Sunday Book Roundup

It was another fairly light week on the legal history book review front (what else could people possibly be thinking about?), but there are a few interesting pieces worth sharing.  And as always, please drop a line or a comment if I've missed one.

In the New York Review of Books, David Cole reviews three recent histories of drones (“In short order, most of the developed world will have them. And when other nations look for precedents, Obama’s record will be Exhibit A.”); Susan Dunn reviews Nathaniel Philbrick’s Valiant Ambition: George Washington, Benedict Arnold, and the Fate of the American Revolution and Joseph J. Ellis’ The Quartet: Orchestrating the Second American Revolution, 1783–1789, and Mary Beard’s Which Side of Roman Britain are you on? covers three books on the Roman Empire in Britain (by Guy de la Bédoyère, Bronwen Riley and Charlotte Higgins, respectively).

Jeffrey Toobin’s new book, American Heiress: The Wild Saga of the Kidnapping, Crimes and Trial of Patty Hearst is reviewed in both Slate and the New York Times.

On H-Net, Richard K. Scotch reviews Lennard J. Davis’s Enabling Acts: The Hidden Story of How the Americans with Disabilities Act Gave the Largest US Minority Its Rights (“If one wants to comprehend how disability policy concepts get translated into public policy, or how a pluralistic system accommodates competing interests on disability access, or how personal history shapes disability policy stances, Enabling Acts is a thoughtful,

well-written, and engaging narrative.”).

HNN carries a review of Brian J. Snee's "Lincoln Before Lincoln: Early Cinematic Adaptations of the Life of America’s Greatest President,” which focuses upon the major film and television productions on Lincoln before Spielberg’s Lincoln.

In the London Review of Books, but behind a paywall, are a review of Entick v. Carrington: 250 Years of the Rule of Law edited by Adam Tomkins and Paul Scott, and a review essay by Martin Loughlin on the UK’s Constitutional Crisis.

The Wall Street Journal carries a review of Christopher Phillips’ The Rivers Ran Backward:The Civil War and the Remaking of the American Middle Border and of Caitlin Fitz’s Our Sister Republics: The United States in an Age of American Revolutions.

The most recent Law and Politics Book Review might appeal to legal historians interested in constitutional history. It contains reviews of Judging Free Speech: First Amendment Jurisprudence of US Supreme Court Justices (edited by Helen Knowles and Steven Lichtman); William Howell and Terry Moe’s Relic: How Our Constitution Undermines Effective Government— and Why We Need a More Powerful Presidency (also reviewed here) and Saikrishna Prakash‘s "Imperial from the Beginning: The Constitution of the Original Executive (also reviewed here and here).

Weekend Roundup

• St. Andrews University has acquired the Marchmont Manuscript, a 450-year-old manuscript that “contains Regiam Majestatem, the earliest surviving text giving a comprehensive overview of Scots law.”  It was once owned by the Scots poet Alexander Hume. 

• The Kluge Center at the Library of Congress announces its 2016 fellows. 

•  “10 facts about the most famous scene in legal history,” from Constitution Daily, the blog of the National Constitution Center.

• "The National History Center of the American Historical Association will hold a Congressional briefing on the Zika virus: historic parallels, and policy responses.  J.R. McNeill of Georgetown University and Margaret Humphreys of Duke University will discuss  the history of Zika’s mosquito vectors and the complexity of planning public health programs to counter disease-bearing mosquitoes.  Alan Kraut of American University will moderate." More.

• Now through August 14: Oxford University Press's summer sale.

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

Norris on Labor's Constitutional Response to Lochner

Luke Norris, an Associate in Law at the Columbia University Law School, has posted Constitutional Economics: Lochner, Labor, and the Battle for Liberty, which is forthcoming in the Yale Journal of Law & the Humanities:

This Article argues that the conventional narrative about the decline of Lochnerism and the rise of mid-century substantive due process jurisprudence is incomplete. That narrative focuses initially on how the premises underlying Lochner’s conception of economic freedom were rejected. The Article instead focuses on how the labor movement articulated an alternative conception of freedom that was adopted by Congress, the Executive, and the Supreme Court. While Lochnerism was premised on a negative view of freedom, the labor movement articulated a positive view of freedom and analogized it to republican freedom of association in the political sphere. By reframing the terms of the Lochner-labor debate, the Article shows how strands of labor’s conception of associational freedom in one nominally private sphere — the workplace — are transported into modern substantive due process jurisprudence in the post-Griswold era as the doctrine protects association in another — the intimate sphere. The Article traces similarities between the rise of labor’s freedom and the rise of sexual and intimate freedoms and explores the ways in which they have transformed American constitutional law.

McDonald on Politicans as Judges in Australia

Douglas McDonald, a tipstaff at the Supreme Court of New South Wales and a former solicitor, has posted Worlds Apart: The Appointment of Politicians as Judges, which appears in the Alternative Law Journal 41 (2016): 18-23:    

This article examines the history of appointments of serving and former politicians as judges in Australia. Potential causes for the decline of such appointments include changes within the legal profession (with lawyers unable or unwilling to make the financial sacrifices involved in full-time political service); changes within politics (a more intensive and vitriolic profession than in preceding decades); and changes in public views and perceptions of politics, including increased controversy surrounding perceived ‘patronage’ appointments. This article argues that judges’ previous experience in politics may be a valuable source of insight into policy formation and the functioning and interaction of different branches of government.

Giocoli on Law and Classical Political Economy in the Lochner Era

Readers of LHB will recall our posting of several papers on early twentieth-century law and political economy in the United States by Nicola Giocoli, University of Pisa.  It turns out they heralded a book manuscript, “A Smithian Constitution: The Classical Political Economy of the Lochner Era,” the table of contents and introduction of which Professor Giocoli has recently posted.

Charlotte Walker-Said on Gender, Nation, and Religion in Cameroon

Charlotte Walker-Said has published an article in French on African women's notions of citizenship, human rights and national liberation in mid-century Cameroon, "Fabrique du genre et sens national dans les organisations de jeunesse chrétienne au Cameroun (années 1940-1950)," Le Mouvement Social 2:255 (2016), 119-35.  Here is the title and abstract in English: 

“Gender Making and National Meaning in Young Christian Organisations in Cameroon (1940s-1950s)” 

While scholarship on Africa at the end of empire has tended to focus on the evolution of notions of citizenship and demands for national political inclusion in the years following the end of the Second World War, the vibrancy and widespread influence of the Christian churches in France’s African territories, particularly in Cameroon, demonstrates that Africans also expressed solidarities with communities both above and below the nation-state. The history of political anti-colonialism and syndicalism in Africa has heretofore neglected the contributions of religion to national meaning making in the last decades of colonial rule, and its secular focus has failed to perceive how religion mediated the costs and benefits of political modernity and national sovereignty, critically underpinning much cultural life that gave shape to various kinds of mass politics at the end of empire. This article demonstrates how African women in the Catholic and Protestant Churches in Cameroon presented an image of social and cultural continuity in the midst of political and economic disruption and articulated an alternative platform of human rights and national liberation from that of the anti-colonial political parties. In doing so, devout African women in laity and in consecrated orders inserted themselves into the revolutionary aspect of nationalism by promoting a conservative vision of pious, educated society that would ensure social and moral progress, not only political liberty.

Van Alphen Fyfe on NZ Land Policy

Monique Van Alphen Fyfe, has posted Woe Unto Them That Lay Field to Field: Closer Settlement in the Early Liberal Era, which she wrote as part of the LL.B (honors) program at the Victoria University of Wellington.

This article undertakes a re-examination of the origins, construction and application of the Land for Settlements legislation in the early Liberal era. The Liberal's commitment to closer settlement reveals part of the story of highly contested land policy in colonial New Zealand. Land for Settlements legislation of the 1890s, aimed at "bursting up" the great estates, was predominantly the product of settlers' ideological aspirations and two determined politicians: John Ballance and John McKenzie. When measured against the rhetoric used to promote it, however, the policy was not necessarily effective: it was complicated by practical realities and a narrow vision of New Zealand as a vigorous Arcadian paradise. When contrasted with the treatment of Ma¯ori land, yet more of the complexity of the land issue and the frailties of the actors facing it are revealed. The article concludes by proposing that Liberal policy, while flawed in execution, may have nevertheless contributed something to the consolidation of the concept of New Zealand as an agrarian ideal, a concept that remains largely intact today.

Doing History: A Podcast

From Uncommon Sense: The Blog of the Omohundro Institute of Early American History and Culture, we learn that, in a collaboration between the Institute and Liz Covart of Ben Franklin’s World: A Podcast About Early American History, that for 2016 the last BFW show of the month will be devoted to the series Doing History: A Podcast Series about How Historians Work.”  The latest episode is Sharon Block, UC-Irvine, on How to Research History Online.

Ray, "Aboriginal Rights Claims and the Making and Remaking of History"

New from McGill-Queen's University Press: Aboriginal Rights Claims and the Making and Remaking of History, by Arthur J. Ray (University of British Columbia). A description from the Press:

Forums such as commissions, courtroom trials, and tribunals that have been established through the second half of the twentieth century to address aboriginal land claims have consequently created a particular way of presenting aboriginal, colonial, and national histories. The history that emerges from these land-claims processes is often criticized for being “presentist” - inaccurately interpreting historical actions and actors through the lens of present-day values, practices, and concerns.

In Aboriginal Rights Claims and the Making and Remaking of History, Arthur Ray examines how claims-oriented research is often fitted to the existing frames of indigenous rights law and claims legislation and, as a result, has influenced the development of these laws and legislation. Through a comparative study encompassing the United States, Canada, South Africa, Australia and New Zealand, Ray also explores the ways in which various procedures and settings for claims adjudication have influenced and changed the use of historical evidence, made space for indigenous voices, stimulated scholarly debates about the cultural and historical experiences of indigenous peoples at the time of initial European contact and afterward, and have provoked reactions from politicians and scholars.

While giving serious consideration to the flaws and strengths of presentist histories, Aboriginal Rights Claims and the Making and Remaking of History provides communities with essential information on how history is used and how methods are adapted and changed.

More information is available here.

Aucoin, "Thomas Goode Jones: Race, Politics, and Justice in the New South"

New from the University of Alabama Press: Thomas Goode Jones: Race, Politics, and Justice in the New South, by Brent Aucoin (Southeastern Baptist Theological Seminary). A description from the Press:

This first comprehensive biography of Thomas Goode Jones records the life of a man whose political career reflects the fascinating and unsettled history of Alabama and the Deep South at the turn of the twentieth century. . . .

Born in 1844, Jones served in the Confederate army and after the war identified as a conservative “Bourbon” Democrat. He served as Alabama's governor from 1890 to 1894 and as a federal judge from 1901 until his death in 1914. As a veteran, politician, and judge, Jones embodied numerous roles in the shifting political landscape of the South.

Jones was not, however, a reflexive conformist and sometimes pursued policies at odds with his party. Jones’s rhetoric and support of African American civil rights were exceptional and earned him truculent criticism from unrepentant racist factions in his party. His support was so fearless that it inspired Booker T. Washington to recommend Jones to Republican president Theodore Roosevelt as a federal judge. On the bench, Jones garnered national attention for his efforts to end peonage and lynching, and yet he also enabled the establishment of legalized segregation in Alabama, confounding attempts easily to categorize him as an odious reactionary or fearless progressive.. . . 

More information is available here.

William Nelson Foundation Grants

American legal historians have long been indebted to the William Nelson Cromwell Foundation for supporting their work through a series of prizes and fellowships awarded in consultation with the American Society for Legal History.  These have included a fellowship awarded to “early career” scholars.  The Cromwell Foundation is now announcing a new grant program, William Nelson Cromwell Foundation Grants, which it is administering directly.  Scholars at any stage of their careers are eligible.  The deadline for applying is September 1.

From the foundation’s website: “The Foundation supports historical monographs on major questions in American law and legal development, as well as biographies of important legal figures.” It “also supports the publication of important legal documents in American history.”  More information, including application procedure, is here.  A list of publications supported by the Cromwell Foundation in the past is here.

Meares on Policing and Its Reform

On July 11, Tracey L. Meares, Walton Hale Hamilton Professor of Law at Yale University, delivered the 12th annual Robert H. Jackson Lecture on the Supreme Court of the United States at the Chautauqua Institution.  According to an announcement disseminated to subscribers to John Q. Barrett’s Jackson List, “Professor Meares’s lecture, entitled “Policing and Its Reform in the 21st Century,” addressed recent and historical United States events (including, beginning at 29:20, the Supreme Court’s June 20th decision in Utah v. Strieff), human experiences, academic research, psychology and communal education.”  The lecture, “preceded by brief introductions, and followed by audience questions and Meares answers,” is here.  Excerpts from “an interview that Professor Meares gave at the Robert H. Jackson Center” on July 10 are here.

Grosswald Curran on Law and Human Suffering in Vichy France

Vivian Grosswald Curran, University of Pittsburgh School of Law, has posted Law and Human Suffering: A Slice of Life in Vichy France, which is forthcoming in the Journal of Law and Literature:    

This essay discusses three diaries from the Vichy era, the period of the Nazi Occupation of France: Jean Guéhenno’s Journal des années noires 1940-1944, Hélène Berr’s Journal, and Jacqueline Mesnil-Amar’s Ceux qui ne dormaient pas. Guéhenno was an educator and writer who entered the Resistance in 1940. His diary offers deep moral reflection as well as accounts of the dishonorable peace Vichy imposed and the ignoble servitude to which the new collaborationist French State and the Nazi occupier subjected France. In the final pages, as Leclerc’s army marches into Paris, with a victory he understands to be thanks to the help of the Allied forces, Guéhenno dares to rekindle his former faith in humankind. Berr was a young university student born into a wealthy old French Jewish family, the daughter of a famous scientist. Sensitive and generous-spirited, she lived an unusual life inasmuch as her family seemed to suffer no material hardship throughout the years that culminated in their deportation in the spring of 1944. Among the memorable events of her diary is her experience of the first day she was forced to wear the yellow star. Finally, Mesnil-Amar’s diary spans just one month at the end of the war in France, the month in which her husband has been detained and is about to be deported on the last train to leave Paris. The diary evokes her embracing of Jewish identity as a result of being identified as Jewish by anti-Semites. The lyricism of her writing approaches poetry in a work that is both a retrospective and a love letter to her husband. These diaries show us a slice of life of the times, but they also spur us to reflection on law and humanity, their limitations, potentials and fluctuations.

CFP: Ex parte Milligan at 150

[We have the following announcement.]

Ex Parte Milligan at 150: The Constitution & Military Commissions in American Wars on Terror, September 22-24, 2016

Illinois State University is proud to announce a conference to mark the 150th anniversary of Ex parte Milligan (1866), sponsored by Illinois State University and the David Davis Mansion on September 22-24, 2016 at the Marriot Hotel, Normal Illinois.

David Davis, J. (wiki)

Written here in Bloomington, Illinois, Davis’s decision held that trial by military commissions was acceptable only where there was a real war and where civilian courts were impaired. Long dormant, Milligan has assumed new centrality in our political and constitutional debates arising out of the so-called “war on terror.”  We invite established scholars, practicing professionals, or graduate students from all fields to submit proposals on historical, legal, constitutional or political subtopics related to the Milligan decision itself, its antecedents, or its legacy. All accepted papers will be considered for inclusion in a projected edited volume of essays.  If accepted, the deadline for the full revised and extended papers will be February 1, 2017.

The conference will feature break out panels, plenary sessions and key notes by Michael Les Benedict, Louis Fisher, and Jonathan Hafetz.  The goal is to explore both historical and contemporary implications of this understudied landmark decision. The decision is rich in significance for the study of civil liberties in wartime, Civil War politics, Reconstruction, the emergence of the Bill of Rights, the rise of legal liberalism, as well as recent questions surrounding detainees at Guantanamo Bay and the use of military commissions.

The full CFP can be accessed [here]. Individual proposals should include a 500 to 1000 word proposal, and one-page CV. Panel proposals should include individual proposals for each paper, one-page CVs for all participants (including commenters), and a 250-word panel abstract and title. Proposals are due August 15 2016.

Co -Chairs and Contacts:

Dr. Stewart Winger, Associate Professor, Department of History, Illinois State University, 309-438-2348, swinger@ilstu.edu

Dr. Meghan Leonard, Assistant Professor, Department of Politics and Government, Illinois State University, 309-438-7362, mleonar@ilstu.edu

Dr. Michael Gizzi, Associate Professor, College of Applied Science and Technology, Illinois State University,  309-438-5001, mgizzi@ilstu.edu

Bank, Cheffins & Wells on Executive Pay

Steven A. Bank, UCLA School of Law, Brian R. Cheffins, University of Cambridge Faculty of Law, and Harwell Wells, Temple University James E. Beasley School of Law, have posted Executive Pay: What Worked?, which is forthcoming in the Journal of Corporation Law:    

CEO pay is a controversial issue in America but there was a time, often overlooked today, when chief executives were not paid nearly as much as they are now. From 1940 to the mid-1970s executive pay was modest by today’s standards even though U.S. business was generally thriving. What worked to keep executive pay in check? Economist Thomas Piketty and others credit high marginal income tax rates, leading to calls for a return to a similar tax regime. This paper casts doubt on the impact tax had and also shows that neither the configuration of boards nor shareholder activism played a significant role in constraining executive pay. It emphasizes instead the roles played by strong unions, a different and more circumscribed market for managerial talent, and social norms, explanations that do not easily lend themselves to generating modern policy prescriptions.

Sunday Book Roundup

This week's roundup is fairly scattershot.  Legal History Blog readers will forgive, I hope, the expansive definition of "legal history" deployed in this week's roundup

In the Nation is a review of Karl Jacoby's The Strange Career of William Ellis: The Texas Slave Who Became a Mexican Millionaire.  Also in the publication is a review of Tara Zahra's The Great Departure: Mass Migration From Eastern Europe and the Making of the Free World.

This week's New York Times has a review of We Are Not Such Things: The Murder of a Young American, a South African Township, and the Search for Truth and Reconciliation.  Also in the New York Times is a review of A Floating Chinaman: Fantasy and Failure across the Pacific. 

The Washington Post includes a review of Philippe Sands' East West Street: On the Origins of "Genocide" and "Crimes Against Humanity.  The reviewer characterizes Sands' work on the intellectual and legal histories of genocide and crimes against humanity as "engaging" but calls into question the book's normative conclusion.

There are a number of reviews of interest on H-Net.  There is a review of Stephen G. Craft's American Justice in Taiwan: The 1957 Riots and Cold War Foreign Policy.  Also reviewed is Roger Lowenstein's America's Bank: The Epic Struggle to Create the Federal Reserve.  Christian G. Appy's American Reckoning: The Vietnam War and Our National Identity is reviewed.   Marten Kinder's Paying with Their Bodies: American War and the Problem of the Disabled Veteran is also reviewed.

Also on H-Net is a review of Edward Baptists's The Half Has Never Been Told: Slavery and the Making of American Capitalism.  For historians with a globally-expansive interest in citizenship, H-Net has a review of Against Citizenship: The Violence of the Normative and also a review of Nationality, Citizenship and Ethno-Cultural Belonging: Preferential Membership Policies in Europe.  Finally, H-Net has a review of Narendra Subramanian's Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India.

The New Yorker has published a couple of provocative review essays this week.  Among them is a review of Nancy Isenberg's White Trash: The 400-Year Untold History of Class in America (White Trash is also reviewed at HNN).  Also in The New Yorker is a particularly engaging and thoughtful review of Karl Jacoby's The Strange Career of William Ellis: The Texas Slave Who Became a Mexican Millionaire (this blogger assigned the essay to her Immigration History class).

The Los Angeles Review of Books has a timely review of From #BlackLivesMatter to Black Liberation.

Moira Weigel's Labor of Love has attracted a review in The Guardian.

The New Books Network has an interview with Josh Lambert on his Unclean Lips: Obscenity, Jews, and American Culture.

Common-Place reviews Martha Hodes' Mourning Lincoln.  Also at Common-Place is a review of Margaret Ellen Newell's Brethren by Nature: New England Indians, Colonists, and the Origins of American Slavery.

In anticipation of the upcoming Rio Games, several venues have published reviews of David Goldblatt's The Games: A Global History of the Olympics.   Though not directly relevant to most legal historians I know, those reviews can be found at The Washington Post and The New York Times.

Weekend Roundup Addendum: Dudziak on Trump and America's Moral Authority

Today's New York Times includes an op-ed by LHB founder and former blogger Mary Dudziak (Emory University), on "Donald Trump and America's Moral Authority." Dudziak draws on political and diplomatic history to discuss a striking feature of Trump's campaign rhetoric: departing from traditions in both major parties, "[h]e rejects the idea that American moral leadership matters."

Weekend Roundup

• “The History and Public Policy Program seeks interns for the Cold War International History Project (CWIHP) and the Nuclear Proliferation International History Project (NPIHP).”  Deadline for applications is July 31, 2016.  More.

• Over at the UNC Press Blog, legal historian Martha Jones (University of Michigan) draws on her work on the intellectual history of black women to urge readers not to "miss out on what Michelle Obama actually said in 2008."  

• “The Italian Society of Law and Economics welcomes submissions of papers on any topic regarding the Economic Analysis of Law for its 12th annual conference to be held in Torino (Italy) on December 16-17, 2016, at Campus Luigi Einaudi of University of Torino”–including the “History of Law and Economics Thought.”

• ICYMI: Over at Balkinization, Jeremy Kessler comments on an essay two intellectual historians arguing that “historiographical methods best suited to an originalism rooted in public meaning rather than intent.” Also, Seth Barrett Tillman on why, as a legal matter, MacArthur was right and Truman was wrong.

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

Hovenkamp on the Saga of Progressive Racism

Herbert J. Hovenkamp, University of Iowa College of Law, has posted The Saga of Progressive Racism:

American Progressivism has received a good deal of unwelcome attention, charged with blatant racism and promotion of eugenics, and thus with mainstreaming practices such as housing segregation, compulsory sterilization of those deemed unfit, and exclusion of immigrants on racial grounds. One question this raises is, if the Progressives were such racists, why is it that since the 1930s Afro-Americans and other people of color have consistently supported self-proclaimed progressive political candidates, and typically by very wide margins?

My argument here is, first, that one of the most powerful characteristics of the progressive State was its attentiveness to science – a characteristic that it retains to this day. When the Progressive Era was forming, however, genetic racism was the scientific model of the day, cutting across a wide range of disciplines and reaching people of all political persuasions, even into the most elite of American research institutions. By and large, non-Progressives were just as racist as Progressives and some significantly more so. Further, the Progressive period lay entirely within the southern era of Jim Crow legislated segregation, often making it impossible to identify particular racial attitudes in the New South as "Progressive" or simply as inherited features of long held southern racial ideas.

Second, if Progressive public policy on race differed from prevailing alternatives, it was that Progressives believed in a more active State. Racism supported by an activist legislative agenda can be much uglier than racism that is simply tolerated. One cannot characterize most of the segregationist, exclusionary, and other racist legislation passed during this era as "Progressive,” however. Southern states actively regulated racial exclusion by statute, and all of the racial zoning laws sometimes attributed to Progressives were passed in formerly slaveholding states. Whatever the ideological or scientific sources of these laws, they were supported by staunch anti-Progressives. The same thing is true of compulsory sterilization laws. For example, the Supreme Court Justices who voted consistently against Progressive labor protective and other regulatory legislation voted to uphold compulsory sterilization of mental "defectives." While many Progressives advocated for more restrictive immigration laws, nothing that was passed during the Progressive Era matched the explicit restrictions on Chinese immigration that came earlier, or the racist immigration restrictions enacted during the terms of anti-Progressive Presidents Harding and Coolidge after the Progressive Era had ended. Finally, the attempts to link Progressive support for minimum wage laws to racial exclusion fail because they misunderstand the objectives of the Progressive minimum wage commitment and, further, pick and choose a small number of idiosyncratic examples from an enormous economic literature.

Third, the one place where a sharp difference emerged between progressives and their various opponents was in the subsequent rejection of genetic racism in favor of more environmentalist, nurture-based models of human nature and development. More environmentalist views began to take hold in the social sciences in the 1910s and 1920s and began to change legal thinking in the 1940s. They found expression in a Supreme Court that was almost unanimously Democrat and self-acknowledged progressive. The result was gradual emergence of a division that has endured to this day, with progressives largely appearing as the champions of racial inclusion and diversity.

Thomas's "Missing American Jury"

Suja A. Thomas, University of Illinois College of Law, has published The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries, with Cambridge University Press.

Criminal, civil, and grand juries have disappeared from the American legal system. Over time, despite their significant presence in the Constitution, juries have been robbed of their power by the federal government and the states. For example, leveraging harsher criminal penalties, executive officials have forced criminal defendants into plea bargains, eliminating juries. Capping money awards, legislatures have stripped juries of their power to fix damages. Ordering summary judgment, judges dispose of civil cases without sending them to a jury. This is not what the founders intended. Examining the Constitution's text and historical sources, the book explores how the jury's authority has been taken and how it can be restored to its rightful, co-equal position as a 'branch' of government. Discussing the value of juries beyond the Constitution's requirements, the book also discusses the significance of juries world-wide and argues jury decision-making should be preferred over determinations by other governmental bodies.

Professor Thomas's website for the book, which includes many endorsements, is here.

Appleby's "Role of the Solicitor-General"

Gabrielle Appleby, an Associate Professor of Law at the University of New South Wales has published Role of the Solicitor-General: Negotiating Law, Politics and the Public Interest with Hart Publishing:

Behind every government there is an impressive team of hard-working lawyers. In Australia, the Solicitor-General leads that team. A former Attorney-General once said, 'The Solicitor-General is next to the High Court and God.' And yet the role of government lawyers in Australia, and specifically the Solicitor-General as the most senior of government lawyers, is under-theorised and under-studied.

The Role of the Solicitor-General: Negotiating Law, Politics and the Public Interest goes behind the scenes of government – drawing from interviews with over 45 government and judicial officials – to uncover the history, theory and practice of the Australian Solicitor-General. The analysis reveals a role that is of fundamental constitutional importance to ensuring both the legality and the integrity of government action, thus contributing to the achievement of rule-of-law ideals. The Solicitor-General also works to defend government action and prosecute government policies in the court, and thus performs an important role as messenger between the political and judicial branches of government.

But the Solicitor-General's position, as both an internal integrity check on government and an external warrior for government, gives rise to competing pressures: between the law, politics and the public interest. The office of the Solicitor-General in Australia has evolved many characteristics across the almost two centuries of its history in an attempt to navigate these tensions. These pressures are not unique to the Australian context. The understanding of the Australian position provided by this book is informed by, and will inform, comparative analysis of the role of government lawyers across the world.

TOC after the jump.

Maltz's "Coming of the Nixon Court"

Earl M. Maltz, a Distinguished Professor at the Rutgers University School of Law, has published The Coming of the Nixon Court: The 1972 Term and the Transformation of Constitutional Law, with the University Press of Kansas.

Beginning with Brown v. Board of Education and continuing with a series of decisions that, among other things, expanded the reach of the Bill of Rights, the Supreme Court that Richard Nixon inherited had presided over a progressive revolution in the law. But by 1972 Nixon had managed to replace four members of the so-called Warren Court with justices more aligned with his own law-and-order conservatism. Nixon’s appointees—Warren Burger as Chief Justice and Harry Blackmun, Lewis Powell, and William Rehnquist as associate justices—created a politically diverse bench, one that included not only committed progressives and conservatives, but also justices with a wide variety of more moderate views. The addition of the Nixon justices dramatically changed the trajectory of American constitutional jurisprudence with ramifications continuing to this day.

This book is an account of the actions of the “Nixon Court” during the 1972 term—a term during which one of the most politically diverse benches of the era would confront a remarkably broad array of issues with major implications for the future of constitutional law. By looking at the term’s cases—most notably Roe v. Wade, but also those addressing school desegregation, criminal procedure, obscenity, the rights of the poor, gender discrimination, and aid to parochial schools—Earl Maltz offers a detailed picture of the unique interactions behind each decision. His book provides the reader with a rare close-up view of the complexity of the forces that shape the responses of a politically diverse Court to ideologically divisive issues—responses that, taken together, would shape the evolution of constitutional doctrine for decades to come.

Some endorsements:

"In 1972-73 the Supreme Court began to pivot away from the Warren Court’s jurisprudence toward a newer form of activism, which took shape over the next decades. Earl Maltz’s examination of the 1972 Term gracefully brings together law and politics to illuminate not merely the cases decided during that Term, but the course constitutional law has taken since then.”
    —Mark Tushnet, author of Red, White, and Blue: A Critical Analysis of Constitutional Law

“Most of modern constitutional law has its roots in the Supreme Court’s dramatic 1972 Term. Now, Earl Maltz has provided a lucid, fair minded, and insightful analysis of the Term. This work is required reading for anyone who cares about the Supreme Court and constitutional law.”
    —Louis Michael Seidman, author of On Constitutional Disobedience

“1972 is the year the Supreme Court turned right, a direction from which the justices have never veered. The story of that permanent shift is told with living detail and aplomb by one of our nation's leading legal historians.”
   —Mark Graber, Jacob A. France Professor of Constitutionalism, University of Maryland Francis King Carey School of Law

Shapiro on "Emigration Policy and the Concentration of Apartheid"

The most recent issue of the Journal of Southern African Studies includes an article that may be of interest: "No Exit? Emigration Policy and the Consolidation of Apartheid," by Karin A. Shapiro (Duke University). Here's the abstract:

Emigration policy in post-1948 South Africa functioned as both a tool of oppression and a safety valve, at once a mechanism to punish Apartheid’s staunchest political opponents and a mechanism for dissipating white opposition to National Party policies. This article examines the National Party’s policy toward emigration in the 1950s and 1960s, exploring the role of travel documents in the evolving National Party strategy for maintaining, and even extending, its control over internal political opponents. At no point, however, could the Minister of the Interior simply impose his will without facing innovative challenges to the law. Anti-apartheid figures repeatedly sought to test emigration provisions in the courts and nullify their effects. The Government developed its emigration policy by deciding individual applications on a case-by-case basis, rather than articulating ‘coherent’ public guidelines. It further believed that citizens did not have a right to a passport and that travellers constituted ‘quasi-diplomats’. This formulation, along with the requirement that black South Africans provide a substantial deposit before travelling abroad, speaks to the apartheid Government’s complex notions of racially based citizenship. 

Full content is available here (behind a paywall, unfortunately)

Weiner's "Preservation Waltz"

On his website "Worlds of Law," Mark S. Weiner has posted Preservation Waltz, the latest video in his series “about Austrian concepts of law and the Austrian experience of landscape . . . .Rare books, forests, and domestic architecture.  Sustainability is the key principle.”  He discusses the video in this guest post on Environment, Law and History.

Delaney on Stilt, "Contextualizing Constitutional Islam"

Over at JOTWELL, Erin F. Delaney (Northwestern University Pritzker School of Law) has posted an admiring review of "Contextualizing Constitutional Islam: The Malayan Experience," by Kristen Stilt (Harvard Law School). The article appeared in Volume 13 of the International Journal of Constitutional Law (2015). Here's the first paragraph:

Constitutional drafters, advisors, and commentators alike should read Kristen Stilt’s excellent article, Contextualizing Constitutional Islam: The Malayan Experience. It provides an engrossing history of a constitutional creation story—the 1957 Constitution of the Federation of Malaya (now Malaysia)—and sheds important light on the development of what Stilt terms “constitutional Islam,” or the incorporation of references to Islam and Islamic law in modern constitutions. These accomplishments alone would be enough for an enthusiastic jot. But the article does much more, raising fascinating questions about the nature of constitutional compromise and the role of religion in societal conflict, as well as pragmatic concerns about the effectiveness of international constitutional advisors.

Read on here.

Lee, "Popular Sovereignty in Early Modern Constitutional Thought"

Via the Legal Theory Blog (Lawrence Solum's "legal theory bookworm") and JOTWELL (an admiring review by Roman Hoyos), we have word of a recent release from Oxford University Press: Popular Sovereignty in Early Modern Constitutional Thought (April 2016), by Daniel Lee (University of California, Berkeley). A description from the Press:

Popular sovereignty - the doctrine that the public powers of state originate in a concessive grant of power from 'the people' - is perhaps the cardinal doctrine of modern constitutional theory, placing full constitutional authority in the people at large, rather than in the hands of judges, kings, or a political elite. Although its classic formulation is to be found in the major theoretical treatments of the modern state, such as in the treatises of Hobbes, Locke, and Rousseau, this book explores the intellectual origins of this doctrine and investigates its chief source in late medieval and early modern thought.

Long regarded the principal source for modern legal reasoning, Roman law had a profound impact on the major architects of popular sovereignty such as Francois Hotman, Jean Bodin, and Hugo Grotius. Adopting the juridical language of obligations, property, and personality as well as the model of the Roman constitution, these jurists crafted a uniform theory that located the right of sovereignty in the people at large as the legal owners of state authority. In recovering the origins of popular sovereignty, the book demonstrates the importance of the Roman law as a chief source of modern constitutional thought.

The Table of Contents is available here. The review by Roman Hoyos (Southwestern Law School) is available here.

Those SSRN Posts

As long-time LHB readers know, our usual practice has been to post only abstracts for SSRN papers that are downloadable from that website.  Perhaps like many of you, we’ve heard that the new for-profit proprietors have been removing links to papers that do not on their face show disclose their authors' permission to post them.  We’ll continue to follow the situation and, if necessary, alter our practice.

Crofts on "The Other Thirteenth Amendment"

New from the University of North Carolina Press: Lincoln and the Politics of Slavery: The Other Thirteenth Amendment and the Struggle to Save the Union (April 2016), by Daniel W. Crofts. A description from the Press:

In this landmark book, Daniel Crofts examines a little-known episode in the most celebrated aspect of Abraham Lincoln’s life: his role as the “Great Emancipator.” Lincoln always hated slavery, but he also believed it to be legal where it already existed, and he never imagined fighting a war to end it. In 1861, as part of a last-ditch effort to preserve the Union and prevent war, the new president even offered to accept a constitutional amendment that barred Congress from interfering with slavery in the slave states. Lincoln made this key overture in his first inaugural address.

Crofts unearths the hidden history and political maneuvering behind the stillborn attempt to enact this amendment, the polar opposite of the actual Thirteenth Amendment of 1865 that ended slavery. This compelling book sheds light on an overlooked element of Lincoln’s statecraft and presents a relentlessly honest portrayal of America’s most admired president. Crofts rejects the view advanced by some Lincoln scholars that the wartime momentum toward emancipation originated well before the first shots were fired. Lincoln did indeed become the “Great Emancipator,” but he had no such intention when he first took office. Only amid the crucible of combat did the war to save the Union become a war for freedom.

More information is available here.

Sunday Book Roundup

This week, book reviewers are reflecting on Jonah Lehrer’s new book, “second chances” in the book world, and the extent to which the publishers (who, per The Guardian, “love books that tell clear, simple stories sprinkled with cutting-edge science” can be held to blame for his misdeeds). While this could be as an interesting set of issues for legal historians and writers in general, there are more pertinent reviews afoot as well.

The LA Times carries a review of Geoffrey Cowan’s account of the country’s first primary season in 1912, when Theodore Roosevelt challenged his former protégé William Howard Taft with a “gambit” that involved selecting delegates from each state. The review draws more from today’s primary contest (“if Roosevelt was Trump, then Taft was Jeb”) that historians of Roosevelt and turn of the century politics, and should be of interest to a wide group of readers.

In the NYRB, Jerry Brown discusses William J. Perry, the US Secretary of Defense from 1994 to 1997, whose My Journey at the Nuclear Brink argues that nuclear danger is “growing greater every year” and that even a single nuclear detonation “could destroy our way of life.” In the same publication, Paul Krugman reviews a new book by Mervyn King, former Governor of the Bank of England. While the book is “devoted to ‘economic ideas.’” It is also “rich in wide-ranging historical detail.”

In Dissent, editor Timothy Shenk interviews Caitlin Fitz about Our Sister Republics, which “exhumes a forgotten moment in the history of the Americas, a time when residents of the newly formed United States came to see Latin Americans as partners in a shared revolutionary experiment.”

This week’s reviews may be of particular interest to legal historians concerned with nationalism, migration and global contact. In an essay in The Nation, John Connolly reviews Tara Zahra’s The Great Departure: Mass Migration From Eastern Europe and the Making of the Free World, which follows the almost 58 million people left Europe for North and South America between 1846 and 1940 as well as the ethno-nationalist politics prompted by their departure. The book was reviewed heavily earlier this year, including in the Chicago Tribune and Foreign Affairs. Readers of Zahra’s book may also be interested in Vanessa Ogle’s The Global Transformation of Time: 1870-1950, which is featured on the New Books Network podcast.

The Wall Street Journal contains a series of interesting reviews (including one of June Teufel Dreyer’s “Middle Kingdom and Empire of the Rising Sun” and one of “Love Canal: A Toxic History From Colonial Times to the Present” by Richard S. Newman), but these are behind a paywall.

And finally, in PopMatters Jedd Beaudoin reviews Deborah L. Rhode’s Adultery: Infidelity and the Law.

Weekend Roundup

• Congratulations to Professors John Hudson and Lorna Hutson, co-directors of University of St Andrews’s Centre for Mediaeval and Early Modern Law and Literature, upon their election to the British Academy.  More.

• And congratulations to Michelle McKinley upon being named director of the University of Oregon’s Center for the Study of Women in Society.  The press release notes that the Cambridge University Press will publish Professor McKinley's book, Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700, in September. 

• The Library of Congress has placed on-line 6,000 items from the Martin Van Buren Papers and released a new on-line version of the Federal Register for the years 1936-1993, together with a Beginner's Guide.  More: Library of Congress Blog.

• Out this month from Prometheus Books: Trials Of The Century: A Decade-By-Decade Look at Ten of America's Most Sensational Crimes, by the father-daughter team, Mark J. Phillips and Aryn Z. Phillips.  Before clicking, try guessing the authors' choice for each decade.

• Paul Burgess, a PhD candidate at the University of Edinburgh, has published Should Entick v Carrington be on our Rule of Law Radar? an essay inspired by Entick v. Carrington: 250 Years of the Rule of Law (Hart, 2015), on Jus Politicum.

• ICYMI: New York Times reporter Rachel Swarms follows up on her story about the 1838 sale of some 272 slaves by the Jesuit priests who ran what became Georgetown University by following the current president John J. DeGioia’s encounters with their descendants.  The Senate approved Carla Hayden as the new Librarian of Congress.  Ronald Collins interviews Michael J. Graetz and Linda A. Greenhouse about The Burger Court and the Rise of the Judicial Right (Simon & Schuster, 2016) on SCOTUSblog.  Seth Barrett Tillman on the impeachment of Associate Justice Samuel Chase, and Roland Nikles, a San Francisco attorney, on Worcestor v. Georgia.

• Save the dates: Although this is still a year away, you may want to note that the Commission on Legal Pluralism will have its next biennial conference in Syracuse, NY on Aug.9-11, 2017. It will host a course on legal pluralism right before the meeting--on Aug.4-7, 2017.

• Via H-Law: "Additional Essays Needed for Edited Collection on 18th-Century Literature & Law." 

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

Bilder on Coke, the Virginia Charter and "Charter Constitutionalism"

Mary Sarah Bilder, Boston College Law, has posted Charter Constitutionalism: The Myth of Edward Coke and the Virginia Charter, from the symposium on Magna Carta in the North Carolina Law Review (2016):

Magna Carta’s connection to the American constitutional tradition has been traced to Edward Coke’s insertion of English liberties in the 1606 Virginia Charter. This account curiously turns out to be unsupported by direct evidence. This Article recounts an alternative history of the origins of English liberties in American constitutionalism. A quarter century before the Virginia charter, provisions assuring liberties to English children born overseas were inserted in the earliest letters patent. These provisions drew on an older practice extending liberties to children born overseas. Because of these provisions, persons born in the colonies were guaranteed the same liberties as those born in England. This explanation suggests new appreciation for the interpretive flexibility of early written constitutionalism. As the liberties provisions reveal, words described the underlying concept but were not used to fix a precise definition. Thus, various words could be altered over time to ensure that the concept adapted to contemporary political and legal issues. Throughout, however, the assurance remained that those born in the colonies possessed English liberties. This Article calls this genre of early written constitutionalism “charter constitutionalism” to emphasize this elastic interpretive practice. Charter constitutionalism deserves recognition as a founding strand of American constitutionalism.

H/t: Legal Theory Blog

Cox and others on Public Indecency in England

Public Indecency in England 1857-1960: 'A Serious and Growing Evil' came out with Routledge earlier this year. The volume is co-authored by David J. Cox (U. of Wolverhampton), Kim Stevenson (Plymouth U.), Candida Harris (Plymouth U.), and Judith Rowbotham (independent scholar based in London). From the publisher:

Throughout the nineteenth century and twentieth century, various attempts were made to define and control problematic behaviour in public by legal and legislative means through the use of a somewhat nebulous concept of ‘indecency’. Remarkably however, public indecency remains a much under-researched aspect of English legal, social and criminal justice history.

Covering a period of just over a century, from 1857 (the date of the passing of the first Obscene Publications Act) to 1960 (the date of the famous trial of Penguin Books over their publication ofLady Chatterley’s Lover following the introduction of a new Obscene Publications Act in the previous year), Public Indecency in England investigates the social and cultural obsession with various forms of indecency and how public perceptions of different types of indecent behaviour led to legal definitions of such behaviour in both common law and statute.

This truly interdisciplinary book utilises socio-legal, historical and criminological research to discuss the practical response of both the police and the judiciary to those caught engaging in public indecency, as well as to highlight the increasing problems faced by moralists during a period of unprecedented technological developments in the fields of visual and aural mass entertainment. It is written in a lively and approachable style and, as such, is of interest to academics and students engaged in the study of deviance, law, criminology, sociology, criminal justice, socio-legal studies, and history. It will also be of interest to the general reader.

More after the jump.

CFP: Law and Literature From the Global South

[Via H-Law we have the following CFP.]

The Journal of Commonwealth and Postcolonial Studies, Spring 2018 Special Issue: Law and Literature from the Global South.  Guest Editors: David Babcock (James Madison University) and Peter Leman (Brigham Young University).  Deadline for Submissions (approximately 4,000-5,000 words): December 20, 2016.

The editors of this special issue of JCPCS seek essays that respond to the question: what does it mean to study law and literature from the global south? “Law and Literature,” as a field, has responded in recent years to criticism of its longstanding attention to Anglo-American contexts, and more and more, scholars are turning to regions of the global south in thinking about the literary in relationship to international, colonial, and post-colonial forms of law. Though this widening geographical scope is praiseworthy and necessary, there remains the question of method: can the literatures and legal cultures of the global south inflect, augment, or otherwise reshape not only where we direct our critical attention as scholars of law and literature but how?

In posing this question, we take as initial inspiration Jean Comaroff and John L. Comaroff’s Theory From the South (2012), in which they question the tendency of theory work to be unidirectional, emerging from the north and then circulating within and being “applied to” the south. If, however, the global south has played an essential role in “world-historical processes” (7) and can, therefore, afford “privileged insight into the workings of the world at large” (1), then perhaps theory—including law and literature—ought to take this into account. When we speak of “postcolonial law and literature” or “law, literature, and the global south,” are we speaking of the conventional critical paradigms of law and literature as it emerged from Anglo-American contexts in the 1970s and 80s, or does the postcolonial/global open us up to new configurations of the legal and the literary? If so, what might these configurations look like? What new concepts emerge? Are there forms of law, justice, obligation, harm, personhood, etc. that originate in but circulate beyond the cultures of the global south that might provoke us to think differently about the dominant normative assumptions of the field at large? Are there colonial legal practices that still survive in contemporary states, and if so, what creative concepts or images of law can we see emerging in literary responses to these problematic legacies? In what ways has international law been adapted, reimagined, or otherwise modified in its years of deployment throughout the global south—for good or for ill—that can be understood through the lens of the literary and brought back to our conventional assumptions about law as it has developed in the north? Are there forms of intersection between law and literature in the global south that make even the implied distinction of “and” irrelevant? Submissions should seek to demonstrate how the literatures and cultures of the global south, broadly conceived, offer provocative ways for scholars throughout the world to think about the field of law and literature and the fluid nature of its most fundamental terms.

Manuscripts must be written in English and follow the MLA Style Manual. JCPCS uses a double-blind review process. Full, formatted manuscripts should be submitted to jcpcs.lawlit@gmail.com by December 20, 2016.

Funk on Church Corporations and Conflict of Laws

Kellen R. Funk, a doctoral candidate in history at Princeton University, has posted “Interference in Churches Must Be Referred to the Rights of Property”: Church Corporations and Conflict of Laws in Antebellum America, which is forthcoming in the Journal of Law and Religion 33 (2018)::    

Scholars frequently describe American religious disestablishment using commercial analogies, reckoning that states “privatized” religion or subjected churches to “free market competition” by making them more like commercial businesses, yet churches pioneered many of the corporate devices that came to define American enterprise after the Civil War. Such descriptions are thus anachronistic. Antebellum jurists were not concerned about the similarity of churches to businesses but rather their similarity to states, and the republican fear that churches could be rival sovereign states at first structured the law of disestablishment. In most states, churches gained rights of general incorporation but faced significant limitations on their corporate governance and property holdings. After the Marshall Court reasoned that churches did not govern and should not be considered rival sovereignties, state judges were left without a definite source of law to adjudicate church disputes. Given the vagueness of charters under general incorporation schemes, state courts allowed trust law to function as a conflict of law analysis: Judges treated religious doctrine as a foreign legal system with rules that could be ascertained and accorded respect in American courts. Such a move created a positive, corporate right of religious liberty that becomes obscured if one conceives of religious freedom only as an individual right to be asserted against the state.

Kang on Holmes's Martial Manliness

John M. Kang, St. Thomas University School of Law, has posted Prove Yourselves: Oliver Wendell Holmes and the Obsessions of Manliness, which will appear in the West Virginia Law Review 118 (2016): 1067-1129,

OWH in uniform, 1861 (wiki)

In order for constitutional democracy to endure, Americans must be tough, must be manly—and indeed heroic; or so Oliver Wendell Holmes argued, the famous justice who, in his mid-twenties, was also a thrice wounded veteran of the Civil War.

Holmes is often wrongly portrayed as a social Darwinist or as a political progressive sympathetic to workers or even as a prototypical liberal softy of sorts. Notwithstanding his own words, there were few bases for these accounts. Holmes’s most important opinions dealing with First Amendment were impelled by an idiosyncratic idea of manliness, and in particular, a view of manliness that was derived from his account of martial heroism. He argued that only a manly people who embraced his own brand of heroism could endure the frightening consequences that would be ushered by the political freedom protected by the First Amendment. Only such a heroic people, that is, could tolerate conditions where communists, anarchists, and other subversives threatened to destroy the United States.

Whittington on Judicial Review by the US Supreme Court

Keith E. Whittington, Princeton University, Department of Political Science, has posted Sober Second Thoughts: Evaluating the History of Horizontal Judicial Review by the U.S. Supreme Court, which is forthcoming in Constitutional Studies:

Normative theorizing about judicial review often proceeds with minimal attention to the overall record of how the U.S. Supreme Court has actually exercised the power of judicial review. This article assesses how well the historical record of the Court’s invalidation of federal policies can be justified using only a minimalist theory of judicial review. Although some of the Court’s cases can be justified in this way, most of the Court’s work would require a more substantively thick and necessarily controversial theory in order to justify it.

Shammas and Mancall on the Sea

An edited volume by Peter C. Mancall and Carole Shammas (both of the University of Southern California), Governing the Sea in the Early Modern Era:Essays in Honor of Robert C. Ritchie (Huntington Library) came out last year. From the publisher:

Early modern European governments clashed over laws governing the sea—an environment that featured watery borders, rampant piracy, the threat of free trade, and the large-scale transportation of human cargo. The essays in this volume explore how the exploitation of the oceans changed the institution of slavery, long-distance trade, property crime, the environment, literature, and memory, from medieval times to the nineteenth century.

The Table of Contents is available here, and here is further information about the book.

Zhao on Sorcery Crimes in Traditional China

Xiaohuan Zhao, University of Sydney, Department of Chinese Studies, has posted Sorcery Crimes, Laws, and Judicial Practice in Traditional China, which appears in the Australian Journal of Asian Law 17 (2016): 1-21:

Wugu is a general term for all sorts of black magic in China, just as ‘sorcery’ or ‘witchcraft’ is understood in a Western context. Wugu sorcery is a living tradition that has been practised for more than 3,000 years and has been strictly prohibited and severely punished since ancient times. This study will examine rules and punishments laid out against sorcery crimes in traditional China from the pre-Qin (221-206 BC) period through to the Qing dynasty (1644-1911), followed by a case study of relevant judicial practice. I argue that sorcery was treated primarily as a heretical or political crime in early and early medieval China, before politically motivated sorcery crimes were distinguished from non-politically motivated ones. The distinction made between them led to a sharp drop in political sorcery charges and trials in China’s later dynasties but did not do much to prevent miscarriage of justice from occurring from time to time, mainly due to wide judicial discretion, lack of specific legal penalties, and the absence of effective means of gathering and verifying evidence.

Three More from Hulsebosch

Daniel J. Hulsebosch, New York University School of Law, has posted three more articles, either just out or forthcoming.  Professor Hulsebosch presented Magna Carta for the World? The Merchants’ Chapter and Foreign Capital in the Early American Republic  in that Carolina Law symposium on Magna Carta.  (The paper is downloadable not through SSRN but here, as part of volume 94 of the North Carolina Law Review.)

This Article examines the early modern revival and subtle transformation in what is here called the merchants’ chapter of Magna Carta and then analyzes how lawyers, judges, and government officeholders invoked it in the new American federal courts and in debates over congressional power. In the U.S. Supreme Court in the early 1790s, a British creditor and an American State debated the meaning and applicability of the merchants’ chapter, which guaranteed two rights to foreign merchants: free entry and exit during peacetime, without being subjected to arbitrary taxes; and, in wartime, the promise that their persons and goods would not be harmed or confiscated, unless their own king attacked and confiscated English merchants. In other words, no harm to enemy aliens, except as retaliation. Tit for tat.

The idea that reciprocity was a fundamental mechanism of international (and interpersonal) relations became something like a social science axiom in the early modern Enlightenment. Edward Coke claimed to find that mechanism in the merchants’ chapter and publicized it to lawyers throughout the emerging British Empire and beyond. Montesquieu lauded the English for protecting foreign commerce in their fundamental law, and Blackstone basked in that praise. American lawyers derived their understanding of the merchants’ chapter from these sources and then, in the early Republic, stretched the principle behind it to protect foreign capital, not just resident merchants. The vindication of old imperial debt contracts would signal to all international creditors that, in the United States, credit was safe. Federalists then invoked the chapter outside of the courts to resist Republican attempts to embargo commerce and sequester foreign credit. For Republicans, doux commerce had become the Achilles heel of the great Atlantic empires: their reliance on American trade could be used to gain diplomatic leverage without risking war. For Federalists, economic sanctions threatened not just their fiscal policy but their entire vision of an Atlantic world that increasingly insulated international capital from national politics. They all agreed, however, that the role of foreign capital in the American constitutional system was a central issue for the new and developing nation.

A second article is Exile, Choice, and Loyalism: Taking and Restoring Dignity in the American Revolution, which is to appear in a symposium on “Dignity Takings,” in Law & Social Inquiry (2016):    

Taking a cue from Bernadette Atuahene’s concept of “dignity takings” and her insight that government expropriation inflicts more than economic injury, this essay analyzes how American revolutionaries defined political membership, penalized and expropriated British loyalists, and then allowed some to join the American polity in the decade after the Revolution. Many recovered their property, professions, and legal privileges. However, because most loyalists could choose to remain loyal or join the Revolution, they did not lose human dignity as Atuahene defines it. Case studies of two reintegrating lawyers, Richard Harison and William Rawle, explore loyalism, the loss of dignities that loyalists suffered, and some paths toward reintegration. Their appointment as federal attorneys helped make the government conversant in the common law, British statutes, and the law of nations, which in turn supported the Federalist goal of reintegrating the United States into the Atlantic World: achieving, in other words, national dignity.

The third is English Liberties Outside England: Floors, Doors, Windows, and Ceilings in the Legal Architecture of Empire, which is forthcoming as Chapter 38 of the Oxford History of English Law and Literature 1500-1700, ed. Lorna Hutson:

We tend to think of global migration and the problem of which legal rights people enjoy as they cross borders as modern phenomena. They are not. The question of emigrant rights was one of the foundational issues in what can be called the constitution of the English empire at the beginning of transatlantic colonization in the seventeenth century. This essay analyzes one strand of this constitutionalism, a strand captured by the resonant term, ‘the liberties and privileges of Englishmen’. Almost every colonial grant – whether corporate charter, royal charter, or proprietary grant – for roughly two dozen imagined, projected, failed, and realized overseas ventures contained a clause stating that the emigrants would enjoy the liberties, privileges and immunities of English subjects. The clause was not invented for transatlantic colonization. Instead, it had medieval roots. Accordingly, royal drafters, colonial grantees, and settlers penned and read these guarantees against the background of traditional interpretations about what they meant.

Soon, however, the language of English liberties and privileges escaped the founding documents, and contests over these keywords permeated legal debates on the meaning and effects of colonization. Just as the formula of English liberties and privileges became a cornerstone of England’s constitutional monarchy, it also became a foundation of the imperial constitution. As English people brought the formula west, they gave it new meanings, and then they returned with it to England and created entirely new problems.

Liberties and privileges claims fell into five functional categories. First, the claim that colonists abroad and their descendants enjoyed English liberties functioned as an open door, allowing overseas colonists to return home to England and be treated as equal English subjects. Second, the king or his colonial deputies might make positive grants of English liberties to subjects in a royal territory outside England as an inducement for English subjects to migrate there. Here, the grant of English liberties and privileges functioned as a window, a transparent promise of familiar and cherished rights to encourage settlement. Third, already by the time of the English Civil War and more frequently by century’s end, the colonists themselves sometimes claimed English liberties, privileges, and immunities abroad as a floor below which governors could not push. Fourth, in the reverse of the second, the claim that overseas subjects had to be governed according to English standards, including English liberties and privileges, could function as a ceiling on colonial innovation. It was a ceiling measured by metropolitan officials, especially the Privy Council as it reviewed colonial statutes and judicial cases to ensure that they were, in the familiar language of colonial grants, ‘agreeable’ with and ‘not repugnant’ to the laws of England. Finally, colonial assumptions of English liberties functioned as a mirror through which colonists could see themselves as English, even when their colonial rights, such as their property rights, were viewed at home as peculiar. If for example a subject of the English king in an overseas dominion owned slaves in that dominion and wished to sojourn home, could he bring his slaves? Could he carry the rights of a Virginian or Jamaican with him to England and enjoy those rights there? Collapsing English and local liberties, slaveholders argued affirmatively. As Englishmen they should, they thought, be able to move around the empire with their property, including human property.