CFP: AALS 2019

[We have the following call for papers from the Association of American Law Schools.  Note, after the jump, that legal history is among the (many) subjects contemplated.]

Call for Scholarly Papers for Presentation at 2019 AALS Annual Meeting

To encourage and recognize excellent legal scholarship and to broaden participation by new law teachers in the Annual Meeting program, the association is sponsoring a call for papers for the 33rd annual AALS Scholarly Papers Competition. Those who will have been full-time law teachers at an AALS member or fee-paid school for five years or less on July 1, 2018, are invited to submit a paper on a topic related to or concerning law. A committee of established scholars will review the submitted papers with the authors’ identities concealed.

Papers that make a substantial contribution to legal literature will be selected for presentation at the AALS Annual Meeting in New Orleans, Louisiana, in January 2019.  Inquiries: Questions should be directed to scholarlypapers@aals.org.

Hill on the Ideological Origins of the Rule of Law

Peter J. Hill, Wheaton College, has posted The Ideological Origins of the Rule of Law, which he presented at The Life and Legacy of Douglass North: Celebrating the 25th Anniversary of North’s Nobel Prize in Economics:

The background conditions for the emergence of the rule of law are important but underdeveloped. This paper traces more fully the relationship between the concept of human equality and the development of the rule of law. It presents evidence that the Jewish and Christian concept of all human beings as God’s image bearers is an important contributor to the rule of law in Western civilization. The formulation of universal human equality was not, however, a sufficient condition for the emergence of the rule of law. It took centuries of articulation in different institutions and social settings. It only reached full fruition when it was joined with an understanding of appropriate political systems as expressed by political theorists such as Locke, Montesquieu, and Madison.

H/t: Legal Theory Blog

Shughart on Selective Consumption Taxes in the US

William F. Shughart, Utah State University, has posted The Theory and Practice of Selective Consumption Taxation, which appears in For Your Own Good: Taxes, Paternalism, and Fiscal Discrimination in the Twenty-First Century, edited by Adam J. Hoffer and Todd Nesbit (Mercatus Center, George Mason University, 2018), 19-39:

America’s history of selective consumption taxes dates back to the colonial era, when revolutionaries protested against taxes on tea and paper goods. While the Revolution was prompted in part by opposition to selective consumption taxes, this chapter describes how Alexander Hamilton implemented a selective consumption tax on whiskey to cover the American war debt shortly after America won its independence. The whiskey tax had characteristics common to selective consumption taxes we see today.

Pitcaithley's Documentary Anthology on the US Constitution and Secession

Dwight T. Pitcaithley, New Mexico State University, has published The U.S. Constitution and Secession: A Documentary Anthology of Slavery and White Supremacy, with the University Press of Kansas:

Five months after the election of Abraham Lincoln, which had revealed the fracturing state of the nation, Confederates fired on Fort Sumter and the fight for the Union began in earnest. This documentary reader offers a firsthand look at the constitutional debates that consumed the country in those fraught five months. Day by day, week by week, these documents chart the political path, and the insurmountable differences, that led directly—but not inevitably—to the American Civil War.

At issue in these debates is the nature of the U.S. Constitution with regard to slavery. Editor Dwight Pitcaithley provides expert guidance through the speeches and discussions that took place over Secession Winter (1860–1861)—in Congress, eleven state conventions, legislatures in Tennessee and Kentucky, and the Washington Peace Conference of February, 1861. The anthology brings to light dozens of solutions to the secession crisis proposed in the form of constitutional amendments—90 percent of them carefully designed to protect the institution of slavery in different ways throughout the country. And yet, the book suggests, secession solved neither of the South’s primary concerns: the expansion of slavery into the western territories and the return of fugitive slaves.

What emerges clearly from these documents, and from Pitcaithley’s incisive analysis, is the centrality of white supremacy and slavery—specifically the fear of abolition—to the South’s decision to secede. Also evident in the words of these politicians and statesmen is how thoroughly passion and fear, rather than reason and reflection, drove the decision making process.

 Endorsements after the jump.

Sunday Book Review Roundup

Lynn Hunt's History: Why it Matters is reviewed at the Los Angeles Review of Books.  Also reviewed on the site is R. Marie Griffith's Moral Combat: How Sex Divided American Christians and Fractured American Politics and Adam Laats' Fundamentalist U: Keeping the Faith in American Higher Education. Carrie Tirado Bramen's American Niceness: A Cultural History is also reviewed at LARB.

At Marginalia is a review of Daniel G. Konig's Arabic-Islamic Views of the Latin West: Tracing the Emergence of Medieval Europe.

The Internationalists: How a Radical Plan to Outlaw War Remade the World by Oona Hathaway and Scott Shapiro is reviewed in the London Review of Books.

Switching Sides: How a Generation of Historians Lost Sympathy for the Victims of the Salem Witch Hunt by Tony Fels is reviewed at HNN.  Also reviewed at HNN is Rescue Board: The Untold Story of America’s Efforts To Save The Jews of Europe.

In the New Republic is a review of Quinn Slobodian's Globalists: The End of Empire and the Birth of Neoliberalism.  Diane Atkinson's Rise Up Women!: The Remarkable Lives of the Suffragettes is also reviewed at the site.

Kathleen Belew's Bring the War Home: The White Power Movement and Paramilitary America is reviewed at NPR.

In The Washington Post is a review of Jason Sokol's The Heavens Might Crack: The Death and Legacy of Martin Luther King Jr.  Also reviewed in The Post is The Promise and the Dream: The Untold Story of Martin Luther King, Jr. And Robert F. Kennedy by David Margolick.

The Promise and the Dream: The Untold Story of Martin Luther King, Jr. And Robert F. Kennedy is also reviewed in The Nation and The New York Times.

In the Nation is a review of David Cannadine's Victorious Century: The United Kingdom, 1800-1906.

At the New Books Network, Keisha N. Blain discusses her Set the World on Fire: Black Nationalist Women and the Global Struggle for Freedom, Aidan Forth speaks about his Barbed-Wire Imperialism: Britain's Empire of Camps, 1876-1903, Lisa Ze talks about her The Mulatta Concubine: Terror, Intimacy, Freedom, and Desire in the Black Transatlantic, and Pablo Piccato discusses his A History of Infamy: Crime, Truth, and Justice in Mexico.

Weekend Roundup

• The Organization of American Historians recently announced the winners of its annual awards. You can see them all here.

• Over in JOTWELL's Worklaw section, you'll find an admiring review of legal historian Deborah Dinner's "Beyond 'Best Practices': Employment-Discrimination Law in the Neoliberal Era," Indiana Law Journal (2017). Reviewer Henry L. Chambers, Jr. (Richmond School of Law) suggests that it should be required reading for anyone studying employment discrimination law.  

• On May 14, 2018, from 14:15 - 15:15, the seminar Legal Transfer in the Common Law World continues at the Max Planck Institute for European Legal History with a presentation by Valentin Seidler, University of Vienna, Legal Transfers and Development in British Colonies in the 20th Century?

• “Harvard Law School Professor Intisar Rabb has been awarded the Trailblazer Award by the Massachusetts Black Lawyers Association.  Rabb, the director of Islamic Legal Studies at HLS, was recognized on March 22 at the organization’s 45th anniversary gala.”  More.

• Congratulations to Anne Fleming, Georgetown Law, upon her election to the Board of Trustees of the Business History Conference.

• Keith Whittington’s Workshop in Constitutional Development at Princeton had quite a double bill last Monday: "The Jacksonian Makings of the Taney Court," by Mark Graber, University of Maryland Francis King Carey School of Law; and "Building the Administrative State: Courts and the Admission of Chinese Persons to the United States, 1870s-1920s," by Carol Nackenoff, Swarthmore College, and Julie Novkov, State University of New York-Albany. 

• A recording of the ceremony for my installation at Georgetown Law as Carmack Waterhouse Professor of Legal History is here.  DRE

• ICYMI:  A powerful memorial in Montgomery remembers the victims of lynching in WaPo.  And here.  Also the HLS press release on Tomiko Brown-Nagin's appointment as dean of the Radcliffe Institute for Advanced Studies.  Rebeca Zietlow on the fiftieth anniversary of the Fair Housing Act, over at Faculty Lounge.

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

Davies on (Mycroft) Holmes and WW1

Ross E. Davies, George Mason University Antonin Scalia Law School, has posted August 1914 - Mycroft Holmes and Pre-War European Diplomacy, which appears in Trenches: The War Service of Sherlock Holmes, ed. Robert Katz & Andrew Solberg (2018):

What caused World War I? And how was it that the diplomats and their masters failed to avert such an obviously disastrous bloodbath? (Sherlock Holmes once referred to war as a “ridiculous” and “preposterous” “method of settling international questions.”) Scholars cannot agree. Indeed, even among elite European historians (a crowd that specializes in studying the evolution of a complex of complex cultures), the tangled threads that led to the Great War are viewed as an extraordinarily terrible mare’s nest. Nevertheless, there is enough common ground on some main themes to make for a fairly coherent conventional narrative of pre-war European diplomacy. It begins in October 1879 — when Austria-Hungary and Germany formed the Dual Alliance. It ends in August 1914 — when diplomacy failed and the Central Powers (Austria-Hungary and Germany) and the Entente Powers (France, Russia and Great Britain) declared war on each other. That passage of 35 years also marks, roughly, the span of Mycroft Holmes’s career in the British government. His involvement in the maneuverings of the great powers in those times may be invisible to most modern eyes (as it was to his contemporaries), but there are clues. They will crop up from time to time in this narrative, which reviews, briefly and in sequence, the perspectives of each of the five major players in the onset of World War I — Austria-Hungary, Germany, France, Russia and Great Britain — with some emphasis on Austria-Hungary, because that is where the war to end all wars began.

The Political Question Doctrine in the D.C. Circuit

We’ve previously noted that on March 7, the Historical Society for the DC Circuit hosted From Goldwater to Zivotofsky: The Political Question Doctrine in the D.C. Circuit.  The video for that excellent event is now up on the Society’s website.  As the Society explains:

Watch the re-enactment of the 1979 en banc argument in Goldwater v. Carter before Judges Harry T. Edwards and Stephen F. Williams by Catherine Carroll and Professor Harold Hongju Koh. Then listen as Professor Stephen Vladeck, Beth Brinkmann, Catherine Carroll and Professor Koh analyze the current status of the doctrine and its underpinnings with moderator Paul Smith.

Price on Quarantines and Federalism

Polly J. Price, Emory University School of Law, has posted Do State Lines Make Public Health Emergencies Worse? Federal Versus State Control of Quarantine, which appears in the Emory Law Journal 67 (2018): 491-543:

This Article explores the origins and limits of the federal government’s interstate quarantine power. In the event of a public health emergency, state and local political boundaries may generate self-interested measures that risk substantial harm to neighboring states. To more effectively stem a national epidemic and to better protect the interests of regional populations, should the federal government step in to override a state’s protective quarantine? Neither current statutory authority nor how we have thought about it in the past prevents a greater national role. This Article shows how to expand our view of the federal government’s interstate quarantine authority as an important tool to respond to public health threats affecting more than one state.

Brown-Nagin Named Dean of Radcliffe Institute for Advanced Study

Congratulations to Tomiko Brown-Nagin, Harvard Law and History, on being named Dean of Harvard’s Radcliffe Institute for Advanced Study.  From the Harvard Gazette:

Tomiko Brown-Nagin, a leading historian on law and society as well as an authority on constitutional and education law and policy, has been named dean of Harvard’s Radcliffe Institute for Advanced Study, Harvard President Drew Faust announced today.

Brown-Nagin is the Daniel P.S. Paul Professor of Constitutional Law at Harvard Law School (HLS), a history professor in Harvard’s Faculty of Arts and Sciences (FAS), and faculty director of the Charles Hamilton Houston Institute for Race and Justice. She is also co-director of the HLS Law and History Program. She will assume her new responsibilities on July 1, succeeding Dean Lizabeth Cohen, who has led the institute since 2011.

Fletcher on Grann on the Osage Murders

Matthew L. M. Fletcher, Michigan State University College of Law, has posted Failed Protectors: The Indian Trust and Killers of the Flower Moon, a review essay on Killers of the Flower Moon: The Osage Murders and the Birth of the FBI, by David Grann, that is forthcoming in the zMichigan Law Review.

This Review uses Killers of the Flower Moon as a jumping off point for highlighting for readers how so many Indian people in Indian country can be so easily victimized by criminals. And yet, for however horrible the Osage Reign of Terror, the reality for too many Indian people today is much much worse. The federal government is absolutely to blame for these conditions. This Review shows how policy choices made by all three branches of the federal government have failed Indian people. Part I establishes the federal-tribal trust relationship that originated with a duty of protection. Part II establishes how the United States failure to fulfill its duties to the Osage Nation and its citizens allowed and even indirectly encouraged the Osage Reign of Terror. Part III offers thoughts on the future of the trust relationship in light of the rise of tribal self-determination. Part IV concludes the Review with a warning about how modern crime rates against Indian women and children are outrageously high in large part because of the continuing failures of the United States.

Balachandran, Pant and Raman on Indian legal histories

Aparna Balachandran (University of Delhi), Rashmi Pant (Nehru Memorial Museum and Library), and Bhavani Raman (University of Toronto) have co-edited a volume entitled Iterations of Law: Legal Histories from India, published by Oxford University Press. From the publisher:

This volume reflects a recent transformation of the concerns of social scientists regarding the legal history of South Asia. While, earlier, historians looked at the results rather than the performance of law, the concerns later shifted to unravelling the socioeconomic and political contexts that shaped law-making and its practice. Iterations of Law advances these new perspectives on legal history from South Asia. Going beyond an area studies rubric to critically engage with recent work in colonial and transnational legal history, the essays in this volume utilize both archival and everyday records to interrogate the relationship between the discipline of history and the institution of law.

The contributors to this volume include both young and established scholars who address the enacted and performative aspects of law that illuminate how rights are inscribed into a hierarchical order, a process that is often elided and fragmented by jurisdictional contexts. Their essays focus on complex moments in the life of the law when rights or claims simultaneously inaugurate a new economy of power and authority. Through these chapters, it becomes possible to interrogate the framing of legal regimes 'from below' and treat the law as a process that entails constant exchange, conflict, and adjustment between the rulers and the governed.

Here is the Table of Contents:

Introduction Iterations of Law: Legal History from India - Aparna Balachandran, Rashmi Pant, and Bhavani Raman

1. The Life of Law in Modern India: A Present History of the Matha Court - Janaki Nair

2. Speaking in Multiple Registers: Property and the Narrative of Care - Rashmi Pant

3. Violence and the Languages of Law - Neeladri Bhattacharya

4. Law in Times of Counterinsurgency - Bhavani Raman

5. Petition Town: Law, Custom, and Urban Space in Early Colonial South India - Aparna Balachandran

6. 'To Mount or Not to Mount?' Court Records and Law-Making in Early Modern Rajasthan - Nandita Sahai

7. Power, Petitions, and the 'Povo' in Early English Bombay- Philip Stern

8. Of Truth and Taxes: A Material History of Early Stamp't Paper- Shrimoyee Ghosh

9. Public Finance and Personal Law in Late-Colonial India- Eleanor Newbigin

Further information is available here.

Johnson on Buggery and Parliament

Paul Johnson, University of York, has posted Buggery and Parliament, 1533-2017:

Over nearly five centuries the UK Parliament, and its earlier incarnations, frequently legislated to ensure the regulation and punishment of buggery, a form of sexual conduct once generally accepted to constitute one of the most serious criminal offences known to law. In the early twenty-first century, Parliament abolished the offence of buggery and, subsequently, granted pardons to certain individuals previously convicted of it. Whilst some aspects of the history of Parliament’s approach to buggery are well known – particularly in respect of homosexual law reform – much of this history remains obscure. This article provides an in-depth consideration of the making of statute law in Parliament relating to buggery that reveals the dramatically changing attitudes of legislators towards this aspect of sexual conduct and highlights the significance and importance of the pardons granted to those convicted of the offence.

Brady on Metes and Bounds

Maureen (Molly) Brady, University of Virginia School of Law, has posted The Forgotten History of Metes and Bounds, which is forthcoming in the Yale Law Journal:

Since the settling of the American colonies, property boundaries have been described by the “metes and bounds” method, which is a highly customized system dependent on localized knowledge of movable stones, impermanent trees, and transient neighbors. The metes and bounds system has long been the subject of ridicule, and a recent wave of law-and-economics scholarship has argued that land must be easily standardized to facilitate market transactions and yield economic development. However, historians have not yet explored the social and legal context surrounding the metes and bounds system—obscuring the important role that highly customized property played in stimulating growth.

Using new archival research from the American colonial period, this Article reconstructs the forgotten history of metes and bounds within recording practice. Importantly, the benefits of metes and bounds were greater—and the associated costs lower—than ahistorical examination of these records would indicate. The rich descriptions of the metes and bounds system transmitted valuable information to American settlers and could be tailored to different types of property interests, permitting simple compliance with recording laws. While standardization is critical for enabling property to be understood by a larger and more distant set of buyers and creditors, customized property practices built upon localized knowledge serve other important social functions that likewise encourage development.

A Plea for Local Court Records

In my final post, I want to end with a plea, or better yet, a pitch. Use local court records, in your research and your teaching, and if you have the power to do so, help preserve them. These records are important for the stories they tell and the voices they feature.

Photo by the author

 In terms of my own research interests, the extant cases reveal a previously unknown world of black legal activity. In these records, you find the story of Milly, an enslaved Mississippi woman who sued a white man for sizable debts he that owed her. She won, even though she didn’t have the standing to initiate the suit in the first place. You will also meet Franchette, a free woman of color who sued Isabella Hawkins (a free black woman and former slave) three times to recover stolen property. In these lawsuits, Franchette accused Hawkins of stealing her cows and branding them with the letters “IH,” and in all three cases the court ordered Hawkins to return the cattle and pay Franchette damages. 

Hawkins herself was no stranger to the courtroom, although most often she did the suing. For instance, in 1834, Hawkins sued Frederick Haydt, a white man, for stealing her horse and attempting to sell it. The court ordered that Haydt return the horse. She even successfully sued the local sheriff after he seized her slave to settle a debt incurred by her former owner. She initiated this lawsuit against the sheriff only a few short years after her manumission. In addition, you see hundreds of enslaved people suing slaveholders for their freedom and claiming ownership over their bodies and their labor. In their suits for freedom, they also made claims to property they held as slaves and expected the court to help them safeguard it. They also demanded (and received) back wages, compensation for their unpaid labor.

Photo by the author

            But there are other things you can see as well. Because these records document the everyday workings of the court system in local communities, it was ordinary people who used them. Many of them were poor or living on the margins—people who, unlike wealthy planters, left few records about their lives behind. Many were illiterate, for instance, so they didn’t keep diaries or account books. As social historians and scholars of race and gender have long shown, court records provide some insight into the lives of those whose voices we may not have otherwise heard. Indeed, in some cases these are the only records we have that document the lives of non-elites.

            You also see married women—black and white—using the courts to their own advantage. This too might seem surprising, because in the early 19th century married women in the U.S. lacked a legal personality. Once they married, they forfeited their legal rights. Yet, they were present in the local legal record of Mississippi and Louisiana (and elsewhere), acting at law in their own names and making contracts and suing to enforce them. They also sued their own husbands for mismanaging their property or for damages for abuse. In other instances, they sued their husbands for divorce. Indeed, local court records show married women playing fast and loose with the doctrine of coverture, ignoring it when convenient and using it when it benefited them.

            You might find interesting anecdotes to tell your friends or new insults to hurl at your enemies. For instance, you could tell them about a Mississippi man who was charged with using deception to obtain a set of false teeth, or a Louisiana man who ran naked through a theater with ladies present and then stripped off his pants in court while the judge read the charges against him. Defamation lawsuits are full of great insults: like one of my favorites, “grasshopper from hell.”

Photo by the author

In using these records, you might even reach an audience outside of academia. For instance, right after the publication of my book, a descendant of one of the formerly enslaved litigants I wrote about emailed me. She found her family member in my index (his name came up in Google Books in an internet search), and she contacted me for more information about him and other members of her extended family. I have also been lucky enough to meet several descendants of the Belly/Ricard family, a family I discuss in a chapter-long case study at the end of my book.

            In addition, these records make great teaching tools. I refer to the insights I have gained from reading them in my lectures, and I make them available to my undergraduate students for use in our class discussions (in classes that range from women’s and gender history to legal history to the history of U.S. slavery). I also provide copies for both undergraduate and graduate students interested in a wide range of research topics. As I tell my students each time I teach with them, you should work with these types of records not only because you might enjoy being a voyeur or at least a witness to everyday life, but also because they demand a particular set of skills. They teach us how to figure out a complex social landscape and how to think more robustly about power; and they teach us how organizations work on the ground (rather than how organizations think they work). In other words, working with trial court records makes us attentive to what people value and the lengths they are willing to go to in order to protect those things. Such skills are valuable to the history major, but also beyond.

           

Photo by the author

But if for no other reason, using local court records in your own work could bring increased interest to fragile records and, perhaps most importantly, funding opportunities to preserve and care for records that are in danger of disappearing from history.

Thanks again to the editors for the invitation to guest blog. Readers, there are copies of representative cases on my website (kimberlywelch.net). And if you have any questions about Black Litigants in the Antebellum American South or want to talk about accessing, using, or preserving local courts records, please get in touch.

Kroncke to University of Hong Kong Law

Congratulations to Jedidiah Joseph Kroncke, who this fall will become an Associate Professor of Law at the University of Hong Kong Faculty of Law.  He is the author of The Futility of Law and Development: China and the Dangers of Exporting American Law (Oxford University Press, 2016), which explores the role of U.S.-China relations in the formation of modern American legal internationalism and the decline of American legal comparativism. He is underway on a new book on the transnational history of American legal education.  Other projects include a study of economic republicanism and re-imagining democratic labor and property institutions.  He is Law and History Review’s first associate editor for non-Western and comparative legal history and will be serving as associate editor for the the forthcoming Journal of Law and Political Economy.

Professor Kroncke is currently a member of the faculty at FGV Direito SP in São Paulo, Brazil, where he has taught courses ranging from Comparative Law to Socio-Legal Studies. He has been a Golieb fellow at New York University Law School and a Burger-Howe fellow at the Harvard Law School.  He holds a J.D. from Yale Law School and a Ph.D. in Social and Cultural Anthropology from the University of California, Berkeley.

Malleck on drugs in Canadian legal history

We missed this one in 2015, when Dan Malleck, Brock University, published When Good Drugs Go Back: Opium, Medicine, and the Origins of Canada's Drug Laws with UBC Press. From the publisher:

There is something enduring about the image of the Victorian drug addict, languishing in the smoky confines of an underground opium den, the embodiment of moral lassitude. When Good Drugs Go Bad reveals that in nineteenth-century Canada, most Canadians were drug users – everyday people taking addictive drugs prescribed by their doctors and purchased at the local pharmacy.

Throughout the 1800s, opium and cocaine could be easily obtained to treat a range of ailments. Drug dependency, when it occurred, was considered a matter of personal vice. Near the end of the century, attitudes shifted and access to drugs became more restricted. How did this happen?

Dan Malleck examines the conditions that led to Canada’s current drug laws. Drawing on newspaper accounts, medical and pharmacy journals, professional association files, asylum documents, physicians’ case books, and pharmacy records, he demonstrates how a number of social, economic, and cultural forces converged in the early 1900s to influence lawmakers and criminalize addiction. His research exposes how social concerns about drug addiction had less to do with the long pipe and shadowy den than with lobbying by medical associations, a growing pharmaceutical industry, and national concern about the morality and future of the nation.

Scholars and students of the history of medicine, the history of law, and social history, will enjoy this engagingly written book about drugs, alcohol, tobacco use, and legislation in Canada. This book will also be of interest to professionals who work in the area of drug advocacy and addiction.

Praise for the book after the jump:

Two Business History Prizes to Balleisen

Congratulations to Edward J. Balleisen, Duke University, for his receipt of two prizes at the annual meeting of the Business History Conference’s annual meeting in Baltimore, Maryland, April 5-7, 2018.  The first was the Harold F. Williamson Prize, awarded biannually to a mid-career scholar who has made significant contributions to the field of business history.  Previous recipients include Christopher McKenna, Sally Clarke, Richard R. John, Kenneth Lipartito, and Naomi Lamoreaux.  Professor Balleisen also received the Ralph Gomory Prize, awarded for “historical work on the effects of business enterprises on the economic conditions of the countries in which they operate,” for Fraud: An American History from Barnum to Madoff (Princeton University Press, 2017).

While we’re at it, we’ll note that the Philip Scranton Prize for the best article published in Enterprise & Society went to two articles with legal themes: David Higgins and Aashish Velkar, “’Spinning the yarn’: Institutions, law, and standards, c. 1880-1914,” 18 (3): 591-631, and Patricio Sáiz and Rafael Castro, “Foreign direct investment and intellectual property rights: International intangible assets in Spain over the long term,” 18 (4): 846-892.  H/t: Anne Fleming.

"America First" at the Miller Center

This Thursday, the Miller Center for Public Affairs at the University of Virginia is devoting its annual Stevenson Conference to America First: The Past and Future of an Idea.  Participants include Jefferson Cowie, Darren Dochuk, David Farber, Michael Froman, Beverly Gage, Maria Cristina Garcia, Nicole Hemmer, William Hitchcock, Geoffrey Kabaservice, Robert Kagan, Melvyn Leffler, David Milne, Christopher Nichols, and Andrew Preston.

PG Visiting Researcher in Roman Law/Legal History

[Via H-Law, we have the following announcement.]

Applications from PhD students in Roman law/legal history for the post of Alan Rodger Postgraduate Visiting Researcher, to be held during the 2018/19 academic year. The selected candidate will spend a term in Glasgow and receive a £2,000 award for support. The deadline for applications is 29 June 2018. Full details are available from our website.  The post was established in memory of Lord Rodger of Earlsferry (1944-2011), Justice of the Supreme Court of the United Kingdom, and scholar of Roman law and legal history.  Ernest Metzger, Douglas Professor of Civil Law, The School of Law, Stair Building, 5 - 8 The Square, University of Glasgow, Glasgow G12 8QQ United Kingdom.  Legal History at Glasgow.

Graber and Gilman's "Constitution of the Confederate States"

The latest volume in the series The Complete American Constitutionalism, by Mark A. Graber, University of Maryland Francis King Carey School of Law, and Howard Gillman, University of California, Irvine, is now out.  The series “is designed to be the comprehensive treatment and source for debates on the American constitutional experience. It provides the analysis, resources, and materials both domestic and foreign readers must understand with regards to the practice of constitutionalism in the United States."  The new volume (5, pt 1) is The Constitution of the Confederate States:

The authors offer a comprehensive analysis of the constitution of the Confederate States during the American Civil War.  Confederate constitutionalism presents the paradox of a society constitutionally committed to human and white supremacy whose constitutional materials rarely dwell on human bondage and racism. The foundational texts of Confederate constitutionalism maintain that racial slavery was at the core of secession and southern nationality. This volume provides the various speeches, ordinances and declarations, cases, and a host of other sources accompanied by detailed historical commentary.

Quote promotional code ALAUTHC4 to claim your 30% discount!

TOC after the jump

Desautels-Stein on American Pragmatism and Liberal Legal Thought

Justin Desautels-Stein, University of Colorado Boulder, has published The Jurisprudence of Style: A Structuralist History of American Pragmatism and Liberal Legal Thought in the Cambridge University Press series, series Cambridge Historical Studies in American Law and Society, edited by Christopher L. Tomlins.

In the contemporary domain of American legal thought there is a dominant way in which lawyers and judges craft their argumentative practice. More colloquially, this is a dominant conception of what it means to "think like a lawyer."  Despite the widespread popularity of this conception, it is rarely described in detail or given a name. Justin Desautels-Stein tells the story of how and why this happened, and why it matters. Drawing upon and updating the work of Harvard Law School's first generation of critical legal studies, Desautels-Stein develops what he calls a jurisprudence of style. In doing so, he uncovers the intellectual alliance, first emerging at the end of the nineteenth century and maturing in the last third of the twentieth century, between American pragmatism and liberal legal thought. Applying the tools of legal structuralism and phenomenology to real-world cases in areas of contemporary legal debate, this book develops a practice-oriented understanding of legal thought.

Here are some endorsements:

"In this wide-ranging and masterful work, Justin Desautels-Stein explores, dissects, and critiques what it means to think like a lawyer in today’s hegemonic context of liberal legal thought. Drawing on art history and musicology, ranging from the anthropologist Philippe Descola to the philosopher Hubert Dreyfus, from Roland Barthes to Michel Foucault, Desautels-Stein creatively reinvigorates the Harvard School of legal structuralism to expose the deep historical, structural, and conceptual illusions of contemporary pragmatic legal liberal thought."  Bernard E. Harcourt, Columbia Law School 

"An engrossing, at times deeply moving effort to recover the unity and purpose of Critical Legal Studies."  Charles Sabel, Columbia Law School

"A fascinating contribution to critical legal thought in the United States. Desautels-Stein revisits and reinterprets American legal pragmatism alongside late twentieth century efforts to assess and critique its practice. His direct informal style brings complex theoretical debates to life."  David Kennedy, Harvard Law School

TOC after the jump.

Weekend Roundup

• DC Public Libraries are digitizing and publishing online, “on an ongoing basis,” the photo archive of the Washington Star.  The first batch are images of “the 1968 uprisings” after the assassination of Dr. Martin Luther King.

• We were looking for something else when we found this recording of The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court, the 2017 Maurice and Muriel Fulton Lectureship in Legal History, delivered by Laura Kalman, UC Santa Barbara, from April 20, 2017.

• "On April 26, 2018, ConSource and The Harlan Institute will host the championship round of the sixth annual National Virtual Supreme Court Competition for high school students" at Georgetown Law.
  

• CFPs from All Over: The Faculty Lounge has the call for papers for the symposium The Vitality of Cooper v. Aaron after 60 Years, organized by the University of Arkansas at Little Rock Law Review.  And, via H-Law, we have a CFP for Criminalising Violent Pasts: Multiple Roots and Forgotten Pathways 1950s-2010s, at London South Bank University.

• In Our Review Copy Mailbag: Two from Oxford University Press: Nadine Strossen, Hate: Why We Should Resist It with Free Speech, Not Censorship, in OUP's Inalienable Rights Series, edited by Geoffrey R. Stone, and C. Donald Johnson, The Wealth of a Nation: A History of Trade Politics in America.  Strossen is the former president of the ACLU; Johnson has had a long career in elective office and as a trade negotiator.

• ICYMI: Vanessa Burrows, an FDA Historian, on why we need regulation, over at HNN.  Also via HNN: highlights of the recent annual meeting of the OAH. Garrett Epps, in The Atlantic, on The Travel Ban's Ignominious Precedents.

• And thanks for all the well wishes on my installation as Carmack Waterhouse Professor of Legal History at Georgetown Law last Tuesday.  DRE.

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

Maxeiner's "Failure of American Methods of Lawmaking"

James R. Maxeiner, University of Baltimore, has posted Failures of American Methods of Lawmaking in Historical and Comparative Perspectives, with the Cambridge University Press:

In this book, James R. Maxeiner takes on the challenge of demonstrating that historically American law makers did consider a statutory methodology as part of formulating laws. In the nineteenth century, when the people wanted laws they could understand, lawyers inflicted judge-made, statute-destroying, common law on them. Maxeiner offers the cure for common law, in the form of sensible statute law. Building on this historical evidence, Maxeiner shows how rule-making in civil law jurisdictions in other countries makes for a far more equitable legal system. Sensible statute laws fit together: one statute governs, as opposed to several laws that even lawyers have trouble disentangling. In a statute law system, lawmakers make laws for the common good in sensible procedures, and judges apply sensible laws and do not make them. This book shows how such a system works in Germany and would be a solution for the American legal system as well.

In an abstract, posted with the book’s front matter on SSRN, Professor Maxeiner elaborates:

America’s eighteenth-century founders expected that the people of the United States would establish a wise and happy government of written laws adopted with a single eye to reason and the good of those governed. Few Americans today would say that America’s lawmaking fulfills the founders’ expectations. Dysfunctional is the word that many Americans use to describe their methods of lawmaking. The legal professions tell the American people that they are doing the best the can. They tell a myth of common law. They say the people should rejoice, and not complain, when America’s judges make law, for such lawmaking makes America’s laws exceptional. It is how America has always made law, they say. Judges make better laws than legislatures, they claim.

The historical part of this book explodes the common law myth of dominance of judge-made law in American history. Using sources hardly accessible until 21st century digitization, it shows that statutes have had a much greater role in American law than the legal professions acknowledge.

The comparative part of this book dismantles the claim that judges make better law then legislatures. It shows how the methods of American legislative lawmaking, owing to neglect, have failed to keep up with their counterparts abroad, and have thus denied the people the government of laws that the founders expected.

This book shows how such a system works in Germany and would be a solution for the American legal system as well

TOC after the jump.

An Essay Collection on Blackstone and His Critics

Just out from Hart is Blackstone and His Critics, edited by Anthony Page, University of Tasmania, and Wilfrid Prest, emeritus, University of Adelaide:

William Blackstone's Commentaries on the Laws of England (1765-69) is perhaps the most elegant and influential legal text in the history of the common law. By one estimate, Blackstone has been cited well over 10,000 times in American judicial opinions alone. Prominent in recent reassessment of Blackstone and his works, Wilfrid Prest also convened the Adelaide symposia which have now generated two collections of essays: Blackstone and his Commentaries: Biography, Law, History (2009), and Re-Interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts (2014).

This third collection focuses on Blackstone's critics and detractors. Leading scholars examine the initial reception of the Commentaries in the context of debates over law, religion and politics in eighteenth-century Britain and Ireland. Having shown Blackstone's volumes to be a contested work of the Enlightenment, the remaining chapters assess critical responses to Blackstone on family law, the status of women and legal education in Britain and America. While Blackstone and his Commentaries have been widely lauded and memorialised in marble, this volume highlights the extent to which they have also attracted censure, controversy and disparagement.

To get a 20% discount, order here and use the code CV7 at the checkout.

TOC after the jump.

Malka on "Policing Baltimore in the Age of Slavery and Emancipation"

New from the University of North Carolina Press: The Men of Mobtown: Policing Baltimore in the Age of Slavery and Emancipation (March 2018), by Adam Malka (University at Buffalo, SUNY). A description from the Press: 

What if racialized mass incarceration is not a perversion of our criminal justice system’s liberal ideals, but rather a natural conclusion? Adam Malka raises this disturbing possibility through a gripping look at the origins of modern policing in the influential hub of Baltimore during and after slavery’s final decades. He argues that America’s new professional police forces and prisons were developed to expand, not curb, the reach of white vigilantes, and are best understood as a uniformed wing of the gangs that controlled free black people by branding them—and treating them—as criminals. The post–Civil War triumph of liberal ideals thus also marked a triumph of an institutionalized belief in black criminality.

Mass incarceration may be a recent phenomenon, but the problems that undergird the “new Jim Crow” are very, very old. As Malka makes clear, a real reckoning with this national calamity requires not easy reforms but a deeper, more radical effort to overcome the racial legacies encoded into the very DNA of our police institutions.

A few blurbs:

“The Men of Mobtown tells a new and significant story of policing, one that accounts both for the rise of men in uniforms and for the role that private citizens, often constituted as mobs, played in regulating life on the streets of a teeming port city. Malka demonstrates how white supremacy and racism provided a cover and a rationalization for the acts of men who aimed to marginalize, if not wholly suppress, the ambitions and the lives of black city dwellers.”--Martha S. Jones 

“In this provocative history of policing in nineteenth-century Baltimore, Adam Malka demonstrates that the vexed relationship between African Americans and law enforcement is nothing new. Malka persuasively demonstrates that modern policing, never mind the prison industrial complex, was built on an older tradition of white male vigilantism disproportionately directed at African Americans. Men of Mobtown provides a much-needed historical perspective on contemporary racial injustice.”—Stephen Mihm

More information is available here.

h/t: Michael Meranze

Alexandrowicz on international law

David Armitage, Harvard University and Jennifer Pitts, University of Chicago, have co-edited C. H. Alexandrowicz's The Law of Nations in Global History, published with Oxford University Press. From the publisher:

The history and theory of international law have been transformed in recent years by post-colonial and post-imperial critiques of the universalistic claims of Western international law. The origins of those critiques lie in the often overlooked work of the remarkable Polish-British lawyer-historian C. H. Alexandrowicz (1902-75). This volume collects Alexandrowicz's shorter historical writings, on subjects from the law of nations in pre-colonial India to the New International Economic Order of the 1970s, and presents them as a challenging portrait of early modern and modern world history seen through the lens of the law of nations.

The book includes the first complete bibliography of Alexandrowicz's writings and the first biographical and critical introduction to his life and works. It reveals the formative influence of his Polish roots and early work on canon law for his later scholarship undertaken in Madras (1951-61) and Sydney (1961-67) and the development of his thought regarding sovereignty, statehood, self-determination, and legal personality, among many other topics still of urgent interest to international lawyers, political theorists, and global historians.

Praise for the book:

"Charles Henry Alexandrowicz (1902-1975) was among the few who recognized the presence of multiple international, or regional, legal systems on the planet co-terminus with European international law. That a superhuman effort was required to trace his numerous publications is further evidence of how valuable this collection is." - Jus Gentium

Table of Contents after the jump.

Goluboff Elected to American Academy of Arts & Sciences

The American Academy of Arts & Sciences has announced its newly elected members. Among them is legal historian Risa Goluboff (University of Virginia Law). Here's an excerpt from the University of Virginia press release:

Goluboff, a nationally renowned legal historian who became the first female dean of UVA Law in 2016, is also the first woman on the school’s faculty to be elected to the academy. Her scholarship and teaching focuses on American constitutional and civil rights law, and especially their historical development in the 20th century. She is an affiliated scholar at the Miller Center and a faculty affiliate at the Carter G. Woodson Institute for African-American and African Studies. She was elected to the American Law Institute in 2017. 

“It’s a privilege to be elected to the academy and to join such an esteemed group of scholars,” Goluboff said. “I’m deeply honored. I’m also thankful for the support the Law School and UVA have given me over the years, which has been critical to my growth as a legal historian and scholar.”

Congratulations to Risa Goluboff!

Property, Personhood, and Picking Favorites

In my teaching, I often make a point to use—and discuss—the research I did for Black Litigants in the Antebellum American South (the cases, findings, implications, and so on). One question that undergraduates, in particular, almost always ask me is: “what is your favorite case?”

Photo by the author

My response varies. I have many “favorites.” Sometimes my answer involves evidence that felt particularly hard won, such as one of the cases I found amongst the bugs and rats in a Plaquemine, Louisiana, storage shed (research I mentioned in a previous post). It involved a free black man who chased a white man on horseback for miles, screaming insults and waving a loaded pistol. Sometimes my response to the “favorites” question involves the women of the Belly family, who took to the courts with regularity to protect and convey their property, to enforce the terms of their contracts, and to adjudicate a number of other disputes. They even sued their husbands. But most often my answer involves the case that I used to open the book—the case that I see as emblematic of the larger points about personhood and property that I make throughout. This case involved an assault, and I will share excerpts of my discussion of this lawsuit below. 

Photo by the author

On Sunday, September 6, 1857, two white men, William Calmes and John Buford, violently seized, whipped, and attempted to kidnap Valerien Joseph in Pointe Coupee Parish, Louisiana. Empowered by their duties as slave patrollers, Calmes and Buford entered the property of another white man in search of runaway slaves. There, they came upon Joseph, a free black carpenter engaged in his work. Although Joseph had not given them any reason to believe he was a runaway, and despite the protests of onlookers and Joseph’s own declarations that he was a free man, Calmes and Buford grabbed Joseph and attempted to carry him away. When others tried to intervene, Calmes yelled that he “would do what he pleased,” for he intended to seize and then sell Joseph as a slave. In order to subdue their prey, they took turns beating him in the head with a large stick. Then Calmes removed Joseph’s clothing, forced him on his belly, and whipped his naked body with a cowhide “forty to fifty times” while an armed Buford stood guard to prevent others from assisting their bloodied captive. Eventually the onlookers helped pull Joseph from the clutches of his captors, and he managed to escape.

Five days after the attack, Joseph sued Calmes and Buford in the Ninth Judicial District Court, a local trial court held in Pointe Coupee Parish. He demanded damages: the “illegal and wicked acts of said Calmes and Buford,” Joseph insisted, “have caused your petitioner damage to the amount of fifteen hundred dollars.” To that end, he requested that the white judge, A. D. M. Haralson, summon his attackers to court for a public accounting of their offenses against him, and “after due course of law,” “they be condemned” to pay him $1,500, plus interest and court costs. The defendants denied the charges against them, and the case went to trial. The court subpoenaed the testimony of several witnesses, and each verified Joseph’s claims: one white man testified that Calmes and Buford “fell upon Joseph” and “pulled him out of the yard and struck him on the head with a stick.” Another white man (in charge of organizing slave patrols) testified that Calmes and Buford were not in fact on patrol that day. And still other white witnesses relayed that Joseph was “born free” of an Indian mother and a black father. After hearing the evidence, a white jury found for the plaintiff and issued a judgment for damages: $300 from Calmes and $200 from Buford. The judge denied the defendants’ request for a new trial and ordered the men to pay their debt. Both men also faced criminal charges for Joseph’s attack, but the outcome is unknown.

Photo by the author

That a black man would take his white attackers to court in the first place seems paradoxical in itself. That he would win is yet more surprising. But perhaps more interesting still is how Joseph framed his suit. 

Joseph did not begin his petition to the court with a description of the violence inflicted upon him (as one might in a lawsuit for damages). Instead, he framed the case as a debt action, using the language of property and obligation. Calmes and Buford, he insisted, owed him money: “The petition of Valerien Joseph, a free man of color, residing in the parish, Respectfully shows,” he began, “That William Calmes and [John] Buford, residents of the parish aforesaid, are justly and legally indebted, in solido, unto him in the sum of fifteen hundred dollars, with interest of 50% from judicial demand until paid.” They owed him this amount, moreover, for their illegal assault on his property: his body. 

The jury agreed and awarded him $500 for his trouble. Buford paid the $200 shortly after the trial, but Calmes ignored the judgment. When the amount went unpaid over a year later, Joseph initiated additional legal proceedings against him. This time, Judge Haralson ordered the sheriff to seize Calmes’s property, sell it at auction, and settle his obligation to Joseph. Although Calmes absconded to Mississippi before the court could seize his property, Joseph continued to press his case. He made another white man, John A. Warren, a party to the lawsuit and pursued garnishment proceedings against him. Warren possessed property belonging to Calmes, property that could be seized and sold. When Warren failed to attend court, Joseph received a judgment against him (in default). On April 20, 1860, mere months before Louisiana left the Union to join a slaveholders’ republic, the court ordered Warren to pay Joseph $350 (the original amount plus court costs and interest). When Warren did not pay, the sheriff seized his property, sold it at auction, and provided Joseph with the proceeds. One year later, almost to the day, shots would be fired at Ft. Sumter initiating a war over the right to hold black people as property. 

At work in Joseph’s “demand” are a series of interlocking understandings about the relation of one’s property to one’s person, both in the sense of one’s physical body and in the more abstract sense of one’s ability to be seen at law as someone who “counts” such that he or she can make a claim. These relations between one’s person, one’s property, and one’s legal claims form the subject of this book. To properly understand Joseph’s suit, why he went to court, why he insisted on describing assault as a matter of debt and obligation, why he won, and why he eventually managed to have a white man’s property placed on the auction block, requires that we re-evaluate our understandings of the relationship between black people, claims-making, racial exclusion, and the legal system in the antebellum South more broadly.

This case raises questions about who had access to the power of the law and under what circumstances. Calmes and Buford certainly expected that they did. After all, they were white men, men whose race and status gave them claims to legal and political standing. They were slave patrollers, empowered by state statute to detain possible runaways. As slaveholders, they held property rights in black people. Thus, with the law on their side, they might then get away with kidnapping and selling a free black man. Their property, however, ended up on the auction block. Joseph, by contrast, harnessed the power of the state to serve his interests and to do his bidding: he sued two white men, bound them in obligation to him through debt, and compelled the courts to seize white property and sell it at auction to settle his claims and compensate him for his degradation. The court record of the slave South is rife with stories like Joseph’s.