Brown on Penology and Colonialism

Mark Brown, Melbourne University, published Penal Power and Colonial Rule (Routledge) back in 2014. From the publisher:

This book provides an account of the distinctive way in which penal power developed outside the metropolitan centre. Proposing a radical revision of the Foucauldian thesis that criminological knowledge emerged in the service of a new form of power – discipline – that had inserted itself into the very centre of punishment, it argues that Foucault’s alignment of sovereign, disciplinary and governmental power will need to be reread and rebalanced to account for its operation in the colonial sphere. In particular it proposes that colonial penal power in India is best understood as a central element of a liberal colonial governmentality. 

To give an account of the emergence of this colonial form of penal power that was distinct from its metropolitan counterpart, this book analyses the British experience in India from the 1820s to the early 1920s. It provides a genealogy of both civil and military spheres of government, illustrating how knowledge of marginal and criminal social orders was tied in crucial ways to the demands of a colonial rule that was neither monolithic nor necessarily coherent. The analysis charts the emergence of a liberal colonial governmentality where power was almost exclusively framed in terms of sovereignty and security and where disciplinary strategies were given only limited and equivocal attention.  

Drawing on post-colonial theory, Penal Power and Colonial Rule opens up a new and unduly neglected area of research. An insightful and original exploration of theory and history, this book will appeal to students and scholars of Law, Criminology, History and Post-colonial Studies.

More after the jump.

Call for Applications: ASLH Kathryn T. Preyer Scholars

[Re-posting to remind readers of the upcoming deadline (July 8). Graduate students, please apply! And graduate student advisors, please encourage your students!]

We have the following announcement from the ASLH:

Kathryn T. Preyer Scholars (American Society for Legal History)

Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to young legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two early career legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. The generosity of Professor Preyer’s friends and family has enabled the Society to offer a small honorarium to the Preyer Scholars and to reimburse, in some measure or entirely, their costs of attending the meeting. The competition for Preyer Scholars is organized by the Society’s Kathryn T. Preyer Memorial Committee.

Submissions are welcome on any topic in legal, institutional and/or constitutional history. Early career scholars, including those pursuing graduate or law degrees, those who have completed their terminal degree within the previous year, and those independent scholars at a comparable stage, are eligible to apply. Papers already submitted to the ASLH Program Committee–whether or not accepted for an existing panel–and papers never previously submitted are equally eligible. Once selected, Preyer Award winners must present their paper as part of the Preyer panel, and they will be removed from any other panel.

Submissions should be a single MS Word document consisting of a complete curriculum vitae, contact information, and a complete draft of the paper to be presented. Papers must not exceed 40 pages (12 point font, double-spaced) and must contain supporting documentation. In past competitions, the Committee has given preference to draft articles and essays, though the Committee will still consider shorter conference papers, as one of the criteria for selection will be the suitability of the paper for reduction to a twenty-minute oral presentation. The (new, extended) deadline for submission is July 8, 2016.

Kathryn T. Preyer Scholars will receive a $500 cash award and reimbursement of expenses up to $750 for travel, hotels, and meals. Each will present the paper that s/he submitted to the competition at the Society’s annual meeting. The Society’s journal, Law and History Review, has published several past winners of the Preyer competition, though it is under no obligation to do so.

Please send submissions as Microsoft Word attachments by July 8, 2016, to the chair of the Preyer Committee, Serena Mayeri, University of Pennsylvania <email>. She will forward them to the other committee members.

The 2016 Preyer Memorial Committee

Serena Mayeri, (2013), Chair, University of Pennsylvania <email>

Sam Erman (2013), University of Southern California <email>

Melissa Hayes (2014), Independent Scholar <email>

Michael Hoeflich (2014), University of Kansas <email> 

H. Timothy Lovelace (2014), Indiana University <email>

Bruinsma and others on Transnational Crime

Histories of Transnational Crime (Springer, 2015) edited by Gerben Bruinsma, Netherlands Institute for the Study of Crime and Law Enforcement, came out last year. From the publisher: 

Histories of Transnational Crime provides a broad, historical framework for understanding the developments in research of transnational crime over the centuries. This volume provides examples of transnational crime, and places them in a broad historical context, which has so far been missing from this field of study. The contributions to this comprehensive volume explore the causes and historical precursors of six main types of transnational crime: -piracy -human smuggling -arms trafficking -drug trafficking -art and antique trafficking -corporate crime. The historical contributions demonstrate that transnational crime is not a novel phenomenon of recent globalization and that, beyond organized crime groups, powerful individuals, governments and business corporations have been heavily involved. Through a systematic historical and contextual analysis of these types of transnational crime, the contributions to this volume provide a fundamental understanding of why and how various forms of transnational crime are still present in the contemporary world. In the past two decades, the study of transnational crime has developed from a subset of the study of organized crime to its own recognized field of study, covering distinct societal threats and requiring a particular approach.

TOC after the jump.

Brown on Property Ownership among Former Slaves

Eleanor Marie Brown, George Washington University Law School, has posted On the Evolution of Property Ownership Among Former Slaves, Newly Freedmen, which is forthcoming in the
Journal of Law, Property, and Society.

One might think of the slave property system of provision grounds (or “provisioning”) in the West Indies as a happy coalition of interests between planters (who wanted to provide slaves incentives to feed themselves), Westminster (who wanted well-fed slaves to ensure the productivity of the sugar sector, a hefty tax contributor to the Exchequer), and slaves (who saw the advantages of a system which ensured that they were fed and encouraged private enterprise). Yet while this was generally true, notably, not all members of the plantocracy viewed these developments as positive. An outspoken minority feared that the roots of the ultimate failure of plantation society would lie in the slave provisioning system. Moreover, they pointed to the resistance of the plantocracy in the U.S. South to private enterprise among slaves as the preferable course. The views of this outspoken minority ultimately proved prescient, as a struggle over true ownership of provisioning plots played out against the backdrop of Emancipation in the British colonies.

I focus on the era immediately after British Emancipation. During slavery planters were willing to grant slaves provisioning plots because the planters themselves exacted a benefit from doing so; they essentially “outsourced” the job of feeding the slaves to the slaves themselves. Once labor became free, this benefit vanished. Planters began to wonder how to handle ex-slaves farming provision grounds. Although provision grounds were de facto (perceived to be) slave property, typically these lands were instead de jure planter property (plots at the edge of the plantations for which the planters held title).

The issue became particularly acute in the aftermath of Emancipation, when planters sought to “tie” former-slaves-turned-freedmen to the plantations to secure a reliable workforce. Newly freed, the former slaves had no obligation to accept planters’ “offers” of employment on the plantations.

Property acquisition during slavery (when there were no formal protections) turned out to be singularly important in determining who continued to remain in the employ of the plantation post-Emancipation. The irony is that the extensive nature of the provisioning system (which acculturated slaves to a form of “property-and-contract-lite”) made it less likely that ex-slaves continued to remain in the employ of the planters once leaving became a viable choice. West Indian freedmen who already had a taste of property ownership were typically not enamored with long-term plantation employment.

Following this logic, one might predict that planters in the U.S. South would ultimately prove more successful in maintaining a long-term plantation-like society (even after the abolition of slavery) than their West Indian counterparts because they never allowed provisioning to develop. This prediction is spot-on. In particular, the early demise of status relationships that undergirded plantation society in the West Indies had much to do with the general failure of share tenancy (and its most popular iteration, sharecropping) in the West Indies.

In a system of sharecropping, a landowner allows a tenant to use the land in return for a share of the crops produced on the land. This significantly reduces the strain that up-front labor costs place on a plantation’s cash-flow. Although now most widely associated in the popular American imagination with the U.S. South, sharecropping has a long historical heritage that pre-dates Southern plantation society. Sharecropping was attractive to the West Indian planter for the same reason that it was attractive to the Southern planter – primarily as a mechanism of tying slaves to the plantations while saving on labor costs.

In summary, both planters in the West Indies and the U.S. South sought to institutionalize sharecropping arrangements. But it is largely because of the provisioning system that West Indian planters fail in their efforts, while Southern planters succeed. West Indian slaves opted instead in large numbers to use the money that they had accumulated from contracting at food markets during slavery to buy their own land and become de jure property owners.

Bocksang Hola on “The Birth of Independent Chile’s Administrative Law”

[We recently noted the publication of El Nacimiento del Derecho Administrativo Patrio de Chile, by Gabriel Bocksang Hola, Profesor de Derecho Administrativo, Facultad de Derecho at the Pontificia Universidad Católica de Chile.  When we learned of the book, we invited Professor Bocksang Hola to discuss it on LHB.  We are very pleased he took us up on our offer.  His remarks appear below.]

Among Latin American scholars, there is a common, almost instinctive idea about the origins of Administrative Law in the territories that had belonged to the Crown of Spain: that they simply copied foreign models after their independence (achieved in the 1810s and 1820s), assuming that, among these, the most influential was the French system. Nevertheless, being myself a Chilean, I had an additional, even more worrying concern. There were grounds to suppose that, in my country, judicial review of Administrative action had disappeared or substantially weakened in the decades following since the revolution of the independence. But the lack of thorough studies in this field left many questions to answer.

I decided to systematically challenge both claims. I suspected that the answer to both matters would be negative, because of the results of a short paper I had published in 2011, titled “The Sources of Chilean Administrative Law before the Civil Code.” On the one hand, this quick inspection had led me to realize that judicial review had been operative during these years, although with some peculiar characteristics. On the other hand, noticing that the rules that judges still applied in the 1840s and 1850s were mostly derived from the ancient Spanish law, such as the Partidas of 1265, or more recent compilations, as the Novísima Recopilación of 1805, I had understood that it was impossible that the Administrative Law régime in Chile would have been the mere product of a transplant of French law–or any other law alien to the Hispanic tradition.

Realizing that the influence of this tradition over independent Chile, and its dialogue with foreign influences as well, would be more obviously noticeable before judicial reception of Chilean codification, I decided to perform an in-depth study of the period extending from the unconscious beginnings of the Independence (1810) until the beginning of the widespread application of the Chilean Civil Code (around 1860).

Zhang, "Cultural Paradigms in Property Institutions"

Taisu Zhang (Yale Law School) has posted "Cultural Paradigms in Property Institutions," a comparative historical piece that is forthcoming in the Yale Journal of International Law. Here's the abstract:

Do “cultural factors” substantively influence the creation and evolution of property institutions? For the past several decades, few legal scholars have answered affirmatively. Those inclined towards a law and economics methodology tend to see property institutions as the outcome of self-interested and utilitarian bargaining, and therefore often question the analytical usefulness of “culture.” The major emerging alternative, a progressive literature that emphasizes the social embeddedness of property institutions and individuals, is theoretically more accommodating of cultural analysis but has done very little of it.

This Article develops a “cultural” theory of how property institutions are created and demonstrates that such a theory is particularly powerful in explaining large-scale institutional differences between societies. Empirically, it argues that, in the two centuries before large-scale industrialization, China, England, and Japan displayed systematic and fundamental differences in their regulation of property use and transfer. It further argues that these legal and institutional differences are best explained by certain aspects of social culture, specifically by the criteria for sociopolitical status distribution. Some of these criteria are distinctly “cultural” in the sense that they were probably generated by the widespread social internalization of moral values, rather than by utilitarian bargaining.

Cultural paradigms can exist, therefore, in property institutions. If we assume, as conventional law and economics urges, that individuals generally approach property use and regulation through a self-interested and utilitarian mindset, their pursuit of personal utility can nonetheless be constrained or empowered by cultural norms of status distribution that determine their relative bargaining power.

The full article is available here.

Hat tip: Legal Theory Blog

Ideology and the Supreme Court: The BackStory Episode

BackStory, a radio show and podcast by Ed Ayers, Brian Balogh, and Peter Onuf, recently posted the episode Above The Fray? Ideology & the Court, with guests Nina Totenberg, Jeffrey Rosen, RonNell Anderson Jones, Kevin Gutzman, Larry Kramer, and Jeff Shesol:

As of June 2016, the Republican-controlled Senate is still refusing to consider President Obama’s nominee for the Supreme Court and fill the vacant seat – a reflection of the divisive atmosphere roiling Washington. Such conflict is hardly new to the high court. 

The Supreme Court and its decisions, nominations and justices have often–if not always–been instruments of political power. And politics have also shaped the Court in unanticipated ways. In this episode, the Guys will examine why the Supreme Court is regarded as an institution that remains above partisan squabbles. From Marbury v. Madison, the case that helped to form the court as we know it today, to the failed nomination of conservative judge Robert Bork, we’ll look at the fascinating and often unexpected ways in which political ideologies inform judicial actions on the highest court in the land.

Perlingeiro on European and American Influences on Administrative Law in Latin America

[Last November, we noted the Portuguese version of "A Historical Perspective on Administrative Jurisdiction in Latin America: Continental European Tradition versus US Influence," by Ricardo Perlingeiro, Universidade Federal Fluminense; Tribunal Regional Federal da 2a Região.  He has now published an English-language version, in the British Journal of American Legal Studies 5 (2016): 241-89]

From the perspective of US influence, this text analyses the history of administrative jurisdiction, starting from the 19th Century, in the 19 Latin American countries of Iberian origin (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Uruguay and Venezuela). The analysis includes the US unified judicial system and procedural due process of law to decisions by the administrative authorities, the fertile field of primary jurisdiction, which is in conflict with the Continental European tradition firmly established in Latin American administrative law. While setting out the contradictions of administrative jurisdiction in Latin American countries that result from importing rules without putting them in the proper context, the text seeks to identify trends and create perspective to build a model of administrative justice specific to Latin America, drawing on the accumulated experience of the United States and Continental Europe.

ASLH Student Research Colloquium

[We're moving up this announcement, from McCurdy Fellow Ananda V. Burra, because the deadline of July 15 is approaching.]

I write on behalf of the Graduate Student Outreach Committee of the American Society for Legal History (ASLH).  The ASLH is organizing its third annual Student Research Colloquium in late October, to be held in conjunction with the Society's annual meeting in Toronto, Canada.
We seek graduate students in history, in law, and in related disciplines whose research interests touch on legal history. Our colloquium provides a wonderful opportunity for students to build professional friendships with established academics and each other, as they workshop drafts of dissertation chapters, law review articles, and other in-progress works under the guidance of leading scholars in the field.  The ASLH will provide funding (up to a generous limit) for students to travel to Toronto to participate in both the student event and the Society's annual meeting.   

The ASLH meeting is one of the world’s largest conferences in the field of legal history and provides an invaluable opportunity for junior scholars to meet people and learn about the field.

We are particularly hoping to attract applicants who have not had an opportunity to attend the Society's annual meeting in the past.  Students who might not define themselves as legal historians but whose work engages legal-historical themes are encouraged to apply.  All chronological periods and geographical fields are welcome.  The application is due on July 15, 2016, to srcproposals@aslh.net.

The ASLH is committed to broadening the world of legal history and we count on your assistance to do so.  If you have any questions about the program, please contact me at aburra@umich.edu or the director of the program, Professor John Wertheimer, at jowertheimer@davidson.edu.

Macias, "Legal Science in the Early Republic"

New from Lexington Books: Legal Science in the Early Republic: The Origins of American Legal Thought and Education (May 2016), by Steven J. Macias (Southern Illinois University Carbondale). A description from the Press:

This work examines the intellectual motivations behind the concept of “legal science”—the first coherent American jurisprudential movement after Independence. Drawing mainly upon public, but also private, sources, this book considers the goals of the bar’s professional leaders who were most adamant and deliberate in setting out their visions of legal science. It argues that these legal scientists viewed the realm of law as the means through which they could express their hopes and fears associated with the social and cultural promises and perils of the early republic. Law, perhaps more so than literature or even the natural sciences, provided the surest path to both national stability and international acclaim. While legal science yielded the methodological tools needed to achieve these lofty goals, its naturalistic foundations, more importantly, were at least partly responsible for the grand impulses in the first place. This book first considers the content of legal science and then explores its application by several of the most articulate legal scientists working and writing in the early republic.

Blurbs from Al Brophy and Michael Hoeflich after the jump:

Sunday Book Roundup

Given the heterodox news this week, it is perhaps appropriate that this week's roundup is both eclectic and extensive.

For starters, The Times Literary Supplement has issued a review essay featuring recent scholarship relevant to Britain's relationship with Europe.  Also directly relevant to the brexit is The New Statesman's review of Brendan Simms' Britain's Europe: A Thousand Years of Conflict and Cooperation.

Several outlets have published reviews of Nancy Isenberg's White Trash: The 400-Year Untold History of Class in America.  In his New York Times review, Tom Sugrue lauds aspects of the book while simultaneously arguing that Isenberg "falls prey to one of the most common and pernicious
fallacies in American popular discourse about class" insofar as she treats "America’s landless farmers and precarious workers [as] by default white."  White Trash is also reviewed at Slate and the Washington Post (both of which commend Isenberg's provocative research but ambivalent treatment of race).

This week's Washington Post has a review of Carol Anderson's White Rage: The Unspoken Truth of Our Racial Divide and also a review of Michael Graetz and Linda Greenhouse's The Burger Court and the Rise of the Judicial Right.  In the latter review it is argued that "Graetz and Greenhouse contend that the dominant assessment of the Burger years severely understates the legal transformation that occurred during this period. “The Burger Court dramatically diminished the scope and impact of the Warren Court precedents: they survived, but only their façade was left standing,” the authors conclude.'"

The New York Times has also published several other pertinent reviews this week.  Graetz and Greenhouse's The Burger Court and the Rise of the Judicial Right is reviewed.  Also in the NYT is a review of Carol Anderson's White Rage: The Unspoken Truth of Our Racial Divide.  The NYT also carries a review of William N. Goetzmann's Money Changes Everything: How Finance Made Civilization Possible.  Lastly, the NYT has a review of Calvin Trillen's
Jackson, 1964: And Other Dispatches from Fifty Years of Reporting on Race in America.

In The Nation is a review of David Price's Cold War Anthropology: The CIA, the Pentagon, and the Growth of Dual Use Anthropology.  Price's work traces the twentieth-century history of  entanglement between anthropology and the security state.   His work is described as provocatively suggesting that "one of the first things the Martian [anthropologists] would notice would be the Americans’ consistent aversion to any reminder of their work’s enmeshment in larger political developments. It drives Price crazy that his own tribe—the tribe of tribe studiers—could be so myopic about itself."

NPR's Fresh Air has an engaging interview with Wendy Warren in which her work on African-American and indigenous slavery in colonial New England is discussed.  The work is: New England Bound: Slavery and Colonization in Early America.

At the New Books Network are several interviews of possible interest.  Thomas Knock is interviewed in relation to his The Rise of a Prairie Statesman: The Life and Times of George McGovern.  Kenyon Zimmer is interviewed about his Immigrants against the State: Yiddish and Italian Anarchism in America.  Anthea Kraut speaks to the New Books Network about Choreographing Copyright: Race, Gender, and Intellectual Property Rights in American Dance.  Finally, there is an intriguing interview with Edlie Wong about her Racial Reconstruction: Black Inclusion, Chinese Exclusion, and the Fictions of Citizenship.

In The New Statesman is a review of Shiraz Maher's Salafi-Jihadism: The History of an Idea, an intellectual exploration of Salafism's historical roots.

The Guardian carries a review of Frank Trentman's wide-ranging Empire of Things: How We Became a World of Consumers, from the Fifteenth Century to the Twenty-First.  

The Oxonian Review includes a review of Lawrence Brockliss' The University of Oxford: A New History.

Weekend Roundup

• Two posts of interest from Notches: (1) "History from the Witness Stand": Rachel Hope Cleves (University of Victoria) interviews George Chauncey (Yale University). (2) "More Than Loving": blogger Jennifer Dominique Jones (University of Alabama) writes about "Race, Sexuality and Public Memory in the Movement for Marriage Equality."

• From Environment, Law, and History: word that the Environmental Law Institute "recently uploaded interviews with 24 people involved in creating the legal framework for modern environmental law in the US."

• DailyHistory.org brings us its American Legal History Top Ten Booklist. The list deliberately omits titles by Lawrence Friedman and Morton Horwitz, who already dominate most lists of classics.

• Annette Gordon-Reed, Harvard Law School, will deliver the keynote address at the ninth annual S-USIH Conference, to be held in Dallas October 26-29, 2017.  The conference’s theme is “Histories of Memory, Memories of History.”  H/t: L. D. Burnett

• Tracey Meares, Yale Law School, will will deliver the Chautauqua Institution’s twelth annual Robert H. Jackson Lecture on the Supreme Court of the United States, on Monday, July 11, 2016, at 4:00 p.m. in Chautauqua’s Hall of Philosophy.

• Via Balkinization: "Linguists at Brigham Young University are launching a 100 million word corpus of general Founding-era English." Lawrence Solan (Brooklyn Law School) offers some thoughts on the project. 

• An interview with Harvard’s Laurel Thatcher Ulrich, author of A Midwife's Tale.

• Itching to do some research in the archives of a Dutch castle? Look no further than Otto Vervaart's tour of manors, towers, and castles on Rechtsgeschiedenis Blog (scroll down to "A note on Dutch archival collections").

•  “On Thursday, June 30, 2016 ...  the Franklin D. Roosevelt Presidential Library and AT&T will formally announce [the digital transferal of] ten of FDR’s most important speeches from the original film stock to new state-of-the-art HD and 4K Ultra HD video. “ More.

• ICYMI: the Live Law New Orleans podcast is now up on Life of the Law.  And, over at H-Law, Nurfadzilah Yahaya posted on A Sixteenth-Century Fatwa Collection: Islamic Law in “Periphery."

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

ASLH Projects and Proposals Committee Invites Applications

[We have the following announcement.  Note especially the good news that a Hurst Summer Institute will be held in Summer 2017.]

The Projects and Proposals Committee of the [American Society for Legal History] is now open for business.  We welcome a variety of proposals for new initiatives that will advance the “cause” of legal history.  The kinds of proposals we are mandated to consider by the Board of Directors and what we need from applicants [appear here and are reproduced below].  All proposals need to be submitted in full before September 15, 2016, so that they can be considered in advance of the fall meeting of the Board of Directors.  Questions should be directed to Dirk Hartog, chair of the committee, at hartog@princeton.edu. [To elaborate:]

The Projects and Proposals Committee of the American Society for Legal History exists to encourage new initiatives in the study and presentation and production of legal historical scholarship and in the communication of legal history to all its possible publics and audiences. It is the mission of the committee to find ways to bring talented new voices into our field, to encourage novel forms of scholarly interchange, to support pedagogical experiments in legal history, and to seed new forms and venues for public history.

The Board of Directors of the American Society for Legal History has asked the Committee to offer particular encouragement to two arenas for growth in the field. First, we have been asked to help internationalize legal history, by which we mean both to support ways to widen the study of legal history beyond its core Anglo-American base and to bring a global array of scholars and students of legal history into conversation with one another. And second, we have been asked to find ways to bring a younger generation of scholars and students into the field.  In pursuit of the latter goal, we have made a substantial commitment of the Society's resources to maintain the Hurst Summer Institute, which will be held in Madison in June 2017.

But beyond those particular arenas for initiative, we encourage proposals that are engaged both with what may seem to be "traditional" subjects in legal history and ones that move off in non-traditional ways. In the past, we have supported conferences (including the costs of bringing participants together, who could not afford to come otherwise), and we have supported internationalizing exchanges. We would consider subventions of scholarly publications or of museum exhibits or pedagogical experiments or of any number of other collective pursuits. We do not support individual research projects. Nor will we recommend for funding projects that have already been funded at the recommendation of the committee three times. We are not a funding source for ongoing and recurrent activities of the field or of the Society.

Most of the projects we have supported have been in the 4000 to 6000 dollar range. Ordinarily, we would expect that projects would have other institutional collaborators and/or cosponsors (including home universities). Proposals may come from educational institutions or from informal groups or networks of individuals. In most cases, someone involved in the proposal will be a member of the Society.

We issue a yearly call for proposals. That call will be sent to all members of the American Society for Legal History later in June 2016. Our deadline for receiving applications will be September 15, 2016. The committee will then review the proposals, with the goal of recommending a list to the Board of Directors of the Society in preparation for their meeting in late October 2016.  [Our relatively informal application form is here.]

Two by Lettow Lerner, on Americans' Magna Carta, Trial by Jury and Judical Comment on Evidence

Renee Lettow Lerner, George Washington University Law School, has posted two papers.  The first is The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury, in Magna Carta and its Modern Legacy, ed. Robert Hazell and James Melton (Cambridge University Press 2015), 77-98:

Many Americans insisted on their traditional rights as Englishmen in the conflict with Britain before and after declaring independence. Magna Carta — particularly the provisions concerning the “law of the land” and “judgment of his peers” — embodied fundamental rights of Englishmen that American revolutionaries were willing to fight to protect. As Edward Coke had found more than a century before, American revolutionaries understood that invoking such an ancient document inspired resistance to authority.

Americans cherished Magna Carta most because of its association with jury trial. Juries had proved useful to Americans in their conflict with Britain. Colonial American juries had nullified the law of seditious libel, customs taxes, and debts to British merchants. It was no wonder Americans held the jury in high esteem, at least until they had to run their own governments. Americans filled their constitutions, both federal and state, with rights to jury trial. Several American states even included translations of provisions from Magna Carta in their constitutions, enshrining the “judgment of his peers.” Once Americans had achieved independence and formed the new republics, judges faced the task of interpreting these thirteenth-century provisions as eighteenth- and nineteenth-century law. American judges quoted Blackstone and historical treatises. Through the nineteenth century, however, American enthusiasm for juries waned. The much-repeated phrases from Magna Carta became a flimsy screen, masking the steady decline of jury power.

The second is How the Creation of Appellate Courts in England and the United States Limited Judicial Comment on Evidence to the Jury, which appears in the Journal of the Legal Profession 40 (2016): 215-69:

Isaac Parker (wiki)

The practice of judicial comment on the evidence has traditionally been the main form of jury control. Previous scholarly work has focused on the loss of the power in state courts, and has attributed the decline of judicial comment to a strict separation of functions between judge and jury and to regional differences in legal culture. This article examines two jurisdictions in which the power of comment long remained strong, at least in theory: the High Court of England, with its predecessors, and the federal courts in the United States. In both jurisdictions, judicial power to comment has been limited and in practice reduced, in the federal courts severely. The article reveals that this limitation developed with the advent of courts of appeal with separate personnel and especially of appeals in criminal cases.

Lack of appeal, or limited appeal, has been a distinctive trait of common law systems, particularly in criminal cases. There was no appeal as of right in criminal cases until 1907 in England, and 1889 in the federal courts. In the federal system, the early movements to allow appeals in criminal cases and to limit judicial comment on evidence focused on controlling a particular judge: Isaac Parker, U.S. District Judge for the Western District of Arkansas, who presided over more than 100 trials for capital crimes occurring in the Indian Territory from 1875 to 1896.

Ms. Peppercorn Considers: How To Fill a Dissertation Committee Vacancy

Our advice-columnist-in-residence, Ms.Peppercorn, is in constant demand! MOVE OVER, OPRAH!!

Dear Ms. Peppercorn,

Help! My dissertation committee has a vacancy and I have an academic etiquette question that's perfectly suited to your expertise. There's a professor in my department that I'd like to add to the group, but she is burdened with quite a few obligations and I want to respect her limits. How should I pop the question?

Thanks,

Stressed in the student lounge

Dear SITSL:

It’s a busy week for Ms. P! Vacancies do occur, it’s true, and a faculty member rarely volunteers for a committee post. That said, watching the evolution of a dissertation and the growth of a scholar in training is honestly one of old Peppercorn’s most favorite aspects of the life we lead. After all, welcoming a newly minted PhD to the field is about the most satisfying thing one can do in an academic’s life that -- let’s be frank – includes a lot of tasks that are nowhere near as rewarding. In addition, it’s part of the job description, so turning down a student who asks you to be on his/her committee seems, well, small minded, to Ms P’s way of thinking.

That said, if the topic is too far afield, one could perhaps understand that a given faculty member might decline the invitation. With that caveat, Ms P says firmly “ask away”! We look forward to hearing from SITSL that all is resolved satisfactorily.

Spiro on the Past and Future of Dual Citizenship

Peter J Spiro, Temple University Beasley School of Law, has just published At Home in Two Countries: The Past and Future of Dual Citizenship (NYU Press).

The rise of dual citizenship could hardly have been imaginable to a time traveler from a hundred or even fifty years ago. Dual nationality was once considered an offense to nature, an abomination on the order of bigamy. It was the stuff of titanic battles between the United States and European sovereigns. As those conflicts dissipated, dual citizenship continued to be an oddity, a condition that, if not quite freakish, was nonetheless vaguely disreputable, a status one could hold but not advertise. Even today, some Americans mistakenly understand dual citizenship to somehow be “illegal”, when in fact it is completely tolerated. Only recently has the status largely shed the opprobrium to which it was once attached.

At Home in Two Countries charts the history of dual citizenship from strong disfavor to general acceptance. The status has touched many; there are few Americans who do not have someone in their past or present who has held the status, if only unknowingly. The history reflects on the course of the state as an institution at the level of the individual. The state was once a jealous institution, justifiably demanding an exclusive relationship with its members. Today, the state lacks both the capacity and the incentive to suppress the status as citizenship becomes more like other forms of membership. Dual citizenship allows many to formalize sentimental attachments. For others, it’s a new way to game the international system. This book explains why dual citizenship was once so reviled, why it is a fact of life after globalization, and why it should be embraced today.

Endorsements include:

"Peter Spiro has been the leading scholar of dual citizenship for more than two decades, and he has prophetically linked its rise to still more far-reaching transformations in the global system of nation-states and nation-state citizenship. This provocative yet engaging work is a major statement that will inform and influence citizenship scholarship and political debates for many years to come."

—Rogers M. Smith, Christopher H. Browne Distinguished Professor of Political Science, University of Pennsylvania

TOC after the jump

Cushman on the Taft Court, Viewed from the Docket Books

Barry Cushman, Notre Dame Law School, continues his investigation of the docket books of the US Supreme Court with Inside the Taft Court: Lessons from the Docket Books, published in the volume 2015 of the Supreme Court Review but available in draft on SSRN.  Here is the abstract:

CJ William Howard Taft (LC)

For many years, the docket books kept by certain of the Taft Court justices have been held by the Office of the Curator of the Supreme Court. Yet the existence of these docket books was not widely known, and access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the Taft Court docket books held by the Office of the Curator, which are the only such docket books known to have survived.

This article examines the available docket book entries relevant to what scholars commonly regard as the major decisions of the Taft Court. This examination includes 117 cases concerning areas of law as diverse as the Commerce Clause, the dormant Commerce Clause, substantive due process, equal protection, the general law, antitrust, intergovernmental tax immunities, criminal procedure, civil rights, and civil liberties. The information in the docket books, which frequently includes notes of conference discussions, sheds particularly interesting new light on decisions such as Whitney v. California, Village of Euclid v. Ambler, Adkins v. Children’s Hospital and its successor minimum wage cases, Pierce v. Society of Sisters, Buck v. Bell, Frothingham v. Mellon, Wolff Packing v. Court of Industrial Relations, Fiske v. Kansas, Tyson & Bro. v. Banton, Coronado Coal v. United Mine Workers, Corrigan v. Buckley, Miles v. Graham, Brooks v. United States, and Radice v. New York. The docket books also provide records of instances in which a case that initially was assigned to one justice later was reassigned to another. These records afford us some insight into the kinds of cases in which this tended to occur, and provide an opportunity to document for the first time the long held suspicion that the notoriously slow-writing Justice Willis Van Devanter frequently was relieved of his opinions by the Chief Justice.

In addition, this article reports on whether a unanimous decision also was free from dissent at conference or became so only because one or more justices acquiesced in the judgment of their colleagues, and on whether non-unanimous decisions were divided by the same vote and with the same alliances at conference. This in turn makes possible contributions to two bodies of political science literature on judicial behavior: first, to the scholarship on vote fluidity and unanimity norms in the Supreme Court; and second, to the so-called “freshman effect” argued by some to characterize the voting behavior of newcomers to the Court.

McNicholas on Forgery and Impersonation

Mark McNicholas, Penn State Altoona, published Forgery and Impersonation in Imperial China: Popular Deceptions and the High Qing State (University of Washington Press) earlier this year. Here is a summary of the book:

Across eighteenth-century China a wide range of common people forged government documents or pretended to be officials or other agents of the state. This examination of case records and law codes traces the legal meanings and social and political contexts of small-time swindles that were punished as grave political transgressions.

Praise includes:

"Sheds new light on the interstices among state, society, and economy . . . [and] expands the field of Chinese social and legal history." -Thomas Buoye

"Richly documented with archival sources, Forgery and Impersonation in Imperial China explores the highly advanced and standardized Qing bureaucracy and the inevitable consequences of its imperfect mastery of advanced technologies of power: forgery, counterfeit, and impersonation, which stand out as aspects of early modernity itself." -Par Cassel

Full information is available here.

The Great New Orleans Kidnapping Case

As part of its series “Tripod: New Orleans at 300,” New Orleans’s NPR station (WWNO) has recently aired an interview with Michael Ross, University of Maryland, on his book The Great New Orleans Kidnapping Case: Race, Law, and Justice in the Reconstruction Era (Oxford, 2015).  The podcast and accompanying story are here.  From the standpoint of confederates, Professor Ross explained, Reconstruction was the world turned upside down.  "White men and black men could serve together on a jury and reach a unanimous verdict of acquitting two African American women of a sensational crime because they believe the government did not prove its case.”

Mallard and Sgard on Contracts in Global Markets

Just out is a volume edited by Grégoire Mallard (Graduate Institute of International Studies, Geneva) and Jérôme Sgard (Sciences Po, Paris): Contractual Knowledge: One Hundred Years of Legal Experimentation in Global Markets (Cambridge, 2016). The press description notes that the collection

 extends the scholarship of law and globalization in two important directions. First, it provides a unique genealogy of global economic governance by explaining the transition from English law to one where global exchanges are primarily governed by international, multilateral, and finally, transnational legal orders. Second, rather than focusing on macro-political organizations, like the League of Nations or the International Monetary Fund, the book examines elements of contracts, including how and by whom they were designed and exactly who (experts, courts, arbitrators, and international organizations) interpreted, upheld, and established the legal validity of these contracts. By exploring such micro-level aspects of market exchanges, this collection unveils the contractual knowledge that led to the globalization of markets over the last century.

The book proposes a new view of globalization centered on the role of international private law. It offers a much-needed historical and comparative perspective on recent financial crises. And it examines international market governance on multiple levels, from governments to private lobbies and extra-territorial courts. 

Blurbs and Table of Contents after the jump.

Schlegel on the Great Recession and Recent Legal Thought

John Henry Schlegel, SUNY Buffalo Law School, has posted . . . and Law, which is forthcoming in In Search of Contemporary Legal Thought, ed. Justin Desautels-Stein and Christopher Tomlins:

The locution “law and . . . (some other discipline)” implicitly asserts the primacy of legal doctrine and institutions narrowly conceived for coming to understand phenomena in which law takes a part. The ordinary story of American legal theory – formalism then realism then contemporary legal thought – can be understood to repeat the triumphalism implicit in “law and . . .”. Of course, the story of American legal theory could possibly be read differently -- as a series of responses to the inability of law to dictate the terms of its use and so as evidence law’s subordination to other ways of understanding such phenomena. Such a possibility would dictate a different ordering of important words into “. . .and Law.” This paper attempts to examine the plausibility of the latter locution by examining some of the crucial bodies of knowledge and recurrent actions of putatively non-legal actors that led up to the no longer recent Great Recession.

H/t: Legal Theory Blog, where my Georgetown Law colleague Lawrence Solum adds: “Fascinating.  I especially recommend this short and readable paper for younger legal scholars from whom the developments in legal theory in the 1980s and early 1990s are ‘history.’”

Legal History at the AASLH

[We have the following announcement.]

The Legal History Affinity Group of the American Association of State and Local History (AASLH) will convene during an annual meeting in Detroit, Sept. 14-17. Registration is now open (early bird deadline: July 29). Sessions sponsored by the Legal History group will be held on Sept. 16; more information is available in the conference program (see pages 11, 15, 31, and 33).

The Legal History Affinity Group serves those who preserve and promote legal history in organizations of all types and sizes. Its members include state and federal court historians and educators, directors and board members of court historical societies, museum curators, law librarians and archivists, researchers, and university faculty. For more information about the group, visit the Legal History page on the AASLH website.

[Two events are particularly interesting for legal historians.]

History on Trial: Mock Trials and Reenactments in Historical Programming
Friday, September 16, from 8:30 to 9:45
Chair: Matthew Hofstedt, Associate Curator, Supreme Court of the United States

Trial reenactments and mock trials can be an exciting way to engage with visitors by exposing them to historical narratives through legal controversy. Come hear about two successful trial-based historical programs and participate in a short trial reenactment to learn about
the possibilities of presenting history through trials.

Legal History Roundtable at The Million-Dollar Courtroom
Friday, September 16, from 2:15 to 4:15 pm
Chair: Rachael L. Drenovsky, Learning Center Coordinator, Michigan Supreme Court Learning Center

Walk from the Cobo Center to the Theodore S. Levin U.S. Courthouse (1934), featuring a court museum and the “million-dollar courtroom”—a gem of marble and mahogany preserved from
the 1890s federal building replaced by the current courthouse. A roundtable discussion with the Legal History Affinity Group concludes the session. (Picture ID required; no cell phones/
wireless devices due to security regulations.)

[And, Property teachers, the Woodward Avenue tour (pp. 16-17) takes you within a block of the house at issue in Sanborn v. McLean!]

Haley's "Law's Political Foundations"

Out this month from Edward Elgar publishing is Law’s Political Foundations: Rivers, Rifles, Rice, and Religion, by John O. Haley, William R. Orthwein Distinguished Professor of Law Emeritus, Washington University in St. Louis.

Law’s Political Foundations explains the development of the two basic systems of public and private law and their historical transformations. Examining the historical development of law in China, Japan, Western Europe, and Hispanic America, Haley argues that law is a product, rather than a constitutive element, of political systems.

Four narrative chapters commence with the development of Chinese legal tradition as a public law order in which regulatory and penal rules were central, compared to the primacy of private law in Western Europe. China was not only among the earliest but also historically the most enduring example of public law order. The European Legal Tradition, in contrast, became the source of the private law structures of legal systems worldwide. The Japanese and Hispanic American experiences are explored as pivotal links that help to identify foundational factors that underpin the historical development of public and private law orders. Also explained in both contexts is the endurance of private ordering both within and beyond the law.

These vivid comparisons and analyses in these stories of rivers, rifles, rice, and religion will serve as an excellent critical resource for scholars and academics of comparative law and legal theory.

Endorsements by M. C. Mirow, Donald C. Clarke, and Mark Ramseyer after the jump.

Swanson on Assisted Reproduction & Abortion

Back in 2015, Kara Swanson, Northeastern University School of Law, published "The Doctor's Dilemma: Paternalisms in the Medicolegal History of Assisted Reproduction and Abortion" in the Journal of Law, Medicine and Ethics 43:2 (312-25): 

This article analyzes the comparative history of the law and practice of abortion and assisted reproduction in the United States to consider the interplay between medical paternalism and legal paternalism. It supplements existing critiques of paternalism as harmful to women’s equality with the medical perspective, as revealed through the writings of Alan F. Guttmacher, to consider when legal regulation might be warranted.

Ms. Peppercorn Considers: The Promotion Statement

--> We are pleased to bring you the latest words of wisdom from our our advice columnist in residence, Ms. Peppercorn:

Dear Ms. Peppercorn:

Again I solicit your advice! I need to write a personal statement that explains who I am as a scholar – not for tenure, but for promotion from associate to full professor.  A brief look on the web yields consistent advice for those seeking tenure: write for three audiences (your Dean, your reviewers, and your school’s committee); don’t presume that anyone will read all of it; tell a story, don’t just annotate your cv.

There is less advice about the process from associate to full.  Many law schools actually do not have that step, but some do and certainly those in history departments face the task. Those of us in this betwixt-and-between position are still unsure: do we sit at the kids’ table or with the grownups at Thanksgiving dinner?

Tenure statements are supposed to demonstrate our dogged pursuit of one Great Idea (singularity of purpose). But those on the other side of the tenure divide know that much of our work is the result of fortuitous circumstances, random discoveries, and archival detours.

How can I write a statement that reflects the role of evolution and discovery and chance, and also actually get promoted?

Peregrina (quandary #2)

Dear Peregrina:

Ms. Peppercorn’s first repeat player!  An elite category that entitles you to frequent query status and all its many rewards (TBD).  Tenure statements seem more fraught than personal statements for promotion, to this observer.  After all, you already have a permanent job, which should not be downplayed – security is nice!  Sadly, there is no tenure for advice columnists.

That said, it is clear that promotion statements matter, and that this is not the sort of thing one can safely “mail in.” The exercise is designed to suss out scholarly maturity, forcing you, the candidate, to explain why your most recent work should result in a step up in prominence and responsibility.  Some schools have even held workshops on how to put together such a file, but not all scholars are so fortunate. Ms. Peppercorn also recognizes that for some scholars – such as those who are inclined toward modesty, or who see themselves as part of a collaborative community – the promotion statement may be daunting indeed.

Ms. Peppercorn has called upon three sage advisers: the first a department chair, the second a senior scholar in a history department, and the third jointly appointed in law and history.  All have been through this stage at different universities (two private and one public), and have helped others who have applied for promotion.  They agree that productivity and growth, NOT a single big idea, are the keys.  They also endorse the sense that evolution in approach and ideas reflects the best in a scholar’s trajectory.

Here are the three answers I received to your question: 

1.      When I advise people on the personal statement, I say to think of it as a dynamic intellectual biography that clarifies the trajectory and stakes of one's work, in a way that might not be apparent simply from reading the work. Important to discuss all teaching and professional service too, especially areas of leadership. 

2.     The key is to show intellectual growth (and publications!) since tenure.  In other words, someone who is progressing from associate to full professor should demonstrate that his/her scholarship has expanded and evolved since the first book, presumably the one that secured tenure.  Evaluations committees want to see continued publication (in history, a second monograph) and a scholar who continues to develop and produce.

3.     I do think it's important to create a narrative, to situate one's work in broader scholarships and to mark its significance, and to note where one is headed as well as where one has been.  I don't think this requires that one have a Hurst-like scholarly life-plan.  I don't, frankly, think that makes for the most interesting scholarship.  For most a combination of life events, place and nature of academic appointments, developments in scholarship, and discoveries along the way shape and reshape even the best laid plans. 

So, dear Peregrina, rest easy:  your sense that you have changed since tenure accords with the experience of these senior scholars.  Not only that, all three see the promotion statement as an opportunity to situate yourself and your fine work in ways that others can understand, and that show how you have changed as your work (and your experience as a scholar) has unfolded over time.  This is all good news!

Onward!!  Ms Peppercorn has great confidence in Peregrina’s instincts, which have led her to exactly the right question. 

Ms Peppercorn is now ready to take other queries under advisement.  Repeat players encouraged.

White on Law on Nantucket

Boundary Stone, Nantucket (LC)

G. Edward White, University of Virginia School of Law, has posted Law on Nantucket, which has been published as 19 GREEN BAG 2D 269:

Nantucket Island, in the North Atlantic about twenty-seven nautical miles south-southeast of Hyannis, Massachusetts, has been, and remains, a writer’s dream subject. There are countless works on Nantucket, ranging from cookbooks to studies of the Atlantic ridge by oceanographers. But the traditional ways to write about Nantucket seem to fall into categories. Those categories have been so recurrent as to virtually define not just Nantucket Island’s tourist experience, but the experiences of resident islanders and mainlanders as well. After a brief discussion of those categories, I propose, in this essay, to introduce another category, one that at first blush might not seem an interesting way to think about Nantucket, but one that strikes me as fundamental to an understanding of the place.

Fleming on Small-Dollar Loans, Foundations, and Regulatory Reform

HistPhil, “a web publication on the history of the philanthropic and nonprofit sectors, with a particular emphasis on how history can shed light on contemporary philanthropic issues and practice,” has been hosting an on-going forum on philanthropy and the state.  A recent contribution, by my Georgetown Law colleague Anne Fleming, is The Changing Role of Foundations in Regulatory Reform: The Case of Small-Dollar Loan Reform.  It is a summary of the paper Professor Fleming gave as a member of a panel on “Private Foundations and Public Policy” at the recent Policy History Conference in Nashville.

Sunday Book Roundup

With classes finished, legal historians can turn to beach reading. Here are some options:

In the New York Times, Adam Cohen reviews Jeffrey Rosen’s Louis D. Brandeis: American Prophet (an “excellent … concise and sympathetic exploration of Brandeis’s main intellectual causes”). In the Washington Post, Justin Driver reviews a new book on the Burger Court by Michael J. Graetz and Linda Greenhouse, who “contend that the dominant assessment of the Burger years severely understates the legal transformation that occurred during this period.”

Stephen Rohde reviews Carol Berkin’s The Bill of Rights: The Fight to Secure America’s Liberties, which uses letters and speeches to show “how these 10 amendments helped quell widespread opposition to the new Constitution and ensure popular support for the new and more energetic federal system of government.”  Interested readers may also enjoy the LARB’s review of Hamilton and reflection on its characters--mainly the complex and contradictory Jefferson as well as the misrepresented General Lee--which “exist not to define but to provoke.”

The Guardian published Jenny Uglow’s review of The Last Royal Rebel by Anna Keay.  Keay tells the story of the Duke of Monmouth, Charles II’s illegitimate son, who in 1685 attempted to unseat the Catholic James II, and whose popularity inspired acts of “judicial revenge” and exclusion bills to bar Catholics from the throne.

In the Law and Politics Book Review, Logan Strother reviews Ilya Somin’s The Grasping Hand: Kelo v. New London and the Limits of Eminent Domain, which offers “a significant rejoinder to the conventional wisdom that “public use” was broadly interpreted in the early Republic and post-bellum periods, though the historical record certainly leaves room for debate.”

The New Books Network features a review of Edlie Wong’s Racial Reconstruction: Black Inclusion, Chinese Exclusion, and the Fictions of Citizenship, which explores the reconstruction era as a transition from black chattel slavery, to a system of (nominally) voluntary, wage labor i.e. Chinese contract labor (coolieism), and poses the important question of whether coolieism constituted a form of slavery or was indeed, a transition to free labor.

On H-Law, Mahmood Kooria, a doctoral candidate at the Leiden University Institute for History, describes a collection of fatwas (legal opinions) from premodern south asia (the al-Ajwibat al-‘Ajībat ‘an al-as’ilat al-gharībat, compiled by Zayn al-Dīn Ahmad al-Malaybārī (d. 1583)).

Finally, Laura Miller writes in Slate about Nancy Isenberg’s White Trash: The 400-Year Untold History of Class in America, a “a deep-diving history” of the white-trash stereotype from Jamestown to the present. Isenberg begins with “British beliefs that the working class was truly a separate race from the middle and upper classes” and offers lessons about the role of class, race and fear-mongering in political campaigns.