Sunday, June 24, 2018

Weekend Roundup Addendum

A few items came to our notice too late for our Saturday Weekend Roundup, so here is an addendum.
  • In The Globe and Mail, James Phillips, University of Toronto, observes that historians are wish to have discussions among the justices of Canada’s Supreme Court closed for some time to ensure that the justices don’t self censor, but fifty years?
  • Time Magazine asked seven historians for suggestions of people for President Trump to pardon. We agree with the NFL players that taking up the president's suggestion risks obscuring the need for a systemic response to mass incarceration, but if you’d care to see the historians’ choices, they’re here.  H/t: Mary Bilder.
  • Amy Westbrook, Washburn University School of Law, and David A. Westbrook, SUNY Buffalo Law School, have posted Snapchat's Gift, a paper on a recent offering of non-voting common shares by Snap, the company that owns Snapchat.  They refer to some of the usual suspects in the history of corporate law (Berle & Means; Dodge v. Ford) but more extensively to a less familiar source, Marcel Mauss’s 1925 essay, “The Gift: The Form and Reason for Exchange in Archaic Societies.”
  • Over at the Faculty Lounge, Eric Muller comments on Steve Vladeck’s tweeted alert that the "Defense Department submitted a brief to a military commission favorably citing and extensively quoting Hirabayashi v. United States, 320 U.S. 81 (1943)."  Professor Muller calls this "a fateful moment," in which a lamentable precedent threatens to escape the "anti-canon."  I'll note that DOD's quotation of Hirabayashi for the proposition that “The war power of the national government is ‘the power to wage war successfully’” misses Charles Evans Hughes's point in the essay the Hirabayashi court quotes, which was not that military officials enjoy unreviewable discretion during wars but that American wars are fought under the Constitution.  Matthew Waxman, Columbia Law School, has written the essential article on Hughes's essay.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Saturday, June 23, 2018

Weekend Roundup

  • From the Los Angeles Times: an op-ed by Kristin Collins (Boston University Law), Serena Mayeri (Penn Law), and Hiroshi Motomura (UCLA Law). They bring a historical perspective to bear on current immigration policy and the family separations occurring at the U.S.-Mexico border.
  • Aaron T. Knapp reviews former LHB Guest Blogger Gautham Rao’s National Duties in the latest issue of Law and Social Inquiry.
  • From the newsletter of the SEC Historical Society: “Maybe you've heard of the Buttonwood Agreement, an effort to organize securities trading in 1792 and preceding the formation of the New York Stock and Exchange Board...but have you ever seen it?”
  • Coming up: a workshop on "Cultural Expertise in Ancient and Modern History," convened by Livia Holden at Oxford's Centre for Socio-Legal Studies, July 4-5, 2018. Participants will explore dispute resolution and cultural expertise in legal history, while also tracing the historical development of recent trends in cultural expertise. More here.
  • And later this summer: a 900-year commemoration of the first Icelandic laws, the Hafliðaskrá, at the 17th International Saga Conference in Reykjavik and Reykhold (Aug.12-17, 2018). Otto Vervaart has a handy overview at his Rechtsgeschiedenis Blog.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 22, 2018

Ford on Balleisen, "Fraud"

Writing for JOTWELL's Corporate Law section, Cristie Ford (University of British Columbia) has posted an admiring review of Fraud: An American History from Barnum to Madoff (Princeton University Press, 2017), by Edward Balleisen (Duke University). Here's a taste:
As anyone who knows Balleisen’s work would expect, Fraud is exceptionally researched, observant, thoughtful, and rendered in charming prose. Fraud spans the familiar legal silos to provide a sweeping history of different varieties of fraud, and their regulation. This is useful, and the book works because of Balleisen’s disciplined focus on his core questions—how fraud manifests, how regulatory anti-fraud strategies have evolved across time, how and when industry self-regulation has intervened to control it, and how judicial institutions and processes have influenced anti-fraud efforts. The book examines a recurring toggle between interventionist and laissez-faire regulatory approaches; the venerable, if inconsistent and imperfect, tradition of industry self-regulation; and the seemingly perennial link between influence (or lack thereof), and punishment (or lack thereof). It makes a remarkable contribution to our understanding of how fraud and its regulation have evolved thus far, and the conditions out of which our current regulatory models developed.
Read on here.

Clark on Recognition in British International Legal Thought

It’s gated, but we’ll note anyway the publication by Martin Clark of A Conceptual History of Recognition in British International Legal Thought in the British Yearbook of International Law:
This article examines the development of the concept of recognition in the writings of British jurists. It first outlines methodologies of conceptual history as applied to international legal concepts, before examining four strands of development of the concept of recognition from the mid-nineteenth to mid-twentieth centuries. It shows how the concept of recognition moved from examining intra-European diplomatic disagreements, to a focus on Christianity, civilisation and progress that barred non-European communities, to a late colonial-era emphasis on technicalities of government and territory, and eventually a state-centric account that normalised inferiority into difference, before emerging in the interwar period as a ‘basic concept’ of international law: intensely debated and closely tied to a range of political projects. The article concludes with reflections on why British thinking turns away from recognition in the 1950s, as the decolonising world turns to a new international law and self-determination.

de la Rasilla del Moral on Vitoria & international law in Spain

In the Shadow of Vitoria: A History of International Law in Spain (1770-1953)Ignacio de la Rasilla del Moral, Brunel University London, has published In the Shadow of Vitoria: A History of International Law in Spain (1770-1953) with Brill. From the press:
In the Shadow of Vitoria: A History of International Law in Spain (1770-1953) offers the first comprehensive treatment of the intellectual evolution of international law in Spain from the late 18th century to the aftermath of the Spanish Civil War. Ignacio de la Rasilla del Moral recounts the history of the two ‘renaissances’ of Francisco de Vitoria and the Spanish Classics of International Law and contextualizes the ideological glorification of the Salamanca School by Franco’s international lawyers. Historical excursuses on the intellectual evolution of international law in the US and the UK complement the neglected history of international law in Spain from the first empire in history on which the  sun never set to a diminished and fascistized national-Catholicist state.
Table of Contents after the jump.

Thursday, June 21, 2018

Fernandez on Winston, "Lawyers at Play"

Over at JOTWELL's Legal History Section, Angela Fernandez (University of Toronto Law) has posted an admiring review of Lawyers at Play: Literature, Law, and Politics at the Early Modern Inns of Court, 1558-1581 (Oxford University Press, 2016), by Jessica Winston (Idaho State University). Here's a taste:
Winston’s book argues that the interconnections among literature, law, and politics at the Inns of Court are best explained by the increase in law-related positions in the growing administrative state in early modern England and the connection contemporaries made between literary skills and fitness for these jobs. Lawyers at Play elegantly traces the way that a group of individual men at the Inns in the 1550s and 1560s used the skills they learned at grammar school in poetry-writing and in translating plays and other works to recommend themselves for those new positions. Rather than focusing on the literary stars of the Inns from the 1590s and 1600s such as William Shakespeare, Winston shifts the focus to an earlier time period. These relatively unknown individuals, unknown at least to those who are not literary scholars of Renaissance England, set the stage, as it were.
Read on here.

A week in the world of Rare Law Books

Every second summer, the Rare Book School offers a weeklong intensive course that legal
From the Special Collections of Yale's Lillian Goldman Law Library
historians should know more about. Designed for librarians, scholars, and collectors, the “Law Books: History and Connoisseurship” course took place at Yale Law School last week (June 11-15, 2018). It was taught by Mike Widener, Rare Book Librarian at the Lillian Goldman Law Library, Yale Law School, and Ryan Greenwood, Curator of Rare Books and Special Collections at the Riesenfeld Rare Books Research Center, University of Minnesota Law Library. This LHB blogger (Mitra Sharafi) took the course. I’m happy to report on its many wonders.

I was the only legal historian in the group of twelve participants. Everyone else was a librarian, whether based at a law library, special collections, or both. When I first heard about the course, I had doubts about how useful it might be for me, given my focus on research and teaching more than on managing collections. Happily, I was wrong to worry. It was fascinating and extremely useful to gain insights into the ways university special collections operate. Among other things, I gained a better sense of which law libraries in the US are actively collecting rare books in various research areas.

More after the jump.

Wednesday, June 20, 2018

Call for Student Papers on US Supreme Court History

[We have the following Call for Student Papers.]

The Supreme Court Historical Society invites submissions for the Hughes-Gossett Award for the best student paper on some aspect of the Supreme Court’s history. Authors must have been enrolled as students at the time the paper was written. Past winners have been law school students or doctoral students in the departments of history, government, and political science. Papers may be of any length and may be submitted on an ongoing basis to Clare Cushman, Managing Editor, at ccushman@supremecourthistroy.org

The winner will be awarded a $500 cash prize and the paper will be published in the Journal of Supreme Court History. The recipient will be awarded the prize at a ceremony in the Supreme Court Courtroom on the first Monday in June.

Past winners of the Hughes-Gossett Student Prize after the jump.

Tuesday, June 19, 2018

CFP: Law, Governance and Development

[We have the following call for papers for a special issue of the Canadian Journal of Development Studies, “Law, Governance and Development: Critical and Heterodox Approaches,” co-edited by Mark Toufayan and Siobhán Airey.]

A noticeable trend of late is a growing engagement between insights across the field of “law and development” and a body of work that probes the relationship between law and governance at levels and scales that transcend that of the nation state, through instruments of rule that include and challenge inherited understandings about the nature and content of “law” and “legality”. At the same time, critical attention is being paid to the politics of ideas about development and the ways that particular kinds of development are promoted that underpin and direct this engagement.

These trends offer revealing insights into two facets of emerging research on law and governance, and how they relate to development. First, they highlight the significance – to questions of governance –of legal, economic and political ideas on the nature of development and its direction to particular ends, and how these underpin models of development. Within these, the role of/for law, regulation and other instruments of governance comes to the fore. Second, they highlight the under-recognized and under-theorized role of development as a project of governance in itself – how development rationalizes, frames and is key to how rights, subjectivities and relations between entities such as states, peoples, markets and the natural environment are conceptualized, distributed and institutionalized within and across existing governance frameworks via the rubric of “development.”

This bilingual Special Issue of the Canadian Journal of Development Studies seeks to bring these perspectives together to explore the underlying paradoxes, synergies and gaps in the governance of development initiatives pursued by a variety of actors. Through a mix of empirical, conceptual and normative work, it aims to reveal connections between institutional arrangements and instruments of governance on the one hand, and the politics of the projects pursued through the rubric of development, on the other. The approach taken thus helps foster deeper insight on the political ramifications of the role ascribed to law and legality in the governance of development.

Seo on Democratic Policing before the Due Process Revolution

Sarah Seo, University of Iowa College of Law, has posted Democratic Policing Before the Due Process Revolution, which is forthcoming in the Yale Law Journal.
In 1952, Jerome Hall gave a series of lectures on “Police and Law in a Democratic Society.” Applying the methodologies of intellectual and cultural histories, this Essay traces how Hall’s concept of democratic policing shifted from self-rule, to the rule of law, and finally to due process as he struggled to account for twentieth-century police forces that were not, in important ways, governed by the people or constrained entirely by law. That is, Hall modified his ideas of democracy to accommodate the police, rather than the other way around, with the police having to change in accordance with democratic principles. By placing the lectures within the context of the Cold War, the Essay argues that due process was not just a legal norm, but also a cultural value that rationalized discretionary policing at a time when it smacked of totalitarianism and, at the same time, served to distinguish two competing systems of government that both relied on discretionary authority. The Essay concludes by exploring how Hall’s explication of due process, which was representative of midcentury understandings, necessarily revises prevailing interpretations of due process as a restraint on police discretion, thus bringing new light to the Warren Court’s due process revolution.

Jones on Crime, Courts and Community in Mid-Victorian Wales

New from the Gwasg Prifysgol Cymru University of Wales Press: Crime, Courts and Community in Mid-Victorian Wales: Montgomeryshire, People and Places (May 2018), by Rachel Jones (Leicester University). A description from the Press:
This book explores the relationship between the justice system and local society at a time when the Industrial Revolution was changing the characteristics of mid Wales. Crime, Courts and Community in Mid-Victorian Wales investigates the Welsh nineteenth-century experiences of both the high-born and the low within the context of law enforcement, and considers major issues affecting Welsh and wider criminal historiography: the nature of class in the Welsh countryside and small towns, the role of women, the ways in which the justice system functioned for communities at that time, the questions of how people related to the criminal courts system, and how integrated and accepting of it they were. We read the accounts of defendants, witnesses and law- enforcers through transcription of courtroom testimonies and other records, and the experiences of all sections of the public are studied. Life stories – of both offenders and prosecutors of crime – are followed, providing a unique picture of this Welsh county community, its offences and legal practices.
More information is available here.

Monday, June 18, 2018

Ho on Adjudication in Chinese Legal Thought

Norman Ho, Peking University School of Transnational Law, has posted Chinese Legal Thought in the Han-Tang Transition: Liu Song's (D. 300) Theory of Adjudication, which is forthcoming in the UCLA Pacific Basin 35 (2018): 155-177:
This article explores and analyzes the fourth century Chinese legal official and legal scholar Liu Song’s (d. 300) theory of adjudication through a full translation into English (the first translation of its kind) of his famous “Memorial on Adjudication,” which urged judicial and legal reforms during the reign of Emperor Hui (r. 290–306) of the Western Jin dynasty (265–316). This article argues that Liu believed that written law should reign supreme over other factors (e.g., societal needs, public opinion) in adjudicating cases. He was also one of the first major Chinese legal thinkers to explicitly set forth what we would today call the “legality principle.” But while Liu’s theory of adjudication was centered on written law, it was also motivated by a desire to control the power and discretion of judicial officials and preserve the authority of the emperor. Liu’s theory of adjudication is significant in the history of Chinese legal thought as it runs counter to the so-called “qing-li-fa” (QLF) theory of adjudication, which has strongly influenced contemporary theoretical accounts and descriptions of traditional Chinese law as a whole. This article also briefly considers Liu’s theory in a comparative legal theory perspective, arguing that Liu’s theory is different from key Western theories on adjudication— namely, Hart’s and Dworkin’s theories of adjudication with respect to hard cases. Finally, this article also briefly discusses the relevance of Liu Song’s legal thought to 21st century Chinese law, given the current Chinese leadership’s penchant for using traditional Chinese political and legal philosophy as sources and justifications for government and administration. This article suggests that Liu Song is a figure whose legal thought could be equally palatable to rule of law reformers and more conservative party officials in China today.

Bhattacharyya on empire, ecology, and law in the Bengal Delta

Debjani Bhattacharyya, Drexel University, has published Empire and Ecology in the Bengal Delta: The Making of Calcutta with Cambridge University Press. From the publisher:
Empire and Ecology in the Bengal DeltaWhat happens when a distant colonial power tries to tame an unfamiliar terrain in the world's largest tidal delta? This history of dramatic ecological changes in the Bengal Delta from 1760 to 1920 involves land, water and humans, tracing the stories and struggles that link them together. Pushing beyond narratives of environmental decline, Bhattacharyya argues that 'property-thinking', a governing tool critical in making land and water discrete categories of bureaucratic and legal management, was at the heart of colonial urbanization and the technologies behind the draining of Calcutta. The story of ecological change is narrated alongside emergent practices of land speculation and transformation in colonial law. Bhattacharyya demonstrates how this history continues to shape our built environments with devastating consequences, as shown in the Bay of Bengal's receding coastline.
Praise for the book:

"Debjani Bhattacharyya resurrects Calcutta's forgotten watery origins to recuperate an entirely riveting account of the city and its real estate market. The book shows how the fictitious capital of property value relies on an enduring amnesia about the intractable and transient texture of ecological landscapes. Deeply researched and brilliantly conceived, it offers a path-breaking account of the urban ecological crisis and its uncertain future." -Bhavani Raman

"In this fascinating study of the emergence of the metropolis of Calcutta out of the swampy landscape of the Bengal delta, Bhattacharyya shows how the production of a modern urban property regime entailed a forgotten transformation of the very earth upon which it was constructed." -Andrew Sartori

Further information is available here.

Stahl to UC Berkeley

We're delighted to report that recent guest blogger Ronit Stahl will join the faculty this fall at the University of California, Berkeley. She will be an Assistant Professor of History, as well as a member of the Religious Diversity Cluster of the Haas Institute for a Fair and Inclusive Society.

As readers of this blog know, Stahl's work focuses on the intersection of politics, law, and religion. She is the author of Enlisting Faith: How the Military Chaplaincy Shaped Religion and State in Modern America (Harvard University Press, 2017), which explores how the U.S. military "struggled with, encouraged, and regulated religious pluralism over the twentieth century."

Congratulations to Ronit Stahl and to Berkeley!

Saturday, June 16, 2018

Weekend Roundup

  • Anders Winroth has been named the Birgit Baldwin Professor of History at Yale UniversityMore.
  • The latest congressional briefing organized by the National History Center is on the history of U.S. trade policy.  It will take place Friday, June 29, 2018 from 10:00 am-11:00 am in Cannon House Office Building, Room 121.  "The president's tariffs on steel and aluminum imports and threats to impose other protectionist measures have sparked renewed controversy over US trade policy. But debates over free trade versus protectionism have a long history in the US. How can the history of US trade policy help us to understand the current administration's trade agenda?" The speakers will be Susan Aaronson, George Washington University, and Alfred Eckes, Jr., Ohio University.  The moderator: Marc Levinson of the Congressional Research Service.  RSVP here.
  • “Virginia Humanities’ award-winning public radio show With Good Reason has partnered with James Madison’s Montpelier to produce a five-part podcast series that will explore connections between constitutional history and contemporary issues, with an emphasis on the First Amendment.”  More.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 15, 2018

Interpretatio Prudentium

[We have the following announcement from the IP editorial committee and Eduardo Vera-Cruz Pinto, Director da IP and Professor Catedrático da Faculdade de Direito da Universidade de Lisboa]

The Editorial Committee of Interpretatio Prudentium: Roman Law and Roman Legal Tradition in Review (IP), biannual scientific publication, submitted to blind peer-review, edited by Teoria e História do Direito - Centro de Investigação da Universidade de Lisboa, within the line of research Tradição romanística em acçãoAs experiências de língua portuguesa, has the pleasure of offering to the library of your department of the first two issues of IP. For that purpose, we ask you if you could as kind as to indicate an address which we can send the copies to.  IP's subscription can be made through [here]. 

On this occasion, we would also wish to communicate that until 15 September 2018 we are admitting papers (monographs or reviews to recent publications), to be published in IP's second number of 2018.

Thai on China's war on smuggling

Philip Thai, Northeastern University, has published China's War on Smuggling: Law, Economic Life, and the Making of the Modern State, 1842-1965 with Columbia University Press. From the publisher:
China's War on SmugglingSmuggling along the Chinese coast has been a thorn in the side of many regimes. From opium and weapons concealed aboard foreign steamships in the Qing dynasty to nylon stockings and wristwatches trafficked in the People’s Republic, contests between state and smuggler have exerted a surprising but crucial influence on the political economy of modern China. Seeking to consolidate domestic authority and confront foreign challenges, states introduced tighter regulations, higher taxes, and harsher enforcement. These interventions sparked widespread defiance, triggering further coercive measures. Smuggling simultaneously threatened the state’s power while inviting repression that strengthened its authority.
Philip Thai chronicles the vicissitudes of smuggling in modern China—its practice, suppression, and significance—to demonstrate the intimate link between illicit coastal trade and the amplification of state power. China’s War on Smuggling shows that the fight against smuggling was not a simple law enforcement problem but rather an impetus to centralize authority and expand economic controls. The smuggling epidemic gave Chinese states pretext to define legal and illegal behavior, and the resulting constraints on consumption and movement remade everyday life for individuals, merchants, and communities. Drawing from varied sources such as legal cases, customs records, and popular press reports and including diverse perspectives from political leaders, frontline enforcers, organized traffickers, and petty runners, Thai uncovers how different regimes policed maritime trade and the unintended consequences their campaigns unleashed. China’s War on Smuggling traces how defiance and repression redefined state power, offering new insights into modern Chinese social, legal, and economic history.
Praise for the book:

"Philip Thai skillfully explores how smuggling remade the Chinese state by enabling it to establish better protection of its borders and its revenues and by standardizing regulations; he also examines the ways that political and economic disruptions constantly challenged this process. Thai weaves together a creative combination of social, political, economic, and legal history, ranging from a sophisticated technical discussion of tariff autonomy to a clever explication of the visual representation of smuggling in the public imagination of 1930s China. The combination of a broad theme—illicit economic activities interacting with state power—with many smaller case studies of smuggling incidents brings the story alive." -Elisabeth Köll

"Breaking chronological and geographic conventions, this important book places Nationalist-period state-building and the struggle for sovereignty in a framework of the long-term growth of infrastructural state power in China. By linking the rise of policing, legal regulation of production and consumption, and government intrusion in the economy with the operation of markets and economic life, Philip Thai accomplishes the remarkable feat of a fresh perspective on China from the bottom to top." -Brett Sheehan

Further information is available here.

Goldberg and Cardozo and the Death of the Common Law

John C. P. Goldberg, Harvard Law School, has posted Benjamin Cardozo and the Death of the Common Law, which appears in the Touro Law Review 34 (2018): 147-158:
Although a member of the Supreme Court at the time, Benjamin Cardozo did not participate in Erie Railroad Co. v. Tompkins. He was dying. It is a mere fortuity that Cardozo’s death coincided with the death of the general common law. Yet it has since proved to be something more—or so this symposium essay argues. It is in part because our highest court took itself out of the business of making law in contract, property, tort, and related areas that Cardozo’s beloved common law has fallen on hard times, and that even state-court judges have increasingly lost their feel for how to reason about it. Today, there is no member of a state judiciary who rivals Cardozo in stature. Mainly this is a testament to his extraordinary gifts. But it also reflects the waning of the common law in the United States, and a concomitant loss of the sense of what it means to be a great common-law judge.

Thursday, June 14, 2018

Bernstein on Prevailing Wage Laws, Race, and History

David E Bernstein, George Mason University Antonin Scalia Law School, has posted Prevailing Wage Legislation and the Continuing Significance of Race, which appears in the Notre Dame Journal of Legislation 44 (2018): 154-169:
Since the early twentieth century, labor unions have lobbied federal and state governments to enact and enforce laws requiring government contractors to pay “prevailing wages” to employees on public works projects. These laws, currently active at the federal level and in approximately thirty states, typically in practice require that contractors pay according to the local union wage scale. The laws also require employers to adhere to union work rules. The combination of these rules makes it extremely difficult for nonunion contractors to compete for public works contracts.

Meanwhile, construction unions have been among the most persistently exclusionary institutions in American society. Not surprisingly, in many cases, the history of prevailing wage legislation has been intertwined with the history of racial discrimination. Economists and others argue that prevailing wage legislation continues to have discriminatory effects on minorities today. Union advocates, not surprisingly, deny that prevailing wage laws have discriminatory effects. More surprisingly, they deny that the granddaddy of modern prevailing wage legislation, the federal Davis-Bacon Act of 1931, had discriminatory intent.

Part I of this Article discusses the discriminatory history of the most significant of all prevailing wage laws, the Davis-Bacon Act. As discussed below, Davis-Bacon was passed with the explicit intent of excluding African American workers from federal construction projects, and its discriminatory effects continued for decades.

Part II of this Article discusses the controversy over whether prevailing wage legislation continues to have discriminatory effects. The section begins with a discussion of the empirical literature on the effects of prevailing wage discrimination on minority employment. The section next presents evidence that construction unions continue to discriminate against members of minority groups, albeit much more subtly than in the past. The section concludes by recounting allegations that prevailing wage legislation serves to exclude minority contractors from obtaining government contracts.

A Global Conference on Rudolf von Jhering (1818-1892)

[We have the following announcement.]

Jhering Global: International Symposium on the occasion of Rudolf von Jhering’s 200th birthday

On 6 and 7 September 2018, the international symposium Jhering Global will be held in Hanover (Germany), marking the 200th anniversary of Rudolf von Jhering’s birth in 1818. It is organized by Professors Inge Kroppenberg (Georg August University Göttingen) and Stephan Meder (Leibniz University Hanover).

Jhering Global’s main intention is the development of a broad research perspective, both international and interdisciplinary, on the scientific work of Rudolf von Jhering (1818-1892). There is hardly a legal scholar whose work would be more suitable for this kind of research proposal than Jhering, whose impact on the fields of jurisprudence and social sciences was so lasting and fruitful and whose works are still being translated into many languages, even today.

Jhering Global’s purpose is twofold. Firstly, it will aim to explore the trajectories of Jhering's scientific ideas over the course of the past 150 years across Europe, the Americas and Asia. In order to achieve this, it calls on eminent legal scholars from several continents to present their perspectives on Jhering's work, and to bring different modes of reception to the table for discussion with scholars from Germany, Jhering’s native country. Thus, the conference will make a major contribution to exploring the history of the global transfer of juristic ideas from the 19th to the 21st centuries.

Secondly, Jhering Global will take an interdisciplinary approach. Since Jhering's work did not only cross geographical borders but also transcended the boundaries between scientific disciplines, the symposium will examine its impact on the establishment and development of social and political sciences since the late 19th century. Here, Jhering’s numerous allusions and references to the natural sciences, especially chemistry, will play a crucial role.
Conference program after the jump

Doctoral Program in Global History and Governance

We have word of the establishment of a Ph.D. program in Global History and Governance at the Scuola Normale Superiore of Pisa, Italy:
The PhD in Global History and Governance is an advanced research degree at the end of which each student must defend a dissertation based on independent and original academic research.  The course offers a multi-disciplinary training program based on history and law and open to contributions from other disciplines, such as economics, political science and political philosophy. The program focuses on the comparison, connections and processes of globalization that have characterized different areas of the planet since the first epoch of global imperialism and does so by focusing on the relational dimension of historical processes, legal regimes and the organization of power, on the interdependencies between economic, political, juridical, cultural and social factors and on the circulation, exchange and interconnection of ideas, people, institutions, legal cultures, political models, concepts, rights and goods on a global scale.
Members of the PhD board can offer training and preparation for research at the level of the best international centers in the following areas:

    History and historiography
    European empires of the modern and contemporary age
    States, wars and violence in the nineteenth and twentieth century
    History of slavery and forced labor
    The legal heritage of Europe and its integration
    Religions and the sacred in the modern and contemporary world
    Ideas, conceptions and practices of citizenship
    States, nations, languages, peoples, classes
    The globalization of law

The PhD course in Global History and Governance is designed for highly prepared and motivated students who also manage different languages and willing to study in multi and interdisciplinary environment.  Classes are taught either in Italian or English.  Candidates for the PhD are normally expected to hold a master’s degree (or an equivalent qualification) in a subject relevant to the intended topic of study.  The Coordinator is Daniela Luigia Caglioti and the PhD Board for 2018-2019 is here.  The deadline for applying is August 24, 2018.

Wednesday, June 13, 2018

Kent on Piracy, the Law of Nations and Due Process

Andrew Kent, Fordham University School of Law, has posted Piracy, the Law of Nations, and the Limits of Due Process, which is forthcoming in the Michigan Journal of International Law 39 (2018)
This Article engages the long-running debate about the geographical and contextual scope of U.S. constitutional protections. There is agreement that both citizens and noncitizens enjoy largely equal rights when present within the United States, and that when they venture abroad, U.S. citizens carry most of their constitutional rights with them. But beyond that, there are many disputes. Do noncitizens have any constitutional protection from the U.S. government when it acts against them outside U.S. borders? Does it matter whether the location is the ungoverned high seas or the sovereign territory of another nation? Does the context matter? Is law enforcement different from military force? Does it matter whether the subject is an internationally-recognized sovereign versus a non-state actor?

Scholars have tried to bring the original understanding of the Constitution to bear on these questions, with some hoping to show that individual rights were understood to be global and universal. A vision of extraterritorial constitutional rights for all has most recently been offered by Professor Nathan Chapman, in an article entitled Due Process Abroad, addressing the legal framework for English and American governmental efforts to suppress piracy. Chapman argues that, outside the context of state-to-state warfare, due process required that anyone, anywhere, suspected of violating criminal or civil anti-piracy statutes could only be proceeded against by judicial process, rather than military force.

I conclude that Chapman's historical arguments for global due process are unsupported and unsound. By first examining piracy suppression in the law of nations, English domestic law, and English government practice in the centuries leading up to American independence, and then American law and government practice during the Founding and antebellum periods, I conclude that pirates on the high seas were viewed as outside the protection of domestic and international law and thus could lawfully be subject to summary violence. Although both England and the early United States did frequently use the criminal justice system to address piracy, due process did not require that approach. The extensive use of law enforcement methods (with its attendant procedural protections) was driven by a mix of factors, sounding in international law, government policy, and a concern for fair treatment. These considerations, rather than a misplaced theory about the original meaning of the Constitution, should be at the center of our debates about counterterrorism and other extraterritorial security efforts today, as they were in our predecessors' approach to piracy.

Bazyler on the Holocaust, genocide, and law

Michael Bazyler, Fowler School of Law, Chapman University published Holocaust, Genocide, and the Law: A Quest for Justice in a Post-Holocaust World with Oxford University Press in 2016. From the publisher:
Cover for 

Holocaust, Genocide, and the Law






A great deal of contemporary law has a direct connection to the Holocaust. That connection, however, is seldom acknowledged in legal texts and has never been the subject of a full-length scholarly work. This book examines the background of the Holocaust and genocide through the prism of the law; the criminal and civil prosecution of the Nazis and their collaborators for Holocaust-era crimes; and contemporary attempts to criminally prosecute perpetrators for the crime of genocide. It provides the history of the Holocaust as a legal event, and sets out how genocide has become known as the "crime of crimes" under both international law and in popular discourse. It goes on to discuss specific post-Holocaust legal topics, and examines the Holocaust as a catalyst for post-Holocaust international justice. Together, this collection of subjects establishes a new legal discipline, which the author Michael Bazyler labels "Post-Holocaust Law."
Praise for the book, which won the 2016 National Jewish Book Award:

"Michael Bazyler has written a comprehensive and compelling study of the legal historiography of the Holocaust, the paradigm of radical evil, and of genocide, the 'crime of crimes.' This book makes a singular contribution to the pursuit of international justice, and to the prevention and combatting of mass atrocity and genocide in our time. An indispensable resource." -Irwin Cotler

"A unique and important book. Michael Bazyler presents a broad, up-to-date overview of Holocaust justice ranging from landmark criminal trials to restitution litigation to the prosecution of Holocaust deniers. He also discusses the ramifications of the Holocaust's judicial reckoning on how the world has addressed, successfully or not, contemporary state-sponsored atrocities across the globe."-Norman Goda

"Prof. Bazyler's book is different than other books on the Holocaust. He first depicts the Holocaust as 'a legal event,' arguing that it was the law, and not its absence, that became an instrument for destruction. He then analyzes current efforts to build a legal world based on what he labels 'Post-Holocaust Law.' This book is a must-read." -Dina Porat

"Bazyler deploys considerable legal expertise to underpin his first, and for readers of this Journal arguably most important thesis: that the Nazi persecution of the Jews, leading ultimately to the attempted genocide of the entire Jewish people, was carried out within a framework of law, even though this was in reality a corrupted and perverted form of pseudo-legality in which only the external forms of true legality were preserved." - Anthony Grenville

 Further information is available here.

AJLH 58:2

Here’s the TOC for the American Journal of Legal History 58:2 (June 2018), now available online.

Defending Person and Reputation: Efforts to End Extralegal Violence in Western Virginia, 1890-1900   
Josh Howard

Developing Privacy Rights in Nineteenth-Century Germany: A Choice between Dignity and Liberty?   
Thomas J Snyder

Law versus Equity—as Reflected in Lord Eldon’s Manuscripts   
Michelle Johnson; James Oldham

The Grand Jury of New Zealand in The Nineteenth Century   
Greg Taylor

Book Reviews


Pippa Holloway, Living in Infamy: Felon Disenfranchisement and the History of American Citizenship   
James M Binnall

M.C. Mirow, Latin American Constitutions: The Constitution of Cádiz and its Legacy in Spanish America   
Jonathan M Miller

Joachim Rückert, Abschiede vom Unrecht. Zur Rechtsgeschichte nach 1945 (Beiträge zur Rechtsgeschichte des 20. Jahrhunderts)   
Jean-Louis Halpérin

Ferdinando Mazzarella, Un Diritto per l’Europa industriale. Cultura giuridica ed economica dalla rivoluzione francese al secondo dopoguerra   
Sylvain Bloquet

Tuesday, June 12, 2018

A Symposium on Gordon's "Taming the Past"

Stanford Law Review 70:2 is out online, including a symposium from that conference celebrating the publication of Robert W. Gordon's Taming the Past (Cambridge University Press, 2017), with contributions from Ariela J. Gross , Susanna L. Blumenthal, Roy Kreitner, Sara Mayeux, Kunal M. Parker, Claire Priest, David M. Rabban, Reva B. Siegel, and John Fabian Witt.

Seligman's "Third Degree"

Scott Seligman has published The Third Degree: The Triple Murder that Shook Washington and Changed American Criminal Justice, with Potomac Books, an imprint of the University of Nebraska Press.  We were pleased to receive the following commendation of the book from George Yin, UVA Law, who is related to one of the slain diplomats:
The book provides the back story of Ziang Sung Wan v. U.S., 266 U.S. 1 (1924), one of the important precedents for the 1966 Miranda decision. The case involved a young Chinese student who was accused of murdering one of three Chinese diplomats in Washington, DC in 1919.  The police held the accused in custody for about 10 days, first in New York, then in a DC hotel, and finally at the murder scene, and kept interrogating Wan until he finally confessed to one of the murders. Throughout the period, Wan was ill with the widespread Spanish flu, had no attorney or other help, and was not advised of any rights. Justice Brandeis’s opinion for the unanimous Court overturned Wan’s conviction based on the involuntariness of the confession, and although Wan was tried twice more, he was eventually freed. The book tells the fascinating story, involving cameo appearances of people like John W. Davis, very well.
The press’s description after the jump:
If you’ve ever seen an episode of Law and Order, you can probably recite your Miranda rights by heart. But you likely don’t know that these rights had their roots in the case of a young Chinese man accused of murdering three diplomats in Washington DC in 1919. A frantic search for clues and dogged interrogations by gumshoes erupted in sensational news and editorial coverage and intensified international pressure on the police to crack the case.

Part murder mystery, part courtroom drama, and part landmark legal case, The Third Degree is the true story of a young man’s abuse by the Washington police and an arduous, seven-year journey through the legal system that drew in Warren G. Harding, William Howard Taft, Oliver Wendell Holmes, John W. Davis, and J. Edgar Hoover. The ordeal culminated in a sweeping Supreme Court ruling penned by Justice Louis Brandeis that set the stage for the Miranda warning many years later. Scott D. Seligman argues that the importance of the case hinges not on the defendant’s guilt or innocence but on the imperative that a system that presumes one is innocent until proven guilty provides protections against coerced confessions.

Today, when the treatment of suspects between arrest and trial remains controversial, when bias against immigrants and minorities in law enforcement continues to deny them their rights, and when protecting individuals from compulsory self-incrimination is still an uphill battle, this century-old legal spellbinder is a cautionary tale that reminds us how we got where we are today and makes us wonder how far we have yet to go.

Monday, June 11, 2018

Libson's "Law and Self-Knowledge in the Talmud"

Ayelet Hoffmann Libson, Harvard Law School, has published Law and Self-Knowledge in the Talmud (Cambridge University Press):.  Professor Libson is the Gruss Visiting Professor of Jewish Law at Harvard Law School and an assistant professor of law at the Interdisciplinary Center, Herzliya.  From the press:
This book examines the emergence of self-knowledge as a determining legal consideration among the rabbis of Late Antiquity, from the third to the seventh centuries CE. Based on close readings of rabbinic texts from Palestine and Babylonia, Ayelet Hoffmann Libson highlights a unique and surprising developing in Talmudic jurisprudence, whereby legal decision-making incorporated personal and subjective information. She examines the central legal role accorded to individuals' knowledge of their bodies and mental states in areas of law as diverse as purity laws, family law and the laws of Sabbath. By focusing on subjectivity and self-reflection, the Babylonian rabbis transformed earlier legal practices in a way that cohered with the cultural concerns of other religious groups in Late Antiquity. They developed sophisticated ideas about the inner self and incorporated these notions into their distinctive discourse of law.

Viola on Stalin-era trials in Soviet Ukraine

Lynne Viola, University of Toronto published Stalinist Perpetrators on Trial: Scenes from the Great Terror in Soviet Ukraine with Oxford University Press in 2017. From the publisher:
Cover for 

Stalinist Perpetrators on Trial






Between the summer of 1937 and November 1938, the Stalinist regime arrested over 1.5 million people for "counterrevolutionary" and "anti-Soviet" activity and either summarily executed or exiled them to the Gulag. While we now know a great deal about the experience of victims of the Great Terror, we know almost nothing about the lower- and middle-level Narodnyi Komissariat Vnutrennikh Del (NKVD), or secret police, cadres who carried out Stalin's murderous policies. Unlike the postwar, public trials of Nazi war criminals, NKVD operatives were tried secretly. And what exactly happened in those courtrooms was unknown until now. 
In what has been dubbed "the purge of the purgers," almost one thousand NKVD officers were prosecuted by Soviet military courts. Scapegoated for violating Soviet law, they were charged with multiple counts of fabrication of evidence, falsification of interrogation protocols, use of torture to secure "confessions," and murder during pre-trial detention of "suspects" - and many were sentenced to execution themselves. The documentation generated by these trials, including verbatim interrogation records and written confessions signed by perpetrators; testimony by victims, witnesses, and experts; and transcripts of court sessions, provides a glimpse behind the curtains of the terror. It depicts how the terror was implemented, what happened, and who was responsible, demonstrating that orders from above worked in conjunction with a series of situational factors to shape the contours of state violence. 
Based on chilling and revelatory new archival documents from the Ukrainian secret police archives, Stalinist Perpetrators on Trial illuminates the darkest recesses of Soviet repression -- the interrogation room, the prison cell, and the place of execution -- and sheds new light on those who carried out the Great Terror.
Praise for the book:

"A research tour de force from one of the leading historians of Stalinism, shedding remarkable new light on what happened at the end of the Great Purges. A 'must read' for scholars and students of the Soviet period."-Sheila Fitzpatrick

"This book is exceptional among the voluminous scholarship on Stalin's terror. Lynne Viola has written a fascinating and valuable work. The voices of those hangmen who ultimately became victims of the terror, as well as those they arrested, provide a stark picture of the Great Terror. The author explores the banality of evil in the Stalinist context: from the daily routine of torture and murder emerges the familiar figure of the self-righteous criminal."-Oleg V. Khlevniuk

"Stalinist Perpetrators draws back the curtain on how the Stalinist Terror actually operated--not just how the state ordered it, but how it happened in provincial offices and prison cells. Her subject is the 'purge of the purgers,' the trial and often execution of the men responsible for the Terror. The nature of her source material--voluminous case files on these accused individuals--allows her to reconstruct the process and practices of the Stalinist Terror, including the beatings and torture, at the level of individuals, both in Kyiv and in more mundane provincial cities." -Peter Holquist

"The Stalinist purges of the late 1930s stand as one of the most horrific episodes of state terror in the twentieth century. Yet the perpetrators of those crimes have remained anonymous for many decades, protected mainly by the rules of historical access in Russia. Now, Lynne Viola, working in Ukrainian archives, provides the first remarkable study of the perpetrators. In this groundbreaking book, we see for the first time who these individuals were, their backgrounds, what brought them to their position of life and death decisions, what life was like for them and their families during such a time. Most important, Viola examines with keen and dispassionate acumen how Stalin's murderers justified the torture and killing of hundreds of thousands of their fellow citizens. This is a disturbing book, and one that needs to be read." -David Shearer

Further information is available here.

Bix on Tamanaha on Historical Jurisprudence

Brian Bix, University of Minnesota Law School, has posted A New Historical Jurisprudence? Which appears in the Washington University Law Review 95 (2018): 1035-1047:
As part of a conference on Brian Tamanaha’s book, A Realistic Theory of Law, this article evaluates Tamanaha's claims in favor of Historical Jurisprudence. I agree with Tamanaha that the great works of that school of thought deserve more attention than they are now receiving. Also, as Tamanaha points out, some of the insights of Historical Jurisprudence were adapted by (or emerged independently in) the works of American Legal Realists and Sociological Jurisprudence. Ultimately, though, the article argues that the role of history in understanding law and legal systems must be distinctly different from the role claimed for history by the writers of the Historical Jurisprudence school.
H/t: Legal Theory Blog

Sunday, June 10, 2018

Sunday Book Review Roundup


Anders Walker's The Burning House: Jim Crow and the Making of Modern America is reviewed in The Nation.  Also reviewed in The Nation is We the Corporations: How American Businesses Won Their Civil Rights by Adam Winkler.

In The New York Times is a review of Catherine Nixey's The Darkening Age: The Christian Destruction of the Classical World.  

Sarah E. Igo's "utterly original" The Known Citizen: A History of Privacy in Modern America is reviewed in The Washington Post.

At H-Net is a review of Jimmy Patino's Raza Sí, Migra No: Chicano Movement Struggles for Immigrant Rights in San DiegoAlso at H-Net is a review of Phillipe Sands'  East West Street: On the Origins of "Genocide" and "Crimes Against Humanity".  Also posted on the site is a review of Elizabeth Gillespie McRae's Mothers of Massive Resistance: White Women and the Politics of White Supremacy.

At NPR, Marc Dollinger speaks about his Black Power, Jewish Politics: Reinventing the Alliance in the 1960s.

In a review essay at The New Republic, Mychal Denzel Smith takes up Elaine Tyler May's Fortress America: How We Embraced Fear and Abandoned Democracy and Alex S. Vitale's The End of Policing.  

Denmark Vesey’s Garden: Slavery and Memory in the Cradle of the Confederacy by Ethan Kytle and Blain Roberts are also reviewed at The New Republic

Exploring the historical role these financial institutions have played as "political symbols for a wide variety of ideological interests," Mehrsa Baradaran discusses her The Color of Money: Black Banks and the Racial Wealth Gap at Public Books.  Also at Public Books is a review of Brittney Cooper's Beyond Respectability: The Intellectual Thought of Race WomenCooper's intellectual history of black women thinkers is described as a corrective to the focus "on black male intellectual production and the physical lives of women" and "demands that we dive deeper into the intellectual artifacts left by black women thinkers."

Saturday, June 9, 2018

Weekend Roundup

  • We were saddened to learn of the death of Ira Berlin (1941-2018), an extraordinary scholar and a mentor to so many, including many legal historians. Here are some of the notices from around the web: the Washington Post; the New York Times; the Nation (by Eric Foner); and the Harvard University Press Blog. Scroll through the remembrances on Twitter, too.
  • The Supreme Court has released its much-anticipated decision in the Masterpiece Cakeshop case. For one historian's take on it, see this Washington Post op-ed by Jim Downs (Connecticut College).
  • From the New York Times: Tera W. Hunter (Princeton University) on "the long history of child-snatching."
  • Cambridge University Press reports that, on behalf of the American Bar Foundation, it will now publish Law & Social Inquiry (edited by our recent guest blogger Christopher Schmidt).
  • The DC Bar has published a nice profile of William Eskridge (Yale Law School), for its "member spotlight" series.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 8, 2018

Legal History at LSA 2018

We’ve just received, courtesy of Joanna Grisinger, Northwestern University, and an organizer of the Law and Society Association's Legal History Collaborative Research Network (CRN)  a list of legal history panels at LSA's annual meeting now underway in Toronto.  It appears after the jump.

Siegel and Greenhouse on Roe v. Wade

Reva Siegel and Linda Greenhouse, Yale Law School, have posted The Unfinished Story of Roe v. Wade:
We tell the story of Roe v. Wade for a forthcoming volume in the Foundation Press Law Stories series. To those who support abortion rights, Roe demonstrates the Court’s crucial role in protecting individual rights in the face of determined political opposition. For its critics, Roe was the work of an “unelected” Court creating new constitutional rights; supposedly, by deciding matters properly left to democratic determination, the Court inflamed conflict over abortion and riled our politics.

We explain the origins of the abortion right and conflicts over it differently. The story we tell is not simply a litigation history of a landmark case, but as importantly a story about the democratic foundations of our constitutional law. We start our account of the abortion conflict before Supreme Court litigation begins. Conflict enters the picture well before the courts do, as people argue over the Constitution’s meaning in their everyday lives. We recount how citizens who lacked power in any conventional sense were able over time to change the way the nation and its courts understood longstanding guarantees of liberty, of equality, and of life.

Roe itself, filed in federal district court in Dallas in March 1970, was one of many cases in the late 1960s and early 1970s that invoked the Constitution to challenge the century-old regime of criminal abortion statutes; Roe just happened to be first in line on the Supreme Court's docket. These cases emerged from principled and heated dialogue among powerful social movements that initially did not even have courts in view. The story of Roe v. Wade is the story of conflict born in democratic politics that engendered the rights claims that the Court would ultimately recognize. The conflict continues to this day, even as advocates and their arguments have changed as few would have expected.

This framework offers a fresh context for reading Roe. Enlarging our perspective in this way allows us to recover claims for and against abortion rights to which the Court’s opinion in Roe responded, as well as claims that the Court ignored—claims for women’s equality and for protecting potential life that played an important role in reshaping the abortion right nearly twenty years later in Planned Parenthood of Southeastern Pennsylvania v. Casey.

Deadline for Cromwell Dissertation Prize Extended to June 29

[Recent Ph.Ds who wrote a dissertation related to legal history, what are you waiting for?  Submit now!  H/t: H-Law.]

The William Nelson Cromwell Foundation has generously funded a dissertation prize of $5,000. The winning dissertation may focus on any area of American legal history, including constitutional and comparative studies; topics dealing with the colonial and early national periods will receive some preference. Anyone who received a Ph.D. in 2017 will be eligible for this year’s prize. The Foundation awards the prize after a review of the recommendation of the Cromwell Prize Advisory Committee of the American Society for Legal History.

To be considered for this year’s prize, please send one hard-copy of the dissertation and the curriculum vitae of its author to John D. Gordan, III, Chair of the Cromwell Prize Advisory Committee, and each member of the Cromwell Dissertation Prize Advisory Subcommittee with a postmark no later than June 29, 2018.

John D. Gordan, III, Chair, Cromwell Prize Advisory Committee
1133 Park Avenue
New York, NY, 10128

H. Robert Baker
Department of History
Georgia State University
20th floor, 25 Park Place
Atlanta, GA 30302

Lisa Ford
Room 344, Morven Brown
School of Humanities & Languages
The University of New South Wales
Sydney, NSW 2052
Australia

 Laura Weinrib
University of Chicago Law School
1111 E. 60th St., Room 410
Chicago, IL 60637

Please contact the dissertation prize committee chair Lisa Ford (l.ford@unsw.edu.au) if you have any questions.

Ibhawoh on Africans & the Privy Council

We don't usually go this far back for new book announcements, but we missed this one when it came out in 2013. Bonny Ibhawoh, McMaster University, published Imperial Justice: Africans in Empire' Court with Oxford University Press. From the publisher:
Cover for 

Imperial Justice






 Imperial Justice explores the imperial control of judicial governance and the adjudication of colonial difference in British Africa. Focusing on the Judicial Committee of the Privy Council and the colonial regional Appeal Courts for West Africa and East Africa, it examines how judicial discourses of native difference and imperial universalism in local disputes influenced practices of power in colonial settings and shaped an evolving jurisprudence of Empire.  
Arguing that the Imperial Appeal Courts were key sites where colonial legal modernity was fashioned, the book examines the tensions that permeated the colonial legal system such as the difficulty of upholding basic standards of British justice while at the same time allowing for local customary divergence which was thought essential to achieving that justice. The modernizing mission of British justice could only truly be achieved through recognition of local exceptionality and difference. Natives who appealed to the Courts of Empire were entitled to the same standards of justice as their 'civilized' colonists, yet the boundaries of racial, ethnic, and cultural difference somehow had to be recognized and maintained in the adjudicatory process. Meeting these divergent goals required flexibility in colonial law-making as well as in the administration of justice. In the paradox of integration and differentiation, imperial power and local cultures were not always in conflict but were sometimes complementary and mutually reinforcing.  
The book draws attention not only to the role of Imperial Appeal Courts in the colonies but also to the reciprocal place of colonized peoples in shaping the processes and outcomes of imperial justice. A valuable addition to British colonial literature, this book places Africa in a central role, and examines the role of the African colonies in the shaping of British Imperial jurisprudence.
Praise for the book:

"In his engaging new book, Bonny Ibhawoh navigates his reader through the complicated operation of imperial legality by uncovering the worlds of the Judicial Committee of the Privy Council (JCPC) and the colonial appeal courts of West Africa (WACA) and East Africa (EACA) ... Throughout the book, Ibhawoh strikes a good balance between explaining the big picture and the details of many fascinating landmark cases ... This book successfully addresses pertinent questions about the nature of globalization by showing how both empires and marginal actors used judicial spaces to construct their own vision of power, citizenship, and Sovereignty." -Trina Leah Hogg

"Imperial Justice opens the door of a rich archive that provides an additional lens to examine histories of empires. Along with laboratories of legal modernity, appeal courts also showed the forced insertion of Africans within liberalism, individualism, and capitalist monetization of human emotions such as grief and pain as well as the establishment of local rigid social hierarchies. Imperial Justice: African Empire's Court is a necessary monograph on the relationship between jurisprudence and the British Empire." -Giusi Russo

Further information is available here.

Fiti Sinclair on international organizations and modern states

Guy Fiti Sinclair, Victoria University of Wellington Law School published To Reform the World: International Organizations and the Making of Modern States with Oxford University Press in 2017. From the publisher:
Cover for 

To Reform the World






This book explores how international organizations (IOs) have expanded their powers over time without formally amending their founding treaties. IOs intervene in military, financial, economic, political, social, and cultural affairs, and increasingly take on roles not explicitly assigned to them by law. Sinclair contends that this 'mission creep' has allowed IOs to intervene internationally in a way that has allowed them to recast institutions within and interactions among states, societies, and peoples on a broadly Western, liberal model. Adopting a historical and interdisciplinary, socio-legal approach, Sinclair supports this claim through detailed investigations of historical episodes involving three very different organizations: the International Labour Organization in the interwar period; the United Nations in the two decades following the Second World War; and the World Bank from the 1950s through to the 1990s. 
The book draws on a wide range of original institutional and archival materials, bringing to light little-known aspects of each organization's activities, identifying continuities in the ideas and practices of international governance across the twentieth century, and speaking to a range of pressing theoretical questions in present-day international law and international relations.
Praise for the book:

 "Studies on globalization rarely notice the profound role played by international institutions on the ideology and practices of the modern administrative state. In this eye-opening work Sinclair examines the way the International Labour Organization, the UN, and the World Bank have expanded their legal competences, often unnoticed by their member states, so as to impose on the latter definite (Western) models of domestic governance.Thanks to Sinclairs meticulous work, we can now witness how the informal dynamics of international law and practice have, since early 20th century, made global institutions relatively autonomous from their member states, projecting on the latter definite, sometimes deeply contested ideas about good governance. This is a superb study of the globalization of ideology." - Martti Koskenniemi

"International organizations play an unprecedented role in our everyday lives. Guy Sinclair's superb book ranges over and compares three major organizations and their activities over many decades. It illuminates in detail the complex legal, pragmatic and technocratic arguments developed and deployed by organizations to justify their ever expanding practices. It explains in this way how institutions participate in the central themes of global governancewar, peace, developmentand thus shape the modern world. This is an outstanding study of the inner lives of international organizations and the personalities that ran them. It offers enduring insights into issues that will only become more important over time." - Antony Anghie

"With a strong historical rationale, Sinclairs approach avoids both a morality driven vision for a better but far distant future and a power-driven neorealistic narrative of a dark present... This elegantly written and inspiring book investigates the expansion of powers of international organizations as a practice intertwined with the making of modern Western states through the lens of international law." - Journal of the History of International Law

Further information is available here.

Kearley's "Lost in Translations"

Timothy G. Kearley, Professor Emeritus of Law at the University of Wyoming College of Law, has published Lost in Translations: Roman Law Scholarship and Translation in Early Twentieth-Century America, in the Legal History Series (edited by Duke Law’s H. Jefferson Powell) of the Carolina Academic Press:
Earlier generations of Americans were connected to the classical past—to ancient Greece and Rome—to an extent we find hard to understand today. The Founders’ training in Latin and ancient history led them to model their new nation after the Roman Republic, and most educated Americans had broadly similar skills and knowledge until the early twentieth century.  Lost in Translations describes how this connection helped inspire men who were educated in the late 1800s to dedicate much of their lives to translating fundamental documents of Western Civilization—such as Justinian’s Code—and to write extensively about Roman law. This book addresses the history of American education (including legal education), as well as the function of Roman law among the elite bar. The book also uses correspondence and other previously unpublished information to humanize such major figures as Roscoe Pound.

Lost in Translations
focuses on five Roman law scholars (all but one of whom were trained as lawyers) who worked early in the twentieth century: Samuel Parsons Scott (1846–1929), Charles Sumner Lobingier (1866–1956), Charles Phineas Sherman (1874–1962), Fred H. Blume (1875–1971), and Clyde Pharr (1883–1972). Among them, they produced the first English translations of the Codex Theodosianus and Justinian’s entire Corpus Juris Civilis, as well as other ancient Roman laws. This book describes their heroic and often solitary labor, some of which they did not see come to fruition in their own lifetimes. It should be of interest to historians, lawyers, educators, and classicists.

Thursday, June 7, 2018

Fisher on Judicial Finality

Louis Fisher’s The Claim of Judicial Finality: Theory Undercut by Experience, is available on the website of the University of New Hampshire Law Review, in which it appears:
Justices of the Supreme Court, legal scholars, and reporters who cover judicial proceedings frequently claim that when the Court issues a constitutional decision it remains final unless the Court changes its mind or the Constitution is amended to reverse the Court. However, the record of more than two centuries offers an entirely different picture. Decisions by the Supreme Court lack finality on constitutional issues partly because the Court makes mistakes and has done so throughout its history. Human institutions, including the judiciary, are prone to miscalculation, including law, history, and political developments. After the Court issues a constitutional decision it does not deprive the elected branches from adopting policies directly contrary to what the Court has announced. This article offers many examples to demonstrate that constitutional interpretation is not centered entirely in the Supreme Court. The process involves all three branches, the states, scholars, and the general public. At times the Court recognizes the deficiency of an earlier decision and overrules it. However, the sole-organ error in Curtiss-Wright (1936) was not corrected by the Court until its decision in Zivotofsky v. Kerry on June 8, 2015. On other occasions, the regular political process offers constitutional interpretations that override the Court.

Bernstein Revisits Buchanan v. Warley

David E Bernstein, George Mason University Antonin Scalia Law School, has posted Reflections on the 100th Anniversary of Buchanan v. Warley: Recent Revisionist History and Unanswered Questions, which is forthcoming in the Cumberland Law Review 48 (2018): 101-124:
In 1917, in Buchanan v. Warley, the Supreme Court invalidated a Louisville residential segregation law, one of a wave of such laws spreading through the United States. Even though Buchanan v. Warley was a dramatic victory for racial equality at a time in American history when anti-black racism was at a post-Civil War peak, with an avowed segregationist occupying the White House, the opinion was largely ignored or misinterpreted until recently. The problem has been that Buchanan does not fit the dominant narrative about the so-called Lochner era Supreme Court. Part I of this article reviews scholarship that has challenged the traditional dismissive view of Buchanan v. Warley over the last twenty years.

Part II of this article suggests various research topics raised by Buchanan v. Warley that should receive more scholarly attention, including: (1) How did African Americans manage to migrate to formerly all-white neighborhoods despite restrictive covenants and other barriers?; (2) To what extent did Buchanan v. Warley reflect a viable alternative civil rights vision to the progressive vision that came to dominate legal discourse?; (3) Under what circumstances judicial intervention on behalf of minority groups is likely to occur, and when it is likely to be successful; and (4) To what extent can early twentieth-century progressivism, as opposed to societal racism more generally, can be blamed for the rise of residential segregation ordinances that led to Buchanan?