Center for the Study of Law & Society Speaker Series: Spring 2020

With apologies for the delayed posting, here's a link to the Spring 2020 lineup for the Center for the Study of Law & Society's terrific speaker series. Speakers of particular interest to our readers:

Monday, January 27 – DYLAN PENNINGROTH
Professor of Law and History, UC Berkeley
“Race and Contract Law”
For the event flyer, click here.

Monday, February 10 – CAITLIN ROSENTHAL
Assistant Professor of History, UC Berkeley
“Capitalism Where Labor was Capital: Slavery, Power and Price in Antebellum America”
For the event flyer, click here.
For the related paper, click here. 


Monday, March 30 – VICTORIA WOESTE
Research Professor, American Bar Foundation
“Practicing God’s Law in a Secular World: The Civil Rights Law Practice of the Rev. Fred W. Phelps, 1964-1989”

Do you know of other lectures or workshop series that we should take note of on the blog? Feel free to contact us! 

-- Karen Tani

Welcome, Jill Hasday!

We are delighted to announce a new guest blogger for the month of February: Professor Jill Hasday. 

Hasday is the Distinguished McKnight University Professor and the Centennial Professor of Law at the University of Minnesota Law School, where she teaches courses on anti-discrimination law, constitutional law, family law, and legal history. 

Her numerous articles have appeared in venues such as the Harvard Law Review, the Stanford law Review, and the New York University Law Review. She has also authored two books: Family Law Reimagined (Harvard University Press, 2014) and the hot-off-the-presses Intimate Lies and the Law (Oxford University Press, 2019). 

Amidst all this writing, she has made time for significant service to the field of constitutional history, editing the journal Constitutional Commentary.

Prior to entering academia, Professor Hasday clerked for Judge Patricia M. Wald of the United States Court of Appeals for the D.C. Circuit. She holds a J.D. from Yale Law School and a B.A. in History from Yale University.

For more information, including links to her writings, follow the link to her website.

Welcome, Jill Hasday!

-- Karen Tani

Thank you, Bianca Premo!

We are very fortunate to have had Professor Bianca Premo (Florida International University) as our guest blogger in January 2020. She was joined in several of her posts by Judith Mansilla and John Ermer (both of Florida International University). Here are these posts, all in one place:

• Paperless Law and Extrajudicial Legality
• Law and the Lettered City
• Copies and Originals, Premo
• More Than a Contract Part I, Premo with J. Mansilla
• More Than a Contract II, Premo with J. Mansilla
• Lo Extrajudicial, Premo
• Paperless Citizenship in Cuba, Premo with J. Ermer

Thank you all for sharing your insights on everything from improvised legal deals to modern citizenship cultures across Latin America!

--Mitra Sharafi

LHR Associate Editorship for The Docket

[We have the following announcement.  DRE]

Law and History Review, a leading journal of legal history, seeks an Associate Editor to edit its new The Docket .  The ideal candidate has a thorough knowledge of legal history and a strong grasp of communication through Wordpress, Twitter, and other social media and digital forums. Public historians are especially encouraged to apply.  The Associate Editor will be responsible for soliciting and publishing articles, interviews, and other items that mirror and expand on the content of issues of Law and History Review, as well as participating in editorial deliberations of the journal.  Editor-in-Chief Gautham Rao, and Associate Editors Angela Fernandez, Elizabeth Papp Kamali, and Jedidiah Kroncke will begin reviewing applications on March1 1, 2020 and expect to make an appointment by April 1, 2020.

To inquire or apply, please send a cover letter that explains your credentials, a C.V., and a list of three references (with name, title, mailing address, email address, and phone number) to Gautham Rao at grao@american.edu.

Law and History Review is published quarterly by Cambridge University Press for the American Society for Legal History.
digital imprint,

Resnik on "Ruinous" Punishments under the 8th Amendment

Judith Resnik, Yale Law School, has posted (Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People's 'Ruin,’ which appeared in The Yale Law Journal Forum:

In 2019, all Justices on the U.S. Supreme Court agreed in Timbs v. Indiana that the Constitution’s prohibition on excessive fines applied to the states. The Court’s opinion discussed the Excessive Fines Clause’s “venerable lineage” and termed its protections “fundamental.” Justice Thomas, concurring, wrote that the English prohibition against excessive fines aimed to insulate citizens from what historians called “ruinous fines.”

This Essay puts Timbs into the context of the Court’s search for metrics to assess the legitimacy of governments’ choices about punishment. In and after the 1960s, as convicted and incarcerated people asserted that constitutional law constrained sovereign powers, the Court repeatedly encountered challenges to punishment. I bring together lines of cases that have sat in doctrinal silos to show the links between the concerns animating judicial limits on sentencing and judicial recognition of incarcerated people’s rights to safety, sanitation, food, medical care, access to courts, and religious observance. I argue that this body of law, produced through convicted individuals’ insistence that they were entitled to constitutional protection, should be read to constitute a nascent an-ti-ruination principle that all branches of government need to implement.

--Dan Ernst

Paperless Citizenship in Cuba, Premo with J. Ermer

The final of this month’s blog posts, which have focused on paperless law and extrajudicial legalities in Latin America, ventures out of the colonial and into the modern period. This is an unvarnished attempt to grab the attention of you avid LHB readers who might not relate immediately to the topics of verbal contacts among seventeenth-century religious brotherhoods and dowry conflicts. To hook you, I again enlist a co-blogger, this time Florida International University History PhD candidate John Ermer, who is writing a dissertation about the Syrian and Lebanese diaspora (mahjar) in twentieth-century Cuba.  I wanted to ask John some questions that connect paperless law to modern citizenship cultures. (cont'd)

Meese on Wickard and Antitrust

Alan J. Meese, William & Mary Law School, has posted Wickard Through an Antitrust Lens, which appeared in the William & Mary Law Review 60 (2019): 1336-1393:

For several decades, the Supreme Court employed the direct/indirect standard to police the boundary between mutually exclusive state and federal power over intrastate conduct affecting interstate commerce. Under this regime, Congress possessed exclusive authority over intrastate conduct that affected interstate commerce directly, leaving states with exclusive authority over intrastate conduct that produced only indirect effects. The Supreme Court read the direct/indirect standard into the Sherman Act during the 1890s, holding in United States v. E.C. Knight and other decisions that the statute only reached intrastate restraints that impacted interstate commerce directly. Impacts were direct, in turn, if the restraint exercised market power to the detriment of out-of-state consumers. Intrastate restraints that produced only indirect effects fell within the exclusive authority of the states.

Wickard v. Filburn famously jettisoned the direct/indirect standard in 1942, holding that Congress could reach any conduct that produced a “substantial effect” on interstate commerce, even if such effects were indirect or fortuitous. Later in the same decade, in Mandeville Island Farms v. American Crystal Sugar, the Court read Wickard’s substantial effects test into the Sherman Act, holding that the statute reached purely local restraints producing indirect but “substantial” impacts on interstate commerce.

Wickard offered three critiques of the direct/indirect standard, critiques echoed by Mandeville Island Farms. First, Wickard claimed that the Court had almost always applied the direct/indirect standard when reviewing Commerce Clause challenges to state legislation, only rarely employing the test to invalidate an Act of Congress as exceeding the scope of the Commerce power. Indeed, the Court claimed that only five post-E. C. Knight decisions had invalidated congressional statutes as exceeding the scope of the commerce power, three during a two year period (1935-36). Second, Wickard claimed that the direct/indirect standard was “mechanical” and obscured judicial inquiry into the actual economic impact of the conduct Congress sought to regulate. Third, Wickard claimed that decisions applying the direct/indirect standard during the first third of the 20th Century did so under the sway of the discredited E.C. Knight decision and had co-existed with a parallel set of decisions, beginning with the Shreveport Rate Case, that took a more expansive approach to congressional authority. This alleged doctrinal ambiguity attenuated the precedential force of decisions that had applied the direct/indirect standard. 

It is no surprise that Mandeville Island Farms and subsequent Sherman Act decisions drew upon Wickard when discerning the scope of the Sherman Act vis a vis local restraints. This essay “flips the script” and asks “what if” Wickard had looked to Sherman Act precedents for guidance regarding the scope of the Commerce power. The essay contends that the Court’s experience with application of the direct/indirect standard in the antitrust context undermines Wickard’s critiques of that regime. For instance, inclusion of the Court’s antitrust federalism case law more than doubles the number of pre-Wickard decisions that refused to apply a federal statute to conduct generating a substantial economic effect on interstate commerce, thus falsifying Wickard’s claim that only two decisions between E.C. Knight and the New Deal enforced limits on Congressional power. Moreover, the antitrust federalism decisions were not “mechanical” or otherwise insensitive to the actual economic effects of challenged conduct. Instead, each such decision reflected a fact-intensive effort to determine the actual impact of the conduct in question, asking whether the restraint visited harm on citizens in other states. Finally, the Court’s pre-Wickard antitrust federalism decisions rarely cited E. C. Knight, and then only for the purpose of distinguishing or narrowing the decision so as to allow the Sherman Act to reach intrastate transactions producing interstate harm. These decisions were fully consistent with the Shreveport Rate Case, which held that Congress could preempt state regulation of intrastate rates that threatened to “injure” interstate commerce, by “directly interfering” with interstate rates. Indeed and ironically, a thorough understanding of the Court’s pre-New Deal antitrust federalism decisions helps generate a more enduring and plausible rationale for the result in Wickard, a rationale that does no violence to the constitutional order that Wickard repudiated.

--Dan Ernst.  H/t: Legal Theory Blog

"The Public's Law" Symposium: Emerson Responds

 [This is the third of three posts from an "author-meets reader" session on Blake Emerson's The Public's Law, held at the American Society for Legal History at its annual meeting on November 22, 2019.  The series begins here, with my summary of the book and continues with Noah Rosenblum's comment.  What follows is the response of Blake Emerson, Assistant Professor of Law at UCLA.  DRE.]

It is an honor to have the opportunity to continue discussing The Public’s Law here on the Legal History Blog. The author-meets-readers panel that Dan Ernst, Anne Kornhauser, Noah Rosenblum, and I participated in at the American Society for Legal History Conference was a great occasion to discuss the book with scholars whose work and insights shaped the argument. Here I’d like to continue that conversation, focusing on a few key issues: the motivation for the book, the role of Hegelian ideas in American Progressivism, and the promise of studying legal history from a normative perspective.

Ayoub's "Law, Empire, and the Sultan"

Law, Empire, and the Sultan: Ottoman Imperial Authority and Late Hanafi Jurisprudence, by Samy A. Ayoub, an Assistant Professor of Law and Middle Eastern Studies at the University of Texas at Austin, has been published by Oxford University Press in its series Oxford Islamic Legal Studies:

This book is the first study of late Hanafism in the early modern Ottoman Empire. It examines Ottoman imperial authority in authoritative Hanafi legal works from the Ottoman world of the sixteenth to nineteenth centuries CE, casting new light on the understudied late Hanafi jurists (al-muta'akhkhirun). By taking the madhhab and its juristic discourse as the central focus and introducing "late Hanafism" as a framework of analysis, this study demonstrates that late Hanafi jurists assigned probative value and authority to the orders and edicts of the Ottoman sultan. This authority is reflected in the sultan's ability to settle juristic disputes, to order specific opinions to be adopted in legal opinions (fatawa), and to establish his orders as authoritative and final reference points. The incorporation of sultanic orders into authoritative Hanafi legal commentaries, treatises, and fatwa collections was made possible by a shift in Hanafi legal commitments that embraced sultanic authority as an indispensable element of the lawmaking process.

--Dan Ernst

"The Public's Law" Symposium: Rosenblum Comments

[This is the second of three posts from an "author-meets reader" session on Blake Emerson's The Public's Law, held at the American Society for Legal History at its annual meeting on November 22, 2019.  My summary of the book on that occasion is here.  Below is a slight revision of the comment Noah A. Rosenblum delivered at session.  Mr. Rosenblum is a Ph.D. candidate in history at Columbia University and a Program Affiliate Scholar at the NYU School of Law.  DRE.]

Blake Emerson's The Public's Law is a significant intervention that deserves the attention of legal historians in particular.  It was born as a dissertation in political theory.  But we should not hold that against it.  Except for its last chapter, the work is completely given over to history.  Although framed as a normative argument of historical recovery, it intervenes in two important historical debates of special interest to our community.  First, The Public's Law suggests a new dimension to the world of "Atlantic Crossings" in the late 19th and early 20th century that intellectual historians like James Kloppenberg and Dan Rodgers helped frame nearly 30 years ago.  And second, it contributes to ongoing conversations about how we understand the nature and development of the administrative state-and so speaks to both political historians interested in the history of the Progressive Era, the New Deal, and the Civil Rights years, and legal historians writing the new history of administration and administrative constitutionalism.  I'll have more to say about these historiographical interventions later.  For now, I just want to hammer on this book's relevance for legal history.  The Public's Law is more explicit about its normativity than most historians like.  And, because of the disciplinary divisions of the academy, it comes dressed up as a book that's more for philosophers or lawyers.  But it is decidedly a book that intellectual, political, and legal historians will have to grapple with.

I'd like to focus this contribution on three specific arguments advanced in The Public's Law.  Ernst's post has already explained how Emerson traces the way German Hegelianism worked its ways into the thought of leading Progressive reformers, and, through them, into some of the basic structures of American government.  I want to zero-in on three moments in this progression, and highlight how the argument advanced in The Public's Law challenges our received understandings: (1) first, its account of the meaning and ramifications of Hegelianism, (2) second, its description of the legacy of the Hegelian reception in the United States, and (3) third, its reading of the New Deal and the Civil Rights reforms.

Freidenfelds on miscarriage in America

Lara Friedenfelds (independent scholar) has published The Myth of the Perfect Pregnancy: A History of Miscarriage in America with Oxford University Press. The book includes a chapter on abortion (ch.6) that will be of special interest to legal historians. From the publisher:

When a couple plans for a child today, every moment seems precious and unique. Home pregnancy tests promise good news just days after conception, and prospective parents can track the progress of their pregnancy day by day with apps that deliver a stream of embryonic portraits. On-line due date calculators trigger a direct-marketing barrage of baby-name lists and diaper coupons. Ultrasounds as early as eight weeks offer a first photo for the baby book.

Yet, all too often, even the best-strategized childbearing plans go awry. About twenty percent of confirmed pregnancies miscarry, mostly in the first months of gestation. Statistically, early pregnancy losses are a normal part of childbearing for healthy women. Drawing on sources ranging from advice books and corporate marketing plans to diary entries and blog posts, Lara Freidenfelds offers a deep perspective on how this common and natural phenomenon has been experienced. As she shows, historically, miscarriages were generally taken in stride so long as a woman eventually had the children she desired.

This has changed in recent decades, and an early pregnancy loss is often heartbreaking and can be as devastating to couples as losing a child. Freidenfelds traces how innovations in scientific medicine, consumer culture, cultural attitudes toward women and families, and fundamental convictions about human agency have reshaped the childbearing landscape. While the benefits of an increased emphasis on parental affection, careful pregnancy planning, attentive medical care, and specialized baby gear are real, they have also created unrealistic and potentially damaging expectations about a couple's ability to control reproduction and achieve perfect experiences.

The Myth of the Perfect Pregnancy provides a reassuring perspective on early pregnancy loss and suggests ways for miscarriage to more effectively be acknowledged by women, their families, their healthcare providers, and the maternity care industry.

Praise for the book: 

"This lively and informative book is simultaneously an exploration of contemporary 'mommy blogs' and a deeply researched history of childbirth in America. By focusing on the history of miscarriage, it casts new light on almost every aspect of our modern reproductive system, from technological innovations like sonograms to the semantics of abortion debates. It is an innovative and powerful contribution to history and to present-day discourse on childbearing." -- Laurel Thatcher Ulrich

"Bravo! Freidenfelds has delivered a formidable and gripping account of pregnancy loss in America. She weaves the voices of women today and generations past with keen historical and scientific insights. The Myth of the Perfect Pregnancy shines a much-needed light on miscarriage, a subject that has, until now, been hidden from both casual conversations and scholarly scrutiny." -- Randi Hutter Epstein

"Freidenfelds captures the dramatic transformation of the ideal of pregnancy over the past two hundred years, from a normal, accepted part of a colonial woman's life to the highly monitored, commercialized, and emotional-laden experiences of 21st century women. With sensitivity and care she explores the experience of pregnancy loss, which remains a common yet rarely publicly discussed occurrence." -- Rima D. Apple

"The Myth of the Perfect Pregnancy offers far more than a meticulously researched historical perspective on reproductive health and parenting attitudes. It also provides critical insight to the present, with a lesson that much of childbearing and childrearing is out of our control, to expect and accept the ups and downs of life and the inevitable mistakes we will make as parents. Freidenfelds has used facts to illustrate how our perfectionist parenting standards came about, so that we may forgive ourselves our imperfections. This is a message many parents, myself included, need to hear and be reminded of. Freidenfelds' work can help shift the current culture of parenting, and we will all benefit." -- Monique Tello

Further information is available here. 

--Mitra Sharafi

Lefstin on the American Misunderstanding of a Leading English Patent Case

Jeffrey A. Lefstin, University of California Hastings College of the Law, has posted Neilson v. Harford: Shape and Form in Patent Law, which is forthcoming in the Research Handbook on Creativity, Entrepreneurship, and Intellectual Property: Comparative Perspectives on Forgotten Legal Lore:

Neilson v. Harford has cast a long shadow over patent law. For American courts in the nineteenth century, the 1841 case from the Court of Exchequer was an authority whose “correctness has never been doubted and denied.” More recently, Neilson served as the ostensible authority for some of the Supreme Court’s most significant changes to the doctrine of patent eligibility under § 101. Parker v. Flook took from Neilson the notion that fundamental principles cannot contribute to the patent-eligibility of a claim, and Mayo v. Prometheus relied on Neilson to support its requirement for unconventional application of new discoveries.

Drawing on a complete account of the Neilson trial that has never been examined by legal scholars, this chapter shows that the true story of Neilson v. Harford is very different than the one told by the Supreme Court. The Court of Exchequer never treated fundamental principles as part of the prior art, nor did it require inventive application of new discoveries; Neilson’s patent was sustained largely because discovery required only well-known, routine, and conventional means for application. The central question in Neilson was to what extent Neilson’s invention – and by extension patents in general – were bound by shape and form.

The Exchequer’s conclusion that Neilson’s patent transcended form was key to three of the Supreme Court’s foundational nineteenth century cases: Winans v. Denmead’s extension of infringement beyond the patentee’s embodiment; Tilghman v. Proctor’s separation of a process from its instrumentalities; and O’Reilly v. Morse’s delineation of the outer bounds of enablement. In particular, the Morse Court’s contrast between Neilson’s invention and Morse’s illustrates that Morse was based on conventional enablement reasoning, not on the unpatentability of scientific discoveries.

--Dan Ernst

O’Donnell's "Inventing Unemployment"

Anthony O’Donnell, Senior Lecturer in Law, La Trobe University, Melbourne, has published Inventing Unemployment: Regulating Joblessness in Twentieth-Century Australia (Hart):

This book examines the evolution of Australian unemployment law and policy across the past 100 years. It poses the question 'How does unemployment happen?'. But it poses it in a particular way. How do we regulate work relationships, gather statistics, and administer a social welfare system so as to produce something we call 'unemployment'? And how has that changed over time?

Attempts to sort workers into discrete categories – the 'employed', the 'unemployed', those 'not in the labour force' – are fraught, and do not always easily correspond with people's working lives. Across the first decades of the twentieth century, trade unionists, statisticians and advocates of social insurance in Australia as well as Britain grappled with the problem of which forms of joblessness should be classified as 'unemployment' and which should not. This book traces those debates. It also chronicles the emergence and consolidation of a specific idea of unemployment in Australia after the Second World War. It then charts the eventual unravelling of that idea, and relates that unravelling to the changing ways of ordering employment relationships.

In doing so, Inventing Unemployment challenges the preconception that casual work, self-employment, and the 'gig economy' are recent phenomena. Those forms of work confounded earlier attempts to define 'unemployment' and are again unsettling our contemporary understandings of joblessness. This thought-provoking book shows that the category of 'unemployment', rather than being a taken-for-granted economic variable, has its own history, and that history is intimately related to our changing understandings of 'employment'.

–Dan Ernst

Emerson's "The Public's Law": An LHB Symposium

[The annual meeting of the American Society for Legal History last November included an author-meets-readers session on Blake Emerson’s The Public’s Law: Origins and Architecture of Progressive Democracy (Oxford University Press, 2019).  At it, I summarized the book.  Anne Kornhauser, Associate Professor in the History Department of the City College of New York and Associate Professor of History at the CUNY Graduate Center; and Noah Rosenblum, a Ph.D. candidate in history at Columbia University and a Program Affiliate Scholar at the NYU School of Law, provided comments, to which Emerson, Assistant Professor of Law at UCLA, responded.

[We will link to Kornhauser's revised and extended comment when it appears in the New Rambler Review.  This post is my summary of the book.  Rosenblum's comment and Emerson's response will appear in future posts.  DRE]

In Thinking Like Your Editor (2002), Susan Rabiner and Alfred Fortunato suggested a strategy for injecting narrative tension into serious nonfiction.  An author begins by describing some problem that has been bugging her and then explains that the book represents her search for an answer.  If the author does  that much properly, the reader will think, “You know, now that she mentions it, that problem has been bothering me, too.  I’m not exactly sure where her search would take me, but she seems to be a smart cookie who'll have interesting things to say along the way.  I’ll tag along and see whether she finds her answer.”  Narrative tension, then, is provided by the author’s search for an answer.

Emerson’s problem, speaking generally, is the political legitimacy of the administrative state in a democratic United States. The book resulting from his search for an answer has an introduction, a conclusion, and four chapters.  He uses three methodologies: (1) intellectual history (in Chapters 1 and 2); (2) institutional history (in Chapter 3); and (3) what Emerson calls “normative reconstruction” (in Chapter 4).  The answer he arrives at is a kind of bureaucracy that brings the people into the state, new forms of deliberative democratic control within administration itself."  The deliberation is not so much “formally equal, contracting persons” as “relational beings whose identities, interests, and values are formed in joint discourse and action.”  It is a relational state based on the belief that “the conditions of freedom” require that people actively determined the principles and policies by which they were bound.  The result is “the public’s law.”

Rao on the Historiography of the Early Federal Government

Just out in the (gated) William and Mary Quarterly (77:1) is the review essay, The New Historiography of the Early Federal Government: Institutions, Contexts, and the Imperial State, by Gautham Rao, American University:

Over the last several decades, scholars have brought the state “back in” to the study of American history. Early American historians in particular have examined federal governmental institutions to establish the strength and vigor of the national government, which had previously been dismissed as weak and statistically insignificant.  The maturity and sophistication of this literature is clear, yet alternative approaches can further develop our understanding of the early federal government and the American state. In particular, by studying governmental authority and power from the perspective of those officeholders and persons who experienced it, scholars can more fully appreciate the complicated role of the state in early America. Indigenous people’s interactions with the early federal government furnish one powerful example. Their acts of negotiation, contestation, and more suggest that the early federal governmental institutions and officers operated in a manner reminiscent of the British Empire in the mid-to late eighteenth century. The idea of an “imperial state” might therefore be a useful way to understand statecraft in the early United States.

--Dan Ernst

Weekend Roundup

• With the help of Michael J. Wishnie and his clinic students at Yale Law School, a powerhouse group of legal historians has submitted an amicus brief to the U.S. Supreme Court in Department of Homeland Security v. Thuraissigiam. Signers include Lauren Benton, Barbara Aronstein Black, Paul Brand, Kevin Costello, Christine Desan, Lisa Ford, Eric Freedman, Robert Gordon, Thomas Green, Paul Halliday, Hendrik Hartog, Elizabeth Papp Kamali, Stanley Katz, David Lieberman, Michael Lobban, Bernadette Meyler, Eben Moglen, Hannah Weiss Muller, James Oldham, Wilfred Priest, Jonathan Rose, David J. Seipp, and John Fabian Witt.  

• In the op-ed pages of the Los Angeles Times: Sarah Barringer Gordon (University of Pennsylvania) and Kevin Waite (Durham University) on "California's Forgotten Slave History."

• From the Washington Post's "Made by History" section: Mary Ziegler (Florida State University College of Law) on how it came to be that "both sides in the abortion fight now claim to be for women’s equality"; Monica Kristin Blair (Ph.D. candidate, University of Virginia) on "What the Supreme Court missed about Wednesday’s religious-schools case"; Andrew Urban (Rutgers University) on what the deportation of an Iranian student shows about "the unchecked power of Customs and Border Protection"; Reva Siegel (Yale Law School) and Stacie Taranto (Ramapo College of New Jersey) on "What antiabortion advocates get wrong about the women who secured the right to vote"; and more.

• The Ipse Dixit podcast has posted an episode on antitrust history, featuring Christopher L. Sagers (Cleveland-Marshall School of Law).  

• HNN's interview of Chilton Varner, the president of the Supreme Court Historical Society, is here.

• Martti Koskenniemi presents "What is the History of International Law a History of?" to the  EuroStorie research seminar at the University of Helsinki on January 31.  More.

• Via HNN, here is a report on an American Historical Association panel on the history of presidential misconduct, with Kathryn Olmstead, Kevin M. Kruse, Jeremi Suri, and James M. Banner, Jr., based on the book, Presidential Misconduct: From George Washington to Today, ed. Banner (New Press, 2019). 

• Andrew Delbanco, the author of The War before the War: Fugitive Slaves and the Struggle for America’s Soul from the Revolution to the Civil War, speaks at the FDR Presidential Library at 2:00 p.m. on Sunday, February 9, 2020.

• A response to Guest blogger David S. Schwartz's guest blogposts here in December--by Michael Ramsey on the Originalism Blog here, with a response to the response by David Schwartz here.

• ICYMI:  A new exhibit on Gideon v. Wainwright at the Historical Museum of Bay County (Florida).  Brenda Wineapple in WaPo: why Salmon Chase is not a fit role model for John Roberts when presiding over an impeachment trial.  Histories of pettitfogging from NPR and Kellen Funk.  Sheri Chinen Biesen on film censorship from the 1930s to the 1950s in the OAH’s American Historian.  Drake Law hosts the ABA/Library of Congress traveling exhibit, A 100 Years After The 19th Amendment: Their Legacy Our Future.

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

Farbman, "Resistance Lawyering"

The California Law Review has published "Resistance Lawyering," by Daniel Farbman (Boston College Law). The abstract:

This is the story of a group of abolitionist lawyers who devoted themselves to working within a legal system that they considered to be fundamentally unjust and illegitimate. These “resistance lawyers” used the limited and unfriendly procedural tools of the hated Fugitive Slave Law of 1850 to frustrate, oppose, and, if possible, dismantle the operation of that law. Abolitionist resistance lawyers were forthrightly committed both to ensuring that their clients remained free and to using the cases that arose under the Fugitive Slave Law to wage a proxy war against the institution of slavery. Their daily direct service practices were inextricably linked to their movement politics and aspirations for systemic reform. Using new archival research that upends the existing historical consensus, I show that this linked practice was dramatically more effective than previously thought, both in protecting individual clients and as a means of building political opposition to slavery in local and national politics. This history should serve as a provocation for contemporary resistance lawyering. Many lawyers today practice within a legal system that they oppose in the hope of frustrating or dismantling that system. I suggest that today’s resistance lawyers can learn from the abolitionists’ integration of politics and daily practice as they fight to increase the political power and salience of their own work.

The full article is available here.

-- Karen Tani

FJC's "Approaches to Federal Judicial History"

The Federal Judicial Center has just published Approaches to Federal Judicial History, edited by Gautham Rao, Winston Bowman and Clara Altman and downloadable here.  As Rao explains in his introduction:

This volume presents recent scholarship on the history of the federal court system. It builds on the symposium “The Federal Courts in American Historiography,” which convened at the Federal Judicial Center in the spring of 2016. The main historical themes of that scholarly meeting and of this volume are the practices and importance of the lower federal courts, the relationship between district and circuit courts and the Supreme Court, and the broader role of the federal court system in American economy and society.

Here’s the TOC:

Introduction by Gautham Rao

Part I: Historicizing the Judicial Branch
1.  The Indefinite Article: Historicizing the Judicial Branch by Winston Bowman
2.  The Handmaid of Justice: Power and Procedure in the Federal Courts by Kellen Funk
3.  Slavery and Emancipation in the Federal Courts, by Aaron Hall
4.  Writing a Court-Centered History of Administrative Governance by Joanna L. Grisinger

Part II: The Role of Lower-Court Histories
5.  Ordained and Established: The Role of Lower-Court Histories by Jake Kobrick
6.  All Rise: The Prospects and Challenges of Lower Federal Judicial Biography by Charles L Zelden
7.  The Federal Courts and Criminal Justice by Sara Mayeux

--Dan Ernst

Lo Extrajudicial, Premo

My last two posts with Judith Mansilla discussed a dimension of law that consumed perhaps the greatest part of colonial Spanish Americans’ legal experiences: a world of verbal agreements, handshakes, and homemade contracts or bills of sale. But we confronted the historian’s dependence on the more official legal archive to provide us glimpses of this dimension, specifically on the civil case record where litigants and witnesses referred to their “pacts,” or “oral receipts.” 

We should not, however, assume that this dimension of law was unsanctioned or fell into a category of the broadly “normative” as opposed to the strictly “legal.” (cont'd)

U. Chicago Seeks Senior Lecturer for Program in Law, Letters, and Society

We have the following call for applications, from the University of Chicago:

The Social Sciences Collegiate Division at the University of Chicago is now accepting applications for a Senior Lecturer who will teach in the program in Law, Letters, and Society. This is a full-time, career-track teaching position with a renewable, three-year appointment beginning in 2020.

The program in Law, Letters, and Society (LLSO) is an undergraduate program concerned with law and legal systems, both historically and contemporaneously, that offers a major, courses, student research opportunities, and a variety of co-curricular activities. The program is designed to develop students’ analytical skills and enable an informed, critical examination of law broadly construed. LLSO has approximately 60 undergraduate majors and offers courses taught by instructors from diverse disciplines. The current foci of the program are the study of United States law and democracy, the comparative study of legal systems across time and space, international law, and political economy.

Read on here.

-- Karen Tani

Tomlins's "In the Matter of Nat Turner"

Christopher Tomlins, University of California, Berkeley, has published  In the Matter of Nat Turner: A Speculative History (Princeton University Press):

In 1831 Virginia, Nat Turner led a band of Southampton County slaves in a rebellion that killed fifty-five whites, mostly women and children. After more than two months in hiding, Turner was captured, and quickly convicted and executed. In the Matter of Nat Turner penetrates the historical caricature of Turner as befuddled mystic and self-styled Baptist preacher to recover the haunting persona of this legendary American slave rebel, telling of his self-discovery and the dawning of his Christian faith, of an impossible task given to him by God, and of redemptive violence and profane retribution.

Much about Turner remains unknown. His extraordinary account of his life and rebellion, given in chains as he awaited trial in jail, was written down by an opportunistic white attorney and sold as a pamphlet to cash in on Turner’s notoriety. But the enigmatic rebel leader had an immediate and broad impact on the American South, and his rebellion remains one of the most momentous episodes in American history. Christopher Tomlins provides a luminous account of Turner’s intellectual development, religious cosmology, and motivations, and offers an original and incisive analysis of the Turner Rebellion itself and its impact on Virginia politics. Tomlins also undertakes a deeply critical examination of William Styron’s 1967 novel, The Confessions of Nat Turner, which restored Turner to the American consciousness in the era of civil rights, black power, and urban riots.

A speculative history that recovers Turner from the few shards of evidence we have about his life, In the Matter of Nat Turner is also a unique speculation about the meaning and uses of history itself.

--Dan Ernst

Digital Legal History at Max Planck

[Our friends at the Max Planck Institute for European Legal History send word of an upcoming conference on digital legal history.  As the full announcement explains, attendance is free, but the organizers ask that attendees register by sending an informal mail to dlh@rg.mpg.de before February 14, 2020.  DRE.]

Digital Methods and Resources in Legal History (DLH2020).  An international Conference at the Max Planck Institute for European Legal History (MPIeR), Frankfurt/M.  19/20 March 2020

Preliminary Programme

Thursday, 19.03.2020

09:00-09:30    Registration

09:30-10:30    Duve, Thomas and Amedick, Sigrid and Wagner, Andreas (MPIeR): Opening

10:30-11:30    Funk, Kellen (New York): Plenary Talk, The Making of Modern Law. Digital Computation and the Search for Anglo-American Legal Modernity

11:30-11:45    – Coffee Break –

11:45-12:45    Trump, Dominik (Köln): Digital Methods in Early Medieval Legal History. The New Edition of the Frankish Capitularies

Taylor, Alice (London): Introducing the 'dynamic edition' as a model and method for medieval legal history. Regiam Maiestatem and 'the community of the realm in Scotland' project

12:45-13:45     – Lunch Break –

13:45-14:45    Short Presentations of DH projects at MPIeR
(C. Birr, J.-H. Meyer, A. Küsters, M. Bragagnolo)

14:45-15:00    – Coffee Break –

15:00-16:00    Weck, Marlene (Freiburg): Digital Methods for a Narrative Analysis of Historical Narratives in the Archives of the ICTY

Petz, Cindarella (München): A mixed methods approach to political judiciary

16:00-16:15    – Coffee Break –

16:15-16:45    Robertson, Stephen (Washington, D.C.): Disorder in the Courts. Using Data, Visualizations, and Hypertext to Create a Legal History of the 1935 Harlem 'Riot'

16:45-17:00    Poster Slam

17:00-18:30    Poster Session

Mitra on Indian Sex Life

Durba Mitra (Harvard) has published Indian Sex Life with Harvard University Press. From the publisher:

During the colonial period in India, European scholars, British officials, and elite Indian intellectuals—philologists, administrators, doctors, ethnologists, sociologists, and social critics—deployed ideas about sexuality to understand modern Indian society. In Indian Sex Life, Durba Mitra shows how deviant female sexuality, particularly the concept of the prostitute, became foundational to this knowledge project and became the primary way to think and write about Indian society.

Bringing together vast archival materials from diverse disciplines, Mitra reveals that deviant female sexuality was critical to debates about social progress and exclusion, caste domination, marriage, widowhood and inheritance, women’s performance, the trafficking of girls, abortion and infanticide, industrial and domestic labor, indentured servitude, and ideologies about the dangers of Muslim sexuality. British authorities and Indian intellectuals used the concept of the prostitute to argue for the dramatic reorganization of modern Indian society around Hindu monogamy. Mitra demonstrates how the intellectual history of modern social thought is based in a dangerous civilizational logic built on the control and erasure of women’s sexuality. This logic continues to hold sway in present-day South Asia and the postcolonial world.

Reframing the prostitute as a concept, Indian Sex Life overturns long-established notions of how to write the history of modern social thought in colonial India, and opens up new approaches for the global history of sexuality.

The book includes two chapters (at least) that will be of special interest to legal historians: Ch.2, "Repetition: Law and the Sociology of Deviant Female Sexuality" and Ch.3, "Circularity: Forensics, Abortion, and the Evidence of Deviant Female Sexuality." 

Praise for the book: 

"Indian Sex Life is a well-theorized, dense, and provocative addition to current historical scholarship in gender, sexuality, and colonial/postcolonial studies of South Asia. Drawing attention to the surplus of representations around female sexual deviance within historical materials, Durba Mitra makes bold, ambitious claims about the concept of the prostitute and its role in the unfolding of methods in the social study of colonial Bengal."—Anjali Arondekar

"The startling, convincing insight in Durba Mitra's superbly researched concept-history of the prostitute is that ideas about deviant female sexuality undergird modern disciplinary knowledge, shaping debates across fields as diverse as jurisprudence, political economy, and philology. This is a valuable contribution to the global history of sexuality, and essential reading for scholars interested in modernity, colonial knowledge, gender, and cultural history."—Prachi Deshpande

"In Indian Sex Life, Durba Mitra writes with the utmost clarity and precision about female sexuality in colonial India, a topic long regarded as messy and opaque. This innovative and beautifully crafted study of the prostitute makes excellent use of feminist and queer theory to trace the construction of deviancy in social scientific thought. There are crucial insights here for scholars across the disciplines."—Laura Doan

"Pathbreaking and original, Indian Sex Life establishes the central place of deviant female sexuality in discussions about Indian society in a range of disciplines. Departing from other studies about prostitution in the subcontinent, this valuable work makes significant contributions to the literature on colonial India and to the voluminous writings on gender and sexuality in South Asia. It will compel global scholars of sexuality to question their existing assumptions."—Douglas E. Haynes

Further information is available here.

--Mitra Sharafi

Goldenfein, "Monitoring Laws: Profiling and Identity in the World State"

Cambridge University Press recently released Monitoring Laws: Profiling and Identity in the World State (Nov. 2019), by Jake Goldenfein (Cornell University). A description from the Press:

Our world and the people within it are increasingly interpreted and classified by automated systems. At the same time, automated classifications influence what happens in the physical world. These entanglements change what it means to interact with governance, and shift what elements of our identity are knowable and meaningful. In this cyber-physical world, or 'world state', what is the role for law? Specifically, how should law address the claim that computational systems know us better than we know ourselves? Monitoring Laws traces the history of government profiling from the invention of photography through to emerging applications of computer vision for personality and behavioral analysis. It asks what dimensions of profiling have provoked legal intervention in the past, and what is different about contemporary profiling that requires updating our legal tools. This work should be read by anyone interested in how computation is changing society and governance, and what it is about people that law should protect in a computational world.

A sample of some advance praise:

'How thrilling it is to read a work that stretches ideas of what legal thought and practice have been, and what they might yet become. Monitoring Laws is such a book. In captivating, pellucid prose, Jake Goldenfein retells the story of two centuries of profiling practice - from photography to neural nets, from dossiers to data analytics - and the legal, representational and relational thinking imbricated therein. Throughout, Goldenfein shows, legal notions of identity have been modulated, challenged and reworked along with developments in surveillance technology. And those notions may yet still be, he shows, by thinking juridically with data, rather than through, against, or in spite of our contemporary informational existence. To the broad range of readers likely to find this book of interest, Goldenfein urges paying close attention to how the world and we who live here are being structured and actioned informationally, and extending our thinking about legal subjects accordingly. And once one does attend to this book’s thoughtful refiguring of the stakes of digital surveillance, it is indeed hard to look away.' -- Fleur Johns

More information is available here.

-- Karen Tani

ABF Fellowships: Deadline Extended

[We're moving up this announcement from the American Bar Foundation because the deadline for all fellowships (except the ABF/JPB Foundation Access to Justice Scholars) has been extended to February 15.  DRE]

Doctoral and Postdoctoral Fellowship Opportunities at the American Bar Foundation

As one of the world’s leading research institutes for the empirical and interdisciplinary study of law, the American Bar Foundation (ABF) is committed to fostering the next generation of sociolegal scholars.  The ABF is inviting applications for the following opportunities:

Postdoctoral

1.    The ABF/Access Lex Institute Postdoctoral Fellowship Program in Legal & Higher Education

2.    Postdoctoral Scholar in The ABF/JPB Foundation Access to Justice Scholars Program   

Doctoral

1.    The ABF/Access Lex Institute Doctoral Fellowship Program in Legal & Higher Education

2.    The ABF Doctoral Fellowship Program in Law & Inequality

3.    ABF/Northwestern Univeristy Doctoral Fellowship Program in Law and Social Science

These fellowships are designed to encourage original and significant research. Fellows become immersed in an exciting and diverse intellectual community and gain access to a professional network of innovative scholars. Because the ABF’s sole focus is research, there is no teaching component to these fellowships.

In addition to working on their own research, Fellows receive mentoring from a community of leading socio-legal scholars throughout the length of the fellowship. They will participate in a series of weekly in-house seminars to get acquainted with the many facets of sociolegal research and working groups to promote professional development, such writing workshops and mock job talks.

All Fellows will work at the ABF’s office in Chicago on a full-time basis from September 2020 to August 2022 and will receive an annual stipend of $35,000 for the Doctoral and $65,000 for the Postdoctoral fellowship.

Flyers can be downloaded at the links [above.] Please share this information with members of your academic community.

The fellowships programs are featured in our recent Researching Law issue as well. For further information, please email fellowships@abfn.org or visit our website.

Law Books: History & Connoisseurship

A printing press at Yale (Mitra Sharafi)

[We share the following announcement from Mike Widener, Rare Book Librarian at the Lillian Goldman Law Library, Yale Law School. Applications are due Feb.17, 2020. Here are some highlights from the 2018 course.]

Rare Book School is now accepting applications for admission to “Law Books: History & Connoisseurship,” which Ryan Greenwood and Mike Widener will teach in the Yale Law Library June 7-12, 2020. Enrollment is limited to 12 students. The course description, advance reading list, evaluations from previous students, and a link to the application site are here:

https://rarebookschool.org/courses/collections/c85/

Information on the application process, program costs, etc., is available here:

https://rarebookschool.org/admissions-awards/application/

This intensive, week-long course is about building focused, interesting, and useful collections of historical materials in Anglo-American, European, and Latin American law. It is aimed at individuals and librarians who collect historical legal materials, and the book dealers who supply them, as well as librarians developing collections from existing holdings. Lively discussion and extensive hands-on activities are hallmarks of the course.

Mike writes: This will be my seventh time teaching the course. It will the second time for my co-instructor Ryan Greenwood, Curator of Rare Books and Special Collections at the University of Minnesota Law Library. Due to my retirement from Yale in April 2021, future offerings of this course are uncertain. If you have wanted to take the course, and haven't yet attended, now is the time. I can answer questions about the content of the course. All questions about applications, registration, tuition, and housing should be directed to the Rare Book School staff, at rbsprograms@virginia.edu.

MIKE WIDENER

Rare Book Librarian

Lillian Goldman Law Library, Yale Law School

127 Wall Street, New Haven CT 06511-8918

Phone: (203) 432-4494

Email: mike.widener@yale.edu

Website: https://library.law.yale.edu/rarebooks

--Mitra Sharafi

Sovereignty, Law, and Emancipation in the South Atlantic at Emory

[We have the following announcement.  DRE]

Sovereignty, Law, and Emancipation in the South Atlantic, 1850-1900.  Emory University, February 7, 2020.  Organizers: Adriana Chira and Yanna Yannakakis

12:00-1:00 pm Lunch and Welcome

1:00 pm-3:30 pm Fragile Freedoms: Law and Dispossession in the Nineteenth-Century Atlantic World
Mariana Candido, Associate Professor of History, Notre Dame University.  “Legal Changes, Dispossession and Land Commodification in Angola during the 19th Century”

Jon Connolly, Postdoctoral Fellow, Princeton University.  “Indenture as Free Labor: British Ideologies of Freedom in the Shadow of Cuban Slavery”

Mariana Dias Paes, Researcher, Max Planck Institute for European Legal History.  “Lawyers, Courts and Resistance: Fighting Land Dispossession in Colonial Angola”

Anjuli Webster, Graduate Student, Emory University.  “The Dingane-Retief Encounter and the Afterlives of British Abolition in Southern Africa”

Commentators: Kristin Mann (Emory University) and Walter Rucker (Emory University)

3:30 pm-4 pm: Coffee Break

4:00 pm- 6:30 pm Reconfiguring Sovereignty: Subjecthood and Citizenship in the Age of Emancipation

Adriana Chira, Assistant Professor of History, Emory University.  “From Plantations to Penal Colonies: Militarism in Cuba and Equatorial Guinea, 1840s-1890s”

 Anne Eller, Associate Professor of History, Yale University.  “What Does Independence Mean? Popular Parameters for Caribbean Sovereignty in the 1890s”

Natasha Lightfoot, Associate Professor of History, Columbia University.  “Plassy Lawrence's British Subjecthood and Her Struggle against Reenslavement in the Spanish Caribbean”

Dalia Muller, Associate Professor of History, SUNY-Buffalo.  “‘Free Men and Foreigners’: Representation, Afro-Diasporic Thought and Cuban Politics ca. 1900”

Commentators: David Sartorius (University of Maryland) and Brian Vick (Emory University)

Support has been provided by: The American Society for Legal History; The Hightower Fund; Latin American and Caribbean Studies; The Department of Women’s, Gender, and Sexuality Studies; The Department of Spanish and Portuguese, The James Weldon Johnson Institute, Institute of African Studies, and the Fox Center for Humanistic Inquiry, and the History Department.

More Than a Contract II, Premo with J. Mansilla

In the last blog, we discussed how improvised legal deals made far from notarial offices helped the inhabitants of Lima get back on their feet again after a massive earthquake and tidal wave in 1687. But even in ordinary times, informal tratos were recognized as legally—and socially-- binding. (cont'd)

Jackson's "Faith of My Fathers" (Barrett, ed.)

John Q. Barrett, St. John's Law, has posted his edition of Robert H. Jackson’s previously unpublished essay, The Faith of My Fathers, which appears in the University of Pennsylvania Law Review 169 (2019): 1-16

Robert H. Jackson, ca. 1940 (LC)

When Justice Robert H. Jackson died, he left thirteen handwritten pages—this Essay—among his papers. It has been unknown for sixty-five years, until this publication.

The essay addresses two topics: (1) Jackson’s own religious beliefs and practices and those of his ancestors, who were 19th and early 20th century American farmers; and (2) some history of Spiritualist movements in their western Pennsylvania and western New York State region. Jackson and his people were shaped by religious currents and diversities. They believed that the proper way to live is to give people space and to tolerate what they are and what they choose to believe and to practice in their own spaces, so long as they do not intrude unduly on others’.

Justice Jackson’s essay is significant because it comes from him, a renowned writer and one of the most interesting, thoughtful, and significant United States Supreme Court justices ever—it is a late-life, deeply personal piece of Jackson. The essay also has significance because it is Jackson on religion, a topic of great import in life, constitutional law, public debates, and legal cases.

As a Supreme Court justice, Jackson wrote many notable opinions addressing how the U.S. Constitution limits and empowers government in the realm of religion. In West Virginia State Board of Education v. Barnette (1943), for example, he wrote the Court’s opinion holding that the Constitution prohibits public officials from compelling Jehovah’s Witness schoolchildren to salute and pledge allegiance to the American flag. For Jackson, that limit on government power to compel professions of faith was of a piece with his view that government constitutionally may prohibit religious proselytizers from harassing others, especially in their homes—under the Constitution as he understood it, government may regulate religious actors when, but only when, their conduct imposes upon the freedom and peace of others. Jackson also believed that the Constitution bars government from ranking religion itself or any particular religion as more or less correct, or from evaluating the sincerity of professed adherents. In his view, to believe and practice any religion or none at all is, short of the point where it imposes on another, for the individual to determine, separate from government involvement.

This Jackson essay reveals that his personal views on religion and his own religious practices very much fit with his judicial interpretations of the Constitution. Jackson did not really believe in God or practice religion, but he was tolerant of others who did and how they chose to do so. He respected and deferred to the sincerity of people whose belief systems were not his. In both his living and his constitutional judging, Jackson gave religion its private space. He objected, however, and he read the Constitution as the legal basis on which to object, when government sought to bring religion into public spaces, because they belong equally to people whose beliefs range from religious belief to non-belief.

--Dan Ernst

Weekend Roundup

• The latest issue (2:4) of The Docket is out, with Sally Hadden on Digital Tools for Legal History Research, Sara Kimble on “Masculine Tyranny” and the Women’s Jury, Gautham Rao on The Newest Legal History and more.

• Politics and Prose Bookstore at Union Market welcomes Alejandro de la Fuente and Ariela J. Gross in conversation with Robert Tsai to discuss and sign copies of Becoming Free, Becoming Black: Race, Freedom, and Law in Cuba, Virginia, and Louisiana on Sunday, February 2 at 1:00 PM, at 1270 5th St NE, Washington, DC.

• “In conjunction with its upcoming revival of 1776 directed by Terrie and Bradley Bloom Artistic Director Diane Paulus, American Repertory Theater at Harvard University will host a series of conversations with acclaimed Harvard scholars that consider the Declaration of Independence and topics and themes raised by the musical.”  The announced speakers are Vincent Brown, Annette Gordon-Reed, Jane Kamensky, Jill Lepore, David Moss, and Mark Tushnet.  (Broadway World, Boston.)

• Laura Flannigan, University of Cambridge, reviews the Christopher Brooks festschrift, Law, Lawyers and Litigants in Early Modern England, edited by Joanne Begiato, Adrian Green, Michael Lobban (Cambridge University Press), in Reviews in History.

• New (or at least newly noticed) webcasts by the Supreme Court Historical Society: (1) David Bruce Smith interviewed by Martha Meehan Cohen on Abigail & John, “a new book aimed at young audiences that chronicles the dynamic partnership of the Adams”; and (2) Clare Cushman interviewed by Martha Meehan Cohen: “Celebrating the Centennial of the Supreme Court Clerkship: Is this the Right Year?”

• "At Delhi’s Supreme Court Museum, relive the subcontinent’s legal history,” urges The Indian Express.  “The museum has a display of over 1,500 items, incorporating case files and documents of the Indira Gandhi assassination documents, Mahatma Gandhi assassination case, and the Shah Bano case, to name a few. ”  More.

• On the blog of the Capital Research Center, “established in 1984 to examine how foundations, charities, and other nonprofits spend money and get involved in politics and advocacy, often in ways that donors never intended and would find abhorrent,” Robert Stilson, on The Legal Services Corporation: A History of Political Advocacy, the second in a series.

• Now available online from Law and History Review and Cambridge Core: Historians at the Court: How Cultural Expertise in Qing Law Contributes to the Invention of Hong Kong “Chinese Customary Law” by Jérôme Bourgon.

• ICYMI: WaPo's Retropolis on Salmon Chase's presiding over the Andrew Johnson impeachment. Dave Roos in History Channel's blog on Presidents, Congress, and the War Powers.  Outdated South Carolina legislation (Fleming Smith in the Post and Courier).  The many uses of the1869 courthouse in Cartersville, GA.  The Grand Forks Herald on Andrew Volstead, “the father of Prohibition” (in honor of the centennial thereof).  Prohibition hit Jefferson County, Wisconsin, hard (Daily Jefferson County Union.)

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

Swanson on "Invention of a Slave"

Kara W. Swanson, Northeastern University School of Law, has posted Race and Selective Legal Memory: Reflections on Invention of a Slave, which is forthcoming in volume 120 of the Columbia Law Review:

In 1858, the United States Attorney General issued an opinion, Invention of a Slave. Relying on the Supreme Court’s recent declaration in Dred Scott v. Sandford that African Americans were not citizens, he created a formal racial barrier to the patent system, declaring inventions by all African Americans, enslaved and free, unpatentable. Within a few years, legal changes that overruled Dred Scott and abolished the law of slavery rendered the opinion obsolete. This brief opinion became, as far as lawyers and legal scholars were concerned, forgotten. Unlike many overruled opinions dropped from the legal canon, however, Invention of a Slave and the associated story of an enslaved blacksmith who invented an innovative plow have been continuously remembered. Women and men committed to fighting the legacy of slavery maintained both in the collective memory of those seeking full civil rights for African Americans. Our legal forgetting was an act of persistent blindness to their efforts and publications. This Essay excavates the generations of African American writers and activists who have worked to remember the opinion and argues that legal forgetting has carried a cost. Their remembering was not casual storytelling but rather deliberate, strategic, and political. I offer Invention of a Slave as a case study of race and selective legal memory, tracing an unacknowledged color line that demarcates legal memory and the costs of that line. Because of our forgetting, the opinion appears as an obscure part of the antebellum past. When we understand their remembering as a political act, we can see what they have always seen: There is a connection between the patent system and the legal and social definition of citizenship. At a time when the boundaries of citizenship and the contours of who is worthy to be considered an American are hotly contested in ways related to race and ancestry, learning from those who remembered Invention of a Slave offers lessons that link this piece of the past to our present and future, with implications both for the patent system and for our on-going conversation about race, equality, citizenship and the laws that affect them.

--Dan Ernst

Weinberger at BC Legal History Roundtable

 [We have the following from our friends at the Boston College Law School.  DRE]

We invite you to join us Thursday, January 30, at 4:30 in the Rare Book Room for our first event of the spring semester of the BC Legal History Roundtable 2019-2020.  

Our guest will be  Lael Weinberger, Harvard Law School, Berger-Howe Legal History Fellow 2019-20.   He will be presenting a paper, "Judiciaries, Domestic and International: The Election of 1912" from his larger project, "Judicializing International Relations: Internationalism, Courts, and American Lawyers in the Progressive Era."

The paper is available on the Roundtable website. (Instructions for accessing the paper are in the final paragraph of the website introduction.)

Lael Weinberger is the Raoul Berger-Mark DeWolfe Howe Legal History Fellow at Harvard Law School. He is a PhD candidate in the Department of History at the University of Chicago, where he studies American legal history. Lael earned a JD with high honors from the University of Chicago Law School and clerked for Judge Frank Easterbrook on the Seventh Circuit Court of Appeals and for Chief Justice Daniel Eismann on the Idaho Supreme Court. Lael is currently writing a dissertation on American lawyers’ ideas about international law, world order, and human rights in the first half of the twentieth century. His research interests include constitutional law, international law, civil procedure, law and religion, and the legal profession. 

This paper, part of Weinberger's project on internationalism in the legal profession, reconstructs an unfamiliar period at the start of the twentieth century when American lawyers across political divides tended to believe that world courts and robust international law were the future of international relations—even suggesting that law would replace diplomacy and that international litigation would replace war. From a modern vantage point the “legal internationalism” of the period looks unrealistic or even utopian. But its very unfamiliarity provides an ideal starting point for examining the intellectual, political, and legal conditions of possibility for legal internationalism.

Refreshments are available beginning at 4:15 pm. outside the Library Conference Room.