallible.” And a Court inevitably prone to miscalculation and error, as this book clearly demonstrates, cannot have the incontrovertible last word on constitutional questions.

In this deeply researched, sharply reasoned work of legal myth-busting, constitutional scholar Louis Fisher explains how constitutional disputes are settled by all three branches of government, and by the general public, with the Supreme Court often playing a secondary role. The Court’s decisions have, of course, been challenged and reversed in numerous cases—involving slavery, civil rights, child labor legislation, Japanese internment during World War II, abortion, and religious liberty. What Fisher shows us on a case-by-case basis is how the elected branches, scholars, and American public regularly press policies contrary to Court rulings—and regularly prevail, although the process might sometimes take decades. From the common misreading of Marbury v. Madison, to the mistaken understanding of the Supreme Court as the trusted guardian of individual rights, to the questionable assumptions of the Courts decision in Citizens United, Fisher’s work charts the distance and the difference between the Court as the ultimate arbiter in constitutional matters and the judgment of history.

The verdict of Reconsidering Judicial Finality is clear: to treat the Supreme Court’s nine justices as democracy’s last hope or as dangerous activists undermining democracy is to vest them with undue significance. The Constitution belongs to all three branches of government—and, finally, to the American people.

More information is available here.

-- Karen Tani

Coşgel and Ergene on Ottoman justice

We missed this one earlier, so here it is now: Metin Coşgel, University of Connecticut and Boğaç Ergene, University of Vermont published The Economics of Ottoman Justice: Settlement and Trial in the Sharia Courts with Cambridge University Press in 2016. From the publisher: 

During the seventeenth and eighteenth centuries, the Ottoman Empire endured long periods of warfare, facing intense financial pressures and new international mercantile and monetary trends. The Empire also experienced major political-administrative restructuring and socioeconomic transformations. In the context of this tumultuous change, The Economics of Ottoman Justice examines Ottoman legal practices and the sharia court's operations to reflect on the judicial system and provincial relationships. Metin Coşgel and Boğaç Ergene provide a systematic depiction of socio-legal interactions, identifying how different social, economic, gender and religious groups used the court, how they settled their disputes, and which factors contributed to their success at trial. Using an economic approach, Coşgel and Ergene offer rare insights into the role of power differences in judicial interactions, and into the reproduction of communal hierarchies in court, and demonstrate how court use patterns changed over time.

Praise for the book: 

"Metin Coşgel and Boğaç Ergene have written a well-researched book that pushes the boundary of interdisciplinary scholarship. Their history is informed by economics, and their economics is generalized via history. It is an impressive and difficult methodology to pull off, yet Coşgel and Ergene have done just this." -Jared Rubin 

Further information is available here.

-posted by Mitra Sharafi

Conference: Status and Justice in Law, Religion and Society

A conference on “Status and Justice in Law, Religion, and Society” will be held at Washington and Lee University School of Law, November 1-3, 2019. It will include lots of interest for legal historians. The organizers are Timothy Lubin and Kemilya Atanasova, both of Washington and Lee University. Clifford Ando (University of Chicago) and Winnifred Fallers Sullivan (Indiana University) will give keynote lectures on citizenship and the legacy of the Antonine constitution and on religious status under secular law, respectively. The list of presenters is here. An excerpt from the conference description: 

This interdisciplinary conference aims to bring together historians of religious, ancient, and medieval law systems from around the world with scholars of modern legal systems, on the hypothesis that comparative discussion can throw new light on the role of status-considerations in shaping how individuals experience and use the law, in defining what counts as a fair or just outcome, and in changes to the legal landscape in times of social change.  It may be that the role of statuses (both legal and societal) in premodern and religious legal orders may hold lessons for understanding the role of statuses in the law of republican polities, despite their aspiration to ensure equality of individuals before the law.

Further information is available here.

-posted by Mitra Sharafi

Center for the Study of Law & Society Speaker Series: Fall '19

The Center for the Study of Law & Society at the University of California, Berkeley, has released the Fall lineup for its 2019-20 speaker series. Speakers of particular interest to our readers:

Monday, August 26 – Cybelle Fox
Professor of Sociology, University of California, Berkeley
“‘The Line Must Be Drawn’: The Rise of Legal Status Restrictions in State Welfare Policy”  

Monday, September 16 – Sam Erman
Professor of Law, University of Southern California Gould School of Law
Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire (Cambridge University Press, 2018) 

Monday, October 28 – Richard Ross
David C. Baum Professor of Law and Professor of History, University of Illinois
“The Rule of Law in British America: Thinking with Indians While Comparing to Spaniards” 

Monday, November 18 – Stephanie Jones-Rogers
Associate Professor of History, University of California, Berkeley
“‘She had…a Womb Subjected to Bondage’: The Afro-Atlantic Origins of British Colonial Descent Law”

Do you know of other lectures or workshop series that we should take note of on the blog? Feel free to contact us! 

-- Karen Tani

Osgoode Society Legal History Workshop: Fall 2019 Lineup

Via our friends at the Canadian Legal History Blog, we have the lineup for the Osgoode Society Legal History Workshop - Fall 2019 [*Revised as of August 10, 2019*]

Wednesday September 11: Nancy Wright, University of Victoria: “The Laphroaig
Leasehold: Popular Interpretations of Feudal Tenures.”

Wednesday September 25: Jim Phillips, University of Toronto: ‘The Canadian
Court System, 1867-1914’

Tuesday October 15: Note the Tuesday. Donal Coffey, Max Planck Institute:
‘Newfoundland and Dominion Status.’

Wednesday October 30 (new date): Philip Girard, Osgoode Hall Law School: ‘The
Contrasting Fates of French-Canadian and Indigenous Constitutionalism: British
North America, 1763-1867.’

Wednesday November 6: Eric Adams, University of Alberta: ‘Constitutional
Wrongs: A Legal History of Japanese Canadians’

Wednesday November 13 (new date): Joseph Kary, Kary and Kwan: Sonderkommando in Canada: Montreal's first World War II War Crimes Trial, 1951-1956

Wednesday November 27: Patricia McMahon, Torys: ‘Radioactive: The Life and
Lies of Boris Pregel’

-- Karen Tani

Siddiqui on Syed Mahmood

Sohaira Siddiqui, Georgetown University Qatar has published "Navigating Colonial Power: Challenging Precedents and the Limitation of Local Elites" in Islamic Law and Society 26:3 (13 June 2019), 1-41. Here's the abstract: 

In 1869, the British allowed Muslims to sit as judges on the High Court. This article explores the legal opinions of the first Muslim judge to be appointed to the High Court, Syed Mahmood. Straddling two competing worlds – that of Cambridge University and that of his native India – Justice Mahmood both legitimated and resisted colonial judicial power. In this essay I will demonstrate how British judges interpreted points of Islamic law within an English legal framework, and how these interpretations contradicted their translated texts of Islamic law, yet became the foundation of legal precedents established through the doctrine of stare decisis. Despite participating within the British colonial judiciary, Mahmood challenged these precedents, demonstrating his ability to navigate the paradoxes of colonial power to secure for himself a legitimate platform from which he could argue his juridical interventions. The efficacy of these challenges, however, ultimately was restrained by the institutions and structures of the colonial jural project.

Further information is available here.

--posted by Mitra Sharafi

Weekend Roundup

• The Law & Political Economy (LPE) blog just ran a mini symposium on "democratizing administrative law." Historians were well represented, with posts by Sophia Z. Lee (Penn Law) (here) and LHB blogger Karen Tani (Berkeley Law) (co-authored here with Matthew Cortland and here with Cortland and Nancy Chi Cantalupo).

• Seven Surprising Ways I Helped Promote My First Book, by Melanie A. Kiechle, Virginia Tech.

• ICYMI: The NPR podcast "Throughline" has recently released an episode on Milliken v. Bradley.  The Stanford Daily on Lawrence Friedman's "Introduction to American Law" (scroll to item 5)

• From the Washington Post's Made by History section: Timothy Stewart-Winter (Rutgers University-Newark) on "How the black press helped pave the way for gay rights"; Shahrukh Khan (J.D. candidate, Emory University School of Law) on "The Supreme Court’s illiberal legacy."

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

Wu on Government Apologies Failing to Bring Closure

Another item of interest from the latest issue of the Hastings Race and Poverty Law Journal: Frank H. Wu (University of California, Hastings College of the Law), "Necessary But Not Sufficient: Two Case Studies of Government Apologies Failing to Bring Closure." Here's the first paragraph (citations omitted):

This short essay presents two case studies in obtaining a remedy for an historic wrong: the Congressional passage of the 1988 Civil Liberties Act, paying reparations to Japanese Americans who had been sent to internment camps during World War II; and the Senate and House issuance of Statements of Regret of 2011 and 2012, respectively, for the Chinese Exclusion Act. These examples show how a government can make progress toward its ideals by acknowledging prior errors. Yet they also reveal that such recognition, as necessary as it is for a diverse society, is not sufficient for a democratic one. Subsequent actions in each instance suggest that any lessons learned were ephemeral at best and illusory at worst.

Read on here.

-- Karen Tani

Campbell and Jewel, "Death in the Shadows"

Mary Campbell and Lucy A. Jewell (University of Tennessee College of Law) have posted "Death in the Shadows," which appears in the most recent issue of the Hastings Race and Poverty Law Journal. Here's the abstract:

This paper is about the law and visual culture. Its centerpiece is Parson Weems’ Fable (1939), a painting by the American artist Grant Wood (1891-1942) that depicts the apocryphal story of George Washington and the cherry tree. At first glance, Wood’s image appears to celebrate an enduring myth of American virtue, namely Washington’s precocious inability to tell a lie. Studying the picture more closely, however, one finds a pair of black figures, presumably two of the Washingtons’ slaves. Stationed beneath dark storm clouds and harvesting cherries from a second tree, these slaves invoke yet another national myth, that of the domestic serenity that supposedly reigned on Virginia’s colonial plantations. In the process, they quietly invoke the country’s grievous history of racial oppression, coercion, and brutality.

This isn’t the only place where Woods’ painting speaks of racial violence. To the contrary, Parson Weems’ Fable also raises the specter of lynching. Examining the shadows directly beneath the Washingtons and their fabled tree, one discovers a hanging black body. Intentional or not, this dangling corpse conjures the spectacular acts of theatrical violence that mobs of Euro-Americans inflicted on African Americans during the late nineteenth century and well into the twentieth. By the 1930s, heated protests emerged against lynching—in popular songs, magazines, and art exhibitions, as well as more traditional political arenas. Unlike the painters most closely associated with him, Wood didn’t participate directly in such moments of artistic protest. Nonetheless, he would have been exposed to them as he painted Parson Weems’ Fable in the winter of 1939.

Regardless of Wood’s intentions, the work he created persistently connects the country’s origin myths to the murderous violence the U.S. has repeatedly inflicted on persons of color. Moreover, as the painting itself seems to realize, the law and culture forged by colonial Virginia planters like George Washington eventually morphed into a collective white psychopathy that found vicious expression in the practice of spectacle lynching. This colonial legal regime was deeply visual—a fact that accounts for not only its power, but also for the fundamental influence it continues to exert on current American conceptions of race.

A deep reading of Parson Weems’ Fable in the context of both its time (1939) and its setting (1736) reveals the extent to which the law is visual and the visual is legal. Indeed, the painting gives us a valuable lens for perceiving the pervasive connections that run between the two. Our thesis is that the profoundly visuo-legal nature of the country’s racial foundations helps explain the lack of progress the nation has made in dismantling the color line. As a result, the impulse to join the seemingly unrelated disciplines of legal study and art history isn’t an academic gimmick, but rather a necessity. For centuries, images have worked in tandem with statutes, judicial decisions, and various forms of legal (and illegal) punishment to indelibly imprint a logic of racial violence in our collective mindset. In order to fully excavate this logic, we need scholars who can analyze pictures as well as the law.

In terms of structure, we begin by introducing the painting and our analytical framework and method. After that, we explain the theoretical foundations for studying law and culture in this context. Finally, we connect colonial Virginia’s legal and cultural landscape to the traumatic racial violence that continues to haunt our national mythology.

The full article is available here.

-- Karen Tani

Shane on Executive Power and Criminal Prosecution at the Founding

Peter M. Shane, Ohio State University Michael E. Moritz College of Law, has posted Prosecutors at the Periphery, which is forthcoming in the Chicago-Kent Law Review 94 (2019): 241-265:

Contrary to so-called unitary executive theory, Article II does not guarantee presidents the power to control federal criminal prosecution, a supervisory role Congress has placed by statute with the Attorney General. Nor is Congress without authority to protect federal prosecutors from policy-based dismissals. Rule-of-law values embodied in our system of checks and balances could alone justify these conclusions. But the same conclusions follow also from close attention to the entirety of the relevant constitutional text and from an understanding of how the Founding generation would have understood the relationship between executive power and criminal prosecution. In contemplating the newly proposed constitutional text between 1787 and 1789, those Americans enfranchised to vote on its ratification would have brought to their understanding of “executive power” not just dictionary definitions, but also their experience of living under executive power as exercised in Great Britain, in the colonies, and under state constitutions. They would have understood prosecution to be a form of judicial power, and the “original public meaning” of Article II executive power would not have guaranteed presidents the power to control prosecutorial discretion.

--Dan Ernst

Mid-Week Roundup: Historians on the 2nd Amendment and Gun Control

• From the New Republic, Saul Cornell (Fordham University) on "The Second-Amendment Case for Gun Control."

• Second Thoughts, the blog of the Center for Firearms Law at Duke University, is running a mini-symposium on the new book Guns in Law (University of Massachusetts Press), edited by Austin Sarat, Lawrence Douglas, and Martha Merril Umphrey, with contributions by the editors and by Carl T. Bogus, Jennifer Carlson, Saul Cornell, Darrell A.H. Miller, Laura Beth Nielsen, and Katherine Shaw. Several posts are already available.

• It would also be worth revisiting the series of posts that SHEAR's Panorama ran last summer/fall, as part of its roundtable on "engaging America's gun culture." Contributions include David Silverman (George Washington University), "Shot through with Contradictions: Reflections on Native America, Guns, and the Modern United States"; Alison LaCroix (University of Chicago), "Historical Semantics and the Meaning of the Second Amendment"; Lindsay Schakenbach Regele (Miami University), "Regulation, Not Rights: The History of Government Gun Culture in the Early Republic"; and Saul Cornell, "Bearing Arms vs. Hunting Bears: The Persistence of a Mythic Second Amendment in Contemporary Constitutional Culture."

• Via Twitter, John Fabian Witt (Yale Law) reminded us of the current relevance of Reva Siegel's 2008 Harvard Law Review article "Dead or Alive: Originalism as Popular Constitutionalism in Heller."

-- Karen Tani

Sharafi on rule of law and constitutionalism in India

Our blogger Mitra Sharafi, University of Wisconsin, has posted the paper, "Parsi Legal Culture, Constitutionalism, and the Rule of Law" on SSRN. The piece is forthcoming in a volume edited by Nawaz B. Mody. It began life as the conclusion to Sharafi's book, before being removed and expanded into its own separate article. Here's an abstract:

Parsi legal culture has played an important role in the constitutional life of modern India, helping nationalists pivot from extra-legal resistance to the business of running a state. This article suggests that Parsi legal culture reinforced constitutionalism and the rule of law in India. As ideals, the latter two concepts impose restraints on the exercise of power. During the late colonial period, elite Parsis led the early "constitutionalist" phase of the Indian National Congress movement (1885-1919) and insisted on working for change through existing state processes and structures. Early Congress leaders Dadabhai Naoroji, Pherozeshah Mehta, and Dinsha Wacha were products of Parsi legal culture. They were turning outward--for the benefit of all Indians--the law-focused strategy that had worked so well during the preceding half-century for their own community. Their approach was abandoned as the nationalist movement became a mass movement circa 1920 under Gandhi's leadership. The values of Parsi legal culture and the Congress constitutionalists were relegated to the back burner from the 1920s until the late 1940s. However, they were brought back to life upon independence, particularly in the Constituent Assembly that created the Indian Constitution (1947-50) and in the interpretation of the Indian Constitution after 1950. The early Congress model of "constitutional agitation"fed into what B. R. Ambedkar would call India's "constitutional morality." Both required the relinquishment of "the bloody methods of revolution" and of Gandhian civil disobedience alike. Early independent India could re-activate constitutionalism and the rule of law as ideals because these ideas were preserved readymade within a particular politico-legal tradition, albeit one that had fallen out of favor in the decades before independence. This tradition was heavily influenced by Parsi legal culture.

This article also answers the question of whether rule-of-law values were inescapably colonial: they were not. A history of tension within the colonial state highlights the distinction between those who believed there had to be restraints on the exercise of power, and those who wanted to rule without law. Debates among colonial state actors and the harnessing of rule-of-law values by the early constitutionalists reflected the distinction between the projects of colonialism and the rule of law. The British initially used the rule of law to justify colonialism because it was there, neatly packaged and ready to ship, in metropolitan thought and political culture. They underestimated the concept's autonomy and its potential to eat away at the foundations of empire. This insight also addresses the question: how did a population that achieved such affluence and success under British rule reposition itself in decolonisation mode? In fact, there was no necessary contradiction between Parsi legal culture and the rejection of colonial rule. Through its embrace of rule-of-law values and constitutionalism, Parsi legal culture helped build a solid foundation for the newly independent polity.

Further information is available here and here.

--posted by Mitra Sharafi

Adler on Racial Dispartities in Criminal Punishment in New Orleans, 1920-1945

Just out online from the American Journal of Legal History: “‘To Stay the Murderer's Hand and the Rapist's Passions, and for the Safety and Security of Civil Society’: The Emergence of Racial Disparities in Capital Punishment in Jim Crow New Orleans,” by Jeffrey S Adler, University of Florida:

This essay examines capital punishment in New Orleans between 1920 and 1945. Building on a quantitative analysis of case-level data culled from police, court, and prison records, it explores the emergence of racial disparities in death-penalty sentencing and charts the increasing use of capital punishment as a mechanism of racial control. The paper focuses on four surprising and counter-intuitive patterns in the application of the death penalty. First, shifts in the use of capital punishment during this era bore no connection to patterns of violent crime. Second, changes in death-penalty sentencing were only loosely related to overall trends in homicide conviction. Third, and most surprising, Orleans Parish jurors, particularly during the 1920s, sent white killers to the gallows at a higher rate than African American killers. And fourth, the analysis of case-level records reveals dramatic shifts in death-penalty sentencing during the 1930s, particularly the development of a pronounced racial disparity in the application of capital punishment. Prosecutors also exploited the threat of capital charges to secure guilty pleas from African American suspects, and thus changes in death-penalty sentencing contributed to racial disparities in incarceration. In short, this micro-analysis helps to explain when and why the death penalty became a core component of Jim Crow criminal justice.

--Dan Ernst

Inniss's "The Princeton Fugitive Slave"

Lolita Buckner Inniss, SMU Dedman School of Law, has published The Princeton Fugitive Slave: The Trials of James Collins Johnson (Fordham University Press, 2019):

James Collins Johnson made his name by escaping slavery in Maryland and fleeing to Princeton, New Jersey, where he built a life in a bustling community of African Americans working at what is now Princeton University. After only four years, he was recognized by a student from Maryland, arrested, and subjected to a trial for extradition under the 1793 Fugitive Slave Act. On the eve of his rendition, after attempts to free Johnson by force had failed, a local aristocratic white woman purchased Johnson’s freedom, allowing him to avoid re-enslavement. The Princeton Fugitive Slave reconstructs James Collins Johnson’s life, from birth and enslaved life in Maryland to his daring escape, sensational trial for re-enslavement, and last-minute change of fortune, and through to the end of his life in Princeton, where he remained a figure of local fascination.

Stories of Johnson’s life in Princeton often describe him as a contented, jovial soul, beloved on campus and memorialized on his gravestone as “The Students Friend.” But these familiar accounts come from student writings and sentimental recollections in alumni reports—stories from elite, predominantly white, often southern sources whose relationships with Johnson were hopelessly distorted by differences in race and social standing. In interrogating these stories against archival records, newspaper accounts, courtroom narratives, photographs, and family histories, author Lolita Buckner Inniss builds a picture of Johnson on his own terms, piecing together the sparse evidence and disaggregating him from the other black vendors with whom he was sometimes confused.

By telling Johnson’s story and examining the relationship between antebellum Princeton’s black residents and the economic engine that supported their community, the book questions the distinction between employment and servitude that shrinks and threatens to disappear when an individual’s freedom is circumscribed by immobility, lack of opportunity, and contingency on local interpretations of a hotly contested body of law.

--Dan Ernst

Weekend Roundup

• Over at the New Books Network, legal historians are in the spotlight: you'll find conversations with former guest bloggers Sarah Seo (Iowa Law) and Sam Erman (USC) on their recent books Policing the Open Road and Almost Citizens, respectively; also conversations with University of Virginia law professor Jessica Lowe, on her new book Murder in the Shenandoah, and her UVA colleague Cynthia Nicoletti, on her 2017 book Secession on Trial.

• Speaking of UVA, should the University rename the Alderman library? A Law Library summer intern makes the case.

• From the Washington Post's "Made by History" section: Khalil Gibran Muhammad (Harvard Kennedy School) on "why police accountability remains out of reach"; David Pettinicchio (University of Toronto) on "why disabled Americans remain second-class citizens."

• Former US Solicitor General Donald B. Verrilli, Jr.'s Jackson Lecture at Chautauqua Institution and an interview by the Robert H. Jackson Center are here and here.

• The Historical Society of the District of Columbia Circuit's series based on its oral history collection continues with posts on Samuel Dash, Bernard Nordlinger, and Judge Reggie Walton.

• ICYMI: Judge Glock's Unpacking the Supreme Court: Judicial Retirement, Judicial Independence and the Road to the 1937 Court Battle, in the Journal of American History (June 2019).  Over at Lawfare: Arshan Barzani’s review of William A. Schabas’s The Trial of the Kaiser (Oxford University Press, 2018).  At Balkinization, Marty Ledereman's post on the history of congressional investigations of presidential activity.  At HNN, Ronald L. Feinman post on "The Long History of Unjust and Lawless Attorneys General."

• It looks like this job posting at Whitman College, for an Assistant Professor of Politics, could be a good fit for a legal historian.

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

Bettge on Judicial Review and Originalism

Thomas Bettge has posted Marbury in the Vanishing Cabinet: Evaluating Originalism in the Light of Judicial Review's Uncertain Origins, which appeared in the Willamette Law Review 55 (2018): 1-45:

Although originalism has occasioned substantial rethinking of many facets of our constitutional law, the doctrine of judicial review articulated in Marbury v. Madison has gone largely unquestioned. This article explores the uncertain place of judicial review in the original Constitution, and systematically lays out the consequences of that uncertainty for today's originalism.

The article unfolds the problems originalists face if judicial review was not part of the original constitutional framework. While many scholars in both the originalist and nonoriginalist camps believe that judicial review's place in the original Constitution is well established, this paper scrutinizes the leading scholarship on the history of judicial review and shows that, contrary to popular belief, judicial review's historical bona fides are fundamentally uncertain. Because judicial review cannot be justified on originalist grounds, originalists need to seek other reasons for engaging in it, and must reconcile those reasons with the basic tenets of originalism. To an extent, they have already done this, but significant gaps remain. The article considers what reasons originalists could invoke, and concludes that it will be difficult, absent historical legitimation for the practice of judicial review, for originalists to make an argument for judicial review that favors originalism over competing interpretive theories.

–Dan Ernst.  H/t: Legal Theory Blog

Johnston on the CIA under JFK

James H. Johnston, “a lawyer, writer, and historian in Washington, DC,” has published Murder, Inc.: The CIA under John F. Kennedy with Potomac Books, a division of the University of Nebraska Press. Mr. Johnston’s post on the book is here.

Late in his life, former president Lyndon B. Johnson told a reporter that he didn’t believe the Warren Commission’s finding that Lee Harvey Oswald acted alone in killing President John F. Kennedy. Johnson thought Cuban president Fidel Castro was behind it. After all, Johnson said, Kennedy was running “a damned Murder, Inc., in the Caribbean,” giving Castro reason to retaliate.

Murder, Inc., tells the story of the CIA’s assassination operations under Kennedy up to his own assassination and beyond. James H. Johnston was a lawyer for the Senate Intelligence Committee in 1975, which investigated and first reported on the Castro assassination plots and their relation to Kennedy’s murder. Johnston examines how the CIA steered the Warren Commission and later investigations away from connecting its own assassination operations to Kennedy’s murder. He also looks at the effect this strategy had on the Warren Commission’s conclusions that assassin Lee Harvey Oswald acted alone and that there was no foreign conspiracy.

Sourced from in-depth research into the “secret files” declassified by the JFK Records Act and now stored in the National Archives and Records Administration, Murder, Inc. is the first book to narrate in detail the CIA’s plots against Castro and to delve into the question of why retaliation by Castro against Kennedy was not investigated.

--Dan Ernst

Quigley and friends on the Civil War and Citizenship

Edited by Paul D. Quigley, Virginia Tech, The Civil War and the Transformation of American Citizenship came out with LSU Press in 2018. From the publisher:

The meanings and practices of American citizenship were as contested during the Civil War era as they are today. By examining a variety of perspectives—from prominent lawmakers in Washington, D.C., to enslaved women, from black firemen in southern cities to Confederate émigrés in Latin America—The Civil War and the Transformation of American Citizenship offers a wide-ranging exploration of citizenship’s metamorphoses amid the extended crises of war and emancipation.

Americans in the antebellum era considered citizenship, at its most basic level, as a legal status acquired through birth or naturalization, and one that offered certain rights in exchange for specific obligations. Yet throughout the Civil War period, the boundaries and consequences of what it meant to be a citizen remained in flux. At the beginning of the war, Confederates relinquished their status as U.S. citizens, only to be mostly reabsorbed as full American citizens in its aftermath. The Reconstruction years also saw African American men acquire—at least in theory—the core rights of citizenship. As these changes swept across the nation, Americans debated the parameters of citizenship, the possibility of adopting or rejecting citizenship at will, and the relative importance of political privileges, economic opportunity, and cultural belonging. Ongoing inequities between races and genders, over the course of the Civil War and in the years that followed, further shaped these contentious debates.

The Civil War and the Transformation of American Citizenship reveals how war, Emancipation, and Reconstruction forced the country to rethink the concept of citizenship not only in legal and constitutional terms but also within the context of the lives of everyday Americans, from imprisoned Confederates to former slaves.

The Table of Contents is accessible on Google Books here.

Further information is available here.

--Mitra Sharafi

Journal of Southern Legal History, Vol. 26

Here’s the TOC for volume 26 (2018) of the Journal of Southern Legal History:

Oral History of Manley F. Brown (2016).  Introduction and interview by Patrick Emery Longan

Clyde Ray, “John Marshall, the Native American Cases, and the Idea of Constitutional Nationalism”

Nathaniel J. Berry, “Justice of the Peace Manuals in Virginia before 1800”

Kovacic on Pertschuk's FTC Chairmanship

“Competition Policy in its Broadest Sense”: Michael Pertschuk's Chairmanship of the Federal Trade Commission 1977-1981, by William E. Kovacic, George Washington University Law School, is out in the William and Mary Law Review 60 (2019): 1269-1333:

In the late 1960s and through the 1970s, the Federal Trade Commission (FTC) undertook an ambitious program of reforms. Among other measures, the agency expanded the focus of antitrust enforcement to address economic concentration, including the use of Section 5 of the FTC Act to restructure dominant firms and oligopolies. In many ways Michael Pertschuk, who chaired the agency from 1977 to 1981, became the symbol of the FTC’s efforts to stretch the boundaries of antitrust policy—to pursue a conception of “competition policy in its broadest sense.” Despite a number of valuable accomplishments, the FTC achieved relatively few litigation successes, and its efforts aroused political opposition that nearly crippled the institution. The experience of the FTC in the 1970s, and during the Pertschuk chairmanship in particular, offers insights into the implications of future efforts to use the FTC to carry out a sweeping redesign and expansion of U.S. competition policy.

--Dan Ernst

Roy Chaudhury on the Indian Poisons Act

Out soon by Shrimoy Roy Chaudhury, Shiv Nadar University (India) is "Toxic Matters: Medical Jurisprudence and the Making of the Indian Poisons Act (1904)" in Crime, History & Societies/Crime, Histoire & Sociétés 22:1 (2018), 81-105. Here's the abstract: 

The article seeks to problematize the relationship between law and medicine by studying the tensions which accompanied the emergence of medical jurisprudence in British India during the second half of the nineteenth century. In a context of British government apprehension as to the legality of its rule in India, the article focuses on official concerns about the unmonitored circulation of toxic substances, particularly arsenic, which culminated in the Poisons Act (1904). The article investigates the role of toxic substances in historical narratives of expertise, and also traces the emergence of the idea of an autonomous native society in colonial and medical/forensic discourse, locating its articulation in exchanges between British and native salaried experts.

Further information is available here.

--Mitra Sharafi 

Leiber's Lost Treatise on Martial Law

To Save the Country: A Lost Treatise on Martial Law, written by Francis Lieber and G. Norman Lieber and edited and with an introduction by Will Smiley and John Fabian Witt, is out from the Yale Univbersity Press.  Francis Lieber (1798–1872) was professor at Columbia College who advised Abraham Lincoln on the law of war. G. Norman Lieber (1837–1923), Francis’s son, taught law at West Point. Will Smiley is an assistant professor of humanities at the University of New Hampshire. John Fabian Witt is the Allen H. Duffy Class of 1960 Professor of Law at Yale Law School and the Head of Yale’s Davenport College.

The last work of Abraham Lincoln’s law of war expert Francis Lieber was long considered lost—until Will Smiley and John Fabian Witt discovered it in the National Archives. Lieber’s manuscript on emergency powers and martial law addresses important contemporary debates in law and political philosophy and stands as a significant historical discovery.

As a key legal advisor to the Lincoln White House, Columbia College professor Francis Lieber was one of the architects and defenders of Lincoln’s most famous uses of emergency powers during the Civil War. Lieber’s work laid the foundation for rules now accepted worldwide. In the years after the war, Lieber and his son turned their attention to the question of emergency powers. The Liebers’ treatise addresses a vital question, as prominent since 9/11 as it was in Lieber’s lifetime: how much power should the government have in a crisis? The Liebers present a theory that aims to preserve legal restraint, while giving the executive necessary freedom of action.

Smiley and Witt have written a lucid introduction that explains how this manuscript is a key discovery in two ways: both as a historical document and as an important contribution to the current debate over emergency powers in constitutional democracies.

Here are some endorsements:

 “When arguments for a legally unrestrained executive are again in fashion, this retrieval of Lincoln’s lawyer’s theory of appropriate legal restraint during wartime emergency could not be more timely.”—David Dyzenhaus, University of Toronto

“Smiley and Witt have unearthed a lost treasure. As we debate how our constitutional democracy handles great stress, this work helps us understand how the system has survived so far.”—Matthew C. Waxman, Columbia University

“Through their extraordinary discovery of Francis Lieber’s unpublished notes, Smiley and Witt not only provide a crucial new primary source that contextualizes Lieber’s role in the development of laws of war but also, amazingly enough, a fruitful way to reconsider the old, vital question of what constraints law can offer in times of war. A book every historian of the Civil War and every scholar of laws of warfare should rush to read.”—Gregory P. Downs, author of After Appomattox: Military Occupation and the Ends of War

“The manuscripts that Smiley and Witt have recovered should be required reading for anyone who cares about the operation of the Constitution in wartime and more generally about what legal limits should—or should not—constrain the government in confronting emergencies.”—Amanda L. Tyler, University of California, Berkeley School of Law

--Dan Ernst

SHEAR James Broussard First Book Prize to Welch

At the recent meeting of the Society for Historians of the Early American Republic (SHEAR), the Society awarded the James Broussard First Book Prize to former guest blogger Kimberly Welch (Vanderbilt) for Black Litigants in the Antebellum American South (University of North Carolina Press, 2018). Via The Panorama, here's more:

. . . The prize committee, including Gregory Nobles (Chair), Ronald Johnson, and Cynthia Kierner, found that Welch’s diligence and intelligence are both very much on display in this exceptionally fine book. It takes us into new and largely unwritten territory, showing people of color, both enslaved and free, finding loopholes in an otherwise oppressive system and using the local courts very effectively to their advantage. As other scholars rightly expand our knowledge of the horrors and inhumanity of slavery, Welch underscores the necessity—by all people, particularly the oppressed—to understand and appreciate the law. We may all be aware of the unfairness and biases of the law as written by the privileged and powerful, but this book affirms in a very real and unpretentious way the importance of the American legal system as an important tool, albeit an imperfect one, for change and protection in our society. In that regard alone, this book will certainly have a significant impact in the historiography of slavery and freedom.

In addition to being well-grounded in theory and historiography, Welch’s book is clearly written and delightful to read. It is especially good at explaining the legal details about how courts and lawyers worked, but also uses engaging and revealing personal stories to address much broader issues, particularly the changing foundation of rights from property to race. Welch’s keen ability to show human faces in litigious processes makes this book a model for writing legal history.

Finally, one of the best stories Welch tells is about her own research for this project, an industrious and dogged search for sources. At a time when we so often turn to digitized material on our computers, Welch got her hands dirty digging up, sometimes literally, court records that had remained unused since the antebellum era, finding them and then rescuing them from decay, dirt, and mouse droppings.

Congratulations to Professor Welch!

Weekend Roundup

• After the story broke about NPR's failure to cite historian Sarah Milov in a segment on her work, journalist Caroline Kitchener at The Lily followed up: "It’s not just Sarah Milov. Female academics aren’t credited in media ‘all the time.’" The follow-up article includes quotes from Women Also Know History co-founder Emily Prifogle (University of Michigan) and others.

• Robin Lindley’s HNN interview of Robin Chapman Stacey, University of Washington, the author, most recently, of Law and the Imagination in Medieval Wales, is here.

• From our friends at the Max Planck Institute for European History, a post on the British Legal History Conference 2019.

• David A. Reidy, University of Tennessee, has posted a draft chapter from his forthcoming intellectual biography, John Rawls: Envisioning Democracy.  It covers "Rawls's years at Cornell University from 1953-1958 and the gestation of the first (quite incomplete and underdeveloped) expression of justice as fairness in 1958."

• A recent Economist article took a swipe at historians, claiming that they "remain isolated in their professional cocoons, spending more time fiddling with their footnotes than bringing the past to light for a broader audience." Historians beg to differ here.

• And speaking of broader audiences: read or listen to this interview with Kalyani Ramnath, Harvard in The Polis Project's Suddenly Stateless series, exploring India's controversial National Register of Citizens and the people fighting to be recognized by it. 

• Just out online from Law and History Review and Cambridge Core is Secularizing Islam: The Colonial Encounter and the Making of a British Islamic Criminal Law in Northern Nigeria, 1903-58, by Rabiat Akande, an SJD candidate at the Harvard Law School.

• From an email to John Q. Barrett 's listserv, we learn that Attorney General William Barr has reclaimed the official Department of Justice portrait of Robert H. Jackson.  Not the most outrageous association with a historical figure we can think of.  DRE

• ICYMI: Farah Peterson, University of Virginia Law, on Black Lives and the Boston Massacre in The American Scholar.  Also, Flos Greig, Australia’s first female lawyer.

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

Stacey's "Law and Imagination in Medieval Wales"

Robin Chapman Stacey, University of Washington, has published Law and the Imagination in Medieval Wales (University of Pennsylvania Press, 2019):

In Law and the Imagination in Medieval Wales, Robin Chapman Stacey explores the idea of law as a form of political fiction: a body of literature that blurs the lines generally drawn between the legal and literary genres. She argues that for jurists of thirteenth-century Wales, legal writing was an intensely imaginative genre, one acutely responsive to nationalist concerns and capable of reproducing them in sophisticated symbolic form. She identifies narrative devices and tropes running throughout successive revisions of legal texts that frame the body as an analogy for unity and for the court, that equate maleness with authority and just rule and femaleness with its opposite, and that employ descriptions of internal and external landscapes as metaphors for safety and peril, respectively.

Historians disagree about the context in which the lawbooks of medieval Wales should be read and interpreted. Some accept the claim that they originated in a council called by the tenth-century king Hywel Dda, while others see them less as a repository of ancient custom than as the Welsh response to the general resurgence in law taking place in western Europe. Stacey builds on the latter approach to argue that whatever their origins, the lawbooks functioned in the thirteenth century as a critical venue for political commentary and debate on a wide range of subjects, including the threat posed to native independence and identity by the encroaching English; concerns about violence and disunity among the native Welsh; abusive behavior on the part of native officials; unwelcome changes in native practice concerning marriage, divorce, and inheritance; and fears about the increasing political and economic role of women.

The TOC and an engaging excerpt is here.  The latter commences:

Some years ago, I found myself teaching a class on medieval law. This was a seminar intended for history majors, many of whom were planning ultimately to enter the legal profession, and the students were both bright and curious. We were discussing a text I knew well, the Welsh Laws of Court, when a student raised her hand to ask about a passage that appeared to limit the sanctuary (nawdd) a female baker was allowed to grant an offender to the distance she could throw her baking scraper. I started in with an explanation of how nawdd worked and why persons of greater status would have been able to extend more protection had they been approached. She looked confused, so I dramatized the event for her, imagining a scenario in which a wild-eyed offender with pursuers hot on his heels bursts into a prince's kitchen searching for someone to help him. He rushes over to the baker, who is there scraping flour into a bowl, and hurls himself at her feet begging for sanctuary. Taking pity on him, she throws her baking tool into the air, and he then becomes safe from arrest as long as he stays within the space defined by her throw, remaining amid the pots and pans for several days while the terms for his release are negotiated. The questions that ensued were completely predictable.

And you thought you were learned.

Some endorsements:

"A field-changing book. Robin Chapman Stacey's approach not only offers a valuable corrective to those histories that treat legal texts as straightforward representations of practice; it also gets us out of the mire of speculation about lost manuscripts, dating, and provenance."—Emily Steiner, University of Pennsylvania

"Drawing on research into the poetry, narrative, and biography of the period, as well as its law and literature, Robin Chapman Stacey argues that the corpus of medieval Welsh Law known as Cyfraith Hywel Dda is a political document emerging from a changing thirteenth-century Wales in which the nobility and learned classes felt themselves and their traditions threatened by English cultural influence and political power on one hand, and the expanding pretensions of Welsh princes on the other."—Catherine McKenna, Harvard University

--Dan Ernst

Balkin on the Cycles of Constitutional Time

Jack M. Balkin, Yale Law School, has posted Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time:

Over the course of a little more than a century, American liberals (or in an earlier period, progressives) and conservatives have switched positions on judicial restraint, judicial review, and the role of the federal courts – not once, but twice. This cycling has multiple causes, including changes in the Supreme Court's docket and partisan strategies for judicial appointments.

Behind the composition of the Court's docket and the judicial appointments process, however, is a still deeper cause: the slowly changing structure of national party competition in the United States. Throughout American history national politics has been organized around a series of political regimes in which one party is dominant and sets the basic agenda for political contest. The dominant party also usually has more opportunities to shape the federal judiciary. Eventually the dominant party’s coalition falls apart and a new regime begins, led by a different party. This has happened six times in our nation's history, and we appear to be on the cusp of a seventh transformation.

Generational shifts in views about judicial activism and judicial restraint mirror the rise and fall of political regimes led by dominant parties. The kinds of the cases the Justices select, and how the Justices exercise their powers of judicial review, reflect whether we are early in the regime, in its middle years, or in its later days. For this reason, the rise and fall of regimes shapes partisan (and ideological) attitudes about the exercise of judicial review.

Early in a regime, the newly dominant party faces opposition from judges appointed by the old regime and obstacles from the constitutional jurisprudence those judges created. Hence its supporters tend to be more skeptical of judicial review. As the dominant party gains control of the courts, however, its followers increasingly recognize the importance of judicial review to promote and protect the party's commitments of ideology and interest. The positions of the two parties are symmetrical: as time goes on, the dominant party relies ever more heavily on judicial review to further its goals, while the other party gradually loses faith in the courts and increasingly preaches judicial restraint--although neither party entirely gives up on using the courts to promote its favored policies. As a political regime moves from its beginning to its conclusion, the positions of the two parties gradually switch, and so too do the views of legal intellectuals associated with the parties. The effect, however, is generational, and not everyone changes sides: older legal intellectuals may cling to their long-held beliefs about judicial review, while younger thinkers adopt a different perspective.

Constitutional theories – such as originalism and living constitutionalism – also evolve to reflect changing views about judicial review and judicial restraint. For example, while conservative originalism began as a justification for judicial restraint, it soon evolved to justify strong judicial review; the same thing happened to living constitutionalism earlier in the twentieth century.

--Dan Ernst.  H/t: Legal Theory Blog

The Constitutional Legacy of Seneca Falls

Elizabeth Cady Stanton & Susan B. Anthony (LC)

The Constitutional Legacy of Seneca Falls, a podcast of the National Constitution Center, is now available.  It “explores what happened at the historic convention, and how its legacy shaped the Constitution through the fight for women’s suffrage and the 19th Amendment and, later, landmark gender equality and reproductive rights cases, including Roe v. Wade.” With Erika Bachiochi, Ethics & Public Policy Center, and Tracy A. Thomas, University of Akron School of Law.  Hosted by Jeffrey Rosen.

--Dan Ernst

The Dartmouth College Case Continued

That symposium over at the HistPhil on Dartmouth College v. Woodward, with contributions by Naomi Lamoreau, Evelyn Atkinson, et al. is ongoing.  The latest is by Jane Manners, who this year is an associate in law at Columbia Law School.  Her post commences:

Dartmouth College v Woodward is, as every first-year law student knows, a contract case. Its canonical holding distinguished public corporations from private ones and established that where private corporations are concerned, a legislative charter is a contract, protected from legislative interference by the Constitution’s contract clause. But Dartmouth College has another legacy, which I’ll call its law-of-the-land legacy: the idea that laws ought to be “general and impartial,” and that laws that bestow unique benefits or burdens to particular persons or segments of society are ipso facto illegitimate. Despite the textbooks’ contract clause focus, Dartmouth College’s law-of-the-land legacy has shaped the legislature’s power to advance the public good and its relationship to philanthropy as much as, if not more than, its charter-as-contract holding.

More. 

--Dan Ernst

Kadens on Reputation's "Dark Side"

Emily Kadens, Northwestern University School of Law, has posted The Dark Side of Reputation, which appears in the Cardozo Law Review 40 (2019): 1996-2027:

Reputation is the foundation of theories of private ordering. These theories contend that commercial actors will act honestly because if they do not, they will get a bad reputation and others will not want to do business with them in the future. But economists and scholars of networks increasingly realize that reputation has its defects. Mixed in with trustworthy and useful reputation information on which commerce of all sorts relies is inaccurate, distorted, misguided, or outright fraudulent information. Much of the existing literature about reputation’s flaws focuses on unintentional distortions caused by biases, the requirements of social niceties, and the dearth of fully representative information. This Article, by contrast, approaches the problem of the distortion of reputation from the dark side. It uses a rich set of sixteenth- and seventeenth-century English court cases and merchant correspondence to examine how the deliberate manipulation of reputation, and, importantly, people’s failure to verify the gossip and rumors creating such reputation, enabled fraud. It turns out that reputation was “a complex process,” even in interconnected early modern markets in which merchants did business face-to-face and participated in active gossip networks. Even being caught, tried, and found guilty of a serious fraud did not necessarily undermine one’s business and perceived trustworthiness in these networks, which raises questions about how much the merchants depended upon reputation when making decisions about whom to trust.

--Dan Ernst

Woods on Estee's Reports in Hawai'i, 1903-17

Roberta F. Woods, Reference & Instructional Services Librarian at the University of Hawaii School of Law, has posted on SSRN a short piece about an early case reporter in the Hawaiian territory. Here is the abstract for "History of the Four Volumes of Decisions of the United States District Court for the Territory of Hawaii 1903-1917" (2016):

The so-called "Estee's Reports," named for Judge Morris March Estee was an early case reporter in the Hawaiian Territory. Only four volumes of decisions of the United States District Court (USDC) for the Territory of Hawaiʻi were ever printed. They span the years 1903-1917. The decisions in these volumes do not appear in the Federal Reporter covering the same time frame. The Federal Supplement, a West Publishing created reporter of decisions of the federal district courts began in 1933. Prior to 1933, federal district court decisions appeared in the Federal Reporter.

Further information is available here.

--Mitra Sharafi

Princeton Seeks Associate or Full Professor, Legal History of the U.S.

We have the following call for applications from Princeton University:

Legal History of the United States. Associate or Full Professor. Anticipated start date: September 1, 2020.

The Department of History at Princeton University invites applications from scholars with a strong engagement with the history of American law and society. The time period--from the colonial period to the present--and field of specialization are open, but the candidate should be prepared to offer an undergraduate survey on American legal history, as well as upper-level undergraduate courses and graduate seminars on specialized aspects of this field. Review of files will begin October 7, 2019, but applications will be considered until the department chooses to close the search. Applicants should provide a detailed letter of application, curriculum vitae, book abstract(s) and chapter outline(s), and one chapter- or article-length writing sample. Applicants should also provide contact information for at least three potential recommenders as part of the online application process. Please apply online at https://www.princeton.edu/acad-positions/position/12681 This position is subject to the University's background check policy.