Law and Colonial Violence: An International Workshop

[We are moving this post up and adding a link to the finalized program, which we've just received.]

[We have the following announcement of Law and Colonial Violence: An International Workshop at to be held at Queen Mary University of London and sponsored by QMUL, Cambridge University, and the European University Institute, to be held on 14 February 2017.  The deadline for abstracts is 17 December 2016.]

Now more than ever, the relationship between colonial violence and law stands at the centre of public and scholarly attention. While some have sought to position law as a ‘limiting factor’ in restraining the violence of imperial rule, there is plenty of empirical evidence illustrating the degree to which jurists and the law itself have been deeply implicated in the creation and maintenance of empire, including its utility of violence. Growing academic interest in the connections between these two perspectives has been made evident by important new fields of inquiry. These include legal, social scientific, and historiographical debates on colonial violence in the ‘long’ nineteenth century, as well as more recent discussions regarding international criminal law since the end of the Cold War, turns to ‘history', ‘critical theory’, the ‘global’, or ‘postcolonial’ in legal and intellectual history, the laws of war in the post-9/11 epoch, and arguments regarding the ‘breakthroughs’ of human rights in the 1970s and 1990s - or, perhaps, (much) earlier.

In light of recent attempts to engage in interdisciplinary study of new discourses and methodological approaches, this international workshop co-organized by Queen Mary University of London (QMUL), the European University Institute (EUI), and the University of Cambridge seeks to examine the genealogy of this complex and frequently contested intersection of law in its broadest sense, imperial violence, and the growing force of internationalism from a truly global perspective by calling for papers that address these questions and themes.

This workshop will seek to bring together both graduate students and more advanced scholars working with a variety of historical, legal, intellectual, and theoretical methods to explore the relationship between law and imperial violence from roughly the 1800s up to the 1970s, when decolonization was reaching its end phase and the Additional Protocols were being signed. We particularly invite scholars working on those laws regulating policing and violence in an imperial context, such as emergency penal, or martial laws, the laws of war, and human rights.
Potential topics range from, but are not limited to, the implementation of colonial emergency laws at a local, regional or national level; law as a justifier or facilitator of violence; law as an instrument for limiting or ending colonial violence; the laws of war and human rights in colonial and postcolonial contexts; a conceptual or theoretical history of law, civilization, race, and colonial violence; indigenous resistance and the law; historical comparisons across time, geographical locations (metropole/periphery), and empires; the influence of empire on the drafting of new laws or declarations regulating warfare and imperial policing; and the problem of clashing or overlapping legal regimes in imperial contexts (e.g. emergency laws vs. human rights).

The workshop, which is organized by Jacob Ramsay Smith (QMUL), Joseph McQuade (Cambridge), and Boyd van Dijk (EUI/King's College), aims at bringing together scholars into a one-day intensive workshop at QMUL. It will feature a number of panels and a keynote lecture by Professor Dirk Moses, of the University of Sydney. Abstracts (350 words long) should be submitted to lawcolonialviolenceworkshop@gmail.com and are due December 17, 2016.

CFP: "Governance and Rights: Law, Religion, and Sexuality in Caribbean Literature and Culture"

Via H-Law, we have the following Call for Papers:

Governance and Rights. Law, Religion, and Sexuality in Caribbean Literature and Culture

Junior Research Conference: Society of Caribbean Research (Socare)

Venue: University of Salzburg

Organizers: Christopher F. Laferl, Ralph Poole, Philipp Seidel

Date: 23 – 25 November 2017

The Caribbean is distinguished for its great political and cultural diversity, which not only is discernable by various languages, but also by the multiplicity of religions, social norms and values, and legal systems. Although Latin America continues to be regarded as a Catholic continent, the situation in the Caribbean is more complex. On the one hand, the Catholic Church competes against traditional Protestant churches, on the other hand both are distinct from (syncretistic) Afro Caribbean religions as well as increasingly from evangelical Pentecostal churches. This religious and cultural mixture poses serious challenges to the state, the society, the legal system, but also to the arts and literature. The various types of governmental and legal systems largely date back to differing traditions of (previous) colonial powers. While the (former) British territories rely on the Anglo-Saxon Common Law, the other territories follow continental European legal systems. And yet, these orders only make up the outer framework within which the people of a state move and act. How individuals and/or various collectives actually live together and how their attitudes and behavior towards the state and other institutions are shaped, all this underlies a continuous process of negotiation that can take on multifarious forms.

Against this backdrop the focus of the junior scholar conference of the Society of Caribbean Research (Socare) lies on questions concerning governance and rights. Not only the (in)stable, democratic or authoritarian governments play an important role, but also the specific means of governing. Besides the actual political players, who justify their position and actions and take on responsibility, economic, social and religious institutions also have a great importance in matters of shaping the communal lives of their societies, especially when politics cannot offer effective solutions or when the success of their implementations remains questionable. Furthermore, what is at stake is the question in how far the principle of non-discrimination, which since the Enlightenment has been reclaimed for more and more areas of identity also on a supranational level, is being realized by the single states and in social practice. Especially with regard to observing the various non-discriminatory regulations there are still (or again?) great differences concerning gender, ethnicity, class, and sexuality, not least since several categories of identity are often in (open) conflict with one another.

The following questions may serve as framework for the conference’s topic:

• How do modern life concepts that are characterized by a will to self-determination conform to current developments in Caribbean societies? In what ways do literature and other arts reflect these developments?
• How are problems concerning discrimination, ostracism, suppression and violence being dealt with? What solutions are being offered and by whom?
• How is sexuality, broadly understood as encompassing pre/extramarital sex, abortion, same-sex sexuality, sex trade, etc., being treated?
• How do the creative artists deal with minority groups, what positions do they take on?
• How do the various legal and belief systems react to the principle of non-discriminatory self-determination? In what ways to these systems affect different levels of society?
• What influence do migratory processes have on these negotiations?
• What significance do writers and artists play, and what location have they chosen to write/speak/produce from?
• What is the function of hate speech and victimization in literary, musical, and other creative art forms?

We invite junior scholars from all areas and disciplines of Caribbean Studies to participate. Interdisciplinary contributions from legal and theological sciences are also most welcome. The contributions should not exceed the limit of 20 minutes.

Those interested should send a half-page abstract in either German, English, Spanish, or French along with a short bio to Philipp Seidel (philipp.seidel@sbg.ac.at ) by March 15, 2017. Please state the preferred language for your talk and what other languages you feel comfortable with. The conference’s languages will be chosen according to the selected contributions. The contributors will be informed in time.  

Contact Info:

Philipp Seidel

University of Salzburg

Dep. of Romance Studies

Erzabt-Klotz-Str. 1

A - 5020 Salzburg 

Contact Email:
philipp.seidel@sbg.ac.at

 

APSA Statement on the Immigration EO

[This just arrived in our in-box, from the American Political Science Association.]

The APSA posted a formal statement condemning the new Executive Order on immigration issued by President Trump. The full text of the statement appears below. The statement is also available [here].

APSA statement regarding President Trump's executive order "Protecting the Nation From Foreign Terrorist Entry Into the United States," January 30, 2017

The American Political Science Association (APSA) condemns the Executive Order issued on January 27, 2017, entitled "Protecting the Nation From Foreign Terrorist Entry Into the United States," and strongly urges President Trump to rescind it. The order generates immediate and detrimental effects on colleagues and students with whom we teach, write, and collaborate. It undermines academic freedom in the most fundamental way by restricting the ability of scholars to meet, learn and exchange ideas on campuses of American colleges and universities. As scholars and teachers, we deplore the interruption of research, teaching, and intellectual engagement that this order causes.

The American Political Science Association is a scholarly association with over 13,000 members worldwide, including members who are residents and/or citizens of the seven countries affected by the immigration ban in the Executive Order. APSA brings together political scientists from all fields of inquiry, regions, and occupational endeavors within and outside academe to deepen our understanding of politics, democracy, and citizenship throughout the world.

As indicated in our vision statement, the APSA works to promote "scholarly understanding of political ideas, norms, behaviors, and institutions to inform public choices about government, governance and public policy". The lack of full regard for liberal democratic norms and practices demonstrated in this Executive Order can deeply harm these scholarly understandings. We urge the President and the other federal officials to consider these and other scholarly understandings of the strengths and foundations of the United States' political system and political culture when making decisions that may affect them, and we call on the President to rescind this order immediately.

As an organization, the APSA also stands ready to support any colleague who may be directly or indirectly affected by this executive order. If any APSA member is affected by this executive action, please contact us for any support or assistance we can provide. Visit this link for resources or to request support.

David A. Lake, President
Jennifer Hochschild, Past-President
Kathleen Thelen, President-Elect
Steven Rathgeb Smith, Executive Director

Campbell on Natural Rights at the Founding

Jud Campbell, University of Richmond School of Law, has posted Republicanism and Natural Rights at the Founding,which appears in Constitutional Commentary 32 (2017): 85:   

Today we tend to think about natural rights as non-positivist claims to limits on governmental authority — typically claims derived from religion, morality, or logic. These “rights,” by their very definition, exist independent of governmental control. Indeed, that is what makes them “natural.” This Essay, responding to Randy Barnett's Our Republican Constitution, sketches a different view of Founding-Era natural rights, their relationship to governmental authority, and their enforceability. With the exception of certain “rights of the mind,” natural rights were not really “rights” at all, in the sense of being determinate legal privileges or immunities. Rather, embracing natural rights meant embracing a mode of reasoning. And the crux of the idea — in stark contrast to the modern notion of “natural rights” — was to create a representative government that best served the public good. The Founding-Era idea of “natural rights” thus called for judicial deference to legislative judgments, and it favored broader governmental power just as much as limits to that power. In short, natural rights called for good government, not necessarily less government.

Gindis on Ernst Freund's "Legal Nature of Corporations"

David Gindis, University of Hertfordshire Business School, has posted Ernst Freund as Precursor of the Rational Study of Corporate Law:

The rise of business corporations in the late nineteenth century compelled many American observers, including leading economists and lawyers, to admit that the nature of corporations had yet to be understood. In this context, Ernst Freund’s (1897) little-known The Legal Nature of Corporations represented not just an original attempt to come to terms the a new legal and economic reality but also what can best be described, to paraphrase Oliver Wendell Holmes, as the earliest example of the “rational study” of corporate law. This paper proposes the first systematic assessment of Freund’s corporate theory, showing that Freund had the mind of an institutional economist and engaged in what today would be called comparative institutional analysis. Remarkably, Freund’s argument that the corporate form secures property both against insider defection and against outsiders anticipated recent work on entity shielding and capital lock-in associated with Henry Hansmann, Margaret Blair and others.

H/t: Legal Theory Blog

CFP: Inheritance Practices in the 20th century

[We have the following announcement. The deadline is Feb.28, 2017.]

Inheritance Practices in the 20th Century: A Workshop at the German Historical Institute Washington, DC.

Tentative dates: 9/14/2017 – 9/16/2017

Conveners: Jürgen Dinkel (University of Gießen), Simone Lässig (GHI Washington), Vanessa Ogle (University of Pennsylvania)

American baby boomers stand to inherit about $11.6 trillion in the coming years. The distribution of this wealth will be highly unequal, however. Households in the wealthiest decile will receive by far the biggest inheritances, an estimated $1.5 million per heir on average. By contrast, heirs in the poorest decile will receive an average of $27,000. Enormous and unequal intergenerational wealth transfers are expected in other regions of the world as well.

Despite the substantial contribution of inheritance practices to social inequality in societies and individual families, we know very little about the distribution of inherited money and assets in the period since the late nineteenth century. Thomas Piketty’s bestselling Capital in the Twenty-First Century has spurred heightened interest in the question of inherited wealth and its relation to rising inequality over the course of the past century.

Although historians have published extensively on inheritance law and practices in earlier periods in a variety of world regions and among different social groups, the twentieth century remains largely unexplored. This workshop thus seeks to bring together the history of inheritance and contemporary history. We want to examine and compare how property and property rights were distributed upon death in different world regions, urban settings, and social groups from the late nineteenth century to the present. We want to analyze how wealth transfers influenced family and kinship in terms of individual life plans, intra-family relations (including sibling and gender dynamics), intergenerational relations, questions of race, social inequality, notions of risk and entrepreneurship, and mobility (including transnational migration). While the legal frameworks for inheritance are important and will be considered in connection with the questions the workshop address, we are primarily interested in inheritance practices. Specifically, we seek to analyze what strategies (wills, trusts, inheritance agreements, etc.) testators used to distribute which parts of their property to which heirs and what factors determined their choice of heirs and the apportionment of property and assets among them. We are also interested in increasingly common strategies used to minimize different taxes on inheritances, such as the use of tax havens and low-tax jurisdictions for setting up trusts and the like. Additional questions include: What significance did kinship possess vis-à-vis personal relationships with persons who were not kin to the testator? What conditions were placed on inheritances and what role did inheritance play in the lives of the heirs?

By examining inheritance practices, the workshop aims to provide new insights into the structure and meaning of personal networks (like family and kinship relations) in the twentieth century. The workshop’s focus on inherited property is also intended to shed new light on continuities and discontinuities in social inequality in families and in societies. Finally, the workshop will explore the interdependence between public, social, and economic welfare structures, on the one hand, and private family and kinship networks, on the other hand, in the modern age.

Ninth Annual Morris L. Cohen Student Essay Competition

[We have the following announcement.]

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

The competition is designed to encourage scholarship and to acquaint students with the AALL and law librarianship, and is open to students currently enrolled in accredited graduate programs in library science, law, history, and related fields. Essays may be on any topic related to legal history, rare law books, or legal archives. The winner will receive a $500.00 prize from Cengage Learning and up to $1,000 for expenses to attend the AALL Annual Meeting.

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

The entry form and instructions are available at the LH&RB website.  Entries must be submitted by 11:59 p.m., April 17, 2017 (EDT).

Kamali on Law and Equity in a Medieval English Manor Court

Elizabeth Papp Kamali, Harvard Law School, has posted Law and Equity in a Medieval English Manor Court, which appears in Texts and Contexts in Legal History: Essays in Honor of Charles Donahue, ed. John Witte, Jr., Sara McDougall, and Anna di Robilant (Berkeley, CA: Robbins Collection, 2016), 257-275:

Through a close textual reading and contextual analysis of a short series of early fourteenth-century manorial court roll entries, this paper draws larger conclusions about the interplay between law and equity in a medieval English manor court. It follows a narrative thread focused on a single tenement, which was forfeited by a villein in 1317 due to his fugitive status. The forfeiture was described as permanent in the Great Horwood court roll, and the tenement was transferred by the lord to a new tenant immediately. However, over a decade later the villein’s widow successfully claimed dower in the tenement, and shortly thereafter her son succeeded in regaining the family’s possession of the purportedly forfeited land. The paper reveals the presence of competing interests among various members of the Great Horwood community; the selective marshaling of written evidence, manorial custom, and common law rules; and the exercise of equitable discretion in selecting the “rightful” tenant, possibly guided by extra-legal factors, such as the exigencies of famine. The paper also makes a methodological claim, arguing that a combined textual and contextual analysis of fragmentary evidence can reveal insights that might not come to light through other analytical approaches.

Sunday Book Review Roundup

In The Guardian, Daniel Trilling reviews two books on the history of Fascism in Britain (Fascist in the Family: The Tragedy of John Beckett MP and Searching for Lord Haw-Haw: The Political Lives of William Joyce). Both “wrest control of memory away from the apologists and sympathisers who would have you believe that British fascism was never as extreme as its European counterparts.”

In the Federal Lawyer, you can read reviews of The Annotated Lincoln (edited by Harold Holzer and Thomas A. Horrocks), The Age of Deference: The Supreme Court, National Security, and the Constitutional Order (by David Rudenstine), and Leon Wildes’ John Lennon vs. The USA: The Inside Story of the Most Bitterly Contested and Influential Deportation Case in United States History (which is simultaneously “a nefarious operations of the Nixon administration; a discussion of legal and constitutional issues in a key immigration case [and] a memoir by one of our most venerated immigration attorney.”)

In the NY Times, Michael Lind reviews journalist and historian Stephen Kinzer’s The True Flag: Theodore Roosevelt, Mark Twain, and the Birth of American Empire, which locates American interventionism in the Spanish-American war. (Still curious? Dennis Drabelle reviews it in the Washington Post). Beverly Gage reviews Laurel Thatcher Ullrich’s A House full of Females: Plural Marriage and Women’s Rights in Early Mormonism, 1835-1870. Besides engaging women’s history and Mormon history, Ullrich’s book, it seems, merges traditional “women’s history” (“a straightforward exploration of women’s lives and experiences on their own terms”) and gender and sexuality studies (“sexual alternatives and the fungibility of “choice” speaks implicitly to contemporary concerns over the nature of marriage and the right of the federal government to determine its contours.”).

In the Times Literary Supplement, Gabriel Paquette reviews Caitlin Fitz’s Our Sister Republics: :The United States in an age of American Revolution and Felipe Fernandez-Armesto reviews Adam Hochschild on the Spanish Civil War along with an edited volume on the war by Pete Ayrton.

The Wall St. Journal recovers the story of four liberal wonks in the Progressive Era (see Louis Gould’s review of The House of Truth: A Washington Political Salon and the Foundations of American Liberalism by Brad Snyder), and the post-war occupation of Japan, Germany and Iraq (see Nicholas M. Gallagher’s review of The Good Occupation by Susan L. Carruthers).

In the LA Review of Books you can check out Paul Finkelman’s The Electoral College as a Pro-Slavery Tool, which reviews several takes on constitutional history, and Kate McLoughlin’s review of East West Street. And if you missed it last Monday, check out Priyanka Kumar on MLK and Gandhi.

And in the London Review of Books (book reviewers seem to have gotten a head start in the isolationism game…), you can read Stephen Sedley on British politics (“For … centuries it has been the rolling back of ministerial claims to arbitrary power, exercised by the use of the royal prerogative, that has shaped the British constitution.”) and Hilary Mantel on Susan Higginbotham’s Margaret Pole: The Countess in the Tower.

On the New Books Network you can listen to Samson Lim on his Siam’s New Detectives: Visualizing Crime and Conspiracy in Modern Thailand , Timothy Sandefur on his new book, The Permission Society: How the Ruling Class Turns Our Freedoms into Privileges and What We Can Do About It; Karen Greenberg on Rogue Justice: The Making of the Security State and Sabeel Rahman on his Democracy Against Domination (a reinterpretation of “Progressive Era economic thought for the challenges of today”).

New Books Network also features Sara Crosby discussing Poisonous Muse: The Female Poisoner and the Framing of Popular Authorship in Jacksonian America. This isn’t just a way to historicize your favorite Clinton conspiracy theory (so that’s what happened to Vince Foster!), it is a discussion of how the “trope of the female poisoner permeated popular literature in the mid-nineteenth century,” and uses jury decisions as well as popular literature to explore the relationship between law and culture.

And on the H-Law Podcast, which originally published the interview with Sara Crosby, you can check out Al Brophy on University, Court and Slave: Pro-Slavery Thought in Southern Colleges and Courts and the Coming of Civil War.

Weekend Roundup

• • The USC Shoah Foundation Center for Advanced Genocide Research is accepting proposals for research fellowships for advanced-standing PhD students. Deadline: Feb.15, 2017. Full details here.
  
  
  • The 2017 Law & Social Inquiry Graduate Student Paper Competition is now open--until March 1, 2017. The announcement is here.
  
  
  • And on the topic of the LSI competition: congratulations to Evelyn Atkinson, University of Chicago, who is the winner of the 2016 competition with her article, "The Burden of Taking Care: Children, Attractive Nuisance, and the Safety First Movement." Watch for it in LSI in 2017!
  
  
  • A legal history classic made its way into the pages of the New York Times last week. "Pet Pigs of New York: Illegal, Embattled, Beloved" includes a link to Hendrik Hartog's famous 1985 Wisconsin Law Review article, "Pigs and Positivism." (H/t: @jessicaklowe)
   
  • "Columbia Unearths Its Ties to Slavery": The New York Times article, via HNN
  
  
  • ICYMI: This starts out as a familiar lament but takes a surprising (for us) turn, until we saw that it appears on the website of the Philadelphia Church of God.  Also, those radical professors are really up to.  H/t: Joanna Grisinger.
  
  
  • The Nicholas D. Chabraja Center for Historical Studies at Northwestern University is hosting a graduate student conference on May 19, 2017 on punishment and its discontents. The deadline is just around the corner: Feb.1, 2017. Details here. H/t: Law and History CRN
  
  
  Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
  
  

Turlukowski on Administrative Justice in Poland

Jaroslaw Turlukowski, University of Warsaw, has posted Administrative Justice in Poland, which appeared in the BRICS Law Journal 3 (2016): 124–152:    

This article begins with an analysis of the development of administrative justice in Poland over the last centuries. In particular, the author examines administrative jurisdiction before 1918, when Poland regained its independence, the period of the Duchy of Warsaw, the Kingdom of Poland, and the practice on Polish territory under Austrian and Prussian control. The author then moves to modern law by presenting the judicial system in Poland in general, especially the differences between the separate systems of general courts and administrative courts, and analyses the jurisdiction of voivodship (regional) administrative courts, and the basic principles of judicial and administrative proceedings. The focus of study is mainly devoted to judicial and administrative procedure, rather than an administrative process of citizens before administrative authorities regulated in a separate Code of Administrative Procedure. The article describes the role of the judge (pointing out the differences between the active role of first instance judges and the limited capabilities of the judges of the appeal) and the powers of the Supreme Court, in particular its power to adopt resolutions, which has agreat importance for the unification of the jurisprudence. A brief analysis is given to class actions, which in the Polish legal system are inadmissible in court and administrative proceedings. The articles provides a statistical cross-section illustrating the role of administrative jurisdiction. The author concludes with observations pointing up the progress of administrative jurisdiction in Poland, not only in the legal sense, but also in the cultural sense.

Here’s the TOC:

Green on the Legitimacy of the 14th Amendment

Christopher R. Green, University of Mississippi School of Law, has posted Loyal Denominatorism and the Fourteenth Amendment: Normative Defense and Implications:

This Article and a companion defend a revisionist explanation for the Fourteenth Amendment’s legitimacy. The legitimacy of both the Amendment’s proposal and ratification are imperiled by the exclusion of Southern states from Congress between 1865 and 1868: the exclusion was essential for the Amendment’s two-thirds supermajorities in the House and Senate, and the demand that the South ratify before being represented was essential for the Amendment’s three-fourths supermajority among the states. Congress justified the exclusion of Southern representatives by the suspension of Southern states’ “political relations in the Union” during the war; such suspensions continued until Congress restored them. As the companion paper makes clear, a great many Republicans and other observers applied the same theory to Article V. The right to say no to an amendment — that is, the right to be included in the denominator from which a three-fourths ratification vote was calculated — was restored at the same time as other “political relations in the Union.” On this theory, the Fourteenth Amendment became law on February 12, 1867, when Pennsylvania ratified, bringing ratifications to twenty of the twenty-six represented in Congress.

Kaczorowski on Inherent National Sovereignty Constitutionalism

Robert J. Kaczorowski, Fordham University School of Law, has posted Inherent National Sovereignty Constitutionalism: An Original Understanding of the US Constitution, which appeared in the Minnesota Law Review 101 (2016):

This article is an original work of scholarship in several respects. As the title suggests, it presents a novel interpretation of the “original understanding” of the Constitution, which I call the inherent national sovereignty theory. This theory viewed the national government as a sovereign government and Congress as a sovereign legislature imbued with the countless legislative powers that sovereign legislatures possesses. The sources of this understanding are themselves original. The article is based in part on a systematic analysis of the political debates relating to politically defining actions of the federal government in this nation’s early history: the incorporation of the First Bank of the United States in 1791; the decision to allow the bank’s charter to expire in 1811; and the decision to incorporate the Second Bank of the United States in 1816. No one has previously engaged in a systematic constitutional analysis of these political debates. I have found that bank proponents asserted Congress’s inherent sovereign legislative power to explain Congress’s authority to incorporate the First and Second Banks.

Punishment and Its Discontents: A Graduate Student Conference

[We have the following announcement.]

Punishment and Its Discontents, a Graduate Student Conference, at the Nicholas D. Chabraja Center for Historical Studies, Northwestern University, May 19, 2017.  Deadline, Wednesday, February 1, 2017

Mass incarceration, state surveillance, militarized policing, even punitive parenting
movements – all are aspects of the contemporary American carceral state and
representative of the punitive turn in U.S. culture and politics. Punishment, however, is
neither unique to the U.S. nor this moment, and its development has not gone
unchallenged. This conference will explore the myriad social, political, cultural, and
economic implications of punishment, evaluating its role in broader developments from
inscribing gender ideologies to empowering the rise of neoliberalism. It seeks to bring
together a diverse group of scholars exploring the history of punishment and its
discontents at a number of levels, from global applications of punitive power to personal
stories of experiencing punishment or resisting it.

We invite submissions from all fields of history and related disciplines. Submissions may
address, but are not limited to, the following questions: How have historians defined and
theorized punishment, the carceral state, and/or the punitive turn? How has state capacity
to punish developed over time? How has political rhetoric served to justify punitive
policies? How has opposition to such policies been organized? What have been the
consequences of specific groups’ contacts with the carceral state? How has punishment
established or reified gender and racial ideologies? How have changes in punishment
policies reflected shrinking or growing state capacity in other areas? What challenges do
scholars face in studying the history of punishment?

Rosen & Mosnier, "Julius Chambers: A Life in the Legal Struggle for Civil Rights"

New from the University of North Carolina Press: Julius Chambers: A Life in the Legal Struggle for Civil Rights, by Richard A. Rosen (University of North Carolina at Chapel Hill) and Joseph Mosnier (independent scholar). A description from the Press:

Born in the hamlet of Mount Gilead, North Carolina, Julius Chambers (1936–2013) escaped the fetters of the Jim Crow South to emerge in the 1960s and 1970s as the nation’s leading African American civil rights attorney. Following passage of the Civil Rights Act of 1964, Chambers worked to advance the NAACP Legal Defense Fund’s strategic litigation campaign for civil rights, ultimately winning landmark school and employment desegregation cases at the U.S. Supreme Court. Undaunted by the dynamiting of his home and the arson that destroyed the offices of his small integrated law practice, Chambers pushed federal civil rights law to its highwater mark.

In this biography, Richard A. Rosen and Joseph Mosnier connect the details of Chambers’s life to the wider struggle to secure racial equality through the development of modern civil rights law. Tracing his path from a dilapidated black elementary school to counsel’s lectern at the Supreme Court and beyond, they reveal Chambers’s singular influence on the evolution of federal civil rights law after 1964.

A few blurbs:

“This is a terrific book. Telling the story of Chambers and his law firm, Rosen and Mosnier have added a chapter that has long been missing from the history of the North Carolina civil rights movement. Many other historians have touched on aspects of Chambers’s life and work, but no one has ever done it this well, or in such detail.” --Davison M. Douglas

"A rich and engrossing biography of a courageous, pioneering litigator whose landmark contributions to U.S. civil rights law should be much more widely known than they are." --David J. Garrow

More information is available here.

Howland on Japan and international law

Douglas Howland, University of Wisconsin-Milwaukee has published International Law and Japanese Sovereignty: The Emerging Global Orderin the 19th Century with Palgrave Macmillan. From the press:

How does a nation become a great power? A global order was emerging in the nineteenth century, one in which all nations were included. This book explores the multiple legal grounds of Meiji Japan's assertion of sovereign statehood within that order: natural law, treaty law, international administrative law, and the laws of war. Contrary to arguments that Japan was victimized by "unequal" treaties, or that Japan was required to meet a "standard of civilization" before it could participate in international society, Howland argues that the Westernizing Japanese state was a player from the start. In the midst of contradictions between law and imperialism, Japan expressed state will and legal acumen as an equal of the Western powers – international incidents in Japanese waters, disputes with foreign powers on Japanese territory, and the prosecution of interstate war. As a member of international administrative unions, Japan worked with fellow members to manage technical systems such as the telegraph and the post. As a member of organizations such as the International Law Association and as a leader at the Hague Peace Conferences, Japan helped to expand international law. By 1907, Japan was the first non-western state to join the ranks of the great powers.

Highlights from some reviews:

“This fascinating book challenges us to reexamine the 'standard of civilization' thesis that lies at the heart of the rise of the modern international order. Could China and other non-Western nations have avoided humiliation and defeat at the hands of Western Powers had they followed Japan's steps in using rather than rejecting available instruments of international law to establish their sovereignty?”- Amitav Acharya

“Howland’s book is impressive in the width and breath of his treatment of state practice and of the sources he uses. His comprehensive treatment leads to an especially rich narrative about the confrontation between the West and the periphery and its role in the formation of modern international law.”- Randall Lesaffer

“Howland knows well current understandings of global political history, but by focusing on how leaders and diplomats, broadly defined, used law, he provides solid empirical work to show how our current understanding of the rise and formation of the international, especially in East Asia, desperately needs revision.”- Stefan Tanaka

Further information is available here.

Thompson, "In Defence of the ‘Gold-Digger’"

Sharon Thompson (Cardiff University) has posted "In Defence of the 'Gold-Digger.'" It appears in Volume 6 of the Oñati Socio-Legal Series (2016). Here's the abstract:

This article examines the gold-digging trope in family law. It explores the etymology of the term and how it has been employed in cultural and legal contexts, such as media, parliamentary debates and case law. It is argued that the gold-digger construct has shifted, in that it was once applied only to women who formed relationships with men for financial gain, but is now used against all women in the context of modern equality claims in family law, regardless of their intentions. Today, the gold-digger is any woman who seeks a fair share of family assets on divorce, and the concept informs ideas not only of claims to financial relief on divorce, but also the enforceability of prenuptial agreements.

The full article is available here, at SSRN.

Muller on Korematsu Day at BC Law

[We have the following announcement from our friends at Boston College]

We invite you to join us on Friday, January 27, in the Rare Book Room [of the Boston College School fo Law] for our third event of the Legal History Roundtable 2016-2017. We are delighted to welcome Eric Muller, Moore Distinguished Professor of Law, University of North Carolina.  Professor Muller has generously agreed to be with us for two events in honor of Fred Korematsu Day. 

First, Professor Muller will be presenting at noon in a presentation, "Colors of Confinement," co-sponsored with APALSA and Nutter, McClennen, and Fish. It will be in 315.  Professor Dean Hashimoto has been instrumental in working to once again commemorate Korematsu Day this year.

Second, Professor Muller will be presenting a new paper in the Rare Book Room of the Boston College Law School Library at 3:30, with refreshments are available beginning at 3:15 pm. outside the Library Conference Room.  His paper is entitled “Of Coercion and Accommodation: Looking at Japanese American Imprisonment through a Law Office Window"

Crucial to the implementation of the War Relocation Authority’s (WRA) regulations of its detention camps for the uprooted Japanese American community of the West Coast were the WRA “project attorneys,” white lawyers stationed in the camps who gave legal advice to administrators and internees alike. These lawyers left behind a voluminous correspondence that opens a new window on the WRA’s relationship with its prisoners, a relationship heretofore understood as encompassing coercion on one side and either compliance or resistance on the other. This paper uses the voluminous correspondence of the project attorney at the Heart Mountain Relocation Center in Wyoming as a new lens for viewing the regulatory relationship between the WRA and the imprisoned community. It focuses on three of the many matters about which the project attorney gave advice: the design of the camp’s community government, its criminal justice system, and its business enterprises. Evidence from this one law office suggests that on many key issues, the relationship between the WRA and the internees was marked not so much by coercion as by reciprocal accommodation, with each taking account of some of the preferences of the other. While the data are from just one of the ten WRA camps, they suggest a need to reconsider our understanding of how this American system of racial imprisonment operated.

Stanford Center for Law and History Fellowship

[We have the following announcement of an important new fellowship in legal history.]

The Stanford Center for Law and History is a residential fellowship that provides an opportunity to conduct research in the dynamic environment of Stanford University.  We prefer two-year fellowships to help the fellow complete a significant body of independent scholarship, but we are willing to consider one-year terms.  We expect that fellows will dedicate most of their time to pursuing their proposed research projects but will also devote some time to organizing and implementing other Center activities, including an ongoing workshop series and an annual conference.  Fellows are encouraged to become part of a lively law-school-wide community of individuals with an interest in academia by attending weekly faculty lunch seminars and by participating in activities with the other fellows at Stanford Law School to learn more about one another’s scholarship and about academic life more generally.  In addition, fellows are encouraged to attend and participate in the broad range of lectures and workshops available within the broader university, including inter alia, the History Department and the Stanford Humanities Center. For the 2017-2018 fellowship, we will provide a workspace, a competitive salary, and a generous benefits package. Applicants who have completed (or are soon to complete) both a J.D. and a Ph.D in history are strongly preferred.  For more information please visit the Stanford Careers website Job Number 73767.   Application Deadline: February 28, 2017.

The John Hope Franklin Memorial Highway

McClatchy DC reports that as one of his final acts before leaving the Obama administration, Transportation Secretary Anthony Foxx, formely Charlotte's mayor, "signed proclamations . . . calling on the North Carolina Department of Transportation to name a yet-to-be determined section of interstate in Mecklenburg County the 'Julius Chambers Memorial Highway' and a portion of I-85 in Durham County the 'John Hope Franklin Memorial Highway.'"  More.

Read more here: http://www.mcclatchydc.com/news/politics-government/white-house/article128437219.html#storylink=cpy

Lanni on Athenian Law

Cambridge University Press has published Law and Order in Ancient Athens by Adriaan Lanni, Harvard Law School. From the press:

The classical Athenian "state" had almost no formal coercive apparatus to ensure order or compliance with law: there was no professional police force or public prosecutor, and nearly every step in the legal process depended on private initiative. And yet Athens was a remarkably peaceful and well-ordered society by both ancient and contemporary standards. Why? Law and Order in Ancient Athens draws on contemporary legal scholarship to explore how order was maintained in Athens. Lanni argues that law and formal legal institutions played a greater role in maintaining order than is generally acknowledged. The legal system did encourage compliance with law, but not through the familiar deterrence mechanism of imposing sanctions for violating statutes. Lanni shows how formal institutions facilitated the operation of informal social control in a society that was too large and diverse to be characterized as a "face-to-face community" or "close-knit group."

Some reviews:

“Classical Athens was a marvel. With style and insight, Lanni scours the limited sources to identify the institutions that enabled the city to flourish.” -Robert Ellickson

“The Classical Athenian democracy, despite its relatively weak mechanisms of formal coercion, normally exhibited a remarkably high level of social order. This is a puzzling paradox that Harvard Law School professor Adriaan Lanni, building on her exemplary Law and Justice in the Courts of Classical Athens (Cambridge, 2006), decrypts and illuminates with her usual brilliance of insight and forensic skill in argument.” -Paul Cartledge

“This is a groundbreaking work. Lanni provides a fascinating analysis of the complex interplay of formal and informal norms and procedures, showing how such features as the expressive function of laws can help explain why, despite the unpredictable and inconsistent judicial enforcement of statutory norms, Athenians by and large adhered to both statutory and non-statutory norms.” -Michael Gagarin

“In this masterful, deeply textured, in-the-round account of ancient Athenian law and social practice, Adriaan Lanni explores a deep mystery about ancient democracy: how did the Athenian state, with its limited coercive capacity, achieve a peaceful and productive social order? Lanni elucidates how law’s expressive function dynamically interacted with formal Athenian legal institutions, and with litigants’ strategic deployment of extra-statutory norms. As a result, we understand better than ever before how the Athenians successfully deterred socially destructive behavior, how they survived civil war, and how bold courtroom arguments can change social behavior through creatively reinterpreting the relationship between law and norm. Lanni’s outstanding legal sociology reveals anew the startling similarities and discontinuities between ancient and modern approaches to democracy and rule of law.” -Josiah Ober

Further information is available here.

The Chapter from Hell

Recently I served on a search committee for an open rank position in African American history at my school. It was wonderful to read the scholarship in this field that is tangentially related to my work and learn about its exciting trends and new directions. As part of the search process, we asked candidates to situate their work within the field and comment on both its fit and contribution. In other words, we asked candidates to summarize their work in five minutes and tell us why it is important. I chose to ask candidates questions about writing challenges—methodological or otherwise. This proved an even harder question for candidates, but I used it as an opportunity to gauge their candor and thoughtfulness on the process of their scholarship.

We all know that some chapters are just hell to write. You don’t like them, or you don’t like the historical subjects whom the chapter revolves around, or you aren’t jazzed about the topic. Since we chart our own writing course, why do we make ourselves write about something or people whom we do not like? I’m not talking about the obligatory chapters like the lit review—that can actually be quite fun to write. I mean that chapter that you may have written hastily or kept on the back burner. It’s the one that’s the least workshopped and as a result has never benefitted from the curating of our more polished and favorite chapters. That chapter is something of an orphan.  

My chapter from hell was literally the last chapter that I wrote. This was not a Freudian moment; it just unfolded in trajectory pf the book's argument that it was the last chapter. I wrote about “defective” slave sales—redhibitory actions in which aggrieved buyers claim they were duped by unscrupulous sellers who hid slave “defects” in the transaction. For US readers, causes of redhibition appear principally in the Louisiana records. However they are common in all slave markets. In effect, redhibition as a cause of action based on implied warranties was worked out almost exclusively around slave purchases and rescission—similarly to the way that rules of possession were developed around foxes and whales.

CFP: Legal History and Diplomacy

Via New Diplomatic History, we have the following Call for Papers:

CALL FOR PAPERS Training, Ideas and Practices. The Law of Nations in the Long Eighteenth Century (Paris, 18-19 May 2017); DEADLINE 20 FEBRUARY 2017

The purpose of this conference is to explore the roots of international law and the various concepts related to the “law of nations” by looking at the legal language of diplomats and foreign offices in Europe during the long eighteenth century. The conference also aims to render the variety and complexity of specific mechanisms through which the law of nations was applied for diplomatic use, to explore social and cultural aspects, and to investigate the practical questions that diplomats frequently faced (N. Drocourt & E. Schnakenbourg (eds.), Thémis en diplomatie, PURennes, 2016).

The relationship between diplomacy and the law of nations is at best ambiguous. On the one hand, the law of nations seems to be a hybrid product of philosophical concepts and a digest of diplomatic practice. Lawyers have difficulty resisting the temptation to write a purely academic or genealogical history of the law of nations. The frequent invocation of authors such as Vattel as an authority seems to support this (P. Haggenmacher & V. Chetail (eds.), Vattel’s International Law from a XXIst Century Perspective, Brill, 2011). On the other hand, interaction in negotiations involves a lot more than invoked legal principles. A thorough analysis of diplomatic practice often reveals implicit rules within diplomacy as a social field (P. Bourdieu, Sur l’Etat, Seuil, 2012). Legal arguments are a part of this microcosm, but geopolitical determinants and state interests can bend and bow the use of legal language.

One of the main issues of this conference will be whether law of nations theories influenced diplomatic practice and at the same time whether diplomatic practice altered traditional law of nations concepts. Through fruitful dialogue between young legal historians, historians of political thought and historians of politics from France, Germany and other parts of Europe, we would like to explore and investigate three different scenarios in which law of nations theories emerged both in the practice and the doctrine of diplomacy:

1) Training of diplomats
Was the law of nations the basis of diplomatic education? Did diplomats also receive specific, in-house, foreign affairs training? Was it only theoretical or also based on practice and experience? Was there already a form of professionalisation of diplomats, especially in view of later developments in the 19th century (L. Nuzzo & M. Vec (dir.), Constructing International Law – The Birth of a Discipline, V. Klostermann, 2012)? Finally, to what extent can we envisage a common European diplomatic culture?

2) Circulation of ideas and diplomatic networks
What was the legal and intellectual background of the various traités du droit des gens? To what extent were legal expertise (G. Braun, La connaissance du Saint-Empire en France du baroque aux Lumières (1643-1756), De Gruyter, 2010) or legal rhetorics pragmatic tools used in everyday politics? For whom did thinkers such as Abbé de Saint-Pierre (1658-1743) write their treatises? The sovereign? Legal advisers? Public opinion? If the law of nations formed a kind of a common European diplomatic culture, how did it spread throughout Europe? Can we identify the same use in various diplomatic flows of the time? How were diplomatic networks organised? Can we find examples of specific territories – such as the principalities of Walachia and Moldova, between the Ottoman Empire and the “European” powers – functioning as kinds of “diplomatic hubs”?

3) Transformation
Is the diplomatic habitus of the Vienna Congress a turning point? Where did the transition from the 18th to the 19th century take place, both in theory and in practice? How important was the impact of Enlightenment and French Revolutionary thought (M. Bélissa, Fraternité universelle et intérêt national, 1713-1795, Kimé, 1998)? How far can we find echoes in diplomatic culture and correspondence?

We kindly invite young scholars (up to 6 years after PhD) to present their new research within French-German and European perspectives. All applications must be sent by 20 February 2017 with a short CV (5 to 10 lines) and a proposal of 400 words to diplomacyconference2017@gmail.com. Results will be communicated by 15 March 2017. This conference has received the generous support of the CIERA (Centre interdisciplinaire d’études et de recherches sur l’Allemagne, www.ciera.fr) as a colloque junior and will take place on the 18th (afternoon) and 19th (morning) of May 2017.

Papers can be presented in English, French or German. A peer-reviewed publication of the proceedings is envisaged.

Organising Committee
Raphael Cahen (Orléans/VUB-FWO)
Frederik Dhondt (VUB/Antwerp/Ghent-FWO)
Elisabetta Fiocchi Malaspina

Scientific Committee
Jacques Bouineau (La Rochelle)
Paul De Hert (VUB)
Dirk Heirbaut (Ghent)
Christine Lebeau (Paris I)
Gabriella Silvestrini (Piemonte Orientale)
Matthias Schmoeckel (Bonn)
Antonio Trampus (Venezia)
Miloš Vec (Vienna)

Commentaries on The King's Two Bodies

Law, Culture and the Humanities 13:1 has published a commentary section on Ernst Kantorowicz's classic work, The King's Two Bodies. 

Here are the abstracts:

Stephanie Elsky, "Ernst Kantorowicz, Shakespeare, and the Humanities' Two Bodies"

This commentary reflects on two very different revivals of Ernst Kantorowicz’s The King’s Two Bodies: A Study in Medieval Political Theology in the field of early modern studies, the first during the heyday of New Historicism and the second in the current post-New Historicist moment that is still defining itself. The first revival focused on the literal meaning of king’s two bodies, the second on its figurative and fictional nature. The first trained its lens on the doctrine’s absolutist potential, the second on its constitutionalist strain. To account for these political and literary shifts I turn to a larger trend in literary and humanistic studies, the desire to move away from ideology critique and to reframe the humanities in terms of its capacity to articulate “a new vision for human community,” to borrow Victoria Kahn’s phrase. I argue that the peculiarly ironic status of the king’s two bodies offers a way to intervene in this debate, which I term “the humanities’ two bodies.” The commentary concludes by offering Laertes’ popular rebellion in Hamlet as a brief test case of the limits and promise of this most recent turn in the career of Kantorowicz’s protean text.

Karl Shoemaker, "The King's Two Bodies as Lamentation"

The King’s Two Bodies is, as has long been recognized, a genealogy of modern state power. But it is also something else less clearly recognized. The King’s Two Bodies is a lamentation. In Kantorowicz’s poignant eulogy, the sovereign that medieval lawyers had made in the imago dei, was revealed at last to be an idol. Profound reverence for the rule of law crumbled into absent-minded legality. The lawful sovereign became diabolical power, forever deciding exceptions but incapable of justice or grace. In The King’s Two Bodies, Kantorowicz mournfully shows how the death and tragic afterlife of a particular medieval concept of sovereignty helped to make possible the horrors of modern political absolutism and state idolatry.

Paul Raffield, "Time, Equity, and the Artifice of English Law: Reflections on The King's Two Bodies"


The aim of this article is to analyze the contribution of the early modern English legal institution to the formulation of the theory of the king’s two bodies. I explore three principal themes in the course of this article, all of which relate directly to central tenets of the thesis proposed by Kantorowicz in The King’s Two Bodies. First, is the centrality of time and continuity to theories of kingship and to the ideology of common law. Secondly, I consider the importance of equity to the formulation of decision-making in English law, and in pursuit of this end, the manipulation by the judiciary of political theology concerning the king’s two bodies. Lastly, I analyze the persuasive power of the trope, and especially the capacity of metaphor and metonym to embody such invisible and intangible juristic concepts as justice, equity, and law itself. Whilst recognizing the magisterial quality of Kantorowicz’s magnum opus, I take issue with some of the more extravagant of the author’s claims for the pervasive power of mystical kingship and its influence over English jurists and the English legal profession.

Sarah Burgess, "The Sovereign Claims from Within: The Rhetorical Displacement of Sovereign Bodies in Adoptive Couple v. Baby Girl"

This article considers the impact of Ernst Kantorowicz’s The King’s Two Bodies for understanding how claims of sovereignty are authorized and legitimated in a secular age devoid of the divine grace that underwrites the sovereignty of the king in medieval times. Through a reading of Adoptive Couple v. Baby Girl, 133 S.Ct. 2552 (2013), a case concerning the custody of a child of Cherokee descent, it demonstrates that sovereign bodies are constituted, (dis)placed, and recognized through an appeal to biopolitical logics. This insight is important as it invites a form of rhetorical critique that might account for the conditions in which sovereign claims fashion the terms of political community.

Ely on Eminent Domain, Confiscation and Redistribution

James W. Ely Jr. Vanderbilt University Law School, has posted Are Eminent Domain and Confiscation Vehicles for Wealth Redistribution? A Skeptical View, which is forthcoming in volume 6 of the Brigham-Kanner Property Rights Conference Journal:

This article gives historical perspective to contemporary calls for a redistribution of economic resources in the United States. It notes that before 1900 constitutional doctrine was heavily concerned with curtailing state efforts to redistribute wealth. This view was gradually abandoned in the early twentieth century, and the New Deal Supreme Court largely punted the question of wealth redistribution to the political branches of government. Noting that there are redistributive aspects to current public policy, this article focuses on whether the exercise of eminent domain or occasional resort to outright confiscation of property have in fact operated to redistribute wealth in American history. It concludes that eminent domain has often been employed to serve the interests of individuals and institutions with political clout rather than the poor. Confiscation of property without compensation has occasionally been employed in or past, but without notable redistributive consequences. The most striking example of confiscation concerned Loyalist-owned property during the Revolutionary Era. Most of the confiscated property was purchased by existing landowners, and consequently the confiscation policy produced little change in wealth patterns. The Union was markedly reluctant to press confiscation of property owned by Confederates during the Civil War and Reconstruction, and seemingly rejected confiscation as an appropriate policy. State prohibition of alcoholic beverages in the nineteenth century entailed the destruction of previously lawful property, but had no redistributive impact. The article concludes by arguing that neither eminent domain nor confiscation have proven effective vehicles for wealth redistribution to the poor over the course of American history.

Barbas's "Newsworthy"

Just out from the Stanford University Press is Newsworthy: The Supreme Court Battle over Privacy and Press Freedom, by Samantha Barbas, Professor of Law at University at Buffalo Law School.

In 1952, the Hill family was held hostage by escaped convicts in their suburban Pennsylvania home. The family of seven was trapped for nineteen hours by three fugitives who treated them politely, took their clothes and car, and left them unharmed. The Hills quickly became the subject of international media coverage. Public interest eventually died out, and the Hills went back to their ordinary, obscure lives. Until, a few years later, the Hills were once again unwillingly thrust into the spotlight by the media—with a best-selling novel loosely based on their ordeal, a play, a big-budget Hollywood adaptation starring Humphrey Bogart, and an article in Life magazine. Newsworthy is the story of their story, the media firestorm that ensued, and their legal fight to end unwanted, embarrassing, distorted public exposure that ended in personal tragedy. This story led to an important 1967 Supreme Court decision—Time, Inc. v. Hill—that still influences our approach to privacy and freedom of the press.

Newsworthy draws on personal interviews, unexplored legal records, and archival material, including the papers and correspondence of Richard Nixon (who, prior to his presidency, was a Wall Street lawyer and argued the Hill family's case before the Supreme Court), Leonard Garment, Joseph Hayes, Earl Warren, Hugo Black, William Douglas, and Abe Fortas. Samantha Barbas explores the legal, cultural, and political wars waged around this seminal privacy and First Amendment case. This is a story of how American law and culture struggled to define and reconcile the right of privacy and the rights of the press at a critical point in history—when the news media were at the peak of their authority and when cultural and political exigencies pushed free expression rights to the forefront of social debate. Newsworthy weaves together a fascinating account of the rise of big media in America and the public's complex, ongoing love-hate affair with the press.

Some endorsements:

"This fascinating book journeys back to a transformative moment in Supreme Court history, when it declared that the Constitution protected the press's invasion of privacy of newsworthy subjects. Newsworthy inspires us to imagine what American society might look like today had the decision gone the other way."

—Laura Kalman, University of California, Santa Barbara

"With a compelling narrative of the important and fascinating Supreme Court case of Time, Inc. v. Hill, Newsworthy is a valuable addition to the volatile debate over the tension between freedom of the press and the right to privacy in the U.S."

—Stephen Wermiel, co-author of Justice Brennan: Liberal Champion

Frankfurter Speaks! So Does (Paul) Freund!!

Et Seq., the blog of the Harvard Law School Library, reports that HLS’s Historical & Special Collections department is in the process of digitizing some of its “thousands of audiovisual artifacts.”  Available now is “A Lawyer’s Place in Our Society," wherein Justice Felix Frankfurter (1882-1965) is interviewed by Prof. Paul A. Freund (1908-1992), recorded on 16mm film in the early 1960s and transferred later to u-matic tape, the copy from which the digital transfer was made.”

Justice Felix Frankfurter (LC)

The two were close friends, and it’s evidenced by their comfortable and well-articulated conversation. Justice Frankfurter’s thoughts often circle back to some common themes. He believes very much that the lawyer should also be a civic leader, attributing this requirement to the changing nature of the law: as law and government historically expands into affecting everyday lives, the lawyer increasingly needs to be an active citizen. Both Freund and Frankfurter share the opinion that great lawyers shall be exceptionally well-read (because “even with the greatest breadth of personal experience, it’s infinitesimal compared with the accumulated experience of mankind, and the accumulated experience of mankind is predominantly contained in the covers of books,” [25:00]) and involved in many activities outside of the field of law.

In addition to unsurprising homages to Louis D. Brandeis (1856-1941) and Oliver Wendell Holmes (1841-1935), Frankfurter goes on at length about the influence that his early mentor, Henry L. Stimson, had on him. Through his work with the then-U.S. Attorney for the Southern District of New York, he learned, “first and foremost, a sense of the deep responsibilities of all those who are concerned with the administration of the criminal law – the awfulness of the instruments by which men may lose their liberties and sometimes lose their lives as the result of a process of law” (28:00). Stimson would have preferred for search warrants to only be issued by a judicial officer, but absent that reality, he had his assistants accompany officers enforcing large search and seizure operations to ensure that they adhered strictly to the warrant and seized only the property that was explicitly described.

Garfinkel's "Criminal Law in Liberal and Fascist Italy"

Paul Garfinkel, Simon Fraser University, British Columbia, has published Criminal Law in Liberal and Fascist Italy in the series Studies in Legal History at the Cambridge University Press:

By extending the chronological parameters of existing scholarship, and by focusing on legal experts' overriding and enduring concern with 'dangerous' forms of common crime, this study offers a major reinterpretation of criminal-law reform and legal culture in Italy from the Liberal (1861–1922) to the Fascist era (1922–43). Garfinkel argues that scholars have long overstated the influence of positivist criminology on Italian legal culture and that the kingdom's penal-reform movement was driven not by the radical criminological theories of Cesare Lombroso, but instead by a growing body of statistics and legal researches that related rising rates of crime to the instability of the Italian state. Drawing on a vast array of archival, legal and official sources, the author explains the sustained and wide-ranging interest in penal-law reform that defined this era in Italian legal history while analyzing the philosophical underpinnings of that reform and its relationship to contemporary penal-reform movements abroad.

Here are some endorsements:

"Professor Garfinkel's book is one of those rare works of original scholarship that succeeds in covering both the Liberal and Fascist eras in Italian history at the national level. By concentrating on common crime rather than political crimes, he has developed an extremely original thesis that challenges the established interpretations of jurisprudence in the nineteenth and twentieth centuries." Anthony Cardoza, Loyola University, Chicago 

"Paul Garfinkel's vivid account of the development of Italian criminal justice from the perspective of prominent criminal law practitioners relies on a stunning array of sources to craft a convincing argument. An insightful contribution to the study of European law and society, the book offers an important counterpoint to prevailing historiography." Maura Hametz, Old Dominion University, Virginia 

"Eloquently written, and with a welcome focus on the treatment of ordinary rather than political crime, Garfinkel's ground-breaking book persuasively challenges scholarly understandings of the ideas and debates inspiring penal reform in Liberal Italy and the first decade of Mussolini's fascist regime." Jonathan Dunnage, Swansea University 

"This elegantly written and widely researched study of criminal law in liberal and fascist Italy challenges the widely accepted view that Italy's 1930 criminal law code was fascist, positivist and anti-liberal in inspiration. Engaging with the wider debates on the relationship between liberalism and fascism, Paul Garfinkel's conclusions will attract the attention of scholars in many different fields." John Davis, University of Connecticut

Weekend Roundup

• Call for Applications: the 2017 Summer Institute on Conducting Archival Research at the Woodrow Wilson Center’s History and Public Policy Program.  "The Summer Institute on Conducting Archival Research (SICAR) is a multi-day seminar in which Ph.D. students receive training in conducting archival research from world-class faculty, researchers, archivists, and publishers. Although archival research is an integral part of many academic disciplines, it is virtually never taught at the graduate level. SICAR fills this critical gap in graduate education."

• Hat tip to @LHR_editor for retweeting this Guide to 19th Century Legal Documents, prepared by the Civil War Governors of Kentucky Project of the Kentucky Historical Society to explain  the parts of typical documents, their function, and where they tend to appear “within the CWGK corpus.”

• Brad Snyder, University of Wisconsin Law School, will be speaking at the launch of his book, The House of Truth: A Washington Political Salon and the Foundations of American Liberalism, on Saturday, February 4 at 3:30 pm at Politics and Prose in Washington, DC.

• Martha Nussbaum, University of Chicago, is to deliver the 2017 Jefferson Lecture in the Humanities on “Powerlessness and the Politics of Blame."

• Have you renewed your ASLH membership?

• “The Franklin D. Roosevelt Presidential Library and Museum and the Mid-Hudson Antislavery History Project -- in commemoration of African American History Month -- will present "An American Paradox: Enslavement on the Hudson" with Associate Director of Content Development at Historic Hudson Valley Michael A. Lord on Thursday, February 2, 2017. The program will begin at 7:00 p.m. in the Henry A. Wallace Visitor and Education Center. This event is free and open to the public.”   More.

• Over at the World Legal History Blog, Laurie Wood, Florida State University, shares an overview of her new Journal of Social History article, "Recovering the Debris of Fortunes between France and its Colonies in the 18th Century." Laurie is a 2013 Hurst Summer Institute alumna.

• ICYMI: Daniel T. Rodgers, Princeton University (emeritus), When Truth Becomes a Commodity, in the Chronicle of Higher Education; Matthew Wills on Impeaching History in JSTOR Daily, summarizing Jonathan Turley’s “Senate Trials and Factional Disputes: Impeachment as a Madisonian Device” (1999); per the Austin American-Statesman, a constitutional lawyer is to lecture on the founding at the Smithville (TX) Church of Christ.

• The Stanford Program in Law and Society is hosting its Fourth Conference for Junior Researchers. The theme is law, innovation and disruption. Deadline: Jan.30, 2017. Further details here and here.

• Update: A fun fact from Mark Tushnet: "For more than 125 years, the Senate has not confirmed a Supreme Court nominee chosen by a president who lost the popular vote."  More.

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