Thursday, February 28, 2019

Jarvis's "Gambling under the Swastika"

Robert M. Jarvis, Nova Southeastern University Shepard Broad College of Law, has published Gambling Under the Swastika: Casinos, Horse Racing, Lotteries, and Other Forms of Betting in Nazi Germany (Carolina Academic Press):
Although much has been written about the Nazis, one aspect of their rule has been all but overlooked: gambling.  While philosophically opposed to gambling, in practice the Nazis relied on gambling to prop up Germany’s economy, earn hard currency, and wage war.  In this engaging new work, Professor Robert M. Jarvis (Nova Southeastern University) presents the first comprehensive look at gambling in the Third Reich.

After summarizing Germany’s pre-Nazi gambling laws, Jarvis describes how, within months of coming to power, the Nazis re-opened Baden-Baden’s famed casino (shuttered since 1872), took control of the country’s horse tracks, and encouraged citizens to play the lottery (to fund social welfare programs).  With the advent of war, the Nazis’ use of gambling increased.  While in some countries (such as the Netherlands) the Nazis used gambling to curry favor with the local citizenry, in others (such as Poland) gambling became another means of waging war.

Jarvis also takes readers inside the Nazis’ concentration and prisoner of war camps, where illicit gambling flourished.  Other subjects covered include the Nazis’ treatment of compulsive gamblers, their suppression of dog racing (due to the country’s progressive animal welfare laws), the use of gambling to carry out espionage missions, and the Nazis’ special rules for gambling by Jews.

Relying on an impressive wealth of domestic and foreign sources, Jarvis has crafted an important new account of the Nazi regime. The book includes exhaustive notes, a comprehensive bibliography, a detailed index, and 45 illuminating photographs.

CFP: Contribution of the Legal Services of the European Institutions to European Law

[We have the following announcement of a Call for Papers for the conference, “The Contribution of the Legal Services of the European Institutions to European Law."]

‘Legal History of the European Union’ is a recently established research field at the Max Planck Institute for European Legal History at Frankfurt. The MPIeR attempts to situate the history of European law in a longue durée perspective, emphasizing the comparative dimension and taking into account the broader political and socio-economic context.

Among its activities the research group organizes an annual conference. The first conference in 2017 explored the Treaties of Rome, and the focus of the 2018 conference was on the biographies of key personalities contributing to the legal dimension of European integration.  A follow-up conference, entitled ‘The Contribution of the Legal Services of the European Institutions to European Union Law’, will be held on 18-19 June 2019. It will scrutinize the history of European law with a distinct focus on the contribution of the legal services of the European Institutions to European Union law from its origins until the present day.

A call for papers will be issued on March 1st 2019.  For further information please see the official announcement on our Homepage.

Archive Fever, Part 3: Favorite Finds



I’ve spent most of my time as a guest blogger so far talking about archives, in one way or another.  That’s probably fitting, since it was in the process of reading my way through thousands of court records in the Cape Town archives that I began to think of myself as a legal historian.  I though it would be fun to close out my month with a short paean to two of my favorite archival sources: one from my first book, and one from the project I’m currently working on.

But first, a digression: in response to some of the issues I discussed in my first post, I've been working with several other scholars of African legal history to put together a symposium to coincide with the meetings of both the ASLH and the ASA, which will be held in Boston on the same weekend next year.  If that's of interest to you, the CFP will appear here soon, or you can email me directly for more information.  

Now, back to the archives. The first source that I want to describe appears in chapter two of Colonizing Consent.  It’s a court case, but one that fell totally outside the legal frameworks of the colonial court in which it was heard.  The defendant, George, was charged with masturbating into his neighbor’s milk jar.  When I encountered this case in the archives, my first reaction was relief; it was a welcome respite from the relentless narration of violence and trauma that filled most of the criminal case files I had been reading.  Yet I quickly realized how revealing my reaction was.  The magistrate who heard the case was as bemused as I initially had been, noting that “the prisoner has committed no offense against our law and will have to be discharged.”  Yet the allegation “caused the greatest horror” to local residents, and the milk jar’s owner claimed that “so enormous and heinous is this offense under the law, that death alone can expiate it, and that would have been the offender’s punishment if they were still under the power of their Chiefs.”  He understood it as a form of witchcraft, accusing George of “causing the death of our children and cattle.”
To me, this case exemplifies the capacity of colonial court records to illuminate social and cultural worlds beyond the colonial state itself.  George’s actions broke no colonial law, but his neighbors nonetheless showed up at the court to demand redress—and, in doing so, left a rich archival trail.  It reminds me, too, to take seriously the possibility that sexual violence could do harm in ways that exceeded physical or psychic trauma.  If the desecration of an inanimate object risked bringing death to the children of the house, so too could rape do harm not only to individual but also to collective health. Finally, this is one of the anecdote I tell when asked about queer sex in the colonial Eastern Cape.  Sodomy was illegal under colonial rule, but I found few prosecutions involving African men.  Those that I did find either alleged nonconsensual sex or took place in spaces of intense colonial surveillance, such as gaols.  It is always difficult to interpret archival silences, but George’s encounter with the milk jar made it clear to me that the African communities of the Eastern Cape did not hesitate to bring spiritually harmful forms of sex to the attention of colonial authorities, even when they weren’t illegal under colonial law.  By extension, it suggests strongly Africans in the Eastern Cape did not consider same-sex erotic encounters to be harmful, or deserving of punishment.

The second source is not a court record but an obituary.  I found Andrew Gontshi’s obituary several years after I became interested in his career.  Gontshi was one of a group of black “law agents” in the Eastern Cape, and he represented clients in several of the cases I wrote about in Colonizing Consent.  I was intrigued by the existence African law agents, who were licensed by the colonial state but had no formal legal qualifications.  I quickly became even more intrigued by Gontshi himself when I started tracing his career through the colonial archives.  He was a prickly character in the courtroom, who had a combative relationships with a series of colonial magistrates.  
When I found Gontshi’s obituary, it crystalized my sense of Gontshi’s temperament, and of the relationship between his courtroom style and the broader political scene of the 19th century Eastern Cape.  It describes Gontshi as having “got little sympathy from the Europeans, and asked for none. He stood on his own legs and….defied his enemies white or black to trample him down.” Although “his habit of appealing that disconcerted the bench and let to hot passages of arms…and even to threats of suspension and other dire punishments,” Gontshi’s legal career provides a “creditable example of what an independent [Xhosa] gentleman and scholar could make of those talents with which nature endowed him.”  
Gontshi’s obituary is not always accurate.  Yet, if it’s wrong in the facts, it’s true in the spirit, and it has shown me that the political significance I saw in Gontshi’s courtroom practice was also visible to his contemporaries.

I hope you enjoyed reading these at least some small fraction as much as I enjoyed finding them.  For all that we know to be critical of the seductions of the archive—and particularly the colonial archive—it’s still the best part of my job. And with that, I’ll say goodbye!  Thanks to all of the editors of the Legal History Blog for inviting me to post here this month—and, more generally, for the work that goes into keeping this space available for the community of legal historians.  

(Sources:  Case of George, 15 November 1887, box 1/1/321, Records of the Solicitor General’s Office, Western Cape Provincial Archives and Records Service; Obituary of Andrew Tebeka Gontshi, Christian Express, 2 May 1904.)

Scholar Spotlight: Tessa Leesen

Our Scholar Spotlight series continues, today featuring Tessa Leesen, Tilburg University. In our earlier interviews, we noted that only three of the fifty contributors to the recently published Oxford Handbook of European Legal History were women. Like Women Also Know History, this Scholar Spotlight series aims to showcase female scholars and their work. Its special focus is scholars of European legal history. 


Tessa Leesen is lecturer in the field of legal history and vice-dean at University College Tilburg of Liberal Arts and Sciences at Tilburg University in the Netherlands. She lives in Belgium.


Alma maters: BA History, University of Leuven, MA History, University of Leuven, PhD Roman Law, Tilburg University.

Fields of interest: legal history, Roman law, history and rhetoric.

Describe your career path. What led you to where you are today? The Classical World has always sparked my interest. By studying Latin and Greek in secondary school, I was able to read the Iliad and Odyssee of Homer, Cicero’s political and judicial speeches and the conquest of Gaul by C. Julius Caesar, who famously claimed that of all Gauls the Belgians are bravest,  in the original language. My choice of university studies was crystal clear from the beginning. I went to study history, majoring in ancient history, at the University of Leuven. My graduate research focused on the intrastate relations between Sparta, Athens and Thebes in the aftermath of the Peloponnesian War. After finishing my academic teacher’s training at University of Leuven, I embarked on my PhD at Tilburg University in the Netherlands to examine the impact of classical rhetoric on the development of Roman law. Already during my PhD, I started to teach history and legal history classes. Afterwards, I became program director of the major law in the Bachelor’s program of Liberal Arts and Sciences at Tilburg University. That position paved the way for my current position as vice-dean of University College Tilburg.

What do you like the most about where you live and work? Unlike my colleagues at UC Tilburg, who all live in one of the magnificent historical city centers the Netherlands have to offer, I live in a small village on the countryside in the midst of plantations of fruit trees. However, I love to be surrounded by nature and the tranquility of the region, even though it means that I have to commute more than most of my colleagues.
What I love about my work is the opportunity it offers to continue to read and learn more about historical developments in the field of law, my colleagues, who challenge and inspire me, and the fact that I can (modestly) contribute to the intellectual formation of generations of students.

What projects are you currently working on? Currently, I am coordinating an educational project, for which I received NWO funding: ‘The Resilience Project: Fail, Fail Again, Fail Better’. This project aims to enhance the resilience of our students at the University College of Tilburg, who struggle with stress and the high demands of academia, to normalize failure as an integral part of any learning process and of life itself and to critically reflect  on the importance attached to individual competitiveness in education and society.

Have your interests evolved since finishing your studies? Doing my PhD in the field of Roman private law and becoming program director of the major law in the Liberal Arts and Sciences program sparked my interest for the field of law.

What’s the most fascinating thing you’ve ever found at [the archives/in your primary sources]? When analyzing the school controversies between the Sabiniani and the Proculiani as described in the Institutiones of Gaius, I was able to demonstrate that the jurists/heads of the schools made use of rhetoric and of the argumentative theory of topoi (as described in Cicero’s Topica) to find adequate arguments in support of their view. Since the jurists used rhetoric to construct specific argumentations for each separate case, I was able to refute the overall assumption in modern literature that there is no coherent theory behind the positions of the two schools.

Is there an article, book, film, website, etc. that you would recommend to LHB readers? A beautifully written and compelling book is ‘Congo: The Epic History of a People’, written by the historian David van Reybrouck. The book traces the history of the Congolese people from pre-colonial times to Belgian presence in the region, when the Belgian king Leopold II turned the huge piece of African land into his personal property and Belgium subsequently colonized the territory, the struggle for independence, Mubutu’s dictatorship and beyond. Van Reybrouck manages to write a page-turner on the topic, evoking feelings of astonishment and indignation amongst his readers.

What have you found to be the most surprising thing about academic life? I found out that academic life is an enduring quest for truth that generations of scholars have participated in, but that continuously questioning truth and knowledge are essential parts of that quest. 

Wednesday, February 27, 2019

Research Travel Grants in California Legal History

[We have word from the California Supreme Court Historical Society of its program of Research Travel Grants in California Legal History.]

The California Supreme Court Historical Society (“the Society”) has established a Research Travel Grant, funded by the generosity of California Supreme Court Justice Kathryn Mickle Werdegar (Ret.) and David M. Werdegar, M.D., in honor of Selma Moidel Smith, Editor-in-Chief of California Legal History.

Pursuant to this grant, the Society will defray the expenses of graduate students and law students at accredited U.S. universities and law schools who are researching California legal history for purposes of preparing an article or other paper on that subject and need to travel to access archival materials related thereto. It is expected that most travel will be to or within California, but exceptions will be made in the case of relevant archival materials in other locations. The Society will award individual grants to be used to defray the cost of travel and/or accommodation in amounts typically no more than $700 per project, with a maximum of $1,000 in special cases.  Grants will be awarded on a rolling basis until such time as the fund for the grant is exhausted.

Grant applications must include the following information:

(1) A brief description of the project that necessitates the travel. This description must identify the specific archival collection or collections that the grantee wishes to access;

(2) An itemized estimate of the expenses associated with the research trip, which reflect economical choices of travel and accommodation;

(3) A statement whether the applicant intends to enter the resulting paper in the Society’s Selma Moidel Smith Student Writing Competition in California Legal History;

(4) A copy of the applicant’s curriculum vitae; and

(5) A brief letter of recommendation from a person familiar with the applicant’s scholarly work.

Applicants should send materials by e-mail or conventional mail to:

Professor Reuel Schiller
University of California
Hastings College of the Law
200 McAllister Street
San Francisco, CA 94706
schiller@uchastings.edu

Grant applications will be expeditiously reviewed by a three-person review committee of faculty from differing institutions and must be approved by a unanimous vote.  Applicants are encouraged to enter the Society’s Selma Moidel Smith Student Writing Competition in California Legal History and are also advised that publishable works resulting from this grant will be considered for inclusion in the Society’s annual journal, California Legal History.

Reminder to Jr Scholars -- Call for Submissions: ASLH Preyer Award

[We are re-upping the following announcement of an important junior paper competition of the American Society for Legal History.  Please note the submission deadline, which is March 15, 2019, earlier than in previous years.]

Submissions are welcome on any topic in legal, institutional and/or constitutional history. Early career scholars, including those pursuing graduate or law degrees, those who have completed their terminal degree within the previous year, and those independent scholars at a comparable stage, are eligible to apply. At the annual meeting of the Society two early career legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. While papers simultaneously submitted to the ASLH Program committee are eligible, Preyer Award winners must present their paper as part of the Preyer panel and will be removed from any other panel. 

Submissions should be a single MS Word document consisting of a complete curriculum vitae, contact information, and a complete draft of the paper to be presented. Papers should not exceed 50 pages (12 point font, double-spaced) and must contain supporting documentation. In past competitions, the Committee has given preference to draft articles and essays, though the Committee will also consider shorter conference papers, as one of the criteria for selection will be the suitability of the paper for reduction to a twenty-minute oral presentation. The deadline for submission is MARCH 15, 2019.  The two Kathryn T. Preyer Scholars will receive a $500 cash award and reimbursement of expenses up to $750 for travel, hotels, and meals. Each will present the paper that s/he submitted to the competition at the Society's annual meeting. The Society's journal, Law and History Review, has published several past winners of the Preyer competition, though it is under no obligation to do so.

Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to early career legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two early career legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. The generosity of Professor Preyer's friends and family has enabled the Society to offer a small honorarium to the Preyer Scholars and to reimburse, in some measure or entirely, their costs of attending the meeting. The competition for Preyer Scholars is organized by the Society's Kathryn T. Preyer Memorial Committee.

Please send submissions by March 15, 2019 to Laura Kalman, Chair, Preyer Award Committee, University of California, Santa Barbara, kalman@history.ucsb.edu.  She will forward them to other committee members.

CFP: Law & Environment in the Indian Ocean World

[We share the following announcement. The deadline for submissions is May 15, 2019.]

Call for Papers:

Ordering the Anthropocene: Law & the Environment in the Indian Ocean World

A workshop convened by Debjani Bhattacharyya (Drexel University) and Laurie Wood (Florida State University)

4-5th October 2019

Hosted by Drexel University, with the generous sponsorship of the American Society for Legal History & Drexel University


 What can historians of law achieve from engaging with their colleagues studying environmental changes over time? How have emerging regulatory regimes (imperial, property-oriented, maritime, medical, etc.) joined the domains of science and law in new ways? And how can legal historians retool their methods to study deep histories of landscape transformations and climate? These questions are especially pertinent for the Indian Ocean region, where these concerns have both past and contemporary relevance: e.g. rising sea levels in the Maldives and Andaman Islands; coastal erosion and disputes over new-land formation along the littorals of Bay of Bengal; island-building in Singapore (with sand from Gulf states); disaster relief following the 2004 tsunami and earthquake, which especially affected Indonesia and Malaysia; food security around the Horn of Africa; and some of the world’s busiest shipping routes.


Time shapes the traffic in what constitutes truth in these two broad disciplinary arenas. Legal historians typically analyze cases, each with a specific lifespan of years or decades. Environmental phenomena, by contrast, often span centuries or even geological epochs. We propose a workshop to address the temporality of expertise and evidence which will bring legal historians whose disciplinary focus is bounded by the temporality of a case, together with environmental historians and historians of science who are increasingly doing histories of deep-time. For instance, when legal historians study regulatory regimes of intellectual property to material cultures. It works with an anthropogenic lifespan: copyrights, patents, objects, labor, commodities. Whereas environmental phenomenon, which are increasingly entering regulatory domains, work with long timescales spanning geological, seasonal and solar temporalities. As states are beginning to exert regulatory powers increasingly in legal and scientific regimes, the legal timescale of a case is getting entangled in deep historical timescales.

We invite abstracts for an exploratory workshop, where we will discuss articles/chapters in progress and which have not been submitted for publication. Articles which are in preliminary review stages are welcome, but not those in galley proofs. The purpose of the workshop is to receive comments and feedback on works in progress with the possibility for incorporating the discussions of the workshop. The presenters will be paired with senior discussants who will offer feedback on their articles/chapters and then open it up for discussion. Presenters will be required to submit their articles/chapters of 8000 words and no more than 12,000 words by 30 August 2019. All presenters and discussants will be required to read the articles beforehand which will be made available through a secure dropbox account. The purpose of the workshop is to:
  • Bring together senior and junior scholars of law and/or environment who are working in the newly-vibrant field of Indian Ocean World history.
  • Generate a methodological conversation between legal historians and historians of environment and science anchored on the category of time and how differing notions shape practices of evidence selection, gathering and testimony in the court and laboratory.
The workshop will consist of 4 panels, with 2 presenters in each panel. We will pair legal historians with historians of environment to explore how common terminology around evidence, witness, reason, expertise is affected by concepts of time that are distinct in each discipline. We welcome papers exploring the following questions broadly:
·         Where does law/do legal regimes collide with the material world?
·         Where/when/how/why do natural phenomena become entangled in ordering regimes?
·         How do these relationships (re)configure the human as social (e.g. relational, hierarchical, vocal) and material (e.g. embodied, constrained by lifespan, etc.)?

Application Instructions

Interested applicants should submit a 300-word abstract and short c.v. to the convenors by 15 May 2019: Debjani Bhattacharyya (db893@drexel.edu) and Laurie Wood (lmwood@fsu.edu ). Article-length papers (8,000-10,000 words) will be due for circulation among participants and invited commentators by 30 August 2019. Domestic airfare, accommodation, and most meals will be provided thanks to support from the American Society for Legal History and Drexel University.

Tuesday, February 26, 2019

de la Rasilla on Quintiliano Saldaña Garcia-Rubio

Ignacio de la Rasilla, Wuhan University Institute of International Law, has posted International Criminal Justice as Universal Social Defence – Quintiliano Saldaña (1878-1938), which is forthcoming in The Dawn of a Discipline: International Criminal Justice and its Early Exponents, ed. Immi Tallgren & Frédéric Mégret (Cambridge University Press, 2019):
Quintiliano Saldaña Garcia-Rubio (1878-1938) was one of the leading proponents of ‘legal pragmatism’ in European criminal law circles in the interwar period and the author of the first course on international criminal justice delivered at The Hague Academy of International Law in 1925. This chapter examines the three main stages in Saldaña’s polyhedral intellectual life. The first part surveys Saldaña’s formative years and his early academic professional development, examining the influence of Franz von Liszt’s Marburg School of Criminal Law on his academic interests and professional career until the end of the First World War. The second part examines Saldaña’s seminal theory of ‘universal social defence’ and his 1925 Hague Academy course, La justice pénale internationale, which included one of the first projects for an international criminal code. It also reviews Saldaña's legislative contribution to the polemical 1928 Spanish Criminal Code project, which is widely considered an example of a proto-fascist criminal code. The third part follows Saldaña’s career during the Second Spanish Republic, surveying his criminal law and criminology work in the development of his theory of ‘legal pragmatism.’ It also revisits his engagement with the mid-1930s international legal debates on terrorism in the framework his contribution to the works of the International Bureau for the Unification of Criminal Law. The conclusion revisits the mysterious circumstances of Saldaña’s death during the Spanish Civil War and the dark legacy of his legal thought on the criminal law system of General Franco’s regime in Spain.

Jones-Rogers, "They Were Her Property: White Women as Slave Owners in the American South"

New from Yale University Press: They Were Her Property: White Women as Slave Owners in the American South, by Stephanie E. Jones-Rogers (UC Berkeley). A description from the Press:
Bridging women’s history, the history of the South, and African American history, this book makes a bold argument about the role of white women in American slavery. Historian Stephanie E. Jones-Rogers draws on a variety of sources to show that slave-owning women were sophisticated economic actors who directly engaged in and benefited from the South’s slave market. Because women typically inherited more slaves than land, enslaved people were often their primary source of wealth. Not only did white women often refuse to cede ownership of their slaves to their husbands, they employed management techniques that were as effective and brutal as those used by slave-owning men. White women actively participated in the slave market, profited from it, and used it for economic and social empowerment. By examining the economically entangled lives of enslaved people and slave-owning women, Jones-Rogers presents a narrative that forces us to rethink the economics and social conventions of slaveholding America.
A few blurbs:
“They Were Her Property is nothing less than phenomenal. It shatters many sacred cows about women’s history and legal history and shows how slaveowning women skirted the limitations of gender norms and statutory law in ways that have been previously underestimated. The findings are buttressed by reading anew a rich and prodigious body of primary sources. This is a must read.”—Tera W. Hunter 
"They Were Her Property casts brilliant, unsparing light on the history of slaveholding women and the terrible oscillation of domination and dependence that defined identities—as wives, as mothers, as mistresses—purchased in the slave market."—Walter Johnson
More information from the Press available here.

The book is already getting some great media coverage. Here's a link to an interview with Professor Jones-Rogers about the book. Here's a recent review from Slate, by Rebecca Onion.

Scholar Spotlight: Amalia Kessler

Featured today in our Scholar Spotlight series is Amalia Kessler, Stanford University. In our earlier interviews, we noted that only three of the fifty contributors to the recently published Oxford Handbook of European Legal History were women. Like Women Also Know History, this Scholar Spotlight series aims to showcase female scholars and their work. Its special focus is scholars of European legal history. 

Amalia is a professor at Stanford University.  She lives in Los Altos, California.


Alma maters: A.B. (History and Literature), Harvard College, 1994; M.A. (History), Stanford University, 1996; J.D., Yale Law School, 1999; Ph.D. (History), Stanford University, 2001.  

Fields of interest: history of commercial law, market culture, and capitalism; history of civil procedure and alternative dispute resolution; comparative legal history.

 Describe your career path. What led you to where you are today? I was always fascinated by history—perhaps in part because of my Romanian-born grandmother’s many stories about life in Europe before and during the Second World War.  I ended up focusing on history in college—most especially that of Old Regime France.  But as we studied the French Revolution, it became increasingly clear that, while typically described in political terms, the revolution was at least as much about law.  Law was the language and institutions through which power and politics were actually operationalized—and I wanted to know more.  So I pursued both a doctoral degree in history and a law degree.  After completing my education, I clerked for a federal appellate judge and spent a few years working as a trial lawyer in the U.S. Department of Justice.  I then began my academic career at Stanford.

What do you like the most about where you live and work?   The Mediterranean climate, the access to great fruit and vegetables, the proximity to both urban and natural landscapes, the cultural diversity, and the myriad intellectual riches of Stanford itself.

 What projects are you currently working on?  I am exploring the early twentieth-century embrace of arbitration and conciliation, examining its institutional, rather than just legislative roots.  Challenging the prevailing narrative which locates these developments in a turn to private ordering, I emphasize the ways they were shaped by state action and priorities.  The New Deal state invested enormously in funding—and even mandating the use of—ostensibly private arbitration services.  So too, some of the main proponents of arbitration and conciliation were not private commercial groups, but municipal-court reformers, interested in developing modes of public, court-based ADR that would enable the court to serve as an alternative to the burgeoning administrative state.

 Have your interests evolved since finishing your studies?  My Ph.D. studies and first book—A Revolution in Commerce: The Parisian Merchant Court and the Rise of Commercial Society in Eighteenth-Century France—were focused on early-modern European (and in particular, Old Regime French) history.  But I recently published a book on nineteenth-century U.S. history: Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877.  This later book emerged from my background in European legal history, which made me attentive to features of U.S. procedure that were much more akin to European practice than the standard adversarial account of U.S. procedure would suggest possible.  In trying to understand the existence of seemingly European elements within U.S. procedure, I was led to explore the history of equity courts and procedure, as well as now forgotten efforts to adopt from continental Europe (and especially France) institutions known as conciliation courts.  The book explores the links between these procedural developments and a range of contemporary, nineteenth-century debates concerning such questions as the role of government in regulating markets and promoting racial equality.

 What’s the most fascinating thing you’ve ever found in your primary sources?  It’s hard to choose just one!  One surprising and fascinating discovery in the archives that I made while researching A Revolution in Commerce was the extent to which Old Regime French merchant courts called on local parish priests to assist in arbitrating merchant disputes.  Needless to say, priests do not fit the standard account of the lex mercatoria as created by and for merchants.  In researching Inventing American Exceptionalism, I was amazed to discover in my review of New York Chancery records that core procedural changes that we associate with the enactment of the famous Field Code of 1848 were anticipated decades earlier through bottom-up initiatives pursued on a case-by-case basis by lawyers on the ground.

Is there an article, book, film, website, etc. that you would recommend to LHB readers?  Please check out the website of our new Stanford Center for Law and History (https://law.stanford.edu/stanford-center-for-law-and-history/), where you can sign on to our mailing list and view a listing of all our activities.  So too, you can find listed on the website a broad range of opportunities (not just at Stanford) for postdocs and students in legal history, which we update regularly.

What have you found to be the most surprising thing about academic life?  The pleasures of aging!  More particularly, the satisfaction that comes from building long-term relationships with students and mentees.

Monday, February 25, 2019

Rodriguez and Weingast on Administrative and Constitutional Law in the New Deal

Daniel B. Rodriguez, Northwestern University Pritzker School of Law, and Barry R. Weingast Stanford University, have posted Engineering the Modern Administrative State, Part I: Political Accommodation and Legal Strategy in the New Deal Era:
Administrative constitutionalism in the United States has been characterized by tension and accommodation. The tension reflects the unsettled nature of our constitutional scheme, especially with regard to separation of powers, and also the concern with agency discretion and performance. Still and all, we have accommodated administrative constitutionalism in fundamental ways, through a constitutional jurisprudence that, in the main, accepts broad delegations of regulatory power to the bureaucracy and an administrative law that oversees agency actions under procedural and substantive guidelines. This was not always the case. In this paper, part one of a larger project, we revisit the critical New Deal period to look at the strategies the Congress and the Supreme Court used to resolve controversies over the emerging administrative state. We see the political and legal accommodation as a product of a (mostly) coherent interbranch dialogue, iterative and fueled by strategy. Having surmounted some important roadblocks in the first New Deal, this effort ultimately resulted in a scheme that enabled the federal government to accomplish their three critical objectives: to deploy national power to solve new economic problems, to create delegations appropriate to modern needs, and to craft novel administrative instruments to carry out legislative aims – all of which required a due amount of legal accommodation, given extant legal doctrine and the interests of the courts.
H/t: Legal Theory Blog

Llewellyn and Frank

The other day, when paging through one of the “Unidentified” folders in the Jerome New Frank Papers, we happened upon a handwritten, two-page memorandum by Karl N. Llewellyn.  It dates from their collaboration on a response to Roscoe Pound’s attack on the legal realism, authored by Llewellyn as Some Realism about Realism: Responding to Dean Pound (1931) and was prompted by Frank’s suggestion that Llewellyn gather his writings into a book.  Llewellyn obliged by explaining how they fell under the rubric “Law in Society.”  Because we are not Llewellyn mavens, we cannot promise that the document adds much to the field’s understanding of that great legal intellectual, but we thought you should know about it anyway.  If the Yale archivists agree with our identification, we assume the memorandum will relocate from Folder 233 to Folder 136 of Series 1.

Another arresting moment in the archives came when we watched Frank handle two items on the questionnaire of the Committee on Character and Fitness of the Second Judicial Department when he applied to become a member of the New York bar in January 23, 1930.  The few lines provided for responses and perhaps the occasion called for platitudes.  Frank did better.  When asked why he wanted to practice law, he responded, “I consider the practice of law to be a dignified and socially useful occupation which I thoroughly enjoy and which has proved to be sufficiently remunerative to meet the requirements of myself and my dependents.”  And when asked to state why he believed in “the principles underlying the form of government of the United States,” Frank replied, “Those principles, as developed in practice in the history of the country, have promoted the welfare of its citizens to an extent unparalleled under any other form of government.”  A few years later Frank would preside over the legal division of the Agricultural Adjustment Administration, where several of his juniors, members of an underground apparatus of the Communist Party, could not truthfully have said the same.

AHR forum: Ingenous Agency and Colonial Law

This month's AHR forum features work on legal history and indigenous agency. Here are some highlights from AHR 124:1 (1 Feb. 2019): 

Joshua L. Reid, "Introduction," 20-27

Introduction excerpt: "The essays in this AHR forum bracket three centuries of experiences that Indigenous peoples have had with colonial legal systems in North America. In seventeenth-century Spanish colonial Mixteca, Oaxaca, in today’s southern Mexico, Ñudzahui communities contended with a system of hierarchically nested judicial and authority structures that blended Indigenous and early modern Spanish legal practices. In a radically different colonial and natural environment thousands of miles to the north and several hundred years later, Yellowknives Dene peoples of Canada’s Northwest Territories found their lives circumscribed by international and national laws that were at odds with treaty rights they had reserved for themselves in the early twentieth century. Despite the disparate times and places of the legal cases analyzed in these two essays, they both demonstrate the centrality of colonial law to Indigenous lives."


Abstract: Recent global legal histories argue that jurisdictional competition between authorities, often at the edges of territories, ordered empires and nations. But we still need more concrete, grounded understandings of how local actors understood and produced jurisdiction, and we need clearer methodologies for recovering those understandings from archives that privilege imperial, often European concepts of law, authority, and territory. A single case from southern Mexico, centered on the 1683 arrest of a native man named Juan Matías at a makeshift court built on a wheat field, provides both. Close attention to this case, supplemented with regional and temporal comparison, offers glimpses of how imperial law on the books animated local understandings of jurisdiction on the ground. In turn, in the very act of translating local events and native practices for a Spanish judge, Juan Matías demonstrates how jurisdiction—in this case “Indian jurisdiction,” a unique plane of native authority within the Spanish Empire—was not merely captured on the page in legal documentation but produced through it by native judges and legal agents.


Abstract: In settler states such as Canada, indigenous peoples’ claims for sovereignty in the late twentieth century became matters of intense public and political debate. Provoked by widespread indigenous rights activism of the 1970s, the Canadian state embarked on a large-scale examination of claims for rights and restitution. By focusing on the 1962 case of a duck hunter who insisted on his treaty right to hunt as he pleased in a Canadian borderlands region that was becoming more tightly woven into the fabric of the settler nation, this article argues for the value of recovering the discursive strategies of indigenous peoples in making sovereign claims prior to 1970s activism. I suggest that such claims were effective in bending the “settler contract,” which refers to the founding of settler states in dispossession and the silencing of indigenous actors. My approach brings to the fore a distinctive form of non-elite politics, what I call “treaty talk,” or the vernacular stories, civic rituals, and political disputes concerning the treaty promises that Canadian authorities made to northern indigenous communities earlier in the twentieth century. Although treaty talk did not break the settler contract, it posed a significant challenge to settler law and led one judge to reinvent a Canadian myth of benevolent empire.

Further information is available here.

Friday, February 22, 2019

Archive Fever, part 2: Make Your Students Do It!


As I mentioned in my post yesterday, I teach a research seminar on African legal history to undergraduate students.  We read a range of secondary sources, but the bulk of the course involves working through a set of court cases from a customary civil court in early twentieth-century South Africa (these are the records of the Tamacha Special Magistrate’s court, for the three people out there who would know what that is).  I’m sharing the basic structure of the course here because I’ve enjoyed teaching it immensely, and perhaps it will spark inspiration for other—and, selfishly, because perhaps you will send me suggestions for things to do with these records that I haven’t thought of yet!

I designed this court because I wanted students to have the experience of doing primary-source research in African history, one that took them beyond carefully selected sources available in classic collections such as From Protest to Challenge (a set of documents from the South African liberation struggle).  I wanted them to get a sense of what historians actually do.  I don’t think my students should become historians themselves, but I do think that knowing how the sausage is made helps them to read, understand, and evaluate historical research—and, by extension, to engage critically with the way that writers in many genres use evidence to support their claims.  To me, that’s the point of a liberal arts education.

To really achieve that goal, I wanted students to work with sources in a relatively unprocessed form.   By the same token, I knew that I couldn’t just throw them in at the deep end—I needed to help them work through these sources, step by step.  This is particularly important because, although most of the students in the class are history or Africana Studies majors, they don’t necessarily have any background in African history.  I decided it would make sense to work with a set of sources I already knew from my own research, so that I would understand them well enough to guide my students in their research.  On my next research trip to Cape Town, I returned to the records of one of the civil courts I’d looked at for Colonizing Consent, and took pictures of the complete records for the period from 1902-1912.  

The seminar meets twice weekly, and we roughly alternate between reading secondary source material and working with the court records.  I have students read some of the classics on customary law, as well as some background material on the Eastern Cape and turn of the century South Africa.  For the primary source assignments, each student gets one volume of court records, containing roughly 300 cases.  Assignments are (in brief summary):

1. Transcribe five cases in full, and share with class [cases are 1-2 handwritten pages]
2. Take notes on another ten cases, and share with class
3. Informal writing assignment identifying themes in the cases we’ve looked at so far
4. After a collective brainstorming session to identify important types of data, code 25 cases into a spreadsheet [I use the result of the brainstorming session to come up with a coding system]
5. After a class discussion of the first round of coding, we tweak the coding system, adjust the coding to the first 25 cases as necessary, and code another 25 cases.
6. Informal writing assignment on patterns we’ve noticed so far
7. Research question for final paper
8. Research plan for final paper [identifying cases that they will use, and any additional primary or secondary source research.  Often this step includes things such as taking notes on more cases of a particular type]
9. First draft of research paper for peer review
10. Final draft of research paper

In addition to these assignments, I also set aside several class periods to work through the material together.  We catch up on previous assignments, and brainstorm directions for research papers.   

I’m not going to lie - it’s a lot of work to teach.  In order to make the results of the transcriptions and coding useful for the class, I have to do a lot of quality control.  Students have trouble reading the handwriting at first, and there’s a fair amount of idiomatic English that twenty-first century American college students have never heard before.  The first time I taught this, I forgot that students wouldn’t know what at kraal (homestead/cattle pen) was.  Now I give them a glossary to help, but there are always new terms to explain.  I do a lot of trouble-shooting with students; and while I block out time in class for this, inevitably it also consumes a lot of time outside of class.  I tell students not to beat their heads against the wall; if it takes them more than four hours for any of the note-taking/transcription/coding assignments, they should stop.  In practice, I end up finishing those up too. 

Despite the work, though, the class is incredibly fun to teach—and, I think, for the students to take.  Although I hear many complaints about handwriting, I think there’s a thrill in seeing the raw material of historical research in all its dirty, messy, illegible splendor; and in making something out of it.  After teaching the class once, I wondered whether I really needed to force the next set of students to transcribe cases that had already been transcribed by a previous group; the answer, I decided, was yes.

Thursday, February 21, 2019

Archive Fever, part 1: Translation and its Failures



Like many legal historians, I spend a good chunk of my life reading court records—and it’s one my favorite parts of my job.  I love it so much that I make my students do it too, even undergraduates!  I regularly teach a seminar in which I give students a volume of records from a customary court from early twentieth-century South Africa.    In the rest of this post, I’ll talk more about how I think about court records as a source.  Tomorrow, I’ll describe in more detail how I guide students to work with them; and next week, I’ll come back to highlight some of my favorite archival finds that might be interesting to those researching or teaching legal history elsewhere in Africa, or even beyond the continent.

Reading through court records is a pretty good introduction to the process of writing African history in particular.  Court records are an attractive source for historians of colonial Africa, even those with no particular interest in law.  Many of us work on times and places where literacy was restricted to a relatively small group of people, and court records provide one of the few instances where the voices of ordinary Africans appear to have been preserved. In writing Colonizing Consent, I found this to be particularly true for the question of rape, a subject that the colonial state largely cared about when it crossed racial lines, and which most newspapers (including those isiXhosa) discussed through delicate euphemisms.  By contrast, in court records, I found hundreds of isiXhosa-speaking men and women discussing not only their experiences of sexual violence but also their understanding of what kind of sex was wrong, and why.

Of course, as readers of this blog know, it’s more complicated than that. Even when court transcripts show litigants speaking in the first person, their testimony was profoundly shaped by the context in which it was produced.  Some of these processes are nearly universal: people go to court to make things happen, so the statements they make in court can’t be read as a transparent representation of their opinions or experiences.  Others are more specific to colonial courts. Court transcripts in the 19th century Eastern Cape were written in English, although litigants almost universally gave their testimony in isiXhosa.  And the process of translation was cultural as well as linguistic.  Most African litigants did not think about sexual violence either in the terms provided by colonial law; indeed, they did not necessarily know what court officials meant by those terms, which mapped poorly onto the isiXhosa words conventionally used to translate them. 

So what do we do with court records, if we want to write histories that include, or even privilege, the perspectives of ordinary litigants?  There is more than one answer to this question.  We can crunch numbers to identify the most prevalent forms of dispute, or mine transcripts for stray pieces of evidence that illuminate the path that litigants took before reaching the courtroom. I did both in my own research.  The disproportionate number of domestic servants accused of infanticide provided insights into the sexual exploitation that often accompanied such labor, while litigants who admitted taking their cases to local headmen before approaching the colonial court attuned me to the broader landscape of legal power in the Eastern Cape.

By far the most revealing court records I looked at, however, were those in which the process of translation failed in some way.  Again, sometimes, the failure was literal—court clerks reverted to isiXhosa for a word or phrase, providing evidence of the incommensurability between local and colonial ways of understanding the world.  More often, it was a matter of mismatched expectations.  Especially in the early years of colonialism, African men and women sometimes made charges of sexual impropriety using categories that were wholly unintelligible to colonial officials.  These cases pointed to the limits of forum-shopping as a model for explaining litigant behavior; more importantly, they revealed the kinds of claims that litigants thought they should be able to make.  They gave me access not to “authentic” views or experiences of individual men and women, but to the set of social norms that litigants expected to be able to appeal to.  Over time, they also showed isiXhosa-speaking men and women learning the language of colonial law, and using it to make their claims.  

Scholar Spotlight: Susanne Pohl-Zucker

Our Scholar Spotlight series continues with Susanne Pohl-Zucker, independent scholar. In our earlier interviews, we noted that only three of the fifty contributors to the recently published Oxford Handbook of European Legal History were women. Like Women Also Know History, this Scholar Spotlight series aims to showcase female scholars and their work. Its special focus is scholars of European legal history. 


Susanne Pohl-Zucker is an independent scholar who lives in Oppenheim, Germany.

Websitehttps://independentresearcher.academia.edu/SusannePohlZucker

Alma mater: MA 1991, Ph.D. 1997, University of Michigan

Fields of interest: History of premodern criminal justice in Europe, legal procedure, ius commune, dispute resolution, law and emotions, disability history

Describe your career path. What led you to where you are today? My fascination with premodern history started when I read the novel "The Name of the Rose" as a teenager. I subsequently became a history major at the University of Tübingen, Germany, although an exchange program offered me the opportunity to move to the US and study at the University of Michigan in Ann Arbor. I loved the different teaching methods in the US, and I was excited about my first exposure to anthropological and cultural approaches towards medieval and early modern European history. Courses with Diane Hughes, Thomas A. Green and William I. Miller awakened my interest in legal history, especially the development of centralized criminal legal systems during the course of the early modern period. I applied to stay in the program and after obtaining my Ph.D., I first taught as a lecturer at Eastern Michigan University and then as an assistant professor at Cornell University in the field of early modern Europe. Family reasons led me back to Germany in 2003. After teaching as a lecturer at the universities of Tübingen and Frankfurt for a couple of years, I needed to find ways to adjust my work schedule to circumstances at home. I am now a part-time member of the pedagogical staff at a local learning center for people with cognitive disabilities and write about history as an independent researcher.

What do you like the most about where you live and work? The town in which I live is small, but the larger cities of Mainz, Frankfurt and Mannheim are close by. I often take advantage of the research opportunities that the universities and archives of these cities offer. I enjoy living in a rural area and like cycling through the surrounding vineyards or taking walks along the nearby river.

What projects are you currently working on? I am in between projects, but I have started thinking about and reading for a research project focusing on the parameters of an administrative and legal culture that both produces and restricts the implementation of inclusive education in Germany. I am also hoping to find the time soon to explore the early modern criminal trial records in the archive in Mainz.

Have your interests evolved since finishing your studies? For years, my research has centered on the legal settlement of homicide in premodern Europe. In my book Making Manslaughter: Process, Punishment and Restitution in Württemberg and Zürich, 1376-1700 (Brill 2017), I focus on the indeterminacy of legal practice and analyze the impact of governmental policies and disputants' strategies on judicial outcomes. While I was tracing among other things the ways in which expert legal discourse was appropriated by disputants at court and adapted to governmental aims, I was simultaneously struggling in my everyday life with current legal decisions and the political interests that inform them, concerning the education and work condition of children and adults with disabilities. The desire to contextualize and understand the origins of medical and legal arguments that propel and fuel the controversies surrounding these decisions sparked my interest in disability history a few years ago.

What’s the most fascinating thing you’ve ever found at the archives? During the course of my research, I was looking for sixteenth-century Swiss records of extrajudicial settlements in homicide cases. In most of these cases, only a copy of the final agreement survived. But once I got lucky and found records that documented the various stages of the negotiation between the disputing parties. There was even a letter containing the slayer's indignant complaints about the dishonoring stipulations that the victim's father wanted to impose on him.  

Is there an article, book, film, website, etc. that you would recommend to LHB readers? I highly recommend Dana Rabin's recent book Britain and its Internal Outsiders 1750-1800: Under Rule of Law (Manchester University Press, 2017). Her thoughtful and inspiring analysis of court cases in imperial Britain traces how an ideology of rule of law produced and maintained categories of difference based on gender, religion and race.

What have you found to be the most surprising thing about scholarly life? I never cease to be excited and surprised at how easy it is to connect with historians from so many different places with the simple question: "What are you working on?"

Wednesday, February 20, 2019

Chapman on Missionaries and the Establishment Clause

Nathan S. Chapman, University of Georgia School of Law, has posted Money for Missionaries: Rethinking Establishment Clause History:
In Everson v. Board of Education (1947), the Supreme Court stated two principles that continue to animate Establishment Clause doctrine. The first is that courts should look to founding-era history—especially the history of "religious assessments," or taxes used to fund churches—to interpret the Establishment Clause. The second is that, based on this history, the government may provide limited secular goods to religious schools, but the Establishment Clause prohibits the government from directly funding religious education.

What Everson ignored, and what subsequent legal scholarship has likewise overlooked, is that the founding-era government did directly fund religious education: from the Revolution to Reconstruction, the federal government partnered with Christian missionaries to "civilize" American Indians. Initially ad hoc, this practice was formalized with the Civilization Funds Act of 1819, which authorized the government to distribute $10,000 per year to "persons of good moral character" to educate and "civilize" the tribes. For over fifty years, the government funded Christian missionaries who incorporated religious instruction and worship into their curricula. Curiously, no one ever raised a constitutional objection.

This Article is the first to provide a thorough analysis of the government-missionary partnerships and to explore why no one objected to their constitutionality. The evidence strongly suggests eighteenth and nineteenth-century Americans supported them because of a shared view of social progress that merged Christianization, education, and civilization. They simply could not have imagined separating Christianity and education. This evidence reshapes the conventional narrative of the historical development of non-establishment norms in the United States, especially the centrality of the Jeffersonian "taxpayer conscience" objection to religious assessments.

This history also has important implications for Establishment Clause doctrine. The challenge is ascertaining a constitutional principle from a practice that itself went unquestioned. The history does, however, suggest that the government may directly fund general education, even when that education entails incidental voluntary religious instruction. This principle complements the theoretical norm of "substantive neutrality" and supports the Supreme Court's current doctrinal trajectory of easing restrictions on government funding of religious education.