The absence of Ship-Money from the canon of judicial review creates a lacuna in the scholarship on the theoretical foundations for judicial review. This review details how the majority and dissenting opinions in Ship-Money provided Americans with two distinctive paths to a judicial power to declare laws unconstitutional. The majority opinions emphasized sovereignty. Judicial review serves to protect the will of the sovereign, be that the King, Parliament or the people. The dissents emphasized fundamental law. Judicial review serves to protect higher law principles. Marbury grounded judicial review in a theory of sovereignty. James Otis when protesting the Stamp Act grounded judicial review in higher law principles. Both approaches intertwine in American constitutional development.--Dan Ernst
The absence of Ship-Money from the canon of judicial review creates a lacuna in the scholarship on the political construction of judicial review. Increasing agreement exists among scholars of constitutional law that judicial review has political foundations. Ran Hirschl and Tom Ginsburg detail how the judicialization of politics outside the United States has similar political foundations. Talk of politics disappears, however, when conversation turns to the rise of parliamentary sovereignty in England. Distinguished histories begin with Bonham’s Case, which scholars discuss as an intervention in the theory of judicial power. The English path ends with Blackstone declaring that courts have no power to declare laws unconstitutional. Parliamentary sovereignty appears to have just happened in England or Bonham perhaps aside, been the rule from time immemorial. No politics here.
Ship-Money puts politics back into explanations for the rise of parliamentary sovereignty in England and the later rise of judicial power in the United States. The judicial opinions in Ship-Money demonstrate that judicial elites in the mid-seventeenth century had developed a conception of judicial power rooted in royal sovereignty that justified striking down parliamentary legislation inconsistent with royal prerogatives. The political foundations of Ship-Money judicial review, however, collapsed almost immediately. The judicial majority in Ship-Money placed the courts firmly on what become within a decade the losing side of the English Civil War when asserting that sovereignty was vested in the King, that one aspect of this sovereignty was royal power to levy exactations without parliamentary consent, and that laws that trenched on this regal prerogative were void. Institutional power after 1648 and 1688 flowed to Parliament, the institution on the winning side of the English revolution. The new understanding of judicial power, celebrated by Blackstone, maintained that courts could not strike down legislation because Parliament was sovereign, but that justices could declare illegal royal decrees inconsistent with Parliamentary sovereignty. “Ultra vires” judicial power and only “ultra vires” judicial power does not date from “time immemorial, but became during the late seventeenth and early eighteenth centuries the dominant philosophy of the members of Parliament who gained power after the English Civil War and Glorious Revolution.
[We share the following announcement about an upcoming conference on women's enfranchisement at the University of Colorado Law School in Boulder. The conference is in honor of the centennial of the 19th Amendment's ratification, and has a significant emphasis on legal history.]Further information is available here.This article investigates the empirical backing for the claim that poor law officials needed legal authority to refuse poor parents’ right to the custody of their children in order to stabilise children's welfare institutions during the nineteenth century. Although workhouses were capable of accommodating children, Victorian lawmakers feared children would model themselves on adult paupers to become permanent burdens on the state. To tackle this problem, a system of children's welfare institutions called ‘district schools’ was introduced to train children to become industrious adult labourers. Children were usually classified as orphans or deserted so they could be sent to district schools without fear of family intervention. However, children with ambiguous parental circumstances were labelled as ‘other’ and considered a problematic class because they were perceived to be at risk of having on-going contact with their birth families. Lawmakers feared parents of ‘other’ children would undermine reformation efforts by asserting their custody rights, and passed the first laws in English history to allow the state to restrict parental rights on this basis. This article explores the claim of unwanted parental involvement, and in doing so, seeks to contextualise the origins of public law interference in the family sphere within a narrative of imposed citizenship rather than protection.
Posting Summary
The Department of History, School of Arts and Sciences-Newark, Rutgers University-Newark invites applications for a full-time, non-tenure track, academic year position at the rank of Assistant Teaching Professor or Assistant Professor of Professional Practice for an initial term of one year beginning January 1, 2021. The successful candidate will have a demonstrated commitment to excellence in undergraduate teaching in the area of legal history, preferably of US legal history. In addition, the successful candidate may have some administrative responsibilities. Rutgers non-tenure track positions have competitive salary and benefits.
Posting Open Date: 02/03/2020More information is available here.
Posting Close Date: 03/02/2020
Minimum Education and Experience
Applicants must possess a J.D. or Ph.D. Experience teaching to a diverse undergraduate population is strongly preferred.
Chapter line-up after the break:This book charts the historical development of "forensic objectivity" through an analysis of the ways in which objective knowledge of crimes, crime scenes, crime materials and criminals is achieved. Taking an interdisciplinary approach, with authors drawn from law, history, sociology and science and technology studies, this work shows how forensic objectivity is constructed through detailed crime history case studies, mainly in relation to murder, set in Scotland, England, Germany, Sweden, USA and Ireland. Starting from the mid-nineteenth century and continuing to the present day, the book argues that a number of developments were crucial. These include: the beginning of crime photography, the use of diagrams and models specially constructed for the courtroom so jurors could be "virtual witnesses," probabilistic models of certainty, the professionalization of medical and scientific expert witnesses and their networks, ways of measuring, recording and developing criminal records and the role of the media, particularly newspapers in reporting on crime, criminals and legal proceedings and their part in the shaping of public opinion on crime. This essential title demonstrates the ways in which forensic objectivity has become a central concept in relation to criminal justice over a period spanning 170 years.
[We have the following call for editors. DRE]The second is The Handmaid of Justice: Power and Procedure in the Federal Courts, which appears in Approaches to Federal Judicial History (Federal Judicial Center):From the colonial era to the present day, a number of jurisdictions in the United States have purported to fuse the disparate systems of common law and equity. This chapter focuses on the intellectual history of fusion from the 1848 Field Code to the 1938 Federal Rules. The New York corporate lawyer David Dudley Field and his fellow codifiers sought to replace the distinction between law and equity as the fundamental organizing principle of the law with the distinction between substance and procedure. They believed most of the distinction between law and equity inhered in institutions and procedures and would therefore disappear the moment a statute erected a single court with uniform proceedings. Their vision was shared by the architects of the federal procedure code a generation later. In practice, however, fusion remained far less complete than Field predicted or American lawyers commonly believe. The essay illustrates the dramatic fissions that remained in Field’s own post-fusion practice in 1870s New York.
This essay sketches a story of federal procedure writ large: it tells how federal procedure morphed from being the essence of federal power to being a mere instrument of power, from the instantiation of Justice itself in the Marshall Court’s telling to the mere handmaid of Justice as Charles Clark described it. Along the way, I hope to do three things: 1) point out a few tantalizing gaps in our knowledge, should other researchers wish to pursue them, 2) provide a guide to the often puzzling sources of procedural law, especially across the nineteenth century, and 3) wrestle with the question of how federal jurists have defined "procedure" over time.–Dan Ernst
In the South Asian setting, the fields of gender history and family history are still predominantly concerned with relatively elite social groups. Few studies have examined issues of gender and the family in the history of Dalit, low-caste, and socially marginalized communities, especially those that were labelled 'criminal tribes' from the mid-nineteenth century on. This article explores the ways in which gender patterned criminalized communities' experiences of everyday colonial governance under Part I of the 1871 Criminal Tribes Act (CTA) in the first two decades that it was enforced in northern India. In this early period, the colonial government did not closely regulate marriage practices, domestic arrangements, or the gendered organization of labour within communities categorized as 'criminal tribes.' Nevertheless, notions of sexuality and gender underlay colonial knowledge of the 'criminal tribes,' which emerged in dialogue with middle-class Indian gender and caste politics. Moreover, the family unit was the central target of the CTA surveillance and policing regime, which aimed to produce 'industrious' families. Officially endorsed forms of labour had complex implications for criminalized communities in the context of North Indian gender norms and strategies of social mobility. Gender power dynamics also shaped criminalized peoples' interpersonal, embodied interactions with British and Indian colonial officials on an everyday basis. Meanwhile, different forms of leverage and evasion were open to men and women to cope with their criminalization and so the colonial state was experienced in highly gendered ways.A read-only version of the article is available here.
A good library is the heartbeat of a law school’s operation. As Harvard Law School Dean C.C. Langdell once observed “[t]he law library has been the object of our greatest and most constant solicitude. We have…constantly inculcated the idea that the library is the proper workshop of professors and students alike; that it is to us all that the laboratories of the university are to the chemists and physicists, the museum of natural history to the zoologists, the botanical garden to the botanists.”--Dan Ernst
The book collection itself necessarily reflects the mission and character of the school. Perhaps nowhere is this better demonstrated than by the unique collection that once comprised the law library of the Transylvania University Department of Law.
Established in 1799, this frontier law school, through the tutelage of some notable faculty, trained many of our young nation’s finest lawyers, jurists, legislators and statesmen. For over fifty years the law department flourished. At its zenith, the law department’s course of study was more comprehensive than either Yale or Harvard and its law library was reputed to be among the best equipped in the nation. Through a tragic series of events, the law department subsequently began a spiraling decline that lasted more than half a century, terminating in the final locking of its doors in 1912. Amazingly, much of its law library collection has survived the abuses of heavy usage, packing, relocation, the better part of a century in unprotected storage, and exposure to insects and mildew. The Regent University Law Library was fortunate to purchase this unique and valuable collection in 1994. It comprises the major part of Regent Law Library’s Founders Collection.
This article will examine the Transylvania Law Department’s contribution to American legal education in the nineteenth century, discuss the development of the school’s historic library collection, and provide an annotated bibliography of a selection of those rare and unique volumes of particular relevance for researchers that contributed most to the Common Law foundation of American law and history. Part II explores the history of the Law Department and briefly reveals what life and legal education were like at the first law school west of the Appalachians. Part III focuses on the development of the collection itself. The annotated bibliography in Part IV offers the reader a glimpse of this historic collection by describing in some detail those rare and unique volumes significant to our modern understanding of the Common Law foundation of American law.
Sometimes the judicial Constitution is not the one that matters. The administrative state is capable of creating divergent legal frameworks that powerfully shape public life. But to the extent that they reside outside of judicial precedent, such administrative regimes may go unrecognized.--Dan Ernst
In this Article, I chart the history of an alternative “administrative Constitution” that remains etched in U.S. cities. Drawing on original archival research, I show that throughout the twentieth century, the federal administrators who oversaw the nation’s public-housing program implemented and defended a legal regime based on Plessy v. Ferguson’s “separate but equal” principle — even after the judiciary announced the opposing mandate of Brown v. Board of Education, and after the political branches adopted formal civil-rights reforms in the 1960s. Why did an agency led by liberal reformers and dedicated to serving the poor do this? Administrators believed the public-housing program was politically unsustainable without racial segregation, while agency lawyers argued for preserving the older framework, which had once been understood as a progressive triumph in its commitment to racial “equity.” Procedural barriers shielded the agency from defending that entrenched framework in the courts.
Uncovering public housing’s racial Constitution challenges conventional legal narratives around civil rights by foregrounding the role of federal administrators in thwarting Brown. Simultaneously, Plessy’s resilience in the administrative realm underscores the ongoing need to unearth such regimes, to better assess agencies’ role in establishing the constitutional principles that actually govern us — that is, in determining the effective Constitution.
This paper describes the rise of so-called “native” prisons on the Gold Coast of Africa in the mid-nineteenth century (present-day Ghana) and argues that these prisons arose out of jurisdictional struggles between British colonial officials and indigenous leaders on the coast. It then situates these struggles within the history of the global spread of the prison during the nineteenth century, contending that the prison played a central role in defining civilization and articulating changing notions of sovereignty.(Instructions for accessing the paper are in the final paragraph of the website introduction.)
This article investigates how the new welfare bureaucracy impacted on the epistolary relationship between paupers and those who administered it locally and nationally. In particular, it traces the changes in those relationships between the earliest years of the new regime and its maturity in the 1870s. It explores the ways that paupers responded to the New Poor Law, and how they negotiated the structural and sentimental shifts that took place over that period. In particular, it looks in detail at the new uses to which the epistolary relationship was put by outdoor paupers, their advocates and workhouse inmates.Further information is available here.
The banking crises of 1930-1933 created the Great Depression and with it the momentum that remade American politics with the election of Franklin Roosevelt in 1932. Pivotal to Roosevelt’s political success was the banking holiday of 1933, an event that restarted the financial system and became a keystone of 20th century political and financial history. In the conventional contemporaneous and historical narrative of these events the holiday represents the apotheosis of high politics and presidential power. Such accounts, however, say virtually nothing about what happened during the holiday itself. We reinterpret the banking crises of the 1930s—before and after Roosevelt’s election—through the lens of bank supervision, an institutional arrangement whereby government actors structure private markets in direct, visceral, haphazard, technocratic, political, disciplined, and arbitrary ways. This reinterpretation illustrates how the union of FDR’s inimitable political skills with the technocracy of bank supervision became key to the solving the banking crisis, jumpstarting the New Deal, and bringing the country back from the brink. Placing supervision at the center of this period of economic, political, and financial transition provides key insights into the exercise of government power, including the relationship between and among legitimacy, legality, politics, finance, and—perhaps especially—what it means for a government official to exercise discretion within a broad legislative mandate. This new approach, we argue, can provide an example of other reinterpretations of political history, from the New Deal and beyond, as an act of onsite government power, interacting with but defined only partially by law and politics.Read on here.
[We have the following call for submissions for a book award given by the American Society for Legal History. Note the March 16 due date. DRE.]- Methodological strategies for interpreting prologues, prefaces, and preludes, whether historical, legal, social, philological, et cetera.Depending on the number of responses, we may submit a proposal for a one-day symposium. Long term, we plan to develop an edited volume or compendium that will extend beyond the initial meeting in Chicago.
- The ancient Near East, including cuneiform traditions such as but not limited to law collections or treaties, and including the Hebrew Bible.
- Classical Traditions, including Greek and Roman law.
- Non-Western Traditions, Medieval and Early Modern (religious and/or secular), including Islamic law.
- Western Traditions, Medieval and Early Modern (religious and/or secular).
- Modern Constitutions, Jurisdictions, and Socio-political orders.
- Transnational, International, and Global Treaties, Institutions, and Arrangements.
ASLH Pre-Conference Workshops or Events-- Karen Tani
The ASLH sponsors or cosponsors a limited number of part-day or full-day workshops or events in the days before the opening of the Society’s annual conference. The Program Committee welcomes proposals for Chicago 2020, with a deadline for submission of March 13, 2020.
Proposals of 1-2 pages should:
- explain the intellectual or professional goals of the pre-conference workshop;
- describe proposed themes and list likely participants; and
Pre-conference workshops sponsored or cosponsored by the ASLH may be held at other venues or at the conference hotel, space permitting. The Society has a small amount of funding available to assist with costs. We encourage organizers to seek or propose cosponsorship to cover all or most costs.
- include information about proposed venue, cost, and other societies or institutions serving as cosponsors, if any
We especially encourage proposals for pre-conference workshops that will involve scholars in emerging fields or in fields previously underrepresented at ASLH conferences and/or that will promote early career scholarly development.
Pre-conference proposals should be emailed to Program Committee Co-Chairs, professors Ari Bryen (ari.z.bryen@vanderbilt.edu) and Kristin Collins (collinsk@bu.edu).
Predominantly a European phenomenon, the study of legal iconography has expanded to the common law world and informed approaches to Anglo-American legal development. European painting, sculptures, and other artwork were used in forensic settings to channel behavior of judges, lawyers, and litigants. Such artwork often combined religious perspectives, such as depictions of the Last Judgement, but might also reflect more secular notions such as Justice. Cultural historians and theorists have supplemented these more traditional approaches by expanding the scope of the analysis of the relationship between image and law. This study illustrates the potential for legal iconography to offer deeper insights into law, legal institutions, justice, injustice, and legal change in modern society.--Dan Ernst
The theory and jurisprudence of American federalism remains a muddle. The Supreme Court has never managed to settle three intertwined jurisprudential questions of federalism.--Dan Ernst
(1) Can an effectual national government with implied powers be meaningfully limited to a set of enumerated powers?
(2) Can the Tenth Amendment's concept of reserved state powers be presumptive, or meaningfully specified under a system of implied national powers?
(3) Can the federal and state governments meaningfully be called "sovereign" in either of the two distinct senses usually meant?
The ideology of "enumerationism" - that the Constitution creates a national government of limited enumerated powers - answers these questions yes. But McCulloch v. Maryland answered these questions no, and is therefore at odds with enumerationism. A limiting enumeration is incompatible with McCulloch's conception of a grant of implied powers compatible with an effective national government that can address national problems without reliance on the states. McCulloch clearly rejected the various versions of implied powers that were aimed at preserving a limiting enumeration. Moreover, as McCulloch makes clear, a system of implied national powers cannot be reconciled with "reserved" state powers having any definable content. Implied powers can grow and change with new circumstances and new legislative ideas, and therefore cannot be specified in advance, making it impossible to specify a "reserve" of state powers that excludes federal regulation. Finally, McCulloch recognized that federal supremacy necessarily makes the makes the states "subordinate governments" that lack power to block prima facie federal powers, whether express or implied. McCulloch thereby rejected the idea that state sovereignty is either a power to resist federal implied powers or a mirror image of a limiting enumeration of federal power.
--Dan ErnstThe Bounds Law Library has published its ninth Occasional Publication, titled Law and Miscellaneous Works: The Lives and Careers of Joel White and Amand Pfister, Booksellers and Publishers. The book features biographical essays by David I. Durham and Paul M. Pruitt, Jr. and an essay by Michael H. Hoeflich analyzing Pfister and White’s printed catalogs. In addition, the book contains facsimile images of White and Pfister’s catalogs and other documents, including White’s correspondence with publishers. Emigrants to antebellum Tuscaloosa, White and Pfister separately operated bookshops, built up clienteles, and began to publish books. When the state capital moved to Montgomery in 1846 they moved with it and soon established a partnership. Following Pfister’s death in 1857, White continued in the business of bookselling and publishing; his most notable author was Tuscaloosa lawyer and politician William R. Smith, author of The History and Debates of the Convention of the People of Alabama (1861). After secession White undertook a clandestine mission to acquire large quantities of high-grade paper for the Confederate government. Following his own personal Reconstruction, White served as publisher of the Alabama Reports (vols. 50-83), working with the clerks, lawyers, and reporters attached to that institution. All the while he continued to operate his bookstore until shortly before his death in 1896. Law and Miscellaneous Works reveals a little-known world of nineteenth-century southern booksellers and small-scale publishers and places it in the context of regional and national affairs. Law and Miscellaneous Works is free upon request. Contact Paul Pruitt (ppruitt@law.ua.edu).
