History’s Failures and Historians’ Duties

“History has failed us, but no matter.” So begins Pachinko, a novel by Min Jin Lee. The claim that history has come up short assumes that history is supposed to do something. Historians have often asked themselves this question, particularly when debating the uses of history. But Lee made me think about this question from the perspective of non-historians or the “us” in that first line—zainichi Koreans who were denied even second-class citizenship in Japan. What did Lee mean by her opening sentence? What do people who have suffered expect of history? Do—and should—their expectations inform the work that historians do?

Lee could be referring to history as an event, as in, “the passage of the Voting Rights Act made history” or, to use an example from Pachinko, the end of Japan’s occupation of Korea. Such history-making events and individuals create expectations for a better future, and if that future doesn’t materialize, then, well, history has failed us. Perhaps this is why the war ends in Pachinko without much ado; it didn’t change the lives of the zainichi very much. But no matter. Life goes on; the struggle never ends.

Or, Lee could be referring to history as a discipline that seeks to reconstruct or remember the past. If history in this sense forgets a group of people, then, yes, history has failed them. Is this why Lee wrote Pachinko? Lee didn’t learn about the zainichi from history books. And I never fully grasped their plight until I read Pachinko—and I majored in history with a certificate in East Asian Studies! Another aspect of this failure of history is that it tends to prioritize the types of sources that forgotten people usually don’t leave behind. But no matter. Historical fiction may have been Lee’s attempt to fill in where the record remains frustratingly thin, her effort to portray zainichi characters with the full range of emotions that made them human.

Or, a third interpretation: Lee could be referring to history as an endeavor that sheds light on past injustices. In this case, history works to raise awareness and perhaps also to restore justice. Failure, here, is a fraught subject and raises questions that many legal historians, especially those in law schools, often get. What’s the takeaway? Are there any doctrinal or policy implications? These are fair questions because it’s a rare case when history does not take a moral stance; it’s baked into the narrative structure. (Which is not the same issue as whether historians can be objective. One can both hold values and be faithful to sources.) If you start with this position, as I do, then the relevant question isn’t so much about whether there are normative conclusions as it is about how such conclusions should appear in the histories that we tell.

All three of these ideas about history, its aims, and its failures get at the question of the historian’s duty, beyond fidelity to sources and professional norms. First of all, do historians have a duty to complicate the past, even the heroes or milestones that we wish to celebrate? Many historians take “problematizing” to be part of their task, so this might not seem so controversial. But there are times and places when it was dangerous to do so. Fortunately, it’s expected today to tell the unvarnished truth. Still, I suspect that this is more difficult to do in practice than we realize when it comes to people, events, and ideas that are closer to us in time. Even harder still, I think, is bringing together celebratory and critical histories.

Does our quest to understand the past include a duty to look for under-represented and forgotten experiences? Historians for some time now have paid more attention to neglected subjects and made brilliant use of historical imagination. But should that attention be a part of every historical project in some way? This question is tricky because it comes close to telling others what to study, which, just as a practical matter, is a futile endeavor. But there’s another way to think about this. Wouldn’t our histories be more complete, and closer to the truth, by including more perspectives? If so, then wouldn’t best practices oblige us to look far and wide?

And finally, does our knowledge of the past impose a duty on us to take action in the present? A more seasoned colleague recently told me that, contrary to the doom-and-gloom talk, academic books are thriving. But their purpose has changed. It used to be that a book represented the culmination of a scholar’s exhaustive research; nothing more was left to say after publication. Today, a book serves as a platform for the author to keep talking. Even if this observation were wrong, it is true that historians are often asked for their thoughts on current issues. Would we be squandering our expertise if we choose to stay in our cloistered studies? Should the scholarly pursuit be enough? On the flip side, are op-eds, amicus briefs, or law review articles enough?

I recognize how privileged academics are to be able to do what we do, and that privilege seems to demand a return, in particular to give voice to people and ideas that haven’t been heard. All the more so when historical knowledge can be influential, especially in a legalistic society that values precedent. (Tangentially, from what I gather, an historian apparently won in the Game of Thrones.) What we do with our privilege and power is certainly a personal decision that depends on particular circumstances and abilities, so it’s a question worth thinking about regularly.

It’s also been a privilege for me to blog this month. I’m grateful to the stewards of LHB for the opportunity, and to LHB followers for reading, which is, really, the greatest affirmation that a writer can receive.

Sarah Seo

LSA Hurst Prize in Socio-Legal History to De, Welch

The Law and Society Association has announced the winner (co-winners, this year!) of the J. Willard Hurst Prize. As the LSA website explains:

In the spirit of Willard Hurst's own work, the Hurst Prize is given to the best work in socio-legal history. The field of socio-legal history is broadly defined to include the history of interrelationships between law and social, economic, and political change; the history of functions and impact of legal agencies, legislative and administrative as well as judicial; the social history of the legal profession; and similar topics. Self-nominations are accepted. Nominators must be current LSA members.

This year's winners are Rohit De (Yale University) for A People's Constitution: The Everyday Life of Law in the Indian Republic (Princeton University Press) and recent guest blogger Kimberly M. Welch (Vanderbilt University) for Black Litigants in the Antebellum American South (University of North Carolina Press).

The official citations:

Rohit De’s book is legal history at its best. It takes on a broad geography and a big topic, but does so with unrelenting texture and precision. The committee was particularly impressed with De’s ability to fill the gaping hole in the historiography of law in 20th-century India: by exploring the histories of the encounter between ordinary litigants and the Supreme Court, he places Indian legal history on the same historiographical terrain as the literature on the United States and Europe. In four highly readable case studies, De effortlessly guides his readers through the thickets of postcolonial India’s legal landscape. Throughout, he asks them to pause and reflect on how they might conceptualize the work that law does in this world -- and indeed, what law itself is. His writing bears the imprint of generations of scholarship on law, society, and government, but does so with a lightness and grace that renders the prose accessible to readers across fields and disciplines, all of whom will find in the book a topic, theme, actor, or debate that will make them feel at home in new historiographical terrain. Put plainly, A People’s Constitution is a field-defining text: it marks out a wholly new territory of 20th-century legal history and establishes South Asia as the centerpiece of the conversation on global legal history. It will be an inescapable reference for generations.

In this deeply contextualized study of litigation over property, contracts, wages, debt, and even assault, Kimberly Welch exposes the concrete features and broad contours of a legal landscape that we had previously only guessed at. She accomplishes this feat through a research journey that can be described only as heroic: she spent weeks in county courthouses in Louisiana and Mississippi, usually in dank, insect-ridden basements, carefully unbinding case records that had never been opened. Both her method and her inquiry are fundamentally Hurstian. She asks: who was filing suits in local courts in the antebellum South? How well did free blacks and slaves alike fare in a white-dominated legal system, in which their own status was circumscribed by the racist assumptions of slave-holding society? Welch uses more than one thousand case records to uncover deeply human stories of alliances between blacks seeking to recover and whites seeking to protect their reputations. This crisply argued book sits in collegial dialogue with generations of historians who have written about the history of law, race, and slavery. Welch engages deeply with the extensive literature on the black legal experience in the American south, blending a sophisticated balance of fine-grained detail and broad brush strokes in a captivating narrative.

The pictures above come from our own Mitra Sharafi (via twitter). They show the co-winners at the awards ceremony with LSA president Kim Scheppele and chair of the J. Willard Hurst Book Prize Committee Vicky Woeste.

-- Karen Tani

Icenhauer-Ramirez's "Treason on Trial"

Robert Icenhauer-Ramirez, an attorney holding a doctorate in history from the University of Texas, Austin, has published Treason on Trial: The United States v. Jefferson Davis, in LSU Press’s book series, Conflicting Worlds: New Dimensions of the American Civil War:

In the immediate aftermath of the Civil War, federal officials captured, imprisoned, and indicted Jefferson Davis for treason. He faced execution if found guilty for his role in levying war against the United States. Although the federal government pursued the charges for over four years, the case never went to trial. Most historical analyses of the case focus on interpreting the political reasons why that happened by analyzing the reasons in the broadest national contours. According to Robert Icenhauer-Ramirez, these global assessments, while important, do not attempt to discern how the lives and experiences of those individuals responsible for either prosecuting or defending Davis, or those with a direct interest in the outcome, influenced the handling of the case. He argues that while national politics had a role in the direction of the case, it was the actions and decisions of lesser-known men and women that ultimately were responsible for the failure to convict Davis. Treason on Trial: The United States v. Jefferson Davis focuses on precisely why that happened.

--Dan Ernst

Somos, "American States of Nature"

New from Oxford University Press: American States of Nature: The Origins of Independence, 1761-1775, by Mark Somos (Max Planck Institute for Comparative Public Law and International Law). A description from the Press:

American States of Nature transforms our understanding of the American Revolution and the early makings of the Constitution. The journey to an independent United States generated important arguments about the existing condition of Americans, in which rival interpretations of the term "state of nature" played a crucial role. "State of nature" typically implied a pre-political condition and was often invoked in support of individual rights to property and self-defense and the right to exit or to form a political state. It could connote either a paradise, a baseline condition of virtue and health, or a hell on earth. This mutable phrase was well-known in Europe and its empires. In the British colonies, "state of nature" appeared thousands of times in juridical, theological, medical, political, economic, and other texts from 1630 to 1810. But by the 1760s, a distinctively American state-of-nature discourse started to emerge. It combined existing meanings and sidelined others in moments of intense contestation, such as the Stamp Act crisis of 1765-66 and the First Continental Congress of 1774. In laws, resolutions, petitions, sermons, broadsides, pamphlets, letters, and diaries, the American states of nature came to justify independence at least as much as colonial formulations of liberty, property, and individual rights did. In this groundbreaking book, Mark Somos focuses on the formative decade and a half just before the American Revolution. Somos' investigation begins with a 1761 speech by James Otis that John Adams described as "a dissertation on the state of nature," and celebrated as the real start of the Revolution. Drawing on an enormous range of both public and personal writings, many rarely or never before discussed, the book follows the development of America's state-of-nature discourse to 1775. The founding generation transformed this flexible concept into a powerful theme that shapes their legacy to this day. No constitutional history of the Revolution can be written without it.

A few blurbs:

"An invaluable contribution to our understanding of the origins of the American Revolution-Somos' meticulous, closely argued analysis of the development and deployment of distinctively American ideas about the 'state of nature' offers a fresh and illuminating perspective on why patriots ultimately embraced (and loyalists resisted) the break with Britain. This is conceptual history at its very best."—Peter S. Onuf 

"In the vast volume of literature on the American Revolution, Somos' 'American States of Nature' stands out as a provocative and original contribution to its intellectual and legal history. Canvassing sources from the canonical and familiar to the unexpected and neglected, he carefully reconstructs the forgotten history of the 'state of nature' discourse in the American colonies, revealing its significance in the decades culminating in 1776. This painstaking and important work should lead us to revise conventional narratives concerning the Revolution and its relation to American constitutional origins, development, and self-understanding."—David Grewal

More information is available here.

-- Karen Tani

Maltz on Justice Powell's Jurisprudence

Earl Maltz, Rutgers Law School, has posted The Triumph of the Southern Man: Dowell, Shelby County, and the Jurisprudence of the Justice Lewis F. Powell, Jr.:

Justice Lewis F. Powell, Jr. (LC)

The year 2018 witnessed widespread celebrations of the life and legacy of Dr. Martin Luther King, Jr., who was assassinated fifty years ago in Memphis, Tennessee. Yet if Dr. King were alive today, he would no doubt be dismayed by the path taken by the Supreme Court’s treatment of race-related issues in recent years. Not only has the Court abandoned the quest for school desegregation, but the 2013 decision in Shelby County v. Holder substantially reduced the effectiveness of the Voting Rights Act of 1965, which was the most important legislative monument to Dr. King’s efforts.

By contrast, these developments would no doubt have pleased Lewis F. Powell, Jr., a harsh critic of Dr. King who joined the Supreme Court less than four years after King’s death. Prior to taking his seat on the Court, Powell had been openly critical of the decision in Brown v. Board of Education, and in his capacity as chair of the school board of Richmond, Virginia, had worked ceaselessly to limit the pace and scope of the desegregation of the Richmond schools. Moreover, even before joining the Supreme Court, Powell actively sought to limit the impact of the Voting Rights Act on the decisionmaking authority of state and local governments in the South. Similarly, in the cases that came before him, Powell consistently voted to limit the scope of remedial orders in desegregation cases and argued that the Constitution imposed important limits on the scope of congressional authority to deal with the issues that the Voting Rights Act was designed to address.

Powell had only limited success in persuading a majority of his colleagues to support him on these issues. However, the reasoning of the Court’s decisions in the years after Powell left the Court in 1987 have often embraced the arguments made by Powell during his tenure as a justice. This article not only explores Powell’s background and jurisprudence, but also provides the first scholarly discussion of the relationship between his views and the positions currently taken by the Court.

--Dan Ernst

Moyn on human rights and inequality

Samuel Moyn, Yale University has published Not Enough: Human Rights in an Unequal World with Harvard University Press. From the publisher:

The age of human rights has been kindest to the rich. Even as state violations of political rights garnered unprecedented attention due to human rights campaigns, a commitment to material equality disappeared. In its place, market fundamentalism has emerged as the dominant force in national and global economies. In this provocative book, Samuel Moyn analyzes how and why we chose to make human rights our highest ideals while simultaneously neglecting the demands of a broader social and economic justice.

In a pioneering history of rights stretching back to the Bible, Not Enough charts how twentieth-century welfare states, concerned about both abject poverty and soaring wealth, resolved to fulfill their citizens’ most basic needs without forgetting to contain how much the rich could tower over the rest. In the wake of two world wars and the collapse of empires, new states tried to take welfare beyond its original European and American homelands and went so far as to challenge inequality on a global scale. But their plans were foiled as a neoliberal faith in markets triumphed instead.

Moyn places the career of the human rights movement in relation to this disturbing shift from the egalitarian politics of yesterday to the neoliberal globalization of today. Exploring why the rise of human rights has occurred alongside enduring and exploding inequality, and why activists came to seek remedies for indigence without challenging wealth, Not Enough calls for more ambitious ideals and movements to achieve a humane and equitable world.

In praise of the book:

“No one has written with more penetrating skepticism about the history of human rights than Samuel Moyn… In Not Enough, Moyn asks whether human-rights theorists and advocates, in the quest to make the world better for all, have actually helped to make things worse… This book, like the author’s last, is the rare academic study that is sure to provoke a wider discussion about important political and economic questions.”—Adam Kirsch

“[Moyn] effectively provincializes an ineffectual and obsolete Western model of human rights… Moyn’s book is part of a renewed attention to the political and intellectual ferment of decolonialisation, and joins a sharpening interrogation of the liberal order and the institutions of global governance created by, and arguably for, Pax Americana… [The book’s] critical—and self-critical—energy is consistently bracing, and is surely a condition of restoring the pursuit of equality and justice as an indispensable modern tradition.”—Pankaj Mishra

Further information is available here.

-Mitra Sharafi

Whittington on "Judicial Review Acts of Congress from the Founding to the Present"

The University of Press of Kansas has published Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present (May 2019), by political scientist Keith E. Whittington (Princeton University). A description from the Press:

When the Supreme Court strikes down favored legislation, politicians cry judicial activism. When the law is one politicians oppose, the court is heroically righting a wrong. In our polarized moment of partisan fervor, the Supreme Court’s routine work of judicial review is increasingly viewed through a political lens, decried by one side or the other as judicial overreach, or “legislating from the bench.” But is this really the case? Keith E. Whittington asks in Repugnant Laws, a first-of-its-kind history of judicial review. 

A thorough examination of the record of judicial review requires first a comprehensive inventory of relevant cases. To this end, Whittington revises the extant catalog of cases in which the court has struck down a federal statute and adds to this, for the first time, a complete catalog of cases upholding laws of Congress against constitutional challenges. With reference to this inventory, Whittington is then able to offer a reassessment of the prevalence of judicial review, an account of how the power of judicial review has evolved over time, and a persuasive challenge to the idea of an antidemocratic, heroic court. In this analysis, it becomes apparent that that the court is political and often partisan, operating as a political ally to dominant political coalitions; vulnerable and largely unable to sustain consistent opposition to the policy priorities of empowered political majorities; and quasi-independent, actively exercising the power of judicial review to pursue the justices’ own priorities within bounds of what is politically tolerable. 

The court, Repugnant Laws suggests, is a political institution operating in a political environment to advance controversial principles, often with the aid of political leaders who sometimes encourage and generally tolerate the judicial nullification of federal laws because it serves their own interests to do so. In the midst of heated battles over partisan and activist Supreme Court justices, Keith Whittington’s work reminds us that, for better or for worse, the court reflects the politics of its time.

A sample of advance praise:

Keith Whittington’s invaluable and comprehensive survey of Supreme Court decisions striking down--and upholding—federal statutes carefully maps the complex relations between the Court and the political coalitions that produce, support, or sometimes abandon the laws the Court reviews. Bringing insights from American political development to bear, Whittington has supplanted Robert Dahl’s classic work while preserving its core. Everyone interested in American political development and the Supreme Court must now take this work into account.” —Mark Tushnet

More information is available here.

-- Karen Tani

In conjunction with the publication of Repugnant Laws, Professor Whittington has released a "Judicial Review of Congress" database that, in his words, “aspires to catalog every case in which the U.S. Supreme Court substantively reviewed the constitutionality of an application of a provision of a federal statute from the founding through the retirement of Justice Anthony Kennedy. As well as identifying the cases, the dataset includes a range of information about each case.”  Professor Whittington hopes “to add both cases and variables over time, as well as provide a more reader-friendly list of the cases.”  He continues:

For various reasons, the dataset includes a substantially larger number of cases in which the Court refused to apply a statutory provision on the grounds of constitutional defect than the list of invalidated laws maintained by the Congressional Research Service. It also includes a new list of cases in which the Court upheld an act of Congress over a constitutional challenge. There are interesting shades of gray on how to think about these cases, but the dataset, the description of variables, and an explanation of how the cases were identified can all be found [here].

--Dan Ernst

AALS CFP: Century of Woman Suffrage

[We have the following CFP.]

The AALS Section on Legal History is pleased to announce a call for papers for its section program, which will be held during the 2020 AALS Annual Meeting in Washington, DC. The program is entitled “A Century of Women’s Suffrage.”

2020 marks one hundred years since the 19th Amendment was ratified, ushering in the last century of women’s suffrage in the United States. This program will bring together scholars writing on the history of women’s suffrage, broadly construed. Submissions should relate to any aspect of women’s suffrage, including exploring the suffrage movement that culminated in the 19th Amendment, addressing how the 19th Amendment affected political parties or politics in the subsequent century, and comparing the women’s suffrage movement to analogous social movements.

Eligibility and Submission Requirements: This Call for Papers is open to all faculty members from AALS member schools. Submissions should not exceed 30,000 words, including footnotes. You may submit a CV as well, but are not required to do so.

Submission Process: To be considered for participation as a panelist, please email a copy of your submission to Evan Zoldan at evan.zoldan@utoledo.edu by July 31, 2019. Participants will be selected by the Legal History section executive committee and will be notified by September 1, 2019.

Questions: If you have any questions about the panel, please contact Evan Zoldan at evan.zoldan@utoledo.edu.  A link to the CFP can be found on the AALS website, here.

---Dan Ernst

Cheffins, "The Public Company Transformed"

We somehow missed this one when Oxford University Press released it last fall: The Public Company Transformed, by Brian Cheffins (Cambridge University). A description from the Press:

For decades, the public company has played a dominant role in the American economy. Since the middle of the 20th century, the nature of the public company has changed considerably. The transformation has been a fascinating one, marked by scandals, political controversy, wide swings in investor and public sentiment, mismanagement, entrepreneurial verve, noisy corporate "raiders" and various other larger-than-life personalities. Nevertheless, amidst a voluminous literature on corporations, a systematic historical analysis of the changes that have occurred is lacking. The Public Company Transformed correspondingly analyzes how the public company has been recast from the mid-20th century through to the present day, with particular emphasis on senior corporate executives and the constraints affecting the choices available to them. The chronological point of departure is the managerial capitalism era, which prevailed in large American corporations following World War II. The book explores managerial capitalism's rise, its 1950s and 1960s heyday, and its fall in the 1970s and 1980s. It describes the American public companies and executives that enjoyed prosperity during the 1990s, and the reversal of fortunes in the 2000s precipitated by corporate scandals and the financial crisis of 2008. The book also considers the regulation of public companies in detail, and discusses developments in shareholder activism, company boards, chief executives, and concerns about oligopoly. The volume concludes by offering conjectures on the future of the public corporation, and suggests that predictions of the demise of the public company have been exaggerated.

More information, including the TOC, is available here.

-- Karen Tani

Edited Collection in Honor of Sir John Baker ("English Legal History and its Sources")

Cambridge University Press has released English Legal History and its Sources: Essays in Honour of Sir John Baker, edited by David Ibbetson (University of Cambridge), Neil Jones (University of Cambridge), and Nigel Ramsay (University College London). A description from the Press:

Sir John Baker
(Credit: St. Catharine's College, Cambridge)

This volume honours the work and writings of Professor Sir John Baker over the past fifty years, presenting a collection of essays by leading scholars on topics relating to the sources of English legal history, the study of which Sir John has so much advanced. The essays range from the twelfth century to the nineteenth, considering courts (central and local), the professions (both common law and civilian), legal doctrine, learning, practice, and language, and the cataloguing of legal manuscripts. The sources addressed include court records, reports of litigation (in print and in manuscript), abridgements, fee books and accounts, conveyances and legal images. The volume advances understanding of the history of the common law and its sources, and by bringing together essays on a range of topics, approaches and periods, underlines the richness of material available for the study of the history of English law and indicates avenues for future research.

More information, including the TOC, is available here.

Relatedly, Oxford University Press has just published the fifth edition of Sir John Baker's Introduction to English Legal History.

-- Karen Tani

Chapman on the Hodges Treason Case

Jennifer Elisa Chapman, University of Maryland Thurgood Marshall Law Library, has posted United States v. Hodges: Developments of Treason and the Role of the Jury, which is forthcoming in the Denver Law Review:

Legal history is an important element in understanding current legal and political discussions. What, then, can a long forgotten treason trial from the War of 1812 teach us about present day discussions of treason and the development of the jury trial in America? In August 1814 a number of British soldiers were arrested as stragglers or deserters in the town of Upper Marlboro, Maryland. Upon learning of the soldiers’ absences the British military took local physician, Dr. William Beanes, and two other residents into custody and threatened to burn Upper Marlboro if the British soldiers were not returned. John Hodges, a local attorney, arranged the soldiers’ return to the British military. For this, Hodges was charged with high treason for “adhering to [the] enemies, giving them aid and comfort.” The resulting jury trial was presided over by Justice Gabriel Duvall, a Supreme Court Justice and Prince Georges County native, and highlights how the crime of treason was viewed in early American culture and the role of the jury as deciders of the facts and the law in early American jurisprudence. Contextually, Hodges’ trial took place against the backdrop of the War of 1812 and was informed by the 1807 treason trial of Aaron Burr.

--Dan Ernst

LHR 37:2

Here’s the TOC for Law and History Review 37:2 (May 2019):

A Deep History of Chinese Shareholding
Madeleine Zelin

More than Mothers: Juries of Matrons and Pleas of the Belly in Medieval England
Sara M. Butler

Sovereignty and Common Law Judicial Office in Taylor's Case (1675)
David Kearns

Testimonial Exclusions and Religious Freedom in Early America
Jud Campbell

The Legislature at War: Bandits, Runaways and the Emergence of a Virginia Doctrine of Separation of Powers
Matthew Steilen

Illegal Under the Laws of All Nations? The Courts of Haiti and the Suppression of the Atlantic Trade in African Captives
Andrew Walker

Slavery's Legalism: Lawyers and the Commercial Routine of Slavery
Justin Simard

Narratives and Normativity: Totalitarianism and Narrative Change in the European Legal Tradition after World War II
Kaius Tuori

Book Reviews
Renisa Mawani, Across Oceans of Law: The Komagata Maru and Jurisdiction in Time of Empire, Durham: Duke University Press, 2018.
Debjani Bhattacharyya

Shannon McSheffrey, Seeking Sanctuary: Crime, Mercy, and Politics in English Courts, 1400–1550, Oxford: Oxford University Press, 2017.
Helen Lacey

Tom Lambert, Law and Order in Anglo-Saxon England, Oxford: Oxford University Press, 2017.
Kristen J. Carella

Randy M. Browne, Surviving Slavery in the British Caribbean, Philadelphia: University of Pennsylvania Press, 2017.
Randy J. Sparks

Edward James Kolla, Sovereignty, International Law, and the French Revolution, Cambridge: Cambridge University Press, 2017.
Zachary M. Stoltzfus

Martha S. Jones, Birthright Citizens: A History of Race and Rights in Antebellum America, New York: Cambridge University Press, 2018.
Kunal M. Parker

Lucy E. Salyer, Under the Starry Flag: How a Band of Irish Americans Joined the Fenian Revolt and Sparked a Crisis over Citizenship, Cambridge and London: The Belknap Press of Harvard University Press, 2018.
Allison Brownell Tirres

Christopher W. Schmidt, The Sit-Ins: Protest and Legal Change in the Civil Rights Era, Chicago and London: The University of Chicago Press, 2018.
John A. Kirk

--Dan Ernst

Morrison on legal lynching

In 2018, Melanie S. Morrison published Murder on Shades Mountain: The Legal Lynching of Willie Peterson and the Struggle for Justice in Jim Crow Birmingham with Duke University Press. From the publisher: 

One August night in 1931, on a secluded mountain ridge overlooking Birmingham, Alabama, three young white women were brutally attacked. The sole survivor, Nell Williams, age eighteen, said a black man had held the women captive for four hours before shooting them and disappearing into the woods. That same night, a reign of terror was unleashed on Birmingham's black community: black businesses were set ablaze, posses of armed white men roamed the streets, and dozens of black men were arrested in the largest manhunt in Jefferson County history. Weeks later, Nell identified Willie Peterson as the attacker who killed her sister Augusta and their friend Jennie Wood. With the exception of being black, Peterson bore little resemblance to the description Nell gave the police. An all-white jury convicted Peterson of murder and sentenced him to death.

In Murder on Shades Mountain Melanie S. Morrison tells the gripping and tragic story of the attack and its aftermath—events that shook Birmingham to its core. Having first heard the story from her father—who dated Nell's youngest sister when he was a teenager—Morrison scoured the historical archives and documented the black-led campaigns that sought to overturn Peterson's unjust conviction, spearheaded by the NAACP and the Communist Party. The travesty of justice suffered by Peterson reveals how the judicial system could function as a lynch mob in the Jim Crow South. Murder on Shades Mountain also sheds new light on the struggle for justice in Depression-era Birmingham. This riveting narrative is a testament to the courageous predecessors of present-day movements that demand an end to racial profiling, police brutality, and the criminalization of black men.

Praise for the book: 

 "In this passionate account of Jim Crow–era injustice, educator and activist Morrison exposes how courtrooms 'could function like lynch mobs when the defendant was black.'... Morrison, who is white, shares this painful story with clarity and compassion, emphasizing how much has changed since the 1930s, how much white people need to 'critically interrogate' the past, and how much 'remains to be done' in the fight for justice." - Publishers Weekly

"The author deserves praise for identifying Peterson’s trial as an important precursor to the 1960s civil rights movement. Audiences will be enthralled and angered by this all-too-familiar account of a criminal justice system that was and remains biased against black Americans." - Karl Helicher

"Morrison digs deeply into period newspapers and archives to uncover this story of injustice long overshadowed by the more famous Scottsboro Boys trial. A thoughtful look into a tale of prejudice and stolen justice that will find many readers who are interested in African American history, the early civil rights movement, and Southern history." - Chad E. Statler

Further information is available here.

-Mitra Sharafi

Wineapple, "The Impeachers"

Via a recent review in the Washington Post, by John Fabian Witt (Yale Law School), we have word of a recent publication of interest: The Impeachers: The Trial of Andrew Johnson and the Dream of a Just Nation (Random House), by Brenda Wineapple (the New School/Columbia University). A description from the Press:

When Abraham Lincoln was assassinated and Vice-President Andrew Johnson became “the Accidental President,” it was a dangerous time in America. Congress was divided over how the Union should be reunited: when and how the secessionist South should regain full status, whether former Confederates should be punished, and when and whether black men should be given the vote. Devastated by war and resorting to violence, many white Southerners hoped to restore a pre–Civil War society, if without slavery, and the pugnacious Andrew Johnson seemed to share their goals. With the unchecked power of executive orders, Johnson ignored Congress, pardoned rebel leaders, promoted white supremacy, opposed civil rights, and called Reconstruction unnecessary. It fell to Congress to stop the American president who acted like a king. 

With profound insights and making use of extensive research, Brenda Wineapple dramatically evokes this pivotal period in American history, when the country was rocked by the first-ever impeachment of a sitting American president. And she brings to vivid life the extraordinary characters who brought that impeachment forward: the willful Johnson and his retinue of advocates—including complicated men like Secretary of State William Seward—as well as the equally complicated visionaries committed to justice and equality for all, like Thaddeus Stevens, Charles Sumner, Frederick Douglass, and Ulysses S. Grant. Theirs was a last-ditch, patriotic, and Constitutional effort to render the goals of the Civil War into reality and to make the Union free, fair, and whole.

Witt characterizes The Impeachers as "a stunningly well-timed book on a question ripped from the headlines. Should we think of impeaching a lawless and toxic president as a vital matter of national principle? Or as an affair of pragmatic politics?"

More information is available here.

-- Karen Tani

Zunino, "Justice Framed: A Genealogy of Transitional Justice"

Cambridge University Press has published Justice Framed: A Genealogy of Transitional Justice, by Marcos Zunino (British Institute of International and Comparative Law). A description from the Press:

Why are certain responses to past human rights violations considered instances of transitional justice while others are disregarded? This study interrogates the history of the discourse and practice of the field to answer that question. Zunino argues that a number of characteristics inherited as transitional justice emerged as a discourse in the 1980s and 1990s have shaped which practices of the present and the past are now regarded as valid responses to past human rights violations. He traces these influential characteristics from Argentina's transition to democracy in 1983, the end of communism in Eastern Europe, the development of international criminal justice, and the South African truth commission of 1995. Through an analysis of the post-World War II period, the decolonisation process and the Cold War, Zunino identifies a series of episodes and mechanisms omitted from the history of transitional justice because they did not conform to its accepted characteristics.

A sample of advance praise:

"Zunino’s careful and sophisticated genealogy of transitional justice is a major achievement with revolutionary implications. From its identification of the Argentine template in the origins of the field to its thrilling coverage of the ‘prefabricated history’ for transitional justice retroactively located in the Nuremberg trials, Justice Framed should force a reckoning with the selective politics of recent causes." -- Samuel Moyn

More information is available here.

-- Karen Tani

Schlegel's "Crib" on Critical Legal History

John Henry Schlegel, University at Buffalo Law School, has posted Objectivity in the Writing of History/Critical Legal History: Two Cribs for Harried Graduate Students:

Scholars have long argued about the degree to which objectivity is possible in the writing of history. In 1988 Peter Novick published a wonderful chronicle of this dispute, a summary of which history graduate and law students might find useful. Novick’s book concludes with work by legal historians affiliated with the Critical Legal Studies movement. Critical Legal History developed a distinctive understanding of its subject matter that, through the concepts of contingency and constitutiveness, seemingly managed to avoid questions about objectivity. A summary of how this was accomplished might also be found useful by history and legal history graduate and law students interested in the development of Critical Legal History and its subsequent path.

I know that new and recent entrants to the field of legal history often consult LHB for clues on how insiders understand it.  As its subtitle suggests, cluing in new entrants is Professor Schlegel’s aim in this essay, and he succeeds.  --Dan Ernst.

Weekend Roundup

• The journal Critical Analysis of Law has published a special issue on Queer Legal Studies. Readers may be interested in the contribution by Gowri Ramachandran (Southwestern Law School), on "The Legal History and Queerer Future of 'Me Too.'"

• ICYMI, PBS's "Frontline" ran an episode this week ("Supreme Revenge") that went "inside the no-holds-barred war for control of the Supreme Court." The episode investigated "how a 30-year-old grievance" (over the Robert Bork nomination) "transformed the court and turned confirmations into bitter, partisan conflicts." Hat tip: Chris Schmidt, who also live-tweeted it.

• The Take Care blog is hosting a symposium on Reproductive Rights and Justice Stories, edited by Melissa Murray, Kate Shaw, and Reva Siegel. Lots of great content has gone up so far.  

• From the Washington Post's "Made by History" section: Matthew Guariglia on "what the loss of the New York police museum means for criminal-justice reform." 

• We join our friends at the Canadian Legal History blog in mourning the passing of Professor Ian Bushnell, a noted historian of the Canadian judiciary.

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

Kotch on the Death Penalty in North Carolina

The University of North Carolina Press has published Lethal State: A History of the Death Penalty in North Carolina, by Seth Kotch (University of North Carolina, Chapel Hill). A description from the Press:

For years, American states have tinkered with the machinery of death, seeking to align capital punishment with evolving social standards and public will. Against this backdrop, North Carolina had long stood out as a prolific executioner with harsh mandatory sentencing statutes. But as the state sought to remake its image as modern and business-progressive in the early twentieth century, the question of execution preoccupied lawmakers, reformers, and state boosters alike.

In this book, Seth Kotch recounts the history of the death penalty in North Carolina from its colonial origins to the present. He tracks the attempts to reform and sanitize the administration of death in a state as dedicated to its image as it was to rigid racial hierarchies. Through this lens, Lethal State helps explain not only Americans' deep and growing uncertainty about the death penalty but also their commitment to it.

Kotch argues that Jim Crow justice continued to reign in the guise of a modernizing, orderly state and offers essential insight into the relationship between race, violence, and power in North Carolina. The history of capital punishment in North Carolina, as in other states wrestling with similar issues, emerges as one of state-building through lethal punishment.

Advance praise:

"With poignant prose and an acute analytical eye, Kotch has written a harrowing and unforgettable history that exposes the inequity of the death penalty in the United States. Some of this eye-opening and moving story is peculiar to North Carolina, but, alas, much of it is not. Anyone interested in how the death penalty has been applied and why it continues to be applied in the United States should read Lethal State."--W. Fitzhugh Brundage 

"Few historical studies have so thoroughly refocused my understanding of one of the foremost issues of our time: the criminal justice system's persistently inequitable treatment of African American men. Beautifully and passionately written, Lethal State should convince any fence-sitter that the arbitrary, utterly unjustly administered death penalty should finally become thing of the past, as it has in every Western nation except the U.S."--Jacquelyn Dowd Hall

More information is available here.

-- Karen Tani

Leonard and Cornell, "The Partisan Republic"

Cambridge University Press has published The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s-1830s, by Gerald Leonard (Boston University) and Saul Cornell (Fordham University). A description from the Press:

The Partisan Republic is the first book to unite a top down and bottom up account of constitutional change in the Founding era. The book focuses on the decline of the Founding generation's elitist vision of the Constitution and the rise of a more 'democratic' vision premised on the exclusion of women and non-whites. It incorporates recent scholarship on topics ranging from judicial review to popular constitutionalism to place judicial initiatives like Marbury vs Madison in a broader, socio-legal context. The book recognizes the role of constitutional outsiders as agents in shaping the law, making figures such as the Whiskey Rebels, Judith Sargent Murray, and James Forten part of a cast of characters that has traditionally been limited to white, male elites such as James Madison, Alexander Hamilton, and John Marshall. Finally, it shows how the 'democratic' political party came to supplant the Supreme Court as the nation's pre-eminent constitutional institution.

A few blurbs:

"A superb, deftly written history of the unsettling transformation of an aristocratic-tinged constitutional republic to a partisan white male democracy." -- Mary Sarah Bilder

"'The Partisan Republic tells a story of constitutional decline - from the republican vision of the Framers to an antebellum Constitution that, although more democratic, was also more aggressive in its defense of states' rights and its exclusion of all but white males from civic participation. With clarity and insight, Leonard and Cornell give us a Constitution that was from the beginning a living constitution, continually reinterpreted." -- Bruce Mann

More information is available here.

-- Karen Tani

Schweninger on Freedom Suits in the South

We missed this one when it came out in October 2018: Appealing for Liberty: Freedom Suits in the South (Oxford University Press), by Loren Schweninger (University of North Carolina, Greensboro). A description from the Press:

Dred Scott and his landmark Supreme Court case are ingrained in the national memory, but he was just one of multitudes who appealed for their freedom in courtrooms across the country. Appealing for Liberty is the most comprehensive study to give voice to these African Americans, drawing from more than 2,000 suits and from the testimony of more than 4,000 plaintiffs from the Revolutionary era to the Civil War. Through the petitions, evidence, and testimony introduced in these court proceedings, the lives of the enslaved come sharply and poignantly into focus, as do many other aspects of southern society such as the efforts to preserve and re-unite black families. This book depicts in graphic terms, the pain, suffering, fears, and trepidations of the plaintiffs while discussing the legal system—lawyers, judges, juries, and testimony—that made judgments on their "causes," as the suits were often called.

Arguments for freedom were diverse: slaves brought suits claiming they had been freed in wills and deeds, were born of free mothers, were descendants of free white women or Indian women; they charged that they were illegally imported to some states or were residents of the free states and territories. Those who testified on their behalf, usually against leaders of their communities, were generally white. So too were the lawyers who took these cases, many of them men of prominence, such as Francis Scott Key. More often than not, these men were slave owners themselves-- complicating our understanding of race relations in the antebellum period. 

A majority of the cases examined here were not appealed, nor did they create important judicial precedent. Indeed, most of the cases ended at the county, circuit, or district court level of various southern states. Yet the narratives of both those who gained their freedom and those who failed to do so, and the issues their suits raised, shed a bold and timely light on the history of race and liberty in the "land of the free."

More information is available here.

-- Karen Tani

Fitzpatrick on courtrooms and geography in Punjab

Hannah Fitzpatrick, University of St. Andrews has published "The Space of the Courtroom and the Role of Geographical Evidence in the Punjab Boundary Commission Hearings, July 1947" in South Asia: Journal of South Asian Studies 42:1 (2019), 188-207. Here's the abstract: 

This paper examines the geographies of Partition through an analysis of the Punjab Boundary Commission hearings of July 1947. The paper asks: what happens when geographical expertise is transported from ‘the field’ to courtrooms and government offices? I argue that geography was transformed, and was managed and limited by the legal framework that judged evidence according to its own rules. Examining select records of the Punjab Boundary Commission, I argue that the courtroom created certain assumptions about the nature and role of evidence in boundary-making negotiations. Rather than applying evidence to create a workable boundary, evidence was put to work in often contradictory ways in order to lend competing political claims an air of geographical authority.

Further information is available here. 

-Mitra Sharafi

Farahat, "The Foundation of Norms of Islamic Jurisprudence and Theology"

Recently out from Cambridge University Press: The Foundation of Norms of Islamic Jurisprudence and Theology (January 2019), by Omar Farahat (McGill University). A description from the Press:

In this book, Omar Farahat presents a new way of understanding the work of classical Islamic theologians and legal theorists who maintained that divine revelation is necessary for the knowledge of the norms and values of human actions. Through a reconstruction of classical Ashʿarī-Muʿtazilī debates on the nature and implications of divine speech, Farahat argues that the Ashʿarī attachment to revelation was not a purely traditionalist position. Rather, it was a rational philosophical commitment emerging from debates in epistemology and theology. He further argues that the particularity of this model makes its distinctive features helpful for contemporary scholars who defend a form of divine command theory. Farahat's volume thus constitutes a new reading of the issue of reason and revelation in Islam and breaks new ground in Islamic theology, law and ethics.

More information is available here.

-- Karen Tani

MacMillan and Smith, eds., "Challenges to Authority and the Recognition of Rights"

Here's an interesting collection that we missed when it came out last summer: Challenges to Authority and the Recognition of Rights: From Magna Carta to Modernity (Cambridge University Press), edited by Catharine MacMillan (King's College London) and Charlotte Smith (University of Reading). A description from the Press:

While challenges to authority are generally perceived as destructive to legal order, this original collection of essays, with Magna Carta at its heart, questions this assumption. In a series of chapters concerned with different forms of challenges to legal authority - over time, geographical place, and subject matters both public and private - this volume demonstrates that challenges to authority which seek the recognition of rights actually change the existing legal order rather than destroying it. The chapters further explore how the myth of Magna Carta emerged and its role in the pre-modern world; how challenges to authority formed the basis of the recognition of rights in particular areas within England; and how challenges to authority resulted in the recognition of particular rights in the United States, Canada, Australia and Germany. This is a uniquely insightful thematic collection which proposes a new view into the processes of legal change.

More information, including the TOC, is available here.

-- Karen Tani

Jaffe on Jonathan Jasper Wright and Reconstruction in South Carolina

We often don’t post on older articles, but I teach about African American lawyers in nineteenth-century South Carolina every year but somehow missed this one until now. Caleb A. Jaffe, a graduate of the University of Virginia’s famed JD-MA program in 2001, recently posted Obligations Impaired: Justice Jonathan Jasper Wright and the Failure of Reconstruction in South Carolina, Michigan Journal of Race & Law 8 (2003): 471-501:

J.J. Wright (wiki)

This Note considers the career of Jonathan Jasper Wright, the nation’s first African American state supreme court justice, in the context of post-Civil War reconstruction in South Carolina. It provides a close reading of Justice Wright’s published opinions in order to gain a better understanding of his judicial philosophy and how that philosophy interacted with the politics of the era. From his writings, Justice Wright appears as a cautious jurist who envisioned a governing union comprised of “men of experience” - whites and African Americans, Republicans and Democrats. During the South Carolina Constitutional Convention of 1868 he asserted, “We are here, I trust, … with hatred and malice towards no man who has held a slave.” Justice Wright earned a remarkable civil rights victory in securing a seat on the supreme court in a state dominated by a hostile and unrepentantly racist culture, but his accomodationist approach while on the bench was ultimately doomed to fail. The South Carolina Constitutional Convention of 1895 carried forth an explicit charge to disenfranchise African Americans and reinstate white supremacy.

Dan Ernst

New Stories about the Warren Court

In Locking Up Our Own, James Forman described the work of public defenders as “the unfinished work of the civil rights movement.” Nearly two generations after the Warren Court’s due process revolution—which was supposed to protect minorities and the poor in the criminal justice system—our country is grappling with mass incarceration (and mass arrests, according to recent scholarship that has shed light on the much larger proportion of misdemeanor cases that never end in imprisonment). It seems that not a day goes by without another story in the papers highlighting the themes of poverty, race, and criminal (in)justice.

In recent years, there’s been a reexamination of the due process revolution, especially as we’re confronting a carceral state with a prison population made up disproportionately of racial minorities and the poor. To explain how we got to this point, Linda Greenhouse and Michael Graetz argued in The Burger Court and the Rise of the Judicial Right that any progress that the Warren Court had made was undone by the subsequent Burger Court’s counter-revolution. By contrast, William Stuntz argued that the Warren Court had erred by creating procedural rights rather than establishing substantive rights. The technical nature of proceduralism, he maintained, worsened inequality in the criminal justice system.

I don’t disagree with the main contours of these accounts. But they share a premise that the Warren Court was indeed revolutionary and that the justices took sides in the “battle” between crime control and due process. Herbert Packer famously coined the “Two Models of the Criminal Process,” a paradigm that has deeply informed histories written on American criminal justice (see more here).

Much of my scholarship so far has focused on telling a different history. For example, one of the main arguments in Policing the Open Road is that twentieth-century jurists—beginning with Chief Justice Taft and including liberal justices on the Warren Court, not to mention Chief Justice Warren himself—embraced proceduralism in order to legitimize discretionary policing. Many midcentury jurists, and not just law enforcement advocates, argued that liberty and security were compatible. The perspectives of those who appreciated order and security while celebrating American due process have been overshadowed in the literature about the Warren Court.

One explanation for this oversight may be that the adversarial nature of criminal litigation can tend to overemphasize conflict. Another reason may be that those writing about the Warren Court themselves view criminal justice in battle mode. But it’s one thing to describe past historical actors as thinking within a dualistic framework and quite another for a historian herself to adopt that perspective. Making this distinction in my writing has been surprisingly challenging, in part because the opposition between crime control priorities and individual rights is entrenched in our understanding, perhaps even more so today than when Packer published his article in 1964.

As a result, there’s been a general over-emphasis in the literature not only on the dichotomy, but also on one side of it, the due process side. What I mean here is that many histories of twentieth-century criminal procedure focus on the landmark cases that have most advanced due process rights. And if we look only at cases like Miranda v. Arizona, Gideon v. Wainwright, and Mapp v. Ohio, then it makes sense that our current woes would lead us to conclude that these cases either got it wrong (Stuntz) or that later developments gutted them (Greenhouse and Graetz). Focusing on a limited set of cases makes it more difficult to see that our issues are not the same as those the Warren Court was trying to address, and that that might be the reason why Miranda, Gideon, and Mapp have not been, and may not be, the solutions to today’s problems.

So, what did midcentury reformers, lawyers, and judges see as problems in the criminal justice system? How did the Warren Court think its criminal procedure decisions would solve those problems? What were the justices hoping to accomplish? Did they think they were starting a revolution?

Because I offer my answers to these questions in Policing the Open Road, I’ll end this post with what it doesn’t tackle. The book focuses on the Fourth Amendment cases that expanded the police’s powers, so the Court’s landmark cases on due process receive fuller treatment in “Democratic Policing before the Due Process Revolution.” This essay offers a theory for synthesizing the Warren Court’s Fourth, Fifth, and Sixth Amendment jurisprudence by examining how midcentury jurists understood due process as a democratic constraint on the police. It took me years to finally realize that their concept of due process was not the same as my concept of due process.

Once I was able to set aside my own entrenched understandings, it became clear that the midcentury idea of due process was not intended to constrain discretionary policing. No wonder, then, that the Supreme Court’s criminal procedure cases have done little to stem the imprisonment crisis. In fact, by sanctioning police discretion, they’ve done more to facilitate the buildup of our carceral state.

Sarah Seo

Fradera on citizens and subjects in four empires

In 2018, Josep M. Fradera, Pompeu Fabra University in Barcelona published The Imperial Nation: Citizens and Subjects in the British, French, Spanish, and American Empires with Princeton University Press. From the publisher:

Historians view the late eighteenth and early nineteenth centuries as a turning point when imperial monarchies collapsed and modern nations emerged. Treating this pivotal moment as a bridge rather than a break, The Imperial Nation offers a sweeping examination of four of these modern powers—Great Britain, France, Spain, and the United States—and asks how, after the great revolutionary cycle in Europe and America, the history of monarchical empires shaped these new nations. Josep Fradera explores this transition, paying particular attention to the relations between imperial centers and their sovereign territories and the constant and changing distinctions placed between citizens and subjects.

Fradera argues that the essential struggle that lasted from the Seven Years’ War to the twentieth century was over the governance of dispersed and varied peoples: each empire tried to ensure domination through subordinate representation or by denying any representation at all. The most common approach echoed Napoleon’s “special laws,” which allowed France to reinstate slavery in its Caribbean possessions. The Spanish and Portuguese constitutions adopted “specialness” in the 1830s; the United States used comparable guidelines to distinguish between states, territories, and Indian reservations; and the British similarly ruled their dominions and colonies. In all these empires, the mix of indigenous peoples, European-origin populations, slaves and indentured workers, immigrants, and unassimilated social groups led to unequal and hierarchical political relations. Fradera considers not only political and constitutional transformations but also their social underpinnings.

Presenting a fresh perspective on the ways in which nations descended and evolved from and throughout empires, The Imperial Nation highlights the ramifications of this entangled history for the subjects who lived in its shadows.

In praise of the book: 

“Prodigious and stimulating, The Imperial Nation reveals the complexities of the relationship between empire and nation in the Atlantic world from the late eighteenth century into the twentieth. This impressive and vigorously argued book will be the focal point of scholarly debate for some time to come.” - Frederick Cooper

“Superb, important, and complex, this book compares and analyzes the British, Spanish, French, and American empires between 1750 and 1920: how they adopted constitutions, treated different populations, and viewed the construction of the state in an imperial context. With its revolutionary arguments, The Imperial Nation will help historians understand the complex social and ethnic battles of the past two centuries. An amazing book by an original and brilliant historian.” - Antonio Feros

Further information is available here. 

-Mitra Sharafi

Gaius and Jane Bolin

[My exam in American Legal History also includes a biographical essay.  Usually (as here and here), it treats only a single person.  I intended to do the same this year when, prompted by an event sponsored by the Black Law Students’ Association at the Yale Law School, I decided to see whether Jane Bolin would be a good subject.  Jacqueline A. McLeod’s Daughter of the Empire State: The Life of Judge Jane Bolin (University of Illinois Press) certainly showed that she would be, but it also gave an intriguing view of her father Gaius Bolin, so I opted for a joint essay.  Daughter of the Empire State is my principal source for this essay, augmented by Kenneth Mack’s discussion of Jane Bolin in Representing the Race: The Creation of the Civil Rights Lawyer (Harvard University Press), and my own searches on newspapers.com.  In addition to the linked images, be sure to check out the picture of daughter and father during Jane Bolin’s return to Poughkeepsie in 1944 that Professor McLeod reproduces in her book.  Dan Ernst]

Motor Carrier Regulation and the Law, 1920-1955

[Longtime LHB readers will recall that for the exam in my legal history course at Georgetown Law I write an essay about some regulatory regime I did not cover in class and ask students to draw comparisons with those we did.  (Last year's, on meat inspection, is here, and earlier one on the US Commerce Court is here)  This year's essay, on the regulation of motor carriers, follows.  Dan Ernst.]

“Motor carriers unit gets underway” (LC)

“The story of transportation in the United States,” wrote David Lilienthal, who had studied with Felix Frankfurter at the Harvard Law School in the early 1920s, “has been marked by constant and almost bewildering changes in the facilities by which the movement of men and goods has been effected.”  In the early twentieth century, one of the most bewildering changes was the transformation of motor vehicles from a rich person’s plaything to a major competitor of railroads for the nation’s freight.  Already in 1920, the states had registered 1 million trucks; by 1929, the number was 3.7 million.  Railroads considered such motor carriers pests that threatened to consume their revenue, and they looked to government to bottle them up.

Until 1935, motor carrier regulation was the province of the states.  By the 1920s, most already had “public utility commissions” that regulated railroads; water, gas, and electric companies; and other “businesses affected with a public interest.”  Perhaps for that reason, as a scholar wrote, it was ‘but natural” that these commissions would regulate motor carriers as well.  Still, motor transport companies differed from railroads in important respects, including especially their much lower fixed costs. Trucks operated on publicly owned roads; railroads had to pay for their rights of way and lay their own tracks.  Also, trucks were much less expensive than locomotives and train cars.  Thus, barriers to entering the motor carrier industry were far lower than the railroad industry.  If the core mission of railroad regulation had been to ensure that railroads allocated their fixed costs to shippers fairly; the core mission of motor carrier regulation was to limit competition, thereby making, it was said, the transportation industry more stable and safe.

The foundation for motor carrier regulation was the “certificate of convenience and necessity,” issued by a commission not as a property interest but a revocable license to serve the public for a fixed period of time.  Commercial motor carriers could not operate without one.  To get one they had to show that the public needed their services and that they had the financial wherewithal to meet that need.  Motor carriers also had to abide by “tariffs” set by the commission.  These schedules fixed minimum, maximum or actual charges for the transport various classes of goods.  The commissions also issued a host of safety regulations and oversaw the mergers, issuance of securities, and other financial actions of regulated companies. Disputes could arise when commissions denied applicants certificates or revoked them for malfeasance, which were quasi-adjudicative acts.  They could also arise in rate-setting, a quasi-legislative act.

Gaspare J. Saladino, Remembered

Over at Consource, Richard B. Bernstein has posted a memorial of the documentary editor Gaspare J. Saladino, who died last week.  It commences:

Gaspare J. Saladino was one of the finest documentary editors who ever lived, a superb historian, and an expert on the framing and adoption of the U.S, Constitution. Born in Brooklyn, NY, in 1936, educated at Brooklyn College and receiving his doctorate at the University of Wisconsin, he studied under the great Merrill M. Jensen. For many years, he was a co-editor of the Documentary History of the Ratification of the Constitution and the Bill of Rights, 1787-1791, an extraordinary project that compiled and published the full surviving documentary record, public and private, of the ratification of the U.S. Constitution and the Bill of Rights. The sheer excellence of these volumes means that this work will never have to be done again. This project now presents its findings not only in the print edition but also online, as seen in the link given at the end of this post.

More.

Weekend Roundup

• Our friends at the Federal Judicial Center have posted the latest in the Center’s series of teaching materials on Famous Federal Trials.  It’s U.S. v. New York Times, that is, The Pentagon Papers Case, in which "the publication of secret government documents about the Vietnam War leads to a federal court conflict pitting national security against freedom of the press."

• Recently posted over at Law and Political Economy (LPE) blog is the symposium Piercing the Monetary Veil.  Contributors include Christine Desan and Roy Kreitner.

• Boy, we're sorry we couldn't attend this one: Robert W. Gordon, Stanford Law, on Private Practices, Public Projects: Reflections on Connections between Work for Clients and Public Activities in the History of the Legal Profession last Thursday at Northwestern University.  H/t: Christopher Schmidt.

• Be sure to check out the redesigned website of the Historical Society for the District of Columbia Circuit.

• Mark W. Gifford, Bar Counsel for the Wyoming State Bar, has published Regulation of the Practice of Law in Wyoming: A 150-Year Walk Through the History Books in the Wyoming Law Review 19 (2019): 1-43.

• The Washington Lawyers’ Committee for Civil Rights and Urban Affairs announced the publication of a symposium on its 50th anniversary in the Howard Law Journal. 

• An updated webpage helps catch us up on legal history at Edinburgh Law School. 

• Thomas C. Britton will discuss the history and development of the SIU School of Law at noon, May 21, in the Hiram H. Lesar Law Building Courtroom on the Southern Illinois University Carbondale campus.  He will base his talk on a chapter in his recently published Southern Illinois University at 150: Growth, Accomplishments, and Challenges.

• "The 2020 BHC Doctoral Colloquium in Business History will be held in conjunction with the BHC annual meeting . . . in Charlotte Wednesday, March 11 and Thursday, March 12. Typically limited to ten students, the colloquium is open to early-stage doctoral candidates pursuing dissertation research within the broad field of business history, from any relevant discipline.  Applications are due by 15 November 2019 via email to BHC@Hagley.org."  More on this prestigious competition of the Business History Conference is here. 

• My erstwhile and present Georgetown Law colleagues Mark Tushnet, Harvard Law School, and Louis Michael Seidman, Georgetown University Law Center, have posted On Being Old Codgers: A Conversation about a Half Century in Legal Education, a “conversation, conducted over three evenings,” capturing “some of our thoughts about the last half century of legal education as both of us near retirement.”  DRE  

• We didn’t realize that Attorney General William Barr contributed an oral history to the Miller Center for Public Affairs series on the George W. Bush presidency.  Thanks, WaPo!

• In WaPo's "Made by History" series: Victoria Saker Woeste on the dark history of the raisin mafia.  Sarah A. Seo on traffic stops.

• ICYMI: Mary Ziegler on recent developments in the campaign to overturn Roe on NPR (et al.).  The History Channel’s notice of Dan Abrams and David Fisher’s Theodore Roosevelt for the Defense: The Courtroom Battle to Save His Legacy.  Also, the History Channel on the first Social Security check.  More on legal historians as partners: some, it seems, make dreams come true.

• You can register now here for the upcoming workshop on Law, Difference, and Healthcare at Princeton's Davis Center. It is organized by George Aumoithe and runs June 6-7, 2019.

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

Smith on Equity

Lionel Smith, McGill University, Faculty of Law, has posted Equity is Not a Single Thing, which is forthcoming from the Oxford University Press in Philosophical Foundations of the Law of Equity, ed. D. Klimchuk, I. Samet, and H. E. Smith:

In this paper, I ask what are the philosophical foundations of Equity as it was defined by Frederic Maitland: the body of rules and principles that were developed over the centuries by the Court of Chancery. My answer is that there is no single purpose, approach, philosophy or norm that characterizes Equity so defined. What is characteristic about Equity is a unique manner comprehending the juridical nature of some obligations, which grew out of Equity’s regulation of uses and trusts. This approach reveals three dimensions. First, Equity requires that one who owes such an obligation perform it, if necessary by substitution; there is no option of breaching and paying compensation for loss caused. Secondly, these obligations are understood by Equity in a manner that has the effect of depersonalizing the burden of these obligations. In the civil law tradition and in the common law (in the narrow sense that excludes Equity), an obligation is a bilateral relationship. Equity’s unique philosophy in relation to some obligations turned them into something like property rights and created the office of trusteeship. Finally, Equity understood some obligations not as freestanding particles but as elements of a particular kind of relationship, and this relationship is capable of itself generating new primary obligations. All these elements taken together facilitated the creation of an enduring conceptual toolkit for the juridical apprehension of relationships in which one person acts for and on behalf of another.

Dan Ernst