Thank you, David Schwartz!

We are happy to have had Professor David S. Schwartz (University of Wisconsin) join us as our last guest blogger of the decade. Here are his posts from December 2019:

• Letting Go
• How do you find good cover art?
• Don't Fear the Index
• Texas v. United States and the Recurring Myth of State Destruction
• Revisionism and Rehabilitation
• Originalism and the Limits of Semantic Meaning

Thank you for sharing your insights on everything from indexing to originalism, Prof. Schwartz!

--Mitra Sharafi

Venkatraman on Press Freedom in Travancore State

V. Venkatraman, Rajapalayam Rajus’ College, has posted Implementation of Press Legislations and Political Control Over the Writings of the Press in Travancore State, 1910-1935:

The public opinion was chiefly mobilized by the press in Travancore state very actively since 1910. The press and political literature in Travancore state have contributed much to the political movement against the Diwan of Travancore and also the British Government. The Malayalam Press started writing against the Government of Travancore frequently. Irked by this, the Diwan of Travancore treated these publications as seditious, disloyal and contemptuous statements against them and spread disaffection among the people of Travancore state.

The Government of Travancore passed series of legislations to control the anti-British stand of the press from 1903 to 1935. They are (a) Press Regulations 11 of 1079(M.E)(1903); (b) Section 117 and 145A of Travancore Penal Code, 1923; (c) Press Legislations of 1926; (d) Travancore Press(Emerging Power) Act, 1930; (e) Press Regulations, 1935.

The Travancore Press carried in various discussions and deliberations in their papers. They remarked the highhandedness of the Government authorities and continued their stand up to the establishment of responsible Government in Travancore.

--Dan Ernst

Slattery on Aboriginal Title in Canada

Brian Slattery, York University-Osgoode Hall Law School, has posted Aboriginal Title and the Royal Proclamation of 1763: Origins and Illusions:

Some legal historians have argued that the law of Indigenous rights in Canada is a modern invention, stemming from the Calder decision in 1973. In this essay, I consider the origins of Indigenous rights in 18th and 19th century law, focusing on Aboriginal title and the Royal Proclamation of 1763. My conclusion is that the modern law is in fact grounded in ancient doctrines of common law that evolved in British North America from the early days of settlement. These doctrines were recognized and affirmed in the Royal Proclamation of 1763 and were applied in a series of leading 19th century cases.

--Dan Ernst

Originalism and the Limits of Semantic Meaning

[by David Schwartz, guest blogger]

The prevailing version of originalism—known as “original public meaning” (OPM) originalism—purports to be an historical semantic inquiry. The legally controlling meaning of a particular word, phrase, or clause in the Constitution is what it would have meant to a hypothetical reasonable person during the ratification debates. As of ratification, these meanings became “fixed.” (A small point: June 1788 when the ninth state ratified and the Constitution was deemed to be effect, or later?) While originalism in all its flavors, including OPM originalism, has been subject to various damning criticisms, I would like to suggest a further critique of the concept of original public meaning that has not to my knowledge been advanced.

My claim is this: where the ratification debates reveal a dispute over multiple meanings that are semantically plausible, semantics cannot provide a basis to choose one over another. If this is right, then the range of disputed constitutional meanings that can arguably be addressed by OPM originalism is even narrower than its critics have suggested.

When pieces of text have just one plausible meaning, that meaning requires no discussion or explanation. The meaning goes without saying.  When I used the word “Constitution” in the opening paragraph, I did not need to explain that I was referring to the United States Constitution proposed by the Philadelphia Convention of 1787 and ratified by eleven states in 1787-88. The original public meaning of “the Constitution” in the previous paragraph is plainly that particular constitution.

But suppose I were to say, “There was widespread belief that the original charter of government of the United States was deeply flawed.” Note here that my authorial intention is irrelevant under the theory of original public meaning: again, the determining factor is the “objective” meaning to a hypothetical reasonable reader.

Some actual reasonable readers could take me to be referring, again, to the Constitution. But others would suppose I meant the Articles of Confederation. (A few others might even wonder whether I was referring to the Declaration of Independence, which has been viewed with some plausibility as the first United States governmental charter.) Context might, of course, make all but one meanings of my phrase “charter of government” implausible, with the result that its meaning is as plain as my use of “the Constitution” in these paragraphs. But such context might itself be absent or disputed, as is the case with many constitutional provisions.

OPM originalism presupposes that historical inquiry into semantic meaning can produce, at least in some substantial number of contested cases, a uniquely correct meaning. But the very fact of a plausible difference of opinion about the meaning of “charter of government” precludes an original public meaning of that term. The problem is that the choice among possible meanings cannot be resolved by any criteria that can reasonably be called “semantic.” 

Johnson on late medieval English legal cultures

Tom Johnson (University of York) has published Law in Common: Legal Cultures in Late-Medieval England with Oxford University Press. From the publisher: 

There were tens of thousands of different local law-courts in late-medieval England, providing the most common forums for the working out of disputes and the making of decisions about local governance. While historians have long studied these institutions, there have been very few attempts to understand this complex institutional form of 'legal pluralism'.

Law in Common provides a way of understanding this complexity by drawing out broader patterns of legal engagement. Tom Johnson first explores four 'local legal cultures' - in the countryside, in forests, in towns and cities, and in the maritime world- that grew up around legal institutions, landscapes, and forms of socio-economic practice in these places, and produced distinctive senses of law.

Johnson then turns to examine 'common legalities', widespread forms of social practice that emerge across these different localities, through which people aimed to invoke the power of law. Through studies of the physical landscape, the production of legitimate knowledge, the emergence of English as a legal vernacular, and the proliferation of legal documents, the volume offers a new way to understand how common people engaged with law in the course of their everyday lives.

Drawing on a huge body of archival research from the plenitude of different local institutions, Law in Common offers a new social history of law that aims to explain how common people negotiated the transformational changes of the long fifteenth century with, and through legality.

Here's the Table of Contents:

Introduction: Local Legal Cultures and Common Legalities in Late-Medieval England 

Part I: Local Legal Cultures 

• 1: Rural Legal Culture: Ordaining Community 

• 2: Urban Legal Culture: Institutional Density 

• 3: Maritime Legal Culture: Expertise and Authority 

• 4: Forest Legal Culture: Accounting for Vert and Venison 

Part II: Common Legalities 

• 5: The Legal Landscape 

• 6: The Economy of Legitimate Knowledge 

• 7: Legal English and the Vernacularization of Law 

• 8: Common Legal Documents 

Conclusion: Towards a Common Constitution 

Bibliography

Further information is available here. 

--Mitra Sharafi

Revisionism and Rehabilitation

[by David Schwartz, guest blogger]

Our understanding of the post-Civil War Supreme Court in what might be called its “dark age” – from the 1870s to 1936 – has been shaped by a long-running debate between “progressive” historians and “revisionists.” The progressive historians gave us the conventional narrative of a Lochner-era Court bending or discarding judicial principle to serve the interests of wealth and implement their personal policy preference for laissez faire economics. The revisionists, starting in the 1970s, complicated that account by showing that much economic reform legislation was upheld in this era, at least at the state level, and arguing that the progressive critique reductively ignored the influence of jurisprudential ideology and doctrine on the Court’s decisions.

In her masterful article published last year in the Law and History Review, In Defense of Progressive Legal Historiography, Laura Kalman offers a graduate seminar in these debates, honoring the contributions of both sides and calling for a synthesis of the progressive thesis and revisionist antithesis. Arguably that has already occurred, insofar as the debate has died down and sophisticated historians recognize that judicial decisions are shaped by ideology, doctrine, and institutionalism, as well as political, social, and economic factors. While Kalman’s actual defense of progressive legal historiography could have been more forceful for my tastes, she did slip in a devastating critique of revisionism, showing it to have a significant reductive quality of its own. Not only did the revisionists tend to reduce progressive historiography to a caricature—that judges were utterly unprincipled quasi-legislators implementing their policy preferences by blocking all social reform—but they also overstated their case by treating judicial decisions themselves as the only (or primary) admissible evidence. They thereby ignored the justices’ speeches, professional networks, and biographical data of the sort presented in Arnold Paul’s Conservative Crisis and the Rule of Law (1960), that shed considerable light on the justices’ attitudes and motivations.

Revisionism about the late nineteenth/early twentieth century Supreme Court can be critiqued on a related but different ground: its tendency to venture beyond legal intellectual history and into judicial rehabilitation projects.

Albert, Guruswamy, Basnyat and friends on founding constitutional moments

Richard Albert (University of Texas at Austin), Menaka Guruswamy (senior advocate, Supreme Court of India), and Nishchal Basnyat (Cambridge University) have co-edited Founding Moments in Constitutionalism, now out with Hart Publishing. From the press:

Founding moments are landmark events that break ties with the ancien régime and lay the foundation for the establishment of a new constitutional order. They are often radically disruptive episodes in the life of a state. They reshape national law, reset political relationships, establish future power structures, and influence happenings in neighbouring countries. This edited collection brings together leading and emerging scholars to theorise the phenomenon of a founding moment. What is a founding moment? When does the 'founding' process begin and when does it end? Is a founding moment possible without yielding a new constitution? Can a founding moment lead to a partial or incomplete transformation? And should the state be guided by the intentions of those who orchestrated these momentous breaks from the past? Drawing from constitutions around the world, the authors ask these and other fundamental questions about making and remaking constitutions.

 Table of Contents after the jump:

Meisel, "A History of the Law of Assisted Dying in the United States"

Alan Meisel (University of Pittsburgh) has posted "A History of the Law of Assisted Dying in the United States." which is forthcoming in the Southern Methodist University Law Review (2020). The abstract:

The slow growth in the number of states that have enacted legislation to permit what is often referred to as “death with dignity” legislation—and more frequently referred to popularly as “physician assisted suicide” laws—has begun to accelerate in the past few years since the enactment of the first such statute in Oregon in 1994.

Like much other social reform legislation, there is a long history behind it. In this case, the history in the United States dates back at least to the latter part of the nineteenth century. Not until the 1980s, however, did these efforts gain any traction in courts and legislatures. What is probably more responsible than anything else for reviving interest in and providing momentum for legalization is the recognition by state courts, beginning with the Karen Ann Quinlan case in New Jersey in 1975, that the right to be free from unwanted interference with one’s bodily integrity encompasses a right to refuse even life-sustaining medical treatment. The recognition of this so-called right to die was only a short conceptual step—though a long political one—from recognizing that competent adults also should have the right to actively end their lives under certain conditions.

As of the end of 2019, the efforts of a small number of advocacy groups through lobbying, litigation, and public education have resulted in the enactment of death with dignity legislation in nine states and recognition of the right by one state supreme court. Despite dire warnings from opponents of legalization, it has not resulted in either wholesale abuse of the dying or the legalization of active euthanasia (either voluntary or involuntary). 

Read on here. (h/t: Legal Theory Blog)

-- Karen Tani

Rubenstein and Henderson on Woman Citizenship in Australian Archives

Kim Rubenstein and Andrew Henderson, Australian National University, have posted Record and Recollection: Women’s Active Citizenship and National Archives, which appears in Law & History 6 (2019): 98-124:

Postmodern theories of the development of archival collections argue that archives created and administered under executive power often exclude voices and accounts outside the mainstream. These critiques are generally directed towards the absence of life experiences outside the purview of the central activities of the state. However, there is little empirical testing of how women’s active contributions within the concerns of government activity are recorded. This article tracks two events, recorded in the oral histories of two women lawyers collected as part of the Trailblazing Women and the Law Project, through the records of the National Archives of Australia (NAA). Its purpose is to start investigating how well these women, who have been active citizens, are ‘recorded’ in the formal national memory. It highlights the importance of undertaking further research to determine how well the NAA, as a state-run archive, represents women’s active citizenship in its telling of Australian legal history.

--Dan Ernst

Peterson, "Constitutionalism in Unexpected Places"

Farah Peterson (University of Virginia) has posted the abstract for her article "Constitutionalism in Unexpected Places," forthcoming in the Virginia Law Review:

Before, during, and after the ratification of the federal Constitution of 1787, Americans believed that they were governed under an unwritten constitution, a constitution that described an arrangement of power, confirmed ancient rights, and restricted government action. The existence of this unwritten constitution, and particularly its continuity, is something legal scholars have not adequately understood. Instead, both originalists and scholars of the “living” constitution think of 1787 as a hard break from the past and a starting point for their investigations.

But Americans of the Founding generation did not share our view that the only constitution that mattered was the one the Framers designed. This Article focuses on a feature of American colonial life that reappeared with striking continuity for three generations after Independence—the vindication of unwritten constitutional rights by mob action, and specifically, the tradition of mobs turning to Indian costume to express a specific series of constitutional grievances. During the age of the Revolution, many Americans believed that mobs in the streets performed a legitimate role in the enforcement of their unwritten constitution. These mob actions involved ritualistic violence and consistent, non-linguistic symbolism. The endurance of this form of constitutional engagement, employing the same symbols to assert the same suite of legal claims, is simply astonishing. It is evidence of the tenacity of a series of constitutional commitments predating the Founding that were not encompassed by, or replaced with, a written constitution.

This Article also makes a methodological point. An exclusive focus on official texts and the words, pamphlets, and letters of great men robs historical investigation of its depth and risks missing crucial insights about the past. Important evidence revealing how Americans conceived of their constitution and of themselves as legal actors can be found in their customs, in behavior, in performances in public spaces, and in the life of important ideas in literature and art. This Article focuses on a peculiar phenomenon as a way of modeling this point. The white protestor in Indian costume may seem like an oddity, but a deeper investigation reveals him to be a missing link, a key to how Americans believed their society was constituted, how they thought about justice, and how they understood the obligations the Revolution laid upon its inheritors.

We'll update this post when the full article is available for download. (h/t: Legal Theory Blog)

-- Karen Tani

Parker Reviews Fernandez on Pierson v. Post

Over at JOTWELL, Kunal Parker (University of Miami School of Law) has posted an admiring review of Angela Fernandez's recent work on the classic property law case Pierson v. Post (Angela Fernandez, Pierson v. Post: The Hunt for the Fox (2018); Angela Fernandez, "Pierson v. Post" in Feminist Judgments: Rewritten Property Opinions (forthcoming 2020)). It's hard to capture the essence of this fascinating review in a single paragraph, but here's a taste:

. . . Fernandez chases Pierson v. Post wherever it will take her, from the New York archives to the plays of Shakespeare to the beaches of Long Island to the casebooks of the twentieth century and beyond.  Like the fox, Pierson is wily, but its huntress refuses to give up. The parallels between the book’s structure (that of following Pierson wherever it will go) and the Post’s hunt for the fox among the scrub of a Long Island beach are, it must be emphasized, the genius of Fernandez’ book.

Read on here.

-- Karen Tani

Katz on child support

Elizabeth D. Katz (Washington University in St. Louis) has published the following article: "Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws," University of Chicago Law Review 86:5 (June 2019), 1241-1309. Here's the abstract:

Each year family courts incarcerate thousands of Americans for nonpayment of child support. The vast majority of these parents are not accorded criminal procedure protections because courts have characterized routine child support enforcement as a “civil” matter. The United States Supreme Court has endorsed this approach. In Turner v Rogers, the Court began from a premise it regarded as both legally significant and unquestionably true: that child support proceedings are civil. 

On that basis, the Court determined that an indigent father facing a year in jail was not entitled to a public defender. The Court’s analysis reflects a broader and widespread assumption that family law is a civil field. Recent scholarship has challenged that understanding by examining how criminal law and family law work in tandem to police certain conduct. This Article goes further by demonstrating that modern support duties and the family courts that enforce them evolved from criminal laws and courts.

Relying on extensive historical research, this Article argues that child support enforcement is criminal law in a civil guise. Family nonsupport was criminalized around the turn of the twentieth century to permit extradition of offenders. Criminal court judges then tasked newly minted probation officers with reconciling, investigating, and monitoring families—novel state interventions in domestic life. Probation officers, in turn, staffed and promoted specialized criminal nonsupport courts (initially called “domestic relations courts” and later “family courts”) that some cities opened to handle these prosecutions in the 1910s. Beginning in the 1930s, costs and stigma associated with criminal law led legislators to strategically relabel family courts and support enforcement as “civil,” even while retaining procedures, personnel, and powers drawn from the criminal context. Observers found the ongoing use of criminal-derived oversight methods unobjectionable; the decades in which support law was largely criminal law shifted norms about acceptable and desirable state involvement in family relationships. As the number of civil “child support” suits surpassed nonsupport prosecutions (which all states retained) and probation officers disappeared from family litigation, the criminal heritage and continued criminal-law reinforcement of family courts and support laws were obscured.

The calculated and incomplete conversion of family support enforcement from criminal to civil undercuts the supposedly distinct purposes, procedures, and penalties associated with the civil and criminal categories. Building on scholarship that critiques the Supreme Court’s treatment of statutory schemes that blur the civil-criminal divide, the Article draws from child support history to condemn the Court’s strong deference to legislative labels and to propose greater consideration of enforcement methods. If the Court were persuaded to recognize child support incarceration as a criminal sanction, then states would face a difficult choice. They could either allocate the resources needed for constitutionally mandated criminal procedure protections or decriminalize the enforcement machinery—ideally through elimination of most child support incarceration.

Further information is available here.

--Mitra Sharafi

Law of Nations and the Early American Constitution: An ICH Seminar

[We're moving this up, as the deadline for applications (December 30, 2019) will soon be upon us.;  DRE]

The Law of Nations and the Early American Constitution: How Citizens, Aliens, Slaves, and Indians Struggled to Build a “Civilized Nation.”  A New-York Historical Society/Institute for Constitutional History Seminar.

Constitution-making in the United States originated in an international war and for decades remained a cosmopolitan drama in which Americans claimed to be constituting a “civilized nation.” In four sessions, David Golove and Daniel Hulsebosch will lead an exploration of the ways that early Americans invoked the law of nations to make sense of, for example, what it meant to be a revolutionary republic in a world of nations; statebuilders in the evening of Enlightenment; African-Americans in an “empire of liberty”; and Native Americans caught between encroaching settlers and a fragmented but powerful government. In these contests, the law of nations functioned as a dynamic field of principles, practices, and keywords through which diverse actors filled in constitutional meanings while arguing about how to structure their relationship with each other and the wider world.

Workshop leaders.  David M. Golove (N.Y.U.) and Daniel J. Hulsebosch (N.Y.U.).  Professors Golove (Hiller Family Professor of Law) and Hulsebosch (Charles Seligson Professor of Law) have published separately and together about the international dimensions of early American constitutionalism, including in jointly-authored articles entitled “A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition” in the New York University Law Review (2010); “The Law of Nations and the Constitution: An Early Modern Perspective,” in the Georgetown Law Journal (2018), and “‘The Known Opinion of the Impartial World’: Foreign Relations and the Law of Nations,” forthcoming next year in The Cambridge Companion to The Federalist.

Logistics.  The seminar will be held at the New-York Historical Society, 170 Central Park West, New York City on the following dates, January 31, February 14, 28, and March 13.

Application process.  The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their C.V. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at MMarcus@nyhistory.org until December 30, 2019. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to Mmarcus@nyhistory.org.

Additional information. There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

About ICH:  The Institute for Constitutional History (ICH) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.

GLOSSAE 16

[We have the following announcement.  DRE]

I'm delighted to let you know that the last issue of GLOSSAE. European Journal of Legal History 16 (2019) came out some time ago [here]. 

As you may already know, GLOSSAE is currently indexed in SCOPUS, SJR-2018 is 0.101, Q4 on Law & History. It can be found in several catalogues' systems: DICE, RESH, ERIHPlus, LATINDEX Catálogo v2.0 (2018- ), CARHUS Plus+ 2018: Group A, CIRC: Group C, MIAR (ICDS de 7.3.). It is available on the following databases: SCOPUS, HEINONLINE-Law Journal Library, Directory of Research Journals Indexing (DRJI), DIALNET, etc.

If you're interested in submitting an article for the next issue, keep in mind the deadline (May 31, 2020) and the rules of publication:

GLOSSAE welcomes articles written in English dealing with legal history, no matter their geographical and chronological context.

On behalf of the Editorial Board of GLOSSAE, I wish you all a Merry Christmas and a Happy and fruitful New Year 2020!

With my best wishes,

Professor Aniceto Masferrer, Legal History & Comparative Law, Faculty of Law, University of Valencia

Bilder in The Atlantic on Impeachment and Madison's Notes

The latest from Mary Sarah Bilder, Boston College Law School, which has gone (or is going) viral.  H/t: JFW et al.

Weekend Roundup

• From the Washington Post's Retropolis section, a profile of Mitsuye Endo, the under-appreciated Japanese-American citizen whose legal challenge to the Japanese American internment "forced the government to close the camps and allowed thousands of Japanese Americans to return to the West Coast."  

• Speaking of unlawful confinement, the History Office of the Federal Judicial Center has posted this introduction to federal habeas corpus jurisdiction. To its bibliography we would add Amanda Tyler's Habeas Corpus in Wartime (2017) and Eric Freedman's Making Habeas Work (2018).

• In individual posts we have mentioned several of the articles in the University of Pennsylvania Law Review's May 2019 symposium on administrative constitutionalism. The full symposium is now available here. It includes contributions by Karen M. Tani (University of California, Berkeley), Gregory Ablavsky (Stanford University), Joanna L. Grisinger (Northwestern University), Sophia Z. Lee (University of Pennsylvania), Jeremy K. Kessler (Columbia University), Bertral L. Ross II (University of California, Berkeley), William J. Novak (University of Michigan), Cary Coglianese (University of Pennsylvania), and William N. Eskridge, Jr. (Yale Law School). 

• From the Washington Post's "Made by History" section: Karin Wulf (Omohundro Institute of Early American History & Culture/William & Mary) on how "keeping historical records public and easily accessible" enables us to think for ourselves about impeachment.    

• Writing for JOTWELL's Contracts section, Daniel Barnhizer (Michigan State University) has posted an admiring review of "Cheating Pays," by legal historian Emily Kadens (Northwestern Pritzker School of Law). The article, which was based on a historical case study, appeared in Volume 119 of the Columbia Law Review.

• Available online from Law and History Review and Cambridge Core: Jousting Over Jurisdiction: Sovereignty and International Law in Late Nineteenth-Century South Asia, by Priyasha Saksena.

• The blog of the Cato Institute has Roger Pilon’s notice of David N. Mayer, who died last month.  Mayer, professor emeritus of law and history at the Capital Law School, was the author of The Constitutional Thought of Thomas Jefferson (University of Virginia Press, 1994).

• ICYMI: Ryan Husey, The Carceral State and Prison Activism, an H-Net Book Channel Essay.

• In the op-ed section of the New York Times: Lauren MacIvor Thompson (Georgia State University) reminds readers that "Women Have Always Had Abortions."  

• Via History News Network: "Over 1500 Historians and Scholars Sign Letter Urging Impeachment." Also, Robert Hardaway (University of Denver Sturm College of Law) on "Impeachment and the Electoral College."

• Over at New Books in Law (part of the New Books Network): an interview with G. Edward White (University of Virginia) about Volume III of Law in American History (Oxford University Press, 2019). Also, Talitha LeFlouria (Carter G. Woodson Institute at the University of Virginia) talks about her book Chained in Silence: Black Women and Convict Labor in the New South (University of North Carolina Press, 2016).

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

Texas v. United States and the Recurring Myth of State Destruction

[by David Schwartz, guest blogger]

Two days ago, in Texas v. United States, the Fifth Circuit held that the Affordable Care Act (a/k/a “Obamacare”) is an unconstitutional exercise of the Taxing Power. The Court reasoned that, because the 2017 Tax Cuts and Jobs Act eliminated the tax for individuals who failed to comply with the “individual mandate” to purchase health insurance, the ACA no longer raised revenue, making the individual mandate a bare regulation and not a tax.

This issue would not even have arisen but for the 2012 decision in NFIB v. Sebelius that Congress could not impose the individual insurance mandate under its commerce power. That ruling was a mistake: whether or not requiring a purchase of health insurance was itself a commerce regulation, it was plainly necessary and proper to a regulation of interstate commerce in health care, and therefore a legitimate implied power under McCulloch v. Maryland. In denying that straightforward application of the doctrine of implied powers, Chief Justice Roberts relied on the longstanding canard that states--and with them, our federal system—would be destroyed unless assertions of federal power are from time to time rejected, notwithstanding their prima facie validity under McCulloch.

The myth of state destruction has a long pedigree. Antifederalists during the Ratification debates insisted that the broad powers granted to the federal government would lead inexorably to a “consolidated” government, which was the late-eighteenth and nineteenth century word for a “completely centralized” government in which states were nullities with no meaningful regulatory power. The proposed Constitution, in the words of one prominent antifederalist, would empower the national government to “legislate the height of fence posts,” leaving nothing for state legislatures to regulate. This myth was perpetuated by the Taney Court, which argued that states held “a sacred right of self-defense” by which they could defeat prima facie claims of federal power that might touch on state powers to protect slavery.

As I argue in The Spirit of the Constitution, this exaggerated fear was perpetuated by a jurisprudential error: that legislative power must be exclusive rather than concurrent. 

Robichaud, "Animal City"

Fans of Hendrik Hartog's classic "Pigs and Positivism" might be intrigued by this new release from Harvard University Press: Animal City: The Domestication of America, by Andrew A. Robichaud (Boston University). A description from the Press:

Americans once lived alongside animals. They raised them, worked them, ate them, and lived off their products. This was true not just in rural areas but also in cities, which were crowded with livestock and beasts of burden. But as urban areas grew in the nineteenth century, these relationships changed. Slaughterhouses, dairies, and hog ranches receded into suburbs and hinterlands. Milk and meat increasingly came from stores, while the family cow and pig gave way to the household pet. This great shift, Andrew Robichaud reveals, transformed people’s relationships with animals and nature and radically altered ideas about what it means to be human.

As Animal City illustrates, these transformations in human and animal lives were not inevitable results of population growth but rather followed decades of social and political struggles. City officials sought to control urban animal populations and developed sweeping regulatory powers that ushered in new forms of urban life. Societies for the Prevention of Cruelty to Animals worked to enhance certain animals’ moral standing in law and culture, in turn inspiring new child welfare laws and spurring other wide-ranging reforms.

The animal city is still with us today. The urban landscapes we inhabit are products of the transformations of the nineteenth century. From urban development to environmental inequality, our cities still bear the scars of the domestication of urban America.

Advance praise:

“Based on exhaustive research, Animal City provides a rich description of nineteenth-century human and animal lives, including the landscapes, laws, economies, and institutions that shaped them. Robichaud has made a landmark contribution to how we understand this formative period in American urban and animal history.”—Peter Alagona 

“In ways that can seem unimaginable today, urban animals played a major role in shaping how nineteenth-century Americans debated laws, considered the boundaries of brutality, transformed economies and environments, and ultimately understood themselves. Through masterful storytelling and deep historical research, Andrew Robichaud paints this ecologically diverse urban world in vivid colors, showing readers that we cannot understand modern cities without acknowledging their controversial and often invisible animal past.”—Catherine McNeur

More information is available here.

-- Karen Tani

Arnold on heresy trials in medieval England

John H. Arnold (University of Cambridge) has published the following article: "Voicing Dissent: Heresy Trials in Later Medieval England," Past & Present 245:1 (Nov. 2019), 3-37. Here is the abstract:

Recent work on medieval heresy has emphasized the ‘constructedness’ of heresy by orthodox power, thus undermining the coherence of heretical sects and tending to suggest that those tried as heretics were essentially unwitting victims. This article examines the evidence from the entire range of surviving Lollard trials, and argues that we can see consciously ‘dissenting’ speech alongside the standard theological positions associated with (and perhaps imposed upon) Lollardy. In each area of dissent anticlerical, sceptical, disputational and rebellious a wider cultural context is explored, demonstrating that the language of dissent is not limited to ‘Lollardy’; at the same time however it is argued that it is precisely through the voicing and reception of such wider referents that a heretical movement comes to exist. The article traces trends in medieval speech through which specific opinions and beliefs are voiced as a challenge, and the linguistic and social contexts within which they give rise to wider meanings—including collective identifications. Thus, whilst we may wish to foreground the impositions of power and orthodoxy that ‘made’ heresy, we should not make ‘heretics’ disappear completely. Through the records of prosecution, we can still hear something of the voices of those who chose to voice dissent; and we can give recognition to that choice as a form of dissenting agency—dependent also however on the reception and interpretation of those voices by neighbours, witnesses and inquisitors.

Further information is available here. 

--Mitra Sharafi

CFP: Slavery: Past, Present and Future

[We have the following CFP. DRE]

Call for Papers:

SLAVERY PAST, PRESENT & FUTURE: 5th Global Meeting

Webster University, Leiden, The Netherlands
June 22-24, 2020

Slavery (the treatment of humans as chattel) and enslavement through conquest, birth, gender, race, ethnicity, kinship, and exploitation of indebtedness have been an intrinsic part of human societies.

Slavery and a variety of other forms of exploitation existed in ancient societies across the world, and in many other states and territories. The Transatlantic Slave Trade furnished at least 10 million Africans for slavery throughout the Americas.

Controversial and contested estimates indicate that up to 40 million people worldwide are enslaved today. This modern re-emergence of slavery into public view, following legal abolition of the trans-Atlantic slave trade over two hundred years ago, is said to be linked to the deepening interconnectedness of countries in the global economy, overpopulation, and the economic and other vulnerabilities of individual victims and communities.

But should we think of these people as enslaved? And if so, is slavery an inevitable part of the human condition? Like ‘consumers’ of past eras, such as early industrialization, are we dependent on the exploitation of others? What does the persistence and mutations of different forms of exploitation mean in the context of abolition and recognition of universal individual and collective human rights?

The varieties of contemporary forms of exploitation appear to be endless. This interdisciplinary conference will facilitate a multidisciplinary exploration of slavery in all its dimensions.

Submissions are sought from people from all walks of life and identities, including:

• Academics: from all disciplines, such as art, film, anthropology, sociology, history, ethnic studies, politics, social work, economics, and any field that touches the study of exploitation 

• Civil society members: human rights activists, leaders in non-governmental organizations, and others in the NGO or social advocacy fields 

• Professionals: social workers, corporate social responsibility and business ethics professionals, business leaders, and health care professionals 

• Government actors: representatives, policymakers, lobbyists, and analysts 

• Global citizens with personal connections to slavery or exploitation: former slaves or indentured laborers, members of at-risk populations, migrant or guest workers, non-regularized immigrants, and refugees

We particularly encourage submissions from the Global South.

Below are potential themes that the conference organizers have identified. [This comes directly from the CFP, but the formatting has been edited to conform with the capacities of our blogging platform. KMT]:

Defining Slavery

• What do we mean when we talk about “slavery”
• Using “slavery” to obscure other endemic forms of exploitation
• Teaching and learning about historic slavery and contemporary forms of exploitation

Slaveries of the Past

• Classical (Egyptian, Greco-Roman, etc.) slavery
• Conquests and colonization – Aboriginal Australians, indigenous peoples of the New World, dividing and colonizing Africa and Asia
• Slaveries in Europe pre-Industrialization, such as villeinage and serfdom
• Trans-Atlantic Slavery and the trans-Atlantic Slave Trade
• Depictions of slaves and slave traders in texts and art during the Abolition Period
• Systems of slavery in tribal and traditional societies
• WWII and post-WWII forced labor camps

Human Trafficking and other Forms of Contemporary Exploitation

• Definitions - Is human trafficking “slavery”
• Types of human trafficking (labor trafficking, sex trafficking, organ trafficking, etc.)
• Civil society anti-trafficking activism: assessing contemporary initiatives and movements
• The role of the nation state: (i) Can the nation state enslave? (prison labor, mandated military service, etc.); (ii) Anti-trafficking policies and legislation

Systems and Structures of Enslavement and Subordination (historic and contemporary)

• Role of slavery in national and global economies
• Economic, political, legal structures – their role in enslavement and exploitation
• Slavery’s impact on culture and the cultural impacts of historic slavery

Voices of the Enslaved

• Slave narratives of the past and present
• Descendants’ interpretation of their enslaved and/or slave-holding ancestors

Legacies of Slavery

• Identifying and mapping contemporary legacies – economic, social, cultural, psychological (e.g., Post traumatic stress disorder and intergenerational trauma)
• Assessment of slavery’s impact – economic, political, other
• Commemorations and memorialization of enslavers and/or the enslaved
• Legal regimes tacitly designed to perpetuate slavery (e.g., convict leasing)
• Legal segregation or discrimination (in housing, education, banking, transportation, etc.)
• Racial terror (e.g., lynching, forced removals)
• Racial subordination and re-enslavement (e.g., voter disfranchisement, mass incarceration, medical apartheid)
• Desecration of burial sites of the enslaved
• Destruction of or denial of access to historical information
• Lack of memorialization of sacred events/sacred persons/sacred sites
• Transitional justice (e.g., reparations, memorialization, restitution)
• Limited rights attribution and recognition for Afro-descended peoples
• Capacities (and limitations) of domestic and international law in creating, implementing and challenging slavery’s legacies
• Built environment (e.g., architecture, historic buildings, cityscapes, borders)

Anti-slavery Initiatives and Movements

• Reparations
• Economic compensation
• Restorative justice
• Teaching and learning about slavery
• Relationship to the global racial hierarchy
• Abolitionism and law: effects and (in)effectiveness
• The role of technology and multimedia

More information from the CFP:

Conference Committee:

• Karen E. Bravo (Indiana University Robert H. McKinney School of Law, IN, USA)
• David Bulla (Augusta University, GA, USA)
• Ursula Doyle (Northern Kentucky University School of Law, KY, USA)
• Judith Onwubiko (University of Kent, United Kingdom)
• Ulrich Pallua (University of Innsbruck, Austria)
• Sheetal Shah (Webster University, Leiden, The Netherlands)
• Judith Spicksley (University of Hull, United Kingdom)

Submitting Your Proposal:

Proposals should be submitted no later than Friday, February 28, 2020 to:

Karen E. Bravo, Indiana University Robert H. McKinney School of Law: kbravo@iupui.edu

E-Mail Subject Line: Slavery Past Present & Future 5 Proposal Submission

File Format: Microsoft Word (DOC or DOCX)

The following information must be included in the body of the email:

Author(s)

Affiliation as you would like it to appear in the conference program

Corresponding author email address

The following information must be in the Microsoft Word file:

Title of proposal

Body of proposal (maximum of 300 words)

Keywords (maximum of ten)

Please keep the following in mind:

All text must be in Times New Roman 12.

No footnotes or special formatting (bold, underline, or italicization) must be used.

Evaluating Your Proposal

All abstracts will be double-blind peer reviewed and you will be notified of the Organizing Committee’s decision no later than Friday, March 20, 2020. If a positive decision is made, you will be asked to promptly register online. You will be asked to submit a draft paper of no more than 2000 words by Friday, May 8, 2020.

The conference registration fee is €220.

We offer a limited number of fellowships to participants who would otherwise be foreclosed from attending. The fellowships take the form of registration deferrals.

Oxford Handbook of Law and Humanities

The Oxford Handbook of Law and Humanities, edited by Simon Stern, Maksymilian Del Mar, and Bernadette Meyler, is out:

How does materiality matter to legal scholarship? What can affect studies offer to legal scholars? What are the connections among visual studies, art history, and the knowledge and experience of law? What can the disciplines of book history, digital humanities, performance studies, disability studies, and post-colonial studies contribute to contemporary and historical understandings of law? These are only some of the important questions addressed in this wide-ranging collection of law and humanities scholarship.

Collecting 45 new essays by leading international scholars, The Oxford Handbook of Law and Humanities showcases the work of law and humanities across disciplines, addressing methods, concepts and themes, genres, and areas of the law. The essays explore under-researched domains such as comics, videos, police files, form contracts, and paratexts, and shed new light on traditional topics, such as free speech, intellectual property, international law, indigenous peoples, immigration, evidence, and human rights. The Handbook provides an exciting new agenda for scholarship in law and humanities, and will be essential reading for anyone interested in the intersections of law and humanistic inquiry.

Here’s the TOC.  The collection commences with “Materialism and Legal Historiography, From Bachelard to Benjamin,” by Christopher Tomlins, Berkeley Law.

Don't Fear the Index

How many times have you been frustrated by a bad index in someone else’s book? You go back to a great secondary source and spend a frustrating half-hour or more trying to find a particular point you need. Or you pick up a tome that you don’t want or need to read cover-to-cover, but you can’t find the thing you know is in there somewhere. You turn to the index only to find that the person, place, or event is not indexed. Or it is there in the index—but has fifteen undifferentiated page references, and you have to go through each one to find the thing you want.

I didn’t want to be that author—the one who treats the index as a formality—and instead decided to try to make my book index one that I would find helpful as a reader. I wound up with what I consider a good index, as well as a learning experience.

The publisher treated the index in my book as the author’s responsibility. In theory, I could have supplied an index myself, but lacking experience and know-how, I decided instead to throw money at the problem. Free-lance indexers charge somewhere between $1,000 and $1,500 for a 250-ish page academic monograph. Rather than hiring my own indexer, I chose the path of least resistance and allowed the book production contractor to subcontract a free-lance indexer, with a bill ultimately sent to me for the work. The advantage, I figured, was that the indexer would be familiar with the publisher’s production process and the indexing would be folded into that process.

What happened next was something of a mixed blessing. The production contractor sent me a draft index with a short turnaround time, on the assumption that the index was in good shape and required only a few hours of proofing and tinkering. On the positive side, the indexer did a very good job producing a long list of main headings, including certain items—often, names of individuals—that I might not have thought to include but that I was ultimately glad to include. The indexer also cited to the paragraph numbers of the page proofs, which would be converted to page numbers by the end of the production process. This was extremely useful as the paragraph cites would not be thrown off by last-minute pagination changes. I also appreciated that the indexer made a real effort to create detailed subheadings rather than simply amassing a dozen or more undifferentiated page cites for main headings like “slavery.” 

But the downside was that the subheadings needed a lot of revision. They were often worded in ways that would make little sense to specialists, or bore insufficient relation to my text, and at times they were a step above gibberish. In retrospect, I realized that it was unrealistic to expect an indexer to understand the book’s themes in sufficient detail, and to sufficiently master specialized terminology, to produce a useful, and indeed respectable, index.

I spent about 55 hours revising the index. But before gasping in fear and horror, hear me out. I found the experience worthwhile and far from tedious.

I quickly fell into a routine of doing word searches through my page proofs for all of the main index headings that were likely to need subheadings. To qualify for this treatment, the main heading had to be either an important concept or to have more than five page cites. (The latter criterion was suggested in the publisher’s indexing guide for authors.) As the author, I found it quick and easy to discern the context for the word or phrase in question and to come up with a subheading word or phrase that fit the book. The process, though highly repetitive, was absorbing and interesting, in a crossword puzzle/Sudoku kind of way.

But there was a more substantive payoff as well. The indexing process forced me to think hard about the book’s various themes and their interconnections, from the vantage point of terminology. This was different – fascinatingly so—from thinking about the book’s themes in writing the body text of the manuscript, organizing chapters, or writing chapter abstracts and jacket copy.

The most challenging aspect of the indexing process, for me, was trying to disentangle overlapping concepts that might warrant separate main index entries: for example, “race” and “slavery,” or “federal powers” and “Commerce Clause.” The key, I found, was not to disentangle them at all. Instead, I realized that I should embrace overlap and repetition, allowing myself to repeat page cites and subheadings while liberally sprinkling in “see also” references. After all, a reader might look to either “race” or “slavery” in the index’s main headings to find the discussion of “fugitive slave laws.”

The question I now have is what to do next time (hoping I have a second book in me). I can think of two options to improve on the indexing process I described above. One is to try to create the index from scratch myself, using Word or some indexing software to generate main headings. The other option is to hire the indexer to produce a list of main headings only. I would expect this to cost less money, guessing (but it is only a guess) that the subheadings take up 50% of the indexer’s time. Either way, I would plan to do the index subheadings myself.

Fifty-five hours sounds like a lot. But it is less daunting if you think about it as ten days to two weeks of steady work at the end of a long writing process. Having put your heart and soul into writing a book, you should take the time to have an extended conversation with it—which the index-writing process certainly is. Your book is worth it.

--David Schwartz

Davis and Bilder on Robert Morris's Library

Laurel Davis, Legal Information Librarian & Lecturer in Law and Curator of Rare Books & Manuscripts, Boston College Law School, and Mary Sarah Bilder, Founders Professor of Law, Boston College Law School, have published The Library of Robert Morris, Antebellum Civil Rights Lawyer and Activist, in the Law Library Journal 111 (2019): 461-508:

The Robert Morris library, the only known extant, antebellum African American–owned library, reveals its owner’s intellectual commitment to full citizenship and equality for people of color. Although studies of lawyers’ libraries have focused on large collections, this article provides a model for interpreting small libraries, particularly where few personal papers remain extant.

The article “grew out of preliminary research we did when curating an exhibit entitled “Robert Morris: Lawyer & Activist,” featuring books from Robert Morris’s personal library, held by the John J. Burns Library at Boston College, supplemented with letters and ephemera from the Robert Morris Papers at the Boston Athenaeum.”  The two were attracted to the project by “a blog post by James Heffernan, former Burns Library conservation assistant . . ., reporting on his assignment to isolate the Morris books from the larger Bostonia Collection.”

--Dan Ernst

Grinberg on a 19th-century Afro-Brazilian jurist

A Black Jurist in a Slave Society: Antonio Pereira Rebouças and the Trials of Brazilian Citizenship by Keila Grinberg (Universidade Federal do Estado do Rio de Janeiro) is now available in English translation by Kristin M. McGuire and with a Foreword by Barbara Weinstein. From the publisher, UNC Press:

Now in English for the first time, Keila Grinberg's compelling study of the nineteenth-century jurist Antonio Pereira Rebouças (1798–1880) traces the life of an Afro-Brazilian intellectual who rose from a humble background to play a key--and conflicted--role as Brazilians struggled to define citizenship and understand racial politics. One of the most prominent specialists in civil law of his time, Rebouças explained why blacks fought stridently for their own inclusion in society but also complicitly embraced an ethic of silence on race more broadly. Grinberg argues that while this silence was crucial for defining spaces of social mobility and respectability regardless of race, it was also stifling, and played an important role in quelling political mobilization based on racial identity.

Rebouças’s commitment to liberal ideals also exemplifies the contradiction he embodied: though he rejected movements that were grounded in racial political mobilization, he was consistently treated as potentially dangerous for the single fact that he was of African origin. Grinberg demonstrates how Rebouças’s life and career—encompassing such themes as racial politics and identities, slavery and racism, and imperfect citizenship—are central for our understanding of Atlantic slave and post-abolition societies.

 Praise for the book:

“Through Rebouças’s remarkable biography, recounted in lively prose and intriguing detail, Keila Grinberg offers a compelling, comprehensive, and empirical reinterpretation of the political and intellectual history of nineteenth-century Brazil. A monumental study of the social history of the law in Brazil and among the most important on nineteenth-century Brazil more broadly. Required reading.” - Sueann Caulfield

“Organized around the life and career of a genuinely remarkable individual, this is a fascinating examination of race, slavery, the law, and nation building, and a pathbreaking work on Brazil's nineteenth century.” - Barbara Weinstein

Further information is available here.

Howlin on Compensation for Malicious Damage to Property in 19th-Century Ireland

Niamh Howlin, Sutherland School of Law, University College Dublin, has posted Compensation for Malicious Damage to Property in Nineteenth-Century Ireland:

This Working Paper examines aspects of the law relating to compensation for malicious damage to property in Ireland. Its main focus is the legislative framework of the nineteenth century, particularly the Grand Juries (Ireland) Act 1836 and the Malicious Injury Act 1861, as well as the procedural and substantive reforms introduced by the Local Government (Ireland) Act 1898. Compensation for malicious injuries in nineteenth-century Ireland was unique in the United Kingdom, with increasing divergence between England and Ireland in evidence from quite early in the century.

--Dan Ernst

AJLH 59:4

American Journal of Legal History 59:4 (December 2019) is now available online:

A Counter-Culture of Law: Jurisprudential Change and the Intellectual Origins of the Critical Legal Studies Movement, by Juhana Salojärvi

Railway Sparks: Technological Development and the Common Law, by Mark L Wilde

Machinations of the British Medical Association: Excluding Refugee Doctors from Queensland’s Medical Profession, 1937–1942, by Gabrielle Wolf

Book Review

David Harbecke, Modernisation Through Process. The Rise of the Court of Chancery in the European Perspective, reviewed by Lorenzo Maniscalco

--Dan Ernst

Shaw, Siegel and Murray's Introduction to "Reproductive Rights and Justice Stories"

Katherine Shaw, Yeshiva University-Benjamin N. Cardozo School of Law, Reva Siegel, Yale Law School, and Melissa Murray, New York University School of Law, have posted their introduction to Reproductive Rights and Justice Stories:

This book of "Reproductive Rights and Justice Stories" brings together important cases involving the state regulation of sex, childbearing, and parenting. We tell the story of twelve cases, some canonical and some far less known, involving contraception, abortion, pregnancy, and parenthood. The chapters tell their stories using a wide-lens perspective that illuminates the complex ways law is forged and debated in social movements, in representative government, and in courts.

As a field, "reproductive rights and justice” is relatively new, and its contours are quite broad, encompassing the various ways law shapes the decision “whether to bear or beget a child” and the conditions under which families are created and sustained. Some of the cases included in this volume are very much part of the constitutional law canon; more are not. Until recently, these cases have not often been conceived of as part of a unified field of law.

This volume remedies that oversight. Reading this group of cases together makes visible forms and effects of reproductive regulation that are less evident when the cases are read in isolation or in their more familiar doctrinal contexts. The framework of “reproductive justice” highlights the intersecting relations of race, class, sexuality, and sex that shape the regulation of reproduction. It examines the many ways law shapes the choice to have, as well as to avoid having, children. The volume addresses decisionmaking about contraception and abortion—the traditional subject matter of “reproductive rights”—in this larger reproductive justice framework, and locates this body of law alongside cases that consider a wider range of issues, including sterilization, assisted reproductive technology, pregnancy discrimination, the criminalization of pregnancy, and access to reproductive health care.

The chapters in this volume narrate the cases in ways that enlarge the field in which we analyze the work of courts. To be sure, the chapters tell stories about the individual litigants and lawyers behind important cases. But the stories recognize courts as but one of many institutions in our constitutional democracy, and they show how conflicts over law unfold in the institutions of civil society (medicine, religion, media), in democratic politics (social movements, political parties, and representative government), as well as in the courts. The stories feature ordinary women and men struggling with laws that govern the ways they make families, and show how members of the community, government officials, lawyers, and judges respond. In the process, these stories situate litigation histories in a larger social field, revealing the interplay of bottom-up and top-down forces that provoke, shape, and legitimate judicial decisions, and the role that struggle over courts and rights plays in forging new norms.

--Dan Ernst

150 Years of Serbia’s Administrative Judiciary

[We have the following announcement from Vuk Cucic of the University of Belgrade. DRE]

This year Serbia celebrates 150 years of judicial review of administrative acts in Serbia. On this occasion, the President of the Administrative Court of Serbia, a group of my colleagues from university and I prepared a collection of papers covering the history of administrative judiciary in Serbia since 1869: 150th Anniversary of the Administrative Dispute in Serbia (1869-2019), edited by Vuk Cucic (Administrative Court of Serbia, 2019).  In it we covered the historical development of the organization, subject-matter, procedure, decisions (adjudication) and legal remedies in administrative dispute procedure. The collection of papers can be found [here.]  It is bilingual, in English and Serbian.

[Professor Cucic observes that the collection shows “how different administrative traditions (French, Austrian, German and Soviet) influenced judicial review in a small European country.”]

ASLH Honorary Fellow: Rebecca J. Scott

[We conclude today's posts of citations for the Honorary Fellows announced at the recent meeting of the American Society for Legal History with the following citation for Rebecca J. Scott, the Charles Gibson Distinguished University Professor of History and Professor of Law at University of Michigan.  It was read at the meeting by Bruce Mann.  DRE]

It gives me particular personal and professional pleasure to help honor Rebecca J. Scott, Charles Gibson Distinguished University Professor of History and Professor of Law at the University of Michigan.  Professor Scott is an internationally-recognized scholar who has made pioneering and transformative contributions to Cuban history, to the comparative study of slavery in Latin America and the Atlantic world, and to the legal history of slavery.  She is also a generous mentor and an energetic and entrepreneurial builder of scholarly bridges connecting fields and scholars internationally.  And, as a former president of the American Society for Legal History, she is most definitely and enthusiastically one of us.

Rebecca J. Scott (credit)

Professor Scott received an A.B. from Harvard University, an M.Phil. in economic history from the London School of Economics in 1973, and a Ph.D. in history from Princeton University in 1982.  She went to the University of Michigan in 1980 as a Junior Fellow of the Michigan Society of Fellows and has been a member of the Department of History ever since.  She has held visiting professorships and senior research scholar positions in Brazil, Paris, and Princeton, and at the law schools of Yale, Duke, and New York University.  She has been awarded fellowships by the National Endowment for the Humanities and the John Simon Guggenheim Memorial Foundation and was a John D. and Catherine T. MacArthur Foundation Prize Fellow.  She is an elected member of the American Academy of Arts and Sciences and a Foreign Corresponding Academician of the Cuban Academy of History.

Professor Scott has written or co-written five books and dozens of articles and co-edited three volumes of essays.  A common thread that weaves through her scholarship is her insistence on recovering the role of enslaved persons in their own emancipation and in their continuing struggles afterward.  In this she has blazed new trails since, as a graduate student in the 1970s, she landed in Cuba and managed to do what no other American historian had been able to do since the Cuban revolution of 1959–serious research in Cuban archives.  The book that resulted, Slave Emancipation in Cuba:  The Transition to Free Labor, 1860-1899, set a model of respectful, constructive, yet highly critical and challenging engagement with Cuban scholarship.  In it, she challenged the dominant interpretation of Cuban slavery as a system that was doomed to collapse under the weight of its own contradictions and demonstrated instead that it was a robust mode of economic production that could have lasted into the 20th century if unchecked.  It did not, she argued, because Spanish politicians and bureaucrats, Cuban independence fighters, British and American abolitionists, and Cuban slaves themselves came together in a complex process that ultimately led to abolition in 1886.  The book has had and continues to have a significant impact on the legal historiography of slavery in Latin America.  Professor Scott continued her emphasis on the role of enslaved persons in bringing slavery to an end in her next book, Degrees of Freedom:  Louisiana and Cuba after Slavery, which was a comparative study of the meanings of freedom in the years following emancipation.

Although not yet a legal historian in her own, modest estimation, Professor Scott in both of these books included extensive discussions of law and court cases as crucial elements in her analysis.  Since then, she has pursued her study of law more deeply in a series of landmark articles and her recent path-breaking book (with her co-author, Jean M. Hébrard), Freedom Papers:  An Atlantic Odyssey in the Age of Emancipation, which was immediately recognized as yet another historical tour-de-force.  The book traces the travails of one family across five generations as its members navigated the legal landscapes of slavery and freedom in Haiti, Cuba, France, and the United States.  It has been justly praised for its sweeping scope, novel methodology, exhaustive research, and writerly prose.

Professor Scott’s care for our discipline and for the people in it animates many of her other projects.  Her co-edited volumes have put North American and Cuban historians into direct conversation with one another about slave emancipation, independence, and race.  Other volumes of descriptions and finding tools for a wide range of archives in Cuba represent her taking everything she has learned about far-flung and previously under-used sources and making them available to the international community of scholars.

As the criteria for election as Honorary Fellow stipulate, there is more to being a great scholar than producing great scholarship.  As many people in this room can attest, she welcomes everyone working in legal history.  She has developed and nurtured collaborative scholarly networks that have helped introduce numerous graduate students and junior colleagues to one another.  She has been a mentor to junior scholars, many from Latin American countries such as Cuba or Brazil.  Indeed, she never comes to this meeting without a troop of graduate students and other junior scholars whom she introduces to the rest of us.

In sum, Professor Scott is a truly gifted, accomplished, and generous scholar.  As one of her colleagues told us, her “energetic, friendly, and at times humorous approach to our field and our Society is a wonderful gift.”  The Committee agrees and welcomes her election as an Honorary Fellow of the Society.