Bamzai on the First Presidential For-Cause Removal

Aditya Bamzai, University of Virginia School of Law, has posted Taft, Frankfurter, and the First Presidential For-Cause Removal, which is forthcoming in the University of Richmond Law Review 52 (2018): 691-748.

William Howard Taft (1909) (LC)

In the fall of 1912—while one of the most consequential presidential campaigns in United States history raged around them—William Howard Taft, Felix Frankfurter, and a handful of officials within the federal government initiated a process to remove two members of the Board of General Appraisers for inefficiency, neglect of duty, and malfeasance in office. The process culminated in President Taft’s for-cause dismissal of the two members, Thaddeus Sharretts and Roy Chamberlain, on the very last day that he served as President, after he received a report recommending their firing from a “committee of inquiry” that included Frankfurter.

Taft’s firing of Sharretts and Chamberlain was the first presidential for-cause removal. To this day, it remains the only time in the history of the nation that the President has expressly removed for cause an executive branch “officer of the United States” whose tenure is protected by statute after providing notice to the officer, holding a hearing, and finding that the statutory predicates for removal have been met. Taft’s action involved decisions by two individuals—Taft himself and Frankfurter—who would go on to become Justices of the United States Supreme Court and to author two of the most consequential opinions on the President's authority to remove subordinates, Myers v. United States and Wiener v. United States. It involved the construction and application of statutory language—“inefficiency, neglect of duty, or malfeasance in office”—that Congress still uses to mark some kind of “independence” from presidential control on behalf of an administrative agency. Echoes of the issues that Taft and Frankfurter confronted in 1913 may be heard in Myers and Wiener, in Justice Sutherland’s opinion for the Court in Humphrey’s Executor v. United States, and in recent controversies over the scope of the President’s power to remove subordinate officers within the executive branch.

Despite all of the foregoing, the episode has escaped scholarly attention and been the subject of no relevant legal discussion. No account of President Taft’s removal of the two Board members appears in the various treatments of the President’s removal power, or in the large literatures devoted to Taft and Frankfurter, two towering figures in American legal history. Indeed, it is widely, but mistakenly, assumed that no President has ever removed an officer for cause and that (in the words of the dissenting opinion in Free Enterprise Fund v. Public Co. Accounting Oversight Board) “it appears that no President has ever actually sought to exercise [the removal] power by testing the scope of a ‘for cause’ provision.” As a corrective, this article tells the story of Taft’s for-cause removal of the two general appraisers on his last day in office, following a process started in the midst of his 1912 reelection battle with future President Woodrow Wilson and former President Theodore Roosevelt. It then explores the episode’s implications for present-day understandings of the development of the American administrative state and the doctrine of the separation of powers.

Readers interested more generally on Taft’s oversight of executive branch officials might also consult Michael Churgin on Taft’s Bureau of Immigration in the Texas Law Review 78 (2000): 1633-59.  In that case, Taft's investigation of the Commissioner General of Immigration stopped short of removal.

Kuby, "Conjugal Misconduct: Defying Marriage Law in the Twentieth-Century United States"

Thanks to the New Books Network, we realized that we failed to notify readers about this one when it came out in February: Conjugal Misconduct: Defying Marriage Law in the Twentieth-Century United States (Cambridge University Press), by William Kuby (University of Tennessee-Chattanooga). Here's a description from the Press:

Conjugal Misconduct reveals the hidden history of controversial and legally contested marital arrangements in twentieth-century America. William Kuby examines the experiences of couples in unconventional unions and the legal and cultural backlash generated by a wide array of 'alternative' marriages. These include marriages established through personal advertisements and matchmaking bureaus, marriages that defied state eugenic regulations, hasty marriages between divorced persons, provisional and temporary unions referred to as 'trial marriages', racial intermarriages, and a host of other unions that challenged sexual and marital norms. In illuminating the tensions between those who set marriage policies and those who defied them, Kuby offers a fresh account of marriage's contested history, arguing that although marital nonconformists composed only a small minority of the population, their atypical arrangements nonetheless shifted popular understandings of marriage and consistently refashioned the legal parameters of the institution.

A few blurbs:

'The belief that marriage as an institution is in crisis is nothing new, historian William Kuby shows us in this engaging study of early twentieth-century marital nonconformists who pushed boundaries by engaging in trial marriages, serial polygamy, or interracial marriage, among other challenges to the norm. But while 'queer' couples generated a conservative backlash, Conjugal Misconduct demonstrates that even perceived challenges to the institution of marriage could serve to reinforce its power and influence in American social life.' -- Renee Romano  

'Conjugal Misconduct provides the definitive study of the 'amorphousness' of the institution of marriage between the nineteenth and early twentieth centuries. Nonconforming heterosexual couples pursued every angle to evade restrictive state laws, often crossing state lines to find a more lenient marital regime. Their acts of defiance reshaped marital legitimacy, while revealing that the law itself could not constrain conjugal choices. For anyone who still clings to notions of marriage’s static, coherent past, this deftly written and deeply researched book proves that improvisation and even chaos shaped the legal history of heterosexual marriage.' -- Rebecca L. Davis

More information is available here.

JEV-Fellowship for European Administrative History

[We have the following announcement of the JEV-Fellowship for European Administrative History.  The deadline is September 30, 2018.]

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 (JEV) [that is, Yearbook of European Administrative History], 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, and exclusively to complete their research project in as brief a period as possible to a maximum of 12 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 (MPIeR) 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 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.

First time applications for a scholarship commencing in January 2019 can be submitted until 30 September 2018. 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 MPIeR 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 MPIeR 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.

Further information are available on the website of the MPIeR.

Weiss Mueller on the 18th-c. British Empire

Hannah Weiss Mueller, Brandeis University, published Subjects and Sovereign: Bonds of Belonging in the Eighteenth-Century British Empire with Oxford University Press in 2017. From the publisher: 

In the aftermath of the Seven Years' War, when a variety of conquered and ceded territories became part of an expanding British Empire, crucial struggles emerged about what it meant to be a "British subject." Individuals in Grenada, Quebec, Minorca, Gibraltar, and Bengal debated the meanings and rights of subjecthood, with many capitalizing on legal ambiguities and local exigencies to secure access to political and economic benefits. Inhabitants and colonial administrators transformed subjecthood into a shared language, practice, and opportunity as individuals proclaimed their allegiance to the crown and laid claim to a corresponding set of protections. Approaching subjecthood as a protean and porous concept, rather than an immutable legal status, Subjects and Sovereign demonstrates that it was precisely subjecthood's fluidity and imprecision that rendered it so useful to a remarkably diverse group of individuals. 

In this book, Hannah Weiss Muller reexamines the traditional bond between subjects and sovereign and argues that this relationship endured as a powerful site for claims-making throughout the eighteenth century. Muller analyzes both legal understandings of subjecthood, as well as the popular tradition of declaring rights, in order to demonstrate why subjects believed they were entitled to make requests of their sovereign. She reconsiders narratives of upheaval during the Age of Revolution and insists on the relevance and utility of existing structures of state and sovereign. Emphasizing the stories of subjects who successfully leveraged their loyalty and negotiated their status, she also explores how and why subjecthood remained an organizing and contested principle of the eighteenth-century British Empire. 

By placing the relationship between subjects and sovereign at the heart of her analysis, Muller offers a new perspective on a familiar period and suggests that imperial integration was as much about flexible and expansive conceptions of belonging as it was about shared economic, political, and intellectual networks.

Here is the Table of Contents:

• Introduction: Of Sovereigns and Subjects 
• Chapter One: The Laws of Subjecthood 
• Chapter Two: The Free-Born Subject's Inheritance 
• Chapter Three: Real and Pretended Subjects: Mediating Subjecthood in the Mediterranean 
• Chapter Four: His Britannick Majesty's New Subjects: The Rights of Subjects in Grenada and Quebec 
• Chapter Five: The Promises and Perils of Subjecthood and Jurisdiction: Calcutta 
• Conclusion  

Further information is available here.

Sherry on Lawson and Seidman on the Constitution as a Fiduciary Instrument

Suzanna Sherry, Vanderbilt University Law School, has posted The Imaginary Constitution, which is her contribution to a symposium on "A Great Power of Attorney": Understanding the Fiduciary Constitution (University Press of Kansas, 2017), by Gary Lawson and Guy Seidman that is forthcoming in volume 17 of the Georgetown Journal of Law & Public Policy:

How many ways can conservatives spin an originalist tale to support their deregulatory, small-government vision? The answer is apparently infinite. In a new book, Gary Lawson and Guy Seidman are the latest in a long line of scholars who insist that the real original meaning of the Constitution demands unwinding the regulatory state and substantially limiting the power of the federal government. They argue that the Constitution is a fiduciary instrument, specifically a power of attorney. After summarizing the book, this essay turns to three of its most important failings, each of which serves to make the book a work of politics, not history. In the end, their account is imaginative but their Constitution is imaginary.

Simpson and Wilson's "Scottish Legal History"

We have, much too belatedly, noticed the publication of Scottish Legal History: Volume 1: 1000-1707, by Andrew R. C. Simpson and Adelyn L.M. Wilson, both Lecturers in Law at the University of Aberdeen.  The publisher, Edinburgh University Press, calls it the “first textbook on Scottish legal history from the genesis of Scots law to the Union, written from a legal perspective."

From the roots of a law that applied to all subjects of the Scottish King to the 1707 Union with England, this new legal history textbook explores the genesis, evolution and enduring influence of early Scots law. Discover how and why Scots law come into being, how was it used in dispute resolution during the medieval and early modern periods and how its authority developed over the centuries.

“Textbooks are rarely page-turners,” Paul J. du Plessis, University of Edinburgh, writes in a recent review, “but this one indeed is.”  TOC after the jump.

Agyepong, "The Criminalization of Black Children"

New from the University of North Carolina Press: The Criminalization of Black Children: Race, Gender, and Delinquency in Chicago’s Juvenile Justice System, 1899–1945 (2018), by Tera Eva Agyepong (DePaul University). The book is part of the Justice, Power, and Politics series.  A description from the Press:

In the late nineteenth century, progressive reformers recoiled at the prospect of the justice system punishing children as adults. Advocating that children’s inherent innocence warranted fundamentally different treatment, reformers founded the nation’s first juvenile court in Chicago in 1899. Yet amid an influx of new African American arrivals to the city during the Great Migration, notions of inherent childhood innocence and juvenile justice were circumscribed by race. In documenting how blackness became a marker of criminality that overrode the potential protections the status of “child” could have bestowed, Tera Eva Agyepong shows the entanglements between race and the state’s transition to a more punitive form of juvenile justice.

In this important study, Agyepong expands the narrative of racialized criminalization in America, revealing that these patterns became embedded in a justice system originally intended to protect children. In doing so, she also complicates our understanding of the nature of migration and what it meant to be black and living in Chicago in the early twentieth century.

A few blurbs:

“Agyepong’s innovative take on the role of black children in shaping juvenile justice procedures is critically important for so many fields of history, including African American history, incarceration studies, and the history of gender and sexuality.”--Marcia Chatelain 

“Agyepong makes a compelling case for the centrality of black youth to understandings of delinquency, dependency, and, by extension, criminality at the foundations of the juvenile justice system.”--Davarian L. Baldwin

More information is available here.

Mikhail on the Declaration and the Constitution

John Mikhail, Georgetown University Law Center, has posted A Tale of Two Sweeping Clauses, which is forthcoming in the Harvard Journal of Law & Public Policy.  SSRN records it as being written on July 4!

Whenever the relationship between the Declaration of Independence and the Constitution gets discussed, most of the attention naturally gravitates toward the principle of equality and natural rights background of the Declaration, which have played such important roles in American history. The question then becomes whether, and to what extent, the Constitution embodies these background principles. This Essay focuses attention on a less familiar connection between these two documents, which bears on the issue of government powers rather than of individual rights. The Essay argues that some of the most influential founders considered the Declaration to be, in effect, the “first constitution” of the United States, whose reference to the power "to do all other Acts and Things which Independent States may of right do" vested the United States with implied national powers; and that this key provision of the Declaration later inspired the "all other powers" provision of the Necessary and Proper Clause.

The Essay is a revised version of invited remarks on "The Relationship Between the Declaration of Independence and the Constitution" I presented at the 37th Federalist Society National Student Symposium at Georgetown University Law Center on March 10, 2018. A video recording of this event, including separate remarks and a panel discussion featuring Judge Thomas Hardiman and Professors Randy Barnett, Lee Strang, and Michael Zuckert, can be found on the symposium website.

Reilly on Our 19th-Century Patent System

Greg Reilly, IIT Chicago-Kent College of Law, has posted Our 19th Century Patent System, from IP Theory 7:2( 2018):

One’s view of the patent system depends on what perspective is taken. A narrow focus on the operational level of doctrinal implementation of patent law reveals significant instability and fluctuation in the patent system. A broader focus on the foundational and systemic characteristics of the patent system reveals such substantial stability for so long that the American patent system reasonably can be described as a 19th century patent system. And an even broader focus on the entire history of the American patent system reveals that this stability was only achieved after a period of significant change, diversity, and experimentation in the first few decades of the patent system. The result is a patent system disconnected in significant ways from the modern legal system but one that could be justified on the basis of stability, resilience, and the assumed wisdom of long-standing practice. At the same time, however, mistaking this long-standing practice and potential policy desirability for necessary, inherent, or mandatory features overlooks the instability, change, and diversity in the early decades of the American patent system.

Truth or Consequences: Legal History at AASLH

[As in previous years, the annual meeting of the American Association for State and Local History (AASLH) to be held September 26-29 in Kansas City will have sessions expressly devoted to legal history as well as others related in some way to the law, in keeping with its imaginative and timely theme, “Truth or Consequences.”  Here is the preliminary program; here is the link for registration; and here is a description of the legal history sessions to be held on Thursday, September 27.  H/t: Friend-of-the-Blog Joanna Grisinger.]

10:45–12 |  America’s Courts:  A Place of Truth and Consequences

Truth and consequences play out in court every day, and have since the inception of the American legal system. Two documentary films, produced by federal courts in Kansas (The American Dream in Kansas: In Their Own Words) and Indiana (And Justice for All: Indiana’s Federal Courts), explore themes of justice, truth, and consequences, both historically and in the present day.

And Justice for All explores and reenacts three significant cases from Indiana’s federal courts.  While the cases date from the 1860s to the 1970s, the topics are still very much a part of our nation’s dialogue: the right to a fair trial in the proper court, labor unions, and racism.

American Dream in Kansas: In Their Own Words presents personal stories of immigration and citizenship from around the world—stories of sacrifices, accomplishments and appreciation for newfound freedoms. Visitors are challenged to consider “what does it mean to be an American?”

After a brief introduction by the moderator, and viewing an excerpt from each film, participants will engage in small group discussions joined by the panelists. Participants will be encouraged to submit questions for the panelists to the moderator throughout the session on paper or electronically.

1:45-3:45 | Legal History Roundtable at the Whittaker U.S. Courthouse

Walk to the Whittaker U.S. Courthouse (1998), which features a public gallery and WPA murals of local river scenes. Discussion of history, education, and outreach programs, including a roundtable with the Legal History Affinity Group rounds out the session. (Picture ID required; no cell phones/wireless devices due to security regulations.)

The session will include a tour of select locations in the Whittaker U.S. Courthouse. The Bell Room Historical Gallery includes exhibits about landmark cases, court procedure, the federal courts’ role in naturalization, and the experience of being a juror. The jury assembly reception area contains two mural paintings completed in 1934 under the Public Works of Art Project (PWAP). The first, painted by Emanuel Shane, depicts Kansas City Missouri's river landing area in the 1850’s. The second, by Walter Alexander Bailey, shows the former Watts Mill.

A judge will address the group about landmark cases, likely including the Swope Park pool desegregation case, Williams v. Kansas City, Mo., 104 F. Supp. 848 (W.D. Mo. 1952). Future U.S. Supreme Court Justice, then chief attorney for the NAACP, Thurgood Marshall filed the case on behalf of three African-American plaintiffs, who had been denied entry tickets to Swope Pool. During the appeal process, the pool was shut down, allegedly to avoid violence occurring elsewhere in similar disputes. In the end, the case overturned the separate-but-equal doctrine for Kansas City pools, shortly before the Brown v Board of Education decision.

All participants are invited to participate in a roundtable discussion of education, outreach, interpretation, collections, and other issues related to legal history.

Weekend Roundup

• Aditi Bagchi, Fordham Law, reviews Anne Fleming’s City of Debtors: A Century of Fringe Finance, on Jotwell.  “Fleming ably guides us through the vicissitudes of regulating the small loan industry,” Professor Bagchi writes.  “We do not emerge with any clear sense of a regulatory solution. Instead, we learn the limits of bettering a transaction by way of contractual limitations.” 

• Also on JOTWELL, Reuel Schiller (UC Hastings) recommends Kim Phillips-Fein's Fear City: New York's Fiscal Crisis and the Rise of Austerity Politics (2017). "Fear City is not only a page-turning political history of the fiscal crisis," Schiller writes. "Phillips-Fein has also written an exceptional piece of legal history. Indeed, law courses through the veins of this book. Be it bankruptcy law, the law of municipal finance and taxation, or constitutional law, legal concepts are the armature upon which the story of the fiscal crisis hangs."

• The new-look Perspectives on History of the American Historical Association includes the feature “From the National History Center: Perspectives Daily.”  Just out in it is Fishing for Loan Sharks: Small-Sum Lending Reform over Time, by the aforementioned Anne Fleming, Georgetown Law.

• This news report made us think that Sam Erman’s Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire, heralded on the Studies in Legal History’s website, can’t get here soon enough.

• On Monday, July 30, 6:30 pm at Shaw Library in Washington, DC, "Mara Cherkasky and Sarah Schoenfeld of Prologue DC will explore the long history of displacement, race, and real estate in D.C. Learn about the demands of black home seekers, civil rights attorneys, and fair housing advocates, and the legacy of their efforts."  H/t: DC Public Libraries.

• Via Seth Barrett Tillman, National University of Ireland, Maynooth, here is an updated list of all the major filings in the various foreign emoluments clause cases. 

•  ICYMI: Sam Bray, Notre Dame Law, on two notes by Sir John Baker, on the Volokh Conspiracy.  Newspaper cartoonists on the Kavanaugh nomination. Adam M. Sowards on lynching in the American West for the High Country News.

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

Dinner on Vulberability as a Category of Historical Analaysis

Deborah Dinner, Emory University School of Law, has posted Vulnerability as a Category of Historical Analysis: Initial Thoughts in Tribute to Martha Albertson Fineman, which appears in the Emory Law Journal 67 (2018): 1149-1163:

Martha Albertson Fineman (ELS)

This short essay in tribute to Martha Albertson Fineman offers some initial thoughts about the significance of vulnerability theory as a category of analysis in legal history. Vulnerability theory is centrally concerned with how the state should respond to the inevitability of change over time in individual, social, institutional, and environmental circumstances. Vulnerability theory thus suggests that the law must account for temporality, making legal history central to the project of legal theory. To develop this insight, I use an illustrative example from my own scholarship: the legal construction and obfuscation of vulnerability in the U.S. welfare regime.

Giocoli on the Classical Roots of the Competition Principle

Nicola Giocoli, University of Pisa,has posted Neither Populist Nor Neoclassical: The Classical Roots of the Competition Principle in American Antitrust:

Much of the current critical views on American antitrust law focus on a supposed misinterpretation by modern, welfare-driven antitrust enforcers of the true meaning of the competition principle. The paper contributes to the debate by reconstructing the principle’s historical origin. While it did not feature in the Sherman Act, the competition principle was introduced by the Supreme Court during the formative era of antitrust law. Between 1897 and 1911 the Court proposed alternative versions of the principle; the one which eventually prevailed was neither populist nor neoclassical, as it was based on classical political economy and, in particular, on freedom of contract and “natural” values. Yet, this historical circumstance is not necessarily bad news for recent proposals to reform antitrust law

Molinaro on the Emergency State in Canada

Dennis G. Molinaro, Trent University published An Exceptional Law: Section 98 and the Emergency State, 1919-1936 with the University of Toronto Press in 2017. From the publisher: 

During periods of intense conflict, either at home or abroad, governments enact emergency powers in order to exercise greater control over the society that they govern. The expectation though is that once the conflict is over, these emergency powers will be lifted. 

An Exceptional Law showcases how the emergency law used to repress labour activism during the First World War became normalized with the creation of Section 98 of the Criminal Code, following the Winnipeg General Strike. Dennis G. Molinaro argues that the institutionalization of emergency law became intricately tied to constructing a national identity. Following a mass deportation campaign in the 1930s, Section 98 was repealed in 1936 and contributed to the formation of Canada’s first civil rights movement. Portions of it were used during the October Crisis and recently in the Anti-Terrorism Act of 2015. Building on the theoretical framework of Agamben, Molinaro advances our understanding of security as ideology and reveals the intricate and codependent relationship between state-formation, the construction of liberal society, and exclusionary practices.

Praise for the book:

 "An Exceptional Law: Section 98 & The Emergency State 1919-1936 is a very readable, incredibly well-researched study of Canada’s wartime-derived, but peacetime-continued sedition laws of early 20th century. But the book is of much more than historical interest. As they said in Battlestar Galactica: All this has happened before and will happen again. My copy is marked-up where I noted parallels to current immigration and anti-terror laws. … I highly recommend this book." -Craig Forcese

"A meticulously researched and well-written historical piece…. For those interested in political rights and the extent the public allows governments to determine what is and is not acceptable in the political sphere, An Exceptional Law is an excellent read." -Michael Marschal

"This superb examination of Canada’s storm-tossed years between the wars proposes a fresh interpretation of the harshly repressive and sometimes lethal legislation designed to discipline immigrants, punish radicals, and shape public opinion. Twenty-first-century readers will encounter in its pages a haunting premonition of the insecurity state that, ever since 9/11, has made dissent difficult – yet all the more necessary. This book is an indispensable addition to our understanding of freedom and repression in twentieth-century Canada." -Ian McKay

"An Exceptional Law is an important addition to the scholarly literature on several subfields of Canadian history. Dennis G. Molinaro’s scholarship is excellent." -Jim Mochoruk

Further information is available here.

Revista Jurídica Precedente 13:2

[We have word of the publication in Spanish and as a free download of the second of two issues of volume 13 (July-December 2018) of Revista Jurídica Precedente, a publication of the Universidad Icesi of Colombia.  Andrés Botero Bernal, Universidad Industrial de Santander, Bucaramanga, and Mario Alberto Cajas Sarria, Universidad Icesi, Cali, are the guest editors.]

Historia del Derecho en América Latina II. Editores invitados: Andrés Botero Bernal (Universidad Industrial de Santander, Bucaramanga) y Mario Alberto Cajas Sarria (Universidad Icesi, Cali).  Publicado: 2018-07-03

Presentación

Presentación: Historia del Derecho en América Latina II
Andres Botero Bernal, Mario Cajas Sarria

Artículos

El Invite Ilustrado. Real lotería y proyectos de poder en el siglo XVIII
Carlos Petit
        
Economía, moral y derecho en la Europa cristiana: Justo precio, usura y capitalismo mercantil (siglos XII-XVIII)
Marcela Castro Ruiz
        
La evolución histórica del control de constitucionalidad en Bolivia y su proyección hacia un modelo plural
Alan E. Vargas Lima
        
Orígenes del Consejo de Estado
Armando Martínez Garnica
        
Derecho de la persona transexual en Brasil
Patrícia da Silva Morais
        
Las críticas al derecho romano en Cuba durante la primera mitad del siglo XIX. A Propósito de la modernización de la enseñanza y la ciencia jurídica
Fabricio Mulet Martínez        

Nova et vetera

Crédito público, derecho mercantil y arte del grabado
Andrés Botero Bernal
     
El crimen de herejía y su represión inquisitorial
Elisa Álvarez Díaz

Ransmeier on Human Trafficking in China

Johanna Ransmeier, University of Chicago has published Sold People: Traffickers and Family Life in North China with Harvard University Press. From the publisher: 

A robust trade in human lives thrived throughout North China during the late Qing and Republican periods. Whether to acquire servants, slaves, concubines, or children—or dispose of unwanted household members—families at all levels of society addressed various domestic needs by participating in this market. Sold People brings into focus the complicit dynamic of human trafficking, including the social and legal networks that sustained it. Johanna Ransmeier reveals the extent to which the structure of the Chinese family not only influenced but encouraged the buying and selling of men, women, and children. 

For centuries, human trafficking had an ambiguous status in Chinese society. Prohibited in principle during the Qing period, it was nevertheless widely accepted as part of family life, despite the frequent involvement of criminals. In 1910, Qing reformers, hoping to usher China into the community of modern nations, officially abolished the trade. But police and other judicial officials found the new law extremely difficult to enforce. Industrialization, urbanization, and the development of modern transportation systems created a breeding ground for continued commerce in people. The Republican government that came to power after the 1911 revolution similarly struggled to root out the entrenched practice. 

Ransmeier draws from untapped archival sources to recreate the lived experience of human trafficking in turn-of-the-century North China. Not always a measure of last resort reserved for times of extreme hardship, the sale of people was a commonplace transaction that built and restructured families as often as it broke them apart.

Praise for the book:

“This brilliant exposé—no other word will do—concentrates on late Qing (or Manchu) China at the end of the 19th century, when trafficking was illegal but the laws were widely ignored or too vague. Ransmeier pursues the subject into the era of the post-1911 Republic, and on to Mao’s China, where the Communist Party’s one-child policies put a new kind of pressure on the family. As Ransmeier underlines, trafficking was not a system but a process, and it still is.” -Jonathan Mirsky

“Making innovative use of police and court archives dating from the late nineteenth and early twentieth centuries, Ransmeier shows that Chinese families often bought and sold family members… China today still suffers from widespread human trafficking. Ransmeier’s richly detailed stories of individual cases show how societies can come to accept the trade in people as a normal kind of business.” -Andrew J. Nathan

“Although several books touch on human trafficking as it relates to prostitution, gender issues, or famine, this is the first to focus specifically on trafficking and on the many different forms it took in late-Qing and Republican China. Meticulously researched and drawing on an impressive array of archival documents from a wide range of collections, Sold People is a rich, fascinating work.” -Kathryn Edgerton-Tarpley

“A remarkable work of social history. While cognizant of legal debates and elite discourse about slavery and trafficking, the book’s greatest strength is the way it delves into the nitty-gritty world of individual traffickers and their individual victims that emerge from local yamen and police records. Sold People marks Johanna Ransmeier as a leader in the new generation of social historians of China.” -Ruth Rogaski

Further information is available here.

Emerson on the Major Questions Doctrine and the Progressives' Administrative State

Our faithful assistant, Google Alert, has brought to our attention the posting of a page proof of Administrative Answers to Major Questions: On the Democratic Legitimacy of Agency Statutory Interpretation, by Blake Emerson, UCLA Law.  It is forthcoming in the Minnesota Law Review.  Cribbing from the introduction:

The latest doctrinal expression of this conflicted partnership between democracy and bureaucracy is the major questions doctrine. This doctrine is a prominent exception to the general principle of judicial deference to administrative interpretations of statutory ambiguities. Courts will normally afford agency interpretations of such ambiguities some degree of weight or deference, depending on the level of authority Congress has delegated to the agency and the formality of the procedure through which such interpretations have been issued.  However, in a series of cases in the past three decades, the Supreme Court has held that where a statutory ambiguity raises a question of great “economic and political significance,” it will presume that Congress did not intend the agency to resolve the issue. Instead, the Court will resolve the ambiguity itself, without giving any weight or deference to the agency’s position.

One of the invocations of the doctrine Professor Emerson discusses is U.S. Supreme Court nominee Brett Kavanaugh’s dissent in the net neutrality case, U.S. Telecom Ass’n v. FCC, 855 F.3d. 382 (D.C. Cir. 2017). 

Professor Emerson ranges quite widely in evaluating the major questions doctrine.  Of special interest for legal historians is Part IV of the article, “The Progressive Theory of the Administrative State.”  This draws upon his forthcoming book, The Public’s Law: A Progressive Vision of American Democracy, which is under contract with the Oxford University Press.

Macias, "Utilitarian Constitutionalism: A Comparison of Bentham & Madison"

Steven J. Macias (Southern Illinois University School of Law) has posted "Utilitarian Constitutionalism: A Comparison of Bentham & Madison." The article appears in the NYU Journal of Law & Liberty 11, no. 3 (2018). Here's the abstract:

Jeremy Bentham (1748–1832), the father of modern utilitarianism, had much in common, ideologically, with James Madison (1751–1836), the father of the U.S. Constitution. This Article is an attempt to bridge the literature on the two figures and to show that knowledge of Bentham’s constitutional theory is useful in understanding the intellectual environment that produced the U.S. Constitution. Although lawyers’ knowledge of Bentham might be limited to catchphrases such as, “nonsense upon stilts,” or concepts associated with modern surveillance technology like the Panopticon (his design for a prison), Bentham was a serious legal and political philosopher. His interests extended to the United States, so much so, that he engaged in serious analysis of the U.S. Constitution and communicated with leading American politicians, including Madison, Benjamin Franklin, John Jay, Aaron Burr, and John Quincy Adams. This Article demonstrates the similarities of thought between Bentham and Madison and argues that the Constitution is best viewed as a document inspired by, and compatible with, the rationalism represented by English utilitarianism.

The full article is available here.

Vatlin on state-sponsored violence in the USSR

We missed this one in 2016. Agents of Terror: Ordinary Men and Extraordinary Violence in Stalin's Secret Police by Alexander Vatlin, Moscow State University has been edited and translated by Seth Bernstein and published by the University of Wisconsin Press. From the press:

In the Great Terror of 1937–38 more than a million Soviet citizens were arrested or killed for political crimes they didn't commit. What kind of people carried out this violent purge, and what motivated them? This book opens up the world of the Soviet perpetrator for the first time. Focusing on Kuntsevo, the Moscow suburb where Stalin had a dacha, Alexander Vatlin shows how Stalinism rewarded local officials for inventing enemies. 

Agents of Terror reveals stunning, detailed evidence from archives available for a limited time in the 1990s. Going beyond the central figures of the terror, Vatlin takes readers into the offices and interrogation rooms of secret police at the district level. Spurred at times by ambition, and at times by fear for their own lives, agents rushed to fulfill quotas for arresting “enemies of the people”—even when it meant fabricating the evidence. Vatlin pulls back the curtain on a Kafkaesque system, forcing readers to reassess notions of historical agency and moral responsibility in Stalin-era crimes.

Praise for the book: 

“Groundbreaking. In the first detailed description of Stalin’s mass terror, Vatlin unfolds the day-to-day working of the Soviet political police who carried out orders to select, arrest, interrogate, and often murder their fellow citizens. An absorbing, heartrending account.” -David Shearer

“Although the literature on the Great Terror has improved markedly over the past twenty-five years, only a handful of case studies consider how the purges took place at the grassroots level. Thankfully, Alexander Vatlin’s pathbreaking work has now become available to English-speaking audiences. One can only hope that Agents of Terror will inspire more research on the purge’s perpetrators and victims as well as on the broader sociology of this brutal period.” -David Brandenberger

“A sensationally significant, detailed microhistory of Stalin’s Great Terror, based on the criminal files of NKVD agents who were arrested as scapegoats at the end of the terror—what some historians have called the purge of the purgers.” -Lynne Viola

Further information is available here.

Primus’s Long View of the American Republic

Richard Primus, University of Michigan Law School, has posted The Republic in Long-Term Perspective, which is forthcoming in the Michigan Law Review:

This essay explores the threat that the Trump Administration poses to the Republic from a long-term constitutional-regime perspective. It offers a relevant conception of "the Republic," differentiates between different types of threats that the Republic could face, and addresses the possibility that government under the U.S. Constitution has already proceeded through multiple Republics. It then describes the long-term relationship between partisan politics and constitutional conflict. In the Constitution's first century, political parties often understood each other as threats to the constitutional order itself, rather than as legitimate alternatives within a common constitutional framework. In the Constitution's second century, a legitimate-alternatives model prevailed. In the third century, for reasons here described, something like the first model has reasserted itself. That reassertion has made the Trump Administration possible, and under the conditions of the first model the Trump Administration can do enormous damage to the Republic. But it is also the case that the present predicament could lead to a substantial improvement in the constitutional order: it depends on what happens after Trump. And whatever does follow Trump will be different from the particular arrangements that existed during the Constitution's second century. People who regard the Trump Administration as a grave danger must accordingly be thinking not about how to restore the conditions that went before but how to adapt the Republic's characteristics for a world of new conditions.

H/t: Legal Theory Blog

Samito, ed., "The Greatest and the Grandest Act: The Civil Rights Act of 1866 from Reconstruction to Today"

New from Southern Illinois University Press: The Greatest and the Grandest Act: The Civil Rights Act of 1866 from Reconstruction to Today (May 2018), edited by Christian G. Samito. A description from the Press:

In this volume ten expert historians and legal scholars examine the Civil Rights Act of 1866, the first federal civil rights statute in American history. The act declared that all persons born in the United States were citizens without regard to race, color, or previous condition of slavery. Designed to give the Thirteenth Amendment practical effect as former slave states enacted laws limiting the rights of African Americans, this measure for the first time defined U.S. citizenship and the rights associated with it. 

Essays examine the history and legal ramifications of the act and highlight competing impulses within it, including the often-neglected Section 9, which allows the president to use the nation’s military in its enforcement; an investigation of how the Thirteenth Amendment operated to overturn the Dred Scott case; and New England’s role in the passage of the act. The act is analyzed as it operated in several states such as Kentucky, Missouri, and South Carolina during Reconstruction. There is also a consideration of the act and its interpretation by the Supreme Court in its first decades. Other essays include a discussion of the act in terms of contract rights and in the context of the post–World War II civil rights era as well as an analysis of the act’s backward-looking and forward-looking nature.

More information is available here.

Sunday Book Review Roundup

In Dissent is a review of Quinn Slobodian's Globalists: The End of Empire and the Birth of Neoliberalism.

How We Get Free: Black Feminism and the Combahee River Collective edited by Keeanga-Yamahtta Taylor is reviewed at Public Books.

James Chappel's Catholic Modern: The Challenge of Totalitarianism and the Remaking of the Church is reviewed in the Los Angeles Review of Books.

Beth Lew-Williams' The Chinese Must Go: Violence, Exclusion, and the Making of the Alien in America is reviewed in The New Republic.  Also in The New Republic is a review of Thomas Doherty's Show Trial: Hollywood, HUAC, and the Birth of the Blacklist.  Finally, Jedediah Purdy reviews Steve Fraser's Class Matters: The Strange Career of an American Delusion, Phil A. Neel's Hinterland: America’s New Landscape of Class and Conflict, and Eliza Griswold's Amity and Prosperity: One Family and the Fracturing of America,

In The New York Times is a review of Kathleen Belew's Bring the War Home: The White Power Movement and Paramilitary America.  Also in the Times is a review of Imperial Twilight: The Opium War and the End of China’s Last Golden Age by Stephen R. Platt.

James Loeffler's Rooted Cosmopolitans: Jews and Human Rights in the Twentieth Century and Michael Sfard's The Wall and the Gate: Israel, Palestine, and the Legal Battle for Human Rights are reviewed in The New York Review of Books.   Also in the NYRB, Cass Sunstein reviews Milton Mayer's They Thought They Were Free: The Germans, 1933–45 and Konrad H. Jarausch's Broken Lives: How Ordinary Germans Experienced the 20th Century.

Medieval Bodies: Life, Death and Art in the Middle Ages by Jack Hartnell is reviewed in The Times Literary Supplement.

At H-Net is a review of Ana Raquel Minian's Undocumented Lives: The Untold Story of Mexican Migration.  Also at the site is a review of Hoover's War on Gays: Exposing the FBI's "Sex Deviates" Program.  Ikuko Asaka's Tropical Freedom: Climate, Settler Colonialism, and Black Exclusion in the Age of Emancipation is also reviewed.

At the New Books Network Martha Jones speaks about her Birthright Citizens: A History of Race and Rights in Antebellum America.  Michael Belgrave discusses his Dancing with the King: The Rise and Fall of the King Country, 1864–1885.  Jennifer Miller introduces her Turkish Guest Workers in Germany: Hidden Lives and Contested Borders, 1960s to 1980s.  Keith Woodhouse speaks about his The Ecocentrists: A History of Radical Environmentalism.  Jerry Gonzales discusses his In Search of the Mexican Beverly Hills: Latino Suburbanization in Postwar Los Angeles.

Morton Keller (1929-2018)

We are very sorry to learn of the death of Morton Keller, Professor Emeritus of History, Brandeis University.  We have the following statement from the department, written by Professor Keller's colleague Michael Willrich:

The Brandeis History Department is saddened by the loss of our colleague and great friend, Morton “Mickey” Keller. Mickey was a vital presence in the department and the university from his arrival at Brandeis in the fall of 1964 through his retirement in 2001, and beyond. During that time, as his longtime colleague David Hackett Fischer recalls, he built and rebuilt the department several times over, making it better each time by recruiting historians “at the front edge of the field.” A proud veteran of the U.S. Navy, Mickey took as his great subject the history of American legal and political institutions, from the founding to the present day. Impatient with grand theories of modernization that did not square with the messier social and political realities of the American past, in his work he chronicled “the complex interplay between old and new.” He published well over a dozen deeply researched books on American public life, bringing his keen mind and lively prose to bear on subjects ranging from the nineteenth-century political cartoonist Thomas Nast to the New Deal state to the administration of Barack Obama (the latter in a book that he titled, in a typical Kellerism, The Unbearable Heaviness of Governing). During his years at Brandeis, Mickey brought the political past to life for countless undergraduates and he trained a truly stellar group of political and legal historians,who have carried the field in important new directions and trained many students of their own. A true raconteur, he loved a good joke and a fine glass of wine, which he and his wife and co-author, Phyllis Keller, shared freely in their Cambridge and Wellfleet homes with their many colleagues and friends. On the tennis court, Mickey was always driving forward, and his crosscourt forehand could be unforgiving. Of the historian’s craft, he once wrote, “My ultimate purpose is (or should be) every historian’s purpose: to apply present insight and perspective not to make the past more usable but to make it more comprehensible.” That Mickey Keller has done, many times over and very well. We shall miss him.

Here is the obituary from the Boston Globe.

Weekend Roundup

• Over at Administrative Law Blog, Cynthia Farid, a doctoral candidate at the University of Wisconsin Law School, has posted Administrative Law in Postcolonial South Asia – Some thoughts on Legal History. 

• The American Historical Association has placed our own Mitra Sharafi in its “member spotlight.”

• Congratulations to Matthew Dyson, Oxford University, upon his election as President of the of the European Society for Comparative Legal History.

• Martha S. Jones, Johns Hopkins University, discusses Birthright Citizenship on the New Books Network Podcast. She also draws on her work in an op-ed in the Washington Post, on "How to Resist Bad Supreme Court Rulings."

• Adam Winkler, UCLA Law, discussed his We the Corporations on the Knowledge@Wharton show, podcasted here.

• ICYMI: Racially restrictive covenants in Greenville, SC.  In The Guardian, Heather Cox Richardson, Boston College, argues that “New Deal-era programs are as popular now as they were in the 1950s, and voters have come to recognize that Republican policies have hurt them.”  David Greenberg, Rutgers University, in Politico, on the politics of Supreme Court nominations since LBJ, qv also this.

• Update: the Newberry has announced its long- and short-term fellows for 2018-19, including former Hurst Institute fellow, Doug Kiel, Northwestern University.

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

Deadline Extended: Cromwell Early Career Grants

[We’re reposting, as the deadline for ASLH/Cromwell Foundation Grants to Early Career Scholars has just been extended to July 20.  C’mon, folks: isn’t there some manuscript collection you need to consult?  Some data set you need to compile?  Some oral history to transcribe?]

 ASLH Cromwell Fellowships: DEADLINE EXTENDED to JULY 20

In 2018, 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 number of awards made is at the discretion of the Foundation. In the past several years, the trustees of the Foundation have made five to nine awards. Scholars who are not at the early stages of their careers may seek research grants directly from the Foundation.  For more information, see the Grants page.

Application Process for 2018

The Committee for Research Fellowships and Awards of the American Society for Legal History (ASLH) reviews the applications and makes recommendations to the Foundation. (The Cromwell Foundation was established in 1930 to promote and encourage scholarship in legal history, particularly in the colonial and early national periods of the United States. The Foundation has supported the publication of legal records as well as historical monographs.)

Applicants should submit a description of their proposed project (double-spaced, maximum 6 pages including notes; include a working title), a budget, a timeline, and a short c.v. (no longer than 3 pages). The budget and timeline can be part of the Project Description or separate. (There is no application form.) Two letters of recommendation from academic referees should be sent directly to the Selection Committee via email attachment, preferably as .pdf files. Applications must be submitted electronically (preferably in one .pdf file) no later than midnight July 20, 2018.

Please send all materials to the Selection Committee at <email>.

§  Your application should make clear the relevance of law to your project. The most successful applicants demonstrate how law (broadly construed) is at the center of their projects, and how their research will tell us something new about law.

§  Your proposal should engage with relevant scholarship in the field. While this discussion can be brief, the most successful applicants explain how their projects tell us something new.

§  Your application should have a clear budget that is specific about how and where you plan to spend research funds.

§  You will receive a confirmation email within a few days of submitting your application; if you do not receive such an email, please follow up.

Successful applicants will be notified by early November. An announcement of the awards will also be made at the annual meeting of the American Society of Legal History.

Banerjee on Sanskritic Equivalents of Law

Last June, the conference Law, Empire, and Global Intellectual History was held at Heidelberg University. The journal Modern Intellectual History has since accepted some papers presented there for a special forum of the same name.  One is now available on-line: Sovereignty as a Motor of Global Conceptual Travel: Sanskritic Equivalents of "Law" in Bengali Discursive Production, by Milinda Banerjee, Assistant Professor in Presidency University, Kolkata, India, and Research Fellow at Ludwig-Maximilians-Universitaet Munich.

Special Issue: Religion Freedom in South Asia

The special issue of Asian Affairs carrying papers from the conference on Religious Freedom in South Asia is now available here. Many of the articles take a historical approach.

Here is the Table of Contents:

• Preface – Bijan Omrani
• Introduction – Neeti Nair
• The Indian Constituent Assembly and the Making of Hindus and Muslims in Jammu and Kashmir – Mridu Rai
• Constitutional Issues and the Treatment of Pakistan’s Religious Minorities – Farahnaz Ispahani
• Secular Quests, National Others: Revisiting Bangladesh’s Constituent Assembly Debates – Dina M. Siddiqi
• Myanmar: Religious Minorities and Constitutional Questions – Christina Fink
• Religious Intolerance in Post-Civil War Sri Lanka - Neil DeVotta
• More Than Meets The Eye: The Narratives of Secularism and Islam in Bangladesh – Ali Riaz
• Unpacking the Blasphemy Laws of Pakistan – Raza Rumi
• Cow Protection and Minority Rights in India: Reassessing Religious Freedom – Cassie Adcock

CFP: Italian Society of Law and Economics

[We have the following announcement.]

The Italian Society of Law and Economics (SIDE-ISLE) welcomes submissions of papers on any topic regarding Law and Economics for its 14th annual conference to be held in Lecce at the University of Salento on December 13-15, 2018.  You can submit the paper here.

Keynote speakers will be Prof. Feldman, Yuval-BarIlan University; Prof. Marianna Belloc, University of Rome-La Sapienza; and Prof. Daniel Markovits, Yale Law School.

ISLE-SIDE invites contributions on all aspects related to Law and Economics, such as Bankruptcy, Behavioural Law and Economics, Competition Policy and Antitrust Law and Economics, Corporate Governance and Corporate Law, Criminal Law, Environmental Law and Economics, Constitutional Law and Economics, Family Law and Economics, History of Law and Economics Thought, Institutional and New-Institutional Economics, Intellectual Property, Judicial Decision-Making, Law & Social Norms, Law and Finance, Regulation, Securities Law, and Taxation.

The participation of young scholars for this year si particularly welcome.  On the first day of the conference (Thursday 13th, afternoon)  an introductory workshop will be held with the title: Meet the editor: a workshop about publishing research in Law & Economics journals (Editors of leading L&E journals will participate).  SIDE-ISLE will award the 6th Brenno Galli prize of 1000 Swiss Frank for the most promising paper presented by young scholars.  The registration fee of 100€ will be entirely refunded to all the young scholars who will register before Nov 1st and who will check-in at the registration desk during the first day of the conference  (Thursday 13th).

Submissions must be original and not yet published. People from the Local Organizing Committee and the Advisory Board will select the papers to be presented at the Conference. Priority will be given to completed papers. Given the growing number of international scholars participiating to the conference, we strongly encouraged scholars to submit their work in English. A draft or completed paper shall be submitted online through our website.

Submissions of organised sessions are also possible. For information please contact segreteria@side-isle.it

Paper submission deadline: September 9, 2018
Communication of acceptance: September 23, 2018
Final papers due by: November 1, 2018
Early Registration: November 1, 2018 (Authors must register early otherwise they are automatically excluded from the program)
Conference:  December 13-15, 2018

Bush & Tanenhaus, eds., "Ages of Anxiety: Historical and Transnational Perspectives on Juvenile Justice"

New from New York University Press: Ages of Anxiety: Historical and Transnational Perspectives on Juvenile Justice, edited by William S. Bush (Texas A&M University, San Antonio) and David S. Tanenhaus (William S. Boyd School of Law). A description from the Press:

Ages of Anxiety presents six case studies of juvenile justice policy in the twentieth century from around the world, adding context to the urgent and international conversation about youth, crime, and justice. By focusing on magistrates, social workers, probation and police officers, and youth themselves, editors William S. Bush and David S. Tanenhaus highlight the role of ordinary people as meaningful and consequential historical actors.

After providing an international perspective on the social history of ideas about how children are different from adults, the contributors explain why those differences should matter for the administration of justice. They examine how reformers used the idea of modernization to build and legitimize juvenile justice systems in Europe and Mexico, and present histories of policing and punishing youth crime.

Ages of Anxiety introduces a new theoretical model for interpreting historical research to demonstrate the usefulness of social histories of children and youth for policy analysis and decision-making in the twenty-first century. Shedding new light on the substantive aims of the juvenile court, the book is a historically informed perspective on the critical topic of youth, crime, and justice.

The table of contents is available here; the introduction, here.

Suk on Constitutional Protections of Motherhood

Julie C. Suk, Yeshiva University Benjamin N. Cardozo School of Law, has posted Gender Equality and the Protection of Motherhood in Global Constitutionalism, which appears in the Journal of Law & Ethics of Human Rights 12 (2018): 151-80:

Most of the world’s constitutions contain clauses guaranteeing sex equality, and many also extend the special protection of the state to mothers. The constitutional protection of motherhood is undertheorized and neglected in global constitutional discourse, perhaps because jurisdictions like the United States view the special protection of women as contrary to gender equality. This Essay explores the feminist meanings and possibilities of constitutional mother- hood clauses, by focusing on Germany, where they originated in 1919. While motherhood clauses have had complex relationships with a range of feminist agendas, they solidified the notion that social reproduction was a subject for constitutional lawmaking. Addressing twenty-first century gender inequalities requires a more robust engagement of women’s disproportionate burdens in social reproduction. Having opened up a constitutional discourse around the challenges of social reproduction, motherhood clauses and gender equality guarantees can drive the search for new solutions.

The Docket ISO Teaching Syllabi

The Docket, the American Society for Legal History’s on-line companion to Law & History Review, is seeking to build a syllabus repository.  “Interested contributors should send a brief bio, syllabus, and a description of the student audience (e.g. law students, history graduate students, undergraduates), or questions about the project, to Michan Connor, Associate Editor for Digital Projects, at michan.connor@gmail.com.”

Olivelle, Davis and friends on Hindu law

Patrick Olivelle and Donald R. Davis, both of the University of Texas at Austin, have published the co-edited volume, The Oxford History of Hinduism: Hindu Law. A New History of Dharmasastra with Oxford University Press. From the publisher:

Through pointed studies of important aspects and topics of dharma in Dharmasastra, this comprehensive collection shows that the history of Hinduism cannot be written without the history of Hindu law. Part one provides a concise overview of the literary genres in which Dharmasastra was written with attention to chronology and historical developments. This study divides the tradition into its two major historical periods -- the origins and formation of the classical texts and the later genres of commentary and digest -- in order to provide a thorough, but manageable overview of the textual bases of the tradition. Part two presents descriptive and historical studies of all the major substantive topics of Dharmasastra. Each chapter offers readers with direct knowledge of the debates, transformations, and fluctuating importance of each topic. Readers will also gain insight into the ethos or worldview of religious law in Hinduism, enabling them to get a feel for how dharma authors thought and why. Part three contains brief studies of the impact and reception of Dharmasastra in other South Asian cultural and textual traditions. Part four draws inspiration from "critical terms" in contemporary legal and religious studies to analyze Dharmasastra texts. Contributors offer interpretive views of Dharmasastra that start from hermeneutic and social concerns today.

Praise for the book: 

 "[T]his is a work that will inform the field for decades to come." -Brian A. Hatcher

Table of Contents after the jump:

RFP History of Mitchell Hamline School of Law

[The following announcement is the first time we've heard of a grant by a state historical society to a law school to support the preservation of its history--and that of the state it principally serves.]

Mitchell Hamline School of Law issues this request for proposals from qualified organizations to implement a $60,000 Partnership grant received from the Minnesota Historical Society. As part of the combination of Hamline University School of Law and William Mitchell College of Law, Hamline and the new entity, Mitchell Hamline, committed to the creation of a history center to preserve the rich legacy of each law school and predecessor schools, and the impact of faculty, staff, and over 20,000 lawyer alumni on the course of Minnesota legal history. The history center will help its constituents, its neighbors, and the wider Minnesota community understand the new institution’s colorful origins, subsequent significant historical events, its impact on its surrounding community, and its contributions to ever-evolving legal education.

More.

Lehavi on Commons and Anti-Commons in Israel

Amnon Lehavi, Interdisciplinary Center Herzliyah , Radzyner School of Law, has posted Re-Romanticizing Commons and Community in Israeli Discourse: Social, Economic, and Political Motives, which is forthcoming in Theoretical Inquiries in Law:

Public discourse in Israel is taking a somewhat surprising turn in its vacillation between individualism and collectivism. While mainstream public opinion in the 1980s and 1990s pointed to the failures of common- and public-property regimes, elected officials, entrepreneurs, and consumers are nowadays singing the praises of commons and communities. The re-romanticizing of commons and community is driven by a number of explicit and implicit motives, which also underscore, however, the limits of a full-fledged return to common property regimes. This article highlights three instances of the reemergence of the commons- and community-discourse across the Israeli landscape.

First, while the old-style “cooperative kibbutz” suffered a substantial decline in past decades, the evolution of a new type of midlevel communitarianism in the “renewing kibbutz” has led to a growing demand to join the ranks of such kibbutzim.

Second is the development of urban shared office-space compounds such as WeWork, and the next phase of urban commons: co-living buildings.

Third, the emergence of “community villages” on state-owned lands, located mostly in Israel’s peripheral areas, has been praised by governmental agencies and residents alike as restoring a key role for community for middle-class families. But this advocacy may also be driven by exclusionary social and political motives, as applicants may be turned down based on open-ended criteria, such as “incompatibility with social life in the community” or incongruity with its “social-cultural texture.”

These case studies serve as a basis for offering new theoretical tools for thinking about the commons, fifty years after The Tragedy of the Commons presented their apparent failures. A fresh theory of commons and community could highlight how the revived discourse attests to the need to design a new set of balances between the perils of commons and anticommons, between values of anonymity and familiarity, and between governance by hierarchy and egalitarian rules.

JLH 39:2

The Journal of Legal History, 39:2 (2018) is now available online.  The first article, by Donal Coffey, is “gold access”–that is, downloadable without charge.
‘The Right to Shoot Himself’: Secession in the British Commonwealth of Nations
Donal K. Coffey

The ultimate test of whether an association is voluntary or not is if you can leave it. It is difficult, at this remove, to appreciate how live an issue secession from the British commonwealth of nations was in the 1920s and 1930s. It occupied an inordinate amount of time and negotiation for a doctrine that had been ostensibly conceded in 1920. Yet, much as with the case of the appeal to the judicial committee of the privy council, once the dominions sought to take advantage of the freedom which had been guaranteed by official statements, they found a formidable amount of diplomatic pressure and legal opinion brought to bear to indicate that no such right could be officially declared. This article traces the evolution of the arguments about the right to secede in the 1930s, and examines how the right came eventually to be exercised in the case of the new commonwealth countries in the 1940s. It concludes by examining how the doctrine of secession as developed in the 1930s was abandoned in order to retain Indian membership in the commonwealth.

Judging a Judge: A Reappraisal of Lord Mansfield and Somerset’s Case
Alexander Jackman

This article presents an occasion on which moral judgement can, and should, take place. When the chief justice of the court of king’s bench – William Murray, first earl of Mansfield – was presented with the case of Somerset v Stewart in 1772, he was presented with choices that unveiled aspects of his character. By first establishing the ambiguity of the legal context and the multifarious political pressures that preceded Somerset’s case, this article identifies the extent of Lord Mansfield’s ‘room for manoeuvre’ with respect to three elements of his conduct: the delay and reluctance in making a decision, the choices regarding the substantive decision and the manner of expressing that decision. To what extent did Mansfield have freedom of action, and how did he exercise it? Are those free actions worthy of praise or condemnation? Through an essential questioning of previous historians’ assumptions and omissions, this article sharpens the strokes through which a complex portrait of Mansfield may be rendered

The Failure of the First Income Tax: A Tale of Commercial Tax Evaders?
Katherine Cousins

This article constitutes a re-examination of the financial failure of the first income tax in Britain, introduced in 1799 in order to address the rising cost of the French revolutionary wars. In accounting for this failure, the existing literature has focused largely on failings in the administration of the tax, often blaming, for example, its emphasis on local responsibility for tax collection, and its reliance on the honesty of its contributors. This article furthers these interpretations by highlighting that such issues were particularly problematic in their application to the commercial sector of society. It argues that the preferential treatment of commercial interests in the substance of the tax, on account of their privileged position in the political sphere, led to the establishment of a culture of commercial evasion. The evidence for this is examined at length, through both detailed analysis of the yield of the tax, as well as the attitudes of contemporaries evident in the literature at the time. This analysis ultimately leads to the conclusion that commercial evasion of the first tax played a pivotal, and hitherto underplayed, role in the financial underperformance of the tax.

Constitutional Rights in the Irish Home Rule Bill of 1893
Tom Allen

In 1893, Prime Minister Gladstone introduced the second Irish home rule bill in parliament. The bill broke with tradition in Britain and the empire, as it included provisions from the bill of rights of the United States. Its significance was clear at the time: it was debated for nine days in the committee stage and, with one minor amendment, it remained part of the bill that passed the Commons. However, the bill was defeated in the Lords and, at least in the United Kingdom, bills of rights were dismissed as unnecessary or detrimental to sound governance until well after the second world war. This article therefore tries to understand how this early bill of rights was regarded at the time. Who suggested, or demanded, its inclusion? How did they expect it to be applied? And how did the debate reflect and influence thinking about constitutional law in Britain and the empire

Book Reviews

Lawyers' Empire, Legal Professions and Cultural Authority, 1780-1950
Catharine MacMillan

Law in Theory and History: New Essays on a Neglected Dialogue
Cerian Charlotte Griffiths

Constitution-making in Asia: Decolonisation and State-building in the Aftermath of the British Empire
Donal Coffey