Roffer's "The Law Book"

Michael H. Roffer, associate librarian for reader services and professor of legal research at New York Law School, has published The Law Book: From Hammurabi to the International Criminal Court, 250 Milestones in the History of Law, with Sterling Milestones:

Which was the last country to abolish slavery?  Which is the only amendment to the U.S. Constitution ever to be repealed?  How did King Henry II of England provide a procedural blueprint for criminal law?

These are just a few of the thought-provoking questions addressed in this beautifully illustrated book. Join author Michael H. Roffer as he explores 250 of the most fundamental, far-reaching, and often-controversial cases, laws, and trials that have profoundly changed our world—for good or bad. Offering authoritative context to ancient documents as well as today’s hot-button issues, The Law Book presents a comprehensive look at the rules by which we live our lives. It covers such diverse topics as the Code of Hammurabi, the Ten Commandments, the Trial of Socrates, the Bill of Rights, women’s suffrage, the insanity defense, and more. Roffer takes us around the globe to ancient Rome and medieval England before transporting us forward to contemporary accounts that tackle everything from civil rights, surrogacy, and assisted suicide to the 2000 U.S. presidential election, Google Books, and the fight for marriage equality.

Organized chronologically, the entries each consist of a short essay and a stunning full-color image, while the “Notes and Further Reading” section provides resources for more in-depth study. Justice may be blind, but this collection brings the rich history of the law to light

Rogers on William O. Douglas, India and Antitrust History

C. Paul Rogers III, Southern Methodist University Dedman School of Law, has posted two items from his  backlist.  The first is The Antitrust Legacy of Justice William O. Douglas, which appeared in Cleveland State Law Review 56 (2008): 895:

The article attempts to further define and refine Justice Douglas' antitrust philosophy by examining his written opinions and writings. It will then attempt to measure that philosophy's effect on the Supreme Court during his tenure and its contemporary impact in the context of the rapidly shifting antitrust doctrine of the last thirty years or so.

The second is A Concise History of Corporate Mergers and the Antitrust Laws in the United States, which appeared in the National Law School of India Review 24 (2013):    

American merger control law today is governed primarily by regulators and not courts, focusing on consumer welfare and efficiency. This was not always the case though, and the author traces the development of this area of law from its nascent beginnings with the Sherman Act to the era of private enforcement witnessed today.  As the Indian economy continues to expand, mergers and acquisitions have become frequent bringing with them difficult questions of anti-competitive behaviour. A study of the American experience, it is argued, would provide valuable insight in enforcing the rather untested anti-merger provisions in the Competition Act of India.

Thank You, Matthew Mirow

We're grateful to Matthew C. Mirow, professor of law at the Florida International University College of Law, for his series of posts this month on his new book, Latin American Constitutions: The Constitution of Cádiz and its Legacy in Spanish America (Cambridge University Press, 2015).  In case you missed them, they start here.

International Courts, Supranational Courts and the Rule of Law

New from Edward Elgar is The Contribution of International and Supranational Courts to the Rule of Law, edited by Geert De Baere and Jan Wouters:

International and supranational courts are increasingly central to the development of a transnational rule of law. Except for insiders, the functioning and impact of these courts remain largely unknown. Addressing this gap, this innovative book examines the manner in which and the extent to which international courts and tribunals contribute to the rule of law at the national, regional, and international levels.

Contents after the jump

Kent on Edward Douglass White

Andrew Kent, Fordham University School of Law, has posted The Rebel Soldier Who Became Chief Justice of the United States: The Civil War and Its Legacy for Edward Douglass White of Louisiana:  

Edward Douglass White (LC)

Edward Douglass White (1844-1921) was appointed associate justice of the U.S. Supreme Court in 1894 when he was a sitting U.S. senator, and was elevated to chief justice in 1910. Given his background — White was a Democrat, Confederate veteran, sugar planter, and lawyer from New Orleans, and son of a Louisiana governor — one would have expected White to share the legal and political views of others of his background, class, and region, which were generally hostile to federal power and fervently in favor of white supremacy. Yet White was a nationalist on the Supreme Court. He was considered a de facto Republican by many prominent northern Republicans, and was elevated to the chief’s seat by William Howard Taft. As a justice White voted repeatedly to uphold expansive uses of Congress’s regulatory and taxing powers, including powers first exercised by the Union during the Civil War to tax income and raise armies by conscription. White did not have enlightened racial views, and joined the majority of the Court in Plessy v. Ferguson and other decisions that denied equal rights to African-Americans. But he also wrote the Court’s decisions holding unconstitutional that so-called “grandfather clauses” that were used in the South after the war to prevent African-Americans from voting, and voted in favor of civil rights in other important cases.

Previous biographers have recognized the importance of White’s experience as a Confederate soldier to his life and later judicial and political outlook. But the details they have published about White’s military service have been only brief and vague, and sometimes simply wrong. Relying on a far broader array of original and secondary sources than any previous study, this paper explores what exactly White did, saw, and experienced during the Civil War. Crucially, though, the story is also one about omissions and even deception by White. A newly-discovered document shows that he lied to Federal interrogators about his war service when he was captured in 1865. In later life White rarely spoke of the war, and when he did he offered almost no details about his service. He failed to correct the record when inaccurate biographical details about his service were published. His actual war service was almost certainly much less extensive and honorable than previous biographers have claimed. The most detailed information we possess shows him joining a marauding guerrilla band in rural Louisiana in the closing months of the war.

Later in life, the one thing that White clearly and honestly expressed about the war was deep regret that it occurred at all, anguish about its human toll and effect on his beloved country, and self-criticism about his youthful service on the Confederate side. This picture that emerges of White and his war service is much more complex than offered in previous biographical studies, and provides a surer foundation for assessing his life and judicial work, and accurately understanding his place in the country’s political and legal history.

Boettke et al. on Wife Sales

Peter J. Boettke,  Peter T. Leeson, and Jayme S. Lemke, George Mason University, have posted Wife Sales, which appeared in the Review of Behavioral Economics 1 (2014): 349-379:

For over a century, English husbands sold their wives at auctions. We argue that wife sales were an institutional response to an unusual constellation of property rights in Industrial Revolution-era English law. That constellation simultaneously required most wives to obtain their husbands’ consent to exit their marriages and denied most wives the right to own property. In doing so it precluded direct Coasean divorce bargains between spouses that could dissolve inefficient marriages when wives’ valuation of life outside their marriages was higher than husbands’ valuation of life inside them. To overcome this problem, spouses used wife sales to conduct divorce bargains indirectly. Wife-sale auctions achieved this by identifying and leveraging “suitors” — men who valued unhappy wives more than their current husbands, who unhappy wives preferred to their current husbands, and who had the property rights required to buy unhappy wives’ right to exit marriage from their husbands. The resulting transactions enabled unhappy wives in inefficient marriages to exit those marriages where English law otherwise prevented them from doing so.

Two from Witte on Luther and Law

John Witte Jr., Emory University School of Law, has posted two items from his backlist.  The first is “The Law Written on the Heart”: Natural Law and Equity in Early Lutheran Thought, in The Legal Teachings of the Protestant and Catholic Reformations, ed. Wim Dekock  (Göttingen: Vandenhoeck & Ruprecht, September 2014), 231-265:

This Article analyzes the transformation of Western legal philosophy in the sixteenth-century Lutheran Reformation, with a focus on the legal thought of theologian Martin Luther, moral philosopher Philip Melanchthon, and legal theorist Johann Oldendorp. Starting with Luther’s two kingdoms theory, Melanchton developed an intricate theory of natural law based not only on the law written on the hearts of all persons, but also on the law rewritten in the Decalogue, whose two tables provided the founding principles of religious law and civil law respectively. Building on both Luther and Melanchthon, Oldendorp developed an original theory of equity and equitable law making and law enforcement as part of a broader biblical-based theory of natural law. Together these writers, laid the foundations for a new legal, political, and social theory which dominated Lutheran Germany and Scandinavia for the next three centuries.

The second is The Mother of All Earthly Laws: The Lutheran Reformation of Marriage, which appeared in Gettysburg Seminary Ridge Review 15:2 (2013): 26-43:

Martin Luther and his colleagues transformed the theology and law of marriage and family life in sixteenth-century Germany and Scandinavia. They replaced the medieval Catholic views of marriage as a sacrament and celibacy as a superior institution, with a new view of marriage as a natural and necessary institution for all fit adults, clergy and alike, that brought private goods to the couple and their children and public goods to the community. These new theological teachings placed marriage and family life under secular rule, and introduced legal reforms that simplified the rules of marital formation and introduced divorce for cause and remarriage at least for the innocent party.

Balogh and Schulman's Edited Collection of Presidential History

The conference volume, Recapturing the Oval Office: New Historical Approaches to the American Presidency, edited by Brian Balogh, University of Virginia, and Bruce J. Schulman, Boston University, is now out from Cornell University Press:

Several generations of historians figuratively abandoned the Oval Office as the bastion of out-of-fashion stories of great men. And now, decades later, the historical analysis of the American presidency remains on the outskirts of historical scholarship, even as policy and political history have rebounded within the academy. In Recapturing the Oval Office, leading historians and social scientists forge an agenda for returning the study of the presidency to the mainstream practice of history and they chart how the study of the presidency can be integrated into historical narratives that combine rich analyses of political, social, and cultural history.

The authors demonstrate how "bringing the presidency back in" can deepen understanding of crucial questions regarding race relations, religion, and political economy. The contributors illuminate the conditions that have both empowered and limited past presidents, and thus show how social, cultural, and political contexts matter. By making the history of the presidency a serious part of the scholarly agenda in the future, historians have the opportunity to influence debates about the proper role of the president today.

TOC after the jump

Free's "Suffrage Reconstructed"

Laura E. Free, Hobart and William Smith Colleges, has published Suffrage Reconstructed: Gender, Race, and Voting Rights in the Civil War Era, with Cornell University Press:

The Fourteenth Amendment, ratified on July 9, 1868, identified all legitimate voters as "male." In so doing, it added gender-specific language to the U.S. Constitution for the first time. Suffrage Reconstructed is the first book to consider how and why the amendment's authors made this decision. Vividly detailing congressional floor bickering and activist campaigning, Laura E. Free takes readers into the pre- and postwar fights over precisely who should have the right to vote. Free demonstrates that all men, black and white, were the ultimate victors of these fights, as gender became the single most important marker of voting rights during Reconstruction.

Free argues that the Fourteenth Amendment's language was shaped by three key groups: African American activists who used ideas about manhood to claim black men's right to the ballot, postwar congressmen who sought to justify enfranchising southern black men, and women’s rights advocates who began to petition Congress for the ballot for the first time as the Amendment was being drafted. To prevent women’s inadvertent enfranchisement, and to incorporate formerly disfranchised black men into the voting polity, the Fourteenth Amendment’s congressional authors turned to gender to define the new American voter. Faced with this exclusion some woman suffragists, most notably Elizabeth Cady Stanton, turned to rhetorical racism in order to mount a campaign against sex as a determinant of one’s capacity to vote. Stanton’s actions caused a rift with Frederick Douglass and a schism in the fledgling woman suffrage movement. By integrating gender analysis and political history, Suffrage Reconstructed offers a new interpretation of the Civil War–era remaking of American democracy, placing African American activists and women’s rights advocates at the heart of nineteenth-century American conversations about public policy, civil rights, and the franchise.

Wong's "Racial Reconstruction"

Edlie L. Wong, University of Maryland, has published Racial Reconstruction: Black Inclusion, Chinese Exclusion, and the Fictions of Citizenship with the New York University Press:

The end of slavery and the Atlantic slave trade triggered wide-scale labor shortages across the U.S. and Caribbean. Planters looked to China as a source for labor replenishment, importing indentured laborers in what became known as “coolieism.” From heated Senate floor debates to Supreme Court test cases brought by Chinese activists, public anxieties over major shifts in the U.S. industrial landscape and class relations became displaced onto the figure of the Chinese labor immigrant who struggled for inclusion at a time when black freedmen were fighting to redefine citizenship.

Racial Reconstruction demonstrates that U.S. racial formations should be studied in different registers and through comparative and transpacific approaches. It draws on political cartoons, immigration case files, plantation diaries, and sensationalized invasion fiction to explore the radical reconstruction of U.S. citizenship, race and labor relations, and imperial geopolitics that led to the Chinese Exclusion Act, America’s first racialized immigration ban. By charting the complex circulation of people, property, and print from the Pacific Rim to the Black Atlantic, Racial Reconstruction sheds new light on comparative racialization in America, and illuminates how slavery and Reconstruction influenced the histories of Chinese immigration to the West.

Mirow on Latin American Constitutions, Part 7

With the arrival of 2016 in a few days, we will be only one year away from the centenary of the Mexican Constitution of 1917, the most important constitutional document in Latin America during the twentieth century. With U.S. recognition and having effectively defeated Pancho Villa’s forces, Venustiano Carranza, was ready to move forward with his “constitutionalist” movement in 1916. He called for a constitutional convention at Querétaro with the aim of reforming the Mexican Constitution of 1857. Those gathered at the convention included workers, farmers, miners, and railroad workers in addition to the expected assortment of lawyers, doctors, engineers, professors, and professionals. Although scholars debate the extent the popular voice was heard at the convention and represented in the Constitution, the assembly took on a more reformist and radical hue than Carranza probably expected, and under the presidency of Luis Manuel Rojas, the assembly reviewed and greatly revised the draft constitution proposed by Carranza. 

Even Carranza’s draft was something new in Latin American constitutionalism. It fused various trends into a new document that included, among others, individual rights, the secularization of education, limitations on employment contracts, freedom of the press, procedural rights for the criminally accused, freedom of religious beliefs, and electoral reform. The church, education, work, and land were the main areas of debate as the assembly pushed for greater reform than that found in Carranza’s draft. The Mexican Constitution of 1857 had done much to separate church and state in Mexico. The Constitution of 1917 created the supremacy of the state over the church. One article of the Constitution gave federal authorities exclusive jurisdiction in religion affairs, and another prohibited religious ceremonies or activities in public. Education, particularly primary instruction, was laicized.

Two articles addressing the “social question” are so important that I have to mention them by number. Article 27 is the famous provision dealing with property. It established fundamental ownership of property in the state and a view of property that was moderated by its function in and use by society. Large tracts were to be subdivided and distributed into agriculturally productive plots. Each group of people would have needed land and water. The same article (it runs several pages) created regulatory regimes for coal, oil, hydrocarbons, and minerals. Direct ownership of land and water was limited to Mexicans, and churches were prohibited from owning land. Lands improperly taken from indigenous groups would be returned and held communally. Article 123 set out rights for labor and provided constitutional grounds for Mexico’s subsequent extensive labor legislation. The article recognized trade unions and gave detailed rules on hours, minors, women, wages, vacation, safety, accidents, strike, arbitration, dismissal, and social security. Both articles passed with surprisingly little debate or discussion and stand as intellectual monuments of the Mexican Revolution. Ushering in a new era of social rights and interventionist economic theory, the Mexican Constitution of 1917 has served as a model and starting point in the region since its promulgation.

This is perhaps not a bad place to stop. I hope that through my selection of a few illustrations you have become more interested in this topic. My new year’s wish is that I have convinced you that the legal history of regional and transnational constitutionalism in the South Atlantic is well worth exploring, particularly as many scholars have recently given us a fuller and more international understanding of northern transatlantic constitutionalism. I think there is a certain complementarity available within these two constitutional worlds. It has been a pleasure writing a little about my work. I thank Dan and the Legal History Blog for this opportunity. Happy New Year.

Sunday Book Roundup

Here's a brief edition of the Sunday Book Roundup.

• The Los Angeles Times has a double review that includes both Tragic Encounters: The People's History of Native Americans by Page Smith (Counterpoint Press) and Masters of Empire: Great Lakes Indians and the Making of America by Michael McDonnell (Hill and Wang). 
• In The Wall Street Journal, John Fabian Witt reviews Lisa McGirr's The War on Alcohol: Prohibition and the Rise of the American State (Norton).
• The Los Angeles Review of Books has a review of Andrew Cornell's Unruly Equality: U.S. Anarchism in the Twentieth Century (University of California Press).
• Salon has an excerpt titled, "George W. Bush vs. Al Gore, 15 years later,"from the book, Ballot Battles: The History of Disputed Elections in the United States by Edward Foley (Oxford University Press).
• H-Net has a review of The Cause of All Nations: An International History of the American Civil War (Basic Books) by Don H. Doyle.
• The New Rambler has a review of The Constitution in Canada: An Introduction to its Development and Law by W.P.M. Kennedy (Oxford University Press).
• And, The New York Review of Books reviews Hamilton: An American Musical written by Lin Manuel Miranda and War of Two: Alexander Hamilton, Aaron Burr, and the Duel That Stunned the Nation by John Sedgwick (Berkley).

Moore's "Founding Sins"

Joseph S. Moore, Gardner-Webb University, has published Founding Sins: How a Group of Antislavery Radicals Fought to Put Christ into the Constitution with the Oxford University Press:

The Covenanters, now mostly forgotten, were America's first Christian nationalists. For two centuries they decried the fact that, in their view, the United States was not a Christian nation because slavery was in the Constitution but Jesus was not. Having once ruled Scotland as a part of a Presbyterian coalition, they longed to convert America to a holy Calvinist vision in which church and state united to form a godly body politic. Their unique story has largely been submerged beneath the histories of the events in which they participated and the famous figures with whom they interacted, making them the most important religious movement in American history that no one remembers.

Despite being one of North America's smallest religious sects, the Covenanters found their way into every major revolt. They were God's rebels--just as likely to be Patriots against Britain as they were to be Whiskey Rebels against the federal government. As the nation's earliest and most avowed abolitionists, they had a significant influence on the fight for emancipation. In Founding Sins, Joseph S. Moore examines this forgotten history, and explores how Covenanters profoundly shaped American's understandings of the separation of church and state.

While modern arguments about America's Christian founding usually come from the right, the Covenanters have a more complicated legacy. They fought for an explicitly Christian America in the midst of what they saw as a secular state that failed the test of Christian nationhood. But they did so on behalf of a cause--abolition--that is traditionally associated with the left. Though their attempts to insert God into the Constitution ultimately failed, Covenanters set the acceptable limits for religion in politics for generations to come.

de Leon's "Origins of Right to Work"

Cedric de Leon, Providence College, has published The Origins of Right to Work: Antilabor Democracy in Nineteenth-Century Chicago with the Cornell University Press:

“Right to work” states weaken collective bargaining rights and limit the ability of unions to effectively advocate on behalf of workers. As more and more states consider enacting right-to-work laws, observers trace the contemporary attack on organized labor to the 1980s and the Reagan era. In The Origins of Right to Work, however, Cedric de Leon contends that this antagonism began a century earlier with the Northern victory in the U.S. Civil War, when the political establishment revised the English common-law doctrine of conspiracy to equate collective bargaining with the enslavement of free white men.

In doing so, de Leon connects past and present, raising critical questions that address pressing social issues. Drawing on the changing relationship between political parties and workers in nineteenth-century Chicago, de Leon concludes that if workers’ collective rights are to be preserved in a global economy, workers must chart a course of political independence and overcome long-standing racial and ethnic divisions.

TOC after the jump

Mirow on Latin American Constitutions, Part 6

Despite the efforts of liberal deputies at the constituent assembly in Cádiz, the Constitution of Cádiz used racial classifications to define membership in the Spanish Nation. The structure set out by the Constitution is scattered among a few articles that must be read in conjunction with each other and was the product of months of debate. The Constitution made a distinction between “Spaniards” (españoles) and “citizens” (ciudadanos), the latter possessed political in addition to civil rights. This division had great significance to the Spanish populations in America. Before the promulgation of the Constitution, the assembly, known as the Cortes, decreed the equality of Spaniards of both hemispheres who were born in and whose origin was the Spanish territories. This transatlantic or imperial equality was incorporated into the text of the Constitution itself in Article 1 quoted in post 5.

 From the standpoint of the Americas, the question of the inclusion or exclusion of blacks and indigenous people was a battle for political power within the Cortes. Counting American blacks and indigenous people, the Americas would gain a majority voice within the representative structures contemplated by the deputies. Peninsular Spaniards worked diligently to ensure they maintained power, and accordingly narrowed the scope of citizenship. Many American deputies fought back. For example, José Miguel Guridi y Alcocer, a Mexican deputy, argued, “After having blacks suffer the injustice of enslaving their ancestors, for this very reason are they to be subjected to the other injustice of denying them the right of citizen? One injustice cannot be the reason or support for another.” Despite strong advocacy at the Cortes that the promise of hemispheric equality included racial equality and a broad net for defining citizens, free and enslaved blacks were excluded from the ranks of citizenship, although free blacks were Spaniards who might, under special circumstances, become citizens.

American deputies at the Cortes argued that indigenous people should be counted for the purposes of electoral censuses. They raised accounts of pre-Columbian civilizations, the theological works of de las Casas, and the status of indigenous people under derecho indiano as subjects of the Crown of Castile. Indigenous peoples were granted citizenship under the Constitution of Cádiz, but implementation of this new status was met with practical and social impediments. Indigenous individuals as citizens had solid legal authority to attack levies of money and work or social constraints that might be inconsistent with the Constitution. There were successes.

 Arguments to abolish the slave trade and slavery failed in the Cortes against supporters of these practices who raised fears of economic ruin and political upheaval as consequences of dismantling them. With some notable exceptions, many American deputies argued to maintain the slave trade and slavery.

The relationship between race and citizenship under the Constitution of Cádiz is more complex than I have been able to sketch out here. Nonetheless, I thought you might like to read a few of the provisions of the Constitution related to this topic.

Article 5. Spaniards are:

 First. All free men born and legal residents (avecindados) and their children in the dominion of the Spains. 

Second. Foreigners who have obtained a letter of naturalization from the Cortes. 

 Third. Those who without such letter have lived ten years as legal residents (de vecinidad), spent according to law, in any town of the Monarchy. 

 Fourth. Freed blacks once they have obtained liberty in the Spains. 

Article 18. Citizens are those Spaniards who by both bloodlines trace their origin from the Spanish dominions of both hemispheres and are legal residents (avecindados) in any town of the same dominions. 

Article 22. For Spaniards who by whatever bloodline have or are reputed to have their origins in Africa, the door to the virtue and merit of being citizens is left open: consequently the Cortes shall give a letter of citizenship to those who have performed proven services to the Country, or to those who have distinguished themselves by their talent, force and conduct with the condition that they are the children of a legitimate marriage of free parents (padres ingenuos), that they are married with a free woman (mujer ingenua), and legal residents (avecindados) in the Spanish dominions, and that they exercise some profession, office, or useful industry with their own capital. 

Article 28. The basis for national representation is the same in both hemispheres. 

Article 29. This basis is the population consisting of the natives (naturales) who by both bloodlines are of origin of the Spanish dominions, and of those who have obtained a letter of citizenship from the Cortes. . . .

I hope you find these provisions interesting. My next post will be my last as a guest blogger for December.

Continued

Smith on Australian State Income Taxation

Julie Smith, Australian National University Research School of Social Sciences, has posted Australian State Income Taxation: A Historical Perspective, Australian Tax Forum 30 (2015): 679-712:

Contrasting with social insurance taxes and the key revenue raising role of VAT for northern European welfare states, Australia’s income tax has funded expansion of Australia’s social security system. The uniform income tax plan of 1942 unified Australia’s system of income taxes, and was central to funding the introduction of Australia’s unique social security system, establishing national child endowment, unemployment benefits and the widows’ pension in 1944.

This article will describe the increasing reliance of Australian states on income taxation during the period 1915 to 1942, and the constraints arising from the increasing mobility of taxpayers and post-Federation economic integration; show how these states’ income tax policies responded to the economic shocks of the Depression which depleted the states’ revenues contemporaneously with increasing demands on governments to provide social protection; and identify how the concepts, design and administration of state income taxes were embedded in Australia’s national tax and social security systems established between 1942 and 1944.

The design of Australia’s unified income tax system was not based on a clean slate, nor was it simply an expedient response to wartime revenue or macroeconomic management needs. In this article, it is shown to be based on an income tax template derived closely from Australian state income taxes during the interwar period, reconfigured by the economic shocks of the Depression years, and glued together by federal/state finance institutions and agreements which redistributed national revenues to less affluent jurisdictions. Income tax unification addressed the key barriers to funding adequate social protection that had confronted states during the Depression.

Dorsaneo on the History of Texas Civil Procedure

William V. Dorsaneo III, Southern Methodist University Dedman School of Law, has posted The History of Texas Civil Procedure, which appeared in the Baylor Law Review 65 (2013):

The promulgation of rules of court by the Texas Supreme Court has been the principal mechanism for the regulation of proceedings in Texas courts. This article provides a historical overview of the development of these rules, the rule-making process, the impact of procedural rule-making on the administration of justice in Texas courts, and the continuing need for revision and reorganization of the Texas Rules of Civil Procedure. This article also acknowledges the enormous debt that is owed to the Texas judges, lawyers, and professors who have participated in the rule-making process, mostly without plaudits or even public recognition. In a small way, this paper attempts to pay that debt.

A Bookstore's Reading List on WW, Princeton, and Race

At right is a display suggesting what the folks at Labyrinth Books in Princeton, New Jersey, are recommending for insight into the recent campus controversy: a lot on Woodrow Wilson and two by the legal historian and LHB guest blogger Alfred L. Brophy: Reconstructing the Dreamland and Reparations: Pro and Con (as well as some other good books).

Slow Posting Ahead

Your Legal History Bloggers will be out and about until shortly after the New Year's Day, and although we do have quite a few posts scheduled for you, we won't be as timely as usual in relaying the news.  Thank you for your readership in 2015; see you in 2016.

Tate on Magna Carta and Due Process

Joshua C. Tate, Southern Methodist University Dedman School of Law, has posted Magna Carta and the Fundamental Right to Due Process, which appears in Magna Carta: 800 Anos de Influência no Constitucionalismo e nos Direitos Fundamentais, ed. Zulmar Fachin, Jairo Néia Lima, and Éverton Willian Pona (2015), 129-137:

The 800th anniversary of Magna Carta has been marked by much pageantry and celebration. Some scholars have taken this opportunity to point out that the myth of Magna Carta is far greater than what the actual 1215 Charter managed to accomplish. Nevertheless, Magna Carta did make a meaningful and concrete contribution to due process in 1215, as shown by certain provisions that are seemingly overlooked by critics eager to downplay the Charter's importance. This Article highlights two lesser known clauses of Magna Carta that had real contemporary significance in guaranteeing the availability of jury trial for some categories of civil litigation. The ringing promises of Clauses 39 and 40 may have inspired great jurists and founders of nations, but the more humble Clauses 17 and 18 – specifying the proper location and manner of hearing certain civil cases – must also be taken into account in assessing the Charter's importance.

Langer on Fortescue on Adversarial and Inquisitorial Systems

Maximo Langer, UCLA School of Law, has posted In the Beginning Was Fortescue: On the Intellectual Origins of the Adversarial and Inquisitorial Systems, which is forthcoming in Liber Amicorum in Honor of Professor Damaška (Duncker & Humblot, 2016):

The distinctions between adversarial and inquisitorial systems and between common and civil law have been central to comparative criminal procedure. Comparativists and historians have written on the history of these systems. The predominant account is that the inquisitorial system originated in continental Europe around the twelfth and thirteenth centuries when the Catholic Church and individual secular jurisdictions established professional bureaucracies to prosecute and adjudicate crime, authorized the initiation of legal process by public officials, and adopted a system of legal proof and legal torture. As for the adversarial system, the predominant account states that it originated in the eighteenth century when English law and judges gradually authorized the participation of professional defense attorneys in felony trials, which gradually led to the adoption of common law rules of evidence and to the redefinition of the role of judges as passive umpires, among other changes.

I want to write a different history of these categories: an intellectual history or genealogy about how the adversarial and inquisitorial systems and common and civil law became central categories of comparative criminal procedure. Rather than asking when the adversarial and inquisitorial systems’ rules and institutional features originated, I am interested in a different set of questions, such as: 1) when, how and why judges, legal practitioners, policy-makers, and scholars around the world started to think that the contrast between Anglo-American and continental European jurisdictions was central to the comparative understanding of criminal process; 2) when, how and why judges, practitioners, policy-makers, and scholars started to think that the doctrinal and institutional differences between Anglo-American and continental European criminal processes were based on different epistemological paradigms for how the legal process does or should produce truthful verdicts; 3) when, how and why judges, practitioners, policy-makers, and scholars started to think that these legal and institutional differences could be explained through or were associated with differences between Anglo-American and continental European societies and cultural values and with different conceptions of the state; and 4) when, how and why judges, legal practitioners, policy-makers, and scholars started to use the adversarial and inquisitorial categories as a way to make sense of the differences between Anglo-American and continental European jurisdictions.

Sir John Fortescue (credit)

In this chapter, I want to start writing this genealogy or intellectual history by analyzing Sir John Fortescue and his book De Laudibus Legum Angliae, that he wrote between 1468 and 1471. I argue here that Fortescue made at least five crucial contributions to comparative criminal procedure that have survived to this day. First, he was among the very first to concentrate on analysis of the differences between criminal process in civil law and English common law and to offer a specific conceptualization to capture these differences. Second, Fortescue used the distinction between civil law and English common law in both a descriptive and a normative sense, and argued for the superiority of the English legal process. In addition, Fortescue claimed that England’s criminal process was superior to the civil law’s criminal process because it was more accurate. Fourth, Fortescue argued that there is a relationship between common law and civil law criminal processes and the societies in which they operate. As a consequence, he claimed that English criminal process could not be transplanted to other jurisdictions. Finally, Fortescue claimed that there is a close relationship between the criminal processes in common law and civil law and types of political authority.

Learn Archival Research at the Wilson Center

The History and Public Policy Program of the Woodrow Wilson Center has issued a call for applications for its 2016 Summer Institute on Conducting Archival Research.

Applications are now being accepted for the 2016 Summer Institute on Conducting Archival Research.  the Summer Institute on Conducting Archival Research (SICAR) is a four-day seminar in which Ph.D. students receive training in conducting archival research from world-class faculty, researchers, archivists, and publishers. Although archival research is an integral part of many academic disciplines, it is virtually never taught at the graduate level. SICAR fills this critical gap in graduate education.

In 2016, SICAR is being jointly organized by the Wilson Center’s History and Public Policy Program and The George Washington University’s Cold War Group. The 2016 workshop will be held during the week of May 23-May 27 (exact schedule TBA).

Coquillette and Kimball's "On the Battlefield of Merit"

Daniel R. Coquillette, Boston College Law School, and Bruce A. Kimball, the Ohio State University, have published On the Battlefield of Merit: Harvard Law School, the First Century, with the Harvard University Press:

Harvard Law School is the oldest and, arguably, the most influential law school in the nation. U.S. presidents, Supreme Court justices, and foreign heads of state, along with senators, congressional representatives, social critics, civil rights activists, university presidents, state and federal judges, military generals, novelists, spies, Olympians, film and TV producers, CEOs, and one First Lady have graduated from the school since its founding in 1817.

During its first century, Harvard Law School pioneered revolutionary educational ideas, including professional legal education within a university, Socratic questioning and case analysis, and the admission and training of students based on academic merit. But the school struggled to navigate its way through the many political, social, economic, and legal crises of the century, and it earned both scars and plaudits as a result. On the Battlefield of Merit offers a candid, critical, definitive account of a unique legal institution during its first century of influence.

Daniel R. Coquillette and Bruce A. Kimball examine the school’s ties with institutional slavery, its buffeting between Federalists and Republicans, its deep involvement in the Civil War, its reluctance to admit minorities and women, its anti-Catholicism, and its financial missteps at the turn of the twentieth century. On the Battlefield of Merit brings the story of Harvard Law School up to 1909—a time when hard-earned accomplishment led to self-satisfaction and vulnerabilities that would ultimately challenge its position as the leading law school in the nation. A second volume will continue this history through the twentieth century.

HUP posted a pointer to an interview of Professor Coquillette on WBUR on the Royall family and the controversy over Harvard Law School’s official seal.

TOC after the jump

Sunday Book Roundup

From The New York Times, there is a double review of Nut Country: Right-Wing Dallas and the Birth of the Southern Strategy by Edward H. Miller (University of Chicago Press) and Right Out of California: The 1930s and the Big Business Roots of Modern Conservatism by Kathryn S. Olmsted (The New Press).

Also in The NYT is a review of Harold Holzer and Norton Garfinkel's A Just and Generous Nation: Abraham Lincoln and the Fight for American Opportunity (Basic Books).

Here's two from H-Net. Sean Condon's Shays's Rebellion: Authority and Distress in Post-revolutionary America (Johns Hopkins University Press) is reviewed.

"Condon's narrative is free from historiographical discussion or argument, though a brief bibliographic essay ends the book. There are five chapters, bookended by a prologue that portrays the Worcester Court closing in September 1786 and an epilogue that considers the event's impact on the U.S. Constitutional Convention and Massachusetts's ratifying convention in 1787. The book uses primary and secondary sources familiar to any scholar of the event...In terms of the materials used and ground covered, there is nothing new here, but Condon's interpretation merits close attention. Among the book-length manuscripts (dissertations too) specific to Shays's Rebellion, this one is the most sympathetic to the Bowdoin administration in terms of its legislative agenda, its military suppression of the rebellion, and its prosecutions (and executions) for treason. Condon seems to be building on work performed in shorter essays by Richard Buel Jr. and William A. Pencak."

There is also a review of Stephen E. Towne's Surveillance and Spies in the Civil War: Exposing Confederate Conspiracies in America's Heartland (Ohio University Press).

"Over eleven chapters, plus a brief introduction and postscript, Towne narrates the rise of an ad hoc military surveillance system in the Midwest. He attributes its existence first and foremost to the inability of civilian law enforcement to deal with the problem of subversion, citing underfunding and lack of initiative in the US Marshals Service, the Office of the Attorney General, and the Department of the Interior. These early chapters are perhaps the best in the book, and Towne convincingly describes the bureaucratic and legal hurdles facing civil authorities."

From HNN there is a review of Eric Rauchway's The Money Makers: How Roosevelt and Keynes Ended the Depression, Defeated Fascism, and Secured a Prosperous Peace (Basic Books).

Weekend Roundup

• We learned via an email message you may also have received that we may now renew our membership in the American Society for Legal History for 2016 via “the secure server hosted by Cambridge University Press."  Also, "for the first time, multi-year memberships of up to three years are available.” We urge LHB readers who aren't already ASLH members to join, as that would be the best way to support constitutional and legal history as an academic field and, thereby, give us things to blog about.

• We believe most of our readers have encountered at one time or another the "outdated laws on the books" news story, usually concerning some American state.  ICYMI, here, from earlier in the week, is the New York Times's story on Great Britain's "silly" statutes.

• We hope refreshments will be served. 

• From The University of Chicago Magazine: "One evening in December 2007, University trustee David M. Rubenstein, JD’73, found himself in a small side room at Sotheby’s New York City auction house, the new owner of the only copy of the Magna Carta in America."

• More ICYMI: Via HNN: Michael Kazin on Trump; Ibram X. Kendi on Wilson.

• Friday marked the anniversary of the Supreme Court's decision in Korematsu v. United States (upholding the executive order that resulted in Japanese American removal and internment during World War II). In the LA Times, John Inazu (Washington University, St. Louis) and Karen Tani (UC Berkeley) write about why the decision still matters.

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

Call for Applications: Penn DCC Postdoc

Another helpful job posting from H-Net, this one for a postdoctoral position in the Penn Program on Democracy, Citizenship, and Constitutionalism:

CALL FOR APPLICATIONS

2016-2017 Academic Year

Application Deadline: February 15, 2016

The Penn Program on Democracy, Citizenship, and Constitutionalism (DCC) invites applications for a one-year DCC Postdoctoral Fellow in any discipline whose research is pertinent to the Program’s 2016-2017 theme, “Citizenship on the Edge: Sex/Gender/Race.”  

Although the privileges and protections provided by the state are never entirely secure, there are those whose gender, sexual, and racial positioning give them an especially precarious hold on both the legal and symbolic rights of citizenship.  In its 2016-17 theme year, “Citizenship on the Edge: Sex/Gender/Race,” Penn DCC examines the struggles of vulnerable groups to gain or maintain their status as full citizens, recognizing at the same time that the edge they inhabit can be a cutting edge.  In the U.S., women and men of color confront police violence, high rates of incarceration, and attempts to roll back voting rights, while women of all backgrounds contend with the persistence of sexual violence, labor exploitation, and family disintegration.  And while 2015 saw great strides in LGBTQ rights with the achievement of marriage equality and growing public awareness of trans women and men, there is ongoing resistance to these developments.  Globally, anti-gay legislation and violence, state repression, ethnic conflict, and human trafficking for sex and forced labor have all affected the meaning, status and enactment of citizenship, as well as the strategies individuals and communities have publicly mobilized for the recognition of their personhood.

The DCC program welcomes applicants engaged in empirical or normative scholarship, focused comparatively or on particular nations, regions, or communities, that explores these questions and seeks to assess the complex impact of the radically evolving media landscape on democratic politics, as well as on the closely related issues of citizenship and constitutional government.

The Democracy, Citizenship, and Constitutionalism program is an interdisciplinary initiative, funded by the Mellon Foundation, which includes a faculty seminar series and annual conference on themes chosen by the Program’s Faculty Advisory Council; a graduate workshop series; and undergraduate research grants.  The DCC Postdoctoral Fellow is expected to participate in the faculty seminar series, teach an Undergraduate Seminar on a related topic, and join monthly meetings to discuss the progress of undergraduates receiving research grants.  The Fellow also has the opportunity to pursue the Fellow’s research and study and participate generally in the intellectual life of the Penn community. Stipend is $53,800, plus health insurance.

More information is available here.

Stern on Blackstone on Property

Anyone who, likes me, assigns excerpts from Blackstone to first-year Property students will want to read the draft introduction to Book II of the forthcoming Commentaries on the Laws of England, which Wilfrid Prest is editing for Oxford, by Simon Stern of the University of Toronto Faculty of Law:

This draft excepts three of the six sections in the introduction to Book II, on the law of property ("Of the Rights of Things") in William Blackstone's Commentaries on the Laws of England. The volume forms part of the Oxford Edition of Blackstone, and is due out in 2016. The three sections excepted here cover the aims of Book II, its treatment of property (including intellectual property), and its influence. Blackstone is often praised in vague terms for his style, and the section on his influence also attempts to explain concretely some of the stylistic features that distinguish his writing. Besides an introduction, each volume in this edition includes the editorial changes that Blackstone made to successive editions of the Commentaries, explanatory footnotes, and tables of the cases, statutes, and legal texts that he cites. The introduction to each volume discusses the book’s aims, subject matter, publication, reception, sources, and influence.

Bogazici University Seeks Post-doc on Islamic Law in the Ottoman Empire

Via H-Net, we have the following call for applications:

Postdoctoral Fellowship focusing on Confessional Dynamics in Islamic Legal Thought and Practice in the Ottoman Empire, 15^th-18^th centuries, at Bogazici University

Starting date: September 01, 2016
Application deadline: January 30, 2016
Duration: Two years

While the study of Islamic law in the early modern Ottoman Empire has long been an important avenue of scholarly investigation, the field has gained a new dynamism in recent years with the publication of several studies that combine the perspectives of legal, religious and more broadly, intellectual history with those of social and political history.  These studies have made it clear that both the interpretation and the practice of Islamic law in the Ottoman lands underwent some significant transformations in the early modern period.  It has also become evident that these transformations in legal thought and practice were closely related to the processes of state-building, territorialization and confession-building in the same period.  However, it still remains to be examined in what ways confessional polarization and the crystallization of confessional boundaries between Muslims, Jews and Christians of various denominations impacted and were impacted by the various developments in legal theory and practice in the Ottoman Empire between the late fifteenth and eighteenth centuries.

With the goal of building on the existing scholarship and opening it up to new questions related to confession-building, we invite proposals for a two-year postdoctoral project exploring some aspect of Islamic law in connection with the confessional politics of the early modern Ottoman Empire.  We are especially interested in studies that trace how the boundaries between belief and unbelief were drawn and redrawn, and how normative Sunni identity was defined and redefined in terms of beliefs, practices and code of conduct in the legal manuals and fetva collections as well as other relevant sources, from the late fifteenth through the early eighteenth centuries.  Topics that could be discussed under this broad rubric include but are not limited to: legal debates on canonical and non-canonical forms of worship; Sufi and popular religious beliefs and practices; non-conformist Muslim communities; religio-legal norms regarding relations between Muslims and non-Muslims in everyday life as well as in more specific issues such as inter-faith and inter-confessional marriage and commercial partnerships; changing understandings and practices of conversion to (Sunni) Islam and the status of converts, etc.  Because of the research priorities of our larger project, we would prefer studies that focus on the confessional dynamics of legal culture in Rumeli and Anatolia, where the Hanefi legal school predominated.  However, we also welcome projects that would examine intra-madhhab and inter-madhhab plurality in other parts of the empire provided that they also incorporate into their analysis relations with the Ottoman Hanefi establishment.

More information is available here.

Brown University Seeks Postdoctoral Fellow in Slavery and Justice

Via H-Net, we have the following call for applications:

The Center for the Study of Slavery and Justice at Brown University invites applications for a one-year position (2016-2017) as the Ruth J. Simmons Postdoctoral Fellow in Slavery and Justice.

The Center for the Study of Slavery and Justice (CSSJ) is a scholarly research center with a public humanities mission. Recognizing that racial and chattel slavery were central to the historical formation of the Americas and the modern world, the CSSJ creates a space for the interdisciplinary study of the historical forms of slavery while also examining how these legacies shape our contemporary world. We are also attentive to contemporary forms of human bondage and injustice. The Center is devoted to interdisciplinary scholarly research around issues of racial slavery, contemporary forms of injustice, as well as freedom.

Applicants should have Ph.D. in any humanities or social science discipline and have received their degree within the last five years (or will obtain a Ph.D. by June 2016) and work on questions concerning the historical formations of slavery in global or comparative terms; issues concerning contemporary forms of indentured servitude; philosophical, historical, and theoretical questions concerning slavery, justice, and freedom.  Consideration will also be given to candidates whose work pays special attention to contemporary issues and legacies of slavery.  Applicants working on questions of gender, contemporary racial formations, public history, and memory are welcome.  The successful applicant will be expected to be an active participant in the Center’s regular brown bag lunch series, and will have the option to teach a course in the semester of his/her choosing.

The fellowship stipend will be $45,000- $50,000.

Search Opens December 15. Deadline is February 15, 2016.

More information is available here.

Nelson on Civil Forfeiture and the Constitution

Caleb Nelson, University of Virginia School of Law, has posted Civil Forfeiture and the Constitution, which is forthcoming in the Yale Law Journal:    

Many state and federal statutes provide that when property is used in certain prohibited ways, ownership of the property instantly passes to the government. Often, the statutes allow these forfeitures to be declared in civil proceedings against the property itself, without the normal safeguards of the criminal process. Indeed, if no one claims the property after proper notice, the government’s assertion of ownership can become incontestable without any judicial proceedings at all. Statutes authorizing such civil or administrative forfeiture might seem like egregious violations of both property rights and criminal-procedure rights guaranteed by the federal Constitution. But while forfeiture statutes may be unfair and unwise, this paper cautions originalists not to assume that they are unconstitutional. The paper concludes that the original meaning of the Constitution (as liquidated by historical practice) does not foreclose the three key features of forfeiture statutes considered here—the fact that noncriminal forfeiture typically proceeds in rem rather than in personam, the fact that people often must file timely claims in order to trigger judicial proceedings, and the fact that claimants are not afforded the procedural protections that the Constitution requires for criminal defendants.

Mirow on Latin American Constitutions, Part 5

I see the Constitution of Cádiz as the foundation of Latin American constitutionalism. The Constitution sought to perpetuate monarchy when forms of absolutism were being challenged. It sought to maintain imperial structures as empires were giving way to the pressures of new political thought. The Constitution advanced popular representation and national sovereignty in the name of a king. It established a perpetual confessional Roman Catholic state as it espoused liberal ideas and institutions including representative electoral bodies at different levels of government, imposed restrictions on the power of the king, and mandated rights for the criminally accused. It sought the creation of codes that would be applied equally in courts of general jurisdiction without regard to individual status. Thus, the Constitution of Cádiz is properly viewed as an early and important text in the Age of Democratic Revolutions when constitutionalism and national sovereignty challenged absolutism. Here are some articles of the Constitution of Cádiz you might find interesting:

Article 1. The Spanish Nation is the reunion of all Spaniards of both hemispheres.

Article 2. The Spanish Nation is free and independent, and is not able to be the patrimony of any family or person.

Article 3. Sovereignty resides essentially in the Nation, and by the same, the right to establish its fundamental laws belongs exclusively to it.

Article 4. The Nation is obliged to preserve and protect by wise and just laws, civil liberty, property, and the other legitimate rights of all the individuals who make up the Nation.

Article 12. The religion of the Spanish Nation is and shall always be the Catholic, apostolic, Roman, the only true religion. The Nation protects it by wise and just laws and prohibits the exercise of any other religion.

Article 13. The purpose of the Government is the happiness of the Nation, since the end of all political society is no other than the well-being of the individuals who make up the Nation.

Article 258. Civil, criminal, and commercial codes shall be the same for all the Monarchy, without prejudicing variations that the Cortes shall make in particular circumstances.

I look forward to writing about the “individuals who make up the Nation” in my next post.

Continued

Global Perspectives on Legal History/New Horizons in Spanish Colonial Law

[We have the following announcement from our friends at the Max Planck Institute for European Legal History.]

With New Horizons in Spanish Colonial Law. Contributions to Transnational Early Modern Legal History, the Max Planck Institute for European Legal History presents the third publication in its book series "Global Perspectives on Legal History."

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

More information on the series and forthcoming volumes [is here.]

Thomas Duve, Heikki Pihlajamäki (eds.) New Horizons in Spanish Colonial Law. Contributions to Transnational Early Modern Legal History.  Global Perspectives on Legal History 3. Frankfurt am Main: Max Planck Institute for European Legal History 2015. 268 p., € 13,72 D ISBN: 978-3-944773-02-5. Open Access Online Edition.  Print-on-demand

Spanish colonial law, derecho indiano, has since the early 20th century been a vigorous subdiscipline of legal history. One of great figures in the field, the Argentinian legal historian Víctor Tau Anzoátegui, published in 1997 his Nuevos horizontes en el estudio histórico del derecho indiano. The book, in which Tau addressed seminal methodological questions setting tone for the discipline’s future orientation, proved to be the starting point for an important renewal of the discipline. Tau drew on the writings of legal historians, such as Paolo Grossi, Antonio Manuel Hespanha, and Bartolomé Clavero. Tau emphasized the development of legal history in connection to what he called “the posture superseding rational and statutory state law.” The following features of normativity were now in need of increasing scholarly attention: the autonomy of different levels of social organization, the different modes of normative creativity, the many different notions of law and justice, the position of the jurist as an artifact of law, and the casuistic character of the legal decisions. Moreover, Tau highlighted certain areas of Spanish colonial law that he thought deserved more attention than they had hitherto received. One of these was the history of the learned jurist: the letrado was to be seen in his social, political, economic, and bureaucratic context. The Argentinian legal historian called for more scholarly works on book history, and he thought that provincial and local histories of Spanish colonial law had been studied too little.

Within the field of historical science as a whole, these ideas may not have been revolutionary, but they contributed in an important way to bringing the study of Spanish colonial law up-to-date. It is beyond doubt that Tau’s programmatic visions have been largely fulfilled in the past two decades. Equally manifest is, however, that new challenges to legal history and Spanish colonial law have emerged. The challenges of globalization are felt both in the historical and legal sciences, and not the least in the field of legal history. They have also brought major topics (back) on to the scene, such as the importance of religious normativity within the normative setting of societies. These challenges have made scholars aware of the necessity to reconstruct the circulation of ideas, juridical practices, and researchers are becoming more attentive to the intense cultural translation involved in the movement of legal ideas and institutions from one context to another. Not least, the growing consciousness and strong claims to reconsider colonial history from the premises of postcolonial scholarship expose the discipline to an unseen necessity of reconsidering its very foundational concepts. What concept of law do we need for our historical studies when considering multi-normative settings? How do we define the spatial dimension of our work? How do we analyze the entanglements in legal history?

Until recently, Spanish colonial law attracted little interest from non-Hispanic scholars, and its results were not seen within a larger global context. In this respect, Spanish colonial law was hardly different from research done on legal history of the European continent or common law. Spanish colonial law has, however, recently become a topic of interest beyond the Hispanic world. The field is now increasingly seen in the context of “global legal history”, while the old and the new research results are often put into a comparative context of both European law of the early Modern Period and other colonial legal orders.

In this volume, scholars from different parts of the Western world approach Spanish colonial law from the new perspectives of contemporary legal historical research.

Gordon on International Criminal Law, 1894-1900

Gregory S. Gordon, Chinese University of Hong Kong Faculty of Law, has posted International Criminal Law's "Oriental Pre-Birth": The 1894-1900 Trials of the Siamese, Ottomans and Chinese, a reprint from Historical Origins of International Criminal Law, ed. M. Bergsmo et al. Volume 4  (TOAEP 2015), 4: 119-180:

Conventional wisdom often traces the origins of international criminal law (ICL) to the 1474 prosecution for atrocities in Alsace of Burgundian governor Peter von Hagenbach and then straight to the Nuremberg and Tokyo trials post-World War II. But this paper demonstrates that history has ignored a remarkable decade at the end of the nineteenth century when three international criminal proceedings with links to the Orient took place: (1) in 1894, a French-Siamese mixed court sat in judgment of Phra Yot, a Siamese governor charged with the death of a French military commander; (2) in 1898, an International Military Commission of four European powers prosecuted versions of war crimes and crimes against humanity arising from Muslim-Christian inter-communal violence on the Ottoman-controlled island of Crete; and (3) in 1900, another international criminal tribunal, this one also consisting of four European powers, presided over the trial of participants in the Boxer Rebellion for proto-crimes against humanity.

More after the jump.

Gutman Labor History Dissertation Prize

[We have the following announcement.]

The Labor and Working Class History Association (LAWCHA) is pleased to announce its annual Herbert Gutman Dissertation Prize, established with the cooperation with the University of Illinois Press. LAWCHA, founded in 1998, encourages the study of working-class men and women, their lives, workplaces, communities, organizations, cultures, activism, and societal contexts. It aims to promote an international, theoretically informed, comparative, interdisciplinary, cross-cultural, and diverse labor and working-class history.

The dissertation prize is named in honor of the late Herbert G. Gutman, a pioneering labor historian in the U.S. and a founder of the University of Illinois Press’s “Working Class in American History” Series. LAWCHA hopes that the spirit of Gutman’s inquiry into the many facets of labor and working-class history will live on through this prize. The winner will receive a cash prize of $500 from LAWCHA along with up to $500 in travel expenses to attend the awards ceremony, and a publishing contract with the University of Illinois Press. The prize award is contingent upon the author’s acceptance of the contract with the University of Illinois Press.

Eligible dissertations must be in English, concerned with U.S. labor and working-class history broadly conceived, and defended in the academic year 2014-15 (September 1, 2014-August 31, 2015). Applicants are not required to be members of LAWCHA at the time of the submission. The winner will be announced at our national conference.

To apply for the Gutman Prize, email LAWCHA@Duke.edu the title of your dissertation, the date of your defense, the name of your advisor, and a PDF copy of the dissertation; and mail (3) three hard copies of the dissertation and a letter of endorsement from the dissertation advisor stating the date of the defense by January 3rd, 2016 to:

LAWCHA
226 Carr Building (East Campus)
Duke University
Box 90719
Durham, NC 27708

For more information, visit our website.

Happy Bill of Rights Day!

ConSource invites you to celebrate "Bill of Rights Day" today by visiting its website.

Alton on Jackson and the Court-Packing Plan

Stephen R. Alton, Texas A&M University School of Law, has dipped into his backlist and published  Loyal Lieutenant, Able Advocate: The Role of Robert H. Jackson in Franklin D. Roosevelt's Battle with the Supreme Court, which appeared in the William & Mary Bill of Rights 5 (1997): 527-618:

This Article presents a chronological, narrative account of Jackson's participation in the court fight over Roosevelt's so-called "court packing plan." The larger history of that campaign and its players also are presented in order to illuminate Jackson's role. Although a number of secondary works-both old and new-review the history of the fight, the main purpose here is to relate Jackson's part in this larger history, drawing on. those secondary works only to the extent that they are helpful. This Article first recounts the historical background of the tension between the New Deal and the Supreme Court as well as the Roosevelt administration's proposed solution to the problem. An examination of Jackson's initial efforts on behalf of the administration in its struggle with the Court follows.

Next, the Article presents an analysis of the Senate Judiciary Committee Hearings on the proposed legislation to reorganize the federal judiciary, with particular emphasis placed on Jackson's testimony before that body. A discussion of Jackson's post-hearings participation in the combat over the Supreme Court follows, after which the Article continues with a brief look at the Court's surprising about-face and the death of the President's plan. The Article concludes with comments about Roosevelt's struggle with the Supreme Court and the importance of Jackson's role in that struggle.

HLS's Berger-Howe Legal History Fellowship

[We have the following announcement.]

Harvard Law School invites applications for the Berger-Howe Legal History Fellowship for the academic year 2016-2017. Eligible applicants include those who have a first law degree, who have completed the required coursework for a doctorate, or who have recently been awarded a doctoral degree. A J.D. is preferred, but not required. We will also consider applicants who are beginning a teaching career in either law or history.

The purpose of the fellowship is to enable the fellow to complete a major piece of writing in the field of legal history, broadly defined. There are no limitations as to geographical area or time period. Fellows are expected to spend the majority of their time on their own research. They also help coordinate the Harvard Law School Legal History Colloquium, which meets several times during the year. Fellows are invited to present their own work at the colloquium. Fellows will be required to be in residence at the law school during the academic year (September through May).

Applicants for the fellowship for 2016-2017 should submit their applications and supporting materials electronically to Professor Bruce H. Mann (mann@law.harvard.edu). Applications should outline briefly the fellow's proposed project (no more than five typewritten pages) and include a writing sample and a curriculum vitae that gives the applicant's educational background, publications, works in progress, and other relevant experience, accompanied by official transcripts of all academic work done in college and at the graduate level. The applicant should arrange for two academic references to be submitted electronically. The transcripts may be sent by regular mail to Professor Mann at Harvard Law School, Cambridge, Massachusetts 02138.

The deadline for applications is February 15, 2016, and announcement of the award will be made by March 15, 2016. The fellow selected will be awarded a stipend of $38,000.

A Post-Doc on "Confessional Dynamics" in Islamic Law

[We have the following call for a postdoctoral fellowship.]

 Postdoctoral Fellowship focusing on Confessional Dynamics in Islamic Legal Thought and Practice in the Ottoman Empire, 15th-18th centuries at Bogazici University. 

Starting date: September 01, 2016.  Application deadline: January 30, 2016.  Duration: Two years.

While the study of Islamic law in the early modern Ottoman Empire has long been an important avenue of scholarly investigation, the field has gained a new dynamism in recent years with the publication of several studies that combine the perspectives of legal, religious and more broadly, intellectual history with those of social and political history.  These studies have made it clear that both the interpretation and the practice of Islamic law in the Ottoman lands underwent some significant transformations in the early modern period.  It has also become evident that these transformations in legal thought and practice were closely related to the processes of state-building, territorialization and confession-building in the same period.  However, it still remains to be examined in what ways confessional polarization and the crystallization of confessional boundaries between Muslims, Jews and Christians of various denominations impacted and were impacted by the various developments in legal theory and practice in the Ottoman Empire between the late fifteenth and eighteenth centuries.

With the goal of building on the existing scholarship and opening it up to new questions related to confession-building, we invite proposals for a two-year postdoctoral project exploring some aspect of Islamic law in connection with the confessional politics of the early modern Ottoman Empire.  We are especially interested in studies that trace how the boundaries between belief and unbelief were drawn and redrawn, and how normative Sunni identity was defined and redefined in terms of beliefs, practices and code of conduct in the legal manuals and fetva collections as well as other relevant sources, from the late fifteenth through the early eighteenth centuries.  Topics that could be discussed under this broad rubric include but are not limited to: legal debates on canonical and non-canonical forms of worship; Sufi and popular religious beliefs and practices; non-conformist Muslim communities; religio-legal norms regarding relations between Muslims and non-Muslims in everyday life as well as in more specific issues such as inter-faith and inter-confessional marriage and commercial partnerships; changing understandings and practices of conversion to (Sunni) Islam and the status of converts, etc.  Because of the research priorities of our larger project, we would prefer studies that focus on the confessional dynamics of legal culture in Rumeli and Anatolia, where the Hanefi legal school predominated.  However, we also welcome projects that would examine intra-madhhab and inter-madhhab plurality in other parts of the empire provided that they also incorporate into their analysis relations with the Ottoman Hanefi establishment.

Recipients of 2015 Cromwell Research Fellowships

We just realized that we failed to announce the winners of this year's Cromwell Research Fellowships, awarded at the recent meeting of the American Society for Legal History. These early career scholars are the future of our field and deserve recognition. They are:

Brooke Depenbusch (University of Minnesota)

Smita Ghosh (University of Pennsylvania)

Alexandra Havrylyshyn (University of California, Berkeley)

Amanda Hughett (Duke University)

Mary Mitchell (University of Pennsylvania)

Jeffrey Thomas Perry (Purdue University)

Kathryn Schumaker (University of Oklahoma)

Evan Taparata (University of Minnesota)

Lee B. Wilson (Clemson University)

Congratulations to all!