Saturday, August 17, 2019

Weekend Roundup

  • Congratulations to Sarah Barringer Gordon and Kevin Waite, both of the University of Pennsylvania, on their award of a $242,000 collaborative research grant from the National Endowment for the Humanities. The grant will support a project titled "The Long Road to Freedom: Biddy Mason (1818–1891) and the Making of Black Los Angeles."
  • Writing for JOTWELLs Constitutional Law section, Ilya Somin has posted an admiring review of Maureen E. Brady's recent article on damagings clauses.
  • Harvard Law Today has a story on how students in Elizabeth Papp Kamali’s seminar, "Mind and Criminal Responsibility in the Anglo-American Tradition," use crime broadsides and other original sources in the Harvard Law School Library's Historical & Special Collections.
  • The Supreme Court Historical Society and production company Article III Films have announced the launch of the web documentary FDR and the Courtpacking Controversy.  “In late August the documentary will be sent to U.S. History teachers across the nation, accompanied by specially designed lesson plans to help students learn about the Courtpacking episode, which highlights important issues about separation of powers.”
  • 1619: The 400th anniversary of the start of African American slavery in what is now the United States of America is the subject of the 1619 Project of the New York Times Magazine and this timeline in The Guardian.  But the History Channel says it started earlier.
  • ICYMI: Immigration edition.  Erika Lee on the legal history of the new "public charge" regulation.  Also Kunal Parker, on NPRMother Jones thinks Acting Director of US Citizenship and Immigration Services Ken Cuccinelli’s ancestor might have been excluded under it.
  • Margaret O'Mara, the Howard & Frances Keller Professor of History at the University of Washington, will be delivering the keynote at the Policy History Conference in June 2020.  The PHC is currently accepting submissions of panels and papers.
  • Update: LHB blogger Mitra Sharafi's post for India's Independence Day (Aug.15) on how one law journal survived the partition of British India
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, August 16, 2019

Tushnet Replies to Schlaes and Blackman on Schechter

Mark Tushnet’s post last month on Balkinization on Justice Gorsuch’s reliance in the Gundy decision upon Amity Shlaes’s account of Schechter Poultry has prompted responses by Shlaes and Josh Blackman.  Tushnet replies in Epistemic Closure and the Schechter Case.

--Dan Ernst

JEV-Fellowship for European Administrative History

[We have the following announcement of a research fellowship in the field of European Administrative History.]

JEV-Fellowship for European Administrative History

At the end of 2012 Prof. Dr. Erk Volkmar Heyen, who served as Professor of Public Law and European Administrative History at the Ernst-Moritz-Arndt University of Greifswald until his retirement and as editor of the "Jahrbuch für europäische Verwaltungsgeschichte/Yearbook of European Administrative History" (JEV), which ran from 1989 to 2008, endowed a research fellowship in the field of European Administrative History ("The JEV-Fellowship for European Administrative History"). The fellowship falls within the framework of the German University Foundation (Bonn, Germany).

The scholarship is intended to benefit the next generation of scientific researchers, particularly doctoral and post-doctoral students, to enable them to complete their research project in as brief a period as possible, ordinarily up to a maximum of 6 months. The scholarship is based on the usual rates for doctoral fellowships of the German Research Foundation (DFG). Should a fellowship be awarded to a researcher outside Germany, local scholarship rates will be taken into consideration. Marital status will not be taken into account, nor will travel or overhead costs be reimbursed.

The Board of the German University Foundation awards the fellowship based on the recommendation of a jury, which is based at the Max Planck Institute for European Legal History (MPI) in Frankfurt.

Early stage researchers from Germany and abroad are invited to apply. In accordance with the thematic and methodological spectrum covered by the JEV, the scholarship is open to all historical disciplines, provided the research project addresses an aspect of European administrative history or history of administrative law from the sixteenth to the twentieth century. The relevance of the research topic should not be restricted to a particular national context. Comparative research questions are particularly welcome.

Applications for a scholarship commencing in January 2020 can be submitted until 30 September 2019. Applications in English or German should be sent in electronic form to: Priv.-Doz. Dr. Peter Collin, collin@rg.mpg.de. The application, which must also indicate  the intended duration of the fellowship, should include: a tabular CV with details on the nature and course university education with copies of examination results and diplomas to be enclosed, a list of scientific publications, where applicable; a detailed description of the research project including a detailed outline, a detailed report on the current state of the project and writing progress, including the reasons for any delay in its completion; extensive excerpts from the manuscript; information on the project's previous,  current and planned financing arrangements; a precise timetable to complete the manuscript within the duration of the fellowship. Furthermore, at least one expert opinion on the research project and a personal reference from a university lecturer are to be submitted directly to the jury.

The MPI provides fellowship recipients with the opportunity to work in its library. Fellows are given the opportunity to present and discuss their research projects with members of the Institute. Upon expiration of the fellowship, the recipient is to submit a report on the status of the manuscript. The MPI provides for the publication of the manuscript in one of its book series, assuming it meets internal and scientific standards. The book is to acknowledge the support provided by the "JEV-Fellowship for European Administrative History" in the masthead or in the preface.

--Dan Ernst

Spaces of Roman Constitutionalism

[We have the following announcement.]

Spaces of Roman Constitutionalism.  26-28 September 2019.  University of Helsinki

From the fora to the assemblies and beyond, public space in ancient Rome was both political and contested, reflecting changing notions of community, citizenship and the values and norms behind them. The purpose of this conference is to explore the political, cultural and legal notions of public space and public realm in Rome. By observing the place of magistrates in the public spaces of Rome and more generally in the ideas behind Republican governance, it seeks to question and unpack the notions that have been built into the concept of Roman republican governance. On one hand we have the notion of Republicanism and public law, which has a rich history of modernizing interpretations and reuses in European history. On the other, there is the equally rich tradition of rituals, ceremonies, religious convictions and beliefs that surround the practices of governance. By examining the spacial aspect, how these were situated and interlinked and how public and private spaces and roles intermingled, we are hoping to shed new light into cultural and social dimension of Roman republicanism and its transformation from the Republic to the Principate. By setting ideas into their dynamic spatial, social and cultural contexts, we hope to subvert the traditional story of Roman constitutionalism.

Keynote speakers of the conference are Harriet Flower (Princeton), Karl-Joachim Hölkeskamp (Cologne), Catherine Steel (Glasgow), and Clifford Ando (Chicago).

The conference is open to all and there is no registration required.  For more information and the programme, please visit [here].

--Dan Ernst

Using fiction to teach legal history


Do you include fiction on your legal history syllabi? This summer, we asked many of you what novels, short stories, plays, and other kinds of fiction you use to teach legal history (H/t: LSA Law & History CRN and Twitter). This is a sequel of sorts to our posts on using film to teach legal history in summer 2017 (here and here).
No Longer at Ease 0 9780385474559 0385474555
Here are the responses (lightly edited for readability). 

Happy reading, everyone!
  • Denise Arista on indigenous legal history: Some indigenous futurism or post apocalyptic Sci-fi which suggest the resurgence of "non-normative" extra Euro-American legal regimes may be a good place to teach. Some of us work in the intersection of colonial and indigenous customary law and language, these things though rich, are rarely focused upon. 
    • Begin perhaps with the collection Walking the Clouds look at the work of Grace Dillon (Anishinaabe) The work of Professor Aaron Mills who is working in Anishinaabe Constitutionalism at McGill University may be an interesting pairing. 
    • Rebecca Roanhorse? Look at the work being done on the interface between humans and AI. We wrote an essay, not explicitly about law but on indigenous AI, for a collection "Making Kin With the Machines," forthcoming, MIT press
    • Indigenous people are having everywhere to deal with issues of climate change, especially in the Pacific, the central US and Canada. So questions of territoriality, customary law and practice, and environmental justice need to be addressed, as well as the nuclear Pacific Issues in Micronesia, and Tahiti. In many of these places the "evidence" is in our customary chants and knowledge----not precedent. 
    • The work of John Scalzi on Disability law and futures, start your searches on international law and Sci-fi, or law and Sci-fi. The work of Octavia Butler and obviously Margaret Atwood. 
    • If you want to go a different route look at video gaming and indigenous futurity. And coming soon, AR/VR. Also: questions of IP and cultural appropriation. 
  • Evelyn Atkinson: I really like to use "A Jury of Her Peers" by Susan Glaspell when I'm teaching about women's exclusion from the legal system (I got the idea from Amy Dru Stanley who uses it in her legal history class).  It's a murder mystery where the two female characters figure out at the end why a wife killed her husband (domestic abuse) based on little clues around her house, while the male sheriff can't figure it out.  It's short and a really engaging read (there's also a play and a very slow movie from the 1970's).
  • Pat Bell: for History of American Legal Education: The Paper Chase
  • Peter Candy (@Pete_Candy): On the Augustan marriage legislation, I've used Graves' 'I, Claudius'. Adds a bit of lightness and comedy before getting down to the law.
  • @cszabla: I haven't taught it but one that comes to mind re colonial legal history is Achebe's "No Longer at Ease," which involves a Nigerian getting a legal education in Britain that he then gets arrested for taking bribes to pay for when he becomes part of the colonial civil service.
Lots more after the jump:

Thursday, August 15, 2019

Two by Fisher: "Presidential Residual Power in Foreign Affairs"; "Reconsidering Judicial Finality"

The June 2019 issue of the Capitol University Law Review includes an article that may be of interest to our readers: "Presidential Residual Power in Foreign Affairs," by Louis Fisher (Scholar in Residence at the Constitution Project; Visiting Scholar at William & Mary Law School). Here's the first paragraph (citations omitted):
As with other branches of government, the President has access to a combination of enumerated and implied powers. At times, Presidents have claimed “inherent” powers, but those assertions have been repudiated by both the Supreme Court and Congress. In Zivotofsky v. Kerry, Justice Clarence Thomas referred to another source of presidential power: a “residual foreign affairs power.” This article analyzes the origin and legitimacy of presidential residual powers, a term that has at least six different meanings.
Fisher is also the author of a new release from the University Press of Kansas: Reconsidering Judicial Finality: Why the Supreme Court Is Not the Last Word on the Constitution (August 2019). Here's a description from the Press:
Federal judges, legal scholars, pundits, and reporters frequently describe the Supreme Court as the final word on the meaning of the Constitution. The historical record presents an entirely different picture. A close and revealing reading of that record, from 1789 to the present day, Reconsidering Judicial Finality reminds us of the “unalterable fact,” as Chief Justice Rehnquist once remarked, “that our judicial system, like the human beings who administer it, is fallible.” And a Court inevitably prone to miscalculation and error, as this book clearly demonstrates, cannot have the incontrovertible last word on constitutional questions.

In this deeply researched, sharply reasoned work of legal myth-busting, constitutional scholar Louis Fisher explains how constitutional disputes are settled by all three branches of government, and by the general public, with the Supreme Court often playing a secondary role. The Court’s decisions have, of course, been challenged and reversed in numerous cases—involving slavery, civil rights, child labor legislation, Japanese internment during World War II, abortion, and religious liberty. What Fisher shows us on a case-by-case basis is how the elected branches, scholars, and American public regularly press policies contrary to Court rulings—and regularly prevail, although the process might sometimes take decades. From the common misreading of Marbury v. Madison, to the mistaken understanding of the Supreme Court as the trusted guardian of individual rights, to the questionable assumptions of the Courts decision in Citizens United, Fisher’s work charts the distance and the difference between the Court as the ultimate arbiter in constitutional matters and the judgment of history.

The verdict of Reconsidering Judicial Finality is clear: to treat the Supreme Court’s nine justices as democracy’s last hope or as dangerous activists undermining democracy is to vest them with undue significance. The Constitution belongs to all three branches of government—and, finally, to the American people.
More information is available here.

-- Karen Tani

Coşgel and Ergene on Ottoman justice

We missed this one earlier, so here it is now: Metin CoşgelUniversity of Connecticut and Boğaç ErgeneUniversity of Vermont published The Economics of Ottoman Justice: Settlement and Trial in the Sharia Courts with Cambridge University Press in 2016. From the publisher: 
The Economics of Ottoman JusticeDuring the seventeenth and eighteenth centuries, the Ottoman Empire endured long periods of warfare, facing intense financial pressures and new international mercantile and monetary trends. The Empire also experienced major political-administrative restructuring and socioeconomic transformations. In the context of this tumultuous change, The Economics of Ottoman Justice examines Ottoman legal practices and the sharia court's operations to reflect on the judicial system and provincial relationships. Metin Coşgel and Boğaç Ergene provide a systematic depiction of socio-legal interactions, identifying how different social, economic, gender and religious groups used the court, how they settled their disputes, and which factors contributed to their success at trial. Using an economic approach, Coşgel and Ergene offer rare insights into the role of power differences in judicial interactions, and into the reproduction of communal hierarchies in court, and demonstrate how court use patterns changed over time.
Praise for the book: 

"Metin Coşgel and Boğaç Ergene have written a well-researched book that pushes the boundary of interdisciplinary scholarship. Their history is informed by economics, and their economics is generalized via history. It is an impressive and difficult methodology to pull off, yet Coşgel and Ergene have done just this." -Jared Rubin 


Further information is available here.


-posted by Mitra Sharafi

Wednesday, August 14, 2019

Conference: Status and Justice in Law, Religion and Society

A conference on “Status and Justice in Law, Religion, and Society” will be held at Washington and Lee University School of Law, November 1-3, 2019. It will include lots of interest for legal historians. The organizers are Timothy Lubin and Kemilya Atanasova, both of Washington and Lee University. Clifford Ando (University of Chicago) and Winnifred Fallers Sullivan (Indiana University) will give keynote lectures on citizenship and the legacy of the Antonine constitution and on religious status under secular law, respectively. The list of presenters is here. An excerpt from the conference description: 
This interdisciplinary conference aims to bring together historians of religious, ancient, and medieval law systems from around the world with scholars of modern legal systems, on the hypothesis that comparative discussion can throw new light on the role of status-considerations in shaping how individuals experience and use the law, in defining what counts as a fair or just outcome, and in changes to the legal landscape in times of social change.  It may be that the role of statuses (both legal and societal) in premodern and religious legal orders may hold lessons for understanding the role of statuses in the law of republican polities, despite their aspiration to ensure equality of individuals before the law.
Further information is available here.

-posted by Mitra Sharafi

Tuesday, August 13, 2019

Center for the Study of Law & Society Speaker Series: Fall '19

The Center for the Study of Law & Society at the University of California, Berkeley, has released the Fall lineup for its 2019-20 speaker series. Speakers of particular interest to our readers:
Monday, August 26 – Cybelle Fox
Professor of Sociology, University of California, Berkeley
“‘The Line Must Be Drawn’: The Rise of Legal Status Restrictions in State Welfare Policy”  
Monday, September 16 – Sam Erman
Professor of Law, University of Southern California Gould School of Law
Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire (Cambridge University Press, 2018) 
Monday, October 28 – Richard Ross
David C. Baum Professor of Law and Professor of History, University of Illinois
“The Rule of Law in British America: Thinking with Indians While Comparing to Spaniards” 
Monday, November 18 – Stephanie Jones-Rogers
Associate Professor of History, University of California, Berkeley
“‘She had…a Womb Subjected to Bondage’: The Afro-Atlantic Origins of British Colonial Descent Law”
Do you know of other lectures or workshop series that we should take note of on the blog? Feel free to contact us! 

-- Karen Tani

Monday, August 12, 2019

Osgoode Society Legal History Workshop: Fall 2019 Lineup

Via our friends at the Canadian Legal History Blog, we have the lineup for the Osgoode Society Legal History Workshop - Fall 2019 [*Revised as of August 10, 2019*]
Wednesday September 11: Nancy Wright, University of Victoria: “The Laphroaig
Leasehold: Popular Interpretations of Feudal Tenures.”

Wednesday September 25: Jim Phillips, University of Toronto: ‘The Canadian
Court System, 1867-1914’

Tuesday October 15: Note the Tuesday. Donal Coffey, Max Planck Institute:
‘Newfoundland and Dominion Status.’

Wednesday October 30 (new date): Philip Girard, Osgoode Hall Law School: ‘The
Contrasting Fates of French-Canadian and Indigenous Constitutionalism: British
North America, 1763-1867.’

Wednesday November 6: Eric Adams, University of Alberta: ‘Constitutional
Wrongs: A Legal History of Japanese Canadians’

Wednesday November 13 (new date): Joseph Kary, Kary and Kwan: Sonderkommando in Canada: Montreal's first World War II War Crimes Trial, 1951-1956

Wednesday November 27: Patricia McMahon, Torys: ‘Radioactive: The Life and
Lies of Boris Pregel’
-- Karen Tani

Siddiqui on Syed Mahmood

Sohaira Siddiqui, Georgetown University Qatar has published "Navigating Colonial Power: Challenging Precedents and the Limitation of Local Elites" in Islamic Law and Society 26:3 (13 June 2019), 1-41. Here's the abstract: 
In 1869, the British allowed Muslims to sit as judges on the High Court. This article explores the legal opinions of the first Muslim judge to be appointed to the High Court, Syed Mahmood. Straddling two competing worlds – that of Cambridge University and that of his native India – Justice Mahmood both legitimated and resisted colonial judicial power. In this essay I will demonstrate how British judges interpreted points of Islamic law within an English legal framework, and how these interpretations contradicted their translated texts of Islamic law, yet became the foundation of legal precedents established through the doctrine of stare decisis. Despite participating within the British colonial judiciary, Mahmood challenged these precedents, demonstrating his ability to navigate the paradoxes of colonial power to secure for himself a legitimate platform from which he could argue his juridical interventions. The efficacy of these challenges, however, ultimately was restrained by the institutions and structures of the colonial jural project.
Further information is available here.

--posted by Mitra Sharafi

Saturday, August 10, 2019

Weekend Roundup

  • The Law & Political Economy (LPE) blog just ran a mini symposium on "democratizing administrative law." Historians were well represented, with posts by Sophia Z. Lee (Penn Law) (here) and LHB blogger Karen Tani (Berkeley Law) (co-authored here with Matthew Cortland and here with Cortland and Nancy Chi Cantalupo).
  • ICYMI: The NPR podcast "Throughline" has recently released an episode on Milliken v. Bradley.  The Stanford Daily on Lawrence Friedman's "Introduction to American Law" (scroll to item 5)
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, August 9, 2019

Wu on Government Apologies Failing to Bring Closure

Another item of interest from the latest issue of the Hastings Race and Poverty Law Journal: Frank H. Wu (University of California, Hastings College of the Law), "Necessary But Not Sufficient: Two Case Studies of Government Apologies Failing to Bring Closure." Here's the first paragraph (citations omitted):
This short essay presents two case studies in obtaining a remedy for an historic wrong: the Congressional passage of the 1988 Civil Liberties Act, paying reparations to Japanese Americans who had been sent to internment camps during World War II; and the Senate and House issuance of Statements of Regret of 2011 and 2012, respectively, for the Chinese Exclusion Act. These examples show how a government can make progress toward its ideals by acknowledging prior errors. Yet they also reveal that such recognition, as necessary as it is for a diverse society, is not sufficient for a democratic one. Subsequent actions in each instance suggest that any lessons learned were ephemeral at best and illusory at worst.
Read on here.

-- Karen Tani

Campbell and Jewel, "Death in the Shadows"

Mary Campbell and Lucy A. Jewell (University of Tennessee College of Law) have posted "Death in the Shadows," which appears in the most recent issue of the Hastings Race and Poverty Law Journal. Here's the abstract:
This paper is about the law and visual culture. Its centerpiece is Parson Weems’ Fable (1939), a painting by the American artist Grant Wood (1891-1942) that depicts the apocryphal story of George Washington and the cherry tree. At first glance, Wood’s image appears to celebrate an enduring myth of American virtue, namely Washington’s precocious inability to tell a lie. Studying the picture more closely, however, one finds a pair of black figures, presumably two of the Washingtons’ slaves. Stationed beneath dark storm clouds and harvesting cherries from a second tree, these slaves invoke yet another national myth, that of the domestic serenity that supposedly reigned on Virginia’s colonial plantations. In the process, they quietly invoke the country’s grievous history of racial oppression, coercion, and brutality.

This isn’t the only place where Woods’ painting speaks of racial violence. To the contrary, Parson Weems’ Fable also raises the specter of lynching. Examining the shadows directly beneath the Washingtons and their fabled tree, one discovers a hanging black body. Intentional or not, this dangling corpse conjures the spectacular acts of theatrical violence that mobs of Euro-Americans inflicted on African Americans during the late nineteenth century and well into the twentieth. By the 1930s, heated protests emerged against lynching—in popular songs, magazines, and art exhibitions, as well as more traditional political arenas. Unlike the painters most closely associated with him, Wood didn’t participate directly in such moments of artistic protest. Nonetheless, he would have been exposed to them as he painted Parson Weems’ Fable in the winter of 1939.

Regardless of Wood’s intentions, the work he created persistently connects the country’s origin myths to the murderous violence the U.S. has repeatedly inflicted on persons of color. Moreover, as the painting itself seems to realize, the law and culture forged by colonial Virginia planters like George Washington eventually morphed into a collective white psychopathy that found vicious expression in the practice of spectacle lynching. This colonial legal regime was deeply visual—a fact that accounts for not only its power, but also for the fundamental influence it continues to exert on current American conceptions of race.

A deep reading of Parson Weems’ Fable in the context of both its time (1939) and its setting (1736) reveals the extent to which the law is visual and the visual is legal. Indeed, the painting gives us a valuable lens for perceiving the pervasive connections that run between the two. Our thesis is that the profoundly visuo-legal nature of the country’s racial foundations helps explain the lack of progress the nation has made in dismantling the color line. As a result, the impulse to join the seemingly unrelated disciplines of legal study and art history isn’t an academic gimmick, but rather a necessity. For centuries, images have worked in tandem with statutes, judicial decisions, and various forms of legal (and illegal) punishment to indelibly imprint a logic of racial violence in our collective mindset. In order to fully excavate this logic, we need scholars who can analyze pictures as well as the law.

In terms of structure, we begin by introducing the painting and our analytical framework and method. After that, we explain the theoretical foundations for studying law and culture in this context. Finally, we connect colonial Virginia’s legal and cultural landscape to the traumatic racial violence that continues to haunt our national mythology.
The full article is available here.

-- Karen Tani

Thursday, August 8, 2019

Shane on Executive Power and Criminal Prosecution at the Founding

Peter M. Shane, Ohio State University Michael E. Moritz College of Law, has posted Prosecutors at the Periphery, which is forthcoming in the Chicago-Kent Law Review 94 (2019): 241-265:
Contrary to so-called unitary executive theory, Article II does not guarantee presidents the power to control federal criminal prosecution, a supervisory role Congress has placed by statute with the Attorney General. Nor is Congress without authority to protect federal prosecutors from policy-based dismissals. Rule-of-law values embodied in our system of checks and balances could alone justify these conclusions. But the same conclusions follow also from close attention to the entirety of the relevant constitutional text and from an understanding of how the Founding generation would have understood the relationship between executive power and criminal prosecution. In contemplating the newly proposed constitutional text between 1787 and 1789, those Americans enfranchised to vote on its ratification would have brought to their understanding of “executive power” not just dictionary definitions, but also their experience of living under executive power as exercised in Great Britain, in the colonies, and under state constitutions. They would have understood prosecution to be a form of judicial power, and the “original public meaning” of Article II executive power would not have guaranteed presidents the power to control prosecutorial discretion.
--Dan Ernst

Wednesday, August 7, 2019

Mid-Week Roundup: Historians on the 2nd Amendment and Gun Control

  • Second Thoughts, the blog of the Center for Firearms Law at Duke University, is running a mini-symposium on the new book Guns in Law (University of Massachusetts Press), edited by Austin Sarat, Lawrence Douglas, and Martha Merril Umphrey, with contributions by the editors and by Carl T. Bogus, Jennifer Carlson, Saul Cornell, Darrell A.H. Miller, Laura Beth Nielsen, and Katherine Shaw. Several posts are already available.
-- Karen Tani

Tuesday, August 6, 2019

Sharafi on rule of law and constitutionalism in India

Our blogger Mitra Sharafi, University of Wisconsin, has posted the paper, "Parsi Legal Culture, Constitutionalism, and the Rule of Law" on SSRN. The piece is forthcoming in a volume edited by Nawaz B. Mody. It began life as the conclusion to Sharafi's book, before being removed and expanded into its own separate article. Here's an abstract:
Parsi legal culture has played an important role in the constitutional life of modern India, helping nationalists pivot from extra-legal resistance to the business of running a state. This article suggests that Parsi legal culture reinforced constitutionalism and the rule of law in India. As ideals, the latter two concepts impose restraints on the exercise of power. During the late colonial period, elite Parsis led the early "constitutionalist" phase of the Indian National Congress movement (1885-1919) and insisted on working for change through existing state processes and structures. Early Congress leaders Dadabhai Naoroji, Pherozeshah Mehta, and Dinsha Wacha were products of Parsi legal culture. They were turning outward--for the benefit of all Indians--the law-focused strategy that had worked so well during the preceding half-century for their own community. Their approach was abandoned as the nationalist movement became a mass movement circa 1920 under Gandhi's leadership. The values of Parsi legal culture and the Congress constitutionalists were relegated to the back burner from the 1920s until the late 1940s. However, they were brought back to life upon independence, particularly in the Constituent Assembly that created the Indian Constitution (1947-50) and in the interpretation of the Indian Constitution after 1950. The early Congress model of "constitutional agitation"fed into what B. R. Ambedkar would call India's "constitutional morality." Both required the relinquishment of "the bloody methods of revolution" and of Gandhian civil disobedience alike. Early independent India could re-activate constitutionalism and the rule of law as ideals because these ideas were preserved readymade within a particular politico-legal tradition, albeit one that had fallen out of favor in the decades before independence. This tradition was heavily influenced by Parsi legal culture.

This article also answers the question of whether rule-of-law values were inescapably colonial: they were not. A history of tension within the colonial state highlights the distinction between those who believed there had to be restraints on the exercise of power, and those who wanted to rule without law. Debates among colonial state actors and the harnessing of rule-of-law values by the early constitutionalists reflected the distinction between the projects of colonialism and the rule of law. The British initially used the rule of law to justify colonialism because it was there, neatly packaged and ready to ship, in metropolitan thought and political culture. They underestimated the concept's autonomy and its potential to eat away at the foundations of empire. This insight also addresses the question: how did a population that achieved such affluence and success under British rule reposition itself in decolonisation mode? In fact, there was no necessary contradiction between Parsi legal culture and the rejection of colonial rule. Through its embrace of rule-of-law values and constitutionalism, Parsi legal culture helped build a solid foundation for the newly independent polity.
Further information is available here and here.

--posted by Mitra Sharafi

Monday, August 5, 2019

Adler on Racial Dispartities in Criminal Punishment in New Orleans, 1920-1945

Just out online from the American Journal of Legal History: “‘To Stay the Murderer's Hand and the Rapist's Passions, and for the Safety and Security of Civil Society’: The Emergence of Racial Disparities in Capital Punishment in Jim Crow New Orleans,” by Jeffrey S Adler, University of Florida:
This essay examines capital punishment in New Orleans between 1920 and 1945. Building on a quantitative analysis of case-level data culled from police, court, and prison records, it explores the emergence of racial disparities in death-penalty sentencing and charts the increasing use of capital punishment as a mechanism of racial control. The paper focuses on four surprising and counter-intuitive patterns in the application of the death penalty. First, shifts in the use of capital punishment during this era bore no connection to patterns of violent crime. Second, changes in death-penalty sentencing were only loosely related to overall trends in homicide conviction. Third, and most surprising, Orleans Parish jurors, particularly during the 1920s, sent white killers to the gallows at a higher rate than African American killers. And fourth, the analysis of case-level records reveals dramatic shifts in death-penalty sentencing during the 1930s, particularly the development of a pronounced racial disparity in the application of capital punishment. Prosecutors also exploited the threat of capital charges to secure guilty pleas from African American suspects, and thus changes in death-penalty sentencing contributed to racial disparities in incarceration. In short, this micro-analysis helps to explain when and why the death penalty became a core component of Jim Crow criminal justice.
--Dan Ernst

Inniss's "The Princeton Fugitive Slave"

Lolita Buckner Inniss, SMU Dedman School of Law, has published The Princeton Fugitive Slave: The Trials of James Collins Johnson (Fordham University Press, 2019):
James Collins Johnson made his name by escaping slavery in Maryland and fleeing to Princeton, New Jersey, where he built a life in a bustling community of African Americans working at what is now Princeton University. After only four years, he was recognized by a student from Maryland, arrested, and subjected to a trial for extradition under the 1793 Fugitive Slave Act. On the eve of his rendition, after attempts to free Johnson by force had failed, a local aristocratic white woman purchased Johnson’s freedom, allowing him to avoid re-enslavement. The Princeton Fugitive Slave reconstructs James Collins Johnson’s life, from birth and enslaved life in Maryland to his daring escape, sensational trial for re-enslavement, and last-minute change of fortune, and through to the end of his life in Princeton, where he remained a figure of local fascination.

Stories of Johnson’s life in Princeton often describe him as a contented, jovial soul, beloved on campus and memorialized on his gravestone as “The Students Friend.” But these familiar accounts come from student writings and sentimental recollections in alumni reports—stories from elite, predominantly white, often southern sources whose relationships with Johnson were hopelessly distorted by differences in race and social standing. In interrogating these stories against archival records, newspaper accounts, courtroom narratives, photographs, and family histories, author Lolita Buckner Inniss builds a picture of Johnson on his own terms, piecing together the sparse evidence and disaggregating him from the other black vendors with whom he was sometimes confused.

By telling Johnson’s story and examining the relationship between antebellum Princeton’s black residents and the economic engine that supported their community, the book questions the distinction between employment and servitude that shrinks and threatens to disappear when an individual’s freedom is circumscribed by immobility, lack of opportunity, and contingency on local interpretations of a hotly contested body of law.
--Dan Ernst

Saturday, August 3, 2019

Weekend Roundup

  • Over at the New Books Network, legal historians are in the spotlight: you'll find conversations with former guest bloggers Sarah Seo (Iowa Law) and Sam Erman (USC) on their recent books Policing the Open Road and Almost Citizens, respectively; also conversations with University of Virginia law professor Jessica Lowe, on her new book Murder in the Shenandoah, and her UVA colleague Cynthia Nicoletti, on her 2017 book Secession on Trial.
  • Speaking of UVA, should the University rename the Alderman library? A Law Library summer intern makes the case.
  • Former US Solicitor General Donald B. Verrilli, Jr.'s Jackson Lecture at Chautauqua Institution and an interview by the Robert H. Jackson Center are here and here.
  • The Historical Society of the District of Columbia Circuit's series based on its oral history collection continues with posts on Samuel Dash, Bernard Nordlinger, and Judge Reggie Walton.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, August 2, 2019

Bettge on Judicial Review and Originalism

Thomas Bettge has posted Marbury in the Vanishing Cabinet: Evaluating Originalism in the Light of Judicial Review's Uncertain Origins, which appeared in the Willamette Law Review 55 (2018): 1-45:
Although originalism has occasioned substantial rethinking of many facets of our constitutional law, the doctrine of judicial review articulated in Marbury v. Madison has gone largely unquestioned. This article explores the uncertain place of judicial review in the original Constitution, and systematically lays out the consequences of that uncertainty for today's originalism.

The article unfolds the problems originalists face if judicial review was not part of the original constitutional framework. While many scholars in both the originalist and nonoriginalist camps believe that judicial review's place in the original Constitution is well established, this paper scrutinizes the leading scholarship on the history of judicial review and shows that, contrary to popular belief, judicial review's historical bona fides are fundamentally uncertain. Because judicial review cannot be justified on originalist grounds, originalists need to seek other reasons for engaging in it, and must reconcile those reasons with the basic tenets of originalism. To an extent, they have already done this, but significant gaps remain. The article considers what reasons originalists could invoke, and concludes that it will be difficult, absent historical legitimation for the practice of judicial review, for originalists to make an argument for judicial review that favors originalism over competing interpretive theories.
–Dan Ernst.  H/t: Legal Theory Blog

Johnston on the CIA under JFK

James H. Johnston, “a lawyer, writer, and historian in Washington, DC,” has published Murder, Inc.: The CIA under John F. Kennedy with Potomac Books, a division of the University of Nebraska Press. Mr. Johnston’s post on the book is here.
Late in his life, former president Lyndon B. Johnson told a reporter that he didn’t believe the Warren Commission’s finding that Lee Harvey Oswald acted alone in killing President John F. Kennedy. Johnson thought Cuban president Fidel Castro was behind it. After all, Johnson said, Kennedy was running “a damned Murder, Inc., in the Caribbean,” giving Castro reason to retaliate.

Murder, Inc., tells the story of the CIA’s assassination operations under Kennedy up to his own assassination and beyond. James H. Johnston was a lawyer for the Senate Intelligence Committee in 1975, which investigated and first reported on the Castro assassination plots and their relation to Kennedy’s murder. Johnston examines how the CIA steered the Warren Commission and later investigations away from connecting its own assassination operations to Kennedy’s murder. He also looks at the effect this strategy had on the Warren Commission’s conclusions that assassin Lee Harvey Oswald acted alone and that there was no foreign conspiracy.

Sourced from in-depth research into the “secret files” declassified by the JFK Records Act and now stored in the National Archives and Records Administration, Murder, Inc. is the first book to narrate in detail the CIA’s plots against Castro and to delve into the question of why retaliation by Castro against Kennedy was not investigated.
--Dan Ernst

Thursday, August 1, 2019

Quigley and friends on the Civil War and Citizenship

The Civil War and the Transformation of American Citizenship - CoverEdited by Paul D. Quigley, Virginia Tech, The Civil War and the Transformation of American Citizenship came out with LSU Press in 2018. From the publisher:
The meanings and practices of American citizenship were as contested during the Civil War era as they are today. By examining a variety of perspectives—from prominent lawmakers in Washington, D.C., to enslaved women, from black firemen in southern cities to Confederate émigrés in Latin America—The Civil War and the Transformation of American Citizenship offers a wide-ranging exploration of citizenship’s metamorphoses amid the extended crises of war and emancipation.
Americans in the antebellum era considered citizenship, at its most basic level, as a legal status acquired through birth or naturalization, and one that offered certain rights in exchange for specific obligations. Yet throughout the Civil War period, the boundaries and consequences of what it meant to be a citizen remained in flux. At the beginning of the war, Confederates relinquished their status as U.S. citizens, only to be mostly reabsorbed as full American citizens in its aftermath. The Reconstruction years also saw African American men acquire—at least in theory—the core rights of citizenship. As these changes swept across the nation, Americans debated the parameters of citizenship, the possibility of adopting or rejecting citizenship at will, and the relative importance of political privileges, economic opportunity, and cultural belonging. Ongoing inequities between races and genders, over the course of the Civil War and in the years that followed, further shaped these contentious debates.
The Civil War and the Transformation of American Citizenship reveals how war, Emancipation, and Reconstruction forced the country to rethink the concept of citizenship not only in legal and constitutional terms but also within the context of the lives of everyday Americans, from imprisoned Confederates to former slaves.
The Table of Contents is accessible on Google Books here.

Further information is available here.

--Mitra Sharafi