Postema's Edition of Hale's Jurisprudential Writings

Out this month from the Oxford University Press is Matthew Hale: On the Law of Nature, Reason, and Common Law: Selected Jurisprudential Writings, edited by Gerald J. Postema, University of North Carolina:

Lawyer, judge, public figure, historian, theologian, and amateur natural philosopher, Sir Matthew Hale worked and wrote in the middle decades of the seventeenth century, perhaps the most turbulent period of English political history. His reflections on reason, law, and political authority, unpublished in his lifetime, are collected in this volume. It sets Hale's previously unpublished Treatise on the Nature of Laws in General and touching the Law of Nature and his "Reflections on Mr Hobbes his Dialogue of the Laws" in context of other key works of legal and constitutional theory. The Treatise reveals a complex general understanding of law and of moral and legal reasoning. "Reflections" brings these general considerations to bear on English law, in his critical response to Hobbes's all-out attack on common-law jurisprudence. "Reflections" suggests a conception of judicial reasoning, and a view of political authority, that deepens the view Hale defends in the longer and more systematic work. His views on practical reasoning are elaborated and related explicitly to the discipline of law in his "Preface to Rolle's Abridgement" and in parts of his History of the Common Law. In the Treatise, Hale argues that human law is necessarily instituted in the practices and customs of specific communities, manifesting their consent; this view is enriched and deepened in the History and "Considerations touching Amendment of the Law". His views on the foundations of political authority, sounded in the Treatise, are argued at length in Prerogatives of the King and "Reflections". "Reflections" argues for necessary legal limits of ruling power and Prerogatives offers a systematic discussion of the nature and limits of political authority. Taken together, these writings offer a rich and subtle articulation of a classical common-law understanding of law, reason and authority.

Gerald J. Postema present these seminal writings in a modernized text for readers from philosophy, law, political theory, or intellectual history. He contributes an extended introduction setting out the theoretical and historical context of the works.

Here’s the TOC:

Editor's Introduction
I. Treatise of the Nature of Laws in General and touching the Law of Nature
II. The History of the Common Law of England
III. Preface to Rolle's Abridgment
IV. Considerations touching the Amendment or Alteration of Laws
V. Reflections on Mr Hobbes his Dialogue of the Laws
VI. Prerogatives of the King
VII. Jurisdiction of the Lords House or Parliament

Rethinking the Role of State Courts in the Lives of Black Southerners: What I've Learned

I've very much appreciated the opportunity to blog about the research in my new book Litigating Across the Color Line this month. Today, on my final day of blogging here, I thought I would reflect on some of the things that I have noticed and learned about black southerners’ participation in civil cases in state courts during this project.

1) Shifts in Legal Rights Were Aligned with Voting

There was no sudden shift in what appellate civil cases between black and white southerners looked like as Reconstruction gradually ended in southern states. Instead, the shifts seem to be aligned to some extent with voting rights. The types of cases black litigants could participate in became much more narrow at the end of the 19th century as disfranchisement set in. Then, beginning in the 1920s as the Great Migration led to increases in black voting around the nation, black southerners' civil cases became much less constrained once again and began to engage a wide variety of issues. This broadening of cases continued in the 1940s as voter registration drives had some success in the U.S. South.

2) Civil Litigation continued throughout different periods, but shifted to fit the constraints of the time

Even as black southerners’ ability to litigate different kinds of civil cases in southern appellate courts widened or narrowed during different periods, African Americans continued to litigate civil cases against whites from 1865 to 1950. In other words, at no time did they actually stop interacting with state governments through the legal sphere. Instead, as their political and social constraints narrowed, they shifted the kinds of cases they litigated and how they presented themselves in their cases.

3) Black Southerners engaged with the government at multiple levels

In the cases I looked at, I found African Americans at times engaging the government at multiple levels over a single dispute– including engaging with the local, state, as well as the federal government.  The case of Henry Buie that I discussed in my blog post yesterday gives us one example of this engagement with the government at multiple levels. After his master took his mule, Henry Buie turned for assistance to the local branch of the Freedmen’s Bureau and successfully convinced them to take action in his cause. But it was not only federal power – but also state power that the freedman accessed. When his former master filed a civil suit to regain the mule, the former slave responded by hiring his own lawyer and fighting his former master’s claim in the local county court and then in the state supreme court. In this case alone, then, the suit was fought on at least three levels – before the Freedmen’s Bureau, before the local court, and before the state supreme court. In other cases, I found similar attempts to bring cases before multiple arbitrators and to attempt to pick the arbitrator that would be most sympathetic to their cause.

4) Government Institutions that seemed hostile could still be possible realms to exercise rights – if you could align your interests with the interests of those making decisions in that realm, or at least make your case seem harmless

I learned that government bodies that seem initially to be hostile to African Americans could still be institutions in which African Americans could have some success. Again and again – not only during Reconstruction, but in the two decades following as well as in the first half of the 20th century – some African Americans were able to negotiate the white-dominated southern legal system to gain decisions in their favor. To win civil cases against whites in state and county courts, black litigants often had to align their cases with whites’ interests, so that it was in the interests of the legal system to rule for them, rather than for the opposing white litigant. At the very least, they had to make it appear that ruling for them would have a net zero effect on the larger system of white supremacy. But when African Americans’ cases directly confronted the interests of larger numbers of whites in a substantial way – even when they appealed to rights such as property, they were frequently unsuccessful.

5) It was necessary to use whites to access the southern legal system and government power

In order to access government power through the courts, African Americans had to use and appeal to whites – white lawyers, white judges, white witnesses, and white jury members. Black litigants could not have litigated in southern courts without these whites. But working with whites had consequences. White lawyers limited the kinds of cases black southerners could litigate and shaped the arguments their cases could make. The important role of white witnesses in such trials also gave preference to suits in which whites agreed to testify. Moreover, black litigants’ dependence upon white juries and judges for favorable decisions at times led them to tailor their testimony and cases to their audiences, presenting themselves as more loyal or uneducated than they really were.

6) These suits were often intensely personal, involving long histories between the black and white litigants

In two-thirds of these cases during Reconstruction and about a third of cases in the two decades after Reconstruction, men and women who had been considered property now sued the very people who had owned them or their former owners’ heirs. They carried with them into court their long histories together during slavery.

7) The actions of black litigants played an important role in the outcomes

African Americans negotiated within the white-dominated courts by recognizing the interests of the people wielding power in this realm, and framing their claims to appeal to such parties. Often, black litigants had been coached by their lawyers on what to say in their testimony. But black litigants also made decisions about what to say in their testimony based on their knowledge about race relations in their communities and, at times, their understanding of relevant law and the facts of the case. Their testimony and other choices during the course of litigation often played an important role in the success of their cases.

8) Not just the usual suspects participated in civil cases. 

The final lesson I learned was that participants in the state courts went far beyond educated black men. Ordinary black men and women all played a part in the courts during the 85 years after the Civil War. During the three and a half decades after the Civil War, even the African Americans who gained a hearing of their case before a state’s highest court usually had very little formal education. Many had lived part of their lives as slaves or were the children of former slaves. In addition, in an era when white men dominated politics, almost half of these black litigants were women. Between 1865 and 1950, black women formed approximately 41 percent of African American litigants in civil cases between black and white litigants in the eight appellate courts examined.  The role of ordinary black men and women in these cases re-envisions the courts as not only a forum for test cases backed by organizations, but as a place where ordinary black and white southerners challenged each other and worked out their economic disputes against each other.

Please feel free to be in touch (contact details here) if you have any questions about my research. I will continue to release the transcripts and archival records of some key cases related to my research on my website in the coming months as well. Thank you again for the opportunity to blog here this month!

Max Planck Summer Academy for Legal History 2018: The World and the Village

[We have the following announcement.]

The Max-Planck Summer Academy for Legal History provides a selected group of highly motivated early-stage graduates, usually PhD candidates, an in-depth introduction to methods and principles of research in legal history.  The academy consists of two parts. The first part provides an introduction to the study of sources, methodological principles, as well as theoretical models and controversial research debates on basic research fields of legal history. In the second part the participants discuss the research theme and develop their own approach to the theme.  The course will take place at the Max Planck Institute for European Legal History in Frankfurt am Main, Germany.

This year’s theme [is] The World and the Village. The Global and the Local in Legal History

As an academic discipline, legal history emerged both in Europe and several other world regions in the 19th and early 20th centuries: the age of the nation-state. Research in legal history that focuses on local and regional contexts—Europe, for example—is a largely product of this heritage.  Global history, historiographic reflection and new methods in the humanities have helped to bring the complexity of local, national, regional and global relationships into the purview of legal history. Moreover, the increasing importance of supranational and transnational law make it all the more urgent from the perspective of legal studies to consider the relation between world and village.
Applicants to the 2018 Summer Academy are encouraged to present research projects that give special consideration to the connection between local and global legal discourses. 

Eligibility Requirements: (1)  Early-stage graduates (usually PhD candidates); and (2) Working knowledge of English is required; German is not a prerequisite

Application: Required documents for the application are a CV, a project summary (approx. 10 pages) and a letter of motivation.

Fees: There is no participation fee. Accommodations will be provided by the organizers. Participants, however, will be responsible for covering their travel expenses.  There will be a limited number of travel scholarships available.

Deadline: Applications are to be sent in by January 31, 2018
Contact Info:  Max Planck Institute for European Legal History, Dr. Stefanie Rüther, summeracademy@rg.mpg.de

Black Southerners' Suits Against their Former Masters: Cases and Teaching Resources

I'm back for a final week of blogging about the research in my book Litigating Across the Color Line. Today I'll be discussing the cases that I found between former slaves and their former masters and the heirs of both parties. These cases make up about two-thirds of the appellate civil cases between black and white litigants in the eight states I examined during the Reconstruction era (1865-1877) and about one-third of such appellate cases during the two decades after Reconstruction (1878-1899). These cases are a particularly rich source to examine African Americans' experiences during slavery and their shifting interactions with their former masters and mistresses after emancipation as well as an important source to examine the legal strategies that these groups used against each other in the years after emancipation.

Courtesy Mississippi Dept. of Archives & History

Cases involving former slaves and former masters are often intensely personal, with both parties testifying in court not only about their changed relations after the Civil War, but also about their decades of previous interactions with each other during slavery. Both former slaves and former masters characterized their experiences with each other during slavery in certain ways to win their suits. At times during trials, former masters argued that their former slaves were disloyal or dishonest. In contrast, some formerly enslaved men and women presented themselves as particularly hardworking or faithful. Other black litigants boldly challenged their former masters and their former masters' heirs, claiming that their former masters' heirs and executors had fraudulently taken funds directed for them or earned by them. At the same time, former slaves and former masters (and their heirs) both frequently drew on their long-term knowledge of each other to gain the advantage in their suits. Former slaves noted in their testimony conversations and experiences that they had had with their former masters to support their legal claims. Meanwhile, former slaveholders sometimes used their previous experiences with the black litigants to try to hurt former slaves' reputations.

In a number of cases, former slaves challenged their former masters' wills. At times, they asserted that bequests to send them to Liberia could be received without such migration. In the 1872 Missisippi case of Cowan v. Stamps a slaveholder named Abner Cowan had written a will in 1850 that directed that all of his slaves and their "increase" be sent to Africa after his death. According to the will, all of his property should be sold after his death to pay for their travel and any remaining funds were to be given to his former slaves for their "use and benefit" upon "their arrival on that Continent." However, Abner Cowan did not die until the end of 1864 and at the time, the area of Missisippi in which he lived was a no-man's land between Union and Confederate forces, making it impossible to initiate probate proceedings. After the war, about 30 of his former slaves became litigants in the civil action over his will and claimed that they should be able to receive the proceeds of his estate without immigrating to Liberia.

In other cases, former slaves challenged their former masters' ability to control them or their property after the war. In the 1869 North Carolina case of Buie v. Parker, Henry Buie had found a mule that had been abandoned by General Sherman's forces during the last months of the Civil War. At the time that he found the mule, his master had recently fled before the Union Forces, telling his slaves that "they could go to the Yankees or stay at home, as they pleased." Henry Buie remained on his former master's plantation, but when his master eventually returned after the war's end, he insisted on keeping the mule for himself. He continued working on the same plantation, though, now as paid labor. Matters came to a head sometime between the end of 1865 and the beginning of 1868, when Henry Buie's former master John Buie forcibly took possession of the mule. In response, the freedman made a claim to the local office of the Freedmen's Bureau which mobilized the Union Army to return the mule to the former slave. To try to regain the mule, his former master then filed a suit against him in the local county court. Henry Buie responded by hiring a lawyer of his own and requesting not only that he retain possession of the mule but also that the court award him "one hundred dollars damages" for his former master "taking and withholding" the mule.

In a few cases, former slaves litigated suits against their former masters claiming funds that they had earned while they had been enslaved. In the 1869 North Carolina case of Lattimore v. Dixon, Abner Lattimore claimed that his former master Thomas Dixon had stolen over $1,000 in promissory notes that he had earned as a slave through livestock trading and money lending. In a limited number of other cases, the sexual violence that enslaved women experienced played a role in ensuing litigation. The 1877 Alabama case of Potter v. Gracie revolved around whether or not Mary Gracie -- who had a son fathered by her former master -- had been her former master's "mistress" after emancipation (a piece of property hung on the answer to this question).

In some of these cases, we can see the shifts in the interactions of former slaves and former masters taking place -- and at times such shifts seem to be spurred in part by the litigation itself. During the course of the litigation with his former master, for instance, Henry Buie changed his actual name, throwing off the surname of his former master and taking on the name Henry Parker. Appealing to the memory of their former masters could be a useful tactic to win cases, therefore, but litigation itself could also shift the relations of former masters and former slaves as well.

On my website, www.melissamilewski.com, I have put up transcripts and scans of the case files of a number of cases involving former slaves and former masters (including the cases mentioned here). After the jump below are also brief excerpts from the Lattimore v. Dixon and the Cowan v. Stamps cases.

Cavanaugh on Infidels in English Legal Thought

Infidels in English Legal Thought: Conquest, Commerce and Slavery in the Common Law from Coke to Mansfield, 1603-1793, by Edward Cavanaugh, Downing College, Cambridge University published in Modern Intellectual History, is now out available online.

English common law reports are dense with ideas. Yet they remain mostly untapped by intellectual historians. This article reveals how intellectual history can engage with law and jurisprudence by following the notion that “infidels” (specifically non-Christian individuals) deserved to receive exceptional treatment within England and across the globe. The starting point is Sir Edward Coke: he suggested that infidels could be conquered and constitutionally nullified, that they could be traded with only at the discretion of the monarch, and he confirmed their incapacity to enjoy full access to the common law. This article uncovers how each of these assertions influenced the development of the imperial constitution in the seventeenth and eighteenth centuries, when it came to war, trade and slavery. Identifying each of the major moves away from Coke's prejudices, this article argues that sometimes common lawyers responded to political change, but at other times anticipated it.

Update:  The SSRN version is here.

Sugarman on Brooks: Free Access

The paper by David Sugarman, “Promoting Dialogue Between History and Socio-legal Studies: The Contribution of Christopher W. Brooks and the ‘Legal Turn’ in Early Modern English History,” which we've previously noticed, has now been published in the Journal of Law and Society, October 2017, Volume 44, Issue Supplement S1, pages S37–S60, and is available “on a free-access basis” for the next four weeks here.

Cuéllar on Three Pivotal Transitions in American Law & Society Since 1886

Mariano-Florentino Cuéllar, Stanford Law School, has posted Adaptation Nation: Three Pivotal Transitions in American Law & Society Since 1886, which is forthcoming in volume 70 of the Oklahoma Law Review:

Drawing on perspectives from administrative law as well as the study of law and development, this article analyzes three important transitions in American law and society since the Chicago Haymarket Square Riot of 1886. First, between the Haymarket Square Riot and 1950, the United States made great strides in the use and capacity of its institutions. At the outset, Americans lived in what could be reasonably described as a developing country constrained by violent labor conflicts, fragile institutions, and economic uncertainty. By the end of this period the United States was a preeminent global power making routine use of courts and agencies to resolve societal disputes. Second, in the latter half of the twentieth century and the early twenty-first century, Americans saw their country experience major demographic changes arising from the United States' distinctive approach to immigration. To implement its distinctive approach to mass immigration following the 1965 Immigration and Nationality Act amendments, the United States relied on elaborate mechanism for administrative adjudication and enforcement on a massive scale, as well as a more decentralized mechanism of regionally-based integration that could further both social cohesion and geopolitical aims. And third, the United States now faces emerging governance and regulatory challenges as technological developments involving networked computers and so-called “artificial intelligence” increasingly affect society and the nature of work. Once associated with the public contracting infrastructure used to support defense-related research and development, this transition is now catalyzing interest in regulatory and liability-related frameworks to govern the division of responsibility between human decision-makers and machine intelligence.

I reflect on some of the similarities and differences associated with these transitions. I place them in the context of related legal developments, and assess what they reveal about the United States’ historical legacies and arrangements for pluralist governance. Ultimately, an understanding of these transitions provides not only indispensable context for the United States’ early twenty-first century institutional dilemmas, but also an appreciation of how a pivotal geopolitical power adapted to forge--however imperfectly--legal arrangements incorporating norms of non-arbitrariness in different settings where law affects development.

Bamzai on Supreme Court Review of the Court of Appeals for the Armed Forces

Administrative law and federal courts mavens might want to check out the Brief of Professor Aditya Bamzai as Amicus Curiae in Support of Neither Party, Dalmazzi et al. v. United States, which Professor Bamzai has posted to SSRN:

This amicus brief in support of neither party explains why the Supreme Court lacks jurisdiction to review cases from the Court of Appeals for the Armed Forces ("CAAF"). Though called a "court" by statute, the CAAF is located for constitutional purposes within the Executive Branch and does not exercise the "judicial Power" of the United States or of any sovereign. Chief Justice Marshall's opinion in Marbury v. Madison makes it clear that this Court cannot exercise "appellate Jurisdiction" under Article III directly from an officer of the Executive Branch. There is no basis in law or logic to distinguish between a single officer (James Madison in Marbury) and a body composed of multiple officers (the CAAF), even if the latter is designated a "court" by statute. Accordingly, the Court's exercise of jurisdiction over cases directly from the CAAF violates Article III. The brief canvasses a number of precedents in this area arising from cases involving military commissions, the Court of Federal Claims, petitions for writs of habeas corpus, the Court of Customs and Patent Appeals, and administrative agencies.

Weekend Roundup

• “The Managers of the F.W. Maitland Memorial Fund are able to offer one Studentship for Home/EU, or Overseas/Islands students applying to undertake doctoral research in legal history at the University of Cambridge, starting in October 2018. Studentships are tenable in the Faculty of Law, the Faculty of History, or the Faculty of English.”  More.

• Bonnie J. Shucha, the Deputy Director of the University of Wisconsin Law Library, has posted Badger State Infamy: Wisconsin's Early Sex Trade, which appears in the Wisconsin Lawyer (October 2017): 22-26.  It “describes the early sex trade in northern Wisconsin. Alarmed by numerous newspaper reports of sex trafficking, concerned citizens pressed the governor, state legislators, and law enforcement officials to rein in the booming sex trade. Results were mixed, but the efforts in Wisconsin were only the first of many to protect vulnerable adults and children from human trafficking, attempts that continue to the present day.”

• We have word of a call for participants for Forum Precedente Law Review 2018, “Justice Crisis and Legal Education in Colombia,” on April, 12, 2018, at Icesi University, Cali, Colombia.  The full call is here.

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

Teaching Resource: Excerpts from Case File of City of Harrodsburg v. Sallee

As part of my guest blogging this month about the research in my new book Litigating Across the Color Line, I'm sharing excerpts from some of the archival case files of civil cases involving African Americans that I feature in my book. During the next few weeks, I'll also be sharing additional case file excerpts that could be used for teaching on my personal website, www.melissamilewski.com.

Today, I'm sharing an excerpt from the Kentucky case of City of Harrodsburg v. Sallee, which is

featured in Chapter 7, my chapter that examines African Americans' personal injury cases against white southerners between 1900 and 1920. You can read more about the case in my recent post on the Black Perspectives website. Here is a brief excerpt from the archival record of the case:

"City of Harrodsburg v. Sallee, 142 Ky. 829 (1911)

Courtesy Kentucky Dept. for Libraries and Archives

Petition: Rebecca Sallee Plaintiff vs. City of Harrodsburg Defendant

The Plaintiff Rebecca Sallee states that the Defendant City of Harrodsburg is a corporation duly organized under the laws of the State of Kentucky, and by the terms of its charter authorized and empowered to make contracts, to sue and be sued and to do all things necessary or pertaining to such a corporation, that by virtue of the laws under which it is incorporated the Defendant is and was at the times of the matters hereinafter complained of required to keep its side-walks and other public ways free from obstructions of every kind and in a reasonable safe condition, for the use of persons using and traveling thereon.

Plaintiff states that on the 7th day of October 1909 and for sometime prior thereto therewas, in or near the edge of the pavement on side-walk on the East side of College Street in front of lot of Chas. S. Vanarsdall a hole dug the depth of about two feet, and on the pavement was piled dirt, brick and piping making a dangerous and unsafe condition of said side-walk for the traveling public, that said obstruction were known by the defendant, its officers and agents, negligently suffered and permitted said hole and dirt heap to remain on said sidewalk for a considerable time, up to and including the night of October 7th 1909, when the injury hereinafter complained of occurred.

Plaintiff states that while said side-walk was thus obstructed to-wit, on the night of October 7th 1909, while the plaintiff was using said side-walk and was traveling thereon, from her home on Cornishville, street to the town, and without fault on the part of the Plaintiff, she stumbled over the said pile and heap of dirt, brick and piping and fell over same into the hole, whereby her limbs and body, were bruised and hurt and her back was wrenched and injured, producing thereon a large lump, and so violently wrenching, straining and spraining, plaintiff’s limbs and body, and by the shock to plaintiff’s nerves her kidneys were caused thereby to be disturbed and diseased and by reason of said fall and consequent injury as stated, plaintiff suffered great bodily pain and mental anguish, and has sustained loss of time and labor and was compelled to incur indebtedness for medical aid and attention, and her power to earn money has been permanently lessened. All of which was without the fault of plaintiff and was because of the negligence of defendant and to the damage of Plaintiff in the sum of Fifteen Hundred dollars.

Wherefore she prays judgement against the defendant for said sum of Fifteen Hundred Dollars, for her costs herein and for all proper relief.

B.F. Roach, Attorney for Plff.
______________________________________________

Official Stenographer’s Report of Testimony.

Be it remembered that on the trial of the above action at the May term 1910, of the Mercer Circuit Court, the Plaintiff testified on her own behalf and introduced witnesses on her behalf, as follows:

Rebecca Sallee, Examined by Atty for Plff.
1-Q- Where do you live?
Ans – On Cornishville pike.
2-Q- What is your age?
Ans – I was born in 1862.
3-Q- You are the wife of Jim Sallee?
Ans- Yes sir.
5-Q- And how many children have you?
Ans – Sixteen
6-Q- Where do you work?
Ans – For Mr. C.D. Thompson.
7-Q- What position did Mr. Thompson occupy in the City of Harrodsburg during last year.
Ans – He was Mayor of the City.

Keith's Thoughts on Grotius

Kenneth J. Keith, Emeritus Professor at Victoria University of Wellington, New Zealand, has posted Some Thoughts About Grotius 400 Years On, which was the Seventeenth Annual Grotius Lecture of the American Society of International Law.  It appears in the American University International Law Review 31 (2016):

The author addresses some major challenges facing the world today, by reference to the different roles Hugo Grotius played in his time, the enduring values he highlighted, the need for better implementation of the law, the importance of well designed procedures and the continuing significance of the law of nature and of nations. He concludes with the role of law in dealing with disasters.

J. Willard Hurst Prize Nominations Sought

[Submissions for the Law and Society Association’s J. Willard Hurst Prize are accepted until January 9, 2018.  Here is the announcement.]

In the spirit of Willard Hurst's own work, the Hurst Prize is given to the best work in socio-legal history. The field of socio-legal history is broadly defined to include the history of interrelationships between law and social, economic, and political change; the history of functions and impact of legal agencies, legislative and administrative as well as judicial; the social history of the legal profession; and similar topics. Self-nominations are accepted. Nominators must be current LSA members.

Textbooks, casebooks, and edited collections are not eligible for the award, but monographs will be considered. The Association seeks studies in legal history that explore the relationship between law and society or illuminate the use, function, and cultural meaning of law and society. The Association discourages submission of purely doctrinal studies in the evolution of appellate case law.

The responsibility of ensuring that a work is submitted for the most appropriate book prize rests with the nominator. As a rule of thumb, books that have a significant historical focus should be directed to the Hurst Prize, while other works of socio-legal scholarship should be directed to the Jacob Prize.  A book submitted for both prizes may end up being considered for neither.
The award carries a cash prize of $500.

Nominations require:

Nominators must be current LSA members.
Books must be published in English, or be English translations of original works.
Books submitted must have a copyright date (regardless of actual publication dates) during the calendar year prior to the award ceremony.
Page proofs may be sent if the book will be published soon with the proper year’s date.
Only one single-authored work by the same author in a given year will be accepted. Two works by the same author will be accepted if one or both works are jointly authored.
A letter of support from the nominator, including a synopsis of the book.
Self-nominations are accepted.

Copies of the book are required to be sent directly to the J. Willard Hurst Book Prize Committee Members. Addresses will be provided after the nomination is submitted.

All supporting documents must be submitted in English and be in .DOC, .RTF, or .PDF format.

Committee members may live in other countries. Please take this into consideration for shipping time.  All committee members must receive books by January 9th, 2018 to be considered.

Teaching Resource: Excerpts from case file of Leonard v. Roebuck

As part of my guest blogging this month about the research in my new book Litigating Across the Color Line, I wanted to share excerpts from some of the archival case files of civil cases involving black litigants that I feature in my book. On my personal website, www.melissamilewski.com, I'll also be sharing more case file excerpts in the next few weeks that could be used alongside my book for teaching.

Courtesy Alabama Dept. of Archives & History

Today, I'm sharing an excerpt from the Alabama case of Leonard v. Roebuck (1907), which is featured in Chapter 6, my chapter examining African Americans' fraud cases against white southerners between 1900 and 1920. After inheriting 80 acres of land from her father, the plaintiff, Lurena Roebuck, encountered a series of threats to her land. One morning in 1906, while she was still trying to fend off local whites' claims to her land, a white saloon owner named John Leonard came to her house and tried to buy 20 acres that were in dispute. Eventually he pressured her into signing a document selling the land. However, Roebuck remained unsatisfied with the transaction and soon consulted a white lawyer. He discovered that the document she had signed had transferred all 80 of her acres to the white saloon owner. In response, Roebuck brought a civil case against the white saloon owner, alleging fraud. In her testimony, Roebuck emphasized her lack of business understanding, seemingly to strengthen her legal claims of fraud. At the same time, she asserted her legal rights and her ideas of economic justice. Here are excerpts from her testimony in the trial proceedings:

"Lurener Roebuck v. John F. Leonard ) In Chancery in Birmingham, Ala.

Testimony taken before the Register 11/17/1906.
Lurener Roebuck, being first duly sworn testified:
I am the complainant in this cause and am 22 years of age and reside in Jefferson County, Alabama. Mr. John F. Leonard, the respondent, is over the age of 21 years of age and resides in Jefferson County, Alabama. I live about a mile and a half in the Country above East Lake. I was living there on and prior to the 30th day of May, 1906. Prior to that date I was the owner of the NE 1/4 of the SE 1/4 and the SE 1/4 of the SE 1/4, Sec.30, Tp. 17, R. 1 West, in Jefferson County, Alabama. I am the only child of Jackson Ellard, deceased. He owned the land in his life time; he entered it. I know Mr. John F. Leonard. On the 30th day of May, 1906, he came out to my house to see me. He came to my house at about 11 A.M. on that day and asked me would I sell him my claim in 20 acres of land that Mr. Dougherty was in possession; I told him I did not know what about it; that I did not want to sell it; and he said that makes no difference he wanted to buy it; that Mr. Dougherty sent him out there. I told him that I did not know anything about it; that my uncle was attending to it, and he said that Mr. Dougherty said he had already seen my uncle about it and he said it would be all right. I told him I didn’t want to sell it unless I could see my uncle. And he said, Oh well I want to buy it, and Mr. Dougherty sent me out here; and he said that he would give me $10.00 down then if I would sell it. He said that if it was not agreeable to my husband that he would give me the money back; I told him that I did not want to take that, and he told me to take it anyhow and me and my husband could come into town and sign that I was willing to take it. He went ahead and gave me $10.00 and told me to sign my name that he had paid me ten dollars, and I signed my name and he told me then to come into town and get the rest of the money if my husband was willing to it.

When we came into town he was not willing to take that for it, and I offered him the money back and he agreed to give $35.00, and paid $5.00 that day, and I came back and he paid me the other $20.00; he paid me in all $35.00. I told him that I was not satisfied with it. He says well you have got to be; I have got the whole forty now. I told him I did not sell but 20 acres. He did not ask me to sell him but 20 acres. Mamma told him that she had something to say in it, and she was going to see if she could not get it back. He said all right that he had done bought it and had the whole thing. We come on away then and left him alone.

We then come to see Mr. Terry about it. He told me he would do all he could for me. He said he would come over here and see how much the deed was for. (Objection by Mr. Vary to what Mr. Terry said on ground that it is hearsay evidence, and that it is irrelevant and immaterial and because the witness W.K. Terry is here to testify himself.) Mr. Terry came back and wrote to me that the deed called for 80 acres. (Objected to on ground that it is not responsive to the question.)

I went back to Mr. Leonard and told him I would give him his money back. Before that time I thought I had sold him 20 acres. Before I went to Mr. Terry’s office I did not know that I had deed him more that 20 acres. After I found out that I had deeded him more than 20 acres, I went to see Mr. Leonard when I came back to town, after receiving a letter from Mr. Terry. I told him that he had got the whole 80 and I did not know I was deeding him the whole 80. He said, “Well you have.” I asked him then would he give me the land back and take his money and he said “No. if I lose, I lose.” that he would not take the money back. I told him I wanted him to take it back, or I would try the law about it, and he said for me to tell my lawyer to pop his whip. I told him all right. Then I left. I told him I would give him back the money, but I did not have it with me at that time. He said he did not want it.

I am colored. I have never had any experience in business affairs. I know nothing about land numbers. I do not know how many acres of land there are in quarter sections. Mr. Leonard read that deed over to me. When he read it over to me, I did not know how many acres there were in the deed. He said 20 acres. Mr. Leonard said that he was buying the 20 acres that Mr. Dougherty was in possession of. I relied on what Mr. Leonard told me. I sold it to him for 20 acres because he told me it was 20 acres. That land is worth $30.00 per acre. The 30th of May, 1906, it was worth $30.00 an acre..."*

For more of the case to use for research and teaching, see an extended excerpt and scans of several pages of the case (provided with the permission of the Alabama Department of Archives & History) on my personal website, www.melissamilewski.com.

*Leonard v. Roebuck, 152 Ala. 312 (1907). The full archival case file is located in the Alabama Department of Archives & History, Montgomery, Alabama.

Ignace & Ignace, "Secwepemc People, Land, and Laws"

New from McGill-Queen's University Press: Secwepemc People, Land, and Laws: Yeri7 re Stsq'ey's-kucw (2017), by Marianne Ignace (Simon Fraser University) and Ronald E. Ignace (Simon Fraser University). A description from the Press:

Secwépemc People, Land, and Laws is a journey through the 10,000-year history of the Interior Plateau nation in British Columbia. Told through the lens of past and present Indigenous storytellers, this volume detail how a homeland has shaped Secwépemc existence while the Secwépemc have in turn shaped their homeland.

Marianne Ignace and Ronald Ignace, with contributions from ethnobotanist Nancy Turner, archaeologist Mike Rousseau, and geographer Ken Favrholdt, compellingly weave together Secwépemc narratives about ancestors’ deeds. They demonstrate how these stories are the manifestation of Indigenous laws (stsq'ey') for social and moral conduct among humans and all sentient beings on the land, and for social and political relations within the nation and with outsiders. Breathing new life into stories about past transformations, the authors place these narratives in dialogue with written historical sources and knowledge from archaeology, ethnography, linguistics, earth science, and ethnobiology. In addition to a wealth of detail about Secwépemc land stewardship, the social and political order, and spiritual concepts and relations embedded in the Indigenous language, the book shows how between the mid-1800s and 1920s the Secwépemc people resisted devastating oppression and the theft of their land, and fought to retain political autonomy while tenaciously maintaining a connection with their homeland, ancestors, and laws.

An exemplary work in collaboration, Secwépemc People, Land, and Laws points to the ways in which Indigenous laws and traditions can guide present and future social and political process among the Secwépemc and with settler society.

An advance review:

“I couldn’t put this book down! A masterpiece of multidisciplinary research on the Secwépemc Nation's history from the Ice Age to the present, science and archival records serve to back up the volume’s primary source of knowledge, the oral narratives and shared memories of the Secwépemc people. These accounts go deeper than science, to the moral lessons of how the humans and the land we live on should relate to each other. Only the Ignaces could write a book of this magnitude, based on their lifetimes of research while living Secwépemc lives as well.” -- Leanne Hinton

More information is available here.

OAH CFP: “The Work of Freedom”

[The CFP for the annual meeting of the Organization of American Historians is out, with submissions opening on Monday, November 27. The theme is The Work of Freedom.]

From the historical profession's beginnings in the late 19th and early 20th century, freedom has been a dominant theme in research, writing, and public debates on the shape, content, and character of the American experience. Over a century of scholarship and popular discussions have illuminated topics such as the diverse struggles for freedom, the denial of freedom, the limits of freedom, the prospects of freedom, the sources of freedom, the obligations of freedom, the value of freedom, the geographies of freedom, and the meaning of freedom, to name several. Marking the 400th Anniversary of the arrival of the first enslaved Africans in British North America, the theme of this program shifts the lens to the "Work of Freedom." It aims to capture the labor(s) involved in identifying and securing freedom, from the colonial era and founding of the Republic through the recent election of Donald J. Trump President of the United States.

The program committee encourages proposals focusing on research, teaching, and public education that address our theme as creatively and as broadly as possible. Our theme opens up opportunities for scholars working across a variety of temporal, geographical, thematic, and topical areas in colonial North American and U.S. history. We are interested in proposals that probe the theme within the traditional fields of economic, political, diplomatic, intellectual, and cultural history; the established fields of urban, race, ethnic, labor, and women's/gender history as well as southern, Appalachian, and western history; and the rapidly expanding fields of sexuality, LBGT, and queer history; environmental and public history; carceral state studies; and transnational and global studies across all fields, topics, and thematic emphases.

Moreover, we hope to take advantage of our meeting in Philadelphia, an iconic setting for struggles and debates over the question of freedom, to encourage proposals that explore the interplay of freedom's work on behalf of African Americans, the poor, workers, and other disfranchised and structurally marginalized groups since people from Africa embarked upon their journey in Jamestown four centuries ago. The committee also welcomes panels, workshops, and roundtables that employ new methodologies, particularly digital humanities technology, that transcend traditional disciplinary and geographic boundaries. Finally, the 2019 Program Committee will reinforce the OAH's ongoing commitment to diversity and inclusion along myriad lines of difference and historic inequality, including ethnic/racial, gender/sexuality, and institutional affiliation, research/teaching, among others.

[The full call is here.]

Renew Your ASLH Membership

We received an email from Cambridge University Press announcing “a brand new online platform” for members of the American Society for Legal History to renew their memberships.  "Because of this change, all current ASLH members will need to register on the new site and set up a new log in profile before renewing for 2018.  You will only need to do this once."  Don’t wait; renew or join now!

Karekwaivanane on Law & Politics in Zimbabwe

Zimbabwe is in the news, and George Karekwaivanane, University of Edinburgh has come out with The Struggle over State Power in Zimbabwe: Law and Politics since 1950. From Cambridge University Press:

The establishment of legal institutions was a key part of the process of state construction in Africa, and these institutions have played a crucial role in the projection of state authority across space. This is especially the case in colonial and postcolonial Zimbabwe. George Karekwaivanane offers a unique long-term study of law and politics in Zimbabwe, which examines how the law was used in the constitution and contestation of state power across the late-colonial and postcolonial periods. Through this, he offers insight on recent debates about judicial independence, adherence to human rights, and the observation of the rule of law in contemporary Zimbabwean politics. The book sheds light on the prominent place that law has assumed in Zimbabwe's recent political struggles for those researching the history of the state and power in Southern Africa. It also carries forward important debates on the role of law in state-making, and will also appeal to those interested in African legal history.

 Praise for the book:

This dense and powerful book reminds us that independence and majority rule (and democratization and neoliberalism) are not breaks with the past but the result of the past, and past struggles over rights and with rights - who has them, who can act on them, and who can articulate them. -Luise White

Table of Contents after the jump.

Tani on the History of Title IX Enforcement

My fellow LHB blogger Karen M. Tani, University of California, Berkeley, has posted An Administrative Right to Be Free from Sexual Violence? Title IX Enforcement in Historical and Institutional Perspective, which appears in the Duke Law Journal 66 (2017): 1847-1903:

One of the most controversial administrative actions in recent years is the U.S. Department of Education’s campaign against sexual assault on college campuses. Using its authority under Title IX of the Education Amendments of 1972 (mandating nondiscrimination on the basis of sex in all educational programs and activities receiving federal funds), the Department’s Office for Civil Rights (OCR) has launched an enforcement effort that critics denounce as aggressive, manipulative, and corrosive of individual liberties. Missing from the commentary is a historically informed understanding of why this administrative campaign unfolded as it did. This Essay offers crucial context by reminding readers that freedom from sexual violence was once celebrated as a national civil right—upon the enactment of the Violence Against Women Act of 1994—but then lost that status in a 5–4 decision by the U.S. Supreme Court. OCR’s recent campaign reflects a legal and political landscape in which at least some potential victims of sexual violence had come to feel rightfully connected to the institutions of the federal government, and then became righteously outraged by the endurance of such violence in their communities. OCR’s campaign also reflects the unique role of federal administrative agencies in this landscape. Thanks to the power of the purse and the conditions that Congress has attached to funding streams, agencies enjoy a powerful form of jurisdiction over particular spaces and institutions. Attempts to harness this jurisdiction in service of aspirational rights claims should not surprise us; indeed, we should expect such efforts to continue. Building on this insight, the Essay concludes with a research agenda for other scholars seeking to understand and evaluate OCR’s handiwork.

H/t: Legal Theory Blog

Call for Blog Posts: The State of U.S. Democracy

Process, the blog of the Organization of American Historian, is calling for submissions on the theme of the State of U.S. Democracy (January 2018).  “We accept pitches from anyone actively engaged in the practice of U.S. history, including researchers, teachers, graduate students, archivists, curators, public historians, digital scholars, and others..... This series will be open to a variety of topics, including voter suppression; gerrymandering, electoral fraud, and other voting-related matters; the enduring effects of Citizens United; the abrogation of constitutional norms within the three branches of government; the influence of private interest groups in state and federal law making; and other related topics.  Submissions and pitches should be sent to blog@oah.org."

Zeitlow's "Forgotten Emancipator"

Rebecca E. Zietlow, University of Toledo College of Law, has published The Forgotten Emancipator: James Mitchell Ashley and the Ideological Origins of Reconstruction, in the series Cambridge Historical Studies in American Law and Society, edited by Christopher L. Tomlins, University of California-Berkeley.

Congressman James M. Ashley, a member of the House of Representatives from 1858 to 1868, and was the main sponsor of the Thirteenth Amendment to the American Constitution, which declared the institution of slavery unconstitutional. Rebecca E. Zietlow uses Ashley's life as a unique lens through which to explore the ideological origins of Reconstruction and the constitutional changes of this era. Zietlow recounts how Ashley and his antislavery allies shared an egalitarian free labor ideology that was influenced by the political antislavery movement and the nascent labor movement - a vision that conflicted directly with the institution of slavery. Ashley's story sheds important light on the meaning and power of popular constitutionalism: how the constitution is interpreted outside of the courts and the power that citizens and their elected officials can have in enacting legal change. The book shows how Reconstruction not only expanded racial equality but also transformed the rights of workers throughout America.

Here are two, rather weighty endorsements:

Rebecca E. Zietlow is right - James M. Ashley has been all but forgotten and deserves to be remembered. Thanks to Zietlow, we can now appreciate Ashley's pivotal role in the pre-Civil War struggle against slavery, abolition during the war, and the battle for black rights during Reconstruction. But she also emphasizes his commitment to the rights of all labourers, and we would benefit today from recalling his vision of a 'free labour' society of equals. 

Eric Foner, Columbia University

James M. Ashley spent decades of the nineteenth century crusading against slavery, discrimination, and labor injustice - positions in absolute harmony with one another, as the author Rebecca E. Zietlow deftly shows. This readable biography reveals Ashley in his heroism, defeat, and contradictions. More than that, it illuminates the challenges that any old-line egalitarian faced in a modern, industrializing world. In Zietlow’s able hands, Ashley’s life becomes as significant for our present era as it was for his own.

Michael Vorenberg, Brown University

Gillmer, "Slavery and Freedom in Texas"

New from the University of Georgia Press: Slavery and Freedom in Texas: Stories from the Courtroom, 1821–1871, by Jason A. Gillmer (Gonzaga University). A description from the Press:

In these absorbing accounts of five court cases, Jason A. Gillmer offers intimate glimpses into Texas society in the time of slavery. Each story unfolds along boundaries—between men and women, slave and free, black and white, rich and poor, old and young—as rigid social orders are upset in ways that drive people into the courtroom. 

One case involves a settler in a rural county along the Colorado River, his thirty-year relationship with an enslaved woman, and the claims of their children as heirs. A case in East Texas arose after an owner refused to pay an overseer who had shot one of her slaves. Another case details how a free family of color carved out a life in the sparsely populated marshland of Southeast Texas, only to lose it all as waves of new settlers “civilized” the county. An enslaved woman in Galveston who was set free in her owner’s will—and who got an uncommon level of support from her attorneys—is the subject of another case. In a Central Texas community, as another case recounts, citizens forced a Choctaw native into court in an effort to gain freedom for his slave, a woman who easily “passed” as white. 

The cases considered here include Gaines v. Thomas, Clark v. Honey, Brady v. Price, State v. Ashworth, and Webster v. Heard. All of them pitted communal attitudes and values against the exigencies of daily life in an often harsh place. Here are real people in their own words, as gathered from trial records, various legal documents, and many other sources. People of many colors, from diverse backgrounds, weave their way in and out of the narratives. We come to know what mattered most to them—and where those personal concerns stood before the law.

A few blurbs:

“In Slavery and Freedom in Texas, Jason Gillmer’s riveting narratives of five nineteenth-century trials paint a cumulative portrait of an open frontier’s uneasy transition to a slave society, revealing the contingencies of slavery and freedom alongside the resilience of race and racism. Beautifully crafted, deeply moving, and alive with insights into law’s power to define family, community, and nation, Gillmer’s stories will transport readers to another Texas.”—Daniel J. Sharfstein 

“Writing about slavery from the ‘inside’—what it was like to be a slave—is of course impossible for anyone who did not experience enslavement, but historians must wrestle with the subject the best that they can. Jason Gillmer’s Slavery and Freedom in Texas offers insights on the ‘inside’ lives of the enslaved drawn from the sources of legal history. Although those who dealt with slavery in the courtroom were concerned first with issues such as property rights and criminal justice, their actions revealed the numerous ways that the institution of human bondage created suffering for the individuals who had to endure it. Gillmer’s work is an outstanding contribution to the understanding of slavery in Texas.” —Randolph B. Campbell

More information is available here.

Carrington on Southern Judges on the Emancipation Proclamation

 We received an advance alert from the Oxford University Press for Adam M. Carrington’s Running the Robed Gauntlet: Southern State Courts’ Interpretation of the Emancipation Proclamation, to appear in a forthcoming volume of the American Journal of Legal History:

At the time of its issuance, Lincoln’s Emancipation Proclamation received consistent objections to its legality. Nowhere did these objections concern Lincoln more than from the judicial branch, resulting in the Thirteenth Amendment’s passage. Though the Supreme Court never directly took up the proclamation, this paper examines one group that did: Southern Reconstruction-Era state courts. While much literature exists on the Emancipation Proclamation, little examines how the judiciary, much less these courts, interpreted the document. These cases arose regarding payments for slave contracts made after January 1st, 1863 and before the Thirteenth Amendment’s ratification in December 1865. I show how these judges generally agreed on slavery’s status in peacetime and in places the proclamation excluded. However, three distinct positions arose regarding the proclamation’s legality elsewhere, positions grounded in the judges’ understanding of secession and the war powers of the national government as well as the president. This paper examines and compares these three positions in detail, explaining how some declared the proclamation illegal, some considered it legal while changing its substance, and a final group upheld the document as written. This paper shows Lincoln’s concerns about the judiciary to be well founded while also speaking to contemporary debates over war powers.

Law & Social Inquiry Fall 2017

The Fall 2017 issue of Law & Social Inquiry is out. Of particular interest: a symposium on LHB blogger Mitra Sharafi's Law and Identity in Colonial South Asia (Cambridge University Press, 2014):

Law and Identity in Colonial South Asia (pages 1210–1214)
Bhavani Raman 

Women's Rights Issues Among Bombay Parsis: A Legal Anthropologist's Thoughts on Mitra Sharafi's Law and Identity in Colonial South Asia (pages 1215–1223)
Sylvia Vatuk 

Loyal Opposition: Minorities and State Law (pages 1224–1230)
Assaf Likhovski 

“Going to Law”: Reflections on Law, Religion, and Mitra Sharafi's Law and Identity in Colonial South Asia (pages 1231–1239)
Winnifred Fallers Sullivan 

Hijacking Law (pages 1240–1247)
Mitra Sharafi

Another item of interest is Evelyn Atkinson's article "Creating the Reasonable Child: Risk, Responsibility, and the Attractive Nuisance Doctrine."

Raoul Berger-Mark DeWolfe Howe Legal History Fellowship

[We have the following announcement.]

Harvard Law School invites applications for the Berger-Howe Fellowship for the academic year 2018-2019.  Eligible applicants include those who have a first law degree, who have completed the required coursework for a doctorate, or who have recently been awarded a doctoral degree. A J.D. is preferred, but not required.  The purpose of the fellowship is to enable the fellow to complete a major piece of writing in the field of legal history, broadly defined. There are no limitations as to geographical area or time period.

Fellows are expected to spend the majority of their time on their own research. They also help coordinate the Harvard Law School Legal History Colloquium, which meets four or five times each semester. Fellows are invited to present their own work at the colloquium. Fellows will be required to be in residence at the law school during the academic year (September through May).

Applicants for the fellowship for 2018-2019 should submit their applications and supporting materials electronically to Professor Bruce H. Mann.

Applications should outline briefly the fellow’s proposed project (no more than five typewritten pages) and include a writing sample and a curriculum vitae that gives the applicant’s educational background, publications, works in progress, and other relevant experience, accompanied by official transcripts of all academic work done at the graduate level. The applicant should arrange for two academic references to be submitted electronically. The transcripts may be sent by regular mail to Professor Mann at Harvard Law School, Cambridge, Massachusetts 02138.

The deadline for applications is February 15, 2018, and announcement of the award will be made by March 15, 2018.  The fellow selected will be awarded a stipend of $38,000.

[A list of Berger-Howe Fellows is here.]

Sunday Book Review Roundup

This week, reviewers are taking advantage of the centennial of the Russian revolution to look at some important books on the subject. So if you’re interested in Russia, but worried about disclosure requirements, check out this week’s reviews.

In the NYRB, Ben Nathans reviews The House of Government: A Saga of the Russian Revolution by Yuri Slezkine, who argues, according to Nathans, that “Bolsheviks displayed the particular form of religious fervor associated with millenarian sects, namely the desire to eradicate ‘private property and the family as the most powerful and mutually reinforcing sources of inequality,’ and applies an “intoxicating” framework in which Capitalism is “Babylon,” the Bolsheviks are “the preachers,” Marxism-Leninism is “the faith,” agitation and propaganda are called “missionary work,” and the end of tsarist Russia becomes “the end of the world.”

The LA Review of Books, like it’s New York counterpart, is looking at histories of the Russia and the Soviet Union. Douglas Smith covers Laura Engelstein’s

Russia in Flames: War, Revolution, Civil War, 1914–1921, which is “likely to become a standard work” on Revolutionary Russia, and Anne Applebaum’s Red Famine: Stalin’s War on Ukraine, the “definitive history of Stalin’s famine” and its impact on Ukranian nationhood. Paul Delany also takes on two books by oral historian Svetlana Alexievich’--The Unwomanly Face of War An Oral History of Women in World War II and Boys in Zinc, which is about the Soviet war in Afghanistan. Evan Burkin reviews Lost Kingdom: The Quest for Empire and the Making of the Russian Nation, Serhii Plokhy’s history of ethnicity and Russian identity in Eastern Europe.

Mark Mazower covers Polkhy, Slezkhine and Masha Gessen in his Guardian review of new histories of the Russian Revolution. The BBC collects personal histories of the Russian revolution.

Some reviewers, of course, avoid contact with the Russians: In LARB, Darryl Holter also reviews Grown-Up Anger: The Connected Mysteries of Bob Dylan, Woody Guthrie, and the Calumet Massacre of 1913, Daniel Wolff’s “comprehensive history of copper mining in the Upper Peninsula” and reflection on Bob Dylan’s relationship with folk music and perpetual reinvention. In the Guardian, Maya Jasanoff reviews Victorious Century by David Cannadine review, “a sparkling history of 19th-century Britain.”

In the NYRB, Judge Jed Rakoff reviews Judge Jon O. Newman’s memoir, which is entitled Benched: Abortion, Terrorists, Drones, Crooks, Supreme Court, Kennedy, Nixon, Demi Moore, and Other Tales from the Life of a Federal Judge.  Newman's memoir, according to Rakoff, has a “certain insider quality that may limit its accessibility” but may be of interest to historians of 20th Century America or court-watchers in general. And also in the NYRB (but like Rakoff’s article, behind a paywall), is Sam Tanenhaus’s review of several new takes on the Conservative movement and its history, including historian Nicole Hemmer’s Messengers of the Right.

Historians of the American Empire--or the executive--will be interested in the NY Times’ review of President McKinley: Architect of the American Century, Robert W. Merry’s “measured and insightful” biography of the President. Merry argues that McKinley, not Roosevelt, was “actually was responsible for America’s new role in the world.” Executive power and personality are also at play in Lioness: Golda Meir and the Nation of Israel by Francine Klagsbrun. According to the New York Times, Klagsbrun, a purveyor of the growing “Golda rethink,” “wrests Meir from the shadow of the Yom Kippur War and presents her life and career as a lens to examine Israel’s challenges.”

Also in The Times, Gary Bass reviews The Future of War: A History, Lawrence Freedman’s “eclectic” survey of British and American strategic thinking for the past several centuries. Historians of international law may be interested. Freedman was a Privy Council of the United Kingdom and participated in the Iraq Inquiry in 2009, is “sobered by the ferocity of nationalist passions,” and “wary of idealistic efforts to criminalize warfare and supplant power politics with international law.”

In the Wall St. Journal, but behind a paywall, are several reviews of interest. Kathleen Duval on Russell Shorto’s Revolution Song, A. Roger Ekirch on Diana Preston’s Paradise in Chains: The Bounty Mutiny and the Founding of Australia, and Ben Leubsdorf on the Turnerian frontier thesis.

The New Books Network features reorded interviews with historians and scholars about new books. This week, check out reviews of Pamela Swett’s Selling under the Swastika: Advertising and Commercial Culture in Nazi Germany; Stephanie Hinnershitz’s A Different Shade of Justice: Asian American Civil Rights in the South; Judith Geisberg’s Sex and the Civil War: Soldiers, Pornography, and the Making of an American Morality, and John Ryan Fischer’s Cattle Colonialism: An Environmental History of the Conquest of California and Hawai’i.

Weekend Roundup

•  From the Washington Post's Made by History section: Erik Erlandson (Ph.D. candidate, University of Virginia) on how "the bureaucracy serves as a bulwark against hasty deregulation"; Joshua T. McCabe (Endicott University) on the history of limiting the mortgage deduction - can it be done again?; and Molly Michelmore (Washington & Lee) on "how the GOP uses 'family values' to slash taxes."

• Emory Law's press release on LHB Founder Mary Dudziak's naming as an Honorary Fellow of the American Society for Legal History is here.  She is pictured with another Honorary Fellow, David V. Williams of the University of Auckland, and three past ASLH presidents.

• A YouTube video of Paul Finkelman’s lecture, "Kosciuszko: A Bridge to Liberty for All," which treats “Brigadier General of the Continental Army and Polish freedom fighter, Tadeusz Kosciuszko, and his efforts to end slavery” is here.

• Just Security blog is hosting a symposium on The Internationalists: How a Radical Plan to Outlaw War Remade the World, by Yale's Oona Hathaway and Scott Shapiro.  The first post, by Gary J. Bass, is here.

• That Congressional briefing on the Historical Context of Civil War Monuments, sponsored by the National History Center, airs on C-SPAN3 today at 6:00pm EST.

• Here's an interesting CFP from Perspectives on Politics: Celebrities and Politics.  "We ... invite scholars to submit theoretical and empirical pieces that build on existing celebrity/celebrities and politics research or break new ground to explore the power of "celebrity" and interrogate the forces that produce and maintain it."  The interested should contact perspectives@apsanet.org.

• The History and Public Policy Program of the Woodrow Wilson Center in Washington, DC, is now accepting applications for its 2018 Summer Institute on Conducting Archival Research.

•  A reminder: the deadline for submitting papers and panels for the Policy History Conference, to be held  in Tempe, Arizona, May 16-19, 2018, is December 8, 2017.

• And another: the Davis Center fellowship deadline (theme: law & legalities) at the Princeton History department is Dec.1. Details here.

• ICYMI: K. Sabeel Rahman, Brooklyn Law, on Law, Political Economy, and the Legal Realist Tradition Revisited, on Law and Political Economy Blog.  James D. Folts, New York State Archives, on Documenting Our Past: Great Documents of New York Legal History.

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

Balleisen et al.'s "Policy Shock"

Just out from Cambridge University Press is Policy Shock: Recalibrating Risk and Regulation after Oil Spills, Nuclear Accidents, and Financial Crises, co-edited by four Duke University scholars, Edward Balleisen, Lori S. Bennear, Kimberly D. Krawiec, and Jonathan B. Wiener.

Policy Shock examines how policy-makers in industrialized democracies respond to major crises. After the immediate challenges of disaster management, crises often reveal new evidence or frame new normative perspectives that drive reforms designed to prevent future events of a similar magnitude. Such responses vary widely - from cosmetically masking inaction, to creating stronger incentive systems, requiring greater transparency, reorganizing government institutions and tightening regulatory standards. This book situates post-crisis regulatory policy-making through a set of conceptual essays written by leading scholars from economics, psychology and political science, which probe the latest thinking about risk analysis, risk perceptions, focusing events and narrative politics. It then presents ten historically-rich case studies that engage with crisis events in three policy domains: offshore oil, nuclear power and finance. It considers how governments can prepare to learn from crisis events - by creating standing expert investigative agencies to identify crisis causes and frame policy recommendations.

The code for a discounted purchase price is here.

What Kinds of Civil Cases Black Southerners Litigated Against Whites in Southern Courts, 1900-1950

Yesterday, my blog post discussed the kinds of civil cases black southerners most frequently litigated against whites in eight southern state supreme courts between 1865 and 1899. Today, I'm drawing on the research in my new book Litigating Across the Color Line to discuss the most common kinds of appellate civil cases litigated by African Americans against whites between 1900 and 1950, and how black southerners' cases shifted during this period.

Courtesy: Library of Congress

Black southerners had litigated a range of appellate civil cases against whites between 1865 and 1899, and often asserted their rights in such cases boldly. But as disfranchisement and segregation increasingly set in at the end of the 19th century, the kinds of civil cases black litigants were most able to litigate against whites in their state's highest courts shifted. During the first two decades of the 20th century, in particular, the types of appellate civil cases between black and white southerners narrowed significantly. Now, almost three-fourths of the appellate civil cases examined involved personal injury or fraud in property dealings. To a limited degree, this reflected larger legal trends, including the nationwide growth in tort cases. However, I argue that fraud and personal injury cases occurred especially frequently in appellate civil cases between black and white litigants during this period because the legal claims necessary to support these cases also sometimes supported whites' ideas about racial inequality. According to the law, it was difficult to bring a case of fraud if both parties in the transaction stood on an equal footing. Similarly, in personal injury cases, litigants needed to demonstrate that they had suffered injuries that caused them pain and loss of income. As a result, black litigants in such cases had strong motivations to present themselves as particularly vulnerable, and/or uneducated, which they almost uniformly did in cases that reached southern state supreme courts. Such presentations supported both their legal claims and white jury members' and judges' ideas about race, allowing black southerners to litigate cases against whites even at the height of Jim Crow.

In one 1907 Alabama fraud case, the white defendant J.W. Abercrombie had defrauded the elderly black plaintiff, 81-year-old Andrew Carpenter, by telling him that he was signing a mortgage when he was actually deeding away his property. In response, Carpenter brought a civil suit against Abercrombie. In his testimony, just as in the testimony of almost every other black litigant in an appellate fraud suit during this period, Carpenter emphasized his lack of business knowledge, stating “I do not know anything about the significance of deeds and mortgages, or legal papers.” But even as they emphasized their lack of education in such suits, African Americans' defiance and assertions of their rights still sometimes clearly came through. Carpenter also testified that when he confronted the white man about the fraud, Abercrombie had offered to pay him a small fraction of the costs of the property. Carpenter then testified, “I told him I would not take $100 but before I took that I would die first.” He continued, “I came on then to see if I could get any rights in court.”*  Despite such assertions of individual rights, however, most such cases during the first two decades of the 20th century made no larger claims for African American rights as a whole.

Then, between 1921 and 1950, the kinds of cases that black southerners could litigate in southern appellate courts broadened once again. In addition, more and more seemingly everyday kinds of suits litigated by individuals over personal injury, property, contracts, and wills began to include challenges to the racial status quo. Unlike the personal injury cases of the first decades of the 20th century, for instance, Ethel New's mid-1940's personal injury case challenged racial discrimination as well as claiming damages for the plaintiff's injury. New’s husband was stationed in Virginia as WWII came to an end and when the incident occurred, she had been returning from a visit to him, three months pregnant. She stood up for the first 81-mile leg of her bus journey as there were no seats in the section on the back of the bus reserved for African Americans. Finally, in Lynchburg, Virginia, she obtained a seat in the second to last row. A few minutes later, though, a bus driver ordered her to move to the last row of the bus to accommodate the white passengers who had just boarded. Seeing that the back bench was hard and did not recline, New refused to move. In response, the bus driver and an officer dragged her off the bus by her shoulders and legs. After reaching her destination of Kentucky, New’s back and leg ached and she suffered a miscarriage. She hired a lawyer to file a personal injury suit. The suit protested not only her own treatment and the loss of her unborn child, but also the segregation laws that required her to sit in the back of the bus. Indeed, the suit stated that New’s injuries had been a direct result of her race. While New's case was ultimately unsuccessful in both the trial and appellate courts, she had asserted not only her own individual rights, but the rights of African Americans to equal treatment on public transportation.**

These largely individual-led civil cases challenging discrimination during the 1920s, 1930s, and 1940s existed alongside the NAACP's legal efforts to challenge discrimination. Ethel New's law firm, for instance, also played a part in representing Irene Morgan in the 1946 NAACP-led suit Morgan v. Virginia over interstate bus travel. In general, though, the civil suits during this time that challenged discrimination in southern appellate courts seem to have been brought by individuals who had economic stakes in the suits, as well as concerns over equal rights. In these ways, these suits had many similarities to the many civil appellate suits between black and white southerners that had occurred in the decades before.

 

* Abercrombie v. Carpenter, 150 Ala. 294 (1907).

** New v. Atlantic Greyhound Corporation, 186 Va. 726 (1947)