Sunday Book Review Roundup

In The Times Literary Supplement is a review of What is the History of the Book? by James Raven.

Sara Egge's Woman Suffrage and Citizenship in the Midwest, 1870-1920 is reviewed at H-Net.  Also reviewed at H-Net is Dirty Hands and Vicious Deeds: The US Government's Complicity in Crimes against Humanity and Genocide, edited by Samuel Totten.

At NPR is a review of Between Hope and Fear: A History of Vaccines and Human Immunity by Michael Kinch.  Also at NPR is a interview with Merve Emre (you can also read Emre's interview with the Boston Review).

In The New Republic, Michael Kazin reviews Jill Lepore's These Truths: A History of the United States.

Objects of War: The Material Culture of Conflict and Displacement, edited by Leora Auslander and Tara Zahra, is reviewed at the Los Angeles Review of Books.

Kathleen Belew speaks about her Bring the War Home The White Power Movement and Paramilitary America with the New Books Network.  Also on the site, Sarah E. Holcomb discusses her Remote Freedoms: Politics, Personhood and Human Rights in Aboriginal Central Australia

Finally, Joanne B. Freeman's The Field of Blood: Violence in Congress and the Road to Civil War is reviewed in The New York Times.

Weekend Roundup

• The New Books Network has a new podcast up on Richard J. Ross and Brian Owensby’s Justice in a New World: Negotiating Legal Intelligibility in British, Iberian, and Indigenous America (NYU Press, 2018).

• The article No-Fault Divorce Reform in the 1950s: The Lost History of the “Greatest Project” of the National Association of Women Lawyers, by Laura Oren, professor emerita at the University of Houston Law Center, is now available from Law and History Review via the Cambridge Core

• ICYMI: Jan Lewis's Rutgers obituary.  The Switch-in-Time rides again.  GQ endorses the rule of law and "the System."

• May we recommend The Scout Report? It's a good way to find out about humanities resources on the internet. You can sign up for the weekly e-mail (every Friday) here.

•  From the Washington Post's Made by History section: Carly Goodman (American Friends Service Committee) on "the shadowy network shaping Trump's anti-immigration policies"; Claire Potter (the New School) on "why lying, rather than sexual assault, could topple Brett Kavanaugh"; Kimberly A. Hamlin (Miami University in Ohio) on "what happens when women talk to Congress about sex"; Sarah Milov (University of Virginia) on how "like the tobacco industry, e-cigarette manufacturers are targeting children"; and more.

• Someone at the Hagley Museum and Library read guest blogger Laura Phillips Sawyer's recent posts about her research there. They encourage more legal historians to come take advantage of their collections.

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

A Handbook on the Rule of Law

Out from Edward Elgar is Handbook on the Rule of Law, edited by Christopher May, Lancaster University and the late Adam Winchester, formerly Lancaster University.

The discussion of the norm of the rule of law has broken out of the confines of jurisprudence and is of growing interest to many non-legal researchers. A range of issues are explored in this volume that will help non-specialists with an interest in the rule of law develop a nuanced understanding of its character and political implications. It is explicitly aimed at those who know the rule of law is important and while having little legal background, would like to know more about the norm.

The quite interesting TOC, which includes a historical section, is here.

Magliocca on Corfield v. Coryell

Bushrod Washington (NYPL)

Gerard N. Magliocca, Indiana University Robert H. McKinney School of Law, has posted Rediscovering Corfield v. Coryell.  “This Article presents new information on Justice Bushrod Washington's circuit opinion in Corfield v. Coryell. My findings are based on the discovery of Justice Washington's original notes on Corfield, which are held by the Chicago History Museum.”

Feingold on decolonizing Tanzania

Ellen R. Feingold (museum curator and faculty affiliate, Georgetown University) has published Colonial Justice and Decolonization in the High Court of Tanzania, 1920-1971 with Palgrave Macmillan. From the publisher: 

This book is the first study of the development and decolonization of a British colonial high court in Africa. It traces the history of the High Court of Tanzania from its establishment in 1920 to the end of its institutional process of decolonization in 1971. This process involved disentangling the High Court from colonial state structures and imperial systems that were built on racial inequality while simultaneously increasing the independence of the judiciary and application of British judicial principles.  Feingold weaves together the rich history of the Court with a discussion of its judges – both as members of the British Colonial Legal Service and as individuals – to explore the impacts and intersections of imperial policies, national politics, and individual initiative. Colonial Justice and Decolonization in the High Court of Tanzania is a powerful reminder of the crucial roles played by common law courts in the operation and legitimization of both colonial and post-colonial states. 

Table of Contents after the jump:

Policing, Justice, and the Radical Imagination

[We have the following CFP.]

Policing, Justice, and the Radical Imagination.  Issue Co-Editors: Amy Chazkel, Monica Kim, and Naomi Paik.  Issue 137. Call for Proposals

Radical History Review seeks proposals for contributions to a forthcoming issue that will bring together historically oriented scholarship and politically engaged writing that examine places and times without police. Social movements like the Brazilian campaign Reaja ou será mort@ (React or Be Killed) and Black Lives Matter in the U.S. seek not only to redress and prevent the harms inflicted by police and prisons, but also to reenvision forms of social organization that do not rely on such institutions of state violence at all. Indeed, the Movement for Black Lives (M4BL) centrally calls for their abolition, meaning not just dismantling these institutions of public discipline but also redistributing their capacities into institutions of real community safety, like schools, hospitals, and public spaces. While the idea of a world without police may appear utopian, this issue of RHR challenges us to take this proposition seriously. What would a world without police look like, and how might it function? How might radical histories of policing allow us to imagine such a world?

We welcome contributions that challenge the necessity of violence and authoritarian oversight in structuring social order, or that use historical study to disrupt the assumption that police are necessary. This issue aims to present a critically broadened set of political stakes, practices, and visions in the imagining of radical alternatives, through investigations of social peace and public discipline that existed before or against the institutionalization of the police--those that actually existed as well as those projected but never realized. We are interested in how people and societies have challenged the institutionalization of policing as a natural extension of the modern state, as well as in how different forms of policing arose in eras before or spaces beyond the modern state.

Submissions may focus on all parts of the world during any time period, and those that examine places outside the US and premodern histories are especially encouraged.

Possible topics include:

Boettke & Zywicki on the Austrian School and Law & Economics

Peter J. Boettke and Todd J. Zywicki, George Mason University, have posted Law and Economics: The Contributions of the Austrian School of Economics, which appears in the Research Handbook on Austrian Law and Economics, edited by Todd Zywicki and Peter Boettke (Edward Elgar, 2017):

The Austrian contribution to the development of law and economics is the study of endogenous rule formation, or the spontaneous evolution of social institutions, which can be traced to the founder of the Austrian School, Carl Menger. While Menger’s emphasis on spontaneous institutional analysis was born out of the Methodenstreit, a methodological battle engaged against the German Historical School, this paper argues that the Austrian contribution to law and economics emerged directly from the socialist calculation debate against market socialism. This debate, we will argue, played an essential role in the re-discovery of the institutional framework in economics during the post-WWII era, particularly in the development of law and economics. In the aftermath of the socialist calculation debate, Menger’s earlier emphasis on institutional analysis was reemphasized by F.A. Hayek, who in turn influenced the early pioneers of law and economics, particularly Aaron Director, Ronald Coase, and Bruno Leoni.

Nann and Cohen on legal historical research

John B. Nann and the late Morris L. Cohen (both of the Lillian Goldman Law Library, Yale Law School) have published The Yale Law School Guide to Research in American Legal History with Yale University Press. From the publisher:

The study of legal history has a broad application that extends well beyond the interests of legal historians. An attorney arguing a case today may need to cite cases that are decades or even centuries old, and historians studying political or cultural history often encounter legal issues that affect their main subjects. Both groups need to understand the laws and legal practices of past eras. This essential reference is intended for the many nonspecialists who need to enter this arcane and often tricky area of research.

 Further information is available here.

Wilson on Limited Liabiltiy for British Banks

Matthew Willison, Bank of England, has posted Were Banks Special? Contrasting Viewpoints in Mid-Nineteenth Century Britain:

In 1853 a Royal Commission was set up to investigate whether laws related to limited liability in Britain needed to be modified. As part of its evidence gathering the commission issued a questionnaire that included a number of questions on whether banks should be subject to the same liability laws as other types of commercial enterprises. This paper analyses the responses to the questions about banks to understand whether banks were seen as a special case. Support for modifying the law to make limited liability more easily available to banks was lower than for enterprises in general. Banks were seen as a special case because of the risk of bank runs and because their creditors were not able to assess accurately the riskiness of banks. But the special nature of banks caused others to favour limited liability because it made banks’ capital levels more transparent. These arguments echo wider debates during the nineteenth century and are similar to contemporary theories for why banks are regulated.

Salyer's "Under the Starry Flag"

It’s out!  Lucy E. Salyer, University of New Hampshire, has published Under the Starry FlagHow a Band of Irish Americans Joined the Fenian Revolt and Sparked a Crisis over Citizenship (Harvard University Press):

The riveting story of forty Irish Americans who set off to fight for Irish independence, only to be arrested by Queen Victoria’s authorities and accused of treason: a tale of idealism and justice with profound implications for future conceptions of citizenship and immigration.

In 1867 forty Irish American freedom fighters, outfitted with guns and ammunition, sailed to Ireland to join the effort to end British rule. Yet they never got a chance to fight. British authorities arrested them for treason as soon as they landed, sparking an international conflict that dragged the United States and Britain to the brink of war. Under the Starry Flag recounts this gripping legal saga, a prelude to today’s immigration battles.

The Fenians, as the freedom fighters were called, claimed American citizenship. British authorities disagreed, insisting that naturalized Irish Americans remained British subjects. Following in the wake of the Civil War, the Fenian crisis dramatized anew the idea of citizenship as an inalienable right, as natural as freedom of speech and religion. The captivating trial of these men illustrated the stakes of extending those rights to arrivals from far-flung lands. The case of the Fenians, Lucy E. Salyer shows, led to landmark treaties and laws acknowledging the right of exit. The U.S. Congress passed the Expatriation Act of 1868, which guarantees the right to renounce one’s citizenship, in the same month it granted citizenship to former American slaves.

The small ruckus created by these impassioned Irish Americans provoked a human rights revolution that is not, even now, fully realized. Placing Reconstruction-era debates over citizenship within a global context, Under the Starry Flag raises important questions about citizenship and immigration.

Some endorsements:

    “Under the Starry Flag is a brilliant piece of historical writing as well as a real page-turner. Salyer seamlessly integrates analysis of big, complicated historical questions—allegiance, naturalization, citizenship, politics, diplomacy, race, and gender—into a gripping narrative.”—Kevin Kenny, author of The American Irish: A History

    “Salyer offers a compelling account of how the right of expatriation won recognition during the second half of the nineteenth century through the efforts of immigrants themselves, and then gestures at the darker story of how the U.S. government wielded expatriation against both native-born and naturalized citizens in the twentieth century, often to devastating effect.”—Kunal Parker, author of Making Foreigners: Immigration and Citizenship Law in America, 1600–2000

    “Under the Starry Flag is a beautifully written account of the Irish Americans who fought for Ireland’s freedom in the 1860s and for their protection, as naturalized U.S. citizens, from British prosecution. Irish freedom fighters, the Civil War and slave emancipation, the color line in American law, and international relations—all told by Lucy Salyer with elegance, drama, and erudition.”—Mae Ngai, author of Impossible Subjects: Illegal Aliens and the Making of Modern America

    “Beautifully crafted and compelling, Lucy Salyer’s illuminating narrative of Irish American freedom fighters is a reminder of the pathos and passion in the history of citizenship. Highly recommended.”—Mary Dudziak, author of War Time: An Idea, Its History, Its Consequences
    “Do individuals have an inherent right to change their national allegiance? Are naturalized citizens the equal of birthright citizens? What power do sovereign states wield in a world of nation-states? Salyer gives us a history of expatriation in the era of Reconstruction that is both a riveting story and a brilliant contribution to our understanding of citizenship.”—Barbara Young Welke, author of Law and the Borders of Belonging in the Long Nineteenth Century United States

AJLH: 58:3

Here’s the TOC for the American Journal of Legal History, 58:3 (September 2018).

Revisiting the Critiques of Those Who Upheld the Fugitive Slave Acts in the 1840s and ‘50s
Peter Karsten

The Law Wars in Massachusetts, 1830-1860: How a Band of Upstart Radical Lawyers Defeated the Forces of Law and Order, and Struck a Blow for Freedom and Equality Under Law   
Alexandra D Lahav; R Kent Newmyer

“O Amherst, Where is Thy Shame?”: Republican Opposition to Federalist Policies in a New England Town   
Susan J Siggelakis; Nicholas Mignanelli

Judicial Intervention in Early Corporate Governance Disputes: Vice-Chancellor Shadwell’s Lost Judgment in Mozley v Alston (1847)   
Victoria Barnes

Book Reviews

David Barker, A History of Australian Legal Education   
Mark Lunney

Dante Fedele, Naissance de la diplomatie moderne (XIIIe-XVIIe siècles). L’ambassadeur au croisement du droit, de l’éthique et de la politique   
Frederik Dhondt

Shaunnagh Dorsett, Juridical Encounters: Ma-ori and the Colonial Courts 1840 – 1852   
Katherine Sanders

Guido Rossi, Insurance in Elizabethan England. The London Code   
Dave De ruysscher

Mark Lunney, A History of Australian Tort Law 1901–1945: England’s Obedient Servant?
Henry Kha

Lambourn and friends on legal encounters on the medieval globe

Elizabeth Lambourn (De Montfort University) edited Legal Encounters on the Medieval Globe, which came out with the Arc Humanities Press in 2017. From the publisher: 

Law has been a primary locus and vehicle of contact across human history—as a system of ideas embodied in people and enacted on bodies; and also as a material, textual, and sensory “thing.” The seven essays gathered here analyze a variety of legal encounters on the medieval globe, ranging from South Asia to South and Central America, Africa, the Middle East, and Europe. Contributors uncover the people behind and within legal systems and explore various material expressions of law that reveal the complexity and intensity of cross-cultural contact in this pivotal era. Topics include comparative jurisprudence, sumptuary law, varieties of punishment, forms of documentation and legal knowledge, religious law, and encounters between imperial and indigenous legal systems. A featured source preserves an Ethiopian king’s legislation against traffic in Christian slaves, resulting from the intensifying African slave trade of the sixteenth century.

Contents after the jump:

Weekend Roundup

• Okay, so we're not located in the middle of Williamsburg, but still: Why didn't we think of this?  William & Mary Law has a Legal History Society.

• ICYMI: Stanford Law's Greg Ablavsky, interviewed for Constitution Day.  HNN's questions and answers on Supreme Court nominations.  Also: well put.

• In the Los Angeles Times, Sam Erman (University of Southern California) has an op-ed on "devastation without representation in Puerto Rico."

• From the Washington Post's Made by History section, Mary C. Flannery (University of Oxford) on the Kavanaugh nomination and the "medieval roots of character testimony." Also Katherine Turk (University of North Carolina - Chapel Hill) and Anne M. Blacshke (College of the Holy Cross) on "what we have -- and haven't -- learned from Anita Hill."

• At the Recipes Project: a blogpost by Jessica P. Clark (Brock University) on safeguarding secrets in the Victorian beauty business.

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

Pfeifer on lynching around the world

Michael J. Pfeifer (John Jay College of Criminal Justice and the CUNY Graduate Center) published Global Lynching and Collective Violence. Vol.2: The Americas and Europe with the University of Illinois Press in 2017. From the publisher:

In this second volume of the groundbreaking survey, Michael J. Pfeifer edits a collection of essays that illuminates lynching and other extrajudicial "rough justice" as a transnational phenomenon responding to cultural and legal issues.

The volume's European-themed topics explore why three communities of medieval people turned to mob violence, and the ways exclusion from formal institutions fueled peasant rough justice in Russia. Essays on Latin America examine how lynching in the United States influenced Brazilian debates on race and informal justice, and how shifts in religious and political power drove lynching in twentieth-century Mexico. Finally, scholars delve into English Canadians' use of racist and mob violence to craft identity; the Communist Party's Depression-era campaign against lynching in the United States; and the transnational links that helped form--and later emanated from--Wisconsin's notoriously violent skinhead movement in the late twentieth century.

Praise: 

"Global Lynching and Collective Violence, Volume 2 broadens our perspective on lynching beyond the American South. The essays in the collection are theoretically sophisticated and well documented. This book will be a standard work in the field." -Margaret Vandiver

"This impressive collection greatly contributes to our understanding of lynching, calling attention to its long-neglected global and transnational dimensions. It is an indispensable resource for anyone interested in studying mob violence from an international perspective." -Simon Wendt

Further information is available here.

ASLH Elections Now Underway

[We are re-upping this post as a reminder to ASLH members. Cast your ballots soon!]

We have the following message from the American Society for Legal History:

ASLH Elections are underway now through September 22. If you are a member of the society, you should receive today or tomorrow (August 21 or 22) a ballot for the election from VoteNow, the organization that conducts our elections. If you have not received it, please check your spam folder first. If your ballot is not present, you may not have been a member as of the July 10 membership list that was furnished to us by Cambridge University Press--meaning, your membership has lapsed. Fear not! Contact CUP and renew your membership, then send Sally Hadden (sally.hadden@wmich.edu) a copy of your membership renewal email from CUP. She can add you to the election and get you a ballot all the way until September 21. Remember, voting closes on September 22 at midnight.

Law & Humanities Junior Scholars Workshop

[We have the following call for papers.]

2019 Law and Humanities Junior Scholars Workshop
Columbia Law School, Georgetown University Law School, Stanford Law School, UCLA School of Law, the University of Pennsylvania, and the University of Southern California Center for Law, History, and Culture invite submissions for the thirteenth meeting of the Law and Humanities Junior Scholars Workshop, to be held at Penn Law School in Philadelphia, PA, on June 2 and 3, 2019.

About the Workshop
The paper competition is open to untenured professors, advanced graduate students, and post-doctoral scholars in law and the humanities. In addition to drawing from numerous humanistic fields, we welcome critical, qualitative work in the social sciences. Based on anonymous evaluation by an interdisciplinary selection committee, between five and ten papers will be chosen for presentation at the June Workshop. At the Workshop, two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. The selected papers will then serve as the basis for a larger conversation among all the participants about the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship, as well as about the nature of interdisciplinarity itself.

The selected papers will appear in a special issue of the Legal Scholarship Network; there is no other publication commitment. (We will accommodate the wishes of chosen authors who prefer not to have their paper posted publicly with us because of publication commitments to other journals.)

The Workshop will pay the domestic travel and hotel expenses of authors whose papers are selected for presentation. For authors requiring airline travel from outside the United States, the Workshop will cover such travel expenses up to a maximum of $1000.

Submission Instructions
Papers must be works-in-progress that do not exceed 15,000 words in length (including footnotes/ endnotes); most papers selected for inclusion in recent years have been at least 10,000 words long. An abstract of no more than 200 words must also be included with the paper submission. A dissertation chapter may be submitted, but we strongly suggest that it be edited so as to stand alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible for selection so long as it will not be in galley proofs or in print at the time of the Workshop; it is important that authors still be in a position at the time of the Workshop to consider comments they receive there and to incorporate them as they think appropriate in their revisions.

We ask that those submitting papers be careful to omit or redact any information in the body of the paper that might serve to identify them, as we adhere to an anonymous or “blind” selection process.

Submissions (in Microsoft Word—no pdf files, please) will be accepted until December 1, 2018, and should be sent by e-mail to: juniorscholarsworkshop@sas.upenn.edu. Please be sure to include your name, institutional affiliation (if any), and phone and e-mail contact information in your covering email, not in the paper itself.

For more information, please send an email inquiry to juniorscholarsworkshop@sas.upenn.edu.

To see selected papers from previous years’ workshops, go [here.]

Anne Dailey, University of Connecticut Law School
Katherine Franke, Columbia Law School
Sarah Barringer Gordon, University of Pennsylvania
Nan Goodman, University of Colorado
Ariela Gross, University of Southern California
Martha Jones, Johns Hopkins University
Naomi Mezey, Georgetown University Law Center
Paul Saint-Amour, University of Pennsylvania
Hilary Schor, University of Southern California
Norman Spaulding, Stanford Law School
Clyde Spillenger, UCLA School of Law
Nomi Stolzenberg, University of Southern California
Martha Umphrey, Amherst College

Conveners, 2019 Law and Humanities Junior Scholars Workshop

McClain on Loving, Obergefell and the "Right Side of History"

Linda C. McClain, Boston University School of Law, has posted Prejudice, Moral Progress, and Being “On the Right Side of History”: Reflections on Loving v. Virginia at Fifty, which appears in Fordham Law Review 86 (2018): 2701-2715:

What does it mean to be on the “right” or “wrong” side of history? When Virginia’s Attorney General explained his decision not to defend Virginia’s “Defense of Marriage Law” prohibiting same-sex marriage, he asserted that it was time for Virginia to be on the “right” rather than the “wrong” side of history and the law. He criticized his predecessors, who defended the discriminatory laws at issue in Brown v. Board of Education, Loving v. Virginia, and United States v. Virginia. Loving played a crucial role in the majority opinion in Obergefell v. Hodges, even as the dissenters disputed its relevance; it continues to feature in post-Obergefell controversies over religious liberty and LGBT rights. Looking back at the record in Loving, this article argues that Loving illustrates a theme of generational moral progress in constitutional interpretation: laws once justified by appeals to nature, history, tradition, divine law, and the well-being of children and society are repudiated as rooted in prejudice. Virginia sought to distance its antimiscegenation law from prejudice and white supremacy by appealing to social science that identified problems posed by “intermarriage” -- particularly for children -- and rejected the idea that intermarriage was a path toward progress and freedom from prejudice. Countering with narratives of constitutional moral progress, the Lovings and their amici argued that Virginia’s law was an odious relic of slavery and a present-day reflection of racial prejudice, unsupported by modern science. The article concludes with a look at Obergefell, and the competing arguments southern states made about Loving and the lessons of history. 

Werden on the DOJ Antitrust Division

Harold M. Stephens (LC)

Gregory J. Werden, U.S. Department of Justice, Antitrust Division, has posted Establishment of the Antitrust Division of the U.S. Department of Justice.  We have to say that we’ve long been puzzled by the dating of the Antitrust Division to 1933, because we knew from sources much like those Mr. Werden consulted, including in the papers of Harold M. Stephens, FDR's first AAG for the Antitrust Division.

Official sources state that the Antitrust Division of the U.S. Department of Justice was created by Attorney General Homer S. Cummings in 1933, but no corroboration is provided. This note carefully examines the events of 1933 as well prior history, and it discovers that the Antitrust Division actually was established by Attorney General A. Mitchell Palmer in 1919.

H/t: John Q. Barrett

Golove & Hulsebosch on the Law of Nations and the Constitution

David M. Golove and Daniel J. Hulsebosch, New York University School of Law, have posted The Law of Nations and the Constitution: An Early Modern Perspective, which appears in the Georgetown Law Journal 106 (2018): 1593-1658:

Many American scholars, lawyers, and judges born in the latter half of the twentieth century have found it difficult to comprehend, or even recognize, the Founding generation’s commitment to the law of nations as a system of law, jurisprudence, and morality. Perhaps for similar reasons, that commitment tends to get lost in much modern historical writing. So, too, with respect to a related, but, from a legal perspective, more consequential aspect of the Founding: the prominent place of the law of nations in the constitutional reform project that culminated in the Philadelphia Convention. It was the uncertain struggle to ensure that the United States complied with its (or their) treaty obligations and the law of nations that was arguably the most important, and the most consensual, reason for the drafting and ratification of the new Constitution. That imperative shaped the structure outlined in the text, as well as much of the way that judges, executive officials, and even legislators interpreted and administered the Constitution during the first generation of the federal government. The result was a government designed to interact productively with the law of nations. Some of those interpretations, and some aspects of federal administration, became enormously controversial and generated early partisan divisions. But the basic premise—that the law of nations was the law of the land—proved durable, creating a tradition of international “law- mindedness” that deserves more historical investigation than it has so far received. The result is not just a scholarly lacunae. Among many lawyers today, the Founders’ conception of the central position of the law of nations in the American legal order is even less appreciated than their cosmopolitan outlook.

In offering a corrective to this forgetfulness, Professors Anthony Bellia and Bradford Clark, in The Law of Nations and the United States Constitution, make an important contribution to the ongoing dialogue over the Founding. Nonetheless, in our view, the legal theory that Professors Bellia and Clark offer downplays, misses, or misunderstands crucial features of the pertinent history, especially why and how the Founders struggled to interweave the law of nations into the Constitution. These errors and elisions are important, in part for purely academic reasons, bearing on the extent to which their approach accurately portrays a foundational period in U.S. constitutional history. They are also important, however, because they lead Professors Bellia and Clark to reach some sound, but also some unsound, conclusions about important issues of constitutional law.

NHC Briefing on History of US Refugee Policy

The National History Center has announced its next Congressional briefing.  It is on the History of US Refugee Policy and will take place on Monday, October 1, 2018 from 9:00 am-10:00 am
Rayburn House Office Building, Room 2045.

The United States has provided a haven for refugees from other countries since it was created. Yet their arrival has often provoked political controversy and spurred calls to close borders. What has driven past waves of refugees and how has the federal government responded? How can the history of US refugee and asylum policy inform our understanding of current debates over refugee admittance and protections?

The speakers will be Maria Cristina Garcia, Cornell University, and Carl Bon Tempo, SUNY Albany.  The moderator will be Alan Kraut, American University.

Douglas on museums and memory

Stacy Douglas, Carleton University published Curating Community: Museums, Constitutionalism, and the Taming of the Political with the University of Michigan Press in 2017. From the publisher: 

In Curating Community: Museums, Constitutionalism, and the Taming of the Political, Stacy Douglas challenges the centrality of sovereignty in our political and juridical imaginations. Creatively bringing together constitutional, political, and aesthetic theory, Douglas argues that museums and constitutions invite visitors to identify with a prescribed set of political constituencies based on national, ethnic, or anthropocentric premises. In both cases, these stable categories gloss over the radical messiness of the world and ask us to conflate representation with democracy. Yet the museum, when paired with the constitution, can also serve as a resource in the production of alternative imaginations of community. Consequently, Douglas’s key contribution is the articulation of a theory of counter-monumental constitutionalism, using the museum, that seeks to move beyond individual and collective forms of sovereignty that have dominated postcolonial and postapartheid theories of law and commemoration. She insists on the need to reconsider deep questions about how we conceptualize the limits of ourselves, as well as our political communities, in order to attend to everyday questions of justice in the courtroom, the museum, and beyond.

Praise for the book: 

 “Curating Community makes a really significant and exciting contribution to existing literatures. Douglas is at her best when engaging in critiques of other thinkers such as Christodoulidis and Cornell. The unexpected link that Douglas makes between constitutions and museums is critically important because it directly links law and culture in ways that are not usually noted or thought about, but which have vital effects on our political and aesthetic lives.” -James Martel

“Reading museums alongside and against constitutional thinking, Douglas brilliantly exposes the problem of political sovereignty and the possibilities for rethinking political community. A thoughtful and inspired work.” -Davina Cooper

“Douglas has put forward an interesting and compelling argument drawing on various theorists and perspectives. Given the current social and political climate worldwide, her insistence on the disruption of the idea of community and thinking of justice as the exposure of the truth of infinite sharing is timeous and crucial, a call that should be heeded.” -Karin van Marle,

Further information is available here.

HLS Student Organizations Exhibited

[We have the following announcement of an exhibit of Historical and Special Collections at the Harvard Law School Library.]

Spicy Reforms and Crystallizing Clap Trap: Student Organizations at Harvard Law School

What do dining halls, women’s showers at Hemenway Gymnasium, and shared course outlines have in common? These are all resources available at Harvard Law School today that were put into place by students of yesterday. HLS’s Historical & Special Collections’ new exhibit takes a look at how students and their ever-increasing number of law clubs, social clubs, and affinity groups have contributed to HLS culture over time. Following an archival collecting project undertaken by HSC in 2016-2018, the exhibit also addresses how archivists here at HLS and abroad are coordinating efforts to preserve today’s student histories. Curated by HSC staff Jessica Farrell and Jane Kelly, it will be on view in the Caspersen Room through January 2019 with online addenda [here] . Please stop by and visit if you are in the area!

The Supreme Court and World War I

The Supreme Court Historical Society has announced its Leon Silverman Lecture Series for 2018, The Supreme Court and World War I: In Observation of the Centennial of World War I.  The four addresses are:

October 10, 2018 - World War I and the Court in Context, presented by Melvin Urofsky

October 17, 2018 - Charles Evans Hughes and the Constitutional War, presented by Matthew Waxman

October 23, 2018 - Selective Draft Law Cases, presented by Christopher Capozzola

December 6, 2018 - Free Speech Cases of World War I, presented by Laura Weinrib

Special Issue: Brazilian Civil Code of 1916

We have learned of the publication last year of a special issue of the journal of the Instituto Histórico e Geográfico Brasileiro commemorating the centennial of the first Brazilian Civil Code (1916).  Legal historians from Brazilian, German, Argentinian, Austrian and Peruvian universities contributed to the special issue, which was organized by Professor Airton Seelaender, Universidade de Brasília.  Essays discuss the creation of the code (including contributions from Miloš Vec and Jan Dirk Harke on its debt to pandectistics), as well as the code’s impact on Brazilian law, politics and economy.  H/t: Patrícia Soster Bortolotto

Writing History Through Children

We are grateful to Joanna Grisinger, Northwestern University, for bringing to our attention the following panel at Writing History Through Children, a conference at Northwestern to be held on October 5-6:

Panel 3: Innocence and the Law,  Friday, October 5, 3:30-5:15 p.m

Chair:  Susan Pearson, Northwestern

Holly Brewer, University of Maryland: "The crucial role of children in the complex debates over slavery in England’s seventeenth century empire"

Michael Grossberg, Indiana University: “Keeping it From the Kids: Censorship and Childhood in Modern America”

Bianca Premo, Florida International University: “As a Complement to the Clinical History: Doctors, Photos, Early Puberty, and Children in Mid 20th- Century Peru and Beyond”

Comment:  Leslie Harris, Northwestern

Administrative Constitutionalism at Penn Law

Our friends at Penn Law, including especially Sophia Z. Lee, have organized an excellent symposium, The History, Theory, and Practice of Administrative Constitutionalism, to be held at the law school on October 19-20, 2018.  Here's its premise:

The United States today faces contentious debates over the constitutionality of federal administrative action. These debates gained steam during the Obama presidency, as congressional gridlock led the President to rely heavily on administrative agencies to advance an ambitious and controversial policy agenda. Across the political spectrum lawyers and politicians charged these agencies with violating individual constitutional rights (such as religious freedom and procedural due process) and structural constitutional constraints (such as the President’s constitutional obligation to faithfully execute the laws). The Trump White House has followed in its predecessor’s footsteps, leading to similar challenges to his administration’s changes to immigration, environmental, educational, and anti-discrimination policy.

Lurking behind these legal arguments is a bi-partisan anxiety about the constitutional status of the administrative state as a whole: the tangled web of agencies responsible for the vast majority of what the federal government does on a day-to-day basis. Despite their enormous power, federal agencies are barely mentioned in the Constitution’s text. Yet they play a central role in the everyday interpretation and implementation of constitutional law. For instance, it was administrators who first struck the balance between the religious rights of employers and the statutory rights to access cost-free contraceptives of their female employees. It is administrators as well who are crafting the Trump administration’s broad interpretations of religious liberty. As these examples suggest, it will often fall to administrative officials far from the public eye to resolve constitutional conflicts caused by a particular law, or to push the boundaries of the law in a constitutionally innovative direction.

In the last ten years, a field of scholarship has developed that sheds new historical and theoretical light on these interlocking issues of administration and constitutional law. Gathered under the moniker administrative constitutionalism, these scholars study the constitutional roots of the administrative state, the role that its agencies play in interpreting, implementing, and transforming constitutional law, and the tools that presidents, legislators, judges, and everyday citizens use to control the administrative state’s constitutional creativity.

This symposium is the first to tackle the timely topic of administrative constitutionalism. Bringing together leading scholars to analyze and debate constitutionalism in and of the administrative state, it will generate cutting edge work on the history, theory, and practice of administrative constitutionalism.

Update: The image is a more recent version of the schedule.

Bhandar on colonialism and property

Brenna Bhandar, School of Oriental and African Studies, has published Colonial Lives of Property: Law, Land, and Racial Regimes of Ownership with Duke University Press. From the publisher: 

In Colonial Lives of Property Brenna Bhandar examines how modern property law contributes to the formation of racial subjects in settler colonies and to the development of racial capitalism. Examining both historical cases and ongoing processes of settler colonialism in Canada, Australia, and Israel and Palestine, Bhandar shows how the colonial appropriation of indigenous lands depends upon ideologies of European racial superiority as well as upon legal narratives that equate civilized life with English concepts of property. In this way, property law legitimates and rationalizes settler colonial practices while it racializes those deemed unfit to own property. The solution to these enduring racial and economic inequities, Bhandar demonstrates, requires developing a new political imaginary of property in which freedom is connected to shared practices of use and community rather than individual possession.

Praise for the book: 

"I am obsessed with the force and eloquence with which [Bhandar] analyzes the birth of private property and its ongoing devastating effects. This book is going to be precious to me and many other people, too."  -Jordy Rosenberg

“Brenna Bhandar's enthralling book peels the veneer of property law from that which lies concealed beneath—the multiplicitous structures of dominance that define our contemporary settler-colonial world, all the way from Parramatta to Palestine. Here is a trenchant reassertion of the capacities of Marxist analysis to plumb dispossessions both historic and current, and to expose the entwined regimes of ownership and of racial hegemony that sustain them.” -Christopher Tomlins

“In this original study, Brenna Bhandar analyzes the constitutive role of colonialism in the development of modern property law and the modern legal subject. Bhandar's sophisticated comparative research on the political-economic imagination and legal infrastructure of settler colonialism is completely fascinating. And her stunning elaboration of what she names 'racial regimes of ownership' is utterly brilliant. A timely and essential book that will fundamentally change the way we think about race, property, and subjectivity.”  -Avery F. Gordon

Further information is available here.  

Sunday Book Review Roundup

There is a rich array of work reviewed this week:

The Theatre of Death: Rituals of Justice from the English Civil Wars to the Restoration by P.J. Klemp is reviewed at Marginalia.

The Improbable Wendell Willkie: The Businessman Who Saved the Republican Party and His Country, and Conceived a New World Order by David Levering Lewis is reviewed in The New Yorker and The New York Times.

In The New York Times is a review of These Truths: A History of the United States by Jill Lepore.  Also in The New York Times is a review of Carol Anderson's One Person, No Vote: How Voter Suppression Is Destroying Our Democracy.

Merve Emre's The Personality Brokers: The Strange History of Myers-Briggs and the Birth of Personality Testing is reviewed in The New Republic.  Also reviewed in The New Republic is Invisible Countries: Journeys to the Edge of Nationhood by Joshua Keating.

At The New Rambler is a review of Why Love Leads to Justice: Love across the Boundaries by David A.J. Richards.

Elaine Mokhtefi's Algiers, Third World Capital: Freedom Fighters, Revolutionaries, Black Panthers is reviewed at Public Books.

At H-Net is a review of Britt Tevis' Louis D. Brandeis: American Prophet.  Also reviewed at H-Net is Steven M. Gillon's Separate and Unequal: The Kerner Commission and the Unraveling of American Liberalism.  Keisha N. Blain's Set the World on Fire: Black Nationalist Women and the Global Struggle for Freedom is also reviewed at the site.

In The Federal Lawyer is a review of The Constitutional Evolution of Puerto Rico and Other U.S. Territories: (1898-Present) by Hon. Gustavo A. Gelpí.

Municipal Dreams: The Rise and Fall of Council Housing by Joshua Boughton is reviewed at History Today.

In the Boston Review is an excerpt from Helena Rosenblatt's The Lost History of Liberalism From Ancient Rome to the Twenty-First Century.

There are several excellent review essays in The New York Review of Books.  Renief de Graaf reviews Brian McCammack's Landscapes of Hope: Nature and the Great Migration in Chicago  and Ben Austen's High-Risers: Cabrini-Green and the Fate of American Public Housing.  Sue Halpern reviews Sarah E. Igo's The Known Citizen: A History of Privacy in Modern America, Cyrus Farivar's Habeas Data: Privacy vs. the Rise of Surveillance Tech, Mary Ziegler's Beyond Abortion: Roe v. Wade and the Battle for Privacy, and Woodrow Harzog's Privacy’s Blueprint: The Battle to Control the Design of New Technologies.  

Finally, Jackson Lears' essay at the NYRB takes up  In Search of the Lost Chord: 1967 and the Hippie Idea by Danny Goldberg, New Reformation: Notes of a Neolithic Conservative by Paul Goodman, The Politics of Authenticity: Liberalism, Christianity, and the New Left in America by Doug Rossinow, 1968: The Rise and Fall of the New American Revolution by Robert C. Cottrell and Blaine T. Browne, 1968: Radical Protest and Its Enemies, Ballots and Bullets: Black Power Politics and Urban Guerrilla Warfare in 1968 Cleveland by James Robenalt, Struggle for a Better South: The Southern Student Organizing Committee, 1964-1969 Gregg L. Michel, The Making of a Counter Culture: Reflections on the Technocratic Society and Its Youthful Opposition by Theodore Roszak, and Rebellion in Black and White: Southern Student Activism in the 1960s edited by Robert Cohen and David J. Snyder.

Geoff Mann's In the Long Run We Are All Dead: Keynesianism, Political Economy, and Revolution is reviewed in the London Review of Books.

There are several new interviews posted at the New Books Network.  Jeremy Martens speaks about his Empire and Asian Migration: Sovereignty, Immigration Restriction and Protest in the British Settler Colonies, 1888-1907.  Jonathan W. White discusses his Lincoln on Law, Leadership, and Life.
Rebecca Reich introduces her State of Madness: Psychiatry, Literature, and Dissent After Stalin.  Joseph Ben Prestel speaks about his Emotional Cities: Debates on Urban Change in Berlin and Cairo, 1860-1910.  Michael Szonyi discusses his The Art of Being Governed: Everyday Politics in Late Imperial China.  Benjamin Carter Hett speaks about his The Death of Democracy: Hitler's Rise to Power and the Downfall of the Weimar Republic.  Finally, Keri Merritt and Matthew Hild discuss their Reconsidering Southern Labor History: Race, Class, and Power.

Weekend Roundup

• Over at Balkinization, David Pozen has an important post on the debate prompted by Matthew Connelly’s report, State Secrecy, Archival Negligence, and the End of History as We Know It.  The takeaway: "A crisis in the national archives, all of the authors agree, is a crisis in American democracy."
  

• Michael Les Benedict, emeritus at Ohio State University, will deliver The Transformative 14th Amendment: The Constitutional Amendment that Reshaped America as the 2018 Richard W. Smith Lecture in Civil War History at Ohio Wesleyan University at 7:30 p.m. on September 20 in Benes Rooms A and B of Hamilton-Williams Campus Center, 40 Rowland Ave., Delaware, OH. 

• Adam Winkler’s We the Corporations: How American Businesses Won Their Civil Rights has made the longlist for the National Book Critics Award for Nonfiction.  H/t: New Yorker

• If a legal historian appeared in your school's annual "new hires and visitors" press release, please send us the link.  Here is Georgetown Law on Kevin Arlyck. 

• “Attorneys filed a lawsuit Thursday on behalf of historian Heather Thompson, whose Pulitzer Prize-winning book Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy was censored by Illinois prison officials.” H/t: The Beachwood Reporter.

• Book Reviews: Over at Jotwell: Anders Walker’s Did Black Baptists Join the War on Drugs?, a review of James Forman, Locking Up Our Own: Crime and Punishment in Black America.  In The Globe and Mail, A review of Claire L’Heureux-Dubé: A Life, a biography written by former ASLH president Constance Backhouse. In the New York Law Journal, Jeffrey Winn reviews James Simon’s Eisenhower vs. Warren:  The Battle for Civil Rights and Liberties.

• ICYMI:  A Short History of Land Transfers and Title in Georgia on the practitioner Dale J. Jackson's Real Estate Legal Blogs.  Wayne State's Robert Sedler develops a point about treason that Stephen Vladeck frequently makes on Twitter: the constitution defines it narrowly, and for good reason.  And, in the WSJ, Joseph J. Ellis urges that "all justices should take a vow of humility, content themselves with incremental reforms of the law...."

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

Monateri's "Dominus Mundi"

Pier Giuseppe Monateri, University of Torino, has published Dominus Mundi: Political Sublime and the World Order (Hart Publishing):

This monograph makes a seminal contribution to existing literature on the importance of Roman law in the development of political thought in Europe. In particular it examines the expression 'dominus mundi', following it through the texts of the medieval jurists – the Glossators and Post-Glossators – up to the political thought of Hobbes. Understanding the concept of dominus mundi sheds light on how medieval jurists understood ownership of individual things; it is more complex than it might seem; and this book investigates these complexities. The book also offers important new insights into Thomas Hobbes, especially with regard to the end of dominus mundi and the replacement by Leviathan. Finally, the book has important relevance for contemporary political theory. With fading of political diversity Monateri argues “that the actual setting of globalisation represents the reappearance of the Ghost of the Dominus Mundi, a political refoulé – repressed – a reappearance of its sublime nature, and a struggle to restore its universal legitimacy, and take its place.” In making this argument, the book adds an important original vision to current debates in legal and political philosophy.

Table of Contents after the jump.

Bratton on Means on Administered Prices

William W. Bratton, University of Pennsylvania Law School, has posted The Modern Corporation and Private Property Revisited: Gardiner Means and the Administered Price:

This essay views The Modern Corporation and Private Property from the perspective of its junior coauthor, Gardiner Means. Means generated the book’s statistical showings of deepening corporate concentration and widening separation of ownership and control, studies also included in a Ph.D. dissertation Means successfully submitted to the Harvard economics department a year after the book’s publication. The dissertation also included a chapter, never published and rejected by the dissertation committee, that set out a theory administered prices. The theory lays out the statistical results’ implications for public policy. In Means’s view, Adam Smith’s picture of supply, demand, and automatic market correction had been partially eclipsed by inflexible pricing administered by corporate managers. Growing corporate concentration exacerbated these “administrated” prices’ distortionary effects. The theory explained the Great Depression’s persistence and yielded a detailed list of problems to be addressed by a new regulatory state. The chapter, only alluded to in the book, provides essential explication of its excursuses on corporate power and social welfare, for the it explains in hard economic terms just what Berle and Means thought that “neutral technocrats” in the corporate sector could do to make the economy work better. The essay goes on to describe Means’s later articulations of the theory and to compare his later career path to that of Berle.

Barrett to Lecture on Jackson as Antitrust AAG

From the Jackson List, run by John Q. Barrett, St. Johns Law, we learn of the creation earlier this year by the Antitrust Division of the U.S. Department of Justice of the the Jackson-Nash Address, created “to recognize the contributions of former Supreme Court Justice Robert H. Jackson and Nobel Laureate economist John Nash, and to honor the speaker, recognizing and celebrating the role of economics in the mission of the [Antitrust] Division.”

As Professor Barrett explains:

Robert H. Jackson (LC)

Robert H. Jackson headed the Antitrust Division during 1937.  As the Division explained when it announced this new lecture series, Jackson’s leadership set the stage for the expanded role of economics in antitrust, replacing vague legal standards with the “protection of competition” as the goal of antitrust law.  And Dr. John Nash’s research provides Antitrust Division economists with analytic tools necessary to protect competition.  In particular, Division economists commonly rely on Nash’s strategic theory of games and his axiomatic bargaining model to guide investigations and to help evaluate the effects of mergers, monopolization, and collusion.

The next event in this series will take place Thursday, September 20, 2018, at 3:00 p.m. in the Great Hall at the U.S. Department of Justice, The Robert F. Kennedy Building, 950 Pennsylvania Avenue, N.W., Washington, D.C. (unfortunately, right when we’re teaching!) The program will consist of

introductory remarks by Department of Justice leadership; [Professor Barrett’s] lecture, “Competition: Robert H. Jackson as Assistant Attorney General—Antitrust (January 21, 1937–March 5, 1938); and an address by Dr. George A. Akerlof, University Professor at Georgetown University.

ASLH Houston

We're behind in our postings on the annual meeting of the American Society for Legal History in Houston, November 8-10.  The program is here; the website of the Local Arrangements Committee is here.

Freedman on the first ICC trial

Jim Freedman, Western University published A Conviction in Question: The First Trial at the International Criminal Court with the University of Toronto Press in 2017. From the publisher:

A lively narrative account of the first case to appear at the International Criminal Court, A Conviction in Question documents the trial of Union of Congolese Patriots leader and warlord, Thomas Lubanga Dyilo. Although Dyilo’s crimes, including murder, rape, and the forcible conscription of child soldiers, were indisputable, legal wrangling and a clash of personalities caused the trial to be prolonged for an unprecedented six years. This book offers an accessible account of the rapid evolution of international law and the controversial trial at the foundation of the International Criminal Court. 

The first book to thoroughly examine Dyilo’s trial, A Conviction in Question looks at the legal issues behind each of the trial’s critical moments, including the participation of Dyilo’s victims at the trial and the impact of witness protection. Through eye-witness observation and analysis, Jim Freedman shows that the trial suffered from all the problems associated with ordinary criminal law trials, and uses Dyilo’s case to further comment on the role of international courts in a contemporary global context.

Praise for the book:

"While containing a startling amount of scholarly content, A Conviction in Question reads like a well-told detective story, and I read it from cover to cover in one sitting, turning page after page to get to the next revealing detail." -Joanna Quinn

"Freedman delivers a rich and comprehensive account of the prosecution of warlord Thomas Lubanga. Including lively trial quotes, A Conviction in Question is gripping and accessible." -Mark Drumbl

Further information is available here.

California Legislative History Digitized

[We're grateful to Joanna Grisinger for drawing this announcement to our attention.]

Thousands of Historical California Legislative Publications Digitized and Openly Available Online Paul Fogel, Manager & Technical Lead, Mass Digitization, California Digital Library

California historical legislative research just got a bit easier. As a result of a collaboration between the California Office of Legislative Counsel and librarians at the University of California, Stanford University and the California State Library, nearly 4,000 California Assembly and Senate publications are now online and have been opened for reading access to everyone worldwide. They are available in the HathiTrust Digital Library as a featured collection, as well as individually in Google Books.

The project was initiated at the University of California's California Digital Library (CDL) by current HathiTrust Program Officer for Federal Documents and Collections Heather Christenson.  CDL worked with California's Office of Legislative Counsel to clarify language in recently approved California Assembly Bill no. 884 to confirm that the collected set of historical publications of California legislative output are indeed in the public domain and can be broadly shared.  The recently opened volumes were digitized as part of the Google Books project from copies collected by UC Berkeley and many other university libraries and have been aggregated in the HathiTrust Digital Library, a partnership of over 140 academic and research libraries

[More.]