Thursday, August 31, 2017

Simpson on Taxation and the Medieval Origins of the Rule of Law

Hannah Katherine Simpson, who holds a JD from the Harvard Law School and a PhD in Politics from NYU and will soon start a Postdoctoral Research Fellow at the Institute for Advanced Study in Toulouse, has posted Justice for Sale: Political Exigency and the Development of a Legal System:
How does the rule of law develop in a country? Effective legal institutions have been hypothesized to emerge from states' long-term interests in growing tax revenue. Where political regimes are instead concerned with short-term survival or simply cannot collect regular taxes, the rule of law will remain inadequate. But because of the historical nature of this process, convincing causal evidence is scarce. I refine existing intuitions about the origins of the rule of law by arguing that, because a strong legal system can directly generate revenue and political support, politically weak regimes may have incentives to invest in legal capacity and property rights protections. Using original historical data from the dawn of the common law system in 12th century England, and leveraging the kidnapping of King Richard I in 1192 as an unusual natural experiment, I present direct causal evidence that political and fiscal exigency can motivate state investment in the provision of property rights protections, and show that in the case of the English state, these investments translated into long-term growth in legal capacity and access to justice.
See also her earlier paper, written with Sanford C. Gordon, The Birth of Pork: Local Appropriations in America's First Century:
After describing a newly assembled dataset consisting of all local appropriations made by the U.S. Congress between 1789 and 1882, we test a number of competing accounts of the politics surrounding them before offering a more nuanced, historically contingent view of the emergence of the pork barrel. First, we demonstrate that the pattern of appropriations is inconsistent with credit-claiming motivations, even accounting for the frequent rotation in office common during the period. Second, it was rare that over fifty percent of districts directly benefited from these appropriations until the 1870s, even aggregating by congressional session. Moreover, support for these appropriations was not reducible to geographic proximity, but did, until the end of Reconstruction, map cleanly onto the partisan/ideological structure of Congress. Finally, we show how the growth of recurrent expenditures and the emergence of a solid Democratic South eventually produced the universalistic coalitions commonly associated with pork-barrel spending.

Mothers and the Constitution: An ICH Seminar

[We are moving this up because the deadline has been extended to September 15, 2017.]

The Institute for Constitutional History is pleased to announce another seminar for advanced graduate students and junior faculty, “Mothers and the Constitution”:
The seminar will explore the relationship between the changing practice of motherhood and the law.  Using Supreme Court cases, important state cases, and supplementary historical and statutory materials we will study the many ways that constitutional interpretation and government policy have regulated the lives of different kinds of mothers and occasionally of fathers too. We will organize our discussions around four key issues: Custody and Care, Reproduction, Work, and State Support, focusing on the twentieth century; and taking into account the influence of such factors as race, religion, migration, and sexuality on developing constitutional interpretation. 
Instructors. Alice Kessler-Harris is R. Gordon Hoxie Professor of American History, Emerita, at Columbia University where she was also Professor in the Institute for Research on Women and Gender, and held a faculty affiliate appointment in the Columbia University School of Law. Carol Sanger is the Barbara Aronstein Black Professor of Law at Columbia Law School where she teaches Contracts, Family Law, and research seminars on “Meanings of Motherhood: Legal and Historical Perspectives” (with Alice Kessler-Harris) and “Abortion: Law in Context.”

Logistics.  The dates the seminar will meet are:  October 6, October 13, November 3, and November 10; Fridays from 2-5 p.m.  The seminar will be held at the New-York Historical Society, 170 Central Park West, New York City.  There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

Application Process
.  The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines.  All participants will be expected to complete the assigned readings and participate in seminar discussions.  Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar.  Please consult with your advisor and/or director of graduate studies about these possibilities.  Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development.  Materials will be accepted only by email at until May 15, 2017.  Successful applicants will be notified soon thereafter.  For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to

About ICH
.  The Institute for Constitutional History (ICH) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association.  The Association of American Law Schools is a cooperating entity.  ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society.  ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.

Center for the Study of Law and Society Speaker Series: Fall 2017 Lineup

The Center for the Study of Law and Society at the University of California, Berkeley has posted the Fall 2017 lineup for its speaker series. Speakers likely to interest our readership include:
Monday, September 18 – Mark Brilliant, Associate Professor of History and American Studies; Director, Program in American Studies, University of California, Berkeley. “To Liberate From the Accident of Family Wealth’: How Liberals Revived and Revised the Case for School Vouchers in the 1960s and 1970s and Paved the Way to Zelman”

Monday, November 6 – Melynda Price, Robert E. Harding, Jr. Associate Professor of Law, UK School of Law, and Director, African American and Africana Studies Program, University of Kentucky. “What Would Mama Do? Save Our Sons and Daughters and Anti-Violence Organizing among Black Mothers of Murdered Children in 1980s Detroit”

Monday, November 13 – Joy Milligan, Assistant Professor of Law, U.C. Berkeley School of Law. “Before Fair Housing: ‘Racial Equity’ and Segregation in Early Federal Housing Programs”

Wednesday, August 30, 2017

University of Chicago's Dickerson Fellowship

[My law alma mater has asked that the following announcement be posted.]

The University of Chicago Law School invites applications for the Earl B. Dickerson Fellowship, with an appointment at the rank of Instructor, for a twelve-month term to begin on July 1 or August 1, 2018. The Dickerson Fellowship is named after the first African-American graduate of the Law School, from the class of 1920. The Law School seeks candidates who demonstrate the promise of distinguished legal scholarship and law teaching and ideally have relevant practice experience that will qualify them to act as teachers and mentors of students. Among other considerations, we value candidates with diverse backgrounds and perspectives who will enrich and improve the student experience and the Law School's culture.  The Dickerson Fellow will teach one or more courses per year and will be expected to publish high-quality scholarship and contribute to the intellectual life of the Law School. A J.D. is required. Candidates must apply online at the University of Chicago Academic Career Opportunities website, and upload a current curriculum vitae, law school transcript, and reference contact information. Applications will be considered until the position is filled or until June 30, 2018, whichever comes first.

The University of Chicago is an Affirmative Action/Equal Opportunity/Disabled/Veterans Employer and does not discriminate on the basis of race, color, religion, sex, sexual orientation, gender identity, national or ethnic origin, age, status as an individual with a disability, protected veteran status, genetic information, or other protected classes under the law. For additional information please see the University's Notice of Nondiscrimination.  Job seekers in need of a reasonable accommodation to complete the application process should call 773-702-0287 or email with their request.

Harris on an Indian Reserve in a Canadian City

Douglas C. Harris, University of British Columbia Faculty of Law, has posted Property and Sovereignty: An Indian Reserve and a Canadian City, which appears in the University of British Columbia Law Review 50 (2017): 321-392:
Property rights, wrote Morris Cohen in 1927, are delegations of sovereign power. They are created by the state and operate to establish limits on its power. As such, the allocation of property rights is an exercise of sovereignty and a limited delegation of it. Sixty years later, Joseph Singer used Cohen’s conceptual framing in a critical review of developments in American Indian law. Where the US Supreme Court had the opportunity to label an American Indian interest as either a sovereign interest or a property interest, he argued, it invariably chose to the disadvantage of the Indians. Within Canada, Indigenous peoples have struggled to have their interests recognized as property rights, let alone as sovereign power. As John Borrows makes clear, Canadian courts have established Canada’s sovereignty as the jurisdictional bedrock on which Indigenous peoples must establish their property rights. This article uses the uses the concepts of property and sovereignty as revealed by Cohen and as interpreted by Singer and Borrows in the context of the rights of Indigenous peoples to recount the history of the appearance, disappearance, and reappearance of an Indian reserve in the City of Vancouver. Allotted by the colony of British Columbia in the 1860s and expanded in 1876 after British Columbia joined the Canadian confederation, the Kitsilano Indian Reserve is one of more than 1500 Indian reserves scattered across the province. Using archival material, much of it introduced in litigation, the article examines the changing character of the Indian reserve in the nineteenth and twentieth centuries as a property interest and as a limited delegation of sovereignty, in a context where the distribution of sovereignty between Indigenous peoples and the Canadian state remains unresolved.

ABF-Chicago Area Legal History Workshop, 2017-18

The schedule is out for the Chicago Area Legal History Workshop, sponsored by the American Bar Foundation and organized this year by Victoria Saker Woeste.  It convenes in the the 4th floor Woods Room at the American Bar Foundation, 750 N. Lake Shore Drive, Chicago, at 4 PM, with coffee and sweets provided.

Wednesday, Sept. 27 – Vicky Woeste, American Bar Foundation:  “Practicing God’s Law in a Secular World:  The Lawyers of the Westboro Baptist Church, 1964-2011”

Wednesday, Oct. 25 – Matthew Lindsay, University of Baltimore School of Law

Wednesday, Nov. 15 – Felice Batlan, Chicago-Kent School of Law

Monday, Dec. 4 – Sarah Seo, University of Iowa Law School

Wednesday, Jan. 24 – Joanna Grisinger, Center for Legal Studies, Northwestern University

Wednesday, Feb. 28 – Sally Hadden, Department of History, Western Michigan University

Wednesday, March 21 – Felicia Kornbluh, Departments of History and Gender, Sexuality, and Women's Studies, University of Vermont

Wednesday, April 25 –  Justin Simard, Center for Legal Studies, Northwestern University

Wednesday, May 23 – Evelyn Atkinson, Department of History, University of Chicago

Tuesday, August 29, 2017

Vanatta on the Rise of Consumer Finance and the Race to the Bottom

Sean H. Vanatta, who is ABD in Princeton’s history department, has published Citibank, Credit Cards, and the Local Politics of National Consumer Finance, 1968–1991, in the Business History Review 90 (2016): 57-80:
Within the postwar financial regulatory system, state-level regulations—particularly interest rate limits—constrained the profitability of bank credit card plans. But differences in law among the states allowed motivated institutions to circumvent local laws using these mobile financial instruments. Eventually, banks themselves became mobile, placing irresistible pressure on states to eliminate local restrictions on consumer finance. The critical moment came when Citibank relocated its credit card business to Sioux Falls, South Dakota, in 1981. By examining this move in its longer context, this essay provides a new perspective on the rise of consumer finance in the late twentieth century, one that emphasizes strategic manipulation of local law by firms pursuing a national customer base.

Mirow on Florida Land Claims in the US Supreme Court

M. C. Mirow, Florida International University College of Law, has posted The Supreme Court, Florida Land Claims, and Spanish Colonial Law, which appears in Tulane European and Civil Law Forum 31/32 (2017): 181-218:
After Florida became a U.S. territory in 1821, Congress established commissioners to determine land ownership in the territory. A series of federal laws on this subject followed until “an act for final settlement of land-claims in Florida” in 1830. From 1827 to 1926, the United States Supreme Court was the final arbiter in more than sixty cases of titles to land in Florida. While the Court often relied on the determinations of commissioners and on the decisions of lower federal courts, such as the territorial Superior Court of East Florida, many cases required the Court to examine Spanish colonial law, derecho indiano, to decide questions of title to land. The stakes were high; disputed grants often exceeded 10,000 acres.

This study focuses on the way the Supreme Court dealt with Spanish colonial law to decide these cases. It examines the Court’s sources, skill, limitations, and biases when addressing complex issues of land title under a foreign legal system. Justices Trimble, Marshall, Baldwin, Wayne, Taney, Thompson, Catron, Bradley, Fuller, Holmes, Van Devanter, and McReynolds authored opinions in these cases.

Monday, August 28, 2017

CFP (at AALS): The 14th Amendment

[We're moving this post up because the deadline has been extended until September 8.]

Call for Papers – AALS 2018 Annual Meeting Joint Program on “Reconstruction: The Second Founding”
The AALS Sections on Constitutional Law and Legal History invite paper submissions to participate in our joint program, “Reconstruction: The Second Founding,” at the 2018 AALS Annual Meeting on January 4, 2018. One paper will be selected among those submitted. The panel will take place from 3:00-4:30 on Thursday, January 4, 2018.

On the 150th anniversary of the 14th Amendment, the program celebrates the Reconstruction Constitution and explores its meaning to the law today.  In an addition to a keynote luncheon speech by historian Martha Jones of the University of Michigan, the program will consist of two panels; the first on the history of Reconstruction and the second on Reconstruction’s present-day meaning. The AALS Sections on Constitutional Law and Legal History welcome submissions for the second panel. This panel discussion will focus on the impact of the Reconstruction Amendments on contemporary constitutional law, touching on topics from racial justice to sex equality and the law of empire. The Sections invite papers (historical, theoretical, doctrinal, empirical) on the present-day resonance of the Thirteenth and Fourteenth Amendments and their broader significance.

Full-time faculty members of AALS member law schools are eligible to submit papers. Preference will be given to junior scholars doing original work on the Reconstruction Amendments. Diversity of race, gender, sexual orientation, ideology and subject matter will be taken into account in evaluating proposals. Pursuant to AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit. Please note that all faculty members presenting at the program are responsible for paying their own annual meeting registration fee and travel expenses. 

While complete papers with an abstract (no longer than 800 words) are preferred, paper abstracts will also be accepted. Papers will be selected by the Sections’ officers in a double-blind review. Please submit only anonymous papers by redacting from the submission the author’s name and any references to the identity of the author, and include relevant identifying information in the body of your email. Please submit in PDF format. Send proposals to  The title of the email submission should read: “Submission – 2018 Joint Program on Reconstruction.” 

Deadline for submission of proposals is 5 pm EST on Friday, August 18, 2017 September 8, 2017.

CFP: Contingency in the Course of International Law

The Faculty of Law, Amsterdam Center for International Law, announce a Call for Papers for "Contingency in the Course of International Law: How International Law Could Have Been, "workshop to be held 14-16 June 2018, with a keynote by Fleur Johns (UNSW) and a closing address by Samuel Moyn (Yale)

Concept: The workshop will ask a question that is deceptive in its simplicity: How might international law have been otherwise? The overarching aim will be to expose the contingencies of international law's development by inquiring into international law's past. Such inquiries may be of systematic purport - asking, for example, how a different conception of the sources of international law could have emerged. Or they may focus on specific areas of the law, asking questions like whether the idea of state crimes could have taken hold or whether the NIEO could have achieved greater success (Anghie, 2015; Özsu, 2017; Venzke, 2017). International law's past is almost certainly ripe with possibilities that we have forgotten. The workshop will seek to reveal and remember them.

The workshop will focus on trying to tell compelling stories about international law's contingency. To be sure, those attempts may fail and claims to contingency may well turn out to be false (Beckett, 2017; Marks, 2009; Orford, 2015). Either way, though, we will question the present state of international law by challenging its pretence to necessity and by better understanding the forces that have shaped it (Horkheimer, 2002; Menke, 2014; Boucheron, 2016). Put simply with Robert Musil: 'If there is a sense of reality, there must also be a sense for possibility' (1995: 13).

While the operation of the law is bound to gloss over any contingency in its course, we wish to draw out those contingencies to learn what could (not) have been. Some contributions will focus on the operation of international law itself, exploring the differential developments that could have taken place concerning seminal judicial decisions (eg, what if France had won the Lotus case?), key treaties (eg, what if states had failed to conclude the Second Additional Protocol in 1977?), or important institutions (eg, what if the International Clearing Union had been established in 1949?). Another set of inquiries will question the development of international law in light of more general historical events that might not have happened or might have happened differently, such as the outbreak of World War I, the processes of decolonization, or the terrorist attacks of 9/11. And yet other angles are welcome. 

In the course of concrete inquiries into international law's past, there are numerous opportunities for theoretical reflection about the nature of contingency itself, ranging from philosophies of legal history to questions about the narrator's perspective. How should actor- and structure-centered accounts of the past be combined in probing the contingency of past events (Tomlins, 2016)? How should we cope with possible tensions between pursuing interests in the present while avoiding undue anachronisms (Lesaffer, 2007)? And how can we contextualize legal developments without reducing law to its context only (Koskenniemi, 2013)? Not the least, the question of how it could have been provides a renewed take on perennial questions of international law's relationship with power, culture, and justice.

Saturday, August 26, 2017

Weekend Roundup

  • The legal historians Sarah Barringer Gordon, Sophia Z. Lee and Serena Mayeri (and Dorothy E. Roberts and Tobias Barrington Wolff) reply to their University of Pennsylvania colleagues Amy Wax and Larry Alexander’s op-ed, “Paying the price for breakdown of the country's bourgeois culture.” 
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, August 25, 2017

Drake University Seeks Assistant Professor of Law, Politics, & Society

Drake University has issued a call for applications for the position of Assistant Professor of Law, Politics, & Society. From the ad:
Law, Politics, and Society
at Drake University seeks a teacher-scholar doing interdisciplinary sociolegal scholarship focusing on global legal studies, human rights, science/technology, or practices of the legal profession.  Successful candidates will teach upper and lower division electives in their areas of expertise, and contribute to major requirements. We especially seek a candidate who contributes to excellent education for diverse student populations, and desire to be active member of a department with strong commitments to university service.  3:3 teaching load; strong support for research and professional development. Ph.D. or advanced ABD required.
More information is available here.

Palmer on Empire and Mixed Legal Systems

Vernon V. Palmer, Tulane Law School, has posted Empires as Engines of Mixed Legal Systems:
Nowhere else is the evolution of pluralism more accelerated than in the legal transformations brought about by assembling and managing empires. Whether Roman, Ottoman or English, Empires have been veritable engines of mixed and plural laws. This essay will suggest that mixed legal systems have been with us since antiquity and have been continually generated in conditions of increased social contact, commerce and communication between peoples. The incubation of mixed systems within empires suggests that legal mixing is unavoidable (and maintaining original purity unsustainable) when there is sufficient social and intellectual connection between peoples who fall under the same imperial sovereign. Different variables affect the speed and thoroughness of integration, for instance the social distance between cultures and civilizations, the prestige and rational appeal of the imperial law, and imperial policies which promote assimilation or seek to maintain separate laws for different peoples. Furthermore empires have distinctive purposes and devise distinctive strategies toward foreign laws. The Roman and Ottoman Empires clearly had different purposes and strategies and such differences have contributed to two forms of pluralism we find in the modern world.

Thursday, August 24, 2017

Lederman on Military Tribunals and Domestic Offenses in the American Revolution

Last fall, we noted the posting on SSRN of Martin S. Lederman’s article on military tribunals in the American Revolutionary Era.  A revised version is now out in the Georgetown Law Journal as Of Spies, Saboteurs, and Enemy Accomplices: History’s Lessons for the Constitutionality of Wartime Military Tribunals. Here is the revised abstract:
Congress has recently authorized military commissions to try enemies not only for violations of the international law of war, but also for domestic-law offenses, such as providing material support to terrorism and conspiring to commit law-of-war offenses. Moreover, President Trump has indicated support for further military trials, including trials against U.S. citizens.  Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution prescribes.  The constitutionality of such an abrogation of Article III’s criminal trial guarantees has been debated during many of the nation’s wars without clear resolution, and the constitutional question is now at the heart of a potentially landmark case, al Bahlul v. United States, currently before the Supreme Court.

In the rare cases where the Supreme Court has recognized exceptions to Article III’s criminal trial protections, it has typically invoked functional and normative justifications.  When it comes to adjudication of war-related domestic-law offenses, however, neither the government nor the appellate judges who have defended commission trials have offered any such functional or normative considerations sufficient to justify denial of the independent judge and jury that Article III guarantees.  Defenders of the military tribunals have instead relied almost exclusively upon historical claims of two kinds to defend the constitutionality of using military commissions in this context.  This Article addresses one of those historical claims—namely, that the Constitution should be understood to have preserved, rather than to have modified, the federal government’s power to prosecute a war as it did during the Revolutionary War.  According to this argument, the Constitution was ratified against, and should be presumed not to have called into question, a practice of military adjudication of offenses that were not violations of the international law of war: court-martial proceedings, authorized by the Second Continental Congress and approved by General George Washington, against certain spies and against disloyal civilians who aided the British. The earliest Congresses purportedly confirmed this constitutional understanding by enacting statutes permitting military trials for spying and for aiding the enemy—statutes that have remained in the federal code ever since.

This Article offers the first comprehensive account of the Revolutionary War precedents.  It discusses how they were understood in the ensuing decades and the ways in which they, and the post-1789 statutes, have been invoked and mischaracterized as authority in later wars.  This history demonstrates that the received wisdom about these precedents is almost entirely mistaken, and that they provide little, if any, support for a new Article III exception for military adjudication of war-related domestic-law offenses. The Article thus offers an object lesson in how a complex history can be misunderstood and distorted in the course of constitutional interpretation, particularly on questions of war powers.

The pre-constitutional history does, however, include one conspicuous aberration: a 1778 congressional resolution authorizing trial by court-martial of civilians who provided a particular kind of aid to the British army.  General Washington relied upon this resolution in 1780 as authority to convene a court-martial to try Joshua Hett Smith for assisting Benedict Arnold in the plot to surrender West Point to the British.  This Article shows why it would be a mistake to accord much interpretive weight to the Smith case—a striking deviation from Washington’s otherwise consistent conduct—in crafting exceptions to Article III’s criminal trial guarantees.

Wednesday, August 23, 2017

Fitzpatrick on the Ironic History of Rule 23

Brian T. Fitzpatrick, Vanderbilt Law School, has posted The Ironic History of Rule 23:
Fifty years ago, the Federal Rules of Civil Procedure were amended to create the modern money damages class action, Rule 23(b)(3). The 1966 amendment changed the money damages class action from one where class members had to opt in to be included to one where all class members were included unless they opted out. No change to the original Federal Rules has been a greater boon to plaintiffs and a greater burden to the business community. But when (b)(3) was proposed, almost no one worried the rule would be too friendly to plaintiffs. Rather, the greater worry expressed at the time was the rule would be too friendly to business. In this article, I recount the ironic history of (b)(3).

SFSU Constitution and Citizenship Day Schedule Announced

The line-up for “Rights and Wrongs,” this year’s Constitution Day conference at San Francisco State University, to be held September 18-19 2017, is here.  The keynoters are Robin D. G. Kelley, UCLA, who will speak on “Crimes of Liberty: The Origins of the Constitution and the Unfinished Business of Abolition,” and Shirin Sinnar, Stanford Law School, who will present “The Travel Ban, National Security, and the Courts.”  H/t: H-Law

Tuesday, August 22, 2017

Leo Hershkowitz: Dumpster Diver for Legal History

Today's New York Times brings word of the death of Leo Hershkowitz. That might not be a familiar name to legal historians today, even though he taught history at Queens College "for about 50 years."  The obituary's reference to his many heroic efforts to save New York City documents, including coroner’s records from the late 18th and early 19th centuries, reminded me of a story Stanley Katz once told me about Professor Hershkowitz and one such batch of documents. When I checked with Professor Katz, he replied:
He was one of the early non-lawyers legal historians, entirely focused on the city and state of New York. Back in the late 1960s or early 1970s, when I was trying to write a history of the chancery courts in New York, many of the records were hard to find. But I knew that many of them were in a court in Albany. Leo knew too, and discovered that the court was going to destroy the 18th-century records as of no current value. He got the court to agree to release the records to him, hired a truck, and drove to Albany to collect the records--which I think he then gave [to the New-York Historical Society or the Hall of Records in New York City]. He literally, and by his lonesome, saved the New York 18th-century chancery court records. Blessings on him. He wrote a good book on Boss Tweed, too.

Cromwell Foundation Grants: Deadline Approaching

The September 1 deadline for submission of applications for William Nelson Cromwell Foundation grants (other than Early Career Scholar grants, which are administrated by an ASLH Committee).  Procedures may be found on the Foundation’s website.

Osgoode Society Legal History Workshop: Winter 2018

Via our friends at the Canadian Legal History Blog, we have the lineup for the Winter 2018 Osgoode Society Legal History Workshop:
Wednesday January 10 or 17: TBA 
Wednesday January 31 – Elizabeth Koester, University of Toronto: ‘Litigating Eugenics:  The 1936 Eastview Birth Control Trial’.
Wednesday February 14: Tom Telfer, Western University: ‘The New Bankruptcy “Detective Agency”? The Origins of the Superintendent of Bankruptcy in Great Depression Canada.’
Wednesday February 28 - Donald Fyson, Laval University: TBA
Wednesday March 14: Jeff McNairn, Queen’s University: ‘ “Where covert guile and artifice abound:” Making Legal Knowledge of Insolvency and Fraud in Upper Canada, 1794-1843.’
Wednesday March 28: Michael Boudreau, St Thomas University: ‘Capital Punishment in New Brunswick, 1869-1957’.
Wednesday April 4 - Shelley Gavigan, Osgoode Hall Law School: ‘Historicizing Criminalization of Canada’s First Nations: A Project for Legal Historians?’

Monday, August 21, 2017

Goluboff and Schragger on Obama's Supreme Court

Risa L. Goluboff and Richard Schragger, University of Virginia School of Law, have posted Obama’s Court? which is forthcoming in The Presidency of Barack Obama: A First Historical Assessment, ed. Julian E. Zelizer (Princeton University Press):
In this chapter for an edited volume on the Obama presidency, we examine Obama’s judicial legacy and specifically his relationship to the Supreme Court. Obama shaped the Court with two important appointments, Sonia Sotomayor and Elena Kagan, thus increasing the number of women on the Court to three. But he was unable to shift the Court dramatically in a progressive direction, despite the death of Antonin Scalia — the intellectual center of the conservative Court — late in Obama’s second term. Obama’s nomination of Merrick Garland, a moderate, was stymied by a recalcitrant Republican-led Senate.

So too, despite a conservative majority on the Court, conservatives’ hopes to change the fundamental terms of the existing constitutional settlement were not realized. Obama’s signature social welfare program — the Affordable Care Act — survived constitutional challenge, while marriage rights were extended to gays and lesbians. The constitutional doctrine the Supreme Court elaborated in the middle of the twentieth century had two essential features: the broad legitimacy of the federal administrative state, especially in the realm of economic regulation, and the judicial protection of civil rights and civil liberties. Those two pillars of Supreme Court jurisprudence mostly survived, even as conservative justices cut back significantly on racial civil rights, expanded gun rights, and extended speech and religious rights to corporations.

With Donald Trump’s election in 2016, Obama lost the appointment that would have shaped the Court for years. Scalia’s replacement, Neil Gorsuch, appears to share Scalia’s judicial approach. Ideologically, the Court looks about the same as it did during Obama’s two terms in office. Trump’s ascendancy, however, raises the possibility that a new appointment will substantially alter what has been a fairly stable, fifty-year constitutional settlement.
H/t: Legal Theory Blog. The New York Times's report on the conference that produced the volume is here.

Brown's "Alexander Hamilton and the Development of American Law"

Kate Elizabeth Brown, an assistant professor of history and political science at Huntington University, has published Alexander Hamilton and the Development of American Law, with the University Press of Kansas:
Alexander Hamilton is commonly seen as the standard-bearer of an ideology-turned-political party, the Federalists, engaged in a struggle for the soul of the young United States against the Anti-Federalists, and later, the Jeffersonian Republicans. Alexander Hamilton and the Development of American Law counters such conventional wisdom with a new, more nuanced view of Hamilton as a true federalist, rather than a one-dimensional nationalist, whose most important influence on the American founding is his legal legacy.

In this analytical biography, Kate Elizabeth Brown recasts our understanding of Hamilton’s political career, his policy achievements, and his significant role in the American founding by considering him first and foremost as a preeminent lawyer who applied law and legal arguments to accomplish his statecraft. In particular, Brown shows how Hamilton used inherited English legal principles to accomplish his policy goals, and how state and federal jurists adapted these Hamiltonian principles into a distinct, republican jurisprudence throughout the nineteenth century. When writing his authoritative commentary on the nature of federal constitutional power in The Federalist, Hamilton juxtaposed the British constitution with the new American one he helped to create; when proposing commercial, monetary, banking, administrative, or foreign policy in Washington’s cabinet, he used legal arguments to justify his desired course of action. In short, lawyering, legal innovation, and common law permeated Alexander Hamilton’s professional career.
Among the endorsements:
“Katherine Brown’s forcefully and persuasively argued book reminds us that Alexander Hamilton’s contributions to the nation included his work in law. He was a founding father of American law whose jurisprudence greatly influenced early American constitutionalism. Scholars generally regard Hamilton as a relentless defender of strong central government, but Brown makes the case for Hamilton’s more balanced federalism and his introduction of the doctrine of corresponding powers. Although he regarded law as an instrument of republican statecraft and is rightly known for his public lawmaking role, Hamilton was also an accomplished courtroom advocate with a large practice. Brown’s work will restore Hamilton to the place he occupied in the history of American law.”
—Peter Charles Hoffer, author of Rutgers v. Waddington: Alexander Hamilton, the End of the War for Independence, and the Origins of Judicial Review
Professor Brown discusses her book here.

Davis Center fellowships

The Shelby Cullom Davis Center at Princeton's History department will feature the theme, "Law & Legalities" for the coming two academic years. Applications for one- and two-semester fellowships are due on Dec.1, 2017:

This two-year seminar will bring together visiting scholars working on law in societies around the world and throughout human history, on topics including (but not restricted to) state administration, gender and sexuality, race, religion, property, science, environment, technology, war, migration, commerce, medicine, disability, incarceration, and human rights. How have legal, illegal, quasi-legal, and extra-legal forms of social order interacted in different periods and places? We will consider the historical possibilities and predicaments that have emerged within legal and juridical systems (both ‘hard’ and ‘soft’), as well as the conflicts that have arisen from the overlapping jurisdictions of custom, community, religion, nation-state, empire, and international bodies. 
Fellowships are awarded to employed scholars who are expected to return to their position.  Verification of employment and salary will be requested prior to approval by the Dean of the Faculty.  PhD required.  To apply for a visiting position, please link to: The deadline for receipt of applications and letters of recommendation for fellowships for 2018/2019 is December 1, 2017, 11:59 p.m. EST. Applicants must apply online and submit a CV, cover letter, research proposal, abstract of proposal, and contact information for three references. 
Further information is available here and here.

Sunday, August 20, 2017

Sunday Book Review Roundup

In the The Atlantic is a review of Lincoln Mullen's The Chance of Salvation: A History of Conversion in America.  

Svetlana Alexievich's "magnificent and harrowing" The Unwomanly Face of War: An Oral History of Women in World War II is reviewed in both The Atlantic and The New York Times.

In addition to being reviewed in this week's New York Times, Nancy MacLean's Democracy in Chains: The Deep History of the Radical Right's Stealth Plan for America is reviewed twice in the Boston Review.  Bethany Moreton calls MacLean's work is "indispensable reading" that "adds a critical storyline to the complex and multi-causal conservative counterrevolution." The work joins a growing body of scholarship that seeks to "clothe the neoliberal intellectual apparatus in three-dimensional historical specificity" and, in particular, richly historicizes the particular milieu from which James M. Buchanan's public choice school of political economy emerged -- i.e., the fight against voting rights and desegregation.  The result is a work that does much to illuminate the sources of the "unrelenting assaults on political institutions" that have characterized a great deal of the politics of the neoliberal present.  In the wake of Charlottesville, the second review points to her work's especial value as a chronicle of "the long gestation period of the current upsurge of white supremacist and anti-democratic sentiment."

At the New Books Network Maurice Samuels speaks about his The Right To Difference: French Universalism and the Jews.  Also on the site, Betty S. Anderson discusses her A History of the Modern Middle East and over one million other books are available for Amazon Kindle. Learn more A History of the Modern Middle East: Rulers, Rebels, and Rogues.

Intellectual theorist and historian Mark Lilla's The Once and Future Liberal: After Identity Politics seems to be attracting significant attention is reviewed in both The Washington Post and The New York Times.  (Lilla is also interviewed by NPR.)

Ibram X. Kendi's Stamped from the Beginning: The Definitive History of Racist Ideas in America is reviewed in the New Statesman.  Also reviewed in the publication is John Lloyd's The Power and the Story: The Global Battle for News and Information.

In the Los Angeles Review of Books is a review of Keri Leigh Merritt's Masterless Men: Poor Whites and Slavery in the Antebellum South. Meritt "makes creative use of a wide range of other sources, including county court cases, coroner’s reports, jail records, Civil War veterans’ questionnaires, slave narratives, and accounts written by travelers, abolitionists, and slaveholders" in order to plumb the history of poor, antebellum whites.  In so doing, her work shows the path travelled by poor Southern whites from "pariahs" to their inclusion "into the system of white privilege," a path that was neither "ever-present nor inevitable."

In the London Review of Books is a review of Thomas Laquer's The Work of the Dead: A Cultural History of Mortal Remains.

Yuri Slezkine's The House of Government: A Saga of the Russian Revolution is reviewed in both the Los Angeles Review of Books and the The New York Times.  Slezkine's history of the Bolshevik House of Government and the millenarianism of the larger Russian Revolution is ultimately, says the NYT's review, a narrative exploration of "the possibilities and limits of social engineering."

At Public Books is a review of Leigh Eric Schmidt's Village Atheists: How America’s Unbelievers Made Their Way in a Godly Nation.  Also reviewed at Public Books is Peter Dauvergne's Environmentalism of the Rich.

Herb Boyd's Black Detroit: A People's History of Self-Determination is reviewed in the Chicago Tribune.

Saturday, August 19, 2017

Weekend Roundup

  • A statue of Clarence Darrow has just gone up in the county courthouse in Dayton, Tennessee, where it joins one of William Jennings Bryan. 
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.