[My annual exam in American Legal History also includes a biographical essay. Previous years’ were on Stella Akin, the father-daughter duo Gaius and Jane Bolin, and others. The subject of this year’s essay was Eunice Hunton Carter. In writing it, I relied heavily upon Stephen L. Carter’s Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster (Henry Holt 2018). Also, Carter appears, facing away from the camera, here. DRE]
Eunice Hunton Carter (1899-1970) was born in Atlanta to Black middle-class parents. Her father, William Hunton, was the grandson of a Virginia slave who purchased his freedom and moved to Canada, where William was born. College-educated, he founded the “Colored Division” of the Young Men’s Christian Association and in that capacity traveled widely in the United States to create chapters that recruited local African Americans to the YMCA’s creed of “education, hard work, and Christian virtue.” While founding a chapter in Norfolk, Virginia, he met and married Eunice’s mother, Addie Waites Hunton, who had been educated in the elite Boston Latin School. The couple moved to Atlanta shortly before Eunice’s birth. Both parents traveled, leaving Eunice and her younger brother Alpheaus in the care of a maid or family friends. Addie gained a national reputation as a founder of Black women’s clubs and lecturer. In a famous address, “Pure Motherhood the Basis for Race Integrity,” she argued that the most important duty of Black women was to tend to the family.
The Huntons’ life was shattered in 1906 when a terrible race riot devastated Atlanta’s Black middle-class neighborhood. Within months they moved to Brooklyn, New York. Both parents continued to travel, in Addie’s case, for the Young Women’s Christian Association, the NAACP, and a group advocating world peace. As before, Eunice and her brother the children usually roomed with other families. Even William’s death in November 1916 did not slow down Addie’s clubwork. Indeed, after the American entry into World War I, she spent 18 months in France bolstering the morale of Black troops stationed there.
Eunice was already on her way. In 1917 she enrolled in Smith College, an elite and overwhelmingly White women’s college in Northampton, Massachusetts. A society matron in the NAACP may have paid her tuition. A government professor introduced her to Calvin Coolidge, at the time, governor of Massachusetts, who gave her advice and let her read in his well-stocked library as she worked on her thesis on state government. The experience reinforced her lifelong attachment to the Republican Party, a family legacy. In 1921, she graduated cum laude with both a bachelor’s and master’s degree.
Eunice spent one miserable academic year teaching at a Black college in the Deep South before returning to New York City, where was a substitute teacher and wrote short stories, some of which appeared in journals alongside works by Langston Hughes and other writers of the Harlem Renaissance. Her mother helped her find jobs in various charitable and race organizations in Harlem. Through one of her projects, a free dental clinic, she met Lisle Carter, an immigrant for the Caribbean island of Barbados, who owned the most profitable dental practice in Harlem. They married in November 1924, and a year later their only child, Lisle Jr., was born.
Soon Eunice Carter was back at her social work jobs. She helped her mother host an international “Pan-African Congress,” which brought to New York City people of African descent from around the world to discuss “the many problems of racial and social uplift.” She also joined in several civil rights campaigns, such as protests of white-owned businesses that refused to hire African Americans. But she wanted more. As a child of eight, she had told a friend that she wanted to be a lawyer so she could “make sure the bad people went to jail.” Starting in 1927, while still employed as a social worker and against her mother’s advice, she enrolled in the evening program at Fordham Law School, one of only three women in a class that would graduate 367.
Carter’s initial grades were well above average, but she had to take a year off, probably to care for her son, who may have been ill. She graduated from Fordham Law School in 1932, the first Black woman to do so. In May 1933, on her second try, she passed the New York bar exam. The success came during an odd interlude, lasting into the winter of 1933-1934, during which she may have had a hysterectomy and battled depression.
Carter attempted the practice of law but had few clients. She wrote a few wills and represented a few misdemeanor defendants before magistrates sitting without a jury but spent more of her time as a supervisor for the Harlem Division of the Emergency Unemployment Relief Committee, which coordinated the distribution of cash, in-kind benefits, and public works jobs during the Depression. She also was an unpaid assistant in the Harlem branch of the city’s Women’s Court, probably as an interviewer and counselor of the prostitutes whose arrests made up most of the docket. Carter’s biographer called Women’s Courts “dark, fetid, grim chambers, loud and disorderly and presided over by bored, time-serving magistrates, many of whom . . . were thoroughly corrupt.”
She also campaigned for Republican political candidates. When stumping in Harlem for a Black Republican candidate for the State Assembly in 1928, she was appalled by the dirty tricks of Tammany Hall Democrats, including a fake flyer that played upon the racial fears of the district’s White residents. In that year she also worked for Herbert Hoover’s election as president but also protested that his handlers, seeing a chance to win the votes of White Southerners appalled by the selection of the Irish Catholic Al Smith to head the Democratic ticket, were ignoring Black Republicans and dealing only with the party’s “lily-white” Southern faction. Even so, she gave a rousing speech on Hoover’s behalf in 1932, and when the Republicans needed a candidate to run for the state assembly seat encompassing Harlem in November 1934, she agreed. Despite the endorsement of the nonpartisan Citizens Union, she lost.
The race made her known outside Harlem’s Black social elite and earned her the gratitude of the city’s Republican leaders, which they soon repaid. In March 1934, Harlem residents, angered by what proved to be a false report of police brutality, attacked white-owned businesses in Harlem. Three African Americans died, and hundreds were arrested. The newly elected mayor, Fiorello La Guardia, a Progressive Republican who won with Black support (including Carter’s), appointed a biracial investigatory commission to investigate. As its secretary, Carter became the public face of the commission, whose final report La Guardia deemed too critical of the racial biases of city officials to release to the public.
A still greater opportunity came a few months after her appointment. An increase in mob-related violence forced the Tammany-approved District Attorney to appoint a special prosecutor to investigate organized crime in New York City. Thomas E. Dewey, a graduate of the University of Michigan and Columbia Law School who served as U.S. Attorney for the Southern District of New York at the end of the Hoover administrator, got the job. When assembling his staff of twenty lawyers, he told a local judge he wanted to hire a woman. The judge recommended Carter, and Dewey appointed her on August 5, 1935.
Dewey was intent on busting the mob’s most lucrative enterprises, including the “numbers racket,” an illegal lottery. Carter was put to work examining tickets and found those favored by Harlem’s residents never won. But she was also convinced that the mob ran Harlem’s brothels, a view that went against received wisdom but was consistent with her observation of the Women’s Court. Prostitutes who paid their employers a weekly “bonding fee” invariably escaped jail time. The same lawyer appeared on their behalf, and when he did, arresting officers mysteriously forgot material details. Carter reasoned that the mob must have used bribed police officers and judges. She persuaded a reluctant Dewey to conduct raids that led to the conviction of a top mobster. Carter never appeared in court, however.
In the fall of 1937, Dewey easily won election as District Attorney. Upon taking office in January 1938, he appointed Carter Deputy Assistant District Attorney in charge of the largest division, Special Sessions, whose staff, consisting mostly of white male lawyers, prosecuted 14,000 misdemeanors a year. Her annual salary of $6,500 (about $122,000 today) was more than Charles Hamilton Houston made from working for NAACP. Newspaper profiles had her working until at least 7:00 and often 11:00 at night but also mentioned her attire and on at least one occasion photographed her cooking.
Other African American lawyers took notice. Carter addressed the national meeting of the National Bar Association in 1938 and served on two standing committees, Resolutions and on Discriminatory Legislation. Sadie Alexander congratulated her on conducting “actual trial work” before juries. “I cannot say too much for the ability that you have shown as well as the diplomacy you must have exercised to have obtained such a position,” Alexander wrote.
In her public addresses she was something less than a thorough-going feminist. She did announce, “I believe in the independence of women,” but she also told an audience at Howard University in 1937 that too few Black children “learned the habit of working” and that Black women had “to see that the path is broken in the right direction.” In 1938 she told a group of Black women voters, “Never argue with a man. I believe that I have quarreled with a man only six times in my life. Always it resulted in disaster.” She elaborated: “Women’s influence should be from behind the throne, not on it.” And: “Women must never forget that men should dominate the race and that a race is only as strong as its men. We must continue to inspire them.”
The advice jibed uneasily with her own personal life. While Carter attended law school, her son Lisle, Jr., often lived in the home of his father’s brother in New Jersey. Then, in February 1935, the nine-year-old boy was sent to live with his father’s family in Barbados. It would be a year before Eunice would see him; thereafter she visited only annually. When he turned 14, he returned to the United States, only to be sent to prep school in upstate New York. By that time his parents were living separately. Lisle, Sr.’s extramarital affairs were well-known in the community; Eunice contemplated leaving him for another man. Still, they stayed married and would later live together until Lisle Sr.’s death in 1963.
Carter continued to campaign for Dewey whenever he sought elective office, such as his unsuccessful run for governor of New York in 1938 and for the Republican presidential nomination in 1940. The latter bid included a whistle-stop campaign through Illinois, ending in a Chicago appearance in which Carter and other African Americans joined Dewey on the platform. She supported Dewey in his successful gubernatorial bid in 1942, again in his quest for the Republican presidential nomination in 1944, and yet again in his presidential campaign against Harry S. Truman in 1948, notwithstanding the Democrats’ impressive civil rights platform. Promotions or other preferments no longer followed, however. Instead, Dewey’s successor as District Attorney demoted her (albeit at the same salary) to head the Adolescent Offender Bureau, where she implemented an innovative probation system for teenage offenders. A judgeship she coveted went not to her but a Black male lawyer who started in the District Attorney’s office after she did.
Carter thought she knew the problem: her brother. Alphaeus Hunton had gotten a bachelor’s degree from Howard and a master’s degree from Harvard. He then returned to Howard as an instructor of English and Romance Languages Department while pursuing and ultimately receiving a Ph.D. at New York University, with a dissertation, directed by a Marxist professor, on the politics of an English poet. From at least 1933 onward, he met with Black communists, and he was a leader in John P. Davis’s National Negro Congress. In 1943 he moved to New York to edit the journal of the Council on African Affairs, a group that turned up on the Attorney General’s List of Subversive Organizations. For refusing to give the House Un-American Committee the records of another Communist Front group, he was imprisoned for six months in 1951. After his release, he could find no employment and emigrated to Africa. Although Carter had severed her ties with Alphaeus years earlier, she suspected, correctly, that the FBI had a substantial file on him and that it mentioned her and her connection to Dewey.
Carter left the District Attorney’s office in January 1945. She attempted to practice law on her own but found leadership roles in Black women’s groups more interesting and remunerative. Most of her new work had an international dimension, as when she represented the National Council of Negro Women at the organizational meeting of the United Nations in San Francisco. She attended several overseas conferences as a representative of NGOs in the 1940s and 1950s. “Each individual in this world has his own peculiar character and his own particular talent,” she said at one in 1951. Democracies allowed the individual to “grow in character and in personality according to his own personal ability.” Dictatorships, in contrast, forced him to “slave at tasks he would never choose for himself.” They also denied women the chance to “choose and develop their individual beings in an atmosphere of freedom.”
Thursday, December 31, 2020
Eunice Hunton Carter, 1899-1970
Public Health, 1893-1939
 |
| PHS Dispensary No. 32 (LC) |
[Longtime LHB readers will recall that for the exam in my legal history course I write an essay about some administrative regime I did not cover in class and ask students to compare it with ones we did. The topics of previous essays include federal grazing policy, motor carrier regulation, meat inspection, and the US Commerce Court. This year’s essay, on public health, follows. DRE]
Although public health measures date from ancient times, “the science of public health is of very recent origins,” wrote Henry Bixby Hemenway, a lawyer and doctor, in his leading treatise on public health law, published in 1914, For centuries, knowledge of the causes of disease was “crude and chaotic.” During the nineteenth century, however, doctors came to understand the true origins of infectious diseases and developed systematic methods to prevent them And not a moment too soon: Common knowledge might have sufficed when most Americans lived in rural areas, but by Hemenway’s day “a large proportion of the population is crowded within urban walls.” Illnesses could devastate an entire region’s economy by incapacitating its workers.
Hemenway thought that too many still scoffed at preventive methods, believing they could protect themselves or count on courts to abate disease-creating nuisances as they arose. They did not realize that “infectious diseases approach stealthily and work their injury before their presence is suspected.” Now “specially trained executives” were a necessity, and public health administration had to be “recognized as a special profession.” No government department touched “the life of every citizen” more closely, he maintained. “An efficient service means an efficient community."
Already, some municipalities had met the challenge. As the Wisconsin Supreme Court wrote in a 1909 decision, Milwaukee authorized its commissioner of health to “summarily abate nuisances of all kinds, destroy diseased or infected food, clothing, and other like articles, establish temporary hospitals in case of epidemics, and, in fine, to exercise very broad and autocratic powers in all matters relating to the conservation of the public health.” Indeed, the commissioner’s power to act without a prior hearing or even notice “at times must trench closely upon despotic rule.” But it could not be otherwise: “The public health cannot wait upon the slow processes of a legislative body or the leisurely deliberation of a court. Executive boards or officers who can deal at once with the emergency under general principles laid down by the lawmaking body must exist if the public health is to be preserved in great cities.”
Unfortunately, public health officials owed their jobs to the political party that controlled of city government. Indeed, just a few years earlier, Hemenway claimed, “a certain ward politician who was without any special training or education which fitted him for the place” ran Chicago’s public health department. “Until the importance of the health positions is generally appreciated by the citizens they will be used, in many cases at least, as means whereby political favors can be repaid,” he warned.
Ideally, Hemenway wrote, a single administrator, “expert in the line of official duty,” should run a health department. The administrator should, in turn, appoint subordinates, who should be experts, removable only for cause, and paid “an adequate salary, not by fees.” Departments should be organized to make every subordinate “definitely responsible for a definite portion of the work” and to assign at least one subordinate to “every point of danger.” Subordinates should “give personal attention to individual items,” not the top administrator.
The judicial response to public health administration tended to focus on health officials’ power to act in emergencies without prior notice and a hearing. As one court wrote, “The public health might suffer or be imperiled if action could be delayed until a protracted hearing could be brought to a termination.” But the courts insisted that the affected parties could contest the health officials’ actions in lawsuits filed after the fact. When the affected parties did in the nineteenth century, courts usually refused to treat health officials’ factual determinations as final and conclusive and instead tried them de novo. Thus, in Miller v. Horton (1891), the Massachusetts Supreme Judicial Court, in an opinion by Oliver Wendell Holmes, Jr., upheld a trial judge’s determination, in a subsequent bench trial, that a horse destroyed by the Board of Health did not have glanders, an infectious bacterial disease, after all.
In People ex rel. Copcutt v. Board of Health (1893), decided by the New York Court of Appeals, a board of health did give the owner of a wood mill a hearing before declaring his ponds a public nuisance, because of the sewage that seeped into them. When the millowner sought damages for the board-ordered destruction of the dams that created the ponds, a trial judge upheld the board’s action, but only after making his own determination that the ponds were public nuisances. The Court of Appeals affirmed, but in the process emphasized the need for de novo review after the fact. The board of health “could obtain its information from any source and in any way,” the court noted. If such factual determinations were “final and conclusive,” it continued, “the citizen would in many cases hold his property subject to the judgments of men holding ephemeral positions in municipal bodies and boards of health, frequently uneducated and generally unfitted to discharge grave judicial functions.” The court then approvingly quoted a treatise writer: “where the public authorities abate a nuisance under authority of a city ordinance ‘they are subject to the same perils and liabilities as an individual.’”
After the turn of the twentieth century, appellate courts still required after-the-fact review of the emergency actions of boards of health, but some started to instruct trial courts to give public health officials the benefit of the doubt. Valentine v. City of Englewood (1908) was a suit for wrongful imprisonment brought by the father of a girl quarantined for having scarlet fever. New Jersey’s highest court agreed that the board of health’s determination was not final and conclusive, but it also instructed trial courts simply to determine whether the board had “reasonable and probable cause” for its factual determination. Although some evidence suggested the girl did not have scarlet fever, the board of health had “acted with care, and not hastily, for it decided only after a conference between its own physician, a reputable physician of Englewood called in by the plaintiff, and a specialist from the city of New York.” The appellate court therefore affirmed the trial court’s dismissal of the father’s lawsuit.
In contrast, in North American Cold Storage Company v. Chicago (1908), the U.S. Supreme Court seemingly held the line on de novo review of a public health official’s finding of fact. Acting without a hearing, the Commissioner of Health of the City of Chicago had demanded that the complainant, the owner of a cold storage warehouse, turn over for destruction forty-seven barrels of poultry because, in the words of the Municipal Code, the poultry “had become putrid, decayed, poisonous, or infected in such a manner as to render it unsafe or unwholesome for human food.” When the warehouseman refused, the city blocked all deliveries to or from his establishment. The warehouseman sought an injunction against the blockade, the trial court dismissed his suit, and the warehouseman appealed to the U.S. Supreme Court.
Rufus Peckham wrote the Court’s opinion, from which only David Brewer dissented, without opinion. Not surprisingly, Peckham, a dissenter in Jacobson and the author of the Court’s Lochner opinion, volunteered that Chicago’s total blockade of warehouse “would seem to have been arbitrary and wholly indefensible.” The issue before the Court, however, was whether the lack of a hearing before the commissioner acted violated the warehouseman’s right to due process under the Fourteenth Amendment. After quoting Holmes’s opinion in Miller, Peckham concluded it did not, but only because “the ex parte finding of the health officers as to the fact [of the poultry’s unwholesomeness] is not in any way binding” in a subsequent judicial proceeding. “If a party cannot get his hearing in advance of the seizure and destruction, he has the right to have it afterward, which right may be claimed upon the trial in an action brought for the destruction of his property, and in that action those who destroyed it can only successfully defend if the jury shall find the fact of unwholesomeness.”
Yet Peckham rejected the warehouseman’s argument that he could only be denied a hearing if an emergency existed, that courts should determine whether one existed, and that none had existed in his case, because poultry in cold storage remained unchanged for up to three months. Peckham countered that the Municipal Code left the existence of an emergency to “the reasonable discretion of the legislature,” which had delegated it to the commissioner. Whether an emergency existed was not “a subject for review by the courts.”
Writing in 1914, Hemenway expected more judges to defer to the factual determinations of public health officials. After all, he wrote, “the judge devotes his attention to law and its interpretation; it is not to be presumed that he knows the relative merits of different food preservatives.” But he also thought judges would be tempted to intervene anyway if affected parties could not appeal an unfavorable order up the chain of command within a public health department. To prevent the temptation from arising, Hemenway argued, health departments should provide for internal appeals from subordinates to superiors.
The administration of public health also was the subject of controversy at the federal level. The first federal public health agency was the Marine Hospital Service, which ran hospitals for sailors in the nation’s seaports and was created within the Treasury Department. Over time, the Service acquired other duties, including the administration of quarantines, inspecting immigrants, and preventing the interstate transmission of disease. To recognize these functions, the agency was renamed the Public Health Service (PHS) in 1902. Two years later, at the suggestion of President Theodore Roosevelt, the National Academy for the Advancement of Science (NAAS) created a committee to study how the PHS and other health-related agencies might be combined to “make a more efficient health machine in the Federal Government.” TR backed the effort in his last message to Congress in December 1908. “This nation cannot afford to lag behind in the worldwide battle now being waged by all civilized people with microscopic foes of mankind, nor ought we longer to ignore the reproach that this government takes more pains to protect the lives of hogs and of cattle than of human beings,” Roosevelt declared.
In 1910, with the support of TR’s successor, William Howard Taft, Oklahoma Senator Robert Owen introduced a bill to create a Department of Public Health. Owen called health “a National Asset” and estimated the annual loss to the United States from preventable illness and death at $4 billion. He considered the fight against preventable disease to be “a contest between intelligence and ignorance” and insisted that “all the authority, dignity and power of the general government must be put behind the truth.” Irving Fisher, a Yale economist who chaired the NAAS committee, argued that the PHS would never get the resources it needed if it remained a mere bureau. “As long as we have a Bureau of Health subordinate to a department of something else, health will always be regarded as subordinate to something else,” he maintained.
To illustrate his point, Fisher referred to an earlier incident. In March 1900, Joseph J. Kinyoun, a bacteriologist serving as Federal Quarantine Officer in San Francisco for the PHS’s predecessor, identified an outbreak of the bubonic plague and ordered a quarantine. Outraged politicians complained the quarantine “inflicted incalculable injury upon the state, both in reputation and financially,” because it had resulted in the shunning of all things Californian. The governor denied that the plague was ever in San Francisco and accused Kinyoun of injecting cadavers with plague bacilli to justify his fallacious findings and conducting a malicious conspiracy against the state. The governor, it was said, mobilized “all the political machinery ... at his command to discredit Kinyoun and secure his removal.” He dispatched a delegation of powerful businessmen to Washington to lobby the Secretary of the Treasury. Although the head of Kinyoun’s Service warned that dismissing him would be “an abject surrender to the local political elements” and ruin the Service’s reputation, the Secretary removed Kinyoun from his post anyway.
Fisher, the allopathic doctors who dominated the American Medical Association, and other supporters probably anticipated smooth sailing for the Owen bill. After all, Democrats and Republicans had each called for the improvement of he federal public health administration in the last presidential campaign. Instead, as a journalist wrote, “a merry war among our medical brethren” broke out, as homeopaths, eclectics, osteopaths and other heterodox physicians warned that the allopaths would use the new department to make their practices the national standard and thereby create a “doctors trust.” In reply, Fisher protested, “All that we are in favor of is ... to get the light of science on medicine. We do not care where it comes from.” But Congress, “amazed at the intensity and character of the opposition,” abandoned the bill and left PHS in the Treasury Department, where it remained until 1939.
PHS finally escaped the Treasury Department after the passage of the Reorganization Act of 1939. President Franklin Delano Roosevelt had first asked for a law to enable him to reorganize the federal government in January 1937, but Congress refused, on the ground that it would delegate too much power to the president and limit its members’ influence over patronage appointments. It passed a reorganization act in 1939 only because it put some agencies off limits and by its terms expired in two years. The statute also allowed Congress to block the president’s reorganization plans by passing a Concurrent Resolution within sixty days.
Reorganization Plan No. 1, which became effective in the summer of 1939, grouped various authorities, administrations, boards, and bureaus into three “superagencies”: the Federal Security Agency, the Federal Works Agency, and the Federal Loan Agency.
FDR put his proposal in a global context. “In these days of ruthless attempts to destroy democratic governments,” he told Congress, “it is baldly asserted that democracies must always be weak in order to be democratic at all; and that, therefore, it will be easy to crush all free states out of existence.” His proposed reorganization would enable “the people’s Government” to carry out “the people’s will” and “make democracy work. . . . We are not free if our administration is weak.” FDR’s critics saw it differently. The Chicago Tribune warned that the reorganization would abet FDR’s continued transferal of “the resources of the country from private enterprise to political management” under “what the Germans call the Fueher.” If FDR was not stopped, the result could only be “the absolutism which exists in Germany, Italy, and Russia."
Nolan on Winfield on Tort
Donal Nolan, University of Oxford Faculty of Law, has posted Professor Sir Percy Winfield (1878-1953), which appears in Scholars of Tort Law, ed. James Goudkamp and Donal Nolan (Hart 2019):
–Dan ErnstThis chapter is concerned with Sir Percy Winfield, arguably the most influential scholar of the English law of tort in the relatively short history of the subject. The chapter is divided into three main parts. The first part (‘The Life’) consists of a short biography of Winfield. In the second part (‘The Work’), I discuss Winfield’s principal writings on tort law, their reception and their influence. And in the final part (‘The Scholar’), I seek to identify Winfield’s key characteristics as a scholar. I conclude that a number of reasons can be identified for the impact and endurance of Winfield’s writings on tort: his technical brilliance; his intellectual openness; his clear and attractive style; his prescience and forward-thinking approach; his thoroughgoing pragmatism; and a measure of good fortune. Underlying all of this, however, lay an even more basic foundation for his scholarly achievements, namely a profound and very broad knowledge of the common law and its history.
Wednesday, December 30, 2020
Bowman on the Jenner Bill
Winston Bowman, Associate Historian, Federal Judicial Center, continues the FJC’s Spotlight on Judicial History series with a post on “The Jenner Bill”:
In 1956 and 1957, the Supreme Court of the United States issued a series of opinions vindicating the constitutional rights of American communists. Coming near the end of a sustained period of anxiety over the supposed influence of communist “subversives” in American political and cultural affairs, these rulings proved controversial. Perhaps the most forceful response to the decisions came in the form of legislation proposed by Indiana Senator William Jenner in 1957. The “Jenner Bill,” sometimes known as the “Jenner-Butler Bill,” would have revoked the Supreme Court’s appellate jurisdiction over five classes of cases involving the civil and criminal interdiction of subversive political activities. Although the bill ultimately failed, it provoked widespread discussion over the authority and independence of the Supreme Court and the balance of power between branches of government. [More.]–Dan Ernst
Schorr on Nature as Norm in and Water Law in the British World
David Schorr, Tel Aviv University Buchmann Faculty of Law, has posted Nature Versus the Common Law: Nature as a Norm in the Water Law of the British World, which is forthcoming in Clio@Thémis 2021:
This article, written for a forthcoming issue of the journal Clio@Thémis on "Nature as a Norm", examines the water law of jurisdictions from across the "common law world" in the nineteenth and early twentieth centuries, a period in which increasingly intensive uses of water and watercourses around the world brought conflicts over water law into court with relative frequency. An issue that arose in a variety of contexts was the degree to which the rules of the common law of England with regard to water could or should be applied in territories characterized by environmental conditions that often differed radically from those found in England. A legal regime that seemed unremarkable in the home country often seemed a poor fit for the conditions of other, far-off lands, leading to friction between the law and the lived life of the colony and its natural environment.
The article explores some of the areas of water law in which courts around the common law world departed from the established rules of the common law in order to make the legal rules more appropriate, as they saw it, to the local environment. They did so consciously, explicitly granting nature normative force. It will also look at other courts and judges, ones that resisted this kind of normative claim, arguing that the law in new environments had to conform to the old common-law rules, regardless of what nature seemed to demand. Perhaps surprisingly, this discourse in far-flung jurisdictions about the potential legal force of local environmental conditions was at the same time a global one: Arguments were made not only about the differences between local and British nature, but also about the similarities between the natures of territories very distant and different from each other. Both types of environmental comparisons were seen to have normative significance.
--Dan Ernst
Srikantan on regulating religion in India
Geetanjali Srikantan (independent scholar) has published Identifying and Regulating
Religion in India: Law, History and the Place of Worship with Cambridge University Press. From the publisher:
Judicial debates on the regulation of religion in post-colonial India have been characterised by the inability of courts to identify religion as a governable phenomenon. This book investigates the identification and regulation of religion through an intellectual history of law's creation of religion from the colonial to the post-colonial. Moving beyond conventional explanations on the failure of secularism and the secular state, it argues that the impasse in the legal regulation of religion lies in the methodologies and frameworks used by British colonial administrators in identifying and governing religion. Drawing on insights from post-colonial theory and religious studies, it demonstrates the role of secular legal reasoning in the background of Western intellectual history and Christian theology through an illustration of the place of worship. It is a contribution to South Asian legal history and sociolegal studies analysing court archives, colonial narratives and legislative documents.
Here's the Table of Contents:
Introduction
1. Secularisation and Theologisation: The Making of 'Hindu Law' and British Colonialism
2. The Role of Legal Hermeneutics as Secularisation in the Formation of Anglo-Muhammadan Law
3. Influences and Confluences: The Theological Foundations of Western Property Law and the Place of Worship in India
4. Identifying 'Doctrine': Tracing Theologisation in Legal Narratives of the Place of Worship in India
5. Rethinking Definitions: Hinduism as Religion in the Indian Supreme Court
Conclusion
Further information is available here.
--Mitra Sharafi
Tuesday, December 29, 2020
Call: Continuity and change in criminal justice reform
(We share the following Call for Abstracts. The deadline is 5 March 2021.)
Howard Journal of Crime & Justice
Special Issue Call for Abstracts
Path Dependencies and Criminal Justice Reform:
Investigating Continuity and Change across Historical Time
Thomas Guiney (Oxford Brookes University), Ashley Rubin (University of Hawai'i at Mānoa) and Henry Yeomans (University of Leeds) have been invited to submit a proposal to the Howard Journal of Crime and Justice for a special issue on "Path Dependencies and Criminal Justice Reform."
For as long as there has been criminal justice there have been calls for its reform. Few areas of public policy invite greater scrutiny of practical effectiveness and the contestability of fundamental liberal democratic principles, such as legitimacy, justice, authority and human rights. And yet, despite an almost constant reform narrative, recent events – the Black Lives Matter movement and calls to defund the police, the impact of the global coronavirus pandemic and the ongoing challenge of reversing the momentum towards mass incarceration – offer a potent reminder of how difficult it can be to alter the central institutions of the criminal justice systems.
This special issue will reflect upon the dynamics of criminal justice reform. In particular we are keen to explore the theoretical potential of "path dependency" to explain the complex picture of institutional stability, incremental reform, and occasional periods of rapid policy change that we see in so many criminal justice settings across time and place.
Potential topics for proposed papers may include one or more of the following themes:
• Path dependence, continuity and institutional stability: Why do some institutions and processes possess a "stickiness" that enables them to consistently resist significant change? Why is there so little appetite or opportunity for innovation, reform or radical departures within some spheres of criminal justice? What are the mechanisms that enable some criminal justice institutions to stay the course despite calls for reform?
• Path dependence and policy change: How do we account for policy change within path dependent structures? How do the conditions for policy radicalism emerge within institutionally dense policy spheres (e.g. criminal justice)? Why do path dependent processes breakdown during critical junctures and moments of punctuated equilibrium, and what factors best explain these fleeting policy windows?
• Path dependency, structure and agency: What role does agency play in the initiation of path dependent processes and their later reproduction? How do individuals (e.g. policy entrepreneurs, penal reformers and activist criminologists) interpret, navigate and exploit path dependent conditions in the pursuit of their strategic objectives? What role do ideas and culture play in the development and reimagining of criminal justice reform narratives?
• Path dependence and criminology: While theories of path dependence are often applied to institutional change and stasis, what other elements of criminology can benefit from a path dependence perspective? What are the benefits and limitations of combining path dependence analyses with theories of criminality and criminalization? How well does path dependence theory scale across individual, organizational, and institutional units of analysis? What are the implications of such intellectual projects for criminal justice reform?
We are keen to receive submissions that provide either theoretical explorations of path dependency, careful empirical applications of path dependent approaches to the study of criminal justice reform, or both.
We invite submissions that concern a broad range of criminological topics including, but not limited to policing, prosecution and penology as well as broader regulatory responses to crime and deviance. We particularly welcome submissions from scholars working in or on the Global South.
Indicative Timeline
Deadline for abstracts: 5th March 2021.
Please submit your abstract (300 words maximum) and short biography (100 words maximum) to the Guest Editors: Dr Thomas Guiney (tguiney@brookes.ac.uk), Dr Ashley Rubin (atrubin@hawaii.edu) and Dr Henry Yeomans (h.p.yeomans@leeds.ac.uk)
Guest Editors select abstracts and invite full submissions by 6 April 2021.
Working papers are submitted for review symposium by 8 October 2021.
Review symposium (all papers circulated in advance): November 2021 (Date TBC).
Full papers submitted for the journal’s regular peer review process by 11 February 2022.
Publication of Special Issue: by Spring 2023.
--posted by Mitra Sharafi
Monday, December 28, 2020
Roberts on British "Repressive Legality" in the Age of Revolutions
Christopher M. Roberts, Chinese University of Hong Kong Faculty of Law, has published Experiments with Suppression: The Evolution of Repressive Legality in Britain in the Revolutionary Period, in the Loyola of Los Angeles International and Comparative Law Review 43 (2020): 125-181:
This article is concerned with the structure of repressive governance, and how it has evolved historically. It examines this theme through an exploration of the manner which repressive laws and institutions evolved in Britain over the course of the late eighteenth century. In particular, it reviews the various measures that British authorities utilized and relied upon in order to confront a growing wave of calls for social and political reforms. These included a policy of aggressive prosecutions of dissidents; the creation of new institutions such as the Home Office designed to enhance the powers of the central authorities; extra-legal measures such as the creation of loyalist associations, which attempted to intimidate and attack revolutionaries; and the passage of a series of new laws aimed at closing off the space for freedom of association, assembly and expression. There was much opposition to the implementation of these measures; among other things, the period was marked by the evolution of a powerful tradition of defense lawyering, thanks to the efforts of the gifted Thomas Erskine in particular. Ultimately, however, when these four different sets of repressive measures were woven together, they proved too much for progressives to handle, choking off and driving the reform movement underground for a period of time. Along the way, the government implemented a legal and institutional template for repression, the effects of which continue to be felt to the present day.
--Dan Ernst
Washington History Seminar: Spring 2021
The National History Center of the American Historical Association and the History & Public Policy Program of the Woodrow Wilson International Center for Scholars are pleased to announce the Spring season of the Washington History Seminar, which will take place online in a webinar format.
January 11: David Nasaw
The Last Million: Europe’s Displaced Persons from World War to Cold War
January 20: Joan Wallach Scott
On the Judgment of History
January 25: Claudio Saunt
Unworthy Republic: The Dispossession of Native Americans and the Road to Indian Territory
February 1: Sarah Miller-Davenport
Gateway State: Hawai’i and Cultural Transformation of American Empire
February 8: Tyler Stovall
White Freedom: The Racial History of an Idea
February 17: Giuliana Chamedes
A Twentieth Century Crusade: The Vatican’s Battle to Remake Christian Europe
February 22: Mark Levinson
Outside the Box: How Globalization Changed from Moving Stuff to Spreading Ideas
February 26: Catherine Grace Katz
The Daughters of Yalta: The Churchills, Roosevelts, and Harrimans: A Story of Love and War
March 1: Brandon R. Byrd
The Black Republic: African Americans and the Fate of Haiti
March 8: Rosie Bsheer
Archive Wars: The Politics of History in Saudi Arabia
March 15: Marvin Kalb
Assignment Russia: Becoming a Foreign Correspondent in the Crucible of the Cold War
March 22: Laura Robson
The Politics of Mass Violence in the Middle East
March 29: Christopher Capozzola
Bound by War: How the United States and the Philippines Built America’s First Pacific Century
April 5: Amanda Frost
You are Not a Citizen: Citizen Stripping from Dred Scott to the Dreamers
April 12: Ronald Grigor Suny
Stalin: Passage to Revolution
April 19: Kate Masur
Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction
April 26: Vanni Pettina
Latin America & the Global Cold War
May 3: James M. Banner Jr.
The Ever-Changing Past: Why All History is Revisionist History
May 10: Alex Wellerstein
Restricted Data: The History of Nuclear Secrecy in the United States
May 17: Joanne Meyerowitz
A War on Global Poverty: The Lost Promise of Redistribution and the Rise of Microcredit
May 24: Louis Menand
The Free World: Art and Thought in the Cold War
June 1: Jeremy Brown
June Fourth: The Tiananmen Protests and Beijing Massacre of 1989
June 7: Donald Ritchie
The Columnist: Leaks, Lies, and Libel in Drew Pearson’s Washington
June 14: Dorothy Sue Cobble
For the Many: American Feminists and the Global Fight for Democratic Equality
June 28: Patricia Sullivan
Justice Rising: Robert Kennedy’s America in Black and White
Saturday, December 26, 2020
Weekend Roundup
- Emily Prifogle, Michigan Law and a Former LHB Associate Blogger hosts K-Sue Park for a discussion of how Professor Park uses history in her Property course at Georgetown Law (LPEblog).
- Shirley Abrahamson, who served on the Wisconsin Supreme Court for 43 years, has died. Among her accomplishments is her SJD thesis, "Law and the Wisconsin Dairy Industry: Quality Control of Dairy Products, 1838-1929" (1962), written under the direction of James Willard Hurst.
- Indiana University's Center for Law, Society & Culture has a speaker series on law and emotion in spring 2021. Nicole Wright's Feb.12 session will be on affective discourse in 18th-c. legal terminology. Register here.
- ICYMI: Jon Allsop on reviving the Federal Writers Project (CJR). Bruce Carver Boynton, the plaintiff in Boynton v. Commonwealth of Virginia (US 1960), has died (Common Dreams). Clay S. Jenkinson on "Presidential Transitions and the Vagaries of America’s History" (Governing).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
Thursday, December 24, 2020
Virtual conference: English Law and Colonial Connections
[We share the following announcement about an upcoming online conference.]
English Law and Colonial Connections: Histories, Parallels, and Influences
(26-27 January 2021)
Co-sponsored by the Faculty of Law and Administration, University of Lodz and Northumbria University, Newcastle, this online symposium will take place across two afternoons (GMT) on January 26 and 27, 2021. This symposium aims to bring together researchers with interests in legal history and history more broadly. The symposium theme has no specific periodization or jurisdictional limitation.
Papers address the themes of:
• influences of English law on other parts of the world, particularly within an imperial context;
• comparative studies of English law;
• legacies and continuing influences of empire; and
• colonial influences of law back to the Metropole
Jabour on Sophonisba Breckenridge
The University of Illinois Press has published a biography on the important twentieth-century reformer and academic Sophonisba Breckenridge: Sophonisba Breckinridge: Championing Women's Activism in Modern America (2020), by Anya Jabour (University of Montana). A description from the Press:
Sophonisba Breckinridge's remarkable career stretched from the Civil War to the Cold War. She took part in virtually every reform campaign of the Progressive and New Deal eras and became a nationally and internationally renowned figure. Her work informed women's activism for decades and continues to shape progressive politics today.
Anya Jabour's biography rediscovers this groundbreaking American figure. After earning advanced degrees in politics, economics, and law, Breckinridge established the University of Chicago's School of Social Service Administration, which became a feminist think tank that promoted public welfare policy and propelled women into leadership positions. In 1935, Breckinridge’s unremitting efforts to provide government aid to the dispossessed culminated in her appointment as an advisor on programs for the new Social Security Act. A longtime activist in international movements for peace and justice, Breckinridge also influenced the formation of the United Nations and advanced the idea that "women’s rights are human rights." Her lifelong commitment to social justice created a lasting legacy for generations of progressive activists.
Advance praise:
"In propulsive prose, Anya Jabour brings to life progressive feminist Sophonisba Breckinridge, whose forty-year career as an advocate for social justice provides a model of 'passionate patience' for progressives in the twenty-first century."--Robyn Muncy
"Anya Jabour has written an outstanding biography of Sophonisba Breckinridge. She has thoroughly convinced me of Breckinridge's important role in American and women's history and how much of each is revealed by her lifelong activism. The research is expansive and the writing is flawless."--Joan M. Johnson
More information is available here.
-- Karen Tani
Wednesday, December 23, 2020
Cahiers Jean Moulin
Cornett and Bosau on Country Lawyers
Judy M. Cornett, University of Tennessee College of Law, and Heather H. Bosau, a 2020 graduate of Tennessee Law, have published The Myth of the Country Lawyer in the Albany Law Review 83 (2020): 185-167:
Everyone knows what a “country lawyer” looks like. He (it’s always a “he”) is middle-aged or older, an avuncular mix of wisdom and good humor. He is a generalist, in a small town, deeply connected to his community. He is trusted and respected. The person who is called upon when trouble threatens. Figures as diverse as Sam Ervin Jr. and Gerry Spence have called themselves “country lawyers,” and many lawyer obituaries claim that their subjects were “simple” country lawyers. The familiarity of the country lawyer qualifies it as an archetype in American culture.1 But, surprisingly, as familiar as the country lawyer archetype is, there has been little analysis of the history, characteristics, or role of the country lawyer in American culture. This Article will examine how the country lawyer came to be a familiar figure in American culture, tracing the archetype through its fictional and non-fictional manifestations. The Article will also analyze how the country lawyer archetype has affected the public perception of the American legal profession.–Dan Ernst
Nadal, "Queering Law and Order: LGBTQ Communities and the Criminal Justice System"
Lexington Books has published Queering Law and Order: LGBTQ Communities and the Criminal Justice System (2020), by Kevin L. Nadal (John Jay College of Criminal Justice and Graduate Center at the City University of New York). A description from the Press:
Throughout US history, lesbian, gay, bisexual, transgender, and queer (LGBTQ) people have been pathologized, victimized, and criminalized. Reports of lynching, burning, or murdering of LGBTQ people have been documented for centuries. Prior to the 1970s, LGBTQ people were deemed as having psychological disorders and subsequently subject to electroshock therapy and other ineffective and cruel treatments. LGBTQ people have historically been arrested or imprisoned for crimes like sodomy, cross-dressing, and gathering in public spaces. And while there have been many strides to advocate for LGBTQ rights in contemporary times, there are still many ways that the criminal justice system works against LGBTQ and their lives, liberties, and freedoms.
Queering Law and Order: LGBTQ Communities and the Criminal Justice System examines the state of LGBTQ people within the criminal justice system. Intertwining legal cases, academic research, and popular media, Nadal reviews a wide range of issues—ranging from historical heterosexist and transphobic legislation to police brutality to the prison industrial complex to family law. Grounded in Queer Theory and intersectional lenses, each chapter provides recommendations for queering and disrupting the justice system. This book serves as both an academic resource and a call to action for readers who are interested in advocating for LGBTQ rights.
Advance praise:
"Queering Law and Order is the most comprehensive review of the justice system and its effects on LGBTQ communities to date. It is informative, insightful, and thought-provoking, mixing stories and data to help bring to life the many instances that the criminal justice system has failed sexual minorities. Kevin Leo Yabut Nadal is able to show again and again how sexual minorities have suffered at the hands of an unjust criminal justice system. He does an outstanding job of weaving together a cohesive narrative that articulates what many of us suspected—we need to be more skeptical and critical of our justice system." — Roddrick ColvinMore information is available here. H/t: New Books Network.
-- Karen Tani
Tuesday, December 22, 2020
Brophy Prize to VanderVelde
[We share the following announcement from the American Journal of Legal History.]
Winner of the AJLH Alfred L. Brophy Prize
The winner of the Alfred L. Brophy Prize is Lea VanderVelde’s article entitled “The Anti-Republican Origins of the At-Will Doctrine.” A description from the prize committee reads:
Lea VanderVelde’s “The Anti-Republican Origins of the At-Will Doctrine” tells the fascinating story of the origins of the infamous employment at-will doctrine. VanderVelde persuasively argues that the doctrine emerged out of a power struggle between treatise authors in the 1870s-80s. A railroad lawyer’s vision of employer dominance triumphed over the Radical Republican model of workers’ rights, and was then embraced by an oddly influential 1884 Tennessee Supreme Court decision. With an appealing curiosity about doctrinal origins and a sophisticated appreciation of the external influences on law, the article reveals how the nineteenth-century politics of race and railroads produced an employment regime that still remains perplexing and powerful in American contract law.
An honorable mention was awarded to Ross Dardani for his piece on “Citizenship in Empire: The Legal History of U.S. Citizenship in American Samoa, 1899-1960.” The recommendation from the prize committee explains:
This powerful article explores the legal history of proposed citizenship legislation for American Samoa from 1899 to 1960, illuminating the changing meanings of citizenship for a people resisting American imperialism. American Samoa remains the only U.S. unincorporated territory to which citizenship has not been extended.
Both Lea VanderVelde and Ross Dardani’s article will appear as open access on the American Journal of Legal History website for a short time.
The Alfred L. Brophy Prize is awarded each year to an article in the American Journal of Legal History that breaks new ground and adds new insights to the study of United States legal history. Professor Al Brophy, formerly Paul and Charlene Jones Chair in Law University of Alabama School of Law, was the driving force in the successful relaunch of the AJLH in 2016 together with Professor Stefan Vogenauer. His vision, wisdom, and energy were crucial in this process. Many of our authors are indebted to Professor Brophy for his readiness to help, his warmth, and generosity. Professor Brophy’s work covers law during the eras of slavery and Jim Crow as well as the contemporary movement to address these past injustices. His most recent book is University, Court, and Slave: Proslavery Thoughts in Southern Colleges and Courts and the Coming of Civil War (2016) is an expansive study of proslavery thought in the southern academy; it continues to be a leading text in the field of American legal history. He stepped down as editor in 2018, due to ill health, and Professor Felice Batlan replaced him in 2019. The Alfred L. Brophy Prize Committee members were Professors Mary Bilder, Laura Kalman and Mitra Sharafi.
--posted by Mitra Sharafi
Monday, December 21, 2020
Morris, "Legal Sabotage: Ernst Fraenkel in Hitler's Germany"
Cambridge University Press has published Legal Sabotage: Ernst Fraenkel in Hitler's Germany (Aug. 2020), by Douglas Morris (Federal Defenders of New York). A description from the Press:
The Jewish leftist lawyer Ernst Fraenkel was one of twentieth-century Germany's great intellectuals. During the Weimar Republic he was a shrewd constitutional theorist for the Social Democrats and in post-World War II Germany a respected political scientist who worked to secure West Germany's new democracy. This book homes in on the most dramatic years of Fraenkel's life, when he worked within Nazi Germany actively resisting the regime, both publicly and secretly. As a lawyer, he represented political defendants in court. As a dissident, he worked in the underground. As an intellectual, he wrote his most famous work, The Dual State – a classic account of Nazi law and politics. This first detailed account of Fraenkel's career in Nazi Germany opens up a new view on anti-Nazi resistance – its nature, possibilities, and limits. With grit, daring and imagination, Fraenkel fought for freedom against an increasingly repressive regime.
A few blurbs:
'German-Jewish lawyer Ernst Fraenkel is remembered for his study of Nazi Germany, The Dual State. But talented historian Douglas Morris goes far beyond reconstructing Fraenkel’s biography, and following his path to his classic book, in order to dramatize the difficult choices of a pivotal lawyer in resistance. The result is an absorbing contribution not just to the history of German law in the twentieth century. It helps us to ponder the dilemmas of resistance for believers in the rule of law anywhere and even today.' -- Samuel Moyn
'There is a rich biographical and analytical literature on the lawyer and political scientist Ernst Fraenkel. We know his clear description of the Nazism as a 'dual state', we also know how important he was for the modernization of political theory, especially in Western Germany. But an investigation of his activities as a lawyer and author in the underground after 1933, based on all available sources, has not yet been carried out. It is presented here in an excellent manner, and at the same time it sheds light on the old problem: How can one use the legal order as a means of sabotage against a system of tyranny?' -- Michael Stolleis
More information is available here. H/t: New Books Network.
-- Karen Tani
Pearson on death in Siam
Colonial Siam with Cornell University Press. From the publisher:
By the 1890s, Siam (Thailand) was the last holdout against European imperialism in Southeast Asia. But the kingdom's exceptional status came with a substantial caveat: Bangkok, its bustling capital, was a port city that was subject to many of the same legal and fiscal constraints as other colonial treaty ports. Sovereign Necropolis offers new insight into turn-of-the-century Thai history by disinterring the forgotten stories of those who died "unnatural deaths" during this period and the work of the Siamese state to assert their rights in a pluralistic legal arena.
Based on a neglected cache of inquest files compiled by the Siamese Ministry of the Capital, official correspondence, and newspaper accounts, Trais Pearson documents the piecemeal introduction of new forms of legal and medical concern for the dead. He reveals that the investigation of unnatural death demanded testimony from diverse strata of society: from the unlettered masses to the king himself. These cases raised questions about how to handle the dead—were they spirits to be placated or legal subjects whose deaths demanded compensation?—as well as questions about jurisdiction, rights, and liability.
Exhuming the history of imperial politics, transnational commerce, technology, and expertise, Sovereign Necropolis demonstrates how the state's response to global flows transformed the nature of legal subjectivity and politics in lasting ways. A compelling exploration of the troubling lives of the dead in a cosmopolitan treaty port, the book is a notable contribution to the growing corpus of studies in science, law, and society in the non-Western world.
Praise for the book:
"In this eloquent, insightful study of wrongful and unnatural death in Treaty Port Bangkok, Pearson digs deep in the archive and discovers a new pressure point as the Siamese elite struggled to accommodate Western forensic medicine. The book gives voice to the subaltern dead." --Craig J. Reynolds
"Sovereign Necropolis is a fascinating study of socio-legal practices related to fatal injuries in Bangkok during the late nineteenth and early twentieth centuries. Pearson's book provides a new and unusual perspective on the interconnections among technological and economic developments, international political tensions, elite-subaltern relations, forensic medicine, and legal change." --David M. Engel
Further information is available here.
--Mitra Sharafi