Tuesday, November 19, 2019

Downs, "The Second American Revolution The Civil War-Era Struggle over Cuba and the Rebirth of the American Republic"

The University of North Carolina Press has published The Second American Revolution: The Civil War-Era Struggle over Cuba and the Rebirth of the American Republic (Nov. 2019), by Gregory P. Downs (University of California, Davis). A description from the Press:
Much of the confusion about a central event in United States history begins with the name: the Civil War. In reality, the Civil War was not merely civil--meaning national--and not merely a war, but instead an international conflict of ideas as well as armies. Its implications transformed the U.S. Constitution and reshaped a world order, as political and economic systems grounded in slavery and empire clashed with the democratic process of republican forms of government. And it spilled over national boundaries, tying the United States together with Cuba, Spain, Mexico, Britain, and France in a struggle over the future of slavery and of republics.
Here Gregory P. Downs argues that we can see the Civil War anew by understanding it as a revolution. More than a fight to preserve the Union and end slavery, the conflict refashioned a nation, in part by remaking its Constitution. More than a struggle of brother against brother, it entailed remaking an Atlantic world that centered in surprising ways on Cuba and Spain. Downs introduces a range of actors not often considered as central to the conflict but clearly engaged in broader questions and acts they regarded as revolutionary. This expansive canvas allows Downs to describe a broad and world-shaking war with implications far greater than often recognized.
Advance praise:
"A bold and refreshing interpretation of the Civil War that challenges scholars to bring the singular story out of its narrow, hyperspecialized confines of national history, reframing it into a watershed moment shaped by hemispheric and global forces that remade the nineteenth-century Atlantic world."--Matt D. Childs
"With beautiful, elegant prose, Downs takes the old topic of the revolutionary quality of the Civil War and moves it forward in unexpected and exciting ways by putting it in conversation with the revolutionary nature of the Atlantic in the same period. This is a truly pioneering and innovative book."--Michael Vorenberg
More information is available here.

-- Karen Tani

ASLH 2019 Program Update

Nobody's perfect and things change, even with final programs of annual meetings of learned societies.  Here are some updates that have come to our attention for the meeting of the American Society for Legal History at the Boston Park Plaza this week. We'd be happy to update this post with others.

First, one of the panels in the Authors-Meet-Readers Salon: New Books in American Legal History on Friday November 22, from 1:15 to 2:40 in the Georgian Room was omitted from the program but will take place nonetheless:
Blake Emerson’s The Public’s Law: Origins and Architecture of Progressive Democracy
Chair: Daniel Ernst, Georgetown University Law Center
Commentators: Anne Kornhauser, City University of New York; Jessica Blatt, Marymount Manhattan College; Noah Rosenblum, Columbia Law School

Author: Blake Emerson, UCLA School of Law

Second, elsewhere in the Georgian Room at the same time, Richard R. John of Columbia University joins Harvard Law’s Kenneth Mack as commentators on Legal Histories of Modern American Capitalism: Anne Fleming’s City of Debtors: A Century of Fringe Finance and Laura Phillips Sawyer’s American Fair Trade: Proprietary Capitalism, Corporatism, and the “New Competition,” 1890-1940.

--Dan Ernst

Monday, November 18, 2019

Call for #ASLH2019 Guest Posts and Twitter Updates

If you are attending the American Society for Legal History meeting this week in Boston, the Legal History Blog welcomes your guest posts about any panels you attend. Examples of panel reports from previous meetings are here, here, here and here. The 2019 program is here.

Twitter updates would also be appreciated. We suggest the hashtag #ASLH2019. And do say hello if you see us at the meeting!

-- Karen Tani (with Dan Ernst and Mitra Sharafi)

Wuerth on the Constitutional Rights of Foreign Nations

Ingrid B. Wuerth, Vanderbilt University Law School, has posted The Due Process and Other Constitutional Rights of Foreign Nations, which appeared in the Fordham Law Review 88 (2019):1-58:
The rights of foreign states under the U.S. Constitution are becoming more important as the actions of foreign states and foreign state-owned enterprises expand in scope and the legislative protections to which they are entitled contract. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation of powers nor by due process. As a matter of policy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals but to deny categorically such protections to foreign states.

Careful analysis shows that the conventional wisdom and lower court cases are wrong for reasons that change our basic understanding of both Article III and due process. Foreign states are protected by Article III’s extension of judicial power to foreign-state diversity cases, designed to protect foreign states from unfair proceedings and to prevent international conflict. The Article III “judicial power” over “cases” imposes procedural limitations on federal courts that we today associate with due process. In particular, Article III presupposes both personal jurisdiction and notice for all defendants, not just foreign states. Under the Fifth Amendment, foreign states are “persons” due the same constitutional “process” to which other defendants are entitled. “Process” only reaches defendants within the sovereign power, or jurisdiction, of the issuing court, clarifying the obscure relationship between due process and personal jurisdiction for all defendants.

Examining the Constitution from the perspective of foreign states thus reveals the document in a new light, illuminating its core features in ways that advance our historical and theoretical understanding of Article III and due process. The analysis also lays the groundwork for determining whether foreign states have additional constitutional rights.
--Dan Ernst

Frier on the Roman Origins of the Public Trust Doctrine

Bruce W. Frier, University of Michigan Law School, has posted The Roman Origins of the Public Trust Doctrine, a review essay published in the Journal of Roman Archeology 23 (2019): 641-647:
Villa on the Seashore (NYPL)
The modern Public Trust Doctrine, one of the pillars of environmental law, originates in the efforts of Roman jurists to regulate the building of private villas alone the coast of Central Italy. The jurists begin by recognizing the seashore as public property and requiring public permission for private building; but this doctrine is eventually fortified by incorporating the widespread social construction of certain property as "common to all" (communes omnibus) or even "owned by all" (communes omnium). The result is the Roman creation of a sort of equitable trust in which the State owns property for the benefit of all of its citizens — broadly similar in concept to the modern Public Trust, although without the immediate environmental concern.
--Dan Ernst

ABF Fellowships Announced

[Our friends at the American Bar Foundation have sent us the following announcement.  DRE]

Doctoral and Postdoctoral Fellowship Opportunities at the American Bar Foundation

As one of the world’s leading research institutes for the empirical and interdisciplinary study of law, the American Bar Foundation (ABF) is committed to fostering the next generation of sociolegal scholars.  The ABF is inviting applications for the following opportunities:


1.    The ABF/Access Lex Institute Postdoctoral Fellowship Program in Legal & Higher Education

2.    Postdoctoral Scholar in The ABF/JPB Foundation Access to Justice Scholars Program   


1.    The ABF/Access Lex Institute Doctoral Fellowship Program in Legal & Higher Education

2.    The ABF Doctoral Fellowship Program in Law & Inequality

3.    ABF/Northwestern Univeristy Doctoral Fellowship Program in Law and Social Science

These fellowships are designed to encourage original and significant research. Fellows become immersed in an exciting and diverse intellectual community and gain access to a professional network of innovative scholars. Because the ABF’s sole focus is research, there is no teaching component to these fellowships.

In addition to working on their own research, Fellows receive mentoring from a community of leading socio-legal scholars throughout the length of the fellowship. They will participate in a series of weekly in-house seminars to get acquainted with the many facets of sociolegal research and working groups to promote professional development, such writing workshops and mock job talks.

All Fellows will work at the ABF’s office in Chicago on a full-time basis from September 2020 to August 2022 and will receive an annual stipend of $35,000 for the Doctoral and $65,000 for the Postdoctoral fellowship.

Flyers can be downloaded at the links [above.] Please share this information with members of your academic community.

The fellowships programs are featured in our recent Researching Law issue as well. For further information, please email fellowships@abfn.org or visit our website.

Sunday, November 17, 2019

Mikhail to Lead ICH Seminar on the Creation of the Constitution

[We have word from our friends at the Institute for Constitutional History and the New-York Historical Society of its latest seminar, The Creation of the Constitution, led by my Georgetown Law colleague John Mikhail.  Note the deadline of December 20!  DRE.]

Few events have had more impact on American history than the framing and ratification of the Constitution. This seminar is designed to offer students with serious interests in history, political theory, and constitutional law an opportunity to learn more about these events by examining how the Constitution was created, debated, ratified, and interpreted during the origins of the Republic. Special attention will be given to early constitutional controversies involving implied powers, including slavery, western lands, the removal power, amendments, the federal judiciary, and the creation of a national bank.

Instructor.  John Mikhail is Agnes N. Williams Research Professor and Associate Dean for Research and Academic Programs at Georgetown University Law Center, where he teaches courses in constitutional law and constitutional history. He is the author of Elements of Moral Cognition (Cambridge University Press, 2011) and has published articles and essays in a wide range of academic journals, including Stanford Law Review, Virginia Law Review, Georgetown Law Journal, Law & History Review, Ethics, Trends in Cognitive Sciences, and Jerusalem Review of Legal Studies. Professor Mikhail's research has been featured in Science, Boston Review, The National Law Journal, The Washington Post, and other media outlets. His most recent scholarship focuses on the drafting, ratification, and early interpretations of the Constitution.

Logistics.  Thursday nights, 6:00–8:00 p.m., January 16, February 6, 27, March 19, April 2, 9, 2020. The seminar will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052.

Application Process.  The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their C.V. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at MMarcus@nyhistory.org until December 20, 2019. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to MMarcus@nyhistory.org.

Additional Information.  There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

About ICH.  The Institute for Constitutional History (ICH) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New-York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.

Saturday, November 16, 2019

Weekend Roundup

  • Look who's on Twitter! It's the American Society for Legal History. Follow @ASLHTweets for the latest news about the Society and updates on next week's annual meeting (#ASLH2019).
  • Tomiko Brown-Nagin, author of the Bancroft Prize-winning Courage to Dissent, Co-Director of the Harvard Law School's Program in Law and History, and former Legal History Blogger, discusses her priorities as dean of the Radcliffe Institute for Advanced Study here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Friday, November 15, 2019

Davis on "The Exum Court and the Expansion of Individual Rights in North Carolina"

New from Carolina Academic Press: A Warren Court of Our Own: The Exum Court and the Expansion of Individual Rights in North Carolina (2019), by Mark A. Davis (North Carolina Supreme Court). A description from the Press:
In November of 1986, the North Carolina Supreme Court was at a crossroads. After virtually a century of dominance by the Democratic Party, Rhoda Billings, a Republican, had been appointed chief justice by Governor Jim Martin several months earlier. Martin had also appointed two Republican associate justices to join her on the court. These appointments resulted in a fierce battle over the next two months to determine whether the Republican Party could finally break the electoral stranglehold held by the Democrats and obtain control of the state’s highest court in the 1986 elections. Although five of the supreme court’s seven seats were on the ballot that November, the focus of the attention was on the race for chief justice between Billings and the Democratic candidate, Jim Exum, who had served on the court for the previous twelve years. After being passed over by Governor Martin in favor of Billings despite North Carolina’s longstanding gubernatorial tradition of appointing the senior associate justice to fill a vacancy for the position of chief justice, Exum resigned from the court to run against Billings.
Ultimately, the Democrats swept all five supreme court races on the ballot, ushering in Exum’s tenure as the head of the court. Over the next eight years, Exum presided over a supreme court that—despite the existence of stark differences between several of the justices with regard to judicial philosophy—issued numerous landmark decisions expanding the rights of criminal defendants, breathing new life into the declaration of liberties set out in the North Carolina Constitution, and significantly increasing the remedies available to individual plaintiffs in the areas of tort, employment, and workers’ compensation law.
While the expansion of individual rights by the United States Supreme Court under Chief Justice Earl Warren has been the subject of extensive academic commentary, very little has been written about the Exum Court. The dearth of scholarship on this subject is unfortunate because Exum’s tenure as chief justice—like Warren’s—constituted an unprecedented era of judicial boldness. 
This book is based primarily on a detailed review of the Exum Court’s body of cases and over 45 interviews with the surviving justices from that era of the court, law clerks, practitioners, and members of North Carolina’s legal academy. In addition, it draws upon contemporaneous interviews of the justices conducted between 1986 and 1995 as well as on the few existing books and articles about the members of the Exum Court and North Carolina’s transformation into a two-party state in judicial elections.
A Warren Court of Our Own: The Exum Court and the Expansion of Individual Rights in North Carolina explores in depth the pathbreaking nature of the Exum Court’s jurisprudence and the justices themselves in the hope of providing a better understanding of this unique and important period in the history of North Carolina’s highest court and how it fundamentally changed North Carolina law. 
More information is available here.

-- Karen Tani

Meyler on pardons

Bernadette Meyler, Stanford University has published Theaters of Pardoning with Cornell University Press. From the publisher:
Theaters of Pardoning
From Gerald Ford's preemptive pardon of Richard Nixon and Donald Trump's claims that as president he could pardon himself to the posthumous royal pardon of Alan Turing, the power of the pardon has a powerful hold on the political and cultural imagination. In Theaters of Pardoning, Bernadette Meyler traces the roots of contemporary understandings of pardoning to tragicomic "theaters of pardoning" in the drama and politics of seventeenth-century England. Shifts in how pardoning was represented on the stage and discussed in political tracts and in Parliament reflected the transition from a more monarchical and judgment-focused form of the concept to an increasingly parliamentary and legislative vision of sovereignty.
Meyler shows that on the English stage, individual pardons of revenge subtly transformed into more sweeping pardons of revolution, from Shakespeare's Measure for Measure, where a series of final pardons interrupts what might otherwise have been a cycle of revenge, to later works like John Ford's The Laws of Candy and Philip Massinger's The Bondman, in which the exercise of mercy prevents the overturn of the state itself. In the political arena, the pardon as a right of kingship evolved into a legal concept, culminating in the idea of a general amnesty, the "Act of Oblivion," for actions taken during the English Civil War. Reconceiving pardoning as law-giving effectively displaced sovereignty from king to legislature, a shift that continues to attract suspicion about the exercise of pardoning. Only by breaking the connection between pardoning and sovereignty that was cemented in seventeenth-century England, Meyler concludes, can we reinvigorate the pardon as a democratic practice.
Praise for the book: 

"Theaters of Pardoning brilliantly demonstrates the close link between sovereignty and pardoning in English law. Bernadette Meyler's deep knowledge, combined with her breathtaking breadth and depth, has resulted in a truly remarkable project." - Julia R. Lupton

"I read this book with real interest and genuine excitement about its interventions in the field of Shakespeare studies and the larger fields of law, literature, and political philosophy. Theaters of Pardoning is elegant, persuasive, and impressive." -Henry S. Turner

"At a time of international obsession with the power to pardon, Bernadette Meyler's Theaters of Pardoning could not be more timely or trenchant. Meyler deftly traces the genealogy of pardons through the various "theaters" in which they were performed—from the dramatic, to the legal, to the social—in seventeenth-century England. She argues that the tension internal to the traditional pardon, which excused individuals from the power of the state precisely by amplifying the sovereign's absolute power, ill suits such pardons for a liberal democracy committed to the rule of law. Meyler then reconstructs the pardon power by looking at possibilities elaborated in literature, though not yet in law—contending for a move from pardons bestowed by sovereigns to forgiveness granted by citizens to each other. As I watched the argument unfold, I was hard pressed to think of another scholar today with such a muscular command of political, legal, and literary theory.  " -Kenji Yoshino

Further information is available here.

Thursday, November 14, 2019

Queering the Collection: An HLS LIbrary Exhibit

[We have the following announcement from our friends at Special Collections at the Harvard Law School Library.  DRE]

Folks attending the ASLH meeting are encouraged to visit the HLS Library’s current exhibit, Queering the Collection: LGBTQ+ History ca. 1600-1970.  It is on view daily 9 to 5 in the Caspersen Room, fourth floor of Langdell Hall.

Pfander and Wentzel on Ex parte Young

James E. Pfander and Jacob Wentzel, Northwestern University Pritzker School of Law, have posted The Common Law Origins of Ex parte Young, which is forthcoming in the Stanford Law Review:
Few doubt the significance of Ex parte Young as a cornerstone of modern constitutional litigation. But important recent scholarship has come to question the origins and legitimacy of the Ex parte Young proceeding, the primary mode by which individuals test the constitutionality of government action. Deploying a historically-inflected methodology that we call equitable originalism, scholars and jurists have sought to define federal equity power by reference to the forms of equitable intervention that were common in the English High Court of Chancery at the time judicial power was first conferred on the lower federal courts in 1789. Such investigations have led scholars and jurists to question the power of federal courts to grant affirmative Ex parte Young relief and to issue what have come to be known as national or universal injunctions.

This Article explores the Ex parte Young action and the power of federal courts to issue affirmative constitutional remedies in its name. It shows that equity’s traditional reluctance to intervene in public law matters was driven by the primacy and perceived adequacy of the common law writs—mandamus, certiorari, and prohibition—as tools for the judicial oversight of the eighteenth century administrative state. Over time, however, courts in the United States came to view the common law writs as imperfect modes of oversight. Displaying its customary flexibility, equity adapted. Ex parte Young confirms a nineteenth century transition away from the common law writs and toward the equitable injunction as the primary mode of judicial control of administrative action. Equitable originalism could rule out such adaptation, returning equity to its private law eighteenth-century form and undermining modern constitutional remediation.
--Dan Ernst

O'Callaghan, "Alfonso X, the Justinian of His Age"

Cornell University Press has published Alfonso X, the Justinian of His Age: Law and Justice in Thirteenth-Century Castile (2019), by Joseph F. O'Callaghan (Fordham University). A description from the Press:
In this magisterial work, Joseph O'Callaghan offers a detailed account of the establishment of Alfonso X's legal code, the Libro de las leyes or Siete Partidas, and its applications in the daily life of thirteenth-century Iberia, both within and far beyond the royal courts. O'Callaghan argues that Alfonso X, el Sabio (the Wise), was the Justinian of his age, one of the truly great legal minds of human history.
Alfonso X, the Justinian of His Age highlights the struggles the king faced in creating a new, coherent, inclusive, and all-embracing body of law during his reign, O'Callaghan also considers Alfonso X's own understanding of his role as king, lawgiver, and defender of the faith in order to evaluate the impact of his achievement on the administration of justice. Indeed, such was the power and authority of the Alfonsine code that it proved the king's downfall when his son invoked it to challenge his rule.
Throughout this soaring legal and historical biography, O'Callaghan reminds us of the long-term impacts of Alfonso X's legal works, not just on Castilian (and later, Iberian) life, but on the administration of justice across the world.
A sampling of advance praise:
"Joseph F. O’Callaghan has composed a comprehensive text for students and scholars interested in the legislation of Alfonso X el Sabio, a text that is valuable for neophytes and seasoned investigators. One is awed by O’Callaghan’s magisterial command of the primary sources and the secondary literature." -- Jerry Craddock

"Alfonso X, the Justinian of His Age is a fantastic, erudite, and necessary book. Joseph F. O'Callaghan has magnificently crafted a thorough piece of scholarship." -- Jesus R. Velasco
More information is available here. You can listen to an interview with Professor O'Callaghan about the book here, at New Books Network.

-- Karen Tani

Wednesday, November 13, 2019

CFP: North American Labor History Conference 2020

[We have the following CFP.  DRE]

Unverfehrt on the Saxon "Clarification Review" from the 14th to the 17th Century

[We have the following announcement of a new publication from our friends at the Max Planck Institute for European Legal History.  DRE.] 

Volker Unverfehrt, Die sächsische Läuterung. Entstehung, Wandel und Werdegang bis ins 17. Jahrhundert (Studien zur europäischen Rechtsgeschichte 317), Frankfurt am Main: Vittorio Klostermann 2019, X, 328 S., ISBN 978-3-465-04388-1.

In addition to the appeal, the Läuterung (clarification review) was a further ordinary legal remedy of civil proceedings in early modern Saxony. The over 500-year history of this legal institute only came to an end with the enactment of the Reichsjustizgesetze (Reich Justice Laws) 1877/1879 and then was promptly forgotten. Given the fragmentary state of research, Volker Unverfehrt reconstructs – closely based on the sources – the development of this legal instrument in his book and shows that earlier forms of leuteratio in medieval German legal practice point to their use as a mere clarification of judgement. Later, the institution of Läuterung became established in the layman's verdicts (used to decide interpretational disputes regarding a first verdict) before it transformed into a clarification review against court rulings on the same jurisdictional level toward the end of the 15th century. This work examines the reasons for both the change and longevity of Läuterung from the 14th to the 17th century and represents a stimulating contribution to the history of the Saxon legal space (Rechtsraum).  More.

Legal History Through a Rear View Mirror 2

Back in the later 1970s, when I was beginning work on what became my first book, I had a
revelation. At the New-York Historical Society, in the papers of several merchants, I found and began reading the “waterlot grants” that the eighteenth century Corporation of the City of New York (basically the city government) negotiated with those merchants. Through those complex deeds, the city offered shoreline that it owned (according to its corporate charter), in exchange for commitments on the part of merchants to construct “public” wharves and slips and the streets that bordered the shore, to build the infrastructure of a mercantile city. Such “waterlot grants,” which it turned out filled many pages of the municipal records, as well as the private papers of merchants, allowed me to explore how an early modern corporation “worked.”

In doing so, and in constructing a narrative founded on the discontinuity between the corporate history I was studying and modern corporate histories, I built on historiographical insights that came from several literatures that I had been reading into. My readings were ones characteristic of a 1970s graduate student who wanted to become an American legal historian. That is, I drew from English municipal histories, from some of the classics of English legal history (particularly my reading of Frederick Maitland), from my critical engagement with the regnant texts in American corporate history at that time, from the growing literature on civic republicanism, and from my crude understanding of Foucault’s arguments in Les Mots et Les Choses (which had not long before appeared in English as The Order of Things). I was also trying to make space for myself within a legal historical field that I felt was defined by the terms articulated by Morton Horwitz (my teacher), in his first Transformation of American Law.

I spent many hours reading and rereading those waterlot deeds. I wrote many pages that
unpacked much of the arcane property law doctrine that waterlot grants incorporated. In the end, I managed to put together what at the time felt to me like a satisfying portrait of how a waterlot grant exemplified early modern governance. I argued that corporate leaders were solving a fundamental problem of the time: about how to achieve necessary public purposes — like building wharves and docks for a seafaring city and also street construction and cleaning —without either a municipal workforce or a capacity to levy taxes. By exchanging waterlots for services and development by individual proprietors, the corporation enlarged the borders of the city, and it laid the foundation for what would become a global port, a world city.

In those days, I relentlessly situated those waterlot grants within the history of the corporation, implicitly situating the “municipal corporation” of New York City within the history of the business corporation. My attention was always focused on the public-private split, and little else. Which is not really surprising, given how much attention the public-private split held at that time in what I was reading, in the contemporary and argumentative field of legal history.

At various times since then, I have wondered about what I did not attend to. At the time I thought little about the actual shipping that those merchants who received waterlot grants engaged in. The commercial life of the city I left to others, who would explore what the merchants actually did with their properties. I thought about the waterlots through the lens of a certain kind of 1970s political economy, what might be called an “older” history of capitalism, but not through the lens of the transAtlantic slave trade. And not through what later would be called the “new” history of capitalism. And I left the environmental impacts of reclaiming land from the rivers and from the sea to others, to those who were plying the then new field of environmental history.

Still, I thought I had worked through all the ways that those waterlot grants exemplified
eighteenth century private property law. And I had read them closely for those purposes.
And yet, now I find myself reading Debjani Bhattacharyya’s new book on ecology and Calcutta, Empire and Ecology in the Bengal Delta. And that offers a new revelation. Back in the late 1970s it never occurred to me that watery spaces are a very odd form of property, if property at all. It never occurred to me, though it should have, that both the merchants and the members of the corporation (who often were the same men) were engaged in a difficult and imaginative enterprise, of making land from water. I never really thought about the watery spaces that surrounded the city as a commons. Or if I did, implicitly I might have assumed (in a quasi Turnerian way) that those watery spaces were “empty lands” awaiting settlement and colonization by “the city.” And I probably assumed, as legal historians often do, that there was a body of private law — property law — that could be drawn out of medieval and early modern England to be applied by the legally adept commercial leaders of the tiny colonial city of New York. English property could be naturally and unproblematically plastered on to the space that was, or would be, the waterlot. Law was a known and eminently useful set of resources.

But from Bhattacharyya, I learn that watery places are something more than space waiting for an expanding city. Her book “maps the transformation of what may be called soaking ecologies into a political economy of property from the late eighteenth century onward. This process of transformation happened through a braiding together of two registers of colonial power. . . One was the legal register where the ecologically variable entities of the marshes and bogs were literally translated into landed property through naming, classifying[,] and arbitrating ownership.

The other technological register consisted of the operations of drying and draining the landscape.” In addition she theorizes brilliantly about the ways that the process of making watery space into land is followed by processes of “forgetting,” that make the new, the reclaimed, land look as it was always merely landed property, and nothing else.

The conversion of watery places into land is and was arduous legally, just as it was physically difficult. To produce land — the draining and drying of land — required creative and innovative lawyering. There were models in the available legal past (I remember looking at deeds used for wharves built on early modern English cities. And there was, though I didn’t attend to them, many models available from Dutch and Flemish history). But turning water into land was (always? inevitably?) a bespoke process.

There is so much I would do differently today, if I chose to write once again about New York’s waterlot grants. Bhattacharyya’s book shows some of the ways I would do so. In particular, I would read those deeds differently. They needed different contexts. They needed the kind of imaginative work that Bhattacharyya’s book exemplifies to reveal what lay beneath (or in the water). They needed attention to the legal processes involved in draining and drying. And they needed attention to the work of forgetting.

I write this not apologetically. Rather, it is to remind myself (and others) that we always write
within a historically given disciplinary and interdisciplinary context. And those contexts change. We learn different things. We attend to what seems “right” at the time. Some older ways of doing things fall by the wayside. Others reappear. We are not prisoners of our time, but we live in a historical moment. And we live with constrained historical imaginations.

--Dirk Hartog

Tuesday, November 12, 2019

Menkel-Meadow on Negotiating the US Constitution

Carrie Menkel-Meadow, University of California, Irvine School of Law and Georgetown University Law Center, has posted Negotiating the American Constitution (1787-1789) Coalitions, Process Rules, and Compromises, in Landmark Negotiations from Around the World: Lessons for Modern Diplomacy, ed. Emmanuel Vivet (Intersentia 2019):
This essay describes the multi-party, multi-issue negotiations of the American Constitutional Convention in Philadelphia (1787), using the lens of negotiation theory. Expert process leadership by George Washington, James Madison and Benjamin Franklin, with deliberation about process rules (e.g. speaking rules, confidentiality) and decision rules (voting and reconsideration, packaging) as well as the use of committees and task groups to facilitate both cross-geopolitical and issue coalitions and specialization, rather than Committee of the Whole (plenary) meetings for all of the deliberations, allowed the negotiation, drafting and (later!) ratification of a monumental political document, with dubious political (and moral) legitimacy at the time of its completion, but considerable robustness, with a large number of amendments (including the “afterthoughts” of the Bill of Rights) over time. While there has been much replication of the text of the US Constitution (in later enacted Constitutions by other countries), not enough consideration has been given to the importance of process choices in comparative political theory (cf. Jon Elster’s work). This essay attempts to illustrate the use of “applied history” in understanding complex diplomatic and political negotiations, by using current theories to explore past behavior.
--Dan Ernst

Elsewhere: McCulloch and Slavery Democracy & Empire

Two series of posts elsewhere in the blogosphere this week are noteworthy for legal historians. Balkinization is hosting a symposium on David Schwartz’s new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (Oxford University Press, 2019).  Contributors are Mark Graber (Maryland), Mark Killenbeck (Arkansas), Kurt Lash (Richmond), Sanford Levinson (Texas), John Mikhail (Georgetown), Christina Mulligan (Brooklyn), Victoria Nourse (Georgetown), Richard Primus (Michigan), and Franita Tolson (USC).

And over at U.S. Intellectual History Blog, Holly Brewer (Maryland) has started a series of guest posts, 1619: Racial Slavery, Representative Democracy, and…Empire?

--Dan Ernst

McDaniel, "Sweet Taste of Liberty: A True Story of Slavery and Restitution in America"

Oxford University Press has published Sweet Taste of Liberty: A True Story of Slavery and Restitution in America (2019), by Caleb McDaniel (Rice University): A description from the Press:
Born into slavery, Henrietta Wood was taken to Cincinnati and legally freed in 1848. In 1853, a Kentucky deputy sheriff named Zebulon Ward colluded with Wood’s employer, abducted her, and sold her back into bondage. She remained enslaved throughout the Civil War, giving birth to a son in Mississippi and never forgetting who had put her in this position.
By 1869, Wood had obtained her freedom for a second time and returned to Cincinnati, where she sued Ward for damages in 1870. Astonishingly, after eight years of litigation, Wood won her case: in 1878, a Federal jury awarded her $2,500. The decision stuck on appeal. More important than the amount, though the largest ever awarded by an American court in restitution for slavery, was the fact that any money was awarded at all. By the time the case was decided, Ward had become a wealthy businessman and a pioneer of convict leasing in the South. Wood’s son later became a prominent Chicago lawyer, and she went on to live until 1912.
Sweet Taste of Liberty is an epic tale of a black woman who survived slavery twice and who achieved more than merely a moral victory over one of her oppressors. Above all, it is a portrait of an extraordinary woman and a searing reminder of the lessons of her story as Americans continue to debate reparations for slavery.
Advance praise:
"Henrietta Wood’s quest to be made whole by seeking reparations from the man who kidnapped and re-enslaved her is a heart-tugging page-turner. With fidelity to the historical record and insight into the emotions that run through it, Caleb McDaniel’s Sweet Taste of Liberty tells how enslaved women lived along the jagged lines that divided house and field, city and countryside, North and South, and slavery and freedom. Her triumph is a tribute to one woman’s persistence, courage, legal savvy, and an enduring devotion to family—its lessons for us are timeless."—Martha S. Jones
"This is one of the best books I have ever read. Using an extraordinary archival discovery, Caleb McDaniel expertly weaves together the life of Henrietta Wood, a woman enslaved in Kentucky and Louisiana, freed in Ohio, enslaved again, this time illegally, in Mississippi and Texas, and then freed again by the Civil War. McDaniel narrates Wood’s life in both slavery and freedom, and her determined pursuit of justice and reparations. More than simply a biography, here is a work of profound analysis, layered with a deep knowledge of slavery, emancipation, and the law. It raises the most profound questions about the debt that the United States owes to the people whose unfree labor in large part constructed it. Sweet Taste of Liberty is a masterpiece."—Gregory P. Downs
More information is available here. You can listen to an interview with Professor McDaniel about the book here, at the New Books Network.

-- Karen Tani