The Trans-Atlantic slave trade’s legal institution from a regional economic practice into an international financial market originated from Papal grants initiated during the 16th century. Territories and nation states party to this grant referred to it as the Asiento, as later affirmed by international custom and bilateral treaties. This article will discuss the origins of the Asiento, the legal framework in which the Papacy granted parties’ authority to transfer and other manners in which this contract was conveyed, its effects on Africans and Africans of the Diaspora, and on international conflict, which arose from the coveted slave trade monopoly. As a result, many nations, monarchs, corporations and Western seaboard economies financially benefited from the Trans-Atlantic slave trade through condonation and participation. The author argues that the Asiento evolved into the lawful nucleus which transformed the Trans-Atlantic slave trade into a flourishing international market of human commodities until its legal extermination through international intervention. The article concludes that, as a result of the Papacy’s intimate participation in the origins of the Asiento and as holders of African slaves, it is obliged to provide international restitution to those of the African Diaspora adversely affected by its vestiges.
In 1934, Carl Schmitt, then the crown jurist of the Third Reich, writes in an essay titled National Socialist Legal Thought about “[a] conversation with a world-famous, world travelled, experienced scholar of more than seventy years of age from the United States [which] belongs to the major experiences and encounters I have had as a jurist in the service of National Socialism.” Schmitt never revealed the identity of the scholar whom he met. Based on Schmitt’s diaries, I reveal that the scholar whom Schmitt met was Josef Redlich. Born to a Jewish family in 1869, Redlich was the Fairchild Professor of Comparative Public Law at Harvard Law School at the time he met Schmitt in 1931. According to Schmitt’s 1934 essay, the conversation focused on insights relating to the indeterminacy of legal norms as well as on a nihilist understanding of the era. Yet Schmitt drew conclusions from the encounter which hardly correspond to Redlich’s views. My essay first puts the ideas that Schmitt adopted from his encounter with the “American scholar” in the context of the era. Second, I examine Schmitt’s diaries as well as other relevant materials in order to prove that Redlich is the scholar whom Schmitt met. In the process, I exclude Roscoe Pound, the Dean of Harvard Law School at that time, who was the previous “prime suspect” for this encounter with Schmitt. Even after my discovery of the identity of the scholar to whom Schmitt refers in his essay, the story of Schmitt and Redlich’s encounter remains mysterious: the ideas of a scholar of Jewish descent, who believed in an Austrian multi-national, federal state, inspired and played a profound role in the formulation of a blatantly antisemitic essay promoting National Socialist legal thought by the crown jurist of the Nazi regime. After examining the contradictions between Redlich and Schmitt’s positions, I offer an explanation for why Schmitt viewed this encounter as so influential on his road to National Socialism.
Josef Redlich (LC)
Exactly 92 years after the infamous Buck v. Bell decision, the Center presents a partial screening of “A Dangerous Idea: Eugenics, Genetics and the American Dream”—an award-winning documentary exploring the legal history of the eugenics movement in the United States. Following the screening, the film’s executive producer, writer, and attorney Andrew Kimbrell, acclaimed author and journalist Daniel Okrent, and law and bioethics scholars Paul Lombardo and Dorothy Roberts discuss the dark history of eugenics and the Constitution. CLE credit available. A DVD signing with Andrew Kimbrell and book signing with Daniel Okrent will follow the program.H/t: Main Line Today. --Dan Ernst
This article examines and assesses Stanley Surrey’s view of the federal tax legislative process. One of the most influential tax professionals of the twentieth century, Surrey is likely best known for his advocacy of specific tax policy ideas. But Surrey saw legislation as the prime route for adoption of most of his ideas, and he thus focused and provided many commentaries on the tax legislative process. He drew on extensive experience with the process, serving two lengthy terms (almost 20 years) in the Treasury Department, and remaining closely involved with it throughout his academic years.H/t: Legal Theory Blog
This article shows that Surrey’s faith in expertise and fierce commitment to tax equity and fairness led him to believe that Treasury should play the dominant role in the legislative process. He never wavered in his belief even after his view was vigorously challenged by members of the Senate during his confirmation hearing to be Assistant Secretary of the Treasury, and even following periods when he perceived the Treasury as not acting in the public’s interest. Treasury dominated the tax legislative process during the early years of the modern income tax but it never reached the same level of influence during Surrey’s lifetime. In fact, the changes in the process that Surrey experienced generally moved it further and further away from his preferred outcome. This article provides evidence that some of Surrey’s experiences with congressional staff during his first term in government played a formative role in his thinking. It also suggests that Surrey favored a top-down approach to the legislative process to ease adoption of Treasury’s views.
Praise for the book:In 1865, the British rulers of north India resolved to bring about the gradual 'extinction' of transgender Hijras. This book, the first in-depth history of the Hijra community, illuminates the colonial and postcolonial governance of gender and sexuality and the production of colonial knowledge. From the 1850s, colonial officials and middle class Indians increasingly expressed moral outrage at Hijras' feminine gender expression, sexuality, bodies and public performances. To the British, Hijras were an ungovernable population that posed a danger to colonial rule. In 1871, the colonial government passed a law that criminalised Hijras, with the explicit aim of causing Hijras' 'extermination'. But Hijras evaded police, kept on the move, broke the law and kept their cultural traditions alive. Based on extensive archival work in India and the UK, Jessica Hinchy argues that Hijras were criminalised not simply because of imported British norms, but due to a complex set of local factors, including elite Indian attitudes.
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| Judge Damon J. Keith (wiki) |
Just up from Law and History Review on Cambridge Core:The rule against compelled subsidization of speech is at the forefront of modern First Amendment disputes. Challenges to mandatory union dues, laws preventing discrimination on the basis of sexual orientation, and the federal “contraceptive mandate” have all featured variants of the anti-subsidization principle, reasoning that the government cannot compel people to support the objectionable activities of others. But the literature currently fails to evaluate modern compelled-subsidy doctrine in terms of the original meaning of the First Amendment. This Essay takes up that task.H/t: Legal Theory Blog
Approaching any question of original meaning requires a willingness to encounter a constitutional world that looks very different from our own. And that is especially true when it comes to the First Amendment. In certain contexts, some Founders argued that compelled subsidies violated their rights. But these were contested arguments. The challenge, then, is to situate Founding Era ideas in a historical frame that may bear little resemblance to modern law. Such a frame, this Essay argues, indicates that rights of expression and religious exercise — undergirded by freedoms of thought and conscience — neither entirely excluded nor inviolably privileged arguments against compelled subsidies. Rather than providing determinate answers, the Founding-Era conception of rights encouraged active debate about the boundaries of governmental power. Compelled-subsidy doctrine thus sits in a precarious position — within the bounds of reasonable historical argument but also deeply novel in its modern rigidity and judicial enforceability.
When the Los Angeles neighborhood of Watts erupted in violent protest in August 1965, the uprising drew strength from decades of pent-up frustration with employment discrimination, residential segregation, and poverty. But the more immediate grievance was anger at the racist and abusive practices of the Los Angeles Police Department. Yet in the decades after Watts, the LAPD resisted all but the most limited demands for reform made by activists and residents of color, instead intensifying its power.
In Policing Los Angeles, Max Felker-Kantor narrates the dynamic history of policing, anti-police abuse movements, race, and politics in Los Angeles from the 1965 Watts uprising to the 1992 Los Angeles rebellion. Using the explosions of two large-scale uprisings in Los Angeles as bookends, Felker-Kantor highlights the racism at the heart of the city's expansive police power through a range of previously unused and rare archival sources. His book is a gripping and timely account of the transformation in police power, the convergence of interests in support of law and order policies, and African American and Mexican American resistance to police violence after the Watts uprising.A few blurbs:
"A richly researched study, this book should be read by anyone hoping to understand the intensity of policing in Los Angeles since the 1965 Watts Rebellion. Using new archival finds, it is a page-turning chronicle of race, capitalism, and state violence in the heart of the city."--Kelly Lytle Hernandez
"A deft combination of political and social history, Policing Los Angeles adds rich depth to the emerging histories of the expanding carceral state in the second half of the twentieth century. With the LAPD as subject, this book is at once a local and a national story of urgent significance."--Dan BergerAnd here's the link to the New Books Network author interview.
The history of modern crime control is usually presented as a narrative of how the state wrested control over the governance of crime from the civilian public. Most accounts trace the decline of a participatory, discretionary culture of crime control in the early modern era, and its replacement by a centralized, bureaucratic system of responding to offending. The formation of the 'new' professional police forces in the nineteenth century is central to this narrative: henceforth, it is claimed, the priorities of criminal justice were to be set by the state, as ordinary people lost what authority they had once exercised over dealing with offenders.
This book challenges this established view, and presents a fundamental reinterpretation of changes to crime control in the age of the new police. It breaks new ground by providing a highly detailed, empirical analysis of everyday crime control in Victorian provincial cities - revealing the tremendous activity which ordinary people displayed in responding to crime - alongside a rich survey of police organization and policing in practice. With unique conceptual clarity, it seeks to reorient modern criminal justice history away from its established preoccupation with state systems of policing and punishment, and move towards a more nuanced analysis of the governance of crime. More widely, the book provides a unique and valuable vantage point from which to rethink the role of civil society and the state in modern governance, the nature of agency and authority in Victorian England, and the historical antecedents of pluralized modes of crime control which characterize contemporary society.Praise for the book:
This article examines the history of two limitations on witness capacity in the US: prohibitions on court testimony by individuals with infamous or felony convictions and prohibitions on testimony by criminal defendants. Most states had eliminated these laws by the 1880s, but change took a regional pattern. Southern states were more likely than non-southern states to continue prohibitions on testimony by defendants and/or those with former convictions into the late nineteenth and, in some cases, twentieth century. During the 1880s, when most states were expanding access to witness testimony, Alabama, Arkansas and South Carolina narrowed it by barring witness testimony by individuals convicted of misdemeanor larceny. Tennessee prohibited individuals with infamous convictions from testifying in civil cases until 1953, a prohibition that also included misdemeanor larceny. The article begins with the case of a Tennessee coal miner who was denied workers compensation in 1941 because he could not testify to his injury due to a prior misdemeanor larceny conviction. Georgia's prohibition on defendant testimony stayed on the books until 1961 when the US Supreme Court struck it down in Ferguson v. State of Georgia. This chapter documents and offers an explanation for this instance of southern exceptionalism, arguing that it was rooted in the desire to deny legal and civil equality to African Americans that characterized the Jim Crow era.
Immediately after the Civil War, freedmen and freedwomen faced an uncertain legal landscape, caught between former owners, reactionary state courts, and a still-potent federal military presence. A system of federal Freedmen’s Bureau courts provided many freedpeople with a forum to seek justice outside of often-hostile state courts. A remarkably complete set of documents from one Bureau Court in Leon County, Florida, reveals the extent to which freedpeople and local white legal elites used the new federal court for their respective benefits. The case of Bill, Charles, Jupiter, Randolph, et al. v. William A. Carr provides a new analytical framework to consider the post-Civil War legal landscape in the South. Not only were freedpeople eager to appear before these federal tribunals, but Southern white lawyers — facing immense political uncertainty in 1865 and 1866 — were willing to practice in Bureau courts. Both groups’ legal arguments reflected the most pressing issues of the time: fair contracting and compensation for freedpeoples’ labor; the desire for societal order and stability; and competing notions of subjugation over a recently enslaved group versus justice and equality for them. The success of black people in gaining access to the legal system benefited local white communities and especially white professional lawyers through fees, career advancement, and reputation. Meanwhile, the success of white lawyers in forums like the Bureau courts benefited freedmen, presenting them with skilled allies in new judicial spaces where their rights and freedoms could be articulated, defended, and advanced.
A Freedmen's Bureau Office (NYPL)
George Aumoithe (Postdoctoral Research Associate, Princeton University)
Myisha Eatmon (Ph.D. Candidate, Northwestern University)
José Argueta Funes (Ph.D. Candidate, Princeton University)
Aaron Hall (Postdoctoral Fellow, Cornell University)
Larissa Kopytoff (Instructor, University of South Florida St. Petersburg)
Julia Leikin (British Academy Postdoctoral Fellow, University of Exeter)
Brianna Nofil (Ph.D. Candidate, Columbia University)
Emily Prifogle (Ph.D. Candidate, Princeton University)
Sanne Ravensbergen (Postdoctoral Researcher and Lecturer, Leiden University)
Allison Schwartz (Ph.D. Candidate, University of Minnesota)
Mariam Sheibani (Visiting Research Fellow, Harvard University)Jesse Watson (Ph.D. Candidate, University of California, Berkeley)
On August 11 and 12, 2017, Charlottesville, Virginia—the home of the University of Virginia and this law journal—played unwitting host to two days of white nationalist and neo-Nazi rallies and violence. From the moment the events unfolded, it was clear that they resonated beyond Charlottesville itself. They preoccupied observers far flung from Charlottesville both for the violence and loss of life on display and for the stark evidence they provided of deep and enduring fault lines within our nation and our society.
This Foreword introduces a symposium focused on the racial implications and reverberations of August 11-12. The conference that produced these articles brought an annual national meeting of empirical critical race theorists to Charlottesville to train their considerable intellectual talents on the first anniversary of August 11-12. The resulting scholarship asks what we can learn from August 11-12 about the legal underpinnings of white supremacy in the United States, from the beginning of its history to the violence in 2017 and beyond. It investigates the surprise with which so many responded to August 11-12 and shows us why we should not be surprised. The articles in this symposium bring us closer to real and enduring change by requiring and inviting us to remember what has disappeared, to recast the historical narrative, and to ask anew what role the law has played in bringing us to this moment and what role it can and must play in moving us forward once again.
A few blurbs:Between 1822 and 1857, eight Southern states barred the ingress of all free black maritime workers. According to lawmakers, they carried a 'moral contagion' of abolitionism and black autonomy that could be transmitted to local slaves. Those seamen who arrived in Southern ports in violation of the laws faced incarceration, corporal punishment, an incipient form of convict leasing, and even punitive enslavement. The sailors, their captains, abolitionists, and British diplomatic agents protested this treatment. They wrote letters, published tracts, cajoled elected officials, pleaded with Southern officials, and litigated in state and federal courts. By deploying a progressive and sweeping notion of national citizenship - one that guaranteed a number of rights against state regulation - they exposed the ambiguity and potential power of national citizenship as a legal category. Ultimately, the Fourteenth Amendment recognized the robust understanding of citizenship championed by Antebellum free people of color, by people afflicted with 'moral contagion'.
'Schoeppner’s pathbreaking book reconceptualizes the national story of citizenship to include a broader cast of characters and an earlier timeline, demonstrating the significance of the Negro Seamen Acts to American legal history. This elegantly-written work reminds us of the centrality of movement for African Americans as they struggled over the meaning of citizenship rights.' -- Kelly Kennington
'Mariners stood at the forefront of struggles over US citizenship from the Revolution to the Civil War. In Moral Contagion … Schoeppner reveals how state laws regulating the mobility of black sailors became a focal point for debates in the antebellum period over the substantive rights conferred by national citizenship. Speaking to questions about federal power and racial equality in the Atlantic world, his book will become essential reading for students and scholars interested in the contested history of American citizenship.' -- Nathan Perl-RosenthalMore information is available here. And here's Professor Schoeppner talking about the book over at the New Books Network.
Less than a decade ago, the High Court said, in effect, that State Supreme Courts have substantially the same entrenched jurisdiction to issue relief in the nature of the prerogative writs as the Constitution confers on the High Court. The New South Wales Court of Appeal reads this narrowly, holding that only three specific remedies are protected, together with the rules and limitations that existed at federation. If correct, we might see the emergence of two bodies of doctrine, the old law of remedies, and the new law of "judicial review" (a concept that emerged only after federation). In an unrelated case, six High Court judges implied a limited privative clause ousting non-jurisdictional certiorari. The seventh judge said that this was unnecessary, because in his view, that branch of certiorari conflicts with judicial review fundamentals, is historically misconceived, and should apply only where the reviewing court can try the matter afresh. This article reviews these developments, discusses their rationales, and questions both the history and its importance.
Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as a scholar. Experience over the last two years has reminded us that, in times of aspiring authoritarianism in the executive branch and serial subservience in the legislative branch, independent and accountable courts are the bulwark of our freedoms. Those who lived through Watergate should not need the reminder.
Almost Citizens unfolds in two parts. The first concerns Federico Degetau, a legal idealist. He believed that the Supreme Court would, if squarely presented with the issue, adhere to settled constitutional understandings and judge Puerto Ricans to be rights-rich U.S. citizens of a future state. That never happened. The book’s second half focuses on Puerto Ricans who use politics to gain rights. They have more success. Yet the book is sympathetic to Degetau. The afterword pines for a revival of older constitutional understandings. So which is it: Is law or politics dominant? Was Degetau savvy or naïve?
The legal profession once operated on a smaller scale—folksy lawyers arguing for fairness and justice before a judge and jury. But by the year 1900, a new type of lawyer was born, one who understood business as well as the law. Working hand in glove with their clients, over the next two decades these New York City “white shoe” lawyers devised and implemented legal strategies that would drive the business world throughout the twentieth century. These lawyers were architects of the monopolistic new corporations so despised by many, and acted as guardians who helped the kings of industry fend off government overreaching. Yet they also quietly steered their robber baron clients away from a “public be damned” attitude toward more enlightened corporate behavior during a period of progressive, turbulent change in America.
Author John Oller, himself a former Wall Street lawyer, gives us a richly-written glimpse of turn-of-the-century New York, from the grandeur of private mansions and elegant hotels and the city’s early skyscrapers and transportation systems, to the depths of its deplorable tenement housing conditions. Some of the biggest names of the era are featured, including business titans J. P. Morgan and John D. Rockefeller, lawyer-statesmen Elihu Root and Charles Evans Hughes, and presidents Theodore Roosevelt, William Howard Taft, and Woodrow Wilson.
Among the colorful, high-powered lawyers vividly portrayed, White Shoe focuses on three: Paul Cravath, who guided his client George Westinghouse in his war against Thomas Edison and launched a new model of law firm management—the “Cravath system”; Frank Stetson, the “attorney general” for financier J. P. Morgan who fiercely defended against government lawsuits to break up Morgan’s business empires; and William Nelson Cromwell, the lawyer “who taught the robber barons how to rob,” and was best known for his instrumental role in creating the Panama Canal.
In White Shoe, the story of this small but influential band of Wall Street lawyers who created Big Business is fully told for the first time.
