Friday, October 19, 2018

Elster and friends on Constituent Assemblies

Jon Elster (Columbia University), Roberto Gargarella (Universidad Torcuato Di Tella, Buenos Aires), Vatsal Naresh (Yale University), and Bjørn Erik Rasch (University of Oslo) have co-edited Constituent Assemblies, out now with Cambridge University Press. From the publisher:
Constituent AssembliesComparative constitutional law has a long pedigree, but the comparative study of constitution-making has emerged and taken form only in the last quarter-century. While much of the initial impetus came from the study of the American and French constituent assemblies in the late eighteenth century, this volume exemplifies the large comparative scope of current research. The contributors discuss constituent assemblies in South East Asia, North Africa and the Middle East, Latin America, and in Nordic countries. Among the new insights they provide is a better understanding of how constituent assemblies may fail, either by not producing a document at all or by adopting a constitution that fails to serve as a neutral framework for ordinary politics. In a theoretical afterword, Jon Elster, an inspirational thinker on the current topic, offers an analysis of the micro-foundations of constitution-making, with special emphasis on the role of crises-generated passions.
Table of Contents after the jump:

Thursday, October 18, 2018

Green on Chevron and Political Transformation in American Law

Craig Green, Temple University James E. Beasley School of Law, has posted Deconstructing the Administrative State: Constitutional Debates over Chevron and Political Transformation in American Law:
In 2018, Justice Kennedy wrote that the Supreme Court should “reconsider the premises” of Chevron v. NRDC based on “separation-of-powers principles.” In 2015, Justice Thomas was the first judge to argue in an opinion that Chevron is unconstitutional, and Justices Gorsuch and Kavanaugh are the only judicial nominees whose anti-Chevron critiques were featured elements of their candidacy. Petitions for certiorari have challenged Chevron's constitutionality, echoing litigants in other federal courts, and academics have joined both sides of the debate. This Article responds to modern disputes over Chevron with a new history of how the constitutional crisis developed, a rebuttal of modern critiques, and a description of their potentially destructive effect on administrative governance and constitutional law. The Article describes a shift from Reagan-era support for Chevron to “post-Scalian” attacks. It concludes by considering anti-Chevron constitutional critiques alongside other Trumpist efforts to “deconstruct the administrative state.” To overrule Chevron would be the most radical decision about constitutional structure in eighty years, unsettling hundreds of judicial decisions, thousands of statutes, and countless agency decisions. This Article contributes to existing literature with novel historical research, and detailed engagement with anti-Chevron critiques that have become newly sophisticated and politically powerful.
As Professor Green writes over at Balkinization,  much of his analysis is “historical.  In the 1930s and 1940s, political forces that endorsed pro-business deregulation fiercely resisted agencies’ authority to interpret statutes, but Chevron in its own era was a substantial victory for the pro-business deregulatory Reagan Revolution.”

Bonfield on British Statutory Reform of Heirship and Wills

Lloyd Bonfield, New York Law School, has posted two papers.  The first is Farewell Downton Abbey, Adieu Primogeniture and Entail: Britain's Brief Encounter with Forced Heirship:
This article observes a little-noted proposal (the Landed Property of Intestates Bill) introduced into the British Parliament in 1836. It considers the debate upon it that ensued, and the accompanying pamphlet literature. The Bill proposed to alter the inheritance custom of primogeniture that directed the pattern of descent of freehold land in the absence of directions by settlement or will, and the dialogue is used as a lens to view the nexus between inheritance customs and broader political, economic and social concerns. The intensity of the dispute over primogeniture suggests that more was at stake than simply the devolution of land. The controversy in the Commons over the proposed legislation encompassed a discussion on the variety of purposes that succession law should serve. Lurking in the background in the debate over the proposed bill was a more abstract conundrum: should succession laws primarily be crafted to serve political ends, the constitution; or was it more appropriate to calibrate them to foster desirable social, economic or familial goals? In short, the debate put into sharp focus the question of what interests drive inheritance law, and how attempts can be made to modify it, if and when such concerns alter over time. The bill failed, and it would be for another century for Parliament to abolish primogeniture.
The second is Reforming the Law of Will Execution: The Real Property Commissioners’ Reports:
The paper is an introductory chapter of a book length study on the Wills Act of 1837. It focuses on the discussion of wills in the First Report made to by the Commissioners appointed to inquire into the Law of England respecting Real Property (1829) and the Fourth Report made to His Majesty by the Commissioners appointed to inquire into the Law of England respecting Real Property (1833). The Report demonstrates wide-spread disquiet over the substantive law of wills and significant dissatisfaction with the process of probate. But the enquiry also looks to other issues on inheritance, the exercise of ‘illusory appointments’ and the problem of proof of death, areas which have hither to been ignored by historians.

Wednesday, October 17, 2018

Three Takes on Taxes from Modern American History

On the website of the journal Modern American History, you'll find three scholarly takes on taxes (part of a larger "take three" series): Isaac William Martin (UC San Diego) on "How the Great American Tax Revolt Crossed the Atlantic"; Carolyn C. Jones (University of Iowa - Law) on "Eleanor Roosevelt's Tax Returns"; and Ajay K. Mehrotra (ABF) on "The Myth of the 'Overtaxed' American and the VAT That Never Was."

A Business History Doctoral Colloquium on Globalization & De-Globalization

[We have the following announcement.]

The BHC Doctoral Colloquium in Business History will be held once again in conjunction with the 2019 BHC annual meeting. This prestigious workshop, funded by Cambridge University Press, will take place in Cartagena de Indias, Columbia on Wednesday March 13th and Thursday March 14th, 2019. Typically limited to ten students, the colloquium is open to doctoral candidates who are pursuing dissertation research within the broad field of business history, from any relevant discipline (e.g., from economic sociology, political science, cultural anthropology, or management, as well as history).  Most participants are in year 3 or 4 or their degree program, though in some instances applicants at a later stage make a compelling case that their thesis research had evolved in ways that led them to see the advantages of an intensive engagement with business history.

The theme of the 2019 BHC annual meeting is "Globalization and De-Globalization: Shifts of Power and Wealth."  We welcome proposals from students working within the conference theme, as well as any other thematic area of business history.  Topics (see link for past examples) may range from the early modern era to the present, and explore societies across the globe.  Participants work intensively with a distinguished group of BHC-affiliated scholars (including the incoming BHC president), discussing dissertation proposals, relevant literatures and research strategies, and career trajectories.

Applications are due by 15 November 2018 via email to and should include: a statement of interest; CV; preliminary or final dissertation prospectus (10-15 pages); and a letter of support from your dissertation supervisor (or prospective supervisor).  All participants receive a stipend that partially defrays travel costs to the annual meeting.  Applicants will receive notification of the selection committee’s decisions by the end of 2018.

This year’s faculty participants are:

Edward Balleisen (Director), Professor of History and Public Policy, Duke University
              American Business, Legal, and Policy History

Ann Carlos, Professor of Economics, University of Colorado-Boulder
              Early Modern Empires/Trade in North America

Paloma Fernandez-Perez, Professor of Economic and Business History, University of Barcelona Business School
              Spanish and Latin American Business History

Takafumi Kurosawa, Professor of Economic Policy, Kyoto University
              European and Japanese Business History

Kenda Mutongi, Professor of History, Williams College
              African Business History

Questions about the colloquium should be sent to its director, Duke Professor of History Edward Balleisen, 

Turner on Equity in Common-Law Systems after Fusion

P. G. Turner, University of Cambridge Faculty of Law, has posted Fusion and Theories of Equity in Common Law Systems:
The fusion of law and equity in common law systems was a crucial moment in the development of modern Anglo-American law, with implications for the procedural, substantive and remedial aspects of law. This paper will introduce a volume of essays in which scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed light on the ways in which law and equity have fused, and the ways in which they have remained distinct even in a ‘post-fusion’ world.

The central concern of this paper lies in two facts. The first is that the presence of equity in common law systems poses fundamental questions. What is the place of equity in a modern common law system? Is the purpose of equity, as a distinct ingredient of common law systems, spent? Should equity be distributed through the law? If equity should be a distinct ingredient of common law systems, in what form? The second is that fusion (or merger or union) has become the means by which lawyers address those basic questions.

Helpful answers to these basal questions have become more remote as theories of equity have become constrained by the terms in which fusion is discussed. How can the situation be improved? This chapter suggests that a newly widened perspective is needed. The constitutional place that has been assigned to equity in common law systems must be acknowledged and accommodated. And any modern theory of equity must be composite rather than simple or unitary. Also important to appreciate is the practical significance of how fusion is discussed, and how equity theories are formed, in the thinking of lawyers and the work of the courts. To illustrate that practical point, illustrations are given of the accidental fusion of law and equity through the unthinking assimilation of modern equitable claims to the common law forms of action finally abolished in England in 1875.

CFP: The League of Nations Decentred

[We share the following Call. Deadline: Nov.30, 2018]

Call for Papers--The League of Nations Decentred: Law, Crises and Legacies

  • Melbourne Law School185 Pelham StreetCarlton, VIC 3056
Conveners: Luís Bogliolo, Kathryn Greenman, Anne Orford, and Ntina Tzouvala.Confirmed Keynote Speaker: Professor Balakrishnan Rajagopal (Department of Urban Studies and Planning, Massachusetts Institute of Technology) Almost a hundred years after the creation of the League of Nations, it is still commonly remembered as a failure in a period of chaos and disorder. Recently, however, a growing literature has begun a reappraisal of this historiography, looking at the role of the League of Nations beyond its frustrations and disillusionments in collective security. This new surge of critical studies has led to a more complex and multifaceted understanding of the League, exploring its legacies and impacts at a time of renewed economic crises and of deepening conflicting visions of international order. In the centenary of its foundation, we are taking this further by looking at the League of Nations with a view from the South. Our aim is to decentre the League and to explore competing visions of international order, law and institutions that resonate in our contemporary world.
More after the jump:

Tuesday, October 16, 2018

Peterson to Lecture on Monuments and Memory

Farah Peterson, University of Virginia School of Law, will deliver the 2018 Sherman Lecture,
“Monuments and Memory: How the Law Writes American History" tomorrow at 7:30 the Warwick Center of the University of North Carolina, Wilmington.

Cushman on the Great Depression and Constitutional Law

Barry Cushman, Notre Dame Law School, has posted The Place of Economic Crisis in American Constitutional Law: The Great Depression As a Case Study, which is forthcoming in Liberal Constitutions in Financial Crises, edited by Tom Ginsburg, Mark Rosen, & Georg Vanberg (Cambridge University Press, 2019):
This chapter considers the role that conditions of economic crisis might have played in cases involving judicial review of economic regulation decided by the Supreme Court of the United States between March of 1932 and June of 1937. Part I conducts a general examination of the possibility that contemporary economic conditions may have operated as an exogenous variable inducing the justices to uphold challenged regulations. Part II explores the extent to which underlying economic conditions might have operated as an endogenous variable that was relevant to analysis of whether particular regulatory measures could be supported by existing constitutional doctrine. An Appendix plots the timeline of cases involving constitutional challenges to ameliorative legislation against a variety of contemporary economic indicators.

Rubin on an Ottoman political trial

Avi Rubin (Ben-Gurion University of the Negev) has published Ottoman Rule of Law and the Modern Political Trial with Syracuse University Press. From the publisher: 

Ottoman Rule of Law and the Modern Political Trial: The Yildiz Case (Modern Intellectual and Political History of the Middle East) by [Rubin, Avi]In 1876, a recently dethroned sultan, Abdülaziz, was found dead in his chambers, the veins in his arm slashed. Five years later, a group of Ottoman senior officials stood a criminal trial and were found guilty for complicity in his murder. Among the defendants was the world-famous statesman former Grand Vizier and reformer Ahmed Midhat Paşa, a political foe of the autocratic sultan Abdülhamit II, who succeeded Abdülaziz and ruled the empire for thirtythree years. 
The alleged murder of the former sultan and the trial that ensued were political dramas that captivated audiences both domestically and internationally. The high-profile personalities involved, the international politics at stake, and the intense newspaper coverage all rendered the trial an historic event, but the question of whether the sultan was murdered or committed suicide remains a mystery that continues to be relevant in Turkey today. Drawing upon a wide range of narrative and archival sources, Rubin explores the famous yet understudied trial and its representations in contemporary public discourse and subsequent historiography. Through the reconstruction and analysis of various aspects of the trial, Rubin identifies the emergence of a new culture of legalism that sustained the first modern political trial in the history of the Middle East.
 Praise for the book:

"A tour de force of socio-legal history of the late Ottoman Empire. Rubin leads the reader into a breathtaking journey through the history and historiography of one of the most serious political crises in late Ottoman history, the Yildiz Trial (1881), turning it into a thrilling microhistory." -Iris Agmon

"A fascinating and detailed micro-history of the trial of Midhat Paşa." -James E. Baldwin

Further information is available here.

Monday, October 15, 2018

Ngai to Lecture on "A Nation of Immigrants"

We’ve just realized that, starting today, Mae M. Ngai, the Lung Family Professor of Asian American Studies and Professor of History at Columbia University will be delivering the Lawrence Stone Lectures for 2018 at Princeton University.  Here three lectures are collectively entitled A Nation of Immigrants: A Short History of an Idea.  The series is co-sponsored by the Shelby Cullom Davis Center for Historical Studies and Princeton University Press.  Lectures will be held at 4:30pm in 010 East Pyne and are open to the public.   reception follows immediately after each lecture.

Monday, October 15: "A Short History of an Idea"
Tuesday, October 16: "Immigration at the Turn of Two Centuries"
Wednesday, October 17: "Impossible Subjects"

Winkler is National Book Award Finalist

Congratulations to UCLA Law's Adam Winkler, upon being named a National Book Award finalist for Nonfiction for We the Corporations: How American Businesses Won Their Civil Rights.

AHA 2018 Awards Announced

The American Historical Association has announced its 2018 prize winners, to be awarded at the annual meeting in January 2019. Of particular relevance to this audience:
  • The Joan Kelly Memorial Prize for women’s history and/or feminist theory went to Tera W. Hunter (Princeton) for Bound in Wedlock: Slave and Free Black Marriage in the Nineteenth Century (Belknap Press, 2017).
  • The Littleton-Griswold Prize in US law and society, broadly defined, also went to Tera W. Hunter (Princeton) for Bound in Wedlock: Slave and Free Black Marriage in the Nineteenth Century (Belknap Press, 2017).
  • The John F. Richards Prize for South Asian history was awarded to Faiz Ahmed (Brown) for Afghanistan Rising: Islamic Law and Statecraft between the Ottoman and British Empires (Harvard Univ. Press, 2017).
  • The Raymond J. Cunningham Prize for the best article published in a history department journal written by an undergraduate student was awarded to Heath Rojas (Stanford, BA 2018), faculty advisor: Keith M. Baker (Stanford), for “A Model of Revolutionary Regicide: The Role of Seventeenth-Century English History in the Trial of King Louis XVI,” Herodotus (Spring 2018).
The full list of award winners is here.

Call for Proposals: Detroit Mercy Law Review Symposium on Women and the Law

We have the following call for proposals:
The Detroit Mercy Law Review will host its 2019 Symposium, Women and the Law, on Mar. 8, 2019. The deadline for proposals is Nov. 9, 2018 at 5:00pm EST. 
Possible topics include, but are not limited to: the history of women in the law, how women have impacted the law, how the law impacts women today, how future legal decisions could affect women’s rights (e.g. if Roe v. Wade, 410 U.S. 113 (1973) were to be overturned), what challenges women still face in the legal profession, the role of gender in the law, and any other topic regarding women and the law. Proposals should be approximately 250-500 words, double-spaced, and detail the proposed topic and presentation. Submit to Samantha Buck, Symposium Director, at Please indicate whether your proposal is for a presentation only or if you would also like to publish an article with the Detroit Mercy Law Review on your presentation topic. If you are interested in submitting an article, it will be due to the Law Review on Friday, Mar.15, 2019. Please submit a current CV or resume along with your proposal. We will notify chosen speakers by Nov. 30, 2018. Preference will be given to those willing to submit an article for publication.

Sunday, October 14, 2018

Sunday Book Review Roundup

Ramachandra Guha's Gandhi: The Years That Changed the World, 1914-1948 is reviewed in The New York Times.

In The Nation, Gabriel Winant reviews Andrea Komlosy's Work: The Last 1,000 Years.  Also reviewed is Broken Lives: How Ordinary Germans Experienced the 20th Century by Konrad H. Jarausch.

In The New York Review of Books, Heather Ann Thompson reviews Scott Wasserman Stern's The Trials of Nina McCall: Sex, Surveillance, and the Decades-Long Government Plan to Imprison “Promiscuous” WomenAdditionally, Drew Gilpin Faust reviews a reissued edition of Pauli Murray's autobiography Song in a Weary Throat: Memoir of an American Pilgrimage.

Historian Adam Tooze's Crashed: How a Decade of Financial Crises Changed the World is reviewed in The Washington Post.

A History of America in Ten Strikes by Erik Loomis is reviewed in The New Republic.

Mary Sarah Bilder's Madison’s Hand: Revising the Constitutional Convention is reviewed at HNN.

At Public Books, Austin McCoy reviews As Black as Resistance: Finding the Conditions for Liberation by Zoé Samudzi and William C. Anderson and An Unseen Light: Black Struggles for Freedom in Memphis, Tennesseeedited by Aram Goudsouzian and Charles W. McKinney Jr.

Barry Eidlin's Labor and the Class Idea in the United States and Canada is reviewed in the Los Angeles Review of Books.

At the New Books Network, Theodore M. Porter speaks about his Genetics in the Madhouse: The Unknown History of Human Heredity.

Mark Golub's Is Racial Equality Unconstitutional? is reviewed at the Law and Politics Book Review.  Also on the site is a review of Kenneth Ehrenberg's The Functions of Law.

Saturday, October 13, 2018

Weekend Roundup

  • The Franklin D. Roosevelt Presidential Library and Museum and the Mid-Hudson Antislavery History Project will present an author talk and book signing with Susan Stessin-Cohn, coauthor of In Defiance: Runaways from Slavery in New York’s Hudson River Valley, 1735-1831 on Thursday, October 25, 2018 at 7:00 p.m. in the Henry A. Wallace Center at the FDR Presidential Library and Home. 
  • There's a lot of legal history in Cambridge University Press's Law and Christianity Series,edited by John Witte, Jr, Emory University.
  • News from Aotearoa/New Zealand: "Taranaki legal history was made on Wednesday, with the first ever bar admission ceremony conducted in Te Reo Maori."  More.
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, October 12, 2018

Yoo on the Presidency and James Wilson

Christopher S. Yoo, University of Pennsylvania Law School has posted James Wilson as the Architect of the American Presidency, which is forthcoming in the Georgetown Journal of Law & Public Policy:
For decades, James Wilson has been something of a “forgotten founder.” The area where commentators generally recognize Wilson’s influence at the Convention is with respect to Article II, which establishes the executive and defines its powers. Most scholars characterize him as a resolute advocate of an independent, energetic, and unitary presidency, and a particularly successful one at that. In this regard, some scholars have generally characterized Wilson’s thinking as overly rigid. Yet a close examination of the Convention reveals Wilson to be more flexible than sometimes characterized. With respect to many aspects of the presidency, including the appointment power, the use of an advisory council, the veto power, and presidential selection, he adopted a more pragmatic approach than generally recognized. The most dramatic example of this is an event that is almost entirely overlooked in the historical record: Wilson’s break late in the Convention from his consistent support for a unitary executive by proposing an advisory council to advise the president on appointments. While initially seeming like something of a puzzle, the reasons for Wilson’s change of heart become clearer when debates over presidential power are placed in the context of the larger controversies that dominated the Convention, such as the Great Compromise and presidential re-eligibility and selection. This broader frame suggests that Wilson held a more pragmatic, less doctrinaire vision of executive power than is commonly recognized.

Zhang on Comparative Law in Modern China

Taisu Zhang, Yale Law School, has posted The Development of Comparative Law in Modern China, which is forthcoming in the second edition of the Oxford Handbook of Comparative Law, edited by Mathias Reimann and Reinhard Zimmermann
The development of comparative law in modern China is essentially the development of law itself. In the late 19th Century, China embarked on a century-long journey to “modernize” its legal system in the image of foreign, and primarily Western, law. Nearly all major legal actions in modern Chinese history, whether Qing, Republican, or Communist, involved, therefore, either the direct transplanting of foreign legal institutions onto Chinese soil, or at least some comparison between foreign and domestic institutions, and perhaps an attempt to merge them. Contemporary Chinese lawmaking has attempted to wean itself of this systemic reliance on foreign legal sources, but the process has been uneven, to say the least. In this sense, one cannot speak intelligibly of almost any facet of Chinese legal development without touching upon comparative law in a substantive way. The modern history of Chinese law is one long exercise in legal comparison and adoption.

One can speak, of course, of “comparative law” in a much narrower sense: the development of a specific academic discipline dedicated to the systemic and objective comparison of legal systems. There is indeed a separate history of Chinese “comparative law” (bijiao fa) as a distinct academic field, going back to at least the early 20th Century, but it is, for the most part, a history of marginalization. Despite the enormously influential influx and reception of foreign law and legal theory, comparative law per se has remained outside of both the legal and the academic mainstream, mired in a state of theoretical and empirical underdevelopment.

This chapter traces these dual tracks of historical development from the late Qing dynasty to the present day, and argues that the prominence of the former paradoxically explains the marginalization of the latter. It is precisely because the reception of foreign law has occupied such a central position in modern Chinese politics that legal scholars and lawyers have had such little interest in serious comparative legal scholarship. The enormous institutional and socioeconomic significance attached to legal transplantation and reception gave the study of foreign law a political and often ideological urgency that one rarely, if ever, observes in more mature legal systems. This meant that the kind of detached and patient analytical methodology that comparative law as an academic discipline necessarily demands of its practitioners was highly unattractive to most scholars and lawyers. Instead, driven by both ideological commitment and personal career incentives, they rushed to copy and transplant foreign institutions. Comparative law as an academic discipline is, perhaps, doomed to some degree of marginalization in any country, but it is especially doomed when its primary audience—scholars and lawyers who are interested in foreign legal systems—have powerful incentives, both intellectual and material, to reject its core methodological commitments. In the Chinese case, a century of ideological self-orientalization meant that nearly all legal scholars and lawyers had some interest in foreign law, but also that this interest was shepherded into political and ideological camps that had little tolerance for truly comparative analysis.

Green on the 14th Amendment's Due Process Clause

Christopher R. Green, University of Mississippi School of Law, has posted Our Bipartisan Due Process Clause, which is forthcoming in the George Mason Law Review:
What it meant to “deprive any person of life, liberty, or property without due process of law” was very well-known to the men who proposed the Fourteenth Amendment: to take away life, liberty, or property without traditional judicial proceedings, except where public safety required it. Congressmen made this very clear, and at great length—but in 1862, rather than 1866.

Thursday, October 11, 2018

Smith on an Antebellum Treason Trial

Jennifer Elisa Smith, University of Maryland Law School, has posted United States v. Hodges: Treason, Jury Trials, and the War of 1812:
Gabriel Duvall (LC)
In August 1814 a number of British soldiers were arrested as stragglers or deserters in the town of Upper Marlboro, Maryland. Upon learning of the soldiers’ absences the British military took local physician, Dr. William Beanes, and two other residents into custody and threatened to burn Upper Marlboro if the British soldiers were not returned. John Hodges, a local attorney, arranged the soldiers’ return to the British military. For this, Hodges was charged with high treason for “adhering to [the] enemies, giving them aid and comfort.” The resulting jury trial was presided over by Justice Gabriel Duvall, a Supreme Court Justice and Prince Georges County native, and highlights how the crime of treason was viewed in early American culture and the role of the jury as deciders of the facts and the law in early American jurisprudence. Contextually, Hodges’ trial took place against the backdrop of the War of 1812 and was informed by the 1807 treason trial of Aaron Burr. What can history tell us about current events?

Zhang on Property and Sociopolitical Change

Taisu Zhang, Yale Law School, has posted A Theory of Property and Sociopolitical Change:
Contemporary property theory highlights information costs as the most important determinant of exclusion rights and numerus clausus-type standardization: rising information costs lead to stronger exclusion rights and more standardization — that is, a reduction in the number of allowed property forms — whereas falling information costs have the opposite effect. What this paradigmatic model lacks, however, is a theory of how and why information costs change in the first place. By developing such a theory, this article demonstrates that the legal impact of information costs is systemically counterbalanced by concurrent changes in individual preference, and that preexisting predictions about the relationship between information costs, exclusion, and standardization are therefore partially wrong, and otherwise incomplete.

Scholars have long understood that information costs, especially those related to property, are negatively correlated with social and political cohesion: tighter communities and stronger states correlate with lower information costs, whereas sociopolitical disintegration correlates with higher information costs. But this is only half the picture: sociopolitical cohesion is also negatively correlated with the diversity of individual preferences, in that higher levels of sociopolitical cohesion homogenize preferences, whereas sociopolitical disintegration diversifies them. Information costs and preference diversity therefore tend to be synchronized: when information costs rise (or fall), so does preference diversity.

Recognizing this synchronization dismantles some of the central predictions of current property theory, but reinforces others. Most importantly, it implies that there is probably no empirical correlation between information costs and legal standardization. Although rising information costs incentive more standardization, simultaneous increases in preference diversity will incentive less standardization to accommodate the expanding range of individual preferences. Either side can emerge victorious from this legal tug-of-war. The article identifies, in fact, several major historical episodes in which a sharp rise in information costs was, contrary to current theoretical predictions, followed by less standardization and the creation of new property forms. In contrast, the positive correlation between information costs and exclusion rights is perhaps even stronger than what current theory predicts: rising information costs boost the attractiveness of exclusion-based private property regimes, but so does the corresponding increase in preference diversity.

Kessler and Posen on the Equality and the First Amendment

Jeremy Kessler, and David Pozen, Columbia University Law School, have posted The Search for an Egalitarian First Amendment, which is forthcoming in the Columbia Law Review:
Over the past decade, the Roberts Court has handed down a series of decisions that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation—generating widespread accusations that the Court has created a "new Lochner." This introduction to the Columbia Law Review's symposium on Free Expression in an Age of Inequality takes up three questions raised by these developments. Why has First Amendment law become such a prominent site for struggles over socioeconomic inequality? Does the First Amendment tradition contain egalitarian elements that could be recovered? And what might a more egalitarian First Amendment look like today?
After describing the phenomenon of First Amendment Lochnerism, we trace its origins to the collapse of the early twentieth-century "progressive" model of civil libertarianism, which offered a relatively statist, collectivist, and labor-oriented vision of civil liberties law. The recent eruption of First Amendment Lochnerism is also bound up with transformations in the economic and regulatory environment associated with the advent of "informational capitalism" and the "information state." First Amendment Lochernism may reflect contemporary judicial politics, but it has deep roots.

To figure out how to respond to the egalitarian anxieties besetting the First Amendment, it is natural to consult normative theories of free speech. Yet on account of their depoliticization and abstraction, among other factors, the canonical theories prove indeterminate when confronted by these anxieties. Instead, it is a series of midlevel conceptual and jurisprudential moves that most often do the work of resisting First Amendment Lochnerism. This grammar of free speech egalitarianism, we suggest, enables the creative elaboration of a few basic motifs, concerning the scope and severity of judicial enforcement, the identification and reconciliation of competing speech interests, and the quality and accessibility of the overall expressive system. If First Amendment Lochnerism is to be countered in any concerted fashion, the roadmap for reform will be found within this grammar; where it gives out, a new language may become necessary.

LAPA Fellowships

[We have the following announcement for the Law and Public Affairs Fellowships at Princeton University. Deadline: Nov.14, 2018]
Image result for Law and public affairs program princetonThe Program in Law and Public Affairs (LAPA) at Princeton invites outstanding faculty members of any discipline, independent scholars, lawyers, and judges to apply for residential fellowships for 2019-2020.  LAPA Fellows devote the major portion of their time to their own research and writing on law-related subjects of empirical, interpretive, doctrinal and/or normative significance.  In addition, LAPA Fellows are expected to be in residence for ten months and participate in LAPA programs, including a biweekly seminar, a weekly luncheon discussion group, as well as some public events and conferences.  The program does not support, as a primary activity, off-site fieldwork or work in remote archives, development of course materials, work in legal practice, or residence elsewhere. Fellows may apply to teach one course in Princeton's graduate or undergraduate programs, subject to the needs of the University, sufficient enrollment, approval of the Dean of the Faculty, and the cooperation of the sponsoring academic department.  As a general rule, Fellows receive a research salary of one-half their ten month salary at their home institution, up to a maximum set each year before selection is made.  This means that some support will be lower than one half of an actual salary for those at the high end of a salary spectrum.  Research salaries are also subject to a minimum amount determined each year.  If approved to teach a Fellow will hold a secondary teaching rank that will be based on the Fellows home institution rank and salary rate. Teaching opportunities are not guaranteed. Fellows may also apply for funding from additional sources so long as receipt of the funds does not interfere with the LAPA requirements.  

All applicants must have received a doctorate, juris doctor, or an equivalent professional degree at the time of submission of the fellowship application. The selection committee looks particularly closely at the proposal outlining work while in residence at Princeton.  Successful LAPA applicants should demonstrate substantial expertise in law-related matters.  The committee is composed of Princeton faculty members representing LAPA's three funding sources, WWS, UCHV, and the University.  They evaluate applicants on the basis of the quality of their achievements in their field of specialization and their ability to benefit from the activities of the program; the quality and significance of their proposed projects; the future contributions they are likely to make to legal scholarship and practice; and their ability to contribute to intellectual life in legal studies at Princeton.  In selecting fellows, the committee may consider how each individual will contribute to the fellows' cohort as well as to the program.

You may, but need not, include a short personal statement containing information you would like the committee to consider.  Do not submit a cover letter.

Required:  Applicants must apply online at and submit a CV, including a list of publications and a description of the research project that you plan to pursue at Princeton.  This statement may be up to 2000 words and should include the contribution of your project to the literature on the subject and your qualifications to pursue the topic, including your past work.  Contact information for two referees.  

OPTIONAL:  If you would like to teach one course in the undergraduate or graduate programs, provide a brief description of the course including objectives, student audience, content and organization, and student assignments. The decision on teaching rests with the Dean of Faculty, and a sponsoring department and is based on the needs of the University.

Application Deadline: Materials must be submitted by Wednesday, Nov. 14, 2018, 11:59 p.m. EST.  Inquiries about the program should be directed to

Wednesday, October 10, 2018

Lessons from the Amistad at the CT SCHS

The Connecticut Supreme Court Historical Society will hold its fall meeting at the Hartford Club (46 Prospect Street, Hartford) on Wednesday, October 24, 2018, with refreshments starting at 5:30 p.m. and the program at 6:15 p.m.  The event is open to all without charge.

Jeanette Zaragoza De León, a PhD Visiting Research Scholar at the Yale Divinity School, will present “Lessons from the Amistad: Interpreting, Litigation Strategies, and Solidarity,” followed by remarks by Chief Justice Richard A. Robinson, a member of the “Discovering Amistad's National Advisory Council” and by “The Amistad:  Justice for Slavery,” a video created by students of Bristow Middle School, West Hartford.

We’re told that
Ms. Zaragoza De León, a graduate of Lesley College, holds a Master of Divinity from Pacific School of Religion, Master of Arts in Translation from University of Puerto Rico, and Master of Arts in Translation and Interpretation Studies Research from Universitat Jaume, Valencia, Spain.  She is a PhD candidate in Applied Languages, Literature and Translation from Universitate Juame.  This fall Ms. Zaragoza De León will defend her dissertation entitled “The Critical Translation and Interpreting Stories of the Amistad Case.”  She is a certified Spanish-English court interpreter.
H/t: Mike Widener

Kent, Leib & Shugerman on Faithful Execution & Article II

Andrew Kent, Ethan J. Leib, and Jed Handelsman Shugerman, Fordham Law School, have posted “Faithful Execution” and Article II:
Article II of the U.S. Constitution twice imposes a duty of “faithful execution” on the President, who must “take Care that the Laws be faithfully executed,” and take an oath or affirmation to “faithfully execute the Office of President.” These clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or to refuse to fully execute statutes on grounds of unconstitutionality or for policy reasons.

This Article is the first to explore the textual roots of these clauses from the time of Magna Carta and medieval England, through colonial America, and up to the original meaning in the Philadelphia Convention and ratification debates. We find that the language of “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices—especially those in which the officer had some control over the public fisc. “Faithful execution” language applied not only to senior government officials but also to a vast number of insignificant officers, too. We contend that it imposed three core requirements on officeholders:

(1) diligent, careful, good faith, and impartial execution of law or office;

(2) a duty not to misuse an office’s funds and or take unauthorized profits; and

(3) a duty not to act ultra vires, beyond the scope of one’s office.

These three duties of fidelity look a lot like fiduciary duties in modern private law. This “fiduciary” reading of the original meaning of the Faithful Execution Clauses might have important implications in modern constitutional law. Our history supports readings of Article II of the Constitution that limit presidents to exercise their power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal reasons. So understood, Article II may thus place some limits on the pardon and removal powers, for example. The history we present also supports readings of Article II that tend to subordinate presidential power to congressional direction, limiting presidential non-enforcement of statutes for policy and perhaps even constitutional reasons, and perhaps constraining agencies’ interpretation of statutes to pursue Congress’s objectives. Our conclusions undermines imperial and prerogative claims for the presidency, claims that are sometimes, in our estimation, improperly traced to dimensions of the clauses requiring faithful execution.

Crouch on writs & constitutions in former British colonies

Melissa Crouch (University of New South Wales Law School) has published "The Prerogative Writs as Constitutional Transfer" in the Oxford Journal of Legal Studies (7 Sept. 2018). Here is the abstract:
The courts are often a key site in the struggle for the protection and enforcement of constitutional rights and accountability. In this article, I draw attention to an important avenue for both the historical and contemporary study of comparative administrative law: the incorporation of the prerogative writs into written constitutions. I offer a global genealogy of the writs as a colonial common law transfer that took on a new life in written constitutions across former British colonies, particularly across South Asia, including India, Pakistan, Bangladesh, Sri Lanka and Myanmar, as well as parts of Africa, the Pacific and the Caribbean. I illustrate the history, development and variations of this model, transforming from the common law remedies of England to a constitutional means of protecting rights. Through the case of Myanmar, I demonstrate the history of transnational constitutional borrowing and innovation in former British colonies. The importance of the writs lies in their symbolic status as a constitutional remedy and, despite present limitations, comparative experience offers future scope for judicial activism in Myanmar.
Further information is available here.

Tuesday, October 9, 2018

Director, Federal Judicial History Office

Congratulations to Clara Altman on her appointment as Deputy Director of the Federal Judicial Center (“the research and education agency of the federal courts”).  A search has commenced to replace her as director of the Federal Judicial History Office.  The director “is responsible for developing and carrying out programs in furtherance of the Center’s statutory mission to ‘conduct, coordinate, and encourage programs relating to the history of the judicial branch of the United States government.’”  The announcement for the directorship is here.  “Applications received by October 31 will receive full consideration.”

CFP: Intellectual Property and the Visual

[We are moving up this previously posted CFP because the deadline is now November 23.]

International Society for the History and Theory of Intellectual Property (ISHTIP) Annual Workshop 2019 Call for Papers.  University of Technology Sydney, 4 – 6 July 2019

Intellectual Property and the Visual
“We entered and cast anchor, and in the morning went oh-ing and ah-ing in admiration up through the crooks and turns of the spacious and beautiful harbor – a  harbor which is the darling of Sydney and the wonder of the world.”

                                                              Mark Twain, Following the Equator
The International Society for the History and Theory of Intellectual Property will hold its 11th annual workshop at the University of Technology Sydney on 4 – 6 July 2019. The city of Sydney is renowned for its spectacular natural setting and architectural landmarks. This year’s theme, Intellectual Property and the Visual, draws inspiration from its striking host city. The ‘visual turn’ in law has received growing attention in recent years from scholars exploring effects of the proliferation of images in social and legal spaces on the legal imagination. The 2019 workshop will explore aspects of the visual turn in the context of intellectual property law. Proposals for papers are invited to consider different ways in which the visual and the legal interact in relation to different fields of intellectual property law. These might include considering how intellectual property law treats visual subject matters, how subjects of intellectual property law or the law itself are represented or perceived, relationships between legal texts and images, the use of visual metaphors and images in the development of intellectual property law and interdisciplinary interactions with fields such as art history, visual studies, aesthetics, socio-legal and cultural studies.

Papers that address this call from an historical or theoretical perspective are welcomed from scholars working across the disciplines. Established and junior scholars are encouraged to submit papers and there will be a session devoted to presentations from doctoral students.  Proposers should be aware that authors (except for PhD students) do not present their own papers at ISHTIP workshops. Rather, a discussant presents a brief summary and critique of papers to facilitate a more general discussion. To allow this, complete papers must be submitted by 1 June 2019.

Proposals for papers should be no more than one page and accompanied by a 2 page CV. Submissions should be sent by email to

Date for submission of proposals:  *Deadline extended* 23 November 2018

Expected date for notification of acceptance:  15 December 2018

Date for submission of full papers: 1 June 2019

Pardo on Federally Funded Slaving

Rafael I. Pardo, Emory University School of Law, has posted Federally Funded Slaving:
This Article presents a new frame of reference for thinking about the federal government’s complicity in supporting the domestic slave trade in the antebellum United States. While scholars have accounted for several methods of such support, they have failed to consider how federal bankruptcy legislation during the 1840s functionally created a system of direct financial grants to slave traders in the form of debt discharges. Relying on a variety of primary sources, including manuscript court records that have not been systematically analyzed by any published scholarship, this Article shows how the Bankruptcy Act of 1841 enabled severely indebted slave traders to reconstruct their financial lives and thus return to the business of enslaving black men, women, and children. Knowing this legal history gives us a richer understanding of the federalization of American slavery and its role in the development of the nation’s economy.

Update: Oxford Handbook of European Legal History

We recently posted a new book announcement for the Oxford Handbook of European Legal History. It has come to our attention that only three of the 50 contributors are women (Mia Korpiola, University of Turku; Marianna Muravyeva, University of Helsinki; and Ulrike Müssig, University of Passau). This is a striking pattern, and one we hope will not be replicated in future similar endeavors. 

(Correction: We missed Ulrike Müssig when this was initially posted, and added her name to this post on Oct.13, 2018.)

Monday, October 8, 2018

CFP: Law & History @ LSA

[We received the following CFP from the organizers of the Law & History Collaborative Research Network of the Law and Society Association.]

The Law & History CRN (CRN 44) offers to help organize legal history panels for the annual Law & Society Association annual meeting (May 30-June 2, 2019, in Washington DC).

The LSA submission deadline is coming up quickly – November 7, 2018 - so if you have a paper you'd like to present, please send your abstracts to us (email addresses below) by November 1, so that we have enough time to organize papers into panels by the deadline. Please also go ahead and submit your paper in the system as an individual paper and let us know that you have; the submission system requires that panels be constructed from those papers already in the system. If you're willing to serve as a chair and/or discussant for a legal history panel, please also let us know.

And if you are putting together a panel yourself, and would like us to sponsor it (or co-sponsor it), please feel free to designate it as a CRN 44 panel in the LSA submission process. This way we can add it to our list, and advertise it among CRN members as the conference approaches.

We look forward to hearing from you; please let us know if you have any questions. . . .

Joanna Grisinger
Associate Professor of Instruction
Center for Legal Studies, Northwestern University

Kimberly Welch
Assistant Professor 
Department of History, Vanderbilt University

Logan Sawyer,
Associate Professor
University of Georgia Law School

Kathryn Schumaker
Assistant Professor
Department of Classics and Letters, University of Oklahoma

Redburn on Zoning Out Families

Kate Redburn, a JD-PhD candidate at Yale, has posted Zoned Out: How Zoning Law Undermines Family Law's Functional Turn:
A fundamental contradiction in the legal definition of family lurks at the intersection of family law and zoning law. One set of doctrines has increasingly recognized the claims of “functional families,” the other has come to rely on the definition of “formal family”- those related by blood, marriage or adoption. As a result, the “functional turn” in family law is undermined or unstable in at least 32 states. Using original legal analysis and historical research, this paper illuminates that contradiction, explains how it came about, and argues that it must be resolved in favor of functional families. After a brief introduction (Part I), Part II surveys the "functional turn" in state family law, while Part III offers a novel history of the definition of family in zoning law, which I call the "formal turn." Part IV offers normative and practical reasons why the definition of family should be loosened, offering recommendations for legislative and judicial solutions.

Austin on Teaching "The Loving Story"

Regina Austin, University of Pennsylvania Law School, has posted The Loving Story: Using a Documentary to Reconsider the Status of an Iconic Interracial Married Couple, which is forthcoming in the Fordham Law Review:
The Loving Story (Augusta Films 2011), directed by Nancy Buirski, tells the backstory of the groundbreaking U.S. Supreme Court case, Loving v. Virginia, that overturned state laws barring interracial marriage. The article looks to the documentary to explain why the Lovings should be considered icons of racial and ethnic civil rights, however much they might be associated with marriage equality today. The film shows the Lovings to be ordinary people who took their nearly decade long struggle against white supremacy to the nation’s highest court out of a genuine commitment to each other and a determination to live in the place they considered home; to be members of a multiracial community that both supported and undermined them; and to be citizens of a state that went to extraordinary lengths, because of their races, to keep them from living in Virginia and raising their children there.

Saturday, October 6, 2018

Weekend Roundup

  • From 3:00 pm to 4:30 pm on Sunday, October 21, Ronald Chester of the Boston College Law School will give a talk on "The Legal Philosophy of Tapping Reeve" at the Litchfield Historical Society.  He will discuss “Reeve's importance as a transitional figure in the movement of early American law. He will  highlight Reeve's progressive, activist views concerning the rights both of married women and of enslaved people, as evidenced in Reeve's publication The Law of Baron and Femme and through his work on Elizabeth Freeman's (Mum Bett) case for her freedom.”  The event is free for members of Litchfield Historical Society and $5 for non-members.  Registration Required.
  • On September 31, Dean Risa Goluboff, Annette Gordon-Reed and others addressed a conference on the white supremacist rally in Charlottesville in 2017.  Cavalier Daily
  • On Friday, October 12, the University of Aberystwyth’s Department of Law and Criminology hosts the Annual Legal Wales Conference.  Prior to the conference, at 6:15 pm on Thursday October 11, the Welsh Legal History Society and the National Library will host a lecture and dinner at the National Library “to celebrate ‘The Legal Treasures of Wales,’ including the Boston Manuscript of the Laws of Hywel Dda, purchased by the Library in 2012.”  H/t: Cymru 247.  Also Welsh: this.
  • The American Political Science Association has posted its call for proposals for next year's annual meeting, which has the theme Populism and Privilege.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, October 5, 2018

"A House Divided": New APD Blog Launches

A new academic blog has launched: A House Divided. From the blog's inaugural post:
In simple terms, “A House Divided” brings together scholars who combine historical and theoretical tools to tackle important political questions. While we are all different in how we ask and answer these questions, we encourage our readers to look behind the significant issues of the day to see their origins. In short, “A House Divided” is committed to the idea that we cannot understand our current politics without also understanding how we arrived here. 
In more “technical” language, “A House Divided” aims to use the toolkits of American Political Development, American Political Thought, historical institutionalism, and political and intellectual history to shine a light on our current politics. The animating idea is that American politics is best understood through the lens of timely, snapshot quantitative studies and situating American politics in historical and developmental context. 
“A House Divided” aims, then, to carve out a currently unoccupied space: to provide for an educated lay and scholarly audience a site to place our current politics in a richer historical and theoretical context. Welcome!
Here are a few recent posts that may be of interest:

Hathaway et al. on War Manifestos

Oona A. Hathaway, William Holste, Scott J. Shapiro, Jacqueline Van De Velde, and Lisa Lachowicz have posted War Manifestos, which is forthcoming in volume 85 of the University of Chicago Law Review (2018):
This Article is the first to examine “war manifestos,” documents that set out the legal reasons sovereigns provided for going to war from the late-fifteenth through the mid-twentieth centuries. We have assembled the world’s largest collection of war manifestos — over 350 — in languages as diverse as Classical Chinese, German, French, Latin, Serbo-Croatian and Dutch. Prior Anglophone scholarship has almost entirely missed war manifestos. This gap in the literature has produced a correspondingly large gap in our understanding of the role of war during the period in which manifestos were commonly used. Examining these previously ignored manifestos reveals that states exercised the right to wage war in ways that would be inconceivable today. In short, the right to intervene militarily could be asserted in any situation where a legal right had been violated and all peaceful channels had been explored and exhausted. The Article begins by describing war manifestos. It then explores their history and evolution over the course of five centuries, explains the purposes they served for sovereigns, shows the many “just causes” they cited for war, and, finally, considers the lessons they hold for modern legal dilemmas. The discovery of war manifestos as a set of legal documents offers lawyers and legal scholars something rare: a new window into the international legal universe of the past. That is not only valuable in itself, but it also casts entirely new light on several long-standing legal debates.

Oxford Handbook of European Legal History

The Oxford Handbook of European Legal History, edited by Heikki Pihlajamäki, Markus D. Dubber, and Mark Godfrey, has been published. 
The Oxford Handbook of European Legal History charts the landscape of contemporary research and the shift from national legal histories to comparative methods, which have profoundly affected the way we understand legal transformation at the local, national, regional, European, and global level. The Handbook shows legal change in terms of continuous flow and exchange of influences, which take place within complicated combinations of cultural, political, and social networks. The present Handbook captures this revised conception of European legal history; it not only merely reflects the state of the discipline, but also aims to shape it. As the chapters of this Handbook show, ancient Roman law owed much to the Near Eastern legal orders. Later on, from the fifteenth century onwards, the major European legal orders gradually spread to all continents. Indeed, most of the globalization of law has taken place by way of European legal systems turning global.
The full table of contents is on the website, but this list of chapters in Part One suggests how interesting the whole is:

The World Historical Significance of European Legal History: An Interim Report
James Q. Whitman

The Invention of National Legal History
Joachim Rückert

The Birth of European Legal History
Randall Lesaffer

Abandoning the Nationalist Framework: Comparative Legal History
Kjell å. Modéer

Global Legal History: Setting Europe in Perspective
Thomas Duve

Thursday, October 4, 2018

The Docket 1:3: A Tribute to Robert W. Gordon

The Docket 1:3 (October 2018), A Tribute to the Scholarship of Robert W. Gordon, is now online.  As the editor explains:
On January 12, 2018, on a Friday afternoon in Palo Alto, California, a number of the United States’ leading legal historians converged on Stanford Law School to discuss a major new work, Taming the Past: Essays on Law in History and History in Law. They also traveled from throughout the country to celebrate the book’s author, Professor Robert W. Gordon, Professor of Law at Stanford University, and previously the Chancellor Kent Professor of Law and Legal History at Yale Law School. The proceedings that followed discussed Gordon’s broad contributions to three areas of inquiry: the common law tradition, legal history, and critical legal historicism—tracking closely to the organization of Gordon’s book. The formal arguments and scholarly claims about Gordon’s book were so significant that they merited publication as a series of ten comprehensive pieces in volume 70, issue 5 of the Stanford Law Review.

But word quickly spread, particularly among the community of American legal historians, that neither the intellectual richness nor the spirit of the event (collectively dubbed ‘Bobfest’ by attendees) could be fully captured in a series of traditional articles. So we were thrilled when Professors Ariela Gross of the University of Southern California Gould School of Law and Susanna Blumenthal of the University of Minnesota Law School, who had organized ‘Bobfest,’ asked if we would be interested in publishing a special issue of The Docket to capture the conversations that occurred during the proceedings. Of course, we jumped at the chance.

Special Issue: Indian Ocean of Law

Itinerario Volume 42 - Special Issue2 -  The Indian Ocean of Law: Hybridity and SpaceItinerario's new special issue on "The Indian Ocean of Law: Hybridity and Space" is now out. Here is the table of contents for the journal, 42:2 (August 2018):

  • Mahmood Koorie and Sanne Ravensbergen, "The Indian Ocean of Law: Hybridity and Space"
  • Fahad Ahmad Bishara, “Imagining Oceans of Law: Oman and East Africa, circa 1910”
  • Nathan Perl-Rosenthal, “On Mobile Legal Spaces and Maritime Empires: The Pillage of the East Indiaman Osterley (1779)”
  • Mahmood Kooria, “The Dutch Mogharaer, Arabic Muḥarrar, and Javanese Law Books: A VOC Experiment with Muslim Law in Java, 1747–1767″
  • Nadeera Rupesinghe, “Navigating Pluralities Reluctantly: The Marriage Contract in Dutch Galle”
  • Sanne Ravensbergen, “Anchors of Colonial Rule: Pluralistic Courts in Java, ca. 1803–1848”
  • Elizabeth Lhost, "Writing Law at the Edge of Empire: Evidence from the Qazis of Bharuch (1799-1864)"
  • Byapti Sur, “Individual Interests Behind the Institutional Façade: The Dutch East India Company’s Legal Presence in Seventeenth-Century Mughal Bengal”
Further information is available here.

(H/t: Elizabeth Lhost's Law, Religion, History)

Wednesday, October 3, 2018

Owensby and Ross on Making Law Intelligible in Comparative Context

Brian Owensby, University of Virginia, and Richard J. Ross, University of Illinois College of Law have posted Making Law Intelligible in Comparative Context, the introduction to the collection they edited, Justice in a New World: Negotiating Legal Intelligibility in British, Iberian, and Indigenous America (New York: NYU Press, 2018), 1-58:
This essay is the first chapter in an edited volume. It lays out the intellectual agenda for the project and situates the other essays in the volume.  Here is the agenda for the volume as a whole:

As British and Iberian empires expanded across the New World, differing notions of justice and legality played out against one another as settlers and indigenous people sought to negotiate their relationship. In order for settlers and natives to learn from, maneuver, resist, or accommodate each other, they had to grasp something of each other's legal ideas and conceptions of justice.

This volume advances our understanding of how natives and settlers in both the British and Iberian New World empires struggled to use the other’s ideas of law and justice as a political, strategic, and moral resource. In so doing, indigenous people and settlers alike changed their own practices of law and dialogue about justice. Europeans and natives appealed to imperfect understandings of their interlocutors’ notions of justice and advanced their own conceptions during workaday negotiations, disputes, and assertions of right. Settlers’ and indigenous peoples’ legal presuppositions shaped and sometimes misdirected their attempts to employ each other’s law.

Natives and settlers construed and misconstrued each other's legal commitments while learning about them, never quite sure whether they were on solid ground. Chapters explore the problem of “legal intelligibility”: How and to what extent did settler law and its associated notions of justice became intelligible — tactically, technically and morally — to natives, and vice versa? To address this question, the volume offers a critical comparison between English and Iberian New World empires. Chapters probe such topics as treaty negotiations, land sales, and the corporate privileges of indigenous peoples. Ultimately, Justice in a New World offers a dual comparative study of what it means for laws and moral codes to be legally intelligible.

Lichtman, "The Embattled Vote"

New from Harvard University Press: Allan J. Lichtman (American University), The Embattled Vote in America: From the Founding to the Present (September 2018). A description from the Press:
Americans have fought and died for the right to vote. Yet the world’s oldest continuously operating democracy guarantees no one, not even its citizens, the right to elect its leaders. 
For most of U.S. history, suffrage has been a privilege restricted by wealth, sex, race, residence, literacy, criminal conviction, and citizenship. Economic qualifications were finally eliminated in the nineteenth century, but the ideal of a white man’s republic persisted long after that. Today, voter identification laws, registration requirements, felon disenfranchisement, and voter purges deny many millions of American citizens the opportunity to express their views at the ballot box. 
An award-winning historian who has testified in more than ninety voting rights cases, Allan Lichtman gives us the deep history behind today’s headlines and shows that calls of voter fraud, political gerrymandering and outrageous attempts at voter suppression are nothing new. The players and the tactics have changed—we don’t outright ban people from voting anymore—but the battle and the stakes remain just as high.
More information is available here.