Tuesday, March 19, 2024

Siegel & Ziegler on "Comstockery in the Court and on the Campaign"

Over at Balkinization, Reva Siegel (Yale Law School) and Mary Ziegler (UC Davis School of Law) report that they "have just posted Comstockery on SSRN, the first legal history of the Comstock Act since the antiabortion movement began arguing for reviving enforcement of the law in the wake of Dobbs v. Jackson Women’s Health Organization."

The posting is timely. They explain:

On March 26, Food and Drug Administration v. Alliance for Hippocratic Medicine will return to the Supreme Court. Representing the Alliance, the Alliance Defending Freedom (ADF), a leader of the Christian legal movement that has played key roles in 15 Supreme Court cases, including Dobbs and 303 Creative v. Elenis, has challenged the FDA’s authority to approve mifepristone, a drug used in more than half of all abortions, under the relevant laws and regulations. ADF has further sought to overturn several subsequent FDA decisions, including one in 2021 permitting the use of telehealth for medication abortion. In the case now before the Court, ADF argues that the removal of an in-person-visitation requirement was arbitrary and capricious under the APA. ADF also makes a Comstock claim against the 2021 modification, asserting that the plain meaning of the statute bars the mailing of any abortion-related article. This argument has received attention from conservative judges, including Judge James Ho of the Fifth Circuit; in the district court, Judge Matthew Kacsmaryk granted a motion for preliminary injunction in the spring of 2023 that would have withdrawn the approval of mifepristone, reasoning that the statute plainly declares “nonmailable” anything “advertised or described in a manner calculated to lead another to use it or apply it for producing abortion.

The authors' Balkinization post continues here. The full article is available here, at SSRN.

-- Karen Tani


Monday, March 18, 2024

JSCH 49:1

The Journal of Supreme Court History, 49:1, has been published.  Here is the TOC:

Introduction
Timothy S. Huebner

“This Law, Though Dead, Did Speak”: The Civil Rights Cases and their Unforeseen Aftermath
Joseph A. Ranney

How to Avoid Dictatorship: The Public Debate Over Franklin D. Roosevelt’s Court-packing Plan and Its International Context
Leon Julius Biela

Caustic, Comical, Candid, and Insightful Commentary from Chief Justice William Howard Taft, 1921–1929: Excerpts
Jonathan Lurie

Drew Pearson’s “Predictions”: Assessing the Stone Court’s Press Leaks
Abby R. West

Two Views on Court-Packing
Melvin I. Urofsky

[Professor Urofksy reviews Laura Kalman’s FDR’s Gambit: The Courtpacking Fight and the Rise of Legal Liberalism (Oxford University Press, 2022) and Michael Nelson’s Vaulting Ambition: FDR’s Campaign to Pack the Supreme Court (University Press of Kansas, 2023).]

--Dan Ernst

Saturday, March 16, 2024

Weekend Roundup

  • We note the passing of the constitutional historian Herman Belz, Professor Emeritus in the Department of History at the University of Maryland
  • Eric Foner reviews Dylan C. Penningroth’s Before the Movement: The Hidden History of Black Civil Rights (NYRB). 
  • Melville Fuller (LC)
    "On April 11, 2024, at 6:15 pm, the [Supreme Court Historical] Society and Dacor-Bacon House Foundation will co-host a lecture on Chief Justice Melville Fuller with author Douglas Rooks, [who will speak on the Insular Cases.]  The event will be held at the historic Dacor-Bacon House in the Foggy Bottom neighborhood of Washington, DC. Tickets are $35 to attend in person and $10 to attend virtually."  Register here.
  • Congratulations to Gerard N. Magliocca, the Samuel R. Rosen Professor of Law at the Indiana University Robert H. McKinney School of Law, upon his naming as a Distinguished Professor at Indiana University. 
  • Brandon Terry, the John L. Loeb Associate Professor of the Social Sciences at Harvard University, delivered the inaugural Catharine Wells Memorial Lecture in Jurisprudence at the Boston College Law School on February 26.  Professor Terry drew upon his book, The Tragic Vision of the Civil Rights Movement: Political Theory and the Historical Imagination.
  • ICYMI: UC Berkeley student brings to light stories of LGBTQ+ Japanese Americans incarcerated during WWII  (Berkeley Library).  Library archives uncover long-lost history of Colorado women dying trying to get an abortion (CPR).  “Women’s Work” Powers the Economy—And Has Always Been Undervalued (Time).

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

Friday, March 15, 2024

CFP: Northwestern Law Review's Empirical Issue

[We have the following announcement.  DRE]

The Northwestern University Law Review (NULR) is proud to be opening submissions for the seventh annual empirical issue! NULR is exceptional among flagship law reviews in the United States in that it publishes an annual issue fully dedicated to empirical legal scholarship. We seek to bring cutting-edge, interdisciplinary, empirical work to our legal audience, and enrich our understanding of the law, legal actors, and legal doctrine through robust and reliable examination of qualitative, quantitative, and mixed-method data. Publication at our Journal is especially of interest to authors who would like to benefit from an expedited publication timeline, have their work peer-reviewed from specialists in the field, be supported by a dedicated team of editors who can assist in sharpening the piece’s contribution for the legal audience, and who seek to have their work make impact on legal policy and advocacy in the United States. To provide some examples, we have previously published work evaluating racial bias in police stops, an examination of duplicative proceedings in international litigation, and a field experiment assessing incidence of judicial recusals when potential conflicts of interest come to light. You can find our past empirical issues here.

The exclusive submission window for the Volume 119 Empirical Issue of the Northwestern University Law Review will open on March 18, 2024, and run until April 30, 2024. A subset of submissions will be selected to move forward to peer review. The Law Review will make every effort to notify authors of rejection or of advancement to peer review by mid-July 2024. Final publication decisions will be issued by mid-August 2024, with the publication date set in March 2025.

Submitted publications must be between 15,000 and 30,000, and conform generally to the style and formatting expectations that are common to law reviews. For more information, please visit our website: Empirical Issue or reach out to Alisher Juzgenbayev, Senior Empirical Editor for the Northwestern University Law Review at alisher.juzgenbayev@law.northwestern.edu.

[The editor tells us that “empirical” includes “methodologies employed in legal history, including archival and ethnographic work.”]

Thursday, March 14, 2024

Little on Law Libraries in Early Indiana

Lee R. Little, Research and Instructional Services Librarian, Ruth Lilly Law Library, Indiana University Robert H. McKinney School of Law has published Work Hard and Die Poor: The History of Law Libraries in Indiana in the Indiana Law Review 57 (2023): 97-138:

Isaac Blackford (wiki)
 Printed legal materials have been utilized by practitioners since the dawn of the Anglo-European legal system in what is now the United States. When Indiana was opened for settlement, attorneys and judges brought their private libraries to the state. These initial collections were much smaller than the robust and extensive law libraries that existed in the state prior to the advent of digital legal resources. This paper tracks the development of law libraries in Indiana from the territorial period through the present day, along with the social and economic trends that impacted library development.

--Dan Ernst

Wednesday, March 13, 2024

Smith on History as Precedent

Michael L. Smith, St. Mary's University School of Law, has posted History as Precedent: Common Law Reasoning in Historical Investigation, which is forthcoming in the University of Pennsylvania Journal of Constitutional Law:

The United States Supreme Court frequently looks to history when interpreting the Constitution. On some occasions, it does so to determine the original public meaning of the Constitution’s text. Other times, it looks to historical traditions recognizing or restricting rights. The Court emphasizes the objectivity of these historical methods, contrasting them with alternate approaches the Court casts as dangerously manipulable. But the Court’s resort to history is virtually identical to alternate methodology the Court purports to avoid—namely, reasoning and arguing from precedent. Skilled advocates craft favorable rules from precedent, and portray dubious precedent as controlling and unfavorable precedent as irrelevant. The Court does the same with historical evidence, framing inquiries to all but guarantee favored outcomes. Contrary evidence is minimized or deemed irrelevant under unspoken, malleable standards. In short, the Court treats history as precedent.

The Court’s manipulation of history raises profound concerns beyond those typically associated with the manipulation of case law. While precedent may be manipulated, its use is subject to an array of rules and norms, including rules of controlling and persuasive precedential value, recognition of the difference between holdings and dicta, and standards for when precedent may be overruled. Historical evidence lacks these norms. Additionally, most legal actors also lack the expertise, resources, and incentives necessary for rigorous historical analysis, increasing the probability of mistaken conclusions. In the face of these problems, I propose two ways forward. Courts can recognize that they are treating history as precedent and develop rules for the process, including rules for sufficiency of evidence, relevance, and persuasive value. Or courts can instead take history seriously and subject history to more rigorous analysis, using discovery mechanisms, expert testimony and cross-examination, and a recognition of complexity to engage seriously with the history.
--Dan Ernst

Tuesday, March 12, 2024

Reconstruction in Constitutional History, Law, and Politics

[We have the following announcement.  DRE]

In conjunction with the George and Ann Richards Civil War Era Center at Penn State and the Journal of American Constitutional History, Tulane Law School will host the conference “The Significance of Reconstruction in Constitutional History, Law, and Politics” [on Friday and Saturday, March 15 and 16]. It draws more than a dozen nationally-recognized constitutional law scholars and commentators, among them Mark Graber (Maryland), Randall Kennedy (Harvard), Jack Balkin (Yale), Reva Siegel (Yale), Sanford Levinson (Texas), Anne Twitty (Stanford), Farah Peterson (Chicago), and Jamelle Bouie (The New York Times). Tulane Law Professors Robert Westley and Evelyn Atkinson also will be participating.  View the conference schedule here.

The conference will feature an interdisciplinary group of the leading scholars on American constitutionalism during Reconstruction who will examine how the post-Civil War Amendments should be understood from historical, political science, and legal perspectives.  The purpose of the two-day, five-panel conference is to explore how Republican framers were trying to resolve what they perceived to be the most pressing constitutional problems of the 1860s with the conceptual and political tools available at the time, and what citizens in 2024 should make of their efforts.  The conference is occasioned by the publication of Professor Mark Graber’s book Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University Press of Kansas, 2023).  The papers from the conference will be published by the Journal of American Constitutional History.

The event will be held in Room 110 of Tulane Law School, John Giffen Weinmann Hall, 6329 Freret Street from 1 p.m. to 6 p.m. on Friday and 8:30 a.m. to 1 p.m. on Saturday.

Monday, March 11, 2024

CFP: Grotian Law and Modernity at the Dawn of a New Age

[We have the following CFP.  DRE]

Grotian Law and Modernity at the Dawn of a New Age: 400 Years of De jure belli ac pacis, 1625-2025
International Conference, 19-20 June 2025, Leiden University Wijnhaven Campus, The Hague

On the occasion of the 400th anniversary of the first publication of De jure belli ac pacis by Hugo Grotius in 1625, an international conference will be organized by the Grotiana Foundation, the Paul Scholten Centre for Jurisprudence at the University of Amsterdam, the Grotius Centre for International Legal Studies at the University of Leiden and the Department of Public Law and Governance at Tilburg University.

The major aim of the conference is to foster new narratives on the thought of Grotius, in general legal theory as well as in international law against a the backdrop of present-day rapid, fundamental changes that challenge the very foundations of the modernist paradigm, of which Grotius may be considered a key trailblazer. The core question of the academic conference is to what extent Grotian thought about general legal theory and international law is still relevant today, and what adaptations current foundational changes to our world make necessary. In this context, discussion of the many trajectories of reception, appropriation and reinterpretation of Grotius in different times and places, offers a valuable, additional perspective.    

The organizers invite twelve speakers for each of the three thematic parts of the conference.  Candidates are requested to send in an abstract of 250-400 words and short c.v. of max. 100 words to the general convener, Randall Lesaffer (lesaffer@tilburguniversity.edu) by 1 May 2024. Please mention your affiliation and indicate a preference for one of the three conference themes.

Part I ‘Lineages of Grotian Thought’
Convener: Mark Somos
Keynote speaker: Martine van Ittersum

Part II ‘Modernity and the dawn of a new age: general theory of law and
governance’
Convener: Marc de Wilde
Keynote speaker: Annabel Brett

Part III ‘Modernity and the dawn of a new age: international law and governance’
Convener: Eric De Brabandere
Keynote speaker: Hilary Charlesworth

Speakers are expected to turn in a draft paper before 1 June 2025. Papers will be distributed to the participants in advance of the conference. Those papers which pass peer review will be published in both the journal Grotiana (New Series) as well as collected in a separate book with Brill.  More information here.

Saturday, March 9, 2024

Weekend Roundup

  • A symposium on Natasha Wheatley’s The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty has been published in the journal History of European Ideas
  • On May 1, at the Supreme Court, the Supreme Court Historical Society and  George Washington’s Mount Vernon will sponsor a lecture by Gerard Magliocca on his book, Washington's Heir: The Life of Bushrod Washington.  (The second lecture in this series will occur on October 8 in Mount Vernon when Lindsay M. Chervinsky speaks on her book Making the Presidency: John Adams and the Precedents that Forged a Republic.  Register here.
  • The latest episode of the American Law Institute’s podcast is Exploring ALI's History and InfluenceAndrew Gold, an editor of the recently published centennial history of the ALI, joins Deborah A. DeMott (Reporter for Restatement of the Law Third, Agency), John C.P. Goldberg (Associate Reporter for Restatement the Law Fourth, Property), and Erin E. Murphy (Associate Reporter for Model Penal Code: Sexual Assault and Related Offenses).
  • From the New York Times: Mary Ziegler (UC Davis) appeared on the Ezra Klein Show.
  • Miami Law notes Kunal Parker’s appearance on a panel at on the Civil War and Immigration at HistoryMiami Museum and in a seminar of “Deported Americans” at the Massachusetts Historical Society.  
  • From In Custodia Legis: Federal Holidays and Observances, Part I and Part II.  
  • ICYMI: New York courts have a long progressive history, says Bruce W. Dearstyne (Times Union). Sumita Mukherje on Race, Empire and Women’s Suffrage (History Today).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, March 8, 2024

AJLH: 63:4

The American Journal of Legal History 63:4 (December 2023) has now been published online.  Here's the TOC:

The Abolition of the Right to Trial by Jury in Civil Cases in England
Charles S Bullock

Brave New World? Care and Custody of Children at the Court for Divorce and Matrimonial Causes in Mid-Victorian England
Penelope Russell

Banking Law in Italian Legal Consulting between the Fourteenth and the Fifteenth Centuries
Mario Conetti

In forma pauperis: Indentured Servitude, the Right to Counsel, and White Citizenship in the Seventeenth-Century Chesapeake
Anna Suranyi

Justice Kennedy’s Jurisprudence of Dignity: From Sovereign Immunity to Gay Rights
Eric J Scarffe

Hoist by the Colonizer’s Own Device? Law Reporting in Mandatory Palestine
Yair Sagy and Eyal Katvan

International Legacies of a Century and a Half of the Case Method
Han-Ru Zhou

--Dan Ernst

Thursday, March 7, 2024

Del Mar on Character, Intellectual Historiography, and Neil MacCormick

Maksymilian Del Mar, Queen Mary University of London, will address the Helsinki Legal History Series on Monday 29 April 2024, 15-16:30 (UTC+2) in the Porthania Building, Room P545, University of Helsinki and on Zoom (Link to be published later).  His lecture is entitled, Beyond Belief and Deeper than Argument: Character and Intellectual Historiography:

This talk explores the value of character for writing intellectual history, and in particular the history of philosophy and politics. The talk first considers the long and rich history of character - especially character writing in the rhetorical tradition - before suggesting what we might take from that history for historicising philosophy and politics. Character, on the model developed here, is a relational phenomenon: it consists in the manner or style with which a person relates with others in certain circumstances and over time. The talk illustrates this character-based intellectual historiography by showing how it can illuminate the philosophical and political life of Neil MacCormick, but also how it allows us to convey the complexity, richness, and value of the activities of philosophy and politics.

--Dan Ernst

Wednesday, March 6, 2024

Schweber on Madison and Religious Liberty

Howard Schweber, University of Wisconsin-Madison, has posted "Pray Liberty of Conscience to Revive Us": James Madison's Understanding of Religious Liberty in the US Constitution:

Religious liberty was one of the centrally motivating concerns and one of the central models for Madison’s thinking about the Constitution. But opposing the imprisonment of Baptists in Virginia was the simplest possible starting point. What, in Madison's mind, should America’s Constitution say (and mean) about the relationship between religion/church and politics/the state writ large? Freedom to engage in worship might be a clear requirement, but how far should that freedom extend? To explore these questions, this paper is divided into four sections: (1) Madison’s view of religion generally; (2) Madison’s view of the Establishment Clause in relation to public support for religious actors and institutions; (3) Madison’s treatment of free exercise and the question of exemptions;; and (4) Madison’s view of the Establishment Clause with respect to what Justice O’Connor called the “endorsement” problem. Across all categories, the key driving concept in Madison's thought is that religion is a special case: specially precious and specially dangerous both, and therefore to be treated differently from other topics such as general principles of liberty of conscience. In the conclusion, I engage in speculating about what Madison would have thought of some recent developments in First Amendment religion clauses in light of his thinking on the subject.
-- Dan Ernst

Tuesday, March 5, 2024

Wurman on the Opinions Clause and Presidential Power

Ilan Wurman, Arizona State University Sandra Day O'Connor College of Law, has posted The Opinions Clause and Presidential Power:

The two predominant conceptions of executive power and supervision over the administrative state are inadequate. One maintains that all administrative discretion is the President’s, and that by virtue of the grant of executive power the President can both remove and control the discretion of all subordinate officers. That raises the specter of an imperial presidency, and a textual problem: it makes superfluous the Opinions Clause, which empowers the President to require principal officers to provide written opinions about their respective duties. The other maintains that the President is, at best, a “persuader-in-chief,” with no constitutional right to control administrative discretion or to remove officers tasked with implementing statutory duties. Although this view makes sense of the Opinions Clause, there is no historical evidence for it. The proponents of these two schools of thought have thus been locked in a decades-long stalemate, with competing and irreconcilable paradigms of total control or no control.

This paper recovers another, lost way of thinking about presidential power, one that is more modest than either of the two prevailing understandings and that has the potential to advance the debate. According to this conception, Congress can insulate inferior officers from removal because they must follow orders. As for principal officers, however, the President can remove but not control them, at least not directly. There is no constitutional obligation on the part of principal officers to obey; the only inducement is the threat of removal. The Opinions Clause, far from being superfluous, then assures the President the power to acquire information to intelligently exercise the power to remove. In addition to this account’s textual and structural virtues, it appears to have been the understanding of presidential power shared by George Washington, Thomas Jefferson, James Madison, William Wirt, Daniel Webster, William Howard Taft, and the First Congress.

This understanding of executive power may seem overly formalistic, but it allows for the existence of agencies whose heads are removable but nevertheless bound by law to exercise independently the discretion Congress has given them, and for the insulation of civil servants and adjudicators subject however to the ultimate control of the heads of department. In other words, it allows for an independent administrative apparatus but over which the President has an important check. It also suggests a modest resolution to SEC v. Jarkesy, the blockbuster case before the Supreme Court this term.
--Dan Ernst

Roberts on the Concept of Forced Labor

Christopher M. Roberts, Chinese University of Hong Kong Faculty of Law, has posted The Historical Development of the Concept of Forced Labor and the Open Boundaries of its Definition Today, which appears in the New Mexico Law Review:

This article considers the steps taken on the international level in the 1920s and 30s to define the terms through which freedom and unfreedom in the context of labor might be understood, the manner in which understandings of forced labor have subsequently evolved, and the parameters and potentials of the concept today. The first section explores the history of the 1926 Slavery Convention; the nature of coercive labor in colonized states in the inter-war period; the drafting processes and coverage of the 1930 Forced Labour Convention; the Convention’s accompanying recommendations; and subsequent developments in the legal definition of forced labor. The second section considers various different areas in which the boundaries of the concept of forced labor are open-ended today, with an eye to determining whether the concept is capable of addressing hitherto under-recognized forms of labor coercion, or whether it is fatally limited by the conditions of its formation. In particular, the section considers areas of explicit limitation; the potential contained within the terms of the Forced Labour (Indirect Compulsion) Recommendation; and what potential there is for forced labor to be deployed relative to an issue not intensively addressed in 1930, that of debt. This article concludes that, despite the limitations that have accompanied the idea of forced labor to date, the concept remains a useful one, the boundaries of which maintain extensive space for expansion.
--Dan Ernst

Monday, March 4, 2024

Kessler on Law and Historical Materialism

Jeremy Kessler, Columbia University Law School, has posted Law and Historical Materialism, which is forthcoming in the Duke Law Journal

Since the financial crisis of 2008, left-leaning legal thought has experienced a renaissance within the American academy. From “law and political economy” to critical race theory to feminist legal studies to neo-Marxist legal theory, new perspectives have flourished and marginalized traditions have been revived. What they all share, however, is a point of intellectual origin in the critical legal studies (“CLS”) movement of the late 1970s and 1980s. That movement’s critique was focused on functional accounts of law: accounts that understood legal change as primarily responsive to the demands of extra-legal social and economic forces. Some of those accounts, such as that of the law and society school, were associated with the political center. But others, most especially historical materialism, hailed from the political left. For CLS and its successors, the failure of historical materialism to account for the indeterminacy of law, the contingency of legal development, and the autonomous causal power of law and legal actors to shape society was (and remains) disqualifying. This Article argues that CLS erred, and that its successors continue to err, in sidelining historical materialism as a viable framework for left-leaning legal thought. The historical materialist account of law has the resources to make sense of the apparent indeterminacy, contingency, and autonomy of law and legal actors at least as well as CLS and its successors. It can also make better sense of three additional phenomena with which CLS and its successors have struggled: the tendency of legal development to reproduce existing social and economic hierarchies; the relationship between law and capitalism; and the relationship between law and the natural world.
--Dan Ernst

ASLH Early Career (Virtual) Legal History Workshop

We have the following announcement from the American Society for Legal History:

ASLH Early Career (Virtual) Legal History Workshop

Deadline for Applications:  June 30, 2024 

The American Society for Legal History (ASLH) is delighted to announce a new virtual initiative – the Early Career (Virtual) Legal History Workshop – designed to provide support and intellectual community to early career scholars working in legal history, broadly defined. 
 
Applications are invited from early career, pre-tenure scholars, publishing in English, who have completed PhDs or JDs (those working toward a JD/PhD must have completed the PhD).  Scholars with expertise in all chronological periods and geographical fields are encouraged to apply, as are scholars who may not (yet) identify as legal historians. Though time zones present a challenge, one of the goals of the ASLH’s virtual initiatives is to increase opportunities for engagement between international and U. S. based scholars.  With this in mind, we encourage international scholars to apply.
 
The committee (the ASLH Working Group for Virtual Initiatives) will select seven (7) Fellows for the 2024-25 workshop. The workshop will be limited to the Fellows and Faculty Chairs and will meet once monthly via Zoom from September through April (no meeting in October because of the Annual Meeting) giving each fellow an opportunity to share work-in-progress with the group for discussion and feedback.  The 2024-25 Early Career LHW will be chaired by Bhavani Raman, Associate Professor of History, University of Toronto, and Dan Sharfstein, Dick and Martha Lansden Chair in Law and Professor of History, Vanderbilt University.  The date and time of the monthly workshops will be established by the Faculty Chairs. Fellows must commit to participate for the full academic year.
 
Elements of Application
(1) Cover Letter (1 page) (the cover letter should address the following points: briefly describe your research and path to the project, note the intended result (book/article/other) and the stage of the project, explain your interest in being part of the 2024-25 workshop, and note your time zone (UTC) and range of flexibility for meeting);
(2) Curriculum Vitae (2 pages) (including education and degree dates, current appointment, publications and conference papers, and professional society affiliations);
(3) Proposed Paper Title and Abstract (up to 100 words);
(4) 1 Letter of Recommendation (the letter should be from someone who knows you and your work well and who can comment on how you would benefit from and contribute to the workshop community).
 
Applicants should submit items 1-3 in a single pdf.  And arrange to have the letter of recommendation submitted directly. 
 
All application materials should be sent to Barbara Welke, welke004@umn.edu
The deadline for applications is June 30, 2024.  Only complete applications will be considered.
 
Questions? Write to Barbara Welke welke004@umn.edu

-- Karen Tani

Saturday, March 2, 2024

Weekend Roundup

  • Christian R. Burset discusses his book, An Empire of Laws: Legal Pluralism in British Colonial Policy in a New Books Network podcast. Taisu Zhang reviews Professor Burset's article, "Redefining the Rule of Law: An Eighteenth-Century Case Study," on Jotwell.
  • Colorado Law has published a profile of the legal historian Jonathon Booth (Colorado Law).
  • The result of the latest election of the Organization of American Historians is in.  Congratulations to President-Elect Annette Gordon-Reed and Vice President Marc Stein.
  • Ray Brescia, Albany Law School, discusses his new book, Lawyer Nation: The Past, Present, and Future of the American Legal Profession, on the ABA Journal’s Modern Law Library podcast.
  • Women’s Rights & Citizenship: A History of Women Jurors, by Helen Allen Nerska (New York Almanack). 
  • “The latest episode of the A Minute In New York History podcast tells the story of the 1839 La Amistad Rebellion” with the help of Marcus Rediker (New York Almanack).
  • Paola Zichi, British Academy Postdoctoral Research Fellow at the Warwick Law School, present on feminism and “the so-called ‘historical turn’ in international law” in the Law and Methods Seminar at SciencesPo Law School last Thursday.  More.
  • ICYMI: Black family history and Civil War pension records (NYT).  "Tradition" is "too amorphous and manipulable a criterion” for constitutional adjudication, a federal judge argues (NYT).  John A. Lupton, Illinois Supreme Court Historic Preservation Commission, on Myra Bradwell (Illinois Courts).

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

Friday, March 1, 2024

Boyer and Nicholls's "Rise and Fall of Treason in English History"

Allen Boyer, formerly senior appellate counsel at the New York Stock Exchange Enforcement Division and the author of Sir Edward Coke and the Elizabethan Age (Stanford University Press) and Mark Nicholls, a Fellow of St. John’s College, Cambridge, have published The Rise and Fall of Treason in English History (Routledge):

This book explores the development and application of the law of treason in England across more than a thousand years, placing this legal history within a broader historical context.

Describing many high-profile prosecutions and trials, the book focuses on the statutes, ordinances and customs that have at various times governed, limited and shaped this worst of crimes. It explores the reasons why treason coalesced around specific offences agreed by both the monarch and the wider political nation, why it became an essential instrument of enforcement in high politics, and why, over the past three hundred years, it has gradually fallen into disuse while remaining on the statute book. This book also considers why treason as both a word and a concept remains so potent in wider modern culture, investigating prevalent current misconceptions about what is and what is not treason. It concludes by suggesting that the abolition or 'death' of treason in the near future, while a logical next step, is by no means a foregone conclusion.

The Rise and Fall of Treason in English History is a thorough academic introduction for scholars and history students, as well as general readers with an interest in British political and legal history.
--Dan Ernst

Thursday, February 29, 2024

Rose on Property in the Merchant of Venice

Carol M. Rose, University of Arizona James E. Rogers College of Law, has posted Property and Literature: the View From Shakespeare’s Venice, which is forthcoming in The Elgar Concise Encyclopedia of Law and Literature, ed. Robert Spoo and Simon Stern (2024).

Merchant of Venice (1955) (NYPL)
This entry explores property issues in The Merchant of Venice, and in particular the Merchant’s posture toward important claims that have been made for property since the Enlightenment: that secure property enhances social wealth, that property protects individual autonomy, and that property permits the projection of personal projects in the world. The conclusion is that Merchant critiques each from the perspective of considerably older views of the role of property in society. The entry also discusses another claim for property and commerce that some have found in Merchant—that property and commerce soften manners and promote cooperation--but concludes that Merchant does not address that claim despite its setting in the then highly commercial city of Venice.
--Dan Ernst

Bloch, "Students for Fair Admissions v. Harvard (2023) and the Memory Wars"

Ofra Bloch (Tel Aviv University - Buchmann Faculty of Law) has posted "Students for Fair Admissions v. Harvard (2023) and the Memory Wars." Here's the abstract:

This article adds to the growing body of scholarship addressing the aftermath of the Supreme Court's decision in Students for Fair Admissions v Harvard (SFFA) that effectively ended race-conscious affirmative action in college admissions as we know it. In contrast to this literature dedicated primarily to exploring the practical implications of the decision, the distinct focus of this Article is on the historical narrative constructed by the SFFA’s majority and its impact on the constitutional memory of race and racism. The article makes three key contributions: Firstly, it demonstrates how the SFFA majority opinion distorts collective recollections of racism, akin to bans on Critical Race Theory, undermining racial redress legitimacy. Secondly, it analyzes the amicus curiae briefs in SFFA to uncover how universities and other proponents of affirmative action participated in forming the ahistorical narrative that was ultimately adopted and applied by the SFFA majority. Finally, the article proposes strategies for reshaping collective memories at the grassroots level. Somewhat paradoxically, I argue that the current composition of the Court presents an auspicious opportunity to prioritize reclaiming diversity in ways that reflect past and present racial experiences in America, rather than solely focusing on strategies aimed at appealing to conservative justices. 

The full paper is available here.

-- Karen Tani

Wednesday, February 28, 2024

Morris L. Cohen Student Essay Competition

 [We have the following announcement.  DRE]

The Legal History and Rare Books (LH&RB) Section of the American Association of Law Libraries (AALL), in cooperation with The Lawbook Exchange, Ltd., announces the Fourteenth Annual Morris L. Cohen Student Essay Competition. The competition is named in honor of Morris L. Cohen, late Professor Emeritus of Law at Yale Law School.

The competition is designed to encourage scholarship and to acquaint students with the AALL and law librarianship, and is open to students currently enrolled in accredited graduate programs in library science, law, history, and related fields. Essays may be on any topic related to legal history, rare law books, or legal archives. The winner will receive a $1,000.00 prize from The Lawbook Exchange, Ltd., and will be invited to present their paper to AALL members via webinar.

Winning and runner-up entries will be invited to submit their entries to UNBOUND: A Review of Legal History and Rare Books, the official journal of LH&RB. Past winning essays have gone on to be accepted by journals such as N.Y.U. Law Review, American Journal of Legal History, University of South Florida Law Review, William & Mary Journal of Women and the Law, the Yale Journal of Law & the Humanities, and French Historical Review.

The entry form and instructions are available at the LH&RB website. Entries must be submitted by 11:59 p.m., May 15, 2024 (EDT).

Please direct questions to Linda K. Tesar, Chair, Morris L. Cohen Student Essay Competition Committee, lktesar@wm.edu.

Balkin's "Memory and Authority"

Jack M. Balkin, Yale Law School, has published Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press):

Fights over history are at the heart of most important constitutional disputes in America. The Supreme Court’s current embrace of originalism is only the most recent example of how lawyers and judges try to use history to establish authority for their positions. Jack M. Balkin argues that fights over constitutional interpretation are often fights over collective memory. Lawyers and judges construct—and erase—memory to lend authority to their present-day views; they make the past speak their values so they can then claim to follow it. The seemingly opposed camps of originalism and living constitutionalism are actually mirror images of a single phenomenon: how lawyers use history to adapt an ancient constitution to a constantly changing world.
 
Balkin shows how lawyers and judges channel history through standard forms of legal argument that shape how they use history and even what they see in history. He explains how lawyers and judges invoke history selectively to construct authority for their claims and undermine the authority of opposing views. And he elucidates the perpetual quarrel between historians and lawyers, showing how the two can best join issue in legal disputes. This book is a sweeping rethinking of the uses of history in constitutional interpretation.
--Dan Ernst

Tuesday, February 27, 2024

Artists and the Law in Baroque Rome at UAM

[With help from an automatic translator, we have the following announcement.  DRE]

The next session of the Coloquios Historia Derecho at the Universidad Autnóma de Madrid will take place on Wednesday, March 6, at 3:00 p.m., in Seminar VIII of the Faculty of Law.

Professor Antonia Fiori (Università degli studi di Roma – La Sapienza), will speak about her research on artists' contracts in Baroque Rome, with the presentation titled “ Rome wasn't built in a day: Artists and the Law in Renaissance and Baroque Rome.”  More information on the Ccolloquim is here.

To connect via Zoom: Meeting ID: 829 1079 8716 / Passcode: 609743

The next session, taught by Professor María Teresa Calderón, will now be held on March 22.

ASLH Deadline Approaching

[The Program Co-Chairs for this year’s annual meeting of the American Society for Legal History have made the following announcement.   DRE]

A friendly reminder that the deadline for panel proposals for this fall's Annual Meeting in San Francisco is rapidly approaching (March 15).  Information on how to build a successful panel can be found here.
 
Only complete panel proposals will be accepted, with the exception of the session on Digital Legal History (which welcomes individual submissions). Scholars looking to build a panel may post their potential paper topics here. Senior scholars who are willing to chair and/or comment on a panel may register their interest and availability here. All proposals should be submitted through the Confex platform.
 
We look forward to seeing you in San Francisco!

Karen Tani & Rowan Dorin (Program Committee Co-Chairs)

Kamin on the "Great Writ of Popular Sovereignty"

William M. M. Kamin, Catholic University of America, Columbus School of Law, has posted The Great Writ of Popular Sovereignty, which is forthcoming in the Stanford Law Review:

American habeas corpus, long conventionally known as the Great Writ of Liberty (“GWL”), is more properly understood as the Great Writ of Popular Sovereignty (“GWPS”): a tool for We the People to insist that when our agents in government exercise our delegated penal powers, they remain faithful to our sovereign will. Once we grasp this conceptual shift, the implications for the law of habeas are profound.

In the past fifteen years, novel archival research has shown the GWL’s founding myth to be ahistorical – that ideas about sovereignty, rather than individual liberty, drove the common-law writ’s development in the centuries of English history running up to its reception into American law. Given widespread consensus that (1) English history should and does drive American habeas jurisprudence and (2) the sovereigntist account of that history should now be treated as authoritative, it is puzzling that American courts and scholars have continued to cling to the GWL mythos. Meanwhile, American habeas law is in crisis, with an ideologically cross-cutting array of scholars and jurists criticizing it as intellectually incoherent, practically ineffectual, and immensely wasteful. Over the Supreme Court’s past three Terms, Justice Neil Gorsuch has led a charge to hollow out federal postconviction habeas almost entirely, arguing that habeas courts should ask only whether the sentencing court was one of “general criminal jurisdiction” – and not whether it violated federal constitutional law en route to entering the petitioner’s judgment of conviction.

An accurate understanding of the English history, soundly translated into the logic of American popular sovereignty, demands reconceptualizing the American writ as GWPS. And by following that imperative, we just might save American habeas jurisprudence from its present crisis. Most critically, a theory of GWPS would illuminate the flaws in Justice Gorsuch’s historical argument for gutting postconviction habeas. Paradoxically, shifting from the conceptual lens of GWL to that of GWPS would yield habeas doctrine more effective in protecting individual liberty. Finally, such a shift would bring coherence to otherwise-inscrutable questions in the theory and doctrine of American habeas.

--Dan Ernst

Monday, February 26, 2024

Gage to Discuss Hoover at GW Law

GW Law announces a public event on a certain alumnus, J. Edgar Hoover (LL.B. 1916; LL.M. 1917).  Professor of Practice Jonathan Cedarbaum moderates a conversation with Beverly Gage, Yale University and winner of the Pulitzer Prize for Biography on Wednesday, February 28, 12:05-1:30, in its Burns Moot Courtroom.  Refreshments will be served.  RSVP to nsla@law.gwu.edu.

--Dan Ernst

Rights without Borders? Subjects, Precarity, Agency

 [We have the following announcement.  DRE.  H/t: H-Law.]

"Rights without Borders? Subjects, Precarity, Agency," the 9th International Osnabrück Summer Institute on the Cultural Study of the Law (OSI) will be held from July 6 to 14, 2024 at Osnabrück University, Germany. It aims to encourage and further promote the interdisciplinary study and research of the interrelations between law and culture, based on the idea that the extended cultural study of the law will foster productive scholarly exchange and dialogue between legal studies and the humanities.

The 2024 OSI will concentrate on key issues and debates within contemporary cultural legal studies, exploring questions related to, for instance, rights in general, legal personhood and citizenship, human rights, and the rights of migrants. We are interested specifically in the following:

  • The historical evolution of predominant (legal) concepts of rights, human rights, and legal personhood, regarding current debates on culture as an abiding discourse that enables legal subjectivity and rights claims, as much as it offers a resource for legal critique.
  • The cultural presence and portrayal of the law and the influence of culture in depicting and disseminating concepts of rights, human rights, ownership, appropriation, dispossession, etc. (e.g., in fields such as law and literature, critical humanities, life writing and human rights, philosophy of human rights, migration and rights).
  • How the (cultural and historical) semantics of rights, human rights, and legal personhood manifest in critical theory and discourse, exploring the application of rights theory in the humanities and critical cultural studies.
  • How a precarious legal status or a flexible approach to legal personhood, both historically and in current debates, facilitates critical discussion on (human) rights and our understanding of their nature and scope (how or whether they might be claimed by people on the move, enslaved people, indigenous peoples, stateless people, women, LGBTQ+ individuals etc.).

The OSI brings together leading scholars in the field of cultural legal studies with international graduate students from the humanities, legal studies, the social and political sciences, art, and history to create a rare opportunity for the comparative study of law and culture and their complex interrelation. The Institute will offer a combination of thematic workshop sessions, small group seminars and a concluding conference which will focus on key issues and debates in current cultural legal studies. lt will offer placements for up to 20 international participants (doctoral, post-doctoral and advanced M.A.).

Confirmed faculty for the 2024 OSI include:
Jeannine DeLombard (English and History / UC Santa Barbara)
Leila Neti (English and Postcolonial Literature / Occidental College, LA)
Leti Volpp (Law / UC Berkeley)
Bryan Wagner (English / UC Berkeley)
Marco Wan (Law / U of Hongkong)

Eligibility
.  The Summer Institute invites doctoral and postdoctoral students from various academic fields whose research interests and projects are situated at the interface between law and the humanities and who are concerned with a better understanding of the interdependence of law and culture.

Doctoral candidates in literature, the law, the arts, the humanities, and the related social sciences are encouraged to apply, as are advanced students pursuing a J.D. or its equivalent (such as the L.L.B). Young scholars or junior faculty members who have received a Ph.D. or corresponding degree in the last five years are also eligible. While applications by doctoral/post-doctoral students are prioritized, the Summer Institute will also consider strong applications from advanced Master students about to conclude their studies and with a strong interest in interdisciplinary research.

Application Process
.  Students interested in taking part in the Summer Institute should submit their applications no later than April 1st, 2024. Detailed and updated information about the Institute, the sessions, international faculty, admission and fees can be found [here].

Questions.  Please direct all inquiries and questions to the OSI coordinator.

Engstrom and Stone on Auto Culbs, UPL and A2J

Nora Freeman Engstrom Stanford Law School, and James Stone, at 2023 graduate of Stanford Law, have posted Auto Clubs and the Lost Origins of the Access-to-Justice Crisis, which is forthcoming in the Yale Law Journal:

In the early 1900s, the country’s 1,100 automobile clubs did far more than provide the roadside assistance, maps, and towing services familiar to AAA members of today. Auto clubs also provided, free to their members, a wide range of legal services. Teams of auto club lawyers defended members charged with driving-related misdemeanors and even felonies. They filed suits that, mirroring contemporary impact litigation, were expressly designed to effect policy change. And they brought and defended tens of thousands of civil claims for vehicle-related harm. In the throes of the Great Depression, however, local bar associations abruptly turned on the clubs and filed scores of suits, accusing them of violating nascent legal ethics rules concerning the unauthorized practice of law (UPL). In state after state, the bar prevailed—and, within a few short years, auto clubs’ legal departments were kaput.

Drawing on thousands of pages of archival material, this Article recovers the lost history of America’s automobile clubs, as well as their fateful collision with the bar. It then surveys the wreckage and shows that the collision’s impact continues to reverberate throughout the legal profession and law itself. For one, we show how the bar’s litigation campaign against auto clubs—as well as the era’s many other group legal service providers, including banks, unions, and homeowners’ associations—helped establish the so-called “inherent powers doctrine,” which cemented courts (not legislators) as the ultimate arbiters of legal practice regulation. The result was a profound power shift, with the authority to regulate legal services consequentially placed in politically insulated courts, not politically accountable legislators. More practically, the bar’s concerted campaign decimated a once-thriving system for the provision of group legal services to ordinary Americans, which, we argue, ultimately consigned millions of individuals with legal problems to face them alone, or not at all.

Finally, in the rise and fall of America’s auto clubs, we find new, untapped evidence that contributes to a range of critical contemporary debates. In particular, our story uncovers fresh evidence to support the value of corporate practice, currently—but controversially—banned by Model Rule 5.4. In the bar’s relentless campaign to shutter auto clubs, not because they harmed members but, rather, because they threatened lawyers’ livelihoods, we unearth direct proof that today’s UPL bans, which continue to stymie the delivery of affordable legal services, have fundamentally rotten roots. And ultimately, we show that the present-day access-to-justice crisis—a crisis that dooms the vast majority of Americans to navigate complex legal processes without any expert assistance—isn’t a product of inattention or inertia. The crisis was, rather, constructed by the legal profession of which we are a part.
--Dan Ernst

Sunday, February 25, 2024

Constitutional History in Iowa Public Schools

As an expatriate Iowan, who visited my Midwestern homeland as recently as President's Day weekend, I try to keep up abreast of how far the state's politics have traveled from those of my youth in Dubuque.  Usually, I don't burden LHB readers with reports, but a recent post by Rick Morain, formerly the publisher and owner of the Jefferson Herald, on the blog "Bleeding Heartland" on a bill in the Iowa legislature speaks to a general trend in primary and secondary public education.

House File 2544, which is available for floor debate, mandates topics that the state's social studies teachers would be required to cover at some point in grades five through twelve.  These include thirteen documents and six U.S. Supreme Court cases.  The thirteen documents are:

The Mayflower Compact
Common Sense, the essay published by Thomas Paine in 1776
The Declaration of Independence
The Articles of Confederation, adopted in 1777
The Pennsylvania Act for the Gradual Abolition of Slavery
The Virginia Statute for Religious Freedom
The Northwest Ordinance
The U.S. Constitution
The Federalist Papers, including Federalist No. 10 and Federalist No 51
Washington’s Farewell Address
relevant excerpts from Democracy in America by Alexis de Tocqueville
a transcript of the first Lincoln-Douglas debate
and The Emancipation Proclamation

Morain did not object to these, although he wondered about the opportunity costs, in light of the time needed to discuss them properly.  He also agreed that Iowa students should know about five of the six cases mandated by the bill: Marbury v. Madison, McCulloch v. Maryland, Dred Scott v. Sandford, Plessy v. Ferguson, and Brown v. Board of Education.  (He did not comment on the omission of one of Iowa's contributions to constitutional law, Tinker v. Des Moines Independent Community School District.)  He was stumped by a sixth case, however: Pembina Consolidated Silver Mining and Milling Company v. Pennsylvania (1888).  Upon inspection, he learned that it was a landmark in the granting of corporations the status of persons under the Fourteenth Amendment.  

The editor of the Bleeding Heartland pursued the matter by asking the bill's Republican sponsors about the bill but received no response.  A Democratic representative on the subcommittee that approved it reported that one of its sponsors mentioned the Civics Alliance and the National Association of Scholars in describing its origins.

The American Historical Association has opposed the bill in a letter to the Iowa House of Representatives. 

--Dan Ernst

Saturday, February 24, 2024

Weekend Roundup

  • John Mikhail, Georgetown Law, has a post up on Balkinization entitled A Reality Check on "Officers of the United States" at the Founding, in which he draws upon the research he conducted on the phrase in connection with his study of the Necessary and Proper Clause.  Much of the research he presents "has been ignored or overlooked in the existing scholarship on Section Three, and most of it does not appear in any of the briefs in Trump v. Anderson."
  • Rosemarie Zagarri and Holly Brewer argue that the anti-monarchical origins of the Constitution and the presidency do not support Former President Trump’s claim of immunity (Brennan Center).   
  • "The Department of History at the University of Alabama invites applications for a full-time Renewable Contract Instructor position. The appointment is for a three-year term with the possibility of renewal. The holder of the position will be expected to serve undergraduate teaching and advising needs in American history, with particular expertise sought in legal and/or constitutional history. Minimum qualifications include a PhD in History or related field. Position begins August 15, 2024."
  • On Wednesday, February 28, at 2pm ET , the FDR Library will livestream the first of five short films on civil rights that it will release this year, “created from interviews with our expert advisory panel for the Special Exhibit: Black Americans, Civil Rights, and the Roosevelts 1932-1962.”  This one “examines two critical Supreme Court cases that laid the groundwork for the civil rights movement of later decades.”  More.
  • Kathleen Ayers, a recently retired register of probate got Kennebec County, will lead the workshop "Maine's County Probate Courts," sponsored by the Greater Portland Chapter of the Maine Genealogical Society, on Saturday, March 2, at 1 p.m. and held online.  "Her session aims to demystify the complex world of probate records, offering attendees an overview of the treasures these documents contain."  Register via email at gpcmgsgmail.com (BNN).
  • Update: As it happens, the Fulton County Probate Court is similarly presenting A Night in the Archives on Wednesday, February 28 from 5:30 to 7:30 p.m (Fulton Neighbor). 

    Attendees can join historians, researchers, librarians, scholars, and preservationists as they explore historic probate records dating from 1847.

    The event will take place at the Historic Fulton County Courthouse, 136 Pryor Street, SW, second floor, Atlanta. The afterhours entrance is at 185 Central Avenue.
  • "U.S. Supreme Court Justice Stephen G. Breyer (Ret.) unveils his new book at the National Constitution Center in conversation with NCC President and CEO Jeffrey Rosen. In Reading the Constitution: Why I Chose Pragmatism, Not Textualism, Justice Breyer deconstructs the textualist philosophy of the current Supreme Court’s majority and makes the case for a better way to interpret the Constitution" (NCC).
  • Kate Masur and Saladin Ambar discuss Lincoln's Lyceum Address in a webinar on March 12 from 7 to 8, hosted by the Lincoln Presidential Foundation.
  • That Congressional Briefing the American Historical Association hosted on “the history of the role and impact of sanctions as instruments of international relations” is now up on the AHA’s YouTube channel.
  • Ronald Collins discusses his new book, Tragedy on Trial: The Story of the Infamous Emmett Till Murder Trial, with Jason Downs at the Politics & Prose on Connecticut Avenue in Washington, DC, on Sunday, March 17, 2024, at 1:00pm.
  • "The latest issue of Historical Review, a publication of the Florida Supreme Court Historical Society, celebrates the 75th anniversary of the opening of the Florida Supreme Court’s building in Tallahassee” (Florida Bar News).
  • Via JOTWELL: Suja Thomas praises Thomas Framptom's article on The First Black Jurors and the Integration of the American Jury, 24 N.Y.U. L. Rev. __ (forthcoming, 2024)
  • ICYMI: Black History Is Inextricably Intertwined With American Legal History, says U.S. District Judge Curtis L. Collier  (Chattanoogan.com).  The US Postal Service dedicates a stamp to Constance Baker Motley (Columbia Law School).  U.S. Circuit Judge Kevin Newsom criticized the U.S. Supreme Court’s use of historical “tradition” to justify its constitutional opinions because it leaves “too much to individual judges' discretion" (Reuters). Austin Sarat on The Gas Chamber, 100 Years of Cruelty (Verdict).

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

Friday, February 23, 2024

Before Thurgood: America’s Forgotten Civil Rights Heroes

The Faulkner Law Review, in partnership with the Ernestine S. Sapp Chapter of the Black Law Students Association at Faulkner Law, is excited to announce the 2024 Fred Gray Civil Rights Symposium: Before Thurgood: America’s Forgotten Civil Rights Heroes. This event is sponsored by the National Black Lawyers Top 100 and the American Society for Legal History and will be held on March 15, 2024 from 8:30 a.m. to 3 p.m. inside the Faulkner University Rotunda.

This event has been approved by the Alabama State Bar for 5.3 hours of CLE credit, including 2.5 hours of ethics credit. Lunch will be provided. Register to attend [here].

This year’s presenters include:

"Lessons Learned From The Civil Rights Movement."  Hon. Jerusha T. Adams, United States Magistrate Judge for the Middle District of Alabama, Montgomery, AL

"Righting the Wrongs of the Past: The Posthumous Bar Reinstatement of Arthur Madison, Voting Rights Crusader."  Justice (ret.) John G. Browning, Distinguished Jurist in Residence, Thomas Goode Jones School of Law, Montgomery, AL, and Quinton S. Seay, Sr., Seay/Felton LLC, Atlanta, GA

"How Could That Happen in That Place at That Time? Wendell W. Gunn and the Desegregation of Florence State College."  Professor Matthew Schoenbachler, Professor of History and Interim Department Chair, University of North Alabama, Florence, AL, and Dr. Wendell Gunn, Board of Trustees, University of North Alabama, Florence, AL

"Contextualizing John S. Rock’s Ascent to the Supreme Court Bar."  Professor Christopher T. Brooks, Professor of History and Geography, East Stroudsburg State University, East Stroudsburg, PA

"Rails of Justice: Charles Hamilton Houston, Alabama Search for Equal Rights."  Professor José F. Anderson, Dean Joseph Curtis Professor of Law, University of Baltimore School of Law, Baltimore, MD

"Cornelius Jones: Forgotten Black Supreme Court Advocate and Fighter for Civil Rights in the Plessy Era."  James A. Feldman, Attorney at Law, Washington, DC

More information, here.

Graber on Insurrection in the 14th Amendment

Mark Graber, University of Maryland Francis King Carey School of Law, has posted Section Three of the Fourteenth Amendment: Insurrection, which is forthcoming in the William & Mary Bill of Rights Journal:

The public and scholarly debate over whether former president Donald Trump is eligible to hold office under Section Three of the Fourteenth Amendment has focused far more on technical legal questions than on whether Trump engaged in an insurrection. Scholarly and public commentary rarely examines the constitutional/common law of insurrection, preferring instead to examine whether Trump is exempt from Section Three because Section Three either exempts presidents or the presidency from disqualification or because Section Three is not self-executing. One consequence of this omission in the popular press is the impression that what constituted an insurrection or engaging in an insurrection were not well defined in 1866, that the Reconstruction Republican framers largely jerry-rigged a vague understanding of insurrection into the Constitution.

This paper demonstrates that the constitutional/common law of insurrection was well established and well-understood in 1866. “Insurrection” at the time Section Three of the Fourteenth Amendment was framed and ratified “had a precise and well-understood meaning.” This understanding was articulated from the American Revolution to the Reconstruction by the Supreme Court, by Supreme Court justices riding circuit, by other federal justices, by state court justices, and by the leading legal treatise writers during the period between the ratification of the Constitution and Reconstruction. Clear standards exist from 1866 that enable state and federal officials to determine whether the persons responsible for Section Three of the Fourteenth Amendment would have thought the events of January 6. 2021 were an insurrection and whether Trump engaged in that insurrection.

The Congressional Globe, case survey, and constitutional commentaries clearly support the following conclusions. First, an insurrection at the time Section Three was framed consisted of an assemblage resisting the implementation of any law by force, violence and intimidation for a public purpose and was not limited to rebellious attempts to overthrow the government. Second, the events of January 6, 2021 are consistent with the legal understanding of insurrection in 1866. Third, constitutional authorities before, during and immediately after the Civil War maintained that any person who knowingly contributed to an insurrection was engaged in that insurrection, even if that person did not personally commit an act of violence or was far from the scene of the violence, force, and intimidation. Fourth, if the allegations made by the Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol and state decisions disqualifying Trump are true, the former president participated in the insurrection that took place on January 6, 2021.

Congress relied on this consensual understanding of insurrection when framing the Second Confiscation Act of 1862. The Senators who insisted that Section Two of that measure punish persons who “shall hereafter incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States” stated that they were not altering the law of treason and insurrection by describing separate offenses. Section Two was rooted in part by a misinterpretation of judicial decisions that some Senators believed required they spell out what they believed constituted insurrectionary behavior and in part because no one wanted all participants in the Civil War to be executed for treason. If members of the Thirty-Seven Congress would have thought that an insurrection took place on January 6, 2021 and Trump participated in that insurrection, then those members of the Thirty-Ninth Congress who framed Section would have though disqualified from holding public office in the United States.
--Dan Ernst

Thursday, February 22, 2024

Tate on Magna Carta and Fundamental Rights

Joshua C. Tate, Southern Methodist University Dedman School of Law, has posted Magna Carta and the Definition of Fundamental Rights, which is forthcoming in the Tulsa Law Review:

The U.S. Supreme Court has long relied on the language of Magna Carta in interpreting the U.S. Constitution, particularly the Fifth and Fourteenth Amendments. In recent years, the Court has concluded that the absence of certain rights from Magna Carta—and the common law tradition more generally—means that those rights ought not to be considered fundamental today. Some Justices of the Court have also crafted a highly restrictive definition of “liberty” on the basis of Magna Carta and the common law texts interpreting it. This Article argues that the Court has viewed Magna Carta too narrowly, and that “liberty” has a broader meaning in the common law tradition. Reviewing the privileges and liberties of medieval cities that were reaffirmed in Magna Carta, the Article concludes that rights to travel, to conduct one’s business without interference, and to avoid the jurisdiction of oppressive courts are all a part of the common law tradition of liberty and should be considered deeply rooted in our nation’s history and tradition.
--Dan Ernst

Wednesday, February 21, 2024

Israeli Legal History Bibliography

[We have the following announcement.  DRE.]

The David Berg Foundation Institute for Law and History at the Tel Aviv University Faculty of Law maintains a bibliography of secondary sources on Israeli legal history. We are currently embarking on another round of updates (the last was in 2020), and we would welcome help in bringing publications, whether new or previously overlooked, to our attention.

We are looking for publications, in any language, with a substantial connection to the legal history of Israel, beginning with the late Ottoman period (from c. 1800) up to the year 2000. If you work in the field, we'd appreciate your looking over the current list and sending us bibliographic information on any sources we're currently missing.

Please send information on sources or any questions to Ms. Asil Sager (asilsager25@gmail.com) or to berg@tauex.tau.ac.il.

[H/t: H-Law]