Thank you, Lisa Ford!

We were thrilled to have Lisa Ford guest-blogging for us in March 2019. Here are her three posts (lots to chew on here)--all in one place for your convenience:

• Hello from sunny Sydney! (plus some tips on productivity)
• Hello again from Sydney! Collaboration: Why and How
• Hello, again, from Sydney. Legal History Jobs in Australia

Thank you, Professor Ford!

Weekend Roundup

• Over at U.S. Intellectual History Blog, Victoria Saker Woeste, American Bar Foundation, has contributed a post to Roundtable on Antisemitism: Anti-Jewishness and U.S. Historiography, a series in which U.S. historians discuss “how anti-Semitism has been studied and theorized in the American past.” 

• The video of Robert Tsai’s lecture,“What Might Have Been,” delivered last October at the Robert H. Jackson Center is now available online.  Professor Tsai draws upon his research at the National Archives to discuss why Justice Jackson should have resisted Chief Justice Stone’s request that “he delete certain passages from his original draft opinion” in West Virginia v. Barnette.

• A new gallery, Transformation & Regulation: Equities Market Structure, 1934 to 2018, is now available over at the Securities and Exchange Commission Historical Society.

• The law faculty of Tel Aviv University has issued its call for the 5th Annual TAU Workshop for Junior Scholars in Law, entitled Law and Boundaries, to be held on November 17-19, 2019.

• Sports lawyers have published a memorial symposium on the legal historian J. Gordon Hylton in the Marquette Sports Law Review 29 (2018): 1-11.

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

White on the Suspension Clause and Tyler's "Habeas Corpus in wartime"

G. Edward White, University of Virginia School of Law, has posted Looking Backward and Forward at the Suspension Clause, a review essay forthcoming in the Michigan Law Review on Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay by Amanda L. Tyler:

This essay considers whether the Suspension Clause of the Constitution, which states that the “privilege of the writ of habeas corpus” may not be suspended except in cases of “invasion of rebellion,” has since its enactment had an implicit “time of war” exception, even though suspensions would literally seem limited to instances in which the United States was actually “invaded” by an enemy or when internal “rebellion” had broken out.

Acevedo on American Crime Panics

John Felipe Acevedo, University of Alabama School of Law, has posted Witch-Hunts and Crime Panics in America:

The term witch-hunt has been tossed around by media commentators, policy experts, and even presidents for years — Nixon, Clinton, and Trump each in turn. Accusations of a witch-hunt are used to signal perceived bias, procedural unfairness, and paranoia. This Article argues that drawing simplistic connections between witchcraft trials and unfairness in the criminal justice system severely hampers our understanding of both historical and contemporary events. It obscures the fact that the term witch-hunt is popularly used to describe two very different types of prosecutions that reflect distinct social and legal problems and demand distinct solutions.

On the one hand, witch-hunts target individuals based on their beliefs and are exemplified by the two Red Scares of the early and mid-twentieth century and the persecution of the Quakers in seventeenth century Massachusetts Bay. These are fundamentally distinct from crime panics, which target activity that was already classified as criminal but do so in a way that reveals deep procedural deficiencies in the criminal justice system. Crime panics are exemplified by the Salem witchcraft trials and the “Satanic Panic” of the 1980s and 1990s. In contrast, the ongoing special investigation by Robert Mueller is neither a witch-hunt nor a crime panic. By bringing ongoing criminal law issues into conversation with legal history scholarship on early American witch-hunts, this article clarifies our understanding of the relationship between politics and large-scale criminal investigations, and highlights areas for future reform.

Three articles on Mongolian legal history

Khohchahar E. Chuluu, University of Tokyo published three articles on various aspects of Mongolian legal history (including comparative) in 2017-18. Here are some excerpts and abstracts:

1. “The Making of Mongolian Judicial Records: Chancellery Practices of the Alasha Banner Under the Qing Empire,” Zentralasiatishe Studien 46 (2017): 7‒28

From the introduction:
"More than imagined, the Mongols produced an enormous number of official documents during the Qing period (1635‒1911). Official documents of Qing Mongolia consisted mainly of administrative correspondence and governmental records, most of which were produced, or received, and kept by the banner government―the local office in Qing Mongolia. These documents can be sorted into two major categories―internal banner documents and outgoing or incoming correspondence. The former were documents involving the internal affairs of the banner whereas the latter involved external affairs and correspondence with other banners, or upper administrative organizations―including the league, Qing residential officials, and the Lifanyuan (the Court of Colonial Affairs), as well as the Qing emperor himself...This article examines the chancellery practices of internal banner documents.4 In particular, the Alasha Banner judicial records―the largest existing collection of banner-level judicial records from Qing Mongolia―are taken as a case study, with a focus on how and in what style these Mongolian judicial records were made and how unique they were.5 I argue that the Mongolian banners under the Qing Empire established their own document-making style for internal banner documents while using a Mongolia-wide common style for correspondence. This argument reflects the state structure of the Qing Empire, under which the Mongolian banners enjoyed relative autonomy in their affairs. Furthermore, by comparing the chancellery practices of the Alasha Banner with those of other banners, this study offers a detailed understanding of the differences and similarities in the daily administrative and legal practices of the Mongolian banners."

2. "Comparing Legal Cultures: Civil Case Settlements in Local Courts in Early Modern Mongolia, Japan, and China," Journal of Korean Legal History 56 (2017), 123-50

Abstract: Local courts in early modern countries were important state organs that played a critical role in governing society. The design of the framework of state-court-society reflects a state’s political and ideological attitudes toward society. Moreover, the structure and function of local courts demonstrates the degree to which the state intends to deliver justice within a society. The
question of how far state institutions systematically reach into social affairs helps us understand the state in terms of the implementation of social justice. As a first step to exploring and comparing local court practices in early modern Asia, this study focuses on the cultures of civil case settlements in local courts in early modern Mongolia, Japan, and China. There was a division between what we now call “civil cases” and “criminal cases” in these societies. Civil cases are more important than criminal cases for us when assessing state-society relations, as they more evidently reflected the interaction between state institutions and the local society.

Based on case records from early modern local courts, this paper traces the legal culture of civil case settlements in local courts in the three countries using three different models based upon their respective salient feature: the “utilitarian justice” model (Mongolia), the “well-organized” model (Japan), and the “bureaucratic management” model (China). A close comparison shows that the three countries exhibited similarities regarding the practice of civil case settlements, that is, the number of civil case records from the local courts was smaller than that of criminal cases. This suggests that civil cases were encouraged to settle by not resorting to local courts. However, this did not mean that local courts left civil cases without any institutional arrangement for civil society. The local courts discussed in this paper demonstrate that they often resorted to their local agents to settle civil cases in the countryside, although in different ways. The author argues that these different models of court culture can be attributed to the respective state apparatus of each country.

3. "The Formation and Regulations of the Military Hunt in Qing Mongolia," Inner Asia 20:1 (2018), 5-25

Abstract: In the Mongolian tradition, hunting and war have had strong connections with each other. During the Qing Empire, Mongolian hunts were not only local practices, but were also involved in the Qing empire-building project. On the other hand, the collective hunt itself was by nature a dangerous activity that contained potential physical risks from wild animal attacks as well as human errors. It is conventionally understood that the hunt therefore must have been well organised in order to secure success and security. But how a hunt was organised and operated in reality has not yet been well examined. This study explores the organisational structure and regulations of a military hunt in Qing Inner Mongolia, a geographically important zone where both the Manchus and Mongols actively held hunts. The primary focus of this article is the nineteenth-century Alasha Banner grand hunt, a well-organised and documented Mongolian military hunt from the Qing period.

Littlewood on Early NZ Tax Policy

Michael Littlewood, University of Auckland Faculty of Law, has posted William Hobson and the Origins of the New Zealand Tax System, 1840-1842:

William Hobson (NZ History)

The literature on the history of New Zealand in the 1840s is extensive but it does notaddress systematically the methods by which the colonial government attempted to finance itself. This article addresses that gap. The inaugural Governor, William Hobson, conscientiously adopted the revenue-raising methods proposed by London (mainly land sales and customs duties) plus several others (notably liquor licensing, a tax on auctions, and borough council rates), but the revenues raised were nowhere near adequate to cover spending. Government salaries fell into arrears and the colonial government found itself insolvent. In desperation, Hobson resorted to borrowing, which predictably proved unsatisfactory. London blamed him for the Colony’s insolvency, but the real problem was that its economy was simply too small to sustain a government even remotely resembling the British colonial norm.

Peace through Law: International Dispute Settlement after Versailles

The essay collection Peace Through Law: The Versailles Peace Treaty and Dispute Settlement After World War I, edited by Michel Erpelding, Burkhard Hess, and Hélène Ruiz Fabri, has now been published online on the open access Nomos website.  Its contents may be downloaded by chapter or in its entirety.

With the benefit of hindsight, presenting the Treaty of Versailles as an example of ‘peace through law’ might seem like a provocation. And yet, the extreme variety and innovativeness of international procedural and substantial ‘experiments’ attempted as a result of the Treaty of Versailles and the other Paris peace treaties of 1919–1920 remain striking even today. While many of these ‘experiments’ have had a lasting impact on international law and dispute settlement after the Second World War, and considerably broadened the very idea of ‘peace through law’, they have often disappeared from collective memories.

Relying both on legal and on historical research, this book provides a global overview of how the Paris peace treaties impacted dispute resolution in the interwar period, both substantially and procedurally. The book’s accounts of several all-but-forgotten international tribunals and their case law include references to archival records and photographic illustrations.

Cebul, Geismer, & Williams, eds., "Shaped by the State: Toward a New Political History of the Twentieth Century"

New from the University of Chicago Press (and a collection that this blogger has been eagerly awaiting): Shaped by the State: Toward a New Political History of the Twentieth Century (2019), edited by Brent Cebul (University of Pennsylvania), Lily Geismer (Claremont McKenna College), and Mason B. Williams (Williams College).

A description from the Press:

American political history has been built around narratives of crisis, in which what “counts” are the moments when seemingly stable political orders collapse and new ones rise from the ashes. But while crisis-centered frameworks can make sense of certain dimensions of political culture, partisan change, and governance, they also often steal attention from the production of categories like race, gender, and citizenship status that transcend the usual break points in American history. 

Brent Cebul, Lily Geismer, and Mason B. Williams have brought together first-rate scholars from a wide range of subfields who are making structures of state power—not moments of crisis or partisan realignment—integral to their analyses. All of the contributors see political history as defined less by elite subjects than by tensions between state and economy, state and society, and state and subject—tensions that reveal continuities as much as disjunctures. This broader definition incorporates investigations of the crosscurrents of power, race, and identity; the recent turns toward the history of capitalism and transnational history; and an evolving understanding of American political development that cuts across eras of seeming liberal, conservative, or neoliberal ascendance. The result is a rich revelation of what political history is today.

Via the editors, we also have abstracts for several chapters that seem likely to interest to LHB readers:

The “Black Tax”: Race, Property Assessments, and the Making of the Neoliberal City
Andrew W. Kahrl

Andrew Kahrl focuses on state and local tax policy administration in Chicago and uncovers a variety of bureaucratic and administrative practices used to punish and exploit the poor and politically disfranchised. Providing a new way to think about the tax politics of the 1970s, Kahrl maps unseen sites of discrimination and chronicles the double injury that myths about black tax delinquency and the undemocratic state have perpetuated: abetting a misguided radical anti-tax, pro-market, and anti-government mood that infects both parties and which simultaneously enforces a locally-based, regressively redistributionary tax regime.

Clearing the Air and Counting Costs: Shimp v. New Jersey Bell and the Tragedy of Workplace Smoking
Sarah E. Milov

Sarah Milov offers a different view of the relationship between the state and citizens seeking new forms of political and workplace rights in the 1970s. Focusing on the battle for smoke free workplaces, Milov shows how activists often had to go to war with the unions to which they belonged – unions that otherwise bargained for worker health and safety. Milov uncovers the complex legal, gendered, and bio-political forces that could fuse the interests of worker-activists with corporations concerned primarily with efficiency. Ultimately, Milov argues that the workplace battle she uncovers was less a factor in the eclipse of the New Deal order and was instead a legacy of New Deal era “law, administration, and ideas about health and the environment [that] had expanded the realm of the contestable.” Crucial continuities, in other words, played an overlooked role in creating labor’s decade of crisis. 

A Carceral Empire: Placing the Political History of US Prisons and Policing in the World
Stuart Schrader

Stuart Schrader suggests that looking beyond national boundaries can provide new ways of understanding how the New Deal state evolved over time and ultimately generated what is perhaps the fundamental social and political crisis of our time: the crisis of black, male incarceration. Schrader examines the literature surrounding the “carceral state” and spotlights how the turn toward transnationalism or “the US in the world” has been notably absent. By tracking institutions both inside and outside the state, including law-enforcement agencies and professional organizations, Schrader demonstrates the need for close empirical attention to the transnational dimensions of the carceral state, suggesting that key aspects of the construction of a postwar US empire have come home to roost.

A few blurbs:

“This is an original and unique anthology whose contributions offer theoretically sophisticated reassessments of the subfield of political history. Both capacious and generative, I know of no other work that comes close in offering so many fresh interpretations of twentieth-century US history and revisions of twentieth-century US historiography. The essays are well written and engaging, new and enlightening.” -- Peter James Hudson 

“Shaped by the State brings together a valuable collection of reports from the borderlands where social, cultural, and political history intersect—and reinvigorate—each other.” -- Daniel Rodgers

More information is available here.

CFP: Liberalism

[We have the following call for papers.]

The call for papers for our conference "Liberalism - historical and contemporary variations" is now open! The conference will be held at the University of Helsinki, October 24-25, 2019.

The conference is organized by the Centre of Excellence in Law, Identity and the European Narratives (EuroStorie). Keynote speakers are Quinn Slobodian (Wellesley), Werner Bonefeld (York), Sonja Amadae (Helsinki).

This conference seeks to bring analytic clarity to the concepts of liberalism by investigating into its historical and contemporary variations. We pay special attention to the various reconfigurations of the liberal doctrine that emerged in the context of interwar and post-WWII Europe (e.g. different forms of neo-liberalism, German ordoliberalism, social liberalism). We invite presentations that discuss particularly the theoretical underpinnings and intellectual transformations of the liberal doctrine in the past 100 years with a focus on the following questions:

• What were the key theoretical and intellectual questions that defined the emergence of different “new” liberalisms (neo-liberalism, ordoliberalism, social liberalism etc.) in the interwar period? What kinds of intellectual and philosophical resources they employed?

• How should we understand the relation between liberalism as a theoretical or moral-philosophical doctrine vs. political movement? What were the main political strategies of different liberalisms?

• How has contemporary liberalism employed the conceptual and theoretical tools of individual sciences such as economics, law, and political science?

Please send your abstracts (max. 400 words) with relevant contact info to the address: liberalism2019@helsinki.fi by May 15, 2019. For practical information, please consult our coordinator Dr. Heta Björklund (heta.bjorklund@helsinki.fi).

Glossae issue 15

Vol.15 (2018) of Glossae: European Journal of Legal History features work on comparative legal history. Here's the line-up for the "Studies" section of the issue:

• Luisa Brunori, Aniceto Masferrer, Alain Wijffels, "Preface"
• Emanuele Conte, "Modena 1182, the origins of a new paradigm of ownership. The interface between historical contingency and the scholarly invention of legal categories"
• Yves Mausen, "Causa and opinion evidence: the Roman-canonical origins of the prohibition of opinion evidence in the common law"
• Anja Amend-Traut, "Diversité ou unité? Culture juridique, correspondances et différences dans la recherche de la justice en Europe"
• Mia Korpiola, "Particularisme juridique et développements communs (Moyen-Âge–Temps modernes): Une perspective suédoise"
• Luisa Brunori, "History of business law: a European history?"
• Wolfgang Ernst, "Modalités de vote dans les tribunaux collégiaux. La diffusion des idées des Lumières en Europe au 19ème siècle"
• Aniceto Masferrer, "Was the French Civil Code ‘the Model’ of the Spanish One? An Approach to the Uniqueness of the Spanish Civil Code"
• Luigi Lacchè, "Crossing boundaries. Comparative constitutional history as a space of communication"
• John Bell, "The Role of Doctrinal Writing in Creating Administrative Law: France and England Compared"
• Alain Wijffels, "Fingerposts and Armsäulen:Comparative legal history’s manifold itineraries to legal culture"

Further information is available here.

Mikhail on the Original Meaning of Ex Post Facto Laws

John Mikhail, Georgetown University Law Center, has posted James Wilson, Early American Land Companies, and the Original Meaning of “Ex Post Facto Laws,” which is forthcoming in volume 17 of the Georgetown Journal of Law & Public Policy (2019):

Many commentators have questioned whether the interpretation of the term “ex post facto laws” in Calder v. Bull, which restricted that term to retroactive criminal laws, is historically accurate. Most prominently, over seventy years ago Professor William Winslow Crosskey argued not only that this “criminal-only” reading of “ex post facto laws” departed from the original understanding, but also that Justices Chase, Iredell, and Paterson adopted that erroneous interpretation in order to assist James Wilson, who by 1798 had fled from his creditors and needed retroactive bankruptcy protection. Drawing on new evidence related to legal disputes involving three land companies with which Wilson was associated, which eventually gave rise to Hollingsworth v. Virginia, Fletcher v. Peck, and Johnson v. M’Intosh, this Article contends that Crosskey was likely correct about the original meaning of “ex post facto laws,” but likely mistaken about the Justices’ motivations in Calder. In fact, Wilson’s land speculation, conflicts of interest, and aggressive pursuit of his companies’ interests were probably a source of embarrassment to his fellow Justices. Nonetheless, there is a clear discrepancy between the construal of “ex post facto laws” in Calder and how that term was widely used in the founding era, which merits further investigation. A better historical understanding of these land disputes also raises new doubts about the reliability of the discussion of ex post facto laws in James Madison’s Notes of the Debates in the Federal Convention.

An Essay Collection on Extraterritoriality

Due out this week in Routledge’s Politics of Transnational Law is The Extraterritoriality of Law: History, Theory, Politics, edited by Daniel S. Margolies, Umut Özsu, Maïa Pal, and Ntina Tzouvala.

Questions of legal extraterritoriality figure prominently in scholarship on legal pluralism, transnational legal studies, international investment law, international human rights law, state responsibility under international law, and a large number of other areas. Yet many accounts of extraterritoriality make little effort to grapple with its thorny conceptual history, shifting theoretical valence, and complex political roots and ramifications.

This book brings together thirteen scholars of law, history, and politics in order to reconsider the history, theory, and contemporary relevance of legal extraterritoriality. Situating questions of extraterritoriality in a set of broader investigations into state-building, imperialist rivalry, capitalist expansion, and human rights protection, it tracks the multiple meanings and functions of a distinct and far-reaching mode of legal authority. The fundamental aim of the volume is to examine the different geographical contexts in which extraterritorial regimes have developed, the political and economic pressures in response to which such regimes have grown, the highly uneven distributions of extraterritorial privilege that have resulted from these processes, and the complex theoretical quandaries to which this type of privilege has given rise.

Here are some endorsements:

"This important collection is indispensable reading for any serious scholar investigating the extraterritorial application of law. Its multidisciplinary roster of authors embodies a wide range of fresh theoretical and political perspectives that bear on both historical issues and contemporary policy."

-- Teemu Ruskola, Jonas Robitscher Professor of Law, Emory University

"This rich and wide-ranging collection of essays invites us to think in new and radical ways about the relations between territory, sovereignty, jurisdiction, and power in law and history."

-- Anne Orford, Redmond Barry Distinguished Professor and Michael D. Kirby Chair of International Law, University of Melbourne

"This is a truly remarkable and wide-ranging collection that explores historical and contemporary extraterritorial legality. The chapters examine the complex nature of the relationship between territorial authority and extraterritorial applications of law, both analytically and theoretically. The analyses provide rich accounts of the projection of state sovereignty abroad, as a modality of state-building, imperialist rivalry, human rights promotion, and the global expansion of capitalism, and are of great interest to scholars of law, politics, and history."

-- A. Claire Cutler, Professor of Political Science, University of Victoria

TOC after the jump.

Wiley on Justinian in the Supreme Court

Neal Wiley has posted Through a Glass, Darkly: Reading Justinian through his Supreme Court Citations, which appeared in the Elon Law Review 8 (2016): 479-502:

Justinian in the US Capitol (AOC)

This article applies the analytical paradigm of classical reception theory, widely used within Humanities disciplines but relatively uncommon in the legal academy, to an old problem of legal history. Has Roman law, especially as exemplified by Justinian’s Corpus Juris Civilis, had a direct substantive impact on American jurisprudence? This Article arrives at an affirmative answer by applying classical reception study to an original body of data culled from over two centuries of published U.S. Supreme Court decisions. After briefly discussing the history and contents of the Corpus, this Article explores the direct influence of a particular point of Justinian law on American jurisprudence -- the law of alluvium -- to prove how Roman law has substantively impacted our law.

Fletcher on Defining Indians under the Constitution

Matthew L. M. Fletcher, Michigan State University College of Law, has posted Politics, Indian Law, and the Constitution, which is forthcoming in the California Law Review:

The question whether Congress may create legal classifications based on Indian status under the Fifth Amendment’s Due Process Clause is not reaching a critical point. Critics claim the Constitution allows no room to create race or ancestry based legal classifications. The critics are wrong. 

When it comes to Indian affairs, the Constitution is not colorblind. Textually, I argue, the Indian Commerce Clause and Indians Not Taxed Clause serve as express authorization for Congress to create legal classifications based on Indian race and ancestry, so long as those classifications are not arbitrary, as the Supreme Court stated a century ago in United States v. Sandoval and more recently in Morton v. Mancari.

Should the Supreme Court reconsider those holdings, I suggest there are significant structural reasons why the judiciary should refrain from applying strict scrutiny review of Congressional legal classifications rooted in the political question doctrine and the institutional incapacity of the judiciary. Who is an Indian is a deeply fraught question to which judges have no special institutional capacity to assess.

Walker's "Burning House"

Anders Walker, Saint Louis University, has published The Burning House: Jim Crow and the Making of Modern America (Yale University Press):

In this dramatic reexamination of the Jim Crow South, Anders Walker demonstrates that racial segregation fostered not simply terror and violence, but also diversity, one of our most celebrated ideals. He investigates how prominent intellectuals like Robert Penn Warren, James Baldwin, Eudora Welty, Ralph Ellison, Flannery O’Connor, and Zora Neale Hurston found pluralism in Jim Crow, a legal system that created two worlds, each with its own institutions, traditions, even cultures. The intellectuals discussed in this book all agreed that black culture was resilient, creative, and profound, brutally honest in its assessment of American history. By contrast, James Baldwin likened white culture to a “burning house,” a frightening place that endorsed racism and violence to maintain dominance. Why should black Americans exchange their experience for that? Southern whites, meanwhile, saw themselves preserving a rich cultural landscape against the onslaught of mass culture and federal power, a project carried to the highest levels of American law by Supreme Court justice and Virginia native Lewis F. Powell, Jr.

Anders Walker shows how a generation of scholars and judges has misinterpreted Powell’s definition of diversity in the landmark case Regents v. Bakke, forgetting its Southern origins and weakening it in the process. By resituating the decision in the context of Southern intellectual history, Walker places diversity on a new footing, independent of affirmative action but also free from the constraints currently placed on it by the Supreme Court. With great clarity and insight, he offers a new lens through which to understand the history of civil rights in the United States.

Here are some endorsements:

An absolutely first-rate and blazingly original work of scholarship. Walker's sagacious and path-breaking analysis will be lauded and embraced by scholars in multiple disciplines."—David J. Garrow, Pulitzer Prize-winning author of Bearing the Cross and Rising Star

“Highly original and made vivid by close readings of both well-known and little-known texts, The Burning House traces the emergence of ‘Southern pluralist views’ that ‘respected diversity and also tolerated inequality.’”— Werner Sollors, Harvard University

"Beautifully written and well researched, The Burning House examines Jim Crow through the lenses of culture, community and intellectual history and makes an invaluable contribution to studies of race and American history."—Tomiko Brown-Nagin, author of the Bancroft prize-winning Courage to Dissent
“Anders Walker provocatively explores how and why a star-crossed array of white and black southern writers seriously probed and delivered a critique of racial integration. He goes where most literary historians have not gone: to the ironic, complex zone of imagination on both sides of the color line among many of America's greatest writers. This work is a must read for those interested in questions around race, modernism, and pluralism.”—David W. Blight, Yale University and author of Frederick Douglass: American Prophet.

"In this bold book that is sure to stir controversy, Anders Walker contends ideas about racial diversity that debuted in the literary world ultimately informed the legal world. Walker’s arresting intellectual history also speaks unmistakably to our incendiary present."—Justin Driver, University of Chicago Law School

Two articles on Jewish law in French history

Back in 2017, Géraldine Gudefin (American University) published two articles on Jewish law in French history. We missed these earlier. Here are some details:

(1) "Creating Legal Difference: The Impossible Divorce of Russian Jews in Early Twentieth-Century France," Nashim: A Journal of Jewish Women's Studies & Gender Issues 31 (2017), 11-36

Abstract: Much of the scholarship on Jewish divorce assumes that civil marital laws are beneficial to Jews. This article complicates that assumption by focusing on a rarely acknowledged aspect of Jewish immigration in France. As France moved towards a stricter understanding of the separation of church and state, civil courts rejected the possibility of applying religious divorce laws to foreigners. Combined with the French practice of applying foreign law in cases involving immigrants, this shift resulted in Russian Jews being denied the right to civil divorce from 1905 to the 1920s. The confessional nature of Russian divorce thus continued to shape the lives of Russian Jews even after their immigration to France. The case of Russian Jewish divorce casts light on the shifting and contradictory understand-ings of the separation of church and state in France during the early years of the twentieth century.

(2) "Reforming Jewish Divorce: French Rabbis and Civil Divorce at the Turn of the Twentieth century (1884-1907" in Martine Gross, Sophie Nizard, and Yann Scioldo-Zurcher, eds., Gender, Families and Transmission in the Contemporary Jewish Context (2017)

Excerpt from introduction: "In the months and years following the passage of the law of 1884 [restoring civil divorce in France], rabbis in France became increasingly aware of the plight of Jewish women who were denied a religious divorce. Over the next two decades, French rabbis designed myriad proposals in an effort to reform Jewish marital laws and  prevent the problem of
agunot; these rabbinical proposals became widely  publicized in the French Jewish press. This article examines the manifold suggestions for reforming Jewish divorce between 1884 and 1907, focusing particularly on the conflicting pressures faced by French rabbis. On the one hand, Jewish communal leaders were extremely influenced by French debates about civil divorce, sharing similar ideas with reformers of civil divorce about the adaptive nature of the law and the need for more  balanced gender relations. On the other hand, owing to the transnational nature of Jewish law and life, the discussion about religious divorce transcended France's national borders, thus complicating attempts at reform."

Further information is available here.

Baude on a Challenge to Justice Hugo Black's Appointment

William Baude, University of Chicago Law School, has posted Ex parte Levitt, which is forthcoming in the Texas Law Review 98 (2019):

In Ex Parte Levitt, the Supreme Court denied standing to a pro se litigant making esoteric claims against the appointment of Justice Hugo Black. The Court’s short opinion is now an unremarkable mainstay of modern federal courts doctrine. But the case merits closer examination. Indeed, Levitt’s challenge was probably meritorious, and Hugo Black’s appointment unconstitutional. Moreover, the Court’s standing analysis was probably wrong – though there might have been other reasons to deny the challenge. And finally, the case’s aftermath raises intriguing questions about the Supreme Court’s role in politics and constitutional law.

Lash Replies to Barmett/Bernick on Privileges and Immunities

Kurt T. Lash, University of Richmond School of Law, has posted The Enumerated Rights Reading of the Privileges or Immunities Clause: A Response to Randy E. Barnett and Evan D. Bernick's “The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment”:

In prior scholarship, I have argued that the historical evidence suggests that the public originally understood the Privileges or Immunities Clause as protecting enumerated constitutional rights, including (though not limited to) those rights listed in the first eight amendments, but not as protecting absolute enumerated rights such as the unenumerated right to contract protected in cases like Lochner v. New York. In a recent article, Randy Barnett and Evan Bernick canvass more than two decades of my historical work on the Fourteenth Amendment and claim that I have failed to present a persuasive argument in favor of what they call the “Enumerated Rights Only” reading of the Privileges or Immunities Clause. In particular, they argue that (1) antebellum evidence suggests that the term “privileges and immunities of citizens of the United States” was understood to include unenumerated rights, (2) the man who drafted the Privileges or Immunities Clause, John Bingham, described the clause as protecting unenumerated absolute rights, (3) the debates of the Thirty-Ninth Congress suggest that most members would have understood the Privileges or Immunities Clause as transforming the relative rights of Article IV, Section 2 (the Comity Clause) into absolute unenumerated rights, (4) Reconstruction-era references to the “Bill of Rights” as representing the rights of national citizenship are unreliable due to that fact that there was no fixed meaning to the term at that time and (5) because my account fails to explain how the Privileges or Immunities Clause authorized the 1866 Civil Rights Act, it cannot stand as a persuasive reading of the Clause.

In this article, I respond to all of these arguments and synthesize the evidence I have gathered over the years which I believe supports the Enumerated Rights reading of the Privileges or Immunities Clause. In brief: The only antebellum voices describing the rights of national citizenship as including unenumerated absolute rights were proponents of slavery who insisted they had an unenumerated “right” to own slaves. The abolitionist voices most likely to influence Reconstruction Republicans uniformly described the rights of national citizenship as enumerated constitutional rights. The most significant of these Republicans, John Bingham, always described the privileges or immunities of citizens of the United States as involving constitutionally enumerated rights, and never as unenumerated absolute rights. Bingham’s colleagues in the Thirty-Ninth Congress were well-informed about, and shared a consensus view of, Article IV, Section 2 and cases like Corfield v. Coryell as protecting nothing more than the relative rights of equal treatment in regard to a limited set of “fundamental” rights. Thus, when Jacob Howard named Corfield and the enumerated rights of Article IV as “privileges or immunities of citizens of the United States,” he and his audience understood the limited relative nature of those rights. On the other hand, when members like Bingham and Howard referred to the federal Bill of Rights as privileges and immunities of citizens of the United States, listeners in and outside of Congress would have understood this to be a reference to enumerated constitutional rights. In particular, this is how the public would have understood Bingham’s insistence that he sought to enforce the Bill of Rights against the states and nothing more. Finally, there is no need to force a reading onto the Privileges or Immunities Clause that authorizes the Civil Rights Act. As John Bingham explained, the Civil Rights Act represented an effort to enforce the equal right not to be deprived of life, liberty or property without due process of law—rights covered by the final two clauses of Section One.

H/t: Legal Theory Blog

Hello, again, from Sydney. Legal History Jobs in Australia.

Hi everyone! Sorry this blog is a bit late. I was a bit busy last week, so did not quite get to writing about method. Maybe next time! I thought I’d write instead about how academic careers in legal history work in Australia. This is moderately similar to how they work in the Britain. So hopefully this blog will help you to navigate both systems a little better if you are planning to work outside the United States. Since the number of academic jobs had plummeted in the United States, some of this advice will be relevant to you even if you plan a career in legal history in the U.S.

Context. Australia is small. Its whole population is a bit larger than greater New York City’s. But it has a relatively large university sector and a small but growing legal history scene.

In Australia, academic positions are well-paid jobs with good working conditions. With rare exceptions, salaries are decided by enterprise bargains and there are transparent pathways to promotion. Your raises and promotions are not dependent on getting job offers elsewhere, but rather on demonstrating that you meet clear criteria. The flip-side is that it takes longer to become a full professor. Most will begin as a Level B academic (known as a lecturer, but equivalent to an Assistant Professor). The Professoriate is Level E. Each level has different and greater expectations of research and teaching excellence and sector or public service.

Our unionised system means that work conditions do not differ as much between universities here as they do in the U.S., though some universities put more emphasis on research excellence than others. Most academic positions are 40:40:20 (research, teaching, service). As a sector, though, we are all moving towards more ‘research-track’ and ‘teaching-track’ jobs here which will create big differences in the number of hours spent in front of classrooms by academics within the same institution. We are also casualizing more. In other words, we face the same pressures but in different degrees to our American counterparts.

Most Australian universities are public, and most are located in big cities. So if you are a city person, it is worth a look. Greater Sydney has five major public universities and some private ones. It is expensive here, but in every way gorgeous. Other major cities have similar numbers. There are also some universities in regional centers.

As in the U.S., legal historians in Australia can find work in laws schools or history departments. There are more jobs in law than in history. However, you would be unlikely to be competitive for a job in an Australian law faculty unless you have an Australian or British law degree. This is not uniformly the case, but it is certainly something to consider. Also, not all Australian law faculties are interested in legal history. You should look at the faculty profile or contact someone on faculty if you see a job you would like to apply for. It is usually expected that you will be able to teach into the law core.

History as a discipline has been shrinking in recent years because of declining undergraduate enrolments. As a result, it is hard to get a job in Australia in history unless you have a spectacular resumé. So, after this long introduction let me explain a little how to prep your resumé for our very competitive market, and how to thrive in a job here once you have landed one.

Publish early and well. It is very important to publish at least one piece in a good journal while you are a graduate student. If your dissertation contains a compelling case study that shows off your exciting project, take the time to submit it to a prestigious journal. Most recent tenure track hires in history in at least one of the Times Higher Ed top five universities published an article in a top-tier journal either during their Ph.D. or soon after their graduation. A top-tier journal article marks you out as a special candidate with a great project.

In Australia, to get an entry-level job, you will likely need more than one excellent article. You will also need a book contract. To that end, you should write your dissertation as a book. This is increasingly important in the U.S. market too. You need to come out of your Ph.D. program with a polished, well-crafted, publishable manuscript which you should submit to the best publisher in your field. Do not target a mid-tier publisher. Having a book contract—or better still, a published book—puts you into an entirely different category of job candidate.

Present your work brilliantly. A key way to generate interest in your work and land a book contract as an early career scholar in the U.S. is to give a fantastic paper at the ASLH meeting. In the U.S., publishers attend these meetings and if you deliver a perfectly timed, clearly presented, smart, polished presentation, you will be noticed. Do write out your talk so that it is layered, elegant and well-structured. Do practice it so you can deliver it flawlessly without reading all of it. Anticipate tough questions and think about how you might answer them. Being able to answer questions well demonstrates your caliber as a scholar. I met two publishers at conferences who wanted to read my dissertation after hearing me give a good talk.

Presenting well and publishing early and well is also a way to build what we call esteem markers. If people have read your dissertation / first book and liked it or heard you give a great paper, they tend to invite you places - to join workshops, to give papers in their seminars, even sometimes to give keynotes. Scholarly networks matter in Australia as they do in the U.S.. Collaboration is increasingly valued. My second blog was filled with tips about how to do this. Having really good relationships with people in your field by being a kind, generous (and smart) colleague pays huge dividends in our profession. It makes academic work more fun and it also makes you a much more competitive candidate in our system.

Engage with your discipline. As you progress through your career, you need to do more than to have good networks. You need to show your engagement in the discipline by reviewing grants and book manuscripts, by being invited to participate in program reviews and quality measurement exercises, and by editing good journals. You must show, always, that you are an engaged scholar contributing in multiple ways to academia and to the world beyond it. 

Learn how to speak grant. The other thing that matters to a stellar career in Australia is grant success. Winning a postdoc at a good institution anywhere in the world is a huge sign of peer esteem, and it certainly makes you much more competitive for jobs. If you have set up your early career resumé well, you will have a good chance of being competitive for a DECRA (Discovery Early Career Award) fellowship from the Australian Research Council (fondly known as the ARC). These three-year awards include wages and generous research travel and support funds. They are very prestigious and are only available to people within five years of their graduation. In legal history (if you are submitting it under a history code) you really need to have a good book published or in press to be competitive. The good news is that legal projects seem to be quite competitive here.

Apply for the job properly. If you find a legal history job in Australia, read the application information very carefully. Applications here are quite different from the U.S., where you write a generic job letter, put it in a single system, and ask people to write for you. In Australia, you usually have to write a letter and respond to a set of criteria to show that you are qualified for the job. Many North American candidates do a terrible job of responding to the criteria and it puts them at a huge disadvantage.

Good criteria answers should not just talk about what you have done, they should show that you have a clear research trajectory that fits our system: that you plan to apply for grants, that you have a good next project, that you are planning to aim high. Unless you are applying for a research-only position, you will also be expected to demonstrate a sound pedagogical approach and a sense of how you would contribute to the university beyond your own teaching and research. It is important to do this because an appointment committee will not read your brilliant letters of recommendation until they have shortlisted you. You have to show them first that you are one of the most qualified people for the job.

Be prepared for our crazy grant system. We no longer have tenure in Australia. The prize, here, is a continuing position. To navigate your system successfully, you have to continue to publish often and well, grow your reputation, make some impact through service to your sector or the general public, and win grants. The part of this that will be most alien to Americans is our emphasis on winning external funding. We are most highly rewarded for winning funds from the ARC. But, increasingly, Australians are collaborating with scholars in Europe and Britain or with community groups and businesses on big projects with access to different kinds of funding.

Most mid-career scholars (and advance early career scholars) are expected to compete for Discovery Projects. These are not fellowships, but they provide extremely generous funds (a minimum of $30,000/year over three or more years) to support research and may provide some funds for a semester or two of teaching relief. Increasingly, Discovery Project grants go to groups of scholars rather than individuals which, again, is why it is important to collaborate. If you have an industry or community contact who is happy to partner in your research, you can apply for a Linkage Project grant. If successful, the ARC will support your research project over and above the contribution of your research partner to the project. This is a great way to give back to the community and build relationships with external funders. A distinguished mid-career scholar will also compete for a Future Fellowship—a four-year fellowship for scholars within 15 years of their Ph.D. A very few senior scholars will compete for Laureate fellowships, which give a large amount of money to establish a cluster of Ph.D. students and postdocs working on a really large project.

The application process for all these grant schemes is very rigorous. It includes a 10-page project description and dozens of pages of evidence about your “track record” which is measured “relative to opportunity” (years since Ph.D. in an academic position, with dispensations for major health issues, time out for maternity / paternity leave, etc.). This narrative focuses on your publication record, but also on all of those measures of esteem that I discussed above.

This probably sounds daunting. It is not really. It requires you to plan your career carefully, measure it in milestones, and make careful decisions about what you do, where you publish and when. The Australian university system always asks: “What is next?” If you are that sort of scholar, then it is worth looking at the Australian job market. 

Weekend Roundup

• Our friends over at the Federal Judicial Center have alerted us to their  very useful new webpage, Selected Developments in the History of Supreme Court Jurisdiction. 

• Lucy Salyer, University of New Hampshire, has published the essay The Irish-American Social Club Whose Exploits in Their Homeland Sparked a New Understanding of Citizenship in Zócalo Public Square, as part of the Smithsonian-sponsored series, “What It Means to Be American.”

• Welcome to the blogosphere, History and the Law, moderated by Catherine Evans, Franziska Exeler, Kalyani Ramnath, and Surabhi Ranganathan!  The blog is part of the Exchanges of Economic, Legal and Political Ideas Programme, which is supported at the University of Cambridge by the Andrew W. Mellon Foundation.

• Over at New Books Network there’s a podcast with Andrew Fede on his latest book, Homicide Justified: The Legality of Killing Slaves in the United States and Atlantic World.  Mary Block reviewed the book here, and Jeannine DeLombard reviewed it here.

• As part of its 150-year celebrations, the University of Wisconsin Law School hosted a retrospective event recently on the work and legacies of J. Willard Hurst and Frank Remington. "Law in Actions Innovations in Wisconsin Law School Courses, 1950-1970" featured Dirk Hartog and Malcolm Feeley, plus Wisconsin faculty Bill Clune, Bill Whitford, Cecelia Klingele, and our blogger Mitra Sharafi.

• Advance alert: Testimonial Exclusions and Religious Freedom in Early America, by Jud Campbell, University of Richmond School of Law, is now available from Law and History Review.

• Update: Laura Kalman, "Distinguished Professor of History from University of California, Santa Barbara, Will Present Annual Robert T. Miller Lecture" at Baylor University on March 25.

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

Craig's "Latter Day Lawyers"

Brian Craig, who teaches at Purdue University Global, has published Latter Day Lawyers (Kindle Direct Publishing):

Latter Day Lawyers examines how lawyers and judges who are members of The Church of Jesus Christ of Latter-day Saints have impacted the American legal system. Latter Day Lawyers uncovers the lives and leading cases of lawyers and judges who have shaped American legal history. Meticulously researched, including personal interviews with prominent lawyers, judges, and church leaders, Latter Day Lawyers unveils how a select group of lawyers and judges have influenced the constitutional and legal rights of all Americans.

Selected individuals profiled include U.S. Solicitor General Rex Lee who argued 59 cases before the U.S. Supreme Court and considered one of the greatest Supreme Court litigators; Judge Thomas Griffith on the U.S. Court of Appeals for the D.C. Circuit dubbed the nation's second most powerful court; U.S. District Judge Michael Mosman, a member of the top-secret Foreign Intelligence Surveillance Court; and Dallin H. Oaks, the foremost advocate of religious freedom. Latter Day Lawyers gives an inside look at how certain lawyers and judges have fought to preserve constitutional and legal rights through history under the backdrop of landmark and intriguing cases.

Two endorsements:

"In Latter Day Lawyers, a fascinating collection of short biographies of distinguished lawyers and judges, who are also religiously devout members of The Church of Jesus Christ of Latter-day Saints, Brian Craig has made an important contribution to American legal and religious history. Thoroughly researched and rich in its insight and analysis, Latter Day Lawyers documents how Mormon lawyers and jurists, most of whom have remained unknown at the national level, have profoundly influenced American law and legal history." Rabbi Dr. David Dalin, author of Jewish Justices of the Supreme Court, from Brandeis to Kagan: Their Lives and Legacies

"Professor Brian Craig has written a book that helps fill a void. In the past, there has been little written about the legal contributions of members of the LDS church. I found his book, written with individual chapters on church members and their contributions to the law, fascinating. . . It is a timely piece of legal history." Senator Harry Reid

Jackie Robinson's Civic, Legal, and Political Legacy

Robinson and reporters, Birmingham, 1963 (LC)

[We have word of the following.] 

The Jackie Robinson Symposium: Civic, Legal, and Political Legacy.  National Archives at Kansas City. 1616 East 18th Street, Kansas City, MO 64108.  Monday, April 1, 2019 - 8:00 a.m. to 2:00 p.m.

On Monday, April 1, from 8:00 a.m. - 2:00 p.m., the National Archives at Kansas City in partnership with the Negro Leagues Baseball Museum will host a public symposium The Jackie Robinson Symposium: Civic, Legal, and Political Legacy.  This event will be held at the Negro Leagues Baseball Museum and will include lunch.

This event is held in partnership with UMKC Law School, Park University, and other community partners.  The event also serves as a Continuing Legal Education (CLE) program for regional lawyers, judges and legal professionals. You can register to receive the CLE credit or as a Non-CLE participant.  Registration and more information is here . The program is ideal for legal history, military history, African American history, and sports history scholars and enthusiast.

Cohn and Tarr on Mark Twain's Will

Henry S. Cohn and Adam Tarr have posted A Challenging Inheritance: The Fate of Mark Twain's Will, which is forthcoming in the Quinnipiac Law Review 37 (April 2019): 271-342

Mark Twain, 1907 (LC)

There have been numerous books and essays written about Mark Twain’s final two unhappy years in Redding, Connecticut, as well as several writings capturing the lives, also generally tragic, of his surviving daughter and granddaughter. This article retells some of that story, but from a legal perspective.

The article makes use of documents from the estates of Mark Twain and his descendants, including original wills, probate papers, trust instruments, and court and business filings. This legal perspective concludes on a happier note, explaining how the literary “Mark Twain” has succeeded in the twenty-first century, well beyond his death in 1910.

Scholar Spotlight: European Legal History

Many thanks to everyone featured in our Scholar Spotlight series on European legal history over the past month. Here's the list of interviews in the order they were posted, for your convenience: 

• Saskia Lettmaier
• Sara McDougall
• Mia Korpiola
• Susanne Pohl-Zucker
• Amalia Kessler
• Tessa Leesen
• Elizabeth Papp Kamali
• Helle Vogt
• Catharine MacMillan
• Ada Kuskowski

Ablavsky on the Origins of Dual Federalism

Gregory Ablavsky, Stanford Law School, has posted Empire States: The Coming of Dual Federalism, which is forthcoming in the Yale Law Journal:

This Article offers an alternate account of federalism’s late eighteenth-century origins. In place of scholarly and doctrinal accounts that portray federalism as a repudiation of models of unitary sovereignty, it emphasizes the federalist ideology of dual sovereignty as a form of centralization — a shift from a world of diffuse sovereignty to one where authority was increasingly imagined as concentrated in the hands of only two legitimate sovereigns.

In making this claim, the Article focuses on two sequential late eighteenth-century transformations. The first concerned sovereignty. Pre-Revolutionary ideas about sovereignty reflected early modern corporatist understandings of authority as well as imperial realities of uneven jurisdiction. But the Revolution elevated a new understanding of sovereignty in which power derived from the consent of a uniform people. This conception empowered state legislatures, which, throughout the 1780s, sought to use their status under new state constitutions as the sole repositories of popular authority to subordinate competing claims to authority made by corporations, local institutions, Native nations, separatist movements.

The second shift came with the drafting and ratification of the U.S. Constitution, which bolstered federal authority partly in order to protect state authority against internal competitors, an aim reflected in the Guarantee and New State Clauses. Ultimately, the Constitution both limited and enhanced state authority; it entrenched a framework of dual sovereignty. After ratification, competitors to state sovereignty were increasingly constrained to appeal to some federal right or power. What had previously been contests among supposedly coequal sovereigns—what modern scholars would call horizontal federalism — became a question of vertical federalism, an issue of whether federal authority would vindicate states or their opponents.

Although the Article concludes with some implications of this history for present-day federalism doctrine and theory, its primary contribution is descriptive. Judges and lawyers routinely and almost unthinkingly invoke localism and power diffusion as the historical values of federalism. Yet the history explored here challenges whether these near-universal assumptions about federalism’s aims actually reflect what federalism was designed to accomplish.

Special Issue: Petitioning in South Asia

A special issue of Modern Asian Studies came out in January 2019 on the theme of "Petitioning and Political Cultures in South Asia." Rohit De (Yale University) and Robert Travers (Cornell University) are co-editors. Here's the Table of Contents from MAS 53:1:

• Rohit De and Robert Travers, "Petitioning and Political Cultures in South Asia: Introduction"
• Abhishek Kaicker, "Petitions and Local Politics in the Late Mughal Empire: The view from Kol, 1741"
• Rosalind O'Hanlon, "In the Presence of Witnesses: Petitioning and judicial 'publics' in western India, circa 1600-1820"
• Robert Travers, "Indian Petitioning and Colonial State-Formation in Eighteenth-century Bengal"
• Bhavani Raman, "Civil Address and the Early Colonial Petition in Madras"
• Aparna Balachandran, "Petitions, the City, and the Early Colonial State in South India"
• Julia Stephens, "A Bureaucracy of Rejection: Petitioning and the impoverished paternalism of the British-Indian Raj"
• Prashant Kidambi, "The Petition as Event: Colonial Bombay, circa 1889-1914"
• Rohit De, "Cows and Constitutionalism"
• Nayanika Mathur, "A Petition to Kill: Efficacious arzees against big cats in India"

Further information is available here.

Muller on Hirabayashi as the "Second Monster"

Eric L. Muller, University of North Carolina School of Law, has posted Korematsu, Hirabayashi, and the Second Monster, which is forthcoming in the Texas Law Review:

In June of 2018 the Supreme Court repudiated its notorious 1944 decision in Korematsu v. United States upholding the mass removal of Japanese Americans from the West Coast. While some celebrated its demise and others doubted the Court’s sincerity, nobody paid attention to an equally odious decision that has hidden behind Korematsu: Hirabayashi v. United States. In that 1943 decision the Court unanimously upheld a lesser racial restriction on Japanese Americans, a dusk-to-dawn curfew. Like Korematsu, that decision has never been overruled, but unlike Korematsu, it has never been deeply scrutinized or pervasively condemned. Hirabayashi survives, providing potential cover for all manner of racial rules less burdensome than removal, such as surveillance, identity cards, or house arrest. This essay flushes Hirabayashi from the shadows, revealing it to be just as flawed as Korematsu, considerably more dangerous, and equally deserving of repudiation.

Sepper and Dinner on Sex in Public

Elizabeth Sepper, Washington University in Saint Louis School of Law, and Deborah Dinner, Emory University School of Law, have posted Sex in Public, which is to appear in the Yale Law Journal:

This Article recounts the first history of sex in public accommodations law—a history essential to debates that rage today over gender and sexuality in public. Just fifty years ago, not only sexual minorities but also cisgender women were the subject of discrimination in public. Restaurants and bars displayed "men-only" signs. Women held secondary-status in civic organizations, like Rotary and Jaycees, and were excluded altogether from many professional bodies, like press clubs. Sports—from the Little League to the golf club—kept girls and women from achieving athletic excellence. Insurance companies and financial institutions subsumed married women's identities within those of their husbands. Over the course of the 1970s, the feminist movement protested and litigated against sex discrimination in public accommodations. They secured state laws opening up commerce and leisure for "full and equal enjoyment" by both sexes. At the time "sex" was added to state public accommodations laws, feminists, their opponents, and government actors understood sex equality in public to signify more than equal access to the public sphere. It also implicated freedom from the regulation of sexuality and gender performance and held the potential to transform institutions central to dominant masculinity, like baseball fields and bathrooms. This history informs the interpretation of public accommodations laws in controversies from same-sex couples' wedding cakes to transgender people's restroom access.

Munshi on White Slavery in an Age of Contract

Sherally Munshi, Georgetown University Law Center, has posted White Slavery and the Crisis of Will in the Age of Contract, which appeared in the Yale Journal of Law & Feminism 30 (2018): 327-69:

Recognizing human freedom is never as simple as acts of legal pronouncement might suggest. Liberal abstractions like freedom and equality; legal formulations of personhood, free will, and contract; the constructed divisions between public and private, self and other, home and market on which the former are predicated — these are often inadequate to understanding, let alone realizing, the shared aspirations they supposedly define. By the same token, the dense and dynamic relations of power that characterize any liberal society overwhelm and exceed our critical vocabulary. “Racism,” “sexism,” and “capitalism” powerfully name structures of inequality, but they fail to capture the full spectrum of social relations, practices, and exchanges that reproduce inequality — deep structures of feeling, unspoken common sense, the stories we tell ourselves about the world and our places in it. Focusing on an early twentieth-century case involving an immigrant convicted of “white slavery,” accused of “mesmerizing” his secretary, this Article explores the ways in which the white slave panic and spiritualist practices reflect a set of anxieties about the nature of agency and consent obscured by the universalizing and formalist abstractions of contract law and theory. Through a close reading of competing narratives surrounding the case, this Article seeks to investigate some of the ways in which the rhetorical distortions of law affect the lives of its most vulnerable subjects.

Moréteau, Masferrer, Modéer and friends on comparative legal history

Out with Edward Elgar is Comparative Legal History, edited by Olivier Moréteau (Louisiana State University), Aniceto Masferrer (University of Valencia), and Kjell A. Modéer (University of Lund). From the press: 

Is comparative legal history an emerging discipline or a much-needed dialogue between two academic subjects? This research handbook presents the field in a uniquely holistic way, and illustrates how comparative law and legal history are inextricably related.

Cementing a solid theoretical grounding for the discipline, legal historians and comparatists place this subject at the forefront of legal science. Comprehensive in coverage, this handbook collates theory and method for comparative legal history, as well as discussing international legal sources and judicial and civil institutions. Particular attention is paid to custom and codification, contracts, civil procedure and ownership. By assessing the evolution of law across European, Asian, African and American environments from the pre-modern era to the nineteenth century, the chapters provide stimulating and enlightening cases of legal history through a comparative lens.

A centrepiece for this field of scholarship, this research handbook will be an essential resource for scholars interested in comparative law, legal theory and legal history, from both legal and social science backgrounds.

Contents after the jump:

Scholar Spotlight: Ada Kuskowski

Today's Scholar Spotlight features Ada Kuskowski, University of Pennsylvania. Earlier in this series, 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 interview series aims to showcase female scholars and their work. Its special focus is scholars of European legal history. 

Ada Kuskowski is an assistant professor at the University of Pennsylvania. She lives in Philadelphia, PA, United States. 

Websites:

http://www.history.upenn.edu/people/faculty/ada-maria-kuskowski

https://upenn.academia.edu/AdaMariaKuskowski

Alma maters:

B.A., History, McGill University, 2001.

B.C.L. and L.L.B. (Bachelor of Common Law and Bachelor of Civil Law), McGill University Faculty of Law, 2005.
M.A., History, Cornell University, 2008.

Ph.D., History, Cornell University, 2013.

Fields of interest:

Legal History and Culture, Medieval History, French History, Social Histories of Knowledge, Vernacular Writing and Translation, Court Culture, Colonization and Colonial law.

Describe your career path. What led you to where you are today?

I fell in love with history in my undergraduate classes at McGill University, especially the classes on late antiquity with Elizabeth DePalma Digeser. This was when I realized that I preferred the puzzle of messy periods of transition and change to classic or golden ages. However, I went to law school afterwards, partially out of a perceived need for a “real” profession and partially because Quebec tuition rates for Quebec residents make it possible to go to law school to learn and to think without the burden of great debt and a future of corporate-law work to pay them off.

Studying common law and civil law side by side made clear to what extent law is both a cultural and historical product. I was able to explore that in various independent studies that ranged from the Roman law of treason, to cultural property law debates to histories of codification thanks to generous mentors, namely Nicholas Kasirer, Blaine Baker and Daniel Jutras. I also minored in Classics to pick up the languages to apply to graduate school, because I had decided to see whether I could make a career out of my real passion. I then went to graduate school at Cornell and ended up with a dissertation based on texts I had discovered in a dusty basement section of my law school library. At Cornell, I was the extraordinary beneficiary of the intellectual dynamism and true generosity of Paul Hyams, Bernadette Meyler, Duane Copris and Eric Rebillard. How great a part the human chain plays in academic careers.

What do you like the most about where you live and work?

Penn is full of wonderful historians, medievalists and legal historians and I feel very lucky to be part of such a vigorous and engaging intellectual community. The legal historians have a group called “Writer’s Block,” run by Sophia Lee, Sally Gordon and Serena Mayeri that is especially fruitful for workshopping current work. The library and its fantastic curators are also a terrific resource. My class on the history of property was there yesterday and Dr. Mitch Fraas, senior curator, assembled various delights for the students, including a thirteenth-century dowry agreement, a sixteenth-century will, and a nineteenth-century sheriff’s sale broadsheet from Philadelphia.

What projects are you currently working on?

I am currently completing a book manuscript titled Law in the Vernacular: Composing Customary Law in Thirteenth-Century France. This cultural history of legal knowledge explores the move to set a previously oral custom into writing. This shift from oral to written has been treated legalistically by scholars who describe custom as “crystallizing” and being “set in writing” seemingly on its own. Focusing on the coutumiers, texts written in thirteenth-century Northern France to describe the customs and procedures of secular courts, I argue that these early texts of written custom were authored compositions that changed the world of law.

Their authors chose to write custom in the vernacular, the language of lived law and everyday life, rather than in Latin, the language of the church, universities, and written record until that point. This opened the conceptual world of law to lay people and changed custom from a community practice to an erudite form of vernacular knowledge. This form of knowledge was not aiming at petrifying the “good old law” but at shaping a new intellectual discipline for a new type of jurist, one who knew custom and thought in the vernacular. 

This legal history is thus also a history of the construction and transmission of knowledge, the development of sophisticated modes of thinking outside of the universities, and the effect of the technology of writing on the history of lay thought and institutions.