Wednesday, September 18, 2019

A Pedagogical Interlude

A Pedagogical Interlude

Hello, from the bus between Boston and Portland, ME. This is my regular commute this semester while on fellowship at Harvard’s Center for European Studies. The commute is long, but I work well on busses and appreciate the time to write. I will have to thank the Concord Coach Lines in my next acknowledgements.

I write now with a brief reflection on the classroom. Though I’m far from the classroom this year, it’s almost the time of the semester when I would be giving my pep talk to students embarking on their first with writing assignment. The talk offers suggestions to help them develop more nuanced (and frankly more interesting) analyses of the material at hand. I’ve pared this down to ten minutes or less. I never planned the talk to be a regular thing, but it’s proven to be quite helpful in one format or another over the twenty years since I started working with undergraduates’ writing as an undergraduate myself. It goes something like this:

You were likely taught to write a five-paragraph essay in high school, no? Let me guess, each of your three body paragraphs undertakes a point or a text and each of those paragraphs relates to an umbrella argument in your introductory paragraph. Now, chances are your thesis looks something like a list, strung together with commas highlighting what you’ll cover in these three body paragraphs. Am I right? This is a fine starting point, but my task is to help you to improve your analysis in terms of reading the material and understanding the context AND in written form.

Now, there’s some good analysis here already. Look at your conclusion. You’re doing something really interesting here. You’re starting to integrate your points. There are a few comparisons going. Let’s go back to your paper and look for where you might have flagged some of these points and developed the comparison further along the way.

Where you’re at is to be expected. My writing looks the same in an initial draft. Yes, really. I may no longer write in five-paragraph essays, but articulating an argument takes time, reflection, and several drafts!

Now your goal – and my goal for you – is to learn to push your analysis further by thinking comparatively, not just from one text or event to another, but between them. In terms of your paper drafts, what you should start to see is more cross-over between your example paragraphs as you think about connections – similarities and differences – and change over time. Here’s what I recommend for possible starting points… 

I hardly pretend that the suggestions that follow are exhaustive or that they work miracles. Nothing can replace individual conversations with the students as they work through the material. Still, some starting points can help to make revisions more approachable, especially for students who might not have had the time to revise or who haven’t had practice drafting in the first place. They work well, too, for the class as a whole as I guarantee students will recognize something of their writing in the generalizations.

Some Starting Points:

Quicker Fixes:

1.     Look at that conclusion. Chances are it’s a better articulation of your argument than your introduction. How about deleting it and pasting that at the top. No, don’t worry that you’ve lost your “throughout history” opening sentence. You’re drawing me into your actual themes / points of analysis far more quickly there. No, I don’t need the inverted triangle introduction. Nope, don’t worry that you’ve just deleted your conclusion either. You’ll have a better one that isn’t just a restatement of your argument. Trust me, by the time you’ve put your argument up top and paid attention to it along the way, you won’t need the conclusion to provide summary. You’ll use it to extend your analysis further – to some of those bigger “so whats.”

2.     Make your transitions work for you. There is a beauty to the bullet point or numbered list. (Yes, I’m using that now.) But, talk me through the transitions from one example paragraph to the next. Elaborate here. Chances are, the ways in which you elaborate will start to get you to make comparisons and/or to think about change over time. I really do urge them to avoid words like “also,” “furthermore,” and “additionally.” 

Brainstorming Exercises; or, a potentially more lighthearted way of inviting comparative

1.     ID Pairings. I’ve never been one to make miracles happen on a paper deadline of tomorrow. I hardly expect you to do that either. Instead, let’s work on a few exercises to let the comparative analyses flow. I like pairing ID terms. Rather than have you summarize one term then the next, I’m going to give you two together. You’ll tell me quickly what each refers to, but then you’ll spend the bulk of your time thinking of what draws them together – or what contrasts separate them – and why those similarities / differences are significant to the history we’ve been studying. No, the connection won’t be obvious, like a pairing of “Napoleon” and “Waterloo.” Rather, it might be something like “Waterloo” and “Peterloo,” or “Napoleon” and “Joseph de Maistre.” No, I don’t want you to try to read my mind. There is no singular right answer, there are a number of ways to draw out the analytic story – it’s kinda like how we’ve been talking about meaning and narrative in historical writing. You don’t need to write everything down. In fact, I want you to reflect, choose a way of comparing them and writing about that comparison. It’s OK to take time, here. …No, I haven’t chosen this pairing at random. There are ready connections to draw from class materials.

OK, no student will really think anything is fun when on a quiz. But, embedded every so often for practice in discussion, it can be genuinely entertaining – and informative – for all. It can be competitive if done as a review game before a final, too. And, it’s always useful to think about thematic similarities and contrasts and change over time. While I use this to have students think with the material in class, I use it as a tool in one-on-one conversations as well. The language of the ID Pairing prompt can get the ball rolling when necessary. Student A does not know what to write about for their paper, but tells me these were the texts from a particular unit spoke to them. That’s as good a starting point as any; it’s a natural place to be early in the writing process. They have no clue how they’ll bring the texts together other than point out that they belong to the same chronological period, geography, or broader thematic unit...

So, you have an interesting pair of terms here, what strikes you as some of the similarities and differences between them. Let’s brainstorm a few. … That’s a good list. Without ignoring x, y, and z, it sounds like you’re really ready to think about the story they can tell together about a. How about starting from there?   

TAU Legal History Workshop

[We share the following announcement.]

The Legal History Workshop of Tel Aviv University Faculty of Law, moderated by Ron Harris, Doreen Lustig and Assaf Likhovski, is pleased to announce its Fall 2019 lineup:

November 7, 2019
Pnina Lahav (Boston University School of Law), The End of the Shalit Case: The Government, Parliament and Opposition, or: How We Missed the Female Perspective [Hebrew]

November 21, 2019
Maoz Kahana (Tel Aviv University Department of Jewish History), Humanists and Law: The Jewish Case in Europe [Hebrew]

November 28, 2019
Leora Bilsky and Rachel Klagsborn (Tel Aviv University Faculty of Law), Genocide and Cultural Restitution: Comparing the Jewish and Polish Approaches [Hebrew]

December 12, 2019
Kellen R. Funk (Columbia Law School), The Making of Modern Law: Digital Computation and Anglo-American Legal History

December 19, 2019
Yair Sagy (Haifa University Faculty of Law) (with Yoram Shachar and Eyal Katvan), Law Reporting in the British Empire: A View from Mandatory Palestine

December 26, 2019
Guy Keinan (Tel Aviv University Faculty of Law), The Rootian Moment: Recasting International Lawmaking

January 1, 2020
Taisu Zhang (Yale Law School), The Ideological Foundations of the Qing Fiscal State

January 9, 2020
Tamar M. Menashe (Columbia University History Department), Genizah in the Case: Using and Perceiving Jewish Evidentiary and Judiciary Materials during Germany‘s “Reception“ of Roman Law, 1495-1689

January 16, 2020
Debjani Bhattacharyya (Drexel University History Department), The Wreck of Warren Hastings: Salvage, Weather and Insurance in the Indian Ocean

--posted by Mitra Sharafi

Tuesday, September 17, 2019

Robertson on Mississippi's constitutional history

Heroes, Rascals, and the Law: Constitutional Encounters in Mississippi History by James L. Robertson came out in 2018 with the University Press of Mississippi. From the publisher:
Heroes, Rascals, and the Law - Constitutional Encounters in Mississippi History
James L. Robertson focuses on folk encountering their constitutions and laws, in their courthouses and country stores, and in their daily lives, animating otherwise dry and inaccessible parchments. Robertson begins at statehood and continues through war and depression, well into the 1940s. He tells of slaves petitioning for freedom, populist sentiments fueling abnegation of the rule of law, the state’s many schemes for enticing Yankee capital to lift a people from poverty, and its sometimes tragic, always colorful romance with whiskey after the demise of national Prohibition. Each story is sprinkled with fascinating but heretofore unearthed facts and circumstances.
Robertson delves into the prejudices and practices of the times, local landscapes, and daily life and its dependence on our social compact. He offers the unique perspective of a judge, lawyer, scholar, and history buff, each role having tempered the lessons of the others. He focuses on a people, enriching encounters most know little about. Tales of understanding and humanity covering 130 years of heroes, rascals, and ordinary folk—with a bundle of engaging surprises—leave the reader pretty sure there’s nothing quite like Mississippi history told by a sage observer.
A few blurbs:

 "Readers of all political persuasions will be entertained, enlightened, and even dumbfounded by what litigants and courts have gotten themselves into, and only sometimes out of, during 130 years of Mississippi history. The book is a triumph of storytelling." - Leslie H. Southwick

"As a law student at Ole Miss, I was easily bored with the study of constitutional law. However, I did not have the benefit of studying under a gifted storyteller like Jimmy Robertson (he taught me federal civil procedure). This collection is a delightful romp through the highs and lows of Mississippi’s struggle to govern itself." - John Grisham

"Judge Robertson provides a rare conceptual view of complex historical legal issues with constitutional relevance that have occurred in Mississippi. In a skillful, scholarly, readable context, he puts people into history in an interesting storytelling style, making this book quite useful in academia from many perspectives, especially interdisciplinary teaching and learning." - Beverly Wade Hogan

Further information is available here.

--Mitra Sharafi

Monday, September 16, 2019

Kramer on the Origins of Judicial Review

We're not sure when it was originally posted, but we just realized that the website of the Gilder Lehrman Institute of American History has a very engaging lecture on the origins of judicial review by Larry Kramer, president of the William and Flora Hewlett Foundation and the former dean of Stanford Law School.

--Dan Ernst

Sunday, September 15, 2019

ASLH Pre-Conference Symposia on Local Government and African Legal History

We would like to alert LHB readers to two "pre-conference" symposia at the November 2019 annual meeting of the American Society for Legal History.  Both will be on Thursday, November 21, immediately before the events usually demarcating the start of the annual meeting.

The first is a Symposium on Legal History and the Persistent Power of State and Local Governments:
On Thursday, November 21, immediately before the main conference begins, the American Society for Legal History (with the support of Stanford Law School and Colgate University) is hosting a half-day symposium on the legal history of state and local governments and the persistence of their power across United States history. The symposium will consist of a range of presentations and discussions. Lunch will be made available to those attending.

The workshop will take place in the Conference Hotel. Anyone registered for the main conference is welcome to register for the symposium, though space is limited to thirty-four attendees. Click here to register for the symposium.
The second is an African Legal History Symposium:
On Thursday, November 21, immediately before the main conference begins, the American Society for Legal History is hosting a symposium on African Legal History. This symposium will feature four panels over the course of the day with twenty-two presentations.

This symposium is open to the public and ASLH members are warmly welcomed to attend. Click here to register for the symposium.
 And if you haven't registered for the annual meeting itself, it's time!

--Dan Ernst

Saturday, September 14, 2019

Weekend Roundup

  • Katherine Hermes, Central Connecticut State University, will present “Connecticut’s Indigenous People and Their Use of the Law,” on September 25 at the Torrington Historical Society in Torrington, CT.  The Torrington Register Citizen reports that Professor Hermes’s “current work is on the Wongunk (Wangunk), a Native tribe whose lands stretched from Hartford to Saybrook along the Connecticut river, some of whom later joined the Brothertown Movement and moved westward with the Tunxis, or went to live near the Schaghticoke.”  More, and also here
  • The Supreme Court Historical Society's website on the Court-Packing Plan of 1937 is now online.
  • Among this fall's additions to the HLS facultry profiled in Harvard Law Today are Molly Brady and Laura Weinrib.
  • The Constitutional Accountability Center seeks applicants for the Douglas T. Kendall Fellowship, “a one-year fellowship for recent law school graduates to join CAC’s litigation team” and help it develop arguments “rooted in the text, history, and values of the whole Constitution.”  H/t: JLG.
  • We've received a CFP, with a deadline of September 30, 2019) for the next Research Forum of the European Society of International Law, to take place April 23-24, 2020 at the Department of Law, University of Catania, Italy.  It "targets scholars at an early stage of their careers. Approximately 15-25 paper submissions will be selected. During the Forum, selected speakers will receive comments on their presentations from members of the ESIL Board and invited experts. The Forum will address the topic ‘Solidarity: The Quest for Founding Utopias of International Law’ and it aims to further a dialogue between scholars working within the broad discipline of law in history." More.
  • The Italian Society of Law and Economics welcomes submissions of papers, including those on “History of Law and Economic Thought,” for its 15th annual conference to be held in Milan at the University of Milan (La Statale) on December 19-21, 2019.  Deadline: September 15, 2019.
  • Over at History and the Law: "Law is more than words. It’s buildings and boxes, filled with people; it’s images and sounds." More here from Paul Halliday on envisioning law's empire in Ceylon.
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, September 13, 2019

Calderón, Fouka & Tabellini on the Great Migration and Civil Rights

Álvaro Calderón, United Nations-Foreign Direct Investment Unit, Vasiliki Fouka, Stanford University, and Marco Tabellini, Harvard Business School, have posted Legislators' Response to Changes in the Electorate: The Great Migration and Civil Rights:
Between 1940 and 1970, during the second Great Migration, more than four million African Americans moved from the South to the North of the United States. In this period, blacks were often excluded from the political process in the South but were eligible to vote in the North. We study if, by changing the composition and the preferences of the northern electorate, the Great Migration increased demand for racial equality and induced legislators to more actively promote civil rights legislation. We predict black inflows by interacting historical settlements of southern born blacks across northern counties with the differential rate of black emigration from different southern states after 1940. We find that black in-migration increased the Democratic vote share and encouraged grass-roots activism. In turn, Congress members representing areas more exposed to black inflows became increasingly supportive of civil rights. They were not only more likely to vote in favor of pro-civil rights bills, but also more willing to take direct actions, such as signing discharge petitions, to promote racial equality. Investigating the mechanisms, we document that both “between” and “within” party changes contributed to the shift in the position of northern legislators on civil rights. Taken together, our findings suggest that the Great Migration played an important role in the development and success of the civil rights movement.
--Dan Ernst

Thursday, September 12, 2019

Krishnan on Bhopal in the Federal Courts

Jayanth K. Krishnan, Indiana University Maurer School of Law, has posted Bhopal in the Federal Courts: How Indian Victims Failed to Get Justice in the United States, which is forthcoming in the  Rutgers University Law Review (2020):
35 years ago, the city of Bhopal, India, witnessed a horrific gas leak that originated from a facility operated by Union Carbide India Limited (UCIL), which had as its parent company, the American-based Union Carbide Corporation (UCC). Thousands were killed, with many more injured. 145 cases were filed throughout various U.S. federal district courts on behalf of the victims asserting that UCIL and UCC were liable. Eventually, these cases were consolidated through the Multi-District Litigation (MDL) process and placed onto the docket of federal Judge John Keenan. In 1986, Judge Keenan issued his famous forum non conveniens opinion, which stated that the Indian courts – and not the U.S. federal judiciary – were the proper venue for hearing these claims.

Between 1986 and 1993, Judge Keenan dismissed all of the other MDL-Bhopal cases he heard. Then, between 2000 and 2014 a set of distinct, non-MDL Bhopal matters appeared in front of Judge Keenan. In all of these too, he issued dismissals. Indeed, the original MDL-process – coupled with the existence of internal federal courthouse rules – created a type of path dependence, allowing for all of the Bhopal-Union Carbide matters to come before Judge Keenan.

The thesis here is that following the MDL-consolidation, Judge Keenan became only more deeply wedded to the position he staked-out back in 1986. Subsequent, non-MDL Bhopal plaintiffs, seeking an independent assessment of their claims, found themselves tethered to the initial MDL-decision from years past. The broader lesson – beyond just this case study – is that in order for deserving plaintiffs to receive a fresh review in federal court, there needs to be an alternative imagination for how to deal with later cases that, although seemingly connected, are nevertheless distinct from the earlier MDL-process.
 --Dan Ernst

Roberts on Emergency and Rule of Law in the British Empire

Christopher M. Roberts, Chinese University of Hong Kong Faculty of Law, has posted From the State of Emergency to the Rule of Law: The Evolution of Repressive Legality in the Nineteenth Century British Empire, which is forthcoming in Chicago Journal of International Law 20 (2019):
Why are contemporary laws and techniques that state authorities use to crack down on political dissent so similar across countries? This Article argues that at least part of the answer may be found by turning to colonial history. The Article has two Parts. In the first Part, the Article explores the manner in which, over the course of the nineteenth century, the British deployed various different legal and institutional approaches in response to an Irish polity that consistently refused to submit to British authority. In the second Part, the Article examines the manner in which the approaches developed in Ireland were exported to other parts of the empire, in particular to India, South Africa, and Nigeria, over the course of the late nineteenth and early twentieth centuries. Along the way, the Article considers the big picture significance of such developments relative to the nature of the rule of law. While, over time, the deployment of increasingly legalized and formalized approaches may have played a positive role insofar as they served to soften and displace the potential for more direct violence, enabled by declarations of martial law, such developments came at the cost of the incorporation of much of the repressive approach employed in contexts of emergency rule into everyday legality. Far from conflicting with the rule of law, this development represented the form in which the expansion of the rule of law primarily occurred — serving to entrench and legitimize the repressive practices in question.
--Dan Ernst

Thoughts from the Trenches: How to Make the Longue Durée Manageable

Thoughts from the Trenches: How to Make the Longue Durée Manageable

In 1967, the Lord Chamberlain’s Office refused to license German playwright Rolf Hochhuth’s new play, Soldiers: An Obituary for Geneva, for London’s National Theatre. The play, which decried strategic bombing during WWII, also held Winston Churchill responsible for the death of Polish General Sikorski. Sikorski had led the Polish government in exile and died in a plane accident off of British Gibraltar in 1943. Citing concerns for the Churchill family (Churchill died in 1965), the LCO first hedged on offering the license, then refused it. It would be one of the LCO’s last decisions before the end of theatre censorship in Britain the following year.
The play became the subject of intense external scrutiny for the better part of two years; libel suits stemming from the play extended the debate into the 1970s. The controversy pitted a self-professed new generation of Britons against older board members, a number of whom had not only fought in the war but were personal friends of the Churchill family. Was the play a libel on Churchill’s memory? On the nation and those involved in the war effort? Was personal reputation sacrosanct enough to justify censorship? Whose account of history was even right in the first place? And whose story was this to tell?    
Then Director of the National Theatre, Sir Lawrence Olivier, eventually backed away from the play, though the National Theatre’s Literary Director, Kenneth Tynan, continued as Hochhuth’s champion. Tynan eventually staged the play at another theatre in December 1968. The play ended up being performed in London for only a few months. The Churchill family never sued for libel, but others involved in the account of the crash did. As Tynan’s biographer notes: focused on the end of theatre censorship, Tynan had not taken into account a simultaneous strengthening of the laws of defamation [1].
When heading to London earlier this summer, there was but one single mention of Soldiers in my list of archives to see at the British Library. I knew there was some issue of libel involving Churchill, but nothing more. The case does not feature in accounts of defamation law. Indeed, the Churchill family never sued and, as I have learned since, the suits that were filed did little to influence case law. Yet, the play has quickly become a central example for my project. Beyond its intrinsic narrative interest, the Soldiers controversy enables me to tackle the interrelated threads of a very big project whose scope requires taming. Finding the case was thus something of a relief; but it was a studied find, not just a lucky one. I’ll try to explain what I mean so as to offer some suggestions about managing what can seem like ever-proliferating narrative threads when undertaking a new topic.

*          *          *

For my dissertation and first book, I read every item with “refugee” in the title I could find in the British Library catalogue and in the National Archives at Kew. From there, I worked to establish whom Britons identified as refugees over time as well as key turning points in the use of the category. Zeroing in on these moments, I extended my research on these cases in other archival and periodical sources. The research for Beyond Sticks and Stones has tested this method to the extreme. I could not hope to read everything in the British Library on reputation. How would I even find those pieces? The topic is simply too large and nebulous. What nineteenth-century novel does not hinge on matters of reputation or attempts to know character? All court cases involve “libels” – or charges. “Defamation” itself regularly refers to attacks on personal character, and seditious, blasphemous, and obscene libel. So, what to do…?  For me, the answer lies in sampling primary material early and, through those early samples, establishing initial patterns and breaking the project into more manageable pieces.

Once I had my initial research question -- What shaped the quasi-right to personal reputation? -- I began to build my bibliography and to read the secondary literature on defamation and reputation. While this is critical, to be sure, secondary reading cannot be done in isolation from primary material when defining a topic of one’s own. I start with a patch of evidence that I hope will help to establish the parameters of my subject, seeing how contemporary actors wrote about it, not just scholars in the years since.

1.     Sampling. Unable to read everything on reputation, I began with a sample from the Times of London. Over several months, I read all editorials and correspondence with the keywords “defamation,” “slander,” “libel,” “calumny,” and “reputation” between 1785, when the newspaper began, and the present. This task familiarized me with the major controversies over reputation over the past two hundred and fifty years, when the defense of reputation became a topic worthy not just of law reports, but of mainstream public commentary. I could derive from this a working timeline as well as basic patterns of debate.    

2.     The Fields of Scholarship. There are histories of the defense of reputation, but they are piecemeal. In British history, one finds key elements in accounts of privacy, celebrity, scandal, and of the media more generally. Even in the few legal histories of defamation, authors have tended to separate out different elements. We have books on obscene libel and on blasphemy, as well as a large literature that examines seditious libel and radical reform. Within the few texts on personal defamation, chapters tend to take aspects like fair comment, slander, and damages to write about their evolution separately. Sampling primary material helps, I find, to see better which seemingly separate swatches of scholarship are actually part of the same broader public conversation. This work itself ramifies, of course. I did not know when I first read that subset of Times commentary in 2016 that by 2019 I would need to track down literature on the Lord Chamberlain’s Office.

3.     Making Selections, Establishing Core Points. The task of the historian is not that of the chronicler and it shouldn’t be, even if the list of patterns and key moments were well-behaved enough that they could be included in a single volume. We seek explanations of change over time. I only half tease my students that they need to ban the words “also,” “additionally,” “furthermore” and so on – the connectors that so often stand in for stepping back to make a coherent argument. To change history by narrative accretion into history as explanation, the task is to organize chapters around the core episodes that move the argument along thematically and chronologically. This takes time and, for me, usually involves writing through several cases at a time, brainstorming comparisons along the way to help forge a compelling argument from a list of cases, points, or threads. I still remember vividly the day I first read about the Fugitive Slave Circulars for my dissertation in the summer of 2005. The contest over these Circulars crystallized issues of right, intervention, humanitarian need, and the very nature of life in British asylum and helped furnish a key turning point in my account of modern refuge. I had a hunch that I could use the material as a tool for thinking through the project as a whole. Indeed, I used it as one of my earliest conference papers and, later, for fellowships and the job market. It is still early, but the 1967-1968 question of whether to stage Soldiers feels like it has similar promise. 


[1] Dominic Shellard, Kenneth Tynan: A Life (New Haven: Yale University Press, 2003), p. 314. 

--Caroline Shaw