Journal of Southern Legal History, Vol. 26

Here’s the TOC for volume 26 (2018) of the Journal of Southern Legal History:

Oral History of Manley F. Brown (2016).  Introduction and interview by Patrick Emery Longan

Clyde Ray, “John Marshall, the Native American Cases, and the Idea of Constitutional Nationalism”

Nathaniel J. Berry, “Justice of the Peace Manuals in Virginia before 1800”

Kovacic on Pertschuk's FTC Chairmanship

“Competition Policy in its Broadest Sense”: Michael Pertschuk's Chairmanship of the Federal Trade Commission 1977-1981, by William E. Kovacic, George Washington University Law School, is out in the William and Mary Law Review 60 (2019): 1269-1333:

In the late 1960s and through the 1970s, the Federal Trade Commission (FTC) undertook an ambitious program of reforms. Among other measures, the agency expanded the focus of antitrust enforcement to address economic concentration, including the use of Section 5 of the FTC Act to restructure dominant firms and oligopolies. In many ways Michael Pertschuk, who chaired the agency from 1977 to 1981, became the symbol of the FTC’s efforts to stretch the boundaries of antitrust policy—to pursue a conception of “competition policy in its broadest sense.” Despite a number of valuable accomplishments, the FTC achieved relatively few litigation successes, and its efforts aroused political opposition that nearly crippled the institution. The experience of the FTC in the 1970s, and during the Pertschuk chairmanship in particular, offers insights into the implications of future efforts to use the FTC to carry out a sweeping redesign and expansion of U.S. competition policy.

--Dan Ernst

Roy Chaudhury on the Indian Poisons Act

Out soon by Shrimoy Roy Chaudhury, Shiv Nadar University (India) is "Toxic Matters: Medical Jurisprudence and the Making of the Indian Poisons Act (1904)" in Crime, History & Societies/Crime, Histoire & Sociétés 22:1 (2018), 81-105. Here's the abstract: 

The article seeks to problematize the relationship between law and medicine by studying the tensions which accompanied the emergence of medical jurisprudence in British India during the second half of the nineteenth century. In a context of British government apprehension as to the legality of its rule in India, the article focuses on official concerns about the unmonitored circulation of toxic substances, particularly arsenic, which culminated in the Poisons Act (1904). The article investigates the role of toxic substances in historical narratives of expertise, and also traces the emergence of the idea of an autonomous native society in colonial and medical/forensic discourse, locating its articulation in exchanges between British and native salaried experts.

Further information is available here.

--Mitra Sharafi 

Leiber's Lost Treatise on Martial Law

To Save the Country: A Lost Treatise on Martial Law, written by Francis Lieber and G. Norman Lieber and edited and with an introduction by Will Smiley and John Fabian Witt, is out from the Yale Univbersity Press.  Francis Lieber (1798–1872) was professor at Columbia College who advised Abraham Lincoln on the law of war. G. Norman Lieber (1837–1923), Francis’s son, taught law at West Point. Will Smiley is an assistant professor of humanities at the University of New Hampshire. John Fabian Witt is the Allen H. Duffy Class of 1960 Professor of Law at Yale Law School and the Head of Yale’s Davenport College.

The last work of Abraham Lincoln’s law of war expert Francis Lieber was long considered lost—until Will Smiley and John Fabian Witt discovered it in the National Archives. Lieber’s manuscript on emergency powers and martial law addresses important contemporary debates in law and political philosophy and stands as a significant historical discovery.

As a key legal advisor to the Lincoln White House, Columbia College professor Francis Lieber was one of the architects and defenders of Lincoln’s most famous uses of emergency powers during the Civil War. Lieber’s work laid the foundation for rules now accepted worldwide. In the years after the war, Lieber and his son turned their attention to the question of emergency powers. The Liebers’ treatise addresses a vital question, as prominent since 9/11 as it was in Lieber’s lifetime: how much power should the government have in a crisis? The Liebers present a theory that aims to preserve legal restraint, while giving the executive necessary freedom of action.

Smiley and Witt have written a lucid introduction that explains how this manuscript is a key discovery in two ways: both as a historical document and as an important contribution to the current debate over emergency powers in constitutional democracies.

Here are some endorsements:

 “When arguments for a legally unrestrained executive are again in fashion, this retrieval of Lincoln’s lawyer’s theory of appropriate legal restraint during wartime emergency could not be more timely.”—David Dyzenhaus, University of Toronto

“Smiley and Witt have unearthed a lost treasure. As we debate how our constitutional democracy handles great stress, this work helps us understand how the system has survived so far.”—Matthew C. Waxman, Columbia University

“Through their extraordinary discovery of Francis Lieber’s unpublished notes, Smiley and Witt not only provide a crucial new primary source that contextualizes Lieber’s role in the development of laws of war but also, amazingly enough, a fruitful way to reconsider the old, vital question of what constraints law can offer in times of war. A book every historian of the Civil War and every scholar of laws of warfare should rush to read.”—Gregory P. Downs, author of After Appomattox: Military Occupation and the Ends of War

“The manuscripts that Smiley and Witt have recovered should be required reading for anyone who cares about the operation of the Constitution in wartime and more generally about what legal limits should—or should not—constrain the government in confronting emergencies.”—Amanda L. Tyler, University of California, Berkeley School of Law

--Dan Ernst

SHEAR James Broussard First Book Prize to Welch

At the recent meeting of the Society for Historians of the Early American Republic (SHEAR), the Society awarded the James Broussard First Book Prize to former guest blogger Kimberly Welch (Vanderbilt) for Black Litigants in the Antebellum American South (University of North Carolina Press, 2018). Via The Panorama, here's more:

. . . The prize committee, including Gregory Nobles (Chair), Ronald Johnson, and Cynthia Kierner, found that Welch’s diligence and intelligence are both very much on display in this exceptionally fine book. It takes us into new and largely unwritten territory, showing people of color, both enslaved and free, finding loopholes in an otherwise oppressive system and using the local courts very effectively to their advantage. As other scholars rightly expand our knowledge of the horrors and inhumanity of slavery, Welch underscores the necessity—by all people, particularly the oppressed—to understand and appreciate the law. We may all be aware of the unfairness and biases of the law as written by the privileged and powerful, but this book affirms in a very real and unpretentious way the importance of the American legal system as an important tool, albeit an imperfect one, for change and protection in our society. In that regard alone, this book will certainly have a significant impact in the historiography of slavery and freedom.

In addition to being well-grounded in theory and historiography, Welch’s book is clearly written and delightful to read. It is especially good at explaining the legal details about how courts and lawyers worked, but also uses engaging and revealing personal stories to address much broader issues, particularly the changing foundation of rights from property to race. Welch’s keen ability to show human faces in litigious processes makes this book a model for writing legal history.

Finally, one of the best stories Welch tells is about her own research for this project, an industrious and dogged search for sources. At a time when we so often turn to digitized material on our computers, Welch got her hands dirty digging up, sometimes literally, court records that had remained unused since the antebellum era, finding them and then rescuing them from decay, dirt, and mouse droppings.

Congratulations to Professor Welch!

Weekend Roundup

• After the story broke about NPR's failure to cite historian Sarah Milov in a segment on her work, journalist Caroline Kitchener at The Lily followed up: "It’s not just Sarah Milov. Female academics aren’t credited in media ‘all the time.’" The follow-up article includes quotes from Women Also Know History co-founder Emily Prifogle (University of Michigan) and others.

• Robin Lindley’s HNN interview of Robin Chapman Stacey, University of Washington, the author, most recently, of Law and the Imagination in Medieval Wales, is here.

• From our friends at the Max Planck Institute for European History, a post on the British Legal History Conference 2019.

• David A. Reidy, University of Tennessee, has posted a draft chapter from his forthcoming intellectual biography, John Rawls: Envisioning Democracy.  It covers "Rawls's years at Cornell University from 1953-1958 and the gestation of the first (quite incomplete and underdeveloped) expression of justice as fairness in 1958."

• A recent Economist article took a swipe at historians, claiming that they "remain isolated in their professional cocoons, spending more time fiddling with their footnotes than bringing the past to light for a broader audience." Historians beg to differ here.

• And speaking of broader audiences: read or listen to this interview with Kalyani Ramnath, Harvard in The Polis Project's Suddenly Stateless series, exploring India's controversial National Register of Citizens and the people fighting to be recognized by it. 

• Just out online from Law and History Review and Cambridge Core is Secularizing Islam: The Colonial Encounter and the Making of a British Islamic Criminal Law in Northern Nigeria, 1903-58, by Rabiat Akande, an SJD candidate at the Harvard Law School.

• From an email to John Q. Barrett 's listserv, we learn that Attorney General William Barr has reclaimed the official Department of Justice portrait of Robert H. Jackson.  Not the most outrageous association with a historical figure we can think of.  DRE

• ICYMI: Farah Peterson, University of Virginia Law, on Black Lives and the Boston Massacre in The American Scholar.  Also, Flos Greig, Australia’s first female lawyer.

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

Stacey's "Law and Imagination in Medieval Wales"

Robin Chapman Stacey, University of Washington, has published Law and the Imagination in Medieval Wales (University of Pennsylvania Press, 2019):

In Law and the Imagination in Medieval Wales, Robin Chapman Stacey explores the idea of law as a form of political fiction: a body of literature that blurs the lines generally drawn between the legal and literary genres. She argues that for jurists of thirteenth-century Wales, legal writing was an intensely imaginative genre, one acutely responsive to nationalist concerns and capable of reproducing them in sophisticated symbolic form. She identifies narrative devices and tropes running throughout successive revisions of legal texts that frame the body as an analogy for unity and for the court, that equate maleness with authority and just rule and femaleness with its opposite, and that employ descriptions of internal and external landscapes as metaphors for safety and peril, respectively.

Historians disagree about the context in which the lawbooks of medieval Wales should be read and interpreted. Some accept the claim that they originated in a council called by the tenth-century king Hywel Dda, while others see them less as a repository of ancient custom than as the Welsh response to the general resurgence in law taking place in western Europe. Stacey builds on the latter approach to argue that whatever their origins, the lawbooks functioned in the thirteenth century as a critical venue for political commentary and debate on a wide range of subjects, including the threat posed to native independence and identity by the encroaching English; concerns about violence and disunity among the native Welsh; abusive behavior on the part of native officials; unwelcome changes in native practice concerning marriage, divorce, and inheritance; and fears about the increasing political and economic role of women.

The TOC and an engaging excerpt is here.  The latter commences:

Some years ago, I found myself teaching a class on medieval law. This was a seminar intended for history majors, many of whom were planning ultimately to enter the legal profession, and the students were both bright and curious. We were discussing a text I knew well, the Welsh Laws of Court, when a student raised her hand to ask about a passage that appeared to limit the sanctuary (nawdd) a female baker was allowed to grant an offender to the distance she could throw her baking scraper. I started in with an explanation of how nawdd worked and why persons of greater status would have been able to extend more protection had they been approached. She looked confused, so I dramatized the event for her, imagining a scenario in which a wild-eyed offender with pursuers hot on his heels bursts into a prince's kitchen searching for someone to help him. He rushes over to the baker, who is there scraping flour into a bowl, and hurls himself at her feet begging for sanctuary. Taking pity on him, she throws her baking tool into the air, and he then becomes safe from arrest as long as he stays within the space defined by her throw, remaining amid the pots and pans for several days while the terms for his release are negotiated. The questions that ensued were completely predictable.

And you thought you were learned.

Some endorsements:

"A field-changing book. Robin Chapman Stacey's approach not only offers a valuable corrective to those histories that treat legal texts as straightforward representations of practice; it also gets us out of the mire of speculation about lost manuscripts, dating, and provenance."—Emily Steiner, University of Pennsylvania

"Drawing on research into the poetry, narrative, and biography of the period, as well as its law and literature, Robin Chapman Stacey argues that the corpus of medieval Welsh Law known as Cyfraith Hywel Dda is a political document emerging from a changing thirteenth-century Wales in which the nobility and learned classes felt themselves and their traditions threatened by English cultural influence and political power on one hand, and the expanding pretensions of Welsh princes on the other."—Catherine McKenna, Harvard University

--Dan Ernst

Balkin on the Cycles of Constitutional Time

Jack M. Balkin, Yale Law School, has posted Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time:

Over the course of a little more than a century, American liberals (or in an earlier period, progressives) and conservatives have switched positions on judicial restraint, judicial review, and the role of the federal courts – not once, but twice. This cycling has multiple causes, including changes in the Supreme Court's docket and partisan strategies for judicial appointments.

Behind the composition of the Court's docket and the judicial appointments process, however, is a still deeper cause: the slowly changing structure of national party competition in the United States. Throughout American history national politics has been organized around a series of political regimes in which one party is dominant and sets the basic agenda for political contest. The dominant party also usually has more opportunities to shape the federal judiciary. Eventually the dominant party’s coalition falls apart and a new regime begins, led by a different party. This has happened six times in our nation's history, and we appear to be on the cusp of a seventh transformation.

Generational shifts in views about judicial activism and judicial restraint mirror the rise and fall of political regimes led by dominant parties. The kinds of the cases the Justices select, and how the Justices exercise their powers of judicial review, reflect whether we are early in the regime, in its middle years, or in its later days. For this reason, the rise and fall of regimes shapes partisan (and ideological) attitudes about the exercise of judicial review.

Early in a regime, the newly dominant party faces opposition from judges appointed by the old regime and obstacles from the constitutional jurisprudence those judges created. Hence its supporters tend to be more skeptical of judicial review. As the dominant party gains control of the courts, however, its followers increasingly recognize the importance of judicial review to promote and protect the party's commitments of ideology and interest. The positions of the two parties are symmetrical: as time goes on, the dominant party relies ever more heavily on judicial review to further its goals, while the other party gradually loses faith in the courts and increasingly preaches judicial restraint--although neither party entirely gives up on using the courts to promote its favored policies. As a political regime moves from its beginning to its conclusion, the positions of the two parties gradually switch, and so too do the views of legal intellectuals associated with the parties. The effect, however, is generational, and not everyone changes sides: older legal intellectuals may cling to their long-held beliefs about judicial review, while younger thinkers adopt a different perspective.

Constitutional theories – such as originalism and living constitutionalism – also evolve to reflect changing views about judicial review and judicial restraint. For example, while conservative originalism began as a justification for judicial restraint, it soon evolved to justify strong judicial review; the same thing happened to living constitutionalism earlier in the twentieth century.

--Dan Ernst.  H/t: Legal Theory Blog

The Constitutional Legacy of Seneca Falls

Elizabeth Cady Stanton & Susan B. Anthony (LC)

The Constitutional Legacy of Seneca Falls, a podcast of the National Constitution Center, is now available.  It “explores what happened at the historic convention, and how its legacy shaped the Constitution through the fight for women’s suffrage and the 19th Amendment and, later, landmark gender equality and reproductive rights cases, including Roe v. Wade.” With Erika Bachiochi, Ethics & Public Policy Center, and Tracy A. Thomas, University of Akron School of Law.  Hosted by Jeffrey Rosen.

--Dan Ernst

The Dartmouth College Case Continued

That symposium over at the HistPhil on Dartmouth College v. Woodward, with contributions by Naomi Lamoreau, Evelyn Atkinson, et al. is ongoing.  The latest is by Jane Manners, who this year is an associate in law at Columbia Law School.  Her post commences:

Dartmouth College v Woodward is, as every first-year law student knows, a contract case. Its canonical holding distinguished public corporations from private ones and established that where private corporations are concerned, a legislative charter is a contract, protected from legislative interference by the Constitution’s contract clause. But Dartmouth College has another legacy, which I’ll call its law-of-the-land legacy: the idea that laws ought to be “general and impartial,” and that laws that bestow unique benefits or burdens to particular persons or segments of society are ipso facto illegitimate. Despite the textbooks’ contract clause focus, Dartmouth College’s law-of-the-land legacy has shaped the legislature’s power to advance the public good and its relationship to philanthropy as much as, if not more than, its charter-as-contract holding.

More. 

--Dan Ernst

Kadens on Reputation's "Dark Side"

Emily Kadens, Northwestern University School of Law, has posted The Dark Side of Reputation, which appears in the Cardozo Law Review 40 (2019): 1996-2027:

Reputation is the foundation of theories of private ordering. These theories contend that commercial actors will act honestly because if they do not, they will get a bad reputation and others will not want to do business with them in the future. But economists and scholars of networks increasingly realize that reputation has its defects. Mixed in with trustworthy and useful reputation information on which commerce of all sorts relies is inaccurate, distorted, misguided, or outright fraudulent information. Much of the existing literature about reputation’s flaws focuses on unintentional distortions caused by biases, the requirements of social niceties, and the dearth of fully representative information. This Article, by contrast, approaches the problem of the distortion of reputation from the dark side. It uses a rich set of sixteenth- and seventeenth-century English court cases and merchant correspondence to examine how the deliberate manipulation of reputation, and, importantly, people’s failure to verify the gossip and rumors creating such reputation, enabled fraud. It turns out that reputation was “a complex process,” even in interconnected early modern markets in which merchants did business face-to-face and participated in active gossip networks. Even being caught, tried, and found guilty of a serious fraud did not necessarily undermine one’s business and perceived trustworthiness in these networks, which raises questions about how much the merchants depended upon reputation when making decisions about whom to trust.

--Dan Ernst

Woods on Estee's Reports in Hawai'i, 1903-17

Roberta F. Woods, Reference & Instructional Services Librarian at the University of Hawaii School of Law, has posted on SSRN a short piece about an early case reporter in the Hawaiian territory. Here is the abstract for "History of the Four Volumes of Decisions of the United States District Court for the Territory of Hawaii 1903-1917" (2016):

The so-called "Estee's Reports," named for Judge Morris March Estee was an early case reporter in the Hawaiian Territory. Only four volumes of decisions of the United States District Court (USDC) for the Territory of Hawaiʻi were ever printed. They span the years 1903-1917. The decisions in these volumes do not appear in the Federal Reporter covering the same time frame. The Federal Supplement, a West Publishing created reporter of decisions of the federal district courts began in 1933. Prior to 1933, federal district court decisions appeared in the Federal Reporter.

Further information is available here.

--Mitra Sharafi

Princeton Seeks Associate or Full Professor, Legal History of the U.S.

We have the following call for applications from Princeton University:

Legal History of the United States. Associate or Full Professor. Anticipated start date: September 1, 2020.

The Department of History at Princeton University invites applications from scholars with a strong engagement with the history of American law and society. The time period--from the colonial period to the present--and field of specialization are open, but the candidate should be prepared to offer an undergraduate survey on American legal history, as well as upper-level undergraduate courses and graduate seminars on specialized aspects of this field. Review of files will begin October 7, 2019, but applications will be considered until the department chooses to close the search. Applicants should provide a detailed letter of application, curriculum vitae, book abstract(s) and chapter outline(s), and one chapter- or article-length writing sample. Applicants should also provide contact information for at least three potential recommenders as part of the online application process. Please apply online at https://www.princeton.edu/acad-positions/position/12681 This position is subject to the University's background check policy.

Haara, "Bourbon Justice"

Via the New Books Network, we have word of a 2018 publication of interest from Potomac Books: Bourbon Justice: How Whiskey Law Shaped America, by Brian F. Haara (independent scholar). A description from the Press:

Bourbon whiskey has made a surprising contribution to American legal history. Tracking the history of bourbon and bourbon law illuminates the development of the United States as a nation, from conquering the wild frontier to rugged individualism to fostering the entrepreneurial spirit to solidifying itself as a nation of laws. Bourbon is responsible for the growth and maturation of many substantive areas of the law, such as trademark, breach of contract, fraud, governmental regulation and taxation, and consumer protection. In Bourbon Justice Brian Haara delves into the legal history behind one of America’s most treasured spirits to uncover a past fraught with lawsuits whose outcome, surprisingly perhaps, helped define a nation.

Approaching the history of bourbon from a legal standpoint, Haara tells the history of America through the development of commercial laws that guided our nation from an often reckless laissez-faire mentality, through the growing pains of industrialization, and past the overcorrection of Prohibition. More than just true bourbon history, this is part of the American story.

My favorite blurb from among the advance praise:

"Bourbon Justice: How Whiskey Law Shaped America actually digs into the law cases behind Bourbon, and presents the information in a very enjoyable read.  Who knew that reading about law cases could actually be interesting?"—New Bourbon Drinker

More information is available here. You can hear Haara talk about the book here.

-- Karen Tani

Twitty, "Before Dred Scott"

Over at the New Books Network this week, Anne Twitty (University of Mississippi) discusses her 2016 book Before Dred Scott: Slavery and Legal Culture in the American Confluence, 1787-1857 (Cambridge University Press). We often save mentions of interviews, podcasts, etc. for our "Weekend Roundup" post rather than giving them a stand-alone post, but I realized -- to my chagrin -- that we never covered Before Dred Scott when it came out, as is our custom for new releases.* With apologies for the oversight, here is some more information about the book:

Before Dred Scott draws on the freedom suits filed in the St Louis Circuit Court to construct a groundbreaking history of slavery and legal culture within the American Confluence, a vast region where the Ohio, Mississippi, and Missouri Rivers converge. Formally divided between slave and free territories and states, the American Confluence was nevertheless a site where the borders between slavery and freedom, like the borders within the region itself, were fluid. Such ambiguity produced a radical indeterminacy of status, which, in turn, gave rise to a distinctive legal culture made manifest by the prosecution of hundreds of freedom suits, including the case that ultimately culminated in the landmark United States Supreme Court decision in Dred Scott vs Sandford. Challenging dominant trends in legal history, Before Dred Scott argues that this distinctive legal culture, above all, was defined by ordinary people's remarkable understanding of and appreciation for formal law.

A few blurbs:

‘Anne Twitty's compact and compelling book prompts us to redraw regional borders and rethink legal cultures. In contrast to the longstanding view of the ‘American Confluence' as a house divided, a place where the Ohio and Mississippi rivers bounded conflicting regimes of slave and free labor, Before Dred Scott forwards an alternative mapping characterized by fluid borders and connected by a common legal culture with remarkably deep roots among diverse populations. The book will not settle arguments about regions and rules of law, but it will provoke some very productive ones.' -- Stephen Aron

‘Anne Twitty has brilliantly illuminated a significant chapter in the struggle against slavery - the hundreds of ‘freedom suits' brought by persons invoking the doctrine of ‘once free, always free' to claim that their prior status as free persons invalidated their enslavement. Not all of them succeeded, but Twitty has done more than show what happened in the courtroom. She has given historical presence to the lives of the freedom seekers: to her exhaustive research into their lives she has added a sure-handed and creative touch that makes this book one of the most significant contributions to antislavery scholarship in many years.' -- David Konig

More information, including the TOC, is available here. And do check out Professor Twitty's interview!

-- Karen Tani

*If you have a new publication, please feel free to let us know directly. We don't have a perfect system for identifying new work and we welcome suggestions of items to cover. 

Schumaker's "Troublemakers"

Kathryn Schumaker, University of Oklahoma, has published Troublemakers: Students’ Rights and Racial Justice in the Long 1960s (NYU Press):

In the late 1960s, protests led by students roiled high schools across the country. As school desegregation finally took place on a wide scale, students of color were particularly vocal in contesting the racial discrimination they saw in school policies and practices. And yet, these young people had no legal right to express dissent at school. It was not until 1969 that the Supreme Court would recognize the First Amendment rights of students in the landmark Tinker v. Des Moines case.

A series of students’ rights lawsuits in the desegregation era challenged everything from school curricula to disciplinary policies. But in casting students as “troublemakers” or as “culturally deficient,” school authorities and other experts persuaded the courts to set limits on rights protections that made students of color disproportionately vulnerable to suspension and expulsion.

Troublemakers traces the history of black and Chicano student protests from small-town Mississippi to metropolitan Denver and beyond, showcasing the stories of individual protesters and demonstrating how their actions contributed to the eventual recognition of the constitutional rights of all students. Offering a fresh interpretation of this pivotal era, Troublemakers shows that when black and Chicano teenagers challenged racial discrimination in American public schools, they helped remake American constitutional law and establish protections of free speech, due process, equal protection, and privacy for students.

--Dan Ernst

Vostral on toxic shock

Toxic Shock :A Social History by Sharra L. Vostral, Purdue University came out with NYU Press in 2018. From the publisher: 

In 1978, doctors in Denver, Colorado observed several healthy children who 

suddenly and mysteriously developed a serious, life-threatening illness with no visible source. Their condition, which doctors dubbed ‘toxic shock syndrome’ (TSS) was rare, but observed with increasing frequency over the next few years in young women, and was soon learned to be associated with a bacterium and the use of high-absorbency tampons that had only recently gone on the market. In 1980, the Centers for Disease Control identified Rely tampons, produced by Procter & Gamble, as having the greatest association with TSS over every other tampon, and the company withdrew them from the market. To this day, however, women are frequently warned about contracting TSS through tampon use, even though very few cases are diagnosed each year.  

Historian Sharra Vostral’s Toxic Shock is the first and definitive history of TSS. Vostral shows how commercial interests negatively affected women’s health outcomes; the insufficient testing of the first super-absorbency tampon; how TSS became a ‘women’s disease,’ for which women must constantly monitor their own bodies. Further, Vostral discusses the awkward, veiled and vague ways public health officials and the media discussed the risks of contracting TSS through tampon use because of social taboos around discussing menstruation, and how this has hampered regulatory actions and health communication around TSS, tampon use, and product safety.  

A study at the intersection of public health and social history, Toxic Shock brings to light the complexities behind a stigmatized and under-discussed issue in women’s reproductive health. Importantly, Vostral warns that as we move forward with more and more joint replacements, implants, and internal medical devices, we must understand the relationship of technology to bacteria and recognize that both can be active agents within the human body. In other words, unexpected consequences and risks of bacteria and technology interacting with each other remain.

Praise for the book:

"Vostral’s excellent and accessible book is the first to address Toxic Shock Syndrome. She helpfully situates it within the history of the women’s health movement, which challenged TSS through Our Bodies, Ourselves and other fora. Beautifully written, Toxic Shock melds feminist science and technology studies with careful attention to how 'health' works politically, culturally, and affectively. It is a superb addition to the women’s health and biopolitics literature."-Monica J. Casper

"This deft study of technology, disease, and consumer capitalism illuminates the centrality of shame in the history of U.S. women's health and health policy. The story of Toxic Shock Syndrome is as necessary as it is painful—a harbinger, Vostral shows, of other medical injuries to come."-Rebecca Herzig

Further information is available here.

--Mitra Sharafi

Witte on Calvin

John Witte, Emory University School of Law, has posted John Calvin, which appears in Great Christian Jurists in French History, ed. Olivier Descampes and Rafael Domingo (Cambridge University Press, 2019), 117-33

French-born Protestant Reformer, John Calvin, led a sweeping reformation of law, politics, and society in sixteenth-century Geneva. Building on classical and earlier Christian sources, Calvin developed an innovative and integrative theory of rights and liberties, church and state, authority and power, natural law and positive law. Particular striking was his use of the Decalogue as a source and summary of natural law, and as a template for spiritual and civil laws and rights in a Christian republic. Also novel was his theory of the uses of natural and positive law to cultivate a baseline civil morality and an aspirational spiritual morality for each member of the community. Calvin and his followers believed in law, as a deterrent against sin, an inducement to grace, and a teacher of Christian virtue. They also believed in liberty, structuring their churches and states alike to minimize the sins of their rulers and to maximize the liberties of their subjects. Calvin distilled his legal teachings into sundry public, private, penal, and procedural laws for Geneva, and he broadcast them widely among other French and other European jurists, theologians, and political leaders of his day. His work helped shape Western legal thought and practice until the modern Enlightenment, and several of his basic teachings about law, politics, and society still live on today both in secular legal thought and in modern Protestant churches.

---Dan Ernst.  H/t: Legal Theory Blog

White on McCulloch and Judicial Statesmanship

Adam White, George Mason University Antonin Scalia Law School, has posted John Marshall's Judicial Statesmanship in McCulloch v. Maryland, which he wrote for “a volume on the 200th anniversary of McCulloch v. Maryland, edited by Gary Schmitt for the American Enterprise Institute”:

Writing on the early American republic, Alexis de Tocqueville observed that federal judges "must not only be good citizens, educated and upright men," but "one must also find statesmen in them." Yet nearly 200 years later, notions of "judicial statesmanship" remain nebulous — and divisive. Nevertheless, both proponents and critics of "judicial statesmanship" seem to largely agree on one thing: "judicial statesmanship" requires a judge to go beyond the law to decide cases.

There is a better way to think of "judicial statesmanship." In his seminal study of statesmanship and party, Professor Harvey C. Mansfield, Jr. observed that "[i]t is not that a statesman is unprincipled or above principle; it is rather that his principle loses its refinement in the translation to public speech, and thence to party program.” This is how "judicial statesmanship" is best understood — not in terms of what the judge adds to the law, but in terms of what the judge declines to add to the law, or at least what the judge declines to say about the law. And this is the statesmanship that Chief Justice Marshall exemplified in McCulloch v. Maryland.

--Dan Ernst

Weekend Roundup

• Over at New Books in Law, Jonathan Gienapp (Stanford University) discusses his book The Second Creation; former guest blogger Kimberly Welch (Vanderbilt University) discusses Black Litigants in the Antebellum American South.

• From the New Legal Realism blog: Malcolm Feeley (University of California, Berkeley) on Frank Remington, Wisconsin, and the influential American Bar Foundation project on the administration of criminal justice in the U.S. (The project was a collaboration with the Ford Foundation, the ABA, and others.) Willard Hurst makes a few cameo appearances.

• Are you up to speed on the due dates for the awards and prizes of the Organization of American Historians?  We ask, because we’re jurying one of them.  DRE 

• The HistPhil forum on the Dartmouth College v. Woodward case continues. Here's a contribution from Evelyn Atkinson (American Bar Foundation doctoral fellow/Ph.D. candidate, University of Chicago).

•  From the Washington Post's Made by History section: Ariela Gross (USC) and Alejandro de la Fuente (Harvard University) on the history of racialized understandings of citizenship; Smita Ghosh (Georgetown University) on migrant detention; Carly Goodman (co-editor, Made by History), S. Deborah Kang (California State University San Marcos), and Yael Schacher (Refugees International) on the power of immigrant rights advocates to protect and enforce the right to asylum; Rebecca Spang (Indiana University) on what the French Revolution teaches us about the dangers of gerrymandering; and more.

• Call for Papers: “Law and Political Economy: Democracy After Neoliberalism,” the inaugural Law and Political Economy Project conference. 

• For a limited time, The Czar and the Slaves: Two Puzzles in the History of International Arbitration, by Bennett Ostdiek and John Fabian Witt is open access in the American Journal of International Law.

• Newly published online in Law and History Review and Cambridge Core: Method and Dialogue in History and Originalism by Logan Everett Sawyer, and “Amongst the Most Desirable Reading”: Advertising and the Fetters of the Newspaper Press in Britain, c. 1848–1914, by Anat Rosenberg.

• ICYMI: Manisha Sinha on The New Fugitive Slave Laws in NYRB.  As previously mentioned (but now the subject of an official HLS announcement), Property law scholar [and Legal Historian] Molly Brady joins the Harvard Law faculty.  A play on McNaughton's Case at the Edinburgh Fringe, via The Scotsman.

• Update: Listen to Sarah Milov discuss the controversy over an NPR segment that used her work without attribution here. Background here. H/t: Emily Prifogle and @womenalsoknowhistory

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

Lino on Dicey, the Rule of Law and Imperialism

Dylan Lino, University of Western Australia Law School, has posted The Rule of Law and the Rule of Empire: A.V. Dicey in Imperial Context, which was published in the Modern Law Review 81 (2018): 739-64

The idea of the rule of law, more ubiquitous globally today than ever before, owes a lasting debt to the work of Victorian legal theorist A.V. Dicey. But for all of Dicey’s influence, very little attention has been paid to the imperial entanglements of his thought, including on the rule of law. This article seeks to bring the imperial dimensions of Dicey’s thinking about the rule of law into view. On Dicey’s account, the rule of law represented a distinctive English civilisational achievement, one that furnished a liberal justification for British imperialism. And yet Dicey was forced to acknowledge that imperial rule at times required arbitrariness and formal inequality at odds with the rule of law. At a moment when the rule of law has once more come to license all sorts of transnational interventions by globally powerful political actors, Dicey’s preoccupations and ambivalences are in many ways our own.

—Dan Ernst

Casto to Speak on Robert H. Jackson and FDR

William R. Casto, the Paul Whitfield Horn Professor at Texas Tech University, will speak on his book Advising the President: Attorney General Robert H. Jackson and Franklin D. Roosevelt, published last year by the University Press of Kansas, at the Franklin D. Roosevelt Library and Museum on Wednesday, July 31, 2019 at 4:00 p.m.  Click here to register. 

It is broadly understood that a president might test the limits of the law in extraordinary circumstances -- and does so with advice from legal counsel. Advising the President is an exploration of this process, viewed through the experience of President Franklin D. Roosevelt and Robert H. Jackson on the eve of World War II. The book directly grapples with the ethical problems inherent in advising a president on actions of doubtful legality; eschewing partisan politics, it presents a practical, realistic model for rendering -- and judging the propriety of -- such advice.

Jackson, who would go on to be the chief US prosecutor at the Nuremberg war crimes trials, was the US solicitor general from 1938-1940, US attorney general from 1940-1941, and Supreme Court justice from 1941-1954. William R. Casto examines the legal arguments advanced by Roosevelt for controversial wartime policies such as illegal wiretapping and unlawful assistance to Great Britain, all of which were related to important issues of national security. Putting these episodes in political and legal context, Casto makes clear distinctions between what the adviser tells the president and what he tells others, including the public, and between advising the president and subsequently facilitating the president's decision.

Based upon the real-life experiences of a great attorney general advising a great president, Casto's timely work presents a pragmatic yet ethically powerful approach to giving legal counsel to a president faced with momentous, controversial decisions.

--Dan Ernst

Mikhail on the Original Meaning of Emoluments Clause

John Mikhail, Georgetown University Law Center, has posted The 2018 Seegers Lecture: Emoluments and President Trump, forthcoming in the Valparaiso University Law Review:

The topic for my 2018 Seegers Lecture at Valparaiso University Law School was the original meaning of “emolument” and its implications for President Trump. In this revised and expanded version of my spoken remarks, I begin by discussing the Constitution’s Emoluments Clauses and describing the three emoluments lawsuits against the president that are currently winding their way through the federal courts. I then highlight one of the main points of contention in these lawsuits, which is the constitutional meaning of the term “emolument.” Next, I describe some of the efforts my colleagues and I have made to investigate the historical meaning of this term and explain how our research may impact the resolution of these lawsuits. Finally, I discuss the novel decision issued by a federal district court in July 2018, which held that “emolument” was a flexible term at the founding that referred to “any ‘profit,’ ‘gain,’ or ‘advantage,’” including profits from ordinary market transactions. A second federal judge recently denied the president’s motion to dismiss on the same grounds, setting the stage for what seems likely to be a pivotal issue on appeal in both cases.

--Dan Ernst

Loft on Litigation and the Anglo-Scottish Union

Philip Loft, University of Cambridge has published "Litigation, the Anglo-Scottish Union, and the House of Lords as the High Court, 1660-1875" in The Historical Journal 61:4 (2018), 943-67. The article won the Royal Historical Society's 2019 David Berry Prize for best essay on any aspect of Scottish history. Here's the abstract: 

This article examines the role of the House of Lords as the high court from the Restoration of 1660 to the passage of the Appellate Jurisdiction Act in 1876. Throughout this period, lay peers and bishops judged appeals on civil law from the central courts of England and Wales, Ireland (aside from between 1783 and 1800), and Scotland after the Union of 1707. It has long been known that the revolution of 1688–9 transformed the ability of parliament to pass legislation, but the increased length and predictability of parliamentary sessions was of equal significance to the judicial functions performed by peers. Unlike the English-dominated profile of eighteenth-century legislation, Scots constituted the largest proportion of appellants between 1740 and 1875. The lack of interaction between Westminster and Scotland is often seen as essential to ensuring the longevity of the Union, but through comparing the subject matter of appeals and mapping the distribution of cases within Scotland, this article demonstrates the extent of Scottish engagement. Echoing the tendency of Scottish interests to pursue local, private, and specific legislation in order to insulate Scottish institutions from English intervention, Scottish litigants primarily sought to maintain and challenge local privileges, legal particularisms, and the power of dominant landowners.

Further information is available here. 

--Mitra Sharafi

Hasday, Intimate Lies and the Law

Out any day now from Oxford University Press: Intimate Lies and the Law, by Jill Elaine Hasday (University of Minnesota). In canvassing and analyzing the current law of "intimate deception," the book devotes significant attention to history. Specifically, the book explores why the remedies available to deceived intimates contracted significantly over the course of the twentieth century. Here’s a description from the Press:

Intimacy and deception are often entangled.  People deceive to lure someone into a relationship or to keep her there, to drain an intimate’s bank account or to use her to acquire government benefits, to control an intimate or to resist domination, or to capture myriad other advantages.  No subject is immune from deception in dating, sex, marriage, and family life.  Intimates can lie or otherwise intentionally mislead each other about anything and everything.

Suppose you discover that an intimate has deceived you and inflicted severe—even life-altering—financial, physical, or emotional harm.  After the initial shock and sadness, you might wonder whether the law will help you secure redress.  But the legal system refuses to help most people deceived within an intimate relationship.  Courts and legislatures have shielded this persistent and pervasive source of injury, routinely denying deceived intimates access to the remedies that are available for deceit in other contexts.

Jill Elaine Hasday’s Intimate Lies and the Law is the first book that systematically examines deception in intimate relationships and uncovers the hidden body of law governing this duplicity.  Hasday argues that the law has placed too much emphasis on protecting intimate deceivers and too little importance on helping the people they deceive.  The law can and should do more to recognize, prevent, and redress the injuries that intimate deception can inflict.

Entering an intimate relationship should not mean losing the law’s protection from deceit.

A few blurbs:

"Intimate Lies and the Law is rigorous, bold, and carefully researched, yet terrifically readable. Hasday has dug far and deep into the law and social science of intimate deception to give us an authoritative volume on this wrenching human domain. Whereas the law often blames victims for being duped, Hasday imagines a world in which trust is supported and rewarded. Her proposal for change-that the law treat intimate deception more like other kinds of deception-is powerful and sweeping, yet practical and workable. Timely and important, Intimate Lies and the Law has the potential to reshape not only the legal terrain but the very human relationships that live and breathe in the law's shadow." -- Elizabeth Emens

"In Intimate Lies and the Law, Jill Hasday maps a big, fascinating, sobering subject: the law's regulation (including neglect) of deceptions amongst those closest to us. She explores this difficult terrain masterfully with verve, thoroughness, and a keen eye for the telling detail. She casts in a new light a huge and influential body of law that teems with experiences and lessons that are simultaneously familiar and odd. This is an important book that will be of interest not only to academics but also to general readers. Impressively rigorous, it is also exceptionally accessible." -- Randall Kennedy

More information, including a preview of the book's introduction, is available here, at Professor Hasday's website. 

-- Karen Tani 

File on the Telegraph and Libel in the Progressive era

Patrick C. File, University of Nevada, Reno has published Bad News Travels Fast: The Telegraph, Libel, and Press Freedom in the Progressive Era with the University of Massachusetts Press. From the publisher: 

At the turn of the twentieth century, American journalists transmitted news across the country by telegraph. But what happened when these stories weren’t true? In Bad News Travels Fast, Patrick C. File examines a series of libel cases by a handful of plaintiffs—including socialites, businessmen, and Annie Oakley—who sued newspapers across the country for republishing false newswire reports. Through these cases, File demonstrates how law and technology intertwined to influence debates about reputation, privacy, and the acceptable limits of journalism.

This largely forgotten era in the development of American libel law provides crucial historical context for contemporary debates about the news media, public discourse, and the role of a free press. File argues that the legal thinking surrounding these cases laid the groundwork for the more friendly libel standards the press now enjoys and helped to establish today’s regulations of press freedom amid the promise and peril of high-speed communication technology.

Praise for the book:

"File’s research is impressive, and Bad News Travels Fast makes an important contribution to understanding this ‘forgotten period’ of libel law." - Samantha Barbas

"An important contribution to our understanding of the development of First Amendment law, with particular relevance to current debates about the role of journalism and legal protections for the press." - Tim Gleason

Further information is available here.

--Mitra Sharafi

Spitzer on Washington State's Blanket Primary

Hugh D. Spitzer, University of Washington School of Law, has posted Be Careful What You Wish For: Private Political Parties, Public Primaries, and State Constitutional Restrictions, forthcoming in the Washington Law Review 94 (2019): 823-50:

Political parties always disliked the Progressive Era changes that pulled the entire electorate into nominating candidates. Why, after all, should non-party members participate in the affairs and choices of private organizations? Over the course of a century, Democrats, Republicans, and minor parties repeatedly mounted lawsuits to attack new primary laws, and they eventually prevailed on a key constitutional issue: the First Amendment right of association. But when political actors access the courts for strategic purposes, they can get caught in the vagaries of history and public attitudes, with outcomes they might not like. This essay focuses on the history of Washington State’s “direct primary” and “blanket primary” systems, the repeated lawsuits challenging them, and the freedom of association doctrine that propelled the blanket primary’s 2004 demise. It then recounts the blowback from Washington voters, who enacted a “top two” primary system that sidelined the political parties by sending the two highest vote-getters to the general election regardless of political affiliation. It asserts that remaining aspects of Washington’s election system might violate the state’s own constitution, and that things could get worse than ever for the parties, perhaps disrupting precinct officer elections and even the state’s presidential primary. How did the political parties wind up at odds with their own voters, with an outcome opposite to what they intended? This essay suggests that the answer lies in a web of conflicts: between litigation and political strategies; between the federal and state constitutions; and between the First Amendment’s protections of freedom of association, the late nineteenth century populist constitutional ban on public assistance to private entities, and the early twentieth century progressive goal of forcing private political parties to open their processes to the voting public. It concludes that long-term litigation strategies to address political issues can fail to achieve their objectives when those lawsuits overlook historical policy choices and ignore popular sentiments entrenched in the national and state constitutions.

--Dan Ernst

VanderVelde on the 13th Amendment and Master-Servant law

Lea S. VanderVelde, University of Iowa College of Law, has posted Servitude and Captivity in the Common Law of Master-Servant: Judicial Interpretations of the Thirteenth Amendment's Labor Vision Immediately after its Enactment, which is to appear in the William & Mary Bill of Rights Journal 27 (2019): 1079-1112:

In the 19th century, the American common law of master and servant was a system of subordination principles designed to command and capture the labor of workers. Blackstone’s Commentaries was the received common law, from the nation’s early days through the settlement of new states in the American West. Blackstone’s Chapter 14, organized the legal rules into a system of subordination as formal inequality. As the system’s foundation, Blackstone used slavery, rather than partnership or voluntary free labor. Thus, when the nation abolished slavery by the 13th Amendment, the structure’s foundation was implicitly undermined.

Moreover, during Reconstruction, the Radical Republicans, who dominated the post-War Congress, engaged in a sweeping anti-subordination agenda marked by multiple reform initiatives. Oppressive labor systems that they found to be slave-like were deemed “anti-republican.” An egalitarian, leveling ethos held sway as Reconstruction brought about a revolution in basic rights. Yet, this ethos did not find its way into a revision of all of the subordinating principles in the nation’s common law of master and servant. In the years immediately after its enactment, the anti-subordination agenda lost ground. The 13th Amendment was subject to different interpretations as state courts, analogized more broadly or narrowly, depending upon their state’s position as a former slave state or free state. As a result, the nation’s received common law was never completely reordered upon a new foundation of fully free labor.

--Dan Ernst

Weekend Roundup

• HistPhil has launched an "online forum marking the 200th anniversary of the Supreme Court case Dartmouth College v. Woodward, a landmark decision in shaping the legal landscape of U.S. civil society." Here's the first contribution, by Johann Neem (Western Washington University).

• In Custodia Legis (the blog of the Law Librarians of Congress) spotlights some of its Spanish Legal Documents (15th-19th centuries).

• OMB/NARA Memorandum on Transition to Electronic Records: “By 2022, [the National Archives and Records Administration] will no longer accept transfers of permanent or temporary records in analog formats and will accept records only in electronic format and with appropriate metadata.”

• Call for Papers: The Fourth Biennial Public Law Conference, University of Ottawa Law School, Common Law Section, 17-19 June 2020.

•  ICYMI: Chieftains Museum Host Exhibition on Legal Aspects of Cherokee Removal in Georgia (from the Coosa Valley News). James Thornton Harris on Charles Reich and The Greening of America on HNN.

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

Donelson on Holmes and Nihilism

Raff Donelson, Louisiana State University, Baton Rouge, has posted The Nihilist, which appears in The Pragmatism and Prejudice of Oliver Wendell Holmes, Jr. (Seth Vannatta, ed. Lexington Press 2019), 31-48:

Scattered skeptical remarks and a general austerity that infused his writings have given Justice Oliver Wendell Holmes a reputation as some type of nihilist. Noted commentators such as Richard Posner and Albert Alschuler have claimed as much. This article seeks to correct this misunderstanding. Holmes was not a nihilist in the sense of being melancholy due to a belief that the world has no absolute moral values or gods. Instead, Holmes was a pragmatist in the spirit of William James and John Dewey. While Holmes had doubts about moral truth and deities, he ultimately thought that their existence (or non-existence) should have no bearing on our behavior or the law. We must, through our collective efforts, find values that work for us.

–Dan Ernst.  H/t: Legal Theory Blog

TOC for the volume after the jump:

Tell on Emmett Till

Dave Tell, University of Kansas has published Remembering Emmett Till with the University of Chicago Press. From the publisher: 

Take a drive through the Mississippi Delta today and you’ll find a landscape dotted with memorials to major figures and events from the civil rights movement. Perhaps the most chilling are those devoted to the murder of Emmett Till, a tragedy of hate and injustice that became a beacon in the fight for racial equality. The ways this event is remembered have been fraught from the beginning, revealing currents of controversy, patronage, and racism lurking just behind the placid facades of historical markers.

In Remembering Emmett Till, Dave Tell gives us five accounts of the commemoration of this infamous crime. In a development no one could have foreseen, Till’s murder—one of the darkest moments in the region’s history—has become an economic driver for the Delta. Historical tourism has transformed seemingly innocuous places like bridges, boat landings, gas stations, and riverbeds into sites of racial politics, reminders of the still-unsettled question of how best to remember the victim of this heinous crime. Tell builds an insightful and persuasive case for how these memorials have altered the Delta’s physical and cultural landscape, drawing potent connections between the dawn of the civil rights era and our own moment of renewed fire for racial justice.

 Praise for the book:

“Remembering Emmett Till sets the bar for future work on memory, civil rights, and the case that arguably gave the movement its legs. With deft archival work and savvy on-the-ground sleuthing, Tell unearths from the unrelenting Delta landscape many secrets locals have longed to keep buried. Accessible, engaging, and a page-turner from the jump.” -David W. Houck

“Tell has written the Emmett Till book still begging to be written. The tragedy of this case gave it a place in history books, but its place in American memory was far more complicated. Revisionist history is one thing; rewriting history is another. Tell’s argument that race and geography were at the core of that rewriting makes for a compelling and convincing read. As Tell shows, collective forgetting, willfully done, has created a new layer of tragedy to the Emmett Till story.” -Devery S. Anderson

“With almost surgical precision, Tell unpacks what he presciently calls ‘the deep intertwining of race, place, and commemoration’ in his brilliant new history of the remembrance of Emmett Till. Excellent histories of this 1955 murder abound, but no one until now has told the multilayered and painfully tangled history of Till’s commemoration in the Mississippi Delta. This may be the single greatest ‘history of memory’ I have ever read.” -James Young

"Remembering Emmett Till is an expertly rendered and original study of an acutely important episode in modern national memory. Tell shows, in evocative detail, how collective patterns and projects of commemoration can be both necessary and confounding, social and topographical, found and invented, tragic and reconstructive. In doing so, Tell blends ideas, places, artifacts, and evidence together in new ways so that readers may revisit, with striking implications, the question of how best to commemorate a historical injustice that will not--and, as Tell suggests, should not--leave us alone." -Bradford Vivian

Further information is available here.

--Mitra Sharafi

Wilf on the Legal Treatise

Steven Wilf (University of Connecticut School of Law) has posted notice of "The Legal Treatise," which is a contribution to the forthcoming Oxford Handbook of Law and Humanities (Oxford University Press, 2019). The Handbook editors are Maksymilian Del Mar, Simon Stern, and Bernadette Meyler. Here is the abstract:

The legal treatise is a subject with a pedigree. Four seminal articles by eminent legal historians have defined how we think about this particular fabrication of literary form. Writing in the midst of debates over critical analysis of law, A.W.B. Simpson identified the treatise as a common law form of summation for legal doctrine. Its rise was marked by nineteenth-century demands for a tidy form of legal thinking while the doctrinal skepticism of legal realism doomed the genre by the 1930s. Morton Horwitz underscored the importance of treatises for legal historians. In his view, the genre serves as a freeze-frame of law as it is conceived in a given moment of time. Angela Fernandez and Markus Dubber argued that the treatise was a more or less stable mixture of law as it is and law as it should be. They foregrounded the utopian dimension within the legal treatise. Christopher Tomlins identified the treatise as a legal technology with set purposes. Many of these purposes are deeply instrumental—and the very act of recordation is an exercise of power. This essay disembarks from these important contributions. Drawing upon such diverse fields as the history of the book, literary genre studies, information management, and the sociology of knowledge, it underscores the multiplicity of the treatise’s genre ecosystem. The legal treatise simultaneously serves as a site for the production of knowledge, a stepping-stone or even substitute for codes, fabricated order, a mechanism for establishing authorial authority, a professional talisman, a technic of systematizing and organizing information, a legitimization of existing norms, and a means of constructing a national jurisprudence akin to the way a dictionary might define a national language. The essay focusing largely on common law treatises of the long nineteenth-century will examine these and other purposes operating within the social context of the legal profession. How do these competing goals exist within a single literary artifact? What pressures threaten to unravel the legal treatise’s claims to monumental authority? The essay’s salient contribution will be its highlighting the importance of time. The legal treatise is a genre which simultaneously asserts its place as a summa of legal knowledge and—as the commonplace historical introduction especially underscores—will be subject to countless revisions. It is a text readied for obsolescence. Beneath the treatise’s façade of professional authority lies a profound anxiety about its own timelessness.

The chapter is not available for download, unfortunately; we will notify you when the edited collection becomes available. (h/t: Legal Theory Blog)

-- Karen Tani

Avi-Yonah, Fishbien & Mazzoni on Surrey and Tax Policy

Reuven S. Avi-Yonah University of Michigan Law School, and two SJD candidates at Michigan Law, Nir Fishbien and Gianluca Mazzoni, have posted Stanley Surrey, the Code and the Regime:

Stanley Surrey (1910-1984) was arguably the most important tax scholar of his generation. Surrey was a rare combination of an academic (Berkeley and Harvard law schools, 1947-1961 and 1969-1981) and a government official (Tax Legislative Counsel, 1942-1947; Assistant Secretary for Tax Policy, 1961-1969). Today he is mostly remembered for inventing the concept of tax expenditures and the tax expenditure budget. This paper will argue that while Surrey was influential in shaping domestic tax policy for a generation and had an impact after his death on the Tax Reform Act of 1986, his longest lasting contributions were in shaping the international tax regime, since the concept of the single tax principle that shapes contemporary international tax reform efforts can be traced directly to his writing and activities both in academia and in the government.

This draft draws makes good use of Surrey's unpublished memoir but only passingly refers to the wider collection of Surrey Papers opened at HLS in 2017, used by George Yin in a recent article.  I'm no historian of taxation, but in my research on the early New Deal even I could spot Surrey's brilliance at the National Recovery Administration, as he took no pains to hide it, even when, as a matter of bureaucratic politics, he might have been prudent to have done so.

--Dan Ernst.  H/t: Legal Theory Blog

Milanech, "Paternity: The Elusive Quest for the Father"

Harvard University Press has released Paternity: The Elusive Quest for the Father (June 2019), by  Nara B. Milamich (Barnard College). A description from the Press:

For most of human history, the notion that paternity was uncertain appeared to be an immutable law of nature. The unknown father provided entertaining plotlines from Shakespeare to the Victorian novelists and lay at the heart of inheritance and child support disputes. But in the 1920s new scientific advances promised to solve the mystery of paternity once and for all. The stakes were high: fatherhood has always been a public relationship as well as a private one. It confers not only patrimony and legitimacy but also a name, nationality, and identity.

The new science of paternity, with methods such as blood typing, fingerprinting, and facial analysis, would bring clarity to the conundrum of fatherhood—or so it appeared. Suddenly, it would be possible to establish family relationships, expose adulterous affairs, locate errant fathers, unravel baby mix-ups, and discover one’s true race and ethnicity. Tracing the scientific quest for the father up to the present, with the advent of seemingly foolproof DNA analysis, Nara Milanich shows that the effort to establish biological truth has not ended the quest for the father. Rather, scientific certainty has revealed the fundamentally social, cultural, and political nature of paternity. As Paternity shows, in the age of modern genetics the answer to the question “Who’s your father?” remains as complicated as ever.

A few blurbs:

“‘Mama’s baby, Papa’s maybe.’ DNA testing has all but destroyed the uncertainty that has attended paternity for millennia. Milanich has written a fascinating history of the ways societies have coped with anxiety about paternity, and how that anxiety has helped construct notions of fatherhood, masculinity, race, and family.”—Annette Gordon-Reed

“This splendid work shows how the development and use of paternity testing over several centuries determined individuals’ fates. For millions of people, ‘Who’s your daddy?’ was not simply an idle question, but often a matter of life or death.”—Sonya Michel

More information is available here.

-- Karen Tani