Beyond Harvard: Transplanting Legal Education

[We have the following announcement.]

Beyond Harvard: Transplanting Legal Education, 5-6 June 2018, Osgoode Hall Law School, Toronto, Canada

The [University of Tasmania] Law Faculty, along with the American Society for Legal History and Osgoode Hall Law School, is pleased to support an upcoming symposium to critically examine the role US legal education has played in law schools, law and lawyering across the 20th century.

In addition to providing rich historical insights, the symposium will speak directly to some of the inherited and global challenges of curriculum design and pedagogy confronting law schools today. By presenting the contingency of dominant influences and highlighting comparative experiences, the symposium should stimulate ideas for reforming legal education.

The symposium brings together legal scholars who share an interest in the history of legal education, legal transplants and US legal theory.  Presenters will speak on the history of US transplants in: China, Japan, Israel, the Philippines, Nigeria, Ghana, France, Sweden, Estonia, England, Australia and Canada.  In addition one paper will examine attempts to use US models to create programs to educate global lawyers.

Registration details to follow. Read the provisional program for the event.  For more information please contact: beyondharvard2018@gmail.com.

[Presenters and commentators include Jedidiah J Kroncke, Philip Girard, Model Kjell Å Modéer, David Sugarman, Pnina Lahav, Robert Gordon and Susan Carle.  H/t: J. Grisinger]

Goldstein on the Klan's Constitution

Jared A. Goldstein, Roger Williams University School of Law, has posted The Klan's Constitution:

For 150 years, the Ku Klux Klan has engaged in a campaign of violence and terror to maintain white rule. A central aspect of the Klan that has received little attention is that, from the time it was created in 1866 until today, the Klan has defined its mission as a defense of the Constitution. This article examines what the Constitution has meant to the Klan and what it means for American constitutional culture that the nation’s most notorious hate group has defined its mission in constitutional terms. As this article shows, the Klan has consistently been guided by the conviction that the United States is fundamentally a white nation, that the nation’s founders were dedicated to white rule, and that the Constitution should be understood as the source of white power. The Klan has long used its expressed dedication to the Constitution to justify violence as necessary to defend the nation and what it believes to be the true meaning of the Constitution.

The history of the Klan illustrates the recurring ways that political movements use constitutional rhetoric to advance narrow conceptions of American identity. The Klan has risen to prominence whenever whites have believed that their dominant status is threatened. Over the course of its existence, the Klan has succeeded in recruiting thousands of members by portraying threats to white power as attacks on the nation itself. Mobilizing to defend white power, Klan members have naturally rallied around the Constitution, which Americans have long understood to embody the nation’s fundamental values. To those who think of the United States as a white nation, defending the Constitution means defending whiteness

Penna on Byzantine Law and Italian City-States

Daphne Penna, University of Groningen Faculty of Law, has posted Odd Topics, Old Methods and the Cradle of the Ius Commune: Byzantine Law and the Italian City-States, which appeared in the Utrecht Law Review 13 (2017): 49-55:

In this paper I try to demonstrate how Byzantine law, a subject odd and exotic at first sight provides a piece of the puzzle that helps us to complete the big picture, the origins of our European legal identity. I refer to some concrete examples of legal interaction between the Byzantine and the Western side of Europe in the tenth, eleventh and twelfth centuries – a period in which the ius commune began to take shape – and explain the method I used step by step, the specific challenges I confronted in the sources and the outcomes of this approach. The comparative legal study of documents of the medieval period at a European level can help us to answer the question whether, long before the making of today’s Europe, today’s European countries were already connected by common legal forms.

Research Handbook on History of Corporate and Company Law

We've recently learned of the publication of Research Handbook on the History of Corporate and Company Law (Edward Elgar Publishing), edited by Harwell Wells, Temple University, James E. Beasley School of Law:

Understanding the corporation means understanding its legal framework, but until recently the origins and evolution of corporate law have received relatively little attention. The topical chapters featured in this Research Handbook, contributed by leading scholars from around the world, examine the historical development of corporation and business organization law in the Americas, Europe, and Asia from the ancient world to modern times, providing an invaluable resource for both further historical research and scholars seeking the origins of present-day issues.

Today, the corporation plays a dominant role in economics, politics, and societies across the globe. Understanding the corporation means understanding its legal framework but until recently, the origins and evolution of corporate law have received relatively little attention. This Handbook sheds new light on the historical development of both the corporation and business organization law.

This extensive collection brings together contributions from an array of international academics to provide the first wide-ranging history of the laws of corporations and business organizations from ancient to modern times. The contributors offer a global exploration of the development of corporation and company law, moving beyond the United States and Western Europe to present studies in Mexico, India and China, as well as addressing the trajectory of scholarly debate. Not only do the contributions examine the growth of the law of public corporation, they also address the development of laws governing other business forms.

This Handbook will prove an invaluable resource for corporation law and business scholars, as well as business and legal historians and economists.

TOC is here.

Studies in Legal History: Now on Facebook!

Studies in Legal History, the book series of the American Society for Legal History, is now on Facebook and ready to be followed  Latest post: the endorsements for the Martha S. Jones's forthcoming Birthright Citizens: A History of Race and Rights in Antebellum America. 

Poldnikov on Comparativism, Legal History, and the Functional Method

Dmitry Poldnikov, National Research University Higher School of Economics, has posted The Functional Method as the Staple of Comparative Studies of European Legal History in the Early 21st Century?

The Europeanization of legal scholarship and legal education facilitates the emergence of comparative legal science as a promising new tool to discover similarities and differences between two or more jurisdictions and their past development. Yet, the specific methodology of such studies is still not clear. Some legal historians hold that comparative legal history does not or should not have its own methodology other than that of comparative law. Others warn against imposing a contemporary agenda and toolbox on legal history. The author of this article aims to clarify this debate by examining the prospect of applying one of the most popular methods of comparative law – the functional method – to the domain of legal history. On the basis of several examples from the European legal past he claims that examining the functions (the social purpose) of legal norms can help legal historians in three ways: first, to determine the objects of comparison and the sources of analysis, despite the variety of verbal shortcuts (the initial stage of research); second, to analyse legal norms from the perspective of solving social problems in the past – to study the 'law in action'; and third, to arrange the results of the research according to meaningful criteria at the final stage.

Liu on Secession and the Civil War

Han Liu, Tsinghua University School of Law, has posted Three Arguments of ‘Right to Secession’ in the Civil War: International Perspectives, which appears in the Hastings International and Comparative Law Review 41 (2017): 53-97:

Secession becomes a source of controversies again both within and outside the United States. In both political discourse and public imagination, the image of secession of the South in the mid- Nineteenth century, as well as the Civil War it triggered, occupies an important position. Conducted in blood, the end of the Civil War is usually thought to establish a constitutional rule that no state shall secede from the Union. Challenging the conventional understanding, recent legal scholarship has shown that the legality/constitutionality of secession did not receive a definitive, legal answer at Appomattox. But the question remains: Why so? Explaining the puzzle, this article traces out the debate over the “rights of secession” before and during the Civil War, putting it into contemporaneous international horizons. It argues that, the Civil War cannot resolve the legality of secession because Southern secessionism actually resorted to not only legal/constitutional arguments, but also revolutionary and nationalistic justifications, both of which were extralegal. The dispute eventually went to a violent solution, because secessionists, with these arguments, had already moved beyond the law. In the contemporaneous legal imagination, secession belongs in the domain of sovereignty that involves war and violence, not the arena of law and the court.

Managing Editor Sought for SHARIAsource at HLS

[We have the following job announcement from the Islamic Legal Studies Program of the Harvard Law School for a Managing Editor for SHARIAsource.]

Duties & Responsibilities.  The Managing Editor (ME) for Islamic Legal Studies Program (ILSP): SHARIAsource will manage the daily operations of the Program and Portal (SHARIAsource)—designed to collect and organize sources on Islamic law content and context in a way that is accessible and useful. For the Portal, the ME is responsible for supporting and managing (1) portal content and publication, (2) portal technology and development; and (3) program administration and communication. For the Program, the ME will manage the office and small staff; plan and organize events; be the principal administrative contact for internal and external program constituencies; implement and review policies as needed; anticipate and resolve problems, updating supervisor as needed. The ME is expected to work with minimal supervision in a work environment of multiple and conflicting priorities, and to collaborate with relevant individual and institutional stakeholders.

Portal Content/Publications

• Works collaboratively to solicit and publish new content on Islamic law through editing and a system of peer review on various outlets, including online (portal, blog, newsletter); print (books, occasional papers series, etc); and social media outlets; manages and grows the network of editors (scholars and students) and their contributions

• Manages program content projects including: library digitization, editor and institutional collaboration, resource-building

Portal Technology Development

• Works collaboratively with developers and various stakeholders to guide the development of tools, apps, and resources that facilitate the use and accessibility of research on Islamic law

• Maintains the portal, and keeps it free from bugs

Administration & Communication

• Communication: Communicates SHARIAsource content generally and to the community of editors through online platforms (portal, blog, website), listserv, newsletter, social media, in-person meetings, and other venues as appropriate; special emphasis on building a community of editors engaged with the site

• Administration: Maintains the budget and accounting; assists in training, scheduling, and distributing work to other staff/temps, students/RAs, and editors; coordinates activities; performs other administrative duties, coordinating with other Program staff, as needed.

Performs other duties as necessary

Basic Qualifications. Bachelor’s degree and five or more years of related experience in administrative, editorial and business/tech start-up environment.

Additional Qualifications. JD or other advanced degree (MA/MPP/MPA+) strongly preferred. Knowledge of Middle Eastern Studies and working knowledge of law preferred. Excellent organizational skills with particular ability to prioritize work in an environment with multiple and conflicting interests. Proven project/program management skills. Excellent interpersonal, analytical, and communication skills. Ability to work with minimal supervision and discreetly handle complex and confidential information. Proficiency with variety of software, ability to learn new ones and manage portal development based on program needs.

Additional Information. This is a term appointment currently expected to extend to one year from start date, subject to funding and departmental need.  All offers to be made by HLS Human Resources.  For more information and to apply, please visit: 44641BR:  Managing Editor, SHARIAsource.

Winkler's "We the Corporations"

Adam Winkler, University of California, Los Angeles Law, has published We the Corporations: How American Businesses Won Their Civil Rights (Liveright):

In this groundbreaking portrait of corporate seizure of political power, We the Corporations reveals how American businesses won equal rights and transformed the Constitution to serve the ends of capital. Corporations—like minorities and women—have had a civil rights movement of their own, and now possess nearly all the same rights as ordinary people. Uncovering the deep historical roots of Citizens United, Adam Winkler shows how that controversial 2010 Supreme Court decision was the capstone of a two-hundred-year battle over corporate personhood and constitutional protections for business. Bringing to resounding life the legendary lawyers and justices involved in the corporate rights movement—among them Daniel Webster, Roger Taney, Lewis Powell, and even Thurgood Marshall—Winkler’s tour de force exposes how the nation’s most powerful corporations gained our most fundamental rights and turned the Constitution into a bulwark against the regulation of big business.

Endorsements include:

“An eye-opening account of how corporations became ‘persons’ entitled to constitutional rights and used those rights to impede efforts to regulate them in the interests of real people.” — David Cole, author of Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law

“An incisive account of the unlikely rise of an idea that has nearly turned American politics upside down.” — Jill Lepore, author of The Secret History of Wonder Woman

“This is a brilliant, beautifully written book on a topic affecting almost every area of law: how did corporations come to have rights under the Constitution? Professor Winkler carefully details this history from English law to the present, and the book is filled with new insights and information. Any future discussion of rights for corporations will be shaped by this wonderful book.” — Erwin Chemerinsky, dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

AJLH 57:4 & 58:1

Here’s the TOC for the American Journal of Legal History, 57:4 (December 2017):

Herbert Lovelace. King Making: Brown v. Board and the Rise of a Racial Savior

Simon Devereaux. Execution and Pardon at the Old Bailey 1730-1837

Richard Hamm. Off the streets: The Origins of the Doctrine of Commercial Speech

William Ossipow, Dominik Gerber. The Reception of Vattel's Law of Nations in the American Colonies: From James Otis and John Adams to the Declaration of Independence

Adam M. Carrington. Running the Robed Gauntlet: Southern State Courts' Interpretation of the Emancipation Proclamation

Book Reviews

And here’s the TOC for 58:1 (March 2018):

Editorial
Alfred L Brophy; Stefan Vogenauer

“In a Democracy We Should Distribute the Lawyers”: The Campaign for a Federal Legal Service, 1933-1945
Daniel R Ernst

The Lawfulness of Gender Reassignment Surgery
Penney Lewis

“Patent Property”: The Fulton Lawyers and the Franchising of Progress
Timothy Milford

Slavery, Race, and Outlawry: The Concept of the Outlaw in Nineteenth-Century Abolitionist Rhetoric
Deborah A Rosen

Book Reviews

Mangham on Dickens' Forensic Realism

Andrew Mangham, University of Reading, published Dickens's Forensic Realism: Truth, Bodies Evidence in 2017. From the press:

Dickens’s Forensic Realism: Truth, Bodies, Evidence by Andrew Mangham is one of the first studies to bring the medical humanities to bear on the work of Dickens. Turning to the field of forensic medicine (or medical jurisprudence), Mangham uncovers legal and medical contexts for Dickens’s ideas that result in new readings of novels, short stories, and journalism by this major Victorian author. Dickens’s Forensic Realism argues that the rich and unstable nature of truth and representation in Dickens owes much to the ideas and strategies of a forensic Victorian age, obsessed with questioning the relationship between clues and truths, evidences and answers.

As Mangham shows, forensic medicine grew out of a perceived need to understand things with accuracy, leaning in part on the range of objectivities that inspired the inorganic sciences. At the same time, it had the burden of assisting the law in convicting the guilty and in exonerating the innocent. Practitioners of forensic medicine were uniquely mindful of unwanted variables such as human error and the vagaries of interpretation. In readings of Oliver Twist, Our Mutual Friend, Bleak House, The Pickwick Papers, Great Expectations, and Dickens’s early journalism, Mangham demonstrates that these questions about signification, perception, and reality are central to the stylistic complexities and playful tone often associated with Dickens. Moreover, the medico-legal context of Dickens’s fiction illuminates the richness and profundity, style and impact of Dickens’s narratives.

Praise for the book:

“This is a beautifully written, pioneering book—one of the first in this new area of forensic criminal studies that focus on literature. For Victorianists across the fields of English literature, history, history of science, history of law, and medical humanities, and for Dickens scholars in particular, Dickens’s Forensic Realism will be indispensable.” -Marlene Tromp

“Dickens’s Forensic Realism is a fascinating and innovative book that will make an important and unexpected contribution to both Dickens studies and history of science.” -Holly Furneaux 

Further information is available here. 

Schmidt's "Sit-Ins"

Christopher W. Schmidt, Chicago-Kent Law, has published The Sit-Ins: Protest and Legal Change in the Civil Rights Era, with the University of Chicago Press:

On February 1, 1960, four African American college students entered the Woolworth department store in Greensboro, North Carolina, and sat down at the lunch counter. This lunch counter, like most in the American South, refused to serve black customers. The four students remained in their seats until the store closed. In the following days, they returned, joined by growing numbers of fellow students. These “sit-in” demonstrations soon spread to other southern cities, drawing in thousands of students and coalescing into a protest movement that would transform the struggle for racial equality.

The Sit-Ins tells the story of the student lunch counter protests and the national debate they sparked over the meaning of the constitutional right of all Americans to equal protection of the law. Christopher W. Schmidt describes how behind the now-iconic scenes of African American college students sitting in quiet defiance at “whites only” lunch counters lies a series of underappreciated legal dilemmas—about the meaning of the Constitution, the capacity of legal institutions to remedy different forms of injustice, and the relationship between legal reform and social change. The students’ actions initiated a national conversation over whether the Constitution’s equal protection clause extended to the activities of private businesses that served the general public. The courts, the traditional focal point for accounts of constitutional disputes, played an important but ultimately secondary role in this story. The great victory of the sit-in movement came not in the Supreme Court, but in Congress, with the passage of the Civil Rights Act of 1964, landmark legislation that recognized the right African American students had claimed for themselves four years earlier. The Sit-Ins invites a broader understanding of how Americans contest and construct the meaning of their Constitution.

Here are two endorsements:

Michael Klarman, Harvard Law School, author of From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 

“Schmidt, one of our most talented young legal historians, has written an engaging and fast-paced narrative of one of the civil rights movement’s epic events: the sit-in demonstrations. Thoroughly researched and convincingly argued, Schmidt’s book is a model of the ‘new’ legal history: He demonstrates how ordinary Americans shape the development of constitutional law and how the sundry interactions of diverse institutions influence constitutional change in unpredictable ways. The sit-in movement finally has the legal history it deserves.”

Risa L. Goluboff, dean, University of Virginia School of Law

“Schmidt has written the definitive legal treatment of the sit-in movement of the 1960s. He masterfully weaves together the social, political, and legal history of the transformative protests of the brave African American college students who challenged Jim Crow. Schmidt is unafraid to look at the messiness of the law—the confusions, gaps, and inconsistencies that most scholars try to neaten up. There is conflict here, and that conflict is deeply illuminating. The Sit-Ins tells a fascinating story that adds much to our understanding of the relationship between law and social movements, the role of popular constitutionalism outside the courts, and the meaning of the Constitution itself.”

Weekend Roundup

• David L. Goodwin, a Staff Attorney at Appellate Advocates, published the article Judge Jane Bolin, originally in the Dutchess County Historical Society Yearbook but now of the website of the Historical Society of New York Courts. 

• Stephen B. Presser, the Raoul Berger Professor of Legal History, emeritus, at the Northwestern University School of Law, has been named a 2018-19 Visiting Scholar in Conservative Thought and Policy at the University of Colorado Boulder.

• Eleanor Goerss, Pforzheimer Fellow ’17, at Harvard Law, explains How to Read a Manor Court Roll on Et Seq., the blog of HLS Library’s Historical & Special Collections Deaprtment.  H/t: Elizabeth Papp Kamali.

• Seth Barrett Tillman, National University of Ireland, Maynooth, has been posting what we understand are parts of an article that is forthcoming in the South Texas Law Review.  The three we've spotted are (1) A Response to Professor Victoria F. Nourse’s Reclaiming the Constitutional Text from Originalism: The Case of the Foreign Emoluments Clause; (2) The Foreign Emoluments Clause, the Teachings of the American Civil War, and a Response to Mike Stern: The Aftermath of the Hamilton Documents Imbroglio; and (3) Presidential Electors and the Brief of the Legal Historians in CREW v. Trump.

• ICYMI: Saul Cornell, Fordham Law, on Five types of gun laws the Founding Fathers loved.  (H/t: Faculty Lounge).  Over at the Faculty Lounge, Robert Baker on the freedom suit of Beverly Dowling.  An obituary of the Nader Raider David Reynolds Zwick.

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

Feyen on American Legal Realism and European Constitutional Scholarship

Stef B.A.S. Feyen, Flemish Research Foundation, has posted The Dogmatic Slumbers of Constitutional Doctrine:

My forthcoming (2019) dissertation raises the question whether European constitutional scholarship has adequately dealt with some of the challenges American Legal Realists have launched.

There, I undertake to reconstruct some of the claims of American legal realism so as to be able to critically subject European constitutional scholarship to these claims. Conversely, I (re)construct some theoretical and methodological answers that have been proffered so as to fend off the aforementioned challenges. The defense resting on the justificatory focus of legal scholarship (as opposed to a focus on discovery) has been one of the common responses, as I try to explain below, to dislodge realist criticism.

Relativizing the context distinction in the context of legal scholarship, as I will try to do here, does not by itself provide a conclusive argument for a reconceptualization of doctrinal scholarship. However, in my dissertation I offer additional arguments to establish the need for this reconceptualization, focusing on the relativity of the autonomy of the law as an object of inquiry for legal scholarship, and discussing the concept of “reification” as I see it emerging out of legal realist thought. This is a work in progress, which I am happy to discuss further.

H/t: Legal Theory Blog

Horton on Disclosures before the '33 Securities Act

Brent J. Horton, Fordham University, has posted In Defense of a Federally Mandated Disclosure System: Observing Pre-Securities Act Prospectuses, which appeare din the American Business Law Journal 54 (2017): 743:

Some legal scholars—skeptics—question the conventional wisdom that corporations failed to provide adequate information to prospective investors before the passage of the Securities Act of 1933 (Securities Act). These skeptics argue that the Securities Act’s disclosure requirements were largely unnecessary. For example, Paul G. Mahoney in his 2015 book, Wasting A Crisis: Why Securities Regulation Fails, relied on the fact that the New York Stock Exchange (NYSE) imposed disclosure requirements in the 1920s to conclude that stories about poor pre-Act disclosure are “demonstrably wrong”. (Likewise, Roberta Romano argued in Empowering Investors that “there is little tangible proof” that disclosure was inadequate pre-Securities Act.)

This Article sets out to determine who is correct, those that accept the conventional wisdom that pre-Securities Act disclosure was inadequate, or the skeptics?

The Author examined twenty-five stock prospectuses (the key piece of disclosure provided to prospective investors) that predate the Securities Act. This primary-source documentation strongly suggests that—contrary to the assertions of skeptics—pre-Act prospectuses did fail to provide potential investors with financial statements, as well as information about capitalization and voting rights, and executive compensation.

Roiphe and Green on Presidential Control of the Department of Justice

Rebecca Roiphe, New York Law School, and Bruce A. Green, Fordham University School of Law, have posted Can the President Control the Department of Justice? which is forthcoming in the Alabama Law Review:

As the investigation into President Trump's campaign ties to Russia grows increasingly intense, it is critical to understand how much control the President has over the Attorney General and the Department of Justice. Some critics claim that the President has absolute power to direct federal prosecutors and control their decisions. The President and his lawyers, joined by several scholars, take this claim one step further by arguing that the chief executive could not be guilty of obstruction of justice because his control over all prosecutorial decisions is absolute. This issue last arose during the Nixon Administration. The Department of Justice and the Independent Counsel disagreed about whether the President, as head of the executive branch under Article II, could direct individual prosecutions if he so chose. The Supreme Court in United States v. Nixon left the issue unresolved and has never revisited it.

This article addresses the question of presidential power principally from an historical perspective. It argues that the Department of Justice is independent of the President, and its decisions in individual cases and investigations are largely immune from his interference or direction. This does not result from any explicit constitutional or legislative mandate, but is rather based on an evolving understanding of prosecutorial independence and professional norms.

American democratic discourse has included the value of independent prosecutions from its inception, and scholars have debated how much this concept influenced the initial structure of American government. In the late 18th century, federal prosecutors enjoyed a significant degree of independence from the White House, both because of the diffuse local nature of federal prosecutions and the vague and overlapping lines of authority. As federal law grew in scope and complexity, there was an increased need to consolidate and rationalize the legal arm of the government. Ultimately the Department of Justice assumed this function under the executive branch. In 1870 when it created the law department, Congress was not overly concerned that partisan politics would infiltrate and undermine the rule of law, because at the time expertise, including professional norms for attorneys, were considered the ultimate protection against partisan corruption. In arguing that professional norms operated as an internal barrier between the Department of Justice and the remainder of the executive branch, this Article contributes to a growing debate about intra-branch checks and balances.

H/t: Legal Theory Blog

A Post-Doc at Northwestern's Center for Legal Studies

[We have the following announcement.]

Northwestern University’s Center for Legal Studies invites applications from outstanding candidates for a full-time, two-year, non-renewable teaching and research post-doctoral fellowship beginning fall 2018. The purpose of the fellowship is to recognize and support original interdisciplinary research and teaching in the study of law and inequality in race, crime, policing, mass incarceration, civil rights, and related subject areas.

Eligible candidates will hold a PhD in sociology, political science, history, psychology, economics or related disciplinary and interdisciplinary fields by the start of the appointment (August 15, 2018) and have a record of excellence in teaching and research in law and racial inequality.

The fellowship will be held in residence in Northwestern University’s Center for Legal Studies for two academic years (2018-19 & 2019-20).  Fellows will teach two (2) undergraduate courses per year of the fellowship (4 total) and participate in the intellectual life of the Center including attending speaker events, workshops and reading groups in interdisciplinary legal studies.

Application info here.

Shahani on Partition refugees in Bombay

Uttara Shahani (Cambridge University) has published "Refugee Legal Challenges to Bombay Government's Land Requisition Housing Scheme: Nation-making in Partitioned India" in Economic & Political Weekly 53:4 (27 Jan. 2018), 73-79. Here is the abstract:

Partition refugees who arrived in India challenged the laws that various provincial governments enacted to "regulate" and "rehabilitate" them. By looking at one of the earliest and key cases concerning writs that emerged out of Sindhi refugee legal challenges to the Bombay government's land requisition scheme of 1947-48, this article suggests that partition refugees helped to shape the legal and constitutional landscape of newly independent India. 

Further information is available here.

Bilder to Speak on "The Lady and George Washington"

On Thursday, March 1st, from 4:00 pm - 5:30 pm at Luce Hall, 34 Hillhouse Avenue, Room 202, Yale University, Mary Sarah Bilder, the Founders Professor of  Law at Boston College Law School, will deliver the annual lecture of the Yale Center for Historical Enquiry and the Social Sciences, entitled The Lady and George Washington: The Constitutional Politics of Gender.

Szto on Chinese American Property Ownership

Mary Szto, Valparaiso University Law School, has posted From Exclusion to Exclusivity: Chinese American Property Ownership and Discrimination in Historical Perspective, which originally appeared in the Journal of Transnational Law and Policy 33 (2015-16):

Chinese investors are now the largest number of foreign investors in US residential and commercial real estate. Many buy in upscale, exclusive markets. It is little known, however, that in the past Chinese faced severe property discrimination in the US. This paper traces three eras of Chinese property ownership and discrimination. Many Chinese first came to the US for the 1849 Gold Rush and for building the first transcontinental railroad. However, during the Exclusion Era (1882-1943), Chinese were prohibited from immigrating to the US and becoming citizens because they were deemed unassimilable. Racial restrictive covenants in deeds were first used against the Chinese. Chinese lived in Chinatowns not only because of restrictive covenants, but because of extreme violence against them elsewhere. During the Cold War era, Chinese Americans were deemed a "model assimilated minority" worthy of living in suburbs. The Chinese had not changed, but geopolitics had. Unfortunately, the model minority myth pitted minority groups against each other. In the Post-Cold War era, the Chinese American population has multiplied. However, along with other Asian Americans and minorities, Chinese Americans face housing, education, and job discrimination. I conclude that we must unearth the past history of property discrimination to address continuing discrimination, leverage the current investment, and to seek property equity and healing communities for all.

Colwell on reclaiming native American culture

Chip Colwell, Denver Museum of Nature & Science, has published Plundered Skulls and Stolen Spirits: Inside the fight to reclaim Native America's Culture with the University of Chicago Press in its Law and Society series. The book won Choice Magazine's Outstanding Academic Title Award. From the publisher: 

Who owns the past and the objects that physically connect us to history? And 
who has the right to decide this ownership, particularly when the objects are sacred or, in the case of skeletal remains, human? Is it the museums that care for the objects or the communities whose ancestors made them? These questions are at the heart of Plundered Skulls and Stolen Spirits, an unflinching insider account by a leading curator who has spent years learning how to balance these controversial considerations.

Five decades ago, Native American leaders launched a crusade to force museums to return their sacred objects and allow them to rebury their kin. Today, hundreds of tribes use the Native American Graves Protection and Repatriation Act to help them recover their looted heritage from museums across the country. As senior curator of anthropology at the Denver Museum of Nature & Science, Chip Colwell has navigated firsthand the questions of how to weigh the religious freedom of Native Americans against the academic freedom of scientists and whether the emptying of museum shelves elevates human rights or destroys a common heritage. This book offers his personal account of the process of repatriation, following the trail of four objects as they were created, collected, and ultimately returned to their sources: a sculpture that is a living god, the scalp of a massacre victim, a ceremonial blanket, and a skeleton from a tribe considered by some to be extinct. These specific stories reveal a dramatic process that involves not merely obeying the law, but negotiating the blurry lines between identity and morality, spirituality and politics.

Things, like people, have biographies. Repatriation, Colwell argues, is a difficult but vitally important way for museums and tribes to acknowledge that fact—and heal the wounds of the past while creating a respectful approach to caring for these rich artifacts of history.

 Praise for the book:

 "Colwell ably and sensitively tells the often conflict-ridden story of how and why museums in the US relinquished their hold over this material. . . . Colwell finds himself squarely in the middle of each quandary: a practising anthropologist who works alongside Native Americans every day and is sensitive to their cultural dynamics. Colwell’s account favours the Native American perspective--a sensible approach for a book aimed at scientifically literate readers who may lean the other way. Readers will come away with a deeper appreciation of Native American cultural imperatives and the complexity of the situation." -New Scientist

“Plundered Skulls and Stolen Spirits breaks new ground. Colwell’s dual roles of museum curator and human rights advocate offers a narrative of personal growth and professional practice that couples a humanist’s sensitivities with a historian’s insistence on primary documentary sources. The resulting breath of fresh air contributes mightily to still-controversial conversations about American reburial and repatriation. The message sounds loud and clear: Twenty-first century museums can indeed stand tall in addressing their own complex histories. Why do some still feel obliged to cover up past performance, to lock out qualified researchers from their archives and to sugar-coat their past in the hopes that nobody will notice?” -David H. Thomas

“Plundered Skulls and Stolen Spirits uses the story of one museum to show how Native American symbols of identity and ceremony and ancestral bones were initially appropriated as objects of cultural patrimony, but recently have become part of a complicated struggle of ownership. As Colwell profoundly shows, the emotional price paid by everyone involved—Native American, archaeologist, and museum curator—is never small.” -Larry J. Zimmerman

Further information is available here. 

Thomas Responds to Tidmarsh on English Fire Courts and Article III

Suja A. Thomas, University of Illinois College of Law, has posted The Limits of History: The English Fire Courts, Congress, the Seventh Amendment Civil Jury Trial, which appeared in the University of Chicago Law Review Online 83 (2018): 281-95.  It is a response to Jay Tidmarsh, The English Fire Courts and the American Right to Civil Jury Trial, 83 U Chi L Rev 1893 (2016).

Can Congress create Article III courts to decide civil cases where plaintiffs claim damages that are related to certain crises, such as the mortgage crisis--thus, shifting those cases from juries to judges to decide? Jay Tidmarsh said yes in an article published in the University of Chicago Law Review. He did not properly consider, however, the limits of history's influence on the Seventh Amendment. This article describes those limits and the actual conditions for the right to a jury trial in the late eighteenth century--the relevant time period for determining the scope of the jury trial. It further shows that Congress does not have the significant authority to usurp the jury for which Tidmarsh has argued.

Baldy Fellowships in Interdisciplinary Legal Studies, 2018-2020: Call for Applications

UPDATE: The deadline for these fellowships has been extended to March 9.

We have the following call for applications:

The Baldy Center for Law & Social Policy at the State University of New York at Buffalo plans to award several fellowships to scholars pursuing important topics in law, legal institutions, and social policy. Applications are invited from junior and senior scholars from law, the humanities, and the social and natural sciences. 

Fellows are expected to participate regularly in Baldy Center events, but otherwise have no obligations beyond vigorously pursuing their research. Fellows receive standard university research privileges (access to university libraries, high-speed Internet, office space, computer equipment, phone, website space, working paper series, etc.), and are encouraged to develop collaborative research projects with faculty members where appropriate. 

Post-Doctoral Fellowships are available to individuals who have completed the Ph.D. or J.D. but have not yet begun a tenure-track appointment. Post-Doctoral Fellows will receive a stipend of $40,000, up to $2000 in annual professional travel support, and appropriate relocation assistance. Post-doctoral fellowships are ordinarily for a period of two academic years. Information on current and past Baldy Post-Doctoral Fellows is available here.

Senior Fellowships are available for established scholars who wish to work at the Center, typically during a funded sabbatical or research leave. Awardees will receive a living expense allowance of $1,800 per month during the period of their residence as well as appropriate relocation assistance. Senior Fellows typically spend one semester in residence, but other terms are possible. Information on current and past Baldy Senior Fellows is available here.

For more information and to apply, follow the link: Baldy Fellowships in Interdisciplinary Legal Studies 2018.

Chigozie on International Organizations and Global Security

Nnuriam Paul Chigozie, University of Lagos, has posted The Quest for Global Security and Peace, and the Rise of International Organizations: Historical Perspective, which appears in the Equatorial Journal of History and International Relations 1 (2018): 1-12:

Among the central concerns of international politics are questions of war and peace. Why does war happen? How can wars be ended? Is it possible to avoid conflicts altogether? Throughout the course of world history, people aspired for global peace, security, socio-cultural relationship, and global federations. The Peace of Westphalia signed in October 1648 saw the rise of sovereign states in the modern sense in Europe, but the cause of global peace and security did not receive a significant boost until more than a century and a half thereafter, when the Congress of Vienna consciously attempted, for the first time in modern diplomatic history, to substitute an idea of the collective peace and security of Europe in place of old competitive security that had survived in the Balance of Power system. Against this background, this study aims to analyze how the quest for global peace and security led to the rise of international organizations over the years.

Bluff, "Against the Deportation Terror"

New from Temple University Press: Against the Deportation Terror: Organizing for Immigrant Rights in the Twentieth Century (Nov. 2017), by Rachel Ida Bluff (University of Wisconsin-Milwaukee). A description from the Press:

Despite being characterized as a "nation of immigrants," the United States has seen a long history of immigrant rights struggles. In her timely book Against the Deportation Terror, Rachel Ida Buff uncovers this multiracial history. She traces the story of the American Committee for the Protection of the Foreign Born (ACPFB) from its origins in the 1930s through repression during the early Cold War, to engagement with "new" Latinx and Caribbean immigrants in the 1970s and early 1980s. 

Functioning as a hub connecting diverse foreign-born communities and racial justice advocates, the ACPFB responded to various, ongoing crises of what they called "the deportation terror." Advocates worked against repression, discrimination, detention, and expulsion in migrant communities across the nation at the same time as they supported reform of federal immigration policy. Prevailing in some cases and suffering defeats in others, the story of the ACPFB is characterized by persistence in multiracial organizing even during periods of protracted repression. 

By tracing the work of the ACPFB and its allies over half a century, Against the Deportation Terror provides important historical precedent for contemporary immigrant rights organizing. Its lessons continue to resonate today.

An advance review:

"Against the Deportation Terror makes a significant contribution to the historiography of immigration, citizenship, and noncitizenship. Buff's revisionist history of the American Committee for the Protection of the Foreign Born (ACPFB) provides the framework for her larger argument about the political mobilization of noncitizens within the increasingly repressive immigration regime between the 1920s and the early 1960s. The ACPFB's history is vital to an understanding of the historical roots of the contemporary immigrants' rights movement. This book will play a major role in the burgeoning scholarship on the history of the multinational 'American Left' in the twentieth century."
—David Gutiérrez

More information is available here.

Sunday Book Review Roundup

Tera Hunter's Bound in Wedlock: Slave and Free Black Marriage in the Nineteenth Century is reviewed at Common-Place.

At Public Books is a review of We Will Win the Day: The Civil Rights Movement, the Black Athlete, and the Quest for Equality by Louis Moore.

Marjorie Spruill's Divided We Stand: The Battle Over Women's Rights and Family Values That Polarized American Politics is reviewed in The Washington Independent Review of Books.

In The Washington Post is a review of Black Fortunes: The Story of the First Six African Americans Who Escaped Slavery and Became Millionaires by Shomari Wills.

As always there are several interviews of interest at the New Books Network.  Sasha Turner discusses her Contested Bodies: Pregnancy, Childrearing, and Slavery in Jamaica.  Mahon Murphy speaks about his Colonial Captivity during the First World War: Internment and the Fall of the German Empire, 1914-1919.  Howard I. Kushner is interviewed about his On the Other Hand: Left Hand, Right Brain, Mental Disorder, and History.  Christopher Grobe introduces his The Art of Confession: The Performance of Self from Robert Lowell to Reality TV.  Christopher Haber speaks about his I Remain Yours: Common Lives in Civil War Letters.  Finally, Richard Brown discusses his Self-Evident Truths: Contesting Equal Rights from the Revolution to the Civil War.

In The Nation, Gabriel Winant reviews Lane Windham's Knocking on Labor’s Door: Union Organizing in the 1970s and the Roots of a New Economic Divide.  Also in The Nation is a review of The Impossible Presidency: The Rise and Fall of America's Highest Office by Jeremi Suri.

Richard Rothstein's The Color of Law: A Forgotten History of How Our Government Segregated America is reviewed in The New York Review of Books

Roxanne Dunbar-Ortiz's Loaded: A Disarming History of the Second Amendment is reviewed in the Los Angeles Review of Books.  Also at the site is a review of 1984: India's Guilty Secret by Pav Singh.  Finally, The Gifted Generation: When Government Was Good by David Goldfield is also reviewed at LARB.

Weekend Roundup

• “The Franklin D. Roosevelt Presidential Library and Museum will present an African American History Month conversation and book signing with David Lucander, the author of Winning the War for Democracy: The March on Washington Movement, 1941-1946 on Wednesday, February 28, 2018. The program will begin at 7:00 p.m. in Henry A. Wallace Center at the FDR Presidential Library and Home"  More. 

• The Georgetown University School of Continuing Studies will host a panel discussion of Fear City: New York's Fiscal Crisis and the Rise of Austerity Politics, with the author, Kim Phillips-Fein, from 1:00 PM to 4:00 PM on Friday, February 23, 2018 in Room C204, 640 Massachusetts Ave NW, Washington, DC 20001.  More.

• We were looking for something else when we stumbled upon Harvard Law Record podcasts with HLS legal historians Tomiko Brown-Nagin (All Rise! Episode 5) and Michael Klarman (All Rise! Episode 6).

(Credit: #dc1968)

• Detroit's engagement with the 50th anniversary of the 1967 rebellion has been fascinating to observe.  Here's the latest, from The Intelligencer, on DC's engagement with 1968, fifty years on: "In honor of the 50th anniversary of the events of 1968, DC Public Library has compiled a Library Resource Guide to help you navigate the many collections and events the Library has to offer in commemoration of that momentous year. The guide includes Evolutions and Legacies: Martin Luther King, Jr. and D.C., 1957-1972, an online exhibit curated by Special Collections Archivist Derek Gray and #dc1968 project curator, Dr. Marya A. McQuirter."

• ICYMI: Andrew Porwancher, Oklahoma Law, on The Jewish Founding Father: Alexander Hamilton’s Hidden Life.  Ralph Nader urged Harvard law students to “Take a course or two in legal history, or jurisprudence to absorb the big picture of the law over time.”   "May Donoghue of Donoghue v Stevenson fame is finally getting the recognition she undoubtedly deserves."

• UPDATE: From Muster, the blog of the Journal of the Civil War Era, Martha S. Jones (Johns Hopkins) on "Legal History's Debt to Frederick Douglass." "[A]cross his lifetime, Douglass never forget how [Justice] Taney had used the high court to demean African Americans. From the podium and the pen, Douglass made a record that has endured and thus ensured Dred Scott will be long remembered as the lowest point in the history of race and law."

• Yet another UPDATE: 10 Trailblazing Female Lawyers Who Shaped American History, in the National Law Review.

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

Thompson Reviews MacLean's "Democracy in Chains"

Fred Thompson, Willamette University, has posted  Public Choice and the Origins of the Radical Right: A Review of Nancy MacLean's Democracy in Chains: The Deep History of the Radical Right's Stealth Plan for America.

Democracy in Chains is a heck of a read, but it is, at its core, fundamentally flawed. Its core is a confrontation with James Buchanan and the origins of public choice theory, which argues that public choice is a backlash to both the New Deal and the civil rights movement. The flaw reflects MacLean’s misapprehension of the content of public choice theory and its implications, a misunderstanding of what Buchanan actually believed (or, at least, claimed to believe), and, therefore, an unwarranted leap from Buchanan’s role in creating public choice theory to all things nasty about right-wing politics.

Saavedra on the Property on the Chilean Frontier, 1790-1830

Manuel Bastias Saavedra, University of Bremen, has posted The Lived Space: Possession, Ownership, and Land Sales on the Chilean Frontier (1790-1830), which appears (and may be cited) in Historia Crítica 67

By looking into sales of indigenous land in the territory of Valdivia between 1790 and 1830, this article discusses how legal interactions were tied to the local spaces of rural habitation. Since ownership was linked with possession and use in Spanish colonial law, local social relations and shared local knowledge were crucial for determining legal ownership and ensuring the validity of land transfers. This article provides insights into how law operated in newly integrated colonial spaces, and reveals that land transfers did not yet constitute purely contractual relations but were instead socially negotiated transactions involving different levels of authority and dependency.

Schmidt on Enforcing the 14th Amendment

Christopher W. Schmidt, Chicago-Kent College of Law, has posted Section 5's Forgotten Years: Congressional Power to Enforce the Fourteenth Amendment Before Katzenbach v. Morgan, which is forthcoming in volume 113 of the Northwestern University Law Review:

William J. Brennan (LC)

Few decisions in American constitutional law have frustrated, inspired, and puzzled more than Katzenbach v. Morgan (1966). Justice Brennan’s opinion put forth the seemingly radical claim that Congress—through its power, based in Section 5 of the Fourteenth Amendment, to “enforce, by appropriate legislation” the rights enumerated in that amendment—shared responsibility with the Court to define the meaning of Fourteenth Amendment rights. Although it spawned a cottage industry of scholarship, this claim has never been fully embraced by a subsequent Supreme Court majority, and in Boerne v. Flores (1997) the Supreme Court rejected the heart of the Morgan decision as subversive of the American constitutional order. Today Morgan stands largely as an aberration of American constitutional law.

This Article attempts to place Morgan back into the stream of historical development from which it arose. When properly situated in its historical context, Justice Brennan’s opinion appears less puzzling and less aberrational. Morgan in fact built upon several decades of debates in the courts, in Congress, and among legal commentators over the scope of congressional enforcement power under Section 5—debates that largely have been missing from Section 5 scholarship. In reconstructing the history of Section 5 during a period when most have assumed it had no presence, this Article also identifies the political and legal conditions that supported claims of shared constitutional interpretive responsibility in the past and considers whether these conditions might again be met in the future.

Pritchard and Thompson on the 2d Circuit and Securities Law in the 60s

Adam C. Pritchard, University of Michigan Law School, and Robert B. Thompson, Georgetown University Law Center, have posted Securities Law in the Sixties: The Supreme Court, the Second Circuit, and the Triumph of Purpose Over Text:

Henry J. Friendly (credit)

This articles analyzes the Supreme Court’s leading securities cases from 1962 to 1972—Capital Gains, J.I. Case v. Borak, Mills v. Electric Auto-Lite Co., Bankers Life, and Affiliated Ute—relying not just on the published opinions, but also the justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws, rather than a mere agent. The interpretive space opened by the Court’s invocation of purpose allowed a dramatic expansion in the law of securities fraud. Encouraged by the high court’s dynamic statutory interpretation doctrine, the Second Circuit—the “Mother Court” for securities law—developed new causes of action that transformed both public and private enforcement of the securities laws. The insider trading prohibition found a new home in the flexible confines of Rule 10b-5. Implied private rights of action encouraged class actions to flourish. The growth of fiduciary duty in the 1960s created a blueprint for “federal corporation law.” The Supreme Court’s “counter-revolutionary” turn in the 1970s cut back on purposivism and the doctrinal innovations of the Sixties, but the approaches to insider trading and private rights of action survived, remaining pillars of securities regulation today.

Moyn on Legal History as a Source of International Law

This is gated, but it ended up in our inbox and is interesting, so we’re posting it anyway: Samuel Moyn, Legal History as a Source of International Law: The Politics of Knowledge, in the Oxford Handbook of the Sources of International Law, edited Samantha Besson and Jean d’Aspremont:

This chapter maintains that no serious theory of the sources of international law can avoid what professional historians now take for granted: namely, that historical knowledge is necessarily political. It begins by laying out this argument, before assessing its implications for mainstream accounts of the sources of international law. The chapter goes on to explore a recent legal conflict in which history figured in order to test and improve the claim that history is political. It looks at the recent contention in US courts interpreting the Alien Tort Statute (1789) about whether a norm of corporate liability for atrocity crimes is part of customary international law. Finally, the chapter concludes that this fascinating instance of the uses of history in the ascertainment of the requirements of international law fits well the theory that historical knowledge is ineradicably political, though contained by professionalism.

Here are the parts of the piece:

I. Introduction
II. History of International Law as Contemporary Politics
III. Historians versus Lawyers: A Brief Contrast
IV. The Setting: The Alien Tort Statute in US Courts
V. Analysing the Historical Debate
VI. Conclusion: How the Past Matters in International Law
Research Questions
Selected Bibliography
Notes

2018 LSI Annual Graduate Student Paper Competition

[We are moving this post up, because the deadline is two weeks away.]

[We have the following announcement. Deadline: March 1, 2018]

The editors of Law & Social Inquiry are pleased to announce our annual competition for the best journal-length paper in the field of law and social science written by a graduate or law student. Law & Social Inquiry publishes empirical and theoretical studies of sociolegal processes from a variety of disciplinary perspectives. Entries will be accepted starting January 1, 2018 and must be received by March 1, 2018.

LSI invites direct submissions from graduate and law students and nominations of student work from faculty. The author must be a graduate student or law student at the time the paper was written and when submitted. Faculty nominations should include a short description along with the paper and contact details for the student. Submissions will be evaluated by our editors.  The winning submission will be sent to selected scholars for advisory reviews to aid with revisions prior to publication. All submissions (direct and faculty nominated) are weighted equally in the competition. The winning paper will be published in Law & Social Inquiry and the author(s) will receive a total cash prize of $500 (US).

Please send your article as a Microsoft Word document or PDF to lsi-abf@abfn.org.  Please indicate that (1) you intend to be considered in the competition, (2) you are currently a graduate student, and (3) you have not submitted your article to other journals for publication. Submission is limited to one paper per student; articles may not be altered or resubmitted with corrections once they have been received by our office.

Submissions must include a title page with a mailing address, e-mail address, and phone number. The second page should include a 100-150 word abstract. Beginning on the third page, all pages should be paginated.  Text, footnotes, endnotes, and references should be double-spaced in Times New Roman 12 point font and have 1” margins on all sides with no headers or footers.  Submissions must not exceed 15,000 words, including references and footnotes.

Questions regarding the competition can be directed to Willa Sachs: waschs@abfn.org, (312) 988-6517.