Sunday, April 23, 2017

Sunday Book Review Roundup

Happy Earth Day, all!  I've always thought that the perfect antidote to a Saturday spent in the great outdoors is a Sunday inside with some legal history.  Enjoy these book reviews and have a great weekend.

The Guardian has a short review of Catherine Merridale’s Lenin on the Train, the story of Lenin’s 1917 trip from Swiss exile to Petrograd's Finland Station, “a journey that changed the world.” (The Guardian’s longer review is here).




The Nation’s Brenda Wineapple covers Man's Better Angels: Romantic Reformers and the Coming of the Civil War, by Philip F. Gura. According to Wineapple, Gura reviews seven reformers who “were representative of a broader self-help culture of reform that spread across the United States in the years before the Civil War,” who “each scrambled after various panaceas—some of them pretty weird—to revive the country from its economic stagnation.” These reformers looked to transcendentalism, Unitarianism, and utopian farming communities. All of them “avoided any scrupulous confrontation with systemic economic or social problems,” and focused instead on “self culture.”


Paul Starobin’s Madness Rules the Hour is not about current American politics, but about “Charleston, 1860 and the Mania for War.” According to the Times, the book is a “finely drawn portrait” of the city’s elite in the years before secession, extending from John Brown’s raid on Harpers Ferry in October 1859 to the fateful Secession Convention in late December 1860 that took South Carolina out of the Union. The same publication covers A Rabble of Dead Money, The Great Crash and the Global Depression: 1929-1939, Charles R. Morris’s “popular but rigorous” economic history of the Great Depression. Kahlil Gibran Muhammad also reviews two books about race and the criminal justice system: James Forman Jr.’s Locking Up our Own: Crime and Punishment in Black America, “a masterly account of how a generation of black elected officials wrestled with recurring crises of violence and drug use in the nation’s capital,” and Chris Hayes’s A Colony in a Nation, which grows from Hayes’s coverage of the Black Lives Matter movement and protests in Ferguson.

In the NYRB, Christopher R. Browning reviews Volker Ullrich’s Hitler: Ascent 1889–1939, which addresses Hitler’s young adulthood and his relationship with the conservative elites who, hoping for a level of control over populist power, helped him to power in the 1930s. Browning also embarks on an expected--but fairly nuanced--comparison of Hitler and Trump: “Both men defied old norms and invented unprecedented ways of waging their political campaigns. Both men developed a charismatic relationship with their “base” that centered on large rallies. Both emphasized their “outsider” status and railed against the establishment, privileged elites, and corrupt special interests.”  In the same publication, Jeremy Waldron reviews Akhil Reed Amar’s The Constitution Today: Timeless Lessons for the Issues of Our Era, which argues that the “Constitution has to be both timeless and timely.”

In the Times Literary Supplement, one can read about Philip Roessler and Harry Verhoeven’s Why Comrades go to War: Liberation politics and the outbreak of Africa’s deadliest conflict, which covers Congo’s history of “mass violence, protracted wars, chronic misrule and endless plunder.”

Robert K. Landers reviewsRichard Nixon: The Life” by John A. Farrell, which begins with a take on judicial supremacy: “Obeying the courts, Nixon desegregated public schools. He got little credit for it—and didn’t want any. He wanted Southerners’ votes.” One can also read about Nina Sankovitch’s The Lowells of Massachusetts, a “stirring saga of a New England family whose fortunes steadily progressed with that of the Bay Colony from its early settlement to modern times.”

You can find some legal history titles in the Federal Lawyer, where Elizabeth Kelley reviews Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy, by Heather Ann Thompson.


On New Books Network, listen to coverage of Susanna Blumenthal’s Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture, which offers a “historical examination of the jurisprudence of insanity, legal capacity, and accountability from post-revolutionary America through the nineteenth century.” You can also listen to interviews with Mark P. Bradley, whose The World Reimagined: Americans and Human Rights in the Twentieth Century describes “‘human rights talk’ entered American political and diplomatic culture, and the direction it’s headed,” and James Q. Whitman’s Hitler’s American Model: The United States and the Making of Nazi Race Law, which probes the relationship between Jim Crow laws and the Nuremberg Laws. Want more? The Network plays some golden oldies as well: listen to an interview with Lizbeth Cohen about Making A New Deal: Industrial Workers in Chicago, 1919-1939 was originally published in 1990.

Saturday, April 22, 2017

Weekend Roundup

  • "Who among us," asks Richard Murphy, Texas Tech University School of Law, over at Notice & Comment Blog, "does not occasionally enjoy a forgotten nineteenth-century Supreme Court decision adopting a super-powerful form of deference that leaves our dear friend Chevron in the dust?"  The case in question is Peabody v. Stark, 83 U.S. 240 (1872).
  • The editors of State Crime invite papers for a special issue on State Crime and Colonialism The “special issue seeks to explore the relationships between state crime and colonialism. This includes the historical experiences of European colonialism and empire; settler colonialism and its ongoing impacts on Indigenous peoples; and the continuities of colonial violence."  H/t: Legal Scholarship Blog
  • Stephen D. Solomon spoke yesterday at the Lewes (DL) Public Library on his book Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (St. Martin's Press, 2016).
  • ICYMI: A newly discovered parchment of the Declaration of Independence: did James Wilson had it inscribed?  Also, from the Washington Post: "Grappling with its history of slavery, Georgetown gathers descendants for a day of repentance."
  • Wanted: Citizen Historians to transcribe legal historical manuscripts at the UVA Law Library.
  • Daniel Platt, Brown University, for receiving the OAH’s Louis Pelzer Memorial Award, given  for the best essay in American history by a graduate student, for “Usury Reform and the Natures of Capital in the Progressive Era."  H/t: SB.

Friday, April 21, 2017

Kennington on St. Louis Freedom Suits

Just out with the University of Georgia Press is In the Shadow of Dred Scott: St. Louis Freedom Suits and the Legal Culture of Slavery in Antebellum America by Kelly M. Kennington, Auburn University. The book is part of the Early American Places book series. From the publisher:

The Dred Scott suit for freedom, argues Kelly M. Kennington, was merely 
the most famous example of a phenomenon that was more widespread in antebellum American jurisprudence than is generally recognized. The author draws on the case files of more than three hundred enslaved individuals who, like Dred Scott and his family, sued for freedom in the local legal arena of St. Louis. Her findings open new perspectives on the legal culture of slavery and the negotiated processes involved in freedom suits. As a gateway to the American West, a major port on both the Mississippi and Missouri Rivers, and a focal point in the rancorous national debate over slavery’s expansion, St. Louis was an ideal place for enslaved individuals to challenge the legal systems and, by extension, the social systems that held them in forced servitude.
 Kennington offers an in-depth look at how daily interactions, webs of relationships, and arguments presented in court shaped and reshaped legal debates and public attitudes over slavery and freedom in St. Louis. Kennington also surveys more than eight hundred state supreme court freedom suits from around the United States to situate the St. Louis example in a broader context. Although white enslavers dominated the antebellum legal system in St. Louis and throughout the slaveholding states, that fact did not mean that the system ignored the concerns of the subordinated groups who made up the bulk of the American population. By looking at a particular example of one group’s encounters with the law—and placing these suits into conversation with similar encounters that arose in appellate cases nationwide—Kennington sheds light on the ways in which the law responded to the demands of a variety of actors.

Further information is available here.

New Exhibit at the HLS Library: Kids in the Collection: Prison, Work, and Play

HLS Professor Paul Freund, Costumed as a Baker (credit)
[We have the following announcement.]  The Harvard Law School Library’s Historical & Special Collections is pleased to announce a new exhibit: "Kids in the Collection: Prison, Work, and Play."

Most of our material is rooted in the world of adults, but children do appear in ways both light-hearted and grim. Traces of childhood experiences appear in HLS faculty papers, school report cards, and letters sent home from camp; broadsides reveal violent crimes against children; reports detail the inner workings of a Massachusetts reform school; and images show toddlers raised in prison by their incarcerated mothers in nineteenth- century England. Also showcased is some of the work undertaken by HLS students and faculty on behalf of children and families in Massachusetts and across the United States. The exhibit draws on a variety of media: manuscript collections, printed works, photographs, and children’s art work, spanning the late-eighteenth through twentieth centuries.

"Kids in the Collection" was curated by Jane Kelly and Mary Person of Historical & Special Collections. It will be on view daily 9 to 5 in the Caspersen Room, Langdell Hall, from April through July 2017. See highlights [here.]

Thursday, April 20, 2017

Steiker and Steiker on the History of the Supreme Court and the Death Penalty

Here's a book from late last year that we failed to notice until now: Courting Death: The Supreme Court and Capital Punishment (Harvard University Press), by Carol S. Steiker (Harvard Law School) and Jordan M. Steiker (University of Texas School of Law). A description from the Press:
Unique among Western democracies in refusing to eradicate the death penalty, the United States has attempted instead to reform and rationalize state death penalty practices through federal constitutional law. Courting Death traces the unusual and distinctive history of top-down judicial regulation of capital punishment under the Constitution and its unanticipated consequences for our time.

In the 1960s and 1970s, in the face of widespread abolition of the death penalty around the world, provisions for capital punishment that had long fallen under the purview of the states were challenged in federal courts. The U.S. Supreme Court intervened in two landmark decisions, first by constitutionally invalidating the death penalty in Furman v. Georgia (1972) on the grounds that it was capricious and discriminatory, followed four years later by restoring it in Gregg v. Georgia (1976). Since then, by neither retaining capital punishment in unfettered form nor abolishing it outright, the Supreme Court has created a complex regulatory apparatus that has brought executions in many states to a halt, while also failing to address the problems that led the Court to intervene in the first place.
While execution chambers remain active in several states, constitutional regulation has contributed to the death penalty’s new fragility. In the next decade or two, Carol Steiker and Jordan Steiker argue, the fate of the American death penalty is likely to be sealed by this failed judicial experiment. Courting Death illuminates both the promise and pitfalls of constitutional regulation of contentious social issues.
One of many blurbs:
Courting Death is a brilliant and insightful book with a powerful thesis, namely that the death penalty in the United States has been unwittingly regulated to death. It is the most forceful and significant intervention I have read on the question of capital punishment to date, a remarkable contribution to our legal, historical, and political debates.—Bernard E. Harcourt
More information, including the TOC, is available here.

Wednesday, April 19, 2017

Rossi on Insurance Law in Elizabethan England

Guido Rossi, University of Edinburgh, has published Insurance in Elizabeth England: The London Code with Cambridge University Press in its “Cambridge Studies in English Legal History” series. From the press:

Insurance in Elizabethan EnglandEnglish insurance came into being almost entirely during the Elizabethan period. However, the Great Fire of 1666 consumed most of London's mercantile document, and therefore little is known about early English insurance. Using new archival material, this study provides the first in-depth analysis of early English insurance. It focuses on a crucial yet little-known text, the London Insurance Code of the early 1580s, and shows how London insurance customs were first imported from Italy, then influenced by the Dutch, and finally shaped in a systematic fashion in that Insurance Code. The London Insurance Code was in turn heavily influenced by coeval continental codes. This deep influence attests the strong links between English and European insurance, and questions the common/civil law divide on the history of commercial law.

Here is the Table of Contents:

1. Introduction

Part I. Legal-Historical Background:

2. Some remarks on the origins of English insurance
3. Insurance in late sixteenth-century England

Part II. The London Code:

4. Preamble: sea-carriage and averages
5. The making of the London Code
6. Object of Insurance
7. Premium
8. The parties
9. Risks
10. Ship and voyage
11. Recovery
12. Abandonment to the insurers
13. Reinsurance
14. Life insurance

Concluding remarks.

Full information is available here.

Roy and Swamy, "Law and the Economy in Colonial India"

We missed this one when it came out last fall: Law and the Economy in Colonial India (University of Chicago Press, 2016), by Tirthankar Roy (London School of Economics) and Anand V. Swamy (Williams College). A description from the Press:
Since the economic reforms of the 1990s, India’s economy has grown rapidly. To sustain growth and foreign investment over the long run requires a well-developed legal infrastructure for conducting business, including cheap and reliable contract enforcement and secure property rights. But it’s widely acknowledged that India’s legal infrastructure is in urgent need of reform, plagued by problems, including slow enforcement of contracts and land laws that differ from state to state. How has this situation arisen, and what can boost business confidence and encourage long-run economic growth?
       
Tirthankar Roy and Anand V. Swamy trace the beginnings of the current Indian legal system to the years of British colonial rule. They show how India inherited an elaborate legal system from the British colonial administration, which incorporated elements from both British Common Law and indigenous institutions. In the case of property law, especially as it applied to agricultural land, indigenous laws and local political expediency were more influential in law-making than concepts borrowed from European legal theory. Conversely, with commercial law, there was considerable borrowing from Europe. In all cases, the British struggled with limited capacity to enforce their laws and an insufficient knowledge of the enormous diversity and differentiation within Indian society. A disorderly body of laws, not conducive to production and trade, evolved over time. Roy and Swamy’s careful analysis not only sheds new light on the development of legal institutions in India, but also offers insights for India and other emerging countries through a look at what fosters the types of institutions that are key to economic growth.
A few blurbs:
“Although colonial institutions have been blamed for wealth and poverty around the world, no one has analyzed how they developed over the entire history of colony—no one, that is, until Roy and Swamy. Their novel research in Law and the Economy in Colonial India lays bare the political and administrative problems that shaped the evolution of Indian legal institutions, with major economic consequences that persist to this day.” -- Philip T. Hoffman
“Indian civil courts are notorious for a backlog of cases and a slow process of dispute resolution—arguably a major retardant to India’s economic growth. Yet, at the same time, Indian courts draw upon British legal origins, particularly the common law, which has been credited for being relatively responsive and flexible to contractual needs in cross-country comparison. By incorporating cutting-edge concepts and debates in the economic literature on law and development with a rich historical discussion of the law in the Indian context, Roy and Swamy go a long way toward explaining this paradox. This is an interesting and well-written work on a very important topic.” -- Saumitra Jha
More information is available here.

Tuesday, April 18, 2017

Woodring on Shakespeare and Sanctuary Cities

Benjamin Woodring, who holds a PhD from Harvard and a JD from Yale and is currently clerking for a federal judge, has posted Liberty to Misread: Sanctuary and Possibility in The Comedy of Errors, which appears in the Yale Journal of Law & the Humanities 28 (2016): 319 et seq.:
Today’s hotly contested debates about “sanctuary cities” would feel very familiar to someone living in Shakespeare’s London. In this piece, which is part of a larger forthcoming book project titled Shakespeare’s Sanctuary Cities, I argue that Shakespeare is fascinated by the dramatic possibilities inherent in an asylum space situated on the fault line of a jurisdictional battle. A refuge site sits between life and death. At the same time, Elizabethan sanctuary was a contradictory swirl of concepts: something both holy and debauched, something at the same time archaic and unpredictably present. Shakespeare’s use of a sanctuary in The Comedy of Errors is not a simple endorsement of Christian mercy. It is rather a deeper reflection on genre and possibility: comedy is predicated on some escape valve from accumulating conflicts and obligations, while tragedy is ultimately insulated from such releases. Shakespeare creates an asylum episode in this play different from anything in Plautus or Gower, his main sources. The abbey, which jealously defends its sanctuary rights, is a space allowing for recognition and reintegration after long sequences of confusion and chaos. But it is also, I argue, a site for further potential misreadings. The sanctuary in Shakespeare’s play does not provide perfect resolutions. The sanctuary’s Abbess arguably bungles the play’s moral. But in the end, this imperfection is not only vastly preferable to tragedy’s irreversible misunderstandings, it is also a sign of Shakespeare’s nuanced unpacking of a generative social and spatial concept still lingering in the streets of London.

Thompson Wins Hurst Prize; Seo Wins Dissertation Prize

The Law and Society Association has announced its prizewinners for 2017 in advance of its annual meeting in Mexico City in June.  The recipient of the J. Willard Hurst Award, for the best book in Socio-Legal History published in 2016 is Heather Thompson, University of Michigan, for Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy  (Pantheon Books, 2016).  Here is the citation:
In Blood in the Water, Heather Thompson offers a searing account of the infamous 1971 Attica Prison uprising. In addition to reconstructing the protest and its violent aftermath, she traces the decades-long quest for justice by the victims of state violence. In doing so, she incorporates the voices and perspective of all the participants, rendering with equal power the voices and perspectives of prisoners, former hostages, families of the victims, lawyers, judges, state officials and law enforcement officers. The result is a rich account of law, policy, administration, legal consciousness, lawyering, legal process and truth, racial inequality, and communities that form around legal wrongs and lawsuits. Blood in the Water is a civil rights story that illuminates the epochal shift from rehabilitation to mass incarceration. It challenges readers to reckon with an abusive prison system and the persistent failures and lies of state officials.

An extraordinary feat of archival research distinguishes Blood in the Water. Thompson's brilliance lies in unearthing sources on the Attica prison riot that have never before been discovered, read, or analyzed. That research required not only more than a decade of effort, but persistence in the face of obstruction and restriction, and some lucky breaks. The payoff is new material on almost every facet of the uprising and its aftermath.

Blood in the Water stands out also as a powerful piece of writing. Thompson's prose is masterful and her storytelling is stunning. She succeeds in weaving together multiple voices, and restoring the humanity of the men, ordinary, poor and disfranchised, whose refusal to endure abuse and stay silent had seen them demonized. The epilogue is particularly powerful, serving to remind us that the lessons of Attica have yet to be fully learned. Her book will go a long way towards achieving this important goal.
Honorable mentions went to Risa Goluboff for Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s (Oxford University Press, 2016) and Michelle McKinley for Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700 (Cambridge University Press, 2016).

The Society's prize for the dissertation that best represents outstanding work in law and society research in 2016 went to Sarah Seo, Princeton University, for “The Fourth Amendment, Cars, and Freedom in Twentieth Century America.”  It was nominated by Hendrik Hartog, Princeton University.  Here is the citation:
Sarah Seo's dissertation is an imaginative and beautifully written study of how the advent of cars on American roadways presented new challenges for policing, while it altered conventional notions of freedom and ultimately resulted in a new legal doctrine around Fourth Amendment guarantees against unreasonable search and seizure. Through meticulous attention to a wide range of primary-source materials and extensive examination of court decisions, Seo shows that the new technology of the automobile changed expectations of mobility and freedom, while at the same time destabilizing notions of private space and regulatory authority. Seo skillfully traces the way that these new realities shaped the development of legal doctrine and catalyzed a shift towards proceduralism in Fourth Amendment jurisprudence. In showing the links between technology, police practices, and legal change, Seo challenges long-standing explanations of the Warren Court's due process revolution. The selection committee was impressed with the creativity of the study, the quality of the data that was marshaled, the intellectual depth of the argument, and the elegance of the prose. Seo's dissertation makes a significant contribution to the literature on the Fourth Amendment and U.S. legal change more broadly.

Monday, April 17, 2017

Brockman-Hawe on an international justice experiment in Boxer China

Independent scholar Ben Brockman-Hawe has posted “Accounting for ‘Crimes Against the Laws of Humanity’ in Boxer China: An Experiment with International Justice at Paoting.” The article appears in the University of Pennsylvania Journal of International Law 38:2, 627-713. Here’s an extended abstract:
The birth of international criminal law is typically traced to the post-war prosecutions of Nazi and Japanese war criminals by the Allied powers, when in fact the Great Powers frequently turned to internationalized criminal or quasi criminal forums, as well as the rhetoric of ‘humanity’ and ‘civilization,’ to project power, establish narratives, manage public opinion, express dissatisfaction, and defend humanitarian values in the century after the Napoleonic wars. That these stories have been relegated to a narrative hinterland belies the important role each played in establishing vocabulary for international criminal law and shaping expectations of accountability. The purpose of this paper is to restore one such significant but unexplored caesure; the trial of four Chinese officials before an ‘International Commission’ by the Great Powers in the wake of the inter-religious violence that characterized the Boxer Uprising.
Although the Commission has recently received some attention by a few dedicated historians, it has so far escaped close scrutiny within the international criminal law community. Accordingly, a number of questions about the trial have remained unanswered. What actually happened at Paoting-Fu? Was it fair? Why did this operation, unlike others, result in an international criminal trial? What meaning did the trial have for the belligerents and the communities they represented? What consequences did the trial have for the development of international criminal law?
Drawing on previously unexplored material from state archives, published and unpublished missionary correspondence and military memoirs, and contemporaneous press reports, this paper addresses these questions in four parts. Part 2 of this article first sets the scene by briefly describing the state of the armed conflict in October 1900, then recounts the story of the Commission’s day-to-day operation, culminating in the execution of three Chinese officials. Part 3 sets the trial in its legal, cultural and strategic context, positioning it as an event framed by, among other factors, the concomitant coherence of international criminal law and a shift in thinking about the role of collective punishment in war. Part 4 highlights how the relevant constituencies viewed the trials, and traces the influence of this seminal experiment with individual accountability for international crimes on later efforts to create an international jurisdiction to try the Kaiser in the wake of the First World War. Finally, Part 5 explores the judicial character and fairness of the Commission.

Moyn on FDR's (and Sunstein's) "Second Bill of Rights"

Samuel Moyn, Harvard University, has posted The Second Bill of Rights: A Reconsideration:
This paper revisits the so-called "Second Bill of Rights," proposed in passing in Franklin Delano Roosevelt's State of the Union address for 1944. Contrary to a well-known earlier appraisal of the speech that elevated it to far more significance than it had in its time, the paper argues that the "second bill" for economic and social entitlements matters primarily because it marked the death-knell of hopes for the reform of American market capitalism. It was not just that it came at the end of a war that hardly reached American soil, and thus confirmed the country's divergence from the European path to the welfare state, nor that the American war economy had ratified the unique role of business interests in circumventing the otherwise transatlantically victorious planning state. Rather, with its late timing the speech simultaneously memorialized and truncated the egalitarian and institutionalist approaches to market relations that had made the earlier phases of the New Deal genuinely significant. The paper ends its reconsideration of the speech by examining the politics of its neoliberal reclamation by Cass Sunstein, who shared neither the egalitarian nor the institutionalist aspirations of the New Deal, but could rally to a "second bill" because it anticipated a politics of minimalist judicial enforcement he was then separately championing.

Saturday, April 15, 2017

Weekend Round Up

  • “Many college students head for the beach or perhaps to a city with a lively night life for spring break. The students in Joe Kobylka’s honors seminar on the Supreme Court had a strikingly different kind of destination this year: the Library of Congress. The students traveled from Southern Methodist University in Dallas to spend the week of March 13 in the Manuscript Division examining the papers of Supreme Court justices.”  More on Library of Congress Blog.
  •  ICYMI: My Georgetown Law colleague Lawrence Solum's series of posts stating the case for originalism has concluded on his Legal Theory Blog.  Eugene Kontorovich, Borthwestern Law, explains why George Washington was the first president to stay in the real estate business.  Fake news and Elinor Roosevelt in wartime America, by Joshua Zeitz in Politico. (H/t Brendan Kearny)
  • New York Public Library Digitizes 137 Years of New York City Directories.  Here.
  • An unusual summer school course, "Memory and Law: Legal Perspective in Historical Assessments," is on offer for junior scholars from Poland, Germany, Russia, and Ukraine (19-27 Aug. 2017). The deadline for applications is May 5, 2017. Full information here.
  • Save the date: A one-day conference on "Islamic law and its implementation in Asia and the Middle East" will be held at the British Institute of International and Comparative Law in London on Oct.6, 2017. Watch this website for the program, which may include historical work. (H/t: Pluri-legal)
  • Don't forget that the deadline for the "Traffic in women" and International Law Call for Articles is today (April 15). See our earlier post here.
  Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, April 14, 2017

Ho on Law as Instrumentality

Jeremiah A. Ho, University of Massachusetts School of Law, has posted Law As Instrumentality, which is forthcoming in the Marquette Law Review:
Our conceptions of law affect how we objectify the law and ultimately how we study it. Despite a century’s worth of theoretical progress in American law—from legal realism to critical legal studies movements and postmodernism—the formalist conception of “law as science,” as promulgated by Christopher Langdell at Harvard Law School in the late-nineteenth century, still influences methodologies in American legal education. Subsequent movements of legal thought, however, have revealed that the law is neither scientific nor “objective” in the way the Langdellian formalists once envisioned. After all, the Langdellian scientific objectivity of law itself reflected the dominant class, gender, power, and race of its nineteenth-century progenitors. Thus, by sustaining the illusion of scientific objectivity, the continued application of Langdellian pedagogy distorts our understandings of law and abridges individual explorations of pluralism, subjectivity, justice, and empowerment. Such inaccurate but prevailing notions of neutrality in law leads to both disenchantment and hierarchy in practice, but, worse, it also distracts from meanings of law that would otherwise have led to empowerment and critique. In this way, legal scholars have clamored for a post-Langdellian legal conception to enable us to reach more relevant and emboldened meanings in law.

Prompted by such calls amidst the post-Recession crisis in the American legal academy, this Article offers such a new conception for theorizing meanings in law by locating law within its instrumentalities. “Law as instrumentality” obtains meaning by accepting law’s fragmentation and then observing, from fragmentation, the characteristics of its agency. The law is not a science; but it does embody human-made qualities of agency. This new instrumentality conception studies law’s deliberate aesthetics as a way to explore law ontologically and critique its goals, its devices, its intentions, its significances, and its teleologies. From this conception, a broader methodology can arise to bring about a more relevant and empowering understanding of law to those who render law to life.

Finkelman on Originalism and the Second Amendment

Paul Finkelman, University of Pittsburgh, School of Law, has posted The Living Constitution and the Second Amendment: Poor History, False Originalism, and a Very Confused Court, which appeared in the Cardozo Law Review 37 (2015): 623-662:
The article explores the use of history and originalism in Second Amendment jurisprudence. The article argues that in both District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010) the Court bases its conclusions on a false history that is, for the most part, a fantasy of the majority of the Court and opponents of reasonable firearms regulation. The Court majority relies on “scholars” who have often been funded by the National Rifle Association (NRA) or worked for the NRA, but hide these connections when offering their work to law reviews. While claiming to root its opinions in history, the Court is unconcerned that virtually all of the serious historical scholarship on the Founding undermines its analysis. The Court weaves a history of the Second Amendment that is based on books and articles that are accurately described as “[l]aw office history,” which is often sloppy and inaccurate in its facts, and sometimes mindless in its analysis. While the majority Justices profess to believe in a jurisprudence of original intent, the Court’s historical analysis could not get a passing grade in any serious college history course.

Pre-1870 Copyright Records at GW's Burns Law Library

[We have the following announcement.]  The Jacob Burns Law Library is pleased to announce a new online collection: "Pre-1870 Copyright Records." The collection provides access to over 2,000 pages of digitized U.S. copyright records created prior to 1870 that had generally been assumed lost. The records were tracked down and digitized by Zvi S. Rosen, currently a Professorial Lecturer in Law and Visiting Scholar at The George Washington University Law School. Rosen received his LLM in Intellectual Property in 2006 from the Law School and later served as the 2015-2016 Abraham L. Kaminstein Scholar in Residence at the U.S. Copyright Office.

According to Rosen, "until mid-1870, copyright registration duties were handled by the local U.S. District Court of the author or proprietor, while the work itself was deposited with the Department of State (until 1846), Library of Congress (1846-1859, 1865-1870), Smithsonian Institution (concurrently 1846-1859), and Patent Office (1859-1865, 1865-1870 concurrently). In 1870, all copyright responsibilities were centralized in the Library of Congress."

Rosen notes that "for New York, Philadelphia, and Boston, whose District Courts together handled 85% of copyright activity before 1870, the Library of Congress has a complete or essentially complete set of the records. However, for many jurisdictions with a comparatively small volume of copyright activity, records may only exist for the years immediately before 1870, if at all."  The fact that so many Federal Court records had apparently gone missing perplexed him, and he set about to discover what had happened.

Rosen says that his "ultimate hope is that the Rare Book Room of the Library of Congress will digitize their holdings of pre-1870 copyright records . . . and, when combined with this project, will represent an essentially complete record of copyright (and thus literary, musical, etc.) activity in America  in its earliest days."

The Pre-1870 Copyright Records collection is available here.

Thursday, April 13, 2017

Crow, "Thomas Jefferson, Legal History, and the Art of Recollection"

A fitting announcement on Thomas Jefferson's birthday: Cambridge University Press has released Thomas Jefferson, Legal History, and the Art of Recollection (March 2017), by Matthew Crow (Hobart and William Smith Colleges). Here's a description from the Press:
In this innovative book, historian Matthew Crow unpacks the legal and political thought of Thomas Jefferson as a tool for thinking about constitutional transformation, settler colonialism, and race and civic identity in the era of the American Revolution. Thomas Jefferson's practices of reading, writing, and collecting legal history grew out of broader histories of early modern empire and political thought. As a result of the peculiar ways in which he theorized and experienced the imperial crisis and revolutionary constitutionalism, Jefferson came to understand a republican constitution as requiring a textual, material culture of law shared by citizens with the cultivated capacity to participate in such a culture. At the center of the story in Thomas Jefferson, Legal History, and the Art of Recollection, Crow concludes, we find legal history as a mode of organizing and governing collective memory, and as a way of instituting a particular form of legal subjectivity.
A few blurbs:
'Matthew Crow's book is a dazzling achievement, deepening and expanding our understanding of Jefferson's conception of the meaning of his (and his nation's) past. Not only does it place his struggles with slavery and nationhood in his own time and place, but it provides the present with a cautionary guide to the self-reflection required of all citizens.' -- David Konig
'Matthew Crow’s new book is a beautiful exploration of the shifts in Thomas Jefferson’s thought. Crow gives not only a powerful account of Jefferson’s philosophical understanding of civic membership but also the psychology of his republicanism. This is a remarkable effort of intellectual reconstruction and an essential contribution to scholarship on the early American republic.' -- Aziz Rana
More information is available here.

Chin and Ormonde on Infamous Misdemeanors and the Grand Jury Clause

Gabriel "Jack" Chin and John Ormonde, respectively, a professor and student at the University of California, Davis School of Law, have posted Infamous Misdemeanors and the Grand Jury Clause, which is forthcoming in volume 102 of the Minnesota Law Review:
Under an overlooked body of constitutional law, many more federal offenses must be prosecuted by grand jury indictment than is now the practice. Current rules provide that felonies must be prosecuted by grand jury indictment, but misdemeanor charges may be based on a prosecutor’s information, or even a “ticket” issued by a law enforcement officer. However, serious consequences fall on people convicted of federal misdemeanors, including deportation, sex offender or other criminal registration, ineligibility for public benefits, and loss of civil rights. In the late 19th and early 20th century, the Supreme Court held in a series of cases, never overruled, that to charge an infamous misdemeanor required a grand jury indictment. The Court held that infamous offenses were ones potentially resulting in stigmatizing punishments degrading the offender’s status, indicating that the person is less than a full member of the community. These include corporal punishment, incarceration in a prison or penitentiary (as opposed to a jail), loss of civil rights or imposition of civil disabilities, and convictions implying moral turpitude. Many federal misdemeanors carry these consequences. And federal misdemeanors are much more likely to be dismissed without trial than felonies. More thoughtful evaluation of misdemeanor cases before charge would often terminate cases which wind up being dismissed after charge. As a result, thousands of Americans would avoid the stigma of a criminal record where it is unwarranted. This is what the framers of the Constitution intended.

Brockman-Hawe on Bismark's Proposed International Criminal Court

Ben Brockman-Hawe, an independent scholar, has posted Punishing Warmongers for Their 'Mad and Criminal Projects' - Bismarck's Proposal for an International Criminal Court to Assign Responsibility for the Franco-Prussian War, which appeared in volume 52 of the Tulsa Law Review:
The idea of punishing aggressive war is routinely presented as having been first conceived of in the wake of the First World War. This conventional narrative is incorrect; the intellectual seed for the project had begun to take root long before, in the reactions to the interstate conflicts of the nineteenth century. This article explores one of the most significant moments from aggression’s unappreciated ‘pre-history’; Chancellor Bismarck’s pursuit of a trial before an international criminal court of the Franco-Prussian War’s (1870-1) French ‘intellectual originators and instigators.’ Although the proposal ultimately failed to attract the political and public support necessary for its implementation, it prompted in its own time an unprecedented discussion on the viability of international criminal responsibility for aggression and international criminal courts. The proposal later took on new life as both a precedent and an anti-precedent as these ideas resurfaced periodically after 1870.

The goal of this paper is to restore Bismarck’s proposal to its rightful place in the story of the crime’s development. At stake is more than historic fidelity; contemporary expectations of what international criminal law can accomplish, what circumstances should or could accompany international criminal law’s invocation, and what the parameters of the crime of aggression should be are shaped by such histories. As the 2010 Kampala Amendments to the Rome Statute are now a single accession away from accumulating the requisite number of ratifications to come into effect, raising the prospect that the International Criminal Court will imminently be tasked with adjudicating the first aggression case in over seventy years, the need for reflection on these issues has taken on unusual salience.

CFP: ASLH Student Research Colloquium

The American Society for Legal History will host a Student Research Colloquium (SRC) on Wednesday, October 25, and Thursday, October 26, 2017, immediately preceding the ASLH's annual meeting in Las Vegas, Nevada.  The SRC enables a small number of Ph.D. students and law students to discuss their in-progress dissertations and law review articles with distinguished ASLH-affiliated scholars. 

The SRC's target audience includes early-post-coursework graduate students and historically minded law students.  The colloquium seeks to introduce such students to legal history, to each other, to the ASLH, and to the legal-historical scholarly community generally.  Students working in all chronological and geographical fields are encouraged to apply, as are students whose projects engage legal-historical themes but who have not yet received any formal training in legal history.  Applicants who have not had an opportunity to present their work at ASLH annual meetings or who have not otherwise had an opportunity to discuss their work with legal historians are particularly encouraged to apply.  A student may be on the program for the annual meeting and participate in the SRC in the same year.

Each participating student will pre-circulate a twenty-page, double-spaced, footnoted paper to the entire group.  The group will discuss these papers at the colloquium, under the guidance of two faculty directors.  The ASLH will provide at least partial and, in most cases, total reimbursement for travel, hotel, and conference-registration costs. 

The application deadline is July 15, 2017.  Applicants should submit (1) a cover letter; (2)  a CV; (3) a two-page, single-spaced "research statement," describing an in-progress project; and (4) a letter of recommendation from a faculty member, sent separately from, or together with, the other materials.

Organizers will notify all applicants of their decisions by August 15, 2017.  Please direct questions and applications to John Wertheimer at srcproposals@aslh.net.

Wednesday, April 12, 2017

Guggenheims for Colley and Lanni

Last week, the Board of Trustees of the John Simon Guggenheim Memorial Foundation awarded 173 Guggenheim Fellowships "to a diverse group of scholars, artists, and scientists."

Two legal historians received fellowships.  Linda Colley, the Shelby M.C. Davis 1958 Professor of History at Princeton University, will complete “a book on war and words: how rising levels of conflict after 1750 fostered the world-wide spread of new constitutions.  Adriaan Lanni, the Touroff-Glueck Professor of Law at the Harvard Law School, will complete “a book entitled Crime and Justice in Democratic Athens.”  It is foreshadowed by her recent talk, Why Study Athenian Law: Adventures in Institutional Design,  which “discusses what modern lawyers and democratic citizens can learn from ancient Athens.”

Moyn to Yale

More lateral hiring news: Samuel Moyn will join the faculty at Yale Law School this fall.

Moyn is currently the Jeremiah Smith, Jr. Professor of Law and a Professor of History at Harvard University. His research focuses on international law, human rights, and legal and political thought. He holds a J.D. from Harvard and a Ph.D. from the University of California, Berkeley.

Snyder to Georgetown

More lateral hiring news: we have word that Brad Snyder is leaving the University of Wisconsin Law School for Georgetown University Law Center.

Snyder is a historian of constitutional law, Supreme Court justices, and baseball, among other things. His most recent book is The House of Truth: A Washington Political Salon and the Foundations of American Liberalism (Oxford University Press). He is a graduate of Yale Law School.

Buckner Inniss to Southern Methodist University

More lateral hiring news: Lolita Buckner Inniss is reportedly leaving Cleveland-Marshall College of Law for Southern Methodist University.

Cribbing here from her Cleveland-Marshall faculty bio, Buckner Inniss's "research addresses geographic, historic and visual norms of law, especially in the context of comparative constitutionalism, gender and race." She is currently at work on a book titled The Princeton Fugitive Slave: James Collins Johnson, "an account of race, gender, slavery and the law at Princeton University." She received a J.D. from UCLA and an LL.M. and Ph.D. from Osgoode Hall, York University.

Blum to UC Hastings

The season for lateral hiring is upon us, and legal historians are among those on the move. We have learned that Binyamin Blum, currently appointed at the Law Faculty of Hebrew University and visiting at Stanford Law School, is headed to University of California, Hastings College of the Law. According to Blum's Stanford bio, he is currently at work on a book project that explores "the colonial origins of forensic science." He "also writes on current issues of evidence and proof, such as the suppression of confessions and the exclusion of unlawfully obtained evidence more generally, the spousal privilege, DNA and circumstantial evidence, rape shield statutes and character evidence." Blum received his B.A. and LL.B from Hebrew University and his doctorate in Law from Stanford.

Friedman et al. on Concurrences

Thomas B. Bennett, Kellogg, Huber [et al.]; Barry Friedman, New York University School of Law; Andrew D. Martin, University of Michigan; and Susan Navarro Smelcer, Emory University, have posted Divide & Concur: Separate Opinions & Legal Change, which is forthcoming in Cornell Law Review:
To the extent concurring opinions elicit commentary at all, it is largely contempt. They are condemned for muddying the clarity of the law, fracturing the court, and diminishing the authoritative voice of the majority. But what if this neglect, or even disdain, of concurring opinions, is off the mark? In this article, we argue for the importance of concurring opinions, demonstrating how they serve as the pulse and compass of legal change. Concurring opinions let us know what it is happening below the surface of the law, thereby encouraging litigants to push the law in particular directions. This is particularly true of a type of concurrence we identify here for the first time: the “pivotal” concurrence. Pivotal concurrences occur when one or more members of a court majority also choose to write separately, undercutting the majority’s rule in the case. Under the Supreme Court’s “rule of five,” lower courts ought to disregard pivotal concurrences and adhere to the majority opinion. But as we show here, that is hardly the case.

Tuesday, April 11, 2017

Armitage to Lecture on "Civil War Time"; Comment by Dudziak

The 111th annual meeting of the American Society of International Law commences tomorrow, Wednesday, April 12, 2017, with the nineteenth annual Grotius Lecture, “Civil War Time: From Grotius to the Global War on Terror,” to be delivered by David Armitage, Harvard University, with a comment by Mary Dudziak, Asa Griggs Candler Professor of Law, Emory University School of Law (and LHB Founder).  Professor Armitage will speak from 4:30 PM - 6:00 PM, in the Hyatt Regency Capitol Hill, 400 New Jersey Ave, NW,  Washington, DC 20001.  The event is open to the public free of charge with no RSVP required.  A reception is to follow.  H/t: Lawfare

Chin and Ormonde on the War against Chinese Restaurants

Gabriel "Jack" Chin and John Ormonde, respectively, a professor and student at the University of California, Davis School of Law, have posted The War against Chinese Restaurants, which is forthcoming in volume 67 of the Duke Law Journal:
"Oriental Dinner Menu" (NYPL)
Chinese restaurants are now a cultural fixture, as American as cherry pie. Startlingly, however, there was once a national movement to eliminate Chinese restaurants, using innovative legal methods to drive them out. Chinese restaurants were objectionable for two reasons. First, they threatened white women, who were subject to seduction by Chinese men, through intrinsic female weakness, or employment of nefarious techniques such as opium addiction. In addition, Chinese restaurants competed with “American” restaurants, thus threatening the livelihoods of white owners, cooks and servers; unions were the driving force behind the movement.

The effort was creative; Chicago used anti-Chinese zoning, Los Angeles restricted restaurant jobs to citizens, Boston authorities decreed Chinese restaurants would be denied licenses, the New York Police Department simply ordered whites out of Chinatown. Perhaps the most interesting technique was a law, endorsed by the American Federation of Labor for adoption in all jurisdictions, prohibiting white women from working in Asian restaurants. Most measures failed or were struck down. However, Asians still lost; the unions did not eliminate Chinese restaurants, but they achieved their more important goal, extending the federal policy of racial exclusion in immigration from Chinese to all Asians. The campaign is of more than historical interest. As current anti-immigration sentiments and efforts show, even today the idea that white Americans should have a privileged place in the economy, or that non-whites are culturally incongruous, persists among some.

Maltese Constitutional and Legal History

[Whitelocke Publications Limited has alerted us to their publication of three works of Maltese legal and constitutional history.]

Raymond Mangion's Constitutions and Legislation in Malta 1914-1964 (Vols. 1 & 2).  Professor Raymond Mangion, Head of the Department of Legal History and Methodology at the University of Malta, studied at the University of Malta (MA History, LLD) and at the University of Oxford (DPhil). He has been lecturing in legal and legislative history at the Faculty of Laws, University of Malta, since 1993.

He undertakes the unprecedented task in this book of drawing the constitutional and legislative landscape of Malta between the years 1914 and 1964. This he does with attention to detail, rigour and precision. He brings the story to life by interweaving social developments with the evolution of the constitutions and legislation of Malta.

Professor Mangion provides the reader with a dazzling tapestry, full of detail and connections. Themes include the influence of outstanding personalities in law-making, the changing structure of the government, questions of language and the free trade issue. He analyses the role of the local Church, the adoption of public, private and criminal laws, the tension between pro-Italian and pro-British feelings and the need to reconcile Imperial defence strategies with the wish of the Maltese for more autonomy. He masterfully demonstrates that the history of pre-Independence British Malta cannot be fully grasped without a clear understanding of the role played by its constitutions and legislation.

Hilda Lee's Constitutional History of Malta 1800-1914, with an introductory essay by Barry Hough & Howard Davis.  Hilda I. Lee, MA, was Lecturer in International History at the London School of Economics and Political ScienceBarry Hough, LLM LLB, is Associate Senior Lecturer at the University of Portsmouth School of Law. Dr Howard Davis is Reader in Public Law at Bournemouth University.

This book provides a detailed constitutional history of Malta during the first part of British rule, from initial occupation in 1800 to 1914, with an Epilogue bringing the story to Independence in 1964. The first part consists of an essay written by Barry Hough and Dr Howard Davis discussing the nature of the legal authority exercised in Malta by British officials prior to 1813, the date of the first appointment of a British official with the title of ‘governor’. The second, and majority, part of the book consists of an edited reprint of the acclaimed work by Hilda I. Lee, Malta 1813-1914: A Study in Constitutional and Strategic Development, published in 1973. Here, the many typographical errors originally found in Lee’s book have been corrected and the text conformed. This is the first time Lee’s book has appeared in print in over 30 years. This book is the first volume in the Whitelocke Series of Commonwealth Constitutions.

Mark A. Sammut's Essays in Maltese Legal History and Comparative Law, Vol. 1.  Mark A. Sammut, a member of the Royal Historical Society, the European Society for Comparative Legal History, and of the Malta Historical Society, studied law and translation studies at the University of Malta (LL.D., M.Jur. (summa cum laude), M.A.), Western European legal history at the University of London (LL.M.), and historical sociology at the London School of Economics.

This book contains four essays:
  1. Judicial Importation into Maltese Law of Italian Private Law Solutions and Its Implications
  2. Historical Facts and Myths surrounding the Criminal Code of Malta
  3. Medieval (Legal) Beasts in our Midst? A Terminological Ad Fontes Look at the Dissolution of Contracts under Maltese Law
  4. Latin Wine Decanted into a Semitic Carafe: The Obscure Term “Midheb” in Vassalli’s Lexicon and its Possible Usefulness for the Legal Historian
It is of interest not only to those analysing Maltese law, but also to those interested in Scots (Criminal) Law, British Imperialism, the translation of the Code Napoleon, Islamic Law, Jewish Law, and Maltese History.

Signing Off

I wanted to post a final note at the end of my guest blogging stint here at LHB. I am appreciative for the opportunity to write about some of the issues that came up in the process of producing Futility and reflect on the many challenges and rewards of doing transnational and global legal history in the contemporary moment. Especially coming from the less traditional legal interdisciplinary perspective of anthropology, it was productive to discipline into words some of the internal dialogue that had accompanied my particular process of becoming a legal historian.

Intro: What Are You?: Producing A First Book Amid Disciplinary and Geographic Migrations (link)
  1) The Affinities and Disjunctures of History and Anthropology (link)
  2) Subjectivity, Intent and Impact: The Gordian Knot of Empathy and Interpretation (link)
  3) Functionalism and Synthetic History (link)
  4) The Challenges of Comparative Law and Transnational History (link)
  5) Empire and Imperialism: (Mis)Framing Cross-Cultural Engagements (link)
  6) The Young Interdisciplinary Scholar in a Global Academic Market (link)

I think all scholars can relate to the fact that we have many potential inspirations that will never quite make it into formal writing projects, and exist in the hazier space between the personal and professional. LHB provides this distinct type of space for its guest bloggers, and I have enjoyed working through my thoughts therein, and hope they find some resonance out there in the digital ether.

And my thanks to the lead bloggers for the steady work of putting together a high-quality community resource which takes so much time out of our already impacted academic lives. The internet has the potential to both further silo and broaden our perspectives as scholars, and as catholic as the field of legal history has become this type of collective work helps us all take better advantage of the latter. Until next time!

VanderVelde on Henry Wilson and the 13th Amendment

Lea S. VanderVelde, University of Iowa College of Law, has posted Henry Wilson: Cobbler of the Frayed Constitution, Strategist of the Thirteenth Amendment, which appears in the Georgetown Journal of Law & Public Policy 15 (2017): 173-264:
Henry Wilson (LC)
This article explores the extraordinary but rarely recognized contribution of Senator Henry Wilson in accomplishing the passage of the Thirteenth Amendment, motivated as he was by free labor ideology. Wilson played a key role in directing the strategic moves made by Congress to prepare the ground for passage of the Thirteenth Amendment and for its implementation. Born into poverty, Wilson worked his way up as a cobbler, developing along the way a strong commitment to the work ethic and the Republican ‘free labor’ ideology. Free labor ideology informed his opposition to slavery and advocacy on behalf of oppressed workers. Understanding Wilson’s free labor ideology has important implications for understanding the Thirteenth Amendment as a broader and more profound enactment designed to eliminate caste, class, and racial distinctions beyond simply banning chattel slavery. A deeper understanding of Wilson’s thoughts and deeds is valuable to our contemporary debates regarding the amendment and its continuing role in our republic.

OAH Book Prizes Announced

The Organization of American Historians has announced its book prizes.  The whole list is here.  Of special interest to legal historians are the following:

Merle Curti Award for the best book published in American social history and American intellectual history
Intellectual history: Susanna L. Blumenthal, University of Minnesota for Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (Harvard University Press).

Social history: Wendy Warren, Princeton University, New England Bound: Slavery and Colonization in Early America (Liveright Publishing Corporation).
Ellis W. Hawley Prize for the best book-length historical study of the political economy, politics, or institutions of the United States, in its domestic or international affairs, from the Civil War to the present
Sam Lebovic, George Mason University, Free Speech and Unfree News: The Paradox of Press Freedom in America (Harvard University Press)
Mary Jurich Nickliss Prize in U.S. Women’s and/or Gender History for the most original book in U.S. women’s and/or gender history.
Katherine Turk, University of North Carolina, Chapel Hill, Equality on Trial: Gender and Rights in the Modern American Workplace (University of Pennsylvania Press)

Monday, April 10, 2017

A Review Essay on the American Revolution and Desan's "Making Money"

Just out in Law and Social Inquiry is The American Revolution and Christine Desan's New History of Money, by Andrew David Edwards, a graduate student in history at Princeton University.  As the title suggests, it is a review essay on Making Money: Coin, Currency and the Coming of Capitalism (Oxford University Press, 2015), by Christine Desan, Harvard Law School.

Kent on the Insular Cases and the Anti-Jury Movement

Andrew Kent, Fordham University School of Law, has posted The Jury and Empire: The Insular Cases and the Anti-Jury Movement in the Gilded Age and Progressive Era, which is forthcoming in the Southern California Law Review 91 (2018):
This article contributes to several debates and literatures, which have not previously been all linked together: the history of the jury in the United States, the nature of U.S. imperialism and colonial governance in Puerto Rico and the Philippines, and Progressive era legal reform. The story starts with the Insular Cases — landmark Supreme Court decisions from the early twentieth century holding that jury rights and some other constitutional guarantees did not apply in Puerto Rico and the Philippines until and unless Congress had taken decisive action to "incorporate" the territories into the union. The conventional wisdom among scholars is that the Supreme Court in these decisions shamefully ratified the U.S. government's discrimination and domination over the peoples of newly-acquired colonies. Racism and cultural chauvinism are blamed as primary causal factors.

The article shows that Congress, the executive, the courts, and local legislatures in the Philippines and Puerto Rico granted almost every single right contained in the Constitution to the territorial inhabitants, with the exception of the jury. So while deep, institutional racism was certainly present and causally important, it is also true that U.S. governance in the territories was not a project of wholesale discrimination. Motivations, goals, and outcomes were complex. Protection of rights of local inhabitants was a key concern of U.S. policymakers. But the jury was considered a unique case, different than other rights.

William H. Taft, Governor-General of the Philippines (LC)
To understand why the jury was thought uniquely unsuited for the new U.S. colonies, this article fills out a largely overlooked history of the jury in the mainland United States during the Gilded Age and Progressive Era. Most histories of the jury skip from the adulation of the institution at the Founding, to the Warren-Burger Courts' decisions over 150 years later that racial and gender discrimination in jury service were unconstitutional and that the criminal petit jury was a fundamental right. It turns out that the late nineteenth and early twentieth centuries saw severe criticism of the jury by elite lawyers, the newly-created bar associations in big cities, the reformist popular press, and progressive movement leaders. Many states cut back on jury rights at the time. And the Supreme Court held then that states should not be forced to "straight jacket" themselves (in the Court's words) to the common law procedure of old England that was found in the Bill of Rights, but should be free to experiment to create more efficient criminal and civil procedure. Leaders of the anti-jury reform movement in the United States were also leading policymakers for colonial issues in Puerto Rico and the Philippines, notably William Howard Taft. Many of the same arguments against the jury were made in both contexts. Linking the anti-jury movement to the legal and political decision-making about governance of the new territories helps enrich our understanding of both.

More on that New Website on Federal Judicial History

[We’ve previously noted the new website at the Federal Judicial History Center.  Clara Altman, the Director of the Federal Judicial History Office at the Federal Judicial Center, has written to highlight a few features.]

The Biographical Directory of Article III Federal Judges, 1789-Present.  The directory includes the biographies of judges presidentially appointed to serve during good behavior since 1789 on the U.S. District Courts, U.S. Courts of Appeals, Supreme Court of the United States, and U.S. Court of International Trade, as well as the former U.S. Circuit Courts, Court of Claims, U.S. Customs Court, and U.S. Court of Customs and Patent Appeals. Also included are judges who received presidential recess appointments to the above named courts but were not confirmed by the Senate to serve during good behavior.

Charts and Graphs related to the Demography of Article III Judges, 1789-2015.  This feature includes interactive charts and graphs on the composition of the courts over time, the age and experience of judges, gender of judges, race and ethnicity of judges, and the geographical distribution of the courts and judges including an interactive map of the judicial circuits over time and of authorized judgeships by state and by circuit.

Timelines of Federal Judicial History.  Timelines on the structure of the federal courts, the jurisdiction of the federal courts, the administration of the federal courts, and cases that shaped the federal courts.

Teaching Resources on Famous Federal Trials.  This section includes teaching resources on the Sedition Act trials, the Aaron Burr treason trial, Amistad, Ex parte Merryman, U.S. v. Susan B. Anthony, Chew Heong v. U.S., In re Debs, Olmstead v. U.S., the Rosenberg trial, Bush v. Orleans Parish School Board, and the Chicago Seven Conspiracy trial.

Historic Federal Courthouses.  This section includes nearly 600 images of historic federal courthouses and other buildings that have served as the meeting places of federal courts. These photographs were compiled from the collections of various federal repositories and agencies. They include an image of every meeting place of a federal court for which there was a photograph of acceptable quality.

Visitors to the site can also find historical information about particular courts, judicial salaries, unsuccessful nominations and recess appointments, impeachments, caseloads, administration of the courts, court officers and staff, judicial appropriations, and more...

Saturday, April 8, 2017

Weekend Roundup

  • Legal Scholarship Blog tells us that earlier this week Alexander “Sasha” Volokh, Emory University School of Law, presented "Suing Your Employer in 1798: A Dispatch from the Legal History Trenches."  And, next week, Maeva Marcus, the founding director of the Institute for Constitutional History, and the New York Times’s Adam Liptak will “discuss their insights into politics and the Supreme Court” at Oklahoma University.
  • Late last month, “Rep. Dave Brat (R-Va.) and Rep. Seth Moulton (D-Mass.) introduced the bipartisan Statutes at Large Modernization Act, H.R. 1729. This legislation will require the U.S. Statutes at Large to be placed online in a digital and searchable format, just like the U.S. Code. . . . Currently the U.S. Statutes at Large are not available online in a searchable, non-proprietary format."
  • ICYMI: Our Georgetown Law colleague Lawrence Solum has a series of posts on "The Case for Originalism" on his Legal Theory Blog.  The latest at this writing (with links to earlier posts) is here.  Professor Solum also has a some reflections on Professor Gienapp's latest and a reply by Michael Ramsey.  He also notes Professor Christopher Green’s comment on Judge Richard Posner’s reference to originalism in a recent opinion in Hively v. Ivy Tech.
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, April 7, 2017

Grossman Named LAPA Fellow

Congratulations to the legal historian Lewis Grossman, Washington College of Law, American University, on his being named a Law and Public Affairs Fellow at Princeton University for 2017-2018.  "He will work on his book-in-progress, entitled Choose Your Medicine: Freedom of Therapeutic Choice in American Law and History."  The announcement and list of fellows is here.