Anderson on Convicts and Colonies

Clare Anderson, University of Leicester, has edited A Global History of Convicts and Penal Colonies, now out with Bloomsbury. From the press:

Between 1415, when the Portuguese first used convicts for colonization purposes in the North African enclave of Ceuta, to the 1960s and the dissolution of Stalin's gulags, global powers including the Spanish, Dutch, Portuguese, British, Russians, Chinese and Japanese transported millions of convicts to forts, penal settlements and penal colonies all over the world. A Global History of Convicts and Penal Colonies builds on specific regional archives and literatures to write the first global history of penal transportation. The essays explore the idea of penal transportation as an engine of global change, in which political repression and forced labour combined to produce long-term impacts on economy, society and identity. They investigate the varied and interconnected routes convicts took to penal sites across the world, and the relationship of these convict flows to other forms of punishment, unfree labour, military service and indigenous incarceration. They also explore the lived worlds of convicts, including work, culture, religion and intimacy, and convict experience and agency.

Praise for the collection:

“In documenting the magnitude, diversity and near-ubiquity of convict transportation and penal colonies across five centuries, Anderson and her collaborators transform the marginalised and fragmented history of the global convict into a story central to European expansion, labour control and enduring empire. Drawing on a wealth of archival material and an exceptional range of national and imperial perspectives, this is an outstanding contribution to the critical literature on carceral geographies and prison histories. It is also global history at its most innovative, insightful and combative.” -David Arnold

“In this stunning account of convict circuitry across the globe, Clare Anderson and contributors prove without a shadow of a doubt that convicts made the modern world. Tracking their movements and their carceral traces across nations, empires and many dispersed spaces in between, the authors map a remarkable range of social, economic, cultural, labor, gendered and racial histories. In the process, they model a transnational method that follows the archive while recognizing how distorted it is by the way that penal regimes worked. Students of global history will turn to this book as an example of world history from below for many years to come.” -Antoinette Burton

Here is the Table of Contents:

1. Introduction: A Global History of Convicts and Penal Colonies (Clare Anderson, University of Leicester, UK)
2. The Portuguese Empire, 1100-1932 (Tim Coates, College of Charleston, South Carolina, USA)
3. The Spanish Empire, 1500 to 1898 (Christian G. De Vito, University of Leicester, UK)
4. The Scandinavian Empires in the Seventeenth and Eighteenth Centuries (Johan Heinsen, Aalborg University, Denmark)
5. The French Empire, 1542-1976 (Jean-Lucien Sanchez, Centre for Sociological Research on Law and Penal Institutions, CESDIP, France)
6. The Dutch East India Company in Asia, 1595-1811 (Matthias van Rossum, International Institute of Social History, the Netherlands)
7. Transportation from Britain and Ireland, 1615-1875 (Hamish Maxwell-Stewart, University of Tasmania, Australia)
8. British India, 1789-1939 (Clare Anderson, University of Leicester, UK)
9. Post-colonial Latin America since 1800 (Ryan C. Edwards, University of Tennessee at Chattanooga)
10. Russia and the Soviet Union from the 19th to the 21st Century (Sarah Badcock, University of Nottingham, UK and Judith Pallot, Christ Church, University of Oxford, UK)
11. Japan in the 18th and 19th Centuries (Minako Sakata, Tomakomai Komazawa University, Japan)
12. Modern Europe, 1750-1950 (Mary Gibson, CUNY, USA and Ilaria Poerio, University of Reading, UK)
Epilogue: In Carceral Motion: Disposals of Life and Labour (Ann Laura Stoler, New School for Social Research, New York, USA)

Further information is available here.

Thank You, Christopher Schmidt!

We are very grateful to Christopher W. Schmidt, Chicago-Kent Law and the American Bar Foundation, for his excellent posts as a guest blogger this month.  He started with his recently published book, The Sit-Ins: Protest and Legal Change in the Civil Rights Era, and proceeded to Op-Ed writing and some advice from his editing of Law & Social Inquiry, a peer-reviewed journal of the American Bar Foundation.  Links to all of them are below.  Thanks so much, Chris!

Some History About the History of the Sit-Ins
How Law Helps Explain the Sit-In Movement
On Choosing a Protagonist
Happy Endings in History
The Art of the Op-Ed
Tips on Writing for a Peer-Reviewed Journal

Ingram on Federal Prosecutors and Neutrality, 1793

Scott Ingram, High Point University, has posted Representing the United States Government: Reconceiving the Federal Prosecutor's Role Through a Historical Lens, which appeared in the Notre Dame Journal of Law, Ethics and Public Policy 31 (2017): 293-338

For nearly 100 years courts and legal scholars have held prosecutors to the “justice” standard, meaning that the prosecutor’s first duty is to ensure that justice is done. With this command, prosecutors have increased their discretion. The modern prosecutor’s power is unrivaled in the criminal justice system. Judges and defense attorneys have ceded some of their power to prosecutors. The prosecutor’s power has led a host of commentators to critique prosecutorial use of power for a variety of reasons. Rather than add to this voluminous literature by defending or critiquing prosecutorial power, this Article challenges the underlying assumption of prosecutorial power: that prosecutors pursue justice. It argues that prosecutors should be freed from the “justice” standard and, instead, at least on the federal level, be responsive only to clearly articulated executive policy.

To demonstrate how prosecutors would function in a system where they are not required to do justice, this article examines criminal enforcement of the federal government’s neutrality policy in 1793. This was the new government’s first organized foray into criminal prosecution. President George Washington and his administration proceeded based on national interest and expected their attorneys, the United States District Attorneys, to adhere and enforce the national policy. The Article begins by establishing that federal prosecutors represent the government and not the people’s interests. It then defines how the people are represented in a republican government with a particular focus on how members of Washington’s administration interpreted the concept of representation. It then describes how Washington and his administration enforced neutrality through criminal prosecution. Against this backdrop, the final section argues that our modern federal prosecutorial problems can be resolved if we reconceive the federal prosecutor’s function as a policy enforcer rather than a quasi-judicial figure.

Kamali & Green on England's Adoption of Trial by Jury

Elizabeth Papp Kamali, Harvard Law School, and Thomas A. Green, University of Michigan Law School, have posted The Assumptions Underlying England's Adoption of Trial by Jury for Crime, which appears in Law and Society in Later Medieval England and Ireland: Essays in Honour of Paul Brand, ed. Travis Baker (New York: Routledge, 2018), 51-81.

Within a few years of Lateran IV’s prohibition of priestly involvement in trial by ordeal, England moved definitively toward a criminal justice system based on trial by jury. This paper will explore the underlying assumptions of king, council and justices at the time of the criminal trial jury’s introduction (c. 1220) as to the jury’s precise function within a prosecutory system that countenanced only capital sanctions for those convicted of felony. Unearthing these assumptions will require careful consideration of earlier ordeal procedure and other kinds of juries in the late twelfth and early thirteenth centuries, most notably juries of presentment, coroners’ inquests, and juries tasked with responding to writs de odio et atia. It will also require situating trial by jury within the broader context of felony adjudication with its manifold escape valves, including benefit of clergy, sanctuary, abjuration and pardons. The paper will rely on a re-examination of primary source materials and engagement with the existing secondary literature to grapple with the broad questions of what constituted serious criminal wrongdoing, what jurors were expected to know and do in adjudicating felony cases, and the extent to which jurors’ verdicts were based on knowledge or belief in the guilt of an individual, as opposed to such factors as reputation, rumor or expected recidivism. With regard to the issue of jury independence, the paper will query whether juries engaged in unilateral nullification of the law, or whether verdicts that appear to be contrary to the law reflect instead a consensus of judge and jury. Related to this is the macro-level question of what constituted the law, including the related matters of how jurors were to know the law and respond to it. As a think piece, this paper will test several hypotheses regarding problems fundamental to the history of English criminal law, some of which may prove unresolvable.

ConSource Adds Digital Scans of Madison's "Notes"

We hear from our friends at ConSource (The Constitutional Sources Project) that it has added high-quality scans of James Madison’s Notes on the Constitutional Convention to its digital library:

The Constitutional Convention began in Philadelphia, Pennsylvania, on May 25, 1787.  Originally set to begin on May 14, a quorum was not achieved until May 25.

The Library of Congress recently released new high-resolution scanned images of James Madison’s Notes on the Constitutional Convention - a huge leap forward from the difficult-to-read scanned microfilm images that were previously available to the public.

We are pleased to share that ConSource has now paired these high-resolution images with their corresponding plain-text, searchable transcriptions in our digital library. Both the images and their corresponding transcriptions are organized chronologically by date on our website.

Cromwell Fellowships for Early-Career Scholars

[We have the following announcement.]

In 2018, the William Nelson Cromwell Foundation will make available a number of $5,000 fellowship awards to support research and writing in American legal history by early-career scholars. Early career generally includes those researching or writing a PhD dissertation (or equivalent project) and recent recipients of a graduate degree working on their first major monograph or research project. The number of awards made is at the discretion of the Foundation. In the past several years, the trustees of the Foundation have made five to nine awards. Scholars who are not at the early stages of their careers may seek research grants directly from the Foundation.  More information is here.  The deadline is midnight, July 6, 2018.

Strang on Constitutional Construction and Congress on the First BUS

Lee J. Strang, University of Toledo College of Law, has posted An Evaluation of Historical Evidence for Constitutional Construction From the First Congress’ Debate Over the Constitutionality of the First Bank of the United States, which is forthcoming in the University of St. Thomas Law Journal 14 (2018): 193-206:

In this Essay, I review a modest selection of important evidence from the early Republic, the debate over the constitutionality of the First Bank of the United States in the First Congress, to evaluate whether, to what extent, and how Americans utilized constitutional construction in the early Republic. This Essay derives a number of tentative conclusions from this evidence. First, the participants in this early debate appeared to believe that a necessary precondition for constitutional construction — underdeterminacy — existed. Second, the participants also argued as if, after the application of a number of interpretative rules, the Constitution provided a determinate answer to the constitutional question. Third, the participants seemed ultimately to conclude that the Constitution’s meaning provided a determinate answer to the question under debate (though they continued to disagree about what that answer was).

Tips on Writing for a Peer-Reviewed Journal

For almost five years now, I‘ve been the editor of Law & Social Inquiry. A peer-reviewed journal, based at the American Bar Foundation, LSI publishes sociolegal scholarship from a range of disciplines. Here are a few tips I’ve collected for anyone interested in publishing in a peer-reviewed journal, particularly a journal with an interdisciplinary profile.

Your Abstract Is More Important Than You Think

LSI regularly receives strong manuscripts with weak abstracts. First impressions are important, and the first impression you’ll make with a journal’s editors and potential reviewers come from your title and abstract.

At LSI, poor abstracts cause particular challenges. We distribute titles and abstracts to our Editorial Board and to the ABF community to solicit recommendations for peer reviewers. And when we invite a scholar to review a manuscript, we send them the abstract. A weak abstract makes it much harder for us to line up the best possible reviewers for a manuscript.

What makes a good abstract? The simplest advice is to avoid making it too broad or too narrow. A broad abstract risks coming across as arrogant or naïve. (“In this article I reassess government regulation in the twentieth century.”) A narrow abstract risks coming across as of limited interest beyond a small group of specialists. (“In this article I reassess the operation of city courts in Hartford during the 1920s.”) A good abstract explains why your topic is important and persuades the reader that you have something interesting and significant to say about that topic.

The title, abstract, and introduction should each basically do the same thing: describe the topic of the article and what you have to say about that topic.

It’s less important that an abstract be complete than that it be compelling. Weak abstracts often conscientiously describe every element of the article, but in so doing they become lifeless to-do lists. Strong abstracts capture the article rather than summarize it. The goal is to provide a coherent story about the article, one that engages the reader and persuades this reader that the article is worth reading.

Remember Your Audience I

Who is this “reader” you’re trying to engage and persuade? In the realm of peer-reviewed journals, it’s best to think of two kinds of readers: the expert and the generalist. You need to write for both.

The expert view will be reflected in your peer review reports. These are readers selected because of their expertise on the topic of your manuscript, and to appease them you need to demonstrate your knowledge, be precise in your facts, and be complete in your references to the relevant scholarship. If you’re doing quantitative analysis, your methods must be sound.

The generalist view is sometimes reflected in the reader reports, but more often the journal editors are the ones who assume this role in the review process. When making editorial decisions for LSI, I often position myself as a “general” reader of the journal—a reader, that is, who is not an expert in the field of a given manuscript, who may have no particular interest in the topic, but who nonetheless might find something interesting and valuable in this particular piece of scholarship. Assuming this position is hardly a stretch for me, since for the vast majority of articles LSI considers, this is pretty much is who I am: non-expert but curious and open to new insights.

Don’t forget about your potential generalist audience. The goal of most journal editors is to publish articles that will be read beyond a small circle of specialists.

Remember Your Audience II

The target audience for an interdisciplinary journal is different from that of a disciplinary journal.  If, for example, LSI receives a legal history submission, I’ll line up as reviewers not just historians but also scholars in other disciplines who draw on legal historical scholarship. What appeals to this kind of reader is likely different from what appeals to the legal historian. If the entire motivation for your article is to contribute to some debate among legal historians, you risk losing much of your potential audience. You need to show why non-legal historians should care about this particular legal historical debate.

The primary goal of an interdisciplinary journal is not to offer a sampling of disciplinary work; it’s to publish articles that allow and encourage people to read across disciplines. If you are submitting to one of these journals, you should keep this in mind.

Take the Author Revision Memo Seriously

In addition to the manuscript itself, the most important document that the author submits is the letter that accompanies the manuscript when it has been revised after a “revise-and-resubmit” initial decision. (Note: I don’t think I’m alone among editors in saying that cover letters that accompany the article on initial submission typically play little to no role in the selection process.) The revision memo need not be particularly lengthy or minutely detailed, but it should be generous, thoughtful, and carefully written. It’s an opportunity to emphasize the seriousness with which you approach the revision process.

The revision memo also allows you to explain to the editors and the peer reviewers why you chose not to make a suggested revision. I would rather see an author defend an authorial choice—and hopefully persuade a skeptical reviewer of the validity of that choice—than just accept all criticisms and suggested revisions because that’s what was in the reader reports. Embrace those suggestions that make your article better. But when you receive a suggestion that you believe doesn’t work for your article, respectfully say so and explain why. Use the revision memo to your advantage. It not only can improve your chances of having your article accepted, it can also allow you to publish a better article.

The Process Works. Usually.

Having watched the peer-review process from the inside, I can say that as a general matter it works. Truly excellent scholarship is identified as such and sails through the process. Strong scholarship is regularly made stronger. Manuscripts that are not accepted for publication receive reviews that combine critique with insightful and generous feedback.

Of course the peer-review process doesn’t always work. It’s far superior to the world of student-edited law reviews. And it’s generally better than a review process in which a single editor or a group of editors make all the substantive evaluations. Nonetheless, strong articles sometimes don’t get through the peer review process, while weaker ones sometimes do.

Editors of peer-reviewed journals are reminded again and again of the subjectivity of assessing scholarship. We see equally qualified reviewers arrive at diametric assessments of the quality of a particular submission. For many viable submissions—the ones that fall outside the clear “yes” or “no” category—the particular line-up of reviewers assigned to the manuscript can determine whether it’s published or not. (This has little to do with the choice of reviewers. I’m constantly surprised at the response a manuscript receives—people I think will hate a manuscript come back with a rave review; people I think will love a manuscript come back with a black ball review.) I’m pretty confident that at least some of the close cases would come out the other way if we ran the review process again.

All of this is to say that you shouldn’t get too down when the peer review process doesn’t go the right way. If the reader reports all make the same critique, then you likely have a problem you need to work on. But this is not always the case.

The peer review process provides information. More often than not, this information—the work of an overwhelmingly conscientious group of reviewers and editors—is quite valuable. But like all information, it can be flawed. It’s subject to interpretation. If your reviewers are divided, and the journal editors choose not to accept your article, then your job is to make use of the information you’ve gained. Figure out which critiques are valid and which ones are not. Then revise the manuscript and send it off to another journal.

Schmitt and the Backlash to Prigg

Jeffrey M. Schmitt, University of Dayton School of Law, has posted Courts, Backlash, and Social Change: Learning from the History of Prigg v. Pennsylvania, which is to appear in the Penn State Law Review 123 (2018):

Scholars have repeatedly looked to the history of cases like Dred Scott, Brown, and Roe for guidance on whether courts should issue broad decisions on contentious issues. Some scholars contend that these cases triggered backlash that undermined the very causes the Court sought to promote, while others minimize the Court’s role in creating backlash and emphasize the decisions’ positive results. This Article contributes to this debate by providing a new account of the social and political consequences of Prigg v. Pennsylvania. The Court in Prigg rendered a broad interpretation of the Fugitive Slave Clause that was not necessary to resolve the facts of the case before it. The Court did so because the Justices sought to head off sectional conflict over fugitive slaves. Using original historical research, this Article argues that the decision had the effect, however, of helping to create a national policy on fugitive slaves that provoked an antislavery backlash in the North and strengthened the case for secession in the South. A more restrained decision from the Court could have produced a less divisive regime that provided greater legal protections for people claimed as fugitive slaves. The history of Prigg therefore suggests that courts should consider issuing limited and incremental rulings when attempting to produce social change on divisive issues.

Davies on TM's Lessons in Lawyering

Thurgood Marshall (LC)

Ross E. Davies, George Mason University Antonin Scalia Law School, has posted Five Little Lessons in Lawyering from Thurgood Marshall, which is to appear in the Oklahoma Law Review 70 (2018):  779-791:

Thurgood Marshall – the famed civil rights advocate, lawyer, and Supreme Court Justice – was renowned for his storytelling, and this Essay revolves around stories – true stories – told by and about him. It is, therefore, a salute to the man by way of storytelling, in hopes that we may learn a few little lessons – some old, some maybe new – from his life.

Twomey's "Veiled Sceptre"

Anne Twomey, University of Sydney, has published The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems in the series Cambridge Studies in Constitutional Law.  The book draws upon much original historical research in archives in former British colonies, including Canada, Australia, New Zealand, India, Malaysia, and many Caribbean and South Pacific nations.

This book is a comprehensive review and analysis of the reserve powers and their exercise by heads of state in countries that have Westminster systems. It addresses the powers of the Queen in the United Kingdom, those of her vice-regal representatives, and those of heads of state in the less studied realms and former colonies that are now republics. Drawing on a vast range of previously unpublished archival and primary material, The Veiled Sceptre contains fresh perspectives on old controversies. It also reveals constitutional crises in small countries, which have escaped the notice of most scholars. This book places the exercises of reserve powers within the context of constitutional principle and analyses how heads of state should act when constitutional principles conflict. Providing an unrivalled contemporary analysis of reserve powers, it will appeal to constitutional scholars worldwide and others involved in the administration of systems of responsible government.

TOC after the jump

Sunday Book Review Roundup

There is a terrific array of reviews this Memorial Day weekend:

In the Boston Review is an excerpt from Andrew Kahrl's Free the Beaches: The Story of Ned Coll and the Battle for America’s Most Exclusive Shoreline.

Liza's Featherstone's Divining Desire: Focus Groups and the Culture of Consultation is reviewed at Public Books.  Also on the site is an interview with Keisha Blain, author of the recently released  Set the World on Fire: Black Nationalist Women and the Global Struggle for Freedom.

At Common-Place is a review of Indians in the Family: Adoption and the Politics of Antebellum Expansion by Dawn Peterson.

The Trials of Nina McCall: Sex, Surveillance, and the Decades-Long Government Plan to Imprison Promiscuous Women by Scott W. Stern is reviewed in The New Republic.

Maya Jasanoff's The Dawn Watch: Joseph Conrad in a Global World is reviewed in The Nation.

At Books and Ideas is a review essay that takes up Cul de Sac: Patrimony, Capitalism, and Slavery in French Saint-Domingue by Paul Cheney and The Plantation Machine: Atlantic Capitalism in French Saint-Domingue and British Jamaica by Trevor Burnard and John Garragus.

Among the content of interest in the New York Review of Books is a review of Till Time's Last Sand: A History of the Bank of England 1694-2013 by David Kynaston.  Also in the NYRB is a review of Joan Wallach Scott's Sex and Secularism and R. Marie Griffith's Moral Combat: How Sex Divided American Christians and Fractured American Politics.  Odd Arne Westad's The Cold War: A World History and Ben Steil's The Marshall Plan: Dawn of the Cold War are reviewed as well.  Finally, in the NYRB is a review of Jörg Rüpke's Pantheon: A New History of Roman Religion and Harriet Flower's The Dancing Lares and the Serpent in the Garden: Religion at the Roman Street Corner.

In the New York Times Sean Wilentz reviews The Soul of America: The Battle for Our Better Angels by Jon Meachan.  Also in the paper is a review of Samuel Moyn's Not Enough: Human Rights in an Unequal World.

Interviews at the New Books Network include: Matthew R. Pembleton discusses his Containing Addiction: The Federal Bureau of Narcotics and the Origins of America's Global Drug War; Elaine Fisher speaks about her Hindu Pluralism: Religion and the Public Sphere in Early Modern South India;  Tarak Barkawi introduces his Soldiers of Empire: Indian and British Armies in World War II; Ethan Menchinger speaks about his The First of the Modern Ottomans: The Intellectual History of Ahmed Vasif; Simeon Mann discusses his Soldiering Through Empire Race and the Making of the Decolonizing Pacific; John Munro talks about his The Anticolonial Front The African-American Freedom Struggle and Global Decolonization; and Ethan J. Kytle and Blain Roberts discuss  their Denmark Vesey's Garden: Slavery and Memory in the Cradle of the Confederacy

Legal historians studying empire may be interested in this review of Empires and Bureaucracy in World History: From Late Antiquity to the Twentieth Century, edited by Peter Crooks and Timothy H. Parsons.

Weekend Roundup

• "When Rosa Parks refused to give her seat on a Montgomery bus to a white man in 1955, she was put in handcuffs and arrested. But what happened next? The answer to that question just became more clear thanks to a new discovery: disintegrating court records that detail the legal response to Parks’ arrest.”  More, from The History Channel.

• "The regulatory body for Ontario’s lawyers and paralegals has released a guide to help legal professionals better understand the legal rights, history and culture of Indigenous people."  More, from the National Post.

• We’ve learned from James H. Broussard, Department of History at Lebanon Valley College, that the Lebanon Valley College Center for Political History is inviting submissions for the Sally and Morris Lasky Prize, awarded to the best book on American political history published in calendar 2017.  Submissions should be addressed to Professor Broussard at the history Department, Lebanon Valley College,  101 N. College Ave., Annville PA 17003. Deadline is June 15. 

• Incidentally, the Lebanon Valley College Center for Political History’s Second Annual Conference on American Political History will take place at the College in Annville, PA, June 8-9, 2018.

• The program of the annual meeting of the American Political Science Association is now available online.

• ICYMI: Georgetown Law's Neal Katyal and Randy Barnett on Regents of the University of California v. Bakke on C-SPAN.  Amanda Tyler, Berkeley Law, discusses her Habeas Corpus in Wartime on the Lawfare Podcast  Dovey Roundtree's obituaries in the NYT and Charlotte Observer.

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

Law & History Review launches new digital imprint, The Docket

We are excited to report that the Law & History Review has officially launched its new online companion, The Docket. From LHR editor Gautham Rao:

I am pleased to announce the launch of The Docket, the new digital imprint of Law and History Review. The Docket aims to bring legal historians' outstanding work to a broader audience, without any paywall or registration. We'll be featuring content that mirrors articles in our print journal, while also running original articles, reviews and opinion pieces. Readers will also find interviews with scholars at different career stages, who discuss challenges in the field and new and particularly creative frameworks. We also hope to begin a broader conversation about teaching legal history in a digital age as the first of what we hope to be many projects. The Docket is edited by Dr. Michan Connor. Our inaugural issue features articles by Sarah Barringer Gordon of The University of Pennsylvania, Adriana Chira of Emory University, Anders Walker of St. Louis University, and Catherine Evans of the University of Toronto, plus an interview with University of Wisconsin doctoral candidate, Brooke Depenbusch. Our next issue will be a special volume on the career of eminent legal historian, Robert W. Gordon. We are also seeking contributors for future issues. Those interested in contributing to The Docket can find our contact information on the site.

Check it out here.

Kearley on Early 20th-Century Roman Law Translations

Timothy G. Kearley, University of Wyoming College of Law, has posted Roman Law Scholarship and Translation in Early Twentieth-Century America:

This article provides an overview of the book Lost in Translations, which examines the lives and work of five twentieth century American Roman law translator-scholars: Wyoming Supreme Court Justice Fred H. Blume (1875-1971), who single-handedly translated Justinian’s Code and Novels; gentleman-scholar Samuel Parsons Scott (1846-1929) and classics professor Clyde Pharr (1883-1972), both of whom created massive translations of ancient Roman law; Charles Phineas Sherman (1874-1962), a lawyer-professor who translated some Roman law and wrote prolifically about it; and, finally, Charles Sumner Lobingier (1866-1956), a judge-professor who wrote about Roman law, translated a little, championed the publication of Scott’s work, and was connected to all of the others. All of these men were prominent during their lifetimes but are largely forgotten now. It is hoped that Lost in Translations will draw attention to the work these extraordinary men did and stir an interest to our classical past.

Mirow on the Expansion of Spanish Law

M. C. Mirow, Florida International University College of Law, has posted Spanish Law and Its Expansion, which is forthcoming in the Oxford Handbook of European Legal History, ed. Heikki Pihlajamaki, Markus D. Dubber, and Mark Godfrey (Oxford: Oxford University Press, 2018):

This chapter provides an overview of the legal aspects of Spain's enterprise in the Americas. It addresses the uses of law in discovery, exploration and conquest; Castilian law before its expansion to new territories; the use of law to justify conquest; slavery and indigenous labour; institutions; sources of law; legal actors; and Spanish law after independence. It also presents some of the present debates surrounding the nature and construction of derecho indiano.

Walsh on "Schools, Segregation, and Taxpayer Citizenship, 1869–1973"

The University of North Carolina Press has released Racial Taxation: Schools, Segregation, and Taxpayer Citizenship, 1869–1973 (Feb. 2018), by Camille Walsh (University of Washington Bothell). A description from the Press:

In the United States, it is quite common to lay claim to the benefits of society by appealing to “taxpayer citizenship”--the idea that, as taxpayers, we deserve access to certain social services like a public education. Tracing the genealogy of this concept, Camille Walsh shows how tax policy and taxpayer identity were built on the foundations of white supremacy and intertwined with ideas of whiteness. From the origins of unequal public school funding after the Civil War through school desegregation cases from Brown v. Board of Education to San Antonio v. Rodriguez in the 1970s, this study spans over a century of racial injustice, dramatic courtroom clashes, and white supremacist backlash to collective justice claims. 

Incorporating letters from everyday individuals as well as the private notes of Supreme Court justices as they deliberated, Walsh reveals how the idea of a “taxpayer” identity contributed to the contemporary crises of public education, racial disparity, and income inequality.

A few blurbs:

“Walsh's discovery of a popular legal consciousness that defined citizenship with reference to taxation is fresh, striking, original, and highly significant. In a rhetorical landscape filled with pitfalls and ironies, Walsh guides the reader through not only the linguistic thickets but also the financial and educational realities behind them.”--Robin Einhorn 

“Walsh deftly brings together political theory, legal studies, and critical race analysis in the historical examination of two fundamental issues at the heart of pressing challenges to democracy and equality: taxation and public education. A combination of original analysis and careful archival work, this powerful, passionately written book explains why the United States continues to reproduce racial inequality while relying on an increasingly anemic notion of citizenship.”--Joseph Lowndes

For a preview, follow the link.

Lindsay on "Invasion" in Nativist Thought

Matthew J. Lindsay, University of Baltimore School of Law, has posted The Perpetual “Invasion”:  Past as Prologue in Constitutional Immigration Law, which is forthcoming in Roger Williams University Law Review 23 (2018): 369-392

Donald Trump ascended to the presidency largely on the promise to protect the American people — their physical and financial security, their culture and language, even the integrity of their electoral system — against an invading foreign menace. Only extraordinary defensive measures, including “extreme vetting” of would-be immigrants, a ban on Muslims entering the United States, and a 2,000-mile-long wall along the nation’s southern border could repel the encroaching hordes. If candidate Trump’s scapegoating of unauthorized migrants and refugees was disarmingly effective, it was also eerily familiar to those of us who study the history of immigration law and policy. Indeed, the trope of an immigrant “invasion” has long been a rhetorical mainstay of American political discourse. Much less well understood, however, is the extent to which the invasion trope has also shaped the federal government’s vast, extra-constitutional, and largely unrestrained authority to exclude or expel noncitizens from the United States.

Anti-Chinese Riot, Seattle, 1886 (NYPL)

This Article describes the origin of that authority in the nativist movements of the late-nineteenth century, including both the virulent anti-Chinese crusade that culminated in the Chinese Exclusion Act, and the decades-long and ultimately successful campaign to severely curtail the immigration of “new” Europeans from Southern and Eastern Europe. The legacy of this history endures to the present, as the Supreme Court continues to account for its broad deference to the political branches on immigration matters in terms of an inextricable connection between immigration regulation and the conduct of national security. This Article concludes by considering whether President Trump’s unusually candid (unusual, at least, during the last half-century) deployment of the invasion trope might have an edifying effect on the Supreme Court in Trump v. Hawaii, the travel ban case, as the justices contemplate the implications of deferring to a President whose campaign-season political demagoguery has now mutated to official United States policy.

Zinos on Fundamental Rights in Early American Case Law

Nicholas Zinos, Mitchell Hamline School of Law, has posted Fundamental Rights in Early American Case Law: 1789-1859, which is forthcoming in volume 7 of the British Journal of American Legal Studies:

Fundamental Rights Law is a ubiquitous feature of modern American jurisprudence. Where did the term “Fundamental Rights” come from, and how was it applied in early American case law? This article outlines the genesis of fundamental rights law in early 17th century England and how this law developed and was applied over time. The English Bill of Rights of 1689 was the first attempt to codify these rights in English law. When the English legal system emigrated to America along with the early American colonists, it included the English conception of fundamental rights. The framers of the United States Constitution incorporated and expanded these rights. Early American Case law kept strictly within this tradition for the most past, and used the term “fundamental rights” usually for rights which had long been recognized in Anglo-American society. This article notes the concordance between the application of fundamental rights in early American case law and the long tradition of fundamental rights which ripened in the Anglo-American legal tradition.

Collin's "Regulated Self-Regulation" in Germany

Peter Collin, Max Planck Institute for European Legal History, has posted all 781 pages of Regulated Self-Regulation from a Legal Historical Perspective: Studies and Sources, published auf Deustch as a Max Planck Institute for European Legal History Research.  Here is the English abstract:

This publication familiarises the reader with a number of fields of “regulated self-regulation,” i.e. regulatory complexes, in which state and non-state regulatory activities are intertwined. The area examined is Germany, and the period of investigation is the 19th and early 20th centuries. Each chapter begins with a comprehensive introduction, which provides an overview of the regulated self-regulation sector in question. This is then followed by the normative sources that illustrate the regulatory framework for the related sector. This contribution documents the results of the research project “Regulated Self-Regulation from a Legal Historical Perspective” at the Max Planck Institute for European Legal History. It offers an introduction to the field of research, familiarises the reader with central legal sources and, at the same time, is intended to stimulate further research.

Hoffer's "Uncivil Warriors"

Peter Charles Hoffer, University of Georgia, has published Uncivil Warriors: The Lawyers’ Civil War with Oxford University Press:

It was a law that empowered as well as limited the government, a law that conferred personal dignity and rights on those who, at the war’s beginning could claim neither in law.

The American Civil War from 1861 to 1865 is arguably the most important event in American history. The United States and the Confederate States of America engaged in combat to defend distinct legal regimes and the social order they embodied and protected. In a “nation of laws,” lawyers and politicians found themselves at the center of this violent maelstrom.  For these men, as for their countrymen in the years following the conflict, the sacrifices of the war gave legitimacy to new kinds of laws defining citizenship and civil rights.

Well-known legal historian Peter Charles Hoffer gives a detailed account on why law and lawyers played such an important role during the Civil War in his new book, Uncivil Warriors. He concentrates on the legal professionals who plotted the course of the war from seats of power, scenes of battle, and the home front.  Lawyers and politicians were everywhere in the executive and legislative branches of government as well as the judiciary.  From the Confederate constitution in Montgomery through the passage of the Thirteenth Amendment in Washington, DC – government lawyers, performing as policymakers, litigators, and jurisprudents, shaped the Union and Confederate causes. Both sides had their complement of lawyers, and in this book, Hoffer provides readers with coverage of both sides’ leading lawyers.

Uncivil Warriors focuses on the centrality of lawyers and the law in America’s worst conflict will transform how we think about the civil war itself.

Endorsements after the jump.

Eisenstadt on Religion and Loving

Leora F. Eisenstadt, Temple University, has posted Enemy and Ally: Religion in Loving v. Virginia and Beyond, which is forthcoming in volume 86 of the Fordham Law Review:

In his 1965 opinion refusing to vacate the convictions of Richard and Mildred Loving, Judge Leon M. Bazile of Caroline County Circuit Court wrote," Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. . . . The fact that he separated the races shows that he did not intend for the races to mix." Throughout the Loving case, religion appeared both overtly and subtly to endorse or lend credibility to the arguments against racial mixing. This use of religion is unsurprising given that supporters of slavery, white supremacy, and segregation have, for decades, turned to religion to justify their ideologies. What is remarkable in the Loving case, however, is an alternate use of religion, not to justify white supremacy and segregation but instead to highlight the irrationality of its supporters’ claims. In a brief but memorable interaction during oral arguments, Chief Justice Warren analogized interracial relationships to interfaith ones and managed, in a few words, to underscore the absurdity of treating religion and race differently under the law. The inherent tension between religion as both enemy and potential ally of those with vulnerable social identities is the subject of this essay. The fact that Loving incorporates both aspects of religion is telling. The story of America’s progression toward equal treatment of race, gender, and sexual orientation is inherently intertwined with religion, and the fiftieth anniversary of the Loving case provides an unparalleled opportunity to explore both sides of this fraught relationship.

Coffey's "Constitutionalism in Ireland, 1932-1938"

We’ve previously noted the publication of Drafting the Irish Constitution, 1935–1937: Transnational Influences in Interwar Europe (Palgrave Macmillan), by Donal K. Coffey, Senior Research Fellow, Max Planck Institute for European Legal History.  Now comes its companion volume, Constitutionalism in Ireland, 1932–1938: National, Commonwealth, and International Perspectives:

The first of two volumes, this book examines constitutionalism in Ireland in the 1930s. Donal K. Coffey places the document and its drafters in the context of a turbulent decade for the United Kingdom, the Commonwealth, and Europe. He considers a series of key issues leading up to its drafting, including the failure of the 1922 Constitution, the rise of nationalism in the 1920s and 1930s, and the abdication of Edward VIII. He sketches the drafting process, examines the roles of individual drafters and their intellectual influences, and considers the Constitution’s public reception, both domestically and internationally. This book illuminates a critical moment in Irish history and the confluence of national, Commonwealth, and international influences that gave rise to it, for scholars of Irish history as well as of legal, constitutional, and Commonwealth history more broadly.

Barzun on Three Forms of Legal Pragmatism

Charles L. Barzun, University of Virginia School of Law, has posted Three Forms of Legal Pragmatism, which is forthcoming in the Washington University Law Review 95 (2018):

The term “Legal Pragmatism” has been used so often for so long that it may now seem to lack any clear meaning at all. But that conclusion is too quick. Although there are diverse strands of legal pragmatism, there is also unity among them. This essay distinguishes among three such forms of legal pragmatism. It dubs them instrumentalist, quietist, and holist strands, and it offers, as representatives of each, the views of Richard Posner, Ronald Dworkin, and David Souter, respectively. Each of these forms of pragmatism has developed as a response to the same underlying philosophical problem, namely that of justifying moral and legal values within a naturalistic, nontheological worldview. That problem is an old one and a fundamental one. And it is one felt acutely by those judges and legal theorists over the last century or more who have sought to make sense of the judge’s task when deciding hard cases. The essay does not defend any one or more of these three understandings of law and adjudication against its critics. But it does suggest that the feature they share, in virtue of which they are all plausibly classed as “pragmatist,” may also be an important and distinctive feature of law as a discipline – that is, as a form of reasoning about matters practical and theoretical.

Edwards on FDR and the Gold Clause Cases

Sebastian Edwards, the Henry Ford II Professor of International Economics at the University of California, Los Angeles, has published American Default The Untold Story of FDR, the Supreme Court, and the Battle over Gold with Princeton University Press:

The American economy is strong in large part because nobody believes that America would ever default on its debt. Yet in 1933, Franklin D. Roosevelt did just that, when in a bid to pull the country out of depression, he depreciated the U.S. dollar in relation to gold, effectively annulling all debt contracts. American Default is the story of this forgotten chapter in America's history.

Sebastian Edwards provides a compelling account of the economic and legal drama that embroiled a nation already reeling from global financial collapse. It began on April 5, 1933, when FDR ordered Americans to sell all their gold holdings to the government. This was followed by the abandonment of the gold standard, the unilateral and retroactive rewriting of contracts, and the devaluation of the dollar. Anyone who held public and private debt suddenly saw its value reduced by nearly half, and debtors--including the U.S. government—suddenly owed their creditors far less. Revaluing the dollar imposed a hefty loss on investors and savers, many of them middle-class American families. The banks fought back, and a bitter battle for gold ensued. In early 1935, the case went to the Supreme Court. Edwards describes FDR's rancorous clashes with conservative Chief Justice Charles Evans Hughes, a confrontation that threatened to finish the New Deal for good—and that led to FDR's attempt to pack the court in 1937.

At a time when several major economies never approached the brink of default or devaluing or recalling currencies, American Default is a timely account of a little-known yet drastic experiment with these policies, the inevitable backlash, and the ultimate result.

Deregulation, Past and Present: An ABA Teleforum

We have word of a teleconference sponsored by Administrative Law and Regulatory Practice Section of the American Bar Association, Deregulation, Past and Present.  It will take place from
12:00 PM - 1:30 PM ET on June 8, 2018.  It is open to ABA members and the general public, without cost, although registration is required.For additional information, call 202-662-1528 or e-mail Rebecca.Mobley@americanbar.org.  “Dial-in information will be sent one day before the program.”

The present administration has seen what many consider the most dramatic effort at deregulation since Ronald Reagan took office in 1981. This teleforum considers what the proponents and opponents of deregulation can learn by looking back at deregulation’s history, particularly the Reagan era.

What factors have caused deregulation to succeed or fail as a legal matter, and to thrive or sputter as a political matter?  When does deregulation last, and when does it not?  This program brings together veterans of the deregulation initiatives and debates of the 1980s with historians and political scientists who have begun to produce a rich scholarly literature on deregulation’s history and what that history means for us today.

The confirmed panelists are:
  
Christopher DeMuth, Distinguished Fellow, Hudson Institute, former Administrator, Office of Information and Regulatory Affairs
  
David Vladeck, Professor of Law, Georgetown University, former Director, Public Citizen Litigation Group 

Marissa Martino Golden, Associate Professor of Political Science, Bryn Mawr College
  
Reuel Schiller, Professor of Law, UC-Hastings College of Law

Jefferson Decker, Assistant Professor of American Studies, Rutgers University

Nicholas Parrillo, Professor of Law, Yale University (moderator)

CFP: “Migrants and Refugees in the Law" at Universidad Católica de Murcia

We a call for papers for the Fourth International Conference of the Chair Innocent III and the Universidad Católica de Murcia.  It is entitled “Migrants and Refugees in the Law: Historic Evolution, Current Situation and Unsolved Questions" and will be held in Murcia (Spain), December 12-14, 2018.

International Chair Innocent III calls on all interested researchers to submit papers related to the human mobility and the reception of refugees according to History of Law, Canon Law, Roman Law, Comparative Law, Philosophy, Theology, History, Sociology, Historiography and any other discipline related to the main theme, as stated in the following sessions:

December 12: session 1. The Migration in the Ancient and Medieval History. Historical approach to human mobility. 

December 13: session 2. Nation, State, Revolution.  The situation of the migrants and the refugees from the origin of the modern State. 

December 14: session 3. Between Emergency and Ordinariness.  Proposals for the enhancement of a constant phenomenon in the contemporary age. 

Proposals:  Title, academic affiliation, short CV and Abstract - 200 words - (EN, IT, ES, DE, FR), via mail: catedrainocencio@gmail.com 

Deadline: September 15, 2018. The Scientific Committee will respond to the proposal before September 30, 2018.

Publication: Papers selected by the Scientific Committee will be published in the special issue of the journal Vergentis (ISSN: 2445-2394) in the first half of 2019.

Mayeux on the Federal Courts and Criminal Justice

Sara Mayeux, Vanderbilt University Law School, has posted The Federal Courts and Criminal Justice, which is forthcoming in Approaches to Federal Judicial History, ed. Clara Altman, Gautham Rao & Winston Bowman (Federal Judicial Center):

Mass incarceration has long constituted not only a sociological fact and a moral disaster in the United States, but also a major sector of the public and private economy; a significant component of ideologies of race, gender, and sexuality; and a distorting influence upon electoral processes and deliberative democracy. What role has the federal judiciary played in this complex history? This short historiographical essay provides a brief and necessarily selective introduction to exemplary scholarship addressing the relationship between the federal courts and criminal justice in U.S. history, and seeks to encourage historians of the carceral state—even or especially those who do not define themselves primarily as legal historians—to join the conversation. The essay is structured around three of the most significant ways in which the federal judiciary has historically made and enforced criminal justice policy: by adjudicating federal criminal prosecutions; by reviewing state-court convictions, via federal habeas jurisdiction; and by reforming state prisons and local jails, via constitutional conditions-of-confinement litigation. This essay was prepared at the invitation of the Federal Judicial History Office for a forthcoming volume.

Ahmed on Islamic law and empire in Afghanistan

Faiz Ahmed, Brown University, published Afghanistan Rising: Islamic Law and Statecraft between the Ottoman and British Empires with Harvard University Press in 2017. From the publisher:

Debunking conventional narratives of Afghanistan as a perennial war zone and  the rule of law as a secular-liberal monopoly, Faiz Ahmed presents a vibrant account of the first Muslim-majority country to gain independence, codify its own laws, and ratify a constitution after the fall of the Ottoman Empire.

 Afghanistan Rising illustrates how turn-of-the-twentieth-century Kabul—far from being a landlocked wilderness or remote frontier—became a magnet for itinerant scholars and statesmen shuttling between Ottoman and British imperial domains. Tracing the country’s longstanding but often ignored scholarly and educational ties to Baghdad, Damascus, and Istanbul as well as greater Delhi and Lahore, Ahmed explains how the court of Kabul attracted thinkers eager to craft a modern state within the interpretive traditions of Islamic law and ethics, or shariʿa, and international norms of legality. From Turkish lawyers and Arab officers to Pashtun clerics and Indian bureaucrats, this rich narrative focuses on encounters between divergent streams of modern Muslim thought and politics, beginning with the Sublime Porte’s first mission to Afghanistan in 1877 and concluding with the collapse of Ottoman rule after World War I. By unearthing a lost history behind Afghanistan’s founding national charter, Ahmed shows how debates today on Islam, governance, and the rule of law have deep roots in a beleaguered land. Based on archival research in six countries and as many languages, Afghanistan Rising rediscovers a time when Kabul stood proudly as a center of constitutional politics, Muslim cosmopolitanism, and contested visions of reform in the greater Islamicate world.

Praise for the book:

“A groundbreaking book that will reorient the way we think about not only Afghan modernity, but also political and legal thought in Muslim societies during the twentieth century. Ahmed describes the emergence of a modern Islamicate region during the age of imperial globalization and demonstrates the appeal of multiple governance models in the ideas exchanged within this region among different Muslim publics. More importantly, he shows how Afghan kings experimented with novel legal and political models to assert their legitimacy while establishing on the global stage Afghanistan’s sovereignty as a modern nation state. The book persuasively shows us how Afghanistan’s transformation exemplifies a model of Muslim modernity that was not Eurocentric.”—Cemil Aydin

“Afghanistan Rising uncovers the lost history behind the first constitution of Afghanistan and that country’s evolution into a modern Islamic state. Ahmed provides highly original insights into Muslim legal history, modernization in non-European contexts, and transnational Muslim networks. Exploring the ideological and social factors that shaped Afghanistan during an age of turmoil and transformation, the work is conceived on a broad scale. This is a well-crafted, theoretically rich, tightly argued, and rigorously executed book. In addition, its lucid style makes for enjoyable reading.”—M. Şükrü Hanioğlu

Here is the Table of Contents:

Introduction

1. An Ottoman Scholar in Victorian Kabul: The First Ottoman Mission to Afghanistan

2. A Damascene Road Meets a Passage to India: Ottoman and Indian Experts in Afghanistan

3. Exit Great Game, Enter Great War: Afghanistan and the Ottoman Empire during World War I

4. Converging Crescents: Turco-Afghan Entente and an Indian Exodus to Kabul

5. Legalizing Afghanistan: Islamic Legal Modernism and the Making of the 1923 Constitution

6. Turkish Tremors, Afghan Aftershocks: Anatolia and Afghanistan after the Ottomans

Conclusion

Further information is available here.

The Art of the Op-Ed

Around the time of the publication of my book, The Sit-Ins, I decided to give more attention to something I had mostly avoided up to that point: writing op-eds. I was looking for ways to draw more attention to the book, and this seemed a good way to do that. I placed an op-ed in USA Today that ran on the anniversary of the seminal 1960 lunch counter sit-in in Greensboro, North Carolina. I also wrote several pieces for the Washington Post’s “Made By History” section.

I have two takeaways from this experience. One is that an academic writing an op-ed should know some basic tricks. The other is that a historian writing an op-ed faces distinct challenges. Effective op-ed writing often demands the kind of presentist orientation to the past that conflicts with the essence of effective historical writing.

The Tricks

I quickly learned there are basic tricks to writing pieces op-eds. The most important is to remember your audience. Op-eds are aimed toward a general readership, and you need to make sure to pitch your prose at the right level. Make it accessible. Don’t assume knowledge. Avoid abstract concepts and technical terminology. Use details selectively, and then only to illustrate or to add texture to the point you’re trying to make.

A related trick: Don’t try to do too much. Figure out what the point of the piece is and stick to it. Avoid excessive qualifications. Accept that nuance is not the coin of this realm. For scholars who dedicate their careers to the complexity of historical material, who carefully craft article and books by threading together subtle arguments and sub-arguments, this can be a difficult and painful process.

And then there is the always-looming word count. You need to cut, cut, and cut some more. You might get some more space if you’re writing an exclusively online essay, but if you have a chance to get into actual print, this requires even more cuts.

The Challenges

Beyond figuring out how to express yourself in accessible 800-word form, there are more substantive concerns that historians face when writing op-eds.

If you want an editor to pick up your op-ed, you need a hook. What do you have to say that will make a general reader stop to take a detour into history with you? Sometimes the historical material itself is the enticement. But if you’re trying to get the attention of an editor receiving hundreds of submissions every week, you probably need something more. And often that something more is a “lesson” of history. You’re a historian, and you want to show the world that you have something to add to the discussion. And what clearer, more relevant way to declare your importance than to say that history provides special insight on some issue of contemporary importance?

In navigating this terrain, there are two basic moves the historian can make: critique and construction. The historian as critic might simply seek to correct some historical misconception that has entered into public debate. Or, the historian as critic might seek to undermine present-day assumptions, to destabilize established certainties. The historian does this by showing that the status quo was constructed out of lost alternatives, that the present does not need to be the way it is. History shows us that things have changed and that things can change again.

The other move is probably more appealing to op-ed editors, but it is the one I find far more challenging and more potentially problematic. This move involves the historian extracting a lesson from history that says something about the way the present should be.

Some lessons of history focus on lineage. The historian shows how present debates are the legacies of past debates. Understanding the past illuminates the stakes of the present. So, for example, liberal historians argue that the embrace of a “color-blind” reading of the equal protection clause by segregationists in the 1960s and 1970s illuminates the sins of modern-day color-blind constitutionalists. Conservative historians critique modern liberalism by tracing its lineage to the paternalistic, racist, and eugenicist strands of the Progressives.

Another kind of lesson of history is comparative. The historian places the past alongside the present so as to illuminate the present. This was how I framed my op-eds on the sit-ins. One described lessons the sit-in movement offered for present-day protest efforts. The other compared the 1960 student movement to the recent student-led gun rights movement.

The reason I find this kind of writing challenging is because Rule #1 for any serious historian is that past is different from the present. The most common mistake for nonhistorians engaging with the past is anachronism and presentism. Recovering the past requires attention to the distinctive circumstances and worldviews of historical actors. Finding ourselves in the past is easy—probably because it says more about us than about the past. The best historical work tends to show difference.

Extracting lessons from the past that are useful to the present is an exercise in selection in which the selection criteria is as much about present-day utility than about historical fidelity. To make history serviceable to the present also requires compromise and simplification. Richness and complexity of history inevitably is lost in the process.

So, for example, to reduce modern color-blind constitutionalism to the legacy of segregationism requires placing aside many other strands of historical influence that played a role in its rise to conservative orthodoxy. My comparison of the lunch counter sit-in protesters to the post-Parkland student gun-control activists required me to pick out points of intersection and push aside points of differentiation. The comparison was driven by my admiration for the students and what they were trying to do, both then and now. I want the students today to succeed, and it was this desire, as much as or more so than my knowledge of history, that moved me to compare them to one of the most inspirational and successful students movements in history.

*** 

These are the tricks and challenges of writing op-eds. The tricks I found sometimes frustrating, always time-consuming, but readily manageable. The more substantive challenges I found harder to navigate. I had to recognize that the art of the op-ed simply requires tapping into a different skill set than that of an academic historian.

In the end, I was proud of the op-eds I wrote. I felt I was able to minimize the inevitable trade-offs of the genre. They drew attention to historical material I felt deserved more attention. And the linkages I drew between the past and the present hopefully enriched some readers’ understanding of both.

Freedman's "Making Habeas Work"

Eric M. Freedman, the Siggi B. Wilzig Distinguished Professor of Constitutional Rights at the Maurice A. Deane School of Law at Hofstra University, has published Making Habeas Work: A Legal History, with NYU Press.

Habeas corpus, the storied Great Writ of Liberty, is a judicial order that requires government officials to produce a prisoner in court, persuade an independent judge of the correctness of their claimed factual and legal justifications for the individual’s imprisonment, or else release the captive. Frequently the officials resist being called to account.  Much of the history of the rule of law, including the history being made today, has emerged from the resulting clashes.

This book, heavily based on primary sources from the colonial and early national periods and significant original research in the New Hampshire State Archives, enriches our understanding of the past and draws lessons for the present.

Using dozens of previously unknown examples, Professor Freedman shows how the writ of habeas corpus has been just one part of an intricate machinery for securing freedom under law, and explores the lessons this history holds for some of today’s most pressing problems including terrorism, the Guantanamo Bay detentions, immigration, Brexit, and domestic violence.

Exploring landmark cases of the past - like that of John Peter Zenger - from new angles and expanding the definition of habeas corpus from a formal one to a functional one, Making Habeas Work brings to light the stories of many people previously overlooked (like the free black woman Zipporah, defendant in “the case of the headless baby”) because their cases did not bear the label “habeas corpus.”

The resulting insights lead to forward-thinking recommendations for strengthening the rule of law to insure that it endures into the future.

Here are some endorsements:

“Eric M. Freedman is one of the most important legal thinkers in the area of habeas corpus, and this book reaffirms that status. Keeping one foot in the present and the other firmly planted in the past, Freedman shows how, without the perspective of history, modern jurisprudence can and does go wrong. A compelling reformulation of our understanding of habeas based on extensive historical research.”
 —Austin Sarat, William Nelson Cromwell Professor Of Jurisprudence & Political Science, Amherst College

“This impressive work of scholarship by one of the leading national experts on habeas corpus draws deeply on history to expand and enrich the modern understanding of the writ. The book is an invaluable resource for legal scholars, the judiciary, and the practicing bar. Its insights will almost certainly surprise  readers, just as they have surprised and informed us notwithstanding our long immersion in the topic.”
—Randy Hertz and James S. Liebman, co-authors, Federal Habeas Corpus Practice and Procedure (LexisNexis 7th ed. & annual supplements)

“Professor Eric Freedman has written a wonderful book explaining the historical and contemporary importance of habeas corpus in protecting liberty.  The book is original in its research and also in its analysis, as Professor Freedman explains the role of habeas corpus in a system of checks and balances.  This clearly written, thorough examination of habeas corpus is an important contribution to the literature of constitutional law, criminal procedure, and federal jurisdiction.”
—Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor, University of California, Berkeley Law School

Spruhan on "The Role of the Certificate of Degree of Indian Blood in Defining Native American Legal Identity"

Just out from the American Indian Law Journal: "CDIB: The Role of the Certificate of Degree of Indian Blood in Defining Native American Legal Identity," by Paul Spruhan (Navajo Nation Department of Justice). ("CDIB" stands for "Certificate of Degree of Indian or Alaska Native Blood.") Here's a paragraph from the Introduction:

This article is about the CDIB and its role in defining Native American legal identity. The purpose of the article is to describe the CDIB, its function, its statutory authority (or lack thereof), and the BIA’s recent attempts at issuing regulations, which no other article or book has done. First, I discuss its primary purpose as proof of blood quantum for specific federal statutes and regulations, and how its use has expanded to other purposes, including by tribes to define eligibility for membership. Second, I discuss its origins as an internal BIA document lacking any direct congressional authorization or published regulations and suggest several possibilities for its first appearance. I then discuss a 1986 Interior Board of Indian Appeals (IBIA) decision, Underwood v. Deputy Ass’t Secretary- Indian Affairs (Operations). In that decision, the IBIA blocked an attempt by the BIA to unilaterally alter a person’s blood quantum on a CDIB, because there were no properly issued regulations. I then discuss the BIA’s attempts at issuing regulations since 2000 and the possible reasons for why they have never been finalized. I then discuss potential remedies the BIA might consider in order to solve problems arising out of the CDIB program, including the potential misuse of CDIBs in current disenrollment conflicts within some tribes. In the conclusion, I discuss the CDIB’s role in enshrining “blood” as the dominant definition of Native American legal identity. I also argue that, for as long as the CDIB continues, the BIA has an affirmative obligation to issue clear policies that prevent its misuse in internal tribal conflicts.

The full article is available here.